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HomeMy WebLinkAboutR-95-58 RESOLUTION NO. R-95-58 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AUTHORIZING THE CITY MANAGER AND CITY CLERK TO SIGN, ON BEHALF OF THE CITY, AN AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF SEBASTIAN AND BRIAN E. BARRY; 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 of the City of Sebastian, after reviewing the proposed Lease Agreement for Brian E. Barry, Individual, for its approval, has determined that it is in the best interest of the City to enter into the Lease Agreement with Brian E. Barry, whereby the City shall lease certain real property located at the Sebastian Municipal Airport to Brian E. Barry. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that: Section 1. AGREEMENT. The City Manager is authorized to execute and the City Clerk to attest, on behalf of the City, the proposed Lease Agreement which is attached to this Resolution as Exhibit "A" and by this reference is incorporated herein. Section 2. CONFLICT. All resolutions or parts of resolutions in conflict herewith are hereby repealed. ~. SEVERABILITY. In the event a 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 such invalid and unconstitutional provision, thereby causing said remainder to remain in full force and effect. Section 4. EFFECTIVE DATE. This Resolution shall take effect immediately upon_ its adoption. The foregoing Resolution was moved for adoption by Councilmember The motion was seconded by Councilmember and, upon being put into a vote, the vote was as follows: Mayor Arthur L. Firton Vice Mayor Carolyn Corem Councilmember Nonna J. Damp Councilmember Ray Halloran Councilmember Louise R. Cartwright 2 The Ma,v~thereu,.pon declared this Resolution duly passed and adopted this ////~ day d~..?~P~J), ,1995. City Clerk (SEAL) Approved as to Form and Content: Clifton A. McClelland, Jr. City Attorney CIT~~BASTIAN, FL__._O__~ Arthur L. Firtion, Mayor AIRPORT LEASE THIS LEASE, made and entered into this 27th day of September, 1995, 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 BRIAN E. BARRY, (hereinafter referred to as the "Tenant"). The Landlord and the Tenant are sometimes collectively referred to herein as the "parties". WlTNESSETH: 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. Lease Agreement. 2. LEASED PREMISES. The above stated recitals are hereby incorporated by reference in this 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"). 3. TERM OF LEASE. The term of this Lease shall be for a period of twenty (20) years commencing sixty (60) days after the date the Tenant executes this Lease and will end on the twentieth (20th) anniversary of such date. So long as the Tenant is not in default of any term, condition or covenant provided in this Lease Agreement, including any addendum hereto, the Tenant shall have the option to renew this Lease for one (1) additional twenty (20) year term (the "Option Term") by providing the Landlord with written notice of the Tenant's decision to exercise his option no less than one hundred eighty (180) days and no more than two hundred ten (210) days prior to the expiration of the initial term of this Lease. All other provisions of this Lease Agreement shall apply during the Option Term; provided, however, the yearly rent during the Option Term shall be in an amount determined by the Landlord by and through the City Council of the City of Sebastian, including the method for calculating annual adjustments thereto. 4. RENT. The parties agree that the rent, payable by the Tenant, during the term of 2 this Lease shall be as follows: (a) For the leased premises the yearly rent shall be one thousand two hundred dollars ($1,200.00) per acre. The Landlord recognizes 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 July of 1996, 2001 and every five (5) years thereafter the Landlord will compare the base price index for December of 1991 and the yearly rent amount shall be increased (or decreased) on December 1, 1996, and every five (5) years thereafter in the same proportion as said July index has increased (or decreased) over(or under) the price index for December, 1991, or for December, five (5) years earlier. In no event, however, shall the rent decrease below the surn of $1,200 per acre. (b) Time of the essence. The Tenant agrees promptly to perform, comply with and abide by this Lease, and agrees that time of payment of performance is of the very nature and essence hereof. (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 matured rent installments presently due and payable. (2) Partial acceleration. In lieu of the option in Sub-paragraph (1) above, 3 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) Qfl~a~[i~. In addition to the option herein granted above, the Landlord may exercise any and all other options available to it hereunder, 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, including, but not limited to, those remedies, procedures and rights specified in the other paragraphs of this Lease. (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 monthly installments, commencing from the date of commencement of this Lease, as described 4 in Section 2 (above) and on a like day of every month thereafter during the term of this Lease. 5. FUEL FLOWAGE FEE. (a) In addition to the rent due hereunder, the Tenant and any sublessee of Tenant, shall also pay to the Landlord the following sums, which shall not be rent for the leased premises, but shall be collected by the Landlord from the Tenant, and any sublessee of the Tenant, at the time of delivery at the Airport: Two cents per gallon on all aviation fuels delivered to the Tenant, or to any sublessee of the Tenant, at the Airport (the preceding charge per gallon shall be subject to change at any time by Landlord as determined by resolution of the City Council of Sebastian. Such change shall become effective immediately upon delivery of written notice thereof to Tenant). (b) The Tenant and any sublessee of the Tenant shall famish to the Landlord written detailed monthly statements showing the total amount of aviation fuels delivered to the Tenant, or any sublessee of the Tenant, at the Airport. Said statements shall be furnished no later than the 15th day of each month during the time this Lease shall be in force. The Tenant agrees, both on behalf of itself and any sublessee of the Tenant, that said amounts may be collected by the Landlord from the Tenant, or any sublessee of the Tenant, in the same manner as rent. (c) The monthly statements referred to in the foregoing subparagraphs pertain only to operations conducted at the Airport and exclude any operations of the Tenant, or any sublessee of the Tenant, conducted at other locations. (d) The Tenant, or any sublessee of the Tenant, shall further retain upon the 5 leased premises all delivery bills, invoices and related records pertaining to all aviation fuels delivered to the Tenant, or to any such sublessee, and shall produce and make available such books and records upon request by the Landlord for the purpose of auditing payments to the Landlord as provided hereinabove. Such books, records and other documents shall be made available for inspection to representatives of the Landlord within 15 days of written notice to the Tenant or any sublessee of the Tenant. If said inspection reveals that payments to the Lan-~llord are in error, by more than 2%, then Tenant shall pay the additional mount owing to Landlord plus all costs of said inspection. 6. IMPROVEMENTS TO THE PREMISES. The Landlord acknowledges that the Tenant is leasing the premises for the purposes described in Paragraph 7 below, and that in order to utilize the leased premises for this purpose, it will be necessary to erect thereon a building and other improvements, to be constructed by the Tenant upon the leased premises at the Tenant's sole cost and expense and to comply with all applicable rules, laws, regulations and requirements pertaining thereto. (a) The Tenant shall have the fight 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 buildings or other structures described in this Agreement, 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 6 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. Landlord's (c) In order to confmn sole ownership in the Landlord, the Tenant shall, at 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. All buildings, structures and fixtures of evew 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. 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 7 damage to the leased premises caused by the removal by Tenant of any such personalty shall be repaired by Tenant forthwith at its expense. (d) In the event the Tenant is prohibited from obtaining a building permit or license to construct the improvements described below, within ninety (90) days from the date hereof, from the appropriate governmental authorities having jurisdiction over the leased premises, for reasons not caused by and beyond the control of the Tenant, this Lease shall be null and void and the Landlord and the Tenant shall have no obligation toward each other except as otherwise provided herein. (e) Attached hereto as Schedule "B" is a description of all improvements to be constructed on the leased premises by Tenant, including the date of commencement and completion required for each improvement. In the event that such improvements are not commenced on the applicable date set forth in Schedule "B", and thereafter completed on the applicable date set forth in Schedule "B", Landlord shall have the option to terminate this Lease and have no further obligations to Tenant hereunder. Such option shall be exercised within a reasonable time by written notice to Tenant. 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 solely for the following purposes or uses: Aircraft Refurbishing and Rebuilding 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 for any reason. 8. REPAIRS AND ALTERATIONS. The Landlord shall not be obligated to maintain or repair the leased premises or any improvements located or any part hereof thereon 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, upon completion of the original improvements, 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 9 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 serv/ce 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 impose any reasonable restrictions as, in the sole discretion of the Landlord, are deemed necessary. 11. 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. 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 10 respect to the leased premises, including those portions of the said premises used for driveways, walknvays, 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 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. FIRE AND EXTENDED COVERAGE INSURANCE. The Tenant shall, at its sole cost and expense, procure and keep in effect such standard policies of fare 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 ll 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. 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, however, that all repaired and/or replaced building and other improvements are repaired/replaced in a manner equal to or better than the 12 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 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 lifigaton 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 13 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 (I) 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 its sub~Tenants. 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 specific purposes identified in Sections 6/7 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 ofnmway fees are specifically prohibited by tiffs 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 14 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 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; 15 Lease; (c) The Tenants failure to pay any consideration, to the Landlord, required by this (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. Each party covenants and agrees that it has no power to incur any indebtedness giving a fight to a lien of any kind or character upon the right, rifle and interest of the other party in and to the property covered by this Lease, and that no 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 16 of said other party. All persons contracting with the Tenant or furnishing materials or labor to said Tenant, or to its agents or servants, as well as all persons whomsoever, shall be bound by this provision of this Lease. Should any such lien be filed, the Tenant shall discharge the same or by filing a bond, or otherwise, as permitted by law. The Tenant shall not be deemed to be the agent of the Landlord so as to confer upon a laborer bestowing labor upon the leased premises, a mechanic's lien upon the Landlord's estate under the provisions of the Florida Statutes, or any subsequent revisions thereof; (I) The liquidation, termination, dissolution or (if the Tenant is a natural person) the death 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 submits, more than two times during the Lease term, a statement of aviation fuel sales that understates actual such sales by five percent (5%) or more; (1) The Tenant shall be in default of any other term, provision or covenant of this Lease, other than those specified in subparts a through k 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 17 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 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 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: 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. 18 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. 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 19 behalf of Tenant. The facilities, buildings, edifices, etc. shall then become the property of the Landlord. 26. _HEIGHT RESTRICTION~SS. 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, roles 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. NONDISCRIMINATIONs- 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 ranning with the land that (I) no person on the grounds of religion, 20 gender, marital stares, 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, marital stares, 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 - Effecmation 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. Landlord represents and warrants that the leased premises is zoned Airport Industrial (AI), pursuant to the applicable governmental ordinances. 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 mount of any such payment and the value of any such performance, together with interest thereon, shall be 21 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 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. Despite any provisions in this paragraph which is or may appear to be the contrary, Landlord acknowledges that the lien of the leasehold mortgage upon Tenant's revenues, income, rents, earnings and profits as 22 described above shall be recognized as superior to Landlord's lien. The Tenant acknowledges that the Landlord has adopted an Airport Master Plan and the Tenant covenants that he will use the leased premises to be 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. 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. 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. 23 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. 33. RECORDING. In n__q event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County, Florida. IN WITNESS WHEREOF, the parties hereto have set trek hands and seals the day and year first above written. TENANT: CITY OF SEBASTIAN A Municipal Corporation sting under the laws of the State of Florida ~foel~I~. Kof~rff City Manager ~TEST' ~ .~ I~ath~ M. O'Halloran, CldC/~ City Clerk Approved as to Form and Content: Clifton A. McClelland, Jr. City Attorney 24 SCHEDULE "A" This Schedule is a part of that certain Lease between the CITY OF SEBASTIAN and BRIAN E. BARRY dated f- ~9 ? - ~.C- for leased premises at the Sebastian Municipal Airport. LEGAL DESCRIPTION OF THE PROPERTY: FLEMING GRANT THAT CERTAIN PARCEL LYING IN SECTION 29 DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF SAID SECTION 29, RUN S44 21'28"E, 818.81 FEET ON S(XrFHWEST BOUNDARY OF SECTION 29 OF CENTERLINE OF ROSELAND ROAD; THENCE N04 48'59"W, 514.65 FEET ON SAID CENTERLINE; THENCE N89 50'46"E, 644.46 FEET; THENCE N00 09'14"W, 1256 FEET TO TRUE POINT OF BEGINNING; THENCE N89 50'46"E, 425.00 FEET TO A POINT WHICH LIES 75.00 FEET WEST OF THE CENTERLINE OF AN EXISTING AIRPORT TAXIWAY; THENCE N00 09'14"W, 307.00 FEET; TItENCE S89 50'46"W, 425.00 FEET; THENCE SOO 09'14"E, 307.00 FEET TO TRUE POINT OF BEGINNING. CONTAINING 3.00 ACRES, MORE OR LESS. (LEGAL DESCRIPTION PROViDED BY OTHERS.) SCHEDULE "B" This Schedule is a part of that certain Lease between the CITY OF SEBASTIAN and Brian E. Barry dated for leased premises at the Sebastian Municipal Airport. Listed below are the description of each improvement to be constructed by Tenant on the leased premises and the required dates of commencement and dates of completion for each such improvement: Description of Improvement Two Airplane Hangars which are 18.5' in height with a minimum floor area of 3,000 square feet each. The Hangars should also have an additional 720 square foot area as office, bathroom with customary~fixmres, and storage space under air conditioning. Each Hangar shall have a wooden deck with an area of 280 square feet and a 1,250 square foot concrete apron. The buildings, decks and concrete aprons shall be built in accordance with the site plan which is in effect on the date of construction. All of the foregoing improvements shall be considered buildings, structures or fixtures and shall become the property of the Landlord upon termination of the lease, in accordance with paragraph six. Date o£Commencement Sixty days after the City Manager fum/shes written notice to the Tenant that road access is available. ]~ate of Completion Ninety days after receipt of the written notice from the City Manager that road access is available. TENANT: Brian E. Barry CITY OF SEBASTIAN A Municipal Corporation existing under the laws of the State of Florida L. Koford ' City Manager A~EST: ~ ~ .~ I~&-~ Iv~i O ~-alloran, CMCffAAEJ City Clerk Approved as to Form and Content: Clifton A. McClelland, Jr. City Attorney