Item C04BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
MEETING DATE: 8/17/05 DIVISION: COUNTY ADMINISTRATOR
BULK ITEM: YES DEPARTMENT: AIRPORTS
STAFF CONTACT PERSON: Peter Hortor
AGENDA ITEM WORDING: Approval of lease agreement with Federal Express for operations at the Key West
International Airport.
ITEM BACKGROUND: Lease term, October 1, 2004 to September 30, 2009.
PREVIOUS RELEVANT BOCC ACTION: Approval of lease previous lease agreement, 9/18/02.
CONTRACTIAGREEMENT CHANGES: New agreement
STAFF RECOMMENDATION: Approval
TOTAL COST: Revenue Producing
COST TO AIRPORT: None
COST TO PFC: None
COST TO COUNTY: None
REVENUE PRODUCING: Yes
BUDGETED: nla
SOURCE OF FUNDS nla:
AMOUNT PER YEAR: - $ 58,000.00
APPROVED BY: County Attorney X OMB/Purchasing X Risk Management X
AIRPORT DIRECTOR APPROVAL
P to . Horto'
DOCUMENTATION: Included X
DISPOSITION:
Ibev
APB
Not Required
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract #
Contract with: Federal Express Effective Date: 10/1/04
Expiration Date: 9/30/09
Contract Purpose/Description: Lease agreement for facility at the Key West International Airport
Contract Manager: Bevette Moore # 5195 Airports - Stop # 5
(name) (Ext.) (Department/ Stop)
for BOCC meeting on: 8/17/05 Agenda Deadline: 8/2/05
CONTRACT COSTS
Total Dollar Value of Contract: Revenue producing
Budgeted? n/a
Grant: n/a
County Match: n/a
ADDITIONAL COSTS
For: .
(eg. maintenance, utilities, janitorial, salaries, etc.
Estimated Ongoing Costs: n/a
fnot included in dollar value above)
Current Year Portion: n/a
Account Codes: n/a
CONTRACT REVIEW
Changes
Date In
Needed viewer
Date Out
Yes No
Airports Director
1 1
( }
I 2(o
Peter Horton
Risk Management
M.B./Purcf"�ing
�/ 1OS
or Risk Managem
( ) ( )
County Attorney
1 �� 1 `_'
far O
( ) ( ) �� d �-� Jr,
S
County Attorney
Comments:
LEASE AGREEMENT
KEY WEST INTERNATIONAL AIRPORT
Federal Express Corporation
THIS CONTRACT OF LEASE is made and entered into on this day of ,
2005, by and between MONROE COUNTY, a political subdivision of the State of Florida,
hereinafter referred to as "COUNTY" and FEDERAL EXPRESS CORPORATION, hereinafter
referred to as "FEDEX."
WHEREAS, COUNTY owns an airport known as the Key West International Airport, located
in Key West, Monroe County, Florida, hereinafter referred to as "AIRPORT," and
WHEREAS, FEDEX is engaged in the business of air transportation of cargo and other
property, and
WHEREAS, FEDEX desires to obtain certain rights, services and privileges in connection
with the use of the Airport facilities, and the COUNTY is willing to grant and lease the same to
FEDEX on a non-exclusive basis, upon the terms and conditions hereinafter stated, now, therefore,
IN CONSIDERATION of the premises and of the mutual covenants and agreements herein
contained, and other valuable considerations, COUNTY does hereby grant and lease unto FEDEX, and
FEDEX does hereby lease from COUNTY, certain premises, facilities, rights, and privileges in
connection with and on the Airport, as follows, to wit:
I. Premises. COUNTY does hereby lease to FEDEX, and FEDEX leases from the
COUNTY, the Air Cargo building presently located at the Airport, measuring one hundred feet by
thirty feet (100' x 30'), and nine thousand, five hundred thirty-five (9,535) square feet of open land
adjacent to the building, and an aircraft apron measuring approximately eight thousand, eight hundred
forty-two (8,842) square feet as indicated on the drawing labeled as Exhibit "A" attached hereto and
made a part hereof.
2. Use of the Airport. FEDEX shall be entitled to use, in common with others
authorized to do so, the airport facilities and appurtenances, together with all equipment,
improvements, and services which have been or may hereafter be provided at or in connection with the
Airport for common use, in the operation of a business for the transportation of cargo and other -
property by air.
3. Term. The term of this lease shall be sixty (60) months, commencing October 1,
2004, and ending on September 30, 2009,
4. Rentals and Fees. During the term of this lease, FEDEX shall pay to the COUNTY,
rent as follows:
a) the amount of Forty-one Thousand, Four Hundred Twenty-three Dollars and
83/100 Cents ($41,423.83) per annum, plus applicable sales tax, for the area of three thousand (3,000)
square feet, in the existing Air Cargo building, and
b) the amount of Five Thousand, Three Hundred Fifty Dollars and 23/100 Cents
($5,35023) per annum, plus applicable sales tax, for an area of nine thousand, five hundred thirty-five
(9,535) square feet of open land adjacent to the Air Cargo building, for use for loading, unloading, and
parking of automotive vehicles.
c) the amount of Five Thousand, Eight Hundred Eighty-seven Dollars and 441100
Cents ($5,887.44) per annum, plus applicable sales tax, for an area of eight thousand, eight hundred
forty-two (8,842) square feet of aircraft apron adjacent to the Air Cargo building.
The lease amount agreed to herein may be adjusted annually in accordance with the percentage
change in the Consumer Price Index for all urban consumers (CPI-U) for the most recent twelve (12)
months available.
Rent for items a, b, and c shall be paid in equal monthly installments, all of which shall be due
and payable on or before the first day of each calendar month during which this lease is in effect.
Upon the failure of FEDEX to pay any installments when due, the COUNTY will be entitled to charge
and collect, and FEDEX will be obligated to pay, a late fee of two percent (2%) of any such amount, if
paid within thirty (30) days of the date due, and five percent (5%) of any such amount, not paid within
thirty (30) days of the date due. Such late fees will be in addition to the amount of rent due. The
acceptance by the COUNTY of the overdue rental installment plus applicable late fees shall cure what
would otherwise constitute a default by FEDEX under the terms of this lease. The COUNTY, at its
option, however, may refuse a proffered overdue rental installment and late fees, declare a default, and
proceed according to paragraph 36 of this lease. In the event that any check, draft, or negotiable
instrument by which FEDEX has tendered any rent payment is returned to the COUNTY and not
honored, whether for insufficient funds or other reason, the COUNTY will be entitled to charge and
collect, in addition to any applicable late payment fees as provided above, a fee of Twenty-five Dollars
(.$25.00) for such dishonored instrument. Such penalty fee shall also be in addition to the amount of
rent due. The acceptance by the COUNTY of the rental payment plus any applicable late fee and
penalties following the receipt of a dishonored instrument shall cure what would otherwise constitute a
default under the terms of this lease. The COUNTY, at its option, however, may refuse any proffered
rental installment and applicable late fees and penalties, declare a default, and proceed according to
paragraph 36 of this lease.
5. Security Deposit. In addition to the rent payment as provided above, FEDEX shall
maintain with the COUNTY, the sum deposited, to -wit: an amount of Twenty-five Hundred Dollars
($2,500.00), which the COUNTY will hold as a security deposit. in the event of any breach by
FEDEX of any of the terms of this agreement, including any failure to timely pay any rent due, the
COUNTY may draw upon the monies held by the COUNTY as security, to pay and cover any amounts
due and owing from FEDEX.
6. Landi _2 Fees. Landing fees shall be assessed at a rate to be established by the
County's 2001 or an approved, updated Rates and Charges Study, subject to an adjustment on each
January I" for the term of the lease, in accordance with the percentage change in the CPI-U for the
most recent twelve (12) months available.
The landing fees shall be computed; using the $1.73 rate as an example only, as follows:
$1.73 per 1,000 pounds of approved maximum gross landing weight, with no minimum fee.
FEDEX shaII report to the Monroe County Board of County Commissioners, not later than the
loth day of each month, FEDEX's Actual Revenue Trip Arrivals at the Airport during the preceding
calendar month, which shall include the number and type of such arrivals. The number of arrivals so
2
operated, multiplied by the applicable approved maximum gross landing weights for each type of
aircraft, shall determine the weight for which the monthly payment shall be made.
The term "approved maximum gross landing weight" for any aircraft as used herein, shall be
the maximum gross landing weight approved by the Federal Aviation Administration for landing such
aircraft at the AIRPORT herein. FEDEX provides service to Key West, Florida utilizing a Cessna 208
Caravan. While this aircraft is owned by FEDEX, it is leased to and operated by Mountain Air Cargo
(MAC) based in Denver, North Carolina. As such, MAC is responsible for all the operating expenses
related to aircraft, including landing fees. Within fifteen (15) days after its receipt of written notice that
MAC is unable to satisfy its obligations hereunder, FEDEX will assume the responsibility for ensuring
that all payments and contractual agreements are maintained, or vacate the premises and this lease shall
be terminated in accordance with paragraph 36.
7. Leasehold Improvements and Use. FEDEX shall have the right to occupy the Air
Cargo building measuring one hundred feet by thirty feet (100' x 30'), and nine thousand, five hundred
thirty-five (9,535) square feet of open land adjacent to the Air Cargo building, plus the aircraft apron,
as indicated on the drawing labeled as Exhibit "A" attached hereto and made a part hereof.
FEDEX has the right during the term hereof, at its own expense, at any time from time to time,
to install, maintain, operate, repair and replace any and all trade fixtures and other Airport personal
property useful from time to time in connection with its operation on the Airport, all of which shall be
and remain the property of FEDEX and may be removed by FEDEX prior to or within a reasonable
time after expiration of the term of this agreement; provided, however, that FEDEX shall repair any
damage to the premises caused by such removal. The failure to remove trade fixtures or other personal
property shall not constitute FEDEX a hold over, but all such property not removed within ten (10)
days after FEDEX receives a written demand for such removal shall be deemed abandoned and
thereupon shall become the sole property of the Airport.
FEDEX shall cause to be removed any and all liens of any nature arising out of or because of
any construction performed by FEDEX or any of its contractors or subcontractors on the leased
premises or because of the performance of any work or labor upon or the furnishing of any materials
for use at said premises, by or at the direction of FEDEX.
FEDEX may only utilize the leased building to provide counter space for members of the
public desirous of using FEDEX's cargo and package services and for the operation of a business
engaged in the transportation of cargo and other property. While premises are leased to FEDEX for
parking, FEDEX shall not park or place automotive vehicles in any space on the premises unless it has
been designated by the COUNTY for parking. The COUNTY shall cooperate with FEDEX in
designating a reasonable number of parking spaces to accommodate FEDEX's business traffic.
S. Common Areas. FEDEX shall have the right to use, in common with others, the
Airport space and facilities to permit landing, taking off, loading, unloading and servicing of FEDEX's
aircraft, subject to reasonable rules and regulations of COUNTY as to the use of such common spaces
and facilities.
9. Right of Ingress and Egress. FEDEX, its agents, employees, customers,
suppliers, and patrons shall have the right of ingress and egress to and from the leased premises, which
shall not be unreasonably restricted by the COUNTY.
10. Utilities. FEDEX shall be responsible for the payment of electrical service, water
service. and any similar utility services as needed. In addition to rent and other charges, FEDEX shall
3
pay a trash collection fee of Two Thousand, Twelve Dollars and 621100 Cents ($2,012.62) per annum,
paid monthly with the rent.
11. Assignment. The premises leased hereunder may not be sublet and this lease may not
be assigned without the written consent of the COUNTY.
12. Maintenance of Premises by FEDEX. FEDEX shall be responsible for and shall
properly maintain the leased premises, and upon the termination of this lease, shall leave the premises
in at least as good condition as at the time of the commencement of this lease, normal use and
occupancy excepted. FEDEX is responsible for and shall properly maintain the security fences and
gates surrounding the leased premises and is also responsible for properly securing any portion of the
premises being remodeled or under construction.
13. Inspection and Maintenance of Premises by County. The County and its
authorized officers, employees, agents, contractors, subcontractors and other representatives shall have
the right to enter upon the leased premises for the following purposes:
a) to inspect the leased premises at reasonable intervals during regular business
hours (or at any time in case of emergency) to determine whether FEDEX has complied and is
complying with the terms and conditions of this agreement with respect thereto;
b) to perform essential maintenance, repair, relocation, or removal of existing
underground and overhead wires, pipes, drains, cables and conduits now located on or across the
leased premises, and to construct, maintain, repair, relocate, and remove such facilities in the future as
necessary to carry out the Master Plan of development of the Airport; provided, however, that said
work shall in no event unduly interfere with the operations of FEDEX and, provided further, that the
entire cost of such work, including but not limited to the cost of rebuilding, removing, relocating,
protecting or otherwise modifying any fixed improvements at any time erected or installed in or upon
the leased premises by FEDEX, the COUNTY or third parties, as a result of the exercise by the
COUNTY of its rights hereunder, and all damage to such fixed improvements caused thereby, shall be
borne by the COUNTY.
14. Insurance Requirements
a) FEDEX will obtain or possess the following insurance coverages and will
provide Certificates of Insurance to COUNTY to verify such coverage;
Commercial General Liability. FEDEX shall provide coverage for all premises
and operations including Contractual, Products, and Completed Operations, and
Personal/Advertising Injury. The limits shall not be less than;
55,000,000 Combined Single Limits (CSL) or its equivalent
If split limits are provided, the minimum limits acceptable shall be;
S5,000,000.00 per occurrence,
S500,000 per person,
$100,000 Property Damage
The General Aggregate limit shall either apply separately to this agreement or shall be
at least twice the required occurrence limits.
Business Automobile Liability. FEDEX shall provide coverage for all owned,
non -owned and hired vehicles with limits of not less than;
$5,000,000 CSL or its equivalent
If split limits are provided, the minimum limits acceptable shall be;
0
$5,000,000 per occurrence
$500,000 per person
$100,000 Property Damage
Professional Aviation Liability. FEDEX will provide coverage for limits of not
less than $30,000,000.00 C,SL, including passengers, or its equivalent.
Worker's Compensation. FEDEX shall provide coverage with limits sufficient
to respond to the applicable state statutes.
Employer's Liability. FEDEX shall provide Employer's Liability insurance with
limits of not less than;
$1,000,000 Bodily Injury by Accident,
$1,000,000 Bodily Injury by Disease, policy limits and
$1,000,000 Bodily Injury by Disease, each employee.
PropertM Insurance. FEDEX shall provide coverage for all premises governed by
this agreement with limits no less than the Replacement Cost Value of the leased premises and
as a minimum shall include coverages consistent with the latest version of the Special Form as
filed by the Insurance Services Office (ISO) and shall include as a minimum coverage for
claims arising out of Fire, Sprinkler Leakage, Windstorm, Civil Commotion, Lightning,
Sinkhole Collapse, Smoke, Aircraft and Vehicle Damage, Vandalism, Falling Objects,
Explosion and Flood.
b) The Monroe County Board of County Commissioners will be included as
"Additional Insured" on all policies, except for Worker's Compensation.
In addition, the Monroe County Board of County Commissioners shall be named
as loss payee on any property insurance placed on the leased facilities.
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 (30) days prior
notification is given to the COUNTY by the insurer.
d) The acceptance and/or approval of FEDEX' S insurance shall not be construed as
relieving FEDEX from any liability or obligation assumed under this lease or imposed by law.
e) FEDEX shall maintain the required insurance throughout the entire term of this
lease and any extensions which may be entered into. The COUNTY, at its sole option, has the right to
request a certified copy of any and all insurance policies required by this lease. Failure to comply with
this provision shall be considered a default and the COUNTY may terminate the lease in accordance
with paragraph 36.
fl Non -Waiver of Immunity. Notwithstanding the provision of Sec. 768.28,
Florida. Statutes, the participation of COUNTY and FEDEX 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.
5
Any deviations from these General Insurance Requirements must be requested in writing on the
COUNTY prepared form entitled, "Request for Waiver of Insurance Requirements" and be approved
by Monroe County Risk Management.
15. Books, Records and Documents. FEDEX 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 for public
records purposes during the term of the agreement and for four (4) years following the termination of
this agreement. The COUNTY, acting through its Finance Director or other authorized representative,
shall have the right to inspect and audit FEDEX's books of accounts and other records directly
generated at the Key West International Airport facility or otherwise pertaining to this agreement.
Knowingly furnishing the COUNTY a false statement of its Actual Revenue Trip Arrivals under the
provision hereof will constitute a default by FEDEX of this agreement and the COUNTY may, at its
option, declare this lease terminated. FEDEX retains the right to have its controller or a representative
assigned by its controller to be present during any inspection or audit by the COUNTY. Ten (10)
business days notice must be given of intent to audit by the COUNTY to allow FEDEX's controller
sufficient time to schedule said presence. Nothing contained within this section waives attorney/clicnt
or attorney work product privilege.
16. 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
FEDEX agree that venue will lie in the appropriate court or before the appropriate administrative body
in Monroe County, Florida.
The COUNY and FEDEX 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.
17. 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 FEDEX agree to reform the agreement to replace any stricken provision with a valid provision that
cornes as close as possible to the intent of the stricken provision.
18. Attornev's Fees and Costs. The COUNTY and FEDEX 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, court 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.
I
19. Binding Effect. The terms, covenants, conditions, and provisions of this
agreement shall bind and inure to the benefit of the COUNTY and FEDEX 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. Claims for Federal or State Aid. FEDEX and COUNTY agree that each shall be,
and is, empowered to apply for, seek, and obtain Federal and State funds to further the purpose of this
agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be
approved by each party prior to submission.
22. Adiudication of Disputes or Disa reements. COUNTY and FEDEX 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 thirty (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.
23. Cooperation. hi 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 FEDEX 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 FEDEX specifically agree that no party to this
agreement shall be required to enter into any arbitration proceedings related to this agreement. A party
who requests the other's party's participation in accordance with the terms of this section shall pay all
reasonable expenses incurred by the other party by reason of such participation.
24. Nondiscrimination. COUNTY and FEDEX agree 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 FEDEX 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. COUNTY or
FEDEX 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 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 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
7
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.
25. Covenant of No Interest. The COUNTY and FEDEX 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.
25. Code of Ethics. The 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;
employment or contractual relationship; and disclosure or use of
misuse of public position, conflicting
certain information.
27. Public Access, The COUNTY and FEDEX 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 FEDEX in conjunction with this agreement; and the COUNTY shall have the right to
unilaterally cancel this agreement upon violation of this provision by FEDEX. Nothing in this section
waives attorney/client or attorney work product privilege.
28. Non -Waiver of Immunity. Notwithstanding the provisions of Sec. 286.28, Florida
Statues, the participation of the COUNTY and the FEDEX 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 COUNTY be required to contain any provision for waiver.
29. Privileges and Immunities. All of the privileges and immunities from liability,
exemptions fi-om 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.
30. Legal Obligations and Responsibilities. Non -Delegation of Constitutional or
Statutory Duties. This agreement is not intended to, nor shall it be construed as, relieving any
participating entity from any obligation or responsibility imposed upon the entity by law except to the
extent of actual and timely performance thereof by any participating entity, in which case the
performance may be offered in satisfaction of the obligation or responsibility, Further, this agreement
is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or
statutory duties of the COUNTY, except to the extent permitted by the Florida Constitution, State
Statute, and case law.
31. 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
0
t officer, or employee of either shall
O�}�iTY nor FEDEX
or any a'en articular individual or group of
that neither the C or otherwise indicate that any.p Qreeinent separate and aP emart'ent.
Ibee counsel, benefits under this a� lated in this a�
authority to inform, oses contemp
or entities, have entitlements or TY may.
al I entity e community in general or for the pure
to, ar superior to th 'cutedocuments as the CO n a Drug -
Free
ions. FEDEX agrees to state rn such
ent, an Ethics Statemen
Attestations. crime
32. to include a Public Entity
ably require, erein shall be
lace Statement. agreement d o f Monroe County
NO covenant or �7ent oremployeeshall
member, officer, av to ee of Monroe County
No Personal Liability. went or einP y or accountability by reason
33. regiment Of any me officer, a�
�d to be a covenant 1Y agreement
no member, per
liability
achy, sub3eGt to any P
or her individ on the agreement °T be number of
able personally �neement-
aTeelnent may be eXecuted in any
e execution of this a� This a� of which taken together shall e ting �y e
Counter arts. mina}, all Ureement by
Execution in arded as an orIc
34' artie5 hereto may execute this a�
aterparts,
each of which shall be r O f the p
and the same ii7Strllri7ent a17 ally n5erted In this agreement fas t a matter
h counterpart. as have been I s are riot a part of this
Section heading section heading
eadin Qreed that such o f this agreement
35 Section H and it is an of any provision
used in the interpretation
canvenienCe - not be a e y^ rental
t and accepted a rental installment
to t ayer it has
,reeil7en OUNTY has the failure p Pay any
Unless the C ents and penalties, The failure to p
36. Dew applicable late Payer s of this lease. the failure of
ether with any PP eriod
lecame due tom said fal1v
due shall constitute a default under the e failure shall continue for
P
d � lease shall constitute a default. Furth
nstallmetlts when under this which uired to rectify
yes or fees when due given to FEDE
ease,
�theT chavz Period of time as may be reasonably reQ
orm any other of the co versants of this after notice the Is � 1n the event
FEDEX to Perf or for such longer per
of this lease. enter
fifteen (15) days, t diligent and cutela defy lttunder the terms may immediately re-
Q}7 the exercise of promp ,
throu� STY, shall also consrit if it shall be necessary to
tines by the CO at its option, declare the se shall terminate, e�a h or to collect an
In wn the CONY ma} , this lea arab p
a default, remises and - aht under this p , s fees.
and take possession of the leased p
o f an attorney in order to enforce Its n,�
s TY shall be entitled to reasonable attorne a�reeme
employ the service Qes due, the COS
or charms UJvTY may cancel thisQ e of the folic
its rentals, fees, EASE. The CO ening of any
3�. CANCELXJATJON OF L on the hapP of FEDEX's leasehold es
ixt (b�) days advanced wEDEX' otassetp the dlvestin� ortation business at
q FED s y of its air cargo transp FED
sr
giving ointment of a receiver °f girt by FEDEX �;p] day notice penOd7
events: the app the abandonm of the sixty ( ossession of tl
eration of laws the end re-enter and take p TTY,
by Other op eriod of sixty (60) days STY may immediately
ki art for a P s and the COUP an attorney in order to enforce she CO
rp remise
have vacated the promises
employ the services °
1f it is necessary lOTY shall be entitled to reasonable attorne Re aired Leas
same • ara h the C OU 1 ] w ith F AA q
under this para� P arties shall camp y
38. FAA RE iiIRE
tiiENT Thep art he
reof•
Clauses, which are 11ste
din Exhibit C, attached hereto and made a
39. AIRPORT SECURITY.
a. General. The Federal Transportation Security Administration is the federal agency primarily
responsible for overseeing the security pleasures 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
International Airport, the Florida Keys Marathon Airport, or both as may be set forth in this agreement.
e. Inspection Authority. The airport tenant agrees to allow Transportation Security
Administration (TSA) authorized personnel, at any time or any place, to make inspections or tests,
including copying records, to determine compliance of the airport operator or airport tenant with the
applicable security requirements of Chapter 49, United States Code, and 49 CFR 1540, et seq.
f. Airport Security Program. The airport tenant agrees to become familiar, to the extent
permitted by the airport operator, with the Airport Security Program promulgated by the airport
operator and approved by TSA, and also agrees to conform its' operations and business activities to the
requirements of the Airport Security Program.
g. Tenant Security Program, If permitted under TSA regulations, the airport tenant may
voluntarily undertake to maintain an Airport Tenant Security Program as referred to in 49 CFR
1542.113. If the airport tenant voluntarily promulgates an Airport Tenant Security Program that is
approved by TSA, such program, as may be amended and approved from time to time, shall be
automatically incorporated into this agreement.
h. Breach of Agreement. Should TSA determine that the airport tenant or one or more of the
airport tenant's employees, agents, invitees, or licensees has committed an act or omitted to act as
required, and such act or omission is a violation which results in TSA imposing a civil penalty against
the airport operator in accordance with TSA's Enforcement Sanction Guidance Policy, such
determination and imposition of a civil penalty by TSA shall be considered a significant breach of this
agreement.
(I) 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
10
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 (30) 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 (30) calendar days after receipt by the airport
tenant of written notice of cancellation of this agreement by the airport operator.
(3) Maximum Violation. If the violation is the first violation attributed to the airport tenant
and is a civil penalty "maximum violation" as provided for in TSA's Enforcement Sanction Guidance
Policy, the airport tenant may cure the breach by paying to the airport operator the total costs incurred
by the airport operator, including any fines and penalties imposed, in investigating, defending,
compromising, mitigating, or taking of remedial measures as may be agreed to by TSA, to include but
not be limited to reasonable attorney's fees and costs incurred in the investigation, defense,
compromising, mitigation, or taking of remedial action measures; and, further, the airport tenant may
cause all of airport tenant's employees involved in the airport tenant's business operations on the
airport property to undergo such security training as may be required by the airport operator. The total
cost of the training shall be paid for by the airport tenant. If the violation is a second violation, or there
are multiple violations, that is or are a civil penalty "maximum violation," the airport tenant shall pay
to the airport operator the total costs incurred by the airport operator, including any fines or penalties
imposed, in investigating, defending, compromising, mitigating, or taking of remedial measures as
may be agreed to by TSA, to include but not be limited to reasonable attorney's fees and costs incurred
in the investigation, defense, compromising, mitigation, or taking of remedial action measures; and,
further, the airport operator shall have the right to unilaterally cancel this agreement, such cancellation
to be effective thirty (30) calendar days after receipt by the airport tenant of written notice of
cancellation of this agreement by the airport operator.
11
(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 Subsection. This subsection shall survive the cancellation or termination of
this agreement, and shall be in full force and effect.
40. Hold Harmless; Indemnification; Defense; Release; Survival. Notwithstanding any
minimum insurance requirements prescribed elsewhere in this agreement, FEDEX 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 (Ili) 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,
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 FEDEX or any of its employees, agents, contractors or other invitees on the Airport during the term
of this lease, (B) the negligence or willful misconduct of FEDEX or any of its employees, agents,
contractors or other invitees, or (C) FEDEX'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 FEDEX). 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.
IN WITNESS WHEREOF, the parties have caused this lease to be executed this day
of , 2005.
(SEAL) BOARD OF COUNTY COMMISSIONERS
ATTEST: DANNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA
By By
Deputy Clerk Mayor/Chairman
Witness
Witness
(DCT Rev.61912005)
FEDERAL EXPRESS CORPORATION
By
i'lo, -1-2 Q
na i g Director, Real Estat
Title
n�
Approved
Legal Depart en�
MONROE COUNTY AjTTORN Y %
P VI=iJ A$ T FLIP ��'
PEORO J. MERCADO
ASSISTANT COUNTY ATTORNEY --
13
In
x
x
w
RECEIVED
0EC 2 3 1993
AIRPORTS j 4MB rAA REQUIRED LEME CLAUSES
1. This lease shall be subject to review and re-evaluation
at the and or each year period, by the airport
ownRr and the rent may be adjusted according to their
action, not ho exceed the Consumer Price Index rate
during -the last month period, or;
Land less improvements will be Appraised every 5 years
and the adjusted rental will be based an normally lo--12
percent of appraised value. If disputed, lessor
obtains appraisal at his expense and-lessor/lessee
aqually share expense for review appraisal that
establishes fair market value.
2. The tenant for himself, his personal represcntativec,
€sutcac:eiisors in interest, and assignz, era a part of the
consideration hereof, dues hereby covenant and agree
that (1) no person on the grounds of race, color, or
national origin shall be excluded from participation
in, denied the benefits of, or be otherwise subjected
to discrimination in vie use of said facilitles, (2)
that in the construction of any improvements on, over
or under such land and the furnishing or services
thereon, no person on the grounds of race, color, or
national origin shall be excluded from participation
in, denied the benefits of, or be otherwise subjected
to discrimination, (3) that the tenant shall use the
premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A,
Office of the secretary, Part 21, Nondiscrimination in
Federally -assisted programs of the Department of
Tra+nnportation-Effectuation of Title VI of the Civil
Rights Act of 1964, and as said Regulations may be
amended.
That in the event of breach of any of the above
nondiscrimination covenants, Airport Owner shall have
the right to terminate the lease and to re-enter and as
if amid lease had never barn made or iccucd. The
provision shall not be effective until the procedure*
Of Title 49, Code of Federal Regulations, Part 21 mre
fulluwud acid completed including exercise or expiration
of appeal rights.
3. It shall be a condition of this lease, LhaL Lhe lessor
reserves unto itself, its successors and assigns, for
the use ana benefit of the public, a right of flight
for the passage of aircraft in the airspace above the
surface of the real property hereinafter described,
together with the right to cause in said airspace such
noise as may be inherent in the operation of aircraft,
now known or hereafter used, for navigation of or
flight in the said airspace, and for use of.said
airspace for landing on, taking off.from or operating
on the airport.
That the Tenant expressly agrees for itself, its
successors and assigns, to restrict the height of
structures, objects of natural growth and other
obstructions on the hereinafter described real Property
to such a height so as to comply with Federal Aviation
Regulations, Part 77.
That tho Lausee expressly agrees for itself, itc
cuoaaasore and assigns, to prevent any uas of the
hereinafter described coal proporty which would
interfere With or adversely affect the operation or
maintenance of the airport, or otherwioo eanotituto an
airport hazard.
4. This lease and all provisions hereof are subject and
suburdinate Lu Llie Leans and conditions of the
instruments and documents under which Uie Airport owner
acquired the subject property frOM the United SLataa 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 said lands from
the Airport owner, and any existing or subsequent
amendments thereto, and are subject to any ordinances,
rules or regulations which have been, or may hereafter
be adopted b the Airport Owner pertaining to the
A rport.
5. Notwithstandinq 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
ragervas the' right to grant similar privileges to
another Lessee or other LAnrons on nrhar parts of the
airport_
RECEIVED
DEC 2 31993
AIRPORTS/ OMB