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1. 10/20/1993 to 02/28/1994 10/20/1993 _annp I.. Ito(bagt BRANCH OFFICE 3117 OVERSEAS HIGHWAY MARATHON, FLORI1DA 33050 TEL. (305) 289-6027 CLERK OF THE CIRCUIT COURT MONROE COUNTY 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 292-3550 BRANCH OFFICE 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 MEMORANDIIM TO: Peter Horton, Director Division of Community Services FROM: ~. Isabel C. DeSantis, Deputy Clerk 3~. DATE: November 2, 1993 On October 20, 1993, the Board authorized execution of a Lease Agreement between Monroe County, and Cape Air for space at the Key West International Airport. Attached hereto for return to Cape Air, is a duplicate original of the subject Assignme:nt. Should you have any questions concerning the above, please do not hesitate to contact me. cc: County Attorney County Administrator, wlo document Risk Management, w/o document Finance "-- File LEASE AGREE}1ENT - BETWEEN MONROE COUNTY, FLORIDA (Lessor) and CAPE AIR (Lessee) Key West International Airport THIS LEASE AGREEMENT, made and entered into as of this 20th__ day of T October , 1993, by and between the MONROE (~OUNTY, a political s\lbdivision of the State of Florida, ("CO\lnt~'") and CAPE AIR , a corporation allthorized to do bllsiness in the State of Florida, ("Lessee"), and whose mailing address is c/o Daniel A. Wolf,- President, Barnstable Municipal AirportJ, East Ramp, Hyannis, MA 02601 WIT N E SSE T H: WlIE:REAS, COllnty owns an airport known as the Key West International Airport located in Key West, Monroe COllnty, -7 \0 w ,. 11 Florida" hereinafter called the "Airport", and Q Z . :::0 C _~../ rr, WHE:REAS, Lessee is engaged in the bllsiness of ~tri' trcinspo~- <::: -.. .... '. I tation ~7ith respect to persons, property, cargo and~il, ~d " " .J::: WHEREAS, Lessee desires to obtain certain rigp,ts, s&:I'vio;~s N and pri\rileges in connection with the llse of the Airport a'nd its faciliti.es; and the COllnty is willing to grant and lease the same to LessE~e on a non-exclllsive basis llpon the terms and conditions hereinafter stated, No~r, THEREFORE, for and in consideration of the premises and of the mllt\lal covenants and agreements herein contained, and other valuable considerations, COllnty 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 Key West International Airport located in Key West, 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 'N'ith others authorized to do so, of the Airport and appurtenances, together with all facilities equipment, improve- ments atld 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 adjacent to Lessee's temporary terminal building, upon approval of the Director of Airports. 3. the loading and unloading of property, cargo and mail at said Airport by such motor vehicles or 2 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 f<)r reasonable amount of apron equipment, loading gates, and lighting for loading ramps and for other areas adj acent 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 herE~under, subj ect 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 10- cation selected by County, where it will not interfere with operations at the Airport, for the use of Lessee and its 3 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, gtlests, 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 available the premises or any part thereof to third pclrties on j oint 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. 4 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 opE~rate 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 , and shall end on _ Februarv 28, 1994 , unless sooner terminated as hereinafter 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 pl:-orata 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 5 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 pclyable monthly the first of said payments to be due the 1st day of __ 1993 and one of said monthly payments to beconle due and payable on the first day of each and every month thereafter during the term of this Lease. 1. 460 square feet of ticket counter space, passenger screening and seating at $17.93 per square foot per annum. 2. 187 square feet of office space at $11.78 per square foot per annum. 3 . 280 square feet of covered porch space at ~82 per square foot per annum. Trash collection fee at $1,800 per annum. 4 . In addition to the first month's rent, the Lessee shall pay to the Lessor upon execution of this lease $2,500 as a security deposit. 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 hereunde:r, except those which rentals are specifically provided elsewher~~, shall be combined in and represented by a landing fee based upon the approved maximum landing weight of the Lessee's 6 Actual Revenue Trip Arrivals at the Airport each month as fol- lows: THE FOLLOWING AS ILLUSTRATIVE EXAMPLE ONLY $.63 per 1,000 pounds of approved maximum gross landing weight. A minimum landing fee of $7.88 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 rnol1th, 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 \ll7ill 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 conditions, minor mechanical defects or other delays beyond 7 control of Lessee, except when such delays preclude use of the apron b)r other commercial air carriers that are operating to or from thE~ Airport. Subject to Lessee's rights u11der 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 p!~ior 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 constituted taxing l)ody 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 possession of the premises as a holdover tenant after the County has demanded the return of the premises, the Lessee shall 8 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 t<) 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 Commissioners 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 clctually 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 defaul t of this Lease. County may, at its option, immediately or at any time thereafter, immediately terminate this lease and enter into and upon the premises hereby leased or any part thereof and in the name of the whole, a.nd repossess the same of County's former estate, and expel LE~ssee and those claiming by, through or under it, and remove its effects, forcibly if necessary, without being deemed guilty ()f trespass and without prejudice to any remedy which 9 otherwise might be used for arrears of rent or preceding breach of covenant; on the re-entry aforesaid, this Lease shall terminate. County may apply the security deposit, or a portion thereof, to the delinquent rent payment and require that the security deposit be replenished prior to waiver of its rights to terminate and repossess the premises for any breach of the requirement for timely payment of rent. Further, if Lessee fails to perf()rm any of the other covenants of this Lease and such default shall continue for fifteen (15) days after notice thereof is giVetl 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 forfeited by the Lessee, and in no way shall effect the collection of any other damages which may be due the Courlty as a resul t of any of said defaul ts . In the event County i.s obligated to participate in any court proceeding in order tc> enforce any of its rights under this paragraph or to collect its rentals, fees and charges, County, if successful in pursuing such litigation, shall be entitled to an additional amount i'n such sum as any District or Circuit Court having compe- tent 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 10 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, convenient and proper use of the Airport by Lessee, and shall maintain and operate the Airport in all respects in a manner at least eClual 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- na.nce 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 pri()r 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 d~eparture area, vehicular parking spaces, loading ramps, adequate field lighting on and for the Airport, including without limiting the generality hereof, landing lights and beacons. 11 County shall also provide janitorial services necessary to keep the comnlon departure area, the pub 1 ic and pas senger space, and vehicular parking spaces and the landing field of the Airport at 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 oreIer 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 t4) restore the prernises to their original state, and to qui t anel 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 COUIlty 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 12 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. 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 Courlty, including any reasonable rules and regulations with respect to use of Airport property, as the same may be amended frolll time to time, all additional laws, statutes, ordinances, regulations and rules of the federal, state 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- 13 ment, or civil action, which may be presented or initiated by any agency ()r office of the federal, state, or county governments, based iTl whole or substantial part upon a claim or allegation 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. Further, County is entitled to apply the security deposit to past due rents and require rep lenishment of the security depos it in the event that any rent default shall be waived by Lessor. 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 p'rior 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 14 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: 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 ths tanding the foregoing, in the event that the Lessee has frequently, regularly, or repeti- tively clefaulted 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 subseque"nt breach (es) or default (s), of whatever nature, taken with all previous breaches and defaults, shall be considered 15 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 effe(~tive upon the tenth day following the date of receipt 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 any involuntary proceedings in the U.S. Bankruptcy Courts, and continuation 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 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 stlrrender the premises in the condition required under 16 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 from date of termination, and provided that the Lessee is not in default 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 17 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 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 etlvironnlental 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 18 thirty (30) days advance written notice to be served as hereinaf- ter provided, upon or after the happenitlg 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. 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 Mail. E. The failure or refusal of the Federal Aviation Administration (FAA) to grant Lessee the right to operate into and from said Airport and the issu- ance by the FAA of a final order of suspension, termination or revocation of Lessee's authority to provide service at Key West International Airport, Monroe County, Florida. 19 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 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 20 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 s'hall 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 less tha.n $25, 000, 000.00. The insurance coverage as required shall il1clude 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 a'nd classifications as required for strict compliance with this Article; 21 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, which nc,tice 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 Any 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 22 Aviation Administration created by the Federal Government under the Federal Aviation Act of 1958, or to such other Federal Governnlent authority as may be the successor thereto or to be vested with the same or similar authority. w'henever 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, 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. 23 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 and notice to Lessee, if sent by certified mail, postage prepaid, addressed to: Cape Air c/o Daniel A. Wolf, President Barnstable Municipal Airport East Ramp Hyannis, MA 02601 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 24 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 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. 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 Les see agrees to accept the leased property in "as is" condition and County shall not be obligated to repair, maintain or renovate same. 25 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 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 i.s 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 irl the following manner: 1. Upon the County: by certified mail, return receipt requested sent to (a) the party indicated in ARTICLE XIX on behalf of the County and with a copy to the County Attorney, 310 Fleming Street, Key West, FL 33040. 26 2. Upon Lessee: by personal service or by certified mail, return receipt requested sent to (a) the party indicated in ARTICLE XIX 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 complain.t. c. REGISTERED OFFICE/AGENT - JURISDICTION. Notwithstand- ing the provisions of ARTICLE XIX 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 irl 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. 27 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 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. 28 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. 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 pe1.cformance 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: 29 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 guide- lines have been found in buildings in Florida. Additional from the County public health unit. information regarding radon and radon testing may be obtained 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 may be specifically authorized herein or by written instrument executed by the parties hereto. IN vJITNESS 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 By ~~ f.. fJ"J~ eputy Cle~ (CORPORATE SEAL) Attest: By Title: airiiicapeair COUNTY COMMISSIONERS COUNTY, FLORIDA ~~ a1rman Airlines/Lessee By Title: 30 W..f'. sc'-r TEMPORARY TER}IINAL KEY tmsT rrlTL AIRPORT EXHIBIT A ~ ,f , "-Z- Aero Insurance, Inc. AVIATION INSURANCE APPROVED BY R'SK MANAGEMENT (-);:-17<)-'), . '/ BY 1.-.'..J \ /'. L . j i. I Y' / ({ J .~,., /~~) CERTIFICATE OF INSURANCE **** DATE ' f~< C'. \ J' -\ **** WA rvrR: N/A '1-. J YES , This is to certify to: County of Monroe Key West, Florida 33040 that the following policies have been issued to: Hyannis Air Service d/b/a Cape Air Barnstable Municipal Airport Hyannis, MA 02601 POLICIES AIRCRAFT LIABILITY Policy Number 65SP-5526 of One or More Member Companies of Associated Aviation Underwriters Policy Period: from 9/13/93 to 9/13/94 Coverages Limits of Liability Single Limit Bodily Injury and Property Damage Including Passengers *$25,000,000 ea. occurrence 1980 Cessna 402C 1980 Cessna 402C N83PB N2748Y .Rece!vt!C .Risk 1VIgzn t & Loss <'--:011. trO.t DATE -__..2=ci!:_?:=-!:~_ INITIAL ___.____~__~?_- Aircraft Make & Model FAA Reqistration # AIRPORT LIABILITY Policy Number 65SP-5526 of One or More Member Companies of Associated Aviation Underwriters Policy Period: from 9/13/93 to 9/13/94 Coverages Limits of Liability Premises Liability Single Limit Bodily Injury and Property Damage *$25,000,000 ea. occurrence *Limit of Liability applies only with respect to Florida Operations. Additional Insured: County of Monroe, Key West, Florida ---------------------------------------------------------------- This Certificate does not amend, extend or otherwise alter the terms and conditions of the policies referred to herein. ::~~~~:~~~~~----------------::::~-~~~~:~-------- I ~ - Nashua Municipal Airport, 99 Pine Hill Road, Nashua, NH 03063 (603) 883-0033 1-800-356-7075 FAX (603) 883-1299 ,>), '~ us. CeoarTment Sf Trcnsoortanon :=ederal Avionon ~C~ln'sTrcTion Ajr Carrjer C,eri3ilcate Rt.ct\\fi:D . ,", .' ot)')) ~ "') .\ \t' ) 'j.J '. ~:) ,:.!r .;;..~. ' . - "Q\S \ \.)~\\) i\\R\,\J~ This c2rtliles that Hyannis ,~i( d/b/a/ Ser''/lC2; J (: r Cace i~~;- Bcrnst20.~e f....\unicioal ),i(Jcr-~ Hyannis) MA 02501 has met the recu:rements of the Federal,i\viatlon :~.c: '-:::T .. 952, 2S amenced. and the ruies. r2Quiations, ana stanaaros prescribed thereunder Tor -19 !S3UanCe of this cert!ficate ana :s hereby authorizeo to operate as an air carrier and co~cuct common carriage operations in accordance \vlth sale Act and the rules. regulations, anc stancaras orescnbea thereunder ana the terms. cone:tions. and limitations containe.j in trie approved operations specifications. This certificate is not transferable and, unless sooner surrenoered. suspenaed. or revokea. shall contInue In effect indefinitely, By DI:'eC!iOn of t:-'ts ,'::',ljministrator. Certificate number: HYIA145B " /1 ,-,II .::::1- /t ,: ;' ~ I V \" I) . \ ( 1,l\ (' 'I!. ~ (' ,'.I !, f i l, . i ----- ').. V . v ~ v., /'-' ,,",,-~ ~ i,L- Kent D. Stephens:/'" ; (Signature) .~ ~lanager (Title) Effective date: June 16,1988 I ssued at: NEO 1 ~ew England, NE-FSDO-Ol (Region / Office) Reissued: September 15,1989 FAA Form 8430-18 (6-87)