03/04/1993
LEASE AGREEMENT
BETWEEN MONROE COUNTY, FLORIDA (Lessor) and
AIRWAYS INTERNATIONAL, INC. (Lessee)
Marathon Airport
THIS LEASE AGREEMENT, made and entered into as of this
~_ day of __~ , 1993, by and between the
MONROE COUNTY, a political subdivision of the State of Florida,
("County") and
AIRWAYS INTERNATIONAL, INC. , a corporation
authori.zed to do business in the State of Florida, ("Lessee"),
and whose mailing address is c/o Taylor, Brion, Buker & Greene,
Fourteenth Floor, 801 Brickell Avenue, Miami, Florida 33131-2900.
WIT N E SSE T H:
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WHEREAS,
County owns an airport known
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Airport located in Marathon, Monroe County, Florid€;c:.here~after
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called the "Airport", and
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WHEREAS, Lessee is engaged in the business of~~ir tr~sp~f-
tation 'with respect to persons, property, cargo and mail, and
WHEREAS, Lessee desires to obtain certain rights, services
and privileges in connection with the use of the Airport and its
facilities; and the County is willing to grant and lease the same
to Lessee on a non-exclusive basis upon the terms and conditions
hereinafter stated,
NOW, THEREFORE, for and in consideration of the premises and
of the mutual covenants and agreements herein contained, and
other valuable considerations, County does hereby grant and lease
unto Lessee, and Lessee does hereby hire and take from County
certain premises, facilities, rights, licenses, services and
privileges in connection with and on the Airport, as follows,
to-wit:
ARTICLE I - PREMISES
A. PREMISES LEASED. The County does hereby lease to the
Lessee that space as marked on Exhibit "A" attached hereto and
made a part hereof at the Marathon Airport located in Marathon,
Monroe County, Florida, in accordance with the terms and
conditions as set forth in this Agreement.
B. USE OF THE AIRPORT. Lessee shall be entitled to use, in
common ~dth others authorized to do so, of the Airport and
appurtenances, together with all facilities equipment, improve-
ments and services which have been or may hereafter be provided
at or in connection with the Airport for common use, in the
operation of a transportation system by aircraft for the carriage
of persons, property, cargo, mail and related purposes (hereinaf-
ter referred to as Air Transportation), which use without limit-
ing the generality hereof, shall include:
1. the handling, ticketing, billing and manifesting
of passengers, baggage, cargo, property and mail
in Air Transportation by Lessee.
2. the landing, taking off, flying, taxiing, towing,
parking, loading and unloading of Lessee's air-
craft, or other equipment operated by Lessee, used
in the operation of scheduled, special and charter
flights, including without limiting the generality
hereof, the right to load and unload Lessee's
aircraft adj acent to Lessee's temporary terminal
building, upon approval of the Director of
Airports.
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3. the loading and unloading of property, cargo and
mail at said Airport by such motor vehicles or
other means of conveyance as Lessee may require in
the conduct of Air Transportation, with the right
to designate the particular carrier or carriers
who shall regularly transport Lessee's property,
cargo and mail to and from the Airport.
C. SPACE ADJACENT TO TERMINAL BUILDING. Lessee is hereby
granted non-exclusive use, in common with others, of such space
and facilities as may be designated by County in or adjacent to
said Terminal Building consisting of a ground area to permit the
taxiing, servicing, loading and unloading of Lessee's aircraft,
space for reasonable amount of apron equipment, loading gates,
and lighting for loading ramps and for other areas adjacent to
the Terminal Building and used by passengers.
Lessee may use such space and facilities in the Terminal
Building with respect to which it is granted the non-exclusive
use hereunder, subject to reasonable rules and regulations of
County as to the use of such space and facilities, for any or all
purposes in connection with or incidental to its business of Air
Transportation, including, without limiting the generality
hereof, the handling, ticketing, billing and manifesting of
passengers, baggage, cargo, property and mail and the installa-
tion, maintenance and operation of radio and other communications
equipment and facilities, and meteorological and navigation
equipment and facilities.
D.
PARKING SPACE.
Adequate and reasonably convenient
vehicular parking spaces shall be provided by County at a lo-
cation selected by County, where it will not interfere with
operations at the Airport, for the use of Lessee and its
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employees. The County reserves the right to charge Lessee and
its employees for parking at a future date.
E. RIGHT OF INGRESS AND EGRESS. The right of ingress to
and egress from, but not the use of, except as provided in this
Lease,the premises and facilities referred to in Sections "A" to
"D" inclusive above, for Lessee, its employees, agents, passen-
gers, guests, patrons, its suppliers of materials or furnishers
of service or their said property except as herein contained
shall be deemed to limit County's right to impose charges upon
ground transportation services.
F. ADEQUATE UTILIZATION OF PREMISES. In the event the
premises, or any part thereof, are not being adequately utilized
by the Lessee, as provided herein, the County reserves the right,
upon written notice, without liability by the County to the
Lessee, to make availab Ie the premises or any part thereof to
third parties on joint utilization bases or to terminate this
Agreement. The County shall notify the Lessee of such action, in
writing, no less than thirty (30) calendar days prior to imple-
menting such joint utilization or termination. Any monies paid
by the third party shall accrue to the County and the Lessee
shall receive abatement of rentals due, for the applicable
premises, on a fair and equitable basis. For the purposes of
this provisions, the Lessee shall be deemed not to be adequately
utilizing the premises whenever the Lessee is regularly operating
fewer than fourteen (14) departure flights out of the Airport per
week.
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The Lessee may, upon no less then thirty (30) calendar days
written notice to the County, resume full utilization of the
premises. Such notice shall contain a statement that the Lessee
will operate at least fourteen (14) departure flights per week
out of the Airport and shall include a plan schedule of such
operations. The written notice shall be signed by an authorized
officer of the Lessee.
ARTICLE II - TERM
This lease and all rights herein granted Lessee shall become
operative and effective on March 1, 1993 , and shall end on
February 28, 1994 , unless sooner terminated as herein-
after provided.
ARTICLE III - RENTALS AND FEES
Lessee agrees to pay County at such places as County may
designate for the use of the premises, facilities, rights,
licenses, services and privileges granted hereunder, the follow-
ing rentals, fees and charges, all payable in monthly install-
ments covering the ensuing calendar month. In the event that the
commencement of termination of the term with respect to any of
the particular premises, facilities, rights, licenses, services,
and privileges as herein provided falls on any date other than
the first or last day of a calendar month, the applicable
rentals, fees and charges for that months shall be paid for said
month prorata according to the number of days in that month
during which said particular premises, facilities, rights,
licenses, services and privileges were enjoyed; and County shall,
following the end of each calendar month, transmit to Lessee a
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statement of the rentals, fees and charges incurred by Lessee
during said month as hereinafter provided, and the same shall be
paid by Lessee within thirty (30) days after receipt of such
statement.
A. RENTAL WITH RESPECT TO SPACE IN THE TERMINAL. Rental of
such space herein leased to Lessee as shown on Exhibit "A"
attached hereto and made a part hereof, shall be at the following
rates payable monthly the first of said payments to be due the
1st day of
March, 1993
and one of said monthly
payments to become due and payable on the first day of each and
every month thereafter during the term of this Lease.
1. 171 square feet of ticket counter space,
passenger screening and seating at $17.68 per
square foot per annum.
2. 60 square feet of office space at $11.78
per square foot per annum.
3. 336 square feet of outside covered porch
space at $9.82 per square foot per annum.
4.
A surcharge
electrical
services.
of $325.00 per month for
power, water and janitorial
In addition, the Lessee shall maintain the security deposit
or letter of credit previously deposited with the County in
connection with the predecessor lease.
B. LANDING FEES. From and after commencement of the term
of this Lease, rentals, fees and charges for the use of the
landing area and facilities necessary therefore as granted
hereunder, except those which rentals are specifically provided
elsewhere, shall be combined in and represented by a landing fee
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based upon the approved maximum landing weight of the Lessee I s
Actual Revenue Trip Arrivals at the Airport each month as fol-
lows:
THE FOLLOWING AS ILLUSTRATIVE EXAMPLE ONLY
$.62 per 1,000 pounds of approved maximum gross landing
weight. A minimum landing fee of $7.75 will be charged
for all aircraft weighing less than 12,500 lbs. gross
landing weight.
Lessee shall report to the County not later than the 10th day of
each month, the Lessee's Actual Revenue Trip Arrivals at the
Airport during the preceding calendar month, which shall include
the number and type of such arrivals. The number of arrivals so
operated, and multiplied by the applicable approved maximum gross
landing weights for each type of aircraft, shall determine the
weight for which the monthly payment shall be made.
The term "approved maximum gross landing weight" for any
aircraft as used herein, shall be the maximum gross landing
weight approved by the Federal Aviation Administration for
landing such aircraft at the Airport herein.
(Included in this
report will be the total number of passenger enplanements and
deplanements for that month).
Subject to reasonable rules and regulations adopted by the
County, it is expressly agreed that payment of landing fees shall
entitle Lessee to the use of the loading apron at or adjacent to
the Terminal Building for such reasonable time as may be required
by Lessee for the loading and unloading of its aircraft; provid-
ed, however, that Lessee shall incur no penalty or charge for
additional time resulting from unavoidable delays due to weather
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conditions, minor mechanical defects or other delays beyond
control of Lessee, except when such delays preclude use of the
apron by other commercial air carriers that are operating to or
from the Airport. Subj ect to Lessee I s rights under Article I
hereof, the County reserves the right to designate alternate
parking areas if deemed desirable or necessary. Furthermore, in
the event the Lessee desires to use the Airport apron and ramp
facilities for aircraft storage purposes for more than four (4)
hours prior approval must be obtained from the County who will
determine what apron or ramp areas are available for this
purpose.
C. TAXES AND ASSESSMENTS. Lessee shall pay all taxes and
assessments which may be lawfully levied by a duly cons-tituted
taxing body upon Lessee with respect to its operation at the
Airport. The County agrees not to levy any license or permit fee
or special assessment on Lessee that would restrict or interfere
with the exercise and enjoyment of the rights and privileges
granted herein; provided this shall not prevent the County from
making charges to Lessee for the use of the Airport, its facil-
ities and services as herein specifically authorized.
D. DOUBLE RENTAL. In the event that the Lessee remains in
possession of the premises beyond the expiration or termination
of this Agreement, Lessee shall be bound by all of the terms and
conditions of this Agreement to the same extent as if this
Agreement were in full force and effect during the time beyond
the expiration date of this Agreement. However, during any such
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possession of the premises as a holdover tenant after the
County has demanded the return of the premises, the Lessee shall
be liable for double rentals for so long as the Lessee remains in
possession after such demand, such rentals to be based upon the
rental rates applicable from time to time, in whole or in part to
the premises.
E. LATE PAYMENT CHARGES. In the event that the Lessee
fails to make any payments, as required to be paid under the
provisions of this Agreement, within ten (10) business days after
same shall become due, interest at the rate established from time
to time by the Board of County Conmissioners of Monroe County,
Florida, (currently set at 12% per month), shall accrue against
the delinquent payment(s) from the original due date until the
County actually receives payment. The right of the County to
require payment of such interest and the obligation of the Lessee
to pay same shall be in addition to and not in lieu of the rights
of the County to enforce other provisions herein, including
termination of this Agreement, and to pursue other remedies
provided by law.
F. DEFAULT FOR FAILURE TO PAY RENTALS, FEES AND CHARGES
In the event Lessee fails to pay any rental on the first of each
month, such failure shall be a default of this Lease. County
may, at its option, inmediately or at any time thereafter, enter
into and upon the premises hereby leased or any part thereof and
in the name of the whole, and repossess the same of County's
former estate, and expel Lessee and those claiming by, through or
under it, and remove its effects, forcibly if necessary, without
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being deemed guilty of trespass and without prejudice to any
remedy which otherwise might be used for arrears of rent or
preceding breach of covenant; on the re-entry aforesaid, this
Lease shall terminate. Further, if Lessee fails to perform any
of the other covenants of this Lease and such default shall
continue for fifteen (15) days after notice thereof is given in
writing by the County, or failure to correct any violation shall
continue for fifteen (15) days after notice thereof is given in
writing by the County, or its agents or attorneys to said Lessee,
the County may, at its option, forthwith declare this Lease
forfeited, and may immediately re-enter and repossess said leased
property, and any of the rents prepaid hereunder shall be for-
feited by the Lessee, and in no way shall effect the collection
of any other damages which may be due the County as a result of
any of said defaults. In the event County is obligated to
participate in any court proceeding in order to enforce any of
its rights under this paragraph or to collect its rentals, fees
and cha.rges, County, if successful in pursuing such litigation,
shall be entitled to an additional amount in such sum as any
District or Circuit Court having competent jurisdiction shall
determine as a reasonable attorney's fee.
ARTICLE IV - MAINTENANCE AND REPAIR BY LESSEE
County shall keep the Airport free of obstructions, includ-
ing the clearing and removal of grass, stones, or other foreign
matter, as reasonably necessary and with reasonable promptness,
from the runway, taxiway and loading area, and immediately
adjacent to such runways, taxiway and loading areas for the safe,
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convenient and proper use of the Airport by Lessee, and shall
maintain and operate the Airport in all respects in a manner at
least equal to the highest standards or ratings issued by the
Federal Aviation Administration, for airports of substantially
similar size and character and in accordance with all rules and
regulations of the Federal Aviation Administration and any other
Governmental Agency having jurisdiction thereof, providing that
nothing herein contained shall be deemed to require County to
enlarge the landing area, runway, taxiway or other appurtenances
of the Airport. Lessee shall not perform any cleaning or mainte-
nance of aircraft except in designated areas. Further, it is
specifically agreed that no cleaning or maintenance of aircraft
shall be performed on Airport runways or ramps, except without
the prior approval of Lessor or Lessee's representative. The
Lessee shall pay for its own garbage service and electrical power
in its exclusive areas. The Lessee shall, at its expense,
repair, maintain or replace, as may be required, all plumbing and
electrical fixtures, including but not limited to, incandescent
bulbs or fluorescent tubes or other lighting devices located in
its exclusive area within the space leased hereunder. County, at
its cost, shall also provide and supply adequate lighting for the
common departure area, vehicular parking spaces, loading ramps,
adequate field lighting on and for the Airport, including without
limiting the generality hereof, landing lights and beacons.
County shall also provide janitorial services necessary to keep
the common departure area, the public and passenger space, and
vehicular parking spaces and the landing field of the Airport at
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all times clean, neat, orderly, sanitary and presentable.
Determination of adequacy, as used throughout this ARTICLE IV,
shall be made solely by County but shall be at least equal to the
standards for airports of substantially similar size and nature.
Maintenance and repair shall be in quality and class equal
to or better than the original work to preserve the premises in
good order and condition. The Lessee shall repair all damage
caused by Lessee and it employees, agents, independent contrac-
tors, patrons, servants or invitees. Prior to or at termination
of this Agreement, injury done by the installation or removal of
furniture and personal property of the Lessee shall be repaired
so as to restore the premises to their original state, and to
quit and surrender of the premises in the same good order and
condition as it was at the commencement of this Agreement,
reasonable wear and tear accepted.
Upon failure of the Lessee to clean maintain, repair,
replace and refurbish the premises as required by this Article,
the County may, following thirty (30) days written notice to
Lessee, enter upon the premises and perform all work which in the
judgment of the County made be necessary, and the County shall
add the cost of such work, plus twenty-five percent (25%) for
administrative cost to the rent due hereunder on the first day of
the month following the date of such work, and such cost shall be
and constitute a part of the rent. Subsequent to receipt of a
notice of intent to perform repairs or cleanup from the County,
Lessee shall not undertake performance of such repairs or cleanup
without specific prior written authorization from the County.
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ARTICLE V - GOVERNMENTAL FACILITIES
It is expressly agreed that if funds for the provision,
maintenance and operation of the Control Tower and/or other air
navigation aids or other facilities required or permitted by the
United States and needed by the Lessee or Lessee's operation at
the Airport, which are now, or may be hereafter furnished by the
United States, are discontinued by the United States, County
shall not be required to furnish said facilities.
ARTICLE VI - RULES AND REGULATIONS
A. COMPLIANCE. Lessee shall comply with all ordinances of
the County, including any reasonable rules and regulations with
respect to use of Airport property, as the same may be a~ended
from time to time, all additional laws, statutes, ordinances.
regulations and rules of the federal, s tate and county govern-
ments, and any and all plans and programs developed in compliance
therewith. which may be applicable to its operations or activ-
ities under this Agreement, including specifically, without
limiting the generality hereof, federal air and safety laws and
regulations and federal, state, and county environmental, hazard-
ous waste and materials and natural resources laws, regulations
and permits.
B. VIOLATIONS. The Lessee agrees to pay on behalf of the
County any penalty, assessment, or fine, issued against the
County, or to defend in the name of the County any claim, assess-
ment, or civil action, which may be presented or initiated by any
agency or office of the federal, state, or county governments,
based in whole or substantial part upon a claim or allegation
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that the Lessee, its agents, employees or invitees have violated
any law, ordinance, regulation, rule or directives described in
ARTICLE VI(A) above or plan or program developed in compliance
therewith.
ARTICLE VII - TERMINATION BY LESSOR
A. PAYMENT DEFAULTS. Failure of the Lessee to make all
payments of rentals, fees and charges required to be paid herein
when due shall constitute a default, and the County may, at its
option, terminate this Agreement after five (5) calendar days
notice in writing to the Lessee unless the default be cured
within the notice period. Such notice shall be in compliance
with Florida statutory requirements, including Section 83.20, as
such statutory requirements may be amended from time to time.
B. INSURANCE DEFAULT. The County shall have the right,
upon fifteen (15) calendar days written notice to the Lessee to
terminate this Agreement if the Lessee fails to provide evidence
of insurance coverage in strict compliance with ARTICLE XIII
hereof prior to commencement of operations, or fails to provide a
renewal of said evidence upon its expiration; provided, however,
that such termination shall not be effective if the Lessee
provides the required evidence of insurance coverage within the
notice period.
C. OTHER DEFAULTS. The County shall have the right, upon
fifteen (15) calendar days written notice to the Lessee to
terminate this Agreement upon the occurrence of anyone or more
of the following, unless the same shall have been corrected
within such period:
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1. Failure of the Lessee to comply with any covenants
of this Agreement, other than the covenants to pay
rentals, fees and charges when due, and the covenants
to provide required evidence of insurance coverage.
2. The conduct of any business, the performance of
any service, or the merchandizing of any product or
service not specifically authorized herein.
D.
HABITUAL DEFAULT.
Notwi thstanding the foregoing, in
the event that the Lessee has frequently, regularly, or repeti-
tively defaulted in the performance of or breached any of the
terms, covenants and conditions required herein to be kept and
performed by the Lessee, in the sole opinion of the County and
regardless of whether the Lessee has cured each individual
condition of breach or default as provided in subsections (A)
through (C) hereinabove, the Lessee shall be determined by the
County to be a "habitual violator."
At the time that such
determination is made, the County shall issue to the Lessee a
written notice advising of such determination and citing the
circumstances therefore. 'Such notice shall also advise the
Lessee that there shall be no further notice or grace periods to
correct any subsequent breach(es) or default (s) and that any
subsequent breach(es) or default(s), of whatever nature, taken
with all previous breaches and defaults, shall be considered
cumulative and, collectively, shall constitute a condition of
noncurable default and grounds for immediate termination of this
Agreement.
In the event of any such subsequent breach or de-
fault, the County may cancel this Agreement upon the giving of
written notice of termination to the Lessee, such termination to
be effective upon the tenth day following the date of receipt
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thereof and all payments due hereunder shall be payable to said
date, and the Lessee shall have no further rights hereunder.
ARTICLE VIII - AUTOMATIC TERMINATION
The happening of any of the following shall constitute a
default by the Lessee and this Agreement shall be automatically
terminated:
A. Institution by the Lessee of any voluntary proceedings
in the U.S. Bankruptcy Courts.
B. Institution against the Lessee of
proceedings in the U.S. Bankruptcy Courts,
thereof for a period of ninety (90) days.
C. Appointment of a Custodian as defined in Section
101(10) of the Bankruptcy Code.
D. Abandonment by the Lessee of the premises or discontin-
uance of operations at the Airport for any period of time exceed-
ing fifteen (15) consecutive calendar days.
ARTICLE IX - ACTIONS OF TERMINATION
any
and
involuntary
continuation
The Lessee shall vacate, quit, surrender up and deliver the
premises to the County on or before the termination date of this
Agreement, whether by lapse of time or otherwise. The Lessee
shall surrender the premises in the condition required under
ARTICLE IV herein. All repairs for which the Lessee is
responsible shall be completed prior to surrender. The Lessee
shall deliver to the County all keys to the premises upon surren-
der. On or before the termination date of this Agreement, except
in the instance of termination pursuant to ARTICLE VIII, in which
event, the Lessee shall be allowed up to five (5) calendar days
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from date of termination, and provided that the Lessee is not in
defaul t in the payment of any rentals, fees or other charges
required to be paid herein, the Lessee shall remove all of its
personal property from the premises. Any personal property of
the Lessee not removed in accordance with this Article may be
removed by the County for storage at the cost of the Lessee.
Failure on the part of the Lessee to reclaim its personal proper-
ty within thirty (30) days from the date of termination shall
constitute a gratuitous transfer of title thereof to the County
for whatever disposition is deemed to be in the best interest of
the County.
The Lessee shall, at its expense, take all actions required
by federal, state and local laws, regulations or codes to remove
from the premises any hazardous substance or environmental
contaminate, whether stored in drums, or found in vats, contain-
ers, distribution pipelines, or the like. All such substances
and contaminates shall be removed by the Lessee in a manner
approved and authorized by such federal, state or local laws,
regulations or codes.
If the County advises the Lessee that it has reason to
believe that any hazardous substance or environmental contaminate
has been released within the premises or into the ground under
the premises, then the Lessee at its expense shall retain an
approved environmental consultant to perform whatever environ-
mental assessment may be required to determine the extent of such
release. Lessee shall comply with the recommendations and
conclusions, contingent upon County approval, of such consultant
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regarding environmental cleanup efforts that may be required, and
shall comply with any other cleanup requirements imposed on the
Lessee by federal, state or local laws, regulations or codes.
Notwithstanding any other provisions of this Agreement, the
Lessee shall have no liability to the County for any violation of
environmental law which is attributable to the acts or omissions
of any person other than the Lessee, its agents, employees,
invitees, contractors or trespassers (nor shall such violations
constitute a default or breach of this Agreement). Nothing in
this Article or Agreement shall affect the Lessee's liability for
environmental violations as separately provided for in any
federal, state or local laws.
ARTICLE X - LIEN UPON PERSONAL PROPERTY
In the event of termination for default or upon termination
of this Agreement by its term the County shall have a lien upon
all personal property of the Lessee to secure the payment of any
unpaid rentals, fees and charges accruing under the terms of this
Agreement.
ARTICLE XI - CANCELLATION BY LESSEE
Lessee may cancel this Agreement any time that Lessee is not
in default in its payments to County hereunder, by giving County
thirty (30) days advance written notice to be served as hereinaf-
ter provided, upon or after the happening of anyone of the
following events:
A. Issuance by any court of competent jurisdiction of
an injunction in any way preventing or restraining
the use of the Airport or any part thereof for
airport purposes, and the remaining in force of
such injunction for a period of at least ninety
(90) days.
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B. The inability of Lessee to use, for a period in
excess of ninety (90) days, the Airport or any of
the premises, facilities, rights, licenses,
services or privileges leased to Lessee hereunder,
because of fire, explosion, earthquake, other
casualty, or acts of God or the public enemy,
provided that the same is not caused by negligence
or willful acts of failure to act on part of
Lessee.
C. The default by the County in performance of any
covenant or agreement herein required to be
performed by the County and the failure of County
to remedy such default for a period of ninety (90)
days after receipt from Lessee of written notice
to remedy same; provided, however, that no notice
of cancellation, as provided above, shall be of
any force or effect if County shall have remedied
the default prior to receipt of Lessee's notice of
cancellation.
D. The lawful assumption by the United States
Government or any authorized agency thereof of the
operation, control or use of the Airport and
facilities, or any substantial part or parts
thereof, in such a manner as substantially to
restrict Lessee, for a period of at least ninety
(90) days, from operating thereon for the carrying
of passengers, cargo, property and United States
Hail.
E. The failure or refusal of the Civil Aeronautics
Board to grant Lessee the right to operate into
and from said Airport and the issuance by the
Civil Aeronautics Board of a final order of
suspension, termination or revocation of Lessee's
authority to provide service at l~rathon Airport,
Monroe County, Florida.
Lessee's performance of all or any part of this Agreement
for or during any period or periods after a default of any of the
terms, covenants and conditions herein contained to be performed,
kept and observed by County, shall not be deemed a waiver of any
right on the part of Lessee to cancel this Agreement for failure
by County to so perform, keep or observe any of the terms,
covenants or conditions hereof to be performed, kept or observed.
No waiver of default by Lessee of any of the terms, covenants or
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conditions hereof to be performed, kept and observed by the
County shall be construed to be or act as a waiver by Lessee of
any subsequent default of any of the terms, covenants and con-
ditions herein contained to be performed, kept and observed by
the County.
ARTICLE XII - INDEMNITY
Lessee shall protect, defend, and hold the County and its
officers, agents and employees completely harmless from and
against any and all liabilities, losses, suits, claims, judg-
ments, fines or demands arising by reason of injury or death of
any person or damage to any property, including all reasonable
costs for investigation and defense thereof (including but not
limited to attorney's fees, court costs, and expert fees), of any
nature whatsoever arising out of or incident to this Agreement
and/or the use or occupancy of the leased premises or the acts or
omissions of officers, agents, employees, contractors, subcon-
tractors, licensees, or invitees of the Lessee regardless of
where the injury, death, or damage may occur, unless such injury,
death or damage is caused by the sole act of negligence of the
County. The County shall give to the Lessee reasonable notice of
any such claims or actions. The provisions of this Article shall
survive the expiration or early termination of this Agreement.
ARTICLE XIII - INSURANCE
In addition to such insurance as may be required by law, the
Lessee shall maintain, for so long as it occupies the premises,
aircraft and airport liability insurance with a minimum combined
limit of liability for bodily injury and property damage of no
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less than $25,000,000.00. The insurance coverage as required
shall include those classification as listed in the Standard
Liability Insurance Manuals, which most nearly reflect the
operations of Lessee under this Agreement. All insurance pol-
icies required pursuant to the terms of this Agreement shall be
issued in companies approved to do business under the laws of the
State of Florida. Such companies must be rated no less than "B"
as to management, and no less than "A" as to strength in accor-
dance with the latest edition of "Best Insurance Guide," pub-
lished by A.M. Best Company, Inc., or its equivalent, subject to
approval of the County Risk Management Division.
Within fifteen (15) days following the date of this Agree-
ment or prior to the commencement of operations hereunder which
ever occurs first and annually thereafter, the Lessee shall
furnish certificates of insurance to the County which certificate
shall clearly indicate:
A. That the Lessee has obtained insurance in the type,
amount and classifications as required for strict compliance with
this Article;
B. That any material change or cancellation of the insur-
ance shall not be effective without thirty (30) days prior
written notice to the County; and
C. That the County is named as an additional insured. The
County reserves the right to require the Lessee to provide such
reasonably amended insurance coverage as it deems necessary or
desirable, upon issuance of notice in writing to the Lessee,
21
which notice shall automatically amend this Agreement effective
thirty (30) days after such notice.
Compliance with requirements of this Article shall not
relieve the Lessee of its liability under any portion of this
Agreement or any other Agreement between the County and the
Lessee.
ARTICLE XIV - PERSONAL PROPERTY
&lY personal property of the Lessee or of others placed in
the premises in the Airport shall be at the sole risk of the
Lessee or the owners thereof, and the County shall not be liable
for any loss or damage.
ARTICLE XV - SURRENDER OF POSSESSION
Upon the expiration or other termination of this Lease or
any renewal thereof, Lessee's right to use the premises, facil-
ities, rights, licenses, services and privileges herein leased
shall cease and Lessee shall forthwith upon such expiration or
termination surrender the same.
ARTICLE XVI - DEFINITIONS OF TERMS
Whenever the term Federal Aviation Administration is used in
this Lease it shall be construed as referring to the Federal
Aviation Administration created by the Federal Government under
the Federal Aviation Act of 1958, or to such other Federal
Government authority as may be the successor thereto or to be
vested with the same or similar authority.
Whenever the terms "person" and "persons" are used in the
Lease, they shall be construed as including individuals, firms,
corporations and other legal entities. When, in this Agreement,
22
written approval by County is required, such written approval may
be given by the Director of Airports for County.
ARTICLE XVII - INSPECTION BY COUNTY
County may enter upon the premises now or hereafter leased
exclusively to Lessee hereunder at any reasonable time for any
purpose necessary, incidental to or connected with the perfor-
mance of its obligations hereunder, or in the exercise of its
governmental functions.
ARTICLE XVIII - ASSIGNMENT AND SUBLETTING
Lessee shall not at any time assign this Agreement or any
part thereof, nor sublet all or any portion of the leased prem-
ises herein without written approval of County passed by resolu-
tion of equal solemnity as the passage and execution of this
document; provided, however, that County shall not unreasonably
withhold approval. The prohibitions above stated include assign-
ment of this Agreement to any corporation with which Lessee may
merge or consolidate or which may succeed all or any portion of
the business of Lessee.
ARTICLE XIX - NOTICES
Notices to County provided for herein shall be sufficient if
sent by certified mail, postage prepaid, addressed to:
Mayor & Chairman of the
Board of County Commissioners
MONROE COUNTY COURTHOUSE
P.O. Box 1680
Key West, Florida 33040
Lessee, if sent by certified mail, postage prepaid,
and notice to
addressed to:
23
c/o Taylor, Brion, Buker & Greene
Fourteenth Floor
801 Brickell Avenue
Miami, Florida 33131-2900
or to such other respective addresses as the parties may desig-
nate to each other in writing from time to time.
ARTICLE XX - PARAGRAPH HEADINGS
The paragraph headings contained herein are for convenience
of reference and are not intended to define or limit the scope of
any provision in this Lease.
ARTICLE XXI - INVALID PROVISIONS
In the event any covenant, condition or provision herein
contained is held to be invalid by any court of competent juris-
diction, the invalidity of any such covenant, condition or
provision shall in no way effect any other covenant, condition or
provision herein contained; provided that the invalidity of such
covenant, condition or provision does not materially prejudice
either County or Lessee in its respective rights and obligations
contained in the valid covenants, conditions or provisions of
this Lease.
ARTICLE XXII - SUCCESSORS AND ASSIGNS BOUND BY COVENANTS
All the covenants, stipulations and agreements in this Lease
shall extend to and bind the legal representatives, successors
and assigns of the respective parties hereto.
ARTICLE XXIII - NON-DISCRIMINATION CLAUSE
The Lessee in exercising any of the rights or privileges
herein granted to him shall no on the grounds of race, color or
national origin discriminate or permit discrimination against any
person or groups of persons in any manner prohibited by Part 15
24
of the Federal Aviation Regulations, and the County is hereby
granted the right to take such action, anything to the contrary
herein not withstanding, as the United States may direct to
enforce this non-discrimination covenant. (See Exhibit "A")
ARTICLE XXIV - INTERPRETATION OF LEASE
Nothing in this Lease shall be construed or interpreted in
any manner whatsoever as limiting, relinquishing, or waiving of
any rights or ownership enjoyed by County in the Airport proper-
ty, or in any manner waiving or limiting its control over the
operation, maintenance, etc. , of Airport property or in
derogation of such governmental rights as County possesses,
except as is specifically provided for herein.
ARTICLE XXV - AS IS
The Lessee agrees to accept the leased property in "as is"
condition and County shall not be obligated to repair, maintain
or renovate same.
ARTICLE XXVI - MOVE LESSEE
County reserves the right to move Lessee from the premises
being leased under the terms of this Agreement within thirty (30)
days after permanent space becomes available for use by Lessee.
ARTICLE XXVII - QUIET POSSESSION
Lessee shall not be obligated in any manner under the terms
of this Agreement unless and until it obtains quiet possession of
the leased premises described in Article I of this Agreement.
ARTICLE XXIII - CIVIL ACTIONS
A. GOVERNING LAW - VENUE. This lease shall be governed
and construed in accordance with the laws of the State of
25
Florida. The venue on any action on this lease shall be laid in
Monroe County, Florida, and any action to determine the rights or
obligations of the parties hereto shall be brought in the Courts
of the State of Florida.
B. NOTICE OF COMMENCEMENT OF CIVIL ACTION. In the event
that the County or the Lessee commences civil action where such
action is based in whole or in part on an alleged breach of this
Agreement, the County and the Lessee agree to waive the procedure
for initial service of process. The County and the Lessee agree
to submit themselves to the jurisdiction of the Court in which
the action has been filed whenever service has been made in the
following manner:
1. Upon the County: by certified mail, return receipt
requested sent to (a) the party indicated in ARTICLE XX on behalf
of the County and with a copy to the County Attorney, 310 Fleming
Street, Key West, FL 33040.
2. Upon Lessee: by personal service or by certified mail,
return receipt requested sent to (a) the party indicated in
ARTICLE XX on behalf of Lessee and with a copy to whatever
attorney Lessee has designated in writing, if any.
In the event that the County and/or the Lessee raise an
objection to service of initial pleadings as provided for herein,
and the trial court overrules such objection, the objecting party
shall pay liquidated damages (attorney's fees) in the amount of
$250.00 to plaintiff in such action, prior to answering the
complaint.
26
C. REGISTERED OFFICE/AGENT - JURISDICTION. Notwithstand-
ing the provisions of ARTICLE XX and in addition thereto, the
Lessee, if a corporation, shall designate a Registered Agent and
Registered Office as required by s. 48.091, Florida Statutes,
such designations to be filed with the Florida Department of
State in accordance with s. 607.034, Florida Statutes. If the
Lessee is a natural person, he/she and his/her personal represen-
tatives hereby submit themselves to the jurisdiction of the
courts of this state for any cause of action based in whole or in
part on an alleged breach of this Agreement.
ARTICLE XXIX - NO REPRESENTATION
County makes no representation, warranty, guarantee, or
averment of any nature whatsoever concerning the physical condi-
tion of the premises, and it is agreed that County will not be
responsible for any loss, damage or cost which may be incurred by
Lessee by reason of any such physical condition.
ARTICLE XXX - INTERFERENCE
The Lessee further expressly agrees to prevent any use of
the premises which would interfere with or adversely affect the
operation or maintenance of the Airport or otherwise constitute
an airport hazard.
ARTICLE XXXI - AUTHORIZED USES ONLY
The Lessee shall not use or permit the use of the Airport
for any illegal or unauthorized purpose or for any purpose which
would increase the premium rates paid by the County on, or
invalidate, any insurance policies of the County or any policies
27
of insurance written on behalf of the Lessee under this Agree-
ment.
ARTICLE XXXII - FEDERAL SUBORDINATION
This Agreement shall be subordinate to the provisions of any
existing or future Agreement between the County and the United
States of America relative to the operation and maintenance of
the Airport, the execution of which has been or may be required
as a condition precedent to the expenditure of federal funds for
the development of the Airport. All provisions of this Agreement
shall be subordinate to the right of the United States of America
to lease or otherwise assume control over the Airport. or any
part thereof, during time of war or nation emergency for military
or naval use and any provisions of this Agreement inconsistent
with the provisions of such lease to, or assumption of control
by, the United State of America shall be suspended.
ARTICLE XXXIII - RIGHTS RESERVED
Rights not specifically granted the Lessee by this Agreement
are reserved to the County.
ARTICLE XXXIV - RIGHTS OF COUNTY AT AIRPORT
THE County shall have the absolute right, without limita-
tion, to make any repairs, alterations and additions to any
structures and facilities at the Airport. The County shall, in
the exercise of such right, be free from any and all liability to
the Lessee for business damages occasioned during the making of
such repairs, alterations and additions, except those occasioned
by the sole act of negligence of the County, its employees, or
agents.
28
ARTICLE XXXV - NO WAIVER
There shall be no waiver of the right of the County to
demand strict performance of any of the provisions, terms and
covenants of this Agreement, nor shall there be any waiver of any
breach, default or nonperformance hereof by the Lessee, unless
such waiver is explicitly made in writing by the County. Any
previous waiver, or course of dealing shall not affect the right
of the County to demand strict performance of the provisions,
terms and covenants of this Agreement with respect to any subse-
quent event or occurrence of any subsequent breach, default or
nonperformance by the Lessee.
ARTICLE XXXVI - RADON DISCLOSURE
In accordance with s. 404.056, Florida Statutes, the follow-
ing disclosure is hereby made:
Radon Gas: Radon is a naturally occurring radioactive gas
that, when is has accumulated in a building in sufficient quan-
tities, may present health risk to person 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 the County public health unit.
ARTICLE XXXVII - ENTIRETY OF AGREEMENT
The parties hereto agree that this Agreement sets forth the
entire agreement between the parties, and there are no promises
or understandings other than those stated herein. None of the
provisions, terms and conditions contained in this Agreement may
be added to, modified, superceded or otherwise altered, except as
29
may be specifically authorized herein or by written instrument
executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed as of the day and year first above written.
(SEAL)
Attest: DANNY L. KOLHAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE OUNTY, FLORIDA
BY~~~
By
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A.~"IIB. CERTIFICrt TE OF INSURANCE
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06/02/93
AMEI~ I CAN AGENTS I N1ERNA T I C~AL I NC
I'.O.SOX J24~
MIAMI, FLOIUDA 33143
THIS CE.RTIFICATE IS ISSUED A.G ^ MATT(~ OF INFORMATION ONl V AND CONFf
NO HIGIlTS UPON THE CERTIFICATE HOlDfR. THIS CERT1FICAT~ 00\;:5 NOT Af..',
EXTEND OH AL TER THE COVERAGE AFFORDED OY TlfE POLICIES BELOW
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COVERAGES
~HIS.IS TO CERTIFY THAT THe POLICIES OF INSURANCE U~TED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THF. POLICY PERle
INIlICA'ED. NOTWIHISTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRAroT OR OTHER DOCUMEN,. WITH RESPECT TO WHICH T"
CERTIFICATE MAY BE ISSUED OR MAY PF.ATAIN. THE INSURANce APFDRDED BY THE POLICIES DESCRIBED HEREIN IS SUaJECT TO ALL THE TER"
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, liMITS SHOWN MAY IIAVE BEEN REDUCED BY PAID CLAIMS.
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TYPE OF INSURANCE
'OI.ICY..UMllil'l
POLICV l,nctIV!: POUCY EXPIRATION
DATE {MMJUDIVYI DATE (MM/OOIY,""
ALL t.IMITe IN "HOUSANDS
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GENERAL UAOtLITY OfNEMAL ItOCnCCAn $:
COMMlRCIALOEN""ALLIADIlITV AFC0060 I.j 8- 00 PAOOUCTS.CO"'.,OPSAaaREaA" a
CLAI.... ...ADe OCCUR. AFE 0 0 6 0 1 49- 00 .!"SON.L' AOV<RTI~IN. INJURY .'
OWNCR'.' CONTRIIC,nH'S I'fIOT. 0210 h 19 3 02/06/94 EACH ""cunACNCO ·
A AV I AT ION /-lULL <Ie. L I ^I~I L ITY (INC. PASSENGERS) fll'1C OMIAGE (An,... II..) ·
A A I RPORT L I AB I L I TY, PREMISES ETe 02/06/93 02/06/94".0ICAL.X.ENSE(A.,...po.-,.
AUTOM08lLE LIAK.ITY ,. COMBINED
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EXPIRATION UAT': TH(!REOF, THE ISSUING Co...P^t\lY W'LL ENDEAVOR
MAIL _ DAYS WRITTeN NOTICE TO THE CERTIFICATE HOLDER NAMED TO ,
Len. IIVr FAILURE TO MAIL SUCH NOTICE SHALL IMP06E NO LIGAtION
LIADILlTY OF ANY KIND UPON THE COMPANY, ITS AGENT6 OR R" eS!NTATIVE
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KEY \\EST I FLOW:>\ 33040
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AIRCRAFT CERTlfll:.\ It: uF INSURANCE
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AIRWAYS INTERNATIONAL INC.
P.O. BOX 1244
~IA~I SPRINGS. ,LORIOA 33266-1244
A~ERICAN EAGLE
,ArE 60149 & IAFC 60148
FEBRUARY 6, 1993
F~bruary 6, 1994
"AIRPORT LIABILITY AND AVIATION HUll & LIABILITY including in respects any
aircraft couored on Identification Page while such eircraft are ope:ated
~ithin the controlled areas of l'Iarathon or Key Woet Airport Authoritles,
~onroe County, Florida and Airport Pre~ises liability in these locals.
,..'.. . ",,:'", .,
:'~'i :....:.AII.~I~kS While Not In Motion
G-AII Risk, While In Molion
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COVERAGES ,
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A-Bodily Injury Liability,
,',' -.'Excluding Passengers
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B-.;.Pa~si!1ier BOdily Injury Liability
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D-Sln,'" LImit Bodily InJury/ AVIATION HULL & L
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(AblOn'ceoriiic;,iuy.",caM:"no Ixcoption")
This Certlflelt. i. Issued to:
"DNROE COUNTY BDARO OF CO""I5SIDNERS
"ONROE COUNTY, ,LORIOA ATTNc ~RT SKELLEY ~
with whom we aar.., If possible. to notify__ oays 1>':/"'0 'Jiito uf canCIII.tion It policy should be cancelled. bu\
the Company shall not be liable in any way tor fallura to a' ;,' ,.(Jen Ilotice.
.
..r01$, conditions an~tVED
ISSUED B'......
/ GEORGE. IS"AEI.,PRESIDENT I
A"ERICAN AGENTS INTERNATIONAL INC.
MAR 31 1993
AIRPORTS 10MB