03/07/1990•
G p A G R E E M E N T
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THIS CONTRACT OF LEASE is made and entered into on the
ac
v day of , 1990, by and between the COUNTY OF MONROE,
CZ:a political subdivision of the State of Florida, hereinafter
referred to as "Lessor", and BAR HARBOR AIRWAYS, INC., d/b/a
CONTINENTAL EXPRESS/EASTERN EXPRESS, a corporation organized and
existing under the laws of the State of Delaware, hereinafter
referred to as "Lessee".
W I T N E S S E T H:
WHEREAS, Lessor owns an airport known as the Key West
International Airport located in Key West, Monroe County, Florida,
hereinafter called the "Airport", and
WHEREAS, Lessee is engaged in the business of air transpor-
tation with respect to persons, property, cargo and mail, and
WHEREAS, Lessee desires to obtain certain rights, services
and privileges in connection with the use of the Airport and its
facilities; and the Lessor is willing to grant and lease the same
to Lessee on a non-exclusive basis except as expressly stated in
this agreement upon the terms and conditions hereinafter stated,
NOW, THEREFORE, for and in consideration of the premises and
of the mutual covenants and agreements herein contained, and other
valuable considerations, Lessor does hereby grant and lease unto
Lessee, and Lessee does hereby hire and take from Lessor, 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 Lessor does hereby lease to the
Lessee for its exclusive use that space as marked as enclosed 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. •Lesse'e shall be entitled to use, in
common with others authorized to do so, the Airport and appurte-
nances, together with all facilities equipment, improvements and
services which have been or may hereafter be provided at or in
connection with the Airport for common use, in the operation of a
transportation system by aircraft for the carriage of persons,
property, cargo, mail and related purposes (hereinafter referred
to as Air Transportation), which use without limiting 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, maintenance, cleaning, 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.
3. the loading and unloading of property, cargo and
mail at said Airport by such motor vehicles or
other means of conveyance as Lessee may require in
the conduct of Air Transportation, with the right
to designate the particular carrier or carriers
who shall regularly transport Lessee's property,
cargo and mail to and from the Airport.
C. SPACE ADJACENT TO TERMINAL BUILDING. Lessee is hereby
granted non-exclusive use, in common with others, of such space
and facilities as may be designated by Lessor in or adjacent to
said Terminal Building consisting of a ground area to permit the
taxiing, servicing, loading and unloading of Lessee's aircraft,
space for reasonable amount of apron equipment, loading gates,
and lighting for loading ramps and for other areas adjacent to
the Terminal Building and used by passengers.
Lessee may use such space and facilities in the Terminal
Building with respect to which it is granted the non-exclusive
use hereunder, subject to reasonable rules and regulations of
Lessor 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 instal-
lation, maintenance and operation of radio and other communica-
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tions equipment and facilities•, and meteorological and navigation
equipment and facilities.
D. PARKING SPACE. Adequate and reasonably convenient
vehicular parking spaces shall be provided by Lessor at a lo-
cation selected by Lessor, where it will not interfere with
operations at the Airport, for the use of Lessee and its employ-
ees,
E. RIGHT OF INGRESS AND EGRESS. The right of ingress to
and egress from, but not the use of, except as provided in this
Lease, the premises and facilities referred to in Sections "A" to
"D" inclusive above, for Lessee, its employees, agents, passen-
gers, guests, patrons, its suppliers of materials or service and
their said property except as herein contained shall be deemed to
limit Lessor's right to impose charges upon ground transportation
services.
ARTICLE II - TERM
This lease and all rights herein granted Lessee shall become
operative and effective upon execution by the Board of County
Commissioners of Monroe County, Florida, and shall end on the
30th day of September, 1991, unless sooner terminated as herein-
after provided.
ARTICLE III - RENTALS AND FEES
Lessee agrees to pay Lessor at such places as Lessor 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 or termination of the term with respect to any of
the particular premises, facilities, rights, licenses, services,
and privileges as herein provided falls on any date other than
the first or last day of a calendar month, the applicable
rentals, fees and charges for that months shall be paid for said
month prorata according to the number of days in that month
during which said particular premises, facilities, rights,
licenses, services and privileges were enjoyed; and Lessor shall,
following the end of each calendar month, transmit to Lessee a
statement of the rentals, fees and charges incurred by Lessee
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during said month as hereinafter provided, and the same shall be
paid by Lessee within thirty (30) days after receipt of such
statement. Any overpayment shall be promptly refunded or
credited by Lessor.
A. RENTAL WITH RESPECT TO SPACE IN THE TERMINAL. Rental of
such space herein leased to Lessee as shown on Exhibit "A"
attached hereto and made a part hereof, shall be at the following
rates payable monthly the first of said payments to be due the
1st
day of
April ,
1990, and one
of said
monthly payments
to
become due
and payable
on the first
day of
each and every
month thereafter during the term of this Lease.
1. 489.75 square feet of exclusive ticket counter
space at $14.72 per square foot per annum.
2. square feet of exclusive office space at
kt412
$10.51 per square foot per annum.
3. 60 square feet of exclusive baggage handling area
at $10.51 per square foot per annum.
4. 196 square feet of non-exclusive baggage make-up
area at $8.41 per square foot per annum.
5. 30 square feet of exclusive parts storage area at
$8.41 per square foot per annum.
6. Shared use of the non-exclusive passenger holdroom
and baggage claim areas with other airlines; rent
to be based on the usual 20%/80% industry formula
for joint -use premises. (20% allocated equal
among all users, 80% allocated pro-rata per
enplanement).
7. Utilities collection fee at $3600 per annum.
8. Trash collection fee at $1800 per annum.
In addition to the first month's rent, the Lessee shall pay
to the Lessor upon execution of this lease one month's rent as
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 here-
under, except those which rentals are specifically provided else-
where, shall be combined in and represented by a landing fee
based upon the approved maximum landing weight of the Lessee's
Actual Revenue Trip Arrivals at the Airport each month as
follows:
$.55 per 1,000 pounds of approved maximum gross landing
weight. A minimum landing fee of $6.88 will be charged
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for all aircraft weighing less than 12,500 lbs. gross
landing weight.
Lessee shall report to the Lessor not later than the loth day of
each month, the Lessee's Actual Revenue Trip Arrivals at the
Airport during the preceding calendar month, which shall include
the number and type of such arrivals. The number of arrivals so
operated, and multiplied by the applicable approved maximum gross
landing weights for each type of aircraft, shall determine the
weight for which the monthly payment shall be made.
The term "approved maximum gross landing weight" for any
aircraft as used herein, shall be the maximum gross landing
weight approved by the Federal Aviation Administration for
landing such aircraft at the Airport herein. (Included in this
report will be the total number of passenger enplanements and
deplanements for that month).
Subject to reasonable rules and regulations adopted by the
Lessor, 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
control of Lessee, except when such delays preclude use of the
apron by other commercial air carriers that are operating to or
from the Airport. Subject to Lessee's rights under Article I
hereof, the Lessor 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 twenty-
four (24) hours prior approval must be obtained from the Lessor
who will determine what apron or ramp areas are available for
this purpose and the Lessor shall have the right to charge
reasonable storage rates as mutually agreed upon between the
Lessee and Lessor.
C. TAXES AND ASSESSMENTS. Lessee shall pay all taxes and
assessments which may be lawfully levied by a duly constituted
taxing body upon Lessee with respect to its operation at the
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Airport. The Lessor 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 Lessor from
charging Lessee the amount set forth herein for the use of the
Airport, its facilities and services as herein specifically
authorized.
D. DEFAULT FOR FAILURE TO PAY RENTALS, FEES AND CHARGES
In the event Lessee fails to pay any rental on the first of each
month and such failure shall continue for 15 days after written
notice from Lessor, such failure shall be a default of this
Lease. Lessor may, at its option, immediately or at any time
thereafter, enter into and upon the premises hereby leased or any
part thereof and in the name of the whole, and repossess the same
of Lessor's former estate, and expel Lessee and those claiming
by, through or under it, and remove its effects, forcibly if
necessary, without being deemed guilty of trespass and without
prejudice to any remedy which otherwise might be used for arrears
of rent or preceding breach of covenant; on the re-entry
aforesaid, this Lease shall terminate. Further, if Lessee fails
to perform any of the other covenants of this Lease and such
default shall continue for ninety (90) days after notice thereof
is given in writing by the County, or failure to correct any
violation shall continue for ninety (90) 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 County as a result of any of said defaults. In the event
Lessor is obligated to participate in any court proceeding in
order to enforce any of its rights under this paragraph or to
collect its rentals, fees and charges, Lessor, if successful in
pursuing such litigation, shall be entitled to an additional
amount in such sum as any District or Circuit Court having
competent jurisdiction shall determine as a reasonable attorney's
[1
fee. Lessor shall keep the Airport free of obstructions,
including the clearing and removal of grass, stones, or other
foreign matter, as reasonably necessary and with reasonable
promptness, from the runway, taxiway and loading area, and
immediately adjacent to such runways, taxiway and loading areas
for the safe, convenient and proper use of the Airport by Lessee,
and shall maintain and operate the Airport in all respects in a
manner at least equal to the highest standards or ratings issued
by the Federal Aviation Administration, for airports of
substantially similar size and character and in accordance with
all rules and regulations of the Federal Aviation Administration
and any other Governmental Agency having jurisdiction thereof,
providing that nothing herein contained shall be deemed to
require Lessor to enlarge the landing area, runway, taxiway or
other appurtenances of the Airport. The Lessee shall pay for its
own garbage service and electrical power in its exclusive areas.
The Lessee shall, at its expense, replace, as may be required,
electrical incandescent bulbs or fluorescent tubes or other
lighting devices located in its exclusive areas within the space
leased hereunder. Lessor, at its cost, shall also provide and
supply adequate lighting for the common departure area, vehicular
parking spaces, loading ramps, adequate field lighting on and for
the Airport, including without limiting the generality hereof,
landing lights and beacons. Lessor shall also provide janitorial
services necessary to keep the common departure area, the public
and passenger space, and vehicular parking spaces and the landing
field of the Airport at all times clean, neat, orderly, sanitary
and presentable. Determination of adequacy, as used throughout
this ARTICLE III, shall be made solely by Lessor but shall be at
least equal to the standards for airports of substantially
similar size and nature.
ARTICLE IV - 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 for Lessee's operation at
the Airport, which are now, or may be hereafter furnished by the
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United States, are discontinued by the United States, Lessor
shall not be required to furnish said facilities.
ARTICLE V - RULES AND REGULATIONS
Lessor shall have the right to and shall adopt and enforce
reasonable rules and regulations, which Lessee agrees to observe
and obey, with respect to use of Airport property; provided that
such rules and regulations shall not impose any additional fee or
be inconsistent with this Agreement nor with the safety and with
rules, regulations and orders of the Federal Aviation
Administration with respect to aircraft operations at the Airport
and with procedures prescribed or approved from time to time by
the Federal Aviation Administration with respect to the operation
of Lessee's aircraft at the Airport.
Lessor shall provide Lessee with a copy of such rules and
regulations from time to time.
ARTICLE VI - CANCELLATION BY LESSOR
The Lessor may cancel this Agreement by giving Lessee
fifteen (15) days advance written notice to be served as herein-
after provided upon or after the happening of any one of the
following events:
1. The filing by Lessee of a voluntary petition in
bankruptcy.
2. The institution of proceedings in bankruptcy
against Lessee and adjudication of Lessee as a
bankrupt pursuant to such proceedings.
3. The taking by a court of jurisdiction of Lessee
and its assets pursuant to proceeding brought
under the provisions of any Federal
re -organization act.
4. The appointment of a receiver of Lessee's assets.
5. The divestiture of Lessee's estate herein by other
operation of law.
6. The abandonment by Lessee of its conduct of air
transportation at the Airport for a consecutive
period of thirty (30) consecutive days.
7. The default by Lessee in the performance of any
covenant or agreement herein regwired to be
performed by Lessee other than failure to pay
rentals, fees and charges when due for which
provision is made in Article III D, and the
failure of Lessee to remedy such default for a
period of fifteen (15) days after receipt from the
Lessor of written notice to remedy the same;
provided, however, that no notice of cancellation,
as above provided, shall be of any force or effect
if Lessee shall have remedied the default or
diligently pursued such course of conduct as is
1.1
intended to result in a remedy of the default
prior to Lessee's notice of cancellation.
8. 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 manner as substantially to
restrict Lessee, for a period of at least thirty
(30) days, from operating thereon for the carrying
of passengers, cargo and property.
No waiver of default by the Lessor of any of the terms,
covenants or conditions hereof to be performed kept and observed
shall be construed to be or act as a waiver of any subsequent
default of any of the terms, covenants and conditions herein
contained to be performed, kept and observed by the Lessee and
shall not be deemed a waiver of any right on the part of the
Lessor to cancel this lease for failure by Lessee to so perform,
keep or observe any of the terms, covenants or conditions of this
Lease.
ARTICLE VII - CANCELLATION BY LESSEE
Lessee may cancel this Agreement any time that Lessee is not
in default in its payments to Lessor hereunder, by giving Lessor
thirty (30) days advance written notice to be served as hereinaf-
ter provided, upon or after the happening of any one of the
following events:
1. 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.
2. 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 or failure to act on part of
Lessee.
3. The default by the Lessor in performance of any
covenant or agreement herein required to be
performed by the Lessor and the failure of Lessor
to remedy such default for a period of forty-five
(45) 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 Lessor shall have
remedied the default prior to receipt of Lessee's
notice of cancellation.
4. The lawful assumption by the United States
Government or any authorized agency thereof of the
operation, control or use of the Airport and
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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.
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 Lessor, shall not be deemed a waiver of any
right on the part of Lessee to cancel this Agreement for failure
by Lessor 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
Lessor 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 Lessor.
ARTICLE VIII - INDEMNITY
Lessee agrees fully to indemnify, and save and hold harm-
less, the Lessor from and against all claims and actions and all
expenses incidental to the investigation and defense thereof;
based upon or arising out of damages or injuries to third persons
or their property, caused by the negligence of Lessee, its agents
or employees, in the use or occupancy of the said leased prem-
ises, runways, ramps or common areas at the Airport by Lessee;
provided, however, that Lessee shall not be liable for any injury
or damage or loss occasioned by the negligence of Lessor, its
agents or employees; and provided, further that Lessor shall give
to Lessee prompt and reasonable notice of any such claims or
actions and Lessee shall have the right to investigate, compro-
mise and defend the same.
Lessee agrees to carry and keep in force such insurance with
a minimum combined limit of liability for bodily injury and
property damage of no less than $10,000,000.00. The Lessor shall
be named an additional insured and will be furnished with a
certificate in evidence of the insurance providing for no less
than thirty (30) days notice in the event of material change
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adverse to Lessor or cancellation. Lessee shall carry its
insurance coverages with insurance companies authorized to do
business in the State of Florida.
ARTICLE IX - QUIET ENJOYMENT
Lessor agrees that, on payment of the rent and performance
of the covenants and agreements on the part of Lessee to be
performed hereunder, Lessee shall peaceably have and enjoy the
leased premises and all rights and privileges of said Airport,
its appurtenances and facilities granted herein.
ARTICLE X - 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 XI - DEFINITIONS OF TERMS
Whenever the term Federal Aviation Administration is used in
this Lease it shall be construed as referring to the Federal
Aviation Administration created by the Federal Government under
the Federal Aviation Act of 1958, or to such other Federal
Government authority as may be the successor thereto or to be
vested with the same or similar authority.
Whenever the terms "person" and "persons" are used in the
Lease, they shall be construed as including individuals, firms,
corporations and other legal entities. When, in this Agreement,
written approval by Lessor is required, such written approval may
be given by the Director of Airports for Lessor.
ARTICLE XII - INSPECTION BY LESSOR
Lessor 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. Any such entry shall be upon advance
notice and in the company of an employee or representative of
Lessee except in the case of an emergency.
ARTICLE XIII - ASSIGNMENT AND SUBLETTING
Lessee shall not at any time assign this Agreement or any
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part thereof, nor sublet all or any portion of the leased prem-
ises herein without written approval of Lessor; provided,
however, that Lessor shall not unreasonably withhold approval and
Lessee may assign or sublease to any corporation under common
control, and may assign this Agreement to any corporation with
which Lessee may merge or consolidate or which may succeed all or
any portion of the business of Lessee.
ARTICLE XIV - NOTICES
Notices to Lessor provided for herein shall be sufficient if
sent by certified mail, postage prepaid, addressed to:
Mayor & Chairman of the
Board of County Commissioners
P.O. Box 1680
Key West, FL 33040
and notice to Lessee, if sent by certified mail, postage prepaid,
addressed to:
Bar Harbor Airways, Inc.
1301 Fannin
Suite 1425
Houston, TX 77002
or to such other respective addresses as the parties may desig-
nate to each other in writing from time to time.
ARTICLE XV - 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 XVI - 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 Lessor or Lessee in its respective rights and obligations
contained in the valid covenants, conditions or provisions of
this Lease.
ARTICLE XVII - 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.
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ARTICLE XVIII - NON-DISCRIMINATION CLAUSE
The Lessee in exercising any of the rights or privileges
herein granted to him shall not 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 Lessor 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 XIX - 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 Lessor 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 Lessor possesses,
except as is specifically provided for herein.
ARTICLE XX
The Lessee agrees to accept the leased property in "as is"
condition and Lessor shall not be obligated to repair, maintain
or renovate same.
ARTICLE XXI
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed as of the day and year first above written.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By: ---
Mayor/Chairman
(SEAL)
Attest:D.ANNy L, KOT,HAGE, Clerk
BAR HARBOR AIRWAYS, INC.
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(SEAL)
Attest:
ZJyW4&6"_
Secretary
APOWM01 At W FWW
AND LEGAL Ff/CtEJY
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