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LEASE AND OPERATING AGREEMENT (2) , ,\ ,t I I LEASE AND OPERATING AGREEMENT This Lease and Operating Agreement (the "Agreement"), is made and entered into thi s /!l!!' day of yw\u...k. 1991, by and between the City of Clearwater, a Florida municipality, hereinafter called the "City", and Sun coast Aviation, Inc., hereinafter called the "Lessee". This agreement represents the whole and entire agreement between Lessee and City and the fOllowing articles, and attachments, are herein incorporated: ARTICLES o Article I o Article II o Article III o Article IV o Article V o Article VI o Article VII o Article VIII o Article IX o Article X o Article XI o Article XII o Art i c'l e X I II o Article XIV o Article XV o Article XVI Term Aviation Operations Area Rights, Obligations, and Minimum Operating Standards Appurtenant Privileges Payments Utilities Insurance Indemnification Disclaimer of Warranties Lessee as Independent Contractor Assignment Non-Discrimination Requirements of the United States Default and Termination Miscellaneous Provisions Leasehold Improvements ATTACHMENTS Attachment A Attachment B Attachment C Attachment D Attachment E Drawing of Leased Premises Enclosed Hangar Lease Form Covered Shade Hangar Lease Tie-Down Hangar Lease Form Rate Increase Letter //f,v'L /// tj /J/V - . . ,1 .. -./ ,I' ,.~.C::/~ I,.., ~//'- c. t~ ,:~( '....-~ c ~,c/ 4-. , ,/ . " / ,- V/u..,-:1 /.. ,.-5 '..V I '. ~... /' .,r /' ~ " / ,.,,(l. ;:;<<'..;.... (/~>'.. - 1 - J ..~ - " ,:', r , I .", I I WIT N E SSE T H: WHEREAS, City has jurisdiction over the operation and maintenance of and improvements to the City-owned 1 and with in the territori all i mits of the City of Clearwater, now known as the "Clearwater Airpark" (the "Airpark"); and WHEREAS, aeronautical services are essential to accommodation of private and commercial aviation at the Airpark; the and proper WHEREAS, City desires to make such services available at the Airpark through independent operators and Lessee desires to provide such services as an independent operator. NOW, THEREFORE, in consideration of the Premises and the mutual covenants contained in this Agreement, the parties hereby agree as follows: - 2 - , ~ ~\. l I I ARTICLE I TERM The initial term/of this Agreement shall be for a period of 60 months, commencing on the ~day of ~~'f ' 1991 and continuing through the 3Htf day of ~/4- , 19J./L (the "Termination Date"), unless earlier'tt.: terminated under the provisions of this Agreement. The... ~erm of this I_ease~, sha 11 be for a peri od of_ ~Q.JIIonths, beg; nning on ~e L.:=-day of '!fo.< L , 199., and endi ng on the ~day of ""^-1LC.tf , 19 . Tessor extend a fi rst option to Lessee to renew this Lease. Agreement, or an additional five (5) year 1 ease peri od, upon the same terms and conditions subject to Lessor and Lessee negotiating in good faith a new rental rate schedule within the last 60 days of this said lease term, and subject to Lessee not being in default under the terms and provisions of this said Lease. ARTICLE I I AVIATION OPERATIONS AREA City hereby leases to Lessee, and Lessee hereby leases from City, all facilities and improvements located on the following property, identified and shown on Exhibit A hereto (the Aviation Operations Area): A. Aviation Operations Area Described as follows: Commence at the center of Section 12, Township 29 South, Range 15 East; thence run North 89019'10" West, along the East-West centerline of said Section 12, 50.00 feet, to a point on the w~st ri ght-of -way 1 i ne of Hercu 1 es Avenue; thenoce run South o 16"59" West, 1190.00 feet; thence run North 89 20'18" West, 243.34 feet; thenc~ run North 25013'17" West, 1869.75 feet; thsnce run South 89 21'07" East, 237.84 feet; the~ce run South 00 38'53" West, 95.00 feet; thence run South 20 51'07" East, 110.00 feet; thencs run North 82038'53" East, 65.00 feet; thsnce run South 28 51' 07" East, 90.00 feet; thence run North 62 38' 53" East, 80.00 feet; thence run South 29057' 09" East, o 132.28 feet; thence run South 03 51'07" East, 150.00 feet; thence run South 89021'07" East, 515.00 feet, to be Point of Beginning. - 3 - I , B. Improvement on said real property as follows: One (1) covered "T" hangar building, four (4) multiple bay shade hangars, all hard stand and sod aircraft tie-down parking spaces; a 2214 square feet (MOL) operations building; one maintenance hanger of 8,487 feet (MOL); two (2) ten thousand (10,000) gallon underground fuel tanks and pumps; and facil it i es related to or dependent upon the descri bed improvements. In the event of any discrepancy between the legal descriptions contained in paragraphs A and B and the graphic depiction of Exhibit A, the legal description shall control. The aviation operational area and the improvements thereto are referred to as the "Premises." C. Maintenance and Repair: 1. Lessee shall maintain leased structures in their present condition. Upon the Lessor refurbishing, replacing or renovating the structures to first class condition, the Lessee agrees to maintain in a first class condition and in a good state of repair, at all times, all leased grounds and structures, including all interior maintenance excluding items maintained by the City and defined in Article IV, Section B of this Agreement. For the purpose of this Agreement, Aviation Operations Area interior maintenance is defined as the maintenance and keeping in good repair of the interior walls and ceilings, painting, repairs or alterations of plumbing, doors, window or door glass, electrical fixtures, air conditioning, water fixtures, locking devices and all other fixtures; janitorial services such as sweeping, dusting, mopping and waxing floors; re1amping; interior and exterior washing of windows; and the arrangement for sanitary removal of trash from the premises. The Lessee shall not be responsible for the maintenance of the structural integrity of the leased structures with the exception of the (1) aboveground portion of the fuel pumping system; (2) existing sign maintenance. Underground fuel tanks and all public and common or joint use areas of the Airpark, including the Air Operations Area, shall be the responSibility of the Lessor. D. Lessee's contact with the City in connection with the property herein leased shall be with the City Staff Member designated by the City Manager, subject to the terms and provisions of this Lease, which may not be waived, modified, or amended except in writing executed by the City. E. The parties agree that the Lessor has the ri ght to relocate st ructures on the premi ses at no cost to the Lessee. There sha 11 be no diminution of leased spaces and tie-downs. - 4 - <~ , I ARTICLE III RIGHTS, OBLIGATIONS, AND MINIMUM OPERATING STANDARDS Lessee agrees to provide, and is herby granted the right to conduct, the following aeronautical activities at The Clearwater Airpark: 1. Rental of hangar and tie-down space 2. Sale of aviation petroleum products 3. Aircraft rental 4. Repair and maintenance of airplanes In addition to these activities, Lessee is also granted the right, but is not required to conduct, the following aeronautical activities at The Clearwater Airpark: 1. Aircraft sales 2. Flight instructions 3. Flying club(s) 4. Aerial surveying 5. Sightseeing 6. Air Taxi operations 7. Air Freight operations 8. Charter operations The standards established herein set forth the mlnlmum operating standards to be met as a condi t i on for the ri ght to conduct any aeronaut i ca 1 act i vi ty or endeavor at the Ai rpark. Lessee agrees that a" aeronaut i ca 1 activities authori zed under thi s agreement wi 1 1 be performed in accordance wi th the minimum operating standards established herein, including such reasonable amendments as may be adopted by City from time to time. The Lessee shall be responsible for the enforcement of the provlslons contai ned in the enclosed hangar, shade hangar and tie down hangar 1 eases (EXHIBITS B, C, D). A. Definitions 1. Aeronauti cal Activity Sha" mean any activity whi ch involves, makes possible, or is required for the operation of aircraft or which contributes to, or is required for, the safety of such operations and shall include, but not by way of limitation, all activities commonly conducted at airports, such as charter operations, pilot training, aircraft rental, sightseeing, aerial photography, surveying, aircraft sales and service, sale of aviation petroleum products (whether or not conducted in conjunction with other included activities), repair and maintenance of aircraft, sale of - 5 - \ , I , aircraft parts, sale and maintenance of aircraft accessories, radio, communi cat i on and navi gat ion equi pment, fl yi ng cl ubs and any other activity which, because of its direct relationship to the operation of aircraft, can appropriately be regarded as an "aeronautical activity". Aeronautical activity shall not include scheduled air carrier operations, glider training and operations, aerial advertising, crop dusting, or ultra light operations, which activities are expressly prohibited. 2. Agreement - Shall mean the Lease and Operating Agreement. 3. Air Operations Area - Shall mean those portions of the Airpark provided and made available by City for aircraft and related operations, and shall include aircraft runways, taxiways, ramps, aprons and aircraft parking spaces, and areas directly associated therewith which are not leased by Lessee or any other tenant at the Airpark. 4. Airpark _ Shall mean the Clearwater Airpark, owned by the City. 5. City _ Shall mean the City of Clearwater, Florida, and any of the appointed officials of the City who are vested with the specifiC authority to govern the activities of the Airpark. 6. Airpark Tenant - Shall mean any person, firm, or corporation sub-leasing property or facilities at the Clearwater Airpark from the Lessee. 7. Fixed Base Operator (FBO) - Shall mean any person, firm, general or limited partnership, corporation, trust or association leasing or using any land or facility at the Airpark, for the purpose of conducting one or more aeronaut i ca 1 activities. For purposes of thi s Agreement, the Lessee and the FBO are the same entity. 8. Master Pl an - Shall mean the master pl an as adopted by the City Commi ssi on on April 11, 1989, and any subsequent amendments approved by the City Commission, and the scaled dimensional layout of the entire Airpark, indicating current and proposed usage for each identifiable segment as approved by the Lessor and the State of Florida. 9. Covered Shade, Enclosed and Tie-Down Lease Agreements - Shall mean the agreement forms supplied by the City and used by the Lessee to sub- lease any covered shade, enclosed or tie-down hanger spaces. 10. Structures - Aboveground buildings, runways, taxi-ways and other objects permanently affixed to the ground. B. Standard Requirements for all Services In providing any of the required services or activities specified herein, Lessee shall operate for the use and benefit of the publiC and shall meet or exceed the following standards: - 6 - , ~.~ ,,: I I 1. Lessee shall furnish service on a fair, reasonable and not unjustly discriminatory basis to all users of the Airpark. Lessee shall furnish good, prompt, and efficient service adequate to meet all reasonable demands for its services at the Airpark. Lessee shall charge fair, reasonable, and nondiscriminatory prices for each unit of sale or service; provided, however, that Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar types of price reductions to volume purchasers. A complete list of all prices to be charged for each service rendered shall be made available to the City prior to the initiation of this lease. Lessee shall inform the City's representative thirty (30) days in advance when changes in such prices are proposed. Increases in shade hanger, T-hanger and tie down rates shall be limited to the same percentage increases of the consumer pri ce index for the previ ous 12 months. The rates in effect as of February 10, 1991 are attached as Exhibit E of this Agreement. 2. Lessee shall select and appoint a full-time manager of its operations at the Airpark. The manager shall be qualified and experienced and vested with full power and authority to act in the name of Lessee with respect to the method, manner and conduct of the operation of the fixed base services. The manager shall be available at the Airpark during regular business hours. During the manager's absence a duly authorized and adequately trained subordinate shall be in charge and available at the Airpark. 3. Lessee shall provide, at its sole expense, a sufficient number of employees to provi de effect i vel y and effi ci ent 1 y the servi ces requi red or authorized by this Agreement. 4. Lessee shall control the conduct, demeanor and appearance of its employees, who shall be trained by Lessee and who shall possess such technical qualifications and hold such certificates of qualification as may be required in carrying out assigned duties. It shall be the responsibility of Lessee to maintain close supervision over its employees to assure a high standard of service to customers of Lessee. 5. Lessee shall meet all expenses and payments in connection with the use of the premi ses and the ri ghts and pri vil eges herei n granted, i ncl udi ng licenses, taxes or permits required by law in the normal course of business. Lessee may, however, at its sole expense and cost, contest any tax, fee or assessment. 6. Lessee shall comply with all federal, state, and local laws, and standards set forth in the Airpark master plan, which may be amended from time to time, and Lessee shall keep in effect and post in a prominent place all necessary or required licenses or permits. 7. It is expressly understood and agreed that, in providing required services pursuant to the Agreement, Lessee shall have the right to choose, at its sole discretion, its vendors and suppliers. - 7 - ~ I I 8. During the term of the Agreement, Lessee shall have the right, at its expense, to place in or on the Premises a sign or signs identifying Lessee. Said sign or signs shall be of a size, shape and design and at a location or locations approved by City. City's approval shall not be withheld unreasonably. Notwithstanding any other provision of the Agreement, said sign(s) shall remain the property of Lessee. Lessee shall remove, at its expense, all lettering, signs and placards so erected on the Premises at the expiration of the term of the Agreement. 9. Lessee shall use the standard hangar/tie-down space lease forms attached as Exhibits B, C, and D for hangar and tie-down space rentals. The standard hanger/tie-down space lease forms may be amended by the Lessee to include such reasonable rules and regulations that the Lessee might deem appropriate, provided that such amendments are not inconsistent with the terms and conditions i ncl uded in the standard hanger /t ie-down space 1 ease forms. Such amendments shall be subject to approva 1 by the City. Copi es of each executed lease agreement shall be made available to the City. Hanger vacancies shall be filled on a "first come, first serve" basis in accordance with a waiting list maintained by the FBO and made available to the Airpark Authority and general publiC upon request. 10. The Lessee shall provide the City with credible evidence as to the Lessee IS techni ca 1 and fi nanci a 1 abi 1 i ty to perform the servi ces of proposed operation before and during the term of this lease. Such evidence of technical and financial ability shall consist of, but not necessarily be limited to, a statement of financial position certified by an officer of the fi rm as to its correctness and revi ewed by the City auditor and other licenses, permits or certificates required by law and applicable to Lessee's proposed operation. In the event of insolvency, voluntary or involuntary bankruptcy which is not promptly discharged, or an arrangement for creditors of the Lessee, the City shall have the option to termi nate thi s 1 ease after thirty (30) days following notice to cure given to Lessee. 11. Lessee shall not do business on the airport premises in any business name other than the name of the business as it appears in this Agreement with the City without written permission by the City. A. Minimum Requirements - Aviation Petroleum and Ramp Services 1. Buildings _ The Lessor shall provide a building to serve as a General Aviation Terminal for use by the Lessee that will contain at least 2,200 square feet of properly lighted space to perform work, office space, storage, a public waiting area that includes indoor restroom facilities, restaurant or appropri ate vendi ng machi nes and a pub 1 i c use telephone . The Airpark Authority shall have the right to conduct regular and special meetings in this building at no cost. 2. Personnel - Lessee shall employ at least two (2) full-time employees properly trained in aircraft fueling and ramp safety procedures. - 8 - I 1 3. Services Lessee shall within the uncontrolled areas adjacent including sale and into-plane delivery other related aviation products. provide aircraft ground guidance to the premi ses, and ramp servi ce, of avi at ion fue 1 s, 1 ubri cants, and Lessee shall provide apron servicing of and assistance to aircraft, including itinerant parking, storage, and tie-down service for both based and itinerant aircraft upon or within facilities leased to Lessee or aircraft parking areas designated by Lessor and described in the lease. Lessee agrees to use the standard Lease form supplied by the Lessor for hangar and tie-down space rental. Lessee additionally agrees to enforce same lease requirements. Customary accommodations for the convenience of users, including passenger and pilot lounge areas, information services and telephone service connections to the Flight Service Station and/or the United States Weather Bureau, pilot accessori es, appropri ate vendi ng machi nes, and renta 1 car servi ces as may be appropriate shall be provided by the Lessee. Lessee shall insure the avail abil ity of an adequate number and type of fire extinguishers, and pieces/units of appropriate ground support equipment (GSE), to meet airport user requirements and all applicable governmental codes. Lessee shall provide, maintain and operate an airport UNICOM providing continuous airport advisory services during the hours set forth in paragraph 7, Hours of Operation. By federal law, Lessee shall be the sole licensed UNICOM operator at the Airpark. 4. Fuel Facilities and Fuel Supply - The City shall furnish at least two (2) leased metered and filter-equipped dispensers, for dispensing 100-octane avi at ion fue 1 from storage tanks havi ng a mi ni mum capacity of 10,000 gallons each. Lessee shall insure the maintenance of pumping equipment in as-is condition and meeting all applicable safety requirements with reliable meteri ng, fi 1 teri ng and groundi ng devi ces subject to independent inspection and with a pumping efficiency capable of servicing aircraft. An adequate supply of 100 octane fuel will be maintained at all times and Lessee will secure and maintain an ongoing contract with a fuel supplier to ensure continuous supply of aviation fuel. Lessee shall be responsible for dispensing equipment on the leased premises regardless of ownership. Automobile fuel may be dispensed at the Airpark under terms and conditions that may be subsequently agreed upon between the City and the Lessee 5. Hours of Operation - The normal operating hours will be from sunrise to sunset. Emergency "on call" service will be provided during off duty hours. - 9 - I , 6. Insurance Coverage Lessee shall obtain and maintain cont i nuous 1 y in effect at a 11 times duri ng the term of the Agreement, at Lessee's sole expense, insurance with total limits in an amount not less than $1 million Combined Single Limit, or equivalent, to include broad form cont ractua 1 1 i abil i ty and the fo 11 owi ng coverages (copi es of a 11 insurance policies shall be on file with the City): Comprehensive General Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Product Liability _ Bodily Injury and Property Damage $ 1,000,000.00 B. Minimum Requirements - Flight Training 1. Personnel - Lessee shall employ Certified Flight Instructors suffi ci ent in number to meet servi ce demands and current 1 Y cert i fi ed by the Federal Aviation Administration, with appropriate ratings to provide ground instruction, private, commercial, and instrument flight training. 2. Aircraft - At least one (1) airworthy, properly equipped instrument single-engine aircraft, owned or leased in writing to the Lessee shall be furnished by the Lessee. 3. Hours of Operation - The normal operating hours for flight training will be from 8:00 a.m. to 5:00 p.m. 5 days per week exclusive of Holidays. 4. Customer Notification - Lessee shall post a sign or placard visible to all renter pilots giving notification of insurance coverages, student pilot liability, and other legal risks associated with the aircraft rental agreement. 5. Insurance Coverage Lessee shall obtain and maintain cont i nuous 1 Y in effect at all times duri ng the term of the Agreement, at Lessee's sole expense, flight training insurance with total limits in an amount not 1 ess than $1 mi 11 ion Combi ned Si ngl e L i mi t, or equi val ent, to include broad form contractual liability and the following coverages: Comprehensive General Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Product Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Aircraft Liability _ Bodily Injury and Property Damage _ Each Passenger $100,000 Limit $ 1,000,000.00 - 10 - I I C. Minimum Requirements - Aircraft Rental 1. number to meet and currently employed. Personnel Certified Flight Instructors sufficient in service demands with ratings appropriate for aircraft for rent certified by the Federal Aviation Administration shall be 2. Aircraft - A total of at least one airworthy, properly equipped aircraft to include at least one airworthy, properly equipped instrument single-engine aircraft, owned or leased in writing to the Lessee shall be furnished by the Lessee. 3. Hours of Operation - The normal operating hours for Aircraft rental will be from 8:00 a.m. to 5:00 p.m., 5 days per week, exclusive of Holidays. 4. Custoller Notification - The Lessee shall post a sign or placard visible to all rental customers giving notification of insurance coverages, renter liability, and other legal risks associated with the aircraft rental agreement. 5. Insurance Coverage Lessee shall obtain and maintain cont i nuous 1 Y in effect at all times duri ng the term of the Agreement, at Lessee's sole expense, Aircraft rental insurance with total limits in an amount not less than $1 million Combine Single Limit, or equivalent, to include broad form contractual liability and the following coverages: Comprehensive General Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Product Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Aircraft Liability _ Bodily Injury and Property Damage _ Each Passenger $100,000 Limit $ 1,000,000.00 D. Minimum Requirements - Aircraft Sales 1. Personnel - At least one (1) commercial pilot(s) currently certified by the Federal Aviation Administration, with ratings appropriate for the types of aircraft to be demonstrated shall be employed by the Lessee. 2. Dealerships - It shall be at the discretion of the Lessee: (1) whether or not to be an authorized factory dealer; or (2) what manufacturer he chooses to represent. All aircraft dealers shall hold a dealership license or permit, if required. - 11 - I I 3. Insurance Coverage - Obtain and maintain continuously in effect at all times during the term of the Agreement, at Lessee's sole expense, insurance for Aircraft sales with total limits in an amount not less than $1 million Combined Single Limit, or equivalent, to include broad form contractual liability and the following coverages: Comprehensive General Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Product Liability _ BOdily Injury and Property Damage $ 1,000,000.00 Aircraft Liability _ Bodily Injury and Property Damage $ 1,000,000.00 Hangar Keeper's Liability if Applicable $100,000/$300,000 Passenger Liability $ 100,000.00 E. Minimum Requirements - Air Taxi Oper~tions Lessees engaging in air taxi and/or commuter airline operations must be certified by the Federal Aviation Administration under Federal Aviation Regulation Part 135 and Part 121 and registered with the Civil Aeronautics Board under the Economi c Regul at ions of Part 298, and meet the fo 11 owi ng minimum standards. 1. Personnel - A sufficient number of commercial and/or airline transport pilot(s) shall be employed plus additional such pilots part-time and/or on call suffi ci ent in number to meet servi ce demands and currently certified by the Federal Aviation Administration to conduct the air taxi. 2. Aircraft - A minimum of one (1) airworthy, instrument aircraft is required. Beyond this minimum requirement, it shall be left to the discretion of the Lessee to provide the type, category, class, size and number of aircraft to meet the scope and magnitude of the service performed. All aircraft will be owned or leased in writing to the Lessee, and will be airworthy and meet all requirements of the certificate held. Such aircraft shall be under the full operational control of the Lessee. 3. Insurance Coverage Lessee shall obtain and maintain cont i nuous 1 y in effect at all times duri ng the term of the Agreement, at Lessee's sole expense, insurance with total limits in an amount not less than $1 million Combined Single Limit, or equivalent, to include broad form contractual liability and the following coverages: - 12 - I I erecting, or permitting to be erected, or locating any building, object, or structure on the Premises or adjacent to the Airpark which, in the opinion of City, would limit the usefulness of the Airpark or constitute a hazard to aircraft. ARTICLE V PAYMENTS tt../ A. Rent and Fees - In consideration of the rights and privileges granted by this Agreement, Lessee agrees to pay City during the term of this Agreement a rental of $4,050 per month plus any applicable sales tax. The rental shall b to be made on the fi rst day of shall be due and payable on the term of this Agreement. ~G(5J pay , 1991, and a like payment of each month thereafter during the B. Payments The Lessee shall also pay the Lessor three (3) cents per gallon for fuel dispensed at the Airpark. C. Delinquency Charge - A rental payment shall be delinquent if not paid on or before the 10th day of the month in which payment is due, and shall accrue interest at the rate of twelve (12) percent per annum until paid. D. Place of Payment - All payments due City from Lessee shall be delivered to the Finance Department, City of Clearwater, P.O. Box 4748, Clearwater, Florida 34618-4748. E. Taxes and Assessments - Lessee shall pay all taxes and assessments against property leased to Lessee by this Agreement, and against the leasehold and any other property interests under this Agreement. F. Lessee wi 11 mai ntai n in accordance with genera 11 Y accepted account i ng pri nci p1 es and keep for a peri od of fi ve (5) years and for such additional reasonable period as the City may, in writing, request, records and books of account and such other records as the City may reasonably request, recording all transactions for the conduct of the business provided for herei n, a 11 of whi ch records and books of account shall be made avail ab 1 e at the Clearwater Airpark, or in such other location as may be approved or requested in writing by the City. - 14 - I I G. The acceptance by City of any statement by Lessee. or of any payment. shall not be deemed a waiver of the right of City to claim additional payment after a review and inspection of Lessee's books and records nor shall such acceptance constitute a waiver by Lessee of any claim for a refund from City for any overpayment. H. Lessee will use cash and credit control devices of a type acceptable to City and that accurately reflect the gross revenues of Lessee from all sales. 1. Lessee shall. duri ng the term of thi s Agreement. and for one (1) year thereafter. permit. upon reasonable notice to Lessee. inspections and audit by City of all records and books of account. including such records as may be required by the City to be maintained by Lessee and information required to be maintained pursuant to any provision of this Agreement. It is further understood and agreed that any such inspection and audit shall be conducted during the business hours of Lessee and that Lessee shall make the aforesaid records. books of account and other documentation available at a location designated in writing by the City. J. Abatement of Rent and Lease Extension In the event the provisions of Article XIV. A.4 become applicable. Lessee's rent shall abate in proportion according to the number of days of the month in which the disruption occurs. In such an event. Lessee shall have the option to terminate the Lease or keep the Lease in force. In the latter case. the Lease shall be extended for such time as the Airpark is closed to civilian air traffic. ARTICLE VI UTILITIES Lessee agrees to pay the cost of all utilities for the facilities leased. In the event Lessee fails to pay any utility bills when due. City may. at its option. pay the same and collect from Lessee the amounts so disbursed. plus interest at the rate of twelve percent (12) per annum until paid. and in such event. this Agreement is subject for cancellation at the option of the City. ARTICLE VI I INSURANCE Lessee shall procure and maintain during the term of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with thi s Lease. The cost of such insurance sha 11 be borne by the Lessee. - 15 - I I A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. edition), or L i abil ity; and covering Broad Insurance Servi ces Offi ce form number CG 0001 (1 atest CG 0002 (1 atest editi on) coveri ng Comprehensi ve General Insurance Services Office form number GL 0404 (latest edition) Form Comprehensive General Liability, and 2. Insurance Services Office form number CA 0001 (latest edition) covering Automobile Liability, code 1 "any auto"; and CA 002 (latest edition), and 3. Workers' Compensation as required by the State of Florida and Employers' Liability insurance. B. Minimum Limits of Insurance Lessee shall maintain limits and types of insurance coverage as provided in this Lease and Operating Agreement. The minimum limits and types of insurance that Lessee shall maintain in general are set forth in this Article VII. However, the limits and types of insurance coverage for specific activities of the Lessee at the Ai rpark are set forth in Art i cl e I II and the Lessee is required to maintain that coverage if that specific activity is engaged in by the Lessee and is not otherwise covered by the terms of the general insurance coverage. If the specific activity engaged in by the Lessee is insured by the provisions of its general coverage provided pursuant to the requirements of this Article VII, then the insurance requirements for that activity under Article III will be deemed satisfied and no additional insurance pOlicy or endorsement to a policy shall be required of the Lessee. 1. Comprehensive General Liability $1,000,000.00 combined single limit each occurrence for bodily injury and property damage to include: a. Premises and Operations b. Independent Contractors c. Products and Completed Operations d. Broad Form Contractual e. Personal Injury 2. Automobile Liability - $1,000,000.00 combined single limit bodi 1 y injury and property damage each occurrence, if any automobile is used in Lessee's operations. - 16 - I. I 3. Workers' Co.pensation and Employers' Liability - Workers' Compensation limits are required by the State of Florida and Employers' Liability limits of $500,000.00 per accident. 4. Property Da.age Equal to replacement cost of real or personal property owned by the City, or acquired by the City, or by the Lessee on the City's behalf, during the term of this Lease. Policy shall identify by separate schedule each item of personal or real property covered and its respective replacement cost. 5. Hangar Keeper's Liability - $100,000/$300,000 combined single limit property damage and theft each occurrence. 6. Product Liability property damage each occurrence. $1,000,000.00 combined single limit 7. Aircraft Liability $1,000,000.00 combined single limit bodily injury and property damage with $100,000 limit per passenger. 8. Co-Insurance - A minimum of 80% co-insurance is required. C. Deductibles and Self-Insured Retentions Any deductions or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officials and employees or the Lessee shall procure a bond, letter of credit or other instrument acceptable to City, guaranteeing payment of losses and related investigation, claim administration and defense expenses. D. Other Insurance Provision The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages a. The City, its officials, employees and volunteers are to be covered as insured as respects liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of the Lessee; premi ses owned, 1 eased or used by the Lessee; or automobiles owned, leased, hired or borrowed by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees or volunteers. b. The Lessee insurance coverage shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of Lessee insurance and shall not contribute with it. - 17 - , ,- I I c. Any failure to comply with reporting provlslons of the pOlicies shall not affect coverage provided to the City, its officials, employees or volunteers. d. Coverage shall state that Lessee insurance shall appl y separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Workers' Compensation and Employers' Liability Coverages The insurer shall agree to waive all rights of subrogation against the City, its officials, employees and volunteers for losses arising from work performed by Lessee for the City. 3 . All Coverages a. Each insurance policy required by this clause shall be endorsed to state that coverage sha 11 not be suspended, voi ded, cance 11 ed, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. b. If the Lessee is underwritten on a claims-made basis, the Retroactive Date shall be prior to or coincident with the date of this Agreement and the Certificate of Insurance shall state that coverage is claims made and also the Retroactive Date. The Lessee shall maintain coverage for the duration of this Lease and for the two (2) years following the completion of this Lease. It is further agreed that the Contractor shall provide the City a sixty (60) day notice of aggregate erosion, in advance of the Retroactive Date, cancellation and/or renewal. It is also agreed that either the Lessee or City may invoke the tail option on behalf of the other party and that Extended Reporting Period (ERP) premium shall be paid by the Lessee. E. Acceptability of Insurers Insurance is to be placed with insurers possessing a Bests' rating of no less than A:XIII. F. Verification of Coverage Lessee shall furni sh the Ci ty with Cert ifi cates of Insurance and with the original policy or pOlicies of insurance with all endorsements affecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bi nd coverage on its beha 1 f . The cert i fi cates and endorsements sha 11 be submitted on standard insurance forms used in the insurance industry or on any other form acceptable to City together with a written statement from Lessee's insurance broker or agent that all insurance policies provided by Lessee to Lessor compl i es wi th the insurance requi rements set forth in thi s Lease and Operating Agreement. These forms shall be received and approved by the City before execution of this Lease and Operating Agreement and other lease documents by authorized City officials. - 18 - , ,- I I G. Subcontractors of Subleases Lessee shall include all subcontractors/subleases as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor/sublessee. All coverages for subcontractors/sublessee shall be subject to all of the requirements stated herein. ARTICLE VII I LIABILITY AND INDEMNIFICATION A. Lessee agrees to assume all risks of the Premises and all liability therefore, and shall defend, indemnify, and hold harmless the City, its officers, agents and employees from and against any and all loss, liability, and damages of whatever nature, to persons and property, including, without limiting the generality of the foregoing, death of any person and loss of the use of any property. Thi s i ncl udes, but is not 1 i mited to, matters arising out of or claimed to have been caused by or in any manner related to the Premi ses or Lessee's ope rat ions or those of any approved or unapproved tenant, subtenant, licensee, invitee, contractor, subcontractor or other person approved, authorized, or permitted by Lessee in or about the Premises, including losses, liability, and claims related to air and noise pollution, or any other operat ions pursuant hereto, whether or not based on negl i gence. Lessee shall defend all such claims, demands, and suits, whether groundless or not, at Lessee's own cost and expense. Further, Lessee does hereby covenant and agree to indemnify, hold harmless, and defend City, its officers, agents, and employees, from and against any and all loss, liability and damages arising out of or in any manner related to any breach by Lessee, its agents, employees, invitees, licensees, contractors, subcontractors, tenants, or subtenants, whether approved or unapproved, of any of the terms, conditions, or other provisions of this Agreement. B. Lessee agrees to defend, indemnify, and hold harmless the City, its officers, agents, and employee from and against any and all claims or 1 i abil ity for compensation under any workmen's compensation statute ari sing out of injuries sustained by any employee of Lessee or any licensee, contractor, subcontractor, tenant, or subtenant of Lessee. C. Lessee agrees to i ndemni fy City from and to assume all 1 i abil ity for, and to pay all taxes and assessments of every kind, including taxes imposed or which may be imposed by the County of Pinellas and City of Clearwater, which by law may be levied or assessed on the premises occupied by Lessee pursuant to this Agreement, or which arise out of the operations of Lessee, or by reason of occupancy by Lessee or any of Lessee's agents, licensees, invitees, contractors, subcontractors, tenants, or subtenants, whether or not approved by the Lessor. Lessee shall be responsible for obtaining bills for all of said taxes and assessments directly from the taxing or assess i ng authority, and sha" prompt 1 y de 1 i ver to the City copi es of receipts of payment. - 19 - \ . I I D. Lessee's obligations to defend, indemnify, and hold harmless, as and all attorneys I fees and defense and handling of said in enforcing and obtaining set forth in this article, shall include any investigative expenses, incurred by City in the suits, claims, damages, and the like, and compliance with the provisions of this Article. ARTICLE IX DISCLAIMER OF WARRANTIES Thi s Agreement constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified or discharged except by written Amendment duly executed by both parties. Lessee agrees that no representations or warranties shall be binding upon City unless expressed in writing herein or in a duly executed Amendment hereof. It is understood and agreed that: A. City does not warrant, and hereby disclaims any and all liability and responsibility for or on account of the condition of, the Premi ses, or the Ai rpark or any portions thereof, or for or on account of anything affecting such conditions. B. City makes no warranties and has no obligations or liability for or with respect to the removal of sand, water or debris from the Premises of any part thereof. C. City makes no warranties and has no obligations or liability for or with respect to the acts or omissions of, or the presence or absence of any other Lessee or operator at or from the Airpark. D. 1 i abil ity with pollution. City makes no warranties and shall have no obligations or respect to noise, noise pollution, air quality, or air ARTICLE X LESSEE AS INDEPENDENT CONTRACTOR In conducting its business hereunder, Lessee acts as an independent contractor and not as an agent of City. The selection, retention, assignment, direction, and payment of Lessee's employees shall be the sole responsibility of Lessee, and City sha 11 not attempt to exerci se cont ro lover the daily performance of duties by Lessee' employees. - 20 - i' I I ARTICLE XI ASSIGNMENT This Agreement, or any part thereof or interest therein, may not be assigned, transferred or subleased by Lessee without the consent of the Lessor, which will not reasonably be withheld. All principals of the Lessee and their respective percentages of ownership shall be disclosed to the City in writing and it is expressly agreed that if the Lessee is a corporation, any change in the ownership of corporate stock; or if a partnershi p, the addition to or withdrawal of any partner from the partnership firm; or the addition to or withdrawal of a principal Lessee in whatever capacity; by purchase or sa 1 e, or operat i on of 1 aw or in any other manner whatsoever, without the consent of the Lessor shall be deemed an assignment. Notwithstanding any attempt by Lessee to assign, transfer or sublease this Agreement, or any part thereof or interest therein, Lessee shall remain obligated and liable to City for the performance of all covenants, terms, and conditions, warranties and other provisions of this Agreement to the same extent that Lessee would have been obligated and liable if such assignment, delegation, or sublease had not been attempted, but such attempt shall be deemed an act of material default by Lessee. It is understood and agreed that City may, at any time, with notice, assign or delegate any or all of its rights hereunder. ARTICLE XII NONDISCRIMINATION Notwithstanding any other provision of this Agreement, during the performance of this Agreement, Lessee, for itself, its heirs, personal representatives, successors in interest and assigns, as part of the consideration for this Agreement, does hereby covenant and agree, as a covenant running with the land, that; A. the benefits of, Premi ses on the national origin. No person shall be excluded from participation in , denied or otherwise be subjected to discrimination in the use of the grounds of race, color, religion, sex, handicap, age, or B. In the construction of any improvements on, over or under the Premi ses, and the furni shi ng of servi ces therei n or thereon, no person shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination on the grounds of race, color, religion, sex or national origin. - 21 - I 1 C. Lessee shall use the Premi ses in compl i ance wi th all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended. D. The Lessee shall observe the following laws: Section I of the 14th Amendment, The Equal Pay Act, The Civil Ri ghts Acts of 1866 and 1870, the Vi etnam Era Veterans Readjustment Act, the Standards of Merit System Personnel Administration, Executive Order 12246 as amended, Revised Order 4, the Age Discrimination Act of 1967, the Rehabilitation Act of 1975, Executive Order 11914, Inter-Agency Agreement March 23, 1963, State and Local Fiscal Assistance Act, OMB Circular 102 Attachment 0 and all other applicable laws. E. In the event of breach of any of the above nondiscrimination covenants, Ci ty shall have the ri ght to termi nate thi s Agreement and to reenter and repossess the Premises and hold the same as if said Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 have been followed and completed, including expiration of appeal rights. ARTICLE XIII REQUIREMENTS OF THE UNITED STATES This Agreement shall be subject and subordinate to the provlSlons of any existing or future Agreement between City and the United States, or any agency thereof, relative to the operation or maintenance of the Airpark, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development or operation of the Airpark. ARTICLE XIV DEFAULT AND TERMINATION A. Termination by Lessee. This Agreement shall be subject to termination by Lessee in the event of anyone more of the fOllowing events: 1. airport or airfield. The abandonment by the City of the Ai rpark as an - 22 - I I 2. The material default by the City in the performance of any of the terms, covenants or condi t ions of thi s Agreement, and in the failure of City to remedy, or undertake to remedy, to Lessee's satisfaction, such default for a period of thirty (30) days after receipt of notice from Lessee to remedy the same. 3. Uninsured damage to or destruction of all or a material part of the Premises or Airpark facilities necessary to the operation of Lessee's business not repaired within 180 days. 4. The lawful assumption by the United States, State of Florida, or any authorized agency thereof, of the operation, control, or use of the Airpark, or any substantial part or parts thereof, in such a manner as to restri ct substantially Lessee from conducting busi ness operations for a period in excess of forty-five (45) days. B. Terminati on by City. Thi s Agreement shall be subject to termination by City in the event of anyone or more of the following events: 1. The materi a 1 defau lt by Lessee in the performance of any of the terms, covenants or conditions of thi s Agreement, and in the failure of Lessee to remedy, or undertake to remedy, to City's satisfaction, such default for a period of thirty (30) days after receipt of notice from Lessor to remedy the same, except insurance requirements of Articles III and VIII, which must be remedied within seven (7) days. 2. Lessee files a voluntary petition in bankruptcy, including a reorganization plan, makes a general or other assignment for the benefit of creditors, is adjudicated as bankrupt or if a receiver is appointed for the property or affai rs of Lessee and such recei vershi pis not vacated within thirty (30) days after the appointment of such receiver. 3. The City determines that a municipal need exists consistent with the City's Charter. C. Exerci se. Exerci se of the ri ghts of termi nat i on set forth in Paragraphs A and B, above, shall be by notice to the other party. Forbearance of timely notice shall not be deemed a waiver of any breach. D. Removal of Property - Upon termination of this Agreement for any reason, Lessee, at its so 1 e expense, shall remove from the Premi ses a 11 signs, trade fixtures, furnishings, personal property, equipment and materials which Lessee was permitted to install or maintain under the rights granted herein. If Lessee shall fail to do so within thirty (30) days, then City may effect such removal or restoration at Lessee's expense, and Lessee agrees to pay Lessor such expense promptly upon receipt of a proper invoice therefor. - 23 - I I E. Causes of Breach; Waiver 1. Neither party shall be held to be in breach of this Agreement because of any failure to perform any of its obligations hereunder if said failure is due to any cause for which it is not responsible and over which it has no control; provided, however, that the foregoing provision shall neither apply to failures by Lessee to pay fees, rents or other charges to Lessor, nor to providing the amounts of insurance contained in Articles III and VIII of the Agreement. 2. The waiver of any breach, violation or default in or with respect to the performance or observance of the covenants and conditions contained herein shall not be taken to constitute a waiver of any such subsequent breach, violation or default in or with respect to the same or any other covenant or condition hereof. ARTICLE XV MISCELLANEOUS PROVISIONS A. The point of contact for all matters related to the lease agreement and all other conditions, activities and events relating to the Airpark shall be the City Director of Airpark Activities. B. It is understood by the Lessee that no ri ght or pri vi 1 ege has been granted to Lessee which would operate to prevent any person, firm or corporation operating aircraft on the Airpark from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform. C. It is understood and agreed that nothi ng herei n shall be construed to grant or authorize the granting of an exclusive right other than rights of possession and peaceful enjoyment to the Premises. 1. The Lessee assures that it wi 11 undertake an affirmative action program, as required by 14 CFR Part 152, Subpart E, to ensure that no person shall, on the grounds of race, creed, color, national origin, or sex, be excluded from participating in any employment, contracting, or leasing activities covered in 14 CFR Part 152, Subpart E. The Lessee assures that no person shall be excluded, on these grounds, from participating in or receiving the services or benefits of any program or activity covered by thi s Subpart. The Lessee assures that it wi 11 requi re that its covered organizations provide assurance to the Lessee that they similarly will undertake affi rmat i ve action programs and that they wi 11 requi re assurances from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect. - 24 - .. I I 2. The Lessee agrees to comply with any affirmative action plan or steps for equal employment opportunity required by 14 CFR Part 152, Subpart E, as part of the affi rmat i ve action program or by any federal, state, or local agency or court, including those resulting from a conciliation agreement, a consent decree, court order, or similar mechanism. The Lessee agrees that a state or local affirmative action plan will be used in lieu of any affirmative action plan or steps required by 124 CFR Part 152, Subpart E, only when they fully meet the standards set forth in 14 CFR 152.409. The Lessee agrees to obtain a similar assurance from its covered organizations, and to cause them to require a similar assurance of their covered suborganizations, as required by 14 CFR Part 152, Subpart E. D. City reserves the ri ght to furthet deve lop or improve the airpark as it sees fit, taking into consideration the desires or view of the Lessee, and wi thout interference or hi ndrance. Ci ty shall make every effort to minimize the disruption of normal Airpark usage during periods of repair or further Ai rpark deve 1 opment. All improvements constructed at the Ai rpark shall be owned by the City of Clearwater at the expiration of this agreement. E. During time of war or national emergency City shall have the ri ght to 1 ease the 1 andi ng area or any part thereof to the Uni ted States Government or State of Flori da for mil itary or naval use, and, if such 1 ease is executed, the provisions of this instrument insofar as they are i ncons i stent with the provi s ions of the 1 ease to the Government, sha 11 be suspended. Lessee's rents will abate accordingly. F. Ci ty reserves the ri ght to enter upon the premi ses duri ng normal business hours for the purpose of making any inspection it may deem expedient to the proper enforcement of any of the covenants or conditions of this Agreement. G. City reserves the ri ght to bar, termi nate, or otherwi se prohibit the use of its common use, publicly-owned facilities by persons, activities or organizations including Lessees judged by the Lessor, Lessee, or other duly authorized authority to be operating in an unsafe or unauthorized manner. Further, such unsafe or unauthori zed act i vi ty may be grounds for contract breach. H. Severability - If a provlslon hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Agreement shall not be void, but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. I. Notice - Any notice given by one party to the other in connect i on with the Agreement sha 11 be in writing and sha 11 be sent by certified mail, return receipt requested, with postage and fees prepaid: - 25 - I I 1. If to Lessor, addressed to: City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 2. If to Lessee, addressed to: Suncoast Aviation, Inc. 1000 North Hercules Avenue Clearwater, Florida 34625 Notices shall be deemed to have been received on the date of receipt as shown on the return receipt. ARTICLE XVI LEASEHOLD IMPROVEMENTS No improvements, additions, or changes shall be made to the leased premises without the prior written approval of the City. It is further agreed that such improvements, addi t ions, or changes will be made by the Lessee at its own expense and at the option of the City and shall become the property of the Lessor upon expiration, or prior termination for default by Lessee, of this Lease Agreement or any extension or renewal thereof. Should the Lessee elect not to choose to exercise this option, the Lessee agrees to remove such improvements, additions or changes at its own expense and deliver the premises to the City in as good condition as they now are; ordinary wear, decay, and damage by the elements excepted. - 26 - , I I IN WITNESS WHEREOF, the parties hereto have set thei rhands and seal s thi s J ~ day of ~t.J-... , 199-L. CITY OF CLEARWATER, FLORIDA (Lessor) BY:~ J. City Manager Countersigned: Attest: --- ~f;l!rfo:"~..' - Approved as to form and correctness: SUNCOAST AVIATION, INC. Witnesses as to Lessee: - 27 - SUNC~A&T ~ , - AVIATION I. EXHIBIT E Aircraft Sales · Service . Remallli Instruction . Charters January 14, 1991 To all hanger customers, Due to increasing overhead it has become necessary to raise hanger rates. Rates will increase beginning February 1, 1991. Shade hangers will be increased to $130.00 per month plus state sales tax. Tee hangers will be increased to $220.00 per month plus state sales tax. Sincerely, &u~Q Q.~~ Laurie A. Shaw Office, Manager Sod and hardstand will remain the same price until f~ther notice. Sod $37.50 plus sales tax, hard- stand $45.00 plus sales tax. Clearwater Executive Air Park. 1000 N. Hercules Ave. . Clearwater, Florida S4625