1
Exhibit 10.20
AGREEMENT
Between
BROWARD COUNTY
and
LIMOUSINES OF SOUTH FLORIDA, INC.
for
AIRPORT SHUTTLE BUS SERVICES AT THE
FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT
RLI # 90596-RB
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TABLE OF CONTENTS
ARTICLE
I DEFINITIONS ................................................... 4
II TERM AND PROVISIONS
PERTAINING TO INITIAL TERM .................................... 6
III OBLIGATIONS OF THE OPERATOR ................................... 7
IV EQUIPMENT REQUIREMENTS ........................................ 12
V FEES, CHARGES, AND ACCOUNTABILITY ............................. 15
VI OPERATIONAL REQUIREMENTS AND STANDARDS ........................ 23
VII COMPLAINTS .................................................... 27
VIII COMPLIANCE .................................................... 28
IX ASSIGNMENT .................................................... 29
X INSURANCE AND INDEMNIFICATION;
PERFORMANCE BOND .............................................. 30
XI TERMINATION BY COUNTY ......................................... 33
XII SECURITY ...................................................... 36
XIII FIRE AND OTHER DAMAGE ......................................... 36
XIV INDEPENDENT CONTRACTOR ........................................ 37
XV GENERAL PROVISIONS ............................................ 37
XVI MISCELLANEOUS ................................................. 42
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EXHIBITS
A SHUTTLE ROUTES AND PARKING AREAS
B HEADWAY TIMES
C VEHICLE SPECIFICATIONS
AND NUMBERS - CORE BUS FLEET
D VEHICLE SPECIFICATIONS, HOURLY EXPENSE FOR
SUPPLEMENTAL BUS FLEET
Attachment I NONDISCRIMINATION REQUIREMENTS
Attachment II SDBE PARTICIPANTS
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AGREEMENT
Between
BROWARD COUNTY
and
LIMOUSINES OF SOUTH FLORIDA, INC
for
AIRPORT SHUTTLE BUS SERVICES AT THE
FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT
This is an Agreement, made and entered into by and between: BROWARD
COUNTY, a political subdivision of the State of Florida, hereinafter referred to
as "County,"
AND
LIMOUSINES OF SOUTH FLORIDA, INC, a Florida corporation, authorized to
do business in the State of Florida, hereinafter referred to as "Operator."
WHEREAS, County is the owner and operator of the Fort
Lauderdale-Hollywood International Airport, hereinafter referred to as
"Airport"; and
WHEREAS, the Operator is experienced in the business of managing and
operating Airport Shuttle Bus operations similar in nature to that required at
the Airport; and
WHEREAS, the County wishes to grant to Operator the right to operate
the Airport Shuttle Bus Services at the Airport under an agreement containing
mutually satisfactory terms and covenants;
NOW, THEREFORE, IN CONSIDERATION of the mutual terms, conditions,
promises, covenants and payments hereinafter set forth, County and Operator
agree as follows:
ARTICLE I
DEFINITIONS
1.1 "Affiliate" is an entity which is controlled by or under common control
with another entity, and "control" shall mean ownership of not less
than fifty percent (50%) of all the voting stock or equitable interest
in such corporation or entity.
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1.2 "Agreement" shall mean this Agreement, including all exhibits thereto
and any supplements, modifications or amendments thereof.
1.3 "Airport" shall refer to Fort Lauderdale-Hollywood International
Airport, Broward County, Florida.
1.4 "Airport Terminals" and "Terminals" shall mean the terminal buildings
at the Airport, including the existing buildings and all terminals
hereafter constructed at the Airport during the term of this Agreement.
1.5 "Annual Management Fee" is set forth in Section 5.2, hereof.
1.6 "Aviation Department" shall mean the County's Aviation Department or
such other named County organization that from time to time may
exercise functions equivalent or similar to those now exercised by such
Department.
1.7 "Director of Aviation" and "Director" shall mean the Director or Acting
Director of the Aviation Department and from time to time shall include
such person or persons as may from time to time be authorized in
writing by the Broward County Board of County Commissioners, the
Broward County Administrator or by the Director to act for the Director
with respect to any or all matters pertaining to this Agreement.
1.8 "Capital Equipment Charge" is set forth in Section 5.4, hereof.
1.9 "Contract Year" shall mean the period beginning on the Commencement
Date and ending on the 365th day thereafter and each twelve-month
period thereafter, until the termination of this Agreement.
1.10 "County" shall mean Broward County, a body corporate and a political
subdivision of the State of Florida.
1.11 "Federal Aviation Administration" hereinafter sometimes referred to as
FAA, shall mean that agency of the United States Government created and
established under the Federal Aviation Act of 1958, or its successor.
1.12 "In-Service Bus Hour Charge" is set forth in Section 5.3, hereof.
1.13 "Reimbursable Expenses" shall mean all items which are specifically
approved, in writing, as reimbursable by the Aviation Department
pursuant to Section 5.5, hereof.
1.14 "RLI Documents" is defined in Section 15.19, hereof.
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1.15 "Parking Facilities" are designated on Exhibit A, attached hereto and
made a part hereof and may include public parking facilities and
employee parking facilities.
1.16 "Prior Agreement" shall mean that certain Employee Shuttle Bus Service
Agreement entered into between Limousines of South Florida, Inc. and
County, having an effective date of April 1, 1992, which agreement was
amended by that certain amendment dated August 6, 1996 to add Airport
public parking shuttle bus services and extended through June 30, 1997
by letter from the Director of the Broward County Purchasing Division
dated March 24, 1997.
1.17 "Shuttle Bus Routes" are designated on Exhibit A attached hereto and
made a part hereof.
1.18 "Shuttle Bus Services" shall mean the passenger and employee shuttle
bus services to be provided pursuant to this Agreement by Operator, to
and from the Parking Facilities and the Terminals, and such other
Shuttle Bus Services as may be required from time to time by the
Aviation Department.
ARTICLE II
TERM AND PROVISIONS PERTAINING TO INITIAL TERM
2.1 This Agreement shall be effective on July 1, 1997. The initial term of
this Agreement ("Initial Term") shall begin on July 1, 1997, and shall
extend until the "Commencement Date" (as hereinafter defined). During
the Initial Term of this Agreement, only the provisions of this Section
2.1 and the provisions of the Prior Agreement shall apply, and during
the Initial Term the parties shall be governed by and shall comply with
and abide by all of the terms, provisions and conditions of the Prior
Agreement, all of which terms, provisions and conditions are
incorporated into and made a part of this Agreement by reference.
During the Initial Term the Operator shall provide the services
described by the Prior Agreement and all payments by County to Operator
for such services shall be made at the rates and the intervals last in
effect under the Prior Agreement.
2.2 The Commencement Date for all of the terms and provisions of this
Agreement except those set forth in Section 2.1, above, and in the
Prior Agreement, shall be October 1, 1997, or such later date as is
established pursuant to an extension request as hereinafter set forth
("Commencement Date"). Upon the Commencement Date, all provisions of
the Prior Agreement which are incorporated herein by reference shall
cease to have any effect whatsoever and for all periods following the
Commencement Date the parties shall be governed only by the terms and
provisions of this Agreement.
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2.3 This Agreement shall terminate on the last day of the third Contract
Year following the Commencement Date, unless extended or earlier
terminated as provided herein ("Termination Date").
2.4 The Commencement Date of this Agreement may be extended by the County
for a period of not more than nine (9) calendar months if, due to no
fault of the Operator, the Operator is not able to obtain the vehicles
comprising the "Core Bus Fleet" (as hereinafter defined) from the
manufacturer by the Commencement Date. The Operator shall give the
Aviation Department at least forty-five (45) days advance notice of the
need for such an extension, which notice shall state the reasons for
the request. The Operator shall provide such back-up documentation as
the Aviation Department shall reasonably request. The Director of the
Aviation Department, on behalf of the County, shall grant or deny the
extension request within thirty (30) days following receipt of such
request. The total time of all extensions of the Commencement Date that
may be granted pursuant to the provisions hereof shall not exceed nine
(9) calendar months.
2.5 The Termination Date of this Agreement may be extended by the County
for not more that three (3) one-year periods (each such period being
called a "Renewal Term"). The County may exercise any of its options to
extend this Agreement by providing written notice to Operator of its
intention to extend the Agreement at least one hundred eighty (180)
days prior to the beginning of such Renewal Term. All terms and
conditions of this Agreement shall apply during any Renewal Term,
except that fees and charges for each Renewal Term shall be negotiated
by the parties prior to the beginning of such Renewal Term and such
fees and charges shall be set forth in an amendment to this Agreement
which shall be executed with the same formality and of equal dignity
with this Agreement. In the event the parties fail to reach agreement
as to the fees and charges for any Renewal Term, then the fees and
charges in effect during the immediately preceding Contract Year shall
apply to the Renewal Term, and either party shall have the right to
terminate this Agreement by not less than ninety (90) days written
notice to the other party. The Director of the Aviation Department is
authorized to act on behalf of the County and to give all notices
pursuant to Section 2.4 and this Section 2.5.
ARTICLE III
OBLIGATIONS OF THE OPERATOR
3.1 The Operator shall provide Shuttle Bus Services between the Terminals
and the Parking Facilities using the Shuttle Bus Routes. In addition,
Operator shall provide Shuttle Bus Services to such other Airport
facilities as may be directed in writing by the Aviation Department and
shall provide Shuttle Bus Services for any other purpose related to the
operational requirements or desires of the County, as may be directed
in writing by the Aviation Department.
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(a) From time to time Shuttle Bus Services may be required to be
provided outside the confines of the Airport. The County and
the Operator recognize that all the requirements of the
services contemplated herein cannot be determined with
precision at the time of the award of this contract. It is
understood that such matters as scheduling, the advertising
and announcing of available services, locations of shuttle
stops and equipment staging areas, designation of Parking
Facilities and Shuttle Bus Routes and other operational
matters will be determined and/or adjusted from time to time
as the needs of Airport dictate. It is the intent and
purpose of the parties that the services to be provided
hereunder shall be provided in such a manner as to most
efficiently meet the operational needs of the Airport.
(b) Shuttle Bus Services shall include, but not be limited to: (1)
transportation of employees and other persons and their
baggage between the Airport Terminals and the designated
employee parking facilities using Shuttle Bus Routes; (2)
transportation of airline passengers and other persons and
their baggage between the Terminals and the designated public
parking facilities using Shuttle Bus Routes; (3) on-demand
transportation of persons and their baggage between Airport
facilities and other sites as directed by the Aviation
Department (4) on-demand transportation of airline passengers
to conduct air side aircraft loading/unloading at sites remote
from the Terminal buildings as directed by the Aviation
Department; (5) on-demand transportation of persons and
baggage to or from such other facilities as may be directed in
writing by the Aviation Department, and (6) on-demand
transportation of persons and baggage for any other purpose
related to the operational requirements or desires of the
Aviation Department, as may be directed by the Aviation
Department. On-demand services may be required by verbal
instructions of the Aviation Department's representative,
which shall be followed by written confirmation.
(c) The Operator shall provide all personnel and supplies for the
provision of Shuttle Bus Services pursuant to this Agreement.
3.2 It is the intent of the parties that during the term of this Agreement,
the Operator shall be the sole provider of Core Bus Fleet services at
the Airport, as described in Section 4.2, hereof. It is understood and
agreed that the County may from time to time use other providers of
shuttle bus services for any services required by the County, other
than Core Bus Fleet services. Moreover, the provisions of this
Agreement shall not be deemed to prevent the County from permitting any
other method of ground transportation at the Airport, including but not
limited to, rental vehicles, private passenger vehicles not-for-hire,
charter or non-charter buses, airport or charter limousines, airline
crew transport, rental car pickup vans, or
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transportation of cruise ship passengers. The County further reserves
the right to authorize properly identified hotel and motel courtesy
vehicles, which are owned and operated by hotels or motels, to pick up
their customers upon prior arrangement.
3.3 The Operator has the right of ingress and egress over Airport public
roadways, including common use roadways, subject to all laws,
ordinances, rules and regulations which have been established or shall
be established in the future by the Airport, the County, the federal
government, or the State of Florida. Such rights of ingress and egress
shall apply to the Operator's employees, guests, patrons, invitees,
suppliers, and other authorized individuals. The County, while
providing parking facilities to the Operator's employees in common with
employees of Operators and other users of the Airport, retains the
right, at the sole election of the County, to impose a reasonable
charge for the privilege of utilizing these parking facilities.
3.4 The Operator agrees to comply with the federal non-discrimination
requirements set forth on Attachment 1, attached hereto and made a part
hereof. This Agreement may be subject to the requirements of the U.S.
Department of Transportation's regulations, 49 CFR, Part 23, Subpart F.
The Operator agrees that it will not discriminate against any business
owner because of the owner's race, creed, color, national origin, sex,
religion, sexual orientation, marital status, political affiliation,
age or physical or mental disability in connection with the award or
performance of any agreement covered by 49 CFR, Part 23, Subpart F. The
Operator agrees to include the above statements in any subsequent
agreements that it enters into for services under this Agreement and
shall cause those businesses to similarly include the statements in
further agreements.
(a) Operator hereby acknowledges and agrees to abide by the rules,
regulations and provisions promulgated by the Small
Disadvantaged Business Enterprise Affirmative Action Program
for the Aviation Department, Broward County, Florida, as
provided by the Board of County Commissioners, Broward County,
Florida, pursuant to 49 CFR, Part 23, of the Regulations of
the Office of the Secretary of the United States Department of
Transportation. Operator shall be required to comply with any
and all additional applicable provisions of 49 CFR, Part 23,
implementing Section 511(h) of the AAIA. Operator shall
submit such reports. as may be required by County in the form
specified by the County for the purpose of demonstrating
compliance with this subsection.
(b) The Operator shall submit an SDBE Affirmative Action Plan
relating to the utilization of qualified disadvantaged
business enterprises whether directly or indirectly involved
in this Agreement. Such plan should detail the
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Operators efforts to invite disadvantaged business enterprises
to contract with Operator for professional, technical, vendor,
and supplier services. These firms must be certified as
disadvantaged business enterprises by the Broward County
Division of Equal Employment & Small Business Opportunity.
(c) The Broward County Board of County Commissioners enacted an
ordinance establishing SDBEAAP and including goals in all
County procurement activity of $75,000 or more and in other
selected County procurement activity. This Agreement does have
assigned SDBE goals as stated: 10% minority business
enterprise participation (any group); and 10% women business
enterprise participation.
(d) County and Operator agree that prime and subcontract awards to
Small Disadvantaged Business Enterprises and Minority -
Majority Joint Ventures are crucial to the achievement of
County's SDBE participation goals. In an effort to assist
County in achieving its established goals for this contract,
Operator agrees to take affirmative actions to meet the
current SDBE participation goals established by County.
(e) Operator incorporates by Attachment II, attached hereto and
made a part hereof, the names, addresses, scope of work and
dollar value of SDBE participation on the Schedule of SDBE
Participation. Operator understands that each minority and/or
women-owned firm utilized to meet County's goals must be
certified by the Broward County Division of Equal Employment &
Small Business Opportunity. Any subcontractors of Operator
other than those set forth on Attachment II must receive the
prior written approval of the Aviation Department. To qualify
for SDBE participation, any subcontractors of Operator must be
certified by the Broward County Division of Equal Employment
& Small Business Opportunity.
(f) Operator understands that it is the responsibility of the
Aviation Department and the Broward County Division of Equal
Employment & Small Business Opportunity to monitor compliance
with the SDBEAAP. In that regard, Operator agrees to furnish
quarterly reports to both parties on the progress of SDBE
participation commencing with the end of the first quarter of
this Agreement.
(g) Operator shall not unlawfully discriminate against any person
in its operations and activities in its use or expenditure of
the funds or any portion of the funds provided by this
Agreement and shall affirmatively comply with all applicable
provisions of the Americans with Disabilities Act (ADA) in the
course of providing any services funded in whole or in part by
County,
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including Titles I and II of the ADA (regarding
nondiscrimination on the basis of disability), and all
applicable regulations, guidelines, and standards.
(h) Operator's decisions regarding the delivery of services under
this Agreement shall be made without regard to or
consideration of race, age, religion, color, gender, sexual
orientation, national origin, marital status, physical or
mental disability, political affiliation, or any other factor
which cannot be lawfully or appropriately used as a basis for
service delivery.
(i) Operator shall comply with Title I of the Americans with
Disabilities Act regarding nondiscrimination on the basis of
disability in employment and further shall not discriminate
against any employee or applicant for employment because of
race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, or
physical or mental disability. In addition, Operator shall
take affirmative steps to ensure nondiscrimination in
employment against disabled persons. Such actions shall
include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff, termination, rates of pay, other forms of
compensation, terms and conditions of employment, training
(including apprenticeship), and accessibility.
(j) Operator shall take affirmative action to ensure that
applicants are employed and employees are treated without
regard to race, age, religion, color, gender, sexual
orientation, national origin, marital status, political
affiliation, or physical or mental disability during
employment. Such actions shall include, but not be limited to,
the following: employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff, termination,
rates of pay, other forms of compensation, terms and
conditions of employment, training (including apprenticeship),
and accessibility.
3.5 All vehicles (including both new and used) that will provide services
under this Agreement must be accessible to disabled persons and must
comply with all applicable provisions of the Americans with
Disabilities Act of 1990, 47 CFR Section 38, and all other applicable
rules and regulations promulgated thereunder and all other federal,
state, County and local laws, rules, and regulations.
3.6 It is understood and agreed between the County and Operator that the
County maintains and operates the Fort Lauderdale-Hollywood
International Airport as a public facility, and that in order to render
proper airport services to the public, it is necessary that the
Operator provide and make available the services set forth herein, and
that failure of Operator to provide these services shall constitute a
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breach of this Agreement, entitling the County to immediately terminate
the same and shall entitle County to pursue any and all other remedies
provided under this Agreement or any remedies available to County at
law or in equity.
3.7 The County reserves the right to change, remove, add or delete Shuttle
Bus Routes or Parking Facilities for any reason whatsoever, including
without limitation, operational needs, other Airport purposes, or
during construction activities. Furthermore, any such change, removal,
addition, or deletion of any of the foregoing may be upon 24-hours
written notice to the Operator. In the event the Aviation Department
deems it desirable to change, remove, add or delete any Shuttle Bus
Routes or any Parking Facilities, then upon written notice by the
Aviation Department, Operator shall be required to cease operating from
such deleted areas and to operate from any charged or added areas,
without additional expense to County. In the event of any change,
removal, addition or deletion as provided hereunder, then an exhibit
reflecting such shall be executed by the Director of Aviation and
attached to this Agreement.
ARTICLE IV
EQUIPMENT REQUIREMENTS
4.1 The Operator will provide a "Core Bus Fleet" sufficient to provide the
normal day-to-day scheduled Shuttle Bus Services. This Core Bus Fleet
must be in the numbers set forth on Exhibit C, attached hereto and made
a part hereof, and must satisfy the specifications set forth on Exhibit
C, and must be available and ready for operation on the Commencement
Date. The Operator will also provide a "Supplemental Bus Fleet" to meet
excess demand, back-up, on-demand and special service needs, as
requested in advance by the Aviation Department. A distinction is made
in this Agreement between vehicles comprising the "Core Bus Fleet" and
vehicles comprising the "Supplemental Bus Fleet," as set forth below.
4.2 Core Bus Fleet, Operator shall be responsible for the purchase,
ownership and maintenance of the Core Bus Fleet. The Core Bus Fleet
must be vehicles that meet the specifications set forth on Exhibit C,
and at the Commencement Date of this Agreement must be comprised of the
number of vehicles specified on Exhibit C. The vehicles purchased for
the Core Bus Fleet must be used exclusively for this contract and shall
be eligible for the Capital Equipment Charge payable by the County each
calendar month during the term of this Agreement in accordance with
Article V of this Agreement The Operator shall notify the Aviation
Department if any vehicle within the Core Bus Fleet becomes
unserviceable (i.e., unsafe, poor performance or appearance) during the
term of this Agreement and, upon the written approval of the Aviation
Department, the Operator shall replace same. In addition, the Aviation
Department may direct that additional vehicles be added to the Core Bus
Fleet. Any such replacement or addition to the Core Bus Fleet that
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is made with the written approval of the Aviation Department shall be
reflected on an amended Exhibit C, as hereinafter provided, and shall
be eligible for the Capital Equipment Charge.
(a) The vehicles in the Core Bus Fleet shall be "new" when first
put into service at the Airport by the Operator. The term
"new" as used herein shall mean that such vehicles, when put
into service at the Airport, shall be either of the same model
year as the year such vehicle is first put into service at the
Airport or shall be not more than one (1) model year older
than the year it is first put into service at the Airport. In
order to determine the Capital Equipment Charge for used
vehicles in the Core Bus Fleet, the "Operator's investment"
(for purposes of Article V) in a used vehicle shall be
determined by a certified appraisal which shall be prepared by
a franchised dealer member of the Mid-size Bus Manufacturer's
Association, or other organization acceptable to the Aviation
Department.
(b) Vehicles will be added to (or will replace vehicles in) the
Core Bus Fleet as required in writing by the Aviation
Department in its sole discretion, and in such event the
Capital Equipment Charge shall be adjusted pursuant to Article
V. In the event vehicles are added to, or replaced in, the
Core Bus Fleet pursuant to these provisions, then such change
in the Core Bus Fleet shall be reflected In an amendment to
Exhibit C, which shall be signed by the Director of Aviation
and attached to this Agreement. In the event of any conflict
between the terms of Exhibit C and any other terms of this
Agreement, the terms of Exhibit C shall control. In the event
that due to any changes in the Core Bus Fleet, the parties
agree that an adjustment of the In-Service Bus Hour Charge is
appropriate, then such adjustment shall be made by an
amendment to this Agreement, which shall be executed with the
same formality and of equal dignity herewith.
(c) Provision for Future Addition of Specialty Vehicles to Core
Bus Fleet Inventory. It is anticipated that the Aviation
Department shall require the Operator to purchase additional
"Specialty Vehicle(s)" such as trams, airfield buses, or
similar vehicles, subsequent to the Commencement Date, which
will be added to the Core Bus Fleet for the purpose of
inter-garage passenger transportation, transportation to and
from remote aircraft passenger loading areas, or other
purposes determined by the Aviation Department to be necessary
for Airport operational requirements. Such purchase and
addition to the Core Bus Fleet shall only be pursuant to the
written requirements of the Aviation Department and upon such
purchase, an amendment to Exhibit C that includes a
description of the Specialty Vehicle(s) and the date of
addition to the Core Bus Fleet inventory shall be signed by
the Director of Aviation and attached to this Agreement. No
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vehicle in the Core Bus Fleet shall be deemed a Specialty
Vehicle, unless specifically identified as such on Exhibit C
(or an amendment thereto) which has been signed by the
Director of Aviation. In recognition of the unique procurement
and resale markets for Specialty Vehicle(s), it is agreed that
if any "qualified Specialty Vehicle(s)" (as hereinafter
described) are in the Core Bus Fleet inventory at the time of
termination of this Agreement (other than a termination due to
the default of Operator); then the County or its designee
shall purchase and the Operator shall sell such qualified
Specialty Vehicle(s) to the County or its designee. The
obligation to purchase herein contained shall only apply to
Specialty Vehicle(s) that meet the following criteria (such
vehicle(s) being called "qualified Specialty Vehicle(s)"): (i)
the vehicle must have been in the Core Bus Fleet inventory for
only a period of three (3) years or less at the time of
termination of this Agreement; (ii) the vehicle must be
identified as a Specialty Vehicle on Exhibit C (or amendment
thereto); and (iii) the vehicle must be in good repair and
operating condition and good appearance (which shall be
confirmed by inspection of the County or its designee). The
purchase price for each qualified Specialty Vehicle shall be
an amount limited to the "unamortized balance of the vehicle
investment" (as defined in Section 5.4 hereof). In the event
of any such purchase of qualified Specialty Vehicle(s) by the
County or its designee, the Operator shall deliver good,
marketable title to the purchased vehicles to the County or
its designee, free and clear of all liens, claims and
encumbrances whatsoever. In the event that any qualified
Specialty Vehicle is encumbered by a mortgage, then the
Operator must obtain a release from the mortgagee and the
purchase price shall be paid to the Operator upon receipt of
evidence that title certificates for the qualified Specialty
Vehicle(s) will be delivered to the County or its designee
free and clear of all liens, claims and encumbrances
whatsoever. Upon payment to the Operator of the amount
required hereunder, the Operator shall deliver the qualified
Specialty Vehicle(s) and the title certificates to the County
or its designee, free and clear of all liens, claims and
encumbrances, and shall execute the title certificates any and
all other documents required to effect such transfer. Nothing
herein contained shall be deemed to obligate County or its
designee to purchase any qualified Specialty Vehicle upon any
termination of this Agreement due to the default of the
Operator.
4.3 Supplemental Bus Fleet, From time to time, the Operator may be required
to provide additional shuttle bus vehicles and equipment acceptable to
the Aviation Department to meet periodic increases in demand or to
provide specific on-demand services. Such services shall be provided
upon the written request of the Aviation Department. The "Supplemental
Bus Fleet" shall consist of vehicles ranging in size from vans to full
size passenger coach buses. The Supplemental Bus Fleet may be owned,
leased or hired by Operator and such vehicles shall meet the minimum
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specifications set forth on Exhibit D, attached hereto and made a part
hereof. The Operator shall not use any vehicle that is unserviceable
(i.e., unsafe, poor performance or appearance) for Supplemental Bus
Fleet services. There shall be no Capital Equipment Charge payable with
respect to any vehicles in the Supplement Bus Fleet.
4.4 It is understood and agreed that if operations or vehicles must be
increased or expanded, the Aviation Department will consult with
Operator on the selection of type of equipment and decision as to
whether to include any such equipment in the Core Bus Fleet, or the
Supplemental Bus Fleet, and whether a lease of the equipment is
appropriate. In any case, the Aviation Department shall be entitled to
make the final decision as to the necessity for additional operations
or equipment. Should the Aviation Department decide that the Core Bus
Fleet must be increased, the Operator shall provide the necessary
capital, personnel and additional vehicles and other equipment to meet
such requirements, subject to the provisions of this Agreement. Each
vehicle added to the Core Bus Fleet shall be described on an amendment
to Exhibit C, which shall be executed by the Director of Aviation, and
shall be eligible for the Capital Equipment Charge in accordance with
Article 5 of this Agreement.
4.5 Leasing of Vehicles or other Equipment, During the term of this
Agreement certain shuttle requirements may be better served by leasing
vehicles or other equipment. Any such lease shall be subject to the
prior written approval of the Aviation Department. In the event that
the Aviation Department shall determine that any such lease is not in
the best interest of the Airport or the County, for any reason
whatsoever, then such lease shall not be entered into by the Operator.
Rental payments under leases that have been approved in writing by the
Aviation Department shall be a Reimbursable Expense for the Operator
pursuant to Section 5.5(a)(3) hereof, and shall not be included in the
Capital Equipment Charge or any other charge. Maintenance and repairs
for any leased equipment and vehicles included in the Core Bus Fleet
shall not be a Reimbursable Expense, it being recognized by the parties
that all such costs shall be included in the In-Service Bus Hour
Charge.
ARTICLE V
FEES, CHARGES, AND ACCOUNTABILITY
5.1 The County will pay the Operator the fees and charges during the term
of this Agreement that are set forth in the remaining Sections of this
Article V. It is expressly understood and agreed that all costs and
expenses of the Operator of whatever kind or nature and whether imposed
directly upon the Operator under the terms and provisions hereof or in
any other manner whatsoever because of the requirements of the
operation of the Airport Shuttle Bus Service or otherwise under
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this Agreement shall be borne by the Operator without any compensation
or reimbursement from the County, except as specifically contained in
this Agreement.
(a) Except as specifically set forth herein, the entire and
complete costs and expenses of the Operator's services and
operations hereunder shall be borne solely by the Operator.
Under no circumstances shall the County be liable to any third
party (including the Operator's employees or any permitted
subcontractors) for any costs and expenses incurred by the
Operator, and under no circumstances shall the County be
liable to the Operator for the same, except as specifically
contained in this Agreement.
(b) All payment and performance obligations of County for future
fiscal year periods shall be subject to the availability of
funds. Broward County has presently budgeted funds for this
Agreement through SEPTEMBER 30, 1997. Thus, the term of this
Agreement shall continue into or through subsequent fiscal
years only if funds for payment of the Operator are budgeted
and made available by the Broward County Board of County
Commissioners. Termination due to failure to budget and make
funds available shall not be deemed a breach of this
Agreement.
5.2 Annual Management Fee
(a) An Annual Management Fee, which will be computed and payable
monthly in arrears, shall be payable by the County to the
Operator in the amount set forth below for each Contract Year:
(i) For the first Contract Year, the Annual Management
Fee shall be $396,829.00.
(ii) For the second Contract Year, the Annual Management
Fee shall be $396,829.00.
(iii) For the third Contract Year, the Annual Management
Fee shall be $396,829.00.
(b) The Operator acknowledges and agrees that the annual
Management Fee covers and includes for each Contract Year: (i)
all salary and benefits of the on-site management team of the
Operator, (ii) all profit of the Operator, and (iii) all
amounts for overhead and administration, including without
limitation, business insurance, finance and interest expenses,
supervisory, legal, and other overhead costs. The Operator
shall not be entitled to payment by the County of any amounts
on account of any of the foregoing items, except payment of
the monthly installments of the Annual Management Fee.
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5.3 In-Service Bus Hour Charge
(a) An "In-Service Bus Hour Charge" for each hour any vehicle in
the Core Bus Fleet is used to provide services under this
Agreement shall be payable by the County to the Operator in
the amount set forth below during each Contract Year:
First Contract Year: $16.35, for each In-Service Bus Hour
Second Contract Year: $16.98, for each In-Service Bus Hour
Third Contract Year: $16.98, for each In-Service Bus Hour
(b) The In-Service Bus Hour Charge will be computed and payable in
arrears. Concessionaire shall submit invoices on the 1st and
the 15th day of each calendar month. An "In-Service Bus Hour"
is defined as a one hour time period during which a vehicle is
providing authorized services under this Agreement.
(c) The Operator acknowledges and agrees that the In-Service Bus
Hour Charge covers and includes all operating costs for each
vehicle, including without limitation, payroll costs, fuel,
maintenance, vehicle insurance and repairs. The Operator shall
not be entitled to payment by the County of any amounts on
account of any of the foregoing items, except payment of the
applicable In-Service Bus Hour charge.
5.4 Capital Equipment Charge (Core Bus Fleet)
(a) The County agrees to pay to the Operator a charge ("Capital
Equipment Charge") each calendar month in arrears during the
term of the Agreement based on the "Operator's investment" (as
hereinafter defined) in each vehicle in the Core Bus Fleet
inventory during such month.
(b) The Capital Equipment Charge for each vehicle shall be
computed as follows: (i) the Operator's investment in each
vehicle included in the Core Bus Fleet shall be multiplied by
the fraction 1/72; and (ii) there shall be added to the
product obtained in (i) preceding, monthly interest computed
at the rate of one-twelfth of the "prime rate" (as hereinafter
defined) of interest on the "unamortized balance of the
vehicle investment" (as hereinafter defined).
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(1) The "prime rate" shall be as published in the Wall
Street Journal on the date the Capital Equipment
Charge is set for each vehicle. The "prime rate" set
for each vehicle shall remain the same throughout the
term of this Agreement and shall not fluctuate.
(2) The "unamortized balance of the vehicle investment"
shall be determined by multiplying (i) the Operator's
investment in the vehicle by (ii) a fraction, the
numerator of which shall be determined by subtracting
from 72 the number of whole calendar months
(subsequent to the Commencement Date) that the
vehicle has been in inventory, as of the first day of
the month for which the charge is being determined
AND the denominator of which shall be 72.
(3) The "Operator's investment" in a vehicle shall be the
actual purchase price paid by the Operator for such
vehicle, plus any sales taxes paid, but shall only
include costs incurred by Operator to a third party,
which are substantiated as such by a report prepared
by an independent Certified Public Accountant ("CPA
Report"), and shall not include any finance or
interest expenses, or administration, supervisory, or
overhead or internal costs of the Operator or any
payments to any affiliate of Operator. In order to
determine the Capital Equipment Charge for used
vehicles in the Core Bus Fleet, the "Operator's
investment" in a used vehicle shall be determined by
a certified appraisal which shall be prepared by a
franchised dealer member of the Mid-size Bus
Manufacturer's Association, or other organization
acceptable to the Aviation Department ("Certified
Appraisal"). Copies of the CPA Report and the
Certified Appraisals for all vehicles in the Core Bus
Fleet shall be provided to the Aviation Department,
together with all other documentation reasonably
requested by the Aviation Department.
(c) In the event that any vehicle, at any time during the term of
this Agreement has been lost or destroyed or removed from the
active vehicle inventory in the Core Bus Fleet, then there
shall be deducted from the Operator's investment in the Core
Bus Fleet an amount equal to the unamortized balance of the
vehicle investment for the vehicle that is lost, destroyed or
being removed from the Core Bus Fleet. The Aviation Department
shall be given not less than thirty (30) days notice of any
vehicle that is lost or destroyed. Any other removal of a
vehicle from the Core Bus Fleet inventory shall only occur
with the written consent of the Aviation Department.
(d) In the event that any vehicle is added to the Core Bus Fleet
inventory [either as a replacement vehicle for one lost,
destroyed or removed pursuant to (c), above, or as an
additional vehicle pursuant to the written request of the
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Aviation Department] then there shall be added to the
Operator's investment in the Core Bus Fleet an amount equal to
the lesser of: (i) the Operator's investment in the
replacement or additional vehicle that has been approved in
writing by the Aviation Department; or (ii) the unamortized
balance of the vehicle investment pertaining to the vehicle
(if any) that was removed from the Core Bus Fleet inventory.
(e) Notwithstanding any other provision of this Agreement, it is
hereby understood that the Operator may place a mortgage,
lien, conditional xxxx of sale or other encumbrance or
security interest (hereinafter called "the mortgage") on
individual vehicles in the Core Bus Fleet, provided, however,
that the mortgage with respect to each vehicle: (i) does not
secure an indebtedness in excess of ninety percent (90%) of
the purchase price of the encumbered vehicle; (ii) shall
contain provisions calling for payment of the indebtedness and
interest in successive monthly installments; (iii) shall
receive the prior written approval of the Aviation Department,
and (iv) shall contain the following provisions to be binding
upon the Operator and the mortgagee.
(1) In the event of any default under the mortgage, the
mortgagee shall give County written notice of such
default at the same time as such notice is given to
the Operator, together with a statement of any and
all sums which would at that time be due under the
mortgage, designating where and to whom payment shall
be made. Such written notice shall be given at the
address of County set forth in the notice provision
of this Agreement. The County shall have the right,
but not the obligation, to cure any such default,
with the County's period to cure such default being
equal to thirty (30) days beginning on the expiration
of any cure period provided to the Operator. Operator
hereby consents to all such payments made by County
to mortgagee and Operator further agrees that the
amount of all such payments made by County to
mortgagee shall be a set off and deducted from all
amounts payable by County to Operator, pursuant to
Article V or any other provision of this Agreement.
(2) In the event of the termination of this Agreement by
the County and in the event that the Core Bus Fleet
or any vehicle thereof is then encumbered by the
mortgage, the Operator shall have the right to pay
the mortgagee the outstanding indebtedness then due
under the mortgage together with interest due as of
such date, without penalty, and to secure a release
of the Core Bus Fleet or any vehicle thereof from the
mortgage, and to have such mortgage canceled and
discharged. In the event the Operator does not pay
the mortgagee as aforesaid, the County or its
designee shall have the right but not the obligation
to itself pay
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directly to the mortgagee the outstanding
indebtedness then due under the mortgage together
with interest due as of said date, without penalty,
and to secure the release of the Core Bus Fleet or
any vehicle thereof from the mortgage and to have
such mortgage canceled and discharged. The Operator
and the mortgagee shall execute and deliver to the
County or its designee upon the payment by the County
to the mortgagee as aforesaid, any and all
instruments which may be necessary or desirable so as
to release the vehicle(s) from the mortgage and from
any and all rights of the mortgagee thereto, and to
convey good, marketable title in the vehicle(s), free
of all liens, claims and encumbrances, to the County
or its designee.
(3) Upon execution of the mortgage, the mortgagee shall
give the County a true copy thereof. No amendments
shall be made to the mortgage without the prior
written consent of the Aviation Department and a
true copy of any amendments shall be provided to the
Aviation Department. The provisions of the mortgage
and any amendments shall not be in violation of the
foregoing provisions.
(f) The Operator hereby agrees that it shall promptly make the
payments required under any mortgage and shall not be in
default under any term or provision thereof. The Operator
further agrees that it shall give prompt written notice to the
Aviation Department in the event it is in default in making
any payments under any mortgage and in the event it receives
any notice or communication from the mortgagee indicating
that the Operator is in default under any terms or provisions
of any Mortgage.
5.5 Reimbursable Expenses
(a) Reimbursable Expenses shall include only the following:
(1) The direct hourly expense associated with providing
Supplemental Bus Fleet services requested in writing
by the Aviation Department in accordance with Section
4.3 of this Agreement. The direct hourly expense for
Supplemental Bus Fleet services shall be limited to
the rates specified on Exhibit D for the vehicles
identified thereon. For all other Supplemental Bus
Fleet services, the direct hourly expense for any
such vehicle shall be limited to the actual
out-of-pocket expenses of the Operator, with no
profit, overhead or other administrative expenses.
(2) The out-of-pocket cost associated with any service
other than Core Bus Fleet or Supplemental Bus Fleet,
that is specifically approved in advance in writing,
by the Aviation Department that is necessary to
fulfill an
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Aviation Department requirement during the term of
this Agreement. The County shall reimburse only the
actual out-of-pocket expenses of the Operator, with
no profit, overhead or other administrative expenses.
(3) Lease payments for vehicles and equipment,
specifically approved in advance, in writing by the
Aviation Department, that is necessary to fulfill an
Aviation Department requirement during the term of
this Agreement, other than Core Bus Fleet or
Supplemental Bus Fleet. The County shall reimburse
only the actual out-of-pocket expenses of the
Operator, with no profit, overhead or other
administrative expenses.
(4) Travel expenses pursuant to Section 6.17 of this
Agreement, provided such expenses must be approved in
advance by the Aviation Department. Such travel
expenses shall include identifiable per diem, meals
and lodging, taxi fares and miscellaneous
travel-connected expenses subject to the limitations
of Section 112.061, Florida Statutes. Meals for class
C travel inside Broward County will not be
reimbursed. Lodging will be reimbursed only for room
rates equivalent to Holiday Inn, Xxxxxx Xxxxxxx or
Ramada Inn. Mileage will not be reimbursed for any
travel within the tri-county area of Dade, Broward
and Palm Beach County.
(b) The County shall pay approved Reimbursable Expenses to the
Operator, monthly in arrears.
5.6 Monthly Report, Payment. On or before the fifteenth (15th) day of each
month, the Operator shall submit to the County a monthly report,
certified by an officer of the Operator on a form approved in writing
by the Aviation Department. This monthly report shall set forth the
monthly installment of the Annual Management Fee, the monthly
In-Service Bus Hour Charge, the monthly Capital Equipment Charge, and
any Reimbursable Expenses, by category, for the previous month.
(a) The monthly report shall contain documentation of the
In-Service Bus Hour Charge, Capital Equipment Charge and all
Reimbursable Expenses, including activity reports, vehicle
inventory, and copies of invoices. If requested by the County
at any time, the Operator shall provide original invoices
and/or front and back of canceled checks, and all other
documentation the Aviation Department shall reasonably
request. THE MONTHLY REPORT SHALL ALSO INDICATE THE CUMULATIVE
AMOUNT OF SDBE PARTICIPATION TO DATE.
(b) The monthly report shall include a statement from the Operator
indicating, on a monthly basis: (i) the actual number of
vehicle hours by category of
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vehicle, and whether it is in the Core Bus Fleet or the
Supplemental Bus Fleet, and (ii) the number of passengers by
route. The monthly report shall be retrievable on a data base
in a format that is compatible with Aviation Department
software, and if requested by the Aviation Department, the
Operator will provide both a hard copy report and a computer
disk containing the data on a monthly basis.
(c) Upon acceptance by the Aviation Department of the monthly
report, the County will process and pay the invoices within
thirty (30) days. If, during the process, certain expenses or
charges are not approved for payment, such expenses or charges
shall be deducted from the invoice and the approved portion of
the invoice shall be processed for payment.
5.7 The Operator shall keep separate books and records for its Airport
operations. Such books and records shall be kept and maintained in
accordance with generally accepted accounting practices. Such books and
records shall be kept and maintained during the "Retention Period" (as
hereinafter defined). The "Retention Period" is defined as the greater
of: (i) the required retention period of the Florida Public Records Act
(Chapter 119, Fla. Stat), if applicable, or (ii) the period of time
covering the term of this Agreement and any extensions thereof and for
a period of three (3) years after the expiration of this Agreement or
(ii) if any audit has been initiated and audit findings have not been
resolved at the end of the three years, the books and records shall be
retained until resolution of the audit findings. If the Florida Public
Records Act is determined by County to be applicable to Operator's
records, Operator shall comply with all requirements thereof, however,
no confidentiality or non-disclosure requirement of either federal or
state law shall be violated by Operator. Such books and records shall
be true, full and accurate and shall include without limitation,
payroll records, worker's compensation payment records, liability
insurance records, and books of account (Including records of original
entry and daily forms) recording, connected with, or related to, the
operations of the Operator and any approved subcontractors. Such books
and records shall include but not be limited to, all matters relating
to the fees and charges payable by the County to the Operator under
this Agreement, and such additional information as the County may, from
time to time require. Such records shall include a separate recording
of the actual number of service hours by individual vehicle including
the number of passengers thereon and whether such vehicle is in the
Core Bus Fleet or the Supplemental Bus Fleet.
5.8 In performing on-demand services, the Operator will keep a separate
record of the actual number of vehicle hours (by type) in providing the
service. The Operator will also record the number of passengers thereon
and keep separate records on the number of trips and passengers thereon
of any approved subcontractor providing services hereunder. The
Operator shall, at its own expense, install, maintain and
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use such equipment and devices for recording the hours of service as
shall be appropriate to its business and necessary or desirable to keep
accurate records of the same and as the Aviation Department may from
time to time require. The Operator shall at all reasonable times allow
inspection by the agents and employees of the County of all such
equipment or devices.
5.9 The County shall have the right through its representatives, and at all
reasonable times during the Retention Period, to inspect and audit any
and all books and records relating to this Agreement and to determine
the correctness of the fees and charges paid by the County to the
Operator for any annual period which ended no more than three (3) years
prior to the date of commencement of such audit. The County shall have
the right to audit the books and records of all approved Subcontractors
and of affiliated and related parties of the Operator, if during the
review of Operator's books and records it is determined that there are
affiliated or related party financial transactions. Said books and
records shall be made available at the Airport premises or at the
corporate headquarters of the entity, as may be directed by the County.
In the event that any such audit reflects that the total fees and
charges actually paid by County during any annual period shall exceed
the fees and charges due and owing for such period, then a refund will
be made by the Operator to the County in the amount of such difference,
plus interest thereon from the date of overpayment at the rate of
eighteen percent (18%) per annum. If, as a result of any audit, it is
established that the Operator has overstated the amount of fees and
charges payable by the County by one (1%) percent or more during, the
annual reporting period covered by the audit, the entire expense of
said audit shall be borne by the Operator.
ARTICLE VI
OPERATIONAL REQUIREMENTS AND STANDARDS
6.1 The hours of business during which Operator is to conduct its
operations shall be twenty-four (24) hours a day, seven (7) days a
week, including holidays. The Operator, shall provide adequate
personnel at all times and this requirement shall be reflected in its
management and operation plan. The Operator shall provide additional or
reduced staffing at such times as may be determined by the Aviation
Department.
6.2 Operator shall submit a management and operation plan to the Aviation
Department for approval prior to the Commencement Date of this
Agreement. The Operator agrees to update the plan on an annual basis,
if so directed by the Aviation Department, and submit such updated plan
for approval by the Aviation Department. The burden of proving
compliance with the management and operation plan rests with the
Operator. The Aviation Department must approve all revisions and/or
updates to said plan in writing, and the Operator agrees to
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demonstrate compliance with the rules, regulations, and operating
procedures contained within the management and operation plan. A
failure to comply with the management and operation plan that has been
approved by the Aviation Department shall be a default under this
Agreement, entitling the County to exercise any and all remedies
available hereunder. In the event of any conflict between the terms of
the management and operation plan and any terms of this Agreement, the
terms of this Agreement shall control.
6.3 Operator agrees to maintain all vehicles in first class appearance and
mechanical condition throughout the duration of this Agreement.
Vehicles will be swept at the beginning of each shift and at any time
during each shift as necessary. In addition, all debris, trash, and
other items will be removed from the interior of the vehicle after each
round trip. Vehicles will be washed and cleaned (interior and exterior)
at least twice per week and at such other times as necessary.
6.4 Operator agrees to provide, at its expense, an adequate number of
suitable and operational radios to perform all services required by
this Agreement. Allowance should be made for downtime caused by routine
maintenance, recharging of batteries, equipment failures, or for any
other reasons.
6.5 Operator shall provide all service and maintenance for vehicles,
including but not limited to, gas, oil, repairs. Fueling and
maintenance of vehicles shall be done while vehicles are not required
to be in service. The total number of vehicles required to be
operational during a shift will not be decreased for any period of time
to allow for fueling or maintenance of vehicles.
6.6 Vehicles must be equipped with a fully functioning air-conditioning
system and proper safety equipment. All vehicles shall be equipped with
signs and numbers on the front, rear and right side, and/or any other
location the Aviation Department deems necessary, with the words
designated by the Aviation Department.
6.7 Operator agrees to maintain minimum headway times and maximum
frequency. At no time will vehicles exceed the headway times set forth
on Exhibit B, provided that by verbal notice to the Operator from the
Aviation Department (which verbal notice shall be followed by written
confirmation) such headway times may be increased or decreased to meet
the operational needs of the Aviation Department. All such changed
headway times shall be attached to this Agreement, as a supplement to
Exhibit B, which shall be signed by the Aviation Director. Vehicles
should be evenly spaced throughout the system. One additional
operational vehicle should be available at all times to be placed in
service in an emergency or during periods of high demand. It is the
intent and purpose of this agreement that the Operator shall conduct
the services required hereunder in such a manner as to provide for the
cost efficient movement of passengers and employees using the Airport.
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6.8 The Operator shall furnish, at its own cost and expense, managers,
supervisors, drivers and such other employees as may be necessary for
the proper conduct and operation of the services required hereunder.
The on-site management team shall consist of a full time Manager of
Shuttle Bus Services, and a least five (5) persons who are shift
supervisory personnel. All such employees shall possess all necessary
permits, licenses, approvals, and certificates required by any
applicable law, ordinance, rule or regulation of Broward County, the
State of Florida or the United States. The Manager of Shuttle Bus
Services may not be changed without the prior written approval of the
Aviation Department.
6.9 The Operator shall establish and implement personnel policies that will
provide, as of the Commencement Date of this Agreement, that bus
drivers who have been employed by the previous shuttle bus operator
shall be given a preference in hiring as employees of the Operator. All
employees of the Operator shall wear legible name tags while on duty.
6.10 The Operator's representatives, agents, managers, supervisors, drivers,
and employees shall maintain the highest standards of service and shall
be courteous, polite and inoffensive in their conduct and demeanor.
Upon objection from the Aviation Department concerning the conduct,
demeanor or appearance of such persons, the Operator shall forthwith
take all steps necessary to remove the cause of the objection and
impose such disciplinary actions against any employee as may be
required by company policy.
6.11 Operator shall assure that all management employees and all other
employees, including drivers, that have direct contact with the public
have at least eight (8) hours of customer service training annually
(including participation in the Airport Ambassador Program). The
Aviation Department shall be given notice of company customer service
training at least two (2) weeks in advance of such training. The
Aviation Department reserves the right to send a representative(s) to
observe such training.
6.12 The Operator's employees, who are in contact with the public, must wear
distinctive uniforms while on duty identifying them as the Operator's
employees, and the style, color, and insignia of such uniforms and the
employee's nameplate must have been approved in writing in advance by
the Aviation Department.
6.13 All employees of the Operator parking their own personal vehicles on
Airport property shall park such vehicles in the employee parking areas
designated by the Aviation Department and shall be subject to the fees
promulgated for such lot.
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6.14 The Operator shall assure that all drivers of any vehicles are licensed
to drive the type of vehicles assigned to them and have at least eight
(8) hours of driver safety training annually. The Aviation Department
shall be given notice of such training at least two (2) weeks in
advance of such training. The Aviation Department reserves the right to
send a representative(s) to observe such training.
6.15 The Operator shall select and appoint a full time Manager of Shuttle
Bus Services, who shall be in complete charge of Operator's operations,
and whose sole and full time duties shall be as Manager of Shuttle Bus
Services at the Airport. Such person shall be a highly qualified and
experienced manager, with at least three (3) years of experience in
managing a ground transportation operation of transporting passengers
and employees.
(a) The Manager of Shuttle Bus Services shall be vested with full
power and authority to take all necessary actions where a
prompt response is required to maintain or restore Shuttle Bus
Services, prior to or without obtaining company headquarters'
approval of such actions. In addition, the Manager of Shuttle
Bus Services shall be responsible to respond in writing to
customer complaints regarding Shuttle Bus Services and report
such complaints and their resolution to the Aviation
Department.
(b) The Manager of Shuttle Bus Services shall ordinarily be
available during regular business hours, and at times during
the Manager's absence an equally authorized and qualified
supervisor shall be in charge and available. Operator shall
provide to the Aviation Department the daily schedule for the
manager and all other supervisory personnel, and shall notify
the Aviation Department of any changes to that schedule. In
addition, when on duty, the manager and all supervisory
personnel must be available to the Aviation Department by
radio contact, at all times. Said radios shall be purchased
and/or leased at the Operator's expense.
(c) Management personnel shall wear proper business attire.
(d) Prior to the Commencement Date, Operator shall submit to the
Aviation Department, for approval prior to his/her assignment,
a complete resume of the person whom the Operator proposes to
designate as the initial Manager of Shuttle Bus Services. In
the event that the Operator intends to replace the Manager of
Shuttle Bus Services for any reason, the Operator shall notify
the Aviation Department in writing of its intent. Operator
shall also submit to the Aviation Department for approval
prior to his/her assignment, a complete
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resume of the person whom Operator proposes to next designate
as Manager of Shuttle Bus Services. The Aviation Department
reserves the right to disapprove Operator's designee for the
position of Manager of Shuttle Bus Services.
(e) In the event that the Aviation Department determines that the
incumbent Manager of Shuttle Bus Services has failed to manage
properly the Operator's operation in a professional, competent
manner at all times or to fully perform his/her duties and
obligations as Operator's representative hereunder, then in
addition to all other rights under this Agreement, the
Aviation Department shall have the right to require the
Operator to replace such manager. The Aviation Department
shall notify the Operator in writing of its demand for
replacement and shall allow the Operator thirty (30) days from
the date of such notice to effect replacement.
6.16 Operator shall devise and implement an orientation program for all new
employees to include customer service training and orientation to
company policies and procedures and provide and document appropriate
training to ensure that Operator's employees at the Airport have a good
understanding of the location of various facilities, businesses and
agencies at the Airport and in the community that such employees may
provide adequate public information. This training must be up-dated on
a regular and on-going basis.
6.17 In recognition that Operator possesses specialized knowledge in the
management and operation of Shuttle Bus Services, the Aviation
Department may at any time require Operator to provide certain
information and input with respect to the operation of the Airports
Shuttle Bus Services. In such event, Operator agrees to fully cooperate
with such inquiries and to be available to the Aviation Department,
including the attending of meetings. Any travel expenses and other
related costs resulting from Operator's compliance with this provision,
subject to the provisions of Section 5.5, shall be Reimbursable
Expenses.
ARTICLE VII
COMPLAINTS
7.1 Operator is obligated to respond to complaints regarding the quality of
service, whether patrons' complaints or on the Aviation Department's
own initiative or otherwise. Such response shall be provided by the
Operator in writing within five (5) working days. The Operator shall
copy the Aviation Department on all correspondence. At the request of
the Aviation Department, Operator shall meet with the Aviation
Department to review any complaints or concerns and to promptly
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correct any deficiencies. The Aviation Department's determination as to
quality of operation or services shall be conclusive, and curative
measures shall be implemented by Operator as expeditiously as possible.
7.2 The Aviation Department shall have the right to inspect the vehicles
during the Operator's regular hours or at any time in case of emergency
to determine whether the Operator has complied with and is complying
with the terms and conditions of this Agreement. The Aviation
Department may, at its discretion, require the Operator to effect
repairs at Operator's expense.
7.3 Operator shall make no improvements, additions, alterations or
modifications to any portion of the Airport premises, including without
limitation, the Shuttle Bus Routes and the Parking Facilities.
Article VIII
COMPLIANCE
8.1 The Operator, its officers, agents, servants, employees, contractors,
licensees and any other person who the Operator controls or has the
right to control shall comply with all present and future laws,
ordinances, orders, directives, rules, and regulations of the United
States of America, the State of Florida, Broward County and all other
local governmental authorities with jurisdiction and their respective
agencies, departments, authorities and commissions which may affect the
Operator or its operations in connection with this Agreement, including
without limitation, the Americans with Disabilities Act, as amended,
and all rules, regulations, and directives thereunder.
8.2 Operator shall pay, on or before their respective due dates, to the
appropriate collecting authority, all federal, state, County and local
taxes and fees, which are now or may hereafter be levied upon the
premises, or upon Operator, or upon the business conducted by the
Operator, or upon any of Operator's property used in connection
therewith, or upon any fees or other amounts payable hereunder, and
shall maintain in current status all federal, state, County and local
licenses and permits required for the operation of the business
conducted by Operator.
8.3 Operator and its approved subcontractors shall pay wages that are not
less than the minimum wages required by federal and state statutes and
County and local ordinances, to persons employed in its operations
hereunder.
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Article IX
ASSIGNMENT
9.1 Operator shall not sell, transfer, assign, pledge, or otherwise
encumber this Agreement, or any portion thereof, or any of its rights
and privileges hereunder, or contract for the performance of any of the
services to be provided by it under this Agreement (collectively, a
"Disposition"), or permit any such Disposition to occur by operation of
law, without the County's prior written consent, which consent may be
granted or withheld by the County in the exercise of its sole
discretion or conditioned upon such additional terms and conditions as
County, in its sole discretion, may seek to impose, including but not
limited to: (i) an assessment of whether or not any proposed assignee
or other party meets the standards and qualifications as proposed by
Operator during the initial selection; (ii) a requirement that any
proposed assignee or other party have a net worth in excess of the net
worth of the Operator, and/or (iii) a requirement that the Operator
not be in default under any of the terms, covenants, and conditions
herein contained. In the event of any Disposition, the Operator shall
not be released of any liability hereunder. In the event of any
Disposition between Operator and an affiliate of Operator, the County
shall require the execution by Operator of a Payment and Performance
Guaranty, in form and substance satisfactory to County, whereby
Operator guarantees the performance of all obligations hereunder and
the payment of all sums due hereunder. This Agreement does not
constitute a lease of any premises, and Operator shall have no right
whatsoever to lease or sublease any areas described in this Agreement.
9.2 For purposes of this Article IX a Disposition shall include any
transfer of this Agreement by merger, consolidation or liquidation or
by operation of law, or if Operator is a corporation (except if
Operator is a corporation whose stock is publicly traded) any change in
ownership of or power to vote a majority of the outstanding voting
stock of Operator from the owners of such stock or those controlling
the power to vote such stock on the date of this Agreement, or if
Operator is a limited or a general partnership or joint venture, any
transfer of an interest in the partnership or joint venture which
results in a change in control of such partnership or joint venture
from those controlling such partnership or joint venture on the date of
this Agreement. Notwithstanding the foregoing, a transfer of stock of
the Operator among its current stockholders or among its current
stockholders and their immediate families, any transfer of stock
resulting from the death of a stockholder, a transfer of partnership or
joint venture interests in Operator among existing partners or among
existing partners or joint venturers and their immediate families, or
any transfer of such an interest resulting from the death of a partner
or joint venturer, shall not be deemed a Disposition for purposes of
this Article.
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9.3 In the event that any Disposition shall occur without the prior written
consent of the County, then in addition to all other available
remedies, the County shall be entitled to immediately terminate this
Agreement. Any written consent required hereunder shall not be
effective unless evidenced by a document of equal dignity with and
executed with the same formality as this Agreement.
Article X
INSURANCE AND INDEMNIFICATION: PERFORMANCE BOND
10.1 Operator shall at all times hereafter indemnify, hold harmless and, at
County Attorney's option, defend or pay for an attorney selected by
County Attorney to defend County, its officers, agents, servants, and
employees against any and all claims, losses, liabilities, and
expenditures of any kind, including attorney fees, court costs, and
expenses, caused by negligent act or omission of Operator, its
employees, agents, servants, or officers, or accruing, resulting from,
or related to the subject matter of this Agreement including, without
limitation, any and all claims, demands, or causes of action of any
nature whatsoever resulting from injuries or damages sustained by any
person or property. The provisions of this section shall survive the
expiration or earlier termination of this Agreement To the extent
considered necessary by the Aviation Department and the County
Attorney, any sums due the Operator under this Agreement may be
retained by County until all of County's claims for indemnification
pursuant to this Agreement have been settled or otherwise resolved; and
any amount withheld shall not be subject to payment of interest by the
County. The provisions of this Section 10.1 shall survive the
expiration or earlier termination of this Agreement.
10.2 Liability Insurance. In order to insure the indemnification obligation
contained above, Operator shall, as a minimum, provide, pay for, and
maintain in force at all times during the term of this Agreement
(unless otherwise provided), the insurance coverages set forth below,
in accordance with the terms and conditions required hereby. Each
insurance policy shall clearly identify the foregoing indemnification
as insured.
(a) Such policy or policies shall be without any deductible amount
and shall be issued by United States Treasury approved
companies authorized to do business in the state of Florida,
and having agents upon whom service of process may be made in
Broward County, Florida.
(b) Comprehensive General Liability Insurance. A Comprehensive
General Liability Insurance Policy shall be provided which
shall contain minimum limits of Five Hundred Thousand Dollars
($500,000.00) per occurrence combined single limit for bodily
injury liability and property damage liability. Coverage must
be afforded on a form no more restrictive than the latest
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edition of the Comprehensive General Liability Policy, without
restrictive endorsements, as filed by the Insurance Services
Office and must include: Premises and/or operations,
Independent contractors, Products and/or Completed Operations
for contracts, Hazard, Broad Form Contractual Coverage
applicable to this specific Contract, including any hold
harmless and/or indemnification agreement. Personal Injury
Coverage with Employee and Contractual Exclusions removed,
with minimum limits of coverage equal to those required for
Bodily Injury Liability and Property Damage Liability.
(c) Business Automobile Liability. Business Automobile Liability
with minimum limits of Five Hundred Thousand Dollars
($500,000.00) per occurrence, combined single limit for Bodily
Injury Liability and Property Damage Liability. Coverage must
be afforded on a form no more restrictive than the latest
edition of the Business Automobile Liability policy, without
restrictive endorsements, as filed by the Insurance Services
Office, and must include: Owned Vehicles, Hired and Non-Owned
Vehicles. Such insurance shall also provide that in the event
any vehicle is operated on any "airside" area of the Airport,
coverage shall be increased to One Million Dollars
($1,000,000.00) per occurrence, combined single limit, bodily
injury and property damage liability.
(d) Workers' Compensation Insurance. Workers' Compensation
insurance to apply for all employees in compliance with the
"Workers' Compensation Law" of the State of Florida and all
applicable federal laws. In addition, the policy(ies) must
include: Employers' Liability with a limit of Five Hundred
Thousand Dollars ($500,000.00) each accident.
10.3 Operator shall furnish to the Contract Administrator Certificates of
Insurance or endorsements evidencing the insurance coverages specified
by this Article prior to beginning performance of work under this
Agreement. The required Certificates of Insurance shall name the types
of policies provided, refer specifically to this Agreement, and state
that such insurance is as required by this Agreement.
10.4 Coverage is not to cease and is to remain in force (subject to
cancellation notice) until all performance required of Operator is
completed. All policies must be endorsed to provide County with at
least thirty (30) days' notice of cancellation and/or restriction. If
the any of the insurance coverages will expire prior to the completion
of the work, copies of renewal policies shall be furnished at least
thirty (30)days' prior to the date of their expiration.
10.5 The aforesaid minimum limits of insurance shall be reviewed from time
to time by the County Risk Management Division and may be adjusted if
the Risk Management Division determines that such adjustments are
necessary to protect
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County's interest. When such policies or certificates have been
delivered by the Operator to the County as aforesaid and at any time or
times thereafter, the County may notify the Operator in writing that
the insurance represented thereby does not conform to the provisions of
this Article X either because of the amount or because of the insurance
company or for any other reason, and the Operator shall have fifteen
(15) days in which to cure any such defect. Compliance with the
requirements of this Article X as to the carrying of insurance shall
not relieve the Operator of its liability under any other provision of
this Agreement.
10.6 As security for the performance of all obligations hereunder, an
Irrevocable Letter of Credit ("Letter of Credit") or a Payment and
Performance Bond ("Bond"), in form and substance satisfactory to
County, in an amount equal to Two Hundred Thousand and 00/100 Dollars
($200,000.00) for the term of the Agreement ("Security Deposit"), shall
be submitted to the County simultaneously with the execution of this
Agreement by the Operator. The Security Deposit shall be in form and
substance satisfactory to the County's Risk Management Division. In the
event of any failure by Operator to perform all obligations of this
Agreement, then in addition to any other rights and remedies available
to County at law or in equity, County shall be entitled to draw down up
to the full amount of the Security Deposit and apply same to all
amounts owed under this Agreement and all damages incurred by County
due to any default of Operator. Upon notice of any such draw, Operator
shall immediately replace the Security Deposit with a new Letter of
Credit or Bond in the full amount of the Security Deposit required
hereunder. The Letter of Credit or Bond, as applicable, shall be kept
in full force and effect throughout the term of this Agreement and for
a period of six (6) months following the termination date of this
Agreement. If a Letter of Credit is posted, then the term and all
renewal terms of the Letter of Credit shall be for a period of not less
than one year. Not less than ninety (90) days prior to any expiration
date of the Letter of Credit or Bond, Operator shall submit evidence in
form satisfactory to County that said security instrument has been
renewed. A failure to renew or replace the Letter of Credit or Bond, as
applicable, within ten (10) days of notice from the Aviation Department
to do so, shall (i) entitle the County to draw down the full amount of
such Security Deposit, and (ii) be a default of this Agreement,
entitling County to all available remedies. Upon receipt of any
replacement Letter of Credit, the County shall return any prior Letter
of Credit, provided the replacement Letter of Credit satisfies the
provisions hereof.
10.7 Each Letter of Credit provided hereunder or under any other Section or
provision of this Agreement shall be provided by a financial
institution of recognized standing authorized to do business in the
State of Florida. Throughout the term of the Letter of Credit, the
financial institution that has issued the Letter of Credit must have an
office in Broward, Dade or Palm Beach County, Florida, at which the
Letter of Credit may be presented for drawing down, and the financial
institution must have been
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in business with a record of successful continuous operation for at
least five (5) years. Each letter of credit shall be in form and
substance satisfactory to the County. Each Bond provided hereunder, or
under any other Section or provision of the Agreement, shall be
executed by a surety company of recognized standing authorized to do
business in the State of Florida and having a resident agent in Broward
County and having been in business with a record of successful
continuous operation for at least five (5) years. Each Bond shall be in
form and substance satisfactory to the County. Furthermore, such surety
company must have at least a "B+" rating in the latest revision of
Best's Insurance Report.
Article XI
TERMINATION BY COUNTY
11.1 In addition to all other remedies available to the County, this
Agreement, at the option of the County, shall be subject to immediate
termination should any one or more of the following events of default
occur:
(a) If Operator shall neglect or fail to perform or observe any of
the terms, provisions, conditions or covenants herein
contained, if such neglect or failure shall continue for a
period of fifteen (15) days after written notice of such
neglect or failure is given to Operator, provided that if
within said fifteen (15) day period Operator shall commence
and thereafter diligently proceed to cure such default, said
cure period shall be extended for a reasonable time; or
(b) If the estate hereby created shall be taken by execution or by
other process of law; or
(c) The taking by a court of competent jurisdiction of Operator or
its assets pursuant to proceedings under the provisions of any
federal or state reorganization code or act, insofar as the
following enumerated remedies for default are provided for or
permitted in such code or act; or
(d) If any court of competent jurisdiction shall enter a final
order with respect to Operator, providing for modification or
alteration of the rights of creditors; or
(e) If Operator shall fall to abide by all applicable federal,
state, County and local laws, ordinances, rules and
regulations.
(f) If Operator shall make any Disposition, without the prior
written consent of the County; or
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(g) If Operator shall fail to commence operations by the
Commencement Date or, if subsequent to the Commencement Date,
Operator shall discontinue its operations at the Airport; or
(h) If any of Operator's permitted subcontractors shall fail to
perform according to terms of this Agreement.
11.2 In the event any condition of default shall occur (notwithstanding any
waiver, license or indulgence granted by County with respect to any
condition of default in any form or instance) County, then, or at a
time thereafter, shall have the right, at its option, to terminate this
Agreement by giving written notice to that effect, at which time
Operator will then Immediately quit the Airport premises and all areas
covered by this Agreement, and shall cease operations at the Airport,
and such termination shall be without prejudice to any remedy of County
for damages or any other remedies whatsoever.
11.3 Upon termination of this Agreement, County shall have the right to
engage another operator to provide the Shuttle Bus Services at the
Airport, for such period or periods (which may extend beyond the term
of this Agreement) at such fees and upon such other terms and
conditions as County may, in good faith, deem advisable. County shall
in no event be liable and Operator's liability shall not be affected or
diminished in any way whatsoever for failure of County to obtain
another operator.
11.4 Upon termination or non-renewal of this Agreement the purchase of
qualified Specialty Vehicle(s) shall be pursuant to Section 4.2(c) of
this Agreement. In addition, upon termination or non-renewal of this
Agreement, the County or its designee shall have the right, but not the
obligation, to purchase any of the vehicle(s) in the Core Bus Fleet.
The purchase price paid for such vehicle(s) (the "Payment") shall be
limited to and not more than the "unamortized balance of the vehicle
investment" (as defined in Section 5.4, hereof). In the event of any
such purchase by the County or its designee, the Operator shall deliver
title to the purchased vehicle(s) to the County or its designee, free
and clear of all liens, claims and encumbrances whatsoever. In the
event that the Core Bus Fleet or any vehicle therein is encumbered by a
mortgage, then the Operator must obtain a release from the mortgagee
and the Payment shall be paid to the Operator upon receipt of evidence
that title certificates for the vehicle(s) will be delivered to the
County or its designee free and clear of all liens, claims and
encumbrances whatsoever. Upon making the Payment to the Operator, the
Operator shall deliver the vehicle(s) and the title certificates to the
County or its designee, free and clear of all liens, claims and
encumbrances, and shall execute the title certificates and all other
documents required to effect such transfer.
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11.5 If this Agreement shall terminate for any reason, Operator and those
operating under it shall forthwith remove their personal property from
the Airport premises. If Operator or any such claimant shall fail to
effect such removal of personal property forthwith, County may, at its
option, without liability to Operator or those claiming under Operator,
remove such personal property and may store the same for the account of
Operator or of the owner thereof at any place selected by County, or,
at County's election, and upon fifteen (15) days written notice to
Operator of date, time and location of sale, County may sell the same
at public auction or private sale on such terms and conditions as to
price, payment and otherwise as County in its sole discretion may deem
advisable. If, in County's judgment, the cost of removing and storing
or the cost of removing and selling any such personal effects exceeds
the value thereof or the probable sale price thereof, as the case may
be, County shall have the right to dispose of such goods in any manner
County may deem advisable. Operator shall be responsible for all costs
of removal, storage and sale, and County shall have the right to
reimburse itself from the proceeds of any sale for all such costs paid
or incurred by County. If any surplus sale proceeds shall remain
after such reimbursement County may deduct from such surplus any other
sum due to County hereunder and shall pay over to Operator any
remaining balance of such surplus sale proceeds.
11.6 If proceedings shall at any time be commenced against Operator by
County under this Agreement and compromise or settlement shall be
effected either before or after judgment whereby Operator shall be
permitted to continue to operate under this Agreement, then such
proceedings shall not constitute a waiver of any condition or agreement
contained herein or of any subsequent event of default.
11.7 Any amount paid or expense or liability incurred by County due to
Operator's failure to perform in accordance with the terms and
provisions of this Agreement, shall be deemed to be monies due by
Operator to County hereunder and shall be paid by the Operator to the
County upon demand therefor. At the option of the County, the same may
be deducted from any amounts payable by County to Operator hereunder.
11.8 Operator hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of any
termination of this Agreement. The rights given to County herein are in
addition to any rights that may be given to County by statute or
otherwise.
11.9 Upon termination of this Agreement, through passage of time or
otherwise, the Operator shall aid the County in all ways possible in
continuing the provision of shuttle bus services at the Airport without
interruption of service.
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11.10 In the event of any termination of this Agreement, Operator shall have
no further rights hereunder and shall cease forthwith all operations
upon the Airport premises and shall pay in full any amount owed to
County. The Operator's Security Deposit may be applied by the County to
any sums due to County under this Agreement and any damages incurred by
County.
Article XII
SECURITY
FAA Regulations and Security - Operator agrees to observe all security
requirements and other requirements of the Federal Aviation Regulations
applicable to Operator, including without limitation, Part 107 and Part 139, and
the Operator agrees to comply with the Airport Security Program, and amendments
thereto, as approved by the Federal Aviation Administration, and to take such
steps as may be necessary or directed by the County to insure that sublessee,
employees, contractors, agents, invites and guests observe these requirements.
If required by the Aviation Department, Operator shall conduct background checks
of its employees and of the employees of its subcontractors in accordance with
applicable Federal Regulations. If as a result of the acts or omissions of
Operator, its sublessee, employees, contractors, agents, invites or guests, the
County incurs any fines and/or penalties imposed by the Federal Aviation
Administration or any expense in enforcing the regulations of the Federal
Aviation Administration, including without limitation, Part 107 and Part 139
and/or any expense in enforcing the Airport Security Program, then Operator
agrees to pay and/or reimburse to County all such costs and expenses, including
all costs of administrative proceedings, court costs, and attorneys fees and all
costs incurred by County in enforcing this provision. Operator further agrees to
rectify any security deficiency or other deficiency as may be determined as such
by the County or the Federal Aviation Administration. In the event Operator
fails to remedy any such deficiency, the County may do so at the cost and
expense of Operator. The County reserves the right to take whatever action
necessary to rectify any security deficiency or other deficiency.
Article XIII
FIRE AND OTHER DAMAGE
In the event that structural or permanent portions of any buildings or
improvements located at the Airport shall be damaged by fire or other casualty,
the obligations of the Operator
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hereunder shall not cease, however any fees and charges payable by County shall
be adjusted by an amendment, if it is equitable to do so, to take into account
any lower level of service or any increased level of service occasioned by such
damage.
Article XIV
INDEPENDENT CONTRACTOR
Operator is an independent contractor under this Agreement. Services provided by
Operator shall be subject to the supervision of Operator, and such services
shall not be provided by Operator or its agents as officers, employees, or
agents of the County. The parties expressly acknowledge that it is not their
intent to create any rights or obligations in any third person or entity under
this Agreement.
Article XV
GENERAL PROVISIONS
15.1 Federal Aviation Act, Section 308 - Nothing herein contained shall be
deemed to grant the Operator any exclusive right or privilege within
the meaning of Section 308 of the Federal Aviation Act for the conduct
of any activity on the Airport, except that, subject to the terms and
provisions hereof, the Operator shall have the right to operate at the
Airport under the provisions of this Agreement.
15.2 Notices - Whenever either party desires to give notice to the other,
such notice must be in writing, sent by certified United States Mail,
postage prepaid, return receipt requested, or by hand-delivery with a
request for a written receipt of acknowledgment of delivery, addressed
to the party for whom it is intended at the place last specified. The
place for giving notice shall remain the same as set forth herein until
changed in writing in the manner provided in this section. For the
present, the parties designate the following:
COUNTY:
Director
Broward County Aviation Department
Fort Lauderdale-Hollywood International Airport
0000 Xxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
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With a copy to:
County Administrator
Governmental Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
OPERATOR:
Limousines of South Florida, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxx Xxxxxx, Vice President
15.3 Captions - The headings of the several articles and sections of this
Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit, or describe the scope or intent
of any provisions of this Agreement and shall not be construed to
affect in any manner the terms and provisions hereof or the
interpretation or construction thereof.
15.4 Severability - In the event this Agreement or a portion of this
Agreement is found by a court of competent jurisdiction to be invalid,
the remaining provisions shall continue to be effective unless County
or Operator elects to terminate this Agreement. The election to
terminate this Agreement based upon this provision shall be made within
seven (7) days after the finding by the court becomes final.
15.5 Agent for Service of Process - It is expressly understood and agreed
that if the Operator is not a resident of the State of Florida, or is
an association or partnership without a member or partner resident of
said State, or is a foreign corporation, then in any such event the
Operator does designate the Secretary of State, State of Florida, its
agent for the purpose of service of process in any court action between
it and the County arising out of or based upon this Agreement, and the
service shall be made as provided by the laws of the State of Florida
for service upon a non-resident, who has designated the Secretary of
State as agent for service. It is further expressly agreed, covenanted,
and stipulated that, if for any reason, service of such process is not
possible, and as an alternative method of service of process, Operator
may be personally served with such process out of this State by
certified mailing to the Operator at the address set forth herein. Any
such service out of this State shall constitute valid service upon the
Operator as of the date of mailing. It is further expressly agreed that
the Operator is amenable to and hereby agrees to the process so served,
submits to the jurisdiction, and waives any and all objections and
protest thereto.
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15.6 Waiver of Claims - The Operator hereby waives any claim against Broward
County and its officers, commissioners and employees for any
consequential damages, including, without limitation, any loss of
anticipated profits, caused by (a) any default of County hereunder, or
(b) any suit or proceedings directly or indirectly attacking the
validity of this Agreement or any part thereof, or (c) any judgement or
award in any suit or proceeding declaring this Agreement null, void or
voidable, or delaying the same or any part thereof, from being carried
out.
15.7 Public Entity Crimes Act - Operator represents that the execution of
this Agreement will not violate the Public Entity Crimes Act (Section
287.133, Florida Statutes), which essentially provides that a person or
affiliate who is a contractor, consultant or other provider and who has
been placed on the convicted vendor list following a conviction for a
Public Entity Crime may not submit a bid on a contract to provide any
goods or services to County, may not submit a bid on a contract with
County for the construction or repair of a public building or public
work, may not submit bids on leases of real property to County, may not
be awarded or perform work as a contractor, supplier, subcontractor, or
consultant under a contract with County, and may not transact any
business with County in excess of the threshold amount provided in
Section 287.017, Florida Statutes, for category two purchases for a
period of 36 months from the date of being placed on the convicted
vendor list. Violation of this section shall result in termination of
this Agreement and recovery of all monies paid hereto, and may result
in debarment from County's competitive procurement activities. In
addition to the foregoing, Operator further represents that there has
been no determination, based on an audit, that it committed an act
defined by Section 287.133, Florida Statutes, as a "public entity
crime" and that it has not been formally charged with committing an act
defined as a "public entity crime" regardless of the amount of money
involved or whether Operator has been placed on the convicted vendor
list.
15.8 Right to Develop Airport - It is further covenanted and agreed that the
County reserves the right to further develop or improve the Airport and
all landing areas and taxiways as it may see fit, regardless of the
desires or views of the Operator and without interference or hindrance.
15.9 Development Orders/Regulatory Approvals - The Operator acknowledges
that County is subject to certain Development Orders issued pursuant to
Chapter 380, Florida Statutes (collectively, "Development Orders"). The
County has completed its 0000 Xxxx Xxxxxxxxxx-Xxxxxxxxx International
Airport Master Plan Update (said document as hereinafter amended or
replaced being referred to as the "Airport Master Plan") and its 0000
Xxxx Xxxxxxxxxx-Xxxxxxxxx International Airport FAR Part 150 Program
Update (said document as hereinafter amended or replaced being
hereinafter referred to as the "Part 150 Study"). Accordingly, the
County will be seeking regulatory approvals (collectively "Regulatory
Approvals)" consistent
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with such plans and the implementation of such plans, which may include
the following: (1) amendment of the existing Development Orders
consistent with Chapter 380, Florida Statutes, as may be amended; (2)
Preliminary Development Agreement(s) from the Department of Community
Affairs consistent with Chapter 380, Florida Statutes, as may be
amended; (3) land use and zoning amendments pursuant to Chapter 163,
Part II, Florida Statutes, as may be amended; (4) preparation of an
Environmental Impact Statement, consistent with federal requirements,
(5) such environmental permitting as may be required by federal, state,
or local regulations, and (6) any other regulatory approvals as may be
required by any governmental authority having jurisdiction over the
issuance of permits for the approval and implementation of the Airport
Master Plan and the Part 150 Study.
Operator agrees to cooperate with County in connection with County's
efforts to obtain the Regulatory Approvals. From and after the date of
execution of this Agreement, Operator covenants and agrees (i) to
support the County's efforts to obtain the Regulatory Approvals; and
(ii) to execute any document(s) or instrument(s) reasonably requested
by County in order to assist County in obtaining the Regulatory
Approvals, provided that Operator shall not be required to bear any
expense in connection therewith and the Operator shall not be deemed an
agent of the County.
15.10 Subordination of Agreement - This Agreement, and all provisions hereof,
is subject and subordinate to the terms and conditions of the
instruments and documents under which the County acquired the Airport
from the United States of America and shall be given only such effect
as will not conflict or be inconsistent with the terms and conditions
contained in such instruments and documents and any existing or
subsequent amendments thereto. This Agreement and all provisions
hereof, is subject and subordinate to any ordinances, rules or
regulations which have been, or may hereafter be adopted by the County
pertaining to the Airport. This Agreement, and all provisions hereof,
is subject and subordinate to the provisions of any agreement
heretofore or hereafter made between the County and the United States
Government relative to the operation or maintenance of the Airport, the
execution of which has been required as a condition precedent to the
transfer of federal rights or property to the County for Airport
purposes, or the expenditure of federal funds for the improvements or
development of the Airport, including without limitation the
expenditure of federal funds for the development of the Airport under
the provisions of the Federal Aviation Act of 1958, as it has been
amended from time to time. In addition, this Agreement is subordinate
and subject to the provisions of all resolutions heretofore and
hereafter adopted by the County in connection with any revenue bonds
issued by the County with respect to the operations of the Airport, or
any improvements to the Airport or any of its facilities, and to the
provisions of all documents executed in connection with any such bonds,
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including without limitation, any pledge, transfer, hypothecation or
assignment made at any time by County to secure any such bonds.
15.11 Radon Gas - Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your County public health unit.
15.12 Incorporation by Reference - The truth and accuracy of each "Whereas"
clause set forth above is acknowledged by the parties. The attached
Exhibits A, B, C and D, and Attachments I and II are incorporated into
and made a part of this Agreement.
15.13 Incorporation of Required Provisions - The parties incorporate herein
by this reference all provisions lawfully required to be contained
herein by any governmental body or agency.
15.14 Non-Liability of Agents and Employees - No commissioner, officer,
agent, director, or employee of the County shall be charged personally
or held contractually liable by or to the Operator under any of the
terms or provisions of this Agreement or because of any breach thereof
or because of its or their execution or attempted execution.
15.15 Successors and Assigns Bound - This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties
hereto where permitted by this Agreement.
15.16 Right to Amend - In the event that the Federal Aviation Administration
or its successors requires modifications or changes in this Agreement
as a condition precedent to the granting of funds for the improvement
of the Airport, or otherwise, the Operator agrees to consent to such
amendments, modifications, revisions, supplements, or deletions of any
of the terms, conditions, or requirements of this Agreement as may be
reasonably required.
15.17 Time of Essence - Time shall be deemed to be of the essence in
performing the duties, obligations and responsibilities required by
this Agreement.
15.18 Interpretation - Words of any gender used in this Agreement shall be
held and construed to include any other gender and words in the
singular number shall be held to include the plural, unless the context
otherwise requires. All personal pronouns used in this Agreement shall
include the other gender, and the singular shall include the plural,
and vice versa, unless the context otherwise requires.
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Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer
to this Agreement as a whole and not to any particular sentence,
paragraph, or section where they appear, unless the context otherwise
requires. Whenever reference is made to a Section of this Agreement,
such reference is to the Section as a whole, including all of the
subsections and subparagraphs of such Section, unless the reference is
made to a particular subsection or subparagraph of such Section.
Captions and Section headings used in this Agreement are for the
convenience of reference of the parties and shall not be deemed to
limit or in anyway affect the meaning of any of the provisions of this
Agreement. The words "shall" and "must" when used in this Agreement are
mandatory; the words "should" and "may" when used in this Agreement are
permissive.
15.19 Incorporation of RLI Documents - The Request for Letters of Interest
("Request") issued by the County and the proposal documents submitted
by Operator to County for evaluation in the award process pursuant to
which this Agreement was awarded to Operator, is hereby incorporated by
reference into this Agreement and made a part hereof (the Request and
all documents filed by Operator in response thereto are called
collectively, "RLI Documents"). Operator shall be bound by all terms,
conditions, representations, and commitments contained in the
Operator's RLI Documents, except to the extent any provision in the
Operator's RLI Documents is specifically deleted hereby. In the event
Operator shall fail to abide by and comply with any of the terms,
conditions, representations, or commitments contained in the Operator's
RLI Documents, then, at the option of County, such failure shall be
deemed a default of this Agreement.
Article XVI
MISCELLANEOUS
16.1 It is understood and agreed that this Agreement, the exhibits hereto
and the RLI Documents constitute the entire agreement between the
parties hereto. It is further understood and agreed by Operator that no
claim or liability or cause for termination shall be asserted by
Operator against County, and County shall not be liable by reason of,
the breach of any representations or promises not expressly stated in
this Agreement; any other written or parol agreement with County being
expressly waived by Operator.
16.2 This Agreement is binding at execution. The individuals executing this
Agreement on behalf of Operator personally warrant that they have full
authority to execute this Agreement on behalf of the entity for whom
they are acting herein.
16.3 All approvals and consents required to be obtained hereunder must be in
writing to be effective.
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16.4 All rights and remedies of County hereunder or at law or in equity are
cumulative, and the exercise of any right or remedy shall not be taken
to exclude or waive the right to the exercise of any other. Failure by
County to enforce any provision of this Agreement shall not be deemed a
waiver of such provision or modification of this Agreement. A waiver of
any breach of a provision of this Agreement shall not be deemed a
waiver of any subsequent breach and shall not be construed to be a
modification of the terms of this Agreement. County and Operator agree
that each requirement, duty, and obligation set forth herein is
substantial and important to the formation of this Agreement and,
therefore, is a material term hereof.
16.5 Operator covenants and agrees that it will not sell, convey, transfer,
mortgage, pledge or assign this Agreement or any right created hereby
or take any other action described by Article IX hereof, without the
prior consent of the County, contained in a written document executed
with the same formality and of equal dignity herewith.
16.6 No modification, extension, amendment or alteration of the terms and
conditions contained herein shall be effective unless contained in a
written document prepared with the same or similar formality as this
Agreement, and executed by the Operator and the Broward County Board of
County Commissioners, except an amendment of Exhibit C, which is
executed by the Operator and the Director of the Aviation Department in
accordance with Sections 4.2 and 4.4 of this Agreement.
16.7 Jurisdiction. This Agreement shall be interpreted and construed in
accordance with and governed by the laws of the State of Florida. Venue
for litigation concerning this Agreement shall be in Broward County,
Florida.
16.8 Environmental Impairment; Containment, Removal and Abatement - The
discharge of any pollutants or hydrocarbon contamination, or other
contaminants (collectively, "Pollutants") at the Airport in violation
of any federal, state or local law, rule or regulation or in violation
of any order or directive of any federal, state or local court or
entity with jurisdiction of such discharge is prohibited.
(a) Any such discharge of Pollutants by Operator or any of its
officers, employees, contractors, subcontractors, invitees, or
agents, and whether or not committed prior to or following the
execution of this Agreement, shall be, at the Operator's
expense, immediately contained, removed and abated to the
satisfaction of the County, and any court or regulatory entity
having jurisdiction of the discharge. If Operator does not
take action immediately to have such Pollutants contained,
removed or abated, the County may undertake the removal of the
discharge, however, any such action by the County shall not
relieve the Operator of its obligations and responsibilities
under this or any other provision of this Agreement or as
imposed by law.
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No action taken by either the Operator or the County to
contain or remove Pollutants, or to xxxxx a discharge, whether
such action is taken voluntarily or not, shall be construed as
an admission of liability as to the source of or the person
who caused the pollution or its discharge.
(b) Operator shall provide County with immediate notice of any and
all spills, leaks or discharges of any size whatsoever of
Pollutants arising from its operations on the Airport
property, and shall further provide County with prior notice
of not less than one (1) business day of all curative
measures, remediation efforts and/or monitoring activities to
be effected. Copies of such notice shall be sent to the
Director of Aviation, and the Director of the Department of
Natural Resource Protection.
(c) As required by law, Operator shall provide the relevant
regulatory authorities with notice of spills, leaks or
discharges of Pollutants on Airport property, and shall have
an updated contingency plan in effect relating to such
discharges.
(d) County shall have the right to inspect all documents relating
in any way to discharge of any Pollutants at the Airport and
all activities thereon relating to writings regarding
environmental issues, remediation efforts, etc., including,
but not limited to, manifests evidencing proper transportation
and disposal of Pollutants, site assessments, and sampling and
test results.
(e) If the County arranges for the removal of any Pollutants at
the Airport that were caused by the Operator, or any of its
officers, employees, contractors, subcontractors, invitees, or
agents, the costs of such removal incurred by the County shall
be paid by Operator to the County immediately upon County's
written demand, with interest at the rate of eighteen percent
(18%) per annum thereafter accruing.
(f) Operator shall not be liable for the discharge of any
Pollutants caused by the negligence or willful misconduct of
the County. Nothing herein shall relieve Operator of its
general duty to cooperate with the County in ascertaining the
source and, containing, removing and abating any Pollutants at
the Airport.
(g) The provisions of this Section shall survive the expiration or
other termination of this Agreement.
16.9 Upon termination or expiration of this Agreement, the Operator shall
remain liable for all obligations and liabilities that have accrued
prior to the date of termination or expiration.
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16.10 Joint Preparation - Preparation of this Agreement has been a joint
effort of County and Operator and the resulting document shall not,
solely as a matter of judicial construction, be construed more severely
against one of the parties than any other.
16.11 Third Party Beneficiaries - Neither Operator nor County intend to
directly or substantially benefit a third party by this Agreement.
Therefore, the parties agree that there are no third party
beneficiaries to this Agreement and that no third party shall be
entitled to assert a claim against either of them based upon this
Agreement.
16.12 Remedies - In the event of a breach of any of the terms or conditions
of this Concession Agreement, it is specifically acknowledged and
agreed that either party shall, in addition to all other remedies which
may be available in law or equity, have the right to enforce this
Agreement by specific performance, injunctive relief, prohibition or
mandamus to compel the other party to abide by the terms of this
Agreement.
16.13 Drug-free Workplace - It is a requirement of County that it enter into
contracts only with firms that certify the establishment of a drug free
work place in accordance with Chapter 21.31(a) of the Broward County
Procurement Code. Execution of this Agreement by Operator shall also
serve as Operator's required certification that it either has or that
it will establish a drug free work place in accordance with Chapter
21.31(a) of the Broward County Procurement Code.
16.14 Conflicts - Unless the Operator shall receive the prior written
consent of the County, Operator agrees that during the term of this
Agreement, it and its employees shall not have or hold any employment
or contractual relationship with any business entity or any agency that
will create a continuing or frequently recurring conflict between the
duties, obligations and requirements of Operator under this Agreement
and such other employment or contractual relationship, or that would
impede the discharge of any of the duties, obligations or requirements
of this Agreement. Operator agrees that none of its employees shall,
during the term of this Agreement, give sworn testimony or issue a
report or writing, as an expression of his or her opinion, which is
adverse or prejudicial to the interests of County in any pending or
threatened legal or administrative proceeding. The limitations of this
section shall not preclude such persons from representing themselves in
any action or in any administrative or legal proceeding regarding this
Agreement.
16.15 Contingency Fee - Operator warrants that it has not employed or
retained any company or person, other than a bona fide employee working
solely for Operator, 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
Operator, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this
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Agreement. For a breach or violation of this provision, Board shall
have the right to terminate this Agreement without liability at its
discretion, or to deduct from the Agreement price or otherwise recover
the full amount of such fee, commission, percentage, gift or
consideration.
16.16 Ownership of Documents. Any and all reports, photographs, surveys, and
other data and documents provided or created in connection with this
Agreement are and shall remain the property of County. In the event of
termination of this Agreement, any reports, photographs, surveys, and
other data and documents prepared by Operator, whether finished or
unfinished, shall become the property of County and shall be delivered
by Operator to the Contract Administrator.
16.17 Police/Regulatory Powers. County cannot, and hereby specifically does
not, waive or relinquish any of its regulatory approval or enforcement
rights and obligations as it may relate to regulations governing this
Agreement or any operations or activities pursuant hereto. Nothing in
this Agreement shall be deemed to create an affirmative duty of County
to abrogate its sovereign right to exercise its police powers and
governmental powers by approving or disapproving or taking any other
action in accordance with its zoning and land use codes, administrative
codes, ordinances, rules and regulations, federal laws and regulations,
state laws and regulations, and grant agreements.
16.18 Prior Agreements - This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and
understandings applicable to the matters contained herein and the
parties agree that there are no commitments, agreements or
understandings concerning the subject matter of this Agreement that are
not contained in this document. Accordingly, the parties agree that no
deviation from the terms hereof shall be predicated upon any prior
representations or agreements, whether oral or written. It is further
agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a
written document in accordance with Section 16.6 above.
16.19 Priority of Provisions. If there is a conflict or inconsistency between
any term, statement, requirement, or provision of any exhibit attached
hereto, any document or events referred to herein, or any document
incorporated into this Agreement by reference and a term, statement,
requirement, or provision of this Agreement, the term, statement,
requirement, or provision contained in Articles I through 16 of this
Agreement shall prevail and be given effect.
16.20 Counterparts. This Agreement may be executed in up to five (5)
counterparts, each of which shall be deemed to be an original.
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AGREEMENT BETWEEN BROWARD COUNTY AND LIMOUSINES OF SOUTH FLORIDA, INC. FOR
AIRPORT SHUTTLE BUS SERVICES AT THE FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL
AIRPORT
IN WITNESS WHEREOF, the parties have made and executed this Agreement
on the respective dates under each signature: BROWARD COUNTY through its BOARD
OF COUNTY COMMISSIONERS, signing by and through its Chair, or Vice Chair
authorized to execute same by Board action on the 24 day of June, 1997, and
Limousines of S. Florida, signing by and through its Vice President, duly
authorized to execute same.
COUNTY
ATTEST: BROWARD COUNTY, through its
BOARD OF COUNTY COMMISSIONERS
/s/ Illegible By /s/ Illegible
----------------------------- --------------------------------
County Administrator and Chair
Ex-Officio Clerk of the
Board of County Commissioners
of Broward County, Florida [County Commissioners Seal]
Approved as to Insurance Approved as to form by
Requirements by Office of County Attorney
RISK MANAGEMENT DIVISION Broward County, Florida
XXXX X. XXXXXXX, XX., County Attorney
Governmental Center, Xxxxx 000
000 Xxxxx Xxxxxxx Xxxxxx
By /s/ Xxxx. X. Xxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxx 00000
----------------------------- Telephone: (000) 000-0000
Director Telecopier: (000) 000-0000
By /s/ Xxxxxxxxx X. Xxx
--------------------------------
Xxxxxxxxx X. Xxx
Assistant County Attorney
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AGREEMENT BETWEEN BROWARD COUNTY AND LIMOUSINES OF SOUTH FLORIDA, INC. FOR
AIRPORT SHUTTLE BUS SERVICES AT THE FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL
AIRPORT
OPERATOR
LIMOUSINES OF SOUTH FLORIDA, INC.
ATTEST:
/s/ Illegible By /s/ Xxxx Xxxxxx
------------------------- ----------------------------------
Secretary Print Name: Xxxx Xxxxxx
Title: Vice President
(CORPORATE SEAL) 27 day of May 1997
WITNESS
/s/ Xxxxxxx Xxxxxxxx
-------------------------
/s/ X.X. Xxxxxxx
-------------------------
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