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Resolution 264-1989 _/ Peter Horton, A.C.A. Division of Community Services RESOLUTION NO. 264 -1989 A RESOLUTION OF THE BOARD OF COUNTY COMMIS- SIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING THE MAYOR/CHAIRMAN OF THE BOARD TO EXECUTE AN AGREEMENT BETWEEN THE COUNTY AND AIRWAYS INTERNATIONAL, INC. CONCERNING PREMISES AT THE MARATHON AIRPORT. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, that the Mayor/Chairman of the Board is hereby authorized to execute an Agreement between the County and Airways International, Inc., a copy of same being attached hereto and made a part hereof, concerning premises at the Marathon Airport. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the e1~r,t day of ~~ ' A.D. 1989. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA BY: ~~~ (Seal) A ttes t D~ 14 l{OLHAGE, Clerk .L2Jt.e?fJ~11/)L Sv: L \J L- Nnr 68. OclUj;:..d Ju.:J 03113 A G R E E MEN T THIS CONTRACT OF LEASE is made and entered into on the day of , 1989, by and between the COUNTY OF MONROE, a political subdivision of the State of Florida, hereinafter referred to as Lessor, and AIRWAYS INTERNATIONAL, INC., a corporation 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 the Marathon Airport located in Marathon, Key Vaca, Monroe County, State of Florida, hereinafter called the "AIRPORT", and WHEREAS, Lessee is engaged in the business of air transportation with respect to persons, property, cargo and mail, and WHEREAS, Lessee desires to obtain certain rights, services and privileges in connection with the use of the Airport and its facilities; and the Lessor is willing to grant and lease the same to Lessee on a non-exclusive basis upon the terms and conditions hereinafter stated, NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants and agreements herein contained, and other valuable considerations, Lessor does hereby grant and lease unto Lessee, and Lessee does hereby hire and take from Lessor, certain premises, facilities, rights, licenses, services and privileges in connection with and on the Airport, as follows, to-wit: ARTICLE I - PREMISES A. PREMISES LEASED. The Lessor does hereby lease to the Lessee that space as marked as enclosed on Exhibit "A" attached hereto and made a part hereof at the Marathon Airport located in Marathon, Monroe County, Florida, in accordance with the terms and conditions as set forth in this Agreement. B. USE OF THE AIRPORT. Lessee shall be entitled to use, in conunon with others authorized to do so, of the Airport and appurtenances, together with all facilities, equipment, 'improvements and services which have been or may hereafter be provided at or in connection with the Airport for common use, in the operation of a transportation system by aircraft for the carriage of persons, property, cargo, mail and related purposes (hereinafter referred to as Air Transportation', which use without limiting the generality hereof, shall include: 1. the handling, ticketing; billing and manifesting of passengers, baggage, cargo, property and mail in Air Transportation by Lessee. 2. the landing, taking off, flying, taxiing, towing, parking, loading and unloading of Lessee's aircraft, or other equipment operated by Lessee, used in the operation of scheduled, special and charter flights, including without limiting the generality hereof, the right to load and unload Lessee's aircraft adjacent to Lessee's temporary terminal building, upon approval of the Director of Airports. 3. the loading and unloading of property, cargo and mail at said Airport by such motor vehicles or other means of conveyance as Lessee may require in the conduct of Air Transportation, with the right to designate the particular carrier or carriers who shall regularly transport Lessee's property, cargo and mail to and from the Airport. C. SPACE ADJACENT TO TERMINAL BUILDING. Lessee is hereby granted non-exclusive use, in common with others, of such space and facilities as may be designated by Lessor in or adjacent to said Terminal Building consisting of a ground area to permit the taxiing, servicing, loading and unloading of Lessee's aircraft, space for reasonable amount of apron equipment, loading gates, and lighting for loading ramps and for other areas adj acent to the Terminal Building and used by passengers. Lessee may use such space and facilities in the Terminal Building with respect to which it is granted the non-exclusive use hereunder, subj ect to reasonable rules and regulations of Lessor as to the use of such space and facilities, for any or all purposes in connection with or incidental to its business of Air Transportation, including, without limiting the generality hereof, the handling, ticketing, billing and manifesting of passengers, baggage, cargo, property and mai 1 and the installation, maintenance and operation of radio and other communications equipment and facilities, and meteorological and navigation equipment and facilities. 2 D. PARKING SPACE. Adequate and reasonably convenient vehicular parking spaces shall be provided by Lessor at a location selected by Lessor, where it will not interfere with operations at the Airport, for the use of Lessee and its employees. E. RIGHT OF INGRESS AND EGRESS. Lessee's employees, agents, passengers, guests, patrons, suppliers and furnishers of service shall have the right of access to the premises referred to in Sections "A" to "D" inclusive. ARTICt.E II - TERM This lease and all rights herein granted Lessee shall become operative and effective April 15, 1989, and shall end on the 30th day of September, 1989, unless sooner terminated as hereinafter provided. ARTICLE III - RENTALS AND FEES Lessee agrees to pay Lessor at such places as Lessor may designate for the use of the premises, facilities, rights, licenses, services and privileges granted hereunder, the following rentals, fees and charges, all payable in monthly installments covering the ensuing calendar month. In the event that the commencement of termination of the term with respect to any of the particular premises, facilities, rights, licenses, services, and privileges as herein provided falls on any date other than the first or last day of a calendar month, the applicable rentals, fees and charges for that month shall be paid for said month prorata according to the number of days in that month during which said particular premises, facilities, rights, licenses, services and privileges were enjoyed; and Lessor shall, following the end of each calendar month, transmit to Lessee a statement of the rentals, fees and charges incurred by Lessee during said month as hereinafter provided, and the same shall be paid by Lessee within thirty (30) days after receipt of such statement. A. RENTAL WITH RESPECT TO SPACE IN THE TERMINAL. Rental of such space herein leased to Lessee as shown on Exhibit "A" attached hereto and made a part hereof, shall be at the following rates payable monthly the first of said payments to be due the 3- _ .-..' "_'__"___C.~'__"_'" _....___ _n__.~ _~_""'____' .__ '_"'_'_" ......._. .... _____..... _~..___..... __~ .... ~___.. ___.. "__"__ . ls~ day of ~, 1989, and one of said monthly payments to become due and payable on the first day of each and every month thereafter during the term of this Lease. 1. 247 square feet of ticket counter space at $12.62 per square foot per annum. 2. 120 square feet of office/storage space at $8.41 per square foot per annum. 3. 672 square feet of covered terminal area at $7.01 per square foot per annum. 4. A surcharge of $250.00 per month for electrical power, water, and janitorial services. B. LANDING FEES. From and after commencement of the term of this Lease, rentals, fees and charges for the use of the landing area and facilities necessary therefor as granted hereunder, except those which rentals are specifically provided elsewhere, shall be combined in and represented by a landing fee based upon the approved maximum landing weight of the Lessee's Actual Revenue Trip Arrivals at the Airport each month as follows: $.47 per 1,000 pounds of approved maximum gross landing weight. A minimum landing fee of $5.88 will be charged for all aircraft weighing less than 12,500 lbs. gross landing weight. Lessee shall report to the Lessor not later than the 10th day of each month, the Lessee's Actual Revenue Trip Arrivals at the Airport during the preceding calendar month, which shall include the number and type of such arrivals. The number of arrivals so operated, and multiplied by the applicable approved maximum gross landing weights for each type of aircraft, shall determine the weight for which the monthly payment shall be made. The term "approved maximum gross landing weight" for any aircraft as used herein, shall be the maximum gross landing weight approved by the Federal Aviation Administration for landing such aircraft at the Airport herein. (Included in this report will be the total number of passenger enplanement and deplanements for that month). Subject to reasonable rules and regulations adopted by the Lessor, it is expressly agreed that payment of landing fees shall entitle Lessee to the use of the loading apron at or adjacent to the Terminal Building for such reasonable time as may be required 4 by Lessee for the loading and unloading of its aircraft; provided, however, that Lessee shall incur no penalty or charge for additional time resulting from unavoidable delays due to weather conditions, minor mechanical defects or other delays beyond control of Lessee, except when such delays preclude use of the apron by other commercial air carriers that are operating to or from the Airport. Subject to Lessee's rights under Article I hereof, the Lessor reserves the right to designate alternate parking areas if deemed desirable or necessary. Furthermore, in the event the Lessee desires to use the Airport apron and ramp facilities for aircraft storage purposes for more than twenty- four (24) hours prior approval must be obtained from the Lessor who will determine what apron or ramp areas are available for this purpose and the Lessor shall have the right to charge reasonable storage rates as mutually agreed upon between the Lessee and Lessor. c. TAXES AND ASSESSMENTS. Lessee shal~ pay all taxes and assessments which may be lawfully levied by a duly constituted taxing body upon Lessee with respect to its operation at the Airport. The Lessor agrees not to levy any license or permit fee or special assessment on Lessee that would restrict or interfere with the exercise and enjoyment of the rights and privileges granted herein; provided this shall not prevent the Lessor from making charges to Lessee for the use of the Airport, its facilities and services as herein specifically authorized. D. DEFAULT FOR FAILURE TO PAY RENTALS, FEES AND CHARGES In the event Lessee fails to pay any rental on the first of each month, such failure shall be a default of this Lease. Lessor may, at its option, immediately or at any time thereafter, enter into and upon the premises and repossess the premises and expel Lessee and those claiming under it and remove Lessee's property, forcibly if necessary, without being deemed guilty of a trespass and without prejudice to any remedy which otherwise might be used for arrears of rent or preceding breach of covenant; on the re-entry aforesaid, this Lease shall terminate. Further, if Lessee fails to perform any of the other covenants of this Lease and such default shall continue for fifteen (15) days after 5 'notice thereof is given in writing by the County, or fails to correct any violation that shall continue for fifteen (15) days after notice thereof is given in writing by the County, by its agents or attorneys to said Lessee, the County may, at its option, forthwith declare this Lease forfeited, and may immediately re-enter and repossess said leased property. In such case, Lessee shall forfeit all prepaid rents and deposits. Lessor shall also have the right to collect all additional charges which may be owed at the time of eviction. In the event Lessor is obligated to participate in any court proceeding, including at the appellate level, in order to enforce any of its rights under this paragraph or to collect its rentals, fees and charges, Lessor, if successful in pursuing such litigation, shall be entitled to an additional amount in such sum as any District or Circuit Court having competent jurisdiction shall determine as a reasonable attorney's fee. Lessor shall keep the Airport free of obstructions, including the clearing and removal of grass, stones, or other foreign matter, as reasonably necessary and with reasonable promptness, from the runway, taxiway and loading area, and immediately adj acent to such runways, taxiway and loading areas for the safe, convenient and proper use of the Airport by Lessee, and shall maintain and operate the Airport in all respects in a manner at least equal to the highest standards or ratings issued by the Federal Aviation Administration, for airports of substantially similar size and character and in accordance with all rules and regulations of the Federal Aviation Administration and any other Governmental Agency having jurisdic- tion thereof, providing that nothing herein contained shall be deemed to require Lessor to enlarge the landing area, runway, taxiway or other appurtenances of the Airport. Lessee shall not perform any cleaning or maintenance of aircraft except in designated areas under separate lease. No cleaning or maintenance of aircraft shall be performed on Airport runways or ramps. The Lessee shall, at its expense, repair, maintain or replace, as may be required, all plumbing fixtures, electrical incandescent bulbs or fluorescent tubes or other lighting devices located in its exclusive areas within the space leased hereunder. 6 'Lessor, at its cost, shall provide: (a) adequate lighting for the common departure area, vehicular parking spaces, loading ramps, and field area by means of landing lights and beacons, and (b) janitorial services sufficient to keep the common departure area and public and passenger space clean, neat, orderly and sanitary. Determination of adequacy shall be made by Lessor, and the standards shall be at least equal to the standards for airports of similar size and nature. ARTICLE IV - GOVERNMENTAL FACILITIES It is expressly agreed that if funds for the provision, maintenance and operation of the Control Tower or other air navigation aids or other facilities required or permitted by the United States and needed by the Lessee or Lessee's operation at the Airport, which are now, or may be hereafter furnished by the United States, are discontinued by the United States, Lessor shall not be required to furnish said facilities. ARTICLE V - RULES AND REGULATIONS Lessor shall have the right to and shall adopt and enforce reasonable rules and regulations, which Lessee agrees to observe and obey, with respect to use of Airport property; provided that such rules and regulations shall not be inconsistent with this Agreement nor with the safety and with rules, regulations and orders of the Federal Aviation Administration with respect to aircraft operations at the Airport and with procedures prescribed or approved from time to time by the Federal Aviation Administration with respect to the operation of Lessee's aircraft at the Airport. Lessor shall provide Lessee with a copy of such rules and regulations from time to time. ARTICLE VI - CANCELLATION BY LESSOR The Lessor may cancel this Agreement by giving Lessee fifteen (15) days advance written notice to be served as hereinafter provided upon or after the happening of anyone of the following events: 1. The filing by Lessee of a voluntary petition in bankruptcy. 7 2. The institution of proceedings in bankruptcy against Lessee and adjudication of Lessee as a bankrupt pursuant to such proceedings. 3. The taking by a court of jurisdiction of Lessee and its assets pursuant to proceeding brought under the provisions of any Federal re-organization act. 4. The appointment of a receiver of Lessee's assets. 5. The divestiture of Lessee's estate herein by other operation of law. 6. The abandonment by Lessee of its conduct of air transportation at the Airport for a period of thirty (30) days. 7. The default by Lessee in the performance of any covenant or agreement herein required to be performed by Lessee other than failure to pay rentals, fees and charges when due for which provision is made in Article III 0, and the failure of Lessee to remedy such default for a period of thirty (30) days after receipt from the Lessor of written notice to remedy the same; provided, however, that no notice of cancellation, as above provided, shall be of any force or effect of Lessee shall have remedied the default prior to Lessee's notice of cancellation. 8. The lawful assumption by the United States Government or any authorized agency thereof of the operation, control, or use of the Airport and facilities, or any substantial part or parts thereof, in such manner as substantially to restrict Lessee, for a period of at least sixty (60) days, from operating thereon for the carrying of passengers, cargo and property. No waiver of default by the Lessor of any of the terms hereof shall be construed to be or act as a waiver of any subsequent default of any of the terms herein to be performed by Lessee. ARTICLE VII - CANCELLATION BY LESSEE Lessee may cancel this Agreement any time that Lessee is not in default in its payments to Lessor hereunder, by giving Lessor thirty (30) days advance written notice to be served as hereinafter provided, upon or after the happening of anyone of the following events: 1. Issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of the Airport or any part thereof for airport purposes, and the remaining in force of such injunction for a period of at least ninety (90) days. 2. The inability of Lessee to use, for a period in excess of ninety (90) days, the Airport or any of the premises, facilities, rights, licenses, services or privileges leased to Lessee hereunder, because of fire, explosion, earthquake, other casualty, or acts of God or the public enemy, 8 provided that the same is not caused by negligence or willful acts of failure to act on part of Lessee. 3. The default by the Lessor in performance of any covenant or agreement herein required to be performed by the Lessor and the failure of Lessor to remedy such default for a period of ninety (90) days after receipt from Lessee of written notice to remedy same; provided, however, that no notice of cancellation, as provided above, shall be of any force or effect if Lessor shall have remedied the default prior to receipt of Lessee's notice of cancellation. 4. The lawful assumption by the United States Government or any authorized agency thereof of the operation, control or use of the Airport and facilities, or any substantial part or parts thereof, in such a manner as substantially to restrict Lessee, for a period of at least ninety (90) days, from operating thereon for the carrying of passengers, cargo, property and United States Ha i 1. 5. The failure or refusal of the Civil Aeronautics Board to grant Lessee the right to operate into and from said Airport and the issuance by the Civil Aeronautics Board of a final order of suspension, termination or revocation of Lessee's authority to provide service at the Marathon Airport, Monroe County, Florida. Lessee's performance of any part of this Agreement after a default of any of the terms herein by Lessor shall not be deemed a waiver of any rights of Lessee to cancel this Agreement for Lessor's failure to perform. ARTICLE VII - INDEMNITY Lessee agrees fully to indemnify, and save and hold harmless, the Lessor from and against all claims and actions and all expenses incidental to the investigation and defense thereof; based upon or arising out of damages or injuries to third persons or their property, caused by the negligence of Lessee, its agents or employees, in the use or occupancy of the said leased premises, runways, ramps or common areas at the Airport by Lessee; provided, however, that Lessee shall not be liable for , any injury or damage or loss occasioned by the negligence of Lessor, its agents or employees; and provided, further that Lessor shall give to Lessee prompt and reasonable notice of any such claims or actions and Lessee shall have the right to investigate, compromise and defend the same. Lessee agrees to carry and keep in force such insurance with a minimum combined limit for bodily injury and property damage of 9 'no less than $10,000,000. The Lessor shall be named an additional insured and shall be furnished with a Certificate in evidence of the insurance providing for no less than thirty (30) days notice in the event of material change or cancellation. Lessee shall carry this insurance coverage with an insurance company authorized to do business in the State of Florida. ARTICLE IX - QUIET ENJOYMENT Lessor agrees that, on payment of the rent and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably have and enjoy the leased premises and all rights and privileges of said Airport, its appurtenances and facilities granted herein. ARTICLE X - SURRENDER OF POSSESSION Upon the expiration or other termination of this Lease or any renewal thereof, Lessee's right to use the premises, facilities, rights, licenses, services and privileges herein leased shall cease and Lessee shall forthwith upon such expiration or termination surrender the same. ARTICLE XI - DEFINITIONS OF TERMS Whenever the term Federal Aviation Administration is used in this Lease it shall be construed as referring to the Federal Aviation Administration created by the Federal Government under the Federal Aviation Act of 1958, or to such other Federal Government authority as may be the successor thereto or to be vested with the same or similar authority. Whenever the terms "person" and "persons" are used in the Lease, they shall be construed as including individuals, firms, corporations and other legal entities. When, in this Agreement, written approval by Lessor is required, such written approval may be given by the Director of Airports for Lessor. ARTICLE XII - INSPECTION BY LESSOR Lessor may enter upon the premises now or hereafter leased exclusively to Lessee hereunder at any reasonable time for any purpose necessary, incidental to or connected with the performance of its obligations hereunder, or in the exercise of its governmental functions. 10 ARTICLE XIII - ASSIGNMENT AND SUBLETTING Lessee shall not at any time assign this Agreement or any part thereof, nor sublet all or any portion of the leased premises herein without written approval of Lessor passed by resolution of equal solemnity as the passage and execution of this document, which approval Lessor shall not unreasonably wi thhold. The prohibitions above stated include assignment of this Agreement to any corporation with which Lessee may merge or consolidate or which may succeed all or any portion of the business of Lessee. ARTICLE XIV - NOTICES Notices to Lessor provided for herein shall be sufficient if sent by certified mail, postage prepaid, addressed to: Mayor & Chairman of the Board of County Commissioners P.O. Box 1680 Key West, Florida 33041 and notice to Lessee, if sent by certified mail, postage prepaid, addressed to: Airways International, Inc. P.O. Box 1244 Miami, Florida 33266 or to such other respective addresses as the parties may designate to each other in writing from time to time. ARTICLE XV - PARAGRAPH HEADINGS The paragraph headings contained herein are for convenience of reference and are not intended to define or limit the scope of any provision in this Lease. ARTICLE XVI - INVALID PROVISIONS In the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of any such covenant, condition or provision shall in no way 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 or provisions of this Lease. 11 ARTICLE XVII - SUCCESSORS AND ASSIGNS BOUND BY COVENANTS All the covenants, stipulations and agreements in this Lease shall extend to and bind the legal representatives, successors and assigns of the respective parties hereto. ARTICLE XVIII - NON-DISCRIMINATION CLAUSE The Lessee, in exercising any of the rights or privileges herein granted to him, shall not, on the grounds of sex, race, color or national origin, discriminate or permit discrimination against any person or groups of persons in any manner prohibited by Part 15 of the Federal Aviation Regulations, and the Lessor is hereby granted the right to take such action, anything to the contrary herein not withstanding, as the United States may direct to enforce this non-discrimination covenant. ARTICLE XIX - INTERPRETATION OF LEASE Nothing in this Lease shall be construed or interpreted in any manner whatsoever as limiting, relinquishing, or waiving of any rights or ownership enjoyed by Lessor in the Airport property, or in any manner waiving or limiting its control over the operation, maintenance, etc., of Airport property or in derogation of such governmental rights as Lessor possesses, except as is specifically provided for herein. ARTICLE XX The Lessee agrees to accept the leased property in "as is" condition and Lessor shall not be obligated to repair, maintain or renovate same. IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the day and year first above written. COUNTY OF MONROE (SEAL) Attest: By Mayor/Chairman of the Board of County Commissioners of Monroe County, Florida Clerk AIRWAYS INTERNATIONAL, INC. (CORPORATE SEAL) Attest: By President Secretary .;U ..JawoM 70,.. ANP.I.EGAL r BY ~ ffJ i Air ney . a ic. 12 I .....~ .p ,., ,. , I I I f: I ~ ~, ~ I t.) H I ~ ~ I 0 I I ~ I Z I 0 H , ~ ClC I .L.b ~ ~ .. I ~ - ~1 ) E-1 :?; , H 8 I . . . I en I I ,!.a ~ tt :;; I C)-- I ... ii: t: 41 H I ~ ~ , ~ 0 aJ I ~ ;It I IQ 3 I 9 I ,I. ..1 . ,of tUNOM ~ ... ~ , ILl t.) '-I H ~ ~ t 0 ~ I .a. . ... ..: ILl \- ~ I t.) ~ '- H \ ~ ~ ~ 0 b- ., . .1 ,a, ~ .. z \: H' \i I ::c en S en P:: H ~ tIIVHO"" ... . -/ - ..