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04/16/2014 ContractAMY REAVILIN, CPA CLERK Of CIRCUIT COURT &COMPTROLLER MONROE COUNTY, FLORIDA DATE: May 8, 2014 TO: Peter Horton, Director of Airports ATTN.- Judy Layne, Senior Coordinator Airport Grants and Finance L FROM: Vitia Fernandez, D. At the April 16, 2014, Board dtounty Commissioner's meeting the Board granted approval and authorized execution of Item C2 Customs Service Agreement between Monroe County and the Marathon Jet Center to establish the financial and operational responsibilities associated with the operation of a U.S. Customs and Border Protection service at the Florida Keys Marathon Airport. Enclosed is a duplicate original of the above mentioned for your handling. Should you have any questions, please feel free to contact our office. cc: County Attorney (w /o documents) 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 CUSTOMS SERVICE AGREEMENT FLORIDA KEYS MARATHON AIRPORT MARATHON JET CENTER, INC. THIS AGREEMENT 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 1100 Simonton Street, Key West, FL 33040, hereafter "County ", and Marathon Jet Center, Inc., a Florida corporation, whose address is 8800 Overseas Highway, Marathon, FL 33050, hereafter "Provider ". WITNESSETH: WHEREAS, the County owns property known as the Florida Keys Marathon Airport, located in Marathon, Monroe County, Florida, hereinafter referred to as "Airport"; and WHEREAS, the County has been pursuing the establishment of a U.S. Customs and Border Protection (hereafter "Customs ") service at the Airport; and WHEREAS, the inauguration of Customs service is forthcoming; and WHEREAS, Marathon Jet Center (Provider) and the Middle Keys business community recognize that establishing the Airport as an official federal Port of Entry is a critical economic issue; and WHEREAS, Provider, as the primary FBO at the Airport, has developed a business plan which will cover the annual operating expenses of the Customs operation with no burden to the airport operating fund or Monroe County taxpayers; and WHEREAS, the County and Provider wish to enter into an agreement setting forth each party's responsibilities and obligations; now therefore, IN CONSIDERATION of the mutual covenants, promises and premises herein contained, the parties hereto agree as follows: 1. THE AGREEMENT The Agreement consists of this document and its exhibits only. 2. SCOPE OF THE WORK a. Provider shall hire and maintain sufficient employees (Handlers) dedicated to providing the following services; • Comprehensive ground handling services for all US Customs flights 1 • Baggage handling (to the extent permitted by CBP) • Fee collection services • Fueling service • International garbage handling • Catering services • Any other ancillary services Provider is otherwise authorized to provide under the FBO lease. 3. PROVIDER EMPLOYEES Handler(s) at all times and for all purposes will be and shall remain employees of Provider. Provider shall be solely responsible for the hiring, firing, training, staffing, salary, etc. of any individual hired to provide Handler services. 4. PROVIDER RESPONSIBILITIES a. Ensure Handler positions are staffed during normal US customs business hours and available for after -hours call in. b. Deposit all Customs fees collected into a provider established "Customs and Border Protection" dedicated operating expenses account (s). c. Prior to the date on which the County has to enter into a Customs service Agreement with the U.S. Customs Enforcement and Border Protection Agency, Provider shall deposit funds equal to six (6) months of operating expenses, with a minimum of $200,000, into a County created "Customs Service Operations" dedicated account. Provider shall maintain a minimum of $100,000 in the Customs Service Operations account throughout the term of this Agreement unless the parties agree, in writing, to a lesser amount. d. Provider will contribute $.16 per gallon flowage fee for all plane fueling on the Customs ramp, the established $.06 paid the County for flowage per gallon will be waived. e. Provider, at no cost to owner, shall provide monthly and annual accounting reports detailing all fees and monies collected. f. Establish user fees at a rate sufficient to cover the Customs Service operating expenses. g. Every 3 months upon receipt of invoice from the County, Provider will reimburse the county for all operating and maintenance expenses incurred related to Customs service that occurred in that time period. Operating expenses shall be defined as those services required, and items used, in the day to day operations of the Customs Service office and shall include, but not be limited to, office supplies, lavatory supplies, postage and postal supplies, phone service, janitorial service, etc. Maintenance expenses shall be those expenses incurred to maintain any of the infrastructure, or any of the equipment constructed, erected or installed in the Customs Service leasehold and shall include, but not be limited to, the costs of computer maintenance and/or N upgrade, HVAC maintenance (only for any required and newly installed Customs dedicated HVAC), fixtures and fixed improvements maintenance, etc. Except for the expenses associated with ongoing computer maintenance and/or upgrades which shall be borne by Provider. The maintenance expenses will be waived for the first (3) three years of this Agreement. h. At the end of the County's fiscal year, the provider will reimburse the County in whole for any outstanding expenses that occurred over the preceding 12 month period and were not previously billed. i. At the end of the initial term of this Agreement any funds remaining in the Customs Service Operations account in excess of $200,000 shall be disbursed as follows; 1) Provider will be reimbursed for any contributions to the account. 2) The remaining funds shall remitted to the County. j. In addition to the operating expense account, the provider will be responsible for meeting Customs vehicle requirement(s). k. If the provider ceases service for Customs, the provider will be responsible for any expenses, pursuant to subparagraph 4g., incurred though the termination date. 5. COUNTY RESPONSIBILITES a. Establish a Customs "Startup" fund to provide funding for construction of the improvements required to establish customs service, office set up, IT, and any other initial expense required for the Customs facilities operational needs. b. Establish a "Customs Service Operations" dedicated account for the general expenses related to providing Customs as required by the User Fee Memorandum of Agreement. C. Solicit design services for construction of the improvements required to establish customs service. d. Solicit and construct the improvements required to establish customs service. e. Using the funds from the County Customs Service Operations dedicated account, County will pay for the annual expenses of the Customs service, and on a 3 month basis will provide the Provider with an invoice for expenses incurred during that time period. f. County will pay for all "Startup" cost associated with construction, office set up, IT, furniture, fixtures, and any other initial expenses required for the Customs facilities operational needs. (Other than the expenses associated with ongoing computer maintenance and/or upgrades, the County shall also pay for maintenance expenses for the first (3) three years of this Agreement.) g. County, at no cost to provider, shall furnish provider with an adequate space in the Marathon airport terminal for purposes of processing and collecting customs fees from arriving passengers. The County reserves the right to relocate the provider to another area of the airport terminal as airport needs dictate. 3 6. TERM OF AGREEMENT This Agreement shall be for a term of (5) five years commencing on the date Customs service begin pursuant the agreement entered into between the County and U.S. Customs and Border Protection Agency, and ends on eve of the fifth anniversary of the Agreement, unless terminated earlier under paragraph 19 of this Agreement. This Agreement may be renewed for one (1) additional three (3) year period upon provider submitting a written request to renew the Agreement at least 90 days prior to the original termination date. 7. FINANCIAL RECORDS OF PROVIDER Provider 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 to this Agreement for public records purposes during the term of the Agreement, and any renewals thereof, for four years following the termination of this Agreement or any subsequent renewal. Knowingly furnishing the County with a false accounting report under the provision of this Agreement will constitute a default by Provider and the County, at its option, may immediately terminate this Agreement. If an auditor employed by the County or Clerk determines that monies collected pursuant to this Agreement were spent for purposes not authorized by this Agreement, the Provider shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were collected by Provider. 8. PUBLIC ACCESS Pursuant to Florida Statute §119.0701, Provider 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. 4 9. HOLD HARMLESS AND INSURANCE Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Provider 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 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 Contractor or any of its employees, agents, contractors or other invitees during the term of this Agreement, (B) the negligence or willful misconduct of Contractor or any of its employees, agents, sub - contractors or other invitees, or (C) Contractor's default in respect of any of the obligations that it undertakes under the terms of this Contractor's, 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 Provider). 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 Agreement, this section will survive the expiration of the term of this Agreement or any earlier termination of this Agreement. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this agreement. Failure of Provider to comply with the requirements of this section shall be cause for immediate termination of this agreement. Prior to execution of this agreement, Provider shall furnish the County Certificates of Insurance indicating the minimum coverage limitations in the following amounts: WORKERS COMPENSATION AND EMPLOYER'S LIABILTIY INSURANCE. Where applicable, coverage to apply for all employees at a minimum statutory limits as required by Florida Law. COMPREHENSIVE AUTOMOBILE VEHICLE LIABILITY INSURANCE. Motor vehicle liability insurance, including applicable no -fault coverage, with limits of liability of not less than $1.000.000.00 per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage shall include all owned vehicles, all non -owned vehicles, and all hired vehicles. COMMERCIAL GENERAL LIABILITY. Commercial general liability coverage with limits of liability of not less than $1, 000, 000.00 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. 5 CERTIFICATES OF INSURANCE. Original Certificates of Insurance shall be provided to the COUNTY at the time of execution of this Agreement and certified copies provided if requested. Each policy certificate shall be endorsed with a provision that not less than thirty (30) calendar days' written notice shall be provided to the County before any policy or coverage is canceled or restricted. The underwriter of such insurance shall be qualified to do business in the State of Florida. If requested by the County Administrator, the insurance coverage shall be primary insurance with respect to the County, its officials, employees, agents and volunteers. 10. NON - WAIVER OF IMMUNITY Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of County and Provider in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any Agreement entered into by the County be required to contain any provision for waiver. 11. INDEPENDENT CONTRACTOR At all times and for all purposes under this agreement Provider is an independent contractor and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this agreement shall be construed so as to find Provider or any of his/her employees, subs, servants, or agents to be employees of the Board of County Commissioners of Monroe County. 12. NONDISCRIMINATION County and Provider 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 discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. Provider 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 patient records; 8) 0 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 maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to County and Provider, or the subject matter of, this Agreement. 13. ASSIGNMENT /SUBCONTRACT Provider shall not assign or subcontract its obligations under this agreement to others, except in writing and with the prior written approval of the Board of County Commissioners of Monroe County and Provider, which approval shall be subject to such conditions and provisions as the Board may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or sub shall comply with all of the provisions of this agreement. Unless expressly provided for therein, such approval shall in no manner or event be deemed to impose any additional obligation upon the board. 14. COMPLIANCE WITH LAW AND LICENSE REOUIREMMENTS In providing all services /goods pursuant to this agreement, Provider shall abide by all laws of the Federal and State government, ordinances, rules and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Compliance with all laws includes, but is not limited to, the immigration laws of the Federal and State government. Any violation of said statutes, ordinances, rules and regulations shall constitute a material breach of this agreement and shall entitle the Board to terminate this Agreement. Provider shall possess proper licenses to perform work in accordance with the scope of work set forth in this Agreement. 15. DISCLOSURE AND CONFLICT OF INTEREST Provider represents that it, its directors, principles and employees, presently have no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required by this contract, as provided in Sect. 112.311, et. seq., Florida Statutes. 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. 16. NO PLEDGE OF CREDIT Provider shall not pledge the County's credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. Provider further warrants 7 and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this contract. 17. NOTICE REQUIREMENT 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: Don DeGraw 9400 Overseas Highway, Suite 200 Marathon, Fl. 33050 For Provider: Bill Ehrhorn 8800 Overseas Highway Marathon, Florida 33050 18. TAXES County is exempt from payment of Florida State Sales and Use taxes. Provider shall not be exempted by virtue of the County's exemption from paying sales tax to its suppliers for materials used to fulfill its obligations under this contract, nor is Provider authorized to use the County's Tax Exemption Number in securing such materials. Provider shall be responsible for any and all taxes, or payments of withholding, related to services rendered under this agreement. 19. TERMINATION Unless the County has accepted in writing a delay in the performance of the Provider's duties and responsibilities, the failure to perform said duties and/or responsibilities shall constitute a breach of the Provider's obligations under the terms of this agreement. In the case of a breach the Director of Airports shall first give the Provider a written notification stating the breach. The Provider shall be notified that he has 7 days to correct the breach. If the nature of the breach is such that it cannot be cured in 7 days, the Provider shall inform the County in writing of the reason why the breach cannot be cured in 7 days and shall provide a written plan showing how the breach will be cured in a timely manner. If the Provider has not corrected the breach at the end of the 7 days or if the Provider has provided a cure plan, which the Provider has failed to timely and diligently execute, then the County may immediately cancel the Agreement in its discretion. This contract may be terminated for convenience by either party upon ninety (90) days written notice delivered by hand or certified mail, return receipt requested, of intent to terminate and the 8 date on which such termination becomes effective. Except as provided in Articles 9 and 4k, neither party shall have any further obligation, duties or responsibilities under the terms of this Agreement following the effective date of termination. 20. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to Agreements 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 Provider agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. 21. MEDIATION The County and Provider 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. 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. 22. SEVERABILITY If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and Provider agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 23. ATTORNEY'S FEES AND COSTS County and Provider 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 and court costs. Each party agrees to pay its own court costs, investigative, and out -of- pocket expenses whether it is the prevailing party or not, through all levels of the court system. 24. ADJUDICATION OF DISPUTES OR DISAGREEMENTS County and Provider agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of County and Provider. If no resolution can be agreed upon within 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 V] or issues are still not resolved to the satisfaction of County and Provider, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. 25. 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 Provider 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 Provider specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 26. BINDING EFFECT The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of County and Provider and their respective legal representatives, successors, and assigns. 27. AUTHORITY Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 28. CLAIMS FOR FEDERAL OR STATE AID Provider and County agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 29. 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. 30. LEGAL OBLIGATIONS AND RESPONSIBILITIES 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 10 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. 31. 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 the Provider agree that neither the County nor the Provider 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. 32. ATTESTATIONS Provider 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. 33. 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. 34. 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 County and Provider hereto may execute this Agreement by signing any such counterpart. 35. SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 36. MUTUAL REVIEW. This agreement has been carefully reviewed by Provider and the County, therefore this agreement is not to be construed against either party on the basis of authorship. 37. RIGHTS RESERVED Notwithstanding anything herein contained that may be or appear to be, to the contrary, it is 11 expressly understood and agreed that the rights granted under this agreement are nonexclusive and the County reserves the right to grant similar privileges to another Provider on other parts of the airport. IN WITNESS WHEREOF County and Provider hereto have executed this Agreement on the day and date first written above in four (4) counterparts, each of which shall, without proof or accounting for the other counterparts, be deemed an original contract. AMY HEAVILIN, CLERK Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor /Chairperson P OVIDER: Marathon Jet Center, Inc. Title:a o= o J ROE COL vM PP VED • � I PEDRO J �Ct,► ASSISTANT C egg ME � Va 12