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Backup Documents 10/11/2011 Item #10G G " Memorandum \. To: Ian Mitchell Executive Manager Board of County Commissioners From: Michael Dowling Senior Property Mana ent Specialist Real Property Management Date: November 22, 2011 Subject: City of Naples Airport Authority Leasehold Agreement—Land Lease Hi Ian, Attached is the Lease with the Naples Airport Authority that was approved by the BCC on October 11, 2011, item 16E4. You may recall that the date was incorrect on the first page and required the Naples Airport Authority and their attorney, as well as the County Attorney's Office, to initial the change. At this time, Commissioner Coyle's initials are required. Once the Chairman's initials have been made to the document, please forward the document to Minutes and Records for their file. Please contact me at extension 8743 with any questions and for document pick-up. Thank you. Attachment as stated _ . 1U7 CITY OF NAPLES AIRPORT AUTHORITY LEASEHOLD AGREEMENT LAND LEASE NORTH QUADRANT LAND FILL SITE 1. PARTIES be,r THIS LEASE AGREEMENT (the "Lease"), made as of the pl day of , 2011 (the "Effective Date"), by and between the CITY OF NAPLES �,�,,� �- AIRPORT AUTHORITY, a political subdivision of the State of Florida (the "Authority"), i�„)' _\ 0' whose address, telephone number, fax number and email are: 160 Aviation Drive North, Naples, FL 34104 phone no. 239-643-0733 fax no. 239-643-4084 e-mail: administration @flynaples.com as Authority and COLLIER COUNTY, a political subdivision of the State of Florida (the "County"), whose address, telephone number, fax number and email are: 3299 Tamiami Trail East, Suite 101, Naples, Florida 34112 phone no. 239-252-8743, fax no. 239- 252-8876 e-mail:michaeldowling @colliergov.net (collectively, the "Parties" or the "Party"). RECITALS WHEREAS, the County provides a recycling facility for residential and commercial customers within Collier County; WHEREAS, the County desires to lease from Authority a parcel of land in the north quadrant of the Naples Municipal Airport (the "Airport") being a 155,100 square foot parcel depicted and more particularly described and illustrated on Exhibit "A" attached hereto and made a part hereof(the "Leased Premises"); WHEREAS, the Leased Premises are not included within the future development plans for the Authority. The Authority has agreed to lease the Leased Premises to County under certain terms and conditions; and NOW, THEREFORE, for and in consideration of the mutual covenants and premises provided herein, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Parties agree as follows: 1. RECITALS. The foregoing recitals are true and correct and are hereby incorporated by reference as if fully set forth herein. 287838.4 8/23/2011 , 1 _G 2. PURPOSE. The purpose of this Lease is for the Authority to lease the Leased Premises and for the County to accept the Leased Premises for the sole purpose of operating a recycling center. 3. STATEMENT OF LEASE. In consideration of the faithful performance by County of the terms, conditions, and covenants herein contained, Authority does hereby lease to County and the County does hereby accept the Leased Premises together with any improvements now existing or hereafter constructed thereon, as illustrated and described on Exhibit "A." 4. LEASE TERM. The Leased Premises are leased to County for a term of five (5) years. The term of this Lease shall commence upon the Effective Date and shall continue uninterrupted for five (5) years thereafter (the "Lease Term"), unless the Lease shall be sooner terminated as hereinafter provided. Both County and the Authority shall have the right to terminate this Lease for any reason, upon ninety (90) days prior written notice, as set forth in Section 32 of this Lease, to the other of its intent to terminate. 5. RATES, FEES AND CHARGES. The County hereby covenants and agrees to pay as rent for the Leased Premises the sum of Three Thousand Five Hundred Twenty-one Dollars and Seventy- four Cents ($3,521.74) per month, (the "Base Rent") in advance, on the first day of every calendar month during the Lease Term. In the event the County fails to pay the rent, fees or charges as required to be paid under the provisions of this Lease within thirty (30) days after the same shall become due, interest at the rate of one percent (1%) per month shall accrue against the delinquent payment(s) until the same are paid. Implementation of this provision shall not preclude the Authority from terminating the Lease for default in the payment of rent, fees or charges, or from enforcing any other provision contained herein. The monthly rent shall at no time be less than the Base Rent. The Authority and County, however, agree and stipulate that the rent may be unilaterally increased by the Authority, annually, effective October 1 of each year, in accordance with the Authority's rent adjustment program. 2 287838.4 8/23/2011 _ 0 G 4 6. USE OF PREMISES. County, upon the faithful performance of such covenants, agreements and conditions required by law, or this Lease, shall and may, peaceably enjoy the Leased Premises. Such quiet enjoyment is conditioned upon County adhering to the following terms: A. Permitted Use of Leased Premises. The County shall be permitted to utilize the Leased Premises for only the following purposes: (i) for use as a recycling center and for construction material, only when in compliance with all federal, state and local laws and ordinances and when in compliance with all applicable environmental standards and guidelines, and (ii) uses incidental or related thereto, upon the prior written approval of the Authority (collectively, the "Permitted Uses"). B. Non-Exclusive Use. County, as well as County's agents, employees, and customers, are permitted non-exclusive use of all roads, rights-of-way and driveways to and from the Leased Premises in common with other airport users. County has the right to free access, ingress to and egress from the Leased Premises. The Authority may, at any time, temporarily or permanently close or consent to the closing of any roadway or other right-of-way for such access, ingress or other area of the Leased Premises presently or hereafter used as such. In such a case, a means of access, ingress and egress reasonably equivalent to that formerly provided shall be substituted and concurrently made available. 7. LIMITS ON USE A. Aeronautical Uses. County shall not engage in any aeronautical activities. B. Protection of the Environment. County agrees that it will not use, nor permit the Leased Premises to be used, for any unlawful or environmentally hazardous purpose, defined to include conduct and activity prohibited by Federal, State, local law or ordinance. C. Improvements. County may construct, install, erect and maintain buildings or other permanent improvements on the Leased Premises, but only in accordance with plans and specifications which have first been approved in writing by the Authority, and in accordance with ordinances, guidelines, rules and regulations of the Federal Aviation Administration (the "FAA"), the Authority, the Collier County Comprehensive Development Code requirements, and other governmental agencies having jurisdiction over the land constituting the Leased Premises. 8. ADDITIONAL OBLIGATIONS OF THE COUNTY The County shall demolish and remove the existing concrete wall running along Enterprise Avenue (the "Wall"), on a portion of the Leased Premises and the area 3 287838.4 8/23/2011 lOG surrounding the removed Wall shall be graded and landscaped to the Authority's satisfaction in accord with a landscape plan approved by the Authority. The Parties acknowledge that the cost of the demolition, removal and landscaping is estimated to be $27,700.00 (Twenty-Seven Thousand, Seven Hundred Dollars, and no Cents) and the Parties agree to each pay one half of the cost. County shall complete Wall removal and all improvements no later than sixty (60) days after the approval and acceptance of this Lease by the Board of County Commissioners. County shall contract the demolition of the Wall, the landscaping improvements and pay for same directly. The Authority shall abate County's rent for the Authority's one half of the cost of the improvements ($13,850.00) (Thirteen Thousand, Eight Hundred Fifty Dollars and no Cents), which shall be credited to County's monthly rent during the first year of the Lease Term, and therefore County shall not be required to pay rent for the months, taken as a credit for November ($3,521,74), December ($3,521,74), January ($3,521,74), and February ($3,284,78). If County shall terminate this Lease, at any time, County shall reimburse the Authority, monthly, for County's amount of the rent abatement (example: If County shall terminate the First Year = $13,850; Second Year = $11,080; Third Year = $8,310; • Fourth Year = $5,540; Fifth Year = $2,770). 9. CONSTRUCTION ACTIVITY. The County may, at any time and from time to time, after written approval by the Authority, erect, maintain, alter, remodel, demolish, rebuild, replace and remove buildings and other improvements on the Leased Premises. Prior to commencing the construction of any improvements, the County shall deliver to the Authority a site plan depicting the improvements and the location thereof within the Leased Premises together with all drawings, plans and specifications applicable thereto (collectively, the "Plans and Specs"). The Authority shall provide written notice of any objections to the Plans and Specs within thirty (30) days of receipt from the County, failing which the same shall be deemed to have been approved by the Authority. The foregoing notwithstanding, the Authority's right to object to the Plans and Specs shall be limited to any matters that are in violation of applicable laws including, without limitation, FAA laws (or other regulations applicable to the airport), zoning laws, SFWMD regulations or any other laws or ordinances applicable to the Leased Premises. All construction of improvements must conform with the approved Plans and Specs and shall be constructed or installed in accordance with all applicable statutes, ordinances, building codes, and rules and regulations of the Authority, and any other authority that may have jurisdiction over the Leased Premises. County is solely responsible for determining and obtaining all necessary permits and approvals, and for paying any and all fees required, for the construction. The Authority's approval of County's plans and specifications does not constitute a representation or warranty as to its conformity with City of Naples building standards, codes or zoning. 4 287838.4 8/23/2011 10 G Prior to commencing construction the County shall comply with the following provisions: A. Alterations. It is expressly agreed that in the event that the County intends to make external alterations to existing improvements on the Leased Premises, it shall provide the Authority with sixty (60) days written notice prior to the date intended for the commencement of such alterations to permit Authority time to review and consider the planned alterations before making any final determination in connection therewith. B. Inspection and Acceptance. County shall obtain building permits and approvals required. All improvements including, but not limited to, buildings, site preparation, sub-grade preparation, paving, drainage, and overall development of the premises, shall be subject to inspection, testing, and acceptance in accordance with applicable law. C. Engineering. County shall set the necessary boundary stakes on the Leased Premises and shall provide any surveys required for the design of the area paving. Any material deviation from the approved Plans and Specification must have prior approval by the Authority (subject to the limitations set forth above) and any required governmental agency. D. Utilities. Upon the prior written approval by the Authority, County may install other utilities on the Leased Premises at its own cost and expense, including all connection, inspection, and service fees. All utilities must be installed underground, unless agreed to in writing by the Authority. The Authority may negotiate with County for the over sizing or extension of utilities to serve other parcels on the Airport Parcel. E. Paving and Concrete. Any roadway access must be in accordance with the Florida Department of Transportation standards as set forth in the "Manual on Uniform Standards" for comparable construction. Construction of concrete building slabs will be designed to accommodate building loads and heavy truck loads, as applicable. F. Finish Site Grading. County shall perform, at County's expense, all finish grading of the Leased Premises. G. Frontage Clearances. County must construct the improvements so that all frontages and clearance of the improvements are in compliance with County standards and so they do not encroach upon any building restriction line. Notwithstanding anything in this Lease to the contrary, it is expressly understood and agreed by the Parties that any buildings, improvements, fixtures, machinery and equipment of whatsoever nature at any time constructed, placed or maintained upon any part of the Leased Premises shall be and remain the sole and exclusive property of the County during the Lease Term. The County shall have the right at any time to remove any and all buildings, improvements, fixtures and equipment owned or placed by the County in, under or upon the Leased Premises. 5 287838.4 8/23/2011 1 o G 10. DISCHARGE OF LIENS. County shall not cause or allow any Lis Pendens, construction, labor, mechanic's or materialman's lien to be filed against the Leased Premises, the Authority or the Authority's real or personal property. In the event of the filing of any lien, or any other charge whatsoever against the Leased Premises, the Authority or its property, County shall immediately take all necessary action to secure the release of same and shall provide, at County's expense, all bonds, security or undertakings to accomplish the release of such liens. In the event County fails to secure the release of any such liens within forty five (45) days of the date the County is notified of the same, the Authority shall have the right, but not the duty or obligation, to take any action it deems appropriate to secure the release of any such lien including paying the underlying obligation to the lienor. To the extent permitted by law, County agrees to indemnify and hold the Authority harmless from all liability, damages associated with this provision, expense and costs including reasonable attorney's fees. 11. RULES AND REGULATIONS. County shall observe and comply with, at its own expense, all laws, policies, ordinances, rules, and regulations promulgated by the Authority and any appropriate City, County, State, or Federal authority or agency having jurisdiction over the Airport and the Leased Premises during the Lease Term. 12. AIRPORT OPERATIONS. A. Conduct of Business by County. In the use of the Leased Premises pursuant to this Lease, County shall conduct its operations in a environmentally safe, legal, honest, orderly and proper manner so as not to interfere with the rights and privileges of others at the Airport and shall be responsible for the conduct of its employees and invitees. Upon receipt of complaints about the conduct of its business, County agrees to cooperate immediately to address such complaints and correct any improper conduct. B. Airport Hazards. County agrees to refrain from any act or omission which would interfere with or adversely affect the operation or maintenance of the Airport, disturb the quiet enjoyment of the use of the Airport Parcel or surrounding property or otherwise constitute an Airport hazard. Activities which may constitute airport hazards including but not limited to any activity on the Leased Premises which directly or indirectly attracts birds or other wildlife, produces unlawful amounts or levels of chemical, biological or electromagnetic radiation, air pollution (gasses, particulate matter, odors, fumes, smoke or dust), water pollution, excessive noise, glare, heat emissions, radioactivity, electronic or radio interference with navigation and communication facilities for the operation of the Airport and its use by aircraft, vibration, prop-wash, or jet blast, or which is hazardous or dangerous by reason or risk of explosion, fire, or harmful emissions. 6 287838.4 8/23/2011 1OiG 13. CONDITION OF PREMISES. A. Phase II Environmental Site Assessment. The Authority and the County agree that on or about the Effective Date a Phase II Environmental Site Assessment (the "Base Line Phase II") will be conducted by the Parties. The Base Line Phase II shall establish a base line for the environmental condition of the Leased Premises on the date thereof. The Parties shall sign the Phase II indicating their agreement that it accurately sets forth the environmental condition of the Leased Premises. At the expiration of this Lease, or within sixty (60) days thereafter, if this Lease runs to the Lease Term or within sixty (60) days after this Lease is terminated by either Party prior to term specified in Section 4 above, the County shall conduct a second Phase II Environmental Site Assessment (the "Termination Phase II"). The Authority shall compare the Base Line Phase II to the Termination Phase II to establish the increase in contamination caused by the County's activities. The County shall be responsible for any contamination of the Leased Premises occurring during County's tenancy whether or not due to the acts or omissions of the County, its officers, employees, business invitees, subtenants or assigns, and shall decontaminate and clean-up the Leased Premises at its own expense. The County shall document the clean-up or decontamination and provide to the Authority satisfactory evidence that the Leased Premises is no longer contaminated above the Base Line Phase II. The Leased Premises shall not be deemed to be decontaminated until the Authority so states in a written document to County. Any expense incurred by the Authority in clean-up or decontamination shall be paid by the County. B. County Accepts Leased Premises "As Is". County intends and agrees to improve Leased Premises and accepts the Leased Premises, and any improvements and appurtenances thereto, in addition to the land in its present "as is" condition as suitable for the purpose for which the Leased Premises are leased. C. No Liability. The Authority shall not be liable for any damages or loss suffered by County, or for injuries to persons or Leased Premises occasioned by (1) lapses in service, (2) malfunctions, bursting, overflowing, or leaking of water or sewer pipes, or from heating, air conditioning or plumbing fixtures, or from (3) electric wires, (4) water leaks of any kind, or (5) erosion or deterioration of the roads, rights-of-way or driveways during the term of this Lease. D. Non-Liability of County. County further acknowledges that no representations as to the condition of the soil, or the geology of the soil, on the Leased Premises, expressed or implied, have been made by the Authority, its officers, employees or agents prior to or at the execution of this Lease other than those contained in the Base Line Phase II. Notwithstanding the foregoing, County, its officers, employees, agents, successors and assigns, will not be responsible for any damage to or contamination of the Leased Premises in the event that such damage or contamination is directly due to or caused by the act of the Authority, or its officers, employees, agents successors or assigns. 7 287838.4 8/23/2011 0G , 14. FLAMMABLE MATERIALS. Except as reasonably necessary or incidental to the County's use of the Leased Premises, flammable or explosive gases, liquids or solids shall not be allowed, kept or used on the Leased Premises. All such flammable materials shall only be delivered in amounts, and stored and used, as approved by the Authority in accordance with the rules of the Florida Inspection and Rating Bureau and all other applicable statutes, guidelines, ordinances, rules and regulations in force and effect during the term of this Lease. 15. WASTE, REPAIR, MAINTENANCE AND CLEANLINESS OF PREMISES. County understands that good maintenance is an on-going obligation, and agrees to the following: A. Waste. County shall not commit, nor suffer to be committed, any waste or contamination on the Leased Premises, including physical damage to the Leased Premises, either negligent, intentional, or fail to repair and maintain the Leased Premises. B. Repair and Paint. Throughout the Lease Term, County shall keep and maintain, at its own cost and expense, the Leased Premises and any improvements, fixtures, equipment, or landscaping thereon, in good order and repair, as reasonably determined by the Authority. County shall make all necessary repairs thereto, including, without limitation, all structural and non-structural repairs, including repairs to building interior, building exterior, paving, site improvements, fixtures, facilities and equipment, and shall replace all broken glass with glass of the same size and quality as that broken. All painted exterior surfaces and surfaces requiring treatment of any kind must be maintained, in good condition and must be repainted or treated when reasonably required to preserve the structure and to maintain high standards of appearance at the Airport. All maintenance, repairs, and replacements must be of a quality substantially equal to the original materials and workmanship. C. Failure to Repair and Maintain. In the event County fails to promptly undertake the obligations imposed herein within ninety (90) days of written notice by the Authority to the County, the Authority, in addition to the other remedies provided herein, shall have the right to enter on to the Leased Premises and effect such repairs and recover those costs and expenses from County. D. Liquid and Solid Waste. County shall provide, as necessary, safe containment for solid waste and a separate drainage, collection, or separation system to ensure that no untreated liquid waste be discharged directly on adjacent property or into the Airport's storm drainage or sanitary system. 8 287838.4 8/23/2011 zoo A • E. Damage Caused. County agrees to immediately report to the Authority any damage County, its customers, visitors, agents, contractors or employees cause to the runways, taxiways, taxi lanes, roads, rights-of-way and driveways to and from the Leased Premises which it uses in common with other Airport users. County shall reimburse the Authority for the actual cost of repairs to these common areas caused by the County or those using the Airport by or through County. F. Fence. If applicable to the Leased Premises, County shall erect and, at all times during the term of this Lease, maintain an FAA-recommended fence as part of the Airport perimeter fence line. The County's portion of the fence line shall be specified and approved by the Authority. The County's portion of the fence shall be constructed and maintained at County's sole cost and expense. 16. STORM WATER DISCHARGE County assures that no contaminants, pollution or hazardous material of any type will be discharged onto adjacent property or into the storm water system at the Airport, and agrees to be held responsible for any discharge either by County or by any of County's subtenants, agents, or employees, during the entire Lease Term. Any fine or expense for remedial action required by the Authority, by any agency or agencies having jurisdiction, as a result of actions on or discharges from the Leased Premises, will be charged to County, and County shall immediately reimburse Authority for these costs, including attorneys' fees upon demand. 17. SECURITY The Authority is under no obligation to provide security to the Leased Premises. County may, at County's sole expense, employ security personnel, install security lighting, or maintain alarm systems. If County elects to install outdoor lighting, County must request permission from the Authority prior to installation. If at any time during the Lease Term, additional security requirements are imposed on the Naples Municipal Airport by the Federal Aviation Administration ("FAA"), Transportation Security Administration ("TSA"), or any other agency having jurisdiction over the Airport, County agrees to comply with such additional security requirements, at County's sole expense, upon notification of such requirements in writing by the Authority. 18. UTILITY SERVICES, TAXES/FEES A. Utilities. County shall pay for all utilities with respect to the Leased Premises or the occupancy thereof, including without limitation, all costs of electric, water, sewer, telephone and other services. County shall have the privilege, at its expense, to access the water, storm water management, electrical, and phone utility service facilities during the term of this Lease. Should County's operations require additional service facilities, County shall, at its expense, extend such facilities to the Leased Premises and pay the cost for all labor and materials. Authority's obligation under this provision shall be limited to the facilities presently constructed as of the date of this Lease, and nothing herein 9 287838.4 8/23/2011 goo shall obligate Authority to provide any utility to County that is not presently conveniently available to the Authority within the Airport. B. Taxes and Fees. County shall pay when due all valid taxes, special assessments, excises, license fees and permit fees of whatever nature applicable to its operation or levied or assessed against the Leased Premises, or improvements thereto. County shall take out and keep current all licenses, permits and certificates (City, County, State and Federal) required for the conduct of its activities at and upon the Airport and Leased Premises, if any. 19. INDEMNIFICATION. Each Party shall be liable for losses for the acts or omissions of its own officers, employees, agents and contractors. To the extent permitted by law, each Party shall save and hold harmless and indemnify the other and the other's past and present commissioners, directors, managers, employees, agents, insurers, attorneys, representatives, successors, and assigns, in both their individual and representative capacities, of, from and against any and all liabilities, losses, damages, costs, expenses, causes of action, suits, penalties, claims, demands, and judgments of every kind and nature, including, without limitation, attorneys' fees and expenses of defense (through all appeals), arising out of or in connection with: A. any negligent act or intentional act of said Party or said Party's personnel, employees, subtenants, agents, suppliers, subcontractors, licensees, invitees or trespassers; B. the failure to fulfill any obligations of said Party under this Lease; C. the use and possession of the Leased Premises. The indemnification obligations under this Section shall survive the Lease termination. This Section shall also pertain to any claims brought against any Party (and said Party's past and present commissioners, council members, officers, employees, agents, insurers, attorneys, representatives, successors, and assigns), in both their individual and representative capacities, by the other Party, any of the other Party's personnel, employees, agents, suppliers, subcontractors, licensees, invitees or trespassers and anyone claiming by or through the other Party. Each Party's obligations under this Section shall not be limited in any way by County's limits of, or lack of, sufficient insurance protection. Nothing in this Lease shall constitute a waiver of sovereign immunity under Section 768.28, Florida Statutes, or any other applicable law or regulation. 20. INSURANCE REQUIREMENTS. A. Insurance Coverage. County agrees to secure and maintain in force at its expense, a fire insurance policy with extended coverage endorsement, including 10 287838.4 8/23/2011 OG vandalism and malicious mischief, covering the Leased Premises and all improvements thereon and contents thereof for full replacement value. County further agrees to secure and maintain, at its own expense, a general liability insurance, covering County's activities, its use of the Leased Premises, its operations at the Airport, including its liability under the indemnities herein. The liability insurance policy shall have coverage limitations providing no less than $1,000,000.00 per person and $1,000,000.00 per incident, naming the Authority as an additional covered Party; and, shall not be subject to cancellation or change except after thirty (30) days prior written notice of such cancellation or change to the Authority. B. Changes in Policy. County shall provide Authority with notice of any proposed change to any insurance policy. The Authority maintains the right to reject a proposed change in County's insurance coverage or carrier, and in the event of a policy cancellation, the County is required to obtain satisfactory successor insurance without lapse. C. Authority as Additional Covered Party. All such insurance policies shall name Authority as an additional covered Party. D. Evidence of Insurance. County shall secure and deliver annually to Authority appropriate insurance certificates showing evidence of coverage as required hereunder. E. Form of Policies. All policies of insurance required under this Section must be in a standard form and written by qualified insurance companies satisfactory to the Authority. All certificates of insurance shall state that "the City of Naples Airport Authority," is named as an additional covered Party under the policy. Further, all policies and certificates must contain a provision that written notice of policy lapses, cancellation, and any changes shall be delivered to the Authority no fewer than thirty (30) days in advance of such effective date. All insurance policies shall contain a clause or endorsement by which the insurance carrier waives all rights of subrogation against Authority, except where the Authority or its agents are liable for a specific act of gross negligence. F. Notice. County must give the Authority prompt and timely notice of any claim made or suit instituted of which it is aware that in any way directly, indirectly, contingently, or otherwise affects or might affect the Authority, and the Authority shall have the right to participate in the defense of the claim to the extent of its own interest. G. Lapse of Insurance Coverage. If County shall fail to maintain insurance coverage as required, then the Authority may, but is not obligated to, obtain same and add the cost of such insurance to next due Lease payment. If the Authority does so, it may charge interest thereon at the rate of 18.0% per annum, or at the maximum interest rate permitted by law in the State of Florida, whichever is greater, provided, however, that this provision shall not be construed to create an obligation for County to pay a usurious rate of interest to the Authority, from the time of payment, which shall be added to the rental becoming due, and shall be collected as an additional charge. 11 287838.4 8/23/2011 21. ACCESS TO PREMISES. County agrees to allow the Executive Director, and other duly authorized representative or agents of Authority, access at all reasonable times to the Leased Premises for the purpose of examining or inspecting same. 22. DEFAULT. The following shall constitute an event of default on the part of County and cause for eviction: A. Non-Payment of Rent. Failure to pay all rent fees or charges when due. B. Other Obligations. Failure to perform any obligation, agreement or covenant under this Lease, such failure having continued for ninety (90) business days after the County's receipt of written notification of such default. County shall have the right to extend this ninety (90) day cure period if the failure cannot be reasonably cured within the ninety (90) day period and if, in the reasonable determination of the Authority, the County aggressively and diligently attempted to cure the default within the ninety (90) day period and continues to, diligently address the failure with the intention of eliminating it. 23. AUTHORITY'S REMEDIES. Upon default by the County, the Authority shall have the right to all remedies available at law or equity. 24. DESTRUCTION OF PREMISES. In the event that the Leased Premises or the improvements located thereon shall be destroyed in whole or in part by fire, hurricane, flood or other casualty, then County • shall have the right, in its sole and absolute discretion, to terminate this Lease by delivering written notice to the Authority within thirty (30) days following said damage or destruction, failing which this Lease shall continue in effect. 25. ATTORNEY FEES. The prevailing Party shall recover the attorney's fees and costs incurred to enforce any provision of this Lease including all costs of collection. Attorney's costs and expenses recoverable shall include all out of pocket expenses and shall not be limited by the Florida Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. 12 287838.4 8/23/2011 G 26. RIGHT OF FLIGHT OPERATIONS. County acknowledges and agrees that the Authority reserves itself, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Leased Premises, together with the right to cause in the airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used, for navigation of or flight in the airspace, and for use of the airspace for landing on, taking off from, maneuvering, or operating on the Airport. County's use and enjoyment of the Leased Premises is subject to such noise and such other disturbance as may be inherent in such operations. 27. AIRCRAFT HAZARDS. County acknowledges and agrees that the Authority reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent County from erecting, or permitting to be erected, any building or other structure on or adjacent to the Airport which, in the opinion of the Authority, would limit the usefulness of the Airport or constitute a hazard to aircraft. 28. OBSTRUCTIONS. County expressly agrees for itself, its successors and assigns, to restrict the height of structures, objects of natural growth and other obstructions on the Leased Premises to such height as to comply with Federal Aviation Regulations, Part 77. 29. GOVERNING LAW. This Lease shall be governed by and interpreted according to the laws of the State of Florida. Any litigation involving this Lease or the use and occupancy of the Leased Premises shall be filed and litigated in Collier County, Florida, in a non-jury proceeding. County and Authority hereby waives and releases any right they have or may have to a trial by jury of any issue. 30. BINDING EFFECT. This Lease shall be binding upon, and inure to the benefit of the Parties hereto and their successors and such assigns as may be approved by the Authority. This reference does not authorize an assignment or subletting by County that is inconsistent with the restrictions on assignments and subletting, stated heretofore. 31. REMEDIES CUMULATIVE-NO WAIVER. The rights and remedies granted to Authority hereunder shall be deemed to be cumulative and non-exclusive. The failure by Authority at any time to assert any such 13 287838.4 8/23/2011 1 ,G right or remedy shall not be deemed to be a waiver, and shall not preclude the entitlement to or the assertion of such right or remedy at a later date. 32. NOTICE TO PARTIES. It is understood and agreed between the Parties hereto that written notice, mailed by certified mail, return receipt requested, or hand delivered to Authority or County or County's agent shall constitute proper and sufficient notice if sent to Authority addressed to: Executive Director, City of Naples Airport Authority, 160 Aviation Drive North, Naples, Florida 34104, and if sent to County, addressed to the place designated in the opening paragraph of this Lease. 33. SEVERABILITY. In the event any immaterial provision of this Lease be determined by a proper judicial authority to be unenforceable, such provision shall be considered separate and severable from the remaining provision of this Lease, which shall remain in force and be binding as though such unenforceable provision had not been included, unless the Authority in the reasonable exercise of its discretion determines that the provision found to be unenforceable goes to the essence of the Lease and its absence renders the Lease defective, then this Lease shall terminate and be of no further force or effect. 34. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between the Parties hereto with respect to the subject matter contained in this Lease, supersedes any and all prior written or oral agreements or understandings, and may be modified only by a writing executed by the Parties hereto. 35. DOMINANT AGREEMENTS. The Parties hereto expressly understand that this Lease is subordinate and subject to the Rules and Regulations, any and all lending, bonding, certificate of participation, Airport Master Lease and agreements between Authority and the Federal Aviation Administration, or between Authority and the State of Florida, or between Authority and City of Naples whether presently existing or hereinafter created. During times of war or national emergency, Authority shall have the right to lease the landing area or any part thereof to the United States Government for military or naval or similar use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. Any executed lease, including this one, shall be subordinate to the provisions of any existing or future Agreement between Authority and the United States, relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of Federal funds for the development of the Airport. 14 287838.4 8/23/2011 1ein 36. RADON DISCLOSURE. Radon is naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. 37. FAA GENERAL CIVIL RIGHTS PROVISION The County, by execution of this Lease, assures the Authority that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age or handicap be excluded from participating in any activity conducted with or benefitting from Federal assistance. This Section obligates the County or its transferee for the period during which Federal assistance is extended to the airport program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. This Section obligates the County or any transferee for the longer of the following periods: (i) the period during which the Airport Parcel is used by the Authority for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (ii) the period during which the Authority or any transferee retains possession of the Airport Parcel. 38. HEADINGS. The Section headings are included in this Lease for reference purposes only, and shall not be employed to interpret or to construe this Lease. 39. AUTHORIZATION. Each person executing this Lease warrants and covenants that this Lease and his/her execution of it has been duly authorized and approved by his/her respective governing Board. 40. AMENDMENT. This Lease shall not be altered, changed, or amended except by instrument in writing executed by the Authority and the County. 15 287838.4 8/23/2011 i 0 I I IN WITNESS WHEREOF, the Parties have caused this Lease to be executed by their appropriate officials, as of the day and year first above written. AUTHORITY: ATTEST: CITY OF NAPLES AIRPORT AUTHORITY, a political subdivision of the State of Florida / 4SRP AC—. . By: Theodore D. Soliday Cormac Giblin Executive Director Chairman Approved -fo n apd leg i- =A',. ' ....../- ..i - __"4„,, F. Josep cMack N Coun - to the Authority 16 287838.4 8/23/2011 , , _ ____ _ __ . 10 G COUNTY: 1 O ' //. <z 0 ATTES-T ". - '° BOARD OF COUNTY COMMISSIONERS, ,.vy' ,t" COLLIER COUNTY `% , jt y: t E.'-Brock, I�� Fred W. Coyle, Chairman C gignaitt4,i'ttill 4-• 1,< C- .-d(- 6 t ' t to 4si nn ° atlyare Approved as to form and 11.-4 de04/21/160,C1legal sufficiency: Jennifer hite, Asst. 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