HomeMy WebLinkAboutR-00-35
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RESOLUTION NO. R-OO-35
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, GRANTING APPROVAL TO SUBLEASE OF
AIRPORT LAND FROM SKYDIVE SEBASTIAN OF SOUTH
FLORIDA, INC., TO LYLE PRESSE; PROVIDING FOR CONFLICT;
PROVIDING FOR EFFECTIVE DATE.
WHEREAS, Skydive Sebastian of South Florida, Inc., is the lessee of certain City
land at the Municipal Airport pursuant to leases and amendments thereto dated August 16,
1996, October 23, 1996 and March 5, 1997; and
WHEREAS, Skydive Sebastian of South Florida, Inc., wishes to sublet a portion
of said land to another for the purpose of operating a parachute packing facility; and
WHEREAS , any such subleasing of airport land requires the written approval of
the City of Sebastian; and
WHEREAS, the City Attorney and City Manager have reviewed the proposed
sublease between the above-named parties and find nothing therein that is detrimental to
the interests of the City;
NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
CITY OF SEBASTIAN, as follows:
Section 1.
APPRO V AL.
The City Council hereby gives its written
approval to the Business Sublease between Skydive Sebastian of South Florida, Inc., and
Lyle Presse, attached hereto as Exhibit "A".
Section 2.
CONFLICTS.
All resolutions or parts of resolutions in
conflict herewith are hereby repealed.
Section 3.
EFFECTIVE DATE.
This resolution shall take effect
immediately upon its adoption.
The foregoing Resolution was moved for adoption by Councilmember ..6, okp
The motion was seconded by counciJmember-15tV!~ k- and, upon being put into
a vote, the vote was as follows:
Mayor Walter Barnes
Vice-Mayor Ben A. Bishop
Councilmember Joe Barczyk
Councilmember James Hill
Councilmember Edward 1. Majcher, Jr.
tljp
The Mayor thereupon declared this Resolution duly passed and adopted this 28th day
of June, 2000.
CITY OF SEBASTIAN, FLORIDA
ATTEST:
By: \l\) It if1J) ~~
Mayor Walter Barnes
trf~.1n 8,r!rdIM~
Ka hryn . O'Halloran, MMC/ AAE
City Clerk
Approved as to form and legality for
relian. by the City of Sebastian only:
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S~T~ASEAGREEMENT
This Sub-Lease Agreement is made and executed on this _ day ofIune, 2000 by
and between SKYDIVE SEBASTIAN OF SOUTH FLORIDA" INC., (Lessor) and LYLE PRESSE
(Lessee). The Airport Lease Agreement dated August 16, 1996, the First Amended Lease Agreement
dated October 23, 1996 and the Airport Lease Agreement dated March 5, 1997 by and between the
City of Sebastian and Skydive Sebastian of South Florida are incorporated into this Sub-Lease
Agreement and are binding upon all parties.
1. DESCRIPTION OF PREl\fiSES:
Lessor agrees to lease to Lessee that portion of the fueling building and property
located at 400 W. Airport Drive, Sebasti~ FL (premises), underneath the Lessee's manufactured
building including ten (10) parking spaces adjacent to the building.
2. TERM:
The tenn of this Sub-Lease Agreement shall be for a period offive years commencing
on July 15,2000 and terminating on July 15; 2005. Lessee shall have an option to renew as described
below.
2(A). OPTION TO RENEW:
Lessee shall have the option to renew this Sub-Lease Agreement for an additional five
year term. Lessee must exercise this option by giving written notice to Lessor not less than 180 days
and not more than 210 days prior to the end of the initial term of this agreement.
3. RENT AND TAXES.:
Lessee s.b.a11 pay to the Lessor as rent for the premises the following amounts:
During the period from July 15.2001 through July 15, 2002, Lessee agrees to pay to
Lessor $500.00 per month, plus applicable sales and rental tax. in advance, on the first day of the
month. Rent will be adjusted upwards each year pursuant to the consumer price index as listed in the
Wan Street Journal in the month prior to the comm.encement date. Lessor agrees to waive payment
for the first twelve months.
In the event that any rental Payment due hereunder shall not be paid five (5) days or
more when due, in addition to, and not in substitution for, any other rights Lessor m.ay have, and
without written notice, Lessee shall pay Lessor a late payment fee of5% of the amount of such late
Rental Payment. Tbis charge is to be considered as additional rent and shall not be considered
interest.
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If Lessee eKercises the option to extend this Sub-Lease Agreement then the rent will
increase each year pursuant to the consumer price index. as listed in the Wall Street Joumal.
4. TAXES:
The Lessee shall pay during the Lease tenn all ad valorem taxes. assessments or any
other charge or payment levied or assessed against the leased premises and any tax or charge levied
against any stock of merchandise. furniture, furnishings. equipment and other property located in, or
upon the leased premises. All taxes. fees; or charges shall be paid by the Lessee on a timely basis and
receipts therefor shall be provided to the Lessor upon request.
All rigging work for the operation of the equipment sales store is required to be done
through Lessor's approved loft, so long as the work is in accordance with industry standards, is
completed in a timely manner, and the fees are within reasonable industry standards. Exceptions wiD
be allowed due to customer requests or destination of equipment.
5. RESTRICTION OF USEIHOURS OF OPERATION:
The premises shall be used by the Lessee for a Skydive equipment sales store. Lessee
shall not use the premises; or pennit any part of the premises to be used for any other purpose
without the prior written consent of Lessor. This Sub-Lease is contingent upon the store being open
for operation during the same hours as the drop zone, seven days a week, from October 15 through
April 15, minimum of eight (8) hours a day. each year. From April 16 to October 14, the store's
hours of operation would be 8:00 a.m. to 12:00 p.m. at a minimum. The store may be closed on
those days that the drop zone is closed. All parking lot use shall be limited to staff parking. loading
and delivery and customer parking. Failure to adhere to the minimum operating hours shall constitute
a material breach of the agreement.
6. ASSIGNMENT AND SUBLETTING:
Lessee shall not assign tbis Sub-Lease or sublet. the whole or any part of the premises,
or permit any person to occupy the premises without the prior written consent of the Lessor. The
acceptance of rent by the Lessor from any other party shall not waive any covenants of this Sub-Lease
or act as a consent to the assignment for the benefit of creditors or by operation of law transfer any
rights to any other party without the prior written consent of the Lessor. If Lessor consents, in
writing, to the assignment, subletting or other transfer of any right or interest herein by the Lessee,
Lessee shall not be relieved of any duty, obligation or liability under any of the provisions of the Sub-
Lease. The Lessor agrees not to utu'easonably refilse to assign this Sub-Lease agreement provided
that the assignee is creditw01thy and the assignee assumes all of the obligations under the existing
Sub-Lease.
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7. INSURANCE:
Lessee agrees to deliver to the Lessor before the commencement of this Sub-Lease
Agreement or before any physical labor or work on the premises begins, but no later than fifteen (15)
days after the date after this agreement, a certificate of insurance, declarations page, and true copy
of all policies procured by the Lessee in compliance with Lessee's obligations, together with proof
ofpayment, including an endorsement which states that such insurance may not be canceled except
upon thirty (30) days written notice to the Lessor. All insurance shall be written by one or more
responsible insurance companies and shall contain endorsements that the insurance cannot be canceled
or anlended with respect to the Lessor by the insurance company and that the Lessee shall be
responsible for all payments of premiums for the insurance and which expressly waives any right of
subrogation by the insurance company against the Lessor. Failure to maintain insurance coverages
as described below shall constitute a material breach of this agreement. It is the express intent of the
parties that Lessee shall have sole obligation to keep the premises and personal property used in
connection with the premises continually insured.
The insurance required by this paragraph shall have both the Lessee and the Lessor's
named insureds, and shall have the following coverages:
1) Fire and extended coverage, vandalism, plate glass, malicious mischief in the
minimum amount of $80,000.00.
2) Product liability insurance with nUruIDum per occurrence limits of$l,OOO,OOO.OO.
3) General. Liability insurance with minimum per occurrence limits of $1, 000, 000.00.
7(A). DAMAGE OR DESTRUCTION OF lMPROVEMENTS BY FIRE OR OTHER
CASUALTY.
In th.e event any building and/or other improvements erected on the premises are
destroyed or damaged by fire, Lessee 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 Lessor may
abate the Lessee's rent for the period of time more than 80% of the principal building, if any, is
unusable. In the event that Lessee elects to repair and/or replace the building and other improvements
on the leased premises, the Lessor shall have no claims against any insurance proceeds paid to the
Lessee on account of such damage and/or destruction, nor shall the Lessor have any responsibility
or obligation to make any expenditures toward repair and/or replacement of the building and other
improvements on the leased premises, provided, however, that all repaired and/or replaced building
and other improvements are repaired/replaced in a manner equal to or better than the
buildinglimprovement being repaired or replaced.
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8. BOLD BARMLESS-.:.
Lessee shall indemnifY Lessor and save it harmless against any and all claims, actions,
damages, liability and expense in connection with loss oflife, personal injury~ or damage to property
arising :from or out of any occurrence in, upon, or about the leasehold premises~ occupancy. or use
by the Lessee of the leasehold premises. or in any part thereof, or occasioned wholly, or in part by
any act or omission of the Lessee, his agents~ contractors, employees, servants or assigns.
9. MAINTENANCE AND REPAIRS:
Lessee, at its sole cost and expense, not to be reimbursed by Lessor, shall keep and
maintain the premises in. good and sanitary condition and repair during the term oftms Sub-Lease.
Lessee shall maintain the interior and exterior fixtures~ including improvements, and landscaping on
or about the premises and shall make all required maintenance repairs to the plumbing, electrical,
heating, and air conditioning systems_ Any liens placed on the premises for repairs made by the
Lessee shall not be effective or binding upon any interest of the Lessor_ However, if any claims or
liens shall be placed against the premises as a result of Lessee's actions or inactions, Lessor shall have
the imnlediate right to satisfy the claims and any expenses incurred therein shall become immediately
due from the Lessee as additional rent.
10. CONSTRlTCTION:
Any construction or repair shall be in accordance with the local and state codes;
regulations and requirem.ents. Lessee shall indemnify, defend and hold Lessor harmless from any
actions, claims, losses, damages or liens resulting from the acts of Lessee, its agents, employees or
contractors in performance of any construction on or to the premises.
11. ~MINENT DOMAIN:
If during the term of tbis Sub-Lease, the whole or any part of the land or building in
which the premises are located, other than a part not interfering with the maintenance or operation
thereof, shall be appropriated by right of eminent domain. then this lease shall tenninate as of the time
of such appropriation. Lessee shall maintain the right, at its election, to continue to occupy the
premises on a month-te-month basis, ifpermitted by the condemning authority and by law, for the
period between the time of such appropriation and the time when physical possession of the premises
shall be taken. Except for the execution of the term, such possession shall be subject to the
provisions of this Sub~Lease.
Lessee shall not be entitled to share in any monetary or other awards to the Lessor,
but the Lessee shall be entitled to pursue its own claim for any damages suffered by the Lessee only
if such claims do n.ot infringe upon or reduce the claims of the Lessor or any awards to Lessor.
Lessor agrees that it shall not interfere with such claims of the Lessee and Lessor shall not m.ake any
claim fOT any damages which are considered tspecial damages' to Lessee including lost profits.
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12. DEFAULT:
It is mutually agreed that in the event that Lessee shall defauit on the payment of rent
when due, Lessor shall not be required to notifY Lessee in writing of such a default. If the Lessee fails
to cure the default within five (5) days after the due date~ it shall constitute a material breach of this
Sub-Lease Agreement. All past due am.ounts will accrue interest at the highest rate allowable by law.
Upon the failure of the Lessee to cure its default, all monies and rents from the full terms of this Sub-
Lease Agreement shall become immediately due to Lessor. The Lessor shall have the immediate right
to terminate the Lessee's right of occupancy and to pursue whatever rights and remedies it may have
against the Lessee by reason of such default. If tbe Lessee shall be in default in perfonning any of
the terms or provisions of this lease other than the provision requiring payment of rent, Lessor shall
give Lessee notice in writing of such default. If Lessee fails to cure such default within seven (7)
days after the mailing of notice then the Lessor will have the right, but not the obligation, to cure
such default and the actual ex.penses incurred by the Lessor shall be deemed to be additional rent to
be paid by the Lessee on the day when rent would nen be payable. AU past due amounts will accrue
interest at the highest rate allowable by law. Upon the failure of the Lessee to cure any default, the
Lessor shall have the inunediate right to terminate Lessee's right of occupancy and to pursue
whatever rights and remedies it may have against the Lessee by reason of such default. Additionally,
Lessor ~hall have a lien on all equipment, fixtures, inventory and personal property of any type on the
premises. Lessor shall also have the immediate right to possession and ownership of the above
mentioned property and shall apply the net wholesale value of the property in Its used condition to
any amounts owed Lessor. The remedies provided by this agreement are nonexclusive and cumulative
and the pursuit by the Lessor of one remedy does not waive its right to pursue any and all other
remedies,
13. INDEMNIFICATION:
Lessee shall and does indemnify, defend the Lessor and save it harmless from and
against any and all claims, actions, causes of action, damages, demands, liabilities, claims, losses or
litigation arising out of or COWlected with the Lessee's occupancy or use ofthe leased premises and
the use of the leased premises by Lessee's agents, employees, contractors, licensees, and invitees,
including all court costs and attorney's fees at all tribunalleve1s incurred by the Lessor in connection
with any and all loss of life, personal. injury and damage to property occurring in or about of, arising
or relating to, directly or indirectly in any manner whatsoever, the leased premises adjacent sidewalks
and loading platforms or areas or occasioned wholly or in part by any act or omission of Lessee, its
agents, contractors, customers, principals, directors, officers 01' employees. This paragraph thirteen
(13) shall survive the tennination or cancellation ofthe Sub-Lease,
14. SEVERABILI'IY:
The invalidity of any provisions of this Sub-Lease as determined by a Court of
competent jurisdiction shall in no way affect the validity of any other provision of this Sub-Lease.
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15. INSPECTION:
Lessee agrees to permit the Lessor or Lessor's agents to inspect and examine the
premises at any reasonable time, and to permit Lessor to make such repairs to the building or
improvements that the Lessor may deem desirable or necessary to preserve and protect the premises
at Lessors expense except as required by paragraph 8.
16. SURRENDER:
On the last day of the term oftbis Sub-Lease, or upon any sooner termination, Lessee
shall surrender the premises to the Lessor in substantially the same condition as when received,
ordinary wear and tear and acts of God excepted.
At the expiration of the Sub-Lease. any trade fixtures, signs and personal property
used by the Lessee in the operation of its business, on the leased premises shall remain the Lessee's
sole property and the Lessee shall have the right to remove the same provided any damages in
removal are repaired by the Lessee at Lessee's sole cost. The fixtures, buildings, and structure shall
remain on the property subject to the terms of the Sub-Lease with the City of Sebastian.
In case of breach of this Sub-Lease by the Lessee, or the termination of the Sub-Lease.
or any extension. hereunder, that may be granted, the Lessee agrees to immediately surrender
possession of said facilities, and all the building, edifices, etc. that are constmcted by or on behalf of
Lessee. The facilities, buildings, edifices, etc. shall then become the property of the Lessor.
17. CAPTIONS:
Section captions are not a part of this Sub~Lease and are inserted merely for the
convenience of the parties.
18. ADDmONALRIGHTS OF LESSOR:
The Lessor shall have the option. without waiving or impairing any of its rights
hereunder, to pay any sum or perform. any act required of the Lessee, and the amount of any such
payment and the va.lue of any such performance, together with interest thereon, shall be secured by
this Sub-Lease, and shall be promptly due and payable to the Lessor. Lessor shall have no liability
whatsoever for any loss or damage resulting in any way or manner from such action.
All delinquent payments to the Lessor 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 Lessee's breach of any of the provisions of this Sub-Lease, the
Lessor shall thereupon have a lien upon- all revenues, income, rents, earnings and profits from the
leased premises as additional security to the Lessor for the Lessee's faithful performance of each of
the terms and provisions hereof, and to secure payment of all sums owing to the Lessor hereunder.
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Such liens shall be superior in dignity to the rights of the Lessee and any of its creditors, or assignees,
or any trustee or receiver appointed for the Lessee's property, or any other person claiming under
the Lessee. Upon the Lessor's termination of the Lessee's rights under this Sub-Lease by reason of
the Lessee's default, all such revenues, income, rents, earnings and profits derived or accruing from
the leased premises from the date of such termination by the Lessor shall constitute the property of
the Lessor, and the same is hereby declared to be a trust fund for the exclusive benefit of the Lessor
and shalt not constitute any asset of the Lessee or any trustee or receiver appointed for the Lessee's
property. The provisions oftrus paragraph shall be effective without the Lessor's re.-entIY upon the
leased premises or repossession thereof. and without any judicial determination that the Lessee's
interest under said Sub-Lease has been terminated.. The Lessee acknowledges that the Lessor has
adopted an .Airport Master Plan and the Lessee covenants that it will use the leased premises to be
consistent with the Airport Master Plan.
The Lessee shall not allow its occupancy or use of the leased premises to constitute
or become a public or private nuisance.
19. INTEGRATION:
This Sub-Lease contains the whole and entire agreement between the Lessee and
Lessor as of the date of execution unless otherwise stated herein. Both parties affirm and confirm
that they enter into this agreement freely and without any inducement. representation,. or promise that
is not expressly in this Sub-Lease. No changes, modifications, waivers. or amendment shall have any
effect unless in writing and duly signed by both parties.
20. BANKRUPTCYIINSOLVENCYIPROBATE:
If at any time there shall be filed by, or against Lessee, in any court, pursuant to any
statute either of the United States or of any state, a petition in bankruptcy, insolvency or for the
appointment ofa trustee or receiver, or if Lessee makes an. assignment by operation of law, makes
application to creditors to settle or extend the time for payment of Lessee1s obligation, or if any
execution, lien or attachment shall be levied upon any of Lessee's property, or the premises are taken
or occupied by anyone other than the Lessee, then all rents. and monies from the full terms of this
agreement shall become immediately due, and Lessor shall have immediate possession ofthe property,
unless otherwise prohibited by law.
21. REALTORS:
Lessor has not retained the services of any real estate agents and Less.ee agrees that
all fees claimed by any real estate agent is the sole responsibility of Lessee.
22. ATTORNEY.S FEES:
Lessee shall be responsible for all costs and reasonable attorney's fees that may be
expended to collect monies or otherwise enforce any of the obligations Lessee has agreed to herein,
including all trial and appellate costs and attorneys fees.
23. EXCLUSIVE RETAll.. RIGHTS
The Lessor shall retain the sole rights to retail skydiving equipment or related
accessories as well as wearables and other pro shop items except those bearing the name and logo
of Skydive Sebastian. The Lessee agrees to assist tbe enforcement of these rights.
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Such liens shall be superior in dignity to the rights of the Lessee and any of its creditors, or assignees,
or any trustee or receiver appointed for the Lessee's property, or any other person claiming under
the Lessee. Upon the Lessor's teunination of the Lessee's rights under this Sub-Lease by reason of
the Lessee's default, all such revenues, income, rents. earnings and profits derived or accruing from
the leased premises from the date of such tennination by the Lessor shall constitute the property of
the Lessor. and the same is hereby declared to be a trust fund for the exclusive benefit of the Lessor
and shall not constitute any asset of the Lessee or any tmstee or receiver appointed for the Lessee's
property. The provisions oftms paragraph shall be effective without the Lessor's re-entry upon the
leased premises or repossession thereof, and without any judicial determination that the Lessee's
interest under said Sub-Lease has been terminated. The Lessee acknowledges that the Lessor has
adopted an Airport Master Plan and the Lessee covenants that it will use the leased premises to be
consistent with the Airport Master Plan.
The Lessee shall not allow its occupancy or use of the leased premises to constitute
or become a public or private nuisance.
19. INTEGRATION:
This Sub-Lease contains the whole and entire agreement between the Lessee and
Lessor as of the date of execution unless otherwise stated herein. Both parties affirm and confinn
that they enter into this agreement freely and without any inducement, representation, or promise that
is not expressly in this Sub-Lease. No changes, modifications, waivers, or amendment shall have any
effect unless in writing and duly signed by both parties.
20. BANKRUPTCYIINSOLVENcYlPROBA TE:
If at any time there shall be filed by, or against Lessee, in any court, pursuant to any
statute either of the United States or of any state, a petition in bankruptcy, insolvency or for the
appointment of a trustee or receiver, or if Lessee makes an assignment by operation of law, makes
application to creditors to settle or extend the time for payment of Lessee's obligation, or if any
execution, lien or attachment shall be levied upon any of Lessee's property, or the premises are taken
or occupied by anyone other than the Lessee, then all rents and monies from the full terms of this
agreement shall become immediately due, and Lessor shall have immediate possession of the property,
unless otherwise prohibited by law.
21. REAL TORS:
Lessor has not retained the services of any real estate agents and Lessee agrees that
all fees claimed by any real estate agent is the sole responsibility of Lessee.
22. A TTORNEY.S FEE&
Lessee shall be responsible for all costs and reasonable attorney's fees that may be
expended to collect monies or otherwise enforce any of the obligations Lessee has agreed to herein,
including aU trial and appellate costs and attorneys fees.
23. EXCLUSIVE RETAIL RIGHTS
The Lessor shall retain the sole rights to retail skydiving equipment or related
accessories as well as wearables and other pro shop items except those bearing the name and logo
of Sky dive Sebastian. The Lessee agrees to assist the enforcement of these rights.
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IN" WrI'NESS WHEREOF, the pa.."i:ies hereto have executed this agreement as of
the date first above written. .
ANDREW GRIMW ADE
President. Skydive
Sebastian of South Florida, Inc.
LYLE PRESSE
Witness: KIMBERLY PRESSE
STATE OF FLORIDA )
INDIAN RIVER COUNTY )8S:
THE FOREGOING instrument was acknowledged before me this
day of
, 2000, by
, who is personally known to me or who has
produced
and who deposes and says that the foregoing is true and correct
to the best of his/her knowledge and belief.
WITNESS my hand and official seal in the COWlty and State last aforesaid this _
day of
.2000.
NOTARY PUBLIC - State ofFL at Large
(S E AL)
(Print Notary's Name)
My Commission Expires:
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