10/17/2014 Agreement1 _ _ _t 1 _ I � I 1
MONROE COUNTY, FLORIDA
DATE: December 11, 2014
TO: Peter Horton,
Director of Airports
ATTN: Judy Layne, Senior Coordinator
Airport Grants and Finance
FROM: Lindsey Ballard, D. C.'
At the November 18, 2014, Board of County Commissioner's meeting the Board granted
approval and authorized execution of Items:
Item F5 "U.S. Customs and Border Protection (CBP) Memorandum of Agreement To Reimburse
CBP ", between the Florida Keys Marathon Airport and CBP, to reimburse CBP for costs related to
providing information technology (IT) services at the Florida Keys Marathon Airport CBP User Fee
Airport terminal facility.
Item F6 Jacobs Project Management Co.'s Task Order #12/14 -34, for the detailed design services,
permitting and bidding for the construction of hangars and associated site development of a new 20,400
sq. ft. aircraft hangar and the demolition of existing shade hangars in the Runway Protection Zone, at the
Florida Keys Marathon Airport.
Item F7 Jacobs Project Management Co.'s Task Order #12/14 -36 for the FY 2015 DBE
Implementation Services for the Key West International Airport and the Florida Keys Marathon Airport,
Item F8 Five -year lease agreement with Tesla motors, Inc. for 5 parking spaces and an adjacent
parcel for construction of a Tesla Electric Vehicle charging station.
Item F9 Contract Change Order No.3 to Douglas N. Higgins, Inc., Pavement Rehabilitation of
Faraldo Circle, Key West International Airport.
500 Whitehead Street Suite 101, PO Box 1980, Key West, FL 33040 Phone: 305 -295 -3130 Fax: 305 - 295 -3663
3117 Overseas Highway, Marathon, FL 33050 Phone: 305 - 289 -6027 Fax: 305 - 289 -6025
88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852 -7145 Fax: 305- 852 -7146
Enclosed is a duplicate originals executed on behalf of Monroe County, for your handling. Should you
have any questions, please feel free to contact me.
cc: County Attorney
Finance
File
500 Whitehead Street Suite 101, PO Box 1980, Key West, FL 33040 Phone: 305 - 295 -3130 Fax: 305- 295 -3663
3117 Overseas Highway, Marathon, FL 33050 Phone: 305- 289 -6027 Fax: 305- 289 -6025
88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852 -7145 Fax. 305 - 852 -7146
LEASE AGREEMENT
FLORIDA KEYS MARATHON AIRPORT
TESLA MOTORS, INC.
THIS LEASE AGREEMENT (the "Lease" or "Agreement ") is made and entered into
this 18 day of November, 2014, by and between MONROE COUNTY, a political subdivision
of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040,
hereinafter referred to as "COUNTY" and TESLA MOTORS, Inc., a Delaware Corporation
authorized to do business in the State of Florida, whose address is 3500 Deer Creek Road, Palo
Alto, California, 94304, hereinafter referred to as "LESSEE ".
WHEREAS, the COUNTY owns property known as the Florida Keys Marathon Airport,
located in Marathon, Monroe County, Florida, hereinafter referred to as "Airport"; and
WHEREAS, LESSEE desires to lease parking spaces and an undeveloped parcel of
property on the Airport for construction of a Tesla electric vehicle charging station; and
WHEREAS, the County is willing to lease property on the Airport for such purposes;
now, therefore
IN CONSIDERATION of the premises and of the mutual covenants and agreements
herein contained, and other valuable considerations, COUNTY does hereby grant and lease unto
LESSEE and LESSEE does hereby lease from COUNTY, certain premises, rights and privileges
as follows, to wit:
1. Premises The COUNTY does hereby lease to LESSEE, and LESSEE leases
from the COUNTY, five (5) parking spaces and an adjacent undeveloped parcel of land located
at the Florida Keys Marathon Airport, hereafter the "Premises ", as described in Exhibit "A"
attached hereto and incorporated herein.
LESSEE is authorized to construct a Tesla electric vehicle charging station.
The Tesla electric vehicle charging station is to be built at the sole cost and expense of
LESSEE and shall be used to charge Tesla vehicles only.
LESSEE shall use and occupy the Premises during the term of tenancy for an electric
vehicle charging station and incidental purposes, including generating PV electricity and
operating an energy storage system. All use of the Premises by LESSEE shall comply with
applicable codes, laws, and ordinances.
LESSEE SHALL NOT CHARGE OR REQUIRE THE PAYMENT OF ANY FEE OF
ANY TYPE FOR THE USE OF THE CHARGING STATION.
NO OTHER USE OF THE LEASED PREMISES IS PERMITTED WITHOUT FIRST
OBTAINING WRITTEN APPROVAL FROM THE COUNTY.
Any improvements made by the LESSEE to the Premises automatically become the
property of the County upon the termination of this Lease or any subsequent extensions, unless
terminated due to a default of County.
2. Term. The term of the lease is for five (5) years beginning on the effective date
of this Lease. The lease may be extended, at the COUNTY's discretion, for one (1) additional
five (5) year term (the " Renewal Term ") upon written request from the LESSEE provided no
later than 90 days prior to the termination of the initial term. Upon the termination of this lease,
either under this paragraph or as provided elsewhere in this lease, LESSEE must peacefully
surrender the premises and all structures to the County. In the event of a sale or transfer of the
Premises by County while the Lease is in effect, LESSEE's rights shall be conveyed with the
Premises.
3. Rent The rent for the premises as depicted in Exhibit A (which includes (5) five
parking spaces with a total area of 18' by 45' and an adjacent (approximately) 10' by 20'
undeveloped parcel for the initial year of this lease shall be $500.00 per month, $6,000.00 per
year, plus applicable state sales tax, with the monthly rent due and payable beginning on the first
day of each month. All rental payments are due at the Airport Office, 9400 Overseas Highway,
Suite 200, Marathon, FL 33050.
Following the initial year of the Lease, the annual rental sum will be adjusted each year
by a percent equal to the increase in the CPI for all urban consumers (CPI -U) above that of the
prior calendar year. In the event of a deflationary CPI, no adjustment in the rental rates will be
made.
4. Termination. This Agreement may be terminated at the discretion of the
COUNTY in the following circumstances:
a) LESSEE fail to pay the rent when due;
b) LESSEE fail to obtain the insurance required under this lease or allows the
required insurance coverage to lapse or fall below the minimum required;
C) LESSEE otherwise breaches the terms of this lease.
d) Cancellation is required to accommodate future Airport growth, or
e) Cancellation is required due to F.A.A. requirements.
Unless the COUNTY has accepted in writing a delay in performance of duties, the failure
to perform said duties shall constitute a default/breach under the terms of this agreement. In the
case of the default /breach occurrences described in subparagraphs 4(a), (b), or (c), the County's
Florida Keys Marathon Airport Manager shall first give the LESSEE a written notification
stating the default/breach. The LESSEE shall be notified that he has 10 days to correct the
default/breach. If the nature of the default/breach is such that it cannot be cured in 10 days, the
LESSEE shall inform the COUNTY in writing of the reason why the default/breach cannot be
cured in 10 days and shall provide a written plan showing how the default /breach will be cured
in a timely manner. If the LESSEE has not corrected the default/breach at the end of the 10 days
or if the LESSEE has provided a cure plan, which the LESSEE has failed to timely and diligently
execute, then the COUNTY may cancel the lease in its discretion. In the case of cancellation
occurring as described in subparagraphs 4(d) and (e), COUNTY shall provide LESSEE 90 days'
notice. In the event of cancellation occurring as described in subparagraphs 4(d) and (e) the
COUNTY, at COUNTY expense, shall relocate the LESSEE's charging station to an alternate
site in accordance with Florida Keys Marathon Airport ALP provided that the new Premises
provides for an equivalent footprint for charging stalls and charging equipment, can be supplied
with equivalent utility service, and is similar in terms of ease of access, safety, security, and
proximity to amenities. In all relocation scenarios, the relocation plan shall ensure that the new
charging station is open to the public before the former charging station is decommissioned. If an
alternate site at the airport is not available, the COUNTY will purchase the LESSEE's lease hold
at fair market appraisal value.
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COUNTY may cancel this lease agreement by giving LESSEE sixty (60) days advanced
written notice upon the happening of any of the following events: the appointment of a receiver
of LESSEE assets; the divesting of LESSEE's leasehold estate by other operation of law; the
abandonment by LESSEE of the premises for a period of sixty (60) days. By the end of the sixty
(60) day notice period, LESSEE shall have vacated the premises and the COUNTY may
immediately re -enter and take possession of same. If it is necessary to employ the services of an
attorney in order to enforce the COUNTY's rights under this paragraph, the COUNTY shall be
entitled to reasonable attorney's fees.
5. Termination for Convenience. Either party may terminate this Agreement
without cause upon 180 days written notice during the Renewal Term.
6. Leasehold Improvements and Use. LESSEE shall have the right to occupy the
premises as described in Exhibit "A ".
7. Right of Ingress and Egress LESSEE, its agents, employees, customers,
suppliers, and patrons shall have the right of ingress and egress to and from the Premises, which
shall not be unreasonably restricted by COUNTY.
8. Utilities. LESSEE is responsible for installation, connection and payment of all
utility services such as telecommunications and electrical service for the premises.
9. Assignment. The Premises leased hereunder along with the improvements
thereon and this Lease may not be assigned without the written consent of the COUNTY which
shall not be unreasonably withheld.
10. Maintenance of Premises. During the term of this lease, LESSEE is responsible
for any and all maintenance and repairs whatsoever of the improvements constructed on the
leased premises. All repairs and replacement must be of the same or better quality as the original
work and conform to all applicable building codes. LESSEE shall be responsible for and shall
properly maintain the trade fixtures on the Premises, and upon the termination of this Lease,
shall leave the Premises in at least as good condition as at the time of the commencement of this
lease, normal use and occupancy excepted. Notwithstanding the foregoing, County's normal
responsibility to maintain the common areas of the Property shall also apply to the Premises.
LESSEE may, in its discretion and at its sole cost and expense install security cameras and other
equipment to monitor the Premises from off -site.
11. Rights of County. The COUNTY shall have the absolute right, without
limitation, to repair, reconstruct, alter or add to any structure and facilities at the Airport, or to
construct new 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 act of negligence or
willful misconduct of the COUNTY, its employees or agents.
The COUNTY and its authorized officers, employees, agents, contractors, subcontractors
and other representatives shall have the right to enter upon the leased premises for the following
purposes:
a) to inspect the leased premises at reasonable intervals during regular
business hours (or at any time in case of emergency) to determine whether Lessee has complied
and is complying with the terms and conditions of this agreement with respect thereto;
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b) to perform essential maintenance, repair, relocation, or removal of the
existing facility if owned by the County, structure if owned by the County, perimeter security
fence, underground and overhead wires, pipes, drains, cables and conduits now located on, under
or across the leased premises, and to construct, maintain, repair, relocate, and remove such
facilities in the future as necessary to carry out the Master Plan of development of the Airport;
provided, however, that said work shall in no event materially interfere with the operations of
LESSEE and, provided further, that the entire cost of such work, as a result of the exercise by the
COUNTY of its rights hereunder shall be borne by the COUNTY. In all scenarios envisioned by
this Section 10(b), at least half of LESSEE's parking spaces on the Premises shall be left open to
the public for use, except in case of emergency.
12. Rights Reserved. Rights not specifically granted to LESSEE by this Agreement
are reserved to the COUNTY
13. Indemnification/Hold Harmless. Notwithstanding any minimum insurance
requirements prescribed elsewhere in this Agreement, LESSEE shall defend, indemnify and hold
the COUNTY and the COUNTY's elected and appointed officers and employees harmless from
and against (i) any claims, actions or causes of action, (ii) any litigation, administrative
proceedings, appellate proceedings, or other proceedings relating to any type of injury (including
death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses
(including, without limitation, costs of remediation and costs of additional security measures that
the Federal Aviation Administration, the Transportation Security Administration or any other
governmental agency requires by reason of, or in connection with a violation of any federal law
or regulation, attorneys' fees and costs, court costs, fines and penalties) that may be asserted
against, initiated with respect to, or sustained by, any indemnified party by reason of, or in
connection with, (A) any activity of LESSEE or any of its employees, agents, or contractors on
the Airport during the term of this Agreement, (B) the negligence or willful misconduct of
LESSEE or any of its employees, agents, or contractors, or (C) LESSEE's default in respect of
any of the obligations that it undertakes under the terms of this Agreement, except to the extent
the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the
intentional or sole negligent acts or omissions of the COUNTY or any of its employees, agents,
contractors or invitees (other than LESSEE). Insofar as the claims, actions, causes of action,
litigation, proceedings, costs or expenses relate to events or circumstances that occur during the
term of this Agreement, this section will survive the expiration of the term of this agreement or
any earlier termination of this Agreement.
14. Insurance Requirements Prior to the commencement of work governed by this
Agreement (including the pre- staging of personnel and material), LESSEE shall obtain, at
LEESSE's own expense, insurance as specified.
LESSEE shall provide, to the COUNTY, as satisfactory evidence of the required
insurance, either a Certificate of Insurance or a certified copy of the actual insurance policy.
The COUNTY, at its sole option, has the right to request a certified copy of any or all
insurance policies required by this contract.
Lessee shall notify County of any cancellation, non - renewal, material change, or
reduction in coverage a minimum of thirty (30) days prior to such event occurring.
The acceptance and /or approval of LESSEE's insurance shall not be construed as
relieving LESSEE from any liability or obligation assumed under this contract or imposed by
law.
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The Monroe County Board of County Commissioners, its employees and officials will be
included as "Additional Insured" on all policies, except for Workers' Compensation.
In addition, the County will be named as an Additional Insured on all policies covering
County -owned property.
LESSEE will obtain or possess the following insurance coverage and will provide
Certificates of Insurance to County to verify such coverage.
a. General Liability Coverage shall be maintained throughout the life of the
Agreement and include, as a minimum: Premises Operations, Completed Operations, Blanket
Contractual Liability, Personal Injury Liability and Expanded Definition of Property Damage.
The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL).
If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person,
$300,000 per Occurrence, $50,000 Property Damage.
An Occurrence Form policy is preferred. If coverage is provided on a Claims Made
policy, its provisions should include coverage for claims filed on or after the effective date of
this contract. In addition, the period for which claims may be reported should extend for a
minimum of twelve (12) months following the acceptance of work by the County.
b. Worker's Compensation Prior to the commencement of work governed by this
Agreement, the LESSEE shall obtain Workers' Compensation Insurance with limits sufficient to
respond to the applicable state statutes. In addition, the Lessee shall obtain Employers' Liability
Insurance with limits of not less than: $500,000 Bodily Injury by Accident, $500,000 Bodily
Injury by Disease, policy limits, and $500,000 Bodily Injury by Disease, each employee.
Coverage shall be maintained throughout the entire term of this Agreement and shall be
provided by a company or companies authorized to transact business in the state of Florida.
C. Vehicle Liability Recognizing that the work governed by this Agreement
requires the use of vehicles, the LESSEE, prior to the commencement of work, shall obtain
Vehicle Liability Insurance. Coverage shall be maintained throughout the life of this Agreement
and include, as a minimum, liability coverage for: Owned, Non - Owned, and Hired Vehicles.
The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL). If split limits
are provided, the minimum limits acceptable shall be: $100,000 per Person, $300,000 per
Occurrence, $50,000 Property Damage.
d. Any deviations from these General Insurance Requirements must be requested in
writing on the County prepared form entitled "Request for Waiver of Insurance Requirements"
and be approved by Monroe County Risk Management.
e. Lessee shall carry fire and extended coverage insurance, if obtainable, on all fixed
improvements erected by Lessee on the demised premises to the full insurable value hereof, it
being understood and agreed that for purposes hereof the term "full insurable value" shall be
deemed to be that amount for which a prudent owner in like circumstances would insure similar
property, but in no event an amount in excess of Lessee's original cost of constructing said fixed
improvements.
f. Damage to Improvements In the event that any improvements made by the
LESSEE to the premises are damaged and /or destroyed, LESSEE, at LESSEE's sole expense,
shall rebuild the improvements to their pre -loss state within 6months of the date of the
occurrence of the event that destroyed or damaged the improvement. If the LESSEE fails to
restore the improvements to its pre -loss state or the improvements are damaged beyond repair,
LESSEE, at LESSEE's sole expense, shall be responsible for demolition and restoration of the
leased property to its original condition. If the LESSEE fails to restore the improvements to their
pre -loss state within the allotted 6 month period, the County may, at its sole discretion, terminate
the lease effective upon the 6 month anniversary of the date of occurrence of the event that
destroyed or damaged the improvement. LESSEE will be required to pay the full amount of the
rent throughout this period.
15. Governing Law, Venue, Interpretation This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida applicable to contracts made
and to be performed entirely in the State.
In the event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the COUNTY and LESSEE agree that venue
will lie in the appropriate court or before the appropriate administrative body in Monroe County,
Florida.
The COUNTY and LESSEE agree that, in the event of conflicting interpretations of the
terms or a term of this Agreement by or between any of them the issue shall be submitted to
mediation prior to the institution of any other administrative or legal proceeding.
16. Entire Agreement This writing embodies the entire agreement and
understanding between the parties hereto, and there are no other agreements or understandings,
oral or written, with reference to the subject matter hereof that are not merged herein and
superseded hereby. Any amendment to this Agreement shall be in writing, approved by the
Board of County Commissioners, and signed by both parties before it becomes effective.
17. Severability. If any term, covenant, condition or provision of this Agreement
(or the application thereof to any circumstance or person) shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants,
conditions and provisions of this Agreement, shall not be affected thereby; and each remaining
term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable
to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants,
conditions and provisions of this Agreement would prevent the accomplishment of the original
intent of this Agreement. The COUNTY and LESSEE agree to reform the Agreement to replace
any stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
18. Attorney's Fees and Costs In the event of a conflict or dispute between the
parties, the parties agree to first meet and confer to discuss in good faith a resolution to such
conflict or dispute without the use of attorneys (in -house counsel excepted) in order to quickly
resolve the conflict or dispute and avoid attorney fees. If the parties are unable to amicably
resolve the conflict or dispute on their own, and if a lawsuit or other action of any nature is then
instituted in connection with any controversy arising out of this Lease, then it is agreed that the
successful party shall be entitled to reasonable attorney's fees and costs., court costs,
investigative, and out -of- pocket expenses, as an award against the non - prevailing party, and shall
include attorney's fees, courts costs, investigative, and out -of- pocket expenses in appellate
proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be
in accordance with the Florida Rules of Civil Procedure and usual and customary procedures
required by the circuit court of Monroe County.
19. Binding Effect The terms, covenants, conditions, and provisions of this
Agreement shall bind and inure to the benefit of the COUNTY and LESSEE and their respective
legal representatives, successors, and assigns.
20. Authority Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement have been duly authorized by all necessary County
and corporate action, as required by law.
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21. Adjudication of Disputes or Disagreements COUNTY and LESSEE agree that
all disputes and disagreements shall be attempted to be resolved by meet and confer sessions
between representatives of each of the parties. If no resolution can be agreed upon within 30
days after the first meet and confer session, the issue or issues shall be discussed at a public
meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the
satisfaction of the parties, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
22. Cooperation In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of this
Agreement, COUNTY and LESSEE agree to participate, to the extent required by the other
party, in all proceedings, hearings, processes, meetings, and other activities related to the
substance of this Agreement or provision of the services under this Agreement. COUNTY and
LESSEE specifically agree that no party to this Agreement shall be required to enter into any
arbitration proceedings related to this Agreement.
23. Nondiscrimination. COUNTY and LESSEE agree that there will be no
discrimination against any person, and it is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, this Agreement automatically
terminates without any further action on the part of any party, effective the date of the court
order. LESSEE agrees to comply with all Federal and Florida statutes, and all local ordinances,
as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of
the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race,
color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC
ss. 1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section
504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended
(42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse
Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to nondiscrimination on the
basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act
of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to
confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as
maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10)
Sections 13 -101, et seq., Monroe County Code, relating to discrimination based on race, color,
sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or
expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or
state statutes which may apply to the parties to, or the subject matter of, this Agreement.
24. Covenant of No Interest COUNTY and LESSEE covenant that neither
presently has any interest, and shall not acquire any interest, which would conflict in any manner
or degree with its performance under this Agreement, and that the only interest of each is to
perform and receive benefits as recited in this Agreement.
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25. Code of Ethics COUNTY agrees that officers and employees of the COUNTY
recognize and will be required to comply with the standards of conduct for public officers and
employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to,
solicitation or acceptance of gifts; doing business with one's agency; unauthorized
compensation; misuse of public position, conflicting employment or contractual relationship; and
disclosure or use of certain information.
26. No Solicitation/Payment The COUNTY and LESSEE warrant that, in respect
to itself, it has neither employed nor retained any company or person, other than a bona fide
employee working solely for it, to solicit or secure this Agreement and that it has not paid or
agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working solely for it, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the breach or
violation of the provision, the LESSEE agrees that the COUNTY shall have the right to
terminate this Agreement without liability and, at its discretion, to offset from monies owed, or
otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration.
27. Public Access The COUNTY and LESSEE shall allow and permit reasonable
access to, and inspection of, all documents, papers, letters or other materials in its possession or
under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received
by the COUNTY and LESSEE in conjunction with this Agreement; and the COUNTY shall have
the right to unilaterally cancel this Agreement upon violation of this provision by LESSEE.
28. Non - Waiver of Immunity Notwithstanding the provisions of Sec. 768.28,
Florida Statutes, the participation of the COUNTY and the LESSEE in this Agreement and the
acquisition of any commercial liability insurance coverage, self - insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of immunity to the
extent of liability coverage, nor shall any contract entered into by the COUNTY be required to
contain any provision for waiver.
29. Privileges and Immunities All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of
any public agents or employees of the COUNTY, when performing their respective functions
under this Agreement within the territorial limits of the COUNTY shall apply to the same degree
and extent to the performance of such functions and duties of such officers, agents, volunteers, or
employees outside the territorial limits of the COUNTY.
30. Legal Obligations and Responsibilities Non - Delegation of Constitutional or
Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any
participating entity from any obligation or responsibility imposed upon the entity by law except
to the extent of actual and timely performance thereof by any participating entity, in which case
the performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida
constitution, state statute, and case law.
31. Non - Reliance by Non - Parties No person or entity shall be entitled to rely upon
the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party
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claim or entitlement to or benefit of any service or program contemplated hereunder, and the
COUNTY and the LESSEE agree that neither the COUNTY nor the LESSEE or any agent,
officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate
that any particular individual or group of individuals, entity or entities, have entitlements or
benefits under this Agreement separate and apart, inferior to, or superior to the community in
general or for the purposes contemplated in this Agreement.
32. Attestations LESSEE agrees to execute such documents as the COUNTY may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -
Free Workplace Statement.
33. No Personal Liability No covenant or agreement contained herein shall be
deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe
County in his or her individual capacity, and no member, officer, agent or employee of Monroe
County shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
34. Personal Property. Any personal property of LESSEE, their agents, assigns, or
invitees placed in the premises of the Airport shall be at the sole risk of the LESSEE or owners
thereof, and the COUNTY shall not be liable for any loss or damage.
35. 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.
36. Execution in Counterparts This Agreement may be executed in any number of
counterparts, each of which shall be regarded as an original, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute this Agreement
by signing any such counterpart.
37. Section Headings Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part
of this Agreement and will not be used in the interpretation of any provision of this Agreement.
38. Mutual Review. This agreement has been carefully reviewed by LESSEE and the
COUNTY, therefore this agreement is not to be construed against either party on the basis of
authorship.
39. FAA Requirements. The parties shall comply with FAA Required Lease
Clauses, which are listed in Exhibit `B ", attached hereto and made a part hereof.
40. Payment for Charging Services. COUNTY shall have no right to request or
accept payment from any third -party in conjunction with Tesla charging services.
41. Landlord Covenants. COUNTY shall not take any action that would impair use
of the Premises or the Trade Fixtures. COUNTY shall not knowingly allow another party to
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impair use of the Premises or the Trade Fixtures. COUNTY agrees to notify LESSEE within a
commercially reasonable time if (i) it has knowledge of third - parties impairing or misusing the
Premises or Trade Fixtures, or (ii) it obtains knowledge of a needed repair to the Premises or
Trade Fixtures. COUNTY acknowledges and agrees that LESSEE shall have all rights at law or
in equity against COUNTY if COUNTY causes impairments of the Premises or the Trade
Fixtures. If non -Tesla motorists repeatedly park in the Dedicated Stalls, thereby impairing use of
the Dedicated Stalls, or if motorists repeatedly park in the Enabled Stalls for greater than the
permitted duration, then the parties shall together determine and implement an appropriate and
effective strategy for preventing such impairment.
42. Suns• LESSEE signage at the Premises is represented in Exhibit C. Any
revisions or additions to the signage depicted in Exhibit C shall be subject to COUNTY
approval, which shall not be unreasonably withheld, conditioned or delayed. In addition,
LESSEE shall be permitted to maintain way - finding signage on the Property subject to
COUNTY approval, which shall not be unreasonably withheld, conditioned or delayed. The
signs shall be professionally prepared at LESSEE's expense.
IN WITNESS WHEREOF, the parties have caused this lease to be executed this 18 day of
November, 2014.
WITNESSES:
HEAVILIN, CLERK
Deputy
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
B Y
yor/ airperson
Tesla otors, Inc.
By
Title �
H
Exhibit A
Premises and Property Depiction and Address
Property Address: 9400 Overseas Hwy, Marathon, FL 33050
Florida Keys Marathon Airport
Testa Lease - Exhibit A
Equipment 8 Parking Space Locations
November 18, 2014 - BOCC Meeting
Prepared by Don DeGraw, Airport Manager
0
se t Parking locations -
(5) spaces for parking and
PUBLIC ENTITY CRIME STATEMENT
"A person or affiliate who has been placed on the convicted vendor list following a
conviction for public entity crime may not submit a bid on a contract to provide
any goods or services to a public entity, may not submit a bid on a contract with a
public entity for the construction or repair of a public building or public work, may
not submit bids on leases of real property to public entity, may not be awarded or
perform work as a contractor, supplier, subcontractor, or consultant under a
contract with any public entity, and may not transact business with any public
entity in excess of the threshold amount provided in Section 287.017, for
CATEGORY TWO for a period of 36 months from the date of being placed on the
convicted vendor list."
I have read the above and state that neither -JP l f111bt C
on the convicted vendor list
(Respondent's name) nor any Affiliate hak
within the last 36 months.
(Si
Date: �j�� ?•ol N
STATE OF: Gam frC)90
COUNTY OF: GaetyT& X2
Subscribe and sworn to (or affirmed) before me on ► O 245 2 C7 �}-
(date) by M►CAAagt— :IaN Lor- (name of affiant). &/ She is
personally known to me or has produced Cdr W-wieVs UC f; &E-
(type of identification) as identification.
��( . " cc X0--1 CASSIDY KUSKA
C/1 Commission # 2024971
a =�: Notary Public - California z
z t Santa Clara County D
My Comm. Expires May 17, 2017
12
LOBBYING AND CONFLICT OF INTEREST CLAUSE
SWORN STATEMENT UNDER ORDINANCE NO. 010-1990
MONROE COUNTY, FLORIDA
ETHICS CLAUSE
)4 d rS , ' T '-- . warrants that he /it has not employed, retained
or otherwise had act on his /its behalf any former County officer or employee in violation of
Section 2 of Ordinance No. 10 -1990 or any County officer or employee in violation of
Section 3 of Ordinance No. 10 -1990. For breach or violation of this provision the County
may, in its discretion, terminate this contract without liability and may also, in its discretion,
deduct from the contract or purchase price, or otherwise recover, the full amount of any fee,
commission, percentage, gift, or consideration paid to the kon e County officer or employee.
(signature)
Date: I ZU l y
STATE OF
COUNTY OF
PERSONALLY APPEARED BEFORE ME, the undersigned authority,
who, after first being sworn by me, affixed his/her
signature (name of individual signing) in the space provided above on this day of
pl,
NOTARY PUBLIC
My commission expires:
OMB - MCP FORM #4
13
f%A1 1110na ALL_PURPASE ACKNOWLEDGMENT
CML CODE § 1189
State of California
County of `�� CXJC_�
On \01 11L - before me, Q ._i DN V-1- 1Ca1 N SZ(2 -`4 L
Date Here Insert Name and Title of the Officer
personally appeared 1�� --y �� of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged
to me that he /she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
CASSIDY KUSKA laws of the State of California that the foregoing
Commission # 2024971 Z paragraph is true and correct.
Notary Pulblic - California z
Z
Z Santa Clara County ' WITNESS my hand and official seal.
My Comm. Expires May 17, 2017
Signature:
Place Notary Seal Above OPTIONAL Signature of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner —[]Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
FMAN
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
NatlonalNotary.org • 1- 800 -US NOTARY (1
Item #5907
EXHIBIT B
FAA REQUIRED LEASE CLAUSES
1. This lease shall be subject to review and re- evaluation at the end of each 1
year period, by the airport owner and the rent may be adjusted according to their
action, not to exceed the Consumer Price Index rate during the last 12 month
period, or;
Land less improvements will be appraised every 5 years and the adjusted rental
will be based on normally 10 -12 percent of the appraised value. If disputed, lessor
obtains appraisal at his expense and lessor /lessee equally share expense for review
appraisal that establishes fair market value.
2. The tenant for himself, his personal representatives, successors in interest,
and assigns, as a part of the consideration hereof, does hereby covenant and agree
that (1) no person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities, (2) that in the construction of any
improvements on, over or under such land and the furnishing or services thereon,
no person on the grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination,
(3) that the tenant shall use the premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in
Federally- assisted programs of the Department of Transportation - Effectuation of
Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
That in the event of breach of any of the above nondiscrimination covenants,
Airport Owner shall have the right to terminate the lease and to re -enter and as if
said lease had never been made or issued. The provision shall not be effective
until the procedures of Title 49, Code of Federal Regulations, Part 21 are followed
and completed including exercise or expiration of appeal rights.
3. It shall be a condition of this lease, that the lessor reserves unto itself, its
successors and assigns, for the use and benefit of the public, a right of flight for the
passage of aircraft in the airspace above the surface of the real property hereinafter
described, together with the right to cause in said airspace such noise as may be
inherent in the operation of aircraft, now known or hereafter used, for navigation of
14
or flight in the said airspace, and for use of said airspace for landing on, taking off
from or operating on the airport.
That the Tenant expressly agrees for itself, its successors and assigns, to
restrict the height of structures, objects of natural growth and other obstructions
on the hereinafter described real property to such a height so as to comply with
Federal Aviation Regulations, Part 77.
That the Lessee expressly agrees for itself, its successors and assigns, to
prevent any use of the hereinafter described real property which would interfere
with or adversely affect the operation or maintenance of the airport, or otherwise
constitute an airport hazard.
4. This lease and all provisions hereof are subject to any ordinances rules or
regulation which have been, or may hereafter be adopted by the Airport Owner
pertaining to the Florida Keys Marathon Airport.
5. Notwithstanding anything herein contained that may be, or appear to be, to
the contrary, it is expressly understood and agreed that the rights granted under this
agreement are nonexclusive and the Lessor herein reserves the right to grant
similar privileges to another Lessee or other Lessees on parts of the airport.
15
Exhibit C
Signage
Dedicated Stall Sign Example
16