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HomeMy WebLinkAboutR-96-88 RESOLUTION NO. R-96-88 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO SIGN AND CITY CLERK TO ATTEST, ON BEHALF OF THE CITY, AN AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF SEBASTIAN AND GOLDEN HORN AVIATION, INC. (FORMERLY JACOBSON AIR-AG, INC.); PROVIDING FOR REPEAL OF RESOLUTIONS OR PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Golden Horn Aviation, Inc. (formerly Jacobsen Air-Ag, Inc.) wishes to renew its lease with the City of Sebastian; and WHEREAS, the City Council of the City of Sebastian, after review of the proposed lease agreement between the City of Sebastian and Golden Horn Aviation, Inc., has determined that it is in the best interest of the City to enter into the Lease Agreement whereby the City shall lease certain real property located at the Sebastian Municipal Airport to Golden Horn Aviation, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY , OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that: Section 1. AGREEMENT. The City Manager and the City Clerk of the City of Sebastian, Indian River County, Florida, are hereby authorized to sign, on behalf of the City, the proposed Lease Agreement which is attached to this Resolution as Exhibit "A" and by this reference is incorporated herein. Section 2. CONFLICT. All resolutions or parts of resolutions in conflict herewith are hereby repealed. 1 Section 3. EFFECTIVE DATE. This Resolution shall take effect immediately upon its adoption. The foregoing Resolution was moved for adoption by Councilmember /"4//J1Y ~..J f)/I/Y7'I) The motion was seconded by Councilmember and, upon being put into a vote, the vote was as follows: Mayor Louise Cartwright Vice-Mayor Walter Barnes Councilmember Norma J. Damp Councilmember Raymond Halloran Councilmember Richard Taracka This Resolution was duly passed and adopted by the City Council of the City of Sebastian, Indian River County, Florida, at its regular meeting on the /3tt day of /7/ H~~} , 1996. CITY OF SEBASTIAN, FLORIDA \ bY:,~ ' '~ ) ,'It Jv~,* Lo . se R. CartwrIght, Mayor . g:biTEST;: ~ ':. ~ ~~~,f!1(jifttii (Seal) Approved as to Form and Content: U o.R...i.-1.-<~ Valerie F. Settles City Attorney 1-. ~4-. ~ ~ ..J '1'-b_o, 2 AIRPORT LEASE THIS Airport Lease ("Lease"), is hereby made and entered into as of this~day of November, 1996, by and between the City of Sebastian, a municipal corporation existing under the laws of the State of Florida, ("Landlord"), and Golden Horn Aviation, Inc., a Florida corporation ("Tenant"). The Landlord and the Tenant are sometimes collectively referred to herein as the "Parties". WIT N E SSE T H WHEREAS, the Landlord is the owner of certain property within in the City of Sebastian, Indian River County, Florida, located at 400 West Airport Drive, Sebastian, Florida ("Property"), which is being used for the operation of the Sebastian Municipal Airport ("Airport"); and WHEREAS, portions of the Property are available for use for those activities consistent with or in support of aviation activity; and WHEREAS, Tenant is currently the lessee of a portion of the Property pursuant to a lease between the Landlord and Jacobson Air- Ag, Inc. of Florida, ("Lease") dated November 15, 1976, (Existing Premises") ; and WHEREAS, Articles of Amendment to the Corporation were filed with the Florida Secretary of State on January 30, 1981 changing the corporate name of Jacobson Air-Ag, Inc., to Golden Horn Aviation, Inc.; and 1 WHEREAS, Golden Horn, Inc., desires to renew the existing Lease; and WHEREAS, the Existing Premises lies within the path of Runway 9-27, which is to be reconstructed and reactivated pursuant to the Master Plan prepared by Williams, Hatfield and Stoner, dated August 13, 1992 ("Master Plan") adopted by the City of Sebastian, Florida; and WHEREAS, the Master Plan calls for the relocation of the Existing Premises to a location outside of any glide slopes or approach zones and clear zones of the Airport; and WHEREAS, it has not been determined when such reconstruction and reactivation of Runway 9-27 will occur, due to funding conditions of applicable local, state and federal sources; and WHEREAS, it is desirable to maintain occupancy of the Existing Premises and continue the collection of rent from Golden Horn,. Inc., until the City receives said Master Plan funding; and WHEREAS, it is in the best interest of the Airport to renew the Lease, subject to an agreement by Tenant to relocate upon reasonable notice; and WHEREAS, the Landlord has agreed to lease the Existing Premises, subject to certain terms and conditions consistent with or in support of the current aviation use of the Property; and WHEREAS, the Tenant desires to lease the same from the Landlord. 2 NOW, THEREFORE, in consideration of the mutual covenants hereinafter provided, the receipt and sUfficiency of which are hereby acknowledged, the parties have agreed as follows: 1. Recitals. The above recitals are hereby incorporated herein by this reference. 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 the Existing Premises which are described more particularly on Exhibit "A" attached hereto and incorporated by this reference. The Existing Premises consist of four acres approximately as designated on a survey prepared by Lloyd and Associates of Vero Beach , Florida dated May 7, 1976, and attached to the original lease dated November 15, 1976 on file in the Sebastian City Clerk's office. Tenant agrees that Landlord shall reserve unto itself an easement for emergency and official airport access only, and not for general public access, as described in Exhibit "A". Unless otherwise defined, the term "Leased Premises" shall refer to the premises occupied by the Tenant. 3. Term of Lease. The term of the Lease shall be for a period of twenty (20) years commencing sixty (60) days after the date which the Tenant executes the Lease (the "Commencement Date") and shall end at 11:59 E.D.T. on the date of expiration of the last number of years constituting the Lease Term from the first 3 day of the first calendar month succeeding the Commencement Date. So long as the Tenant is not in default of any term, condition or covenant provided in this Lease, including any addendum hereto, the Tenant shall have the option to renew this Lease for one (1) additional twenty (20) year term (the "Option Term") by providing the Landlord with written notice of the Tenant's decision to exercise its option not less than one hundred eighty (180) days and not more than two hundred ten (210) days prior to the expiration of the initial term of this Lease. All of the terms, conveyances and conditions of this Lease shall apply during the initial and the Option Term; provided, however, the annual rent during the initial and the Option Term shall be adjusted on the Rental Adjustment Date, as described herein. 4. Relocation of Leased Premises. Following the Landlord's receipt of adequate funding for the re-activation plan for Runway 9-27, as depicted by the Master Plan for Sebastian Municipal Airport and contained with the Capital Budget of the City of Sebastian, the Landlord shall construct a comparable building on an alternative site at the Airport, comparable in size with the Existing Premises and with appropriate access with comparable frontage on an existing taxiway of the Airport. ("New Premises") Landlord shall give Tenant written notice of completion of the New Premises. Tenant shall, within sixty (60) days from receipt of notice, relocate its business to the New Premises. 4 5. Rent. Tenant covenants and agrees to pay Landlord the Minimum Annual Rent of Thirteen Hundred and Seven Dollars ($1,307) per acre, payable in twelve (12) monthly installments ("Rental Payments"). The Minimum Annual Rent shall commence to accrue and be due and payable on the Commencement Date. The first Rental Payment date shall be the first day of the first full calendar month and shall include a prorated amount applicable to the period from the rental commencement date to the rental payment date, if applicable. In view of the fluctuating purchasing power of the united States dollar, the parties hereto, desiring to adjust the rent hereunder to such purchasing power, agree that such adjustments shall be made on the Rental Adjustment Dates as herein provided so as to reflect as nearly as possible such fluctuations. The parties hereto adopt as the standard for measuring such fluctuations the United States Department of Labor, Bureau of Labor Statistics, revised Index of Consumer Prices. The index for the month prior to the commencement date shall be the basic standard. The first adjustment shall be made on November 1, 2001 and shall be effective for five (5) years. Thereafter, adjustments will be made annually and will be effective for the then ensuing lease year. Rent adjustments shall be made by multiplying the Minimum Annual Rent by a fraction, the numerator of which shall be the next Index figure (such figure being the Index figure for the month 5 immediately preceding each Rental Adjustment Date) and the denominator of which shall be the Basic Standard; and the result thus obtained shall be the then applicable annual rent to be paid in monthly installments over the ensuing lease year period. In no event shall the Minimum Annual Rent (as adjusted by the foregoing formula) for a lease year ever be less than the Minimum Annual Rent for the prior lease year. It is understood that the above Index is now being published monthly by the Bureau of Labor Statistics of the United States Department of Labor. Should said Bureau of Labor Statistics change the manner of computing such Index, the Bureau shall be requested to furnish a conversion factor designated to adjust the new Index to the one previously in use and made on the basis of such conversion factor. Should publication of said Index be discontinued by said Bureau of Labor and Statistics, the such other Index as may be published by such Bureau most nearly approaching said discontinued Index shall be used in making the adjustments herein provided for. Should said Bureau discontinue the publication of any Index herein contemplated, then such Index as may be published by another United States Governmental Agency as most nearly approximates the Index herein first above referred to shall govern and be submitted as the Index to be used, subject to the application of an appropriate conversion factor to be furnished by the government agent publishing the adopted Index. If such governmental agency 6 will not furnish such conversion factor, then the parties shall agree upon a conversion factor or a new Index; and, in the event agreement cannot be reached as to such conversion factor or such new Index, the parties hereto agree to submit the matter to arbitrators, in accordance with the rules of the American Arbi tration Association and judgment or decree upon the award rendered by the arbitrators may be rendered in any court having jurisdiction thereof. In no event, however, shall the Minimum Annual Rent decrease below the sum of Thirteen Hundred Seven Dollars ($1,307.00) per acre. In the event that any Rental Payment due hereunder shall not be paid five (5) days or more when due, in addition to, and not in substitution for, any other rights Landlord may have, Tenant shall pay Landlord a late payment fee of 5% of the amount of such late Rental Payment. This charge is to be considered as additional rent and shall not be considered interest. If any part of the rental payment or other payments due hereunder shall remain due and unpaid ten days after written demand by Landlord, 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 the balance of the entire unpaid rent for the entire term of the Lease 7 to be accelerated and to be immediately due and payable. Tenant shall have fifteen (15) business days from date of said notice to cure default. (2) Partial acceleration. In lieu of the option in Sub-paragraph (1) above, the Landlord may, in like manner, declare as presently due and payable the unpaid rent installments for such a period of years as may be fixed in the Landlord's said notice to the Tenant. The exercise of this option shall not be construed as a splitting of a cause of action, nor shall it alter or affect the obligations of the Tenant to pay rent under the terms of this Lease for the period unaffected by said notice. (3) Other remedies. In addition to the option herein granted above, the Landlord may exercise any and all other options available to it hereunder, which options may be exercised concurrently or separately with the exercise of the above options. (4) Tax. All payments made by Tenant under this Lease shall be accompanied by any applicable sales or rental tax. 5. Aircraft Fuel Dispensing. Lessee is not currently dispensing aircraft fuel. Should Lessee desire to dispense fuel in the future, the Lessee may request to amend the Lease. 6. Improvements to the Premises. The Landlord acknowledges that the Tenant is leasing the premises for the purposes of 8 aircraft refurbishing and rebuilding, and that in order to utilize the Leased Premises for this purpose, the Tenant desires to use thereon a building and other improvements, previously constructed by the Tenant upon the Leased Premises. (1) The Tenant shall have the right to use the Leased Premises for purpose of aircraft refurbishing and rebuilding provided that any such uses do not in any way curtail the use of the airport facilities in their usual operations. The Tenant covenants and agrees that all such uses shall be in accordance with the local and state codes, regulations and requirements as well as in accordance with all requirements of the "FAA". All buildings, structures, signage and improvements shall comply with the height restrictions contained in the Federal Aviation Regulation Part 77. Tenant further covenants and agrees that it will maintain the structure at Tenant's expense in a condition equal to or better than the present condition of the existing building, ordinary wear and damage by the elements exempted. (2) The Tenant shall indemnify, defend and hold the Landlord harmless from any actions, claims, losses, damages or liens resulting from acts of Tenant, its agents, employees or contractors in performance of the uses on or to the Property. (3) 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 9 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 promptly repaired and the Leased Premises shall be fully restored to its original order and condition by Tenant forthwith at its expense. Any such personalty not removed at or prior to such termination shall become the property of the Landlord. 7. Use of Leased Premises. The Tenant agrees that no use 10 of the Leased Premises will be allowed or conducted in such a manner as to constitute a nuisance or a hazard and that, in connection with the use of the Leased Premises including the operation, take-off and landing of aircraft thereon, the Tenant and its agents, employees, contractors, licensees, invitees and other persons involved with the use of the Leased Premises will observe and comply with all applicable laws, ordinances, orders and regulations prescribed by lawful authorities having jurisdiction over the Leased Premises and the activities thereon. The Tenant agrees that that primary use of said lease premises shall be for a business engaged in rebuilding aricraft, maintenance and repair. The Lessee shall also have the non- exclusive right under this Lease to provide for the sale of aviation gas and oil, flight instructions, charter and rental flights of aircraft, the leasing of hangar space and/or tie down service, conduct sales and service of aircraft, and to provide any and all services and products not conflicting with Airport operation in compliance with all ordinances of the City of Sebastian and FAA requirements. Any use of the Leased Premises other than those specifically stated above are expressly prohibited unless approved in subsequent amendments to this Lease. No other use may be conducted by the Tenant without the express written consent of the Landlord. Such consent may be withheld by the Landlord for any reason. All aeronautical businesses and activities must be 11 certified and licensed by the FAA in the appropriate categories of their specific operation. S. 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, not to be reimbursed by the Landlord, to maintain all of the improvements, including, but not limited to, buildings (and all parts thereof exterior and interior) and the parking and service areas located on the Leased Premises, in a good state of maintenance in good working order and repair and proper 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 and ordinances. Due to proposed reactivation of Runway 9-27, the Tenant may not erect any additional improvements, alterations or major renovations to the existing improvements on the Existing Premises. 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 maintenance activities. 9. utilities. The Tenant shall be responsible for all utilities of whatever kind or sort, used, installed or consumed in or upon the leased premises including, but not limited to, 12 electricity, lights, water, sewer, heat, janitor service or any other utility or service consumed in connection with the Lease Premises. The Landlord shall have no liability for 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. Tenant agrees to maintain each and every sign as may be approved by the Landlord in good condition and working order. 11. Taxes. The Tenant shall pay during the Lease term all ad valorem taxes, assessments or any other charge or payment levied or assessed against the leased premises by any governmental agency having, or purporting to have, jurisdiction thereover, 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. 13 . Liabili ty and Property Insurance. The Tenant shall provide and keep in force, at its own expense, during the term of 13 this Lease, comprehensive general public liability insurance in companies acceptable to Landlord with respect to the Leased Premises, including those portions of the said premises used for driveways, walkways, and parking areas and sufficient to cover such indemnification and naming as insured both Landlord and Tenant with minimum limits of not less than $500,000.00 for injury or death of anyone person and $1,000,000.00 for injury or death for anyone accident, together with $500,000.00 for damage to property. Tenant agrees that should there be an addition to the allowable use and occupancy under this Lease, 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. All policies described in this Lease shall contain an endorsement that the insurer will not cancel or materially alter the coverage of such policy or policies without giving thirty (30) days prior written notice thereof to the Landlord and shall name the Landlord as an additional insured. The Tenant's insurance policy is always primary. Tenant shall promptly deposit the original policy or 14 policies of such insurance with the Landlord. 14. 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 (broad form), as the Landlord deems necessary and appropriate, covering the Leased Premises, providing protection against any peril included within the classification "Fire and Extended Coverage" and ~Vandalism and Malicious Mischief". Tenant agrees that it shall not keep, use, sell or offer for sale in or upon the Leased Premises any article or thing which may be prohibited by its standard form of fire insurance policy. Tenant agrees to pay any increase in premiums for fire and extended coverage insurance that may be charged during the term of this Lease on the amount of such insurance which may be carried by the Landlord on the Leased Premises or the building(s) of which it is a part, resulting from a violation of the foregoing, whether or not the Landlord has consented to or otherwise waived the same. In determining whether increased premiums are the result of the Tenant's use of the Leased Premises, a schedule, issued by the organization in making the insurance rate on the Leased Premises, showing the various components of such rate, shall be conclusive evidence of the several items and charges which make up the fire insurance rate of the Leased Premises. In the event that the Tenant's occupancy causes any increase 15 of premium for the fire, boiler and/or casualty rates on the Leased Premises or any part thereof above the rate for the least hazardous type of occupancy legally permitted in the Leased Premises, the Tenant shall pay the additional premium on its insurance policies by reason thereof. Each year if applicable, the Tenant shall provide to the Landlord a certificate of such insurance with evidence of the payment of the premium therefor. The Landlord shall have no obligation to keep the buildings and improvements on the leased premises insured nor shall the Landlord have any obligation to insure any personal property used in connection with the Leased Premises. Any policy or policies of insurance required pursuant to this Lease shall be issued by one or more insurance companies authorized to engage in business in the State of Florida and which have a rating of at least A+ by A.M. Best and Company and at least an AA rating by both Moody's and Standard and Poors. All policies described in this Lease 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. Should the Tenant fail to obtain the requisite insurance policies as outlined in this Lease, the Landlord may obtain the insurance for the Tenant at the Tenant's expense. 15. Damage or Destruction of Improvements by Fire or other 16 Casual ty. In the event the building and/or other improvements erected on the premises are destroyed or damaged by fire or other casualty, Tenant agrees that it will cause said building and/or other improvements to be replaced or said damage to be repaired as rapidly as practicable. The Landlord may abate the Tenant's rent for the period of time more than 80% of the principal building, if any, is unusable. In the event the Tenant elects to repair and/or replace the building and other improvements on the leased premises, the Landlord shall have no claims against any insurance proceeds paid to the Tenant on account of such damage and/or destruction nor shall the Landlord have any responsibility or obligation to make any expenditures toward the repair and/or replacement of the building and other improvements on the leased premises, provided, however, that all repaired and/or replaced building and other improvements are repaired/replaced in a manner equal to or better than the building/improvement being repaired or replaced. (1) 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; (a) To continue to Lease by mutual agreement between Tenant and Landlord; 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 17 proceeds to be the sole property of the Landlord; or (b) To cancel the Lease; if the Landlord elects to cancel the Lease, the Landlord shall be entitled to that portion of the insurance proceeds paid as a result of such damage and/or destruction to the building and other improvements on the leased premises, the Tenant shall be entitled to the remainder, if any, of the insurance proceeds. (2) In the event the Tenant, under its option, elects not to repair and/or replace the building and improvements upon the Leased Premises, the Landlord shall remove all remaining portions of the damaged or destroyed building and improvements and all rubble or debris resulting therefrom. The Tenant may seek reasonable reimbursement for building removal and site clean-up as may be provided for within the appropriate insurance policies. 16. Indemnification. Tenant shall and does indemnify, defend the Landlord and save it harmless from and against any and all claims, actions, causes of action, damages, demands, liabilities, claims, losses or litigation arising out of or connected with the Tenant's occupancy or use of the Leased Premises and the use of the leased premises by tenant's agents, employees, contractors, licensees, and invitees, including all court costs and attorney's fees at all tribunal levels incurred by the Landlord in connection with any and all loss of life, personal injury and damage to property occurring in or about of arising or 18 relating to, directly or indirectly in any manner whatsoever, the Leased Premises adjacent sidewalks and loading platforms, or areas, if any, or occasioned wholly or in part by any act or omission Tenant, its agents, contractors, customers, principals, directors, officers or employees. This paragraph 16 shall survive the termination or cancellation of the Lease for occurences during the terms of the Lease. 17. Environmental Matters. Tenant shall and hereby does indemnify, defend the Landlord and save it harmless from and against any and all claims, causes of action, lawsuits, losses, liabilities, damages, and expenses (including, without limitation, clean-up costs and reasonable attorney's fees) resulting directly or indirectly from, out of or by reason of (i) any hazardous or toxic materials, substances, pollutants, contaminants, petroleum products, hydrocarbons or wastes being located on the property and being caused by the Tenant or its sub-Tenants, agents, employees, con tractors, licensees, and invi tees. This Paragraph 17 shall survive the termination or cancellation of the Lease for occurrences during the Lease term. 18. Hazardous Material. Tenant shall not cause or permit any Hazardous Material excluding petroleum based products utilized in Tenant's business and complying with all applicable laws to be brought upon, kept or used in or about the Lease Premises by Tenant, its agents, employees, contractors or invitees, without 19 the prior written consent of Landlord. Tenant hereby indemnifies, defends and holds Landlord harmless from any and all claims, judgement, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Lease Premises, damages for the loss or restriction on use of rentable or usable space or if any amenity of the Leased Premises damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys' fees at all tribunal levels and whether or not suit is instituted, consultant fees and expert fees) which arise during or after the lease term as a resul t of Tenant's breach of the obligations stated in the preceding sentence, or if the presence of Hazardous Material on the Leased Premises caused or permitted by Tenant results in contamination of the Leased Premises, or if contamination of the Leased Premises by Hazardous Material otherwise occurs for which Tenant is legally liable to Landlord for damage resulting therefrom. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on or under the Leased Premises. Without limiting the foregoing, if the presence of any Hazardous Material on the Leased Premises caused or permitted by Tenant results in any contamination of the Leased 20 Premises, Tenant shall promptly take all actions at its sole expense as are necessary to return the Leased Premises to the condition existing prior to the introduction of any such hazardous Material to the Leased Premises; provided that Landlord's approval of such actions shall first be obtained, which approval shall not be unreasonably withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Leased Premises. Landlord may cause environmental audits of the Leased Premises to be conducted during the Lease Term and Tenant will pay the cost on request. As used herein, the term "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of Florida or the United States Government. The term "Hazardous Material" includes, without limitation, any material or substance which is (i) defined as a "hazardous waste", under Section 403.703 (21), Florida Statutes (1987); (ii) substance" under Section 403.703 (29) defined as a "hazardous Florida Statutes (1987); (iii) defined as a "toxic or otherwise hazardous substance" under Section 403.771 (2) (c), Florida Statutes (1987); (iv) defined as a "toxic substance" under Section 442.102 (21), Florida Statutes (1987); (v) petroleum; (vi) asbestos; (vii) defined as a "hazardous substance" under Section 501.065 (5), Florida Statutes (1987); (viii) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. 21 S 1317); (ix) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. S 6901 et seq. (42 U.S.C. S 6903); or (x) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42, U.S.C. S 9601 et seq. (42 U.S.C.S 9601). 19. 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 paragraph 8 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. 20. Landing Fees. Landing or any other type of use of runway fees are specifically prohibited by this Agreement, so long as all other Tenants of the property owned by the Landlord located at the Airport are prohibited from charging any such fees, as the use of the Airport is for the general public. Nothing in this Lease shall act to prohibit the Landlord from charging such fees as it deems necessary or desirous. 21. Government Seizure. In the event the United States Government, or any agency or subdivision thereof, at any time during the term of this Lease takes over the operation or use of 22 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 or Tenant, may terminate this Lease. 22. Eminent Domain. The exercise of the power of eminent domain by a governing body shall not void or impair the Lease unless 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 and upon the happening of such event, the Lease shall cease and possession terminate as of the date of being required by condemning authority. Nothing herein shall prevent the Landlord and the Tenant from seeking any and all damages sustained from the condemning authority by reason of the exercise of power of eminent domain. 23. Events of Default. As used in this Lease, the term, "event of default", shall mean any of the following: (l) The failure of the Tenant to perform or abide by any term, provision, covenant, agreement, undertaking, obligation or condition of this Lease. (2) The Tenants failure to pay any consideration, to the Landlord, required by this Lease; 23 (3) The taking of the leasehold interest of the Tenant hereunder pursuant to an execution on a jUdgment; (4) The Tenants abandonment of any substantial portion of the Leased Premises. "Abandonment" shall be determined by the Landlord, but shall as a minimum be the unnoticed apparent vacation or closure of the permitted uses as provided for within this Lease for a period greater than ninety (90) days; (5) The filing of a petition by or against the Tenant for adjudication as a bankrupt for or insolvent, under any provisions of applicable federal or state bankruptcy or insolvency laws, or an admission that it cannot meet its financial obligations as they become due, or the appointment of a receiver or trustee for all or substantially all of the assets of Tenant. (6) 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; (7) Any act of Tenant or Tenant's agents, representatives or employees which results in a lien being filed against the leased premises or the property which is not released of record within sixty (60) 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 24 Lease, and that no third person shall ever be entitled to any lien, directly or indirectly, derived through or under the other party, or its agents or servants, or on account of any act of omission of said other party. All persons contracting with the Tenant or 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; (8) The liquidation, termination, dissolution or Tenant is a natural person) the death of the Tenant (if the or all Guarantors of the Tenant's obligations hereunder; (9) The Tenant's failure for more than one hundred twenty (120) consecutive days, to continuously conduct and carryon in good faith the type of business for which the Leased Premises are leased; 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 25 upon the Tenant, the Landlord shall give written notice of such event of default to the Tenant, which thereafter shall have thirty (30) days, from the date notice is sent by the Landlord, within which to remedy or correct such default, unless such default is the failure to pay rent, in which case the Tenant shall have fifteen (15) business days, from the date notice is sent by the Landlord, within which to remedy such default by paying all rent due. 24. Default by Landlord. In the event of a breach or default of this Lease by the Landlord, Tenant may seek damages or equitable relief for the breach, as provided by law. 25. 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. 26. 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 26 below: Landlord: city of Sebastian Attn: city Manager 1225 Main street Sebastian, FL 32958 Tenant: Golden Horn Aviation, Inc. 400 Airport Drive West Sebastian, FL 32958 Attention: Warren B. Bradshaw 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. Tenant shall promptly pay all rentals and other charges and render all statements herein prescribed at Landlord's Address, as set forth above, or to such other person or corporation, and at such other place, as may be designated from time to time by Landlord in writing. If Landlord shall pay any monies or incur any expenses in correction of any violation of any covenant, undertaking, or agreement of Tenant as is set forth in this Lease, the amounts so paid or incurred shall, at Landlord's option and on notice to Tenant, be considered additional rent payable by Tenant with the next installment of rent thereafter to become due and payable and may be collected or enforced as by law provided in respect to payment of rent. All payments due under this Lease shall be made, at Landlord's option, the exercise of which shall be reasonable, in cash (United States currency) or by cashier's 27 check issued by a national banking association located in Indian River County; all checks shall be received subject to clearance. 27. 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. 28. Ownership of Trade Fixtures, Signs and Personal Property. At the expiration of the Lease, any 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 28 Tenant's sole cost. In case of a judicially determined breach of this Lease by the Tenant, or the termination of the Lease, or any extension hereunder, that may be granted, the Tenant agrees to immediately surrender possession of said facilities, and all the buildings, edifices, etc. that are constructed by or on behalf of Tenant. The facilities, buildings, edifices, etc. shall then become the property of the Landlord. 29. 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 29 above the surface of the Leased Premises, together with the right to cause in such airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used, for navigation or flight in the airspace, and for use of said airspace for landing on, taking off from, or operating on the Airport. 30. Nondiscrimination. The Tenant for itself, its personal representatives, successors in interest and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (i) no person on the grounds of religion, gender, marital status, race, color or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subject to discrimination in the use of the Tenant's facilities; (ii) that in the construction of any improvements on, over or under the leased premises and the furnishing of services thereon, no person on the grounds of religion, gender, marital status, race, color or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; (iii) that the Tenant shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act. 30 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 AI (Airport, Industrial), pursuant to the applicable governmental ordinances. 31. Additional Rights of Landlord. The Landlord shall have the option, without waiving or impairing any of its rights hereunder, to pay any sum or perform any act required of the Tenant, and the amount of any such payment and the value of any such performance, together with interest thereon, shall be secured by this Lease, and shall be promptly due and payable to the Landlord. Landlord shall have no liability whatsoever for any loss or damage resulting in any way or manner from such action. All delinquent payments with a delinquency of ten (10) days or more to the Landlord shall bear interest at the rate of 18% per year from date the payments are due to the date of payment. Said interest shall be calculated on a daily basis and shall be due and payable when billed. 31 In the event of the Tenant's breach of any of the provisions of this Lease, the Landlord shall thereupon have a lien upon all revenues, income, rents, earnings and profits from the leased premises as additional security to the Landlord for the Tenant's faithful performance of each of the terms and provisions hereof, and to secure payment of all sums owing to the Landlord hereunder. Such liens shall be superior in dignity to the rights of the Tenant and any of its creditors or assignees or any trustee or receiver appointed for the Tenant's property, or any other person claiming under the Tenant. Upon the Landlord's termination of the Tenant's rights under this Lease by reason of the Tenant's default, all such revenues, income, rents, earnings and profits derived or accruing from the leased premises from the date of such termination by the Landlord shall constitute the property of the Landlord, and the same is hereby declared to be a trust fund for the exclusive benefit of the Landlord and shall not constitute any asset of the Tenant or any trustee or receiver appointed for the Tenant's property. The provisions of this paragraph shall be effective without the Landlord's re-entry upon the leased premises or repossession thereof, and without any judicial determination that the Tenant's interest under said lease has been terminated. The Tenant acknowledges that the Landlord has adopted an Airport Master Plan and the Tenant covenants that it 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 32 premises nuisance. 32. Entire Agreement. This Lease contains all of the understandings by and between the parties hereto relative to the leasing of the premises herein described, and all prior or contemporaneous agreements relative thereto have been merged herein or are voided by this instrument, which may be amended, modified, altered, changed, revoked or rescinded in whole or in to constitute or become a public or private part only by an instrument in writing signed by each of the parties hereto. 33. 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. 34. 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. 33 35. 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. 36. 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. 37. 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. 38. Recording. In no event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County, Florida. 34 . IN WITNESS WHEREOF, the Parties hereto have set their hands and seals the day and year first above written. ATTEST: --~~'rc&--iC"-117 (\HtUlj.,~ Kathryn M. O'Halloran, CMC/AAE (SEAL) ( " f "-- ( " Approved as to Form and Content: J,:;J!-Uf~? f~ ~ ~..J;f~/1 Iu, Valerie F. Settles, J '. J city Attorney //i-'-#~~iA..J . CITY OF SEBASTIAN A Municipal Corporation Existing under the laws of State of Florida y fl./~ ' ./1 hl'/-,.4--'" I/V'" ~?U Thomas W. Frame I City Manager ' GOLDEN HORN AVIATION, INC. J B~~ !5 tfl;;~ Warren B. Bradshaw President 35 . EXHIBIT "A" LEGAL DESCRIPTION Beginning at the most westerly corner of Section 29, Township 31 South, Range 38 East, in the Fleming Grant according to plats made by S. B. Carter, filed and of record in the offices of the Clerks of the Circuit Court of Brevard, St. Lucie and Indian River Counties, Florida and described as follows: Begin at said westerly corner of said Section 29 and run South 44 degrees, 21 minutes, 28 seconds East, 818.81 feet along the Southwest boundary of Section 29 to the centerline of Roseland Road; Thence North 4 Degrees 48 Minutes, 59 Seconds West, 514.65 feet on said centerline; Thence North 89 Degrees, 50 Minutes, 46 Seconds East 644.46 Feet to the True Point of Beginning; Thence North 0 Degrees, 9 Minute, 14 Seconds West 235.00 Feet; Thence North 89 Degrees, 50 Minutes, 46 Seconds East 425.00 Feet to a point which lies 75 Fee west of the centerline of an existing airport taxiway; Thence South 0 Degrees, 9 Minute, 14 Seconds East 410.00 Feet parallel to the centerline of said taxiway; Thence South 89 Degrees, 50 Minutes, 46 Seconds West 425.00 Feet; Thence North 0 Degrees, 9 Minute, 14 Seconds West 175.00 Feet to the True Point of Beginning; Containing 4 acres more or less. ACCESS EASEMENT DESCRIPTION Beginning at the most westerly corner of Section 29, Township 31 South, Range 38 East, in the Fleming Grant according to plats made by S. B. Carter, filed and of record in the offices of the Clerks of the Circuit Court of Brevard, St. Lucie and Indian River Counties, Florida and described as follows: Begin at said westerly corner of said Section 29 and run South 44 degrees, 21 minutes, 28 seconds East, 818.81 feet along the Southwest boundary of Section 29 to the centerline of Roseland Road; Thence North 4 Degrees 48 Minutes, 59 Seconds West, 514.65 feet on said centerline; Thence North 89 Degrees, 50 Minutes, 46 Seconds East 644.46 Feet; Thence South 0 Degrees, 9 Minute, 14 Seconds East 175.00 feet to the Point of Beginning; Thence North 89 Degrees, 50 Minutes, 46 Seconds East 425.00 Feet to a point which lies 75 Fee west of the centerline of an existing airport taxiway; Thence North 0 Degrees, 9 Minute, 14 Seconds West 50 Feet parallel to the centerline of said taxiway; Thence South 89 Degrees, 50 Minutes, 46 Seconds West 425.00 Feet; Thence South 0 Degrees, 9 Minute, 14 Seconds East 50.00 feet to the Point of Beginning; Containing .4878 acres more or less. 36