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01/19/2011 AgreementDANNY L. KOLHA GE CLERK OF THE CIRCUIT COURT DATE: February 4, 2011 TO: Peter Horton, Director of Airports VIA: April Pearson FROM: Isabel C. DeSantis, D. C. At the January 19, 2011 Board of County Commissioners meeting, the Board granted approval of item C 16 concerning a Contract between Monroe County and Gardens of Eden of the Florida Keys, Inc. for landscaping services at the Key West International Airport. Attached 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 Finance File CONTRACT FOR LANDSCAPING SERVICES GARDENS OF EDEN KWIA THIS CONTRACT (hereafter "Contract" or "Agreement"), made and entered into this 19TH day of January, 2011, by and between Monroe County, a political subdivision of the State of Florida, (hereafter "County"), whose address is 1100 Simonton Street, Key West, Florida, 33040 and Gardens Of Eden of the Florida Keys, a Florida Corporation (hereafter Contractor), whose address is 92 Bay Drive Key West, Florida 33040. The parties hereto, for the considerations herein set forth, mutually agree as follows: 1. SCOPE OF WORK. a) The Contractor shall provide landscaping services at the Key West International Airport, including all necessary equipment required in the performance of same, and perform all of the work described in the Specifications (Exhibit A). The Contractor shall insure all exterior doors are locked upon their departure after business hours. b) The Contractor shall become familiar with and shall be responsible for compliance with Part 139 — Certification of Airports, specifically, Part 139.307, Unpaved Areas; Part 139.309, Safety Areas; and Part 139.329, Pedestrians and Ground Vehicles. (Exhibit B) 2. CONTRACT SUM. The County shall pay the Contractor for the faithful performance of said service on a per week in arrears basis during the term of the Contract. The Contractor shall invoice KWIA weekly for landscaping services performed under the Specifications contained herein. The total Contract amount shall not exceed $100,000. Contractor shall submit to County invoices with supporting documentation acceptable to the Clerk, on a weekly schedule in arrears. Acceptability to the Clerk is based on generally accepted accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. County's performance and obligation to pay under this agreement, is contingent upon annual appropriation by the Board of County Commissioners. 3. CONTRACTOR'S ACCEPTANCE OF CONDITIONS. a) The Contractor hereby agrees that he has carefully examined the sites and has made investigations to fully satisfy himself/herself that such sites are correct and suitable ones for this work and he/she assumes full responsibility therefore. The provisions of this Agreement shall control any inconsistent provisions contained in the Specifications. All Specifications have been read and carefully considered by the Contractor, who understands the same and agrees to their sufficiency for the work to be done. Under no circumstances, conditions, or situations shall this Contract be more strongly construed against the County than against the Contractor (and his Surety, if applicable). b) Any ambiguity or uncertainty in the Specifications shall be interpreted and construed b:y the Airport Manager, and his decision shall be final and binding upon all parties. c) The passing, approval, and/or acceptance of any part of the work or material by the County shall not operate as a waiver by the County of strict compliance with the terms of this Agreement, and Specifications covering said work. Failure on the part of the Contractor, immediately after Notice to correct workmanship shall entitle the County, if it sees fit, to correct the same and recover the reasonable cost of such remediation work and/or repair from the Contractor, who shall in any event be jointly and severally liable to the County for all damage, loss, and expense caused to the County by reasons of the Contractor's breach of this Agreement and/or his failure to comply strictly and in all things with this Agreement and with the Specifications. 4. TERM OF CONTRACT/RENEWAL. a) This Contract shall be for a period of one year commencing on January 19, 2011 and terminating on January 18, 2012. b) The parties shall have the option to renew this Agreement after the first year, for three additional one year periods. The contract amount agreed to herein may be adjusted annually, on the renewal date of each year, by a percentage equal to the percentage increase in the CPI for urban consumers for the preceding calendar year. c) Should additional services be required at KWIA on a permanent basis, the additional specific tasks, and costs for these tasks, will be mutually agreed upon in writing, and approved by the Airport Manager and by the Contractor. 5. INDEPENDENT CONTRACTOR. At all times and for all purposes under this Agreement the Contractor is an independent contractor and not an employee of the Board of County Commissioners for Monroe County. No statement contained in this Agreement shall be construed so as to find the Contractor or any of his/her employees, sub -contractors, servants, or agents to be! employees of the Board of County Commissioners for Monroe County. 6. ASSIGNMENT. The Contractor shall not assign this Agreement, except in writing and with the prior written approval of the Board of County Commissioners for Monroe County, which approval shall be subject to such conditions and provisions as the Board may deem necessary. This Agreement shall be incorporated by reference into any assignment and any assignee 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 obligation upon the Board in addition to the total agreed -upon price of the services/goods of the contractor. 7. COMPLIANCE WITH THE LAW. In providing all services/goods pursuant to this Agreement, the contractor shall abide by all statutes, ordinances, rules and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Any violation of said statutes, ordinances, rules and regulation shall constitute a material breach of this Agreement and shall entitle the Board to terminate this contract immediately upon delivery of written notice of termination to the contractor. The Contractor shall possess proper licenses to perform work in accordance with these specifications throughout the term of this contract. 2 8. INSURANCE. Prior to execution of this Agreement, the Contractor shall furnish to the County Certificates of Insurance for the following coverage: Worker's Compensation - $100,000 Bodily Injury by Accident; $500,000 Bodily Injury by Disease, policy limits; $100,000 Bodily Injury by Disease, each employee Vehicle Liability - $100,000 combined single limit General Liability - $300,000 combined single limit Employee Dishonesty - $100,000 a) Certificates of Insurance must be provided to Monroe County prior to execution of this Agreement .and within fifteen days after award of proposal, with Monroe County BOCC listed as additionally insured on all except Workers Compensation. Thereafter, the Contractor must keep in full force and effect all of the insurance coverages listed above during the term of this Agreement. If the insurance policies originally purchased that meet the requirements are canceled, terminated or reduced in coverage, then the Contractor must immediately substitute complying policies so that no gap in coverage occurs. b) All forms of insurance required above shall be from insurers acceptable to the County. c) 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 days prior notification is given to the County by the insurer. d) The insurance required of the Contractor by the terms of this Agreement is for the protection of the County, its property and employees, and the general public. The insurance requirement is not, however, for the protection of any specific member of the general public who might be injured because of an act or omission of the Contractor. The insurance requirements do not make any specific injured member of the general public a third party beneficiary under this Agreement. Therefore, any failure by the County to enforce these insurance requirements, or terminate this Contract if the Contractor becomes uninsured or underinsured, is not a breach of any duty or obligation owed to any specific member of the general public and cannot form the basis of any County liability to a specific member of the general public or his/her dependents, or estate or heirs. e) Notwithstanding the provisions of paragraph 34, the County may immediately treat the Contractor in default if the Contractor fails to maintain the insurance required by this paragraph 8. Before terminating the agreement in this situation, the County need only provide the Contractor 24-hour notice by FAX or overnight courier. The County may, but need not, provide the Contractor with an opportunity to cure the default. 9. INDEMNIFY AND HOLD HARMLESS. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Contractor 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 3 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 otherr governmental agency requires by reason of, or in connection with a violation of any federal law or regulation, attorneys' 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 Contractor or any of its employees, agents, contractors or other invitees on the Airport during the term of this Agreement, (B) the negligence or willful misconduct of Contractor or any of its employees, agents, contractors or other invitees, or (C) Contractor's default in respect of any of the obligations that it undertakes under the terms of this lease, 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 Contractor). 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. 10. RECORDS. Contractor 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 for four years following the termination of this Agreement. If an auditor employed by the County or Clerk determines that monies paid to the Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement, the Contractor shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to Contractor. 11. GOVERNING LAW, VENUE, INTERPRETATION. This Agreement shall be governed b:y 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 Contractor agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The County and Contractor 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. 12. 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 Contractor agree to 4 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. 13..ATTORNEY'S FEES AND COSTS. The County and Contractor 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, courts 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. 14. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Contractor and their respective legal representatives, successors, and assigns. 15..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. 16. ADJUDICATIONS OF DISPUTES OR DISAGREEMENTS. County and Contractor 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 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 or by Florida law. 17. 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 Contractor 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 Contractor specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 18. NONDISCRIMINATION. Contractor will 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 5 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) 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. The Contractor expressly understands that upon a determination by a court of competent jurisdiction that the Contractor has discriminated against any person, this agreement automatically terminates without any further action on the part of any party, effective the date of the Court order. 19. COVENANT OF NO INTEREST. County and Contractor 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 that only interest of each is to perform and receive benefits as recited in this Agreement. 20. CODE OF ETHICS. 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. 21. NO SOLICITATION/PAYMENT. The County and Contractor warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the Contractor agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 22. ]PUBLIC ACCESS. The County and Contractor shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Contractor in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by Contractor. 23. NON -WAIVER OF IMMUNITY. Notwithstanding the provisions of Sec. 768.28, reel Florida Statutes, the participation of the County and the Contractor 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 contract entered into by the County be required to contain any provision for waiver. 24. 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. 25. 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 b;y the Florida constitution, state statute, and case law. 26. 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 Contractor agree that neither the County nor the Contractor 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. 27. ATTESTATIONS. Contractor 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. 28. 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. 29. 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. VA 30. 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. 31. FUNDING AVAILABILITY. In the event that funds from Airports Contractual Services are partially reduced or cannot be obtained or cannot be continued at a level sufficient to allow for the purchase of the services/goods specified herein, this Agreement may then be terminated :immediately at the option of the Board by written notice of termination delivered in person or by mail to the contractor. The Board shall not be obligated to pay for any services provided by the contractor after the contractor has received written notice of termination. 32. PROFESSIONAL RESPONSIBILITY. The Contractor warrants that it is authorized by law to engage in the performance of the activities encompassed by the project herein described, subject to the terms and conditions set forth. The provider shall at all times exercise independent, professional judgment and shall assume professional responsibility for the services to be provided. Continued funding by the Board is contingent upon retention of appropriate local, state, and/or federal certification and/or licenses of contractor. 33. 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 Airport Director Key West International Airport 34911 S. Roosevelt Boulevard Key West, FL 33040 Phone: (305) 809-5200 FOR CONTRACTOR Gardens of Eden Desiree Bona 92 Bay Drive Key West, Fl 33040 Phone: (305) 745-3677 34. CANCELLATION. a) The failure by the Contractor to comply with all the terms and conditions of this Agreement shall constitute a default/breach under the terms of this Agreement. Unless the County has accepted in writing a delay in performance of the services enumerated in Exhibit A, the failure by the Contractor to perform said services shall also constitute a default/breach under the terms of this agreement. In the event of a default/breach of the Agreement, the County may cancel this Agreement for cause with seven days notice to the contractor. b) Except for the County's termination because of non -appropriation in paragraph 31 or because of lack of insurance coverage in paragraph 8e., either of the parties hereto may cancel this agreement without cause by giving the other party thirty days written notice of its intention to do so. 35. 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 8 pursuant t:o 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 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 Airport, the 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. 9 (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 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 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 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 10 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 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 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 Sub -Section. This sub -section h shall survive the cancellation or termination of this Agreement, and shall be in full force and effect. i) Hold Harmless; Indemnification; Defense; Release; Survival. Notwithstanding any minimum insurance requirements prescribed elsewhere in this Agreement, the airport tenant agrees to hold harmless, indemnify, defend and release the airport operator, and the airport operator's elected and appointed officers and employees, from any claims, actions, causes of action, litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any and all types of injury, including death, loss, damage, fines, penalties, or business interruption of any nature whatsoever, of or to any person or property in connection with the use of the airport property under this Agreement, regardless of causation and including criminal acts of third parties; and especially including any and all fines, penalties, out of pocket expenses, attorney's fees and costs, and costs of remediation or additional security measures required to be implemented by any governmental agency (including but not limited to the Federal Aviation Administration and the Transportation Security Administration) resulting from a violation of any federal law or federal regulation. This sub -section shall survive the cancellation or termination of this Agreement. 36. MUTUAL REVIEW. This agreement has been carefully reviewed by the Contractor and the County, therefore this agreement is not to be construed against either party on the basis of authorship. NESS WHEREOF, the parties have caused this Agreement to be executed this u2r V ,2011. Y Y L. KOLHAGE, CLERK BOARD OF CO T OMMISSIONERS OF MONROE IDA cP�ou y M S By: By. Deputy Clerk ayo GARDENS OF EDEN itnesse Title This do�61GR%a9aproved as to form by: ANROVA�TO FORM�Gd� .;;�NA ILEENE W. CASSEL ASSISTANT COUNTY ATTORNEY Date— 11 - Pedro J. Mercado, Esq., Assistant County Attorney Florida Bar No.: 0084050 P.O. Box 1026 Key West, FL 33041-1026 (305) 292-3470 12 Co =; tp C-j co o EXHIBIT A LANDSCAPING SERVICES — KEY WEST INTERNATIONAL AIRPORT Landscaping services are to be provided at the Key West International Airport, located at 3491 South Roosevelt Boulevard, Key West, Florida 33040 for the Terminal areas, ARFF Building, parking lots, access roads, and the runway/taxiway/aircraft ramp areas. Services are to be provided five (5) days per week as follows: TERMINAL AREAS, ARFF BUILDING, PARKING LOTS AREAS Daily pick up trash and refuse throughout all parking lot areas Mow and trim all grass areas as needed Water potted plants as required Fertilize plants, pots, shrubs and grass as needed Trim palm tress to insure that fronds do not interfere with traffic Trim and shape shrubbery as necessary After mowing and trimming, remove all debris and blow area ACCESS ROADS Daily pick up trash and refuse along the roadside Trim palm tress to insure that fronds do not interfere with traffic Trim and shape shrubbery as necessary Mow and trim all grass areas as needed After mowing and trimming, remove all debris and blow area Trim trees for safety prior to the start of hurricane season RUNWAY AND TAXIWAY AREA As needed, mow and trim grass areas between aircraft parking ramps and taxiway to assure that taxiway lights are clear of grass and are visible. As needed, mow and trim grass areas between the taxiway and the runway to assure that all lights are clear of grass and are visible. GOVERNMENT ROAD/BUNKER AREA/FENCE PERIMETER As needed, mow and trim Bunker area, fence perimeter, and on Airport property along Government Road. SUPPLIES AND EQUIPMENT Contractor to provide own supplies and equipment, and materials 13 PUBLIC ENTITY CRIME STATEMENT "A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform `Mork as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." 14 DRUG -FREE WORKPLACE FORM The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that: (Name of Busirifss) i 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug -free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1). 4. In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 (Florida Statutes) or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, or any employee who is so convicted. 6. Make a good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to sign the statement, 1 certify that this firm complies fully with the above requirements. Bidder's Signature - Date IL