11/01/1989
,~
RESOLUTION NO.
616
-1989
A RESOLUTION BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE MAYOR TO APPROVE THE
LEASE AGREEMENT BETWEEN MONROE COUNTY
AND AIRWAYS INTERNATIONAL, INC., CONCERNING
SPACE 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 approve the lease agreement between
Monroe County and Airways International, Inc., concerning space
at the Marathon Airport, a copy of same being attached hereto.
PASSED AND ADOPTED by the Board of County commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on this I S-t day of ~"p~b:u:., 1989, A.D.
BOARD OF COUNTY COMMISSIONERS
OF MONR,,' !~., CO/~~.dC' ;-ORIDA /' _.
rY";1G{/ / E:.:c'-c/~Y
By /, { ./ \ , ]
(/ Mayor/Chairman
(Seal)
Attest: DANNY L. KOLHAGE, Clerk
v:!2-L ~4J~
APPROVED ~S TO FORM
AND ~EGAL JSUFFICIENCY.
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By .' .
Attorney's Office
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AGREEMENT
THIS CONTRACT OF LEASE is made and entered into on the I~~
day of BfJv&tMbeA- , 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
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 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.
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.
2.
3.
granted non-exclusive use, in common with others, of such space
C. SPACE ADJACENT TO TERMINAL BUILDING. Lessee is hereby
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,
and mai I
and
property
the
cargo,
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.
ARTICLE II - TERM
This lease and all rights herein granted Lessee shall become
operative and effective October I, 1989, and shall end on the
30th day of September, 1991, 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
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1st day of October, 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 $14.51
per square foot per annum.
120 square feet of office/storage space at $9.67
per square foot per annum.
672 square feet of covered terminal area at $8.06
per square foot per annum.
2.
3.
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:
$.55 per 1,000 pounds of approved maximum gross landing
weight. A minimum landing fee of $6.88 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 enp1anements 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
facili ties 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 shall 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 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 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
Mail.
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 enj oy 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
withhold.
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 t condition or provision does not materially prejudice
either Lessor or Lessee in its respective rights and obligations
contained in the valid covenants t 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.
By
of
(SEAL)
A p~ L. ~Q~Gjl ~~erk
ttest: ~-
4 #0f~~
ler
AIRWAYS INTERNATIONAL, INC.
(CORPORATE SEAL)
ByCl:? O)~ ~
President
12
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