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10/17/2018 Agreement DATE: December 7, 2018 TO: Beth Leto, Airports Business Manager FROM: Pamela G. Hancock, D.C. th SUBJECT: October 17 BOCC Meeting Attached is an electronic copy of Item C17, five year Transportation Security Clearinghouse Services Agreement between the American Association of Airport's Executives, the Transportation Security Clearinghouse, and Monroe County for processing of federally required background checks and vetting of employees or individuals obtaining security badges at the Key West International Airport, for your handling. Should you have any questions, please feel free to contact me at (305) 292-3550. Thank you. cc: County Attorney Finance File CONFIDENTIAL TRANSPORTATION SECURITY CLEARINGHOUSE SERVICES AGREEMENT 1. THIS TRANSPORTATION SECURITY CLEARINGHOUSE SERVICES AGREEMENT ("Agreement") is made and entered into as of( VI , 2018 (the "Effective Date") by and between (i) the American Association of Airport Executives' wholly owned and operated not-for-profit entity, the Transportation Security Clearinghouse ("TSC"), and (ii) Monroe County, a political subdivision of the State of Florida, as owner of the Key West International Airport ("Monroe County"), who, intending to be legally bound, hereby agree as follows: 2. INTRODUCTION AND BACKGROUND The TSC is a national clearinghouse for statutorily required biometric checks and TSA mandated biographical data. The TSC is responsible for collecting and transmitting to TSA or other appropriate government agency, fingerprints and biographical data from U.S. commercial airports, and for collecting and transferring to TSA payments for fingerprints from such airports. In addition, TSC serves as a point of contact to airports regarding fingerprinting and other vetting requirements and provides assistance, training, and support to airports. Specifically, TSC's clearinghouse responsibilities include the receipt and processing of federally required background checks and vetting, consisting of a fingerprint-based Criminal History Record Check (CHRC) and biographic-based Security Threat Assessment (STA), of each individual employed in, or applying for, a position in which the individual: (1) has unescorted access, or may permit other individuals to have unescorted access, to aircraft of an air carrier or foreign air carrier or a secured or sterile area of an airport in the United States; (2) will be responsible for screening passengers or property to be carried aboard an aircraft; (3) is a supervisor of the individuals described in (2) above; (4) who exercises security-related functions associated with aircraft, or performs their duties in sensitive areas of the aviation system, as the TSA Administrator determines is necessary to ensure air transportation security; and (5) is an airport operator employee or agent known as a trusted agent who collects information from applicants and current airport identification media holders used for CHRC and STA checks, transmits the information to the TSC, authorizes the issuance of identification media, or issues the identification media. 3. CLEARINGHOUSE SERVICES 3.1 Services. In accordance with the terms of this Agreement, TSC shall provide the following services to the Key West International Airport("Airport"). In consideration of the fees paid pursuant to Section 3 below,the TSC will collect and process Criminal History Record Checks (CHRC) and Security Threat Assessments (STA). The TSC service obligations include: CONFIDENTIAL o Accepting the Airport's aviation worker fingerprints,biographical data and required payments for processing the background investigations and immediately forwarding each fingerprint to TSA or another appropriate Federal agency for processing, using electronic means to transmit electronic prints. o Digitizing inked fingerprint card submissions and forwarding them electronically. TSC takes all necessary steps required to ensure that the fingerprints are not altered in any way from their original condition. o Utilizing TSC's fingerprint tracking process,which allows for accurate fingerprint submission status at any point in the background check process. o Performing"real-time"processing to transmit fingerprints to the federal system. o Providing quality assurance and error corrections,when possible, allowing for the maintenance of one of the best error rates in the U.S.for submissions to the FBI. o Providing superior customer support to Airport for questions regarding TSC services and coordinating the resolution of Airport problems regarding TSA technical and procedural issues. o Ensure that the Airport data transmitted to TSA is secured in accordance with the Federal Information Security Management Act(FISMA),DHS 4300a controls, and appropriate DHS and TSA security policies. o Ensure that processes are in strict accordance with TSA and FBI regulations and guidance and TSC maintains the highest standards for privacy of the employee information. o Provide ability for Airport to enroll applicants in the optional Rap Back program including updating and cancelling Rap Back subscriptions. 3.2 Airport Obligations. Airport agrees to use the TSC as a national clearinghouse for the aviation worker vetting programs outlined above for the term of the agreement and so long as the TSC is accepted as a clearinghouse by TSA. Airport shall perform all obligations required to support TSC in performing the services, including, but not limited to: (a) delivering to TSC formatted data, associated supporting documentation, and certification, as required by TSA; (b) establishing and maintaining secure and reliable communication with the TSC and keep the communication methods in good working order; and (c) providing TSC with complete and accurate documents and biometric data for each aviation worker program applicant and in a form and format that is reasonably acceptable to TSC. 4. FEES 4.1 Fee Payment. In full payment for the services to be provided, Airport shall pay the fees set forth in Exhibit A at the times and in the manner set forth herein. TSC CONFIDENTIAL reserves the right to adjust the following fees in case of a material change in the CHRC and STA programs including a price adjustment for the CHRC or STA by TSA or other government entity. 4.2 Payment Procedures. Airport shall establish and maintain a deposit account on which TSC shall have the limited authority to debit the fees set forth in Exhibit A for each of Airport's enrollments. Airport shall retain full ownership of the deposit account and shall replenish such account balance periodically as needed. TSC shall notify Airport immediately at any time that there is an unavailability of funds in Airport's deposit account. Airport's deposit account can be replenished by ACH, wire transfer, check or credit card. TSC will debit the Airport's deposit account for any ACH or electronic transfer fees incurred prior to releasing the funds for processing records. 4.3 Invoicing. The Airport's account will be debited through an automated system. However, for the purposes of corrections or other administrative purposes where an individual will be required to have access to the account, TSC shall designate a qualified TSC official, and alternate, with accounting responsibilities to have access to the deposit account. TSC shall provide to the Airport the ability to view basic financial information on the TSC website through the Financial Information link. This information can be sorted and searched by the airport to provide an invoice itemizing with reasonable specificity the debits made by TSC during the prior month. In the event Airport disputes any items, the parties shall work in good faith to resolve such disputes and make any necessary refunds and credits. 5. TERM AND TERMINATION 5.1 Term. The term of this Agreement shall be effective from November 1, 2018 and unless earlier terminated pursuant to Section 5.2 or 5.3, it shall continue for an initial term of 5 years. 5.2 Termination for Default. This Agreement may be terminated by either party in the event that the other party has not performed any material obligation or has otherwise breached any material term of this Agreement upon the expiration of thirty(30) days (or any longer cure period authorized by the non-breaching party with respect to any individual breach) after receipt of written notice thereof if the breach or nonperformance has not then been cured. 5.3 Action upon Termination. Upon expiration or earlier termination of the Agreement, TSC shall provide to Airport a final accounting, including but not limited to, all uninvoiced amounts. 6. REPRESENTATIONS AND WARRANTIES 6.1 By TSC. TSC hereby represents and warrants to Airport as follows: CONFIDENTIAL a. Authorization and Binding Obligation. TSC has full corporate power and authority to enter into, deliver and perform fully its obligations under this Agreement. This Agreement has been fully executed and delivered by TSC, and constitutes the legal, valid and binding obligation of TSC, enforceable against it in accordance with its terms. b. No Conflict. The execution, delivery and performance by TSC of its obligations under this Agreement do not knowingly conflict with, result in a breach of or require any consent under the charter or bylaws of TSC or any applicable law or regulation, any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which TSC is a party or by which it is bound or to which it subject, or constitute a default under such agreement or instrument. 6.2 By Airport. Airport hereby represents and warrants to TSC as follows: a. Authorization and Binding Obligation. Monroe County has full corporate power and authority to enter into, deliver and perform fully its obligations under this Agreement. This Agreement has been duly executed and delivered by Monroe County and constitutes the legal, valid and binding obligation thereof, enforceable against Monroe County in accordance with its terms. b. No Conflict. The execution, delivery and performance by Monroe County of its obligations under this Agreement do not conflict with any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Monroe County is a party, or by which it is bound or to which it is subject, or constitute a default under any such agreement or instrument. 7. CONFIDENTIALITY 7.1 Confidentiality. Each party shall maintain in strict confidence, and agrees not to disclose to any third party, except as necessary for the performance of this Agreement when authorized by the other party in writing, or as required by law or court order, Confidential Information that one party receives ("Recipient") from disclosing party ("Discloser"). "Confidential Information" means all non-public information of a competitively sensitive nature concerning the disclosing party, including, but not limited to: (a) software, data, and information regarding services, systems or products; (b) processes, procedures, operations, engineering or technology; (c) present product lines, including without limitation, their design, manufacture, marketing, quality control, costs, configurations and uses for such products, as well as the aforementioned information related to products which are the subject of either party's research and development; (d) customer lists, customer information, business plans or data, sales volumes, profitability figures, financial information or other economic or business information; or (e) any efforts undertaken by either party on behalf of their members or customers. 7.2 Exceptions. Confidential Information does not include information subject to public records disclosure under Florida Statutes Chapter 119 nor does it include: CONFIDENTIAL information that is or subsequently may come within the knowledge of the public generally through no fault of Recipient; information that Recipient can show was previously known to it as a matter of record at the time of receipt; information that Recipient may subsequently obtain lawfully from a third party who has lawfully obtained the information free of any confidentiality obligations; or information that Recipient may subsequently develop as a matter of record, independently of disclosure by Discloser. 7.3 Duration. With respect to Confidential Information not constituting a trade secret, this Agreement shall remain in full force and effect for a period of three (3) years; with respect to Confidential Information constituting a trade secret, this Agreement shall remain in full force and effect for so long as the Confidential Information constitutes a trade secret. 7.4 Injunctive Relief Recipient acknowledges that disclosure of any Confidential Information by it or its employees will give rise to irreparable injury to Discloser or the owner of such information, not adequately compensated by damages. Accordingly, Discloser or such other party may seek and obtain injunctive relief against the breach or threatened breach of this Section, in addition to any other legal remedies which may be available, without the requirement of posting bond. 8. INTELLECTUAL PROPERTY RIGHTS 8.1 TSC and Monroe County acknowledge that both parties and/or third parties retain all right, title and interest under applicable contractual, copyright, intellectual property, and related laws to their previously owned, developed or obtained intellectual property and any enhancements and modifications to same and in the databases and information contained therein used to provide either parry's products or services hereunder, and the parties shall use such materials consistent with such right, title and interest and notify the applicable party of any threatened or actual infringement thereof 8.2 The TSC retains all its previously owned, developed or obtained intellectual property. Monroe County shall use TSC's intellectual property with such rights as necessary to perform the functions of TSC's Automated Integration Services, and notify the TSC of any threatened or actual infringement thereof 8.3 In the event that development work is undertaken under this contract by TSC, which specifically excludes all previously owned, developed or obtained intellectual property,then any such developed items shall be owned by TSC. 8.4 Monroe County shall not, except as required by applicable law (and then only to that extent): CONFIDENTIAL • Reverse engineer,translate, disassemble, decompile the whole or any part of the TSC's service offering, solution or proprietary assets or otherwise attempt to access same; • Assign,transfer, sell, license, sub-license, lease,rent, charge or otherwise deal in or encumber the proprietary material of TSC or use the proprietary material of TSC on behalf of or for the benefit of any third party, or make available the same in any way whatsoever to any third party without TSC's prior written consent in a fashion contrary to the terms of this Agreement; • Distribute, create derivative works of or modify proprietary material of TSC in anyway, nor create or develop a competitive or similar offering to that of TSC, nor use, copy, duplicate or display the proprietary material of TSC on a commercial or development basis except as expressly provided under an agreement. 9. DATA PROTECTION TSC is dedicated to protecting the Monroe County provided data, including biometric and biographic information and providing Monroe County with the highest level of service. Monroe County provided data,which includes personal information sent to TSC, is not disclosed, made available or otherwise used for any purposes other than for those purposes of completing fingerprint-based criminal history records checks and security threat assessments as prescribed by federal regulation or other forms of government mandate or requests or as mutually agreed upon by Monroe County and TSC. Fingerprint and biographical information can be used for other purposes only with the data provider's express permission or as required to comply with applicable laws. TSC does not disclose the Monroe County provided information to companies outside TSC and TSC agents and subcontractors, except as required by law. The confidentiality of Monroe County information is an important part of our operations and a standard business practice. 10. MISCELLANEOUS 10.1 Relationship. This Agreement does not create any partnership, joint venture, franchisor-franchisee or employer-employee relationship between the parties hereto. Neither party hereto is granted any express or implied right or authority to bind the other party hereto in any manner whatsoever. 10.2 No Third Party Beneficiaries. There are no third-party beneficiaries entitled to enforce any provisions of this Agreement. 10.3 Entire Agreement. This Agreement, together with the Exhibits attached hereto, contains the entire agreement and understanding of the parties hereto with respect CONFIDENTIAL to the matters herein set forth, and all prior agreements, negotiations and understandings relating to the subject matter of this Agreement are merged herein and are superseded and canceled by this Agreement. 10.4 Amendment. This Agreement may not be modified except in writing, signed by both of the parties hereto. 10.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Virginia without giving effect to conflicts of law principles thereof 10.6 Notices. All communications between the parties with respect to any of the provisions of this Agreement shall be in writing, and shall be sent by personal delivery or airmail, facsimile transmission, or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid,to: If to TSC,to: Transportation Security Clearinghouse 601 Madison Street Alexandria, VA 22314 Attn: Carter Morris Tel.: (703) 824-0500 If to Monroe County: Director of Airports 3491 South Roosevelt Blvd. Key West, Fl. 33040 Attn: Richard Strickland Tel: (305) 809-5210 or at such other address, such other person's attention, or such other facsimile number, as shall be specified by like notice. 10.7 Severability. In the event that any provision of this Agreement is declared by a court of competent jurisdiction or arbitration tribunal to be void or unenforceable, the parties hereto expressly agree that such void or unenforceable provision shall be deemed severed from this Agreement, and the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect to the extent feasible in the absence of the void and unenforceable provision. The parties furthermore agree to execute and deliver such amendatory contractual provisions to accomplish lawfully as nearly possible the goals and purposes of the provision so held to be void or unenforceable. 10.8 Waiver. Any party may waive compliance by the other party with any of the provisions of this Agreement. No waiver of any provision shall be construed as a CONFIDENTIAL waiver of any other provision or the same provision in a subsequent instance. Any waiver must be in writing. 10.9 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No assignment of this Agreement or of any contractual rights or obligations hereunder may be made by either party (by operation of law or otherwise) without the prior written consent of the other party hereto, which shall not be unreasonably withheld, and any attempted assignment without the required consent shall be null and void. 10.10 Cooperation. Each party hereto shall take all such steps and measures as may be requested by the other party hereto in order to effectuate the purposes of this Agreement. 10.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. 10.12 Headings. The section headings and other descriptions contained in this Agreement are for reference purposes only and shall not affect any way the meaning or interpretation of this Agreement. 10.13 Further Assurances. Each party hereto shall do and perform or cause to be done and performed all further acts and things and shall execute and deliver all such other certificates, instruments and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. 10.14 Dispute Resolution. The parties shall make good faith efforts to first resolve internally any dispute under this Agreement by escalating it to higher levels of management. Any dispute, controversy, or claim arising out of, relating to, involving, or having any connection with this Agreement, including any question regarding the validity, interpretation, scope, performance, or enforceability of this dispute resolution provision, shall be exclusively and finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and the AAA Optional Procedures for Large, Complex Commercial Disputes. Any arbitration will be conducted on an individual, rather than a class-wide, basis. The arbitration shall be conducted in the Commonwealth of Virginia, unless the parties agree on another location, by three arbitrators, with each party selecting one arbitrator and the third selected by the AAA. The parties shall be entitled to engage in reasonable discovery, including requests for production of relevant non-privileged documents. Depositions and interrogatories may be ordered by the arbitral panel upon a showing of need. All decisions, rulings, and awards of the arbitral panel shall be made pursuant to majority vote of the three arbitrators. The award shall be in accordance with the applicable law, shall be in writing, and shall state the reasons upon which it is based. The arbitrators shall have no power to modify or abridge the terms of this Agreement. CONFIDENTIAL 10.15 Nothing contained in this Agreement shall be construed to be a waiver of any protections under soverrign immunity, Section 768.28 Florida Statutes, or any other similar provision of law. N )thing contained herein shall be construed to be a consent by either party to be sued b: third parties in any matter arising out of this or any other Agreement. IN WITNESS A IEREOF, this Agreement has been duly executed by or on be a n eye ch of the pc ies hereto as of the date first above written. 7 ,•47 (----=:::-.,\` ` iss,„•,-,-(-,IN • Ik; �.,�(SE' `IL)3j,t,,y.- , BOARD OF COUNTY COMMISSIONERS �iY\16 �<,Wiz_.�� ..�. :: ,\,.-lA`4 IES-T I VIN MADOK, CLERK OF MONROE COUNTY,FLORIDA r "0.25."...........— By By Clerk Mayor/Chairperson TRANSPORATION SECURITY CLEARINGHOUSE (TSC) . • r � By: (. '?z a•.. i:_ Name: .17 r/e ATi, - cr+ r--=y: 'J Title: El/i9 ;— I if, 1% = -� ( = :.cam�� Date: Lt. - r i emu: N / F?M is Fil fi"COU•', A"e. EY A OV • • • . , PEh 0 J. ERCADO 4 (:, I Li d: Z1l i8 CONFIDENTIAL Exhibit A Airport shall pay the fees set forth in this Exhibit for the services performed by TSC as outlined in the Agreement. Airport shall pay TSC: • Twenty dollars and twenty-five cents ($20.25)per electronic fingerprint submission for a Criminal History Record Check(CHRC); • Two dollars ($2.00) additional surcharge for an inked card fingerprint submission • Three dollar ($3.00) fee per individual Security Threat Assessment; • One dollar($1.00) fee per annual renewal fee for each active Security Threat Assessment; • Two dollars ($2.00) per Rap Back subscription.