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

environmentally contaminated during the Operator's occupancy of the Leased Premises under this Agreement due to the Operator, its invitees, guests, licensees, officers, employees, agents, or independent contractor's negligence, inaction, or other acts, or acts of God ("Operator Contamination"), the Operator shall be responsible for all costs related to the environmental remediation of the premises as required by applicable governmental regulatory bodies. Operator may contest the remediation requirements of such regulatory bodies as applicable law may allow. The Operator shall defend and indemnify the County and hold the County harmless from and against any and all claims, losses, fiabilities (including, without limitation, strict liability), damages, injuries, costs, expenses (including, without limitation, attorneys’ fees), claims for damage to the environment, claims for fines or civil penalties, costs of any settlement or judgment and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against the County by any person, entity, or governmental agency for, with respect to, or as a direct result of Operator Contamination including without limitation all post-remediation sampling and additional supplemental remediation. Operator acknowledges that the County is subject to Florida and/or Federal storm water regulations, 40 C.F.R/ Part 122, for "vehicle maintenance shops" (including vehicle rehabilitation, mechanical repairs, painting, fueling and lubrication), 5 equipment cleaning operations and/or deicing operations that occur at Destin/Ft. Walton Beach Airport. Operator may not conduct any of the above operations without first applying for a storm water discharge permit. Operator may petition the County to file as a co-permittee to the storm water discharge permit issued to the Destin/Ft. Walton Beach Airport. Operator acknowledges that it is the responsibility of the Operator to be familiar with the storm water regulations should it conduct any of the above activities and Operator is aware that there are significant penalties for submitting false information, including fines and imprisonment for knowing violations. Operator shall cooperate with the County in minimizing the exposure of storm water to "significant materials" as defined in 40 C.F.R. Part 122(b)(12), and shail comply with the County's Storm Water Pollution Prevention Pian as it may currently exist or be changed in the future. Operator hereby agrees that it is solely responsible for the compliance and construction of any storm water/surface water facilities, holding areas, treatment areas, diversionary fixtures or improvements, or other water flow control mechanisms deemed necessary by an authorized governmental entity due to Operator's use of the Leased Premises. ARTICLE V COMPLIANCE WITH RULES AND REGULATIONS In addition to those environmental laws, ordinances, statutes, etc. outlined in Article IV, it is expressly understood that the Operator agrees to conform to all other Federal, State, or local laws and regulations, as well as all Okaloosa County Codes and ordinances, all of which may apply to the services to be performed and that Okaloosa County is to be held free and harmless from any act or failures by the Operator to do so. The Operator shall obtain and maintain in force all licenses, permits and other certificates required by Federal, State, County, or Municipal authorities for its operation under the terms of this Agreement. The Operator agrees to observe all security requirements of Federal Regulations and the Airport Security Program, as may be applicable, and as the same may, from time to time, be amended, and to take such steps as may be necessary or directed by the County to ensure that employees, invitees, agents and guests observe these requirements. If the County incurs any fines and/or penalties imposed by Federal, State, County, or Municipal authorities as a result of the acts or omissions of Operator, its partners, officers, agents, employees, contractors, subcontractors, assigns, subtenants, or anyone acting under its direction and control, then Operator shall be responsible to pay or reimburse the County for all such costs and expenses. ARTICLE VI TERM The term of this Agreement shall commence at midnight on the last date this Agreement is signed by all Parties to the Lease (the “Commencement Date") and shall continue for a period of twenty (20) years from the Commencement Date, 6 unless changed or modified as set forth in this Agreement. ARTICLE VII RENT & FEES In consideration of the rights and privileges herein granted, the Operator hereby covenants and agrees to pay the County: 1. Commencing upon the Commencement Date of this Agreement. A. 0.06 cents per square foot per year for the 866,355 square feet of base ramp area (See Exhibit C, Table 1). B. 5% of gross receipts for sale of aircraft, aircraft engines, and all other services, equipment, and supplies except aircraft fuel and oil The term "gross receipts" with respect to sales at all locations shall include all charges or other fees charged by Operator on all sales made by Operator, and all revenues of any kind and character derived from, arising out of, or payable on account of the business conducted by Operator or from the operations of Operator under this Agreement, whether for cash or credit and without any deduction for credit card discounts. Any gross receipts included in the formula for determining percentage payments owed the County and determined by Operator at a later date to be uncollectible shall not offset future percentage fees owed the County. The term shall also include the value of goods and services when provided or given by Operator to anyone without charge except as provided herein. The term shall not include warranty work for which Operator receives no mark-up over cost nor shall it include any sales tax or excise tax stated separately and collected from the customer for remittance to the taxing authority. All gross receipts shall be deemed to be received at the time of the determination of the amount due to Operator not at the time of billing or payment, unless specifically authorized by the Airport Director. C. $0.05 per gallon for all fuel sold to others or placed in aircraft owned, leased, or operated by Operator. D. $0.10 per quart for all oil sold to others or placed in aircraft owned, leased, or operated by Operator. E. A fuel flowage fee (currently $0.06 per gallon) shall be collected and remitted for all fuel sold or delivered to all persons and entities and used in aircraft. No fuel flowage fee shall be collected on fuel sales to military aircraft or carriers with agreements with the County, or who pay landing fees to the County. (The County and Operator acknowledge that the County charges a flowage fee for certain fuels sold at the Airport and used in aircraft, and the Operator hereby agrees to collect that fuel flowage fee, as agent for the County. The parties further 7 agree that the collection of this fee and its remittance to the County is not an additional fee paid by the Operator for use of the leased premises.) 2. Fees shall be adjusted as follows: A. Adjustments to Base Ground Rent: The annual base ramp (see Exhibits A-1, A-2, & A-3) lease for each successive five (5) year period of the term of this LEASE from the Commencement Date shall be increased to reflect the increase in the Consumer Price Index ("CPI") from the Commencement Date of Lease (as defined in Article VI). The "CPI" shall be the revised Consumer Price Index for All Urban Consumers for all items U. S. City Average, published by the Bureau of Labor Statistics, U. S. Department of Labor, 1982- 84=100 (CPI-U). Base ground rent shall be subject to renegotiation for any option period hereunder. B. Adjustments to Fuel Fee: The County reserves the right to adjust the fuel fee specified in subparagraph C of paragraph 1 above every five years after the Commencement Date, using an appropriate Producer Price Index for aviation fuels published by the U.S. Department of Labor, Bureau of Labor Statistics—more specifically the North American Industry Classification System (NAICS) code 324110 (Aviation Fuel). PAYMENTS Operator agrees to pay base ramp rent and building rent due to the County, in advance on or before the tenth (10th) day of the month for which the rent is due (See Exhibit C). All percentage fees and flowage fees owed shall be payable by the twentieth (20th) day of the month immediately following the month for which they were derived. All payments shall be accompanied by a report in a form acceptable to the County detailing the various categories of payment. County reserves the right to develop and prescribe a report form for Operator to report gross receipts and fuel related activity upon which fees are levied. Monthly rent payments, percentage payments, flowage fees and any other payments required under this Agreement which are not received when due shall accrue interest at the rate of twelve percent (12%) per annum from the due date until receipt of payment. ARTICLE VIH BOOKS, RECORDS AND AUDITS Operator must maintain full and accurate books of account and records, in a form acceptable to the County and according to standard and accepted accounting 8 practices. The books of account and records that Operator must maintain must include, but not be limited to, sales slips, cash register tapes, credit card invoices, monthly sales tax returns, sales and disbursement journals, general ledgers, bank statements, bank books, bank deposit slips and annual federal income tax returns. In lieu of maintaining the books of account and records required herein, Operator may maintain computer records instead, provided that the County determines, in its sole discretion reasonably exercised, in advance that said computer records are a reasonably equivalent alternative to the maintenance of books and records otherwise required herein. These books and records shall be stored in Okaloosa County, Florida, for a period of at least five (5) years following the end of each annual period of this Agreement and be made available to the County upon request. The County reserves the right, from the Commencement Date forward, to audit Operator's books and records at any time for the purpose of verifying amounts payable hereunder. If, as a result of such an audit, it is established that Operator has understated amounts payable to the County by two percent (2%) or more (after deductions and exclusions provided for herein) Operator shall pay the full cost of the audit and shall pay the full amount underpaid, plus twelve percent (12%) interest on said underpayment from the time said underpayment should have been paid to the time said underpayment is fully paid. The cost of the audit and the payment of the underpaid amount, plus interest, shall be made by Operator to the County within thirty (30) days of receipt of written notice, except for past due amounts before the Commencement Date, which amounts are addressed in and will be due in accordance with the terms of the Agreement attached hereto as Exhibit D. ARTICLE VIX SECURITY DEPOSIT Surety in the form of an irrevocable letter of credit or performance bond equal to $50,000 shall be posted with the County upon the Commencement Date of this Agreement and must thereafter be continuously maintained at ail times during the term of this Agreement, to cover Operator's performance of all its obligations under this Agreement. The Surety is to be provided by Operator in a form acceptable to the County. The surety company shall be licenses to do business in the State of Florida, and shall be otherwise acceptable to the County. Operator shall be responsible for paying all required premiums. An annually renewable Performance Bond may be substituted by the Operator each year in lieu of providing a single bond. Such Performance Bond shall not