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HomeMy WebLinkAbout2022 LeaseLEASE AGREEMENT BETWEEN CITY OF SEBASTIAN, SEBASTIAN MUNICIPAL AIRPORT 0 THE ROTARY CLUB OF SEBASTIAN, INC. THIS LEASE, made and entered into this 12th day of October, 2022, by and between the CITY OF SEBASTIAN, a municipal corporation existing under the laws of the State of Florida, (hereinafter referred to as the "LANDLORD"), and The Rotary Club of Sebastian, Inc., — (hereinafter referred to as "TENANT"). The LANDLORD and the TENANT are sometimes collectively referred to herein as the "parties/party." This document contains thirteen (13) pages, plus Schedule "A". WITNESSETH: WHEREAS, the LANDLORD is the owner of certain property located in the County of Indian River County, Florida; and WHEREAS, the certain property is being used for the operation of the Sebastian Municipal AIRPORT (hereinafter referred to as the "AIRPORT'); and WHEREAS, the LANDLORD has agreed to lease such property to the TENANT subject to certain terns and conditions consistent with or in support of the current aviation use of such property or as the Federal Aviation Administration, FAA, might allow; and WHEREAS, the TENANT desires to lease the said property from the LANDLORD, and to that end and in consideration of the premises, and the covenants, terms and conditions to be performed as set forth hereinafter; and NOW, THEREFORE, in consideration of the mutual covenants hereinafter provided, the receipt and sufficiency of which are hereby acknowledged, the parties have agreed as follows: RECITALS. The stated recitals are hereby incorporated by reference in this Lease Agreement. 1. I> 6UJ2 PREMISES, Subject to the terns and conditions set forth hereinafter, and in accordance with the Principal Guiding Documents jar Sebastian Municipal Airport, the LANDLORD hereby leases to the TENANT and the TENANT hereby rents from the LANDLORD that portion of the real property, with improvements, which is described more particularly on Schedule "A" affixed hereto and made a pan hereof by reference (hereafter referred to as the "Leased Premises"). In the event that any portion of the Leased Premises is needed for actual improvements to the AIRPORT, or any portion thereof rendered unusable to TENANT, TENANT shall be released from this lease and the rental payments adjusted accordingly. TENANT agrees to 'hold harmless' the LANDLORD for any/all claims, liability, and damages resulting from activities by TENANT during move -in. 2. TERM OF LEASE. The term of this Lease shall be for a period of five (5) years commencing September 28, 2022, and will end on the fifth (5th) anniversary of such date. 3. RENT. The parties agree that the rent, payable by the TENANT, during the term of this Lease shall be, as follows: (a) The AIRPORT is providing approximately 500 square feet of property off of Airport Drive East consisting of approximately for TENANT. Base rent shall be $1.00 mer year. (b) Default in provisions. If the 'TENANT shall default in the performance of any other term of this Lease (except the payment of rent), the LANDLORD, or its agent or employee, shall send to the TENANT a written notice of default, specifying the nature of the default, and the TENANT shall, within thirty (30) days after the date of said notice. cure and remedy said default, whereupon this Lease shall continue as before. If the TENANT shall fail to cure and remedy such default within said time, the LANDLORD shall have the right to declare, by written notice to the TENANT, that the Lease is in default, and to use all remedies available to the LANDLORD hereunder or under law, including, but not limited to, those remedies, procedures and rights specified in the other paragraphs of this Lease. 4. IMPROVEMENTS TO THE PREMISES. The LANDLORD acknowledges that the TENANT is leasing the premises for the primary purpose of temporary storage. In order to utilize the leased premises for this purpose, it may be necessary to use improvements previously constructed upon the leased premises. TENANT acknowledges that these improvements are owned by LANDLORD. (a) The TENANT shall have the right to use the leased premises for any lawful purpose described in Section 5 hereof. All improvements and fixtures of every kind now or hereafter erected or placed on the leased premises shall, at the end of the term or earlier termination of this Lease, shall be removed at the TENANT's expense. The TENANT agrees that all improvements shall, upon the termination of this Lease for any mason, be free and clear of all encumbrances, liens, and title defects of any kind. A fixture shall be defined as an article which was a chattel, but which, by being physically annexed or affixed to the realty by the TENANT and incapable of being removed without structural or functional damage to the malty, becomes a part and parcel of it. Non -fixtures personally owned by the TENANT at the expiation of the tern or earlier termination of this Lease, for any reason, shall continue to be owned by TENANT and, at its option, may remove all such personal property, provided the TENANT is not then in default of any covenant or condition of this Lease; otherwise, all such property shall remain on the leased premises until the damages suffered by the LANDLORD from any such default have been ascertained and compensated. Any damage to the leased premises caused by the removal by TENANT of any such personal property shall be repaired by TENANT forthwith at TENANT's expense. 5. USE OF LEASED PREMISES. The TENANT agrees that no use of the leased premises will be conducted in such a manner as to constitute a nuisance or a hazard and that, in connection with the use of the leased premises, the TENANT will observe and comply with all applicable laws, ordinances, orders and regulations prescribed by lawful authorities having jurisdiction over the leased premises. TENANT will abide by the Principal Guiding Documentsfor Sebastian Municipal Airport. TENANT agrees that the leased premises shall be used by the TENANT for the purpose of temporary storage containers that contain items of public benefit used during the annual festivals/special events put on by the charitable organization. No other use may be conducted by the TENANT without the express written consent of the LANDLORD. Such consent may be withheld by the LANDLORD for any reason. All businesses and activities must be certified and licensed by appropriate agencies, including the FAA, in the appropriate categories of their specific operation. 6. REPAIRS AND ALTERATIONS. The LANDLORD shall not be obligated to maintain or repair the leased premises or any improvements located thereon or any part thereof during the lease term or any renewal thereof. The TENANT agrees. at its sole cost and extreme. to maintain the storage containers placed on the leased premises. The TENANT shall keep the leased premises in a good state of maintenance and repair and keep the leased premises in a clean and orderly condition in accordance with local ordinances, including but not limited to, the Sebastian Land Development Code and all other community standards ordinances. It is an express condition of this Lease that the leased premises are kept in an attractive manner at all times. Upon obtaining the prior written consent of the LANDLORD, which consent may be withheld for any reason, the TENANT, at its sole cost and expense, may erect such additional improvements on the leased premises as it deems appropriate and may make such alterations or major renovations to the existing improvements as it deems appropriate, provided, however, that such alterations or renovations shall not disturb the structural integrity of such existing improvements, and provided that the alterations or renovations shall comply with all applicable governmental regulations. The TENANT shall indemnify, defend and hold the LANDLORD harmless from any claims, losses, damages or liens arising out of or in any way connected with such additions or renovations. 7. UTILITIES. The TENANT shall be responsible for all costs of electricity, lights, water, sewer, heat, phone, internet, or any other utility or service consumed in connection with the leased premises. Utility charges shall be charged by the appropriate agency to TENANT by separate meter(s). The LANDLORD shall have no liability for the failure to procure, or the interruption of, any such services or utilities. 8. LIABILITY INSURANCE. The TENANT shall provide and keep in force, at its own expense, during the term of this Lease, comprehensive public liability insurance coverage with respect to the leased premises and operations thereupon. The insurance coverage to be maintained by the TENANT shall contain limits of: (a) Bodily Injury and Property Damage - $1,000,000 Combined Single Limits (b) Products and Completed Operations Liability (if applicable) — $1,000,000 Combined Single Limit. (c) Insurance in the full replacement value of all Personal Property, Equipment, and Trade Fixtures on the Leased Premises. (d) Automobile Liability Insurance: Each service provider operating one or more motor vehicles on the City's premises in the performance of their work shall purchase and maintain Automobile Liability Insurance with policy limits of not less than $300,000 Combined Single Limit. Service providers having unescorted access to the AGA at the Sebastian Municipal Airport shall purchase and maintain Automobile Liability Insurance with policy limits of not less than $1,000,000 Combined Single Limit. 11. PROPERTY. FIRE AND EXTENDED COVERAGE INSURANCE. The City maintains insurance against loss from fire, wind, etc. The LANDLORD shall have no obligation to keep the leased premises contents insured nor shall the LANDLORD have any obligation to insure any personal properly used in connection with the leased premises. Any policy or policies of insurance required pursuant to this Lease shall be issued by one or more insurance companies authorized to engage in business in the State of Florida. All policies described in this Paragraph shall contain a clause preventing cancellation of any coverage before thirty (30) days written notice to the LANDLORD and shall name the LANDLORD as an additional insured. Upon the request of the LANDLORD, the TENANT shall provide copies of said policies to the LANDLORD. In the event that the TENANT's use and occupancy of the premises causes any increase in the premium for any property casualty or fire insurance maintained by LANDLORD on the Leased Premises or any portion thereof, TENANT shall reimburse LANDLORD for the amount of said increase within thirty days of notice of the same. 12. INDEMNIFICATION. The TENANT agrees hereby to defend, indemnify and save the LANDLORD harmless from any and all actions, demands, liabilities, claims, losses or litigation arising out of or connected with the TENANT's occupancy or use of the leased premises and the use of the leased premises by TENANT's agents, employees, guests and invitees, including all attorneys fees incurred by the LANDLORD in defending any such claims. This Paragraph shall survive the termination or cancellation of the Lease. Nothing in this agreement shall be construed as the CITY waiving its sovereign immunity pursuant to 768.28, et seq., Florida Statutes, or any other sovereign or governmental immunity. 13. ENVIRONMENTAL MATTERS. The TENANT hereby agrees to indemnify, defend and hold the LANDLORD harmless from and against any and all claims, lawsuits, losses, liabilities, damages, and expenses (including, without limitation, clean-up costs and reasonable attorney's fees) resulting directly, or indirectly, from out of, or by reason of, any hazardous or toxic materials, substances, pollutants, contaminants, petroleum products, hydrocarbons or wastes being located on the property and being caused by the TENANT, sub -TENANTS, agents, assigns, guests, invitees, or users of leased premises or fuel farm. The presence of said substance or materials on the leased premises, or fuel farm, shall raise the presumption that TENANT is the cause of such presence. This Paragraph shall survive the termination, or cancellation, of the Lease. 14. PREVENTION OF USE OF THE PREMISES. If, after the effective date of this Lease, the TENANT is precluded or prevented from using the leased premises for those primary purposes identified in Section Sof this Lease, by reason of any zoning law, ordinance or regulation of any authority having jurisdiction over the leased premises and such prohibition shall continue for a period in excess of ninety (90) consecutive days, the LANDLORD may allow the TENANT to terminate this Lease. The right to terminate this Lease must be granted by the LANDLORD, in writing, before the TENANT shall be released from its obligations under the terms of this Lease. 15. GOVERNMENT SEIZURE. In the event the United States Government, or any agency or subdivision thereof, at my time during the term of this Lease takes over the operation or use of the airfield and/or AIRPORT which results in the TENANT being unable to operate under the terms of the Lease, then the Lease may be extended upon mutual agreement of the TENANT and the LANDLORD for an additional period equal to the time the TENANT has been deprived of the value of this Lease. If the duration of the seizure exceeds ninety (90) consecutive days, the LANDLORD, at the LANDLORD's sole discretion, may terminate this Lease. 16. EMINENT DOMAIN. If all or any part of the leased premises shall be taken under a power of eminent domain, the compensation or proceeds awarded for the taking of the leased premises shall belong to the LANDLORD. If the taking is to such an extent that it is impracticable for the TENANT to continue the operation of its business on the leased premises, the Lease, at the option of the LANDLORD, may be terminated. Nothing herein shall prevent the LANDLORD and/or the TENANT from seeking any and all damages sustained from the condemning authority by reason of the exercise of the power of eminent domain. 17. DEFAULT BY TENANT. As used in this Lease, the term, "event of default", shall mean any of the following; (a) The failure of the TENANT to fulfill any duty or obligation imposed on the TENANT by the Lease; (b) The appointment of a receiver or the entry of an order declaring the TENANT bankrupt or the assignment by the TENANT for the benefit of creditors or the participation by the TENANT in any other insolvency proceeding; (c) The TENANT's failure to pay any consideration, to the LANDLORD, required by this Lease; (d) The taking of the leasehold interest of the TENANT hereunder pursuant to an execution on a judgment; (e) The TENANT's abandonment of any substantial portion of the leased premises. "Abandonment" shall be determined by the LANDLORD; (t) The TENANT or any guarantor of TENANT's obligations hereunder, filing a petition for bankruptcy or being adjudged bankrupt, insolvent, under any applicable federal or state bankruptcy or insolvency law, or admit that it cannot meet its financial obligations as they become due, or a receiver or trustee shall be appointed for all or substantially all of the assets of TENANT or any TENANT's obligations hereunder, (g) The TENANT or any guarantor of the TENANT's obligations hereunder shall make a transfer in fraud of creditors or shall make an assignment for the benefit of creditors; (h) The TENANT shall do or permit to be done any act which results in a lien being filed against the leased premises or the property which is not released of record within thirty (30) days of the date it is initially recorded in the Public Records of Indian River County, Florida. Each party covenants and agrees that it has no power to incur any indebtedness giving a right to a Gen of any kind or character upon the right, title and interest of the other party in and to the property covered by this Lease, and that no third person shall ever be entitled to any lien, directly or indirectly, derived through or under the other party, or its agents or servants, or on account of any act of omission of said other party. All persons contracting with the TENANT or furnishing materials or labor to said TENANT, or to its agents or servants, as well as all persons whomsoever, shall be bound by this provision of this Lease. Should any such lien be filed, the TENANT shall discharge the same by payment or by filing a bond, or otherwise, as permitted by law. The TENANT shall not be deemed to be the agent of the LANDLORD so as to confer upon a laborer bestowing labor upon the leased premises a mechanic's lien upon the LANDLORD's estate under the provisions of the Florida Statutes, or any subsequent revisions thereof; (1) The liquidation, termination, death or dissolution of the TENANT or all Guarantors of the TENANT's obligations hereunder; (2) The TENANT fails for more than one hundred twenty (120) consecutive days to continuously conduct and carry on in good faith the type of business for which the leased premises are leased. (i) The TENANT shall be in default of any other term, provision or covenant of this Lease, other than those specified in subparts (a) through (1) above. Upon the happening of any "event of default", the LANDLORD may, at its option, terminate this Lease and expel the TENANT there from to without prejudice any other remedy; provided, however, that before the exercise of such option for failure to pay rent or failure to perform any condition imposed herein upon the TENANT, the LANDLORD shall give written notice of such event of default to the TENANT, which thereafter shall have thirty (30) days from the date notice is sent by the LANDLORD within which to remedy or correct such default, unless such default is the f rilum to pay rent, in which case the TENANT shall have ten (10) days from the date notice is sent by the LANDLORD within which to remedy such default by paying all rent due. 18. IDENTITY OF INTFRFST. The execution of this Lease or the performance of any act pursuant to the provisions hereof shall not be deemed or construed to have the effect of creating, between the LANDLORD and the TENANT, the relationship of principal and agent, or of a partnership, or of a joint venture and the relationship between them shall be and remain only that of LANDLORD and TENANT. 19. NOTICES AND REPORTS. Any notice, report, statement, approval, consent, designation, demand or request to be given, and any option or election to be exercised by a party under the provisions of this Lease, shall be effective only when made in writing and delivered (or mailed by registered or certified mail with postage prepaid) to the other party at the address given below: City of Sebastian Sebastian Municipal AIRPORT Attn: City Manager or Airport Director 1225 Main Street Sebastian, FL 32958 TENANT: Rotary Club of Sebastian, Inc. PO Box 781783 Sebastian, FL 32978 Provided, however, that either party may designate a different representative or address from time to time by giving to the other party notice in writing of the change. Rental payments to the LANDLORD shall be made by the TENANT at an address to be furnished to the TENANT. 20, RIGHT TO INSPECT. The LANDLORD may enter the leased premises upon reasonable notice: (a) To inspect or protect the leased premises or any improvement to a property location thereon; (b) To determine whether the TENANT is complying with the applicable laws, orders or regulations of any lawful authority having jurisdiction over the leased premises or any business conducted therein; or (c) To exhibit the leased premises to any prospective purchaser or TENANT during the final sixty (60) days of the lease term, or at any time after either party has notified the other that the Lease will be terminated for any reason. (d) No authorized entry by the LANDLORD shall constitute an eviction of the TENANT or a deprivation of its rights or alter the obligation of the LANDLORD or create any right in the LANDLORD adverse to the interest of the TENANT hereunder. 21. REMOVAL OF TRADE FIXTURES. SIGNS AND PERSONAL PROPERTY. At the expiration of the Lease, the TENANT agrees to immediately surrender possession of the premises and all facilities thereon. TENANT shall have the right to remove all personal property owned by the TENANT provided any damages in removal are repaired by the TENANT at TENANT's sole cost. Any personal property not removed within thirty (30) days shall be presumed abandoned. The cost of removing any such abandoned property that the City deems unusable shall be indemnified to LANDLORD by TENANT. 22. HEIG[TT/HAZ.4RD RESTRICTIONS. The TENANT expressly agrees for itself, its successors and assigns, to restrict the height of structures and other obstructions on the leased premises to such a height so as to comply with all Federal Aviation Regulations, State laws and local ordinances, rules and regulations now existing and hereinafter promulgated. The TENANT expressly agrees for itself, its successors and assigns, to prevent any use of the leased premises which would interfere with or adversely affect the operation or maintenance of the AIRPORT or otherwise constitute an AIRPORT hazard. The TENANT covenants and acknowledges that the use of the leased premises as proposed by the TENANT does not interfere with or adversely affect the operation or maintenance of the AIRPORT or otherwise constitute an AIRPORT hazard. The LANDLORD reserves unto 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 such airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used, for navigation or flight in the airspace, and for use of said airspace for landing on, taking off from, or operating on the AIRPORT. 23, NONDISCRIMINATION. The TENANT for itself, its personal representatives, successors in interest and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant mnming with the land that (i) no person on the grounds of religion, gender, marital status, race, color, age, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subject to discrimination in the use of the TENANT's facilities; (u) that in the improvements on, over or under the leased premises and the furnishing of services thereon, no person on the grounds of religion, gender, marital status, race, color, age, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; (iii) that the TENANT shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964. In the event of the breach of any of the above non-discrimination covenants, the LANDLORD shall promptly notify the TENANT, in writing, of such breach and the TENANT shall immediately commence curative action. Such action by the TENANT shall be diligently pursued to its conclusion, and if the TENANT shall then fail to commence or diligently pursue action to cure said breach, the LANDLORD shall then have the right to terminate this Lease and to re-enter and repossess said land and improvements thereon. 24. ENTIRE AGREEMENT. This Lease contains all of the understandings by and between the parties hereto relative to the leasing of the premises herein described, and all prior agreements relative thereto have been merged herein or are voided by this instrument, which may be amended, modified, altered, changed, revoked or rescinded in whole or in part only by an instrument in writing signed by each of theparties hereto. 25. ASSIGNMENT AND SUBLETTING. The TENANT shall not assign this Lease or sublet the leased premises or any portion thereof, or otherwise transfer any right or interest hereunder without the prior written consent of the LANDLORD. If the LANDLORD consents, in writing, to the assignment, subletting or other transfer of any right or interest hereunder by the TENANT, such approval shall be limited to the particular instance specified in the written consent and the TENANT shall not be relieved of any duty, obligation or liability under the provisions of its Lease. 26. BINDING EFFECT. The terms and provisions of this Lease shall be binding on the parties hereto and their respective heirs, successors, assigns and personal representatives, and the terms of any Addendum attached hereto are incorporatedherein. 27. APPLICABLE VENUE. In the event of litigation arising out of this writing, venue shall be in Indian River County, Florida and the terms of this Lease shall be construed and enforced according to the laws of the State of Florida except to the extent provided by Federal law. THE PARTIES HEREBY WAIVE THE RIGHT OF TRIAL BY JURY OF ANY ISSUES SOTRIABLE. 28. ATTORNEYS FEES. In any action arising out of the enforcement of this writing, the prevailing party shall be entitled to an award of reasonable attorney fees and costs, both at trial and all appellate levels, based upon the prevailing rates of private attorneys in Indian River County, Florida. 29. RECORDING. In no event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County,Florida. 30.,MISCELLANEOUS. The LANDLORD shall have the option, without waiving or impairing any of its rights hereunder, to pay any sum or perform any act required of the TENANT, and the amount of any such payment and the value of any such performance, together with interest thereon, shall be secured by this Lease, and shall be promptly due and payable to the LANDLORD. All delinquent payments to the LANDLORD shall bear interest at the rate of 18% per year from date the payments are due to the date of payment. Said interest shall be calculated on a daily basis and shall be due and payable when billed. In the event of the TENANT's breach of any of the provisions of this Lease, the LANDLORD shall thereupon have a lien upon all revenues, income, rents, earnings and profits from the leased premises as additional security to the LANDLORD for the TENANT's faithful performance of each of the terms and provisions hereof, and to secure payment of all sums owing to the LANDLORD hereunder. Such liens shall be superior in dignity to the rights of the TENANT and any of its creditors or assignees or any trustee or receiver appointed for the TENANTS property, or any other person claiming under the TENANT. Upon the LANDLORD's termination of the TENANTS rights under this Lease by reason of the TENANTS default, all such revenues, income, rents, earnings and profits derived or accming from the leased premises from the date of such termination by the LANDLORD shall constitute the properly of the LANDLORD, and the same is hereby declared to be a trust fund for the exclusive benefit of the LANDLORD and shall not constitute any asset of the TENANT or any trustee or receiver appointed for the TENANT's properly. The provisions of this paragraph shall be effective without the LANDLORD's re-entry upon the leased premises or repossession thereof, and without any judicial determination that the TENANT's interest under said lease has been terminated. The TENANT acknowledges that the LANDLORD is required by law to operate under an AIRPORT Master Plan and the. TENANT covenants that he will use the leased premises consistent with the AIRPORT Master Plan. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. ATTEST: City of Sebastian Sebasti M ' rp ort Jeffrey S o, Airport Manager rc Gingers, Rotary Club -- C- - -&'� anells, MMC Paul Carlisle, City Manager Approved as to Form and Legality for Reliance by the City of Sebastian only: qCAttmy -_Ma y An , J Schedule "A" Lease Agreement between the City Of Sebastian, Sebastian Municipal AIRPORT and Rotary Club of Sebastian, Inc., concerning approximately 500 square feet of Property Located at 160 AIRPORT Drive East. Sebastian, FL 32958 The City Of Sebastian, Sebastian Municipal AIRPORT, shall lease to the Rotary Club of Sebastian, Inc., 500 square feet (more or less) of property located at the Sebastian Municipal AIRPORT. It is understood that the property shall be used for temporary storage using shipping containers. The lease rate shall be at a rate as described in Section 3 of the lease agreement. The lease rate is contingent upon FDOT and FAA approval of the per square foot lease rate. _----------I r< =- -- _Si LEA \ - / .IAVRIRF45\ . EBASTIAN MUNIMAL AIRN 1