HomeMy WebLinkAbout5th Amendment 04/16/2014 '7.1
/ ' Lir S"4 .` r� ° a° the ;•° g a f 4 d
,{ - � �.� " t l a :dl Sri
J h u t �dCOURT CLERK OF CIRCUIT & COMPTROLLER
OZ 4;
� � �y MONROE COUNTY,FLORIDA
• o
O�y #,tOR1i3R . �,,
DATE: April 25, 2014
TO: Bob Shillinger,
County Attorney
ATTN:: Kathy Peters
FROM: Vitia Fernandez, D. .
At the March 19, 2014, the Bo of County Commissioners granted approval and authorized
execution of the following items:
Item C34 Consent of Assignment of Lease from Conch Flyer, Inc. to Conch Flyer Concessions,
LLC.
JItem C35 Amendment to the Conch Flyer Concessions LLC lease.
Enclosed are two (2) duplicate originals of each of the above=mentioned for your handling.
Should you have any questions,please feel free to contact my office.
cc: County Attorney
Financ
File
500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663
3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025
88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146
s ,
AMENDENT TO LEASE AGREEMENT
CONCH FLYER CONCESSIONS, LLC.
THIS AMENDMENT (hereafter Amendment) is made and entered into this 16th day of
April, 2014, by and between Monroe County, a political subdivision of the State of Florida, whose
address is Gato Building, 1100 Simonton Street, Key West, FL 33040 (hereinafter "County",
"Lessor" or "Owner"), and Conch Flyer Concessions, LLC., a Florida limited liability company,
whose address is 201 Alhambra Circle, Ste. 702, Coral Gables, FL 33134 (hereinafter "Tenant" or
"Lessee").
WHEREAS, on the 18th day of April 1983, the County entered in to a lease (hereinafter
Original Lease) with the Lessee's predecessor in interest; and
WHEREAS, the County and the Lessee's predecessor in interest entered into Lease
amendments dated May 4, 1984, January 23, 1985, October 7, 1992, April 8, 1998, December 17,
2003, May 19, 2004 and April 19, 2006, and
WHEREAS, Lessee's predecessor in interest is transferring all rights, title, interest and
obligations to the leasehold by means of a Consent To Assignment Of Lease to Lessee, and
WHEREAS, Lessee's predecessor in interest operated under the business name of Conch
Flyer, Inc. and Lessee will be operating under the business name of Conch Flyer Concessions, LLC,
and
WHEREAS, the County desires to update the lease to reflect updated County lease
language and correct the business entity name, now, therefore,
IN CONSIDERATION of the premises and of the mutual covenants and agreements herein
contained, and other valuable considerations, the parties agree as follows:
SECTION 1. Article III — RENTAL CHARGES, subparagraph A.1(a) of the original lease is
amended to read as follows:
(a) Lessee agrees to pay 10% of gross proceeds or receipts each month but no less than a
guaranteed $6,000 per month plus tax.
Rent shall be paid in equal monthly installments, all of which shall be due and payable on or before
the first day of each calendar month during which this lease is in effect. Upon the failure of Lessee
to pay any installments when due, the COUNTY will be entitled to charge and collect, and Lessee
will be obligated to pay, a late fee of two percent(2%) of any such amount, if paid within thirty (30)
days of the date due, and five percent (5%) of any such amount, not paid within thirty (30) days of
the date due. Such late fees will be in addition to the amount of rent due. The acceptance by the
County of the overdue rental installment plus applicable late fees shall cure what would otherwise
constitute a default by Lessee under the terms of this lease. The County, at its option, however,
may refuse a proffered overdue rental installment and late fees, declare a default, and proceed
according to Article III subparagraph G of this lease. In the event that any check, draft, or
negotiable instrument by which Lessee has tendered any rent payment is returned to the County and
not honored, whether for insufficient funds or other reason, the County will be entitled to charge
and collect, in addition to any applicable late payment fees as provided above, a fee of Twenty-five
Dollars ($25.00) for such dishonored instrument. Such penalty fee shall also be in addition to the
amount of rent due. The acceptance by the County of the rental payment plus any applicable late
fee and penalties following the receipt of a dishonored instrument shall cure what would otherwise
constitute a default under the terms of this lease. The County, at its option, however, may refuse
any proffered rental installment and applicable late fees and penalties, declare a default, and
proceed according to Article III subparagraph G of this lease.
SECTION 2. Article III —RENTAL CHARGES, subparagraph H of the original lease is amended
to read as follows:
Lessee has the right during the term hereof, at its own expense, at any time from time to
time, to install, maintain, operate, repair and replace any and all trade fixtures and other Airport
personal property useful from time to time in connection with its operation on the Airport, all of
which shall be and remain the property of Lessee and may be removed by Lessee prior to or within
a reasonable time after expiration of the term of this agreement; provided, however, that Lessee
shall repair any damage to the premises caused by such removal. The failure to remove trade
fixtures or other personal property shall not constitute Lessee a hold over, but all such property not
removed within ten. (10) days after Lessee receives a written demand for such removal shall be
deemed abandoned and thereupon shall become the sole property of the Airport.
Lessee shall cause to be removed any and all liens of any nature arising out of or because of any
construction performed by Lessee or any of its contractors or subcontractors on the leased premises
or because of the performance of any work or labor upon or the furnishing of any materials for use
at said premises, by or at the direction of Lessee.
SECTION 3. Article XIV—INDEMNITY of the original agreement is amended to read as follows:
Notwithstanding any minimum insurance requirements prescribed elsewhere in this lease
agreement, Lessee shall defend, indemnify and hold the County and the County's elected and
appointed officers and employees harmless from and against (i) any claims, actions or causes of
action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings
relating to any type of injury (including death), loss, damage, fine, penalty or business interruption,
and (iii) any costs or expenses (including, without limitation, costs of remediation and costs of
additional security measures that the Federal Aviation Administration, the Transportation Security
Administration or any other governmental agency requires by reason of, or in connection with a
violation of any federal law or regulation, attorney's fees and costs, court costs, fines and penalties)
that may be asserted against, initiated with respect to, or sustained by, any indemnified party by
reason of, or in connection with, (A) any activity of Lessee or any of its employees, agents,
contractors or other invitees on the Airport during the term of this lease, (B) the negligence or
willful misconduct of Lessee or any of its employees, agents, contractors or other invitees, or (C)
Lessee's default in respect of any of the obligations that it undertakes under the terms of this lease,
2
except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses
arise from the intentional or sole negligent acts or omissions of the County or any of its employees,
agents, contractors or invitees (other than Lessee). Insofar as the claims, actions, causes of action,
litigation, proceedings, costs or expenses relate to events or circumstances that occur during the
term of this lease, this Article will survive the expiration of the term of this lease or any earlier
termination of this lease.
The Lessee must keep in full force and effect during the term(s) of this lease the insurance
requirements set forth in Exhibit A of this amendment.
SECTION 4. Article XVIII—INSPECTION BY LESSOR of the original agreement is amended to
read as follows:
The County and its authorized officers, employees, agents, contractors, subcontractors and other
representatives shall have the right to enter upon the leased premises for the following purposes:
a) to inspect the leased premises at reasonable intervals during regular business
hours (or at any time in case of emergency) to determine whether Lessee has complied and is
complying with the terms and conditions of this agreement with respect thereto;
b) to perform essential maintenance, repair, relocation, or removal of existing
underground and overhead wires, pipes, drains, cables and conduits now located on or across the
leased premises, and to construct, maintain, repair, relocate, and remove such facilities in the future
as necessary to carry out the Master Plan of development of the Airport; provided, however, that
said work shall in no event unduly interfere with the operations of Lessee and, provided further, that
the entire cost of such work, including but not limited to the cost of rebuilding, removing,
relocating, protecting or otherwise modifying any fixed improvements at any time erected or
installed in or upon the leased premises by Lessee, the County or third parties, as a result of the
exercise by the County of its rights hereunder, and all damage to such fixed improvements caused
thereby, shall be borne by the County.
SECTION 5. ARTICLE XX—NOTICES is amended to read as follows:
Any notice required or permitted under this agreement shall be in writing and hand delivered
or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the
following:
For County: Director of Airports
3491 S. Roosevelt Boulevard
Key West, FL 33040
Phone: (305) 809-5200
For Lessee: Oscar J. Vila, III
Vila, Padron& Diaz
201 Alhambra circle, Ste. 702
Coral Gables, FL 33134
Phone: (305) 461-4888
3
SECTION 6. ARTICLE XXVII — NON-DISCRIMINATION CLAUSE, subparagraph A of the
original agreement is (as amended April 8, 1998) is amended to read as follows:
Lessee and Lessor agree that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction that Lessee has
discriminated against any person, this lease agreement automatically terminates without any further
action on the part of any party, effective the date of the Court order. Lessee agrees to comply with
all Federal and Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964
(PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX
of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which
prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as
amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975; as amended (42 USC ss. 6101-6107) which prohibits discrimination on
the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended,
relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing
of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be
amended from time to time, relating to nondiscrimination based of disability; 10) Secs. 13-101, et
seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability,
national origin, ancestry, sexual orientation, gender identify or expression, familial status or age;
11) Any other nondiscrimination provisions in any Federal or State statutes which may apply to the
parties to, or the subject matter of, this agreement.
SECTION 7. The following Articles are appended to the Lease Amendment and incorporated into
the original agreement as Article XXIX through Article XLVI.
ARTICLE XXIX—BOOKS, RECORDS AND DOCUMENTS
Lessee shall maintain all books, records, and documents directly pertinent to performance
under this agreement in accordance with generally accepted accounting principles consistently
applied. Each party to this agreement or their authorized representatives shall have reasonable and
timely access to such records of each other party for public records purposes during the term of the
agreement and for four (4) years following the termination of this agreement. The County, acting
through its Finance Director or other authorized representative, shall have the right to inspect and
audit Lessee's books of accounts and other records directly generated at the Key West International
Airport facility or otherwise pertaining to this agreement. Knowingly furnishing the County a false
statement of its Annual Gross Revenues under the provision of this agreement will constitute a
default by Lessee of this agreement and the County may, at its option, declare this lease terminated.
Lessee retains the right to have its auditor or a representative assigned by its auditor present during
4
any inspection or audit by the County. Ten (10) business days notice must be given of intent to audit
by the County to allow Lessee's auditor sufficient time to schedule said presence.
ARTICLE XXX—GOVERNING LAW, VENUE, INTERPRETATION
This agreement shall be governed by and construed in accordance with the laws of the State
of Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or interpretation
of this agreement, the County and Lessee agree that venue will lie in the appropriate court or before
the appropriate administrative body in Monroe County, Florida.
The County and Lessee agree that, in the event of conflicting interpretations of the terms or a term
of this agreement by or between any of them the issue shall be submitted to mediation prior to the
institution of any other administrative or legal proceeding.
ARTICLE XXXI—ATTORNEY'S FEES AND COSTS
The County and Lessee agree that in the event any cause of action or administrative
proceeding is initiated or defended by any party relative to the enforcement or interpretation of this
agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs,
investigative and out-of-pocket expenses, as an award against the non-prevailing party, and shall
include attorney's fees, court costs, investigative, and out-of-pocket expenses in appellate
proceedings. Mediation proceedings initiated and conducted pursuant to this agreement shall be in
accordance with the Florida Rules of Civil Procedure and usual and customary procedures required
by the Circuit Court of Monroe County.
ARTICLE XXXII—ADJUDICATION OF DISPUTES OR DISAGREEMENTS
Lessee and Lessor agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties. If no
resolution can be agreed upon within thirty (30) days after the first meet and confer session, the
issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the
issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the
right to seek such relief or remedy as may be provided by this agreement by Florida law.
ARTICLE XXXIII - COOPERATION
In the event any administrative or legal proceeding is instituted against either party relating
to the formation, execution, performance, or breach of this agreement, County and Lessee agree to
participate, to the extent required by the other party, in all proceedings, hearings, processes,
meetings, and other activities related to the substance of this agreement or provision of the services
under this agreement. County and Lessee specifically agree that no party to this agreement shall be
required to enter into any arbitration proceedings related to this agreement. A party who requests
the other's party's participation in accordance with the terms of this section shall pay all reasonable
expenses incurred by the other party by reason of such participation.
ARTICLE XXXIV—COVENANT OF NO INTEREST
5
•
The County and Lessee covenant that neither presently has any interest, and shall not
acquire any interest, which would conflict in any manner or degree with its performance under this
agreement, and the only interest of each is to perform and receive benefits as recited in this
agreement.
ARTICLE XXXV—CODE OF ETHICS
The County agrees that officers and employees of the County recognize and will be required to
comply with the standards of conduct for public officers and employees as delineated in Section
112.313, Florida Statutes, regarding, but not limited to solicitation or acceptance of gifts; doing
business with one's agency; unauthorized compensation; misuse of public position, conflicting
employment or contractual relationship; and disclosure or use of certain information.
ARTICLE XXXVI - PUBLIC ACCESS
Pursuant to Florida Statute §119.0701, Contractor and its subcontractors shall comply with all
public records laws of the State of Florida, including but not limited to:
(a) Keep and maintain public records that ordinarily and necessarily would be required by Monroe
County in the performance of this Agreement.
(b) Provide the public with access to public records on the same terms and conditions that Monroe
County would provide the records and at a cost that does not exceed the cost provided in Florida
Statutes, Chapter 119 or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to Monroe County
all public records in possession of the contractor upon termination of this Agreement and destroy
any duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. All records stored electronically must be provided to Monroe County in a
format that is compatible with the information technology systems of Monroe County.
ARTICLE XXXVII—NON-WAIVER OF IMMUNITY
Notwithstanding the provisions of Sec. 768.28, Florida Statues, the participation of the
County and the Lessee in this agreement and the acquisition of any commercial liability insurance
coverage, self-insurance coverage, or local government insurance pool coverage shall not be
deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into
by the County be required to contain any provision for waiver.
ARTICLE XXXVIII—PRIVILEGES AND IMMUNITIES
All of the privileges and immunities from liability, exemptions from laws, ordinances, and
rules and pensions and relief, disability, workers' compensation, and other benefits which apply to
the activity of officers, agents, or employees of any public agents or employees of the County, when
performing their respective functions under this agreement within the territorial limits of the County
shall apply to the same degree and extent to the performance of such functions and duties of such
officers, agents, volunteers, or employees outside the territorial limits of the County.
6
I ,
ARTICLE XXXIX—LEGAL OBLIGATIONS AND RESPONSIBILITIES
Non-Delegation of Constitutional or Statutory Duties. This agreement is not intended to,
nor shall it be construed as, relieving any participating entity from any obligation or responsibility
imposed upon the entity by law except to the extent of actual and timely performance thereof by any
participating entity, in which case the performance may be offered in satisfaction of the obligation
or responsibility. Further, this agreement is not intended to, nor shall it be construed as, authorizing
the delegation of the constitutional or statutory duties of the County, except to the extent permitted
by the Florida Constitution, State Statute, and case law.
ARTICLE XL—NON—RELIANCE BY NON-PARTIES
No person or entity shall be entitled to rely upon the terms, or any of them, of this agreement
to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or
program contemplated hereunder, and the County and Lessee agree that neither the County nor
Lessee or any agent, officer, or employee of either shall have the authority to inform, counsel, or
otherwise indicate that any particular individual or group of individuals, entity or entities, have
entitlements or benefits under this agreement separate and apart, inferior to, or superior to the
community in general or for the purposes contemplated in this agreement.
ARTICLE XLI -ATTESTATIONS
Lessee agrees to execute such documents as the County may reasonably require, to include a
Public Entity Crime Statement, an Ethics Statement, and a Drug-Free Workplace Statement.
ARTICLE XLII—NO PERSONAL LIABILITY
No covenant or agreement contained herein shall be deemed to be a covenant or agreement
of any member, officer, agent or employee of Monroe County in his or her individual capacity, and
no member, officer, agent or employee of Monroe County shall be liable personally on this
agreement or be subject to any personal liability or accountability by reason of the execution of this
agreement.
ARTICLE XLIII—EXECUTION IN COUNTERPARTS
This agreement may be executed in any number of counterparts, each of which shall be
regarded as an original, all of which taken together shall constitute one and the same instrument and
any of the parties hereto may execute this agreement by signing any such counterpart.
ARTICLE XLIV -AIRPORT SECURITY.
a. General. The Federal Transportation Security Administration is the federal agency primarily
responsible for overseeing the security measures utilized by the airport owner pursuant to the
relevant provisions of Chapter 49, United States Code, and regulations adopted under the authority
of the Code, including but not limited to 49 CFR 1540, et seq. Violations of the statutes or
regulations may result in severe civil monetary penalties being assessed against the airport operator.
It is the intent of the airport operator that the burdens and consequences of any security violations
7
imposed upon the airport operator as a result of actions by an airport tenant or the airport tenant's
employees, agents, invitees, or licensees shall be borne by the airport tenant.
b. Airport Tenant Defined. An airport tenant means any person, entity, organization, partnership,
corporation, or other legal association that has an agreement with the airport operator to conduct
business on airport property. The term also includes an airport tenant as defined in 49 CFR 1540.5.
Each signatory to this agreement, other than the airport operator, is an airport tenant.
c. Airport Operator Defined. As used in this agreement, airport operator means Monroe County,
Florida, its elected and appointed officers, and its employees.
d. Airport Property Defined. Airport property shall mean the property owned or leased by, or
being lawfully used by, the airport operator for civil aviation and airport-related purposes. For
purposes of this agreement, airport property is the property generally referred to as the Key West
International Airport, the Florida Keys Marathon Airport, or both as may be set forth in this
agreement.
e. Inspection Authority. The airport tenant agrees to allow Transportation Security Administration
(TSA) authorized personnel, at any time or any place, to make inspections or tests, including
copying records, to determine compliance of the airport operator or airport tenant with the _._
applicable security requirements of Chapter 49, United States Code, and 49 CFR 1540, et seq.
f. Airport Security Program. The airport tenant agrees to become familiar, to the extent permitted
by the airport operator, with the Airport Security Program promulgated by the airport operator and
approved by TSA, and also agrees to conform its' operations and business activities to the
requirements of the Airport Security Program.
g. Tenant Security Program. If permitted under TSA regulations, the airport tenant may
voluntarily undertake to maintain an Airport Tenant Security Program as referred to in 49 CFR
1542.113. If the airport tenant voluntarily promulgates an Airport Tenant Security Program that is
approved by TSA, such program, as may be amended and approved from time to time, shall be
automatically incorporated into this agreement.
h. Breach of Agreement. Should TSA determine that the airport tenant or one or more of the
airport tenant's employees, agents, invitees, or licensees has committed an act or omitted to act as
required, and such act or omission is a violation which results in TSA imposing a civil penalty
against the airport operator in accordance with TSA's Enforcement Sanction Guidance Policy, such
determination and imposition of a civil penalty by TSA shall be considered a significant breach of
this agreement.
(1) Minimum Violation. If the violation is the first or second violation attributed to the airport
tenant and is a civil penalty "minimum violation" as provided for in TSA's Enforcement Sanction
Guidance Policy, the airport tenant may cure the breach by paying to the airport operator the total
8
•
costs incurred by the airport operator, including any fines or penalties imposed, in investigating,
defending, mitigating, compromising, or taking of remedial measures as may be agreed to by TSA,
to include but not be limited to reasonable attorney's fees and costs incurred in the investigation,
defense, compromising, mitigation, or taking of remedial action measures. If the violation is a third
violation, or there are multiple violations in excess of two violations, that is or are a civil penalty
"minimum violation," the airport tenant shall pay to the airport operator the total costs incurred by -
the airport operator, including any fines or penalties imposed, in investigating, defending,
compromising, mitigating, or taking of remedial measures as may be agreed to by TSA, to include
but not be limited to reasonable attorney's fees and costs incurred in the investigation, defense,
compromising, mitigation, or taking of remedial action measures; and, further, the airport operator
shall have the right to unilaterally cancel this agreement, such cancellation to be effective thirty(30)
calendar days after receipt by the airport tenant of written notice of cancellation of this agreement
by the airport operator.
(2) Moderate Violation. If the violation is the first or second violation attributed to the airport
tenant and is a civil penalty "moderate violation" as provided for in TSA's Enforcement Sanction
Guidance Policy, the airport tenant may cure the breach by paying to the airport operator the total
costs incurred by the airport operator, including any fines or penalties imposed, in investigating,
defending, compromising, mitigating, or taking of remedial measures as may be agreed to by TSA,
to include but not be limited to reasonable attorney's fees and costs incurred in the investigation,
defense, compromising, mitigation, or taking of remedial action measures; and, further, the airport
tenant may cause all of airport tenant's employees involved in the airport tenant's business
operations on the airport property to undergo such security training as may be required by the
airport operator. The total cost of the training shall be paid for by the airport tenant. If the violation
is a third violation, or there are multiple violations in excess of two violations, that is or are a civil
penalty "moderate violation," the airport tenant shall pay to the airport operator the total costs
incurred by the airport operator, including any fines or penalties imposed, in investigating,
defending, compromising, mitigating, or taking of remedial measures as may be agreed to by TSA,
to include but not be limited to reasonable attorney's fees and costs incurred in the investigation,
defense, compromising, mitigation, or taking of remedial action measures; and, further, the airport
operator shall have the right to unilaterally cancel this agreement, such cancellation to be effective
thirty (30) calendar days after receipt by the airport tenant of written notice of cancellation of this
agreement by the airport operator.
(3) Maximum Violation. If the violation is the first violation attributed to the airport tenant and is
a civil penalty "maximum violation" as provided for in TSA's Enforcement Sanction Guidance
Policy, the airport tenant may cure the breach by paying to the airport operator the total costs
incurred by the airport operator, including any fines and penalties imposed, in investigating,
defending, compromising, mitigating, or taking of remedial measures as may be agreed to by TSA,
to include but not be limited to reasonable attorney's fees and costs incurred in the investigation,
defense, compromising, mitigation, or taking of remedial action measures; and, further, the airport
tenant may cause all of airport tenant's employees involved in the airport tenant's business
operations on the airport property to undergo such security training as may be required by the
9
airport operator. The total cost of the training shall be paid for by the airport tenant. If the violation
is a second violation, or there are multiple violations, that is or are a civil penalty "maximum
violation," the airport tenant shall pay to the airport operator the total costs incurred by the airport
operator, including any fines or penalties imposed, in investigating, defending, compromising,
mitigating, or taking of remedial measures as may be agreed to by TSA, to include but not be
limited to reasonable attorney's fees and costs incurred in the investigation, defense, compromising,
mitigation, or taking of remedial action measures; and, further, the airport operator shall have the
right to unilaterally cancel this agreement, such cancellation to be effective thirty (30) calendar days
after receipt by the airport tenant of written notice of cancellation of this agreement by the airport
operator.
(4) Mitigation of Breach. TSA has a policy of forgoing civil penalty actions when the airport
operator detects violations, promptly discloses the violations to TSA, and takes prompt corrective
action to ensure that the same or similar violations do not recur. This policy is known as the TSA -
Voluntary Disclosure Program Policy, and is designed to encourage compliance with TSA
regulations, foster secure practices, and encourage the development of internal evaluation programs.
The airport tenant agrees that upon detecting a violation the airport tenant will immediately report it
to the airport operator. Should the TSA ultimately determine that the violation was committed by
the airport tenant, or an employee, agent, invitee, or licensee of the airport tenant, but the violation
should result in the issuance of a letter of correction in lieu of a civil penalty, then the airport tenant
shall reimburse the airport operator the total costs incurred by the airport operator in investigating,
defending, mitigating, or taking of remedial measures as may be agreed to by TSA, to include but
not be limited to reasonable attorney's fees and costs incurred in the investigation, defense,
mitigation, or taking of remedial action measures. A violation resulting in the issuance of a letter of
correction shall not be considered to be a breach of this agreement by the airport tenant.
(5) Survival of Subsection. This subsection shall survive the cancellation or termination of this
agreement, and shall be in full force and effect.
ARTICLE XLV—RIGHTS RESERVED
Rights not specifically granted to Lessee by this Agreement are reserved to the County.
ARTICLE XLVI-MUTUAL REVIEW
This agreement has been carefully reviewed by Lessee and the County, therefore this
agreement is not to be construed against either party on the basis of authorship.
SECTION 8. In all other respects, the original agreement dated April 18, 1993 and the lease
amendments dated May 4, 1984, January 23, 1985, October 7, 1992, April 8, 1998, December 17,
2003, May 19, 2004 and April 19, 2006 not inconsistent herewith, shall remain in full force and
effect.
10
IN WITNESS WHEREOF each party hereto has caused this agreement to be executed in
.licate by its duly authorized representative.
,•'0 �'x�> BOARD OF COUNTY COMMISSIONERS
• AMY HEAVILIN, CLERK OF MONROE COUNTY, FLORIDA
ofl f l a �;4Lp /
lit
_--i d_ A
�� . : -� By
i
"`� Deputy Clerk I
Mayor Sylvia Murphy
COUMtY rr ate • s' 14
(CORPORATE SEAL)
ATTEST: CONCH FLYER CONCESSIONS LLC, a
Florida Limi d Liability Company
By A �C h By
Witness J e A e Managing Director
Date U - --a0LLi
Mh o•RO COON +�' .EY EP
PP VED A..
• '*4l
cc a PEDRO J. f°—RCADO
L ASSISTANT 0 'NITY ATTORNEY
Date
ed J
O Li, L)
l.i.,. CV .L>
cz LiQ 'J.)c
J a M
Ca
4' E
11
EXHIBIT A-INSURANCE REQUIREMENTS
12
MONROE COUNTY,FLORIDA
RISK MANAGEMENT
POLICY AND PROCEDURES
CONTRACT ADMINISTRATION
MANUAL
General Insurance Requirements
for
Airport/Aircraft Activities
Prior to the commencement of work governed by this contract(including the pre-staging of
personnel and material),the Vendor shall obtain,at his/her own expense,insurance as specified
in the attached schedules,which are made part of this contract. The Vendor will ensure that the
insurance obtained will extend protection to all Contractors engaged by the Vendor.
The Vendor will not be permitted to commence work governed by this contract(including pre-
staging of personnel and material)until satisfactory evidence of the required insurance has been
furnished to the County as specified below.
The Vendor shall maintain the required insurance throughout the entire term of this contract and
any extensions specified in any attached schedules. Failure to comply with this provision may
result in the immediate suspension of all activities conducted by the Vendor and its Contractors
until the required insurance has been reinstated or replaced.
The Vendor shall provide,to the County,as satisfactory evidence of the required insurance,
either:
• Certificate of Insurance
or
• A Certified copy of the actual insurance policy.
The County,at its sole option,has the right to request a certified copy of any or all insurance.
policies required by this contract.
All insurance policies must specify that they are not subject to cancellation,non-renewal,
material change,or reduction in coverage unless a minimum of thirty(30)days prior notification
is given to the County by the insurer.
The acceptance and/or approval of the Vendor's insurance shall not be construed as relieving the
Vendor from any liability or obligation assumed under this contract or imposed by law.
The Monroe County Board of County Commissioners,its employees and officials will be
included as "Additional Insured"on all policies,except for Workers'Compensation.
Any deviations from these General Insurance Requirements must be requested in writing on the
County prepared form entitled"Request for Waiver of Insurance Requirements" and
approved by Monroe County Risk Management.
Administration instruction
lll707.2
2011 Edition
WORKERS'COMPENSATION
INSURANCE REQUIREMENTS
FOR
CONTRACT
BETWEEN
MONROE COUNTY,FLORIDA
AND
•
Prior to the commencement of work governed by this contract,the Contractor shall obtain
Workers'Compensation Insurance with limits sufficient to respond to the applicable state
statutes.
In addition,the Contractor shall obtain Employers'Liability Insurance with limits of not less
than:
$1,000,000 Bodily Injury by Accident
$1,000,000 Bodily Injury by Disease,policy limits
$1,000,000 Bodily Injury by Disease,each employee
Coverage shall be maintained throughout the entire term of the contract.
Coverage shall be provided by a company or companies authorized to transact business in the
state of Florida.
If the Contractor has been approved by the Florida's Department of Labor,as an authorized self-
insurer,the County shall recognize and honor the Contractor's status. The Contractor may be
required to submit a Letter of Authorization issued by the Department of Labor and a Certificate
of Insurance,providing details on the Contractor's Excess Insurance Program.
If the Contractor participates in a self-insurance fund,a Certificate of Insurance will be required.
In addition,the Contractor may be required to submit updated financial statements from the fund
upon request from the County.
WC3
Administration Instruction
89
2011 Edition
VEHICLE LIABILITY
INSURANCE REQUIREMENTS
CONTRACT FOR
BETWEEN
MONROE COUNTY,FLORIDA
AND
Recognizing that the work governed by this contract requires the use of vehicles,the Contractor,
prior to the commencement of work,shall obtain Vehicle Liability Insurance. Coverage shall be
maintained throughout the life of the contract and include,as a mmimum,liability coverage for.
• Owned,Non-Owned,and Hired Vehicles
The minimum limits acceptable shall be:
$100,000 Combined Single Limit(CSL)
If split limits are provided, the minimum limits acceptable shall be:
$ 50,000 per Person
$100,000 per Occurrence
$ 25,000 Property Damage
The Monroe County Board of County Commissioners shall be named as Additional Insured on
all policies issued to satisfy the above requirements.
THE USE OF THIS FORM SHOULD BE LIMITED TO SPECIAL PROJECTS THAT
INVOLVE OTHER GOVERNMENTAL,ENTITIES OR"NOT FOR PROFIT"
ORGANIZATIONS. RISK MANAGMENT MUST APPROVE THE USE OF THIS
FORM.VL1
Administration Instruction VL1
80
2011 Editim
LIQUOR LIABILITY
INSURANCE REQUIREMENTS
FOR
CONTRACT
BETWEEN
MONROE COUNTY,FLORIDA
AND
Recognizing that the work governed by this contract involves the sales and/or distribution of alcoholic
beverages,the Contractor's General Liability Insurance policy shall include Liquor Liability with limits
equal to those of the basic coverage.
A separate Liquor Liability policy is acceptable if the coverage is no more restrictive than the
Contractor's General Liability policy.
The Monroe County Board of County Commissioners will be included as Additional Insured if a
separate Liquor Liability policy is provided.
GLLIQ
•
Administration Instruction
• 58'
2011 Edition
GENERAL LIABILITY
INSURANCE.REQUIREMENTS
FOR
CONTRACT
BETWEEN
MONROE COUNTY,FLORIDA
AND
Prior to the commencement of work governed by this contract,the Contractor shall obtain
General Liability Insurance. Coverage shall be maintained throughout the life of the contract and
include,as a minimum:
• Premises Operations
• Products and Completed Operations
• Blanket Contractual Liability
• Personal Injury Liability
• Expanded Definition of Property Damage
The minimum limits acceptable shall be:
$1,000,000 Combined Single Limit(CSL)
If split limits are provided,the minimum limits acceptable shall be:
$ 500,000 per Person
$ 1,000,000 per Occurrence
$ 100,000 Property Damage
An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy,provisions should include coverage for claims filed on or after the effective date of this contract.
In addition,the period for which claims may be reported should extend for a minimum of twelve
(12)months following the acceptance of work by the County.
The Monroe County Board of County Commissioners shall be named as Additional Insured on
all policies issued to satisfy the above requirements.
GL3
Administration Instruction
55
ESTOPPEL CERTIFICATE
CONCH FLYER AND LAST CALL BEACH BAR
Buyer and Proposed Assignee: CONCH FLYER CONCESSIONS, LLC
Re: Lease Agreement (the "Lease"), dated April 18, 1983, and amended on January
23, 1985, October 7, 1992, April 8, 1998, May 19, 2004 and April 19, 2006 by
and between the undersigned, as Landlord, and Fred B. Sellers, Sr., assigned to
Conch Flyer, Inc., as Lessee, regarding retail spaces 216, 219, 221 and 221A
located within the passenger ticketing terminal and retail spaces 143, 144 and
144A located within the secure passenger departure area at Key West
International Airport(the "Property")
Gentlemen:
Landlord's representative, Peter Horton, Director of Airports for Key West International
Airport, hereby certifies, represents, and confirms in favor of Conch Flyer Concessions, LLC as
follows:
1. The Lease is in full force and effect and constitutes a valid and binding obligation
of Landlord and Lessee.
2. All charges, rents, or fees currently due from Lessee under the Lease have been
timely paid.
3. The Lease represents the entire agreement between Landlord and Lessee
regarding the Property.
4. To the knowledge of the Landlord, there is no uncured breach or default under the
Lease on the part of Lessee.
5. All improvements to the demised premises have been completed and work
presently required to be performed (other than normal recurring repairs) under the Lease has
been performed, including, but not limited to the Assignor's expenditure of at least One Million
Dollars ($1,000,000)towards the food preparation facilities.
Dated as of the 3 day of APR , 2014.
KEY WEST INTERNATIONAL AIRPORT
ATTORNEY
OV # FORM By:
P ter Horto 'rector of Airports
PED 0 J.MERCA ORIVEY
ASSISTA,T C q it/
Date