Item C10
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 19, 2009
Bulk Item: Yes XX No
Division: Airports
Staff Contact Person: Peter Horton/Pedro Mercado
AGENDA ITEM WORDING: Approval of a Lease Amendment to the Airport Gift Shop lease with
Ms. Gina Borrego and Last Chance Gifts, LLC at the Key West International Airport.
ITEM BACKGROUND: The County originally entered into an airport Gift Shop lease agreement
with Diane Heberle on November 10, 1993 for a period of 7 years. The lease was extended by way of a
lease extension agreement dated April 19, 2000 for an additional 16 years. Ms. Heberle sold the
business to Ms. Gina Borrego and transferred all rights, title and interest to the leasehold to Ms.
Borrego by way of a Consent To Assignment Of Lease which was approved on October 17,2007. Ms.
Borrego is now requesting an opportunity to lease additional retail space which has become available
as a result of the recent airport terminal expansion and renovation project.
PREVIOUS RELEVANT BOCC ACTION:
Approved the original lease at the November 1993 board meeting, approved the lease extension at the
April 2000 board meeting and approved the consent to assignment oflease at the October 2007 board
meeting.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: N/A
BUDGETED: Yes No
COST TO COUNTY: N/A
SOURCE OF FUNDS: N/ A
REVENUE PRODUCING: Yes XX No AMOUNT PER MONTH $40.93 per SQuare ft
plus %5 of e:ross revenue for the leasehold in the airport passene:er ticketine: area and $33.40 per
SQuare foot plus %5 of e:ross revenue or an annual minimum e:uarantee of $20.000. whichever is
e:reater. for the leasehold in the oassene:er departure e:ate area.
APPROVED BY:
County Atty _ OMB/Purchasing _ Risk Management _
l?f.AI~\Ilo. rpt,N~1"9 P8.4ldlAr9
DOCUMENTATION:
Included
Not Required_
DISPOSITION:
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Contract with: Last Chance Gifts, LLC
CONTRACT SUMMARY
Contract #
Effective Date: Execution
Expiration Date: 9/30/16
Contract Purpose/Description: Amendment to lease agreement
Contract Manager: Peter Horton
(name)
for BOCC meeting on: 8/19/09
# 5200
(Ext. )
Airports - Stop # 5
(Department! Stop)
Agenda Deadline: 8/4/09
CONTRACT COSTS
Current Year Portion: n/a
Account Codes: n/a
Total Dollar Value of Contract: revenue producing
Budgeted? n/a
Grant: No
County Match: No
Estimated Ongoing Costs: n/a
(not included in dollar value above)
ADDITIONAL COSTS
For: .
(eg. maintenance, utilities, janitorial, salaries, etc.)
Date In
Airports Director E.J.3.--,Oi
Risk Management ~~_
O.M.BJPurchasing ~~_
County Attorney ~ ~_
Comments:
CONTRACT REVIEW
Changes
Needed Reviewer Date Out
Yes No ~ff
( )-1<") <r '~/01
Peter HortOpt
( ) ( ) ~_/-
eN ch~
( ) ( ) for Risk Man~ement ~~-
e.v~
for OMB
( ) ( ) ~I.A, 9 _/~-
County Attorney
AMENDE NT TO LEASE AGREEMENT
Last Chance Gifts, LLC.
THIS AMENDMENT (hereafter Amendment) is made and entered into this 19th day of
August, 2009 by and between Monroe County, a political subdivision of the State of Florida, whose
address is Gato Building, I 100 Simonton Street, Key West, FL 33040 (hereinafter "County",
"Lessor" or "Owner"), and Last Chance Gifts, LLC., a Florida limited liability company, whose
address is 74 Bay Drive, Key West, Fl. 33040 (hereinafter "Tenant" or "Lessee").
WHEREAS, on the loth day of November 1993, the County entered in to a lease
(hereinafter Original Lease) with the Lessee's predecessor in interest. A copy of the original lease is
attached as Exhibit A and made a part of this amendment; and
WHEREAS, on the 19th day of April, 2000, the County entered in to a Lease Extension
Agreement with the Lessee's predecessor in interest extending the term of the original lease for an
additional 16 years. A copy of the Lease Extension Agreement is attached as Exhibit B and made a
part of this amendment, and
WHEREAS, on the 17th day of October 2007, Lessee's predecessor in interest transferred
all rights, title, interest and obligations to the leasehold by means of a Consent To Assignment Of
Lease to Lessee. A copy of the Consent To Assignment of Lease is attached as Exhibit C and made
a part of this amendment, and
WHEREAS, Key West International Airport has been renovated and expanded and now
contains additional retail space, and
WHEREAS, Last Chance Gifts, LLC. currently leases retail space in the airport passenger
check-in/ticketing area and has requested an opportunity to lease additional retail space in order to
provide a gift shop in the departure gate area, and
WHEREAS, the parties have come to an agreement as to the terms for leasing the
additional retail space, now, therefore,
IN CONSIDERATION of the premises and of the mutual covenants and agreements herein
contained, and other valuable considerations, the parties agree as follows:
SECTION 1. Article I - Premises, subparagraph B. Leasehold of the original agreement is
amended to read as follows:
B.
LEASEHOLD.
Lessee does hereby Lease, for its exclusive use the following
described leasehold property's:
1. A 741 square foot retail space located in the passenger check-in/ticketing area
within the new passenger terminal building at Key West International Airport as
shown in exhibit 0-1 attached hereto and made a part hereof.
2. A 390 square foot retail space located in the passenger departure gate area within
the renovated pre-existing passenger terminal building at Key West International
Airport as shown in exhibit 0-2 attached hereto and made a part hereof
SECTION 2. ARTICLE II - TERM of the original agreement is amended to read as follows:
This lease and all rights herein granted Lessee shall become operative and effective
on October I, 1993. All rights herein granted for the use and operation of both gift
shop leaseholds shown in exhibits 0-1 and 0-2 shall terminate on September 30,
2016 unless sooner terminated as hereinafter provided.
SECTION 3. Article III - RENTALS AND FEES, subparagraph A.I ofthe original agreement is
amended to read as follows:
I. Rent for 741 square feet at the check-in/ticketing area within the new passenger
terminal building, as shown in exhibit 0-1, to be used as a gift shop shall be $40.93
per square foot per annum plus tax, including electricity.
Rent for 390 square feet at the passenger departure gate area within the renovated
pre-existing passenger terminal building, as shown in exhibit 0-2, to be used as a gift
shop shall be $33.40 per square foot per annum plus tax, including electricity.
Rental rates are subject to revision each year in accordance with the airport standard
rates and charges.
SECTION 4. Article III - RENTALS AND FEES, subparagraph A.2 of the original agreement is
amended to read as follows:
2. The Lessee agrees to pay:
i. 5% of the annual gross revenues (gross revenue payment) generated by
Lessee's gift shop operations at the check-in/ticketing area within the new passenger
terminal building, as shown in exhibit 0-1, and
ii. 5% of the annual gross revenues (gross revenue payment) or an annual
guaranteed minimum of $20,000 (guaranteed minimum payment), whichever is
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greater, for Lessee's operations at the passenger departure gate area within the
renovated pre-existing passenger terminal building, as shown in exhibit D-2.
Annual gross revenues are determined on a calendar year basis. A calendar
year shall run from January I st through December 31 st inclusive. Payment of charges
under this subparagraph may be made annually or in monthly installments. If
payments are made in monthly installments, Lessee shall remit, at a minimum:
iii. 1/12 of the guaranteed minimum payment ($1,666.66) for Lessee's
operations at the passenger departure gate area within the renovated pre-existing
passenger terminal building, as shown in exhibit D-2 on an arrears basis, and
iv. 1/12 of the estimated gross revenue payment generated by Lessee's gift
shop operations at the check-in/ticketing area within the new passenger terminal
building, as shown in exhibit D-l. (The estimated gross revenue payment shall be
based on the gross revenue generated the prior year.)
Payment shall be made no later than the 5th day of the month payment is due, i.e.
January payment by February 5, February by March 5, etc.
At the end of the calendar year if the payments made by Lessee for Lessee's
operations at the passenger departure gate area within the renovated pre-existing
passenger terminal building, as shown in exhibit D-2 do not equal $20,000 or 5% of
gross revenues, whichever is greater, Lessee shall remit the difference by February
28 of the year subsequent to the calendar year for which the charge is due.
Additionally, at the end of the calendar year if the payments made by Lessee for
Lessee's operations at the passenger departure gate area within the renovated pre-
existing passenger terminal building, as shown in exhibit D-2 do not equal 5% of
gross revenues, Lessee shall remit the difference by February 28 of the year
subsequent to the calendar year for which the charge is due. For purposes of
verifying the appropriate amount of payment, Lessee shall provide a statement of
account which shows the gross revenue generated at Lessee's operations at the
passenger departure gate area within the renovated pre-existing passenger terminal
building, as shown in exhibit D-2 and the gross revenue generated at Lessee's gift
shop operations at the check-in/ticketing area within the new passenger terminal
building, as shown in exhibit D-l by January 31 of the year subsequent to the
calendar year for which the charge is due. If payment of charges under this
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subparagraph is made once a year then it shall be made no later than February 28 of
the year subsequent to the calendar year for which the charge is due.
SECTION 5. Article XIV - INDEMNITY of the original agreement is amended to read as follows:
Notwithstanding any minimum insurance requirements prescribed elsewhere
in this lease 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, attorney's 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, contractors or other
invitees on the Airport during the term of this lease, (B) the negligence or willful
misconduct of Lessee or any of its employees, agents, contractors or other invitees,
or (C) Lessee's default in respect of any of the obligations that it undertakes under
the terms of this lease, 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 lease, this Article will survive the expiration of the term of
this lease or any earlier termination of this lease.
SECTION 6. Article XXI - INSPECTION BY LESSOR of the original agreement is amended to
read as follows:
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:
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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;
b) to perform essential maintenance, repair, relocation, or
removal of existing underground and overhead wires, pipes, drains, cables and
conduits now located on 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 unduly interfere with the operations of Lessee and, provided further, that
the entire cost of such work, including but not limited to the cost of rebuilding,
removing, relocating, protecting or otherwise modifying any fixed improvements at
any time erected or installed in or upon the leased premises by Lessee, the County or
third parties, as a result of the exercise by the County of its rights hereunder, and all
damage to such fixed improvements caused thereby, shall be borne by the County.
SECTION 7. Article XXVII - NON-DICSRIMINATION CLAUSE of the original agreement is
amended to read as follows:
Lessee and Lessor 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 Lessee has discriminated against any person, this lease
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: I) 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. 610 1-6107) 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
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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 patent 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 may be amended from time to
time, relating to nondiscrimination based of disability; 10) Sees. 13-101, et seq.,
Monroe County Code, relating to discrimination based on race, color, sex, religion,
disability, national origin, ancestry, sexual orientation, gender identify 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.
SECTION 8. The following Articles are appended to the Lease Amendment and incorporated into
the original agreement as Article XXIX through Article XXXXVII.
ARTICLE XXIX - LEASEHOLD IMPROVEMENTS AND USE.
Lessee has the right during the tenn hereof, at its own expense, at any time
from time to time, to install, maintain, operate, repair and replace any and all trade
fixtures and other Airport personal property useful from time to time in connection
with its operation on the Airport, all of which shall be and remain the property of
Lessee and may be removed by Lessee prior to or within a reasonable time after
expiration of the tenn of this agreement; provided, however, that Lessee shall repair
any damage to the premises caused by such removal. The failure to remove trade
fixtures or other personal property shall not constitute Lessee a hold over, but all
such property not removed within ten (l0) days after Lessee receives a written
demand for such removal shall be deemed abandoned and thereupon shall become
the sole property of the Airport.
Lessee shall cause to be removed any and al1 liens of any nature arising out of or
because of any construction perfonned by Lessee or any of its contractors or
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subcontractors on the leased premises or because of the performance of any work or
labor upon or the furnishing of any materials for use at said premises, by or at the
direction of Lessee.
ARTICLE XXX - BOOKS. RECORDS AND DOCUMENTS.
Lessee shall maintain all books, records, and documents directly pertinent to
performance under this agreement in accordance with generally accepted accounting
principles consistently applied. Each party to this agreement or their authorized
representatives shall have reasonable and timely access to such records of each other
party for public records purposes during the term of the agreement and for four (4)
years following the termination of this agreement. The County, acting through its
Finance Director or other authorized representative, shall have the right to inspect
and audit Lessee's books of accounts and other records directly generated at the Key
West International Airport facility or otherwise pertaining to this agreement.
Knowingly furnishing the County a false statement of its Annual Gross Revenues
under the provision of this agreement will constitute a default by Lessee of this
agreement and the County may, at its option, declare this lease terminated. Lessee
retains the right to have its auditor or a representative assigned by its auditor present
during any inspection or audit by the County. Ten (10) business days notice must be
given of intent to audit by the County to allow Lessee's auditor sufficient time to
schedule said presence.
ARTICLE XXXI - 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
7
submitted to mediation prior to the institution of any other administrative or legal
proceeding.
AR nCLE XXXIl- ATTORNEY'S FEES AND COSTS.
The County and Lessee agree that in the event any cause of action or
administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this agreement, the prevailing party shall be entitled
to reasonable attorney's fees, court costs, investigative and out-of-pocket expenses,
as an award against the non-prevailing party, and shall include attorney's fees, court
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.
ARTICLE XXXIII - ADJUDICA nON OF DISPUTES OR DISAGREEMENTS.
Lessee and Lessor 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 thirty (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 by Florida law.
ARTICLE XXXIV - 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. A party
who requests the other's party's participation in accordance with the terms of this
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section shall pay all reasonable expenses incurred by the other party by reason of
such participation.
ARTICLE XXXV - COVENANT OF NO INTEREST.
The 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 the only interest of each is to perform and
receive benefits as recited in this agreement.
ARTICLE XXXVI - CODE OF ETHICS.
The 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.
AR TICLE XXXVII - 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.
ARTICLE XXXVIII - NON- WAIVER OF IMMUNITY.
Notwithstanding the provisions of Sec. 786.28, Florida Statues, 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 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.
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ARTICLE XXXIX - 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.
ARTICLE XXXX - 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.
ARTICLE XXXXI - 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 claim or entitlement
to or benefit of any service or program contemplated hereunder, and the County and
Lessee agree that neither the County nor 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.
ARTICLE XXXXII - ATTESTATIONS.
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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.
ARTICLE xxxxm - 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.
ARTICLE XXXXIV - 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.
ARTICLE XXXXV - AIRPORT SECURITY.
a. General. The Federal Transportation Security Administration is the federal
agency primarily responsible for overseeing the security measures utilized by the
airport owner pursuant to the relevant provisions of Chapter 49, United States Code,
and regulations adopted under the authority of the Code, including but not limited to
49 CFR 1540, et seq. Violations of the statutes or regulations may result in severe
civil monetary penalties being assessed against the airport operator. It is the intent of
the airport operator that the burdens and consequences of any security violations
imposed upon the airport operator as a result of actions by an airport tenant or the
airport tenant's employees, agents, invitees, or licensees shall be borne by the airport
tenant.
b. Airport Tenant Defined. An airport tenant means any person, entity,
organization, partnership, corporation, or other legal association that has an
agreement with the airport operator to conduct business on airport property. The term
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also includes an airport tenant as defined in 49 CFR 1540.5. Each signatory to this
agreement, other than the airport operator, is an airport tenant.
c. Airport Operator Defined. As used in this agreement, airport operator means
Monroe County, Florida, its elected and appointed officers, and its employees.
d. Airport Property Defined. Airport property shall mean the property owned or
leased by, or being lawfully used by, the airport operator for civil aviation and
airport-related purposes. For purposes of this agreement, airport property is the
property generally referred to as the Key West International Airport, the Florida
Keys Marathon Airport, or both as may be set forth in this agreement.
e. Inspection Authority. The airport tenant agrees to allow Transportation Security
Administration (TSA) authorized personnel, at any time or any place, to make
inspections or tests, including copying records, to determine compliance of the
airport operator or airport tenant with the applicable security requirements of Chapter
49, United States Code, and 49 CFR 1540, et seq.
f. Airport Security Program. The airport tenant agrees to become familiar, to the
extent permitted by the airport operator, with the Airport Security Program
promulgated by the airport operator and approved by TSA, and also agrees to
conform its' operations and business activities to the requirements of the Airport
Security Program.
g. Tenant Security Program. If permitted under TSA regulations, the airport tenant
may voluntarily undertake to maintain an Airport Tenant Security Program as
referred to in 49 CFR 1542.113. If the airport tenant voluntarily promulgates an
Airport Tenant Security Program that is approved by TSA, such program, as may be
amended and approved from time to time, shall be automatically incorporated into
this agreement.
h. Breach of Agreement. Should TSA determine that the airport tenant or one or
more ofthe airport tenant's employees, agents, invitees, or licensees has committed
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an act or omitted to act as required, and such act or omission is a violation which
results in TSA imposing a civil penalty against the airport operator in accordance
with TSA's Enforcement Sanction Guidance Policy, such determination and
imposition of a civil penalty by TSA shall be considered a significant breach of this
agreement.
(1) Minimum Violation. If the violation is the first or second violation attributed to
the airport tenant and is a civil penalty "minimum violation" as provided for in
TSA's Enforcement Sanction Guidance Policy, the airport tenant may cure the
breach by paying to the airport operator the total costs incurred by the airport
operator, including any fines or penalties imposed, in investigating, defending,
mitigating, compromising, or taking of remedial measures as may be agreed to by
TSA, to include but not be limited to reasonable attorney's fees and costs incurred in
the investigation, defense, compromising, mitigation, or taking of remedial action
measures. If the violation is a third violation, or there are multiple violations in
excess of two violations, that is or are a civil penalty "minimum violation," the
airport tenant shall pay to the airport operator the total costs incurred by the airport
operator, including any fines or penalties imposed, in investigating, defending,
compromising, mitigating, or taking of remedial measures as may be agreed to by
TSA, to include but not be limited to reasonable attorney's fees and costs incurred in
the investigation, defense, compromising, mitigation, or taking of remedial action
measures; and, further, the airport operator shall have the right to unilaterally cancel
this agreement, such cancellation to be effective thirty (30) calendar days after
receipt by the airport tenant of written notice of cancellation of this agreement by the
airport operator.
(2) Moderate Violation. If the violation is the first or second violation attributed to
the airport tenant and is a civil penalty "moderate violation" as provided for in
TSA's Enforcement Sanction Guidance Policy, the airport tenant may cure the
breach by paying to the airport operator the total costs incurred by the airport
operator, including any fines or penalties imposed, in investigating, defending,
compromising, mitigating, or taking of remedial measures as may be agreed to by
TSA, to include but not be limited to reasonable attorney's fees and costs incurred in
13
the investigation, defense, compromising, mitigation, or taking of remedial action
measures; and, further, the airport tenant may cause all of airport tenant's employees
involved in the airport tenant's business operations on the airport property to
undergo such security training as may be required by the airport operator. The total
cost of the training shall be paid for by the airport tenant. If the violation is a third
violation, or there are multiple violations in excess oftwo violations, that is or are a
civil penalty "moderate violation," the airport tenant shall pay to the airport operator
the total costs incurred by the airport operator, including any fines or penalties
imposed, in investigating, defending, compromising, mitigating, or taking of
remedial measures as may be agreed to by TSA, to include but not be limited to
reasonable attorney's fees and costs incurred in the investigation, defense,
compromising, mitigation, or taking of remedial action measures; and, further, the
airport operator shall have the right to unilaterally cancel this agreement, such
cancellation to be effective thirty (30) calendar days after receipt by the airport
tenant of written notice of cancellation of this agreement by the airport operator.
(3) Maximum Violation. If the violation is the first violation attributed to the
airport tenant and is a civil penalty "maximum violation" as provided for in TSA's
Enforcement Sanction Guidance Policy, the airport tenant may cure the breach by
paying to the airport operator the total costs incurred by the airport operator,
including any fines and penalties imposed, in investigating, defending,
compromising, mitigating, or taking of remedial measures as may be agreed to by
TSA, to include but not be limited to reasonable attorney's fees and costs incurred in
the investigation, defense, compromising, mitigation, or taking of remedial action
measures; and, further, the airport tenant may cause all of airport tenant's employees
involved in the airport tenant's business operations on the airport property to
undergo such security training as may be required by the airport operator. The total
cost ofthe training shall be paid for by the airport tenant. If the violation is a second
violation, or there are multiple violations, that is or are a civil penalty "maximum
violation," the airport tenant shall pay to the airport operator the total costs incurred
by the airport operator, including any fines or penalties imposed, in investigating,
defending, compromising, mitigating, or taking of remedial measures as may be
agreed to by TSA, to include but not be limited to reasonable attorney's fees and
14
costs incurred in the investigation, defense, compromising, mitigation, or taking of
remedial action measures; and, further, the airport operator shall have the right to
unilaterally cancel this agreement, such cancellation to be effective thirty (30)
calendar days after receipt by the airport tenant of written notice of cancellation of
this agreement by the airport operator.
(4) Mitigation of Breach. TSA has a policy of forgoing civil penalty actions when
the airport operator detects violations, promptly discloses the violations to TSA, and
takes prompt corrective action to ensure that the same or similar violations do not
recur. This policy is known as the TSA Voluntary Disclosure Program Policy, and is
designed to encourage compliance with TSA regulations, foster secure practices, and
encourage the development of internal evaluation programs. The airport tenant
agrees that upon detecting a violation the airport tenant will immediately report it to
the airport operator. Should the TSA ultimately determine that the violation was
committed by the airport tenant, or an employee, agent, invitee, or licensee of the
airport tenant, but the violation should result in the issuance of a letter of correction
in lieu of a civil penalty, then the airport tenant shall reimburse the airport operator
the total costs incurred by the airport operator in investigating, defending, mitigating,
or taking of remedial measures as may be agreed to by TSA, to include but not be
limited to reasonable attorney's fees and costs incurred in the investigation, defense,
mitigation, or taking of remedial action measures. A violation resulting in the
issuance of a letter of correction shall not be considered to be a breach of this
agreement by the airport tenant.
(5) Survival of Subsection. This subsection shall survive the cancellation or
termination of this agreement, and shall be in full force and effect.
ARTICLE XXXXVI - Rights Reserved.
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 other parts of the airport. Rights not
specifically granted to Lessee by this Agreement are reserved to the County.
15
authorship.
SECTION 9. All other provisions ofthe November 10, 1993 original Lease, April 19, 2000 Lease
Extension Agreement and October 17, 2007 Consent to Assignment of Lease not inconsistent
herewith, shall remain in full force and effect.
IN WITNESS WHEREOF each party hereto has caused this agreement to be executed in
duplicate by its duly authorized representative.
(SEAL)
A TTEST: DANNY L. KOLHAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
By
Deputy Clerk
Mayor/Chairperson
Date
(CORPORA TE SEAL)
ATTEST:
LAST CHANCE GIFTS, LLC., a
Florida Limited Liability Company
By ru~~,~~mber
Date~\ot
16
EXHIBIT A
AIRPORT AGREEMENT FILED fOR '/FC(JfYl
THIS CONTRACT OF LEASE is made an~4 e~~dPl~ on the
lo+-h day O~OIft.~ ' 1993, by and between the BOARD
mr-tD'ONTY CO ION F MONROE COUNTY ~',~m;OR.IPA, apolitical
subdivision of the State of Florida, het;,~n.'i~It,~i<referred to as
Lessor, and DIANE M. HEBERLE d/b/a THEf.J'1l'RPOWl'I:GI~'r SHOP, a
partnership organized and existing under the laws of the State of
Florida, hereinafter referred to as Lessee.
WIT N E SSE T H:
WHEREAS, Lessor owns an airport known as Key West Interna-
tional Airport located in Monroe County, State of Florida,
hereinafter called the "AIRPORT", and
WHEREAS, Lessee is engaged in the business of maintaining a
Gift and Sundry Shop, 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 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. USE OF THE AIRPORT. Lessee shall be entitled to the
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 Gift and Sundry Shop and has the right to
maintain a Gift and Sundry Shop within the leasehold described
hereafter in PART B which shall include:
1. The retail sale of gift and sundry items normally
associated with an airport gift shop;
2. The retail sale of books, magazines, newspapers,
products, tobacco products and personal grooming products, and
3. Provide such services normally furnished by a Gift
and Sundry Shop and as are compatible with other activities of
the Airport.
B. LEASEHOLD. Lessee does hereby Lease, for its exclusive
use the following described property:
A 303 square foot gift shop located within the
passenger terminal building at Key West Inter-
national Airport as designated in Exhibit A
attached hereto and made a part hereof.
The Lessee shall promptly execute and comply with all
statutes, ordinances, rule, orders, regulations and requirements
of the Federal, State and/or County or City governments, any and
all of their Departments and Bureaus, which are applicable to
said premises.
C. RIGHT OF INGRESS AND EGRESS. The right of ingress to
and egress trom, but not the use ot, except as provided in this
Lease, the premises and facilities referred to in Sections "A"
and liB" inclusive above, for Lessee, its employees, agents,
patrons, its suppliers of materials or furnishers of services,
its equipment, vehicles, machinery or other property, without
charge to Lessee, its employees, agents, patrons, suppliers of
materials or furnishers of services or their said property except
as herein otherwise provided; and provided further that nothing
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 on October I, 1993, and terminate on
September 30, 2000, unless sooner terminated as hereinafter
provided. The Lessee shall have the option to renew the Lease
subject to approval of Lessor and provided that written evidence
of such renewal is given to the Lessor in writing ninety (90)
days prior to the end of the term provided herein, said notice to
be given in accordance with Article XXII. This agreement,
further, ratifies the continuation of the terms of the lease
entered October 9, 1991, for the period of October I, 1992
through September 30, 1993.
ARTICLE III - RENTALS AND FEES
A. 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, unless otherwise
provided in this agreement. 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 month shall be paid for said month pro rata according to
the number of days in that month during which said particular
premises, facilities, rights, licenses, services and privileges
were enjoyed; and the Lessee agrees to pay on or before the 15th
2
day of each month following the last day of each calendar month
throughout the leasehold term:
1. Rent for 303 square feet at the terminal building
to be used as .a gift shop at the rate of $17.93 per square foot
per annum plus 71 state sales tax, including electricity. Rental
rates are subject to revision each year in accordance with the
airport standard rates and charges.
2. 51 of annual gross revenues in excess of $25,000.00
resulting from the conducting of a Gift and Sundry Shop business
at Key West International Airport. Payment of charges under this
subparagraph may be made annually or in installments. Annual
gross revenues are determined on a calendar year basis with the
first payment, if made annually, under this lease agreement being
due on the excess of gross revenue over $25,000 for the period of
January 1, 1993, through December 31, 1993. If payment of
charges under this subparagraph is made once a year then it shall
be made no later than February 28 of the year subsequent to the
calendar year for which charges are due under this subparagraph.
If payments are made in installments, then the final installment
for any calendar year shall be paid no later than February 28 of
the following year.
B. The Lessee hereby agrees to maintain Financial Records
utilizing normally accepted accounting procedures. The Lessee
further agrees that the aforementioned records will be made
available to the Lessor, it it so desires, for formal audit at
most once each six (6) months. Furthermore, the Lessor has the
right to inspect said records during normal business hours at any
time.
C. The Lessee shall charge prices comparable to those
charged by other similar businesses in the community.
D. TAXES AND ASSESSMENTS. Lessee shall pay all taxes and
assessments which may be lawfully levied by the 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 facil-
ities and services as herein specifically authorized.
E. Lessee shall pay for all water and gas used by Lessee
on said premises, and any license fees, and State, County and
City taxes including the sales rental tax.
F. DEFAULT FOR FAILURE TO PAY RENTALS, FEES AND CHARGES.
1. The prompt payment of the rent for said premises
upon the terms named, and the faithful observance of the rules,
regulations and directives which are by reference made a part
3
hereof, and of such other and further rules, regulations and/or
directives as may be hereafter made by the Lessor are the con-
ditions upon which the Lease is made and accepted, and any
failure on the part of the Lessee to comply with the terms of
this Lease, or any of said rules and regulations or directives,
now in existence, or which may hereafter be prescribed by the
Lessor, shall at the option of the Lessor, work a forfeiture of
this Lease and of all of the rights of the Lessee hereunder.
Upon said forfeiture, the Lessor, its agents or employees shall
have the right to enter said premises, and remove all persons and
property, if desired, therefrom forcibly or otherwise, and the
Lessee hereby expressly waives any and all notice required by law
to terminate tenancy, and also waives any and all legal
proceedings to recover possession of said premises, and expressly
agrees that in the event of a violation of any of the terms of
this Lease, or of said rules, regulations or directives, now in
existence, or which may hereafter be made, said Lessor, its
agents or employees may immediately re-enter said premises and
dispossess Lessee without legal notice or the institution of any
legal proceedings whatsoever.
2. In addition to the acts of default elsewhere
defined, the commission of any of the following acts by the
Lessee shall constitute a default, and this Lease may be ter-
minated by the Lessor immediately upon notice in writing to the
Lessee: Abandon, desert, vacate or discontinue operations on the
premises or petition for any bankruptcy or insolvency, or be
adjudicated bankrupt, or make a general assignment for the
benefit of creditors, or suffer a lien to be filed against the
premises, or permit a receiver or trustee to come into possession
without removing them, within a reasonable time.
ARTICLE IV - SERVICES TO PUBLIC
The Lessee agrees that in furtherance of the privileges and
uses permitted hereunder:
1. To furnish good, prompt and efficient service adequate
to meet all the demands for its service at the Airport;
2. To furnish said service on a fair, equal and nondiscrim-
inatory basis to all users thereof; and
3. To charge fair, reasonable and nondiscriminatory prices
for each unit of sale or service: PROVIDED that the Lessee may
be allowed to make reasonable and nondiscriminatory discounts,
rebates or other similar types of price reductions to volume
purchasers.
The work "service" as used in subsections 1, 2, and 3 of
ARTICLE IV, shall include furnishing of labor, materials and
supplies, related to Gift and Sundry Shop operation including the
sale thereof, as well as furnishing service.
4
ARTICLE V - RIGHT TO LEASE PROPERTY
Lessor represents that it has the right to lease the Air-
port, together with all premises, facilities, rights, licenses,
services and privileges herein granted, and has full power and
authority to enter into this Agreement in respect thereof.
ARTICLE VI - RIGHT TO PURCHASE SUPPLIES AND MATERIALS
Lessee shall, except as herein otherwise provided. have the
right to purchase or otherwise obtain personal property deemed by
it to be required by or incident to. Lessee's operations. its
exercise of the rights herein granted and its discharge of the
obligations herein imposed, from any person, partnership. firm,
association or corporation it may choose. Except as herein
otherwise specifically provided. no charges, fees, or tolls. of
any nature. direct or indirect, shall be charged by Lessor,
directly or indirectly. against Lessee or its suppliers, for the
privilege of purchasing, selling, using storing, withdrawing.
handling. consuming, loading or unloading, or delivering any such
personal property of Lessee by Lessee or its suppliers or for the
privilege of transporting such personal property or persons to.
from or on the Airport.
Nothing in this Lease shall be deemed to restrict in any
manner Lessor's right to charge any person, partnership, firm,
association or corporation rentals for the use of Lessor's
property or any improvements thereon or thereto where such use of
said property or improvements are of a regular or permanent
nature as distinguished from temporary or transitory nature or
where such use is of such a nature as to constitute the perfor-
mance of a commercial business at the Airport.
ARTICLE VII - MAINTENANCE AND OPERATIONS BY LESSOR
Except as otherwise specifically provided herein, Lessor
during the term of this Lease, shall operate, maintain and keep
in good repair the Airport, Terminal Building, vehicular parking
space, all appurtenances, facilities and services now or hereaf-
ter connected with the foregoing, including, without limiting the
generality hereof, all field lighting and other appurtenances,
facilities and services which Lessor has agreed to furnish and
supply hereunder. Provided, however, that Lessor shall not be
required to perform maintenance and make repairs occasioned by
negligence of Lessee or its employees, fire or other casualty
expected, and in which case Lessor may perform such maintenance
or make such repairs and charge the reasonable cost of same to
Lessee. Provided also that Lessor may abandon certain facilities
which are no longer reasonably justified for proper and adequate
operation of the Airport. Lessor shall keep the Airport free of
obstructions, including the clearing and removal of grass,
stones, or other foreign material, as reasonably necessary and
5
with reasonable promptness, from the runway, taxi-way and loading
areas for the safe, convenient and proper use of the Airport, 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 substan-
tially 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 Airport or to make extensions or
additions to the landing area, runway, taxi-way, or other appur-
tenances of the Airport.
ARTICLE VIII - MAINTENANCE AND OPERATIONS BY LESSEE
Lessee hereby accepts the premises in the condition they are
in at the beginning of this Lease, and agrees to maintain said
premises in the same condition, order and repair as they are at
the commencement of said term, excepting only reasonable wear and
tear arising from the use thereof under this Agreement, and to
compensate said Lessor immediately upon demand for any damage to
said premises caused by any act or neglect of Lessee, or of any
person or persons in their employ or under the control of the
Lessee.
The Lessee agrees to maintain the premises in a clean
condition, and to maintain an adequate number of covered metal
waste containers at suitable locations and shall deposit all
trash and waste therein for proper disposition of such waste
materials at the disposal grounds designated by the Lessor.
It is understood and agreed that no signs or advertising and
no awnings shall be erected on or in connection with the premises
leased hereunder, unless the same shall be first submitted to and
approved by the Lessor in writing.
ARTICLE IX - 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 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 X - 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 the use of the Airport and appurte-
nances; provided that such rules and regulations shall not be
inconsistent with this Agreement nor with safety and with rules,
6
regulations and orders of the Federal Aviation Administration
with respect to aircraft operations at the Airport, with proce-
dures prescribed or approved from time to time by the Federal
Aviation Administration with respect to the operation of aircraft
of the Airport.
Lessor shall provide Lessee with a copy of such rules and
regulations from time to time.
ARTICLE XI - DAMAGE OR DESTRUCTION OR PREMISES
In the event the premises shall be partially damaged by
fire, explosion, the elements, the public enemy or other casual-
ty, but not rendered untenable, the same shall be repaired with
due diligence by Lessor at his own costs and expense. If the
damage shall be so extensive as to render such premises untenable
but capable of being repaired within thirty (30) days, the same
shall be repaired with due diligence by Lessor at its own cost
and expense, and rent payable hereunder shall be proportionately
paid up to the time as the premises shall be fully restored. In
case the premises is completely destroyed by fire, explosion, the
elements, the public enemy or other casualty, or so damaged that
it will or does remain untenable for more than thirty (30) days,
the Lessor shall be under no obligation to repair and reconstruct
the premises, and rent payable hereunder with respect to Lessee's
exclusive space in said premises shall be proportionately paid up
to the time of such damage or destruction and shall thenceforth
cease until such time as the premises may be fully restored. If
within ninety (90) days after such damage or destruction, Lessor
fails to notify Lessee of its intention to repair or reconstruct
the damage or destroyed premises or to furnish a substantially
equivalent facility, Lessee may give Lessor written notice of its
intention to then cancel this Agreement in its entirety or to
cancel, as of the date of such damage or destruction, such part
of this Agreement as relates only to said premises.
ARTICLE XII - CANCELLATION BY LESSOR
The Lessor may cancel this Agreement by giving Lessee thirty
(30) days advance written notice to be served as hereinafter
provided upon or after the happening of anyone of the following
events:
a. The filing by Lessee of a voluntary petition in bank-
ruptcy.
b. The institution of proceedings in bankruptcy against
Lessee and adjudication of Lessee as a bankrupt pursuant to such
proceedings.
c. The taking by a court of jurisdiction of Lessee and its
assets pursuant to proceedings brought under the provisions of
any Federal re-organization act.
7
d. The appointment of a receiver of Lessee's assets.
e. The divestiture of Lessee's estate herein by other
operation of law.
f. The abandonment by Lessee of its conduct of Gift and
Sundry Shop at the Airport for a period of sixty (60) days.
g. 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 ninety (90) days, from operating thereon for
the conducting of a Gift and Sundry Shop.
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 XIII - 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
sixty (60) days advance written notice to be served as hereinaf-
ter provided, upon or after the happening of anyone of the
following events:
a. Issuance by any court of competent jurisdiction of an
injunction in any way preventing or restraining the use of the
Airport or any part thereof for airport purposes, and the remain-
ing in force of such injunction for a period of at least ninety
(90) days.
b. The inability of Lessee to use, for a period in excess
of ninety (90) days, the Airport or any of the premises, facil-
ities, rights, licenses, services or privileges leased to Lessee
hereunder, because of fire, explosion, earthquake, other casual-
ty, or acts of God or the public enemy, provided that same is not
caused by negligence or willful acts of failure to act on part of
Lessee.
c. 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 remedl such default for a period of
ninety (90) days after receipt rom 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
8
shall have remedied the default prior to receipt of Lessee's
notice of cancellation.
d. The lawful assumption by the United States Government or
any authorized agency thereof of the operation, control or use of
the Airport and facilities, or any substantial part or parts
thereof, in such a manner as substantially to restrict Lessee,
for a period of at least ninety (90) days, from operating thereon
for the conducting of a Gift and Sundry Shop.
Lessee I 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 the 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 hereto 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 XIV - INDEMNITY
Lessee agrees to indemnify and hold harmless the Lessor from
any and all claims for bodily injury (including death), personal
injury, and property damage (including property owned by Monroe
County) and any other losses, damages, and expenses (including
attorney's fees) which arise out of, in connection with, or by
reason of the Lessee utilizing the property governed by this
lease agreement.
The extent of liability is in no way limited to, reduced, or
lessened by the insurance requirements contained elsewhere in
this agreement.
ARTICLE XV - INSURANCE
Prior to the effective date of this lease, Lessee shall
obtain, at his/her own expense, insurance as specified in the
attached schedules, which are made a part of this lease
agreement.
The Lessee will not be permitted to use the lease property
until satisfactory evidence of the required insurance has been
furnished to the Lessor as specified below.
Lessee shall maintain the required insurance, throughout the
entire term of this lease agreement and any extensions, as
specified in the attached schedules. Failure to comply with this
provision may result in the immediate termination of the lease
agreement and the return of all property owned by the Lessor.
9
Lessee shall provide, to the Lessor, as satisfactory
evidence of the required insurance, either:
Certificate of Insurance
or
A Certified copy of the actual insurance policy.
Lessor, at its sole option, has the right to request a
certified copy of any or all insurance policies required by this
contract.
All insurance policies must specify that they are not
subject to cancellation, non-renewal, material change, or
reduction in coverage unless a minimum of thirty (30) days prior
notification is given to the Lessor by the insurer.
The acceptance and/or approval of the Lessee I s insurance
shall not be construed as relieving the Lessee from any liability
or obligation assumed under this contract or imposed by law.
The Monroe County Board of County Commissioners will be
included as "Additional Insured" on all policies. They will also
be named as "Loss Payee" with respect to Fire Legal Exposure.
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 approved by
Monroe County Risk Management.
ARTICLE XVI - RISK
All personal property placed or moved in the premises above
described shall be at the risk of the Lessee or Owner thereof,
and Lessor shall not be liable to the Lessee for damages arising
from any act of negligence of any co-tenant, or of any other
person whomsoever, except as stipulated hereinabove.
ARTICLE XVII - 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 XVIII - 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 forthwith upon such expiration or termination surren-
der the same.
10
Except as otherwise provided in ARTICLE XVIII, all struc-
tures, fixtures, improvements, equipment and other property
bought, installed, erected or placed by Lessee in, on or about
the Airport and premises leased under this Lease shall be deemed
to be personal and remain the property of the Lessee and Lessee
shall have the right at any time during the term of this Agree-
ment, or any renewal or extension hereof, to remove any or all of
its property from the Airport; provided, however, that Lessee is
not in default in its payments to Lessor hereunder and provided
Lessee shall restore said premises to its original condition as
at the beginning of occupancy, ordinary wear and tear, damage by
elements, fire, explosion or other causes beyond control of
Lessee excepted. Any and all property not removed by Lessee as
set forth herein, shall thereupon become a part of the premises
on which it is located and title thereto shall thereupon rest in
the Lessor. Provided further that Lessor reserves the right to
require Lessee to remove such improvements and property at
Lessee's expense.
ARTICLE XIX - DEFINITION 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 such other Federal Govern-
ment 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, except for assignment or
modification of the terms of this lease which shall require
written approval of the Board of County Commissioners, such
written approval may be given by the Director of Airports for
Lessor.
ARTICLE XX - NO ASSIGNMENT
Lessee shall not at any time assign this Agreement or any
part thereof, nor sublet all or any portion of the leased prem-
ises herein without written approval of Lessor; provided that the
foregoing shall not prevent the 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 XXI - INSPECTION BY LESSOR
Lessor shall be entitled, during reasonable hours, to enter
the premises let under this lease and to inspect for damage or
unsafe conditions.
11
ARTICLE XXII - NOTICES
Notices to Lessor provided for herein shall be sufficient if
sent by certified mail, return receipt requested, postage pre-
paid, addressed to:
Director of Airports, Monroe County
Key West International Airport
3491 S. Roosevelt Boulevard
Key West, Florida 33040
and notice to Lessee, if sent by certified mail, return receipt
requested, postage prepaid, addressed to:
The Airport Gift Shop
3495 South Roosevelt Boulevard
Key West, Florida 33040
Attention: Diane Heberle
or to such other respective addresses as the parties may desig-
nate to each other in writing from time to time.
ARTICLE XXIII - 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 XXIV - 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 pro-
vision shall in no way affect 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 provisions of this
Lease.
ARTICLE XXV - COVENANT NOT TO GRANT MORE FAVORABLE TERMS
Lessor covenants and agrees not to enter into any lease,
contract or agreement with any other Gift and Sundry Shop with
respect to the Airport containing more favorable terms than this
Lease or to grant to any other Gift and Sundry Shop rights,
privileges or concessions with respect to the said Airport which
are not in accord to the Lessee hereunder unless the same terms,
rights, privileges and concessions are concurrently made avail-
able to the Lessee.
ARTICLE XXVI - 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.
12
ARTICLE XXVII - 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
other person or groups of persons in any manner prohibited by
Part l5 of the Federal Aviation Regulations, and the Lessor is
hereby granted the right to take such action, anything to the
contrary herein notwithstanding, as the United States may direct
to enforce this non-discrimination covenant.
ARTICLE XXVIII - INTERPRETATION OF LEASE
Nothing in this Lease shall be construed or interpreted in
any manner. whatsoever as limiting, relinquishing, or waiving of
any rights of 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.
IN WITNESS WHEREOF. the parties have caused this Lease to be
executed as of the day and year first above written.
(SEAL)
ATTEST: DANNY L. KOLHAGE. CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
Byila.LJ c. ~
Deputy C er
J~.....
THE AIRPORT GIFT SHOP
BY~ ~. ~dl
ane M. He er e. Lessee
APPROVED AS TO m~...,
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h. l'ri.-tine
GENERAL LIABILITY
INSURANCE REQUIREMENTS
FOR
LEASEIRENTAL OF PROPERTY
OWNED BY TilE COUNTY
BETWEEN
MONROE COUNTY, FLORIDA
. AND
DIANE M. HEBERLE
d/b/ a '1lIE AIRPORl' GIFT SHOP
Prior- to the Or-ganizationlIndividual taking pos."lession of the pmperty governed by this
leuo'ratlal agreement. the Organization/Individual shall obtain General Liability Insurance.
Coverage shall be maintained thr-oughout the life of the contr-act and include. u a minimum:
. Premises Operations
. Pr-oducts and Completed Oper-ations
. Blanket Contractual Liability
. Personal Injury Liability
. Expanded Definition of Property Damage
. Fire Legal Liability (with limits equal to the fair market value ofthe leased pmperty.)
The minimum limits acceptable shall be:
$300,000 Combined Single Limit (CSL)
If split limits arc pmvided, the minimum limits acceptable shaJl be:
$100.000 per- Per-son
$300,000 per- Occurrence
$ 50,000 Property Damage
An Occurrence Fonn policy is preferred. Ifcoverage is pr-ovided on a Claims Made policy, its
provisions should include coverage for claims filed on or afier- the effective date of this contra~t.
In addition, the period for which claims may be reported should extend for a minimum of twelve
(12) months following the tenninalion of the Lease/Rental Agreement.
The Monroe County Board of County Commissioners shall be named as Additional Insured on all
policies issued to satisfy the above requirements.
)
Admini_i"", In"bud;.",
1147(I'J.I
18
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WO ({KERS' COMPENSATION
INSUUANCE REQUJl{EMENTS
FOR
CONTRACT LEASE GIFT SHOP
UETWEEN
MONROE COUNTY. IrLORIDA
ANO
DIANE HEBERLE dba THE- AIRPOR4 GIFT SHOP
Prior to the commencement of work governed by this contract, the Contractor shall obtain
Workers' Compensation Insurance with limits sufficient to respond to the applicable state statutes.
In addition, the Contractor 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
$500,000 Bodily Injury by Disease, each employee
Coverage shall be maintained tflroughoulthe entire term of the contract.
Coverage shaJl be provided by a company or companies authorized to transact business in the
state of Florida and the cOmpany or companic.c; must maintain a minimum rating of A-VI, as
assigned by the A.M. Best Company.
If the Contractor has been approved by the Florida's Department ofL...OOr, as an authorized self-
insurer, the County shall recognize and honor the Contractor's status. TIle Contractor may be
required to submit a Letter of Authorization issued by the Department of Labor and a Certificate
oflnsurance, providing details on the Contractors Excess Insurance Program.
If the Contractor participates in a self-insurance fund, a Certificate of Insurance will be required.
In addition. the Contractor may be required to submit updated financial statements from the fund
upon request from the County.
Adlnini.....i.... Imtnldion
1/4709.1
40
'\I'ril 22. 1ft'
Isll~
MONROE COUNTY. FLORIDA
RCllucst For W:Ii\'cr
of
Insuranc(: RC(luirClUcn~lI
II is requestcd thallhe insurance requirements. as specified in the County's Schedule of Insurance
Requirements. be waived or modilicd on the following contract.
Contractor:
Springboard F.nr~~prj&e&, Iue /n1anp HphPTlp
Contract for:
Airport Gift Shop
Address of Contractor:
3495 S. Roosevelt Blvd.
Key West, FL 33040
Phone:
294-5055
Scope of Work:
Retail Gift Shop
Reason [or W:\i\'er:
Only two employees who do not do any manual labor,
clerks position who also cashiers. Request Workers
Compensation requirement be lower to Fla State Statute
SignClture of COlltractor: ~ ;e,. #d
Approved K Not Approved
Risk Man3gelllent (0 W~~
Date I / r; I q i
COUllty Adminislratm aPIx:al:
Approved:
Not Approved:
Date:
Doard of COIlIII)' COJIIlllissioners <IPlleal:
Approved:
NOI Approved:
Meeting Dale:
WAIVER
EXHIBIT B
LEASE EXTENSION AGREEMENT
,
This Lease Extension Agreement is entered into on 'this .Jfi!!! day of April, 2000, by and between
Monroe County, a political subdivision of the State of Florida (Lessor) and DiaIIe M. Heberle d/b/a The
Airport Gift Shop, a partnership organized and existi~ under the Laws of Florida (Lessee).
WITNESSETH:
WHEREAS, on November 10, 1993, 'the Lessor and Lessee entered into a lease whereby 'the
Lessee was to operate a gift shop at Key West International Airport and, which lease is scheduled to
expire on September 30, 2000; and
WHEREAS, 'the parties have determined 'that it is in their mutual benefit:ial int'erat to extend
'the 1993 lease for an additional 16 years; now, 'therefore,
IN CONSIDERA TION of the mutual covenants and promises set forth below, the parties agree as
follows:
Section 1. A copy of the November 10, 1993 lease ('the original lease) is attach~. to' 'this
lease extension agreement and mada a part of it.
Section 2. Article n - Tenn, of 'the original lease, is modified to extend the termination date
to Slptember 30, 2016.
Section 3. Artit:1e m - Rentals and Fees, subparagraph Al of 'the original lease, is modified
to increase 'the per square foot rental amount to $40.93.
Section 4. Article m - Rentals and Fees, subparagraph A2 of the original I.., is modified
to remove 'the exemption of the first $25,000 from 'the requirement that Lassee pay Lessor 5"X, of
Lessee's annual gross revenues. Five percent of all Lessee's annual gross revenues must be paid to Lessor.
Section 5. Except as provided in sections 2 - 4 of 'this lease extension agreement, in aU o1Nr
respects 'the terms and conditions of the original lease remain in full force and effect.
. IN WIlNESS WHEREOF, 'the parties hereto have set 'their hands and seals the day and year
first above written.
By
Mayor/Oulirperson
TIt! rT 6IFT SHOP
~ ,/JIt&~ 1t1./#k ~
Diane M. Heberle, Lessor
MI=
ATTEST:
~
EXHIBIT C
CONSENT TO ASSIGNMENT OF LEASE
This Consent to Assigmnent is entered into this / J ~y of deAL
2007, by and betw'een Monroe County, a political subdivision of the State of Florida, hereafter
County, Diane M. Heberle/Springboard Enterprises, Inc., a Florida corporation d/b/a "The
Airport Gift Shop", hereafter Assignor, and Last Chance Gifts, LLC, a Florida limited liability
company, hereafter Assignee, the parties agreeing as follows:
1. The County leases approximately 303 square feet of gift shop space located within the
passenger terminal building at Key West International Airport, through a Contract of
Lease dated November 10, 1993, and extended by Lease Extension Agreement dated
April 19, 2000 for an additional sixteen (16) years, and amended on November 10, 1993
attaching Exhibit A-I, in place of Exhibit A depicting the location of the airport gift shop.
Copies of the original Lease, Lease Extension Agreement, and Amendment are attached
and incorporated into this Consent to Assignment.
2. Article XX of the Lease provides that the Lessee may assign the Lease with written
approval of the Board of County Con;unissioners for Monroe County.
3. The Assignor and Assignee have entered into an Agreement for Purchase and Sale of
Assets which contract includes an assignment to Assignee of all the Assignor's right, title,
obligation, and interest in the Lease.
4. In consideration of its consent from Board of County Commissioners, to the assignment
Assignee agrees to be bound by all the terms and conditions of the original Lease, as
extended and amended.
IN WITNESS WHEREOF, the parties have set their hands and seals as of the date first written
above.
(SEAL)
ATTEST: DANNY 1. KOLHAGE, CLERK
By: ihaULa. ~)60A\.-kJ
Deputy Clerk
LESSOR:
BOA
OFM
By:
Mayor Mario Di Gennaro
ASSIGNOR:
DIANE M. HEBERLE /
SPRINGBOARD ENTERPRISES, INC.
a Florida corporation
BY~~
iane Heberte, individually and as
President of S' a~lit
V 0 AS T
ASSIGNEE:
LAST CHANCE GIFTS, L~, a
Florida limited liability com@D~
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EXHIBIT D2
RenO\<41ted Pr."llisting Passenger Terminal 8u,Iding
: ft Sho!J J9C "Qua'l'! fee!
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