HomeMy WebLinkAbout03071990City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
AGENDA
SEBASTIAN CITY CO~ClL
SPECIAL MEETING
WEDNESDAY, MARCH 7, 1990 - 7:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
ALL PROPOSED ORDINANCES AND iNFORMATION ON ITEMS
BELOW MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK,
CITY NALL, 1225 MAIN STREET, SEBASTIAN, FLORIDA.
SPECIAL MEETING PURPOSE: CALLED BY MAYOR VOTAPKA TO
AWARD BIDS FOR PUBLIC WORKS PROJECTS AND TO COMPLETE
ITEMS NOT ADDRESSED AT THE FEBRUARY 28, 1990 REGULAR
MEETING
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
4. CONSENT AGENDA
89.223
Award Bid - Riverview Park Toilet Facility - Capp
Custom Builders, Inc. - $41,611.90 (Staff
Recommendation dated 3/1/90, Memo from Interim
City Engineer dated 3/1/90)
90.063
Award Bid - New Water Well & Irrigation System -
United Irrigation - $17,829 (Staff Recommendation
dated 3/1/90, Memo from Interim City Engineer
dated 3/1/90)
90.064
Award Bid - Barber Street Sports Complex -
Concession/Toilets/Switchroom - Capp Custom
Builders, Inc. - $47,841 (Staff Recommendation
dated 3/1/90, Memo from City Engineer dated
3/1/90)
90.061
ITEMS NOT ADDRESSED AT FEBRUARY 28, 1990 REGULAR
MEETING
RESOLUTION NO. R-90-12 - City Attorney Contract
(City Manager Recommendation dated 2/15/90)
A RESOLUTION OF THE CiTY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, PERTAINING TO THE EMPLOYMENT OF A
CITY ATTORNEY; PROVIDING AUTHORITY TO ENTER INTO AN
AMENDMENT TO THE EXISTING CONTRACTURAL SERVICE
AGREEMENT WITH CHARLES IAN NASH FOR THE PURPOSE OF
PROVIDING LEGAL REPRESENTATION TO THE CITY; PROVIDING
FOR THE EXTENSION OF THE EXISTING CONTRACTURAL
SERVICE AGREEMENT BETWEEN THE CITY AND CHARLES IAN
NASH; PROVIDING FOR CHARLES IAN NASH TO UTILIZE THE
SERVICES OF OTHER PROFESSIONAL STAFF MEMBERS OF HIS
LAW FIRM IN PROVIDING LEGAL REPRESENTATION TO THE
CITY; PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF
RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
89.157 B.
89.157 C.
Request for Reimbursement of Attorney's Fees -
George Metcalf (Letter from City Attorney dated
2/2/90)
Request for Reimbursement of Attorney's Fees -
Dorothy Doucet f/k/a Dorothy McKinley (Letter
from City Attorney dated 2/2/90, Letter from City
Attorney to Attorney Long dated 2/2/90, Letter
from City Attorney dated 1/2/90)
6. ADJOURN SPECIAL MEETING
ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY
COUNCIL WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR
HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO
ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH
RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL
IS TO BE HEARD. (286.0105 F.S.)
City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
90.065
88.063
AGENDA
SEBASTIAN CITY COUNCIL
WORKSHOP MEETING
WEDNESDAY, MARCH 7, 1990 - 7:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
1. CALL TO ORDER
2. ROLL CALL
3. AGENDA MODIFICATIONS (ADDITIONS AND/OR DELETIONS)
5. ANNOUNCEMENTS
6. PUBLIC INPUT
A. NOn-Agenda Items
None.
B. Agenda Items
7. WORKSHOP ITEMS
A. Discussion - Street Plan (Staff Recommendation
dated 3/1/90, Letter from Jim Davis dated
2/22/90, Letter from Sebastian Development
Project dated 2/21/90)
B. Discussion - Review of Italian/American Club
Lease Proposal (Staff Recommendation dated
2/28/90, Memo from Director of Community
Development dated 2/20/90)
8. MAYOR' S MATTERS
89.226
10.
11.
9. COUNCIL MATTERS
A. Vice Mayor McCarthy
B. Councilman McCollum
C. Councilman Oberbeck
D. Councilman Rondeau
CITY ATTORNEY MATTERS
CITY MANAGER MATTERS
A. Report on Available Funds for Main Street/Gibson
Street Realignment (Memo from Finance Director
dated 3/1/90)
12. ADJOURN
ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY
COUNCIL WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR
HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO
ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH
RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL
IS TO BE HEARD. (286.0105 F.S.)
4
The following is a list of actions taken at the March 7, 1990
Special Meeting/Workshop.
89.223 - Riverview Park toilet facility bid awarded to Capp
Custom Builders, Inc. - $41,611.90 - letter to Capp -
letters to other bidders - copy minutes to Eng/PW, Finance &
file - 2 contracts are already signed and one given to Capp
- file 90 purchases ~
90.063 - Barber Street Sports Complex - Water Well &
Irrigation System - $17,829 - awarded to United irrigation -
- letter to United - letters to other bidders - copy minutes
to Eng/PW, Finance & file - I have letter of agreement -
file 90 purchases
90.064 - Barber Street Sports Complex - Concession/Toilets/
Switchroom - bid awarded to Capp Custom Builders - $47,841 -
- letter to Capp - letters to other bidders - copy minutes
to Eng/PW, Finance & file - 2 contracts are already signed
and one given to Capp - file 90 purchases
90.061 - Resolution No. R-90-12 - City Attorney Contract -
adopted - sign seal notarize - copy to black book, original
file, City Attorney, Finance - file contracts - make
notation in 90 resolution backup file - update r-90 in
computer
89.157 - Metcalf request for reimbursement approved - copy
minutes to Finance & file - letter to Mr. Metcalf - file???
89.157 - Doucet (McKinley) - request for reimbursement
denied - letter to her
90.065 - Street Plan - discussion - staff to amend and bring
back to 3/14/90 meeting - done
88.063 - Italian/American Club lease - discussion - placed
on 3/14/90 agenda - (was not placed on 3/14/90 - Charlie
needs to amend - will be placed on 3/28/90)
89.226 - Main Street/Gibson Street Realignment - discussion
89.003 - City Attorney instructed to review whether any
criminal or civil action can be brought against Steve
Johnson for interfering with Apogee Study by requesting
flight training schools to increase flights - also contact
Eliot Cutler to see if any federal violations exist
DOCUMENT LIST
The following is a list of backup materials for each item in
the agenda packet and notation for those agenda items with no
backup.
3/7/90 Special Meeting and Workshop Agenda
4. CONSENT AGENDA
89.223
90.063
Award Bid - Riverview Park Toilet Facility - Capp
Custom BuildersL Inc. - $41,611.90
1. Staff Recommendation dated 3/1/90
2. 2 Memos from Interim City Engineer dated
3/1/90
Award Bid - New Water Well & Irrigation System
United Irri~ation - $17,829
1. Staff Recommendation dated 3/1/90
2. 2 Memos from Interim City Engineer dated
3/1/90
90.064
Ce
Award Bid - Barber Street Sports Complex -
Concession/Toilets/Switchroom - Capp Custom
Builders, Inc. - $47,841
1. Staff Recommendation dated 3/1/90
2. 2 Memos from Interim City Engineer dated
3/1/90
ITEMS NOT ADDRESSED AT FEBRUARY 28~ 1990 REGULAR
MEETING
90.061
RESOLUTION NO. R-90-12 - ~ Attorney Contract
1. City Manager Recommendation dated 2/15/90
2. R-90-12 w/ attachment
89.157
Be
Request for Reimbursement of Attorney's Fees -
George Metcalf
1. Letter from City Attorney dated 2/2/90
89.157
Ce
Request for Reimbursement__°f Attorney's Fees -
Dorothy Doucet f/k/a ~ ~
1. Letter from City Attorney dated 2/2/90
2. Letter from City Attorney to Attorney Long
dated 2/2/90
3. Letter from City Attorney dated 1/2/90
90.065
88.063
89.226
11.
7. WORKSHOP ITEMS
Discussion - Street Plan
1. Staff Recommendation dated 3/1/90
2. Letter from Jim Davis dated 2/22/90
3. Letter from Sebastian Development Project
dated 2/21/90
4. Map
Discussion - Review of Italian/American Club
Lease Proposal
1. Staff Recommendation dated 2/28/90
2. Memo from Director of Community Development
dated 2/20/90
3. Lease Agreement
CITY MANAGER MATTERS
Report on Available Funds for Main Street/Gibson
Street Realignment
1. Memo from Finance Director dated 3/1/90
2
City of Sebastian
POST OFFICE BOX 780127 ~ SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
SUBJECT: Award Bid for Toilet
Facility at Riverview Park
Approved Pot Submittal By:
City Manager
)
) Dept. Origin: Finance (LWN)
Date Submitted: 03/05/90
For Agenda Of: 03/07/90
Exhibits:
- Memo from CE/PWD
dated 3/1/90
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED
APPROPRIATION
REQUIRED:
,~,.UHMARY STATEMENT
One bid was received to construct a new toilet facility at
Riverview Park. After review by appropriate staff, the bid price
was found to be fair and reasonable. Staff also concludes the
contractor, if awarded the contract, will complete the work
according to specifications. Capp Custom Builders, Inc. has
performed in a satisfactory manner in the past.
RECOMMENDED ACTION
Move that the bid for a new toilet facility at Riverview Park be
awarded to Capp Custom Builders, Inc., of Sebastian, in the
amount of $41,611.90.
City of Sebastian
POST OFFICE BOX 780127 ~ SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
DATE:
TO:
FR OM:
RE:
1 MARCH 1990
ROBERT S. McCLARY, CITY MANAGER
DAVE FISHER, ENGINEERING/PUBLIC WOR~. ~
BID AWARD RECOMMENDATION
. CAPP CUSTOM BUILDERS, INC.
· NEW TOILET FACILITY AT RIVERVIEW PARK
Attached is a copy of the minutes of the bid clarification
meeting for the subject project.
Capp Custom Builders is the only bidder. We find they are
qualified and capable of completing the job as required.
Further, we find their bid price to be fair, reasonable, and
competitive even though they were the only bidder.
Pursuant to the bid clarification meeting, we conclude they
understand the drawings and specifications and the schedule
requirements and, if awarded the contract, they will complete
the work in accordance with the City's requirements.
For the above stated reasons, we recommend the subject
contract be awarded to Capp Custom Builders for the base bid
amount of $41,611.90.
City of Sebastian
POST OFFICE BOX 780127 r~ SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407~589-5570
DATE
TO:
FROM
RE:
1 MARCH 1990
ROBERT S. McCLARY, CITY MANAGER
MINUTES - BID CLARIFICATION MEETING
HELD WED., 28 FEB 90, 2:00 PM
. NEW TOILET FACILITY AT RIVERVIEW PARK
The subject meeting was held in the Engineering/Public Works
office.
Present:
City of Sebastian - Larry Napier, Finance
Peter Jones, Architect/Planner
Dave Fisher, Engrg/PW
Linda Kinchen, "
Jerry Thomas, "
Capp Custom Bldrs - Mickey Capp, President
Scope of work, bid drawings and specifications, schedule,
subcontractors, construction site protection, and contract
format were discussed and clarified.
The following was noted and confirmed:
1)
Capp's "Site Prep" number of $870 includes removal and
treatment of mound but not removal and disposal of
concrete walk or pipe railing.
2)
Capp's "Septic Tank / Drain Field" number of $3366.32
includes complete item per drawings and specs, except
that Capp wants $150 extra if metal ring is required on
septic tank. Will be subcontracted.
more
BID CLARIFICATION MEETING - CAPP
NEW TOILET FACILITY AT RIVERVIEW PARK
I MARCH 90
PG 2 OF 2
3) Capp's "Building Complete" number of $31,728.31 includes
all items per plans and specs, including stated
allowances for sod and concrete walk; except Capp will
want appropriate extra if City specifies colored block.
Also, Capp to check and advise price differential, if
any, for heavy-duty wall-mounted button-type toilet flush
valves.
4) Capp's "Water Supply / Treatment System" number of
$5647.27 includes item complete per plans and specs
(including $745.00 for testing), with water approved by
HRS for drinking. Septic/well permits not by Capp.
[To beAdesign~ engineer, Mosby.]
5) Capp co~f~rmed intent and ability to complete total
project 7 weeks after Notice to Proceed.
6)
7)
Capp suggests revising designed point of electrical
service by FPL, with possibility of increasing level of
service. Capp to request extra of $300 to $500 if new
breaker panel required per this item.
There were no other substantial open questions and no
other significant extras or change orders are expected.
City of Sebastian
POST OFFICE BOX 780127 r~ SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
SUBJECT: Award bid for New Water
Well and Irrigation System.
Approved For Submittal
City Manager
Agenda No.
Dept. Origin: Finanoe (LWN)
Date Submitted: ~
For Agenda Of: 03/07/90
Exhibits: Memo from CE/PWD
dated 3-1-90
EXPENDITURE
REQUIRED: $17,829.00
AMOUNT
BUDGETED: $180,000.00
APPROPRIATION
REQUIRED:
SUMMARY STATEMENT
Two bids were received for a new water well and irrigation system
for the Barber Street Sports Complex. The bid from Jordan
Sprinkler Systems, Inc., was faxed to the City Clerk's office and
should be rejected since it was not sealed and not received in
the manner pursuant to City Code 2-63 (c) (1). United Irrigation
was the lowest and best bidder and has the expertise and ability
to complete the contract to specifications.
RECOMNENDED ACTION
Move the bid from Jordan Sprinkler Systems, Inc., be rejected for
non-compliance with city Code 2-63 (c) (1) and that the bid for
a new water well and irrigation system be awarded to the lowest
and best bidder, United Irrigation, of Vero Beach, in the amount
of $17,829.00.
DATE:
TO:
FROM:
RE:
City of Sebastian
POST OFFICE BOX 780127 ~ SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
1 MARCH 1990
ROBERT S. McCLARY, CITY MANAGER
DAVE FISHER, ENGINEERING/PUBLIC W~~
BID AWARD RECOMMENDATION
. UNITED IRRIGATION, INC.
. NEW WATER WELL AND IRRIGATION SYSTEM
Attached is a copy of the minutes of the bid clarification
telephone conference for the subject project.
United Irrigation is the low bidder. We find they are
qualified and capable of completing the job as required.
Further, we find their bid price to be fair, reasonable, and
competitive.
Pursuant to the bid clarification conference, we conclude
they understand the drawings and specifications and the
schedule requirements and, if awarded the contract, they will
complete the work in accordance with the City's requirements.
For the above stated reasons, we recommend the subject
contract be awarded to United Irrigation, Inc. for the base
bid amount of $17~
City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
DATE:
1 MARCH 1990
TO:
FROM:
RE:
ROBERT S. McCLARY, CITY MANAGER
DAVE FISHER, ENGINEERING/PUBLIC W~~
MINUTES - BID CLARIFICATION CONFERENCE (PHONE)
HELD THURS, 1 MARCH 90, 10:00 AM
BARBER STREET SPORTS COMPLEX
IRRIGATION / NEW WATER WELL
BID BY UNITED IRRIGATION, INC.
The subject phone conference meeting was held in the
Engineering/Public Works office.
Present:
City of Sebastian - Dave Fisher, Engrg/PW
Jerry Thomas, "
United Irrigation - Leroy Hiers, President
Scope of work, bid drawings and specifications, and schedule
were discussed and clarified.
The following was confirmed:
1)
United Irrigation bid includes complete scope of work
anticipated by City as described by bid plans and
drawings. No disagreement or misunderstandings.
2)
United Irrigation confirms intent and capability to
build facility WITHIN 21 CALENDAR DAYS AFTER NOTICE TO
PROCEED.
3)
Base bid price was clarified as $17,829 including $1250
for runs and stub-ups for future connections (per their
letter attached to bid).
4)
There were no substantial open questions and no
significant extras or change orders are expected.
City of Sebastian
SUBJECT: Award bid for Barber
Street Sports Complex -
concession/toilets/switchroom
POST OFFICE BOX 780127 [] SEBASTIAN. FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
&pproved For Submittal By:
city Manager
)
) Dept. Origin: Finanoe (LWN)
)
) Date Submitted: 03/01/90
)
) For Agenda Of: 03/07/90
)
) Exhibits: Memo from CE/PWD
) dated 3-1-90
)
)
)
)
)
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
SUMMARy,STATEMENT
One bid was received for the construction of a concession, toilet
and switchroom facility at the Barber Street Sports Complex.
Capp Custom Builders is highly qualified and their bid was found
to be in fair, reasonable and very competitive. This contractor
has performed very satisfactorily in the past.
RECOMMENDED ACTION
Move the bid for construction of a concession, toilet and
switchroom facility at Barber Street Sports Complex be awarded to
Capp Custom Builders, Inc., of Sebastian, in the amount of
$47,841.00.
City of Sebastian
POST OFFICE BOX 780127 D SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5870
DATE:
TO:
FR OM:
RE:
1 MARCH 1990
ROBERT S. McCLARY, CITY MANAGER
DAVE FISHER, ENGINEERING/PUBLIC
BID AWARD RECOMMENDATION
. CAPP CUSTOM BUILDERS, INC.
. BARBER STREET SPORTS COMPLEX
CONCESSION / TOILETS / SWITCHROOM
Attached is a copy of the minutes of the bid clarification
meeting for the subject project.
Capp Custom Builders is the only bidder. We find they are
qualified and capable of completing the job as required.
Further, we find their bid price to be fair, reasonable, and
competitive even though they were the only bidder.
Pursuant to the bid clarification meeting, we conclude they
understand the drawings and specifications and the schedule
requirements and, if awarded the contract, they will complete
the work in accordance with the City's requirements.
For the above stated reasons, we recommend the subject
contract be awarded to Capp Custom Builders for the base bid
amount of $4.!..~841.00.
City of Sebastian
POST OFFICE BOX 780127 ~ SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
DATE:
TO:
FROM:
RE:
1 MARCH 1990
ROBERT S. McCLARY, CITY MANAGER
DAVE FISHER, ENGINEERING/PUBLIC
MINUTES - BID CLARIFICATION MEETING
HELD WED., 28 FEB 90, 2:00 PM
BARBER STREET SPORTS COMPLEX
CONCESSION / TOILETS / SWITCHROOM
BID BY CAPP CUSTOM BUILDERS, INC.
The subject meeting was held in the Engineering/Public Works
office.
Present:
City of Sebastian - Larry Napier, Finance
Peter Jones, Architect/Planner
Dave Fisher, Engrg/PW
Linda Kinchen, "
Jerry Thomas, "
Capp Custom Bldrs - Mickey Capp, President
Scope of work, bid drawings and specifications, schedule,
subcontractors, construction site protection, and contract
format were discussed and clarified.
The following was confirmed:
1)
Capp bid includes complete scope of work anticipated by
City as described by bid plans and drawings. No
disagreement or misunderstandings.
more
BID CLARIFICATION MEETING
BARBER STREET SPORTS COMPLEX
CONCESSION / TOILET / SWITCHROOM
1 MARCH 90
PG 2 OF 2
2)
Capp confirms intent and capability to build facility in
accord with the following schedule:
Phase I
· ~ Building shell w/ doors and windows, roughed-in
plumbing and electrical ($22,918) PLUS
switchroom interior complete, ready to receive
electrical ($9,159), COMPLETE WITHIN 21 CALENDAR DAYS
AFTER NOTICE TO PROCEED AND FILL IS IN PLACE.
(City to work with Capp to select color of split-face
concrete block prior to 7 March 90.)
Phase II
Finished plumbing and electrical ($5,730) PLUS septic
tank and drain field system ($10,034), COMPLETE WITHIN
40 CALENDAR DAYS AFTER PHASE I IS COMPLETE.
3)
There were no substantial open questions and no
significant extras or change orders are expected.
City of Sebastian
POST OFFICE BOX 780127 = SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
SUBJECT: City Attorney Contract
Approved For Submittal By:
City Manager
) Agenda No. ~0.~/
)
) Dept. Origin: City Manager
Date Submitted 02/15/9Q
For Agenda Of 02/28/90
Exhibits: Resolution No R-90-12
-First Amendment to Attorney
Contract
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
SUMMARY STATEMENT
City Attorney Charles i. Nash has requested that his request for
an extension of his contract be placed on the February 28, 1990
City Council Agenda.
RECOMMENDED ACTION
Review request with City Attorney.
RESOLUTION NO.: R-90-
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, PERTAINING TO THE EMPLOYMENT OF A CITY
ATTORNEY; PROVIDING AUTHORITY TO ENTER INTO AN
AMENDMENT TO THE EXISTING CONTRACTUAL SERVICE AGREEMENT
WITH CHARLES IAN NASH FOR THE PURPOSES OF PROVIDING
LEGAL REPRESENTATION TO THE CITY; PROVIDING FOR THE
EXTENSION OF THE EXISTING CONTRACTUAL SERVICE AGREEMENT
BETWEEN THE CITY AND CHARLES IAN NASH; PROVIDING FOR
CHA,~T~S I~ NASH TO UTILIZE THE SERVICES OF OTHER
PROFESSIONAL STAFF MEMBERS OF HIS LAW FIRM IN PROVIDING
LEGitL REPRESENTATION TO THE CITY; PROVIDING FOR REPEAL
OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT
HEREWITH; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the City Council and the current City Attorney are
desirous of amending their current Contractual Service Agreement
to provide for an extension thereof and to provide for the City
Attorney to use other professional members of his law firm to
provide legal services to the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that:
~.ection 1. AGREEMENT. The city Council of the City of
Sebastian, Indian River County, Florida, hereby agrees to enter
into the First Amendment to Contractual Service Agreement with
Charles ian Nash, a copy of which is identified as Exhibit "A" to
this Resolution and by this reference incorporated herein.
Section 2- EXECUTION. The Mayor of the City of
Sebastian is hereby directed to execute the First Amendment to
Contractual Service Agreement as agent for the City of Sebastian.
Section3. CONFLICT. Ail resolutions or
resolutions in conflict herewith are hereby repealed.
Sect~ SEVERABILITY. In the event a
parts of
court of
competent jurisdiction shall hold or determine that any part of
this Resolution is invalid or unconstitutional, the remainder of
the Resolution shall not be affected and it shall be presumed
that the City Council of the city of Sebastian did not intend to
enact such invalid or unconstitutional provision. It shall
further be assumed that the city Council would have enacted the
remainder of this Resolution without said invalid and
unconstitutional provision, thereby causing said remainder to
remain in full force and effect.
Section 5. EFFECTIVE DATE. This Resolution shall take
effect immediately upon final passage.
The foregoing
Councilman
by Councilman
Resolution
was moved for adoption by
. The motion was seconded
and, upon being put to a
vote, the vote was as follows:
Mayor Richard B. Votapka
Vice-Mayor Robert McCarthy
Councilman Robert L. McCollum
Councilman Frank 0berbeck
Councilman Lloyd Rondeau
2
The Mayor thereupon declared this Resolution duly passed and
adopted this __ day of , 1990.
CITY OF SEBASTIAN, FLORIDA
By:
Richard B. Votapka, Mayor
ATTEST:
Kathryn M. O'Halloran, CMC/AAE
city Clerk
(Seal)
Approved as to Form and Content:
Charles Ian Nash, City Attorney
3
FIRST AMI~ND~ TO .G~)NTRACTUAL SERVICE. AGREEMENT
This First Amendment to Contractual Service Agreement
is made and entered into this day of ,
1990, between the City of Sebastian, Florida, a Florida municipal
corporation, whose principal office is located at 1225 Main
Street, Sebastian, Florida, 32958 (hereinafter referred to as the
"City"), and Charles Ian Nash, of the law firm of Frese, Fallace,
Nash & Torpy, P.A., whose principal offices located at 930 South
Harbor city Boulevard, Suite 505, Melbourne, Florida, 32901
(hereinafter referred to as the "City Attorney").
In consideration of the covenants hereinafter provided,
the receipt and sufficiency of which are hereby acknowledged, the
City and the city Attorney hereby agree to amend the certain
Contractual Service Agreement entered into on the 26th day of
April, 1989, between the City of Sebastian and Charles Ian Nash
as follows:
1. Paragraph 9 of the certain Contractual Service
Agreement entered into between the City of Sebastian and Charles
Ian Nash, dated April 26, 1989, and approved by the Resolution of
the City Council in Resolution R-89-21 adopted by the majority of
the City Council on April 26, 1989, is hereby amended to extend
the termination date of such Contractual Service Agreement until
the date of the first City Council meeting in May, 1992, unless
otherwise extended by mutual agreement. In all other respects,
the provisions of the original Paragraph 9 shall remain in full
force and effect.
2. The City Attorney shall be authorized to utilize
other professional employees of the law firm in which he is
associated to perform services on behalf of the City, from time
to time, as the city Attorney deems advisable.
3. In all other respects, the Contractual Service
Agreement entered into on the 26th day of April, 1989, between
the City of Sebastian and Charles Ian Nash is hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties to this First Amendment
to Contractual Service Agreement have set their hands and seals
hereto, on the day and year first above written.
"City"
CITY OF SEBASTIAN
Attest:
.Kathryn M. O'Halloran, CMC/AAE
city Clerk
(Seal)
By:
Richard B. Votapka, Mayor
"city Attorney"
Charles Ian Nash
STATE OF FLORIDA )
) ss
COUNTY OF INDIAN RIVER )
Before me, the undersigned authority, personally came
and appeared RICHARD B. VOTAPKA, the Mayor of the City of
Sebastian, who, upon being duly sworn, acknowledged that he
executed the foregoing First Amendment to Contractual Service
Agreement, in his capacity as the Mayor of the City of Sebastian,
for the purposes as therein expressed.
In witness whereof, I have placed my hand and official
seal, im the County and State last aforesaid, this day
of , 1990.
Notary Public
State of Florida at Large
My Commission Expires:
STATE OF FLORIDA
COUNTY OF
)
) ss
)
Before me, the undersigned authority, personally came
and appeared CHARLES IAN NASH who, upon being duly sworn,
acknowledged that he executed the foregoing First Amendment to
Contractual Service Agreement for the purposes as therein
expressed.
In witness whereof, I have placed my hand and official
seal, in the County and State last aforesaid, this day
of , 1990.
Notary Public
State of Florida at Large
My Commission Expires:
3
""" i~RESE, I:~ALLAOE, I~ASH & TolaPY, P.A.
ATTORNEYS AT LAW
February 2, 1990
930 S. H~I{~,0R 0I?¥ BLVD.
8ur'rE 505
~u~ou~. FUO~ZD. 32901
(407) 984-3300
~ (407) 951-3741
Robert $. McClary, City Manager
City of Sebastian
P. O. Bo~ 780127
Sebastian, FL 32978
Re:
Request for Reimbursement of Attorney's Fees/
George M. Metcalf
City of Sebastian
Our File No. 89-4827
Dear Robb:
Please be advised that I have received additional information
from former Councilman George Metcalf regarding the attorney fees
he incurred in connection with the various attempts to bring
civil and ethical charges against him and to pursue a recall
election relative to certain actions he took while serving as
City Councilman.
It is my opinion, at this time, that the amount of fees and costs
which former Councilman Metcalf incurred were reasonable and were
related to his efforts to defend himself against the various
civil and ethical charges and the recall petition. However, with
respect to the issue as to whether the City has a legal
obligation to reimburse former Councilman Metcalf for those legal
expenses and costs, it will need to be determined whether his
actions in the subject matter were within the scope of his duties
as a City Councilman and were conducted for a valid municipal
purpose. This type of decision should be considered by the City
Council as the finder of fact. If former Councilman Metcalf does
not concur with the findings of the City Council, he can always
proceed in an action against the City Council through the
judicial system.
I realize that this matter was discussed at a recent City Council
meeting, but I am not sure if the City Council made a specific
finding in this regard. You may wish to set this matter for
action by the City Council at its February 14, 1990, City Council
meeting as an agenda item. You may wish to give notice to former
Councilman George Metcalf of that agenda item and give him the
opportunity to be heard, to present evidence (including
witnesses) and to cross-examine any witnesses testifying on
Robert S. McClary, City Manager
February 2, 1990
Page 2
behalf of the City. Please note that I am not suggesting that
there is any due process hearing required in connection with this
decision, but City Council may wish to deliberate in such a
manner.
If you have any questions regarding this matter, please do not
hesitate to contact me.
Very tr~l~y yours,
FRE~ FALLACE, NASH & TORPY, P.A.
C~har e/s ian~Nksh
City Attorney
CIN/slm
' ' I~RESE, i~ALLACE, i~ASH & TOI~PY, P.A.
ATTORNEYS AT LAW
February 2, 1990
]~[AI~BOi~ Cz?¥ BLVD.
Su~?m 505
MELBOU~WE, FL0~DA 32g01
{407) 984-3300
(407) 951-3741
T~ON
Robert S. McC!ary, City Manager
City or,Sebastian
P. O. Box 780127
Sebastian, FL 32978
Re:
Dorothy Doucet f/k/a Dorothy McKinley
Our File No. 89-4826
Dear Robb:
Enclosed with this letter please find a copy of my correspondence
to James T. Long, Esquire, dated February 2, 1990, for your
reference.
Very truly yours,
FRE~'rALI_~CE, NASH
Charles Ian Nash
City Attorney
& TORPY, P.A.
CiN/slm
Encl.
i~i~ESE, i~ALL~C~, NAS~ & ~[~Ol~PY, P.A.
~??Ol~IVEYS AT LAW
J~,~s H. I~L~C~
February 2, 1990
Jame T/. ~ng, Esquire
JAMES T. LONG, P.A.
Po/~t Off~_ce Box 426
ro Beach, FL 32961-0426
/ Re: Request for Reimbursement of Legal Fees/
// Dorothy DoUcet f/k/a Dorothy McKinley
City of Sebastian
Our File No. 89-4826
930 S.
Sux?~ 505
M~L,,OV3m~,,. l~om,.a 32901
(407) 9~4-3300
F~ (40~) 051-8~&1
Dear Mr. Long:
On January 2, 1990, I forwarded a letter to you concerning the
captioned matter, a copy of which is enclosed herewith for your
reference. I have not, however, received any response from you
in accordance with my request. Therefore, I can only conclude
that your client has decided not to further pursue this matter.
Very truly yours,
FRESE, FALLACE, MASH &
lan Mash
City Attorney.
TORPY, P.A.
ciN/slm
c: Robert S. McClary, City Manager
i~RES~, i~ALLACE, NASH & Tok'~Y, P.A.
ATTOX%NEYS AT LAW
030 S. ~oa
Svx?~. 505
~[~L, wO~I~X~, ~OI~,IDA 3290!
(407) 984-3300
January 2, 1990
James T. Long, Esquire
JAMES T. LONG, P.A.
Post office Box 426
Vero Beach, FL 32961-0426
Re:
Request for Reimbursement of Legal Fees/
Dorothy Doucet f/k/a Dorothy McKinley
City of Sebastian
Our File No. 89-4826
Dear Mr. Long:
In response to your letter to Robert S. McClary, City Manager of
the City of Sebastian, dated December 12, 1989, please provide me
with the following documentation in support of the request of
your client, Dorothy Doucet, for reimbursement of attorney's fees
incurred to obtain the Preliminary Injunction in Case No. 84-277-
CA-17 before the Circuit Court of the Nineteenth Judicial circuit.·
in and for Indian 'River County, Florida, in the matter of Dorothy"
· . ·
1. Itemized statements for professional .services
indicating the date, amount of' time and
description of all legal services rendered to Ms.
Doucet;
Evidence that payment was made by Ms. Doucet of
the attorney's fees charged; and,
Documentation or statements indicating how the
matter was finally disposed of after the
Preliminary Injunction was granted in favor of
your client.
The aforementioned information and documentation is requested to
establish that your client is entitled to be reimbursed for'
reasonable attorney'.~ fe~ incurred by her in accordance wi~h
James T. Long, Esquire
January 2, 1990
Page 2
criteria set forth in Attorney General Opinion 89-69, issued by
the Honorable Robert A. Butterworth, Florida Attorney General, on
October 6, 1989.
Thank you for your cooperation in this matter.
Very truly yours,
=iE~/~FA~SH & TORPY,
Ian Nash
City Attorney
P.ao
CIN/slm
cc: Robert S. McClary, City Manager
_~.
-...~ - -,
' "" ,
' . '.
. ;.....~-?
City of Sebastian
POST OFFICE BOX 780127 n SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
SUBJECT: Street Plan
Approved For Submittal By:
city Manager
) Agenda No. ~0,0~
)
) Dept. Origin: Planning (PJ)
) Date Submitted: ~_~
)
) For agenda Of: Q3/07/90
)
) Exhibits:
)
) - Letter from Jim Davis dated
) 3/22/90
)
) - Letter from Sebastian Development
) Project dated 2/21/90
)
)
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
s~y S~TATEMENT
On February 2, 1990 city staff met with Jim Davis and Mike Dudeck
of Indian River County regarding the City's current and future
transportation thoroughfare needs in light of the county's impact
fee program, the Keith & Schnars Study and the city's
Comprehensive Plan.
The discussion that followed focused on the mechanisms available
to the City to place thoroughfares on the County's 20 Year
Capital Road Improvement Program thus making them eligible for
impact fee expenditures or credits. The process begins with a
formal request by the City to the County of specific streets
(with accompanying data such as current capacity, expansion
needs, right-of-way acquisition requirements, etc.) to be place
upon their 20 Year Program.
Because the City's current and future thoroughfare needs have
been documented in the Keith & Schnars report, as well as in both
the City and County Comprehensive Plan, the city is in the
enviable position to initiate the inclusion of specific streets
in the County's program concurrent with the initiation of the
City's own thoroughfare study.
RECOMMENDED ACTION
Discuss requests to Indian River County to include the following
streets in its 20 Year Capital Road Improvement Program, thus
making them eligible for impact expenditures or impact fee
credits.
- Barber Street At Stratton Avenue and
Stratton Avenue to U.S. #1 (called Highlands
Collector per County Plan)
- Fleming Street extension to Easy Street
- Gibson Street
- Laconia Street/Roseland Road (CR 505) ext
- Indian River Drive
- Main Street
- Easy Street
BOARD OF COUNTY COMMISSIONERS
1840 25th Street, Vero Beach, Florida 32960
Telephone: (407) 567.1~00
Fabruary 22, 1.990
Mr. Dave Fisher, City Engineer
City of Sebastian - City Hall
P. O. Box 780127
Sebastian, FL 32978
S, uncom Telephone: 224-1011
subject:
Update of County 20 year Road Improvement Program
and Other Transportation Issues
Dear Dave:
As a result of our February 8th meeting, I have contacted
the Community Development Department and at this time the County
Road Improvement Program is scheduled for updating in June 1990.
At that time, the city can propose some collector road projects
in the program. The Gibson Street project and other similar
projects could be likely candidates.
At this time, impact fees can be used for the Sebastian
llighlands Loop Connector Project, which we should probably define
the exact corridor with your help.
Please send us your list of projects in April if possible so
we can incorporate them in our 20 year program.
Sincerely,
James W. Davis, P.E.
Public Works Director
JWO/djb
cc: James Chandler, County Administrator
Bob Keating, AICP, Community Development Director
Mike Dudeck, P.E., County Traffic Engineer
Roger Cain, P.E., County Engineer
Cheri Bordeaux, Staff Planner
...................
john h. dean architect & associates, p. a., a. i. a.
February 21, 1990
Mr. Jim Davis, Public Works Director
Indian River County
County Administration Building
VeroBeach, Florida 32960
TRANSPORTATION IMPACT FEECREDITSFORGIBSON STREET RIGHT-OF-WAY
AOQUISiTIONAND I~oRO~ IN CITY OF SI~IASTIAN IN(/)NJUNCTION
WITH D~JI~OFI~~OFFICEPARK
Dear Jim,
I am writingonbehalf of my client, Sebastian Development Project,
Incorporated. They are about to begin development on the North County
Office Park behind City Hall in Sebastian. David Fisher of Sebastian
is the principal behind SUP, Inc. and the venture as a whole. He advises
me he hnm shown you the site and the proposed route for Gibson Street.
Project plans ~all for a campus-type office complex on 10 acres behind
Sebastian City ~all which will eventually entail four or five office
buildings for a total of over 100,000 SF of office sp~ce in a configuration
specially designed for government, administrative, professional, and
business services. One main access to the project will be through Cross
Street, a local street to the east of the City Hall complex. Another
main access route is proposed over a newly constructed part of Gibson
Street northward fromM a in Street along the west boundary of the City
Hall property. [See enclosed plan drawing.]
SDPandMr. Fisher are willing to acquire and dedicate the necessary
right-of-way over the subject portion of Gibson Street (approximately
600LF in length, 50 to 80 ft. wide) and to also design and construct
tl~ road there if SRP can receive transportation impact fee credits
for same.
We believe this propo~l has merit and is fair to all concerned. The
extension of Gibson Street over the same route is shown on both the
City's and the County's proposed major thoroughfare plans. Using SDP's
transportation impact fees to acquire the needed right-of-way and to
fund design and construction of the actual roadway at the present time
seems both fair and economical, especially since the value of such
right-of-way and improvemmnts are likely to increase dramaticallywithin
the near term.
"U, la%~' tl, e Lord build the bouse thtT labor itt vain that build it. *' PS. 127
2223 loth Avenue, Vero Beach, Florida 32960 · (407) 567-4907
I am therefore formally requesting your advice regarding what procedures
are now appropriate and necessary to g~in approval and to put this proposal
into effect.
We are about to apply for site plan approval and want to know whether
it will make economic sense to build the Gibson Street access at this
time.
We are available to discuss any aspects or details of the ~tter with
you and your staff and hope to gain the ~ounty's approval ~oon so we
can move ahead with the re.ad improvements.
P.S.
~ in r y,
/." Architect
We are copying Se City Cbuncil with this letter in a conc%k--~ent
request for the City's official endorsement of o~r proposal.
CROSS STREET
TOV;;;SHIP $1 S
GJBSON STREET EXTENSION
SUBJECT PROPERTY
ST.
MAIN
MAIN STREET REALIGNMENT
POST OFFICE
t--
CITY
City of Sebastian
POST OFFICE BOX 780127 o SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589.-5570
SUBJECT:
REVlZW~ ~AnT~AF~RICANCiUB~FRO~SAL
Approved For Submittal By:
City Manager ~/~
Agenda No. .06
Dept. Origin De~t of Cumuni~~o~m-nt
(~c) ~J~,~'
Date Submitted 2/28/90
For Agenda Of 3/7/90 ,,
Exhibits:
Memo from Bruce Cooper dated 2/20/90
Lease Agreement
EXPENDITURE
REQUIRED:
AMOUNT
BUDGETED:
APPROPRIATION
REQUIRED:
SUMMARY STATEMENT
The Italian American Club is requesting the City Council to approve a
lease agreement for a three (3) acre tract on Airport property located
on Roseland Road directly north of the Sebastian Golf Course. A detailed
summary of the Italian American Club is outlined in a memo dated 2/20/90
from Bruce Cooper.
RECOMMENDED ACTION
Discuss the proposed lease for the Italian American Club.
City of Sebastian
POST OFFICE BOX 780127 n SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589.-5330
FAX 407-589-5570
MEMORANDUM
TO:
FROM:
REFERENCE:
DATE:
Robert S. McClary
city Manager
Bruce Cooper
Director of Community
Developmen~/~'~
The Italian American Club Lease
February 20, 1990
The Italian American Club is requesting the City Council to
approve a lease agreement for their club to be located on a 3
acre tract on airport property located on Roseland Road and
directly North of the Sebastian Golf Course.
The Italian American Club currently has a lease with the City for
property at the corner of Albatross Terrace and Fairfield Lane.
The original lease was executed on December 3, 1986. In February
1988 the italian American Club requested 9n amendment to the
lease in order for the club to obtain financing. The lease was
amended by the City Council on March 9, 1989. During the
amendment process the nearby property owners approached the City
with concerns about a club that would be serving alcohol within
their neighborhood. With the neighborhood concerned over the
existing club's location and the new zoning regulations placing
limitations on the public service tracts, Mr. Charles Pullara of
the Italian American Club had several meetings with the City
Staff to find a new location.
The City Council, after amending the lease, amended the public
service zoning district regulations to prohibit nonprofit clubs
that serve alcohol which abut any RS-10, RS-15 and RS-20 zoning
district.
2
In response to those meetings regarding the new location on
Roseland Road, the City Manager outlined the potential issues in
a letter dated September 8, 1988 to Mr. Pullara and requesting
Mr. Pullara to have this item discussed at a City Council
Workshop meeting. On October 5, 1988 the City Council was polled
and unanimously agreed to authorize staff to cooperate with the
Italian American Club and to precede in accordance with the City
Manager's letter dated September 8,1988.
Out of the 29 elements of the proposed lease,
elements are outlined below:
several key
The basic rent in Section 3, page 2 requires the sum
of $400.00 per acre, a total of $1200.00 a year for
the lease agreement. Basic rent will be adjusted on
a 5 year anniversary date.
Section 12, Paragraph F on page 10,. ~equlres the
lease holder to obtain a rezonlng classification from
industrial to public service and subsequently, an
approval from the Planning and Zoning Commission for
a site plan. Granting this lease does not guarantee
any future approvals.
Section 29 requires that the tenant acknowledge that
this lease agreement is conditioned.upon the approval
from the Federal Aviation Administration. The
tenants shall also restrict the height of structures,
objects of natural growth and other obstructions to a
height so as to comply with Federal Aviation
Regulation Part 77.
I would recommend that the City Council discuss this lease on
the March 7,1990 workshop meeting.
gk
Italian
cc (w/o attach.)
C. Pullara
S. Lulich, Esq.
LEASE AGRa, EMENT
THIS TEASE AGREEMENT, made and entered into this
day of , 1989, by and between the CITY OF SEBASTIAN,
Florida, a Florida municipal corporation located in Indian River
County, Florida, party of the first party (hereinafter referred
to as the "Landlord"), and the ITALIAN AMERICAN CLUB, INC., a
Florida Not-For-Profit corporation, party of the second part
(hereinafter referred to as the "Tenant").
W I TNE S SETH:
WHEREAS, the Landlord is the owner of certain real property
located in the City of Sebastian, County of Indian River, State
of Florida; and
WHEREAS, the Landlord has agreed to lease such real property
to the Tenant subject to certain terms and conditions; and
WHEREAS, the Tenant desires to lease such real property from
the Landlord.
NOW, THEREFORE, in consideration of the premises, the
covenants, terms and conditions to be performed as set forth
hereinafter, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto have agreed and do agree as
follows:
1. Lease Premises: Subject to the terms and conditions
set forth in this Lease Agreement, the Landlord leases to the
Tenant and the Tenant rents from the Landlord the certain real
property located at ,
Sebastian, Indian River County, Florida, such property of the
Landlord being more particularly described as set forth on
Schedule "A" attached hereto and by this reference incorporated
herein. The aforementioned real property and any improvements
constructed thereon, including buildings and fixtures, shall be
hereinafter referred to as the "Leased Premises".
2. Term of Lease: This Lease shall be for a term of
fifteen (15) years (hereinafter called the "Lease Term")
beginning the day of , 1989, and ending on the
day of , 1999. The Tenant shall have the
option to renew the initial Lease Term for three (3) additional
ten (10) year terms by providing the Landlord with written notice
no less than sixty (60) days nor more than ninety (90) days prior
to the expiration of the then current Lease Term. Each of the
renewal periods shall also be referred to hereinafter as the
"Lease Term" and the duties and obligations of the Tenant during
any renewal Lease Term shall be the same as for the initial Lease
Term, except as specifically provided for in Paragraph 3 of this
Agreement. However, the termination of this Lease by either
party shall not operate to cure any default of any of the terms
and conditions of this Lease by a defaulting party.
3. Basic Rent.
(a) Initial Lease Term: The basic rent to be paid by
the Tenant to the Landlord for each one year term or a portion of
any one year term during each of the initial five years of the
initial fifteen (15) year Lease Term shall consist of the sum of
One Thousand Two Hundred and No/100 Dollars ($1,200.00), payable
at the commencement of each annual term. The basic rent to be
paid by the Tenant to the Landlord for each one year term or
portion thereof during each subsequent five (5) year lease period
(there ~hall be two five (5) year lease periods during the
balanceb f the initial fifteen (15) year Lease Term and there may
additional five (5) year lease periods if the Tenant exercises
any of its options to renew the initial Lease Term pursuant to
Paragraph 2 of this Lease Agreement) shall be increased at the
beginning of each subsequent five (5) year lease period in
accordance with the provisions of Subparagraph 3(b) of this Lease
Agreement.
(b) Adjustments to Basic Rent: The basic rent payable
pursuant to this Lease Agreement shall be adjusted on the five
(5) year anniversary date of this Lease Agreement and the
beginning of each five (5) year lease period thereafter, (that
is, in 1994, 1999, and if this Lease Agreement is renewed 2004,
2009, 2014, 2019, 2024 and 2029), and the amount of basic rent
payable for each annual term during each of the succeeding five
(5) year lease period shall be the greater of:
(i) the basic rent paid for the one (1) year term
just ended; or
(ii) an amount calculated by increasing the basic
rent by the increase in the consumer price index.
for all urban consumers: South Region, all items,
1977 = 100, issued by the Bureau of Labor
Statistics of the United States Department of
Labor (or any appropriate successor index if the
Bureau of Labor Statistics ceases to issue such
consumer price index), for each of the five
preceding annual periods utilizing the month and
year that the initial lease period commenced as
the base.
4. Additional Rent.
(a) Breach: The Tenant agrees to pay as rent in
addition to the basic rent provided for in Paragraph 3 of this
Lease Agreement, any and all sums which may become due by reason
or the failure of the Tenant to comply with all of the covenants,
terms and conditions of this Lease and any and all damages, costs
and expenses, including attorney's fees (both at trial and all
appellate levels) which the Landlord may suffer or incur by
reason of such default, and also any and all damages to the
Leased Premises caused by any act or neglect of the Tenant, or
its assignees or sublettees.
(b) Taxes, Assessments, etc.: The Tenant shall pay
during the Lease Term all ad valorem taxes levied or assessed
against the Leased Premises by the appropriate governmental
authorities, together with ad valorem taxes levied against any
stock of merchandize, furniture, furnishings, equipment and other
property located in or upon the Leased Premises. In addition,
the Tenant will duly promptly pay as additional rent to the
Landlord, as the same may become due and payable and before they
become delinquent, all taxes, rates, assessments and other
governmental charges, and charges of every kind and nature
whatsoever, non-recurring as well as recurring, special or
extraordinary as well as ordinary, foreseen or unforeseen, and
each and every installment thereof, which shall or may during the
Lease Term be levied, assessed or imposed, or become due and
payable or become liens upon, or arise in connection with the
use, occupancy or possession of, or any interest in, the Leased
Premises, or upon the rents, issues, income and profits therefrom
so as to prevent the same from becoming or being an enforceable
lien or claim against the property or the interest of the
Landlord ("Expenses"), and the Landlord shall apply such payment
by the Tenant to the payment of such Expenses. Such Expenses
shall include all real estate taxes, assessments, water and sewer
charges which may become liens upon the Leased Premises or any
part thereof. If the Landlord requests the Tenant to pay such
Expenses other than to the Landlord, the Tenant will furnish or
cause to be furnished to the Landlord not less than fifteen (15)
days prior to the date on which payment of same would become
delinquent, or subject to penalty or interest, receipts or other
evidence satisfactory to the Landlord of the payment of all such
Expenses.
If the Tenant deems excessive or illegal any such
Expenses, with the written consent of the Landlord, the Tenant
may make payment under protest. Any contest, whether before or
after payment, may be made in the name of the Landlord or the
Tenant or both, with the written consent of the Landlord. If
requested by the Tenant, the Landlord may, but shall not be
required, to participate in any such contest, but the Tenant
shall be entitled to any refund of any such Expenses, and any
penalty or interest thereon which may have been paid by the
Tenant, but all costs in connection with such contest shall be
borne by the Tenant.,
In case of failure of the Tenant to make any of the
payments to be made by the Tenant for such Expenses, Landlord
may, but shall not be required to, pay the amount of same, with
penalty and interest thereon, if any. The amount so paid by the
Landlord, with interest thereon from the date of payment thereof
by the Landlord, shall be due from and payable by the Tenant to
the Landlord immediately.
5. Insurance.
(a) Liability Insurance: The Tenant shall provide and
keep in force at its own expense during the term of this Lease,
public liability and property damage insurance coverage with
respect to the Leased Premises, including the foundation and
those portions of the said premises used for driveways, walkways,
and .parking areas, and all improvements made to the Leased
Premises! The insurance coverage to be provided by the Tenant
shall contain limits of not less than $300,000.00 for injury or
death of any one person and $1,000,000.00 for injury or death for
any one accident, together with the greater of $250,000.00 or the
fair market value of the building and other improvements
constructed on the Leased Premise for damage to property.
Furthermore, the limits for injury or death of any one person and
for injury or death for any one accident shall be increased at
least every five (5) years based on the proportionate percentage
that the basic rent is increased in accordance with the
provisions of Paragraph 3 hereof.
(b) Casualty, Fire and Extended Coverage Insurance:
The Tenant shall, at its expense, keep the Leased Premises and
all improvements now or hereafter erected upon the Leased
Premises, together with the chattels therein, insured for the
benefit of the Landlord against loss by fire and other casualties
and hazards usually covered by extended coverage insurance in an
amount not less than the replacement value of the Leased
Premises, including the foundation, exterior structure, roof and
those portions of the said premises used for driveways, walkways
and parking areas, during the Lease Term. It is expressly
understood and agreed that if for any reason it shall be
impossible to obtain Fire Insurance on the building and
improvements on the Leased Premises in an amount and in the form
and with fire insurance companies acceptable to the Landlord, the
Landlord may, if the Landlord elects, terminate this Lease and
the term thereof upon giving to the Tenant thirty (30) days
notice in writing of the Landlord's intention to do so and upon
giving of such notice, this Lease and the terms thereof shall
terminate and come to an end.
(c) Miscellaneous: Any policy or policies of
insurance required by the Lease shall be issued by one or more
insurance companies authorized to engage in business in the State
of Florida and the Tenant shall supply the Landlord with a
certificate of such insurance with evidence of the payment of the
premium thereon. All such policies shall name the Landlord as an
additional insured and shall contain provision for notice to the
Landlord not less than ten (10) days in advance of any
cancellation or material change of such policy or policies. In
case of failure of the Tenant to make premium payment when due,
the Landlord may pay the amount of any such premiums, which
amount with interest thereon from the date of payment by the
Landlord shall be due and payable by the Tenant to the Landlord
immediately. Copies of renewal policies for any insurance
required under this Paragraph 5 shall be deposited by the Tenant
with the Landlord at least ten (10) days prior to the expiration
of existing policies, and upon the failure of the Tenant to do
so, the Landlord may immediately purchase, for the account of the
Tenant, the necessary insurance from any reputable insurance
company without notice to the Tenant, and the Tenant shall
reimburs~ the Landlord for the cost thereof within ten (10) days
after demand for same by the Landlord. The Tenant shall have the
right to carry the insurance provided for in this Paragraph 5, or
any portions of such insurance under a blanket or comprehensive
all-risk policy.
6. Use of Leased .~remises. The Tenant agrees that the
facility to be operated by it on the Leased Premises will not be
operated in such a manner as to constitute a nuisance or a hazard
and that in connection with the operation of the facility, the
Tenant will observe and comply with all applicable laws,
ordinances, orders and regulations prescribed by lawful authority
having jurisdiction over the facility operated in the Leased
Premises. The Tenant agrees that the Leased Premises shall be
used by the Tenant solely for a clubhouse and recreational
facility for its members and guests. The Tenant agrees that the
Leased Premises shall not be used for any other purpose.
7. Utilit~9~. The Tenant shall be responsible for
electricity, lights, water, sewer, heat, janitor service or any
other utility or service consumed in connection with the
occupancy of the Leased Premises by the Tenant.
8. Affirmative Covenants of Tenant. T h e
covenants and agrees that it will without demand:
Tenant
(a) Waste: Conduct its use of the Leased Premises in
such a manner as not to be a nuisance, and shall not allow any
noxious odors or vapors to be emitted from the Leased Premises.
Use of explosives, flammable and/or corrosive agents and other
like materials is not approved unless authorized by the Landlord
in advance. Any cleaning agent apparatus will be installed and
vented to the outside at the Tenant's cost and only if
installation is approved in writing in advance by the Landlord.
The Tenant shall not engage in activities that waste the Leased
Premises.
(b) Maintenance and Repair: Keep the Leased Premises
5
and all improvements erected thereon in good condition and
repair, including, but not by way of limitation, the exterior and
interior structures, the roof, all plumbing, heating, electrical
and air conditioning systems and any loading facilities including
loading doors and dock bumpers. The Tenant shall permit the
Landlord's duly authorized agents to enter upon the Leased
Premises and the buildings and improvements thereon erected at
any reasonable time, and from time to time, for the purpose of
inspecting and appraising the same. The Tenant shall comply with
all orders, ~egulations, rules and requirements of every kind and
nature relating to the premises, now or hereafter in effect, of
the federal, State, municipal or other governmental authorities
having power to enact, adopt, impose or require the same, whether
they be usual or unusual, ordinary or extraordinary, and whether
they or any of them relate to structural changes or requirements
of whatever nature, or to changes or requirements incident
thereto, or as the result of any use or occupation thereof or
otherwise, and the Tenant shall pay all costs and expenses
incidental to such compliance, and shall indemnify and save
harmless the Landlord from all expense, and damages by reason of
any notices, orders, violations or penalties filed against or
imposed upon the Leased Premises or against the Landlord as owner
thereof, because of the failure of the Tenant to comply with this
covenant. The Tenant further agrees to keep the Leased Premises
clean and free from all ashes, dirt and other refuse matter;
replace all glass windows, doors, etc., which are broken; and
keep all waste and drain pipes open.
In the event of the failure of the Tenant promptly to
perform the covenants of this Paragraph 8(b), the Landlord may go
upon the Leased Premises and perform such covenants, the cost
thereof, at the sole option of the Landlord, to be charged to the
Tenant as additional and delinquent rent.
(c) Improvements: The Tenant shall not cause any
structural improvements to be made to the Leased Premises,
including any changes to the interior walls, floors or ceilings,
the exterior of the building, the parking lot, walkways or
driveways of the Leased Premises, the doors or windows, without
the advance written consent of the Landlord. Provided, however,
that this provision shall not be deemed to prevent the Tenant
from making repairs to any part of the Leased Premises or
performing or arranging for the performance of maintenance
service to any part of the Leased Premises. Unless otherwise
agreed in writing between the parties hereto, all costs of any
improvements shall be borne by the Tenant. All improvements made
on the Lease Premises, including the construction of buildings
and installation of fixtures, shall become the property of the
Landlord upon their construction or installation, but shall be
deemed part of the Leased Premises for purposes of this Lease
Agreement.
6
(d) Signs: The Tenant shall have the right to erect
and maintain such sign or signs on the Leased Premises as may be
permitted by applicable law.
(e) Compliance: Comply with any requirements of any
of the constituted public authorities, and with the terms of any
State or Federal Statute or local ordinance or regulation
applicable to the Tenant or its use of the Leased Premises, and
save the Landlord harmless from penalties, fines, costs or
damages resulting from failure so to do.
(f) Fire:
Use every reasonable precaution against
fire.
~ (g) Rules and Regulations: Comply with reasonable
rules and regulations of the Landlord promulgated as hereinafter
provided.
(h) Surrender of Leased Premises: Upon the expiration
or other termination of this Lease, for any reason whatsoever,
surrender to the Landlord the Leased Premises together with the
buildings and improvements thereon erected or standing thereon
and the building equipment then upon the Leased Premises,
together with all alterations and replacements thereon, in good
order, condition and repair, except for reasonable wear and use
thereof, and except also, such damage by fire or other cause for
which the Tenant is obligated to maintain insurance under the
provisions of this Lease if the proceeds of such insurance have
been received by the Landlord, and except further, such damage by
any taking by condemnation or exercise of the right of eminent
domain if the Landlord has received the proceeds of such
condemnation or exercise of eminent domain and applied the same
under the provisions of this Lease. The Tenant further agrees to
promptly deliver to the Landlord at its office all keys for the
Leased Premises.
(i) Notice of Casualty. Give to the Landlord prompt
written notice of any accident, fire, or damage occurring on or
to the Leased Premises.
(j) Vacation. Subject to the provisions of Paragraph
28, if the Tenant shall vacate or decide at any time during the
Lease Term to vacate the Leased Premises prior to the expiration
of this Lease Term, or any renewal of the Lease, or if the Tenant
shall cease for any period to be a not-for-profit corporation, or
to utilize the Leased Premises as a clubhouse, this Lease shall
immediately terminate with out the necessity of any legal
proceeding or other action on the part of the Landlord, and all
right, title and interest in the leasehold created by this Lease
shall revert and revest in the Landlord immediately and
automatically.
7
9. Negative Covenants of Tenant. The Tenant covenants
and agrees that it will do none of the following things without
the consent in writing of the Landlord first had and obtained:
(a) Use. Occupy the Leased Premises in any other
manner or for any other purpose than as above set forth.
(b) Assignment, etc. Assign this Lease or hypothecate
or mortgage the same or sublet the Leased Premises or any part
thereof, except as provided in Paragraph 28. Any assignment,
transfer, hypothecation, mortgaging or subletting without the
written consent of the Landlord shall be void ab initio, except
as provided in Paragraph 28.
(c) Alterations and Improvements. Make any structural
alterations, improvements, or additions to the Leased Premises.
All structural alterations, additions and improvements (except
trade fixtures, furniture and equipment other than building
equipment) which may be made or installed by the Tenant upon the
Leased Premises shall upon the making or installation thereof be
and become a part of the Leased Premises and shall remain upon
and be surrendered with the Leased Premises as a part thereof at
the termination of this Lease, unless the Landlord shall, prior
to the termination of this Lease, have given written notice to
the Tenant to remove the same in which event the Tenant will
remove such alterations, improvements, and additions and restore
the Leased Premises to the same good order and condition in which
they now are. Should the Tenant fail so to do, collecting, at
the Landlord's option, the cost and expense thereof from the
Tenant as additional rent.
(d) Machinery. Use or operate any machinery that, in
the Landlord's opinion, is harmful to the Leased Premises or the
buildings of which the Leased Premises is a part.
(e) Weights.
Leased Premises beyond
structure.
Place any weights in any portion of the
the safe carrying capacity of the
(f) Vacation. Vacate or desert the Leased Premises
during the Lease Term, or permit the same to be empty and
unoccupied without the permission of the Landlord.
(g) Recordation. Record this Lease. If the Tenant
violates this covenant, the Tenant hereby irrevocably authorizes,
empowers and designates the Landlord as its lawful attorney for
the purpose of having said Lease marked satisfied of record.
(h) Encumbrances/Liens. Allow any mortgage, lien or
other encumbrance or security interest to be created against or
attached to the Leased Premises or any building or fixture
located thereon, except as provided for in Paragraph 13(b).
10. ~andlQ.rd's Rights. The Tenant covenants and agrees
that the Landlord shall have the right to do the following things
and matters in and about the Leased Premises:
(a) Inspection. At all reasonable times by its duly
authorized agent to go upon and inspect the Leased Premises and
every part thereof, and/or at its option to make repairs,
alterations and additions to the Leased Premises.
11. Responsibility of Tenant. The Landlord shall not in
any event be responsible, and the Tenant hereby specifically
assumes responsibility for any personal or bodily injury or death
of any ,persons (including employees of the Tenant and the
Landlord) and damage, destruction, or loss of use of any
property, including the Leased Premises (except as specifically
provided otherwise herein) occasioned by any event happening on
or about the Leased Premises, hallways, entrance ways, stairs,
elevators, hoists, streets, driveways, parking and loading areas,
alleys, lawns, sidewalks and curbs adjacent thereto including
those resulting from any work in connection with any alterations,
changes, new construction or demolition, except if same results
solely from the negligence of the Landlord, its agents, servants,
or employees. The Tenant shall defend, indemnify and hold
harmless the Landlord from and against any and all claims,
demands, suits, damages, liability and costs (including counsel
fees and expenses) arising out of or in any manner connected with
any act or omission, negligent or otherwise of the Tenant, third
persons, or any of their agents, servants or employees which
arise out of or are in any way connected with the erection,
maintenance, use, operation, existence or occupation of the
Leased Premises, hallways, entrance ways, stairs, elevators,
hoists, streets, driveways, parking and loading areas, alleys,
lawns, sidewalks and curbs adjacent thereto unless due solely to
the negligence of the Landlord, its agents, servants or
employees.
The Landlord shall promptly notify the Tenant of any claim
asserted against the Landlord on account of any such injury or
claimed injury to persons or property and shall promptly deliver
to the Tenant the original or a true copy of any summons or other
process, pleading or notice issued in any suit or other
proceeding to assert or enforce any such claim. The Tenant shall
have the right to defend any such suit with attorneys of its own
selection and the Landlord shall have the right, if it sees fit,
to participate in such defense. It is further covenanted and
agreed by the parties hereto that in no case shall the Landlord
be liable under any expressed or implied covenant of this Lease
for any damages whatsoever to the Tenant accruing after any act
or breach of covenant for which damages may be sought to be
recovered against the Landlord.
9
The Tenant shall defend, indemnify and hold harmless the
Landlord from claims, demands, suits, liability for damages for
personal or bodily injury or death of any persons or damage or
destruction of any property (including loss of use thereof)
caused by or in any manner arising out of any breach, violation
or nonperformance by the Tenant of any covenant, term or
provision of this Lease.
12. Damaqe to ~eased Premises.
(a) In the event that the Leased Premises is totally
destroyed or so damaged by fire or other casualty not occurring
through fault or negligence of the Tenant or those employed or
acting for it, that, in the Landlord's judgment, the same cannot
be repaSred or restored within a reasonable time, this Lease
shall absolutely cease and determine, but no rent shall be
refunded.
(b) If the damage caused as above be only partial and
such that the Leased Premises, in the Landlord's judgment, can be
restored within a reasonable time, the Landlord may, at its
option, restore the same (excluding fixtures and improvements
owned by the Tenant) with reasonable promptness, reserving the
right to enter upon the Leased Premises for that purpose. The
Landlord also reserves the right to enter upon the Leased
Premises whenever necessary to repair damage caused by fire or
other casualty to the Leased Premises, even though the effect of
such entry would be to render the Leased Premises or a part
thereof untenantable. The rent shall not be apportioned and
suspended during the time the Landlord is in possession.
(c) The Landlord shall make such election to repair
the Leased Premises or terminate this Lease by giving notice
thereof to the Tenant at the Leased Premises within thirty (30)
days from the day the Landlord received notice that the Leased
Premises had been destroyed or damaged by fire or other casualty.
(d) The Landlord shall not be liable for any damage,
compensation or claim for any reason arising from the necessity
of repairing any portion of the building, the interruption in the
use of the Leased Premises, or the termination of this Lease by
reason of the destruction of the Leased Premises.
(e) The Landlord has let the Leased Premises in their
present condition and without any representations on the part of
the Landlord, its officers, employees, servants and/or agents.
(f) Notwithstanding anything contained in this Lease
to the contrary, it is understood and agreed that the Tenant's
proposed use of the Leased Premises as set forth in Paragraph 1
will necessitate the Tenant's obtaining the necessary rezoning
and Comprehensive Land Use Plan amendment from the present
10
industrial classification to Public Service through the Sebastian
city Planning and Zoning Commission and the Sebastian City
Council, and a subsequent conditional use/site plan approval from
the Sebastian City Planning and Zoning Commission. No guarantee
is hereby made by the Landlord that such approvals will be
forthcoming. In the event that it is determined at any time
during the Lease Term of this Lease and any renewal period that
the Tenant's proposed use of the Leased Premises as set forth in
Paragraph 6 is not permissible under the local zoning ordinance
or regulations, then the Tenant shall have the privilege of
terminating this Lease immediately, provided that notice is given
to the Landlord in writing and such privilege shall be the
Tenant's sole remedy against the Landlord in such event.
13.~ Miscellaneous Aqre~ments and...Conditions:
(a) Non-Waiver by Landlord. The failure of the
Landlord to insist upon strict performance of any of the
covenants or conditions to this Lease, or to exercise any option
herein conferred in any one or more instances, shall not be
construed as a waiver or relinquishment for the future of any
such covenants or conditions of this Lease or option, but the
same shall be and remain in full force and effect.
(b) Security Interest. The Tenant hereby grants to
the Landlord a security interest under the Uniform Commercial
Code in all of the Tenant's inventory, equipment, furniture,
fixtures, goods and personal property in, on or about the Leased
Premises. Said security interest shall secure unto the Landlord
the payment of all rent (and charges collectible or reserved as
rent) hereunder which shall become due under the provisions of
this Lease. The Tenant hereby agrees to execute upon request of
the Landlord, such financing statements as may be required under
the provisions of the Florida Uniform Commercial Code to perfect
a security interest in the Tenant's inventory, equipment,
furniture, fixtures, goods and property. Provided, however, that
the Landlord agrees to subordinate its landlord's lien in the
furniture, equipment, personal property, inventory, goods and
fixtures which are not affixed to the floors, walls, sidewalks,
driveways, ceilings or exterior structure, to a financial
institution that lends monies to the Tenant to construct any
improvements to the Leased Premises, including the initial
building to be constructed on the Leased Premises.
(c) Accord and Satisfaction. No payment by the Tenant
or receipt by the Landlord of a lesser amount than the rents
herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement of
statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and the
Landlord may accept such check or payment without prejudice to
the Landlord's right to recover the balance of such rent or
11
pursue any other remedy herein.
14. Remedies Qf Lan~lQrd. If the Tenant:
(a) Does not pay in full when due any and all of the
rent and/or any other charge or payment herein reserved,
included, or agreed to be treated or collected as rent and/or any
other charge, expense, or cost herein agreed to be paid to the
Landlord; or
(b) Violates or fails to perform or otherwise breaks
any covenant or agreement herein contained; or
(c) Vacates the Leased Premises or removes or attempts
to remo, e or manifests an intention to remove any goods or
property therefrom otherwise than in the ordinary and usual
course of business without having first paid and satisfied the
Landlord in full for all rent and other charges then due or that
may thereafter become due until the expiration of the then
current term; or
(d) Any assignee or sublettee of the Tenant files or
has filed against it a petition under Title 11, United States
Code, Bankruptcy, as now or hereafter amended or supplemented,
whether under Chapter 7, 11, or 13 of the aforesaid Bankruptcy
Code; or if there is the commencement of any action or proceeding
under state or federal law for the dissolution or liquidation of
the assignee or sublettee of the Tenant in connection with
bankruptcy or other insolvency, whether instituted by or against
the assignee or sublettee of the Tenant or for the appointment of
a receiver or trustee of all or substantially all of the property
of the assignee or sublettee of the Tenant; or if there is the
taking of possession of the property of the assignee or sublettee
of the Tenant by any governmental officer or agency pursuant to
statutory authority for the dissolution, rehabilitation,
reorganization or liquidation of the assignee or sublettee of the
Tenant; or if there is the making by the assignee or sublettee of
the Tenant of an assignment for the benefit of creditors;
Then and in any of said events, there shall be deemed
to be a breach of this Lease, and thereupon the Landlord shall
have the following rights:
(1) To enter the Leased Premises and without further
demand or notice proceed to distress and sale of the
goods, chattels and personal property there found, to
levy the Rent and the Tenant shall pay all costs and
officers' commissions, including watchmen's wages and
sums chargeable to the Landlord, and in such case all
costs, officer's commissions and other charges shall
immediately attach and become part of the claim of the
Landlord for Rent, and any tender of rent without said
12
costs, commissions and charges made, after the issuance
of a warrant of distress, shall not be sufficient to
satisfy the claim of the Landlord.
(2) To re-enter the Leased Premises and remove all
persons and all or any property therefrom, either by
summary dispossess proceedings or by any suitable
action or proceeding at law, or by force or otherwise
without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy the Leased
Premises, together with all alterations, fixtures,
signs and other installations of the Tenant. Upon
recovering possession of the Leased Premises by reason
of or based upon or arising out of a default on the
part of the Tenant this Lease shall terminate.
(3) To terminate this Lease and the term hereby
created without any right on the part of the Tenant to
waive the forfeiture by payment of any sum due or by
other performance of any condition, term or covenant
broken. Whereupon the Landlord shall be entitled to
recover, any and all sums due for rent, including
additions to rents and damages for violation of the
Tenant's obligations hereunder in existence at the time
of such termination.
(4) Proceed as a secured party under the provisions of
the Uniform Commercial Code against the goods in which
the Landlord has been granted a security interest
pursuant to Paragraph 13(b) hereof.
15. RiGht of Injunctive Relief. In the event of a
breach or threatened breach by the Tenant of any of the covenants
or provisions hereof, the Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or
in equity as if re-entry, summary proceedings and other remedies
were not herein provided for.
16. Riqhts Not Exclusi¥9. No right or remedy herein
conferred upon or reserved to the Landlord is intended to be
exclusive of any other right or remedy herein or by law provided
but each shall be cumulative and in addition to every other right
or remedy given herein or now or hereafter existing at law or in
equity or by statute.
17. Riqht of Assiqnee of Landlord. The right to pursue
the remedies herein provided against the Tenant and to enforce
all of the other provisions of this Lease may, at the option of
any assignee of this Lease, be exercised by any assignee of the
Landlord's right, title and interest in this Lease in its own
name, any statute, rule of court, custom, or practice to the
contrary notwithstanding.
13
18. Remedies Cumulative. A1 1 of the remedies
hereinbefore given to the Landlord and all rights and remedies
given to it by law and equity shall be cumulative and concurrent.
No termination of this Lease or the taking or recovering the
Leased Premises shall deprive the Landlord of any of its remedies
or actions against the Tenant for rent or sums due as if there
has been no termination; nor shall the bringing of any action for
rent or breach of covenant, or the resort to any other remedy
herein provided for the recovery of rent be construed as a waiver
of the right to obtain possession of the premises.
19. 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 land, the
building(s) and/or improvements on the Leased Premises shall
belong to the Landlord. Provided, however, that the Tenant shall
be entitled to receive the compensation or proceeds awarded for
the taking of the leasehold interest resulting from the
institution of eminent domain proceedings.
Nothing herein shall prevent the Landlord from seeking any
and all damages sustained from the condemning authority by reason
of the exercise of the power of eminent domain.
In the event the condemnation or taking is to such an extent
that it is impracticable for the Tenant to continue its
operations on the Leased Premises the Lease shall immediately
terminate.
20. Identity of Interest. 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 a
Landlord and a Tenant.
21. 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:
Landlord:
City of Sebastian
Attention: City Manager
1225 Main Street-A
P.O. Box 780127
Sebastian, Florida 32978
14
~enant:
Italian American Club, Inc.
Attention: President
Sebastian, Florida 32958
provided, however, that either party may designate a different
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 the address listed above.
22. 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 running with the land that (i) no person on the
grounds ~f religion, gender, age, race, color, 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; (ii) that in the construction of any
improvements on, over or under the Leased Premises and the
furnishing of services thereon, no person on the grounds of
religion, gender, age, race, color or national origin shall be
excluded from participation in, denied the benefits of, or
otherwise be subjected to discrimination.
23. Warranties. The Landlord warrants that the Landlord
has full power to execute this Lease and that it will warrant and
defend the leasehold interest created hereby against all parties
whomsoever and that the Tenant, upon observing and complying with
the terms, covenants and conditions of this Lease shall enjoy the
use and occupancy of the Leased Premises during the Lease Term.
24. ~eadings No Part of Lease. Any headings preceding
the text of the several paragraphs and subparagraphs hereof are
inserted solely for convenience of reference and shall not
constitute a part of this Lease nor shall they affect its
meaning, construction or effect.
25. Severabilit¥. If a provision of this Lease
Agreement is held invalid, it is hereby agreed that all valid
provisions that are severable from the invalid provision remain
in effect. If a provision in this Lease Agreement is held
invalid in one or more of its applications, the provision remains
in effect in all applications.
26. Lease Contains Ail Aqreements. It is expressly
understood and agreed by and between the parties hereto that this
Lease, including the Exhibit, sets forth all the promises,
agreements, and conditions or understandings between the Landlord
and the Tenant relative to the Leased Premises, and that there
are no promises, agreements, conditions or understandings, either
oral or written, between them other than are herein set forth.
It is further understood and agreed that, except as herein
15
otherwise provided, no subsequent alteration, amendment, change
or addition to this Lease shall be binding upon the Landlord or
the Tenant unless reduced to writing and signed by them.
27. He~ and Assignees. All rights and liabilities
herein given to, or imposed upon, the respective parties hereto
shall extend to and bind the several and respective heirs,
executors, administrators, successors and assigns of said
parties; and if there shall be more than one Tenant, they shall
all be bound jointly and severally by the terms, covenants and
agreements herein, and the word "Tenant" shall be deemed and
taken to mean each and every person or party mentioned as a
Tenant herein, be the same one or more; and if there shall be
more than one Tenant, any notice required or permitted by the
terms of~ this Lease may be given by or to any one thereof, and
shall have the same force and effect as if given by or to all
thereof. The words "his" and "him" or "its" wherever stated
herein, shall be deemed to refer to the "Landlord" or the
"Tenant" whether such Landlord or Tenant be singular or plural
and irrespective of gender. No rights, however, shall inure to
the benefit of any assignee of the Tenant unless the assignment
to such assignee has been approved by the Landlord in writing as
aforesaid.
28. Creation of Security Interests. Notwithstanding any
prohibition provided hereinbefore, the Tenant shall be empowered
to encumber by the appropriate security instrument its leasehold
interest in the Leased Premises pursuant to this Lease in favor
of a financial institution which lends monies to the Tenant to
construct any improvements to the Leased Premises. The Tenant
shall provide the Landlord with written notice of the creation of
any such security interests within three (3) days of the
existence of a security interest. No security interest or
evidence of encumbrance shall be recorded in the Public Records
of Indian River County, Florida, which contains the legal
description of the Leased Premises. The consent of the Landlord
shall not be required by the Tenant to proceed with the creation
of a security interest encumbering its leasehold interest in the
Leased Premises pursuant to this provision or pursuant to
Paragraph 13(b).
Any financial institution who lends monies to the Tenant to
construct any improvements to the Leased Premises and acquires a
security interest in the leasehold interest held by the Tenant
pursuant to this Lease shall have the right at any time during
the term of this Lease: (i) to do any act or thing required of
the Tenant pursuant to this Lease; (ii) to realize on the
security afforded by the Tenant's leasehold interest in the
Leased Premises by exercising foreclosure proceedings or power of
sale or other remedy afforded in law or in equity or by the
security documents (hereinafter sometimes collectively referred
to as "foreclosure sale") and to transfer, convey or assign the
16
title of the Tenant in the leasehold interest to any purchaser at
any such foreclosure sale, and to acquire and succeed to the
interest of the Tenant hereunder by virtue of any such
foreclosure sale; and, (iii) to cure any defaults of the Tenant
under this Lease. Provided, however that any purchaser or the
financial institution lending monies to the Tenant shall be
subject to the terms and conditions of this Lease, including the
duties and obligations of the Tenant, upon succeeding to the
leasehold interest of the Tenant.
29. FAA Approval and.~gulation. The Tenant acknowledges
that this Lease Agreement is conditioned upon the approval or a
letter of no objection issued by the Federal Aviation
Administration. Furthermore, the Tenant shall restrict the
height ~f structures, objects of natural growth and other
obstructions to such a height so as to comply with Federal
Aviation Regulation Part 77. The Tenant shall not use the Leased
Premises for any use which would interfere with or adversely
affect the operation or maintenance of the Sebastian Municipal
Airport, or otherwise constitute an airport hazard. The Tenant
shall not on the grounds of race, color or national origin
discriminate nor permit discrimination against any person or
group of persons in any manner prohibited by Part 21 of the
Regulations of the Secretary of Transportation.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals the day and year first above written.
CITY OF SEBASTIAN
By.
Witness Mayor
Witness
Attest:
city Clerk
Approved as to form
and content:
CHARLES IAN NASH,
city Attorney
17
Witness
w itne~~A~-~
ITALIAN AMERICAN CLUB, INC.
Pr~ent
~e~cretary ~
(corporate seal)
18
City of Sebastian
POST OFFICE BOX 780127 ri SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
March 1, 1990
Nobert S. McClary, City Manager
Carol Carswell, Finance Director
Street Improv~nent - County Option
Gas Tax
The amount budgeted for Street Improv~e~nts through the original
Budget and Budget ~~_nt #1 is $517,480. David Fisher's
plans for Street Improvements, cc~pleted and anticipated, amount
to $459,615. This leaves $57,865 available for the Main Street/
Gibson Street realignment.
City of Sebastian
POST OFFICE BOX 780127 n SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
FAX 407-589-5570
MEMORANDUM
DATE:
TO:
THROUGH:
FROM:
RE:
March 5, 1990
Mayor Richard B. Votapka
City Council Members
Robb S. McClary
City Manager
Kathryn M. O'Halloran
City Clerk
Agenda Modification - 3/7/90 Special Meeting - Add
"Public Input on Agenda Items"
"Public Input on Agenda Items" was inadvertently omitted during
preparation of the March 7, 1990 Special Meeting agenda although
it does appear on the workshop agenda.
Council, if it so chooses, will need to place this item on the
agenda by motion during "Agenda Modifications - (Additions and/or
Deletions)". This item historically appears Just prior to
"Consent Agenda"
Two separate public input stgnup sheets have been prepared
and will be placed on the table in the Council Chambers on
Wednesday in the event Council places this item on the agenda.
We apologize for the error.
sam