2nd Extension 04/19/2006
Cleltl 01 De
Circul coun
Danny L. Kolhage
(305) 295-3663 Office (305) 295-3663 Fax
Memorandum
To:
Peter Horton, Airports Director
From:
Bevette Moore
Isabel C. DeSantis, . . \)
Deputy Clerk ~
Attn:
Date:
Monday, May 01, 2006
At the BOCC meeting of April 19, 2006 the Board approved the following:
Landscape Maintenance Extension Agreement between Monroe County and
Gardens of Eden, for Landscape Maintenance Services at the Key West International
Airport.
Attached is a fully executed duplicate original of the subject document for your
handling.
cc: County Attorney
Finance
File t./'"
LANDSCAPE MAINTENANCE EXTENSION AGREEMENT
THIS LANDSCAPE MAINTENANCE EXTENSION agreement is entered into by and
between Monroe County, a political subdivision of the State of Florida, hereafter "Owner" or
"County", and GARDENS OF EDEN, hereafter "Contractor".
WHEREAS, on the 17th day of March, 2004, the parties entered into a Landscape
Maintenance Agreement at Key West International Airport, hereafter original agreement, copy of
which is attached to this extension agreement and made a part of it; and
WHEREAS, the original agreement term ended on March 16, 2005 and the parties entered
into an extension agreement for an additional year, a copy of which is attached; and
WHEREAS, the term of the extension agreement began on March 17, 2005 and expires on
March 16, 2006 but the parties desire to extend the original agreement an additional 1 year; and
WHEREAS, the maintenance agreement has been mutually beneficial to both parties; now,
therefore,
IN CONSIDERATION of the mutual promises and covenants set forth below, the parties
agree as follows:
1. Paragraph 4 of the original agreement is amended to read:
4. Tenn. This Agreement is for a term of One (1) year, commencing on March
17, 2006 and expiring on March 16, 2007 with an option to renew for One (1)
additional year exercisable at the discretion of the County..
2. Paragraph 2b of the original agreement is amended to read:
2b. The total compensation to be paid the Contractor during the term of this
extension agreement shall not exceed $118,474.72 during the term of this
extension.
3 The following paragraph is appended to the Landscape Maintenance Extension
Agreement and incorporated into the original agreement as paragraph 35.
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 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 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.
(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 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.
4. Except as set forth in paragraphs one, two and three of this Landscape Maintenance
Extension Agreement, in all other respects, the terms and conditions of the original agreement
remain in full force and effect.
...A-:~WTTNESS WHEREOF, the parties hereto have set their hands and seals the day and year
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Deputy Clerk
BOARD
OF
COUNTY
By
OF MONROE COUNTY, FLORIDA
MaYO~son
/
GARDENS OF EDEN
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as to form by:
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Key West, FL 33041-1026
(305) 292-3470