Item C07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
MEETING DATE:
DIVISION: COUNTY ADMINISTRATOR
BULK ITEM: YES
DEPARTMENT: AIRPORTS
STAFF CONTACT PERSON: Peter Horton
AGENDA ITEM WORDING: Approval of an agreement with Gulfstream International Airlines, to provide Air Service to the
Florida Keys Marathon Airport.
ITEM BACKGROUND: Gulfstream is the carrier for Continental Airlines, The agreement calls for at least two non-stop
rounds trips per day to both Tampa International Airport and Ft. Lauderdale International Airport. The total between the two
destinations will be eight flights a day.
PREVIOUS RELEVANT BOCC ACTION: Approval of the Small Community Air Service Development Program grant,
(SCASDP) September 7,2005, which pays for this air service agreement.
CONTRACTIAGREEMENTCHANGES: NewAgffieme~
STAFF RECOMMENDATION: Approval
TOTAL COST: $300,000.00
BUDGETED: Yes
COST TO AIRPORT: None
COST TO PFC: None
COST TO COUNTY: None
SOURCE OF FUNDS: $750,000.00 SCASDP grant
REVENUE PRODUCING: n/a
AMOUNT PER MONTH /YEAR:
APPROVED BY: County Attorney X
OMB/Purchasing X
Risk Management X
AIRPORT DIRECTOR APPROVAL
,///,.~-~) "
. --f-
"'.} ._,l__-"-~n-
(, ,.' .f'-- 1
~)( I
'--'-"'petkr J. ~orton
DOCUMENTATION: Included X
Not Required
AGENDA ITEM #
DISPOSITION:
Jbev
APB
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract #
Contract with: Gulfstream International Airlines
Effective Date: Execution
Expiration Date:
Contract Purpose/Description: To provide air service to the Florida Keys Marathon Airport
Contract Manager: Sevette Moore
(na me)
# 5195
(Ext.)
Airports - Stop # 5
(Department! Stop)
for SOCC meeting on: 3/15/06
Agenda Deadline: 2/28106
CONTRACT COSTS
Total Dollar Value of Contract: $300,000.00
Budgeted? Yes
Grant: Yes - SCASDP
County Match: Local match
Current Year Portion: None
Account Codes: 403-63555-GAKA52
Estimated Ongoing Costs:
(not included in dollar value above)
ADDITIONAL COSTS
For: .
(eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Date In
Changes
Needed
Yes No
Reviewer
Date Out
Airports Director
~;25:/ 10 (p
) ( __)f~
( ) (
( ) ( )
) (~
'i-a-H-
Peter Horton
2- iJi: 1 Ci f.c:;;
0, M_ S.lPurchasi ng
/
/
r
---
Risk Management
_1_1-
_1_1_
LI2'Y;/~
I~
Z 12Y;d(
---
County Attorney
Comments:
~ L1-'U J .It.l~L..
C-i..:J0
Am SERVICE DEVELOPMENT AGREEMENT
Whereas, Monroe County is the owner and operator of the Florida Keys Marathon
Airport (the" Airport" or "Mm' or the "County") and desires to upgrade air service to the
Airport; and
Whereas, Gulfstream International Airlines (the "Airline" or "Gulfstream") is willing
to provide scheduled air service to the Airport, in accordance with the tenns and conditions
of this Agreement;
Now, therefore, the parties agree as foHows:
1. The Airline's Obligations:
A. Service Commitment From on or about November 1,2006 for one calendar
year (service period) the Airline shall provide scheduled air sefVice betWeen
MTH and the Tampa Intemational Airpon (TPA) and Fon Lauderdale
International Airport (FlL), including at least two nonstop roundtrips per day
on both routes (New Service), The Airline may adjust the foregoing service
levels in its sole discretion on weekends and holidays. as necessary to meet
traffic demand.
B. Flight Schedule The Airline will determine the schedule for the New Service
in its sote discretion, provided that the AiThne win use commercially
reasonable efforts to schedule the New SeJVice in a manner that will maximize
the Airline's passenger revenues. The Airline anticipates that the New
Service will be scheduled as set forth in Appendix. A hereto (Initial Schedule),
The Airline wiJI publish the Initial Schedule in the same manner as the Airline
publishes its other flight schedules. In this regard, the Initial Schedule will be
available for sale by August of2006_
C. Air Service Brand. The New Service wlJl be offered to the public under the
brand of the code-sharing host <<;arrier of the Airline_ The Airline will also
offer. service via code sharing arrangements with other airlines as is
commercially feasible
D Airfare Price Points & Revenue Management. The AiJport will aggressively
market the New Service in conjunction with existing domestic and
international marketing of the Florida Keys_ An e~sential element ofthis effort
must be the same or simil8.J airfare pricing by the Airline at both Key West
and Florida Keys Marathon airporU. Accordingly, the Airline agrees to make
every effort to offer airfares at the AiTpon that are the same or similar to those
the Airline offers at Key West. The Airline also agrees to assist the Airport in
its efforts to work with the Airline's code-sharing partner carriers to ensure
they also offer the same or similar airfares at both airports, The Airline will
detennine the seat allocations and overbooking levels for the New Service at
its sole discretion, The Airline will use conunercially reasonable efforts tl
price and yield manage the MTII maTket in a manner that will maximize tho
Airline's passenger revenues but also in a manner which is ronsistent with th.
Airline's network revenue management practices.
E. Conditions of Carriage. The Airline will operate the New Service WIder th,
same conditions of carriage that it operates under at Key West,
F. Definition of New Service Revenue. Revenue generated from the Nev
SeJVice will come from the following sources;
). Local Passenger Traffic (MTI-I-FLL or MlH-TPA) = aU revenue
};> Airline Online Connecting Revenue (example MTH - lAX via TPA) ~
prorate of total revenue via standard Gulfstream online multi leg revenUl
allocation method
);> Code-share partner connecting revenue (example online to Continental) =
Gulfstream'g share of ticket revenue per existing agreement with code
share partner
};. Interline revenue (example connecting. to US Airways on a joint fare) =
Gulfstream's share of ticket revenue per existing agreement with interJim
partner
~ All MfH New Service cargo and mail revenue
G Reponing of New Service Revenue. The Airline will provide the Airport witl
a monthly report of the number of passengers carried on the flights operate(
as part of the New Service and the average net fare paid by such passengerl
(Actual Passenger Traffic & Revenue Repolt). This report win be sent to the
Airport in accordance with the following schedule:
Repon
Monthly Actual Passenger Traffic &
Revenue
Que Date
60 days after each month
Final report
January 4, 2008
The Airport will not disclose the O&D Traffic & Fare infonnation or the
Actual Revenue information it receives pursuant to this Section 1_ G. to a.n~
third parry without tbe Airline's prior written COrulent_
H The Airline will operate its schedules at the Airport to the same level of on.
time performance and flight completion as it does at Key West The Airpor
reserves the right to w:ithhold a porri~n of any revenue obligation to thc
2
L L.,."/'.J
o Rates and Charges I Facility Set-up, The Airport shall waive all MTH
Airport landing fees, utilities, rent charges and related charges for the
New Service for the term of this Agreement.
3, Term and Termination. This Agreement shall be effective on the date first set
forth above and shall remain in effect for 12 calendar months from that date,
provided, however, that either party may terminate this Agreement at any time
upon one bundred and twenty (120) days prior written notice to the other party,
In addition, either party may terminate this Agreement on thirty (30) days prior
written notice if the other party breaches a material tenn of this Agreement and
such breach is not cured during the thirty (30) day tennination notice period,
4. Representations, Each party represents and warrants that it has obtained all
necessary corporate and other approvals to enter this Agreement and the person
signing this Agreement on behalf of the party is duly authorized, In addition, the
Airport represents and warrants that entering this Agreement and performance of
its obligations hereunder is consistent with all-applicable local, state and federal
laws, rules, regulations and ordinances.
5, Survival Section 2 of this Agreement shall survive termination of this
Agreement for purposes of detennining any amounts due and owing between the
parties and any related rights and obligations of the parties.
6. Governing Law and Venue. 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, each party agrees that venue will he in the appropriate court OT before
the appropriate administrative body in Monroe County, Florida.
7. Assignment Neither party shall assign this Agreement without the prior written
consent ofthe other party,
8. Notices. All notices, requests, demands and other communications hereunder
shall be in writing, transmitted by facsimile or maiL Such communication will be
considered received when the party receiving the notice acknowledges it by
facsimile or mail. Each party shall acknowledge receipt as soon as practicable
but in any event within 2 business days of receiving any notice or demand. In the
event ret.:eipt is not duly acknowledged, a notice sent by mail shan be deemed to
have been served within seven (7) business days. Notice given by fax shall be
considered delivered upon receipt by the sender of the fax transmission report
confirming that the fax has been successfully transmined, Addressee has the
right to notify sender within the following two (2) business days that the fax was
transmitted illegibly or incorrectly. Notices shall be transmined:
4
Airline should New Service on-time and completion performance fall below
that of Key West in any month,
2. The Airport's Obligations:
A Revenue Commitment. If the Actual Total Market Origination and
Destination (O&D) Revenue ("Actual Revenue") for the Effective Period lS
less than the Target Total Market O&D Revenue ('"Target Revenue") for the
Effective Period, the Airport shall pay the Airline an amount equal to the
difference between the Actual Revenue and the Target Revenue for the
Effective Period, where
Actual Revenue is the total revenue from the Actual Passenger Traffic
& Revenue report plus non. passenger revenues such as cargo. mail,
and excess luggage revenue received by the Airline for the New
Service, pursuant to Section 1. C _ above~
Target Revenue is the sum of the total number of New SelVice flights
operated per month betWeen MTII and TPA x S1,200 plus the total
number of New Service flights operated per month between rvrm and
FLL x $900,
Provided, that if the Total Actual Revenue is greater than the Total
Target Revenue for the Service Period, no payment is due to the
Airline pursuant to this Section 2.A. and
Further provided, that the Airport's total payment obligation to the
Airline under this Section l.A for the Service Period shall not exceed
$300,000
B, Settlement and Payment. Upon the tcnnination or expiration of this
agreement, the parties will conduct a settlement of any amoUDU due
pursuant to this Section 2 within ninety (90) days of the termination or
expiration date, The final settlement amount, if ilIlY, will be paid to the
Airline within thirty (30) days after receipt of an invoice from the Airline
The settlement will take into account Actual Revenue a.nd Target Revenue
on a cumulative basis over the Service Period,
C, .Advertising & Marketil12 SuppOrt. During the tem1 of this Agreement the
Airport will advertise and promote the New Service in accordance with
the New Service Marketing Plan_ The Airline will provide ad copy
appropriate for the New Service Marketing Plan and/or approve copy and
content for the advertisements and promotional efforts Airport's as
needed for this Marketing Plan.
3
(1) j(to the Airport, to the attention of:
James R. Pams
Marathon Airport Manager
9400 Overseas Highway, Suite 200
Marathon, Florida 33050
Phone 305 2896002
Fax 3052896071
(2) if to the Airline, to the attention of
Mr. David Hackett, President
Gulfstrearn International Airlines
3201 Griffin Road, 4lh Floor
Fort Lauderdale, Florida 33312
Phone 954 985 1500 ext 245
If there is any change to or modification of any address or facsimile n~mber get
forth above, the party changing such address or number shall use all reasonable
efforts to promptly notify the other party of such change.
9, Entire Agreement This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof, and merges
and supersedes aU prior discussions, agreements, and understandings concerning
the subjects covered in this Agreement. Unless expressly provided herein, this
Agreement may not be changed or modified, except by written agreement signed
by the Parties to be bound thereby_
10. Force Majeure, Etc. Neither party will be liable to the other for any loss, injury,
damage or delay resulting from one or more of the following: an Act of God,
seizure under legal process, governmental sanctions, quarantine restrictions; fire,
fog, flood. or other weather-related reason or failure or refusal on the part of any
government or governmental agency to grant or issue approvals, clearances,
exemptions, permits or operating authority, or recession or revocation thereof by
any government or governmental agency; damage to or destruction of aircraft or
other flight equipment~ mechanical difficulties or breakdowns; unavailability of
fuel~ riots or civil commotion; strikes, lockouts or labor disputes (whether
resulting from disputes between either pany and its employees or between other
parties); US military or airlift emergency or substantially expanded U.S, military
airlift requirements as determined by the US, g.overnment; activation of the US.
Ci'Vil Reserve Air Fleet; war or hazards or dangers incident to a state of war; or
any other acts, matters or things, whether or not of a similar nature, which are
beyond the control of either party and which shalJ directly or jndirectly, prevent,
delay, interrupt, or otherwise adversely. affect the furnishing, operation or
5
performance of such transportation. In the event of a foree majeure that prevents
the Airline from performing the terms of this Agreement, or in the event that the
Airline exercises its right to suspend performance of the terms of this Agreement
pursuant to the provisions of this Section, the Airport shall have no obligation to
make the payments required by Section 2(A) for so long as the Airline docs not
perform the terms of this Agreement as a result of said force majeure or the
Airline's e1cc;lion not to perform the term3 oflhis Agreement in the event of an
airlift emergency or if the United States Civil Reserve Air Fleet is activated.
Each party will immediately advise the other party regarding any eveIrt. afforce
majeure, as described above. that may affect its performance hereunder and will
keep the other party apprised of efforts made to remedy the problem.
1 L Construction. Severability, Third Party Beneficiary, This Agreement shall not be
construed against the party preparing it, but shall be construed as if both parties
jointly prepared it and any uncertainty Of ambiguity shall not be interpreted
against either party. 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 eKtent 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
tenus, covenants, conditions and provisions of this agreement would prevent the
accomplishment of the original intent of this agreement Each party agrees 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. NO
PERSON OR ENTITY, OTHER THAN AIRLINE OR TIIE AIRPORT, SHALL
HA VB ANY RIGHTS, CLAIMS, BENEFITS OR POWERS UNDER TInS
AGREEMENT AND TIllS AGREEMENT SHALL NOT BE CONSTRUED
OR INTERPRETED TO CONFER ANY RIGHTS, CLAIMS, BENEF1TS OR
POWERS UPON ANY THIRD PARTY. THERE ARE NO THIRD-PARTY
BENEFICIARIES OF TIllS AGREEMENT.
12. Re1atiQnship Between the Parties. Each party, in its perfonnance under this
Agreement, is and shall be engaged and acting lIS an independent contractor in its
own separate business, Each party shan retain complete and exclusive control
over its personnd and operations and the conduct of its business. Neither party
nor Its officers, employees or agents shall in any ma.nner make any representation
OJ take any actions which may give rise to the existence of any employment,
agency, partnership or other like relationship between the panies hereunder. The
employees, agents and independent contractors of each party shall be and remain
employees, agentS and independent contractors of such pMty for all PUfllOses. and
under no circumstances shaU be deemed to be employees, agents or independent
contractors of the other party. Neither party shall have supervisory power or
control over any employees, agents or independent contractors employed or
engaged by the other party.
6
] 3. Books. Records and Documents. Gulfstream shall maintain all books, records, and
documents directly peninent to perfonnance under this agreement in accordance
with generally accepted accounting principles consistently applied. Each party to
this agreement OT 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 (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 Gulfstrearn's books of accounts and other records directly generated at
the Florida Keys Marathon Airport facility or otherwise pertaining to this
agreement Knowingly furnishing the County a false statement of its Monthy
Actual Passenger Traffic And Revenue under the provision hereof will constitute
a default by Gulfstream of this agreement and the County may. at its option,
declare this lease tenninated. Gulfstream 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 (to) business days notice must be given of intent to
audit by the County to allow GulfstJeam's controller sufficient time to schedule
said presence, Nothing contained within this section waives anomey/c1ient or
attorney work product privilege,
14, Attorn~'s F~es and Costs Each party agrees that in the event any cause ofadion
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 sf;:COrdancc with the: Florida Rules of Civil Procedure and
usual and customary procedures required by the Circuit Court of Monroe County.
15 Bindin& Effect. The teoos, covenants, conditions. and provisions of this
agreement shall bind and inure to the benefit of the County and Gulfstream and
their respective legal representatives, successors, and assigns
16. Claims for Federal or State Aid, Each party agrees that each shaH 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.
17_ Adjudic@tion of Disputes or Disagreements Each party agrees 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 m~ing of the Monroe County Board of
7
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 reHef or
remedy as may be provided by this agreement by Florida law.
18, CooperaUlliL In the event any administrative or legal proceeding is instituted
against either party relating to the fonnation, execution, performance, or breach of
this agreement, each party agrees [0 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 Each party specifically agrees that no party to this agreement shan be
required to enter into any arbitration proceedings related to this agreement A
party who requests the other's party's panicipation in accordance with the terms
of this section shall pay an reasonable expenses incurred by the other party by
reason of such participation
19. Nondiscrimination. Each party agrees that there will be no discrimination against
any person, and it is expressly understood that upon a detennination by a court of
competent jurisdiction that Gulfstream has discriminated against any person. this
agreement automatically tenninates without any further action on the part of any
party, effective the date of the Court order. Each party agrees 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, COIOf or national origin; 2) Title IX of the Education Amendment of 1972, as
amended (20 use ss 1681-1683, WId 1685 -1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of
1973, as amended (20 use s. 794), which prohibits discrimination on the basis of
handicaps; 4) The Age Discrimination Act of 1975; as amended (42 use 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 A1cohoJjsm Prevention, Treatment and Rehabilitation Act of ] 970 (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
use 55, 690dd-3 and 29000-3), as amended, relating to confidentiality of alcohol
and drug abuse patent records; 8) Title vm of the Civll Rights Act of 1968 (42
use 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 use s.
1201 Note), as may be amended nom time to time, relating to nondiscrimination
based of disability; 10) Sees, 13-101, et seq.. MOMoe County Code. relating to
discrimination based on race, color, sex, reJigion, disability, national origin,
ancestry, sexual orientation, gender identify OT expression, familial status or age;
II) Any other nondiscrimination provisions in any Federal Or stale statutes which
may apply to the parties to, or the subject matter of, this agreement.
8
20. Covenant orNo Interest. Each party covenants 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 perfonn and receive benefits as recited in this agreement
21, 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; misuse of public position,
conflicting employment or contractual relationship; and disdosure or use of
certain information
22. Public Acce~. The parties shall allow and pennit reasonable access to. and
inspeCtion of, all documents, papers. letters or Qther materials in its possession or
under its control subject to the provisions of Chapter 119, Florida Statutes, and
made or received by the parties in conjunction with this agreement; and the
County shall have the right to unilaterally cancel this agreement upon violation of
this provision by Gulfstream. This section sharI not apply to confidential
commercial information. Nothing contained within this section waives
attorney/client or attorney work produCt privilege,
23. Non-Waiver ofImmunity_ Notwithstanding the provisions of Sec, 28628, Florida
Statues, the participation of the parties in this agreement and the acquisition of
any conunercial 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 rontain any provision for waiver,
24, Privileges and Immunities, An of the privileges and immunities from liability,
exemptions from laws. ordinances, and rules and pensions and relief, disability,
workers' compensatjo~ 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 officeJ"!l, agents., volunteers, or employees
outside the territorial limits of the County,
25. 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
9
constitutional or statutory duties of the County, except to the extent permitted by
the Florida Constitution, State Statute, and case Jaw_
26, AIRPORT SECURITY
a. General, The Federal Transportation Security Administration is the federal agency
primarily respongible 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 Cod~ including but not limited to
49 CFR 1540, et seq_ Violations of the statutes OJ" 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, ageots, invitees., or licensees shall be
borne by the airport tenant.
b. Airport Tenant Defined_ An airport tenant means any person, entity, organization,
pannership, corporation, or other legal association that has an agreement with the
airport operator to conduct business on airport propertyc 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. A:J 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 pemlnnd, at any time or any place, to make
inspections or tests, including copying records, to detennine compliance of the
airport operator or aill'ort tenant with the applicable secW'ity requirements of
Chapter 49, United States Cod~ and 49 CFR ] 540, 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 aifJlOJt operator and approved by TSA, and also agrees to
conform its' operations and business aCtivities to the requirements ofthe Airport
Security Program,
g, Tenant Security Program. If permined under TSA regulations, the airport tenant
may voluntarily undertake to maintain an Airport Tenant Security Program as
referred to in 49 CFR 1542.1 ] 3. If the airp!J11 tenant voluntarily promulgates an
10
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 suc;h act or omission is a
violation which results in TSA imposing a cjvil penalty against the airport
operator in accordance with TSA's Enforcement Sanction Guidance Policy, such
detennination 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 Of 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 costs incurred by the airport operator
in the way of any fines or penalties imposed by the TSA If the violation is a third
violation. or there are multiple violations jn excess of two violations, that is or are
a civil penalty <<minimum vlolation,>> the airport tenant shall pay to the airport
operator any fines or penalties imposed by TSA and, further, the airpon operator
shall have the right to unilaterally cancel this agreement, such cancellation to be
effective thirty (30) calendar days after .-~pt 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 anributed 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 costs incurred by the aiI1'ort operator
in the way of any fines or penalties imposed by the TSA. The airport tenant may
cause aJJ 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 tor 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 shaH pay to the airport operator the costs incurred by
the airport operator in the way of any fines or penalties imposed by the TSA. In
the case of a third moderate violation, the aiIpOr1 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 airpon 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 Po)i(iY, the airport tenant may cure the breach by
paying to the airport operator the costs incurred by the airport operator in the way
of any fines and penalties imposed by the TSA The airport tenant may cause all
II
of airport tenant's employees involved in the airport tenant's busines.s 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 sirpon
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 shaH pay to the
airport operator the costs incurred by the airport operator in the way of any fines
or penalties imposed by the TSA. In the case of a third maximum violation the
airport operator shall have the right to unilaterally caocel this agreement, such
cancellation to be effective thirty (30) calendar days after receipt by the airpon
tenant of written notice of cancellation of this agreement by the airpon operator,
(4) Mitigation ofBreach~ TSA has a policy offorgoing 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
1'eCW". This policy is known as the TSA Voluntary Disl;Josure Program Policy, and
is designed to encourage compJiance with TSA regulations, foster secure
practices, and encourage the development of internal evaluation programs. The
aiIport tenant agrees that upon detecting a violation the aiJport tenant will
immediately report it to the airport operator, Should the TSA ultimately detennine
that the violation was committed by the airport tenant, or an employee, agent,
invitee, OT 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 remediaJ measures as may be
agreed to by TSA, to include but not be limited to reasonabJe attorney's fees and
costs incurred in the investigation. defense, mitigation, or taking of remedial
action measures. A "lolatioo 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.
27. Hold Harmless; Indemnification; Defense; Release; Survival. Notwithstanding
any minimum insurance requirements prescribed elsewhere in this agreement,
Gulfstream shall defend, indemnify and hold the County and the County's elected
and appointed officers and employees hannJess 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), Joss, damage., fine., penalty or business intenuption, and (iii)
any costs or expenses (including, without limitation, costs of remediation and
costs of additional security measures that the Federal Aviation Administration, the
Transponation Security Administration or any other governmental agency
requires by reason of. or in connection with a violation of any federal law or
regulation, attorneys' fees and costs, court costs, fines and penalties) that may be
asserted against, initiated with respect to, or sustained by, any indemnified party
by reason of, or in connection with, (A) any activity of Gulfstream or any of its
12
employees, agents, contractors or other invitees on the Airport during the term of
this lease, (B) the negligence or willful misconduct of Gulfstream or any of its
employees, agents, contractors or other invitee:., or (C) Gulfstream's default In
respect of any of the obligations that it undertakes under the tenns of this lease,
except to the extent the claims, actions, causes of action., litigation, proceedings.
costs or expenses arise from the intentional Of sole negligent acts or omissions of
the County or any of its employees, agents, contractors or invitees (other than
Gulfstream). 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 ofthislease.
:8, Insurance Requirements,
a) Gulfstream will obtain or possess the foJJowing insurance coverages and will
provide Certificates of Insurance to the County to verify such coverage;
Com.Rr~hensive Airline Liability, Gulfgtream shall provide
C()mprehensive Airline Lia.bility Insurance including but not limited to
Comprehensive General Liability, Public Liability, Passenger Liability, Personal
Injury Liability, Contractual Liability, Passengers' Checked and Unchecked
Baggage Liability, Premises, Products (excluding Manufacture's Product
Liability), and Completed Operations Liabilities, Ground and In-FHght
Hangarkeepers Liability. Cargo Legal Liability, Excess Automobile and
Employers Liabilities. The limits shall not be less than;
As respects Comprehensive Airline Liability Insurance, Combined Single
Limit Bodily Injury (including passengers), Property Damage and Personal Injury
(Passengers only): at least USSJOO,OOO.OOO anyone occurrence/offense, in the
aggregate annually as respects Products, Completed Operations and Personal
Injury Liabilities. Subject to A VN48B or its equivalent.
As respects Personal Injury to Third parties other than passengers,
USS2S,OOO,OOO anyone occurrence, anyone offense, in the aggregate annually,
As respects Cargo Legal Liability, U5$5,ooO,000 each occurrence.
As respects Excess Automobile and Employers' Liabilities, This insurance to
pay up to the difference between the underlying primary policy limit of
US$I.OOO,OOO and a total limit ofUS$25,OOO,OOO and one occurrence/offense and
in the aggregate annually 8S applicable_
Equipment Insured: Any aircraft owned and/or operated b y the Named
Insured, Agreed Values as declared to insurers.
13
Employer's Liability. Gulfstream shaH provide Employer's Liability
jnsurance with limits of not less than;
$1 ~ 000,000 Bodily Injury by Accident~
$1,000,000 Bodily Injury by Disease, policy limits and
$1 JOOO~OOO Bodily Injury by Disease, each employee.
b) The Monroe County BOHTd of County Commissioners will be included
as HAdditional Insuredu on all pulicies, except for Worker's Compensation,
c) AlJ insurance pohcies 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 s-iven to the COUNTY by the
insurer.
d) The acceptance and/or approval of Gulfstream' S lnsurance shall not be
construed as relieving Gulfstream from any liability or obligation assumed under
this agreement or imposed by law.
e) Gulfstream shall maintain the required insurance throughout the entire
term of this agreement and any eX1ensions 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 Jeasc- Failure to comply with this provision
shan be considered a default and the County may terminate this agreement.
Any deviations from these General Insurance Requirements must be requested
in writing on the COUNTY prepared form entitled~ URequest for Waiver of
Insurance Requirements" and be approved by Monroe County Risk Managenlent.
29_ Mutual Review.
.
This agr-eement has been carefully reviewed by Gulfstream and the County,
therefore this agreement is not to be construed against either party on the basis of
authorshiD.
02-28-'05 11:55 FROM-3M HDQ FAX
9S42663~30
1'-098 P016
k-"q,:'
~ L......'''''''''
.,:fW IN 1i'l~TNESS ,\-VHE'iREOI?,
'~.'L__. day 0: ._.__ 'I'-'l: ~""-j-
r
.
thIC parties h~,ve catwea ~h~3 lease to be executed tb'3
,2006
IN \N1TNESS VlHERE.or'", the parties have executed '[his Agreemt;;:nt as. of the date first
appear1ng: above,
f;'i),dfsh"'eam intern;M~oru~~ .4.ili"}ine9-~ ~nc"
The ATIdine
'lo,' ('<
,t,,10I1rOf Lmmty
TheAJrpol1
By; Presjdent Dav2d F Hackett
- ,~~Ar\. ^11---
Signa1urB'~~4jS:\_~__
By Mayor Crm.:des "Sonny" McCoy
S~gni:ltl.ue: _, ,~___'________ d
Attest Monroe County Clerk
Slsmstme'
.;;:- ~,..,,"~~-~-~~~"""---'----~-----