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

services, processes, machines, articles, marks, names, or slogans used by it in its operations under, or in connection with, this Agreement. Operator shall save and hold harmless the County, its elected officials, employees, volunteers, representatives and agents free and harmless of any loss, liability, expense; suit, or claim for damages in connection with any actual or alleged infringement of any patent, trademark, or copyright, or from any claim of unfair competition or other similar claim, arising out of Operator's operations under, or in connection with this Agreement, ARTICLE Xill IMPROVEMENTS Initial Improvements: Upon execution of this Agreement, County shall maintain all public and common or joint use areas of the Airport, including the Aircraft Operations Area, in good repair, and shall make such repairs, replacements or additions thereto as, in its opinion, are required and necessary for the safe and efficient operation of the Airport. Additional Improvements: During the term of this Agreement, Operator shall have the right to construct, at its own expense, improvements, alterations, or additions anywhere on the Airport that would benefit the Airport or its operators, to facilitate and further the authorized usage of the Airport, provided that Operator conforms with all conditions of this Article including: (a) the proposed improvements and alterations are submitted to the County for its prior review; (b) the County determines, in its discretion (which discretion shall be reasonably applied and the determination not unreasonably withheld or delayed), that the proposed improvements and alterations will be consistent with the Airport's Master Plan, land use plan and architectural design and quality of construction in effect at the time of construction; and (c) the improvements, alterations, and additions are to be constructed by qualified and licensed contractors and subcontractors. (d) | such improvements shall include but not be limited to items such as: 4. construction of aircraft hangars 2. construction of office space for aviation activities 3. covered area for arrival and departure of aircraft 4 flight school 5 major remodeling of passenger terminal 14 The cost of these improvements shall first apply as reductions to the past due amounts owed, in accordance with the terms of the Agreement attached hereto as Exhibit D, until the maximum credit referenced in that Agreement is reached. Thereafter, such improvements shall be at Operator's own expense. General Construction Requirements: Prior to the commencement of any construction activity, Operator shall submit detailed plans, specifications, and a construction time schedule for the improvements, to the County for approval. The Airport Director shall either approve or disapprove the plans and/or specifications submitted by the Operator. Approval by the Airport Director of any plans and specifications refers only to the conformity of such plans and specifications to the general architectural and aesthetic plan for the area assigned to the Operator. Such plans are not approved for architectural or engineering design or compliance with applicable laws or codes and the County, acting through the Airport Director, by approving such plans and specifications, assumes no liability or responsibility hereof or for defect in any structure or improvement constructed according to such plans and specifications. The Airport Director reserves the right to reject any design submitted and shall state the reasons for such action; provided, however, the Airport Director will not unreasonably deny such plans and specifications. No changes or alterations shall be made to said plans and specifications after approval by the Airport Director. Immediately upon receipt of the County's written approval of said plans, specifications, and construction time schedule, Operator shall proceed with construction of said improvements. Work shail not be performed at times other than shown on the construction time schedule without the prior approval of the Airport Director. Operator shall construct all improvements and additions to the Leased Premises at its own expense, except that a credit shall first be given for past due amounts owed, in accordance with the terms of the Agreement attached hereto as Exhibit D, until the maximum credit referenced in that Agreement is reached. Thereafter, such improvements shall be at Operator's own expense. Although the County has the right to review proposed improvement plans, and veto the plans only if the plans are inconsistent with the airport development plans or construction quality and design control, pursuant to the standards set forth above, if the County does not veto said improvement plans, and Operator thereafter constructs the improvements, the improvements shall be commissioned and constructed at Operator's sole initiative and behest, and nothing herein shall be construed as an authorization by County to Operator to construct the improvements, or as an agreement by County to be responsible for paying for the improvements, except as listed in Exhibit D and neither the Leased Premises, nor the County's interest in said Leased Premises or any improvements constructed thereon, shall be subjected to a mechanic's lien for any improvements constructed by Operator hereunder. Where the cost of improvements exceed $100,000; the County may require Operator to post a bond or letter of credit or other security acceptable to the County 15 : : i i guaranteeing payment for construction of the improvements, as a condition precedent to the commencement of construction of the improvements. Operator shall be responsible for assuring that all of the improvements; alterations and additions to the Leased Premises are constructed in accordance with applicable local, state and federal law. Operator shall reimburse the County for all costs and expenses, including attorney's fees, the County incurs: (a) as a result of the fact that the improvements, additions, or alterations do not comply with local, state and federal law; (b) in defending against, settling or satisfying any claims that the County is responsible for paying for improvements commissioned by Operator hereunder, except as allowed in Exhibit D; or (c) in defending against, settling or satisfying any mechanic's lien claims, asserted as a result of unpaid for improvements commissioned by Operator hereunder. Should Operator construct improvements, alterations, or additions without fulfilling its obligations hereunder, Operator shall remove said improvements, alterations, or additions if so directed by the County, and shall do so at its own expense and within the time limits specified. The County shall, at any period during construction of Operator's improvements, alterations, or additions, have the right to inspect any or all construction work, workmanship, material and installation involved in, or incidental to, the construction or installation of the improvements, alterations, or additions, for conformance with the applicable standards set forth in this Agreement, provided that such inspection shall not include internal work that is exclusively of an operations (non-structural) nature, and provided further that no such inspections shall be deemed to constitute consent to or approval of any such work. Operator shall provide County with one complete set of "as-built" drawings for each improvement, alteration, or addition made to the Leased Premises during the term of this Agreement. Immediately upon completion of any improvements, alterations, or additions, Operator shall submit to the County a detailed, certified statement from the construction contractor(s), architect(s), and engineer(s) specifying the total construction costs, both hard costs such as building contractor and material costs and soft costs such as architect fees, bond costs, letter of credit fees, attorney fees to review and negotiate construction contracts and construction issues and for loan closing, and design and closing costs, but excluding debt service (collectively, "Direct Costs"), Operator shall also submit the proposed useful life of said improvements. The County shall review the costs and proposed useful life and upon its approval, said approval not to be unreasonably denied or delayed, such costs shall become the basis for depreciation of Operator improvements as provided for in Article XXVII 16 (or the amount applied to the past due amounts owed, in accordance with the terms of the Agreement attached hereto as Exhibit D, until the maximum credit referenced in that Agreement is reached). Title to all permanent leasehold improvements, alterations, or additions, as defined by Florida Law, will vest in the County upon termination or sooner expiration of this agreement, free and clear of any liens or encumbrances whatsoever arising by, through or under the Operator. Notwithstanding the above. paragraph, title to all of the Operator's trade fixtures and signs and personal property shall at all times during the term of this Agreement remain with the Operator. Operator shall not remove or demolish, in whole or in part, any improvements upon the Leased Premises without the prior written consent of the Airport Director, ARTICLE XIV SIGNS Operator shalt have the right in accordance with applicable law, at its own expense for construction, erection and maintenance, to place in or on the Leased Premises or Airport a sign or signs identifying the Operator. Operator shall also have the right in accordance with applicable law, at its own expense for construction, erection and maintenance, to place Operator identifying signage at the Airport entryway and to place directional signs to the FBO from the Airport entryway to the Leased Premises. Such sign(s) shall be of a size, shape and design, and at a location or locations, approved in writing in advance by the Airport Director and in conformance with standards established by the Airport Director with respect to the Airport's overall directional graphics and sign program. Sign(s) and location(s) may be changed and altered from time to time with the written approval of the Airport Director, said approval not to be unreasonably denied or delayed. The Operator, upon written request from the County, shall remove, at the Operators expense, all lettering and signs so erected on the Leased Premises at the expiration, said expiration to include any extensions, or sooner termination of this Agreement. ARTICLE XV VENDING MACHINES Amusement or vending machines or other machines operated by coins or tokens may be installed or maintained in or upon the Leased Premises, as well as any improvements or additions thereon, with the permission of the County, and the number, type, kind and locations thereof shall be solely in discretion of the County. Operator shall not permit the installation of any such machines, except by a concessionaire authorized by the County or unless the County agrees to Operator or its subtenants installing their own machines for use by the employees and guests of Operator and its subtenants. 17 ARTICLE XVI MAINTENANCE During the term of this Agreement, Operator agrees, at its own expense, to maintain and keep in good condition and repair, all portions of the Leased Premises, including any improvements, alterations, or additions thereon, and any utility lines thereon or thereunder. As used herein, maintenance shall include, without limitation, the upkeep, repair, and replacement of all structural aspects of the Leased Premises and all existing and future improvements thereto. Maintenance shall include, but not be limited to: 1. The maintenance of all fencing (excluding the airport perimeter fence), landscaping, foundations, walls, heating and cooling systems, drainage installations, curbs, islands, sidewalks, driveways, aircraft ramp, parking areas (vehicular and aircraft), and Operator-constructed