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Item C11M C ounty of f Monroe ELj » °o � BOARD OF COUNTY COMMISSIONERS /� r i � �� Mayor George Neugent, District 2 The Florida. Ke Se y I Mayor Pro Tern David Rice, District 4 Danny L. Kolhage, District 1 Heather Carruthers, District 3 Sylvia J. Murphy, District 5 County Commission Meeting July 19, 2017 Agenda Item Number: C.11 Agenda Item Summary #3147 BULK ITEM: Yes DEPARTMENT: Airports TIME APPROXIMATE: STAFF CONTACT: Donald DeGraw (305) 809 -5200 none AGENDA ITEM WORDING: Approval to rescind previously approved agreement with Refreshment Services Pepsi (May 17, 2017 Item C11), and enter into a non - exclusive five (5) year Retail Vending Machine Concession Agreement with Refreshment Services, Inc. to provide two (2) beverage vending machines at the Key West International Airport; 10% of gross revenues generated from the vending machines will be paid to the Airport on a quarterly in arrears basis. The agreement approved May 17, 2017, was with Refreshment Services Pepsi, a Florida Corporation; however, correct corporate name is Refreshment Services, Inc., a Delaware Corporation. ITEM BACKGROUND: On December 7, 2016 the County issued an RFP for vending machine service providers. The bid opening was held on January 25, 2017 and there were no respondents. Pursuant to county purchasing policy and procedures staff requested approval to contact possible vendors through letters of interest and negotiate with those vendors indicating an interest in providing the services. BOCC approved agreement on May 17, 2017, had the corporate name as Refreshment Services Pepsi, a Florida Corporation; however, correct corporate name is Refreshment Services, Inc., a Delaware Corporation. PREVIOUS RELEVANT BOCC ACTION: On January 20, 2016, the BOCC approved the bid solicitation for Vending Machine Concession services at the Key West International Airport and the Florida Keys Marathon International Airport. At the bid opening on there were no respondents. On February 15, 2017, the BOCC authorized staff to contact possible vendors through letters of interest and negotiate with vendors who indicated interest in providing the services. CONTRACT /AGREEMENT CHANGES: New Agreement STAFF RECOMMENDATION: Approval. DOCUMENTATION: Refershment Services, Inc. FINANCIAL IMPACT: Effective Date: 08/01/2017 Expiration Date: 07/31/2022 Total Dollar Value of Contract: approx. $750.00 yearly Total Cost to County: Current Year Portion: Budgeted: yes Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Yes If yes, amount: Grant: County Match: Insurance Required: Additional Details: REVIEWED BY: Beth Leto Completed 06/30/2017 3:54 PM Donald DeGraw Completed 06/30/2017 4:20 PM Pedro Mercado Completed 06/30/2017 4:22 PM Budget and Finance Completed 07/03/2017 8:11 AM Maria Slavik Completed 07/03/2017 8:25 AM Kathy Peters Completed 07/03/2017 1:24 PM Board of County Commissioners Pending 07/19/2017 9:00 AM RETAIL VENDING MACHINE CONCESSION AGREEMENT AT KEY WEST INTERNATIONAL AIRPORT MONROE COUNTY REFRESHMENT SERVICES, INC. THIS VENDING MACHINE CONCESSION AGREEMENT is made and entered into on the 19 day of July, 2017, by and between MONROE COUNTY, a political subdivision of the State of Florida whose address is 1100 Simonton Street, Florida 33040, hereinafter referred to as Lessor, and REFRESHMENT SERVICES, INC., a Delaware Corporation whose address is 3400 Solar Avenue, Springfield, IL 62707, hereinafter referred to as Lessee or Tenant; WHEREAS, the Lessor is the owner of the Key West International Airport (hereafter "EYW "); and WHEREAS, Lessor desires to grant to Lessee the right to operate a retail vending machine concession at and from EYW at Key West, Florida; and WHEREAS, the Lessee desires to enter into such an Agreement and represents to the Lessor that it is qualified to operate a retail vending machine concession and has the financial resources to undertake such an operation; now, therefore IN CONSIDERATION of the mutual covenants and promises hereinafter contained, the parties hereto do hereby agree as follows: 1. Premises - Lessor hereby leases to Lessee one outside location at the departure terminal area and one outside location at the arrivals area at EYW; as determined by the Director of Airport's or his designee, hereafter collectively the premises, for use as Retail Vending Machine Concessions, hereafter occasionally referred to as the vending machine operation. Each location shall contain one beverage vending machine for a total of two (2) vending machines at EYW. The Director of Airports, in his sole discretion, may authorize additional vending machine(s) upon written approval. 2. Lease Covenants (a) The Lessee shall provide a list of all merchandise it intends to sell. The Lessor reserves, and delegates to the Director of Airports or his designee, the right to reject any items it finds inappropriate, objectionable or not in the best interests of the Airport and Lessee agrees to permanently remove such items from the vending machine operation. (b) The Lessee must comply with all the applicable requirements of the statutes, rules, ordinances, regulations, orders and policies of the federal and state governments and the County either in effect on the effective date of this lease or later adopted. (c) This lease and all provisions hereof are subject and subordinate to the terms and conditions of the instruments and documents under which the Airport Owner acquired the subject property from the United States of America and shall be given only such effect as will not conflict or be inconsistent with the terms and conditions contained in the lease of such lands from the Airport Owner, and any existing or subsequent amendments thereto, and are subject to I any ordinances, rules or regulations which have been, or may hereafter be adopted by the Owner pertaining to the Key West International Airport. (d) The leased premises and the Airport are subject to the terms of those certain Sponsor's Assurances made to guarantee the public use of the Airport as incident to grant agreements between the Lessor and the United States of America. This lease and all provisions hereof shall be given only such effect as will not conflict or be inconsistent with the terms and conditions contained in those certain Sponsor Assurance's, and any existing or subsequent amendments thereto. 3. Term - This lease agreement will take effect on the 1 s t day of Au ust 2017, and will terminate on the 31 st day of July 2022. Either party may terminate this agreement upon 30 days written notice. 4. Rent (a) Lessee, during the term hereof, shall pay Lessor 10% of the gross revenues generated at the vending machine(s) to be paid on a quarterly in arrears basis. (b) Lessee must open the operation for business within 30 days of the effective date of this agreement. (c) If security clearance is required, Lessee shall be solely responsible for the costs of, and the obtaining of, security clearances for the Lessee and any person(s) employed by Lessee. LESSEE'S FAILURE TO OBTAIN OR MAINTAIN THE SECURITY CLEARANCE WHERE REQUIRED SHALL BE DEEMED TO BE A BREACH OF THIS AGREEMENT AND THE COUNTY MAY IMMEDIATELY TERMINATE THIS LEASE. Before treating the Lessee in default and terminating the lease, the County need only provide the Lessee 24 hour notice by fax or overnight courier. The County may, but need not, provide Lessee with an opportunity to cure the default. (d) Lessee shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. An annual operating statement prepared by a C.P.A. must be provided to the Lessor on or before February 28 of the following year. (e) The Lessee must pay all assessments, taxes, including sales taxes, levied by any governmental body with the power to impose assessments or taxes. The Lessee must provide the Airport Managers with the sales tax records for each year on or before February 28 of the following year. (f) Lessee's vending machine shall provide a contact number and shall identify a contact person that may be reached 24 hours a day, 7 days a week for a refund in the event the vending machine malfunctions. The Lessee must provide any and all other items and equipment needed for the vending machine operation. Lessee's items and equipment must be removed from the premises when this lease terminates. Lessee has the right during the term hereof, at its own expense, at any time from time to time, to replace, update, or modify any of the ON vending machines, all of which shall be and remain the property of Lessee and may be removed by Lessee prior to or within a reasonable time after expiration of the term of this agreement; provided, however, that Lessee shall repair any damage to the premises caused by such removal. The failure to remove then vending machines or any other personal property shall not constitute Lessee a hold -over, but all such property not removed within ten (10) days after Lessee receives a written demand for such removal shall be deemed abandoned and thereupon shall be the sole property of the Lessor. (g) If the Lessee fails to pay any rents or fees due under this lease within 15 days after the Lessor notifies the Lessee in writing that the rent or charge is overdue, then the Lessor may, in its discretion, either immediately or later, re -enter the premises and repossess the premises and expel the Lessee and any persons claiming the premises by or through the Lessee, and remove any of the Lessee's effects without being guilty of trespass and without prejudice or waiver to any other available remedy the Lessor might have for the recovery of the rent or charges due from the Lessee. Upon the Lessor's re- entry, this lease will terminate. However, the Lessee's obligation to pay the rent or charges due will survive the termination. Overdue rent and charges will accrue interest beginning on the 16 day after the Lessee was notified in writing by the Lessor that the renter charges were overdue. The interest rate will be that established by the Comptroller under Sec. 55.03, F.S., for the year in which the rent or charge first became overdue. 5. The Lessee agrees to furnish good, prompt and efficient service to meet all demands for airport vending machine operations at the Airports. The operation must be open for service 365 days per year, 24 hours per day. 6. No signs, on premises advertising, or awnings may be erected by the Lessee on the premises or elsewhere at EYW unless they are approved by the Director of Airports in writing. No exterior architectural changes may be made without the consent in writing of the Airport Manager, whose consent will not be unreasonably withheld. 7. If the vending machine operation or any part of the leased premises is injured or damaged by any breaking, entering or vandalism of the vending machine operation, the Lessee must promptly make all the necessary repairs at his expense to restore the vending machine operation and /or the premises to the condition immediately prior to the breaking, entering or vandalism or the attempt to break or enter. 8. The Lessee is responsible for the maintenance of the vending machines and shall provide a 24 hour contact number for purposes of reporting any malfunction of the vending machine operation. The Lessee must at his own cost make the repairs needed to preserve the vending machine operation in good condition. The repairs must equal or exceed the quality of the original work. The Lessee must also provide a 24 hour contact number for purposes of requesting refunds in the event of a malfunction. Lessee shall respond to all refund requests within 24 hours of receiving a request. 9. The Lessor does not make any representations or warranties regarding the premises beyond those set forth in this agreement. 10. In the event the premises are partially damaged by fire, explosion, the elements, the public enemy or other casualty, but not rendered untenable, then the premises will be 3 repaired with due diligence by Lessor at the Lessor's cost and expense. If the damage is so extensive that the premises are rendered untenable but capable of being repaired within 30 days, then the premises will be repaired with due diligence by Lessor at the Lessor's cost and expense. The rent payable under this lease will be waived until the premises are fully restored. If the premises are completely destroyed or so damaged that the premises will be untenable for more than 30 days, the Lessor is under no obligation to repair and reconstruct the premises, and the rent must be paid only up to the time of the damage or destruction and then the obligation to pay rent ceases until the premises are fully restored. If within 30 days after the damage or destruction the Lessor fails to notify Lessee of the Lessor's intention to repair or reconstruct the damaged or destroyed premises, or to furnish a substantially equivalent facility, then the Lessee may give Lessor written notice of its intention to then cancel this agreement. 11. Before entering the premises, the Lessee must provide Certificates of Insurance to Monroe County which demonstrates that the Lessee has obtained insurance in the amounts and according to the conditions described as follows: (a) The Lessee will includes, at a minimum: Worker's Compel Vehicle Liability General Liability be responsible for all necessary insurance coverage which isation - $100,000 Bodily Injury by Accident; $500,000 Bodily Injury by Disease, policy limits; $100,000 Bodily Injury by Disease, each employee - $300,000 combined single limit - $300,000 combined single limit The Lessee shall carry fire and extended coverage insurance, if obtainable, on all fixed improvements erected by Lessee on the demised premises to the full insurable value hereof, it being understood and agreed that for purposes hereof the term "full insurable value" shall be deemed to be that amount for which a prudent owner in like circumstances would insure similar property, but in no event an amount in excess of Lessee's original cost of constructing said fixed improvements. The Monroe County Board of County Commissioners will be included as "Additional Insured" on all policies, except workers compensation, issued to satisfy the above requirements. All forms of insurance required above shall be from insurers acceptable to the County. 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. (b) The Lessee must keep in full force and effect the insurance described 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 Lessee must immediately substitute complying policies so that no gap in coverage occurs. (c) The insurance required of the Lessee in this paragraph 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 Lessee. The insurance requirements of this paragraph do not make any specific injured member of the general public a third party beneficiary under this 4 agreement. Therefore, any failure by the County to enforce this paragraph, or evict the Lessee from the Airport if the Lessee 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. (d) The Lessor may treat the Lessee in default if the Lessee, after entering the premises but before beginning its operation, does not have the insurance required by subparagraph 11(a). Before the County may terminate the agreement in this situation, the County must give the Lessee a written notice of the default stating that, if the required insurance is not obtained within ten (10) days of the Lessee's receipt of notice, then the County will cancel this agreement. The County may treat the Lessee in default and cancel this agreement if the Lessee, after starting the operation, fails to keep in full force and effect the insurance required by subparagraph 11(a). Before treating the Lessee in default and terminating the agreement in this situation, the County need only provide the Lessee 24 -hour notice by FAX or overnight courier. The County may, but need not, provide Lessee with an opportunity to cure the default. 12. Notwithstanding anything herein contained that may be, or appear to be, to the contrary, it is expressly understood and agreed that the rights granted under this agreement are nonexclusive and the Lessor herein reserves the right to grant similar privileges to another Lessee or other Lessees on other parts of the Airport. 13. At the end of this agreement (or any renewal), the Lessee's right to the premises, the use of Airport facilities, and any other right or privilege granted under this agreement ceases. The fixtures and equipment that are attached to the real estate now become the property of the Lessor. All other equipment, improvements, furnishings and other property of the Lessee at the premises are personal to the Lessee and remain the property of the Lessee and must be removed by him. The Lessee must also restore the premise to its original condition, ordinary wear and tear and damage by causes beyond the control of the Lessee excepted. 14. Lessor may enter upon the premises at any reasonable time, with advance notice, for any purpose connected with the performance of the Lessor's obligations under this agreement or in the exercise of its governmental functions. 15. The Lessee may not assign this agreement, or any part of it, or sublease the premises, or any portion of the premises, without the written approval of the Lessor. The change of the Lessee's status from an individual to a partnership or corporation is an assignment under this paragraph requiring the Lessor's approval. If the Lessee is approved to do business in the corporate form, any assignment of a controlling interest in the corporate stock is also an assignment under this paragraph that requires the Lessor's approval. All the obligations of this agreement will extend to the legal representatives, successors and assigns of the Lessee and Lessor. 16. Hold Harmless Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Lessee shall defend, indemnify and hold the County and the County's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses (including, without limitation, costs of 5 remediation and costs of additional security measures that the Federal Aviation Administration, the Transportation Security Administration or any other governmental agency requires by reason of, or in connection with a violation of any federal law or regulation, attorney's fees and costs, court costs, fines and penalties) that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of Lessee or any of its employees, agents, contractors or other invitees during the term of this lease, (B) the negligence or willful misconduct of Lessee or any of its employees, agents, contractors or other invitees, or (C) Lessee's default in respect of any of the obligations that it undertakes under the terms of this lease, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions of the County or any of its employees, agents, contractors or invitees (other than Lessee). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this lease, this Section will survive the expiration of the term of this lease or any earlier termination of this lease. 17. Nondiscrimination. Lessee agrees that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the Court order. Lessor and Lessee agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VII of the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681 -1683, and 1685 - 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975; as amended (42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination based of disability; 10) Secs. 13 -101, et seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identify or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 18. 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 rr Agreement. Lessor and Lessee agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 19. Binding Effect ffect The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of Lessor and Lessee and their respective legal representatives, successors, and assigns. 20. 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. 21. Adjudication of Disputes or Disagreements. Lessor and Lessee 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 by Florida law. 22. 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, Lessor and Lessee agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. Lessor and Lessee specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 23. Covenant of No Interest Lessor and Lessee covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and the only interest of each is to perform and receive benefits as recited in this Agreement. 24. 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. 25. No Solicitation/Payment. Lessor and Lessee 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 this provision, Lessee agrees that Lessor 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. 7 26. Non - Waiver of Immunity Notwithstanding the provisions of Sec. 768.28, Florida Statues, the participation of the Lessor and the Lessee in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the Lessor be required to contain any provision for waiver. 27. 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 Lessor, when performing their respective functions under this Agreement within the territorial limits of the Lessor 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 Lessor. 28. 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 Lessor, except to the extent permitted by the Florida Constitution, State Statute, and case law. 29. 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 Lessor and Lessee agree that neither the Lessor nor Lessee or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 30. Attestations Lessee agrees to execute such documents as the Lessor may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug - Free Workplace Statement. 31. 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. 32. 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. 8 33. United States' Requirements - This lease shall be subject and subordinate to the provisions of any existing or future agreement between the Lessor and the United States relative to the operation or maintenance of the Airport, and execution of which has been or may be required by the provision of the Federal Airport Act of 1946, as amended, or any future act affecting the operation or maintenance of the Airport, provided, however, that Lessor shall, to the extent permitted by law, use its best efforts to cause any such agreement to include provisions protecting and preserving the rights of Lessee in and to the demised premises and improvements thereon, and to compensation for the taking thereof, and payment for interference therewith and for damage thereto, caused by such agreement or by actions of the Lessor or the United States pursuant thereto. 34. Other Use - Lessee shall not use or permit the use of the demised premises or any part thereof for any purpose or use other than an authorized by this agreement. 35. Paragraph Headings - Paragraph headings herein are intended only to assist in reading identification and are not in limitation or enlargement of the content of any paragraph. 36. Notices - Any notice of other communication from either party to the other pursuant to this agreement is sufficiently given or communicated if sent by registered mail, with proper postage and registration fees prepaid, addressed to the party for whom intended, at the following addresses: For Lessor: For Lessee: Director of Airports Refreshment Services, Inc. Refreshment Services, Inc. Key West International Airport 3400 Solar Avenue Jason Murphy, Sales Manager 3491 S. Roosevelt Blvd. Springfield, IL 62707 5510 MacDonald Ave. Key West, FL. 33040 Key West, Fl. 33040 or to such other address as the party being given such notice shall from time to time designate to the other by notice given in accordance herewith. 37. Governing Law, Venue, Interpretation. 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 Lessor and Lessee agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The Lessor and Lessee agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 38. Attorney's Fees and Costs. The Lessor and Lessee agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out -of- pocket expenses, as an award against the non - prevailing party, and shall include attorney's fees, courts costs, investigative, and out -of- pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted D: 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. 39. 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 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 10 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 11 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 39 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. 12 40. Mutual Review. This agreement has been carefully reviewed by the Lessee and the Lessor. Therefore, this agreement is not to be construed against either party on the basis of authorship, 41. Final Underst—ding This agreement is the parties' final mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This agreement cannot be modified or replaced except by another written and signed agreement. IN WITNESS WHEREOF, each party has caused this agreement to be executed by a duly authorized representative. (SEAL) ATTEST: KEVIN MAHOK, CLERK BOARD OF COUNTY COMMISSIONERS OF 'I OE COUNTY, FLORIDA MM STATE OF COUNTY OF vj By. Mayor/Chairman REFRESHM Z-ER71ES�, INC. By: Titl/ Sworn to (or affi rined) and subscribed before me this oe 24day of k_, 2017, by Personally known _>-(- or Produced Identification Type of Identification Produced n - -- ) .1 , 4 (Signature of Notary Public - State of Florida) (Print, Type, or Stamp Commissioned name of Notary Public) WtAWP=-ffl=0FU&= W0M223=06902V" 13