Item C30BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 20, 2008 Division: Airports
Bulk Item: Yes XX No Staff Contact Person: Reggie Paros/Pedro Mercado
AGENDA ITEM WORDING:
Approval of agreement between Monroe County and the Florida Keys Airport Initiative, Inc (FKAI).
ITEM BACKGROUND:
FKAI wasformed in Marathon for the express purpose of attracting commercial air service to the
Florida Keys Marathon Airport. FKAI has previously provided matching funds when the Marathon
Airport received small community air service development grant funds in the unsuccessful attempt to
establish service at Marathon with Delta airlines_ In the ongoing effort to establish service, Cape Air has
agreed to provide service, on a short term basis, in exchange for a revenue guaranty. The Florida Keys
Marathon Airport 403 account has sufficient funds for only half of the total revenue guaranty amount.
FKAI has once again agreed to provide half of the total revenue guaranty funds in exchange for the
County administering the funds.
PREVIOUS RELEVANT BOCC ACTION:
None
CONTRACT/AGREEMENT CHANGES:
NIA
STAFF RECOMMENDATIONS:
Approval
TOTAL, COST: $250,000 BUDGETED: Yes XX No
COST TO COUNTY: $125,000 SOURCE OF FUNDS $125,000 from FKAI, $125,000
from the Marathon Airport 403 fund account
REVENUE PRODUCING: Yes--o XX AMOUNT PER MONTH Year
APPROVED BY: County Atty� "� OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
Revised 2/05
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Florida Keys Airport
Contract #
Initiative, Inc.
Effective Date: 8/20/2008
Expiration Date: 4/27/2009
Contract Purpose/Description:
To provide partial funding of the Revenue Guarantee Agreement for air service bet. Ft.
Myers, FL and FKMAP by Cape Air
Contract Manager: Reggie Paros
6060 FK Marathon Airport
(Name)
(Ext.) (Department/Stop #)
for BOCC meeting on 8/20/2008
Agenda Deadline: 8/5/2008 (Rev. 8/13/2008)
CONTRACT COSTS
Total Dollar Value of Contract: $ 125,000.00 Current Year Portion: $
Budgeted? Yes XX No ❑ Account Codes: - -
Grant: $ - -
County Match: $ $125,000 - - -
ADDITIONAL COSTS
Estimated Ongoing Costs: $ /yr For:
(Not included m dotiar vatue above) (eg. maintenance, utilities, janitorial, sa
CONTRACT REVIEW
Changes Date Out
Date In
Needed RwA(wVer
Division Director '. i
Yesn Noo -
Risk Management
YesEl No[f .
O.MB./Purchasing
Yes[] No[]
County Attorney Y/«�8_
Yes[] NgRj i 1, 6V
Comments:
OMB Form Revised 2/27/01 MCP #2
AGREEMENT
MONROE COUNTY AND
FLORIDA AIRPORTIN](TIATIVE, INC.
THIS AGREEMENT is entered, by and between Monroe County, a political subdivision of
the State of Florida, (hereafter "COUNTY"), and FLORIDA KEYS AIRPORT INITIATIVE,
INC. (hereafter "FKA1").
WHEREAS, Monroe County desires to attract commercial service to the Florida Keys
Marathon Airport; and
WHEREAS, Hyannis Air Service, Inc. dba Cape Air/Nantucket Airlines, (hereafter "Cape
Air") is willing to provide commercial service to the Florida Keys Marathon Airport in exchange
for a revenue guaranty from the County; and
WHEREAS, there are no grant funds available under the Small Community Air Service
Development program for payment of a revenue guaranty; and
WHEREAS, the Florida Keys Marathon Airport has funds available for use towards payment
of half of the revenue guaranty; and
WHEREAS, FKAI is willing to provide the other half of the funds required to fully fund the
revenue guaranty; and
WHEREAS, the County is willing to administer the funds provided by the Florida Keys
Marathon Airport and FKAI for payment of the revenue guaranty;
NOW, THERFORE IN CONSII)ERATION of the mutual consideration and premises set
forth below, the parties hereto agree as follows:
1. RESPONSIBILITIES OF FKAL
FKAI shall remit to the County $125,000 on or before August 27, 2008.
The County, at its sole discretion, may terminate this agreement upon failure of FKAI to remit
the required funds by the close of business on August 27, 2008. Termination shall be effective
upon mailing of notice to FKAI pursuant to Article 26.
2. RESPONSIBILITIES OF COUNTY:
2.1. Upon receipt of the Revenue Guaranty funds the COUNTY shall establish an account for
.payment of the revenue guaranty as provided for in the agreement between the County and Cape
Air, copy of which is attached hereto as exhibit A.
2.2 The Florida Keys Marathon Airport shall contribute $125,000 towards the revenue
guaranty funds from account # 403 63501 530340.
2.3 Upon presentation of a payment request by Cape Air, the County shall review the request
in accordance with the terms of the Revenue Guaranty Agreement. The County shall remit the
revenue guarantee funds in accordance with Article # 3 of the Revenue Guaranty Agreement,
copy of which is attached hereto as exhibit A. If the County disputes the Guaranty Payment
request, the County shall pay any portion of the Guaranty payment not in dispute.
2.4 At the conclusion of the Revenue Guaranty period and payment of Revenue Guaranty
funds, the County shall prepare a report accounting for the funds paid and the funds remaining, if
any, and the funds in dispute, if any, in the Revenue Guaranty fund.
2.5 If any unused funds remain in the Revenue Guaranty Fund, the funds shall be returned in
equal proportion to the Florida Keys Marathon Airport and to FKAI within 30 days unless the
funds are in dispute. Any disputed funds shall be held by the County pending resolution of the
dispute and returned in equal proportion within 30 days of resolution of the dispute.
Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the
COUNTY and FKAI 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.
4. GOVERNING LAW, "VENUE, INTERPRETATION, COSTS, AND FEES:
4.1 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.
4.2 In the event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the COUNTY and FKAI agree that venue will
lie in the appropriate court or before the appropriate administrative body in Monroe County,
Florida.
4.3 The COUNTY and FKAI agree that, in the event of conflicting interpretations of the terms
or a term of this Agreement by or between any of them, the issue shall be submitted to mediation
prior to the institution of any other administrative or legal proceeding.
4.4. The COUNTY and FKAI agree that in the event any cause of action or administrative
proceeding is initiated or defended by any party relative to the enforcement or interpretation of
this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs,
investigative, and out-of-pocket expenses, as an award against the non -prevailing party, and shall
include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate
proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be
in accordance with the Florida Rules of Civil Procedure and usual and customary procedures
required by the circuit court of Monroe County.
5. SEVERA>BILITY:
If any term, covenant, condition or provision of this Agreement (or the application thereof to any
circumstance or person) shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions and provisions of this
Agreement, shall not be affected thereby; and each remaining term, covenant, condition and
provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted
by law unless the enforcement of the remaining terms, covenants, conditions and provisions of
this Agreement would prevent the accomplishment of the original intent of this Agreement. The
COUNTY and FKAI agree to reform the Agreement to replace any stricken provision with a
valid provision that comes as close as possible to the intent of the stricken provision.
6. BINDING EFFECT:
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the
benefit 4of the COUNTY and FKAI and their respective legal representatives, successors, and
assigns.
7. 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.
8. CLAIMS FOR FEDERAL OR STATE AID:
The COUNTY and FKAI agree that each shall be, and is, empowered to apply for, seek, and
obtain federal and state funds to further the purpose of this Agreement.
9. NON-DISCRIMINATION:
The COUNTY and FKAI agree that there will be no discrimination against any person. The
COUNTY and FKAI agree to comply with all Federal and Florida statutes, and all local
ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1)
Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis
of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended
(20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3)
Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended
(42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug
Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination
on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act
of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title V111 of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10)
Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color, sex,
religion, disability, national origin, ancestry, sexual orientation, gender identity or expression,
familial status or age; and 11) any other nondiscrimination provisions in any Federal or state
statutes which may apply to the parties to, or the subject matter of, this Agreement.
10. ADJUDICATION OF DISPUTES OR DISAGREEMENTS:
10.1 The COUNTY and FKAI agree that all disputes and disagreements shall be attempted to
be resolved by meet and confer sessions between representatives of each of the parties. If no
resolution can be agreed upon within 30 days after the first meet and confer session, the issue or
issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue
or issues are still not resolved to the satisfaction of the parties, then any party shall .have the right
to seek such relief or remedy as may be provided by this Agreement or by Florida law.
10.2 In the event any administrative or legal proceeding is instituted against either party relating
to the formation, execution, performance, or breach of this Agreement, the COUNTY and FKAI
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. The COUNTY and FKAI specifically agree that no party
to this Agreement shall be required to enter into any arbitration proceedings related to this
Agreement.
11. COVENANT OF NO INTEREST:
The COUNTY and FKAI covenant that neither presently has any interest, and shall not acquire
any interest, which would conflict in any manner or degree with its performance under this
Agreement, and that the only interest of each is to perform and receive benefits as recited in this
Agreement.
12. CODE OF ETHICS:
12.1 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 disclosure or use of certain information.
12.2 FKAI warrants that it has not employed, retained or otherwise had act on its behalf any
former COUNTY officer or employee subject to the prohibition of Section 2 of ordinance No.
010-1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 010-
1990.
13. NO SOLICITATION/PAYMIENT:
The COUNTY and FKAI warrant that, in respect to itself, it has neither employed nor retained
any company or person, other than a bona fide employee working solely for it, to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working solely for it, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement.
14. PUBLIC ACCESS:
The COUNTY and FKAI shall allow and permit reasonable access to, and inspection of, all
documents, papers, letters or other materials in its possession or under its control subject to the
provisions of Chapter 119, Florida Statutes, and made or received by the COUNTY or FKAI in
conjunction with this Agreement.
15. PRIVILEGES AND EVIMUINTITIES:
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 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.
16. 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.
17. 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 FKAI agree that neither the COUNTY
nor FKAI or any agent, officer, or employee of either shall have the authority to inform, counsel,
or otherwise indicate that any particular individual or group of individuals, entity or entities,
have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to
the community in general or for the purposes contemplated in this Agreement.
18. 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 either Monroe County or FKAI in his or her
individual capacity, and no member, officer, agent or employee of either Monroe County Or
FKAI shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
19. 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.
20. SECTION HEADINGS:
Section headings have been inserted in this Agreement as a matter of convenience of reference
only, and it is agreed that such section headings are not a part of this Agreement and will not be
used in the interpretation of any provision of this Agreement.
21. ASSIGNMENT:
FKAI may not assign this Agreement without the approval of the County's Board of County
Commissioners. All the obligations of this Agreement will extend to and bind the legal
representatives, successors and assigns of FKAI and the COUNTY.
22. SUBORDINATION:
This Agreement is subordinate to the laws and regulations of the United States, the State of
Florida, and the COUNTY, whether in effect on commencement of this Agreement or adopted
after that date.
23. INCONSISTENCY:
If any item, condition or obligation of this Agreement is in conflict with other items in this
Agreement, the inconsistencies shall be construed so as to give meaning to those terms which
limit the COUNTY's responsibility and liability.
24. ETHICS CLAUSE:
FKAI warrants that it has not employed, retained or otherwise had act on its behalf any former
COUNTY officer or employee subject to the prohibition of Section 2 of ordinance No. 0 10- 1990
or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 010-1990.
25. CONSTRUCTION:
This Agreement has been carefully reviewed by FKAI and COUNTY. Therefore, this
Agreement is not to be construed against any party on the basis of authorship.
26. NOTICES.
Notices in this Agreement, unless otherwise specified, must be sent by certified mail to the
following:
County:
County Administrator
1100 Simonton Street
Key Wrest, FL 33040
Florida Keys Airport Initiative, Inc.
27. FULL UNDERSTANDING:
This Agreement is the parties' final mutual understanding. It replaces any earlier agreements or
understandings, whether written or oral. This Agreement cannot be modified or replaced except
in a written amendment duly executed by both parties.
27. EFFECTIVE DATE:
This Agreement will take effect on the 20th day of August, 2008.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
first above written.
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
Deputy Clerk
`Witnesses
HOARD OF COUNTY COMMISSIONERS
OF MON ROE COIJNTY, I'LORIDA
BV
Mayor Mario DiGenarro
Florida Keys Airport In iative, Inc.
By..�', r--'
Name: David P—Rice
Title: President
RE VENUE GUARANTY AGREEMENT
This Revenue Guaranty Agreement (this "Agreement") made and entered into as
of the 20`' day of August, 2008, is between Hyannis Air Service, Inc. dba. Cape
Air/Nantucket Airlines, ("Cape Air" or "Airline" or "9K") and MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS ("Guarantor').
Recitals:
Monroe County Board of County Conunissions is the government entity operating''
the Marathon / Florida Keys Airport. Cape Air is an airline providing scheduled air
transportation in th.e United States. Guarantor desires that Cabe Air provide scheduled air
service between Fort Myers, Florida (RSW) and the Marathon / Florida .Keys Airport,
Florida (MTH), and Guarantor is willing to provide Cape Air with a revenue guaranty for
operating such service. In consideration of the revenue guaranty provided by Guarantor,
Cape Air is willing to provide RSW-MTH service on the terms and conditions set forth
herein.
The parties agree as follows:
Definitions:
The defined terms set forth below shall have the meanings assigned to them:
1.1 "Average Fare" shall mean. the Total Passenger Revenues for the
applicable Scheduled Service divided by the number of revenue passengers traveling on
such Scheduled Service, For the period of time defined in this contract.
1.2 "Revenue Guarantee tiler Departure" shall mean the amount specified in
Exhibit A multiplied by the number of one way Scheduled Flights operated as part of the
applicable Scheduled Service.
1.3 -"Passenger Revenue" shall mean the ticketed passenger revenue received
by Cape Ait for the MTH-RSW segment, using Cape Air's usual and customary
practices.
1.4 "Scheduled Flight" shall mean each scheduled flight operated on the
applicable Scheduled Service during the revenue guaranty period.
1.5 "Minimurn Revenue Amount" (or "Minimum Revenues") shall mean the
amount of revenue Cape Air is guaranteed to receive for each flight. The dollar amount
shall be specified in Exhibit A.
1.6 "Scheduled Service" shall mean nonstop scheduled, air transportation
service by Cape Air between MTH and RSW using nine -passenger Cessna 402
equipment, in accordance with the schedule set forth in Exhibit A. The schedule times
and frequency in Exhibit A are approximate and may be adjusted by Cape Air with
agreement of Guarantor, with agreement not to be unreasonable withheld, to maximize
Fort Myers connections and to accommodate seasonality of traffic demand.
2. Scheduled Service.
2.1 In consideration of the revenue guaranty provided by Guarantor (as °
described in Section 3 hereof) Cape Air agrees to operate the Scheduled Service during
the Revenue Guaranty Period defined in Exhibit A.
2.2 Cape Air reserves the right to cancel any Scheduled Flight for any reason,
including for weather, maintenance or operational reasons. If a Scheduled Flight lis
cancelled, such flight will not be counted for purposes of this Agreement, and passengers,
tickets and revenues for such flights will not be included in calculating Average Fare,
Minimum Revenues, Passenger Revenues, Scheduled Flight or Scheduled Service.
3. Revenue Guaranty.
3.1 Guarantor has agreed to guaranty that Cape Air will receive the applicable
Minimum Revenues for operating the applicable Scheduled Service during the Revenue
Guaranty Period, defined in Exhibit A. Upon the completion of the Revenue Guaranty
Period, Cape Air will calculate the number of Scheduled Flights operated, Passenger
Revenues and Minimum Revenues, and Cape Air will deliver a report summarizing this x
data to Guarantor. Cape Air shall issue this operational report within sixty (60) days
following the close of the revenue guaranty period.
3.2 If the applicable Passenger Revenues exceed the applicable Minimum
Revenue Amount during the revenue guaranty period, then no payment by Guarantor will
be due to Cape Air with respect to such Scheduled Service.
3.3 If the applicable Minimum Revenues exceed the applicable Passenger
Revenues with respect to such Scheduled Service, then Guarantor shall remit the
difference (the "Guaranty Payment") to Cape Air within thirty (30) days of receipt of
Cape Air's operational report by electronic fiends transfer. Cape Air's calculation of
Scheduled Flights operated, Passenger Revenues and Minimum Revenues in the report
shall be binding and conclusive on Guarantor, absent manifcst error.
2
3.4 The Guaranty Payment shall not exceed Two Hundred and Fifty Thousand
and 00/100 Dollars ($250,000.00) (the "Guaranty Cap").
3.5 Cape Air and Guarantor will mutually agree on airfare pricing strategy.
4. Reports.
4.1 On a weekly basis beginning no later than sixty (60) days prior to the start
of the Revenue Guaranty Period, Cape Air shall provide Guarantor with a report
enumerating advance bookings for the MTH-RSW market, by week of travel. During the
Revenue guaranty period, such reports shall include the passenger loads for the Scheduled
Flights flown the previous week. ,
4.2 On or before thirty (30) days following the end of each month during the'
Revenue guaranty period, Cape Air shall provide Guarantor with a statement setting forth,
for the market during the applicable month, the following data:
Number of revenue passengers flown by day;
Passenger Revenues received by Cape Air by day, and;
The variance between Passenger Revenues received and the Minimum Revenues
for Scheduled Flights operated
These figures shall be provided for the prior month and, on an aggregate basis, for
all Scheduled Flights operated to date. Cape Air's calculations included in such
statements shall be binding and conclusive on Guarantor, absent manifest error.
5. Air Service Marketing
Guarantor agrees to support the Scheduled Service with a marketing and
promotional effort as outlined in Appendix B.
6. Term and Termination
6.1 This Agreement shall be effective on the first date of Cape Air service, as
outlined in Exhibit A, between Marathon and Fort Myers and shall continue until April
27, 2009, however, that either party may terminate this Agreement at any time upon sixty
(60) days prior written notice to the other party. The termination of this Agreement, either
at its end or prior to its end, shall not affect outstanding rights and obligations.
6.2 Either party may terminate the Agreement upon the occurrence of an
"Event of Default." For purposes of this Agreement an "Event of Default" shall be
defined as a party's failure to comply with the material terms of this Agreement within
thirty (30) days of receipt of written notice from the non -defaulting party.
7. Miscellaneous.
3
7.1 This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating thereto. This Agreement may be modified and amended only
by a writing signed by the party against whom enforcement of the modification or
amendment is sought. All indemnities, agreements and covenants made by any party
herein shall survive any termination of this Agreement.
d
7.2 Neither this Agreement nor any of the rights or obligations hereunder may
be assigned or transferred, by operation of law or otherwise, by either party without the
prior written consent of the other party, such consent not to be unreasonably withheld or
delayed. Any attempted assignment or transfer without such consent shall be of no force
or effect.
7.3 All notices, requests, demands, consents and other communications
to or upon the parties to this Agreement shall be in writing and shall be delivered
by email, hand or sent by facsimile transmission or other written
telecommunication in any such case with mechanical or other proof of delivery or
deposited in the mail by first-class registered or certified mail, return -receipt
requested, postage prepaid, addressed as follows:
Notices to Guarantor:
Monroe County Board of County Commissioners
Mr. Peter Horton,
Director of Airports
Key West International Airport
3491 South Roosevelt Blvd.
Key West, Florida 33040
Fax: 305 292 3578
Notices to Cape Air:
Cape Air / Nantucket Airlines
Mr. Andrew Bonney
Vice President of Planning
660 Barnstable Road
Hyannis, MA 02601
abonney@flycapeair.com
Fax: 508-778-1870
or to such other address as may be hereafter designated in writing by the respective
parties hereto by notice similarly given. All notices shall be effective upon receipt
thereof, provided that absent such receipt, no notice shall be deemed to have been
given.
4
7.4 No third party is intended to benefit from, nor may any third party seek
to enforce any of the provisions of, this Agreement.
T.5 Neither party will be liable for delays or fi%re in its performaee under
the Program caused by any act of God, war, strike, labor dispute, work stoppage,
substantial reduction of services from any country or region, fire, act of government,
or"any other cause, whether similar or dissmular, beyond the control of that. party (any
single or combhu lion of such excuses is a "Force Majeure Event").
7.6 EACH PARTS WAVVES .AND RELEASES THE f)TWUL PARTY
FROM ANY AND ALL CLAIMS FOR CONSEQUFIS TIAL DAMAGES, IN
CONNECTION VVIM TIIIS AUNT.
7.7 The parties expressly agree that the laws of the State ofFlo€ida will govern
this Agreement and the validity, construction, interpretation, and effect of this Agreement,
without regard to principles of coufficts of laws_ Each party agrees, that any civil suit or
action brought against it as a result of any of its obligations under this Agreement may be
brought against it either m the state or federal courts and venue shall lie in Monroe
County, Florida, and each party hereby irrevocably submits to the jurisdiction of such
courts and irrevocably waives; to the fullest eaaent permitted by law, any objections that it
may now or hereafter have to the laying of the venue of such civil suit or action and any
claim that such ma suit or avian has been brow& m an inconvenient forum, and each
party f rther" agrees that final judgment in any such civil suit or action shall be conclusive
and binding upon it and shall be enforceable against it by suit upon such judgment in any
court of competent jurisdiction. Fuarther, the parties mutually agree that they will waive
trial by jury iQ any action, proceeding or counterclaim brought by either party against the
other arising out of or in any way connected with the Agreement_
7.8 Cape Airs service shall be operated under the Continual Connection
brand. As an affiliate of Contimentai Airlines C Contsnental"} Continental has some
control over Cape Airs schedule, reservations systermsy revenue manageinent systems and
evw which cities may be served with the brand. Cape Air shall use best efforts with
Continental to affect the service as described, but Guarantor acknowledges that Cape Air
is beholders to Continental on some key matters. Continental's inputs to Cape Air shalt be
considered force mujew-e.
(Re uainder of Wage Intendonraily Left Blank)
5
8. Relationship of the Parties. For the purposes of this Agreement, neither party
shall be deemed to be the agent, partner, employee, joint venture, or fiduciary of the other
party.
9. Severability. If any clause or provision of this Agreement shall be held to be
invalid in whole or in part, then the remaining clauses and provisions, or portions thereof,
shall nevertheless be and remain in full force and effect.
10. Attorney's Fees. If either party hereto shall bring any suit or action against the
other for relief, declaratory or otherwise, arising out of this Agreement, the substantially
prevailing party shall have and recover against the other party, in addition to all court
costs and disbursements, such sum as the Court may adjudge to be reasonable attorneys'
fees, at the time such judgment becomes a final judgment, following exhaustion of all
appeals.
11. Binding Effect. The terms, covenants, conditions, and provisions of this
Agreement shall bind and inure to the benefit of the Guarantor and Cape Air and their
respective legal representatives, successors, and assigns.
12. 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.
13. Claims for Federal or State Aid. Guarantor and Cape Air agree that each shall be,
and is, empowered to apply for, seek, and obtain federal and state funds to further the
purpose of this Agreement; provided that all applications, requests, grant proposals, and
funding solicitations shall be approved by each party prior to submission.
14. Adjudication of Disputes or Disagreements. Guarantor and Cape Air agree that
all disputes and disagreements shall be attempted to be resolved by meet and confer
sessions between representatives of each of the parties. If no resolution can be agreed
upon within 30 days after the first meet and confer session, the issue or issues shall be
discussed at a public meeting of the Board of County Commissioners. If the issue or
issues are still not resolved to the satisfaction of the parties, then any party shall have the
right to seek such relief or remedy as may be provided by this Agreement or by Florida
law.
15. 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, Guarantor and Cape Air 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.
Guarantor and Cape Air specifically agree that no party to this Agreement shall be
required to enter into any arbitration proceedings related to this Agreement.
0
16. Nondiscrimination. Guarantor and Cape Air agree that there will be no
discrimination against any person, and it is expressly understood that upon a
deten-nination 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. Cape Air 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, color or national origin; 2) Title
IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-
1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination
on the basis of handicaps; 4) The Age Discrimination Act of 1975, as, amended (42 USC
ss. 6101-6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse:
Office and Treatment Act of 1972 (PL 92-255), as amended, relating to
nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as
amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7)
The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-
3), as amended, relating to confidentiality of alcohol and drug abuse patent records; p
Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time,
relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination
provisions in any Federal or state statutes which may apply to the parties to, or the subject
matter of, this Agreement.
17. Covenant of No Interest. Guarantor and Cape Air covenant that neither presently
has any interest, and shall not acquire any interest, which would conflict in any manner or
degree with its performance under this Agreement, and that only interest of each is to
perform and receive benefits as recited in this Agreement.
18. Code of Ethics. Guarantor agrees that officers and employees of the Guarantor
recognize and will be required to comply with the standards of conduct for public officers
and employees as delineated in Section 112.313, Florida Statutes, regarding, but not
limited to, solicitation or acceptance of gifts; doing business with one's agency;
unauthorized compensation; misuse of public position, conflicting employment or
contractual relationship; and disclosure or use of certain information.
19. Public Access. The Guarantor and Cape Air shall allow and permit reasonable
access to, and inspection of, all documents, papers, letters or other materials in its
possession or under its control subject to the provisions of Chapter 119, Florida Statutes,
and made or received by the Guarantor and Cape Air in. conjunction with this Agreement;
and the Guarantor shall have the right to unilaterally cancel this Agreement upon
violation of this provision by Cape Air.
7
20. Non -Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida
Statutes, the participation of the Guarantor and Cape Air 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
Guarantor be required to contain any provision for waiver.
21; 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 Guarantor, when performing their
respective functions under this Agreement within the territorial limits of the Guarantor
shall apply to the same degree and extent to the performance of such functions and duties E
of such officers, agents, volunteers, or employees outside the territorial limits of the
County.
22. 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 tfe
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
Guarantor, except to the extent permitted by the Florida constitution, state statute, and
case law.
23. 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 Guarantor and Cape Air agree that neither the Guarantor nor Cape Air
or any agent, officer, or employee of either shall have the authority to inform, counsel, or r
otherwise indicate that any particular individual or group of individuals, entity or entities,
have entitlements or benefits under this Agreement separate and apart, inferior to, or
superior to the community in general or for the purposes contemplated in this Agreement.
24. 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
Guarantor in his or her individual capacity, and no member, officer, agent or employee of
Guarantor shall be liable personally on this Agreement or be subject to any personal
liability or accountability by reason of the execution of this Agreement.
25. 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.
8
26. Section Headings. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any provision of
this Agreement. . aI
27. Federal, State and Local Law. Cape Air shall comply with all federal, state,
county and local laws, ordinances, rules and regulations now and hereafter in force which
may be applicable to the operation of its business at the airport, including the minimum
standards for commercial use of the airport, as amended from time to time.
28. Mutual Review. This agreement has been carefully reviewed by Guarantor and
Cape Air, therefore this agreement is not to be construed against either party on the basis
of authorship.
29, Books, Records and Documents. Cape Air shall maintain, during the Revenue
Guaranty Period and for four (4) years thereafter, all books, records, and documents that
may be reasonably necessary for Guarantor to verify the accuracy of any statements or
reports that Cape Air is required to provide to Guarantor hereunder (collectively, tpe
"Records"). Guarantor, acting through its Finance Director or other authorized
representative, shall have the right to inspect and audit the Records, provided, any such
inspection and audit shall occur during normal business hours and not interfere with the
day to day operations of Cape Air. Cape Air retains the right to have one or more
representatives present during any inspection or audit by Guarantor. Ten (10) business
days notice must be given to Cape Air by Guarantor of its intent to audit the Records to
allow Cape Air sufficient time to schedule said presence. Nothing contained within this
section waives attorney/client or attorney work product privilege.
{Remainder o Page Intentionally Left BlanLc�
IN WITNESS WHEREOF, the parties have signed this agreement by their undersigned
duly authorized representatives.
Hyannis Air Service, Inc. Monroe County Board of County ;
Commissioners
By:
Nan
Title: L-
By: _
Name:
Title:
bE COUNTY ATTORN
ROV9D AS Tq',VO#t
RE
GOUt�fY ATTORNEY 01 t Z/O
10
EXHIBIT A: Representative Schedules
[To the Agreement between Cape Air and Monroe County Board of County
Commissioners]
Minimum Revenue Amount
MTH-RSW:
$ 664.00 per flight subject to adjustment per fuel price
adjustment clause below.
Revenue Guaranty Period
December 19 2008 to April 27 2009
Winter Schedule
Depart MTH 7:1 OAM arrive RSW 8:1 OAM Daily.
Cape Air and Guarantor will work
Depart MTH 12:50pm arrive RSW 1:50PM Daily
together to adjust schedules to
Depart MTH 3:45PM arrive RSW 4:45PM .Daily
demand and in accordance with
other airline schedule changes at
Depart RSW 11:30AM arrive MTH 12:30PM Daily
Fort Myers.
Depart RSW 2:1OPM arrive MTH 3:IOPM Daily
Depart RSW 7:20.PM arrive at MTH 8:20PM Daily
Note: Cape Air will make its best efforts to schedule MTH — RSW flights as online thru
or online connection flights to and from Tampa via existing Cape Air service Fort
Myers — Tampa. Timing and frequency shown is representative.
Fuel Price Adjustment Clause - In order to reflect fuel price variations on the cost of
operating Cessna 402 aircraft, the per -segment guarantee will be adjusted monthly as
follows:
A base all -in fuel price of $4.20 USD per gallon is established as the base cost upon
which the $664 per flight total cost is computed. Fuel burn between RSW and MTH is
36.5 gallons per flight segment operated. On a monthly basis, Cape Air will adjust the per
flight minimum revenue per flight amount upward or downward based on the actual price
paid for fuel that month minus $4.20 times the 36.5 times the number of segments
flown.
Example 1 = Fuel price for the month $5.00 minus base price of $4.20 equals $.80 cents
x 36.5 gallons equals $29.20 additional cost or a revenue target for that month of
$693.20 per flight.
Example 2 = Fuel price for the month $4.00 minus base price of $4.20 equals $.20 x 36.5
gallons equals $7.30 lower cost or a revenue target for that month of $656.70.
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EXHIBIT B: Scheduled Service Markctin Plan
[To the Agreement between Cape Air and Monroe County Board of County
Commissioners]
Marathon Marketing Cooperation Plan
Station Presence — Signage
• Cape Air or Continental Connection signage at counter, gate and any other advantageous
locations at airport
• Banner(s) production — creative from 9K and/or Continental Airlines
• Duratran or signage opportunities by baggage claim
• Review of street signage to Marathon Airport, and changes as needed
Press Releases
• Media support and work on press releases pre- and post -launch in conjunction with 9K
Director of Communications
Direct Marketing
• Access to, and distribution of, 9K information via airport customer database
Online i'
• 9K presence on homepage or 2"d level of any airport and airport affiliated websites —link
to 9K site for online booking
Advertising
• Suggest a media plan including time frame and budget with most appropriate venues ie
print, radio, public access TV, etc.
• Cape Air and the Tourism Development Council District AdvisoLy Committee III will
each put up $15,000 for advertising and promotion.
• Provide local information on who are the key local travel generators and what they are
looking for. Target markets for 9K to establish creative
• Provide competitive information and performance results
Memberships
• Provide contact information and recommendations on local chambers and business
organizations
Community Affairs/Events
• Provide local support and presence at appropriate community events/trade shows
Updates
• Provided weekly updates and review of plans
• Provide pricing ideas/recommendations
12