04/06/1984(1)t
A G R E E M E N T
THIS CONTRACT OF LEASE is made and entered into on the 6th
day of April, 1984, by and between the COUNTY OF MONROE, STATE OF
FLORIDA, a political subdivision of the State of Florida,
hereinafter referred to as Lessor, and PROVINCETOWN BOSTON
AIRLINES, INC., a corporation organized and existing under the
laws of the State of Florida, 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, State
of Florida, hereinafter called the "AIRPORT", and
WHEREAS, Lessee is engaged in the business of air
transportation 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 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 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. Lessee shall be entitled to use, in
common with others authorized to do so, of the Airport and
appurtenances, 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, loading and unloading of Lessee's
aircraft, 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 the Key West International Airport.
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
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passengers, baggage, cargo, property and mail and the
installation, 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 Lessor at a
location selected by Lessor, where it will not interfere with
operations at the Airport, for the use of Lessee and its
employees.
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,
passengers, guests, patrons, its suppliers of materials or
furnishers of service or 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 April 1, 1984, and shall end on the 31st
day of March, 1986, unless sooner terminated as hereinafter
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
following rentals, fees and charges, all payable in monthly
installments covering the ensuing calendar month. In the event
that the commencement of termination of the term with respect to
any of the particular premises, facilities, rights, licenses,
services, and privileges as herein provided falls on any date
other than the first or last day of a calendar month, the
applicable rentals, fees and charges for that months shall be
paid for said month prorata according to the number of days in
that month during which said particular premises, facilities,
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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 during said month as hereinafter provided, and the same
shall be paid by Lessee within fifteen (15) days after receipt of
such statement.
A. RENTAL WITH RESPECT TO SPACE ADJACENT TO 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, 1984, 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. 7650 square feet of airport property for locating
a temporary terminal building at #.386 per square
foot per annum.
2. 10,044 square feet of airport property for
locating and storing aircraft support equipment at
$.386 per square foot per annum.
B. LANDING FEES. From and after commencement of the term
of this Lease, rentals, fees and charges for the use of the
landing area and facilities necessary therefore as granted
hereunder, except those which rentals are specifically provided
elsewhere, shall be combined in and represented by a landing fee
based upon the approved maximum landing weight of the Lessee's
Actual Revenue Trip Arrivals at the Airport each month as
follows:
$.40 per 1,000 pounds of approved maximum gross landing
weight. A minimum landing fee of $5.00 will be charged
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.
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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 enplanement 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;
provided, 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
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
making charges to Lessee for the use of the Airport, its
facilities and services as herein specifically authorized.
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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, 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 fifteen (15) days after notice thereof is given in
writing by the County, or failure to correct any violation shall
continue for fifteen (15) days after notice thereof is given in
writing by the County, or 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 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 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
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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. Lessee shall not perform any cleaning or maintenance of
aircraft except in designated areas under separate lease.
Further, it is specifically agreed that no cleaning or
maintenance of aircraft shall be performed on Airport runways or
ramps. Lessee shall pay for its own electrical power in its
exclusive areas, which power shall be separately metered. The
Lessee shall, at its expense, repair, maintain or replace, as may
be required, all plumbing fixtures, electrical incandescent bulbs
or fluorescent tubes or other lighting devices located in its
exclusive ares 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
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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, 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 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
hereinafter 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 period of
thirty (30) days.
7. The default by Lessee in the performance of any
covenant or agreement herein required 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
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failure of Lessee to remedy such default for a
period of thirty (30) 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
of Lessee shall have remedied 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 sixty
(60) 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 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
hereinafter 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 of 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 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
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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
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.
5. The failure or refusal of the Civil Aeronautics
Board to grant Lessee the right to operate into
and from said Airport and the issuance by the
Civil Aeronautics Board of a final order of
suspension, termination or revocation of Lessee's
authority to provide service at Key West
International Airport, Monroe County, Florida.
Lessee's performance of all or any part of this Agreement
for or during any period or periods after a default of any of the
terms, covenants and conditions herein contained to be performed,
kept and observed by 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
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 conditions herein contained to be performed, kept and
observed by the Lessor.
ARTICLE VII - INDEMNITY
Lessee agrees fully to indemnify, and save and hold
harmless, 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
premises, 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
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such claims or actions and Lessee shall have the right to
investigate, compromise and defend the same.
Lessee agrees to carry, and keep in force, public liability
insurance covering personal injury and property damage, and such
other insurance as may be necessary to protect Lessor herein from
such claims and actions aforesaid, Lessee agrees to carry and
keep in force such insurance within minimum limits of liability
for personal injury in a sum not less than $300,000 for any one
person, and $500,000 for any one accident; and for property
damage in a sum not less than $200,000; and to furnish Lessor
with proper certificate certifying that such insurance is in
force. 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,
facilities, 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,
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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
performance of its obligations hereunder, or in the exercise of
its governmental functions.
ARTICLE XIII - 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
premises herein without written approval of Lessor passed by
resolution of equal solemnity as the passage and execution of
this document; provided, however, that Lessor shall not
unreasonably withhold approval. The prohibitions above stated
include assignment of this Agreement to any corporation with
which Lessee may merge or consolidate or which may succeed all or
any portion of the business of Lessee.
ARTICLE 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
MONROE COUNTY COURTHOUSE
500 Whitehead Street
Key West, Florida 33040
and notice to Lessee, if sent by certified mail, postage prepaid,
addressed to:
Provincetown Boston Airlines, Inc.
3201 Radio Road
Naples, Florida 33942
or to such other respective addresses as the parties may
designate 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.
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ARTICLE XVI - INVALID PROVISIONS
In the event any covenant, condition or provision herein
contained is held to be invalid by any court of competent
jurisdiction, 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.
ARTICLE XVIII - NON-DESCRIMINATION 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 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
property, 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.
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ARTICLE XXI
Lessor 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 XXII
Lessor reserves the right to move Lessee from the premises
being leased under the terms of this Agreement within thirty (30)
days after suitable permanent terminal building space becomes
available for use by Lessee.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed as of the day and year first above written.
COUNTY OF /ONR, STATE F./FLORIDA
By
Mayor Chairman of the Board
of County Commissioners of
Monroe County, Florida
(SEAL)
Attest:
PROVINCETOWN BOSTON AIRLINES, INC.
President
(CORPORATE SEAL)
Attest:
Secretary
AS 70 FORM
Sly
BY
Att HIWS Office
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