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HomeMy WebLinkAbout2000 Fishe Flying Corp formally SAS0 0 0 AIRPORT LEASE THIS LEASE, made and entered into this day of April, 2000, 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 B S Investments d/b /a Sebastian Aero Services (hereinafter referred to as the "Tenant The Landlord and the Tenant are sometimes collectively referred to herein as the "parties 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 certain property is also available for use for those activities consistent with or in support of aviation activity; and WHEREAS, the Landlord has agreed to lease such property to the Tenant subject to certain terms and conditions consistent with or in support of the current aviation use of such property; 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: 1. RECITALS. The above stated recitals are hereby incorporated by reference in this Lease Agreement. 2. LEASED PREMISES. Subject to the terms and conditions set forth hereinafter, the Landlord leases hereby to the Tenant and the Tenant rents hereby from the Landlord that portion of the real property of the Landlord which is described more particularly on Schedule "A" annexed hereto and made a part hereof by reference (hereafter referred to as the "leased premises along with improvements thereupon including a fuel farm. In the event that any portion of the Leased Premises is needed for actual improvements to the Airport, any portion thereof rendered unusable to Tenant shall be released from this lease and the rental payments adjusted accordingly. 3. TERM OF LEASE. The term of this Lease shall be for a period of thirty (30) years commencing June 17, 2000, and will end on the thirtieth (30th) anniversary of such date. 4. RENT. The parties agree that the rent, payable by the Tenant, during the term of this Lease shall be as follows: (a) For the leased premises the yearly rent shall be four thousand two hundred twenty-one dollars ($4221). The parties recognize that the purchasing power of the United States dollar is evidenced by the United States Department of Labor, Bureau of Labor Statistics, Index of Consumer Prices. In November of 2001, the Landlord will compare the most recent price index with the base price index for November 1999, and the yearly rent amount shall be increased based upon changes in the price index, if appropriate, on December 17, 2001. Another such adjustment shall be undertaken for December 17, 2006, and every year thereafter until the twentienth anniversary date of the lease. No later than January 15, 2020, Landlord shall commission a certified real estate appraiser to place a valuation on the Leased Premises, including all improvements thereupon except those constructed by Tenant during the term of this lease, and establish a rental value for the same. Within sixty days after delivery to Tenant of the appraisal, Tenant may either accept the rent therein or give notice of its intent to terminate the lease. Either the rent adjustment or the termination shall take efferct on June 17, 2020. If the rent is adjusted accordingly, on June 17th of each remaining year under the Lease there shall be annual adjustments to reflect changes in the consumer price index in the manner set forth above. In no event, however, shall the rent decrease below the sum of $4221. (b) Time of the essence. The Tenant agrees promptly to perform, comply with and abide by this Lease, and agrees that timely payment is of the very nature and essence hereof. In the event that any rental payment due hereunder shall not be paid within five 2 days of when due, Tenant shall pay Landlord a late payment fee of 5% of the amount of such late Rental Payment. This charge shall be considered additional rent and not interest. (c) Default in rent. If any of said sums of money herein required to be paid by the Tenant to the Landlord shall remain unpaid ten (10) days after written demand by Landlord, then the Landlord shall have the options and privileges as follows: (1) Total acceleration. To accelerate the maturity of the rent installments for the balance of the term. This option shall be exercised by an instrument in writing signed by the Landlord, or its agents, and transmitted to the Tenant notifying him of the intention of the Landlord to declare all unmatured rent installments presently due and payable. (2) Partial acceleration. In lieu of the option in Sub paragraph (1) above, the Landlord may, in like manner, declare as presently due and payable the unpaid rent installments for such a period of years as may be fixed in the Landlord's said notice to the Tenant. The exercise of this option shall not be construed as a splitting of a cause of action, nor shall it alter or affect the obligations of the Tenant to pay rent under the terms of this Lease for the period unaffected by said notice. (3) Other remedies. In addition to the option herein granted above, the Landlord may exercise any and all other options available to it hereunder or under law, which options may be exercised concurrently or separately with the exercise of the above options. (d) 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. 3 (e) In addition to the rental amount, the Tenant shall pay Florida sales tax, if applicable. (f) The above rental for the leased premises shall be payable in advance, in quarterly installments, commencing from the date of commencement of this Lease, as described in Section 3 (above) and on a like day of every quarter thereafter during the term of this Lease. 5. DISPENSING FUEL As additional rent, Tenant shall pay to the Landlord two cents (20) for every gallon of aviation fuel sold by Tenant. Said payments shall be made at the time of paying rent, shall be itemized and shall be accompanied by a copy of the fuel consumption reports, or such other relevant documents requested by Landlord, for the subject time period. Landlord shall have a right to audit Tenant's financial records relating to fuel sales upon seventy -two hours written notice. 6. IMPROVEMENTS TO THE PREMISES. The Landlord acknowledges that the Tenant is leasing the premises for the primary purposes of aircraft sales, repair and maintenance, flight training and sale of fuel, and that in order to utilize the leased premises for this purpose, it will 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 7 hereof, and shall have the right to construct upon the leased premises any additional buildings or other structures, provided any such buildings or structures do not in any way curtail the use of the airport facilities in their usual operations and provided further that any such buildings or structures are approved, in writing, by the Sebastian City Council and the FAA prior to commencement of any construction. The Tenant covenants and agrees that all such construction shall be in accordance with the local and state codes, regulations and requirements as well as in accordance with all requirements of the Federal Aviation Administration "FAA (b) The Tenant shall indemnify, defend and hold the Landlord harmless from any claims, losses, damages or liens arising out of the construction of any such buildings or structures. 4 (c) All buildings, structures 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, for any reason, be and become the property of the Landlord and shall be left in good condition and repair, ordinary wear and damage by the elements excepted. In order to confirm sole ownership in the Landlord, the Tenant shall, at Landlord's request, execute any and all documents of transfer which Landlord deems necessary to perfect title to said improvements. The Tenant agrees that all improvements shall, upon the termination of this Lease for any reason, 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 realty, becomes a part and parcel of it. Non fixture personalty owned by the Tenant at the expiration of the term or earlier termination of this Lease, for any reason, shall continue to be owned by Tenant and, at its option, may remove all such personalty, 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 personalty shall be repaired by Tenant forthwith at its expense. 7. 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. The Tenant agrees that the leased premises shall be used by the Tenant primarily for the purposes of aircraft sales, repair and maintenance, flight training and sale of fuel, but Lessee shall also have the nonexclusive right to provide charter and rental flights of aircraft, and the leasing of hangar space and/or tie down service. Any use of the leased premises other than those specifically stated above are expressly prohibited. 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 5 for any reason. All aeronautical businesses and activities must be certified and licensed by the FAA in the appropriate categories of their specific operation. 8. 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 expense, to maintain all of the improvements, including, but not limited to, buildings (and all parts thereof) and the parking and service areas located on the leased premises, in a good state of maintenance and repair and to keep the leased premises in a clean, neat 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 be 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. 9. UTILITIES. The Tenant shall be responsible for all costs of electricity, lights, water, sewer, heat, janitor service or any other utility or service consumed in connection with the leased premises. The Landlord shall have no liability for the failure to procure, or the interruption of, any such services or utilities. 10. SIGNS. The Tenant shall have the right to erect and maintain such sign or signs on the premises as may be permitted by applicable law; provided, however, the Landlord must approve any such signs in writing prior to erection. The Landlord may 6 impose any reasonable restrictions as, in the sole discretion of the Landlord, are deemed necessary. I I. TAXES. The Tenant shall pay during the Lease term all ad valorem taxes, assessments or any other governmental charge levied or assessed against the leased premises (including the Tenant's leasehold by the appropriate governmental authorities), together with all ad valorem taxes assessment or other governmental charge levied against any stock of merchandise, furniture, furnishings, equipment and other property located in, or upon the leased premises. All shall be paid by the Tenant on a timely basis and receipts therefor shall be provided to the Landlord upon request. 12. 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, including those portions of the said premises used for driveways, walkways, and parking areas. The insurance coverage to be maintained by the Tenant shall contain limits of not less than $500,000.00 for injury or death of any one person and $1,000,000.00 for injury or death for any one accident, together with $500,000.00 for damage to property. Tenant agrees that, should there be an expansion of the use or occupancy beyond the primary use set forth herein, Landlord may alter the minimum amounts stated in the preceding sentence during the term of this Lease by resolution of the City Council of the City of Sebastian. Landlord will give written notice of any such change to Tenant, and such changes will take effect immediately. 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 and which have a rating of at least A+ by A.M. Best and Company and at least an AA rating by both Moody's and Standard and Poors. The Tenant shall supply the Landlord with a certificate of such insurance with evidence of the payment of the premium thereon. All policies described in this Paragraph 12 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. 13. PROPERTY, FIRE AND EXTENDED COVERAGE INSURANCE. The Tenant shall, at its sole cost and expense, procure and keep in effect such standard policies of property casualty, fire and extended coverage insurance as the Landlord deems necessary and appropriate. Upon request, the Tenant shall provide to the Landlord a certificate of such insurance with evidence of the payment of the premium therefor. The Landlord shall have no obligation to keep the buildings and improvements on the leased premises insured nor shall the Landlord have any obligation to insure any personal property 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 and which have a rating of at least A+ by A.M. Best and Company and at least an AA rating by both Moody's and Standard and Poors. All policies described in this Paragraph 13 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. 14. DAMAGE OR DESTRUCTION OF IMPROVEMENTS BY FIRE OR OTHER CASUALTY. In the event the building and/or other improvements erected on the premises are destroyed or damaged by fire or other casualty, the Tenant, at its option, agrees that it will cause said building and/or other improvements to be replaced or said damage to be repaired as rapidly as practicable. The Landlord may abate the Tenant's rent for the period of time more than 80% of the principal building, if any, is unusable. In the event the Tenant elects to repair and/or replace the building and other improvements on the leased premises, the Landlord shall have no claims against any insurance proceeds paid to the Tenant on account of such damage and /or destruction nor shall the Landlord have any responsibility or obligation to make any expenditures toward the repair and/or replacement of the building and other improvements on the leased premises. Provided, 8 however, that all repaired and /or replaced building and other improvements are repaired/replaced in a manner equal to or better than the building/improvement being repaired or replaced. (a) If the Tenant, under its option, elects not to repair and/or replace the building and improvements upon the leased premises, the Landlord shall have two options: (1) To continue to Lease; if the Landlord elects to continue the Lease, the Landlord shall be entitled to any of the insurance proceeds on account of such damage and/or destruction, such proceeds to be the sole property of the Landlord; or (2) To cancel the Lease; if the Landlord elects to cancel the Lease, the Landlord shall be entitled to that portion of the insurance proceeds paid as a result of such damage and /or destruction to the building and other improvements on the leased premises, the Tenant shall be entitled to the remainder, if any, of the insurance proceeds. (b) In the event the Tenant, under its option, elects not to repair and/or replace the building and improvements upon the leased premises, the Tenant shall, at its sole expense, remove all remaining portions of the damaged or destroyed building and improvements and all rubble or debris resulting therefrom. 15. 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, and invitees, including all attorney's fees incurred by the Landlord in defending any such claims. This Paragraph 15 shall survive the termination or cancellation of the Lease. 16. 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 or 9 its sub Tenants. The presence of said substance or materials on the leased premises shall raise the presumption that Tenant is the cause of such presence. This Paragraph 16 shall survive the termination or cancellation of the Lease. 17. 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 Seven of 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. 18. LANDING FEES. Landing or any other type of use of runway fees being charged by Tenant are specifically prohibited by this Agreement, so long as all other tenants of the property owned by the Landlord located at the Airport are prohibited from charging any such fees, as the use of the Airport is for the general public. Nothing in this Lease shall act to prohibit the Landlord from charging such fees as it deems necessary or desirous. 19. GOVERNMENT SEIZURE. In the event the United States Government, or any agency or subdivision thereof, at any 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 20. 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, building and/or improvements on the leased premises shall belong to the Landlord. If the taking is to such an extent that it is impracticable for the Tenant to 10 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. 21. 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 Tenants abandonment of any substantial portion of the leased premises. "Abandonment" shall be determined by the Landlord; (f) 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. 11 Each party covenants and agrees that it has no power to incur any indebtedness giving a right to a lien 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 fixrnishing 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 Landlords estate under the provisions of the Florida Statutes, or any subsequent revisions thereof; (i) The liquidation, termination, death or dissolution of the Tenant or all Guarantors of the Tenant's obligations hereunder; (j) 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; (k) 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 therefrom without prejudice to 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 failure 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. 22. 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 12 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. 23. 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 Attn: City Manager 1225 Main Street Sebastian, FL 32958 Tenant: B S Investments, Inc. 300 West Airport Drive Sebastian, FL 32958 Attn: R. A. Van Wyck 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. 24. 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. 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. 13 25. OWNERSHIP OF TRADE FIXTURES, SIGNS AND PERSONAL PROPERTY. At the expiration of the Lease, any and all trade fixtures, signs and personal property, used by the Tenant in the operation of its business, on the leased premises shall remain the Tenant's sole property and the Tenant shall have the right to remove the same provided any damages in removal are repaired by the Tenant at Tenant's sole cost. In case of breach of this Lease by the Tenant, or the termination of the Lease, or any extension hereunder, that may be granted, the Tenant agrees to immediately surrender possession of said facilities, and all the buildings, edifices, etc. that are constructed by or on behalf of Tenant. The facilities, buildings, edifices, etc. shall then become the property of the Landlord. 26. HEIGHT /HAZARD RESTRICTIONS. The Tenant expressly agrees for itself, its successors and assigns, to restrict the height of structures, objects of natural growth and other obstructions on the leased premises to such 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. 27. 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 of religion, gender, marital status, race, color or national origin shall be excluded from 14 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, marital status, race, color 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. 28. 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 or contemporaneous 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 the parties hereto. 29. 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, which consent may be withheld for any reason. 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. 15 30. 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 incorporated herein. 31. APPLICABLE LAW/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. 32. ATTORNEYS FEES In any action arising out of the enforcement of this writing, the prevailing party shall be entitled to an award of reasonable attorneys fees and costs, both at trial and all appellate levels, based upon the prevailing rates of private attorneys in Indian River County, Florida. 33. RECORDING. In no event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County, Florida. 34. 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 Tenant's property, or any other person claiming under the Tenant. Upon the Landlord's termination of the Tenant's rights under this Lease by reason of the Tenant's default, all such revenues, income, rents, earnings and profits derived or accruing from the 16 leased premises from the date of such termination by the Landlord shall constitute the property 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 property. 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. The Tenant shall not allow its occupancy or use of the lease premises to constitute or become a public or private nuisance. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. ATTEST: &'4 Kathryn M City Clerk 'Halloran, CMC /AAE Approved as to Form and Legality for Reliance by the City of Sebastian only: Rich Stringer, City 10.itorney B S Investments, Inc. d/b /a Sebastian Aero Services By: Q Ver-PW P R. A. Van Wyck, President CTTY OF SEBASTIAN A Corporate Seal: Corporation Terrence R. Moore, City Manager 17 IN THE EVENT the United States Government at any time during the term of this lease takes over the operation or use of said airfield and /or airport with the result that the Lessee is unable to operate under the terms of the lease, then the lease shall be extended for an additional period equal to the time the Lessee has been deprived of the value of this lease. IN THE EVENT of eminent domain proceeding or any other proceeding which results in loss to the Lessee of a substantial portion of the premises leased by the Lessee, the Lessor and the Lessee agree that if this loss makes it impractical or unreason- ably difficult for the Lessee to carry out the purposes for which the premises were leased, then this lease may at the option of the Lessee be= cancelled and the Lessee is relieved of any obligation to pay rent on the portion lost by the Lessee. In the event of a dispute between the Lessor and the Lessee as to what constitutes an impractical or unreasonably difficult condition for the Lessee to carry out the purposes for which the premises were leased, the dispute shall be submitted to a committee consisting of the Lessee, a member of the Airport Advisory Board and a third arbiter selected by the Lessee and the Airport Advisory Board. LESSEE will be subject to all standard lease clauses of the FAA and their rules and regulations now existing or to exist in the future. LESSEE FURTHER COVENANTS AND AGREES that the Lessor shall have the privilege at all reasonable times to re -enter the said leased premises for the purpose of inspecting the property and determining whether all terms, conditions and covenants and agree- ments herein are being complied with by the Lessee. Business to be conducted at such hours to be determined by the Airport Advisory Board which would not be an unreasonable request. LESSEE agrees to conform to ALL governmental pollution standards, requirements and guidelines.