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Filing # 186413885 E-Filed 11/17/2023 05:01:13 PM
LEASE AND PROPERTY OPERATION AGREEMENT
THIS LEASE AND PROPERTY OPERATION AGREEMENT (this “Agreement”) is
between the City of Clearwater, Florida, a municipal corporation of the State of Florida (the “City”
or “Lessor”) and FlyUSA PV, LLC, a Florida limited liability company (“Lessee” and collectively
with Lessor, the “Parties”).
RECITALS
WHEREAS, Lessor is the owner of the Clearwater Airpark, located at 1000 N. Hercules
Avenue, Clearwater, Florida 33765, which Lessor intends to revitalize through redevelopment of
the facilities; and
WHEREAS, Lessor intends for the Clearwater Airpark to continue to be used as a public-
use airport that provides safe and efficient services for the benefit of the public by means ofa lease
and operating agreement; and
WHEREAS, Lessee desires to acquire the lease and operational rights for the Clearwater
Airpark in exchange for certain rental payments; and
WHEREAS, Lessor and Lessee seek to obtain matching grant funds from the Florida
Department of Transportation (“FDOT”) for certain capital improvement projects for the
Clearwater Airpark with Lessor to provide funding contributions upfront and Lessee to provide
reimbursement to Lessor for a portion of total project costs; and
WHEREAS, Lessee is dedicated to ensuring that flight training remains available at the
Clearwater Airpark while at the same time mitigating noise pollution and disturbance to nearby
single-family neighborhoods; and
WHEREAS, Lessee is dedicated to providing current active tenants leasing space for
aircrafts with opportunities to continue leasing space at the Clearwater Airpark; and
WHEREAS, the Parties intend to work together in good faith to secure the funds from
FDOT and move forward with the revitalization and redevelopment of the Clearwater Airpark.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereby agree as follows:
Article 1
Definitions
1 “Aeronautical Activity or Service” - Shall mean any activity or service which
involves, makes possible, or is required for the operation of aircraft or which contributes to, or is
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***ELECTRONICALLY FILED 11/17/2023 05:01:12 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
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, flight training school, aircraft rental,
aircraft storage, air taxi operations, 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 aircraft parts, sale and maintenance of
aircraft accessories, radio, communication and navigation equipment, flying clubs and any other
activity which, because of its direct relationship to the operation of aircraft, can appropriately be
regarded as an "Aeronautical Activity or Service". Aeronautical Activity or Service shall not include
regularly scheduled air carrier operations, skydiving, glider training and operations (motorized and
nonmotorized), aerial advertising, crop dusting, all manufacturing, fabricating or assembly operations
or ultra-light operations; therefore, these activities are expressly prohibited at the Airpark.
2. this “Agreement” — Shall mean this Lease and Property Operation Agreement.
3. the “Airpark” - Shall mean the Clearwater Airpark, owned by the City and more
particularly described in Exhibit “A”.
4. the “City” or “Lessor” - Shall mean the City of Clearwater, Florida, and any of
the designated officials of the City who are vested with the specific authority to govern the activities
of the Airpark.
5. “Airpark Tenant” - Shall mean any entity other than Lessee that holds a lease or
other agreement authorized by this Agreement for use of the Premises to conduct Aeronautical
Activity or Service.
6. the “Master Plan” - Shall mean the master plan for the Airpark as adopted by
Lessor’s city council on or about October 5, 2000, as amended on May 20, 2021, and any subsequent
amendments thereto approved by Lessor’s city council, and the scaled dimensional layout of the entire
Airpark, indicating current and proposed usage for each identifiable segment as approved by Lessor
and the State of Florida attached to this Agreement as Exhibit “C”.
7. “Structures” — shall mean above ground buildings, runways, taxiways and other
objects permanently affixed to the ground at the Airpark.
Article 2
Premises
2.1 Premises. Lessor hereby leases to Lessee and Lessee leases from Lessor, upon all
of the conditions set forth herein, that certain real property situated in Pinellas County, Florida, at
1000 N. Hercules Avenue, Clearwater, Florida 33765, commonly known as the Clearwater Airpark
and consisting of the real property legally described in Exhibit “A” attached hereto and made a
part hereof (hereinafter referred to as the “Premises” or the “Airpark”), together with all
improvements thereon and appurtenances thereto.
2.2 Lessor Access to Premises. Lessee acknowledges and understands that Lessor
shall continue to have access to the Premises in order to fulfill its obligations under this Agreement,
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perform any municipal function of government, or exercise any other right it has to access the
Premises provided in this Agreement or otherwise by law. Lessor shall continue to have access to
all surface and subsurface utilities within the Premises for the construction, repair, maintenance,
alteration, replacement, relocation, or removal of such utilities. Furthermore, Lessee understands
that Lessor and the public shall continue to use the access road located on the Western side of N.
Hercules Ave. for ingress and egress to the Premises as well as to the adjacent municipal
compressed natural gas station.
Article 3
Term
3.1 Initial Term. Unless terminated earlier pursuant to the terms and conditions of this
Agreement, the initial term of this Agreement shall begin on March 1, 2023 and shall continue
until February 29, 2028 (the “Initial Term’).
3.2 Renewal Periods.
a) Upon the expiration of the Initial Term and provided that Lessee is not then in
default, Lessee shall have the unilateral option to renew this Agreement for one (1)
five (5) year renewal period (the “First Renewal Period”). Subsequent to the First
Renewal Period and upon mutual agreement of the Parties, the Parties shall have
the option to extend this Agreement for four (4) additional five (5) year renewal
periods (each, a “Subsequent Renewal Period” and collectively, the “Subsequent
Renewal Periods”).
b) In the event that Lessor does not agree to renew this Agreement for the second
renewal period, Lessor agrees to pay to Lessee at the end of the First Renewal
Period a sum of 1.5 times the amount Lessee has expended on the design and
construction of FDOT Projects as identified in Article 12, Section 12.2. This
requirement shall not apply to renewal options not agreed to by Lessor after the
second renewal period.
¢) Lessee shall provide Lessor with written notice of Lessee’s intent to renew this
Agreement no later than one hundred and twenty (120) days prior to the expiration
of the Initial Term or, if renewed previously, one hundred and twenty (120) days
prior to the expiration of any of the aforementioned renewal terms (“Notice of
Renewal”). In the event Lessee does not agree to renew this Agreement within the
notice period, this Agreement shall be subject to termination at the end of the
current term at the discretion of Lessor without penalty to Lessor.
Article 4
Building
Lessor shall provide a building to serve as a general aviation terminal for use by Lessee that
contains a reasonable amount of space properly lighted for office space, storage, a public waiting area
that includes indoor restroom facilities, and a public use telephone. Upon fifteen (15) days’ notice
from Lessor, Lessee shall provide meeting space for City employees and officials for meetings on
matters arising out of or relating to the Airpark.
Article 5
Standard Requirements for Airpark Operation and All Services
5.1 In its operation of the Airpark and providing all of the services or activities specified
in this Agreement, Lessee shall operate the Airpark for the use and benefit of the public and meet or
exceed the following requirements and standards:
a) Lessee shall furnish service and access to the Premises on a fair, reasonable and
nondiscriminatory 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.
b) Lessee shall select and appoint a full-time manager of its operations at the Airpark.
The manager shall be qualified, 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. Lessee agrees that a duly authorized representative shall attend any City
meeting that Lessor deems necessary that involves the operation of the Airpark to answer any
questions about the Airpark’s operations.
c) Lessee shall provide, at its sole expense, qualified and trained employees during
hours of operation to provide the services required or authorized by this Agreement. Lessee's
employees shall maintain a seven (7) day week schedule to support the Aeronautical Activity and
Service as well as other uses authorized by this Agreement consistent with the Airpark’s hours of
operation. Lessee shall also provide an adequate number of staff to ensure after hours security and
serve as a reporting mechanism for unauthorized take offs and landings between the hours of 11:00
p.m. and 7:00 a.m.
d) 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.
e) Lessee shall meet all expenses and payments in connection with the use of the
Premises and the rights and privileges herein granted, including licenses or permits requw
in the normal course of business. Lessee shall pay all taxes and assessments against the Premises
leased to Lessee by this Agreement, and against the leasehold and any other property interests under
this Agreement. Lessee may, however, at its sole expense and cost, contest any tax, fee or assessment.
f) During the term of this 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, design, and at a location or locations approved by Lessor and must comply with all City code
requirements. Lessee shall remove, at its expense, all lettering, signs and placards so erected on the
Premises at the expiration or termination of this Agreement.
g) Lessee shall create and utilize lease forms for the rental of shade hangars, T-
hangars, corporate hangars, and tie down rental spaces for airplanes. Hangar and tie down vacancies
shall be filled in a fair, impartial, and nondiscriminatory manner in accordance with a policy
developed by Lessee which shall be made available to Lessor upon request.
h) Lessee shall provide, upon Lessor’s written request documentation as to Lessee's
technical and financial ability to perform the services of proposed operation at all times 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 Lessee as to its correctness
and reviewed by the City auditor and other licenses, permits or certificates required by law and
applicable to Lessee's proposed operation.
1) Lessee shall not do business on the Premises in any business name other than the
name of the business as it appears in this Agreement or the names “FlyUSA” or “FlyUSA, Inc.”
without written permission of Lessor.
d Hours of Operation. Except as specifically provided otherwise in Article 13 of
this Agreement, aircraft shall be permitted to operate from the Airpark between 7:00 a.m. and 11:00
p.m. for takeoffs and landings. The Airpark shall be closed to takeoffs and landings at all other times
except when authorized in writing by the City Manager or designated representative. Takeoffs and
landings beginning at 6:00 a.m. for traffic reporting aircraft shall only be with the written permission
of the City Manager or designated representative, and such permission is revocable at any time within
the City Manager’s sole discretion. Emergency "on call" service will be provided during off duty
hours by Lessee.
k) 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.
1) Customary accommodations for the convenience of users, including passenger and
pilot lounge areas, information services, telephone service connections to the Flight Service Station
and/or the United States Weather Bureau, pilot accessories, appropriate vending machines, and rental
car services as may be appropriate shall be provided by Lessee.
m) Lessee shall ensure the availability 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 and laws.
n) Unicom System and NOTAMS. Lessee shall provide, maintain, and operate an
airport UNICOM station providing continuous airport advisory services during the hours set forth in
Section 5.1(j), Hours of Operation. By federal law, Lessor shall be the sole holder of the Unicom
station license. Lessee shall be responsible for promptly issuing Notice to Airmen (“NOTAMs”) and
other necessary public information involving the status and operation of the Airpark as well as any
condition affecting aeronautical use of the airport.
o) Instrument Approach. The Parties hereby agree that Lessee shall be responsible
for working with the Federal Aviation Administration (“FAA”) to publish an instrument approach
at the Airpark (the “Instrument Approach”). If the Instrument Approach is published, Lessor shall
be the sole owner of the Instrument Approach in perpetuity. Lessee understands and acknowledges
that its efforts to obtain the Instrument Approach shall not grant Lessee any rights to the Instrument
Approach and Lessee shall retain no rights in or to the Instrument Approach.
p) Notifications. Lessee shall promptly notify the City Manager or designated
representative of any dangerous or unsafe conditions, accidents, or other incidents involving
damage to property or injury to persons at or connected to the Airpark.
q) Lessee agrees to comply with the American Disabilities Act (“ADA”) requirements
as they pertain to the general aviation terminal.
Article 6
Minimum Requirements for Aviation Petroleum and Ramp Services
6.1 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:
a) Personnel. Lessee shall employ at least two (2) full-time employees properly trained in
aircraft fueling and ramp safety procedures and shall ensure a sufficient number of personnel to
provide after-hours security.
b) Services. Lessee shall provide aircraft ground guidance within the uncontrolled areas
adjacent to the Premises and ramp service, including sale and into plane delivery of aviation fuels,
lubricants, and other related aviation products. 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.
c) Fuel Facilities and Fuel Supply. Lessor shall furnish two (2) leased metered and filter
equipped dispensers, for dispensing aviation fuel from storage tanks. The tanks will consist of one (1)
12,000-gallon tank for dispensing 100-octane fuel (““Avgas fuel’) and one (1) 12,000-gallon tank for
dispensing Jet A fuel. Lessor shall be responsible for any repair and maintenance of the fuel storage
tanks.
d) Lessee shall ensure the maintenance of pumping equipment in “as is” condition and
meeting all applicable safety requirements with reliable metering, filtering and grounding devices
subject to independent inspection and with a pumping efficiency capable of servicing aircraft. An
adequate supply of 100 octane and Jet A fuel shall be maintained at all times by Lessee 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 the fuel dispensing equipment on the Premises including
repair and maintenance of such equipment regardless of ownership.
Article 7
Minimum Requirements for Aircraft Rental
7A Should Lessee elect to allow or provide aircraft rental services on the Premises, the service
shall be operated for the use and benefit of the public and shall meet or exceed the following standards:
a) Personnel. Certified Flight instructors sufficient in number to meet service demands
with ratings appropriate for aircraft for rent and currently certified by the FAA shall be employed.
b) Aircraft. A total of at least one (1) airworthy, properly equipped aircraft and at least
one (1) airworthy, properly equipped instrument single-engine aircraft, owned or leased in writing to
Lessee or service provider shall be furnished by Lessee or service provider.
c) Customer Notification. Lessee or service provider shall post a sign or placard visible
to all rental customers giving notification of insurance coverage, renter liability, and other legal risks
associated with any aircraft rental agreement.
Article 8
Minimum Requirements for Aircraft Sales
8.1 Should Lessee elect to allow or provide aircraft sales on the Premises, the service shall be
operated for the use and benefit of the public and shall meet or exceed the following standards:
a) Personnel. At least one (1) commercial pilot currently certified by the FAA, with
ratings appropriate for the types of aircraft to be demonstrated shall be employed.
b) Dealerships. It shall be at the discretion of Lessee or service provider: (1) whether to
be an authorized factory dealer; or (2) what manufacturer Lessee or service provider chooses to
represent. All aircraft dealers shall hold a dealership license or permit.
Article 9
Minimum Requirements for Air Taxi Operations
9.1 Should Lessee elect to allow or provide air taxi or commuter air operations on the
Premises, the entity providing such services must be certified by the FAA under Federal Aviation
Regulation Part 135 and Part 121 and registered with the Civil Aeronautics Board under the Economic
Regulations of Part 298, and meet the following minimum standards:
a) Personnel. A sufficient number of commercial and/or airline transport pilot(s)
certified by the FAA to conduct the air taxi shall be employed to meet service demands.
b) Aircraft. A minimum of one (1) airworthy, instrument aircraft is required.
Beyond this minimum requirement, it shall be left to the discretion of Lessee or service provider 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 Lessee or service provider, will
be airworthy, and meet all requirements of the certificate held. Such aircraft shall be under the full
operational control of Lessee or service provider.
Article 10
Default and Termination
10.1 Termination by Lessee. This Agreement shall be subject to termination by Lessee at
its option in the event of any one or more of the following events:
a) The material default by Lessor in the performance of any of the terms, covenants
or conditions of this Agreement, and in the failure of Lessor to remedy, or undertake to remedy, to
Lessee’s satisfaction, such default for a period of thirty (30) days after receipt of written notice from
Lessee to remedy the same. In the event the Lessor has commenced to cure the material default,
but it is of such nature that it cannot be completely cured within thirty (30) days, then Lessor shall
have such reasonable additional time as is necessary to cure the material default;
b) The abandonment by Lessor of the Airpark as an airport or airfield;
c) Complete destruction of all or a substantial portion of the Airpark pursuant to
Article 17, Section 17.5 and not repaired within three hundred and sixty-five (365) days; or
d) 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 restrict substantially Lessee from conducting business operations for a period
in excess of forty-five (45) days.
10.2 Termination by Lessor. This Agreement shall be subject to termination by Lessor at
its option in the event of any one or more of the following events:
a) The material default by Lessee in the performance of any of the terms, covenants
or conditions of this Agreement, and in the failure of Lessee to remedy, or undertake t ito
Lessor’s satisfaction, such default for a period of thirty (30) days after receipt of written notice trom
Lessor to remedy the same. In the event the Lessee has commenced to cure the material default,
but it is of such nature that it cannot be completely cured within thirty (30) days, then Lessee shall
have such reasonable additional time as is necessary to cure the material default;
b) 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 affairs of Lessee and such receivership is not vacated within
thirty (30) days after the appointment of such receiver. Such an event shall be considered a material
default;
c) Lessor determines that a municipal need exists for all or part of the Premises
consistent with Lessor’s Charter; or
d) Lessee has violated the terms of this Agreement by a documented consistent pattern
of conduct detrimental to the operation of the Airpark.
10.3 Exercise. Exercise of the rights of termination set forth in Sections 10.1 and 10.2,
above, shall be by thirty (30) days’ written notice to the other party. Forbearance of timely notice
shall not be deemed a waiver of any breach.
10.4 Surrender; Effect of Termination. Upon termination of this Agreement, Lessee
shall promptly vacate and surrender to Lessor the Airpark and any Lessor assets contained therein.
In any event, such surrender shall be complete on the later of ninety (90) days after receipt of
written notice of the intent to terminate or thirty (30) days following effective date of termination.
Upon termination of this Agreement for any reason, Lessee, at its sole expense, shall remove from
the Premises all signs, trade fixtures, furnishings, personal property, equipment and materials which
Lessee was permitted to install or maintain under the rights granted herein and make any repairs to
the Premises necessitated by such removal. If Lessee shall fail to do so within the aforementioned
time period, Lessor may affect such removal or restoration at Lessee’s expense, and Lessee agrees to
pay Lessor such expense promptly upon receipt of a proper invoice therefore.
10.5 Additional Remedies for Material Default. If a material default shall remain
uncured thirty (30) days after written notice thereof to the defaulting party, then, in addition to the
right of termination, the non-defaulting party may pursue any and all legal or equitable remedies
to which the non-defaulting party is entitled, including an action for declaratory or injunctive
relief. In the event the defaulting party has commenced to cure the material default, but it is of
such nature that it cannot be completely cured within thirty (30) days, then defaulting party shall
have such reasonable additional time as is necessary to cure the material default. The non-
defaulting party will have all other rights granted under this Agreement and all rights at law or in
equity that may be available to it.
10.6 Anticipatory Repudiation. Whenever Lessor in good faith has reason to question
Lessee’s intent or ability to perform, Lessor may demand that Lessee give a written ass
Lessee’s intent and ability to perform. In the event that the demand is made and n a
assurance is given within fifteen (15) calendar days, Lessor may treat this failure as an
anticipatory repudiation of the Agreement and Lessor shall be entitled to terminate this
Agreement as provided in Section 10.3.
10.7 Waiver. 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 11
Rent and Other Expenses
11.1 Rent. Rent shall be due in monthly installments (the “Monthly Rent”). For the
Initial Term and the First Renewal Period, the Monthly Rent shall be in the amount of twenty
thousand dollars ($20,000.00). The Monthly Rent shall increase annually by the higher of 3% or
the increase in the CPI-U, based on the twelve (12) month period ending two (2) months prior to
the effective date of the increase. Additionally, beginning in the second renewal term, the Monthly
Rent shall experience a one-time increase of twenty-five thousand dollars ($25,000.00) per month.
Lessee agrees to pay the pro rata share of any partial year during the beginning or end of this
Agreement. The Monthly Rent shall be due on or before the first day of each calendar month for
that calendar month’s rent payment. Lessee agrees to pay Lessor’s sales tax on all rent payments.
Lessor shall invoice Lessee for the Monthly Rent via U.S. Mail with invoices deemed “received”
five (5) calendar days after mailing or through such other means mutually agreed upon by the
Parties in writing.
11.2 Deferred Rent Increase. Notwithstanding Section 11.1, for each twenty-five
thousand dollars ($25,000.00) that Lessee reimburses Lessor in excess of two million four hundred
thousand dollars ($2,400,000.00) (the “Monetary Threshold”) towards FDOT Projects (as
identified in Article 12, Section 12.2), there will be a one (1) month delay in commencement of
the twenty-five thousand dollar ($25,000.00) per month rent increase scheduled to become due
during the second renewal term of this Agreement. Should Lessee’s reimbursement costs exceed
the Monetary Threshold after the second renewal term has begun, the twenty-five thousand dollar
($25,000.00) rent increase shall be suspended beginning the next calendar month for a period of
one (1) month per every twenty-five thousand dollars ($25,000.00) reimbursed to Lessor over the
Monetary Threshold. In any event, Lessee shall remain responsible for reimbursing all of Lessor’s
costs for the aforementioned FDOT Projects. Nothing in this section obligates Lessor to construct
any of the FDOT Projects outlined in Article 12, Section 12.2. Such obligations solely arise under
Article 12.
11.3 Delinquency Charge. A rent or fee payment shall be delinquent if not paid on or
before the tenth (10") day following the due date and shall accrue interest at the maximum amount
allowable by law until paid. Furthermore, a delinquent rent or fee payment shall be considered a
material default under this Agreement.
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11.4 Place of Payment. All payments due Lessor from Lessee shall be delivered to the
Marine & Aviation Department, City of Clearwater, 25 Causeway Boulevard, Clearwater, Florida
33767.
11.5 Records and Right to Audit. Lessee agrees to keep all books, accounts, records,
and other documents covering all transactions relating to this Agreement in accordance with
generally accepted accounting principles for a period of five (5) years and for such additional
reasonable period as Lessor may request. Lessor shall have the right to examine such books,
accounts, and records and all other documents and material in Lessee’s possession or under its
control, with respect to gross sales, tenant fees, sub-lease proceeds, and associated Airpark
expenses in accordance with the terms of this Agreement and shall have a reasonable amount of
freedom and access thereto for such purposes and for the purpose of making copies and/or abstracts
therefrom. Lessor reserves the right to conduct or cause to be conducted an independent audit of
any financial transaction under this Agreement, such audit may be performed by the City’s audit
staff, a certified public accountant firm, or other auditors designated by Lessor and will be
conducted in accordance with applicable professional standards and practices.
11.6 The acceptance by Lessor of any statement by Lessee, or of any payment, shall not be
deemed a waiver of the right of Lessor 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 Lessor for any overpayment.
11.7 Associated_and Capital Expenses. Lessee shall pay all of Lessor’s non-capital
expenses associated with the Premises, to include all utilities payments, grounds maintenance,
minor repairs and maintenance to the Airpark, security, taxes, assessments, and all other operating
expenses which are necessary to properly operate the Premises (“Associated Expenses”). Lessor
shall be responsible for payment of all capital expenses (“Capital Expenses”). For purposes of this
Agreement, Capital Expenses shall mean those expenses for major repair or replacement of
Structures or other utilities located on the Premises, or to the real estate upon which the Structures
or utilities are located. Additionally, Capital Expenses shall also mean those expenses for the repair
or replacement of any City-owned equipment and vehicles that are not considered fixtures
including vehicles and trailers, but specifically excluding fuel pumping equipment, the City-owned
tractor, and any lawn mowing equipment.
Article 12
FDOT Capital Improvement Projects
12.1 EDOT Funding. Lessor agrees in good faith to pursue FDOT funding for certain
capital improvement projects that repair, redevelop, and revitalize the Airpark as outlined in Section
12.2. In consideration for this task, Lessee shall fully reimburse Lessor as provided in this Section
12.1 (a)-(c). The Parties agree that the projects described in Section 12.2 will encompass all of the
FDOT capital improvement projects (the “FDOT Projects” or each an “FDOT Project”)
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contemplated under this Agreement. The Parties shall work together in good faith to prioritize and
select the projects to submit to FDOT for matching funding. Lessor will continue to fu mm
capital improvement projects not specified as FDOT Projects under Section 12.2, and su Ss
shall be selected at the discretion of Lessor.
a) Eighty Percent (80%) Funding. If FDOT determines that any portion of an FDOT
Project qualifies for matching funds to cover eighty percent (80%) of the local share of
general aviation airport project costs, the City shall cover the remaining twenty percent
(20%) of funding upfront and Lessee shall be responsible for fully reimbursing the City
for the City’s match plus any cost overages exceeding the total FDOT Project grant
amount.
b) Fifty Percent (50%) Funding (Airpark Terminal). If FDOT determines that the
redevelopment of the Airpark terminal and associated parking lot (the “Terminal
Project”) or any portion thereof qualifies for matching funds to cover only up to fifty
percent (50%) of the costs to design and construct the Terminal Project, Lessor agrees
to cover the Lessor’s portion of the fifty percent (50%) funding requirement using City
funds in an amount not to exceed seven hundred and fifty thousand dollars
($750,000.00) total without expectation of reimbursement by Lessee. Should the funds
necessary to satisfy the Lessor’s match contribution for the Terminal Project exceed
seven hundred and fifty thousand dollars ($750,000.00), Lessor shall cover the
additional funds necessary to meet the funding requirement upfront and Lessee shall
be responsible for reimbursing the City for these additional funds contributed towards
the match and any cost overages exceeding the total Terminal Project FDOT grant
amount.
c) Fifty Percent Funding for Other Airpark Projects. If FDOT determines that any other
FDOT Project, or any portion thereof, only qualifies for matching funds to cover up to
fifty percent (50%) of the FDOT Project, Lessor and Lessee shall work in good faith to
reasonably determine whether or not to move forward with the FDOT Project and how
to allocate each party’s contribution.
12.2 Schedule of FDOT Projects. The Parties agree that the FDOT Projects shall be
developed in the chronological order described in this Section 12.2. The below prioritization of
FDOT Projects shall not prohibit the Parties from commencing work on a subsequent FDOT
Project before a previous FDOT Project has been completed so long as the previous FDOT Project
has commenced development. For purposes of this Agreement, "commenced development” shall
mean that applications for an FDOT Project have been submitted in good faith for development
approvals or building permits to the City of Clearwater. The Parties further agree that should any
other FDOT capital improvement project not listed below become necessary to address serious or
immediate health and safety concerns at the Airpark, such a project may, at the discretion of
Lessor, take priority over any FDOT Project.
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1) 2023-24 goal: Design and construction of the new airpark terminal building and
associated parking lot;
2) 2024-25 goal: Design and construction of new corporate hangars; and
3) 2025-26 goal: Design and construction of two additional rows of T-hangars and a
corporate hangar.
12.3 Selection of Design and Construction Professionals. The Parties agree that
the selection of the design and construction professionals for the FDOT Projects will be handled
in accordance with the City’s procurement ordinances, policies, and procedures. Such
professionals shall include but not be limited to architects, landscape architects, engineers,
surveyors, construction managers, design firms, and construction management companies. The
committee for the selection of such professionals shall contain five (5) members with four (4)
members selected by Lessor and one (1) member selected by Lessee.
12.4 Scope of FDOT Projects. The Parties agree that the designs, scale, scope, costs,
and FDOT grant requests for the FDOT Projects shall be mutually agreed to by the Parties with
the assistance of the design and construction professionals selected via the City’s procurement
processes. In the event the Parties are unable to mutually agree to the design, scale, scope, cost,
or FDOT grant request for any FDOT Project, the FDOT Project in question shall not be pursued
further by the Parties and Lessee shall continue to manage the Airpark for the remainder of the
current lease term excepting those circumstances that warrant early termination as specified under
Article 10.
12.5 Letter of Available Funding. As a condition precedent to the hiring of any design
or construction professionals as referenced in Section 12.3 for an FDOT Project, Lessee shall
provide Lessor with an official letter from an accredited banking institution indicating Lessee has
sufficient funds to cover Lessee’s reimbursement obligations for Lessor’s grant match for the
FDOT Project.
12.6 Master Plan. The Parties understand that amendments or revisions to the Master
Plan may be necessary to permit the development of one or all of the FDOT Projects. In the event
such amendments or revisions are necessary, Lessor agrees to cover the costs of such amendments
or revisions.
12.7 FDOT Project Reimbursement.
a) Lessor shall invoice Lessee in arrears on a quarterly basis via U.S. Mail or through
such other means mutually agreed upon by the Parties in writing for those funds
owed to Lessor and expended on design and construction of the FDOT Projects.
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b) Invoices for Lessee’s share of the design costs expended on an FDOT Project shall
become due and payable to Lessor during the next quarter and every subsequent
quarter following the creation of the initial project design ofan FDOT Project. For
purposes of this section, design costs shall mean those costs expended on preparing
the design and development plans for an FDOT Project as well as costs expended
on obtaining development approvals, building permits, and any other necessary
government approvals or permits. For purposes of this Agreement, the initial
project design is the design professional’s first attempt at designing the FDOT
Project with the input received from the Parties and is created before the FDOT
Project is submitted to any government agency for development approvals, building
permits, or other necessary government approvals or permits.
¢) Invoices for Lessee’s share of the construction costs expended on an FDOT Project
shall become due and payable to Lessor during the next quarter and every
subsequent quarter after an FDOT Project has commenced construction. For
purposes of this Agreement, construction costs shall mean those costs expended on
the preparation for and actual construction of an FDOT Project. For purposes of
this Agreement, "commenced construction” shall mean that all preconstruction
engineering and design work has been completed, all necessary licenses, permits
and local and national environmental clearances have been received, all contractors
have been engaged and ordered all essential equipment and supplies as. , in each
case, can reasonably be considered necessary so that physical construction of the
eligible FDOT Project may begin and proceed to completion without foreseeable
interruption of material duration, and physical construction (including, at a
minimum, excavation for foundations or the installation or erection of
improvements) at the primary site of the eligible project has begun.
d) For purposes of this section, an invoice shall be considered “received” five calendar
(5) days after mailing. Invoices not paid on or before the tenth (10") day following
the due date shall be considered delinquent and shall accrue interest at the maximum
amount allowable by law until paid. Furthermore, a delinquent invoice shall be
considered a material default under this Agreement.
e) In the event Lessee elects to not agree to renew this Agreement pursuant to Article 3
before all Renewal Periods have been exercised, Lessee shall remain responsible for
its reimbursement obligations to the City as provided in this Article 12 for FDOT
Projects as follows:
1 Lessee shall remain responsible for its reimbursement obligations for design
costs for an FDOT Project where the initial project design for an FDOT Project was
created during the current or a previous lease term.
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2. Lessee shall remain responsible for its reimbursement obligations for
construction costs for an FDOT Project where construction has commenced during
the current or a previous lease term.
12.8 Place _of Payment. All payments due Lessor from Lessee for FDOT Project
reimbursement costs and expenses shall be delivered to the Marine & Aviation Department, City of
Clearwater, 25 Causeway Boulevard, Clearwater, Florida 33767.
12.9 Inability to Obtain FDOT Project Funding. In the event that through no fault of
Lessor and Lessee, the Parties are unable to obtain any portion of the funds requested from FDOT
to design or construct any of the FDOT Projects specified in Section 12.2, the Parties shall decide
whether or not a particular FDOT Project shall move forward and on what terms. Regardless,
Lessee agrees to continue to manage the Airpark for the remainder of the current lease term
excepting those circumstances that warrant early termination as specified under Article 10.
Article 13
Use
13.1 Use. The Premises shall be used and occupied only for use as an airpark and for
aviation-related purposes. Use as an airpark and other aviation-related purposes shall include, but
not be limited to Aeronautical Activity or Service, takeoff and landing of aircraft, restaurant, retail,
office space, and any other activities which may be considered necessary to the operation of the
Airpark but not expressly prohibited under the definition of “Aeronautical Activity or Service”
Article 1. Lessee shall be entitled, in common with others so authorized, to the use for their intended
purposes of all facilities and improvements of a public nature which now are or may hereafter be
connected with or appurtenant to the Airpark, including the use of landing areas, runways, taxiways,
navigational aids, terminal facilities and aircraft parking areas designated by Lessor.
13.2 Air Taxi Service Use. If in the future Lessee has the opportunity to provide air taxi
services to locations within the City with Electric Vertical Take-Off Landing Vehicles
(“EVTOLs”) or other appropriate aircraft based at the Airpark, such a use shall be allowed under
this Agreement.
13.3 Flight School Use.
a) In consideration of the restrictions agreed to in this Article 13, Lessee shall in good
faith, put forth its best commercially reasonable efforts to enter into a long-term
agreement with a flight instruction school during the Initial Term to ensure that
flight training is available at the Airpark. Further, Lessee shall continue to put forth
its best commercially reasonable efforts to maintain a flight school at the Airpark
for so long as Lessee continues leasing the Premises.
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b) Lessee shall ensure that the flight school employs certified flight instructors sufficient
in number to meet service demands and currently certified by the Federal Aviation
Administration, with appropriate ratings to provide ground instruction, private,
commercial, and instrument flight training.
¢) Lessee shall ensure that the flight school provides at least one (1) airworthy, properly
equipped instrument single-engine aircraft, owned or leased in writing to Lessee or
the flight school.
d) Lessee shall ensue that the posting of a sign or placard visible to all renter pilots giving
notification of insurance coverage, student pilot liability, and other legal risks
associated with any aircraft rental agreement.
e) Flight school training for airplanes shall be permitted Monday through Saturday
from 7:00 a.m. to 11:00 p.m. and on Sundays from 11:00 a.m. to 11:00 p.m. with
the condition that flight pattern training shall cease thirty (30) minutes after
sundown on all days. Flight school training for helicopters shall be permitted
Monday through Friday from 7:00 a.m. until 6:00 p.m. and on Saturdays and
Sundays from 12:00 p.m. to 6:00 p.m. The flight school may reposition helicopters
to or from other airports after 6:00 p.m. two (2) times per week. Flight school
training shall not be permitted on the following holidays: Thanksgiving, Christmas
Day, Easter, Fourth of July. In addition to the aforementioned holidays, helicopter
training shall also not be permitted on the following holidays: Martin Luther King
Day, Labor Day, Veterans Day, Memorial Day.
13.4 Limitation on Intensity of Flight School Activity. Lessee shall use its best efforts
to implement methods to reduce impacts of the flight school on surrounding neighborhoods.
Furthermore, Lessee agrees to reduce helicopter flight training activity by fifty percent (50%) over
the Initial Term of this Agreement. The amount of helicopter flight training activity calculated as
of year-end December 31, 2022, shall be used as the baseline for the reduced activity requirement
for helicopter flight training. These methods of reducing intensity will likely include, but not be
limited to:
a) Reducing the number of flight school-owned airplanes and helicopters that are
based at the Airpark full-time;
b) Placing restrictions on the flight school’s helicopter traffic-pattern work and
frequency of helicopter training flights; and
c) adjusting flight pat
Preview
Filing # 186413885 E-Filed 11/17/2023 05:01:13 PM LEASE AND PROPERTY OPERATION AGREEMENT THIS LEASE AND PROPERTY OPERATION AGREEMENT (this “Agreement”) is between the City of Clearwater, Florida, a municipal corporation of the State of Florida (the “City” or “Lessor”) and FlyUSA PV, LLC, a Florida limited liability company (“Lessee” and collectively with Lessor, the “Parties”). RECITALS WHEREAS, Lessor is the owner of the Clearwater Airpark, located at 1000 N. Hercules Avenue, Clearwater, Florida 33765, which Lessor intends to revitalize through redevelopment of the facilities; and WHEREAS, Lessor intends for the Clearwater Airpark to continue to be used as a public- use airport that provides safe and efficient services for the benefit of the public by means ofa lease and operating agreement; and WHEREAS, Lessee desires to acquire the lease and operational rights for the Clearwater Airpark in exchange for certain rental payments; and WHEREAS, Lessor and Lessee seek to obtain matching grant funds from the Florida Department of Transportation (“FDOT”) for certain capital improvement projects for the Clearwater Airpark with Lessor to provide funding contributions upfront and Lessee to provide reimbursement to Lessor for a portion of total project costs; and WHEREAS, Lessee is dedicated to ensuring that flight training remains available at the Clearwater Airpark while at the same time mitigating noise pollution and disturbance to nearby single-family neighborhoods; and WHEREAS, Lessee is dedicated to providing current active tenants leasing space for aircrafts with opportunities to continue leasing space at the Clearwater Airpark; and WHEREAS, the Parties intend to work together in good faith to secure the funds from FDOT and move forward with the revitalization and redevelopment of the Clearwater Airpark. WITNESSETH: NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: Article 1 Definitions 1 “Aeronautical Activity or Service” - Shall mean any activity or service which involves, makes possible, or is required for the operation of aircraft or which contributes to, or is 1 ***ELECTRONICALLY FILED 11/17/2023 05:01:12 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** 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, flight training school, aircraft rental, aircraft storage, air taxi operations, 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 aircraft parts, sale and maintenance of aircraft accessories, radio, communication and navigation equipment, flying clubs and any other activity which, because of its direct relationship to the operation of aircraft, can appropriately be regarded as an "Aeronautical Activity or Service". Aeronautical Activity or Service shall not include regularly scheduled air carrier operations, skydiving, glider training and operations (motorized and nonmotorized), aerial advertising, crop dusting, all manufacturing, fabricating or assembly operations or ultra-light operations; therefore, these activities are expressly prohibited at the Airpark. 2. this “Agreement” — Shall mean this Lease and Property Operation Agreement. 3. the “Airpark” - Shall mean the Clearwater Airpark, owned by the City and more particularly described in Exhibit “A”. 4. the “City” or “Lessor” - Shall mean the City of Clearwater, Florida, and any of the designated officials of the City who are vested with the specific authority to govern the activities of the Airpark. 5. “Airpark Tenant” - Shall mean any entity other than Lessee that holds a lease or other agreement authorized by this Agreement for use of the Premises to conduct Aeronautical Activity or Service. 6. the “Master Plan” - Shall mean the master plan for the Airpark as adopted by Lessor’s city council on or about October 5, 2000, as amended on May 20, 2021, and any subsequent amendments thereto approved by Lessor’s city council, and the scaled dimensional layout of the entire Airpark, indicating current and proposed usage for each identifiable segment as approved by Lessor and the State of Florida attached to this Agreement as Exhibit “C”. 7. “Structures” — shall mean above ground buildings, runways, taxiways and other objects permanently affixed to the ground at the Airpark. Article 2 Premises 2.1 Premises. Lessor hereby leases to Lessee and Lessee leases from Lessor, upon all of the conditions set forth herein, that certain real property situated in Pinellas County, Florida, at 1000 N. Hercules Avenue, Clearwater, Florida 33765, commonly known as the Clearwater Airpark and consisting of the real property legally described in Exhibit “A” attached hereto and made a part hereof (hereinafter referred to as the “Premises” or the “Airpark”), together with all improvements thereon and appurtenances thereto. 2.2 Lessor Access to Premises. Lessee acknowledges and understands that Lessor shall continue to have access to the Premises in order to fulfill its obligations under this Agreement, 2 perform any municipal function of government, or exercise any other right it has to access the Premises provided in this Agreement or otherwise by law. Lessor shall continue to have access to all surface and subsurface utilities within the Premises for the construction, repair, maintenance, alteration, replacement, relocation, or removal of such utilities. Furthermore, Lessee understands that Lessor and the public shall continue to use the access road located on the Western side of N. Hercules Ave. for ingress and egress to the Premises as well as to the adjacent municipal compressed natural gas station. Article 3 Term 3.1 Initial Term. Unless terminated earlier pursuant to the terms and conditions of this Agreement, the initial term of this Agreement shall begin on March 1, 2023 and shall continue until February 29, 2028 (the “Initial Term’). 3.2 Renewal Periods. a) Upon the expiration of the Initial Term and provided that Lessee is not then in default, Lessee shall have the unilateral option to renew this Agreement for one (1) five (5) year renewal period (the “First Renewal Period”). Subsequent to the First Renewal Period and upon mutual agreement of the Parties, the Parties shall have the option to extend this Agreement for four (4) additional five (5) year renewal periods (each, a “Subsequent Renewal Period” and collectively, the “Subsequent Renewal Periods”). b) In the event that Lessor does not agree to renew this Agreement for the second renewal period, Lessor agrees to pay to Lessee at the end of the First Renewal Period a sum of 1.5 times the amount Lessee has expended on the design and construction of FDOT Projects as identified in Article 12, Section 12.2. This requirement shall not apply to renewal options not agreed to by Lessor after the second renewal period. ¢) Lessee shall provide Lessor with written notice of Lessee’s intent to renew this Agreement no later than one hundred and twenty (120) days prior to the expiration of the Initial Term or, if renewed previously, one hundred and twenty (120) days prior to the expiration of any of the aforementioned renewal terms (“Notice of Renewal”). In the event Lessee does not agree to renew this Agreement within the notice period, this Agreement shall be subject to termination at the end of the current term at the discretion of Lessor without penalty to Lessor. Article 4 Building Lessor shall provide a building to serve as a general aviation terminal for use by Lessee that contains a reasonable amount of space properly lighted for office space, storage, a public waiting area that includes indoor restroom facilities, and a public use telephone. Upon fifteen (15) days’ notice from Lessor, Lessee shall provide meeting space for City employees and officials for meetings on matters arising out of or relating to the Airpark. Article 5 Standard Requirements for Airpark Operation and All Services 5.1 In its operation of the Airpark and providing all of the services or activities specified in this Agreement, Lessee shall operate the Airpark for the use and benefit of the public and meet or exceed the following requirements and standards: a) Lessee shall furnish service and access to the Premises on a fair, reasonable and nondiscriminatory 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. b) Lessee shall select and appoint a full-time manager of its operations at the Airpark. The manager shall be qualified, 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. Lessee agrees that a duly authorized representative shall attend any City meeting that Lessor deems necessary that involves the operation of the Airpark to answer any questions about the Airpark’s operations. c) Lessee shall provide, at its sole expense, qualified and trained employees during hours of operation to provide the services required or authorized by this Agreement. Lessee's employees shall maintain a seven (7) day week schedule to support the Aeronautical Activity and Service as well as other uses authorized by this Agreement consistent with the Airpark’s hours of operation. Lessee shall also provide an adequate number of staff to ensure after hours security and serve as a reporting mechanism for unauthorized take offs and landings between the hours of 11:00 p.m. and 7:00 a.m. d) 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. e) Lessee shall meet all expenses and payments in connection with the use of the Premises and the rights and privileges herein granted, including licenses or permits requw in the normal course of business. Lessee shall pay all taxes and assessments against the Premises leased to Lessee by this Agreement, and against the leasehold and any other property interests under this Agreement. Lessee may, however, at its sole expense and cost, contest any tax, fee or assessment. f) During the term of this 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, design, and at a location or locations approved by Lessor and must comply with all City code requirements. Lessee shall remove, at its expense, all lettering, signs and placards so erected on the Premises at the expiration or termination of this Agreement. g) Lessee shall create and utilize lease forms for the rental of shade hangars, T- hangars, corporate hangars, and tie down rental spaces for airplanes. Hangar and tie down vacancies shall be filled in a fair, impartial, and nondiscriminatory manner in accordance with a policy developed by Lessee which shall be made available to Lessor upon request. h) Lessee shall provide, upon Lessor’s written request documentation as to Lessee's technical and financial ability to perform the services of proposed operation at all times 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 Lessee as to its correctness and reviewed by the City auditor and other licenses, permits or certificates required by law and applicable to Lessee's proposed operation. 1) Lessee shall not do business on the Premises in any business name other than the name of the business as it appears in this Agreement or the names “FlyUSA” or “FlyUSA, Inc.” without written permission of Lessor. d Hours of Operation. Except as specifically provided otherwise in Article 13 of this Agreement, aircraft shall be permitted to operate from the Airpark between 7:00 a.m. and 11:00 p.m. for takeoffs and landings. The Airpark shall be closed to takeoffs and landings at all other times except when authorized in writing by the City Manager or designated representative. Takeoffs and landings beginning at 6:00 a.m. for traffic reporting aircraft shall only be with the written permission of the City Manager or designated representative, and such permission is revocable at any time within the City Manager’s sole discretion. Emergency "on call" service will be provided during off duty hours by Lessee. k) 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. 1) Customary accommodations for the convenience of users, including passenger and pilot lounge areas, information services, telephone service connections to the Flight Service Station and/or the United States Weather Bureau, pilot accessories, appropriate vending machines, and rental car services as may be appropriate shall be provided by Lessee. m) Lessee shall ensure the availability 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 and laws. n) Unicom System and NOTAMS. Lessee shall provide, maintain, and operate an airport UNICOM station providing continuous airport advisory services during the hours set forth in Section 5.1(j), Hours of Operation. By federal law, Lessor shall be the sole holder of the Unicom station license. Lessee shall be responsible for promptly issuing Notice to Airmen (“NOTAMs”) and other necessary public information involving the status and operation of the Airpark as well as any condition affecting aeronautical use of the airport. o) Instrument Approach. The Parties hereby agree that Lessee shall be responsible for working with the Federal Aviation Administration (“FAA”) to publish an instrument approach at the Airpark (the “Instrument Approach”). If the Instrument Approach is published, Lessor shall be the sole owner of the Instrument Approach in perpetuity. Lessee understands and acknowledges that its efforts to obtain the Instrument Approach shall not grant Lessee any rights to the Instrument Approach and Lessee shall retain no rights in or to the Instrument Approach. p) Notifications. Lessee shall promptly notify the City Manager or designated representative of any dangerous or unsafe conditions, accidents, or other incidents involving damage to property or injury to persons at or connected to the Airpark. q) Lessee agrees to comply with the American Disabilities Act (“ADA”) requirements as they pertain to the general aviation terminal. Article 6 Minimum Requirements for Aviation Petroleum and Ramp Services 6.1 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: a) Personnel. Lessee shall employ at least two (2) full-time employees properly trained in aircraft fueling and ramp safety procedures and shall ensure a sufficient number of personnel to provide after-hours security. b) Services. Lessee shall provide aircraft ground guidance within the uncontrolled areas adjacent to the Premises and ramp service, including sale and into plane delivery of aviation fuels, lubricants, and other related aviation products. 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. c) Fuel Facilities and Fuel Supply. Lessor shall furnish two (2) leased metered and filter equipped dispensers, for dispensing aviation fuel from storage tanks. The tanks will consist of one (1) 12,000-gallon tank for dispensing 100-octane fuel (““Avgas fuel’) and one (1) 12,000-gallon tank for dispensing Jet A fuel. Lessor shall be responsible for any repair and maintenance of the fuel storage tanks. d) Lessee shall ensure the maintenance of pumping equipment in “as is” condition and meeting all applicable safety requirements with reliable metering, filtering and grounding devices subject to independent inspection and with a pumping efficiency capable of servicing aircraft. An adequate supply of 100 octane and Jet A fuel shall be maintained at all times by Lessee 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 the fuel dispensing equipment on the Premises including repair and maintenance of such equipment regardless of ownership. Article 7 Minimum Requirements for Aircraft Rental 7A Should Lessee elect to allow or provide aircraft rental services on the Premises, the service shall be operated for the use and benefit of the public and shall meet or exceed the following standards: a) Personnel. Certified Flight instructors sufficient in number to meet service demands with ratings appropriate for aircraft for rent and currently certified by the FAA shall be employed. b) Aircraft. A total of at least one (1) airworthy, properly equipped aircraft and at least one (1) airworthy, properly equipped instrument single-engine aircraft, owned or leased in writing to Lessee or service provider shall be furnished by Lessee or service provider. c) Customer Notification. Lessee or service provider shall post a sign or placard visible to all rental customers giving notification of insurance coverage, renter liability, and other legal risks associated with any aircraft rental agreement. Article 8 Minimum Requirements for Aircraft Sales 8.1 Should Lessee elect to allow or provide aircraft sales on the Premises, the service shall be operated for the use and benefit of the public and shall meet or exceed the following standards: a) Personnel. At least one (1) commercial pilot currently certified by the FAA, with ratings appropriate for the types of aircraft to be demonstrated shall be employed. b) Dealerships. It shall be at the discretion of Lessee or service provider: (1) whether to be an authorized factory dealer; or (2) what manufacturer Lessee or service provider chooses to represent. All aircraft dealers shall hold a dealership license or permit. Article 9 Minimum Requirements for Air Taxi Operations 9.1 Should Lessee elect to allow or provide air taxi or commuter air operations on the Premises, the entity providing such services must be certified by the FAA under Federal Aviation Regulation Part 135 and Part 121 and registered with the Civil Aeronautics Board under the Economic Regulations of Part 298, and meet the following minimum standards: a) Personnel. A sufficient number of commercial and/or airline transport pilot(s) certified by the FAA to conduct the air taxi shall be employed to meet service demands. b) Aircraft. A minimum of one (1) airworthy, instrument aircraft is required. Beyond this minimum requirement, it shall be left to the discretion of Lessee or service provider 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 Lessee or service provider, will be airworthy, and meet all requirements of the certificate held. Such aircraft shall be under the full operational control of Lessee or service provider. Article 10 Default and Termination 10.1 Termination by Lessee. This Agreement shall be subject to termination by Lessee at its option in the event of any one or more of the following events: a) The material default by Lessor in the performance of any of the terms, covenants or conditions of this Agreement, and in the failure of Lessor to remedy, or undertake to remedy, to Lessee’s satisfaction, such default for a period of thirty (30) days after receipt of written notice from Lessee to remedy the same. In the event the Lessor has commenced to cure the material default, but it is of such nature that it cannot be completely cured within thirty (30) days, then Lessor shall have such reasonable additional time as is necessary to cure the material default; b) The abandonment by Lessor of the Airpark as an airport or airfield; c) Complete destruction of all or a substantial portion of the Airpark pursuant to Article 17, Section 17.5 and not repaired within three hundred and sixty-five (365) days; or d) 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 restrict substantially Lessee from conducting business operations for a period in excess of forty-five (45) days. 10.2 Termination by Lessor. This Agreement shall be subject to termination by Lessor at its option in the event of any one or more of the following events: a) The material default by Lessee in the performance of any of the terms, covenants or conditions of this Agreement, and in the failure of Lessee to remedy, or undertake t ito Lessor’s satisfaction, such default for a period of thirty (30) days after receipt of written notice trom Lessor to remedy the same. In the event the Lessee has commenced to cure the material default, but it is of such nature that it cannot be completely cured within thirty (30) days, then Lessee shall have such reasonable additional time as is necessary to cure the material default; b) 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 affairs of Lessee and such receivership is not vacated within thirty (30) days after the appointment of such receiver. Such an event shall be considered a material default; c) Lessor determines that a municipal need exists for all or part of the Premises consistent with Lessor’s Charter; or d) Lessee has violated the terms of this Agreement by a documented consistent pattern of conduct detrimental to the operation of the Airpark. 10.3 Exercise. Exercise of the rights of termination set forth in Sections 10.1 and 10.2, above, shall be by thirty (30) days’ written notice to the other party. Forbearance of timely notice shall not be deemed a waiver of any breach. 10.4 Surrender; Effect of Termination. Upon termination of this Agreement, Lessee shall promptly vacate and surrender to Lessor the Airpark and any Lessor assets contained therein. In any event, such surrender shall be complete on the later of ninety (90) days after receipt of written notice of the intent to terminate or thirty (30) days following effective date of termination. Upon termination of this Agreement for any reason, Lessee, at its sole expense, shall remove from the Premises all signs, trade fixtures, furnishings, personal property, equipment and materials which Lessee was permitted to install or maintain under the rights granted herein and make any repairs to the Premises necessitated by such removal. If Lessee shall fail to do so within the aforementioned time period, Lessor may affect such removal or restoration at Lessee’s expense, and Lessee agrees to pay Lessor such expense promptly upon receipt of a proper invoice therefore. 10.5 Additional Remedies for Material Default. If a material default shall remain uncured thirty (30) days after written notice thereof to the defaulting party, then, in addition to the right of termination, the non-defaulting party may pursue any and all legal or equitable remedies to which the non-defaulting party is entitled, including an action for declaratory or injunctive relief. In the event the defaulting party has commenced to cure the material default, but it is of such nature that it cannot be completely cured within thirty (30) days, then defaulting party shall have such reasonable additional time as is necessary to cure the material default. The non- defaulting party will have all other rights granted under this Agreement and all rights at law or in equity that may be available to it. 10.6 Anticipatory Repudiation. Whenever Lessor in good faith has reason to question Lessee’s intent or ability to perform, Lessor may demand that Lessee give a written ass Lessee’s intent and ability to perform. In the event that the demand is made and n a assurance is given within fifteen (15) calendar days, Lessor may treat this failure as an anticipatory repudiation of the Agreement and Lessor shall be entitled to terminate this Agreement as provided in Section 10.3. 10.7 Waiver. 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 11 Rent and Other Expenses 11.1 Rent. Rent shall be due in monthly installments (the “Monthly Rent”). For the Initial Term and the First Renewal Period, the Monthly Rent shall be in the amount of twenty thousand dollars ($20,000.00). The Monthly Rent shall increase annually by the higher of 3% or the increase in the CPI-U, based on the twelve (12) month period ending two (2) months prior to the effective date of the increase. Additionally, beginning in the second renewal term, the Monthly Rent shall experience a one-time increase of twenty-five thousand dollars ($25,000.00) per month. Lessee agrees to pay the pro rata share of any partial year during the beginning or end of this Agreement. The Monthly Rent shall be due on or before the first day of each calendar month for that calendar month’s rent payment. Lessee agrees to pay Lessor’s sales tax on all rent payments. Lessor shall invoice Lessee for the Monthly Rent via U.S. Mail with invoices deemed “received” five (5) calendar days after mailing or through such other means mutually agreed upon by the Parties in writing. 11.2 Deferred Rent Increase. Notwithstanding Section 11.1, for each twenty-five thousand dollars ($25,000.00) that Lessee reimburses Lessor in excess of two million four hundred thousand dollars ($2,400,000.00) (the “Monetary Threshold”) towards FDOT Projects (as identified in Article 12, Section 12.2), there will be a one (1) month delay in commencement of the twenty-five thousand dollar ($25,000.00) per month rent increase scheduled to become due during the second renewal term of this Agreement. Should Lessee’s reimbursement costs exceed the Monetary Threshold after the second renewal term has begun, the twenty-five thousand dollar ($25,000.00) rent increase shall be suspended beginning the next calendar month for a period of one (1) month per every twenty-five thousand dollars ($25,000.00) reimbursed to Lessor over the Monetary Threshold. In any event, Lessee shall remain responsible for reimbursing all of Lessor’s costs for the aforementioned FDOT Projects. Nothing in this section obligates Lessor to construct any of the FDOT Projects outlined in Article 12, Section 12.2. Such obligations solely arise under Article 12. 11.3 Delinquency Charge. A rent or fee payment shall be delinquent if not paid on or before the tenth (10") day following the due date and shall accrue interest at the maximum amount allowable by law until paid. Furthermore, a delinquent rent or fee payment shall be considered a material default under this Agreement. 10 11.4 Place of Payment. All payments due Lessor from Lessee shall be delivered to the Marine & Aviation Department, City of Clearwater, 25 Causeway Boulevard, Clearwater, Florida 33767. 11.5 Records and Right to Audit. Lessee agrees to keep all books, accounts, records, and other documents covering all transactions relating to this Agreement in accordance with generally accepted accounting principles for a period of five (5) years and for such additional reasonable period as Lessor may request. Lessor shall have the right to examine such books, accounts, and records and all other documents and material in Lessee’s possession or under its control, with respect to gross sales, tenant fees, sub-lease proceeds, and associated Airpark expenses in accordance with the terms of this Agreement and shall have a reasonable amount of freedom and access thereto for such purposes and for the purpose of making copies and/or abstracts therefrom. Lessor reserves the right to conduct or cause to be conducted an independent audit of any financial transaction under this Agreement, such audit may be performed by the City’s audit staff, a certified public accountant firm, or other auditors designated by Lessor and will be conducted in accordance with applicable professional standards and practices. 11.6 The acceptance by Lessor of any statement by Lessee, or of any payment, shall not be deemed a waiver of the right of Lessor 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 Lessor for any overpayment. 11.7 Associated_and Capital Expenses. Lessee shall pay all of Lessor’s non-capital expenses associated with the Premises, to include all utilities payments, grounds maintenance, minor repairs and maintenance to the Airpark, security, taxes, assessments, and all other operating expenses which are necessary to properly operate the Premises (“Associated Expenses”). Lessor shall be responsible for payment of all capital expenses (“Capital Expenses”). For purposes of this Agreement, Capital Expenses shall mean those expenses for major repair or replacement of Structures or other utilities located on the Premises, or to the real estate upon which the Structures or utilities are located. Additionally, Capital Expenses shall also mean those expenses for the repair or replacement of any City-owned equipment and vehicles that are not considered fixtures including vehicles and trailers, but specifically excluding fuel pumping equipment, the City-owned tractor, and any lawn mowing equipment. Article 12 FDOT Capital Improvement Projects 12.1 EDOT Funding. Lessor agrees in good faith to pursue FDOT funding for certain capital improvement projects that repair, redevelop, and revitalize the Airpark as outlined in Section 12.2. In consideration for this task, Lessee shall fully reimburse Lessor as provided in this Section 12.1 (a)-(c). The Parties agree that the projects described in Section 12.2 will encompass all of the FDOT capital improvement projects (the “FDOT Projects” or each an “FDOT Project”) 11 contemplated under this Agreement. The Parties shall work together in good faith to prioritize and select the projects to submit to FDOT for matching funding. Lessor will continue to fu mm capital improvement projects not specified as FDOT Projects under Section 12.2, and su Ss shall be selected at the discretion of Lessor. a) Eighty Percent (80%) Funding. If FDOT determines that any portion of an FDOT Project qualifies for matching funds to cover eighty percent (80%) of the local share of general aviation airport project costs, the City shall cover the remaining twenty percent (20%) of funding upfront and Lessee shall be responsible for fully reimbursing the City for the City’s match plus any cost overages exceeding the total FDOT Project grant amount. b) Fifty Percent (50%) Funding (Airpark Terminal). If FDOT determines that the redevelopment of the Airpark terminal and associated parking lot (the “Terminal Project”) or any portion thereof qualifies for matching funds to cover only up to fifty percent (50%) of the costs to design and construct the Terminal Project, Lessor agrees to cover the Lessor’s portion of the fifty percent (50%) funding requirement using City funds in an amount not to exceed seven hundred and fifty thousand dollars ($750,000.00) total without expectation of reimbursement by Lessee. Should the funds necessary to satisfy the Lessor’s match contribution for the Terminal Project exceed seven hundred and fifty thousand dollars ($750,000.00), Lessor shall cover the additional funds necessary to meet the funding requirement upfront and Lessee shall be responsible for reimbursing the City for these additional funds contributed towards the match and any cost overages exceeding the total Terminal Project FDOT grant amount. c) Fifty Percent Funding for Other Airpark Projects. If FDOT determines that any other FDOT Project, or any portion thereof, only qualifies for matching funds to cover up to fifty percent (50%) of the FDOT Project, Lessor and Lessee shall work in good faith to reasonably determine whether or not to move forward with the FDOT Project and how to allocate each party’s contribution. 12.2 Schedule of FDOT Projects. The Parties agree that the FDOT Projects shall be developed in the chronological order described in this Section 12.2. The below prioritization of FDOT Projects shall not prohibit the Parties from commencing work on a subsequent FDOT Project before a previous FDOT Project has been completed so long as the previous FDOT Project has commenced development. For purposes of this Agreement, "commenced development” shall mean that applications for an FDOT Project have been submitted in good faith for development approvals or building permits to the City of Clearwater. The Parties further agree that should any other FDOT capital improvement project not listed below become necessary to address serious or immediate health and safety concerns at the Airpark, such a project may, at the discretion of Lessor, take priority over any FDOT Project. 12 1) 2023-24 goal: Design and construction of the new airpark terminal building and associated parking lot; 2) 2024-25 goal: Design and construction of new corporate hangars; and 3) 2025-26 goal: Design and construction of two additional rows of T-hangars and a corporate hangar. 12.3 Selection of Design and Construction Professionals. The Parties agree that the selection of the design and construction professionals for the FDOT Projects will be handled in accordance with the City’s procurement ordinances, policies, and procedures. Such professionals shall include but not be limited to architects, landscape architects, engineers, surveyors, construction managers, design firms, and construction management companies. The committee for the selection of such professionals shall contain five (5) members with four (4) members selected by Lessor and one (1) member selected by Lessee. 12.4 Scope of FDOT Projects. The Parties agree that the designs, scale, scope, costs, and FDOT grant requests for the FDOT Projects shall be mutually agreed to by the Parties with the assistance of the design and construction professionals selected via the City’s procurement processes. In the event the Parties are unable to mutually agree to the design, scale, scope, cost, or FDOT grant request for any FDOT Project, the FDOT Project in question shall not be pursued further by the Parties and Lessee shall continue to manage the Airpark for the remainder of the current lease term excepting those circumstances that warrant early termination as specified under Article 10. 12.5 Letter of Available Funding. As a condition precedent to the hiring of any design or construction professionals as referenced in Section 12.3 for an FDOT Project, Lessee shall provide Lessor with an official letter from an accredited banking institution indicating Lessee has sufficient funds to cover Lessee’s reimbursement obligations for Lessor’s grant match for the FDOT Project. 12.6 Master Plan. The Parties understand that amendments or revisions to the Master Plan may be necessary to permit the development of one or all of the FDOT Projects. In the event such amendments or revisions are necessary, Lessor agrees to cover the costs of such amendments or revisions. 12.7 FDOT Project Reimbursement. a) Lessor shall invoice Lessee in arrears on a quarterly basis via U.S. Mail or through such other means mutually agreed upon by the Parties in writing for those funds owed to Lessor and expended on design and construction of the FDOT Projects. 13 b) Invoices for Lessee’s share of the design costs expended on an FDOT Project shall become due and payable to Lessor during the next quarter and every subsequent quarter following the creation of the initial project design ofan FDOT Project. For purposes of this section, design costs shall mean those costs expended on preparing the design and development plans for an FDOT Project as well as costs expended on obtaining development approvals, building permits, and any other necessary government approvals or permits. For purposes of this Agreement, the initial project design is the design professional’s first attempt at designing the FDOT Project with the input received from the Parties and is created before the FDOT Project is submitted to any government agency for development approvals, building permits, or other necessary government approvals or permits. ¢) Invoices for Lessee’s share of the construction costs expended on an FDOT Project shall become due and payable to Lessor during the next quarter and every subsequent quarter after an FDOT Project has commenced construction. For purposes of this Agreement, construction costs shall mean those costs expended on the preparation for and actual construction of an FDOT Project. For purposes of this Agreement, "commenced construction” shall mean that all preconstruction engineering and design work has been completed, all necessary licenses, permits and local and national environmental clearances have been received, all contractors have been engaged and ordered all essential equipment and supplies as. , in each case, can reasonably be considered necessary so that physical construction of the eligible FDOT Project may begin and proceed to completion without foreseeable interruption of material duration, and physical construction (including, at a minimum, excavation for foundations or the installation or erection of improvements) at the primary site of the eligible project has begun. d) For purposes of this section, an invoice shall be considered “received” five calendar (5) days after mailing. Invoices not paid on or before the tenth (10") day following the due date shall be considered delinquent and shall accrue interest at the maximum amount allowable by law until paid. Furthermore, a delinquent invoice shall be considered a material default under this Agreement. e) In the event Lessee elects to not agree to renew this Agreement pursuant to Article 3 before all Renewal Periods have been exercised, Lessee shall remain responsible for its reimbursement obligations to the City as provided in this Article 12 for FDOT Projects as follows: 1 Lessee shall remain responsible for its reimbursement obligations for design costs for an FDOT Project where the initial project design for an FDOT Project was created during the current or a previous lease term. 14 2. Lessee shall remain responsible for its reimbursement obligations for construction costs for an FDOT Project where construction has commenced during the current or a previous lease term. 12.8 Place _of Payment. All payments due Lessor from Lessee for FDOT Project reimbursement costs and expenses shall be delivered to the Marine & Aviation Department, City of Clearwater, 25 Causeway Boulevard, Clearwater, Florida 33767. 12.9 Inability to Obtain FDOT Project Funding. In the event that through no fault of Lessor and Lessee, the Parties are unable to obtain any portion of the funds requested from FDOT to design or construct any of the FDOT Projects specified in Section 12.2, the Parties shall decide whether or not a particular FDOT Project shall move forward and on what terms. Regardless, Lessee agrees to continue to manage the Airpark for the remainder of the current lease term excepting those circumstances that warrant early termination as specified under Article 10. Article 13 Use 13.1 Use. The Premises shall be used and occupied only for use as an airpark and for aviation-related purposes. Use as an airpark and other aviation-related purposes shall include, but not be limited to Aeronautical Activity or Service, takeoff and landing of aircraft, restaurant, retail, office space, and any other activities which may be considered necessary to the operation of the Airpark but not expressly prohibited under the definition of “Aeronautical Activity or Service” Article 1. Lessee shall be entitled, in common with others so authorized, to the use for their intended purposes of all facilities and improvements of a public nature which now are or may hereafter be connected with or appurtenant to the Airpark, including the use of landing areas, runways, taxiways, navigational aids, terminal facilities and aircraft parking areas designated by Lessor. 13.2 Air Taxi Service Use. If in the future Lessee has the opportunity to provide air taxi services to locations within the City with Electric Vertical Take-Off Landing Vehicles (“EVTOLs”) or other appropriate aircraft based at the Airpark, such a use shall be allowed under this Agreement. 13.3 Flight School Use. a) In consideration of the restrictions agreed to in this Article 13, Lessee shall in good faith, put forth its best commercially reasonable efforts to enter into a long-term agreement with a flight instruction school during the Initial Term to ensure that flight training is available at the Airpark. Further, Lessee shall continue to put forth its best commercially reasonable efforts to maintain a flight school at the Airpark for so long as Lessee continues leasing the Premises. 15 b) Lessee shall ensure that the flight school employs certified flight instructors sufficient in number to meet service demands and currently certified by the Federal Aviation Administration, with appropriate ratings to provide ground instruction, private, commercial, and instrument flight training. ¢) Lessee shall ensure that the flight school provides at least one (1) airworthy, properly equipped instrument single-engine aircraft, owned or leased in writing to Lessee or the flight school. d) Lessee shall ensue that the posting of a sign or placard visible to all renter pilots giving notification of insurance coverage, student pilot liability, and other legal risks associated with any aircraft rental agreement. e) Flight school training for airplanes shall be permitted Monday through Saturday from 7:00 a.m. to 11:00 p.m. and on Sundays from 11:00 a.m. to 11:00 p.m. with the condition that flight pattern training shall cease thirty (30) minutes after sundown on all days. Flight school training for helicopters shall be permitted Monday through Friday from 7:00 a.m. until 6:00 p.m. and on Saturdays and Sundays from 12:00 p.m. to 6:00 p.m. The flight school may reposition helicopters to or from other airports after 6:00 p.m. two (2) times per week. Flight school training shall not be permitted on the following holidays: Thanksgiving, Christmas Day, Easter, Fourth of July. In addition to the aforementioned holidays, helicopter training shall also not be permitted on the following holidays: Martin Luther King Day, Labor Day, Veterans Day, Memorial Day. 13.4 Limitation on Intensity of Flight School Activity. Lessee shall use its best efforts to implement methods to reduce impacts of the flight school on surrounding neighborhoods. Furthermore, Lessee agrees to reduce helicopter flight training activity by fifty percent (50%) over the Initial Term of this Agreement. The amount of helicopter flight training activity calculated as of year-end December 31, 2022, shall be used as the baseline for the reduced activity requirement for helicopter flight training. These methods of reducing intensity will likely include, but not be limited to: a) Reducing the number of flight school-owned airplanes and helicopters that are based at the Airpark full-time; b) Placing restrictions on the flight school’s helicopter traffic-pattern work and frequency of helicopter training flights; and c) adjusting flight pat