Okaloosa County BOCC — April 27, 2013 — MSA Amended and Restated Lease Agreement with Exhibits — reading text

AMENDED AND RESTATED LEASE AGREEMENT FOR FULL FIXED BASE OPERATOR DESTIN/FT. WALTON BEACH AIRPORT THIS AMENDED AND RESTATED LEASE AND OPERATING AGREEMENT (hereinafter referred to as “Agreement” or “Lease”), made and entered into this day of , 2013, by and between Okaloosa County, a political subdivision of the State of Florida (hereinafter referred to as the "County"), and Miracle Strip Aviation, Inc., a () sole proprietorship (_) limited partnership (_) general partnership (x) corporation (_) limited liability company authorized to do business in Florida (hereinafter referred to as "Lessee" or "Operator"), WITNESSETH: WHEREAS, the County owns, operates, and maintains Destin/Ft. Walton Beach Airport (hereinafter referred to as "Airport") located in Okaloosa County, Florida, for the use and benefit of the public; and WHEREAS, Operator desires to lease land and facilities on the Airport to conduct air transportation services pursuant to the terms of this Agreement, See Exhibits A-1, A- 2, & A-3 leased premises; and WHEREAS, the parties desire to place the property under Lease upon which Operator will operate a Full Service, Fixed Base Operator facilities on the property described in Article Il, paragraph B; and WHEREAS, the County and Operator have heretofore entered into a lease and operating agreement ("Existing Agreement") for a full fixed base operation at the Airport and amended said agreement through two (2) major amendments thereto; and WHEREAS, the parties desire to further amend said Existing Agreement to incorporate therein a plan for repayment for past due rent amounts and to resolve certain events of default related thereto, and to incorporate all of the same in this new Amended and Restated Lease and Operating Agreement; and WHEREAS, this Agreement is in the best interests of the County to encourage air transportation services at the Airport; NOW, THEREFORE, for and in consideration of the premises, and of the mutual covenants and agreements herein contained, the County and Operator do hereby mutually undertake, promise and agree, each for itself and its successors and assigns, as follows: ARTICLE | EXHIBITS This Agreement contains the following Exhibits, which are attached hereto, incorporated herein and made a part of this Agreement, for all further purposes: Exhibit A Legal Description, Leased Premises, Boundary Surveys A-1 Leased Parcel #1 A-2 Leased Parcel #2 A-3 Leased Parcel #3 Exhibit B Okaloosa County Minimum Standards for Fixed Base Operator Exhibit C Lease Rates — Table 1 Exhibit D Agreement, entered on the day of March, 2013, between Operator and the County, regarding Payoff Schedule For Past Due Rent and other events of default ARTICLE Il LEASED PREMISES The County hereby leases and demises to Operator, and Operator hereby hires and takes from the County, the tract(s) of land (herein referred to as the "Leased Premises", see Exhibit A), in Okaloosa County, Florida, and any and all rights, privileges, easements and appurtenances now or hereafter belonging to said tract(s) of real property, subject, however, to all liens, easements, restrictions and other encumbrances of record, provided such matters do not prevent Operator from conducting its business on the Leased Premises as contemplated herein. A. The Operator shall use the existing above ground fuel farm area. (Fuel tank shall be constructed according to FAA, Federal and State Safety Regulations). B. Commencing upon the Commencement Date (defined in Article VI below) and until the termination of this Agreement, the Leased Premises shall consist of: see Exhibits A-1, A-2, & A-3. The Leased Property shall be taken by Operator in its AS IS condition, and shall be maintained and operated at Operator's sole cost and expense except as may otherwise be specifically provided in this Agreement. It is the express intention of the parties hereto that the Operator's improvements, use and occupancy of the Leased Premises, and all costs associated therewith, shall be and remain the financial obligation of the Operator. Any helicopter landing pads furnished by the Airport used by Operator or its customers shall be used solely for the landing, take-off, parking, fueling, and servicing of helicopters and for no other purpose whatsoever. ARTICLE Ill GRANT OF USE The County hereby grants Operator the exclusive right to the Leased Premises, and all of the improvements located thereon, to conduct on a non-exclusive basis, commercial aeronautical services/activities described as Full Service Fixed Base Operation in accordance with this Agreement and in accordance with the Requirements and Minimum Standards for Services and Activities as outlined in Exhibit B. The County further grants to Operator the rights of ingress and egress to and from the Leased Premises over Airport common use roadways and the Airport aprons as necessary for Operator's refueling operations, subject to any rules and regulations which may have been established or shall be established in the future by the County. Operator shall not use, nor permit others to use, the Leased Premises, and any improvements thereon, for any commercial or noncommercial purpose, other than the authorized purposes set forth above, nor shall Operator use the Leased Premises to store any material not required for the execution of the authorized purposes. Should the Operator wish to perform any additional commercial aeronautical services from its leased premises, Operator shall make written application to the County requesting permission to provide such additional services. The County shall apply the criteria and standards embodied in the Requirements and Minimum Standards for Services and Activities in determining whether to authorize Operator to perform such services. If the County determines that the Operator is qualified to perform the requested aeronautical services under the Requirements and Minimum Standards for Services and Activities, and if the Operator and County execute an addendum to the Lease setting forth the terms and conditions by which Operator shall perform the additional aeronautical services or activities, including any additional fees, then Operator shall be deemed authorized to perform said additional services or activities. ARTICLE IV ENVIRONMENTAL RESPONSIBILITIES The County and Operator hereby agree and acknowledge that this lease in no way is intended to discharge, release, increase, or otherwise modify the parties’ existing contractual or other legal obligations or responsibilities concerning the operator's existing FBO site or the Operator's existing fuel farm. Any other provision of this Agreement notwithstanding, Operator shall continue to have the contractual and legal obligations to remediate any existing non-compliant environmental conditions for which it is responsible under its Existing Agreement, including but not limited to those disclosed pursuant to the first paragraph of the following Section titled “Environmental Assessments". Environmental Assessments: Immediately upon the execution of this Agreement, the Operator shall, at its expense, obtain an ASTM Standards environmental assessment encompassing all of the Leased Premises described in Article |, Exhibit A above. The environmental assessment will be obtained from a financially stable environmental consulting firm acceptable to the County and Operator. If the ASTM Environmental Assessment recommends further investigation such as sampling and testing, the Operator will undertake, at its expense, to obtain such additional testing. (The initial ASTM assessment and any additional testing hereinafter "First Environmental Review’). The environmental consulting firm must be insured for errors and omissions in a minimum limit of $20,000,000 per occurrence with a deductible no greater than $25,000 and its insurance policy must be made showing the County and Operator as additional insured. All environmental assessments must be certified to the County and Operator and contain no limitation of liability for errors and omissions. Upon the expiration or sooner termination of this Agreement, the Operator, at the operator's Expense, shall obtain an additional environmental assessment encompassing all of the Leased Premises described in Article |, Exhibit A. The same criteria and additional testing that applies for the First Environmental Review and environmental consulting firm described above will also apply for the environmental assessment done at the termination of this Lease. Any environmental contamination disclosed in the environmental assessment prepared at the termination of the Agreement not also disclosed in the environmental assessment prepared prior to the Operator taking possession of the Leased Premises, taking into account any matters that may have been present in the First Environmental Review but not detected due to improved detection methods, shall be the responsibility of the Operator, and the Operator shall be obligated to promptly effect the remediation of such environmental contamination, and to have prepared, at the operator's expense, a post-remediation environmental assessment substantiating completion of such remediation in accordance with applicable laws, including without limitation all post-remediation sampling and additional or supplemental remediation. The County and Operator shall furnish to the other party true and complete copies of all environmental assessments of the Leased Premises including copies of all sampling and other data obtained as a result of the environmental assessments. Each party shall provide the other party reasonable advance notice of any environmental assessments and shall grant the County access to the Leased Premises during any environmental assessment activities and the right to accompany persons conducting any environmental assessments. Off Site Environmental Contamination: Nothing in this Article 1V shall be construed to make Operator liable in any way for any contamination or release of Hazardous Substances affecting the Leased Premises that occurs by reason of the migration or flow to the Leased Premises from verifiable or documented offsite contamination that is not attributable to Operator's activities at the Leased Premises. 4 Environmental Compliance: Excepting the aircraft fuel stored in the Operator's mobile tenders and the fuel farm as required in Article II(A) and except as otherwise set forth below, Operator agrees that no oils, petroleum products, synthetic lubricants, gasoline, solvents, or other hazardous materials may be permanently or temporarily stored on the Leased Premises. No storage tanks, either of the above ground type or below ground type, may be constructed or stored on the Leased Premises. Small quantities of the above items, which are necessary for the day-to-day operation of the Operator, shall be permitted. However, the combined total of all such substances allowed on the Leased Premises at any one time shall not exceed 1000 gallons, exclusive of the quantities which are contained within Operator's mobile Tenders, fuel farm, and the fuel and power train systems of vehicles located upon the Leases Premises. Fuel tenders will be parked and refilled on Florida Department of Environmental Protection (FDEP) approved hard stands with recovery systems. Upon request, the Operator shall provide a detailed listing of all such substances used in its day-to-day operations, and the past and current methods used for the handling and disposal of such material. Operator shall comply with all laws, including, without limitation, any federal, state, or local statute, law, ordinance, code, rule, regulation, order, or decree regulating or relating to the environment, air quality, hazardous substances or materials, or petroleum products that may apply to the use of the premises, as such laws are now or at any time hereafter in effect. In the event the premises become