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HomeMy WebLinkAbout1995 DeSheaCONSENT TO SECOND ASSIGNMENT OF AIRPORT LEASE • BETWEEN AEROTRACE.AND CITY DATED`SEPTEMBER27, 1995 THE CITY OF SEBASTIAN hereby consents to the assignment to DeShea Aviation, Inc. of that certain LEASE, made and entered into September 27, 1995, with Brian E. Barry and AEROTRACE, INC., as assigned to Successor Tenants, John E. Barry and Stephan J. Barry, as individuals, with the consent of the City dated February 26, 2003, and hereby releases said Successor Tenants John E. Barry and Stephen J. Barry from further obligation under said LEASE. DONE, this 13"' day of February, 2004. A \~., ~.~ , Sally A. Mai , CMC City Cler CIT OF A f>9luioicii Manager Approved as to form and legality for reliance by the City of Sebastian only: f y J®hllV AN®STEPFI~~V ~A~~Y 500 Airport Drive West Sebastian, FL 32958 Phone: (772) 581.0506 Phane/Fax: (772) 3$8.1177 Email: amibriQmsacom September 30th 2003 This agreement, dated as above and accepted by all parties, supersedes and invalidates all prior agreements, either verbal or written. The lease to certain land owned by Sebastian City is presently held by John E. Barry and Stephen J. Barry, the legal description of the property being: Fleming Grant that certain parcel lying in section 29 described as follows: Beginning at the most westerly corner of said section 29, run 544 21'28"E, 818.81 feet on • southwest boundary of section 29 of centerline of Roseland Road; thence N04 48'59"W, 514.65 feet on said centerline; thenceN89 50'46"E, 644.46 feet; thence N00 09'14"W, 1256 feet to true point of beginning; thence 89 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; thence 889 50'46"W, 425.00 feet; thence S00 09'14"E, 307.00 feet to true point of beginning. Containing 3:00 acres, more or less. (Legal descriptlon provided by others.) In consideration of a final payment of $84,000 the lease of the property is hereby sold to Neff Dee 6206 South River Run Drive. Bldg. Gl Sebastian, FL 32958 together with certain capital items listed on the appended description sheet. The buyer will approach the City Council of Sebastian and obtain the CounciI's transfer of ownership to the lease. With this in mind, the sellers offer herewith a letter duly signed, authorizing transfer. The sellers warranty that all monies owing to the city of Sebastian are paid up to the date of this agreement and there are no violations of any sort outstanding, either from the City • • t or from the County of Indian River. The signing of this agreement therefore signifies that all payments and commitments have been met to the satisfaction of all parties Stephen d. Barry ~~.. ............. Neff Dee ~ ........ .. ............................. Signed at Sebastian this ...~~..~. y of September 2003 ,' John E. Barry ... , ""'' `~ C~ JC?HN ~N~ STEPHEN ~e4RRY 500 Airport Drive West Sebastian, FL 32458 Phone: (772) 581.0506 Phone/Fax: (772) 388.1177 Email: anribri@msn.com September 29th 2003 The City Manager City Hatl 1225 Main Street Sebastian, FL 32958 Dear Mr. Moore, This serves to introduce Mr. Neff Dee, who is taking over the lease of the properly at 500 Airport Drive West. Mr. Dee is a former airline captain and will be a great asset to the • airport, as he intends to further develop the property described above. Would you please draw up an addendum to the lease noting the changes. Your early attention to this matter will be appreciated. Very tnily yours, John E. B ~`r` ~t L~ ..- Stephen J. Barry -ux r 1 LJ CONSENT TO ASSIGNMENT OF AIl2PORT LEASE BETWEEN CITY AND AEROTRACE DATED SEPTEMBER 27,1995 THE CITY OF SEBASTIAN hereby consents to the assignment of that certain LEASE, made and entered into September 27, 1995, with AEROTR.ACE, INC., to Successor Tenants John E. Barry and Stephen J. Barry, as individuals, and hereby releases said AEROTRACE, INC., from its further obligations under said Lease. DONE this~~~ay of February, 2003. ATTEST: l ~'~f " / `~_., Sally A o, CMC City Clerk Approved as to Form and Legality for Reliance by the City of Sebastian only: e,~~ •{ f Ric Stringer, Ci rney CITY OF SEBASTIAN A unicipal rporation B ,~ ~,~ Terrence ors ,City Manager 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". 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 teams 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 aclrnowledged, the parties have agreed as • follows: • 1. RECTTALS. The above stated recitals aze 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 particulaziy 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 Tenn") by providing the Landlord with written notice of the Tenant's decision to exercise his option no less than one hundred eighty (130) 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 thezeafter 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 sum 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 instalhnents 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, ' 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) Other remedies. 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) i~efaLt in nrovisiorL. ff 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 declaze, 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 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, atthe;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 furnish 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 Landlord are in error, by more than 2%, then Tenant shall pay the additional amount 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 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 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. (c) 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. 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. 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. (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 8 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 maybe 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 azeas 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 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. UTILTTIES. 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 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, 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 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 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 11 and improvements on the leased premises insured nor shall the Landlord have any obligation • to insure an ersonal ro e Y P P p rty 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 aze 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 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 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, hydrocazbons or wastes being located on the property and being caused by the Tenant or its sub-Tenants. This Paragraph 16 shall survive the temunation 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 temunate 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 aze specifically prohibited by this Agreement, so long as all other tenants of the property owned by the Landlord located at the Airport aze prohibited from chazging 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 chazging 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. ff 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 aiid 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 (c) The Tenants 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 banlo uptcy or being adjudged bankrupt, insolvent, under any applicable federal or state banlauptcy or insolvency law, or admit that it cannot meet its fmancial 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 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 party in and to the property covered by this Lease, and that no third person shall ever be entitled to any lien, duectly 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, ermination, 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 (12Q) 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 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 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 fmal 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. OWNERSI-IIP 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. Tn 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 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 maybe 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, i • _~ gender, marital status, race, color or national origin shall be excluded from participation th, • 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 incompliance 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 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 amount 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 yeaz from date the payments aze 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 declazed 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. EN'T'IRE 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 no 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 their hands and seals the day and year first above written. • CITY OF SEBASTIAN A Municipal Corporation xisting under the laws of the State of Florida ~ h~ ,/1 oel L. Kofor City Manager TEST: / Ica - u.~c~ ~Lzl~ ~(~~ Ka n M. 'Halloran, CIVIC/AAE (il City Clerk Approved as to Form and Content: ~- a•"`~v Clifton A. McClelland, Jr. City Attorney 24 TENANT: This Schedule is a part of that certain Lease between the CITY OF SEBASTIAN and BRIAN E. BARRY dated ~ a ~ -rs for leased premises at the Sebastian Municipal Airport. LEGAL DESCRIPTION OF THE PROPERTY: PEENING 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 SOU'IT-IWEST 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; THENCE S89 50'46"W, 425.00 FEET; THENCE S00 09'14"E, 307.00 FEET TO TRUE POINT OF BEGINNING. CONTAINING 3.00 ACRES, MORE OR LESS. (LEGAL DESCRIPTION PROVIDED BY OTHERS.) i~ S( AEDULE "B" This Schedule is a part of that certain Lease between the CTTY OF SEBASTIAN and ~an E. Barry dated for leased premises at the Sebastian Municipal Airport. <~ Listed below aze 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 mp~vement Two Airplane Hangazs which are 18.5' in height with a minimum floor area of 3,000 square feet each. The Hangazs should aiso have an additional 720 square foot area as office, bathroom with customary fixtures, and storage space under air conditioning. Each Hangar shall have a wooden deck with an azea 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 pazagraph six. Date of o mencement Sixty days after the City Manager furnishes written notice to the Tenant that road access is vailable. Ninety days after receipt of the written notice from the City Manager that road access is available. TENANT: i~ Brian E. Barry CTTY OF SEBASTIAN A Municipal Corporation existing under the laws of the State of Florida lam-. '/ el L. Koford City Manager A T ST: ~~-~ ~ Ka M. O' alloran, C C City Clerk Approved as to Form and Content: ~.~a. ~ Clifton A. McClelland, Jr. City Attorney This Addendum is made and entered into this ~h day of October 1996, by and between the City of Sebastian, a political subdivision of the State of Florida ("Landlord"), 1225 Main Street, Sebastian, Florida, 32958, and Brian E. Barry, 166 Abeto Terrace, Sebastian, FL ("Tenant"). WHEREAS, Landlord and Tenant have entered into that certain Lease dated September 27, 1995, ("Lease"); and WHEREAS, Landlord and Tenant have agreed to modify and amend the Lease as set forth herein below. NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows: 1. The foregoing recitals are true and correct and are hereby incorporated herein by reference. 2. All capitalized terms used herein shall have the same meaning ascribed to them in the Lease. 3. In the event of a conflict between the terms of this Agreement and the terms of the Lease, the terms of this Agreement shall control. 4. Tenant has formed Aerotrace, Inc., a corporation, under the laws of the State of Florida, for the purpose of doing business at the premises covered by the Lease. The shareholders and percentage of shareholders of Aerotrace, Inc., are as follows: Brian E. Barry lOg John E. Barry 30$ "~ r1 LI Stephen J. Barry Anna Marie Barry 30$ 30$ The parties agree that Aerotrace, Inc. will be substituted for Brian E. Barry as the tenant under the Lease. 5. Tenant and Landlord agree that an easement for drainage purposes shall be reserved for the City as a public drainage easement on the southerly 10 feet of the easterly 195 feet of that property described in SCHEDULE "A" which is a part of that Lease between Tenant and Landlord dated, September 27, 1995. 6. Except as modified hereby, all other terms and conditions of the Lease shall remain in full force and effect. IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of the day and year first above written. Bria y Aerotrace, 'Inc. By: arry President ATTEST: Kat r-yn O'Halloran, CMC/AAE City Clerk (Seal) Approved as to Form and Content: Valerie F. Settles, City Attorney City of~Seb~asti~ant/I^ ` Thomas W. Fr me City Manager cttvaF ~~~~'#~" ',~"~'. -T=i = _ _ HOME OE PELICAN ISLAND SEBASTIAN MUNICIPAL AIRPORT 202 AIRPORT DRIVE EAST ~ SEBASTIAN, FL 32958 PHONE 772-228-7001 ~ FAX 772-228-7078 ' iffin ~cityofsebastian.or~ MEMORANDUM TO: Neff Dee, DeShea Aviation RE: Sub-lease; approval DATE: February 14, 2008 Your notice/request to enter into asub-lease with Christopher and Nathan Rigaud is approved. You are advised that the terms and conditions of your lease apply as to use and purpose to your Joe Griffin Airport Director Approved as to form and legality for reliance by the City Of Sebastian only: ~~.. Rich E. Stri City Attorney ATTEST: y~ Sally M 'o,~MC City Clerk Neff Dee 772-388-2096 500 Airport Dive, West Sebastian, FL 32958 Sebastian Municipal Airport Joe Griffin Airport Director ' February 14, 2008 Mr. Griffin: Please consider this letter proper notice of my intent to sub-lease the north hanger on my leasehold. Christopher Rigaud and Nathan Rigaud will be the sub-leaseholders. My agreement with them will commence on March 1, 2008. The purpose and use of their sublease will conform to the "use and purpose" as expressly stated in my lease. Thank you for your timely response to this notice. With regards: i '~ i ...~' Neff Dee, owner DeShea Aviation CONSENT TO SECOND ASSIGNMENT OF AIRPORT LEASE • ~ BETWEEN AEROTRACE•AND CITY DATED'SEPTEMBER 27, 1995 THE CITY OF SEBASTIAN hereby consents to the assignment to DeShea Aviation, Inc. of that certain LEASE, made and entered into September 27, 1995, with Brian E. Bany and AEROTRACE, INC., as assigned to Successor Tenants, John E. Barry and Stephan J. Barry, as individuals, with the consent of the City dated February 26, 2003, and hereby releases said Successor Tenants John E. Bang and Stephen J. Barry frorrt further obligation under said LEASE. DONE, this 13~' day of February, 2004. ATT r C f,: A ~- Sally A. Mai , CMC B City Cier ~ T' Approved as to form and legality for reliance by the Ci#y of Sebastian only: ,: Ri h Stringer • OF City Manager • i) 7I ~~HN AlV®ST~PH~~V ~~RR 544 Airport Drive West Sebastian, FL 32958 Phone: (772) 581.0506 Phone/Fa~c: (772} 388.1177 . Email: anrtbri(cr~msn,com September 30th 2003 This agreement, dated as above and accepted by all parties, supersedes and invalidates all prior agreements, either verbal or written. . The lease to certain land owned by Sebastian City is presently held by John E. Barry and Stephen J. Barry, the legal description of the property being: 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 southwest boundiiry 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 89 50'46"E 425.40 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; thence S89 50'46"W, 425.00 feet; thence S00 09'14"E, 307.00 feet to true point of beginning. Containing 3:00 acres, more or less. (Legal description provided by others.) In consideration of a final payment of $84,000 the lease of the property is hereby sold to Neff Dee 6206 South River Run Drive. Bldg. Gl . Sebastian, FL 32958 together with certain capital items listed ~on the appended description sheet. The buyer will approach the City Council of Sebastian and obtain the Council's transfer of ownership to the lease. With this in mind, the sellers offer herewith a letter duly signed, authorizing transfer. The sellers warranty that all monies owing to the city of Sebastian are paid up to the date of this agreement and there are no violations of any sort outstanding, either from the City J or from the County of Indian River. • The si of this ent therefore signifies that all payments and commitmerrts have 8~S m been met to the satisfaction of all parties Signed at Sebastianthis ..d~..~. y of September 2003 ,- John E. Barry ....... ................................... . Stephen J. Barry .... ....... ~ ........................ Neff Dee ......... .............:................. :~ JOHN AND STEPHEN BARRY 500 Airport Drive West _ ~ Sebastian, FL 32958 Phone: {772} 581.0506 Phoae/Fax: (772) 388.1177 Emait: anribriQmsn.com September 29th 2003 The City Manager City Hall 1225 Main Street Sebastian, FL 32958 Dear Mr_ Moore, This serves to introduce Mr. Neff Dee, who is taking over the lease of the property at 500 Airport Drive Nest Mr. Dee is a former airline. captain and will be a great asset to the airport, as he intends to further develop the, property described above. Wvuid you please draw up an addendum to the lease noting the changes. Your early attention to this matter will be appreciated. Very trctly yours, John E. B ,.--. Stephen J. Barry CONSENT TO ASSIGNMENT OF AII2PORT LEASE BETWEEN CITY AND AEROTRACE DATED SEPTEMBER 27,1995 THE CITY OF SEBASTIAN hereby consents to the assignment of that certain LEASE, made and entered into September 27, 1995, with AEROTRA.CE, INC., to Successor Tenants John E. Barry and Stephen J. Barry, as individuals, and hereby releases said AEROTR.ACE, INC., from its further obligations under sand Lease. DONE this ~~~ay of February, 2003. ATTEST: ~~ ~ w Sally A o, CMC City Clerk Approved as to Farm and Legality for Reliance by the City of Sebastian only: •.. i ~ Ric Stringer, Ci rney CITY OF SEBASTIAN A unicipal rporation Terrence ~ o ,City Manager • .~ 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". 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 WI~R]EAS, 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, inconsideration of the mutual covenants hereinafter provided, the receipt and sufficiency of which are hereby aclrnowledged, the parties have agreed as ,~ .. j follows: '~- I. 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 ofthe 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 Team") by providing the Landlord with written notice of the Tenant's decision to exercise his option no less than one hundred eighty (130) 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 • ' ' t_ ~ 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 ~e purchasing power of the United States dollaz 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 a 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 sum of $1,200 per acre. (b) Tune of the essence. The Tenant agrees promptly to perform, comply with and abide by this Lease, and agrees that tune 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 unmatured rent installments presently due and payable. (2) Partial acceleration. In lieu of the option inSub-paragraph (1) above, • .~ the Landlord may, in like manner, declare as presently due and payable the unpaid rent I, ~ e fixed in the Landlord's said notice to the installments for such. a penod of years as may b 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 t~~di~., 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. (~ iult in ~gyi~i~s. 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 declaze, 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 • •1 • ' , • , ` in Section 2 (above) and on a h7ce 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 airy 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 montlily 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 • leased premises all delivery bills, invoices and related records pertainng 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 hereinabave. 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 Landlord are in error, by more than 2%, then Tenant shall pay the additional amount owing to Landlord plus all- costs of said inspection. 6. IMPROVEMENTS TD THE PREMISES. The Landlord acknowledges that the Tenant is leasing the premises for the purposes descn~ed 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 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 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 fwrlher 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 ar liens arising out of the construction of any such buildings or structures. (c) 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. 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. 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 ceased 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 a 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 ceased 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 • a 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 maybe 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 ar~y 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 thereofl 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 • 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 prenuses as maybe 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 terra 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, fur7nishings, 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, walkways, and parking areas. The insurance coverage to be maintained by the Tenant shall contain limits of not less than $540,000.00 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 muumum 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 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 11 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 insumance required pursuant to this Lease shall be issued by one or mare insurance companies authorized bo 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 amanner ec}ual to or better than the I2 5, • 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) Ln the event the Tenant, wader 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. ENViRONMEEi`ITAL MATTERS. The Tenant hereby agrees to indemnify, defend 13 and hold the Landlord harmless from and against any and all claims, lawsuits, losses, liabilities dame a and erases including, without limitation, clean-up costs and reasonable g s, ~P ( 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 i#s 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 617 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 aze specifically prohibited by this Agreement, so long as all other tenants of the property owned by the Landlord located at the Airport aze prohibited from chazging 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 chazging such fees as it deems necessary or desirous. 19. GOVER:~3MENT SEIZURE. In the event the United States Government, or any agency or subdivision thereof, at any tune during the term of this Lease takes aver the '~~ 14 ,_... •~ operation or use of the airfield and/or Airport which results in the Tenant being unable to o erate under the terms of the Lease, then the Lease may be extended upon mutual agreement p 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. I£ the tatting 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 aztdlor 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 (c) The Tenants 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; i (fj The Tenant or any guarantor of Tenant's obligations hereunder, f ling a petition for banlo:uptcy or being adjudged baxdavpt, insolvent, under any applicable federal or state bankruptcy or insolvency law, or admit that it cannot meet its financial obligations as they became due, or a receiver or trastee 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 (a0) 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 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 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 fiunishing materials or labor to said Tenon or to its a eats or servants, as well as all persons whomsoever, shall be bound >; g by this provision of this Lease. Should any such lien be filed, the Tenant shall discharge the same or by filing a band, or otherwise, as permitted by law. The Tenant shall not be deemed to be the agent of the Landlord so as to confer upon a laborer bestowing labor upon the leased premises, a mechanic's lien upon the Landlord's estate under the provisions of the Florida Statutes, or any subsequent revisions thereof; (1) The liquidation, termination, dissolution ar (if the Tenant is a natural person} the death of the Tenant or all Guarantors of the Tenants 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 aay 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 { l0) days, from the date notice is sent by the Landlord, within which to remedy such default by paying ail 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 effect of creating between the Landlord and the Tenant the relationship of principal and agent or of a partnership or of a joint ventiae 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 grovisions 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 tune 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. OV~JNERSHIP OF TRADE FIXTURES SIGNS AND PERSONAL PROPERTY. At the expiration of the Lease, any and all trade fixhires, 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 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 regularions 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 ox 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 maybe 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, 20 ~ gender, marital status, 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 an the grounds of religion, gender, marital, status, race, color or national origin shall be excluded from participation in, denied the benefits vf, 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 2I, Nondiscrimination in Federally Assisted Programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 19fr4. 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 ar 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 21 secured by this Lease, .and shall be promptly due and payable to the Landlord. _~ All delinquent payments to the Landlord shall beaz 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 auy 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 alI 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 properly, 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 declazed 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 aciaiowiedges 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 maybe 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 maybe 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. BINDIlVG EFFECT, The terms and provisions of this Lease shall be binding on the parties hereto and heir respective heirs, successors, assigns and personal representatives, and the terms of any Addendum attached hereto are incorporated herein. 23 31. APPLICABLE LAW/'i7ENUE. 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 Fedexal law. 32. ATTORNEYS FEES. In any action arising out of the enforcement of this writing, die prevailing party shall be entitled to an award of reasonable attorneys fees and costs, both at trial and all appellate levels. 33. RECORDING. In no event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County, Florida. IN WITNESS WT~REOF, the parties hereto have set their hands and seals the day and year first above written. TENANT: n .Barry CITY OF SEBASTIAN A Municipal Corporation xisting under the Laws of the State of Florida t ~ ,~ l~ oel L. Kofor City Manager 'T'EST: Q,Lb ~~t lL ~ Ka M. 'Halloran, C C/AAE City Clerk Approved as to Form and Content: (~. Q .~_--Q ~ Clifton A. McClelland, Jr. City Attorney 24 Sf'HEDtTLE "A„ This Schedule is a part of that certain Lease between the CITY OF SEBASTIAN and BRIAN E. BARRY dated A= ~ ~ - ~'s` far leased premises at the Sebastian Municipal Airport. LEGAL DESCRIPTION OF THE PROPERTY: PEENING GRANT THAT>:CERTAIN PARCEL LYING IN SECTION 29 DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF SAID SECTION 29, RUN S44 2.1'28"E, 818.81 FEET ON SC~[TTHWEST BOUNDARY OF SECTION 29 OF CHINE OF ROSELAND ROAD; THENCE N04 4$'S9"W, 514.65 FEET ON SAID CENTERLINE; THENCE N89 50`46"E, 644.46 FEET; THENCE N04 09'14"W, 1256 FEET TO TRUE POINT OF BEGINNING; THErtCE 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; 'FENCE S$9 50'46"W, 425.00 FEET; "THENCE S00 09' 14"E, 307.00 FEET TO TRUE POINT OF BEGINNING. CONTAINING 3.00 ACRES, MORE OR LESS. (LEGAL DESCRIPTION PROVIDED BY OTI~RS.) 1 • ~ ~ ~~ et This Schedule is a part of that certain Lease between the CITY OF SEBASTIAN and . _:~rian E. Barry dated for leased premises at the Sebastian Municipal Airpoxt. ~~ 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 T nprovement Two Aixplane 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 fixtures, and storage space undex 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. Sixty days after the City Manager furnishes written notice to tlae Tenant that road access is vailable. 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 taws of the State of Florida ~ ~, el L. Koford City Manager A ST: C ~~ Ka M. O' alloran, C C A~~~.'Fl City Clerk Approved as to Form and Content: Q. Clifton A. McClelland, Jr. City Attorney . f~wobnet,~ l«t,. A DENDIIM TO_I~EASE This Addendum is made and entered into this ~h day of October 1996, by and between the City of Sebastian, a political subdivision of the State of Florida ("Landlord"), 1225 Main Street, Sebastian, Florida, 32958, and Brian E. Barry, 166 Abeto Terrace, Sebastian, FL ("Tenant"). WHEREAS, Landlord and Tenant have entered into that certain Lease dated September 27, 1995, ("Lease"); and WHEREAS, Landlord and Tenant have agreed to modify and amend the Lease as set forth herein below. NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord and Tenant agree as follows: 1. The foregoing recitals are true and correct and are hereby incorporated herein by reference. 2. All capitalized terms used herein shall have the same meaning ascribed to them in the Lease. 3. In the event of a conflict between the terms of this Agreement and the terms of the Lease, the terms of this Agreement shall control. 4. Tenant has formed Aerotrace, Inc., a corporation, under the laws of the State of Florida, for the purpose of doing business at the premises covered by the Lease. The shareholders and percentage of shareholders of Aerotrace, Inc., are as follows: Brian E. Barry 10~ '~ Jahn E. Barry 3Q$ Stephen J. Barry 30$ Anna Marie Barry 30$ The parties agree that Aerotrace, Inc. will be substituted for Brian E. Barry as the tenant under the Lease. 5. Tenant and Landlord agree that an easement for drainage purposes shall be reserved for the City as a public drainage easement on the southerly 10 feet of the easterly 195 feet of that property described in SCHEDULE "A" which is a part of that Lease between Tenant and Landlord dated, September 27, 1995. 6. Except as modified hereby, all other terms and conditions of the Lease shall remain in full farce and effect. IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of the day and year first above written. Bria y City of Sebastian By : / cJ. ~-~-- Thomas W. Fr e City Manager Aerotrace,'Inc. r By: arry President 1 , /AAE Ca ty Clerk a~rTEST ~' ` ~ r Q.K..-~v Kat ~ n 0' i:alloran CMC (Seal) Approved as to Form and Content: Valerie F. Settles, City Attorney