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

the grounds of race, color, religion, sex, national origin, or disability shall be subjected to discrimination in the construction of any improvements on, over, or under the Leased Premises and the furnishing of services therein; and (3) Operator shall use the Leased Premises in compliance with 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, Non-Discrimination 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. Operator shall furnish its accommodations and/or services on a fair, equal, and non- discriminatory basis to all users thereof and it shall charge fair, reasonable, and non- discriminatory prices for each unit or service, PROVIDED THAT Operator may be allowed to make reasonable and non-discriminatory discounts, rebates, or other similar type of price reductions to volume purchasers. County, as part of the consideration hereof, does hereby covenant and agree that Lessee will not be required to provide any service(s) or meet any requirement(s) contained in this Agreement, including Exhibit B hereto (Okaloosa County Minimum Standards for Fixed Base Operator), unless all Fixed Base Operators located at the Destin/Ft. Walton Beach Airport are providing the same service(s) or meet the same requirement(s), i.e., the Lessee would not be required to provide twin engine charter service unless all Fixed Base Operators at the Destin/Ft. Walton Beach Airport provide twin engine charter service. County, as part of consideration hereof, does hereby covenant and agree that any and all FBOs located at the Destin/Ft. Walton Airport may meet their Minimum Standards, as stated in Exhibit B, for maintenance, flight school, and charter operations by contracting with a certified third party, so long as done in accordance 22 with Articles XXXIV and/or XXXV of this Agreement, as applicable. In the event of breach of any of the above non-discrimination covenanis, the County shall have the right, subject to rights of cure otherwise, forth herein, to terminate this agreement and to re-enter and repossess said Leased Premises and hold the same as if said agreement had never been made or issued. ARTICLE XXII WAIVER Should Operator breach any of its obligations hereunder, the County, nevertheless, thereafter may accept from Operator any payment or payments due under this Agreement, and continue this Agreement in effect without in any way waiving its ability to exercise and enforce all available remedies upon default provided hereunder or provided by law for said breach. In addition, any waiver by either party of any default, breach, or omission of the other under this Agreement shall not be construed as a waiver of any subsequent or different default, breach, or omission. ARTICLE Xxiil DEFAULTS AND REMEDIES Events of Default: Subject to any cure periods otherwise set forth herein, the following shall constitute defaults by Operator: 1. Failure to pay any fees or any other monies owed hereunder, or under any other agreements between the parties, when such fees and monies are due. 2. The failure to keep any covenant, agreement, or obligation covered under this Agreement, or under any other agreement between Operator and the County. 3. The operation of the Operator should change to such an extent that it is no longer able to meet the criteria set forth in the Requirements and Minimum Standards for Services and Activities for the activities permitted under this Agreement or be able to provide these Requirements and Minimum Standards through a County approved third party at the Airport. 4. Operator undertakes any other commercial or noncommercial service or activity not specifically permitted under this Agreement, unless first approved by the County in writing. 5. If any court shall take jurisdiction of Operator and its assets pursuant to any proceeding other than under the provisions of the Bankruptcy Reform Act of 1978, or if a Receiver for Operator's assets is appointed, or if Operator shall be divested of its rights, powers, and privileges under this agreement by other operation of law, other than under the 23 Bankruptcy Act of 1978. Subject to casualty and the terms of Article XVIII hereof, abandonment of Operator's operations, which shall be defined as Operator's failure to conduct regular and continuing operations on the Leased Premises in accordance with the requirements hereof for thirty (30) days. A default in, or the termination of any other agreement between Operator and the County, or default in or the termination of any sublease executed between Operator and any third party pursuant to which Operator is entitled access to land, buildings, improvements, or any portions thereof, tocated on the Airport, or to do business on the Airport. Should the County so request in writing after execution of this Agreement, Operator shall provide a copy of the additional agreements pursuant to which Operator is authorized to do business on the Airport, within ten (10) days of said notice. The failure to provide copies of said agreements shall also constitute a default on Operator's part and shall entitle the County to exercise any and all of its default powers set forth in this Agreement. Remedies Upon Default: Upon the occurrence of any of the events of default set forth above, the County may exercise any one or more of the following remedies. These remedies shall be cumulative and not alternative: 1. The County may sue for recovery of all damages incurred by the County, including incidental damages, consequential damages, if any, and attorney's fees. The County may utilize any portion, or all, of the security deposit provided by Operator to remedy the default and to reimburse the County for any damages, including attorney’s fees and other expenses of collection that it may sustain as a result of the default. In such event, Operator shall not be permitted to resume operations under this Agreement until such time as it furnishes another security deposit that satisfies the requirements of Article VIII. However, this Agreement shall not be deemed terminated during said period unless written notice of termination shall have been given and become effective in accordance with subparagraph 3, below. The County may terminate this Agreement and, at the option of the County, any other agreement in effect between the County and Operator. The termination of these agreements, however, shall only be effective upon written notice of same provided by the County to Operator as required in Article XXIII, Remedies Upon Default, No. 6. In no event shall this Agreement be construed to be terminated unless and until such notice is provided. With respect to Article XXIII, Events of Default, Nos. 3 and 6, only, the termination may be effective 24 immediately upon provision of said notice, or at any other time specified in the notice. If this Agreement is terminated, Operator shall continue to be liable for: (a) the performance of all terms and conditions and the payment of all monies due hereunder prior to the effective date of said termination; (b) all damages, including attorney's fees and other expenses of collection, incurred as a result of any default; and (c) all conditions, terms and obligations in Article XI of this Agreement, entitled Insurance and Indemnification. Without terminating the Agreement by so doing, and without further notice to Operator, the County may reenter the Leased Premises with process of law, repossess the Leased Premises and all fixtures and improvements thereon, and remove Operator and any third parties who may be occupying or within the Leased Premises and all of their respective personal property, by using either such reasonable force as may be necessary, summary proceedings, ejectment, or any other means the County, in its sole discretion, deems appropriate without being deemed guilty of trespass, eviction, or forcible entry and detainer by so doing. In such case, the County shall be obligated to attempt, in good faith, to negotiate the reletting of the Leased Premises, and any improvements thereon, or any portion thereof, on behalf of Operator, for such period of time and upon such terms and conditions as the County deems appropriate. The County shall in no way be obligated under the terms of this subparagraph to relet all or any portion of the Leased premises, or any improvement thereon, to any third party, or upon terms and conditions that are not acceptable to the County, or which the County, in its sole discretion, does not feel to be in the best interests of the Airport; nor shall the County be responsible for any failure of the sub operator or new tenant to pay rent or to perform any other conditions due upon such reletting. Operator hereby expressly authorizes the County to make any reasonable repairs necessary to relet the Leased Premises or any improvements thereon, on Operator's behalf. Assuming the County attempts to relet the Leased Premises in good faith, whether or not the County is able to relet the Leased Premises, Operator shall remain liable for the performance of all terms and conditions of the Agreement and the payment of all fees due under the terms of the Agreement for the remainder of the Leasehold term, although Operator shall receive credit for any fees paid or conditions performed as a result of subletting. Operator shall also be responsible for reimbursing the County for all costs and expenses the County incurs in reletting or attempting to relet the Leased Premises, including commission/broker fees and reasonable repair costs. Finally, if, as a result of such reletting, the County becomes entitled to receive excess fees or other benefits over and above what the County would have been entitled to receive under this Agreement, the Operator shall be entitled to retain all such surplus fees and other benefits, and the County shall have no rights or interest therein. 25 The County may utilize any other remedy provided by law or equity as a result of any events of default. Notwithstanding anything in this Lease to the contrary, Operator will not be in default under Article XXIII, Events of Default, Nos. 1, 2, 4, 5, 6 and 7, of this Lease unless and until Operator defaults in the payments of rent, and fails to pay said rent for a period of thirty (30) days after receipt of written notice from County, or Operator defaults in the performance of any provision under this Lease and fails to cure said default within thirty (30) days of receipt of written notice from County, or, if such default is of a nature that it could not reasonably be cured within thirty (30) days after receipt of such written notice and Operator does not commence and proceed with reasonable diligence and in good faith to cure such default. ARTICLE XXIV NONADEFAULT TERMINATION EVENTS A. Non-Default Termination Events: The occurrence of any of the following shall constitute a non-default termination hereunder and entitle the Operator to terminate this Agreement by giving ninety (90) days written notice: 1. The lawful assumption by the United States of America, or any authorized agency thereof, of the operation, control, or use of the Airport, or any substantial part or parts thereof, in such a manner as to substantially restrict the Operator from operating therefrom for a period in excess of ninety (90) days. 2. The abandonment of the Airport as an airport or airfield for a period greater than 90 days. 3. In the event this Agreement is terminated under Article XXIV(A)(1) or under Article XXIV(A)(2), above, the County is obligated to comply with the terms of Article XXVII. B. Termination for Other Purposes: In accordance with Article XXXI, if the County at any time during the term of this Agreement determines, in its sole judgment,