Item K06 K.6
County f � .�� ��� BOARD OF COUNTY COMMISSIONERS
Mayor David Rice,District 4
Mayor Pro Tem Craig Cates,District 1
The Florida Keys '
Y ��' Michelle Coldiron,District 2
Vacant,District 3
--' Holly Merrill Raschein,District 5
County Commission Meeting
February 16, 2022
Agenda Item Number: K.6
Agenda Item Summary #10206
BULK ITEM: No DEPARTMENT: Airports
TIME APPROXIMATE: STAFF CONTACT: Richard Strickland(305) 809-5200
N/A
AGENDA ITEM WORDING: Approval to award bid and enter into a Rental Car Concession
Agreement with KWJA, Inc. d/b/a Key West Adventures at the Florida Keys Marathon International
Airport.
ITEM BACKGROUND: KWJA, Inc. d/b/a Key West Adventures was one of three companies that
submitted a proposal at the bid opening held on December 16, 2021.
PREVIOUS RELEVANT BOCC ACTION: On April 21, 2021, the BOCC granted approval to
advertise a request for proposals for up to three (3)rental car concessions at the Florida Keys
Marathon International Airport.
CONTRACT/AGREEMENT CHANGES:
new agreement
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Bid Tabulation Sheet 12.16.2021
KWJA Rental Car Concession Agr
FINANCIAL IMPACT:
Effective Date: February 1, 2022
Expiration Date: January 31, 2027
Total Dollar Value of Contract:
Total Cost to County: -0-
Current Year Portion:
Packet Pg. 1905
K.6
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: Yes If yes, amount: $9,600/yr. counter space rent; $22,630/yr. parking
spaces rent, $6,000/yr. car prep. space rent, $3,600/yr. car wash bay rent, $6,000/yr. utilities
reimbursement and 10% of gross revenue or a minimum of$15,000/yr.
Grant:
County Match:
Insurance Required: Yes,will be provided along with security deposit prior to County
execution of the agreement.
Additional Details:
REVIEWED BY:
Beth Leto Completed 01/26/2022 6:02 PM
Richard Strickland Completed 01/30/2022 10:09 PM
Pedro Mercado Completed 01/31/2022 10:08 AM
Purchasing Completed 01/31/2022 10:39 AM
Budget and Finance Completed 01/31/2022 10:40 AM
Maria Slavik Completed 01/31/2022 11:22 AM
Liz Yongue Completed 02/01/2022 10:51 AM
Board of County Commissioners Pending 02/16/2022 9:00 AM
Packet Pg. 1906
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K.6.b
RENTAL CAR CONCESSION
KWJA, INC. d/b/a KEY WEST ADVENTURES
MONROE COUNTY
THIS AGREEMENT, hereinafter "Agreement" is made and entered into this 16th day of
February, 2022 by and between MONROE COUNTY, a political subdivision of the State of
Florida, whose address in 1100 Simonton Street, Key West, Florida 33040, hereinafter "County"
or"Lessor" and KWJA, Inc. d/b/a/Key West Adventures, a Florida corporation whose address is
3424 N. Roosevelt Blvd., Key West, Florida 33040, hereinafter"Concessionaire".
WHEREAS, County desires to grant to Concessionaire a non-exclusive right to operate 0
an automobile rental concession at and from Florida Keys Marathon International Airport at
Marathon, Florida hereinafter"Airport";and
0
WHEREAS, County and Concessionaire desire, in connection with said operations, to
provide for the leasing by Lessor to Concessionaire of certain space in and around the Airline
Terminal at the Airport for the establishment of a Rental Car Concession to accommodate the
Concessionaire's customers and provide space for the temporary placement of rental ready vehicles
and for other purposes in connection with said operations, all as hereinafter more specifically 'a
provided.
NOW, THEREFORE, in consideration of the premises and of mutual covenants
and promises hereinafter contained the parties hereto do hereby agree as follows:
1. The Agreement - The Agreement consists of this document, the bid documents
exhibits, and all addenda responses, which are hereby incorporated as if fully set forth herein.
.2
2. Premises - Lessor hereby leases to Concessionaire for its use rental car counter
space located in the passenger arrivals area at the Airport, designated as "Rental Car Office 101" 0
on Exhibit A, attached hereto; and in accordance with Exhibit B attached hereto: Fourteen (14)
rental car ready/return spaces in the parking lot designated as "Car Ready Area CR 3"; Seven (7) ti
rental car overflow spaces in the parking lot designated as "Rental Overflow Area RO 3"; Three
(3) box truck parking spaces in the parking lot designated as "Box Truck Area BT 3"; one (1)
vehicle preparation area designated as "Car Prep Area CP 3A"with 5 spaces and CP 3B"with 1
space; and one (1) car wash bay designated as "Car Wash Bay CW 3."
3. Term - This Agreement is from February 1, 2022 and terminating on January
31, 2027. E
4. Rental and Fees-Concessionaire,for and during the term hereof, shall pay to Lessor
for the use and occupancy of said Premises and for the rights and privileges herein granted at the
following scheduled rates and fees:
(a) Counter Space Rental: Rental Car Counter space shall be paid at the rate of$800.00
per month,plus sale tax, which includes rental car counter space 4101 as shown on Exhibit A,the
area immediately outside of rental car counter space 4101, and the interior wall of space 4101. On
the anniversary date of this Agreement this rate will be adjusted annually by a percentage equal to
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K.6.b
the percentage increase in the CPI-U for urban consumers for the preceding calendar year. In the
event of a deflationary CPI, no adjustment in the rental rates will be made.
(b) Rent 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 Agreement is in effect.
Upon the failure of Concessionaire to pay rent or concession fees when due, the County will be
entitled to charge and collect, and Concessionaire will be obligated to pay, a late fee equal to the
Federal Reserve Bank of New York prime rate in effect on the date of delinquency plus four
percent (FRBNY prime + 4%) or twelve percent (12%) per annum, whichever is greater. The
acceptance by the County of the overdue rental or fee installment plus applicable late fees shall
cure what would otherwise constitute a default by Concessionaire under the terms of this lease.
The County, at its option, however, may refuse a proffered overdue rental or fee installment and c
late fees, declare a default, and proceed according to Sections 20 and 21 of this Agreement. In the
event that any check, draft, or negotiable instrument by which Concessionaire has tendered any
rent or fee payment is returned to the County and not honored, whether for insufficient funds or 0
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) if the check was under
$50.00, if the check was $50.00 but under $300 the fee is Thirty Dollars ($30.00) and for checks
$300 and greater the fee is Forty Dollars ($40.00) OR 5% of the check amount whichever is
GREATER. Such penalty fee shall also be in addition to the amount of rent or fee due. The
acceptance by the County of the rental or fee 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.
(c) Rental Car Ready Spaces: Fourteen (14) Rental Car Ready Spaces at the rate of
$2.00 per day per space rent plus sales tax.
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(d) Rental Car Overflow Spaces: Seven (7) Rental Car Overflow Spaces at the rate of
$2.00 per day per space rent plus sales tax.
0
(e) Box Truck Parking Spaces: Three (3) Box Truck Parking Spaces at the rate of
$2.00 per day per space rent plus sales tax. ti
(f) Car Preparation Area: One (1) Car Preparation Area at the rate of $500.00 per u
month plus sales tax_
(g) Car Wash Bay: One (1) car wash bay at the rate of$300.00 per month plus sales
tax.
(h) Utilities Reimbursement: Electric, water and trash removal services at the rate of
$500.00 per month_
(i) Concession Fee: Minimum annual guaranteed concession fee for each contract year
of the Agreement shall be $15,000.00 (Fifteen Thousand Dollars). The Concessionaire agrees to
pay monthly, on or before the fifteenth day of each calendar month, ten (10) percent of gross
revenues for the previous month or one-twelfth (1/12) the minimum annual guarantee, whichever
is greater. In the event the County determines that the total amount paid during any contract
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K.6.b
year (February 1 — January 31) period exceeds ten(10)percent of gross revenues or the minimum
annual guarantee, whichever is greater, the excess payment shall be credited against
Concessionaire's payments for the next year,except that any excess payment during the final year
of this Agreement will be returned to the Concessionaire within thirty (30) days after the end of
the Agreement term.
0) Customer Facili y Charges: Upon written notice from the County that the Monroe
County Board of County Commissioners has authorized the implementation of a Customer Facility
Charge at the Airport to pay for future proposed improvements, renovations, upgrades and/or
modifications to rental car facilities at the Airport, Concessionaire shall be obligated to collect said
charge as of the effective date of the notice. Upon said effective date, Concessionaire shall collect
a daily Customer Facility Charge on all vehicle rental transactions with Airport Customers and
shall continue to collect and remit said charge until such time as Concessionaire receives written
notice form the County to discontinue collection. The Customer Facility Charge shall be identified
on a separate line below the sales tax line on the customer's rental contract, in the amount U
established from time to time by County and shall be described as the"Customer Facility Charge"
or"CFC." CFC fees shall be excluded from the definition of gross revenues. Concessionaire must
collect the Customer Facility Charge at the time the first payment is made for a qualifying vehicle
rental transaction and must remit the full amount of the Customer Facility Charge to County
regardless of whether or not the full amount of such Customer Facility Charge is actually collected
by Concessionaire from the person who rented the vehicle. If Concessionaire fails to collect the
Customer Facility Charge from its customers in the amount established for collection by County,
Concessionaire shall nonetheless be liable to County for payment of the Customer Facility Charge
proceeds that should have been collected. If Concessionaire fails to remit any Customer Facility
Charge proceeds to County, Concessionaire also shall be liable to County for payment of the
Customer Facility Charge proceeds that should have been remitted. Concessionaire further
acknowledges and agrees that County shall be entitled to the specific enforcement of the provisions
of this Section 40) and waives any defense it may have to a lawsuit brought by County or any
other party in interest for Concessionaire's specific performance of its obligations hereunder.
Concessionaire agrees that(i) Customer Facility Charge proceeds are not income, revenue
or any other asset of Concessionaire; (ii) Concessionaire has no ownership or property interest in
such Customer Facility Charge proceeds; and (iii) Concessionaire hereby waives any claim to a
possessory or ownership interest in Customer Facility Charge proceeds. Concessionaire agrees
that it holds such Customer Facility Charge proceeds in trust for the benefit of County, and that
County(or a trustee on its behalf)has complete possessory and ownership rights to such Customer
Facility Charge proceeds. Consistent with the nature of the Customer Facility Charge proceeds as
funds held in trust for County, Concessionaire shall separately account, on its books and records, a
for the Customer Facility Charge proceeds collected by it. Notwithstanding the foregoing, in the
event that either (a) it is determined that Concessionaire must, as a matter of law, establish a
separate account into which all Customer Facility Charge proceeds must be deposited, or (b) it is
determined,by a court of competent jurisdiction,that the failure to maintain the Customer Facility
Charge proceeds in a separate account imperils the trust nature of the relationship created by this
Section 40) and potentially subjects any Customer Facility Charge proceeds held by
Concessionaire to a claim (or potential claim) by Concessionaire's creditors, whether in
bankruptcy or otherwise,then, in that event, County shall have the right to require Concessionaire
to establish a separate account into which all collected Customer Facility Charge proceeds shall
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K.6.b
be deposited and all interest (if any) on the Customer Facility Charge proceeds held by
Concessionaire shall inure to the benefit of, and be payable to, County.
Concessionaire shall remit the Customer Facility Charge proceeds held by Concessionaire
to County on a monthly in arrears basis on or before the first day of each calendar month following
the month in which the Customer Facility Charge proceeds were collected; provided, however, in
the event it is determined that Concessionaire must, as a matter of law,remit the Customer Facility
Charge proceeds more frequently, Concessionaire shall remit such funds with such frequency as
required, but Concessionaire shall not otherwise be required to report or reconcile the amounts
remitted other than on a monthly in arrears basis on or before the first day of each month.
Concessionaire shall remit the Customer Facility Charge proceeds by electronic funds transfer or
other means specifically approved by County in writing. When remitting such Customer Facility 0
Charge proceeds,Concessionaire shall report and reconcile the Customer Facility Charge proceeds
remitted by it on a form required by County and shall submit such other and further information
as may reasonably be necessary for County to determine any matter related to the Customer 0
Facility Charge proceeds.
Concessionaire shall maintain records and controls that are sufficient to demonstrate the
correctness of the Customer Facility Charge proceeds collected by Concessionaire and the amount M
of Customer Facility Charge proceeds paid to County. Such records shall be maintained in
accordance with, and subject to inspection and audit as set forth in Article 6 of this Agreement.
(k) Security Options. To provide security for rents, charges and payments required
hereunder, Concessionaire will comply with either of the following two options and maintain such
security in effect during the term of this Agreement:
i. Concessionaire will post with the County a separate Concession Bond to be w
maintained throughout the term of this Agreement in an amount approximately equal to the fees
and charges payable to the County hereunder for a period of three months, which shall equal
$14,730.00. Such bond will be issued by a surety company acceptable to the County and
authorized to do business in the State of Florida, and will be in a form and content satisfactory to
County;
OR
ii. Concessionaire will deliver to County a separate irrevocable letter of credit
drawn in favor of County upon a bank satisfactory to County and which is authorized to do ti
business in the State of Florida. Said irrevocable letter of credit will be in an amount equal to the
estimated fees and charges payable to County hereunder for a period of three months which shall
equal $14,730.00.
(1) Satisfactory Performance. Any release of liability of the surety bond or irrevocable
letter of credit required pursuant to Article 4 (f) above will be conditioned on the satisfactory
performance of all terms, conditions, and covenants contained herein throughout the entire term
of this Agreement and continue one year thereafter. Notwithstanding the above, these security E
requirements will at all times be current. Upon termination of this Agreement, the release of
liability of the surety bond or irrevocable letter of credit will not occur until the County has
successfully conducted an audit in accordance with Article 6 here of and Concessionaire has paid
Authority all amounts due and owing in full.
5. Definition of Gross Revenues - As used herein, the term "gross revenues" shall
mean the total charges for time, mileage, any and all insurance coverage charged to the renter, any
and all fees, plans, charges or surcharges, services or products of any kind whatsoever including
Packet Pg. 1911
K.6.b
but not limited to roadside service fees, road side service plans, drop off fees, fuel fees, received
or receivable,whether by cash or credit,before any federal, state or local tax and after any discount
specifically shown on the car rental agreement for the rental of all motor vehicles by the
Concessionaire to customers picked up at the Airport for and in connection with the rental of a
motor vehicle regardless of where the payment is made or where the vehicle is returned. It is the
intent of the County that the definition of gross revenues be construed as broadly as permitted by
law and that the only exclusions to the definition of gross revenues shall be CFC fees and state,
federal and local taxes. The Concessionaire for the purpose of its concession rentals shall report
all income,both cash and credit,in a monthly gross revenues statement submitted with its payment.
Concession Recovery Fee. County will allow Concessionaire to charge its customers a
proportionate share of the concession fee paid by Concessionaire to County based on a percentage 0
(not to exceed 11.11%) of all items that fall within the Definition of Gross Revenues as defined in
Section 5, so long as Concessionaire meets ALL of the following conditions:
(a) Fee shall be titled "Concession Recovery Fee". 0
(b) Fee shall not be included, associated with, or implied as a tax on the customer invoice,
(c) Fee shall not be identified, implied, or referred to as a tax or any County-imposed
charge by anyone employed by or associated with Concessionaire, including counter
personnel and reservation agents.
6. Accounting Procedures - The Concessionaire shall keep records of all sales and
revenues, whether for cash or credit, whether collected or not from its operations in a manner
generally accepted as standard to the automobile rental industry located on airports.
Concessionaire agrees to operate its business upon the Airport so that a duplicate rental agreement
w
invoice, serially pre-numbered, shall be issued for each sale or transaction whether for cash or
credit. Concessionaire further agrees that it will make available to Monroe County, a full and
complete book of accounts and other records required by the County to provide a true account of
all revenues pertaining to its operations under the provisions hereof. The County, acting through
the Monroe County Clerk of Courts or other authorized representative, shall have the right to
inspect and audit the Concessionaire's books of accounts and other records directly generated at 0
the Airport office or otherwise pertaining directly to this Agreement. Knowingly furnishing the
County a false statement of its gross sales under the provision hereof will constitute a default by ti
the Concessionaire of this Agreement and the County may, at its option, declare this Agreement
terminated. The Concessionaire 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 Concessionaire's controller
sufficient time to schedule said presence.
7. Investment by the Concessionaire - All leasehold improvements and their titles
shall vest immediately in Monroe County upon their acceptance by the County. Furniture,
furnishings, fixtures and equipment will remain the personal property of Concessionaire and may
be removed upon the termination of the agreement, provided all of its accounts payable to the
County are paid at that time.
Leasehold improvements shall include, but not be limited to, any installation of walls,
partitions, doors and windows, any electrical wiring, panels, conduits, service connections,
receptacles or lighting fixtures attached to walls, partitions, ceilings or floor, all interior finish to
floors, walls, doors, windows or ceilings; and all floor treatments or coverings, other than
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K.6.b
carpeting, that is affixed to floors; sanitary disposal lines and sinks, commodes, and garbage
disposal units; all heating, air treatment or ventilating distribution systems, including pipes, ducts,
vent hoods, air handling units and hot water generators; and all refrigerator rooms or vaults and
refrigerated waste rooms including refrigeration or ventilating equipment included with same.Any
furniture, fixtures, equipment, carpeting and draperies not classified as Leasehold improvements
above shall be the personal property of the Concessionaire.
8. Concessionaire Improvements - Concessionaire 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 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 Concessionaire 0
and may be removed by Concessionaire prior to or within a reasonable time after expiration of the
term of this Agreement; provided, however, that Concessionaire shall repair any damage to the
premises caused by such removal. The failure to remove trade fixtures or other personal property 0
shall not constitute Concessionaire a hold-over, but all such property not removed within ten (10)
days after Concessionaire receives a written demand for such removal shall be deemed abandoned
and thereupon shall be the sole property of the Lessor.
9. Damage and Injury-Concessionaire covenants that it and all of its agents, servants,
employees, and independent Concessionaires will use due care and diligence in all of its activities
and operations at the Airport and the Concessionaire hereby agrees to repay or be responsible to
Monroe County for all damages to the property of the County which may be caused by an act or
omission on the part of the Concessionaire, its agents, servants, or employees and except to the
w
extent that such damage to the property is covered by insurance required to be provided by the
Concessionaire under any provision hereof, or is provided by Monroe County (except subrogation
rights of the County's carrier), Concessionaire shall pay, on behalf of the County, all sums which
the County shall become obligated to pay by reason of the liability, if any, imposed by law upon
the County for damages because of bodily injury, including damages for care and loss of service,
including death at any time resulting from bodily injury and because of injury to/or destruction of 0
property, including the loss or use thereof which may be caused by or result from any of the
activities, omission, or operations of the Concessionaire, its agents, servants, or employees on the ti
Airport. Notwithstanding the above,the County shall have the right to bill Lessee directly for any
damaged determined to have been caused by Lessee's employees to the Leased Premises.
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10. Other Development of Airport - Monroe County reserves the right to further
develop or improve the landing area of the Airport as its sees fit,regardless of the desires or views
of the Concessionaire, and without interference or hindrance; provided, however, that in no event
can the County deprive the Concessionaire of reasonable and direct routes of ingress and egress to E
the premises.
11. Terminal Area Planning - Concessionaire acknowledges that Monroe County has
Master Plans including terminal area revisions. Concessionaire hereby agrees to cooperate to the
fullest with the County, especially in those areas of terminal improvements, which may at some
time cause relocation of rental car facilities.
12. Concessionaire's Obligations_ - Concessionaire covenants and agrees:
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K.6.b
(a) to pay the rent and other charges herein reserved at such times and places as the
same are payable;
(b) to make no alterations, additions or improvements to the demised premises without
the prior written consent of Lessor, which consent shall not be unreasonably withheld;
(c) to keep and maintain the demised premises in good condition, order and repair
during the term of this Agreement,to make all repairs to the interior of all of its assigned premises,
the fixtures and equipment therein, and appurtenances thereto, and to surrender the same upon the
expiration of the term in the condition in which they are required to be kept, reasonable wear and
tear and damage by casualty,not caused by Concessionaire's negligence,riot and civil commotion,
excepted;
(d) to observe and comply with any and all requirements of the constituted public 0
authorities and with all federal, state or local statutes, ordinances, regulations, and standards
applicable to Concessionaire or its use of the demised premises, including,but not limited to,rules
and regulations promulgated from time to time by or at the direction of Lessor for administration 0
of the Airport;
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(e) to pay all taxes assessed or imposed by any governmental authority upon any
building or other improvements erected or installed on the demised premises during the term of
this Agreement; and
(f) to control the conduct, manner and appearance of its officers, agents, and
employees,and,in the event of any objection from the Director of Airports concerning the conduct,
manner or appearance of such persons, Concessionaire shall forthwith take steps necessary to
remove the cause of the objection.
13. County's Inspection and Maintenance — The County and its authorized officers,
employees, agents, Concessionaires, sub Concessionaires and other representatives shall have the
right to enter upon the demised premises for the following purposes:
(a) to inspect the demised premises at reasonable intervals during regular business hours
(or at any time in case of emergency) to determine whether Concessionaire has complied and is
complying with the terms and conditions of this agreement with respect thereto; or 0
(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 ti
demised premises, and to construct, maintain, repair, relocate and remove such facilities in the
future if necessary to carry out the Master Plan of development of the Airport;provided, however,
that said work shall in no event disrupt or unduly interfere with the operations of Concessionaire, <
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 demised premises by Lessor, Concessionaire or third
parties, as a result of the exercise by Lessor of its rights hereunder, and the repair of all damage to E
such fixed improvements caused thereby, shall be borne solely by Lessor.
14. Indemnification/Hold Harmless - Notwithstanding any minimum insurance
requirements prescribed elsewhere in this Agreement, Concessionaire shall defend, indemnify and
hold the County and the County's elected and appointed officers and employees harmless from and
against(i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings,
appellate proceedings, or other proceedings relating to any type of injury (including death), loss,
damage, fine, penalty or business interruption, and (iii) any costs or expenses (including, without
Packet Pg. 1914
K.6.b
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
Concessionaire or any of its employees, agents, Concessionaires or other invitees during the term
of this Agreement, (B) the negligence or willful misconduct of Concessionaire or any of its
employees, agents, Concessionaires or other invitees, or(C) Concessionaire's default in respect of
any of the obligations that it undertakes under the terms of this Agreement, 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, 0
Concessionaires or invitees (other than Concessionaire). Insofar as the claims, actions, causes of
action,litigation,proceedings,costs or expenses relate to events or circumstances that occur during
the term of this Agreement,this Section will survive the expiration of the term of this lease or any 0
earlier termination of this Agreement.
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15. General Insurance Requirements - Prior to the commencement of work governed
by this Agreement,the Concessionaire shall obtain, at his/her own expense, insurance as specified
below. The Concessionaire will ensure that the insurance obtained will extend protection to all
Concessionaires engaged by the Concessionaire.
The Concessionaire will not be permitted to commence work governed by this Agreement
(including pre-staging of personnel and material) until satisfactory evidence of the required
insurance has been furnished to the County as specified below. w
The Concessionaire shall maintain the required insurance throughout the entire term of this
Agreement and any extensions specified in any attached schedules. Failure to comply with this
provision may result in the immediate suspension of all activities conducted by the Concessionaire
and its Concessionaires until the required insurance has been reinstated or replaced.
The Concessionaire shall provide, to the County, as satisfactory evidence of the required
insurance, either a Certificate of Insurance or a certified copy of the actual insurance policy. The 0
County, at its sole option, has the right to request a certified copy of any or all insurance policies
required by this Agreement. ti
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. The acceptance and/or approval of the Concessionaire's <
insurance shall not be construed as relieving the Concessionaire from any liability or obligation
assumed under this Agreement or imposed by law.
The Monroe County Board of County Commissioners, its employees and officials will be
included as "Additional Insured" on all policies, except for Workers' Compensation.
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
approved by Monroe County Risk Management.
a) General Liability Insurance - Coverage shall be maintained throughout the
life of this Agreement and include, as a minimum: Premises Operations,Products and Completed
Operations, Blanket Contractual Liability, Personal Injury Liability and Expanded Definition of
Property Damage. The minimum limits acceptable shall be: $1,000,000 Combined Single Limit
(CSL).
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K.6.b
If split limits are provided, the minimum limits acceptable shall be: $500,000 per
Person, $1,000,000 per Occurrence, $100,000 Property Damage.
An Occurrence Form policy is preferred. If coverage is provided on a Claims Made
policy, its provisions should include coverage for claims filed on or after the effective date of this
Agreement. In addition,the period for which claims may be reported should extend for a minimum
of twelve (12) months following the acceptance of work by the County.
b) Workers' Compensation- Prior to the commencement of work governed by
this Agreement, the Concessionaire shall obtain Workers' Compensation Insurance with limits
sufficient to respond to the applicable state statutes. In addition, the Concessionaire shall obtain
Employers' 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 0
employee.
Coverage shall be maintained throughout the entire term of this Agreement and
shall be provided by a company or companies authorized to transact business in the state of Florida. 0
If the Concessionaire has been approved by the Florida's Department of Labor, as
an authorized self-insurer, the County shall recognize and honor the Concessionaire's status. The
Concessionaire may be required to submit a Letter of Authorization issued by the Department of
Labor and a Certificate of Insurance, providing details on the Concessionaire's Excess Insurance
Program.
If the Concessionaire participates in a self-insurance fund,a Certificate of Insurance
will be required. In addition, the Concessionaire may be required to submit updated financial
statements from the fund upon request from the County.
c) Vehicle Liability - Recognizing that the work governed by this Agreement
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requires the use of vehicles, the Concessionaire,prior to the commencement of work, shall obtain
Vehicle Liability Insurance. Coverage shall be maintained throughout the life of this Agreement
and include, as a minimum, liability coverage for: Owned, Non-Owned, and Hired Vehicles. The
minimum limits acceptable shall be: $1,000,000 Combined Single Limit(CSL). If split limits are
provided, the minimum limits acceptable shall be: $ 500,000 per Person, $1,000,000 per
Occurrence, $100,000 Property Damage. 0
d) Any deviations from these General Insurance Requirements must be
requested in writing on the County prepared form entitled "Request for Waiver of Insurance ti
Requirements" and be approved by Monroe County Risk Management.
e) Concessionaire shall carry fire and extended coverage insurance, if
obtainable, on all fixed improvements erected by Concessionaire on the demised premises to the <
full insurable value hereof, it being understood and agreed that for purposes hereof the term "full
insurable value"shall be deemed to be that amount for which a prudent owner in like circumstances
would insure similar property, but in no event an amount in excess of Concessionaire's original
cost of constructing said fixed improvements. E
16. Non-Discrimination - Concessionaire and County 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 discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court order.
Concessionaire and County agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VII of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination in
Packet Pg. 1916
K.6.b
employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the
Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which
prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as
amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107)which prohibits discrimination
on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as
amended,relating to nondiscrimination on the basis of drug abuse; 6)The Comprehensive Alcohol
Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as
amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public
Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended,
relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil 0
Rights Act of 1968 (42 USC s.3601 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. 12101
Note), as may be amended from time to time, relating to nondiscrimination on the basis of 0
disability; 10)Monroe County Code, Chapter 14, Article II,which prohibits discrimination on the
basis of race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender
identity or expression, familial status or age; 11) Any other nondiscrimination provisions in any
Federal or state statutes which may apply to the parties hereto, or the subject matter of, this
-�
Agreement. �
17. Rules and Regulations-Concessionaire agrees to observe and obey,during the term
of this Agreement, all laws, ordinances, rules and regulations, as the same may be amended from
time to time, promulgated and enforced by the County and by any other proper authority having
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jurisdiction over the conduct of the operations at the Airport.
18. Furnishing of Service - The Concessionaire further covenants and agrees that he
will, at all times during the continuance of the term hereby demised and any renewal or extension
thereof, conduct, operate, and maintain for the benefit of the public, the rental car concession
provided for and described herein, and all aspects and parts and services thereof as herein defined 0
and set forth, and will make all such facilities and services available to the public and that he will
devote his best efforts for the accomplishment of such purposes. ti
19. United States' Requirements - This lease shall be subject and subordinate to the
provisions of any existing or future agreement between the Lessor and the United States relative <
to the operation or maintenance of the Airport, and execution of which has been or may be required
by the provision of the Federal Airport Act of 1946, as amended, or any future act affecting the
operation or maintenance of the Airport, provided, however, that Lessor shall, to the extent
permitted by law, use its best efforts to cause any such agreement to include provisions protecting E
and preserving the rights of Concessionaire in and to the demised premises and improvements
thereon, and to compensation for the taking thereof, and payment for interference therewith and
for damage thereto, caused by such agreement or by actions of the Lessor or the United States
pursuant thereto.
20. Right to Amend. In the event that the Federal Aviation Administration or its
successor requires modifications or changes in this Agreement, or otherwise, Concessionaire
agrees to consent to such amendments, revisions, supplements, or deletions of any of the terms,
Packet Pg. 1917
K.6.b
conditions, or requirements of this Agreement, as may be reasonably required.
21. County's Covenants - The County covenants and agrees that:
(a)County is the lawful owner of the property demised hereby,that it has lawful possession
thereof, and has good and lawful authority to execute this Agreement.;
(b) throughout the term hereof Concessionaire may have, hold and enjoy peaceful and
uninterrupted possession of the premises and rights herein leased and granted, subject to
performance by County of its obligations herein.
(c) Concessionaire,upon payment of the fees and charges and all other payments to be paid
by Concessionaire under this Agreement, and upon observing and keeping the agreements and
covenants of this Agreement on the part of Concessionaire to be observed and kept, shall lawfully c
and quietly hold, occupy, and enjoy the Premises without undue interference from County.
�C
22. Cancellation by County 0
22.1 If cancellation is required to accommodate future Airport growth, or Cancellation is
required due to F.A.A. requirements. County shall provide Concessionaire 90 days' notice. The
County, at County expense, shall relocate Concessionaire to an alternate site in accordance with
the Florida Keys Marathon International Airport ALP. If an alternate site at the airport is not
available, the County will purchase the Concessionaire's leasehold at fair market appraisal value.
22.2 If any of the following events occur, the Concessionaire shall be deemed to be in
default of its obligations under this Agreement,in which case County shall give the Concessionaire
notice in writing to cure such default within thirty (30) days, or the concession will be
automatically canceled at the end of that time and such cancellation will be without forfeiture,
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waiver, or release of the County's right to any such of money due pursuant to this Agreement for
the full term hereof:
(a) if Concessionaire shall make a general assignment for the benefit of creditors, or file
a voluntary petition in bankruptcy or a petition or answer seeking its reorganization or the
readjustment of its indebtedness under the Federal Bankruptcy Laws or any other similar law or
statute of the United States or any state, or government,or consent to the appointment of a receiver, 0
trustee or liquidator of all or substantially all of the property of Concessionaire;
(b) if any order or decree of a court of competent jurisdiction, Concessionaire shall be ti
adjudged bankrupt, or an order shall be made approving a petition seeking its reorganization, or
the readjustment of its indebtedness under the Federal Bankruptcy Laws of any law or statute of
the United States or any state, territory, or possession thereof or under the law of any other state, <
nation, or government,provided,that if such judgment or order be stayed or vacated within ninety
(90) days after the entry thereof, any notice of cancellation given shall be and become void and of
no effect;
(c) if by or pursuant to any order or decree of any court or governmental authority,board
agency or officer having jurisdiction, a receiver, trustee or liquidator shall take possession or
control of all or substantially all of the property of Concessionaire for the benefit of creditors,
provided, that if such order or decree be stayed or vacated within sixty (60) days after the entry
thereof or during such longer period in which Concessionaire diligently and in good faith contests
the same, any notice of cancellation shall be and will become null, void and of no effect;
(d) if Concessionaire fails to pay the rental charges or other money payments required by
this instrument and such failure shall not be remedied within thirty (30) days following receipt by
Concessionaire of written demand from County to do so;
Packet Pg. 1918
K.6.b
(e) if Concessionaire defaults in fulfilling any of the terms, covenants, or conditions
required of it hereunder and fails to remedy said default within thirty (30) days following receipt
by Concessionaire of written demand from County to do so, or if, by reason of the nature of such
default, the same cannot be remedied within thirty (30) days following receipt by Concessionaire
of written demand from Lessor to do so, then, if Concessionaire shall have failed to commence
the remedying of such default within thirty (30) days following such written notice, or having so
commenced, shall fail thereafter to continue with diligence the curing thereof,
(f) if the Concessionaire shall desert or abandon the premises for seven (7) consecutive
calendar days;
(g) if the concession or the estate of the Concessionaire hereunder shall be transferred,
subleased, or assigned in any manner except in the manner as herein permitted; 0
(h) if the Concessionaire shall fail to pay any validly imposed tax; assessments;utility rent,
rate or charge; or other governmental imposition; or any other charge or lien against the premises
leased hereunder within any grace period allowed by law, or by the governmental authority 0
imposing the same, during which payment is permitted without penalty or interest(In complying
with this subparagraph the Concessionaire does not waive his right to protest such tax, assessment,
rent, rate or charge); or
(i) if the Concessionaire fails to provide service as required by specifications for five days
during any thirty day period, unless such failure is caused by an act of God, national emergency
or a labor strike of which the Concessionaire has given the County immediate notice, the
concession may be canceled within thirty (30) days of the giving of notice by the County and the
Concessionaire shall not be permitted to cure such default.
23. Additional Remedies - In the event of a breach or a threatened breach by
Concessionaire of any of the agreements,terms, covenants and conditions hereof,the County shall
have the right of injunction to restrain said breach and to invoke any remedy allowed by law or
equity, as if specific remedies, indemnity or reimbursement were not herein provided. The rights N
and remedies given to Monroe County are distinct, separate and cumulative, and no one of them,
whether or not exercised by the County, shall be deemed to be in exclusion of any of the others 0
herein or by law or in equity provided. No receipt of monies by Monroe County from
Concessionaire after the cancellation or termination hereof shall reinstate, continue or extend the ti
term, or affect any notice previously given to Concessionaire, or operate as a waiver of the right
of the County to enforce the payment of rentals and other charges then due or thereafter falling
due, or operate as a waiver of the right of the County to recover possession of the premises by suit <
or otherwise. It is agreed that, after the service of notice to cancel or terminate as herein provided,
or after the commencement of any proceeding, or after a final order for possession of the premises,
the County may demand and collect any monies due, or thereafter falling due, without in any
manner affecting such notice, proceeding, or order; and any and all such monies and occupation E
of the premises, or at the election of the County on account of Concessionaire's liability hereunder.
The parties agree that any litigation arising out of the agreement shall be brought in Monroe
County, Florida, and determined under the laws of the State of Florida. The prevailing party shall
pay any reasonable attorney's fees incurred by the other party in the event of litigation.
Concessionaire shall pay any reasonable attorney's fees incurred by the County in the enforcement
of the agreement other than through litigation, including but not limited to all costs and attorney's
fees in collecting, bankruptcy or reorganization proceedings, or appeal of any such matter.
Packet Pg. 1919
K.6.b
24. Cancellation by Concessionaire - Concessionaire shall have the right upon written
notice to Lessor,to cancel this agreement in its entirety upon or after the happening of one or more
of the following events, if said event or events is then continuing:
(a) the issuance by any court of apparent competent jurisdiction of an injunction, order,
or decree preventing or restraining the use by Concessionaire of all or any substantial part of the
demised premises or preventing or restraining the use of the Airport for usual airport purposes in
its entirety, or the use of any part thereof which may be used by Concessionaire and which is
necessary for Concessionaire's operations on the Airport, which remains in force unvacated or
unstayed for a period of at least one hundred twenty (120) days;
(b) the default of Lessor in the performance of any of the terms, covenants or conditions
required of it under this Agreement and the failure of Lessor to cure such default within a period c
of thirty (30) days following receipt of written demand from Concessionaire to do so, except that
if by reason of the nature of such default, the same cannot be cured within said thirty (30) days,
then Concessionaire shall have the right to cancel if Lessor shall have failed to commence to 0
remedy such default within said thirty (30) days following receipt of such written demand, or
having so commenced, shall fail thereafter to continue with diligence the curing thereof,
(c) the inability of Concessionaire to conduct its business at the Airport in substantially M
the same manner and to the same extent as theretofore conducted, for a period of at least ninety
(90) days, because of(i) any law, (ii) any rule, order,judgment, decree, regulation, or other action
or non-action of any Governmental authority,board, agency or officer having jurisdiction thereof,
(d) if the fixed improvements placed upon the demised premises are totally destroyed or
so extensively damaged that it would be impracticable or uneconomical to restore the same to their
previous condition as to which Concessionaire is the sole judge. In any such case, the proceeds of
insurance, if any, payable by reason of such loss shall be apportioned between Lessor and
Concessionaire, Lessor receiving the same proportion of such proceeds as the then expired portion
of the lease term bears to the full term hereby granted, and Concessionaire receiving the balance
thereof. If the damage results from an insurable cause and is only partial and such that the said
fixed improvements can be restored to their prior condition within a reasonable time, then
Concessionaire shall restore the same with reasonable promptness, and shall be entitled to receive 0
and apply the proceeds of any insurance covering such loss to said restoration, in which event this
agreement shall not be canceled but shall continue in full force and effect, and in such case any ti
excess thereof shall belong to Concessionaire;
(e) in the event of destruction of all or a material portion of the Airport or the Airport
facilities or in the event that any agency or instrumentality of the United States Government, or <
any state or local government occupies the Airport or a substantial part thereof, or in the event of
military mobilization or public emergency wherein there is a curtailment, either by executive
decree or legislative action, of normal civilian traffic at the Airport or the use of motor vehicles or
airplanes by the general public, or a limitation of the supply of automobiles or of automobile fuel, E
supplies, or parts for general public use, and any of said events results in material interference with
Concessionaire's normal business operations or substantial diminution of Concessionaire's gross
revenue from its automobile rental concession at the Airport, continuing for a period in excess of
fifteen (15) days;
(f) in the event that at any time prior to or during the term of this Agreement,
Concessionaire's presently existing right to operate an automobile rental concession at the Airport
is withdrawn, canceled, terminated, or not renewed by County;
Packet Pg. 1920
K.6.b
(g) the taking of the whole or any part of the demised premises by the exercise of any
right of condemnation or eminent domain;
(h) if at anytime during the basic term hereof or the option periods,the Airport or terminal
building is removed to a place more than three (3)road miles in distance from its present location.
(i) If at anytime Concessionaire desires to terminate the lease without cause, and provides
thirty (30) days prior written notice to the County, and pays two (2) month's rent and 10% of the
equivalent of two (2) month's gross revenues; or if Concessionaire desires to terminate the lease
without cause and provides no notice or less than thirty (30) day's written notice, and pays three
(3) month's rent and 10% of the equivalent of three (3) month's gross revenues. For purposes of
this paragraph, gross revenues shall be based on the immediately preceding two months or three
months, respectively, depending upon whether thirty days' notice is given. 0
2-
25. Concessionaire's Reserved Rights _-Nothing contained in this Agreement shall limit-Nothing contained in this Agreement shall limit
or restrict in any way such lawful rights as Concessionaire may have now or in the future to 0
maintain claims against the federal, state, or municipal government, or any department or agency
thereof, or against any interstate body, commission or authority, or other public or private body
exercising governmental powers, for damages or compensation by reason of the taking or
occupation, by condemnation or otherwise, of all or a substantial part of the demised premises,
including fixed improvements thereon, or of all or a material part of the Airport with adverse
effects upon Concessionaire's use and enjoyment of the demised premises for the purposes
hereinabove set forth; and Lessor hereby agrees to cooperate with Concessionaire in maintenance
of any just claim of said nature, and to refrain from hindering, opposing, or obstructing the
maintenance thereby by Concessionaire.
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26. Assignment and Subletting - The premises may not be sublet, in whole or in part,
and Concessionaire shall not assign this agreement without prior written consent of Lessor, nor
permit any transfer by operation of law of Concessionaire's interest created hereby, other than by
merger or consolidation.
0
27. Other Use- Concessionaire shall not use or permit the use of the demised premises
or any part thereof for any purpose or use other than an authorized by this Agreement. ti
28. Liens - Concessionaire shall cause to be removed any and all liens of any nature
arising out of or because of any construction performed by Concessionaire or any of its <
Concessionaires or sub Concessionaires upon the demised premises or arising out of 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 Concessionaire.
E
29. Time - In computing Concessionaire's term within which to commence
construction of any fixed improvements or to cure any default as required by this Lease,there shall
be excluded all delays due to strikes, lockouts, acts of God and the public enemy, or by order or
direction or other interference by any municipal, State, Federal or other governmental department,
board, or commission having jurisdiction, or other causes beyond Concessionaire's control.
30. Paragraph Headings - Paragraph headings herein are intended only to assist in
reading identification and are not in limitation or enlargement of the content of any paragraph.
Packet Pg. 1921
K.6.b
31. Notices -Any notice of other communication from either parry to the other pursuant
to this agreement is sufficiently given or communicated if sent by registered mail, with proper
postage and registration fees prepaid, addressed to the party for whom intended, at the following
addresses:
For County: For Concessionaire:
County Administrator KWJA, Inc. d/b/a Key West Adventures
1100 Simonton Street Attn: Thomas Crane
Key West, FL 33040 3424 N. Roosevelt Blvd.
And Key West, Florida 33040 0
Senior Director of Airports
3491 So. Roosevelt Blvd.
Key West, FL 33040 0
And
Monroe County Attorney's Office
1111 12th St., Suite 408
Key West, Fl. 33040
or to such other address as the party being given such notice shall from time to time designate to
the other by notice given in accordance herewith.
32. Severability - If any term, covenant, condition or provision of this Agreement (or w
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 0
Agreement. The Lessor and Concessionaire agree to reform the Agreement to replace any stricken
provision with a valid provision that comes as close as possible to the intent of the stricken ti
provision.
33. Binding Effect - The terms, covenants, conditions, and provisions of this
Agreement shall bind and inure to the benefit of the County and Concessionaire and their
respective legal representatives, successors, and assigns
34. 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.
35. Adjudication of Disputes or Disagreements - County and Concessionaire agree that
all disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within 30 days
after the first meet and confer session, the issue or issues shall be discussed at a public meeting of
the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction
Packet Pg. 1922
K.6.b
of the parties, then any party shall have the right to seek such relief or remedy as may be provided
by this Agreement or by Florida law.
36. Cooperation - In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution,performance, or breach of this Agreement,
County and Concessionaire 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 Concessionaire
specifically agree that no party to this Agreement shall be required to enter into any arbitration
proceedings related to this Agreement.
0
37. Code of Ethics -County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and employees as
delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or 0
acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information. s
38. No Solicitation/Payment- The County and Concessionaire warrant that, in respect
to itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it,to solicit or secure this Agreement and that it has not paid or agreed
to pay any person, company, corporation, individual, or firm, other than a bona fide employee
working solely for it,any fee, commission,percentage, gift,or other consideration contingent upon
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or resulting from the award or making of this Agreement. For the breach or violation of the
provision, the Concessionaire agrees that the County shall have the right to terminate this
Agreement without liability and, at its discretion, to offset from monies owed, or otherwise
recover, the full amount of such fee, commission,percentage, gift, or consideration. Ch
39. Public Records Compliance- Concessionaire must comply with Florida public
records law, including but not limited to Chapter 119, Florida Statutes and Section 24 of Article I
of the Constitution of Florida. The County and Concessionaire shall allow and permit reasonable ti
access to, and inspection of, all documents, records, papers, letters or other "public record"
materials in its possession or under its control subject to the provisions of Chapter 119, Florida
Statutes, and make or received by the County and Concessionaire in conjunction with the
Agreement and related Agreement performance. The County shall have the right to unilaterally
cancel this Agreement upon violation of this provision by Concessionaire. Failure of the
Concessionaire to abide by the terms of this provision shall be deemed a material breach of this
Agreement and the County may enforce the terms of this provision in the form of a court E
proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and
costs associated with that proceeding. This provision shall survive any termination or expiration
of this Agreement.
Concessionaires is encouraged to consult with its advisors about Florida Public Records
Law in order to comply with this provision.
Pursuant to F.S. 119.0701 and the terms and conditions of this Agreement, the
Concessionaire is required to:
Packet Pg. 1923
K.6.b
(a) Keep and maintain public records that would be required by the County to perform the
service.
(b) Upon receipt from the County's custodian of records, provide the County with a copy
of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in this subsection or as
otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public
record disclosure requirements are not disclosed except as authorized by law for the
duration of the Agreement term and following completion of the Agreement if the
Concessionaire does not transfer the records to the County.
(d) Upon completion of the Agreement,transfer at no cost,to the County all public records 0
in possession of the Concessionaire or keep and maintain public records that would be
required by the County to perform the service. If the Concessionaire transfer all public
records to the county upon completion of this Agreement, the Concessionaire shall 0
destroy any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. If the Concessionaire keeps and maintain
public records upon completion of the Agreement, the Concessionaire shall meet all
applicable requirement for retaining public records. All records stored electronically
must be provided to the County upon requires from the County's custodian of records,
in a format that is compatible with the information technology systems of the County.
(e) A request to inspect or copy public records relating to a County contact must be made
directly to the County, but if the County does not possess the requested records, the
County shall immediately notify the Concessionaire of the request, and the
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Concessionaire Must provide the records to the County or allow the records to be
inspected or copied within a reasonable time.
c
If the Concessionaire does not comply with the County's request for records, the County shall
enforce the public records contract provisions in accordance with the contract,notwithstanding the
County's option and right to unilaterally cancel this contract upon violation of this provision by 0
the Concessionaire. A Concessionaire who fails to provide the public records to the County or
pursuant to a valid public records request within a reasonable time may be subject to penalties ti
under Section 119.10, Florida Statutes.
Concessionaire shall not transfer custody,release, alter, destroy or otherwise dispose of any public
records unless or otherwise provided in this provision or as otherwise provided by law.
IF THE CONCESSIONAIRE HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONCESSIONAIRE'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS, BRIAN BRADLEY AT (305) 292-3470, BRADLEY-
BRIAN@MONROECOUNTY-FL.GOV, MONROE COUNTY ATTORNEY'S
OFFICE, 1111 12th STREET, SUITE 408, KEY WEST, FL 33040.
Packet Pg. 1924
K.6.b
40. Non-Waiver of Immunity -Notwithstanding the provisions of Sec. 768.28, Florida
Statutes, the participation of the County and the Concessionaire 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.
41. Privileges and Immunities - All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the County, when performing their respective functions under 0
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. 0
c,
42. 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.
43. Non-Reliance by Non-Parties - No person or entity shall be entitled to rely upon
the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim
or entitlement to or benefit of any service or program contemplated hereunder, and the County and
the Concessionaire agree that neither the County nor the Concessionaire or any agent, officer, or
employee of either shall have the authority to inform, counsel, or otherwise indicate that any 0
particular individual or group of individuals, entity or entities, have entitlements or benefits under
this Agreement separate and apart, inferior to, or superior to the community in general or for the ti
purposes contemplated in this Agreement.
44. No Personal Liability-No covenant or agreement contained herein shall be deemed
to be a covenant or agreement of any member, officer, agent or employee of Monroe County in
his or her individual capacity, and no member, officer, agent or employee of Monroe County shall
be liable personally on this Agreement or be subject to any personal liability or accountability by
reason of the execution of this Agreement. E
45. Execution in Counterparts - This Agreement may be executed in any number of
counterparts, each of which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by singing any such counterpart.
Packet Pg. 1925
K.6.b
46. Mutual Review - This Agreement has been carefully reviewed by the
Concessionaire and the County,therefore this Agreement is not to be construed against either parry
on the basis of authorship.
47. County's Reserved Rights - Notwithstanding anything herein contained that may
be, or appear to be, to the contrary, it is expressly understood and agreed that the rights granted
under this Agreement are nonexclusive and the County herein reserves the right to grant similar
privileges to another Concessionaire or other Concessionaires at, or on other parts of the Airport.
e(
48. Airport Security
a) General. The federal Transportation Security Administration is the federal agency 0
primarily responsible for overseeing the security measures utilized by the airport owner pursuant
to the relevant provisions of Chapter 49, United States Code, and regulations adopted under the
authority of the Code, including but not limited to 49 CFR 1540, et seq. Violations of the statutes 0
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 s
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
w
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 Florida
Keys Marathon International Airport.
e) Inspection Authority. The airport tenant agrees to allow Transportation Security 0
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 ti
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 E
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,
Packet Pg. 1926
K.6.b
such determination and imposition of a civil penalty by TSA shall be considered a significant
breach of this Agreement.
(1). Minimum Violation. If the violation is the first or second violation attributed
to the airport tenant and is a civil penalty "minimum violation" as provided for in TSA's
Enforcement Sanction Guidance Policy, the airport tenant may cure the breach by paying to the
airport operator the total costs incurred by the airport operator, including any fines or penalties
imposed, in investigating, defending, mitigating, compromising, or taking of remedial measures
as may be agreed to by TSA, to include but not be limited to reasonable attorney's fees and costs
incurred in the investigation, defense, compromising, mitigation, or taking of remedial action
measures. If the violation is a third violation, or there are multiple violations in excess of two
violations, that is or are a civil penalty "minimum violation", the airport tenant shall pay to the 0
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 0
incurred in the investigation, defense, compromising, mitigation, or taking of remedial action
measures; and, further, the airport operator shall have the right to unilaterally cancel this
Agreement, such cancellation to be effective thirty calendar days after receipt by the airport tenant
of written notice of cancellation of this Agreement by the airport operator.
(2). Moderate Violation. If the violation is the first or second violation attributed to
the airport tenant and is a civil penalty"moderate violation"as provided for in TSA's Enforcement
Sanction Guidance Policy, the airport tenant may cure the breach by paying to the airport operator
the total costs incurred by the airport operator, including any fines or penalties imposed, in
investigating, defending, compromising, mitigating, or taking of remedial measures as may be
w
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 0
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 ti
investigating, defending, compromising, mitigating, or taking of remedial measures as may be
agreed to by TSA,to include but not be limited to reasonable attorney's fees and costs incurred in
the investigation, defense, compromising, mitigation, or taking of remedial action measures; and,
further, the airport operator shall have the right to unilaterally cancel this Agreement, such
cancellation to be effective thirty calendar days after receipt by the airport tenant of written notice
of cancellation of this Agreement by the airport operator.
(3). Maximum Violation. If the violation is the first violation attributed to the E
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
Packet Pg. 1927
K.6.b
required by the airport operator.The total cast 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 taping of remedial treasures as may be agreed to by TSA,to include
but not be limited to reasonable attorney's fees and costs incurred in the investigation, defense,
compromising,mitigation,or taking of remedial action measures;and,further,the airport operator
shall have the right to unilaterally cancel this Agreement, such cancellation to be effective thirty
calendar days after receipt by the airport tenant of written notice of cancellation of this Agreement
by the airport operator.
(4). Mitigation of Breach.TSA has a policy of forgoing civil penalty actions when o
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 o
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 2
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, m itigating, or taking of remedial measures as may
be agreed to by TSA,to include but not be limited to reasonable attorney's fees and costs incurred
in the investigation, defense, mitigation, or taking of remedial action measures. A violation >-
resulting in the issuance of a letter of correction shall not be considered to be a breach of this
Agreement by the airport tenant.
(5). Survival of Sub-Section. This sub-section 48.h) shall survive the cancellation
or termination of this Agreement and shall be in full force and effect. N
IN WITNESS WHEREOF,each party has caused this Agreement to be executed by a duly
authorized representative.
(SEAL) BOARD OF COUNTY COMMISSIONERS
ATTEST: KE"VIN MADOK., CLERIC OF MONROE COUNTY,FLORIDA
By: By:
As Deputy Clerk Mayor David Rice
CONCESSIONAIRE:
PC CO ATMfINEYIx.#e !
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} CVI= � KWJA, INC. deb/a KEY WEST
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ADVENT
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ASS[ TA i NTY ATTORNEY , 7
Gate 1/12/22 By:
Thomas Crane,President
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K.6.b
LOBBYING AND CONFLICT OF INTEREST CLAUSE
SWORN STATEMENT UNDER ORDINANCE NO.010-1990
MONROE COUNTY,FLORIDA
ETHICS CLAUSE
(Company)
... warrants that he/she/it has not employed, retained or otherwise had act on hislher/its,
behalf any farmer County officer or employee in violation of Section 2 of Ordinance No. Ol 0-
1990 or any County officer or employee in violation of Section 3 of Ordinance No. 0 0-1990.
For breach or violation of this provision the County may, in its discretion, terminate this
Agreement without liability and may also, in its discretion, deduct from the Agreement or
purchase price, or otherwise recover,the full amount of any fee,commission, percentage, gift,or e
consideration paid to the former County officer or employee".
l
(Signature)
Date; ,-w
STATE OF
SS:
COUNTY OF
Subscribed and sworn to (or affirrned) before me, by means oflEf physical presence or ® online
notarization, on (date) byy^y
(name of affiant). He/She is personally known to me or has produced
(type of identification)as identification.
WITNESS my haud and official seal in the County and State last aforesaid this
D� day of Y, 202
t k
LIC, STATO �LORI READEfl NOTARY Pt-rR 011
Notaq Public,Swe of 19odda lily Commission Expires: D1
Comm,my sxPires Jan.6,2025 Commission No.
33
Packet Pg. 1931
K.6.b
NON-COLLUSION AFFIDAVIT
I, `Wt3AA-15, 9- of the city of KON U1e5-r
according to law on my oath, and under penalty of perjury, depose and say that:
l. l am. @ cew r
of the firm of - 5 tN C
the bidder making the Response for the project described in the Request for Qualifications for:
and I executed the said Response with full authority to do so: o
2. The prices in this bid have been arrived at independently without collusion,
consultation, communication, or agreement for the purpose of restricting competition, as to any
matter relating to such prices with any other bidder or with any competitor;
. Unless otherwise required by law, the prices which have been quoted in this bid have
not been knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder
prior to bid opening,directly or indirectly,to any other bidder or to any competitor;
4. No attempt has been made or will be made by the bidder to induce any other person,
partnership or corporation to submit, or not to submit, a bid for the purpose of restricting
competition; and
5. The statements contained in this affidavit are true and correct, and matte with full
knowledge that Monroe County relies upon the truth of the statements contained in this
affidavit in awardin o tract for said project.
+} W
(Signature of Respondent) (hate)
=N
STATE OF i }
}SS: c
COUNTY OF }
Subscribed and sworn to (or affirmed before me, by means o ph si al presence or Q online
notarization, on (date) by (name of
want). He/She is personally known to me or has
produced (type of identification) as
identification.
my h d and official seal in the County and State last aforesaid this
1TNESS
day of ,202A-,
NOTAR PUBLIC,STATE OF
_ MY Commission Expires: I 1 .('Cx-
Re- l.oRt READ— v ER Commission No.
a Notary Public,State of Fda
Commission#HH 78tt38
My Comm.e*Gs M.6,2026
34
Packet Pg. 1932
K.6.b
DRUG-FREE WORKPLACE FORM
The undersigned vendor in accordance with Florida.Statutes,Sec.287.087 hereby certifies that:
(Name of Business)
1 Publishes a statement notifying employees that the unlawful manufacture, distribution, dispensing,
Possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that
will be taken against employees for violations of such prohibition.
2. Informs employees about the dangers of drug abuse in the workplace, the business's policy of
maintaining a drug-free workplace,any available drug counseling,rehabilitation,and employee assistance
programs, and the penalties that may be imposed upon employees for drug abuse violations.
0
3. Gives each employee engaged in providing the commodities or contractual services that are under bid
a copy of the statement specified in subsection(1).
4_ In the statement specified in subsection (1), notifies the employees that, as a condition of working on
0
the commodities or contractual services that are under bid, the employee will abide by the terms of the
statement and will notify the employer of any conviction of, or plea of guilty or noio contendere to, any
violation of Chapter 893 (Florida Statutes)or of any controlled substance law of the United States or any
state,for a violation occurring in the workplace no later than five(5)days after such conviction.
5. Imposes a sanction on, or require the satisfactory participation in a drug abuse assistance or
rehabilitation program if such is available in the employee's community, for any employee who is so
convicted. ,
b. Makes a good faith effort to continue to maintain a drug-free workplace through implementation of >"
this section.
As the UfRespondent)
ed to gn the statement, I certify that this firm complies fully with the above
require o
� 7 y
(Date)
STATE OF
SS: —
COUNTY 0 }
Subscribed and sworn to(car affirmed) before m , by theans of physical presence car ❑ online notarim ion, ear
(date) lay .(name of al*Fi'i,ant). I-fe/She is
personally known to me or has produced , (type of
identification)as identification.
t✓ss my t and oil" ial eal in the County and State last aforesaid this �
day o " 2021.
OTARY PUBLIC,STATE OF
s� I L DRl RE�IQER My Commission Expires: ( Ll J�
++Eaary Public state of ' a
All Commission)HH 780M *'
Commission 1~ro. � --
My com m.et res Jan.6,20
5
Packet Pg. 1933
K.6.b
PUBLIC ENTITY CRIME STATEMENT
"A person or affiliate who has been placed on the convicted vendor list fallowing a conviction
for public entity crime may not submit a bid on a contract to provide any goods or services to a
public entity, may not submit a bid on a contract with a public entity for the construction or
repair of a public building or public work, may not submit bids on leases of real property to
public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or
CONTRACTOR under a contract with any public entity, and may not transact business with any
public entity in excess of the threshold amount provided in Section 287.017 Florida Statutes, for
CATEGORY TWO for a period of 36 months from the date of being placed on the convicted
vendor list."
0
l have read the above and state that neither
(Respondent's name) nor any Affiliate has been placed on the convicted vendor list within the e
last thirty-six(36)months. The undersigned certifies that the Applicant has not been convicted o
a public it crime rithin the past 36 months, as set forth in Section 27.133, Florida Statutes.
ignature
Title 1
Printed blame
Company Name: �-
Date: 1 —S-
STATE OF
y
SS: e
COUNTY OF ' )
Subscribed and sworn to (or affirmed) before me, by means of h sical
p presence or C] online
notarisation, on (date) by (name of
affiant). He/She is personally known to me or has producedA11
Q-- (type of identification)as identification.
WITNESS my hand and official seal in the County and State last aforesaid this
day of 20
LORI READEIJ
Notary Public state rat Florida
COmmfton#HH 78038
My COMM.MIMS JaM 6,2025
38
Packet Pg.1934 '