10. 10/01/2004 to 09/30/2009 08/17/2005ClerkdThe
circuRcoult Danny L. Kolhage
(306) 292-3660 Ott -ice (306) 296-3663 Fax
To: Peter Horton, Airports Director
Attn: Bevette Moore
From: Isabel C. DeSantis, ;lr_p
Deputy Clerk
Date: Tuesday, August 24, 2005
At the BOCC meeting of August 17, 2005 the Board the BOCC approved the
following:
/ Lease Agreement between Monroe County and Federal Express Corporation for
V operations at the Key West International Airport.
Purchase/Service Order No. 04/05-20 between Monroe County and URS to
provide a Wildlife Hazard Management Plan for the Key West International Airport.
Federal Aviation Administration Grant to fund various projects at the Florida
Keys Marathon Airport, Project No. 3-12-0044-021-2005. Grant provides 95% funds for
Terminal Canopy Phase II, Generator for Airport Beacon, and design for construction
and reconstruction of aircraft parking aprons.
Federal Aviation Administration Grant to fund various projects at the Key West
International Airport, Project No. 3-12-0037-027-2005. Grant provides 95% funds for NIP
Phase IV construction, NIP Phase V design, Part 150 update, and Wildlife Management
Plan.
Attached hereto are fully executed duplicate originals of the above documents
for your handling. Should you have any questions concerning the above, please do not
hesitate to contact this office.
cc: County Attorney
Finance
File
qD-Dl6~-()1 0
LEASE AGREEMENT
KEY WEST INTERNATIONAL AIRPORT
Federal Express Corporation
THIS CONTRACT OF LEASE is made and entered into on this 17 f} day of A u-!J- t/ sf,
2005, by and between MONROE COUNTY, a political subdivision of the State of Flonda,.
hereinafter referred to as "COUNTY" and FEDERAL EXPRESS CORPORATION, heremafter
referred to as "FEDEX."
WHEREAS, COUNTY owns an airport known as the Key West International Airport, located
in Key West, Monroe County, Florida, hereinafter referred to as "AIRPORT," and
WHEREAS, FEDEX is engaged in the business of air transportation of cargo and other
property, and
WHEREAS, FED EX 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
FED EX on a non-exclusive basis, 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 FED EX, and
FEDEX does hereby lease from COUNTY, certain premises, facilities, rights, and privileges in
connection with and on the Airport, as follows, to wit:
1. Premises. COUNTY does hereby lease to FEDEX, and FEDEX leases from the
COUNTY, the Air Cargo building presently located at the Airport, measuring one hundred feet by
thirty feet (100' x 30'), and nine thousand, five hundred thirty-five (9,535) square feet of open land
adjacent to the building, and an aircraft apron measuring approximately eight thousand, eight hundred
forty-two (8,842) square feet as indicated on the drawing labeled as Exhibit "A" attached hereto and
made a part hereof.
2. Use of the Airport. FED EX shall be entitled to use, in common with others
authorized to do so, the airport facilities and appurtenances, together with all 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 business for the transportation of cargo and other
property by air.
3. Term. The term of this lease shall be sixty (60) months, commencing October 1,
2004, and ending on September 30, 2009.
4. Rentals and Fees. During the term of this lease, FED EX shall pay to the COUNTY,
rent as follows:
a) the amount of Forty-one Thousand, Four Hundred Twenty-three Dollars and
83/100 Cents ($41,423.83) per annum, plus applicable sales tax, for the area of three thousand (3,000)
square feet, in the existing Air Cargo building, and
b) the amount of Five Thousand, Three Hundred Fifty Dollars and 23/100 Cents
($5,350.23) per annum, plus applicable sales tax, for an area of nine thousand, five hundred thirty-five
(9,535) square feet of open land adjacent to the Air Cargo building, for use for loading, unloading, and
parking of automotive vehicles.
c) the amount of Five Thousand, Eight Hundred Eighty-seven Dollars and 44/1 00
Cents ($5,887.44) per annum, plus applicable sales tax, for an area of eight thousand, eight hundred
forty-two (8,842) square feet of aircraft apron adjacent to the Air Cargo building.
The lease amount agreed to herein may be adjusted annually in accordance with the percentage
change in the Consumer Price Index for all urban consumers (CPI-U) for the most recent twelve (12)
months available.
Rent for items a, b, and c shall be paid in equal monthly installments, all of which shall be due
and payable on or before the first day of each calendar month during which this lease is in effect.
Upon the failure ofFEDEX to pay any installments when due, the COUNTY will be entitled to charge
and collect, and FEDEX will be obligated to pay, a late fee of two percent (2%) of any such amount, if
paid within thirty (30) days of the date due, and five percent (5%) of any such amount, not paid within
thirty (30) days of the date due. Such late fees will be in addition to the amount of rent due. The
acceptance by the COUNTY of the overdue rental installment plus applicable late fees shall cure what
would otherwise constitute a default by FED EX under the terms of this lease. The COUNTY, at its
option, however, may refuse a proffered overdue rental installment and late fees, declare a default, and
proceed according to paragraph 36 of this lease. In the event that any check, draft, or negotiable
instrument by which FED EX has tendered any rent payment is returned to the COUNTY and not
honored, whether for insufficient funds or other reason, the COUNTY will be entitled to charge and
collect, in addition to any applicable late payment fees as provided above, a fee of Twenty-five Dollars
($25.00) for such dishonored instrument. Such penalty fee shall also be in addition to the amount of
rent due. The acceptance by the COUNTY of the rental payment plus any applicable late fee and
penalties following the receipt of a dishonored instrument shall cure what would otherwise constitute a
default under the terms of this lease. The COUNTY, at its option, however, may refuse any proffered
rental installment and applicable late fees and penalties, declare a default, and proceed according to
paragraph 36 of this lease.
5. Security Deposit. In addition to the rent payment as provided above, FEDEX shall
maintain with the COUNTY, the sum deposited, to-wit: an amount of Twenty-five Hundred Dollars
($2,500.00), which the COUNTY will hold as a security deposit. In the event of any breach by
FED EX of any of the terms of this agreement, including any failure to timely pay any rent due, the
COUNTY may draw upon the monies held by the COUNTY as security, to pay and cover any amounts
due and owing from FEDEX.
6. LandinI! Fees. Landing fees shall be assessed at a rate to be established by the
County's 2001 or an approved, updated Rates and Charges Study, subject to an adjustment on each
January 1 st for the term of the lease, in accordance with the percentage change in the CPI-U for the
most recent twelve (12) months available.
The landing fees shall be computed, using the $1.73 rate as an example only, as follows:
$1.73 per 1,000 pounds of approved maximum gross landing weight, with no minimum fee.
FED EX shall report to the Monroe County Board of County Commissioners, not later than the
10th day of each month, FEDEX'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 soo
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operated, 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. FEDEX provides service to Key West, Florida utilizing a Cessna 208
Caravan. While this aircraft is owned by FED EX, it is leased to and operated by Mountain Air Cargo
(MAC) based in Denver, North Carolina. As such, MAC is responsible for all the operating expenses
related to aircraft, including landing fees. Within fifteen (15) days after its receipt of written notice that
MAC is unable to satisfy its obligations hereunder, FEDEX will assume the responsibility for ensuring
that all payments and contractual agreements are maintained, or vacate the premises and this lease shall
be terminated in accordance with paragraph 36.
7. Leasehold Improvements and Use. FEDEX shall have the right to occupy the Air
Cargo building measuring one hundred feet by thirty feet (100' x 30'), and nine thousand, five hundred
thirty-five (9,535) square feet of open land adjacent to the Air Cargo building, plus the aircraft apron,
as indicated on the drawing labeled as Exhibit "A" attached hereto and made a part hereof.
FEDEX has the right during the term 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 FED EX and may be removed by FEDEX prior to or within a reasonable
time after expiration of the term of this agreement; provided, however, that FEDEX shall repair any
damage to the premises caused by such removal. The failure to remove trade fixtures or other personal
property shall not constitute FEDEX a hold over, but all such property not removed within ten (10)
days after FEDEX receives a written demand for such removal shall be deemed abandoned and
thereupon shall become the sole property of the Airport.
FED EX shall cause to be removed any and all liens of any nature arising out of or because of
any construction performed by FEDEX or any of its contractors or 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 ofFEDEX.
FEDEX may only utilize the leased building to provide counter space for members of the
public desirous of using FEDEX's cargo and package services and for the operation of a business
engaged in the transportation of cargo and other property. While premises are leased to FEDEX for
parking, FEDEX shall not park or place automotive vehicles in any space on the premises unless it has
been designated by the COUNTY for parking. The COUNTY shall cooperate with FEDEX in
designating a reasonable number of parking spaces to accommodate FEDEX's business traffic.
8. Common Areas. FEDEX shall have the right to use, in common with others, the
Airport space and facilities to permit landing, taking off, loading, unloading and servicing ofFEDEX's
aircraft, subject to reasonable rules and regulations of COUNTY as to the use of such common spaces
and facilities.
9. Ri2ht of In2ress and E2ress. FED EX, its agents, employees, customers,
suppliers, and patrons shall have the right of ingress and egress to and from the leased premises, which
shall not be unreasonably restricted by the COUNTY.
10. Utilities. FED EX shall be responsible for the payment of electrical service, water
service, and any similar utility services as needed. In addition to rent and other charges, FEDEX shall
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pay a trash collection fee of Two Thousand, Twelve Dollars and 621100 Cents ($2,012.62) per annum,
paid monthly with the rent.
11. Assi2nment. The premises leased hereunder may not be sublet and this lease may not
be assigned without the written consent of the COUNTY.
12. Maintenance of Premises bv FEDEX. FEDEX shall be responsible for and shall
properly maintain the leased premises, and upon the termination of this lease, shall leave the premises
in at least as good condition as at the time of the commencement of this lease, normal use and
occupancy excepted. FEDEX is responsible for and shall properly maintain the security fences and
gates surrounding the leased premises and is also responsible for properly securing any portion of the
premises being remodeled or under construction.
13. Inspection and Maintenance of Premises bv County. 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 FEDEX 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 ofFEDEX 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 FEDEX, 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.
14. Insurance Requirements
a) FEDEX will obtain or possess the following insurance coverages and will
provide Certificates of Insurance to COUNTY to verify such coverage;
Commercial General Liability. FEDEX shall provide coverage for all premises
and operations including Contractual, Products, and Completed Operations, and
Personal! Advertising Injury. The limits shall not be less than;
$5,000,000 Combined Single Limits (CSL) or its equivalent
If split limits are provided, the minimum limits acceptable shall be;
$5,000,000.00 per occurrence,
$500,000 per person,
$100,000 Property Damage
The General Aggregate limit shall either apply separately to this agreement or shall be
at least twice the required occurrence limits.
Business Automobile Liability. FED EX shall provide coverage for all owned,
non-owned and hired vehicles with limits of not less than'
$5,000,000 CSL or its equivalent '
If split limits are provided, the minimum limits acceptable shall be;
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$5,000,000 per occurrence
$500,000 per person
$100,000 Property Damage
Professional Aviation Liability. FEDEX will provide coverage for limits of not
less than $30,000,000.00 CSL, including passengers, or its equivalent.
Worker's Compensation. FEDEX shall provide coverage with limits sufficient
to respond to the applicable state statutes.
Employer's Liability. FEDEX shall provide Employer's Liability insurance with
limits of not less than;
$1,000,000 Bodily Injury by Accident,
$1,000,000 Bodily Injury by Disease, policy limits and
$1,000,000 Bodily Injury by Disease, each employee.
Property Insurance. FEDEX shall provide coverage for all premises governed by
this agreement with limits no less than the Replacement Cost Value of the leased premises and
as a minimum shall include coverages consistent with the latest version of the Special Form as
filed by the Insurance Services Office (ISO) and shall include as a minimum coverage for
claims arising out of Fire, Sprinkler Leakage, Windstorm, Civil Commotion, Lightning,
Sinkhole Collapse, Smoke, Aircraft and Vehicle Damage, Vandalism, Falling Objects,
Explosion and Flood.
b) The Monroe County Board of County Commissioners will be included as
"Additional Insured" on all policies, except for Worker's Compensation.
In addition, the Monroe County Board of County Commissioners shall be named
as loss payee on any property insurance placed on the leased facilities.
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 (30) days prior
notification is given to the COUNTY by the insurer.
d) The acceptance and/or approval ofFEDEX'S insurance shall not be construed as
relieving FEDEX from any liability or obligation assumed under this lease or imposed by law.
e) FEDEX 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 36.
f) Non-Waiver ofImmunity. Notwithstanding the provision of Sec. 768.28,
Florida Statutes, the participation of COUNTY and FEDEX 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.
5
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.
15. Books. Records and Documents. FED EX 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 FEDEX'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 Actual Revenue Trip Arrivals under the
provision hereof will constitute a default by FEDEX of this agreement and the COUNTY may, at its
option, declare this lease terminated. FEDEX retains the right to have its controller or a representative
assigned by its controller to be 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 FEDEX's controller
sufficient time to schedule said presence. Nothing contained within this section waives attorney/client
or attorney work product privilege.
16. Governini! Law. Venue. Interpretation. Costs. and Fees. 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
FEDEX agree that venue will lie in the appropriate court or before the appropriate administrative body
in Monroe County, Florida.
The COUNY and FEDEX agree that, in the event of conflicting interpretations of the terms or a
term of this agreement by or between any of them the issue shall be submitted to mediation prior to the
institution of any other administrative or legal proceeding.
17. Severability. If any term, covenant, condition or provision of this agreement (or the
application thereof to any circumstance or person) shall be declared invalid or unenforceable to any
extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions
of this agreement, shall not be affected thereby; and each remaining term, covenant, condition and
provision of this agreement shall be valid and shall be enforceable to the fullest extent permitted by
law unless the enforcement ofthe remaining terms, covenants, conditions and provisions of this
agreement would prevent the accomplishment of the original intent of this agreement. The COUNTY
and FEDEX agree to reform the agreement to replace any stricken provision with a valid provision that
comes as close as possible to the intent of the stricken provision.
18. Attornev's Fees and Costs. The COUNTY and FEDEX 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.
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19. Bindin2 Effect. The terms, covenants, conditions, and provisions of this
agreement shall bind and inure to the benefit of the COUNTY and FEDEX and their respective legal
representatives, successors, and assigns.
20. Authoritv. Each party represents and warrants to the other that the execution,
delivery and performance of this agreement have been duly authorized by all necessary COUNTY and
corporate action, as required by law.
21. Claims for Federal or State Aid. FEDEX 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.
22. Adiudication of Disputes or Disa2reements. COUNTY and FEDEX 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.
23. 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 FEDEX 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 FEDEX 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 section shall pay all
reasonable expenses incurred by the other party by reason of such participation.
24. Nondiscrimination. COUNTY and FEDEX 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 FEDEX has discriminated against any person, this agreement automatically terminates
without any further action on the part of any party, effective the date of the Court order. COUNTY or
FEDEX agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable,
relating to nondiscrimination. These include but are not limited to: 1) Title VI ofthe Civil Rights Act
of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2)
Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685 -1686),
which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as
amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975; as amended (42 USC ss. 6101-6107) which prohibits discrimination on
the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended,
relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating
to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of
1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of
alcohol and drug abuse 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) Secs. 13-101, et seq., Monroe County Code, relating to
7
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.
25. Covenant of No Interest. The COUNTY and FEDEX 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.
26. 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.
27. Public Access. The COUNTY and FEDEX 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 FEDEX in conjunction with this agreement; and the COUNTY shall have the right to
unilaterally cancel this agreement upon violation of this provision by FED EX. Nothing in this section
waives attorney/client or attorney work product privilege.
28. Non-Waiver of Immunitv. Notwithstanding the provisions of Sec. 286.28, Florida
Statues, the participation of the COUNTY and the FEDEX 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 ofliability coverage, nor shall any
contract entered into by the COUNTY be required to contain any provision for waiver.
29. Privilel!es and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability, workers'
compensation, and other benefits which apply to the activity of officers, agents, or employees of any
public agents or employees of the COUNTY, when performing their respective functions under this
agreement within the territorial limits of the COUNTY shall apply to the same degree and extent to the
performance of such functions and duties of such officers, agents, volunteers, or employees outside the
territorial limits of the COUNTY.
30. Lel!al Oblil!ations 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 thereofby any participating entity, in which case the
performance may be offered in satisfaction of the obligation or responsibility. Further, this agreement
is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or
statutory duties of the COUNTY, except to the extent permitted by the Florida Constitution, State
Statute, and case law.
31. Non-Reliance bv 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
8
FEDEX agree that neither the COUNTY nor FEDEX or any agent, officer, or employee of either shall
have the authority to inform, counsel, or otherwise indicate that any particular individual or group of
individuals, entity or entities, have entitlements or benefits under this agreement separate and apart,
inferior to, or superior to the community in general or for the purposes contemplated in this agreement.
32. Attestations. FEDEX agrees to execute such documents as the COUNTY may
reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free
Workplace Statement.
33. No Personal Liabilitv. 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. 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.
35. Section Headin2:. Section headings have been inserted in this agreement as a matter
of convenience of reference only, and it is agreed that such section headings are not a part of this
agreement and will not be used in the interpretation of any provision of this agreement.
36. Default. Unless the COUNTY has accepted a rental installment after it has
become due together with any applicable late payments and penalties, the failure to pay rental
installments when due shall constitute a default under the terms of this lease. The failure to pay any
other charges or fees when due under this lease shall constitute a default. Further, the failure of
FED EX to perform any other of the covenants of this lease, which failure shall continue for a period of
fifteen (15) days, or for such longer period oftime as may be reasonably required to rectify said failure
through the exercise of prompt, diligent and continuous action, after notice thereof is given to FEDEX
in writing by the COUNTY, shall also constitute a default under the terms of this lease. In the event of
a default, the COUNTY may, at its option, declare the lease forfeited and may immediately re-enter
and take possession of the leased premises and this lease shall terminate. If it shall be necessary to
employ the services of an attorney in order to enforce its right under this paragraph, or to collect any of
its rentals, fees, or charges due, the COUNTY shall be entitled to reasonable attorney's fees.
37. CANCELLATION OF LEASE. The COUNTY may cancel this lease agreement by
giving FEDEX sixty (60) days advanced written notice upon the happening of any one of the following
events: the appointment of a receiver ofFEDEX's assets; the divesting ofFEDEX's leasehold estate
by other operation oflaw; the abandonment by FED EX of its air cargo transportation business at the
Airport for a period of sixty (60) days. By the end of the sixty (60) day notice period, FEDEX shall
have vacated the premises and the COUNTY may immediately re-enter and take possession of the
same. Ifit is necessary to employ the services of an attorney in order to enforce the COUNTY's rights
under this paragraph, the COUNTY shall be entitled to reasonable attorney's fees.
38. FAA REQUIREMENTS. The parties shall comply with FAA Required Lease
Clauses, which are listed in Exhibit C, attached hereto and made a part hereof.
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39. 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 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 of the
airport tenant's employees, agents, invitees, or licensees has committed 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
10
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 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 of two 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 of the 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 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.
11
(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.
40. Hold Harmless: Indemnification: Defense: Release: Survival. Notwithstanding any
minimum insurance requirements prescribed elsewhere in this agreement, FED EX 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
ofFEDEX 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 ofFEDEX or any of its employees, agents,
contractors or other invitees, or (C) FEDEX'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 FEDEX). 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.
12
IN WITNESS WHEREOF, the parties have caused this lease to be executed this 17 -1/, day
,2005.
OLHAGE, CLERK
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By ~~C. ~9~
Deputy Clerk
By
.L);a >n ~~
Mayor/Chairman
FEDERAL EXPRESS CORPORATION
Witness
'9PI:J.UUL tJj~L
j 4 Witness
By
(DCT Rev. 6/912005)
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EXHIBIT 'e'
RECEIVED
,.
DEe 23 1993
AIRPORTS J OMB
FAA RBQUIUD LJWlZ CUDSZ8
1. This lease shall be subject to review and re-evaluat!on
at the end of each year period, by the airport
nwnar and the rent may be adjusted accordinq to their
ac~ion, not to Qxcaadthe Consumer Price Index rate
durinq-th. last ____ month period, or;
Land 1.... improvement. will be IIppraised every 5 year.
and the adju.~.d rental vill be based on normally 10-12
percent of appraised valu.. If dlaputGd, leasor
obtGino appralaal at hi. expanse an4.l...or/l.....
equally share expens. for review appraiaal ~at
..~bli.b.. fair .arke~ value.
2. The tenant for himself, hi. personal representatives,
~U~~8Hsors in interest, and a..igns, as a pGr~ of tho
consideration hereof, do.. hereby covenAnt and Avree
that (1) no person on the gruwlds or race, color, or
national origin shall be excluded trum participation
in, denied the benerits ot, or be otherwlB8 subjected
to discrimination in the use ot said faoilities, (2)
that in the construction ot any improvements on, over
or un~er such land and the furniShing ot services
thereon, no person on tha grounds of race, color, or
national origin shall be excluded from participation
in, denied the benefits or, or be otherwise subjected
to discrimination, (3) that the tenant shall use the
premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, SUbtitle A,
Of rice of the Secretary I Part 21, Nondiscrimination in
Federally-assisted programs or the Department of
Tr~"Rpnrt~tion-Etfectuation of Title VI ot the civil
Rights Act of 1964, IInd as said Raqulations may be
amended.
That in the .vent of breach of any of the abovQ
nondi~crimina~ion oovenants, Airport Owner shall have
~h. right to tcrmin~t. ~he lea.. and to re-enter and as
if eaid lense had never beon ~dc or iocuod. The
provision .h~ll not be effec~ive until tho procedu~..
of Title 49, Code of Fed.r~l Re9ulAtion~, ~~r~ 21 are
!ulluwtlcl amI completed includinq eucercis. or oxpira~ion
.ot appeal rlght.ti.
). ~t Shall be a condition or this lealje, Ulal. Lb. leau50r
reserves unto itself, its successors and assi9n~1 lor
the use ana benetit ot the pUbl~C, a r19ht or r~i9ht
for the passaqe of aircraft in the airspace above the
surface of the real property hereinatter described,
toyether with the rlqht to cause in said airspace SUCh
no se as may be inherent in the operation of aircraft,
-..
now known or bereatter uSed, tor navigation ot or
fliqht in the said airspace, and for us. ot.said
airspace for landing on, taking off .from or operating
On the airport.
That the Tenant expressly agrees for itself, its
successors and assians, to restrict the height of
structures, Object. of natural growth and other
obstructions on the hereinafter described real property
to Auoh a hQiqh~ ao aa to comply with Federal Aviation
Regulations, Part 77.
That tho La.aoo expr..aly agr... ~or'it8elf, ita
DUCOOaGO~. and a.. 19ft., to pr.v.n~ any uae of ~.
harainAtter describad real propor~y which woul4
int.~~.~. ~ith or ~dY.rs.ly attoot the operation or
maintenmnce at the airpore, or oehcrwiDc conotituto an
airport hazArd.
4. This leAse And all provisions hereof are Bubjece And
l:Suborc.JlnClte tu the Lerma and conditions at tho
instruments and document. under whlcb Ulet Airport OWner
acquired the subject property ream the Unlt.ed SLatti8 or
Ame~iea and Shall be given only such .ttact as will net
conrllct or be inconsistent with the terms and
conditions contained in the lease or said lands tram
the Airport Owner, and any existinq or subsequent
amendments thereto, and are subject to any ordinances,
rules or requlations which have been, or may bereatter
be adopted br the Airport OWner pertaining to the
A rport.
5. Notwithstandinq anythinq herein contained that may be,
or appear to be, to the contrary, it is: expressly
understood and agreed that the riqhts granted under
this agreement are nonexclusive and the Lessor herein
rQsarvaa the right ~o grant similar privileges to
another LP.ss'='E1! or other I,A~~AA!Il nn nt.hAr parts of the
airport.
RECEIVED
DEe 23 1993
AIRPORTS 10MB
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