10/09/1991
A G R E E MEN T
-
THIS CONTRACT OF LEASE is made and entered into on the ~~
of _(Po-+-O b~
, 1991, by and between the COUNTY OF
. - ......
day
MONROE, STATE OF FLORIDA, a political subdivision of the State of
Florida, hereinafter referred to as Lessor, and AIR SUNSHINE, a
corporation organized and existing under the laws of the State of
Florida, whose mailing address is P.O. Box 22237, Ft. Lauderdale,
Florida, hereinafter referred to as Lessee.
WIT N E SSE T H:
'-A.-
WHEREAS, Lessor owns an airport known as the Marathon
Airport located in Key Vaca, Marathon, Monroe County, State of
Florida, hereinafter called the "AIRPORT", and
WHEREAS, Lessee is engaged in the business of air transpor-
tation 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, f~~t~~~~~~~~ts, licenses, services and
privileges in connect4,.onwith \~i1H:1J on the Airport, as follows,
to-wit:
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A.
ARTICLE I - PREMISES
...
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
common with others authorized to do so, of the Airport and
appurtenances,
together
with
all
facilities
equipment,
improvements and services which have been or may hereafter be
provided at or in connection with the Airport for common use, in
the operation of a 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.
the landing, taking off, flying, taxiing,
towing, parking, loading and unloading of
Lessee's aircraft, or other equipment oper-
ated 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 leased space in
the terminal building, upon approval of the
Director of Airports.
the loading and unloading of property, cargo
and mail at the Marathon 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.
2.
3.
2
C. SPACE ADJACENT TO TERMINAL BUILDING. Lessee is hereby
WlIlo.
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 mail and the installa-
tion, maintenance and operation of radio and other communications
equipment and facilities, and meteorological and navigation
equipment and facilities.
D. RIGHT OF INGRESS AND EGRESS. The right of ingress to
and egress from, but not the use of, except as provided in this
Lease, the premises and facilities referred to in Sections "A" to
"D" inclusive above, for Lessee, its employees, agents, pas-
sengers, guests, patrons, its suppliers of materials or fur-
nishers of service or their said property except as herein
contained shall be deemed to limit Lessor's right to impose
charges upon ground transportation services.
3
ARTICLE 11 - TERM
..
This lease and all rights herein granted Lessee shall become
operative and effective October 1, 1991 and shall end on the 30Eh
day of Sep-tember. 1992, unless sooner terminated as hereinafter
provided.
ARTICLE III - RENTALS AND FEES
L~ ~ _~
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 fol-
lowing rentals, fees and charges, all payable in monthly install-
ments 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 ren-
tals, fees and charges for that months 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 ADJACENT TO THE TERMINAL.
~H' 1 'WI"
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
4
due the 1st day of October, 1991, 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. 196 square feet of counter space at
$16.07/sq. ft./annum
2. $275 per month to cover the cost of
utilities provided.
In addition, the Lessee shall maintain the $2,500 security
deposit previously deposited in connection with the predecessor
lease.
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 therefore 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 I s
Actual Revenue Trip Arrivals at the Airport each month as fol-
lows:
$.60 per 1,000 pounds of approved maximum
gross landing weight. A minimum landing fee
of $7.50 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 I 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.
5
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 enplanements 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
by Lessee for the loading and unloading of its aircraft; pro-
vided, 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 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 shall pay all taxes and
assessments which may be lawfully levied by a duly constituted
6
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 facili-
ties and services as herein specifically authorized.
D. DEFAULT FOR FAILURE.T~ PAY rRENTALS~ 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 hereby leased or any part thereof and
in the name of the whole, and repossess the same of Lessor's
former estate, and expel lessee and those claiming by, through or
under it, and remove its effects, forcibly if necessary, without
being deemed guilty of 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 notice thereof is given in
writing by the County, or failure to correct any violation shall
continue for fifteen (15) days after notice thereof is given in
writing by the County, or 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, and any of the security deposits prepaid hereunder
shall be forfeited by the Lessee, and in no way shall effect the
7
collection of any other damages which may be due the County as a
result of any of said defaults. In the event Lessor is obligated
to participate in any court proceeding 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 neces-
sary and with reasonable promptness, from the runway, taxiway and
loading area, and immediately adjacent 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 juris-
diction 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. Further, it is specifi-
cally agreed that 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
8
tubes or other lighting devices located in its exclusive areas
within the space leased hereunder. Lessor, at its cost, shall
also provide and supply adequate lighting for the common depar-
ture area, vehicular parking spaces, loading ramps, adequate
field lighting on and for the Airport, including without limiting
the generality hereof, landing lights and beacons. Lessor shall
also provide janitorial services necessary to keep the common
departure area, the public and passenger space, and vehicular
parking spaces and the landing field of the Airport at all times
clean, neat, orderly, sanitary and presentable. Determination of
adequacy, as used throughout this ARTICLE 111, shall be made
solely by Lessor but shall be at least equal to the standards for
airports of substantially 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 and/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 furnished 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
9
aircraft operations at the Airport and with procedures prescribed
or approved from time to time by the Federal Aviation Adminis-
tration 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
... -v
The Lessor may cancel this Agreement by giving Lessee
fifteen (15) days advance written notice to be served as here-
inafter provided upon or after the happening of anyone of the
following events:
1. The filing by Lessee of a voluntary petition
in bankruptcy.
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 D, 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
10
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 passen-
gers, cargo and property.
No waiver of default by the Lessor of any of the terms,
covenants or conditions hereof to be performed kept and observed
shall be construed to be or act as a waiver of any subsequent
default of any of the terms, covenants and conditions herein
contained to be performed, kept and observed by the Lessee shall
not be deemed a waiver of any right on the part of the Lessor to
cancel this lease for failure by Lessee to so perform, keep or
observe any of the terms, covenants or conditions of this Lease.
ARTICLE 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 herein-
after 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
11
the public enemy, 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 passen-
gers, cargo, property and United States Mail.
5. The failure or refusal of the Civil Aero-
nautics 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 Key West International Airport,
Monroe County, Florida.
Lessee's performance of all or any part of this Agreement
for or during any period or periods after a default of any of the
terms, covenants and conditions herein contained to be performed,
kept and observed by Lessor, shall not be deemed a waiver of any
right on the part of Lessee to cancel this Agreement for failure
by Lessor to so perform, kept or observe any of the terms,
covenants or conditions hereof to be performed, kept or observed
by the Lessor shall be construed to be or act as a waiver by
Lessee of any subsequent default of any of the terms, covenants
12
and conditions herein contained to be performed, kept and ob-
served by the Lessor.
ARTICLE VIII - INDEMNITY
--"
Lessee agrees fully to indemnify, and save and hold harm-
less, 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 premi-
ses, runways, ramps or connnon 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, compro-
mise and defend the same.
Lessee agrees to carry and keep in force aircraft and
airport liability insurance with a minimum combined limit of
liability for bodily injury and property damage of no less than
$25,000,000.00 The Lessor shall be named an additional insured
and will 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 adverse to Lessor or cancellation.
Lessee shall carry its insurance coverages with insurance
companies authorized to do business in the State of Florida.
13
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
T ..1
Upon the expiration or other termination of this Lease or
any renewal thereof, Lessee's right to use the premises, facili-
ties, 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
1 .
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 perfor-
14
mance of its obligations hereunder, or in the exercise of its
governmental functions.
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 pre-
mises herein without written approval of Lessor passed by resolu-
tion of equal solemnity as the passage and execution of this
document; provided, however, that Lessor shall not unreasonably
withhold approval. The prohibitions above stated include assign-
ment 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
MONROE COUNTY COURTHOUSE
p. O. Box 1980
Key West, Florida 33040
and notice to Lessee, if sent by certified mail, postage prepaid,
addressed to:
A IR SUNSHINE
P.O. Box 22237
Ft. Lauderdale, Florida 33335-2237
or to such other respective addresses as the parties may desig-
nate to each other in writing from time to time.
ARTICLE XV - PARAGRAPH HEADINGS
..... 1 ....
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.
15
ARTICLE XVI - INVALID PROVISIONS
- -.....,
In the event any covenant, condition or provision herein
contained is held to be invalid by any court of competent juris-
diction, the invalidity of any such covenant, condition or
provision shall in no way effect 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.
ARTICLE XVII - SUCCESSORS AND ASSIGNS BOUND BY COVENANTS
,. .. I&. 11.. L . ... M
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 no on the grounds of 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 pro-
perty, or in any manner waiving or limiting its control over the
16
operation, maintenance, etc., of Airport property or in dero-
gation 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 he executed as of the day and year first above written.
COUNTY OF MONROE, STATE OF FLORIDA
BYHa~;;:a::::~~~~
County Commissioners of Monroe
County, Florida
(SEAL)
Attest: DANNY L. KOLHAGE, CLERK
ByL2if~/f
AIR SUNSHINE
By
, /" ~
;'1/{&~ )~{t~-k;-_:
~re's~ ent
(CORPORATE SEAL)
Attest:
By
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ecretary
ANAPf:~;,'!?'":r~Jy
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