Loading...
01/20/2016 Agreement CONTRACT FOR LANDSCAPING SERVICES GARDENS OF EDEN OF THE FLORIDA KEYS, INC. KWIA THIS CONTRACT (hereafter "Contract" or "Agreement"),made and entered into this 20th day of January, 2016, 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, Inc., 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), and the bid documents (Exhibit A-1) attached hereto and incorporated as part of this document. b) Should additional landscaping services not included in the Specifications (Exhibit A) be required at KWIA, 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. c)The Contractor shall insure all proper security protocols are followed at all times. d) The Contractor and all associated employees working on the Airfield AOA/SIDA must pass a Criminal History Records Check, a Security Threat Assessment and successfully complete a Security Identification Display Area (SIDA) written test and any other required testing, as determined by the airport. e) The Contractor and all employees working on the Airfield must successfully complete the Airfield Driver Training written and practical test and any other required testing, as determined by the airport 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. Labor shall be invoiced at $25 per hour and 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. Additional services approved pursuant to Article 1(b) above shall be invoiced at $25 per hour for labor plus materials. Contractor may subcontract any approved additional services. Contractor shall follow county purchasing policy and procedures in subcontracting any additional work. Contractor shall invoice the county the actual cost of the subcontracted work plus 10% for overhead. • • Additional landscape services are recognized as irregularly occurring services and the costs for additional services shall be over and above the contract sum and shall not be counted against the not to exceed contract amount of$100,000. 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 by 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 20, 2016 and terminating on January 19, 2017. b) Unless otherwise indicated as set forth in subsection 34(b), this Agreement shall automatically renew on the anniversary date of the Agreement for four (4) additional one year periods. Unless earlier terminated as provided in the terms of this Agreement, this Agreement shall terminate on January 19, 2021. 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. In the event of a deflationary CPI, no adjustment shall be made. 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, 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 2 • • 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. All employees or subcontractors of the Contractor must pass an airport background investigation. All employees or subcontractors of the Contractor who are not citizens of the United States must have and possess documented authorization to work in the United States, issued by the government of the United States. Failure of such person to have and possess such documentation is a material breach of the contract and will entitle Monroe County to terminate the contract for cause. The arrest, detention or taking into custody of any of the Contractor's employees or subcontractors by the Bureau of Customs and Border Protection constitutes sufficient evidence under this contract that the contractor has committed a material breach and entitles Monroe County to terminate this contract for cause. 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. 3 d) 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. e) 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. f) 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 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, 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 4 • 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. Il. 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 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 reform the Agreement to replace any stricken provision with a valid provision that comes as dose 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 attomey's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attomey'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 legalreptesentatives, 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 5 • 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 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 6 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, 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 OBLIGATIIONS 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. 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. 7 • 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. 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 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 licenser 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 FOR CONTRACTOR Airport Director Gerson Feigenbaum Key West International Airport 92 Bay Drive 3491 S. Roosevelt Boulevard Key West, Florida 33040 Key West, FL 33040 Phone: (305) 304-7855 (305) 809-5200 Fax: (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, 8 • 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 32 or because of lack of insurance coverage in paragraph 8f. 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 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 tcLa, 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. 1) 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 9 • 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 attomey'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 attomey'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 attomey'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 attomey'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. to (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 attomey'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 attomey'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, attomey's fees and costs, and costs of remediation or tt • 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. MUTUTAL 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. IN WIT_ MESS WHEREOF, the parties have caused this Agreement to be executed this dayof 4 4L ,2016. v— � 'i i Y HEAVILIN, CLERK BOARD OF COU TY COMMISSIONERS -'�A OF MONROE CO T FLORIDA - +P )11:, f I• - .AiL By: ;l f- " ty erk M or GARDENS OF EDEN F THE FLORIDA ( KEYS, I C. f)t l B : cc 7A / ( Setter/9 r/9IU1 Tiras v (ZCC ifI// tnes9. Title cument p eared a• , , • p ed as to form by: Pedro J. Mere. .., Es.. a - .unty Attorney Florida Bar Ns.: i I:4050 P.O. Box 10 . Key West, FL 33041-1026 (305) 292-3470 al o -n z a r- Ar -Tim ro �� co - ..-.. - -_. Cc- I• T r O w 73 n — ,4 — -:3 12 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 area, ARFF Building, parking lots, access roads, and the Airfield - AOA/SIDA areas. Services are to be provided five (5) days per week as follows: GROUNDS -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 including county parking, East Martello, the area adjacent to the DMV and the land area at the western end of the runway. • Weed trimming around hillside area and rim created around the perimeter of the relocated salt pond. • Water potted plants as required. • Fertilize plants,pots, shrubs and grass as needed. • Trim palm trees 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. GROUNDS - ACCESS ROADS • Daily pick up trash and refuse along the roadside. • Trim palm trees 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. • Mowing is to be done at night between the hours of 10:00 p.m. to 5 a.m. AIRFIELD GROUNDS - AIR OPERATIONS AREA AND SECURITY IDENTIFICATION AREA • Mow and trim all grass Taxiway Safety Areas to ensure that taxiway lights are clear of grass and all grass areas are maintained at an acceptable height, as determined by the airport operations department. • All Taxiway Safety Area mowing will be done between the hours of 12:01 A.M. — 0500 A.M., all personnel must be properly trained and equipment must be properly lighted and equipped with an aviation radio. • Mow and trim all grass Runway Safety Areas and overruns (EMAS beds) to assure that runway lights and other navigational aids are maintained clear of grass and all grass areas are maintained at an acceptable height, as determined by the airport operations department. ▪ All Runway Safety Area mowing will be done between the hours of 12:01 A.M. — 0500 A.M., all personnel must be properly trained and equipment must be properly lighted and equipped with an aviation radio. • All other airfield areas, mow and trim grass areas as needed to assure grass areas are maintained at an acceptable height, as determined by the airport operations department. 13 • • All other areas may be done during normal air carrier operational times (day time), all personnel must be properly trained and equipment must be properly lighted and equipped with an aviation radio. OUTER GROUNDS- GOVERNMENT ROAD/BUNKER AREA • As needed, mow and trim Bunker area and on Airport property along Government Road. FENCE PERIMETER • Shall be mowed and trimmed per all FAA, TSA and Airport standards as determined by the airport operations department. SUPPLIES AND EQUIPMENT • Contractor to provide own supplies and equipment, and materials 14