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Item C31BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 21, 2008 Division: Airports Bulk Item: Yes X No Department: Florida Keys Marathon Airport Staff Contact Person: James R. "Reggie" Paros/289-6002 AGENDA ITEM WORDING: Approval of Amendment to Lease Agreement between Monroe County and Hangers On, Inc., Tenants, for hangar space at the Florida Keys Marathon Airport ITEM BACKGROUND: The Board approved a Lease Agreement with Hangers On, Inc. on August 15, 2008. Representatives of Hanger's On, Inc. executed the agreement; however, they could not provide the appropriate certificates of insurance and the documents could not be processed by the Clerk's Office without them. The parties have met and the insurance requirements were agreed upon as amended. PREVIOUS RELEVANT BOCC ACTION: On August 15, 2007, the Board approved the Hangar Lease Agreement between Monroe County and Hangers On, Inc., for hangar space at the Florida Keys Marathon Airport. CONTRACT/AGREEMENT CHANGES: Section I Paragraph 6 has been changed to reflect the amended insurance requirements. STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes X No AMT MONTH $557.83 Year $6,693.96 APPROVED BY: County Atty YES OMB/Purchasing YES Risk Management YES DOCUMENTATION: DISPOSITION: Revised 8/06 Included X Not Required AGENDA ITEM # CONTRACT SUMMARY Contract with: Hangars On, Inc. Contract # Effective Date: Upon Execution Expiration Date: 2029 w/ option to renew Contract Purpose/Description: Amendment to Hangar Lease Agreement to revise insurance requirements Contract Manager: James R. Paros 6060 Marathon Airport/Stop 15 (Name) (Ext.) (Department/Stop #) for BOCC meeting on May 21, 2008 Agenda Deadline: May 6, 2008 CONTRACT COSTS Total Dollar Value of Contract: $ 6,693.96 yr Current Year Portion: $ 6,693.96 Revenue Revenue Budgeted? Yes❑ No ❑ Account Codes: - - - - Grant: $ - - - - County Match: $ - - - - ADDITIONAL COSTS Estimated Ongoing Costs: $ /yr For: (Not included in dollar value above) (e . maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW Changes Date Qut. Date In Needed � reviewer � Division Director t`' r Yes[] No®'� Risk Managepe4t 'D Yes❑ Nod -a 4/ O.M.B./Purchasing Yes[:] Non County Attorney' Yes❑ NoX A5 a Comments: OMB Form Revised 2/27/01 MCP #2 AMENDENT TO HANGAR LEASE AGREEMENT Hangers On, Inc. THIS AMENDMENT (hereafter Amendment) is made and entered into this day of April, 2008 by and between Monroe County, a political subdivision of the State of Florida, whose address is 9400 Overseas Highway, Marathon, FL 33050, hereafter "COUNTY", and Hangers On, Inc., a Florida corporation, whose address is 2460 Coco Plum Drive, FL 33050, hereafter "Tenant" or "Lessee". WHEREAS, the parties hereto did enter into a Lease Agreement (hereinafter Original Lease) for use of space at the Florida Keys Marathon Airport; and WHEREAS, the Original Lease was approved at the regularly scheduled Monroe County Board of County Commissioners meeting held on August 15, 2007, and WHEREAS, the Original Lease requires that Hanger's On provide to the County certificates of insurance evidencing certain insurance coverage's, and WHEREAS, Hangers On, Inc. has not provided the required certificates of insurance due to confusion over the requirements, and WHEREAS, whereas the Original Lease can not be executed until the appropriate certificates of insurance are provided, and WHEREAS, the parties have come to an agreement as to the appropriate insurance requirements, 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. Paragraph 6 of the original agreement is amended to read as follows: 6. The Lessee is responsible for all maintenance and insurance of the hangars, and shall surrender the hangar, at the conclusion of the Lease, in good condition. Lessee shall at all times during the term of this lease maintain insurance on the leased premises. If during the term of this lease one or more of the hangars is damaged or destroyed, then the Lessee must promptly, and at no cost to the COUNTY, repair or reconstruct the hangar(s). The repair or reconstruction must be made with the same quality materials and in the same dimensions as the damaged or destroyed hangar(s). The Lessee shall be responsible for paying for and obtaining all necessary permits for the repairs or reconstruction. The County, without acting on behalf of the Lessee and without assuming any responsibility as an agent of the lessee, shall assist the Lessee with the permitting procedures if requested to do so by the Lessee. Notwithstanding the insurance requirements contained below, Lessee agrees that in the event insurance proceeds are insufficient to repair or reconstruct the Hangars, Lessee shall fully fund any and all costs of repairs or reconstruction not covered by insurance. a. LESSEE shall obtain, possess or require its tenants to maintain the following insurance coverage's and will provide Certificates of Insurance to LESSOR to verify such coverage: Aircraft Liability to include Single Limit Bodily Injury and Property Damage Liability with limits not less than $1,000,000 (One Million) per occurrence All Risk Property Insurance to include perils of wind and flood for full replacement value of building/structure. General Liability with limits not less than$1,000,000 (One Million) per occurrence b. The Monroe County Board of County Commissioners will be included as "Additional Insured" on all policies issued to satisfy the above requirements. All forms of insurance required above shall be from insurers acceptable to the County. C. 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 days prior notification is given to the Lessor by the insurer. d. LESSEE shall maintain the required insurance throughout the entire term of this lease and any extensions which may be entered into. The COUNTY, at its sole option, has the right to request a certified copy of any and all insurance policies required by this lease. Failure to comply with this provision shall be considered a default and the COUNTY may terminate the lease in accordance with Paragraph 15. 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, at his discretion, may choose to self -insure. If the LESSEE chooses to self -insure, LESSEE shall provide a bond for the full replacement value of the structure on the premises. The bond shall be in the form of a performance bond guaranteeing that LESSEE will restore the premises to their pre -loss state in the event of any fortuitous loss. The replacement value shall be determined by an appraisal conducted by an appraiser that is mutually acceptable to the parties. LESSEE may not self -insure until the appraisal has been completed. LESSEE shall not be permitted to self -insure until COUNTY has reviewed and approved of the bond coverage in writing. LESSEE shall not permit insurance coverage to lapse and shall maintain insurance coverage as required by the terms of this lease during any period when bond coverage is not approved and/or is not provided for the full replacement value. LESSEE shall obtain insurance coverage(s) for any areas of liability not covered by the bond. r IN WITNESS WHEREOF each party hereto has caused this agreement to be executed in duplicate by its duly authorized representative. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK By Deputy Clerk Date (CORPORATE SEAL) ATTEST: By Secretary Date BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA IM Mayor/Chairperson HANGERS ON, INC. y P ident ROE COUNTY ATTO NEY Pp VED A.. ASSISTANT CO NTY ATT RNE 3�4 Date LL 3 HANGAR LEASE AGREEMENT Hangers On, Inc. THIS LEASE AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is 9400 Overseas Highway, Marathon, FL 33050, hereafter "COUNTY", and Hangers On, Inc., a Florida corporation, whose address is 2460 Coco Plum Drive, FL 33050, hereafter "Tenant" or "Lessee" this day of f 52007. WHEREAS, COUNTY owns an airport known as the Florida Keys Marathon Airport, located in Marathon, Monroe County, Florida, and WHEREAS, Hangers On, Inc. currently leases certain property at the Florida Keys Marathon Airport, and WHEREAS, Hangers On, Inc. current lease expires on June 17, 2018, and WHEREAS, Hangers On, Inc. is willing to assume maintenance and insurance responsibilities for the leased property in exchange for entering in to a new lease with a longer term, and WHEREAS, Hangers On, Inc. desires to obtain certain rights, services and privileges in connection with the use of the Airport facilities, and the COUNTY is willing to grant and lease the same to Hangers On, Inc. upon the terms and conditions hereinafter stated, 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 Hangers On, Inc., and Hangers On, Inc does hereby lease from the COUNTY, certain premises, facilities, rights, and privileges in connection with and on the Airport, as follows, to wit: WITNESSETH: 1. The parties mutually agree to cancel their December 18, 2002 Lease Agreement effective _ " _ , 2007, with neither party having any further duty, obligation or liability to the other under the terms of that 2002 lease. A copy of the 2002 lease is attached to this lease as Exhibit A. 2. a) The County hereby leases to the Lessee certain property in the northeast corner of the Marathon Airport more particularly described in Exhibit b, which is attached to, and made a part of, this lease, hereafter the Premises. b) The Lessee agrees to accept the hangars in their as -is condition. Lessee shall be responsible for paying the electrical and water service charges. The hangars at all times during this lease are and remain the property of the County. c) The County must provide the Lessee (and its sub lessees) access to the premises and egress to the taxiway. 3. This lease will take effect on the date of the signature of the last party to sign this lease. The term of the lease is 22 years. This lease, at the option of the Lessee, may be extended for an additional ten year term. However, if so extended, the rental payments provided for in paragraph 4, will be at fair market value, established after an appraisal of the premises and will thereafter be subject to the CPI provided for in paragraph 4. 4. a) The initial rent for the Premises is $539.48 per month, plus the applicable sales tax, payable in advance on or before the first business day of each month. The rent will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the CPI percentage for urban consumers for the calendar year immediately preceding the anniversary date. b) Lessee may sublease any of the hangars without permission of the County. However, the Lessee must furnish the County's Marathon Airport Manager a copy of the sublease immediately upon its execution together with a description of the plane using the hangar and persons authorized to use such plane. 2 c) Lessee's sublease of any of its hangars does not in any way operate to waive or release the Lessee from any of its duties and obligations under this lease and Lessee shall remain fully bound by the terms of this lease as if no sublease existed. d) Lessee is responsible for all sales or use taxes that may be due for rent paid pursuant to this lease and any sub lessees. e) After the first anniversary of this Lease, when a potential purchaser offers to purchase some or all of the shares of Lessee's stock, then the Lessee must so notify County, which will have 30 days from receipt of written notification to exercise a right of first refusal to acquire those shares at the same purchase price as that offered by the potential purchaser. Upon its exercise of the right of first refusal, the County will receive, in lieu of the purchased stock certificate, the surrender of one hangar for each 25% of Lessee's stock that it purchases. After such surrender the County may lease such surrendered hangar(s) and corresponding portion of the premises to third persons free and clear of any claims of Lessee, and the rent for the remaining portion of the Premises shall be reduced pro rata. Lessee may override County's exercise of its right of first refusal by paying to County one- half of the purchase price. 5. The Lessee agrees not to cause or permit any lien, mortgage or other encumbrance to be placed on the premises hangars included. If such occurs, the Lessee must immediately undertake, at its expense, whatever actions needed to remove and cancel the lien, mortgage or other encumbrance. 6. The Lessee is responsible for all maintenance and insurance of the hangars, and shall surrender the hangar, at the conclusion of the Lease, in good condition. Lessee shall at all times during the term of this lease maintain insurance on the leased premises. If during the term of this lease one or more of the hangars is damaged or destroyed, then the Lessee must promptly, and at no cost to the COUNTY, repair or reconstruct the hangar(s). The repair or reconstruction must be 3 made with the same quality materials and in the same dimensions as the damaged or destroyed hangar(s). The Lessee shall be responsible for paying for and obtaining all necessary permits for the repairs or reconstruction. The County, without acting on behalf of the Lessee and without assuming any responsibility as an agent of the lessee, shall assist the Lessee with the permitting procedures if requested to do so by the Lessee. a. LESSEE shall obtain or possess the following insurance coverage's and will provide Certificates of Insurance to LESSOR to verify such coverage: Aircraft Liability to include Han ar-Keepers Liability with limits not less than $1,000,000 (One Million) per occurrence All Risk Property Insurance to include perils of wind and flood for full replacement value of building/structure. Airport Liability with limits not less than$1,000,000 (One Million) per occurrence b. The Monroe County Board of County Commissioners will be included as "Additional Insured" on all policies issued to satisfy the above requirements. All forms of insurance required above shall be from insurers acceptable to the County. C. 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 days prior notification is given to the Lessor by the insurer. d. LESSEE shall maintain the required insurance throughout the entire term of this lease and any extensions which may be entered into. The COUNTY, at its sole option, has the right to request a certified copy of any and all insurance policies required by this lease. Failure to comply with this provision shall be considered a default and the COUNTY may terminate the lease in accordance with Paragraph 15. 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. 4 LF,`,S1,.1�, at his discrctiotl, 111i1;' choo'�c t-, tic Itlrc. i 1111c [ .1.tiS1- I , choos''s to styli-instlrc. IT'S, I'[Shall pro%ldc .f bond 101 the 11111 rcl)Iuccnlcnt of tht- structure oil the premises. I lie bond shall be in thy- form of a pert6rmance bond Lu�imntceing) il)at will resh)rc the prt:mis(s to their pre-lo,,s slab: ill the eNi, llt of ail' f0l'ttlltt3llti 1ifsS. I he I'eplaCC111ent v,l[rte shall he dcttlrliined by an appraisal conducted INan appl'aistir that i:, mutually to the paltie�. 1.1:S.SL-1.: stay not sell=illsul'i until the-,ippralsal has been cot)lhlcacd. i.,[ SS1-.I-, shall not l c rcnnittcd to self -insure until Ct P : N )' has rcvicwd and approved o(thc boiid co%crLw'C in writing. 1 1,Y-)E � Shall not permit insurance covcj L .--c to l�lhsc ;u�cl sh�lll nrlilltai n insur�lnce cov %;ray,- as l-CCllllr,.d by the terms of this least' dnring all% perlt�fd when hof1CI is Clot apprcn'cd and/or Is not prodded 16r the fu[l replacement sliall oht�lin insurance coVc]'a<Ic(s) for and of IlabiI[ty not covcrcd bV the 1)onJ. 7. Without regard to the effective date of the term of this lease, the Lessee may not occupy the premises until it has obtained the Insurance required by this agreement and produced adequate proof of such Insurance to the County's Director of Risk Management. Should the Lessee require hangar tenants at the Marathon Airport to increase the minimum required amount of insurance, such additional insurance requirement will be passed on the Lessee, Hangers On, Inc. However, any such increase must be in the same proportion as required of the other hangar tenants of the Marathon Airport at that time. 8. 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 5 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 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 Section will survive the expiration of the term of this lease or any earlier termination of this lease. 9. No modification(s) to the hangar facilities may be made until the modification(s) are approved by the County's Florida Keys Marathon Airport Manager. 10. The hangar facilities may only be used for the following: a) the housing of airplanes not used in commercial service; b) the providing of care, repair and maintenance of only those airplanes housed long-term at the hangar facilities; c) the temporary parking of automobiles. No other use of the hangar facilities may be undertaken by the Lessee without the prior written approval of the County. Without limiting the foregoing, the Premises may not be used in competition with any service offered for a fee by a Marathon Airport FBO, other than the rental of hangar space. 11. No improper, unlawful or offensive use may be made of the premises and hangars. 12. The Lessee agrees that the terms of this lease are subject to the FAA regulations attached as Exhibit c and made a part of this lease. Lessee agrees not to commit any act or omission that would constitute a violation of those FAA regulations. 13. 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 County reserves the right to grant similar privileges to another lessee or other lessees on other parts of the Marathon Airport. 14. At the expiration of the term of the lease, the Lessee will quietly and peaceably deliver up possession of the leased premises to the County. 15. This lease may be canceled at the discretion of the County in the following circumstances: a) Lessee fails to timely pay the rent; b) Lessee fails 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, or d) Cancellation is required to accommodate future Airport growth, or e) Cancellation is required due to F.A.A. requirements. In the case of the default/breach occurrences described in subparagraphs 15(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 �l County may cancel the lease in its discretion. In the case of cancellation occurring as described in subparagraphs 15(d) and (e), COUNTY shall provide Lessee 90 days notice. In the event of cancellation occurring as described in subparagraphs 15(d) and (e) the County, at County expense, shall relocate the Lessee's hangar to an alternate site in accordance with Florida Keys Marathon Airport ALP. If an alternate site at the airport is not available, the County will purchase the Lessee's lease hold at fair market appraisal value. 16. The Lessee, on keeping the covenants and obligations contained in this lease has the quiet and peaceful enjoyment of the premises and hangars during the term of this lease without any interruptions by the County or by any person(s) claiming through or under the County. 17. All written communication between the parties, including the payment of rent, shall be addressed to: County Airport Business Office 3491 S. Roosevelt Blvd. Key West, FL 33040 Lessee Hangers On, Inc. Attn: Daniel Zieg 2460 Coco Plum Drive Marathon, FL 33050 Either party may change their representative contacts with a written notice of such change. 18. Venue for any litigation arising under this lease must be in a court of competent jurisdiction in Monroe County unless an applicable federal law or regulation provides otherwise. In the event of litigation the prevailing party is entitled to a reasonable market value attorney's fee. 19. This lease is between the County and the Lessee only. Nothing in this lease may create a contractual relationship with, or any rights in favor of, any third party. 20. This lease has been carefully reviewed by both the Lessee and the Lessor. Therefore, this lease is not to be construed against any party on the basis of authorship. 21. This lease represents the parties' final and mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This lease cannot be modified or replaced except by another signed lease or lease amendment. 8 22. Nothing in this lease should be read as modifying the applicable statute of limitations. The waiver of the breach of any obligation of this lease does not waive another breach of that or any other obligation. 23. 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; b) to perform essential maintenance, repair, relocation, or removal of the facility(if owned by the County), structure(if owned by the County), existing perimeter security fence, 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, as a result of the exercise by the LESSEE of its rights hereunder shall be borne by the LESSEE. 24. LESSEE and COUNTY agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 25. LESSEE and COUNTY 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 6 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. This paragraph does not apply where a default has occurred under the provisions of this agreement. 26. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, LESSEE and COUNTY 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. LESSOR 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 party's participation in accordance with the terms of this paragraph shall pay all reasonable expenses by the other party by reason of such participation. 27. LESSEE and COUNTY 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. 28. 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. 29. The LESSEE and COUNTY 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, 10 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. 30. 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. 31. 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. 32. 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 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. 11 33. 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. 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. 35. a) The LESSEE for themselves, their personal representatives, successors in interest, and assigns, as a part of the consideration hereof, do 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 of 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 LESSEE 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, Non-discrimination 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. b). That in the event of breach of any of the above non-discrimination covenants, the COUNTY shall have the right to terminate the lease and to re-enter and as if said 12 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. c). It shall be a condition of this lease that the COUNTY 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 herein 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 or flight in the said airspace, and for use of said airspace for landing on, taking off from or operating on the airport. d). That the LESSEES expressly agree for themselves, their successors and assigns, to restrict the height of structures, objects of natural growth and other obstructions on the herein described real property to such a height so as to comply with Federal Aviation Regulations, Part 77. e). That the LESSEE expressly agree for themselves, their successors and assigns, to prevent any use of the herein described real property which would interfere with or adversely affect the operation or maintenance of the airport, or otherwise constitute an airport hazard. f). This lease and all provisions hereof are subject and subordinate to the terms and conditions of the instruments and documents under which the COUNTY acquired the subject property from the United States of America and shall be given only such effect as will not conflict or be inconsistent with the terms and conditions contained in the lease of said lands from the COUNTY, and any existing or subsequent amendments thereto, and are subject to any ordinances, rules or 13 regulations which have been, or may hereafter be adopted by the COUNTY pertaining to the Florida Keys Marathon Airport. g). 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 non-exclusive and the COUNTY herein reserves the right to grant similar privileges to another tenant or other tenants on other parts of the Airport. 36. This lease takes effect on the date of the signature of the last party to sign. IN WITNESS WHEREOF each party hereto has caused this agreement to be executed in duplicate by its duly authorized representative. (SEAL) ATTEST: DANNY L. KOLHAGE, CLERK By Deputy Clerk Date (CORPORATE SEAL) ATTEST: By SecreW/6} Date 1 t , - :�J ( ­7 L 7 BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA Mayor/Chairperson HANGERS ON, INC. i y Presi ent AppPoUIED A ilF�ky' ASS13TA,NT',_0UN Date 14 UVQTRTT d HANGAR LEASE AGREEMENT Hangars On, Inc. THIS LEASE AGREEMENT is made by and between Monroe County, a political subdivision of the State of Florida, whose address is 490 63rd Street, Marathon, FL 33050, hereafter County, and Hangars On, Inc., a Florida corporation, whose address is PO Box 500802, Marathon, FL 33050, hereafter Tenant or Lessee. WITNESSETH: 1. The parties mutually agree to cancel their Lease Agreement effective June I8, 1997, with neither party having any further duty, obligation or liability to the other under the terms of that 1997 lease. A copy of the 1997 lease is attached to this lease as Exhibit A. The Lessee further agrees to dismiss with prejudice a lawsuit captioned Hangars On, Inc. v. Board of County Commissioners, Monroe County, Florida, Case No. CA-K-01-1135. A copy of the complaint in Hangars On, Inc. v. Board of County Commissioners, Monroe County, Florida, is attached to this lease as Exhibit B. In consideration of the Lessee's consent to the cancellation of the 1997 lease and the dismissal with prejudice of Hangars On, Inc. v. Board of County Commissioners, Monroe County, Florida, the County shall, within 15 days of the Lessee's filing with the Circuit Court a dismissal with prejudice of Hangars On, Inc. v. Board of County Commissioners, Monroe County, Florida, make a one time payment to Lessee of $134,000. 2. a) The County hereby leases to the Lessee certain property in the northeast corner of the Marathon Airport more particularly described in Exhibit C, which is attached to, and made a part of, this lease, hereafter the Premises. b) The County, at its expense, and as promptly and expeditiously as possible, shall relocate the four existing hangars, previously leased to the Lessee pursuant to the 1997 lease, to the Premises. The Lessee agrees to accept the hangars in their as -is condition. The four relocated hangars must be placed on a concrete slab or slabs and the County must also, at its expense, install electrical and water service to the Premises. The County will relocate to the Premises Lessee's electric meter, and will provide a water spigot at the Premises. Additional meters and outlets, together with applicable utility connection or impact fees for such additional meters and outlets, are at the Lessee's expense. Lessee shall be responsible for paying the electrical and water service charges. The hangars at all times during this lease are and remain the property of the County. c) The County must provide the Lessee (and its sublessees) access to the premises and egress to the taxiway. 3. This lease will take effect on the date of the signature of the last party to sign this lease. The term of the lease is 15 years; provided, however, the term will not commence until the four hangars are relocated with the utility connections installed as provided in paragraph two. This lease, at the option of the Lessee, may be extended for an additional ten year term. However, if so extended, the rental payments provided for in paragraph 4, will be readjusted according to the most recent County rates and charges study then available and will thereafter be subject to the CPI provided for in paragraph 4. 4. a) The initial rent for the Premises is $500 per month, payable in advance on or before the first business day of each month. The rent will be adjusted annually beginning with the first anniversary of the commencement of the lease term, and at every anniversary thereafter, by a percentage equal to the CPI percentage for urban consumers for the calendar year immediately preceding the anniversary date. b) Lessee may sublease any of the hangars without permission of the County. However, the Lessee must furnish the County's Marathon Airport Director a copy of the sublease immediately upon its execution together with a description of the plane using the hangar and persons authorized to use such plane. If the sublessee's hangar rent is in excess of 125% of the rent paid by Lessee to the County under this lease, then the Lessee shall pay to the County one-half of the amount by which sublessee's rent exceeds 125% of the rent paid by Lessee for the subleased hangar(s). For the purposes of this sub -paragraph, each hangar shall be allocated 1/4 of the rent for the Premises. The County's share of such sublease rental amounts is payable to County at the same time the Lessee's rent is due pursuant to this paragraph. c) Lessee's sublease of any of its hangars does not in any way operate to waive or release the Lessee from any of its duties and obligations under this lease and Lessee shall remain fully bound by the terms of this lease as if no sublease existed. d) Lessee is responsible for all sales or use taxes that may be due for rent paid pursuant to this lease and any sublessees. e) After the first anniversary of this Lease, when a potential purchaser ufFer5 i.0 Purchase some or all of the shares of Lessee's stock, then the Lessee must so notify County, which will have 30 days from receipt of written notification to exercise a right of first refusal to acquire those shares at the same purchase price 2 as that offered by the potential purchaser. Upon its exercise of the right of first refusal, -the County will receive, in lieu of the purchased stock certificate, the surrender of one hangar for each 25% of Lessee's stock that it purchases. After such surrender the County may lease such surrendered hangar(s) and corresponding portion of the premises to third persons free and clear of any claims of Lessee, and the rent for the remaining portion of the Premises shall be reduced pro rata. Lessee may override County's exercise of its right of first refusal by paying to County one-half of the purchase price. S. The Lessee agrees not to cause or permit any lien, mortgage or other encumbrance to be placed on the premises hangars included. If such occurs, the Lessee must immediately undertake, at its expense, whatever actions needed to remove and cancel the lien, mortgage or other encumbrance. 6. The Lessee is responsible for normal and routine maintenance of the hangars, and shall surrender the hangar, at the conclusion of the Lease, in good condition. If during the term of this lease one or more of the hangars is damaged or destroyed by an act of God, then the County must promptly, and at no cost to the Lessee, repair or reconstruct the hangar(s). The repair or reconstruction must be made with the same quality materials and in the same dimensions as the damaged or destroyed hangar(s). 7. Without regard to the effective date of the term of this lease, the Lessee may not occupy the premises until it has obtained the Insurance required by Exhibit D and produced adequate proof of such Insurance to the County's Director of Risk Management. Exhibit D is attached to this lease and made a part of it. Should the Lessee require hangar tenants at the Marathon Airport to increase the minimum required amount of insurance, such additional insurance requirement will be passed on the Lessee, Hangars On, Inc. However, any such increase must be in the same proportion as required of the other hangar tenants of the Marathon Airport at that time. 8. The Lessee covenants and agrees to indemnify and hold harmless the County, its ❑fficers, employees, and contractors, from any and all claims for bodily injury (including death), personal injury, and property damage (including property owned by the 3 County) and any other losses, damages and expenses (including attorney's fees) which arise out of, in connection with, or by reason of services provided by the Lessee or any of its contractors, occasioned by the negligence, errors or other wrongful act or omission of the Lessee or its contractor(s), their employees or agents. This obligation of indemnification is not vitiated by the insurance obligations contained in paragraph 6 and Exhibit D. 9. No modification(s) to the hangar facilities may be made until the modification(s) are approved by the County's Marathon Airport Manager. 10. The hangar facilities may only be used for the following: a) the housing of airplanes not used in commercial service; b) the providing of care, repair and maintenance of only those airplanes housed long-term at the hangar facilities; c) the temporary parking of automobiles. No other use of the hangar facilities may be undertaken by the Lessee without the prior written approval of the County without limiting the foregoing, the Premises may not be used in competition with any service offered for a fee by a Marathon Airport FBO, other than the rental of hangar space; 11. No improper, unlawful or offensive use may be made of the premises and hangars. 12. The Lessee agrees that the terms of this lease are subject to the FAA regulations attached as Exhibit E and made a part of this lease. Lessee agrees not to commit any act or omission that would constitute a violation of those FAA regulations. 13. 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 County reserves the right to grant similar privileges to another lessee or other lessees on other parts of the Marathon Airport. t4. At the expiration of the term of the iease, the Lessee will quietly and peaceably deliver up possession of the leased premises to the County. 4 15. This iease may be canceled at the discretion of the County in the following circumstances: a) Lessee fails to timely pay the rent; b) Lessee fails to obtain the insurance required under this lease or allows the required insurance coverage to lapse or fall below the minimum required; or c) Lessee otherwise breaches the terms of this lease. In the case of the default/breach occurrences described in subparagraphs 15(a) and (c), the County's Marathon Airport Director shall first give the Lessee a written notification stating the default/breach and that the Lessee has 10 days to correct the default/breach. If the Lessee has not corrected the default/breach at the end of the 10 days, then the County may cancel the lease in its discretion. 16. The Lessee, on keeping the covenants and obligations contained in this lease has the quiet and peaceful enjoyment of the premises and hangars during the term of this lease without any interruptions by the County or by any person(s) claiming through or under the County. 17. All written communication between the parties, including the payment of rent, shall be addressed to: County Reggie Paros 490 63rd Street Marathon, FL 33050 Lessee Hangars On, Inc. PO Box 500802 Marathon, FL 33050 Either party may change their representative contacts with a written notice of such change. 18. Venue for any litigation arising under this lease must be in a court of competent jurisdiction in Monroe County unless an applicable federal law or regulation provides other -wise. In the event of litigation the prevailing party is entitled to a reasonable market value attorney's fee. 5 19. This lease is between the County and the Lessee onfy. Nothing in this lease may create a contractual relationship with, or any rights in favor of, any third party. 20. This lease has been carefully reviewed by both the Lessee and the Lessor. Therefore, this lease is not to be construed against any party on the basis of authorship. 21. This lease represents the parties' final and mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This lease cannot be modified or replaced except by another signed lease or lease amendment. 22. Nothing in this lease should be read as modifying the applicable statute of limitations. The waiver of the breach of any obligation of this lease does not waive another breach of that or any other obligation. 23. This lease takes effect on the date of the signature of the last party to sign. IN. WITNESS WHEREOF each party hereto has caused this agreement to be execute din r llkafe.oy its duly authorized representative. (ABOARD OF COUNTY COMMISSIONERS A-Tt S` QA-NNY L, KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA By, By Deputy Clerk Mayor/Chairperson Date (CORPORATE SEAL) ATTEST: HANGARS ON, INC. By By Secretary President Date JairHangarsOn2 PROVED AS TO FORM An!-) LEGAL SU 8Y-�• R 8ERT N.fr OAT-E 6 p..blj su.+o.):o,uori "j" UP�'f Al 7dd 1ti0dif V Z•L 3an�l� N-S,�=� B EXHIBIT rj Glis LJ! s Qf i OQrJr 'O0- 00 I I 1 N i At IL A •. 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