Item C3
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 23,2008
Sulk Item: Yes XX No
Division: County Attorney
Staff Contact Person: Pedro Mercado
AGENDA ITEM WORDING: Approval of Ground Lessor Consent Agreement and
Subordination, Non-Disturbance and Attornment Agreement.
ITEM BACKGROUND: On April 6, 1998 the County entered into a 20 year lease with Paradise
Aviation, Inc. for purposes of providing commercial full service Fixed Sase Operations (FSO) at the
Florida Keys Marathon Airport. Subsequently, Paradise Aviation, Inc. assigned all of its rights, title,
and interest in the leasehold to Cristal Clear FSO, LLC. Cristal Clear is in the process of obtaining a
loan from Eastern Aviation Fuels, Inc. to sustain their operations. As collateral for the loan, Cristal
Clear is pledging its interest in the leasehold. In order to close on the loan the lender requires the
County, as the lessor, to approve a Ground Lessor Consent Agreement and a Subordination, Non-
Disturbance and Attornment Agreement which are common in this type of transaction and gives the
lender the right to cure lessees default in the case of a breach or obtain possession of the leasehold in
the case of termination for the remainder of the lease.
PREVIOUS RELEVANT BOCC ACTION:
Approved original April 6, 1998 lease, December 19, 2001 lease amendment and March 15,2006
assignment oflease.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: N/A
BUDGETED: Yes
No
COST TO COUNTY: N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes XX No
AMOUNT PER MONTH $7.000 + Year
APPROVED BY: County Atty _ OMS/Purchasing _ Risk Management_
DIVISION DIRECTOR APPROVAL:
(TYPE NAME HERE)
DOCUMENTATION:
Included XX
Not Required_
DISPOSITION:
AGENDA ITEM #C ~
Revised 2/05
GROUND LESSOR CONSENT
This Ground Lessor Consent (hereinafter "Consent"), effective as of May_, 2008, by and between EASTERN
AVIATION FUELS, INC a North Carolina corporation witb an office or mailing address at P.O. Box 12327, New Bern,
North Carolina 28561-2327 (hereinafter "Lender"), Monroe County, a political subdivision of the State of Florida with
an office at 9400 Overseas Highway, Marathon, Florida 33050 (hereinafter "Lessor") and CRIST AL CLEAR
AVIATION, LLC a Florida limited liability company with an office at 9850 Overseas Highway, Marathon, Florida
33050 (hereinafter "Lessee") pursuant to a certain Lease effective April 6, 1998 as amended on December 19, 200 I
between Lessor and Lessee, as assignee of Paradise Aviation, Inc. (hereinafter collectively the tlLease"), pertaining
certain leased premises located at the Florida Keys Marathon Airport and legally described on Exhibit" A" attached hereto
and made a part hereof (hereinafter the IIPremisesll):
1. Lessor consents to Lessee's assignment and encumbrance of Lessee's leasehold interest by a
mortgage, deed of trust, deed to secure debt, assignment of lease Of other security agreement, and any and all extensions,
renewals and amendments thereto (hereinafter the tlSecurity Instrument") in favor of Lender to secure a loan Of loans from
Lender to Lessee.
2. Lessor and Lessee affirm that as of the date of this Consent, the Lease is in full force and effect and
no default or ground for termination thereof exists.
3. (a) \Xlithout the further consent of Lessor, Lender may acquire or obtain an
assignment of the interest of Lessee under the Lease by (i) judicial or non-judicial foreclosure or (ii) assignment in lieu of
foreclosure.
(b) Any subsequent assignment of the Lease after any assignment to or acquisition by Lender
as provided for in 3(a) above to an entity may be made only with the written consent of Lessor, which consent will not be
unreasonably withheld nor unreasonably delayed; provided however that such assignment must be made to an entity or
person that would operate the Premises as a Fixed Base Operation or other operation consistent with any use restrictions
contained in the Lease.
(c) Upon an assignment of the Lease by Lender as provided for in 3(b) above, Lender
shall have no liability under the Lease for obligations arising after said assignment provided that assignee cures all defaults
of Lessee. Notwithstanding anything herein to the contrary, in the event Lender shall have notified Lessor in writing of
Lender's intent to surrender the Premises to Lessor, all obligations of Lender under the Lease after such surrender shall
terminate. Further, subject to the terms of this Consent, including without limitation Paragraph 4 below; Lessor shall retain
the right to terminate the Lease within the terms thereof and hereunder if an event of default under the Lease is not cured by
either Lessee, Lender, or the successors-in-interest of either of them.
4. Lessor may not terminate the Lease because of any default or breach thereunder on the part of Lessee
without giving the Lender written notice of Lessor's intention to terminate the Lease at least fifteen (15) days in advance of
the proposed effective date of such termination and may not thereafter terminate the Lease if the Lender, or a receiver
appointed pursuant to the Security Insttument, within fifteen (15) days after service of written notice on Lender by Lessor of
Lessor's intention to so terminate:
(a) Cures the default or breach if it can be cured by the payment or
expendi tu rc 0 f money provided to be paid under the terms of the Lease, or if the default or breach is not so curable,
commences, or causes a receiver appointed pursuant to the Security Instnunent to commence, and thereafter to diligently
pursue to completion, proceedings to foreclose on the leasehold covered by the Security Instrument; and
(b) Keeps and performs all of the covenants and conditions of
the Lea s e until such time as the leasehold is sold upon foreclosure pursuant to the Security Instrument, or is released or
reconveyed thereunder, or is transferred upon judicial foreclosure or by an assignment in lieu of foreclosure.
5. Lessee shall keep in force a policy or policies of fire and extended
coverage Insurance which shall include the amount of the full replacement value of the leasehold improvements made
to the Premises by Lessee and or such other insurance coverages as may be required under the Lease, and such insurance shall
j
be payable to Le~sor, and then to Lessee as set forth below. In the event of damage to or dcstmction of the leasehold
improvements, the proceeds of the insurance shall be used for repair or rebuilding of the improvements, including Lessee's
leasehold improvements. Lessor, Lender and Lessee shall be named loss payees in the order of priority as set forth above in
all fire and other hazard insurance policies covering the Premises carried by Lessee. ~-\ny cost or expense 1n connection
therewith shall be paid solely by Lessee.
6. Subject to applicable la\v, any and all eminent domain or condemnation
a \Va I'd s 0 r dam a gc s payable to Lessee shall fIrst be applied in payment of the then outstanding balance, if any, of the loans
made to Lessee hv Lender and the balance shall be paid to Lessee, provided that the taking includes any portion of the
building or mor~ than one third (1/3) of the land is taken and Lessor is unable to provide alternatl\re substantially
contiguous parking and other land necessary for the operation of thc Premises as intended under the Lease.
7. The Lease may not he amcnded, relinquished, surrendered, or terminated
by any party without the prior written consent of Lender, which consent shall not be tuueasonably withheld provided
that Lessor may terminate the Lease upon Lessee's default in accordance ,vith Paragraph 4 hereof
8. Neither bankruptcy, insolvency, nor the appointment of a receiver or trustee
shall be a condition of default under, or othcrwise affect, the Lease so long as the obligations of Lessee, as set forth in
the Lease, are being pcrformed by Lessee, or are being performed by Lender as provided for herein, or the successors-in-interest
of either of them.
9. In the event of any proposed termination of the Lease prior to the expiration of the
tcrm thereof, Lessor shall, within fifteen (15) days prior to any termination of the Lease, serve upon Lender written
notice of such proposed termination together with a statement of any and all sums which would be due under thc Lease as of
the date of notice (but for the termination of the Lease) and a description of any and all events of default under the Lease.
Within fifteen (15) days following its receipt of the notice of termination, Lender shall have the option to assume the lease for
the Premises by providing Lessor with written notice of its desire to exercise such option, and Lessor hereby consents to
Lender's right to assume the Lease. Upon Lessor's receipt of such notice, Lessor shall assign the lease for the Premises with
Lender or any party described in Section 3 above which shall:
(a)CommenC{~ as of the date of the termination of the Lease, and shall be effective for the
remainder of the term of the Lease, and contain all of the terms and conditions that were set forth in the Lease including, but
not limited to, those pertaining to rental payments and options to renew the term of the Lease; and
(b) Require the tenant under the new lease to cure any monetary events of default under the terminated lease.
10. Lessor shall promptly take all actions necessary to evict the Lessee or any other unauthorized
party from the Premises and shall provide the tenant under the new lease with the sole and exclusive possession of the
Premises upon execution of the new lease.
11. Lessor and Lessee shall give Lender prompt written notice of all arbitration or legal proceedings
between Lessor and Lessee involving obligations under the Lease. Lender shall have the right to intervene in any such
proceedings and be made a party to such proceedings; and the parties hereto do hereby consent to such intervention.
All notices, requests, demands, and other communications under this agreement shall be in writing and shall be deemed
to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
LESSOR: Board of Commissioners of T\[onroe County, Florida
9400 Overseas Highway,
.\Iarathon, Florida 33050
Attn: Reggie Paras
LESSEE: Cristal Clear Aviation, LLC
9850 Overseas Highway,
r.,[arathon, Florida 33050
Attn:
LENDER: Eastcm ~-\viation I'uds , Ine.
P.O. Box 12327,
New Bern, North Carolina 28561-2327
~-\ttn:
~\ny party may change its address for purposes of this paragraph by giving the other parties written notice of the
ne\v address in the manner set forth above.
12. This i\greement shall be governed by the laws of the State of Horida. The venue for any
dispute involving this ~-\greement shall be in 110nroe County, Florida.
13. The terms hereof shall inure to the benefit of and be binding upon the parties, their successors
and assigns.
14. To the extent that this document gives rights to Lender, such rights shall accrue only to the
benefit of the Lender and its successors and assigns and only for so long as the Note and/ or Security Instrument of the Lender
is valid and in existence.
15. In the event that any of the provisions, terms, and conditions hereof are ambiguous or
inconsistent, or conflict with any of the terms and provisions of the Lease, any amendments thereto, or any other documents
executed in connection therewith, the provisions, terms, and conditions of this Consent shall control.
16. Unless the Lender shall expressly consent in writing, the fee title to the Premises and the
leasehold estate of Lessee shall not merge but shall remain separate and distinct, notwithstanding the acquisition of said fee
title and said leasehold estate by Lessor or by Lessee or by a third party, by purchase or otherwise.
17. The terms of this Consent are severable. If any of the terms and conditions hereof shall, for any
reason, be deemed void, voidable, or unenforceable, the remaining terms and conditions hereof shall remain in full force and
effect as though such void, voidable, or unenforceable provisions were not included.
18. The undersigned hereby certify that they are authorized to sign this Agreement and that all
actions necessary to authorize the execution to this Agreement by the undersigned have been taken, including if necessary,
appropriate resolutions or approvals by the board of directors, shareholders, partners, or members, as required.
19. This consent may only be modified by a written document signed by all of the parties hereto.
LESSOR: BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
By,
Name: Charles "Sonny" l\1cCoy
Title: I\layor
By,
Deputy Clerk
LESSEE: CRISTAL CLEAR AVIATION, LLC
By:
Name:
Title:
LENDER: EASTERN AVIATION FUELS, INC.
By:
Name:
Title:
Acknowledgment of Lessee
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this (date) by
(name and title of officer) of
, a
(state) corporation, on behalf of the corporation. He/she is personally known to me or has
produced (type of identification) as identification.
Notary Public
Printed Name:
My Commission Expires:
Commission #
Acknowledgment of Lender
STATE OF NORTH CAROLINA
COUNTY OF
The foregoing instrument was acknowledged before me this (date) by
(name and title of officer) of
, a
(state) corporation, on behalf of the corporation. He/she is personally known to me or has
produced (type of identification) as identification.
Notary Public
Printed Name:
My Commission Expires:
Commission #
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
'IHIS AGREEl\IENf made tins _day of l\lay, 2008, among Eastern Aviation Fuels, Inc" Wldl offices at Po. Box 12327,
New Bem, North Carolina 28561-2327 (hereinafter reIen:ed to as "Lender), Cristal Clear Aviation, lLC, a Rorida limited liability company
with offices at 9850 Overseas Highway, Marathon, Ronda 33050 ~lere1f1after referred to as "Tenant"), and Board of County
Commissioners of Monroe County, Florida, \.\lith an office at94(X) Overseas Highway, J\farathon, Florida 33050 (hereinafter referred
to as "Landlord").
WJTNESSETlI:
WHEREAS, Landlord and Tenant are JYarties to a certain lease effective Il.pril 6, 1998, as amended on Decemhcr 19, 2tXlI
(hereinafter collectively refmed to as the "Lease'), relating to premises sinured upon the real prope11y descrihed in Schedule "I" anached h=to
and by this reference made a part hereof (hereinafter referred to as the npremises"); and
\XIl-IEREAS, Lender has made or has committed to make a loan to Tenant in the principal amonnt of
TWO HUNDRED FIFTY THOUSAND "\ND 00/100 DOLLARS ($250,000,00) securcdbyacenainsernrityagr=nentand
relared loan documents (hereinafter collectively rcfened to as the "Security Agrcemenq and
WHEREAS, the parries desire to confinn theri oodetstandingwith respect to the Lease and the Scrurity ,I.greemen~
NOW, TIIEREFORE for and in corrsidetstion of the mutual covenants herein contlined, the sum ofTen Dollars ($10,00) and other
good and v.uuable consideration, the receipt and sufficiency of \\illi:h are hereby acknowledged, and notwithstanding anything in the
Lease to the contrary, it is hereby agreed as follows:
1. Lender and Tenant do hereby covenant and agree that the Lease ",;th all rights, options, liens and charges =ted thereby is and shall
continue to be subject and subordinate in all respects to the Scrurity Il.greement and to any advancements made thcre\Ulder and to any
renewa1s, modifications, consolidations, replacements and extensions thereof. Landlord, Lender and Tenant agree to be bound by the
Ground Lessor Consent among the parties executed simulraneouslywith the execution of this Agreement.
2 The parries agree fua~ so long as Tenant complies with and performs its obligotions oodcr the Scrurity Agreement and related loan
documents, (a) Lender will take no action which will inter/ffe with or disturb Tenanfs possession or use of the Premises or other rights
nnder the Lease, and (b) in the event Lender becomes the tenant of the Premises by foreclosure, conveyance in lieu of foreclosure or
otherwise, the Premises shall be subject to the Lease and Landlord shall recognize Lender (or such other lmant as is pe>n1it1ecl under the
Ground Lessor Consent) as the lmant of the Premises lOr the remainder of the lem1 of the Lease in accordance ",;th the provisinns thereof.
pl'O\ided, however, fuat Lender shall110t be subject to any offSets or defenses \\illi:h Tenant might have against Landlord except those
which arose out of such Landlord's default and accrued after Tenant had notified Lender and given Lender an opportunity to cure same
as hereinabove provided, nor shall Lender be bound by an amendment or modification of the Lease without its consent. Lender
shall have no personal liability under the Lease.
3. Tenant does hereby agree with Lender that, in the event any other entity becomes the owner of the Premises by foreclosure,
conveY:l1lce in hen of foreclosure or otherwise, then Tenant shall subordinate and anom to and recognize such person as the hndlord oodcr
the Lease for the remainder of the lem1 thereof. and Tenant shall perform and observe its obligotions thereooder, subject only to the terms
and conditions of the Lease. Tenant further covenants and agrees to execute and deliver upon request of Lender, or its assigns, and
appropriate agreement of subordination and attornment to any subsequent titleholder of the Premises.
4. So long as Ihe Security i\greement and related loan documents remain outstanding and unsatisfied, Tenant 'l.vill
mail or deliver to Lender, at the address and in the manner hereinbelow provided, a copy of all notices given to the
Landlord hy Tenant or to the Tenant by Landlord under and pursuant to the tetms and provisions of the Lease. [\t any
time hefore the rights of the Tenant shall have been forfeited or adversely affected because of any default of the Tenant,
or within the time pelmitted the Tenant for curing any default under the Lease as therein provided, Lender may, but
shall have no obligation to, pay any taxes and assessments, make any repairs and improvements, make any deposits or do
any other act or thing required of the Tenant by the terms of the Lease; and all payments so made and all things so
done and performed hy Lender shall be as effective to preyent the rights of the Tenant from being forfeited or
adversely affected because of any default under the T .ease as the same would have been if done and performed by the
Tenant.
5. Tenant acknowledges that Landlord, pursuant to the Ground Lessor Consent in the event of a default under
the Security ~-\greement or under other conditions set forth in the Ground Lessor Consent, will be required to execute
and deliver to Lender an assignment of the Lease, in connection with said Security Agreement and related loan to
Tenant by Lender, and Tenant hereby expressly consents to such assignment.
6. Landlord and Tenant hereby certify to Lender that the Lease has been duly executed by Landlord and Tenant and
is in full force and effect; that the Lease and any modifications and amendments specified herein are a complete
statement of the agreement between Landlord and Tenant with respect to the leasing of the Premises, and the Lease has not
been modified or amended except as specified herein; that to the knowledge of Landlord and Tenant, no party to the Lease is
in default thereunder; that no rent under the Lease has been paid more than thirty (30) days in advance of its due date;
and that Tenant, as of this date, has no charge, lien or claim of offset under the Lease, or otherwise, against the rents or
other charges due or to become due thereunder.
7. ~-\ny and all notices, elections or demands permitted or required to be made under this Agreement shall be in
writing, signed by the party giving such notice, election or demand, and shall be delivered personally, or sent by
registered or certified United States mail, postage prepaid, to the other party at the address set forth below, or at such
other address within the continental United States of America as may have theretofore been designated in writing. The
date of personal delivery or the date of mailing, as the case may be, shall be the date of such notice, election or demand.
For the purposes of this Agreement:
The address of Lender is: P.O. Box 12327, New Bern, North Carolina 28561-2327
The address of Tenant is: 9850 Overseas Highway, ~Iarathon, Florida 33050
The address of Landlord is: 9400 Overseas Highway, I\1arathon, Florida 33050
8. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, successors-in-title and assigns. \\!hen used herein, the term "Landlord" refers to Landlord
and to any successor to the interest of Landlord under the Lease.
9. This Agreement shall be governed by the laws of the State of Florida. The venue for any dispute involving this
Agreement shall be in ~lonroe County, Florida.
IN W'ITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first above
written.
-2-
Signatures appear on next page
LESSOR: LESSOR: BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Name: Charles "Sonny" l\.fcCoy
Title: ~fayor
LESSEE: CRISTAL CLEAR AVIATION, LLC
By:
Name:
Title:
LENDER: EASTERN AVIATION FUELS, INC.
By:
Name;
Title:
-3-
(SEAL)
ATTEST: DANNY L. KOLHAGE,
CLERK
By:
Deputy Clerk
~-\cknowlcdgment of J ,essce
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this (date) by
(name and title of officer) of
, a Florida limited liablity company, on behalf of
the company. He/she is personally known to me or has produced
(type of identification) as identification.
Notary Public
Printed Name:
My Commission Expires:
Commission #
Acknowledgment of Lender
STATE OF NORTH CAROLINA
COUNTY OF
The foregoing instrument was acknowledged before me this (date) by
(name and title of officer) of
Eastern Aviation Fuels of North Carolina, Inc., a North Carolina corporation, on behalf of the
corporation. He/she is personally known to me or has produced
(type of identification) as identification.
Notary Public
Printed Name:
My Commission Expires:
Commission #
-4-
SCHEDULE 1
Legal Description
-5-
CONSENT TO ASSIGNMENT
This Consent to Assignment is entered into this 15th day of March 2006, by and
between Monroe County, a political subdivision of the State of Florida (hereinafter
referred to as "the County"), Paradise Aviation, Inc., Assignor, and Cristal Clear FBO,
LLC, Assignee, the parties agreeing as follows:
1. The County leased to Assignor approximately 373,679.56 s.t: of space utilized
as a FBO facility located at 9850 Overseas Highway, Marathon, Florida at the
Marathon Airport, under a Marathon FBO Agreement dated April 6, 1998
(hereinafter referred to as the "Original Agreement"), and amended by Lease
Amendment thereto on December 19, 2001. The Original Agreement and
Lease Amendment are attached and incorporated into this Consent to
Assignment.
2. Subject to approval by the County Commission, a change of operational
control of the FBO facility was agreed to between the Assignor and Assignee
effective December 19, 2005, wherein the Assignor assigned to Assignee all
the Assignor's rights, title and interest in the Original Agreement and Lease
Amendment.
3. Monthly rent payments shall be made payable to Monroe County Airport
Business Office and sent to 3491 S Roosevelt Blvd, Key West, Florida 33040.
In consideration for Monroe County's consent, the Assignee agrees to be
/lopnd by all the terms and conditions of the Original Agreement and Lease
., ". . ~A'lne,!ldment.
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t:-. . .'.~.'.' ./' ..': DANNY L. KOLHAGE, CLERK
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' ~eputy Clerk
4.
BOARD OF COUNTY COMMISSIONERS
OF MONROE C UNTY, FLORIDA
Witness:
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Mayor Chairrnall'l '; -< ::lO
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ASSIGNEE - Cristal Clear ~~LC.."
a Flori ited liabili co~; ~
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a Clark, Managihg Memb
By:
Witness:
ASSIGNOR - Paradise Aviation, Inc.,
a Florida corporation
~-oJ;J
J. E. Steigerwald, President
ORNEY X
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Rl,;AUI..J
TY ATTORNEY
By: _ C'"l.-., ~ . .~
Tracy er
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This Lease Amendment is entered into this
LEASE AMENDMENT
14M day of )><u-~~,vt~~ 2001,
by and between MONROE COUNTY, a political subdivision of the State of Florida, whose
address is Florida Keys Marathon Airport, 9400 Overseas Highway, Marathon Florida 33050
(hereafter County), and PARADISE AVIATION, INC., a corporation, whose address is 9850
Overseas Highway, Marathon, Florida 33050 (hereafter FBO).
WHEREAS, on April 6, 1998, the parties entered into a 20 year lease (the original lease)
whereby the FBO is to provide fixed base operations service at the Florida Keys Marathon
Airport (FKMAP). A copy of the original lease is attached as Exhibit A and made a part of this
amendment; and
WHEREAS, the County and the FBO desire to expand the FBO's premises to provide an
additional hangar and ramp area; now, therefore
In consideration of the mutual covenants and promises set forth below, the parties agree
as follows:
1. a) The County leases to the FBO a total of 37,800 square feet of real
property (25,800 square feet at .30 cents a square foot and 12,000 square feet at .11 cents a
square foot) described in Exhibit AI, hereafter the premises. Exhibit A1 is attached to, and
made a part of, this lease amendment.
b) The premises may be used for the site of a county approved newly
constructed hangar, aircraft tie-downs and aviation activity only. The new hangar is to be built
at the sole cost and expense of the FBO. The improvements made by the FBO to premises
automatically become the property of the County upon the termination of this lease. However,
FDOT funds may become available for improvement construction. In that case, if FDOT funds
are used to construct the hangar then the FBO must provide a letter of credit in the amount
equal to their estimated share of the hangar and sign an Agreement with the County before any
public funds are provided. The County/FBO agreement will authorize payment to the County
from the letter of credit if the FBO fails to promptly pay its portion of the improvement
construction costs and any additional terms required for the use of FDOT Funds.
2. The term of this lease amendment begins on January 1,2002 and ends on April 5,
2018.
3. The rent for the premises is $755, plus tax, per month, payable upon certificate
of ramp completion and subject to increase in amount as provided in the original lease.
4. Except as specifically provided in this lease amendment, this lease amendment is
subject to the terms and conditions of the original lease all of which remain in full force and
effect.
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If the hangar is not constructed or has not received a certifica~cflf,oc~CI9'1
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within two years of the effective date, this amendment becomes void. i?:FJ;" W !i5
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.,,~11!~TNESS WHEREOF, each party has caused this Agreement to ber~te~y i@
:":"ti;f:M ',; . resentative the date first written above. co 0
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y~eputy Clerk
5.
BOARD OF COUNTY COMMISSIONERS
OF MONROE CO TV, FLORIDA
By
Mayo IChairperson
ATTEsT:
PARADISE AVIATION, INC.
By /'~-l'L.r
Title --,Aoflllf/M."'-f'-
jdairportparadise
By \.'f~7 ,~
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MARATHON FIXED BASE OPERATOR (FBOl AGREEMENT
This Agreement is made and entered by Monroe County, a political subdivision of the
State of Florida, whose address is Marathon Airport, 9400 Overseas Highway, Marathon Florida
33050 (hereafter County), and Paradise Aviation, Inc. whose address is 9850 overseas Highway,
Marathon, Florida 33050 (hereafter FBO).
WHEREAS, the County owns the Marathon Airport located in Marathon, Florida: and
WHEREAS, the FBO is a corporation in the business of providing commercial full service
fixed based operations; and
WHEREAS, the County is desirous of having the FBO provide such services at the
Marathon Airport;
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NOW, THEREFORE, the FBO and the County agree as follows: jj(')~ i!1
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1) The County leases to the FBO the real property shown on Exhibit ~?riFlGdil~ th~
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hangar building, line office, ramp, tiedowns, and fuel farm, hereafter collectivli!i::P*rr<>d to at
('),......~
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the premises. Exhibit A is attached to and incorporated into this Agreeme~ IP ~ii'
~ I'Ij IV. :0
structures, or other improvements to real property may be added by the FBO to the 1ferrtrlls
during the term(s) of this Agreement without a separate agreement concerning the same with
the County.
2) The County sells and conveys title to the FBO those items of personal property
listed in Exhibit B. The County warrants to the FBO that the property listed in Exhibit B is free and
clear of the liens or other encumbrances of any third parties. Exhibit B is attached to and
incorporated in this Agreement.
3) aJ As an inducement for the County to enter into this Agreement, and as the
purchase price for the personal property listed in Exhibit B, the FBO must pay to the County
$234,000 prior to occupancy of the premises, The FBO may not occupy the premises until the
payment is made, although the term begins to run on the effective date of this Agreement.
b) The FBO must pay monthly rent for the premises. on an arrears basis, in the
amount of $6,800 per month. The initial rent payment is due on the effective date of this
Agreement and on the first of each month thereafter.
c) Starting on the date that the FBO begins the sale of fuel. the FBO must pay the
County a 4 cents per gallon flowage fee for each gallon sold. By the tenth of each month the
FBO must truthfully and accurately report to the County the number of gallons sold and pay the
County the fee due based on that number. The County's Marathon Airport Manager, or his
designee, must be allowed to inspect the FBO's records concerning fuel sales to make sure the
t10wage fees paid accurately reflect the number of gallons sold. The inspection(s) may only be
during regular business hours 19:00 AM - 5:00 PM, Monday through Friday, excluding holidays).
d) The rent will be adjusted annually on the anniversary of the effective date ot
this Agreement by the amount recommended in an approved rates and charges study or by an
amount reflecting the percentage in increase in the CPI during the year prior to the anniversary
date.
e) All payments owed by the FBO to the County that remain unpaid for more
than 30 days will begin to accrue interest at a rate calculated from the original due date until
the date the County actually receives the money. The interest rate is the one esfablished by the
Comptroller of the State of Florida under sec. 55.03, F.S.. for the year in which the payment
became overdue. The right of the County to claim Interest--and the obligation of the FBO to
pay it--are in addition to. and not in lieu of. any other rights and remedies the County may have
under this Agreement or that are provided by law.
t) The FBO pledges and assigns to the County, the fixtures, goods, and chattels of
the FBO that are brought or placed on the premises as additional security for the payment of
the rent. The FBO agrees that a lien against the fixtures, goods, and chattels, may be enforced
by distress foreclosure or otherwise at the election of the County, and the FBO agrees to pay all
costs and charges County incurred by the County in an enforcement action.
4) The term of this Agreement is 20 years beginning on the effective date.
2
5) The FBO must pay all taxes and assessments, including any sales or use tax,
imposed or levied by any governmentai agency with respect to the FBO's operations authorized
at the Marathon Airport operations under this Agreement.
6) The FBO must obtain, in its own name, and pay tor, all utility services at the
premises including solid waste removal,
7) aj FBO has the right during the term(s) ot this Agreement to maintain a tixed base
operation and has the right to sell aircraft and aircraft engines, parts and accessories, lease
aircraft storage space, operate pilot training service, provide aircraft maintenance and repair
service, aircraft rental and charter tlying service, and any other aeronautical service normally
turnished by a tixed base operator. The FBO has the right to sell aviation gasoline and lubricants
and to provide aeronautical services that are compatible with other activities on the airport.
The FBO is also entitled to receive tie-down tees trom aircraft parked only in the paved ramp
area located within the premise's boundaries as described in Exhibit A, The FBO specifically
waives any and all right to tie-down tees or any uses whatsoever ot properties at the Marathon
Airport located outside ot the above-described premises. The FBO must retrain trom either
directly or indirectly being involved in any car rentals or other services that are not related
specitically to fixed base aircraft operations.
b) The County's permission is not required tor the repair, renovation or
rehabilitation ot improvements depicted on Exhibit A.
8) aj The FBO acknowledges and agrees that he has examined the premises, and is
fully advised ot their condition and location, and the limitations and restrictions placed on any
building. structure or other object as to height. due to the proximity ot the landing and takeoff
areas ot the Marathon Airport. The FBO agrees to abide by and observe all such restrictions and
limitations, including the County fixed base operator minimum standards attached and
incorporated as Exhibit C. and agrees that the observance ot such limitations and restrictions
whether imposed by the County, state or tederal governmental authority will not in anywise
3
affect the FBO's obligations under this lease. The FBO must also comply with all laws, statutes,
regulations and rules of the federal or state governments, and any plans or programs developed
by or funded by either government, that affect the FBO's operations or its use of the premises.
The FBO's obligafion to obey federal and state laws, statutes, regulations and rules, any federal
or state airport plan or airport program criteria or the criteria of a plan or program funded by the
state of federal government, includes not only those in existence on the effecfive date of this
Agreement, but those adopted after that date.
b) The FBO must pay any penalty, assessment or fine of the federal or state
government imposed on the County that arises out of, or is attributable to, the FBO's operations
at the Marathon Airport. The FBO must also defend in the name of the County any claim,
assessment or civil action that is initiated by the federal or state govemment against the County
that is based in whole or in part on a claim that any aspect of the FBO's operations at the
Marathon Airport violated a law, statute, rule, regulation, or program or project criteria.
9) The County is responsible for remedying the environmental contamination
described in Exhibit D. The FBO agrees to admit County employees or contractors to the
premises at reasonable times for the purpose of remedying contamination. Otherwise, the FBO
accepts the premises in the condition that they are in at the beginning of this agreement. The
FBO must keep the premises in good order and condition. The FBO must promplly repair any
damage to the premises and is responsible for remedying any environmental contamination
caused by the FBO's operations at the premises. At the end of the term(s) of this agreement. the
FBO must peacefully surrender the premises to the County in good order and condition, normal
wear and tear excepted. If no rent or fees are due the County, at the end of the term(s) of this
Agreement the FBO may also remove its personal property from the premises and may remove
any trade fixtures provided that the FBO restores the premises to their original condition. If
during the term of this Agreement the FBO fails to keep the premises in the good repair and free
from environmental contamination as required by this subparagraph, the County may, after
4
providing the FBO with a written warning and a tilleen day opportunity to correct the
deficiency. enter the premises and do whatever repair or clean up work the County's Marathon
Airport Manager deems appropriate. The cost of the work plus 10% will be added to the FBO's
rent for the month following the repair or clean-up.
10) The FBO is liable for and must fully defend. release. discharge. indemnify
and hold harmless the County. the members of the County Commission. County officers and
employees. and County agents and contractors, from and against any and all claims, demands,
causes of action. losses, costs and expenses of whatever type - including investigation and
witness costs and expenses and attorneys' fees and costs - that arise out of or are attributable to
the FBO's operations at the Marathon Airport, excluding those claims. demands. damages,
liabilities, actions. causes of action, losses, costs and expenses that are the result of the sole
negligence of the County. The FBO's purChase of the insurance required in paragraph 12 and
Exhibit D does not release or vitiate the FBO's obligations under this paragraph.
11) II is understood and agreed that nothing contained in this Agreement may be
construed to grant or authorize the granting of an exclusive right within the meaning of the
Federal aviation Act or its successor and that the County may enter into agreements with other
fixed base operators as long as such agreements are not on more favorable terms than this
Agreement.
12) a) Regardless of the ellective date of this Agreement, before the FBO may
occupy the premises it must obtain insurance in the amounts, terms and conditions described in
Exhibit E. Exhibit E Is attached and made a part of this Agreement.
b) The FBO must keep in full force and effect the insurance described in Exhibit E
during the term(s) of this Agreement. If the insurance policies originally purchased which meet
the requirements of Exhibit E are canceled. terminated or reduced in coverage, then the FBO
must immediately substitute complying policies so that no gap in coverage occurs.
5
c) The insurance required of the FBG in this paragraph is for the protection of
the County, its property and employees, and the general public. The insurance requirement is
not, however, for the protection of any specific member of the general public who might be
injured because of an act or omission of the FBG. The insurance requirements of this paragraph
do not make any specitic injured member of the generai public a third party beneficiary under
this Agreement. Therefore, any failure by the County to enforce this paragraph, or evicf the FBG
from the Marathon Airport if the FBG becomes uninsured or underinsured, is not the breach of
any duty or obligation owed fo any specific member of the general public and cannot form the
basis of any County liability to a specific member of the general public or his/her dependents, or
estate or heirs.
13) The FBG may not cause, suffer or permit any lien, martgage. security interest.
financing statement or other encumbrance to be placed on any real property improvement to
real property. or fixture owned by the County and leased to the FBG under this Agreement. If
any of the encumbrances just described are filed or perfected against any such property of the
County. the FBG must promptly cause the discharge. release or otherwise clear and remove
such encumbrances from the County property.
14) a) The County must keep the Marathon Airport runway. taxiway. and the area
immediately adjacent to the runway and taxiway. in good repair and clear of obstrucfions and
debris. The County must maintain and operate the Marathon Airport according to the highest
standards or ratings issued by the FAA for airports similar in size and character to the Marathon
Airport. The County must also comply with the rules and regulations of any other government
agency that has. or may have. jurisdicfion over the Marathon Airport.
b) The County provide ingress and egress to the premises for FBG employees.
customers. guests. and suppliers.
15) The FBG for himself. his personal representatives. successors in interest. ond
assigns. as a part of the consideration hereof. does hereby covenant and agree that
6
a) No person on the grounds of race, color, or nafional origin shall be excluded
from participation in, denied the benefits or, or be otherwise subjected to discrimination in the
use of said facilities,
b) That in the construction of any improvements on, over or under such land and
the furnishing or services thereon, no person on the grounds of race, color, or national origin shall
be excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination
c) That the FBO shall use the premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation,
Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of
the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as
said Regulations may be amended.
That in the event of breach of any of the above nondiscrimination covenants, the
County shall have the right to terminate the lease and to re-enter and as if said lease had never
been made or issued. The provisions shall not be effective unffl the procedures of Title 49, Code
of Federal Regulations, Part 21 are followed and completed Including exercise or expiration of
appeal rights.
16) It shall be a condition of this lease, that the County reserves unto itself, its
successors and assigns, for the use and benefit of the public, a right of flight for the passage of
aircraft in the airspace above the surface of the real property hereinafter described, together
with the right fo cause in said airspace such noise as may be inherent in fhe operation of
aircraft, now known or hereafter used, for navigation of or flight in the said airspace. and for use
of said airspace for landing on. taking off from or operafing on the airport. That the FBO
expressly agrees for itself. its successors and assign. to restricf the height of structures. objects of
natural growth and other obstructions on the hereinafter described real property to such a
height so as to comply with Federal Aviation Regulations Part 77. That the FBO expressly agrees
7
for itself, its successors and assigns, to prevent any use of the hereinafter described real properly
which would interfere with or adversely affect the operation or maintenance of the airport, or
otherwise conslilute an airport hazard,
17) This Fixed Base Operator Agreement and all provisions hereof are subject and
subordinate to the terms and conditions of the instruments and documents under which the
County acquired the subject properly from the USA and shall be given only such effect as will
not conflict or be inconsistent with the terms and conditions contained in the lease of said lands
from the County and any existing or subsequent amendments thereto,
18) If funds are not provided by the United States for the operation of a Marathon
Airport control tower, navigation aids or of her facilities that are needed by the FBO for service
at the Airport, the County is under no obligation to provide those facilities or services,
19) a) The County may treat the FBO in default and terminate this Agreement if the
FBO fails to timely submif the paymenfs required of it under paragraph 3, Before the County
may ferminate the Agreement under this subparagraph, the County must give the FBO written
notice of the default stating that, if the default is not cured within 15 days of fhe FBO's receipt of
the written notice. then the County will terminate this Agreement.
b) The County may treat the FBO in default and terminate fhis Agreement if the
FBO does nof begin fixed base operator service and have the insurance required by Exhibif E
within 30 days of the effective date of this Agreement, Before the County may terminate the
Agreemenf under this subparagraph. the County must give the FBO a written notice of the
default stating that. if operations do not commence and the required insurance is not obtained
within 15 days of the FBO's receipt of the notice. then the County will terminate this Agreement.
c) The County may treat the FBO in default and terminate this Agreement if the
FBO, after sfarting fixed base operator service at fhe Marathon Airport. fails to keep in full force
and effect fhe insurance required by paragraph 12 and Exhibit E. Before treating the FBO in
default and terminating the Agreemenf under this subparagraph. the County need only provide
8
the FBO 24 hour notice by FAX or overnight courier. The County may. but need not. provide the
FBO with an opportunity to cure the detault.
d) The termination at this Agreement under subparagraphs 19(a)-(c) does not
relieve the FBO from an obligation to pay whatever damage the County suffered because of
the FBO's default.
e) The County may also treat the FBO in default and terminate this Agreement it
the FBO fails to comply with its other obligations under this Agreement (the obligations besides
the payment of rents and fees when due, and the purchase of insurance and keeping it in
effect.) Before the County may terminate the Agreement under this subparagraph, the County
must give the FBO a written notice of the default stating that. if the default is not cured within 15
days of the FBO's receipt of the written notice, then the County will terminate this Agreement.
Termination under this subparagraph does not relieve the FBO from an obligation to pay the
County whatever damages the County suffered because of the FBO's default.
f) Despite the FBO timely cure of its acts of default or the County's waiver of acts
of default, if the FBO defaults three times or more in pertorming its obligations under this
Agreement during a calendar year, then the County may. in its discretion. determine that the
FBO is a habitual violator. When the County makes that determination, it must notity the FBO in
writing. The notice must explain why the FBO was determined to be a habitual violator and that
any future act of default will be noncurable will not be waived. and will be the basis for the
immediate termination of this Agreement. If a subsequent default occurs, the County may
terminate this Agreement by giving the FBO 10 days written notice. The FBO must pay the
County whatever rent and fees are due as of the date of termination. The FBO will then have no
further rights under this Agreement. Termination under this subparagraph does not relieve the
FBO from an obligation to pay the County any damage suffered because of the FBO's final act
of default.
9
20) The FBO may terminate this Agreement in its discretion - if it is not in default in
paying the rents and fees owed to the County - by giving the Counfy 15 days written nofice.
upon the occurrence of any of the following events:
a) The issuance by any court of competent jurisdiction of an injunction in any
way preventing or restraining fhe use of the Marathon Airport. or any part of fhe Airport. for a
period of at least 90 days.
b) The lawful assumption by fhe United Sfates of the operation. control or use of
fhe Marathon Airport. or any part of fhe Airport. in a way thaf prevents the FBO from operating
its fixed base operation for a period of af least 90 days.
c) The inability of fhe FBO to use the Marathon Airport for at least 90 days
because of fire. explosion. earthquake. hurricane. other casualty. or acts of God or the public
enemy.
d) The FAA's failure to grant the FBO the license Is) necessary fo operate ifs
service.
e) A dispute between fhe County and another governmenfal agency or
between of her governmenfal agencies fhat make it difficull or impossible for the Marathon
Airport to be operated safely for a period of at least 90 days.
The grounds for the FBO's termination of this Agreement as stated in subparagraphs 20(a)
- Ie) create no basis for any County liability to the FBO and cannot serve to create any
obligation on the part of the County to pay money to the FBO.
21) The FBO may terminate this Agreement and treat the County in defaull if the
County fails to perform its obligations under this Agreement and the failure is not due to the
reasons described in subparagraph 20(a)-(e). Before the FBO may terminate the Agreement
under this paragraph. the FBO must give the County a written notice of the defaull stating that.
it the defaull is not cured within 15 days of the FBO's written notice. then the FBO will terminate
this Agreement. Termination under this paragraph does not relieve the County from an
10
obligation to pay the FBO whatever damages the FBO suffered because of the County's
default.
22) The waiver by the FBO or the County of an act or omission fhaf constitutes a
default of an obligation under this Agreement does not waive another default of thaf or any
other obligation.
23) The FBO may not assign this Agreement or assign or subcontract any of its
obligations under this Agreement without the approval of the County's Board of County
Commissioners.
24) AIi the obligations of this Agreement will extend fo and bind the legal
representatives, successors and assigns of the FBO and the County.
25) During the term of this Agreement, the FBO, must have and maintain a registered
agent as required by Chap. 620, F.S.. and keep the County informed of fhe agenf's name, title
and address.
26) This Agreement is governed by the laws of the State of Florida and the United
States. Venue for any dispute arising under this Agreement must be in Monroe County, Florida.
In the event of any litigation, the prevailing party is entitled to a reasonable fair market value
attorney fees and costs.
27) This Agreement has been carefully reviewed by the FBO and the County.
Therefore, this Agreement is not to be construed against any party on the basis of authorship.
28) Notices to the County provided for in this Agreement, unless otherwise specified,
must be sent by certified mail to:
Marathon Airport Manger
9400 Overseas Highway
Marathon, FL 33050
Notices to the FBO provided for in this Agreement, unless otherwise specified, must be sent by
certified mail to:
Paradise Aviation, Inc.
9850 Overseas Highway
Marathon, FL 33050
11
29) This Agreement is the parties' final mutual understanding. It replaces any earlier
agreements or understandings. whether written or oral. This Agreement cannot be modified or
replaced except by another written and signed agreement.
30)
This Agreement will take effect on A'Clll.
~
.1998.
IN WITNESS WHERE h party has caused this Agreement to be executed by its duly
:.rfl'"COL'l.'
h . ,.,'L~~,."
aut onzed represent, I,~/,';' ,,,,..,,; ,
.... r ''''
l ~i\
By ~...-Q~"~~
Deputy lerk 03 11-"19
BOARD OF COUNTY COMMISSIONERS
OF MON COUNTY, FLORIDA
'~.4~
Mayor/Chairman
(SEAL) . "
ATTEST: DANNY L. KOLHAGE. CLERK
ATTEST:
ByJJk ~~ \{:MJ-i
TitleLr,
BV:ts.-eo . 4-
Title Q.l!"~' \) ~
pcon/fbomara2
FOR.",
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12
EXHIBIT 'A'
REAL PROPERTY
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SUIM:YOI't'S NOTEs:
North arrow boaed on NAD 8.3 (1990) state Plone Coordinate S)'I'tlm
Ref'rlnC41 Blaring: NAO 6J (1990) Stat. Plone Coordlnot. Sy.tern
."'d.not.. 8)fI,ting .rlV<ltion
Oevotion. bOled on N,C;.V.O. 1929 Dotum
Bench Mork No.: X-27J Elevetion;
Monum.motlon:
.. .. .et Spike or P.K. Noll, o. noted 3.907 (destroyed)
S .. eet 1/2" Iron pip., P.LS. No. 2749
. .. found 1/2" iron pipe
~
Abbr.YlatIonr.
Sty. .. Story
R/W .. Right-of-Way
Id. .. Found
p. "" Plot
m. ... Mea.urlc!
O.R. .. Ofrlciol Record.
S~. .. Section
Twp. .. TownShip
R91. .. Range
N,T.S._ Not to Seole
t Cent.rlin.
Elev.... EI....otlon
8.M." Bench Morl\
P.I!. .. Plot Book
P9. ... poq.
El_c.- Electric
r,1. .. rer.phone
o/n .. Ov.mood
U/9 ... Underground
F.Ft._ Fini,h Floor Elevotio"
conc._ concrete
t - Bo_eline
C.B. - Concrete Slocl.:
C.B.S." Concrete Block Stucco
coy'd,. Covered
D, . Electrical Pull So.
0,- Electrical .0' Hole
"* . Runwo)' lignt
~ .. Horiz. cOI'Itror t.lO(lumenl
Field Work perlormed on: 12/JO/97 tnru '/16/98
C.B. .. Cotcn Bosln
Mon~oe County
Marathon Airport. Ma~athon. Flo~rda
Sketch to accompany legal
Description
Scole' 1 "-200' Ref, pone' No.
. 132-1
Dot" 1/28/98
RE.VISIONS AND OR AOomONS
3/6 96: Hon .r location
Own No.:
98-437-01
0.,... B: f.H.H.
flood Elev.
o Monroe Coun t.larothon air art r.o..
Sheet 1 of 2
FREDERICK
ENGINEER
H. HILDEBRANDT
PWlNER SURIIEYoR
3150 North_id. Drlye
Suite 101
Key W.,.t, Fl, 033040
(305) 293 04-66
F"(lll. (J05) 293 02J7
LEGAL DESCRIPTION (LEASE AREA):
A portion of land located at Marathon Airport. and being
South. Range 32 East, Key Voca, Monroe County. Florida
described as follows;
COMMENCING at 0 N.O.S. Horizontal control monument stomped MTHC 1989. and whose Florida
State Plane Coordinates ore N 142029.09 and E 638059.76 (1983/90); thence N 67'29'51" E
for 2473,09 feet to the Point of Beginning ( N 142975.60, E 640344.55 ); thence N
67'22'34" E olong the edge of an asphalt surface fOf 1347.96 feet ( N 143494.14, E
641588.79 ); thence S 22'39'52" E and along the edge of on asphalt surface for 252.91
feet to a chain link fence ( N 143260.76, E 641686.24); thence S 67'23'40" Wand olong
the said chain link fence for 1348.46 feet ( N 142742.43, E 640441.38 ); thence N
22'33'05" Wand along an edge of a asphalt surface for 252.48 feet to the Point of
Beginning.
Containing 340,679.56 Square Feet or 7,82 Acres, more or less,
o part of
and being
Section 1, Township 66
more particularly
CERTIFICATION:
.I HEREBY CERTIFY that the attached Sketch to accompony' Legol Description
IS true and correct to the bes of my knowledge and 'beleif; tliat it meets the minimum
technical standards adopted the Florida Soord of Land Surveyors, Chapter 61G17-6,
Florida St ute ction 472. 7, and the American Land litle Association, and that
ther or n ible encr chments unless shown hereon.
NOT VAllO UNLESS EM 80S SED
Monroe County
Marathon Airport, Marathon, Florida
Sketch to accompany Legal
Descri tion
Seal.: 1".200'
00'" 1/28/98
WITH RAISED SEAL & SIGNATURE
Sheet 2 of 2
Dwn No,:
98-4~7 01
FREDERICK
ENGINEER
H. HILDEBRANDT
PLANNER
SUR\lE'/OR
Flood panel No.
Own. F.H.H.
Flood El.....
J 150 Northlide Drille
Suite 101
Key Wut, FI. 33040
(305) 293-0468
folC. (305) 293-o2:H
Flood Zon.:
REVISIONS AND OR ADDIT10NS
J 6 98: HQn ar I ot10n
o Monroe Co\,/n Marathon Q;r ort lease