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HOME OF PELICAN ISLAND
SPECIAL CITY COUNCIL MEETING AND
ATTORNEY-CLIENT SESSION
WEDNESDAY, JULY 11, 2007 - 5:30 PM
AGENDA
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
1. CALL PUBLIC MEETING TO ORDER
2. ROLL CALL
3. PUBLIC REQUEST BY CITY ATTORNEY FOR A CLOSED ATTORNEY-CLIENT SESSION
TO DISCUSS SETTLEMENT OF PENDING LITIGATION IN THE MATTER OF J ~ S
AVIATION VS. CITY OF SEBASTIAN
4. CITY COUNCIL WILL RECESS THIS PUBLIC MEETING TO COMMENCE A CLOSED
ATTORNEY-CLIENT SESSION AS REQUESTED ABOVE
Estimated Length of the Attorney-Client Session: 45 MINUTES
Names of Persons Attending: Mayor Andrea Coy
Vice-Mayor Sal Neglia
Council Member AI Paternoster
Council Member Dale Simchick
Council Member Eugene Wolff
City Manager, AI Minner
City Attorney, Rich Stringer
Certified Court Reporter
5. REOPENING OF PUBLIC MEETING; ANNOUNCE END OF ATTORNEY-CLIENT SESSION
6. CONSIDERATION OF PROPOSED SETTLEMENT OF PENDING LITIGATION IN THE MATTER
OF J ~ S AVIATION VS. CITY OF SEBASTIAN
7. ADJOURNMENT OF PUBLIC MEETING
ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE WITH RESPECT TO ANY MATTER
CONSIDERED AT THE PUBLIC PORTION OF THE MEETING WILL NEED A RECORD OF THE PROCEEDINGS
AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS /S MADE, WHICH
RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL /S TO BE HEARD.
(286.0105 F.S.)
IN COMPLIANCE W/TH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL
ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330
AT LEAST 48 HOURS /N ADVANCE OF THIS MEETING.
IN THE CIRCUIT COURT OF THE 19T"
JUDICIAL CIRCUIT IN AND FOR
INDIAN RIVER COUNTY, FLORIDA
J & S AVIATION, INC.
Plaintiff,
vs.
CITY OF SEBASTIAN
Defendant.
CASE NO.: 2005-0622-CA-03
JUDGE: ROBERT A. HAWLEY
THIRD AMENDED COMPLAINT
The Plaintiff, J & S Aviation, Inc., by and through its undersigned attorneys
hereby sues the City of Sebastian and in support states:
General Alle ations
1. This is an action for damages which exceeds $15,000.00 exclusive of
interest, costs and attorney's fees.
2. The Plaintiff, J & S Aviation, Inc., is a domestic corporation authorized
and existing under laws of the state of Florida with its principal place of business in Sebastian,
Indian River County, Florida
3. The Defendant, City Of Sebastian, is a municipality located in Indian
River County authorized and existing under the laws of the state of Florida.
4. On February 22, 1999, the parties entered into a lease for property located
on the Sebastian Municipal Airport. (A copy of the lease is attached hereto as exhibit "A" and
incorporated herein by reference.)
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
5. The lease is for a specified term of twenty (20) years, commencing April
21, 1999 and terminating on April 21, 2019. The lease contains an option which the Plaintiff can
exercise at its discretion, for an additional twenty (20) year term.
6. The lease contains a provision for the City of Sebastian's anticipated
reactivation of runway 9-27.
7. If runway 9-27 is reactivated, paragraph 4 of the lease requires the City of
Sebastian to relocate the Plaintiff to a comparable site on the airport property.
8. In 2003, the City of Sebastian decided to re-active runway 9-27.
9. On March 7, 2003, the Plaintiff and Sebastian executed a "Buy-Out &
Relocation Agreement.," (The Agreement) which modified the lease. (A copy of the Buy-Out &
Re-Location Agreement is attached hereto as exhibit "B" and incorporated herein by reference.)
10. On March 11, 2005, the Plaintiff and the City of Sebastian executed the
First Amendment to the Airport Lease. (A copy of the Amendment is attached as Exhibit "C".)
11. The Agreement was intended to allow the runway 9-27 reactivation
project to move forward while preserving the viability of the Plaintiff's business enterprise. In
order to accomplish this goal, the plan required the City of Sebastian to perform the following
relocation activities at no cost to the Plaintiff:
a) Prepare, and process for approval, the basic site plan for
the relocated site to accommodate a facility of the same general size of
the tenants existing facility.
b) Provide such additional asphalt surfacing for aircraft-
vehicle parking and fill dirt to the relocation site as required to fulfill
the basic site plans approved pursuant to Sub-Section a (above);
c) Establish utility easements and paved access to the
relocation site;
.- Page 2 of 15
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
d) Issue a building permit for the new facility;
e) Accommodate storm water discharge for the relocated
into the City system off-site; and
f) Transfer ownership of fuel tank and related equipment to
tenant and require no payments or rent for the fuel tank for the duration
of the lease.
12. The Agreement required the City of Sebastian to complete the above-listed
acts by December 1, 2003.
13. The Agreement called for the Plaintiff to vacate its existing building by
January 1, 2004.
14. Not until December 15, 2004 did Sebastian finally send a confirmation
letter to the Plaintiff advising it that they had permission to complete their relocation to the new
agreed upon site. Based upon this letter, the Plaintiff began relocating its business into a storage
container placed on property at the new site located on the Sebastian Municipal Airport.
15. Under the lease, Sebastian agreed to be responsible for removing and
replacing the fuel farm at the old location. (See paragraph 39(c) of the Airport Lease.) The
Plaintiff was not in possession of the old fuel farm after January 1, 2005 and did not participate
in the demolition of the fuel farm at the old location.
16. As part of The Agreement, the City of Sebastian agreed to give the fuel
tank and the fuel dispensing equipment to the Plaintiff after the Plaintiff vacated the old lease
property. The Plaintiff contacted both the Sebastian Airport Manager and the Indian River
County Environmental Health Department regarding regulations that needed to be followed to
move the fuel tank and equipment.
Page 3 of 15
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
17. The Indian River County Health Department told the Plaintiff it could
follow the plans and specification for the existing fuel farm and to obtain a permit for the City of
Sebastian.
18. The Sebastian Building Official told the Plaintiff in order to relocate the
storage tank and related equipment that he needed to contact the Indian River County Fire
Department for Building Permit Approval.
19. The Plaintiff contacted the Indian River County Fire Department as
requested and followed all recommended and mandatory procedures set forth by the Indian River
County Fire Department.
20. On February 11, 2005, the Plaintiff received building permit no. OS-
001787 from the City of Sebastian for the construction of a "Slab & Wall for Fuel Tank." The
permit included approval by the Indian River County Fire Department as requested by the City
of Sebastian and its Building Official.
21. On February 24, 2005, at 10:07a.m., the Plaintiff received an a-mail from
Jason Milewski, the Sebastian Airport manager that read in full:
"Dear Mr. Van Antwerp,
I have review your proposed relocation of your fuel tank and approve it,
as indicated on the revised drawing you have submitted on 02-24-05. I
have notified the Building Department and Growth Management of this
new location as well. Please do not hesitate to call, should you have
any questions.
Sincerely, Jason Milewski, C.M. Airport Director"
22. In January 2005, the Plaintiff moved the fuel tank and related equipment
as directed by the Sebastian Airport manager to the approved location.
Page 4 of 15
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
23. During February 2005 and March 30, 2005, the City of Sebastian, as
required by the lease, removed the existing fuel contaimnent structure from on the old leased
property.
24. In April 2005, Charles Vogt from the Indian River County Health
Department was at the Sebastian Municipal Airport to perform an annual inspection of the
airport. The inspection was unrelated to the relocation plan or building permits described above.
25. On April 18, 2005, the Indian River County Health Department sent a
letter as formal notice to correct violations of ordinances dealing with pollutant storage systems.
The letter provided ten business days to send a written response to the County. Immediately
upon receipt of the letter, the Plaintiff began makirig the asked for corrective measures that were
within its ability.
26. On or about April 20, 2005, John Van Antwerp telephoned Charles Vogt
and asked what actions he needed to take to remedy the situation. Mr. Vogt said, "I don't know,
I will get with the County attorney and get back with you."
27. On or about May OS, 2005, the Plaintiff received a letter from Ryan
Denner, Airport Manager Specialist, which was titled, "Default of Lease Agreement." The. letter
states that the City of Sebastian is in receipt of the letter from Indian River County listing the
Notice of Violations. The letter from Mr. Denner further states in relevant part, "Accordingly,
please consider this to be Notice pursuant to paragraph 21 of The Lease that these items of
default must be remedied within 30 days hereof or The Lease shall be subject to termination."
Page 5 of 1 S
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
28. On May 9, 2005, the Plaintiff sent a response letter to Ryan Denner, and
copied the manager of the City of Sebastian, whereby it advised the City of the actions taken by
the Plaintiff to correct the violations which were within its power. The letter also asked the City
to withdraw their Notice of Default and give the Plaintiff additional time to make further
corrections requested.
29. On May 9, 2005, the Plaintiff wrote to Indian River County and set forth a
list of the corrective actions taken and addressed issues related to the telephone conversation
with Mr. Vogt.
30. On May 18, 2005, a second letter of formal notification of violation was
sent to both the Plaintiff and the City of Sebastian from the Indian River County Health
Department. The letter addressed the issues of the closure of the pollutant storage tank. The
letter also states in relevant part, "Failure to correct the above violations within the specified time
may result in a summons to appear before the Indian River County Environmental Control
Hearing Board or Circuit Court and could subject you to a fine of up to $500.00 per day
violation.
31. On June 3, 2005, the Plaintiff received a letter from the airport manager
for the City of Sebastian, in which he stated that because the City had received a second notice of
violation the City felt that the Plaintiff remained in violation of Health Department Regulations.
The letter states in relevant part, "Accordingly, please consider this to be notice pursuant to
paragraph 21 of The Lease that these items of default must be remedied within 30 days hereof or
The Lease shall be subject to termination."
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Page6of15
J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
32. On June 22, 2005, Indian River County sent an e-mail to Jason Milewski
that states in full:
"Jason,
The Department is in receipt of your request for the extension of 60
days for the corrective measures involved with J & S Aviation Notice of
Violation. This Department understands the need for the request and
grants the time extension of 60 (sixty) days to complete the required
actions necessary to achieve resolution. If there are questions or
problems, please contact me so I may assist you.
Sincerely, Charles L. Vogt III."
33. On June 22, 2005, the Sebastian City Counsel met and voted to terminate
the Plaintiff's lease for "Failure To Remedy Default After Notice." The Plaintiff was never
given notice that the termination of his lease was on •the agenda for discussion by the City of
Sebastian and therefore was denied due process with regard to the termination of the lease..
34. On August 2, 2005, the City of Sebastian sent a letter to the Plaintiff
stating, "As you are aware, the Sebastian City Counsel voted on June 22, 2005, to terminate your
lease for failure to remedy default after notice. Demand is hereby made that the premises be
vacated and all personal property removed there from no later than noon August 31, 2005."
35. On August 26, 2005, City of Sebastian removed the Plaintiff s signs which
indicated its place of business.
36. All corrective measures required by the City of Sebastian were
accomplished by the Plaintiff except for those items which could not be corrected due to the
wrongful eviction of the Plaintiff and the City of Sebastian's refusal. to issue any additional
permits which would be necessary to take further corrective actions.
Page 7 of 15
(" 1
J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
Count I
Breach of Contract
37. The Plaintiff, J & S Aviation, realleges and reavers paragraphs 1-37 as if
fully set forth herein.
38. The Plaintiff and City of Sebastian entered into a contract which is made
up of the Airport Lease, the Buy-Out & Relocation Agreement and Amendment to the Lease
along with clarifying documents all attached as exhibits to this Complaint.
39. The contract contemplates that the City of Sebastian would reopen runway
9-27 and relocate the Plaintiff s business on the grounds of the Sebastian Municipal Airport.
Under the terms of the contract, the City of Sebastian was responsible for removing and
replacing the fuel farm as part of the relocation of the Plaintiff s business. (See paragraph 39 of
The Lease.)
40. The City of Sebastian failed to properly follow the codes, ordinances, and
regulations related to the removal and relocation of the fuel farm as evidenced by the Notice of
Violation of the Indian River County Health Department.
41. Further, the contract contemplated that the Plaintiff s business would be
relocated on the airport grounds when the City decided to reactivate runway 9-27. The City of
Sebastian agreed to perform the following relocation activities no cost to the Plaintiff:
a) Prepare, and process for approval, the basic site plan for
the relocated site to accommodate a facility of the same general size of
the tenants existing facility.
b) Provide such additional asphalt surfacing for aircraft-
vehicle parking and fill dirt to the relocation site as required to fulfill
the basic site plans approved pursuant to Sub-Section A (above);
c) Establish utility easements and paved access to the
__ relocation site;
rn_
Page8of15
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
d) Issue a building permit for the new facility;
e) Accommodate storm water discharge for the relocated
into the City system off-site; and
f) Transfer ownership of fuel tank and related equipment to
tenant and require no payments or rent for the fuel tank for the duration
of the lease.
5. The City of Sebastian shall complete the activities set forth in
paragraph 3 and have the relocated site available for occupancy by
closing runway 13-31, displacing the threshold, obtaining a waiver
from the FAA, and/or any combination of the above, in accordance
with a schedule that would reasonable allow completion of the
relocated facility at least thirty days prior to the date of vacancy
established in paragraph 1.
42. The City of Sebastian breached the contract by failing to comply with all
of the conditions of the contract as set forth above.
43. The Plaintiff has been damaged by the City of Sebastian breach of
contract.
44. The Plaintiff has complied with all of the conditions precedent or all
conditions have been waived by the City of Sebastian or have otherwise occurred.
45. The Plaintiff has retained. the undersigned attorneys and agreed to pay
them a reasonable fee for their services. The City of Sebastian is required to pay their fees
pursuant to paragraph 34 of The Lease.
WHEREFORE, for the reasons set forth-above, the Plaintiff, J & S Aviation, Inc.,
respectfully requests this Court to enter a judgment in its favor for monetary damages, pre-
judgment interest, costs, and attorney's fees and for such other and further relief as this Court
deems just and proper.
Page 9 of 15
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
Count II
Breach of Implied Covenant of Good Faith
And Fair Dealing
46. The Plaintiff, J & S Aviation, Inc., realleges and reavers paragraphs 1-46
as if fully set forth herein.
47. The Plaintiff has been a tenant on the City of Sebastian Airport for more
than 30 years. Its principal, John Van Antwerp, has served as the Airport Manager. The
Plaintiff has been an asset to both the local and aviation community.
48. Every contract in Florida has an implied covenant of good faith and fair
dealing. The covenant requires the parties to act in good faith in their dealings with each other
under the contract.
49. In this case, after 30 years the Plaintiff was required to move its buildings
and business location. The City of Sebastian was contractually obligated to help in the relocation
of the Plaintiff s business and it assumed responsibility for the old location after the Plaintiff was
moved out.
50. Both the City of Sebastian and the Plaintiff were cited by the Indian River
County Health Department for not giving proper notices before dismantling and moving the fuel
farm.
51. Neither the City of Sebastian nor the Plaintiff had ever attempted to move
a fuel farm on the airport before. The Plaintiff attempted to proceed in good faith to move the
fuel farm according to the law by obtaining a permit from the City of Sebastian, receiving
approval from the airport manager and receiving approval from the Indian River County Fire
Department before Plaintiff built the new fuel farm.
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Page 10 of 15
J & S Aviation,111c. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
52. The City of Sebastian participated in the moving of the fuel farm and
demolished the old fuel farm containment site without obtaining approval from the Indian River
County Health Department.
53. In bad faith and without dealing fairly with the Plaintiff, the City of
Sebastian wrongfully terminated the Plaintiff s lease and constructively evicted the Plaintiff from
its leasehold property.
54. The City of Sebastian's acts were taken with unclean hands as a result of
their failure to comply with the same code that the Plaintiff is alleged to have violated.
55. The City of Sebastian did not deal in good faith by claiming that the
Plaintiff was in breach of its lease for violating codes that the City of Sebastian ifself is alleged
to have violated.
56. The City of Sebastian did not .deal fairly with the Plaintiff by
constructively evicting the Plaintiff based on an alleged violation of the code that the City of
Sebastian itself is also alleged to have violated.
57. If codes were violated, the City of Sebastian was acting in pari delicto
with the Plaintiff because it was contractually obligated to relocate the fuel farm.
WHEREFORE, for the reasons set forth above the Plaintiff respectfully requests
this Court enter a judgment in its favor awarding damages, pre-judgment interest, costs, and
attorney's fees and for such other and further relief as this Court deems just and proper.
Page 11 of 15
I, '
J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
Count III
Wrongful Eviction
58. The Plaintiff, J & S Aviation, Inc., realleges and reavers paragraphs 1-37
as if fully set forth herein.
59. The letter dated April 18, 2005 from Indian River County Health
Department lists 7 specific violations that were alleged to exist at the old business location. The
Notice of Default of Lease dated May 3, 2005 from the City of Sebastian specifically refers to
this letter and gives notice that the Plaintiff has 30 days to remedy the default.
60. The alleged violations did not constitute a material breach of the lease
because the alleged violation occurred during the relocation and did not go to the essence of the
contract.
61. The Plaintiff made every attempt to comply with those requirements even
though some of the alleged violations are the responsibility of the City of Sebastian. The
Plaintiff wrote to the City of Sebastian and asked for an extension of time to respond to the
allegations. The City of Sebastian sent a letter dated June 03, 2006 giving the Plaintiff another
30 days to respond to the alleged violations.
62. The City of Sebastian failed to give the Plaintiff the 30 days time set forth
in its letter to comply and wrongfully terminated the lease on June 22, 2006.
63. The Plaintiff has suffered damages as a result of the wrongful eviction
including, but not limited to, loss of the value of the lease, loss of income, and loss of
improvements made to the lease hold property.
l,(~ZI
Page 12 of 15
J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
64. The Plaintiff has retained the undersigned attorneys and agreed to pay
them a reasonable fee for their services. The City of Sebastian is required to pay their fees
pursuant to paragraph 34 of The Lease.
WHEREFORE, for the reasons set forth above, the Plaintiff, J & S Aviation, Inc.,
respectfully requests this Court to enter a judgment in its favor for monetary damages, pre-
judgment interest, costs, and attorney's fees and-for such other and further relief as this Court
deems just and proper.
Count IV
Specific Performance
65. The Plaintiff, J & S Aviation, Inc., realleges and reavers paragraphs 1-37
as if fully set forth herein.
66. The Plaintiff and City of Sebastian entered into a contract which is made
up of the Airport Lease, the Buy-Out & Relocation Agreement and Amendment to the Lease
along with clarifying documents all attached as exhibits to this Complaint.
67. The Plaintiff negotiated for and received a lease for a specific location on
the, airport that is unique and provides benefits that can not be duplicated elsewhere on the
airport.
68. The Plaintiff has been in business oil the Airport for 30 years and the
specific comparable location on the airport set forth in the Agreement is required for the
continued viability of its business.
Page 13 of 15
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J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
69. While the Plaintiff has plead alternative causes of action at law, those
causes of action have remedies which are inadequate and will not fully compensate the Plaintiff.
70. The Plaintiff has retained the undersigned attorneys and agreed to pay
them a reasonable fee for their services. The City of Sebastian is required to pay their fees
pursuant to paragraph 34 of The Lease.
WHEREFORE, the Plaintiff respectfully requests this Court enter judgment in
its favor of J & S Aviation, Inc. requiring the City of Sebastian to fully perform under the lease
agreement and related documents, issue a building permit for construction of all buildings
completed under the lease agreement, award attorneys fees and costs and for such other and
further relief as this Court deems just and proper.
HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. mail, postage prepaid, to: Rich Stringer, Esquire, Attorney for E`~ty of
Sebastian, 1225 Main Street, Sebastian, Florida 32958, on this `? day of 4>. c,~~---~:.... ,
2006. ~~
Page 14 of 15
J & S Aviation, Inc. v. City of Sebastian
Case No.: 2005-0622-CA-03
Third Amended Complaint
Robert Meadows, Esquire
Co-Counsel for Plaintiff
1705 19th Place
Vero Beach, Florida 32960
Telephone: (772) 778-7492
Facsimile: (772) 778-7493
-and-
CLEM, VOCELLE & BERG, L.L.P.
Co-Counsel for Plaintiff
3333 20th Street
Vero Beach, FL 32960-2469
Telephone: (772) 562-8111
Facsimile ,.• 772) 562-2870
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Paul R. Berg ~~ ~`"'
FL Bar No. 901172
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Page 15 of 15
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~LRFORT LFASL
THIS Airport Lease "Lease"), is hereby made and entered into
~~
as of thi~~ day of i~' j i .3 , 19~, by and between the
City of Sebastian, a municipal- orporation existing under the laws
of the State of Florida, ("Landlord"), and J & S AVIATION, INC., a
Florida corporation ("Tenant"). The Landlord and the Tenant are
sometimes collectively referred to .herein as the "Parties".
WHERFnS, the Landlord is the owner of certain property within
in the City of S astian, Indian River County, Florida, located at
~f ~'~~:. , 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 J & S
~~ ~ ,
AVIATION, INC., date ~ 'i ~ l/ , and
WHEREAS, J & S AVIATIO , 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
W I T N E S S E T H
h EXHIBIT
D
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Master Plan adopted by trie city or 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 f unding
conditions of applicable local, state and. federal sources; and
WHERF..A.S, it is desirable to maintain occupancy of the Existing
Premises and continue the collection. of rent from J & S Aviation,
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.
NOPT, 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.
x
18
2. Leaned Preatiaes. 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 consisting of
0.88 acres in parcel 1 and 1.0 acres in parcel 2. Tenant agrees
that Landlord shall reserve unto itself an easement for emergency
and official airport access only, and not for general public
access. 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
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,
3 ~,,,---
I
conveyances and cona~Lions or Lnis Zease sna11 apply aur~ng zne
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 and to relocate the
tenants existing fuel farm or in the alternative install another
of comparable size and capacity. ("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.
5. Rent. Tenant covenants and agrees to pay Landlord the
Minimum Annual Rent of Five Thousand Two Hundred Two ($5,202.00)
Dollars, payable in twelve (12) monthly installments ("Rental
Payments") of $433.50 each.
The Minimum Annual Rent shall
commence to accrue and
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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 standa d. The f first
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adjustment shall be made. on ~"'.~ r ~ ~ 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
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
. 5 ~ (~'
event shall the Minimum Annual Rent (as adjusted by the foregoing
~r,rrr+++l 01 fnr ~ 1 r~oc~i-+ tar.nr r~tr~r }~n 1 r~cv ~1't~n i-}+n Mi nimnm Tnr+t+ol
y VylllLLl4~ yVt u yC1„aJC yGUl cvcy r/G 1GJJ 1.11411 L11G 1'1y 111111 u111 l11111U41
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
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
2 ~ 6
arbitrators, in accordance with the rules of the American
Arbitration 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 Five Thousand Two Hundred
Two ($5, 202.0) Dollars.
In the event that any Rental Payment due hereunder shall not
be paid ten (10) 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~s 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
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.
~; ' ,~
1
7 Z ._
~~,~
!'~~ Dorn nl on~nl nrof-i ~r+ Tn 1 i r+i~ ~~ +'~+~ n.-~~'i ran i r
~C., LUl l,lUl 4~..V C.L CLUl.1Vll• 111 11CLL Vl L11G V2./1.1 V11 111
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. Improvements to the Premises. The Landlord acknowledges
that the Tenant is leasing the premises for the purposes of fixed
base operator, and that in order to utilize the Leased Premises
for this purpose, the Tenant 3esires 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 fixed base operator provided that any such uses do
not in any way curtail the use of the airport facilities in their
Z~ 8
usual operations. The Tenant covenants and agrees that all such
uses shall be in accordance with the local and state ccdes,
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
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, f or any reason, be and become the property of the
Landlord and shall be left in good condition and repair, ordinary
9 -~ ~~
~/ _.
~.~"
wear and damage by the elements excepted. A fixture shall be
rl~•=i nr+ri oc on ~r~i nl ~ ~.s}ii n}+ ~.io~ o r~}»+-}-nl Y~~i~ ~.r}~i r~l~ 1~~~ hr+i ri.~
uC1111C 6a 61J 411 416.1 t.1C W111 ~.. 11 W{.1J U ~11U 6. ~..Gl, 1JU 6. W111 \.. 11, iJ,l lJCllly
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.
6. Use of Zeased Premises. The Tenant agrees that no~ use
of the Leased Premises will be allowed
manner as to constitute a nuisance or
connection with the use of the Leased
operation, take-off and landing of airc
and its agents, employees, contractors,
/n 10
~.~V
or conducted in such a
a hazard and that, in
Premises including the
raft thereon, the Tenant
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 as a fixed base operator. 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 andlor tie down service, conduct sales and service and
repair and maintenance of aircraft, avionics and car rentals and
to provide any ar,d 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
certified and licensed by the FAA in the appropriate categories of
their specific operation.
7. Repairs and Alterations. The Landlord shall not be
obligated to maintain or repair the Leased Premises or any
I1 )}
L.. ..'
improvements located or any part hereof thereon during the lease
}I~rm nr on~i rr~n ~~.i~l ~-1-~n r~~~ T}~n T~r+o n~- ~rY rr~~o 04' i 1-o e~.~l r~ r+~c~
1..Cill~ VL 411~r 1C11Gwul L11G1CV1 • 113C LG11 Ut~1, uytcca, u~. 11.J JV1G t/~./vL
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.
8. 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,
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.
z~ 12
9. Signs. The Tenant shall have the right to erect and
maintain such sign or signs on the premises as may b2 per,~,itted 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.
10. 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.
11. ILiability and Property Insurance. The Tenant sh~.ll
provide and keep in force, at its own expense, during the term of
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
`_'`'~,
13 ~c
~,,/
such indemnification and naming as insured both Landlord and
T.~,nan~ l.~i mil, ..,i nimti,., 1 i mi ~-a r.F ,,.++- 1 noo +-1,0„ C inn nnn nn ~e~r i n~ilr~~
1 C11t111L Wl1.. 11 1111111111 LL111 1111I11.J Vt 11VL 1CJJ 1~11U 11 YJVV, VVV.'VV LV1 111J 41Y
or death of any one person and $1,000,000.00 for injury or death
for any one accident, together with $500,000.00 for damage to
property. Tenant agrees that should there be an 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
policies of such insurance with the Landlord.
12. Fire and Extended Coverage Insurance. The Tenant shall,
/~~~ at its sole cost and expense, procure and keep in effect such
~LJ 14
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
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
15 ~
%''
Premises, the Tenant shall pay the additional premium on its
i no~ir~nn~ r~~l i i.i no {^~ir rr~~onn }-}.~r~r.~ L'~r.l-~ 1~r.~r i F ~r~r~~ i nol-~1 r.
ilLJ 41 u11\.c r/V11L.1cJ u1l icuJVat ~.. iacicvi. t.u ~.ii ycui li uY1/ii~.u uic,
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 t;.e 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.
13. Damage or Destruction of Iaa~rovesnents 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
~~ 16
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~s 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
proceeds to be the sole property of the Landlord; or
(b} To cancel the Lease; if the Landlord elects
i~
~~
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 an 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 Tenant 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.
14. Ind~nuiification. 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
relating to, directly or indirectly in any manner whatsoever, the
Leased Premises adjacent sidewalks and loading platforms, or
18
~3y
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 occurrences
during the terms of the Lease.
15. 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,
contractors, licensees, and invitees. This Paragraph 17 shall
survive the termination or cancellation of the Lease for
occurrences during the Lease term.
16. Hazardous Material. Tenant shall not cause or permit
any Hazardous Material excluding petroleum. based L~roducts 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
the prior written consent of Landlord. Tenant hereby indemnifies,
defends and holds Landlord harmless from any and all claims, ,..----_.,
19
~~
judgement, damages, penalties, fines, costs, liabilities or losses
/ i nn~ ~li-li nr+ tsi f-}ira.f- 1 i •ni i-o~ i nn riimi nnti nn i n •rol nn r~F ~1,.~ T r~~c~
,i11V141.1111y, W1611V 1.iV 1111111.UV1V11, ~111111111,/V1V11 111 VCJI UC Vl V11G 1JG4JG
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 f ees) which arise during or after the .lease term as a
result 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
locate 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
Premises, Tenant shall promptly take all actions at its sole
_.~~~ 20
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) defined as a "hazardous
substance" under Section 403.703 (29) Florida Statutes (1987);
(iii) defined as a "toxic or otherwise hazardous substance" under
Section 403.771 (2) (c), Florida Statu'~s (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.
i' _ \
21 ~
§ 1317}; (ix) defined as a "hazardous waste" pursuant to Section
~nnn n~ +-l,n L'r.r7r~r~1 D.~o~+lri.r~ (`r.nv~r~~n1-i~n or~~-l D~r+~~rr~r\r Tr.~ /17
1VV7 Vl 1. 11C LGUC1C11 1\GJVUl \.C VVLIJGI VUl.l V11 1111\1 1\G \.VVC11/ A\i l., ~ ZL
U.S.C. § 6901 et seq. (42 U.S.C. § 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.
§ 9601 et seq. (42 U.S.C.§ 9601).
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 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.
18. 7~andinq 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.
19. (3overnment 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.
20. Eminent Do~nna.in. 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.
21. Events of Default. As used in this Lease, the term,
"event of default", shall mean any of the following:
(1) 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
~'
ti,~
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 party in and to the property covered by this
Lease, and that no third person shall ever be entitled to an},•
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 alI 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 (if the
Tenant is a natural person) the death of the Tenant 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 carry on 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,
~l !
however, that before the exercise of such option for .failure to
r.~~- rr,n}- ~r Fai 1 >>rr~ ~-n r.nr~~r~n ~n~r r+r~nrli {-i nn i rnr~~c•r~r-l }~r,rni n
rub ict. ~. vi tui.i uic ~..v Nci 1. vi. u~ uaiY L. V11u11..1 Vi1 iaur v...~cu ~icLCl.aa
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.
22. 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.
23. 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.
24. 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
1 " 1 ~ 26
~/
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: J & S Aviation, Inc.
299 Airport Drive West
Sebastian, FL 32958
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 incur__ed 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
27
/, i ~
I`
shall be made, at Landlord's option, the exercise of which shall
~~ rnoonno~~ n i n ranch lTTni ~-~.-~ C~~~-nc ia~rr~nr.~~1 ~r 1-~~. ~ac}ii ~r ~ a
VC 1C4JV1141J1C, 111 L.4J11 ~ Vlll 1. G\.i .JLUI~CJ x..411 C11 \+,I ~ Vl L~ \..4J111C1 J
check issued by a national banking association located in Indian
River County; all checks shall be received subject to clearance.
25. 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.
26. Ov~nership of Trade Fixtures, Signs and Personal
Pro~aerty. 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
~~ is
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 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.
27. 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,
29 `~~ r -~
-t
its successors and assigns, for the use and benefit of the public,
o ri nl~f- ..F F1 i nli4- Fr,r +-},r+ r~ncoor.r. ..F ~i rnr~ft i n }-1~~ of ro.-~~r•r,
V llyll 1. Vl 1111,111. 1V1 1~11C iJUJJUI~G Vl U11VlUl ~. 111 1..116 411 J1.J GIVC
above the surface of the Ileased 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.
28. 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
G--~ CG . ~
Department of Transportation - Effectuation of Title VI of the
Civil Rights Act of 1964, and the Americans with Disabilities Act.
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.
29. A~d~ciitional 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
31 (l.~
interest shall be calculated on a daily basis and shall be due and
pay abic iiviicii uiiicu.
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
u ~ 32
~U
Airport Master Plan and the Tenant covenants that it will use the
leased premises to be consistent with the Airpcrt Master Plan.
The Tenant shall not allow its occupancy or use of the lease
premises to constitute or become a public or private nuisance.
30. Entire Agreement. This Lease contains all of the
understandings by and between the parties hereto relative to the
leasing of the premises herein described, and all prior or
contemporaneous agreements relative thereto have been merged
herein or are voided by this instrument, which may be amended,
modified, altered, changed, revoked or rescinded. in whole or in
part only by an instrument in writing signed by each of the
parties hereto.
31. Aa~ignment 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.
32. Binding Effect. The terms and provisions of this Lease
33 ~ /~ /`
.~/"~
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. Applicable Laar/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.
34. 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.
35. 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 .
36. Recording. In no event shall the Lease or a copy
thereof be recorded in the Public Records of Indian River
County, Florida.
37. Aircraft Fuel Dispensing. Lessee is permitted to
service its leased or owned aircraft with aviation fuel and
lubricants subject to the safety and environmental standards
contained herein. Fueling will be done only from metered
~~ ~
fueling dispensers, fixed or mobile, especially constructed for
dispensing aviation fuel, and having all safety devices
specified by the Rules and Regulations of the Federal Aviation
Administration, Florida Department of Transportation and
Aviation, and the National Board of Fire Underwriters. Under no
circumstances will fueling of aircraft from drums be permitted.
(1) Fueling shall fully comply with the criteria of
FAA Advisory Circular 150/5230-4, including current changes., and
with all references listed in Appendix 6 of Advisory.
(2) In addition to the insurance requirements
stipulated herein, the following special coverages are also
required in the amount of $5,000,000.00: a) products and
completed operations liability for fueling operations; b)
environmental pollution/hazardous materials cleanup and
restoration liability with the City names as an additional
insured.
(3) Dispensing vehicles and bulk lubricants will be
housed in or upon approved facilities. Storage within aircraft
hangars is prohibited.
38. Feel Flowacte Fee. In addition to the Minimum Annual
Rent, the Tenant and any sublessee of Tenant, shall also pay to
the Landlord a fuel flowage fee, which shall not be rent for the
Leased Premises, but shall be collected by the Landlord form the
Tenant, and any sublessee of the Tenant. The fuel flowage fee
35 --~,.
~~
shall be 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).
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 15t" 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 the monthly
rental installments.
(1) 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.
(2) The Tenant, or any sublessee of the Tenant, shall
further retain upon the 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
36
by the Landlord for the purpose of auditing payments to the
Landlord as provided herein. Such books, records and other
documents shall be made available for inspection to
representatives of the Landlord during business hours, at the
request. of the Landlord. If said inspection reveals that
payments to the Landlord are in error, by more than 2~, Tenant
shall pay the additional amount owing to the Landlord, plus all
costs of said inspection.
39. Fuel Farm.
a. Compliance with Governmental Laws and
'Regulations: Lessee agrees and warrants that the fuel farm shall
be maintained and managed by Lessee in accordance with all
applicable laws, rules, and regulations currently in effect and
hereinafter imposed by federal, state and local governing
authority.
b. Indemnification: Lessee hereby agrees to
indemnify, defend-and hold Lessor harmless from and against any
and all expenses, costs, damages, judgments, liabilities and
reasonable attorney's fees incurred by Lessor resulting from any
claims, causes of action, demands, lawsuits, proceedings or
actions of any party arising from or in any way connected to the
oileration of said fuel farm by Lessee, its agents or employees
or for any conditions existing on the leased premises relating
to said fuel farm.
c. Addition to Rent: Lessor's costs in removing
C~
37
and replacing the fuel farm as provided in Paragraph 1 above
shall be amortized over the useful life of the fuel farm, using
an interest rate equal to the rate Lessor receives on money
deposited with the State Board of Accounts ("SBA") plus one
percent (1$) and shall be payable monthly by Lessee along with
the monthly rent payment due Lessor under the Lease, commencing
on the 10th day of the month following the month in which Lessor
completes replacement of the fuel farm. For purposes of this
Paragraph, the useful life of the fuel farm shall be deemed to
be thirty (30) years. The addition to rent established under
this Paragraph shall be recalculated on a yearly basis on the
anniversary date of Lessor's completion of the replacement of
the fuel farm using. the then current interest rate received by
Lessor from the SBA plus one (1~) percent.
40. Parking Rental Fees. The Tenant shall remit
to the Landlord ~ of parking fees charged, currently $1.00 per
day, up to a maximum of $10.00 per month, as set by the City
Council.
IN ~PITNESS ~PHEREOF, the Parties hereto have set their hands
~j
and seals the day and year first. above written.
ATTEST:
,r
~ ~iV'~.s~--'
Kathr M. O'Hallor~, CAC/AAE
CITY OF SEBASTIAN
A Municipal Corporation
Existing under the laws of
State of Florida
~~~
Thomas W. Fr e
City Manager
(SEAL
Wr':tr,ess: '~ ~ Q~,
~._ - - ~- L
~~ 71~. ~-
. l
J 6 S AVIATION, INC.
By ~, u
~~~c/>~Fl s ;,4.v.~i;
Approved as to Form and Content:
City Attorney
~~)
~~
Page 1 of 3
BUY-QUT & RELOCATION AGREEMENT
~~~ ~ ~
THIS AGREEMENT, made and entered into this 'day of~e~y, 2003, by and
between the CITY OF SEBASTIAN, a municipal corporation existing under the laws of
the State of Florida, (hereinafter referred to as the "City"), and J & S Aviation, Inc., a
Florida corporation, (hereinafter referred to as the "Tenant"), provides as follows:
WITNESSETH:
WI~REAS, City 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 parties entered into a certain AIRPORT LEASE dated February
22, 1999 (hereinaer called the "Lease"); and
WHEREAS, the Runway 9127 Reactivation Project requires the removal of
improvements from the subject~leasehold; and
WHEREAS, the parties Dave reached an amicable agreement that accomplishes the
dual purpose of enabling the Project to move forward and preserves the viability of
Tenant's business enterprise;
NOW, THEREFORE, in consideration of the payments and mutual promises
between the parties as hereinafter provided, the receipt and sufficiency of which are hereby
aclmowledged, the parties have agreed as follows:
1. Tenant shall vacate and cease to occupy the leasehold premises no later
than January 1, 2004. As of said date, all items of personal property not removed try
Tenant shall be deemed abandoned and shall become the property of Landlord.
2. No later than April 15, 2003, City shall survey a parcel of 2 acres, more or
less, in accordance with the schematic presented in Exhibit "A" (hereinafter called the
"Relocation Site', and the within ten (10) days of delivery of the same, the parties shall
• execute a lease amendment in the form attached hereto as Exhibit "B". Notwithstan '
~j_~
EXHIBIT
BUY-OUT & RELOCATION AGREEMENT
Page 2 of 3
said lease amendment, aII terms of the original lease shall apply to the occupancy of the
original leasehold premises until the same is actually vacated or a certificate of occupancy
is issued for the relocated facility, whichever occurs first.
3. Landlord shall perform the following relocation activities at no cost to
Tenant:
a) Prepare, and process for approval, a basic site plan for the Relocated Site to
accommodate a facility of the. same general size as Tenant's existing facility;
b) Provide such additional asphalt sur.Eacing for aircra$Jvehicle parking and fill dirt to
the Relocation Site as required to fulfill the basic site plan approved ptnsuant to
subsection a) above;
c) Establish utility easements and a paved access to the Relocation Site;
dj Issue a building pemnit for the new facility;
e) Accommodate stormwater discharge for the. Relocated Site into the City system
off-site; and
t) Transfer ownership of .fuel tank and related equipment to Tenant and require no
payments or rent for the fixel tank for the duration of the lease.
4. Landlord shall cooperate with Tenant in processing impact fee credits with
the County, as well as permitting issues with all regulatory agencies.
5. Landlord sha]I complete the activities set forth in paragraph 3 and have the
Relocated Site available for occupancy by closing Runway 13-31, displacing the threshold,
obtaining a waiver from the FAA,, and/or a~ combination of the above, in accordance
with a schedule. that will reasonably allow completion of the relocated facility at least
thirty days prior to -the date of vacancy established in paragraph 1 _
6. Thmugh the end of the occupancy period as set forth above, all remaining
terms of the Lease shall continue in e$~ect, and Tenant shall make all rental payments
required tinder said lease, Payment of rent shall be abated during the period between the
date of vacancy set forth in paragraph 1, anal the date a Certificate of Occupancy is issued
for relocated facilities at the Relocation Site.
C~,
~._._.-i
BUY-OZ7T & RELOCATION AGREEMENT
Page 3 of 3
7. The rights granted to Tenant hereunder are conditioned upon Tenant's
continued compliance with the requirements of the terms of its Lease. Default and breach
of said lease shall constitute a waiver and immediate forfeiture of these rights by Tenant.
8. A$er the execution of BUY-OUT & RELOCATION AGE and
FIRST AMENDMENT TO AIlZPORT LEASE, Landlord shall pay Tenant the amount of
eighty-five thousand dollars ($85,000) that, along with performance of the obligations set
forth herein, shall constitute ;full and complete compensation to Tenant for all claims
related to the Runway Reactivation Project.
9. The terms of this agreement are deemed to satisfy the provisions of
paragraph 4 of the original Lease, and shall survive execution of any lease amendment or
conveyance document absent express written modification or abrogation.
. 10. At anytime prior to the date of vacancy set forth in paragraph I, Tenant
may choose to terminate the leasehold and not to build the relocated facility, in which case
• Tenant shall keep the aforementioned eighty-five thousand dollars ($85,000) as full and
complete compensation to Tenant for all claims related to the Runway Reactivation
Project.
IN WITNESS WHEREOF, the parties hereto have. set their hands axed seals the
day and year first above written.
ATTEST:
r~
Sally A. o, CMC
City Clerk
Approved as to Form and Legality for
Reliance by the City of Sebastian only;
Ric Stringer, City A ey
City Manages
J & S AVIATION, IIVC.
. ~~
B
Its: Sec Td~s.
jCorporate Seal)
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PARCEL 1: LEGAL DESCRIPTION
From the East Corner of Section 29, being also the South corner
Section 30 of the Fleming Grant, Indian River Count of
1705.85 ft, bearing S-45°08'49" W along the Fleming~Grant1lineRun
a concrete monument, thence run 1137.65 ft. bearing N-44°26'00"tW
to a concrete monument being the Southwest corner of Tract No. 4
as shown in the Lloyd & Associates Surve
August 12, 1958, thence run 382.22 ft. bearing N~O1 S9 441' dated
point, thence. run 367.63 ft bearing 5-89 54 38 ° ~ E..to a
is .the point of beginning, continuing 21g,97 fta alont which
bearing~•being_the south edge of th.e East-West runwa o g said
Satellite Field to"a~nail & disk, thence run 175.031 ft.Rvseland
N-0° 02'59" W to a concrete monument thence bearing
bearing N-89 54'06" W to a: concrete monument, thence run 174f98
ft. bearing N-0°04'55" E to the point of beginning, containin .8
acres more or less. g g
~~~
~~ J
PARCEL 2;
LEGAL DESCRIPTIOIti' FOR
of Scctien 29, being also the South corner of Section 30 of The Flcrnin FC m tha Frast comer
Cauaty, Florida, run S 4S degrees 08 rninutcs 49 seconds W along the g ~, Indian River
of 1705.85 feet to a concrete montua theace run N 44 de Flemtag Grant ~ a dsstaace
distance of 1137.63 feet to a concrata monumrnt; sand comer being tha Southw~~ornQ of W a
No. 4 as shown in the Lloyd &. Associates Survey Job No. 58-142, dated Au Tract
rua N 1 de S~ 12, 1958; thence
grce 54 minutes 41 seconds E a distamco of 382.22 feet; thence tun S 89 ~gtecs 54
minutes 3$ seconds W a distance of 587.60 feet; thence run N 0 d
a distance of 100.0 feet to the point of 8e ' epees 42 n~inutea 59 seconds W
guiaing of the herein dcscn3ed parcel; thence nm S 89
degrees 54 minutes 38 seconds W a distanca of 450.0. feet; thence ntn N 0 degrees 02 minutes 59
aoconds W a distance of 100.0 feet; thence rum N 89 degrees Sd utinutes 38 seconds E a distance of
450.0 Poet; thence run S 0 degrees 02 minutes 59 seconds E a distance of 100.0 feet to the Point of
• ,Beginning, Coa:aining 45,000 square foci or 1.03 acres,
~,
it ~ 3
EXHIBIT "B"
.Page 1 of 3
FIRST AMENDMENT TO AIRPORT LEASE
THIS AGREEMENT entered this day of , 2003, amends that
certain AIRPORT LEASE existing between the CITY OF SEBASTIAN, a Florida
municipal corporation (hereinafter called "Landlord") and J & S AVIATION, Inc.,
(hereinafter called "Tenant") dated February 22, 1999, and provides
THAT IN AND FOR CONSIDERATION of fulfillment of the existing and
previously bargained contractual obligations between the parties, the following is agreed:
1. That the legal description of the leased premises is amended to exclude the
following parcel of land:
{See attached Schedule "A "~
consisting of acres more or less.
2. That the payment of rent shall be abated until issuance of a certificate of
occupancy for improvements to the newly designated leased premises. Thereafter, the
initial rental amount shall be five cents ($.OS) per square foot.
3. That the initial term of the lease shall be expanded to run for thirty years
through April 23, 2029.
4. During the twenty-fifth yeaz of the Term the Landlord shall obtain an
appraisal of the Prenuses including all Improvements constructed thereupon, unless this
requirement and the Option to Extend is waived in writing by Tenant.
A. Tenant O tions. Within ninety (90) days after delivery to Tenant of the appraisal,
Tenant may exercise one of the following four options:
i. Accept the rent valuation therein and offer in writing to enter anon-assignable,
nonrenewable lease extension agreement for up to ten (10) additional yeazs in
accordance with the provisions herein except applying a new base Annual Rent
amount equal to eight percent (8%) of the value established in said appraisal.
(~ Z
EXHIBIT "B"
Page 2 of 3
This Extension Agreement shall be substantially in the form attached hereto as
Exhibit "I".
ii. Give notice of its intent to commission a second appraisal by a certified real
estate appraiser to be completed within forty-five (45) days.
a. If said appraisal results in a valuation of the Premises and Improvements
within ten percent (10%) of the initial appraisal, the figures shall be
averaged.
b. If a disparity of greater than ten percent (10%) results, the respective
appraisers shall confer and attempt to negotiate a compromise valuation.
c. If no compromise results, said appraisers shall jointly submit the name of a
qualified appraiser to the parties who shall then jointly commission. an
appraisal therefrom. Said appraisal value will be used to establish the rental
amount if it falls between the values of the first two appraisals. If the value
thereof falls outside the range of the first two appraisals, the relevant value
shall be derived from averaging the three appraisals.
Within thirty days of establishment of a rental value as set forth above, Tenant
may exercise either option contained in subparagraphs "a" or "c" hereof.
iii. Give notice of its intent to allow the lease to expire at the end of the
thirty-year term.
iv. Landlord and Tenant may agree on an alternate rental rate for the
additional term.
B. Landlord O tp ions. If Landlord does not accept an offer to enter into a renewed
lease, the lease shall expire at the end of the thirty-year term, but the rent for the final
five years of the lease shall be waived as additional consideration to Tenant for
relinquishing ownership of all site improvements thereafter.
C. Automatic Increases durin~Extension. During the term of any extension pursuant to
this Article, on each anniversary of the Commencement Date, this Annual Rent shall
. _ __._,`
}~ s
V
EXHIBIT "B"
Page 3 of 3
be subject to increases in accordance with the Price Index provisions of the original
Lease.
5. That this amendment shall take effect February , 2003, or such earlier
date as subsequently agreed to between the parties in writing.
6. All other, terms and conditions of the Lease Agreement shall remain in full
L~4
force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
ATTEST:
Sally A. Maio, CMC
City Clerk
CITY OF SEBASTIAN
By:
Terrence R. Moore, City Manager
Approved as to Form and Legality for
Reliance by the City of Sebastian only:
Rich Stringer, City Attorney
J & S AVIATION, INC.
By:
Its:
[Corporate Seal]
FIRST AMENDMENT TO AIRPORT LEASE
THIS AGREEMENT entered this ~ day of MQ.~"{' , 2005, amends that
certain AIRPORT LEASE existing between the CITY OF SEBASTIAN, a Florida
municipal corporation (hereinafter called "Landlord"} and J ~ S AVIATION, Inc.,
(hereinafter called "Tenant") dated February 22, 1999, and provides
THAT IN AND FOR CONSIDERATION of fulfillment of the existing and
previously bargained contractual obligations between the parties, the following is ageed:
1. That the legal description of the leased premises is amended to include the
following parcel of Land:
{See attached Schedule "A "}
consisting of 1.93 acres more or less, and is further amended to exclude the following
parcel of ]and:
{See attached Schedule `B "}
consisting of 1,91 acres more or less.
2. That the payment of rent shall be abated until issuance of a certificate of
occupancy for improvements to the newly designated leased premises. Thereafter, the
initial rental amount shall be five cents ($.OS}per square foot.
3. That the initial term of the lease shall be expanded to run for thirty years
through Apri123, 2029.
4. During the twenty-fifth year of the Term the Landlord shall obtain an
appraisal of the Premises including all Improvements constructed thereupon, unless this
requirement and the Option to Extend is waived in writing by Tenant.
A. Tenant Q~tions. Within ninety (90) days after delivery to Tenant of the appraisal,
Tenant'may exercise one of the following four options:
i. Accept the rent valuation therein and offer in writing to enter anon=assignable,
nonrenewable lease extension agreement for up to ten (10) additional years in
accordance with the provisions herein except applying a new base Annual Rent
amount equal to eight percent {8%) of the value established in said appraisal.
This Extension Agreement shall be substantially in the form attached hereto as
Exhibit "I". ~.~
_)
~xN~i ~r~' ~G`,
ii. Give notice of its intent to commission a second appraisal by a certified
real estate appraiser to be completed within forty-five (4S) days.
a. If said appraisal results in a valuation of the Premises and
Improvements within ten percent (10%) of the initial appraisal, the
figures shall be averaged.
b. If a disparity of greater than ten percent (10%) results, the respective
appraisers shall confer and attempt to negotiate a compromise
valuation.
c. If no compromise results, said appraisers shall jointly submit the name
of a qualified appraiser to the parties who shall then jointly commission
an appraisal therefrom. Said appraisal value will be used to establish
the rental amount if it falls between the values of the first two
appraisals. If the value thereof falls outside the range of the first two
appraisals, the relevant value shad be derived from averaging the three
appraisals.
Within thirty days of establishment of a rental vahte as set forth above,
Tenant may exercise either option contained in subparagaphs "a" or "c"
hereof.
iii. Give notice of its intent to allow the lease to expire at the end of
thethirty-year term.
iv. Landlord and Tenant may agree on an alternate rental rate for the
additional term.
B. Landlord Options. If Landlord does not accept an offer to enter into a renewed .
lease, the lease shall expire at the end of the thirty-year term, but the rent for the final
five years of the lease shall be waived as additional consideration to Tenant for
relinquishing ownership of all site improvements thereafter.
C. Automatic Increases during Extension. During the term of any extension pursuant
to this Article, on each anniversary of the Commencement Date, this Annual Rent
shall be subject to increases in accordance with the Price Index provisions of the
original Lease.
5. That tk~is amendment shall be given retroactive effect to January 15, 2005.
l~ ~f ;
~l
All other terms and conditions of the Lease Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
A'
Sally A. Mai
City Clerk ~
CITY OF SEBASTIAN
By:
Approved as to Form and Legality for
Reliance by the City of Sebastian only:
c
1
Rich Stringer, City t ey
Davis, Interim City Manager
& S AVIATION, INC.
Its: SeG~ tkf'~ :,.
[Corporate Seal]
,..r
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4R.f
~' X,~ti~111 a~»
Page 1 of 2
LEASE EXTENSION AGREEMENT
THIS LEASE EXTINSION AGREEMENT, made and entered into this
day of 2024, 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 J & S AVIATION, INC. (hereinafter referred to as the "Tenant")
provides that
IN AND FOR CONSIDERATION of compliance with the. terms of that certain
FIRST AMENDMENT TO AIRPORT LEASE between the parties dated March
2005, and the mutual covenacrts hereinafter provided, the receipt and sufficiency of which
are hereby acknowledged, the parties have agreed as follows:
The Leasehold of the afore-mentioned Lease Agreement is hereby
extended for an additional ten years from the date of the expiration of its Initial Term.
2. The Annual Rent for the first year of said extension shall be $**,*'"*. Each
year on the anniversary of the Commencement Date, this Annual Rent shall be increased
in accordance with the Price Index adjustment provisions set forth in the original Lease.
3. The Leasehold shall terminate at the end of this extended term and Tenant
shall surrender possession of the Prenuses.
4. All other terms and provisions of the Lease Agreement, as modified by the
First Amendment thereto, shall remain in full force and effect unless application of the
same shall lead to a ludicrous result.
AGREED to on the date first set forth above.
(~~
ATTEST:
City Clerk
CITY OF SEBASTIAN
A Municipal Corporation
By:
City Manager -
Exhibit "I"
Page I of 2
Approved as to Form and Legality for
Reliance by the City of Sebastian only:
City Attorney
J & S AVIATION, INC..
By:
its:
Corporate Seal:
C~
A PARCEL OF LANG LYING AND BEING IN THE COUNTY OF INDIAN RIVER, STATE OF
FLORIDA, BEING A PORTION OF THE PEENING GRANT • IN 7bWNSH1P 31 SOUTH, RANGE
319 ~EatST, TALLAHASSEE ~+1~lERID64N, FT,ORILLI. AS SHOWN ON THE SUBONISION PCAT OF
SAID PEENING GRANT RECORDED AT PAGE'S 72 AND 73 1N P[AT BOOK NO. f /N TWE
PUBLIC RECORDS OF 1HE COUNTY OF BREVARD. STATE OF FLORIDA. SAID LAND BEING
+WORE PARTICULARLY DESCRIBED AS FOLLOWS:
Cp1NMENCING AT THE EASTERLY CORNER OF SECTION 29 OF THE FLEAAING GRANT IN
TOWNSHIP 3t SOUTH, RANGE 38 EAST; TALLAHASSEE MERIDLAN, FLORIL]A. A5 SHOWN
ON THE SUBOMSION PLAT OF SAID f1EI+frNG GRANT RECORDED AT PAGES 72 AND 73
W FLAT 800K NO. f IN THE PUBLIC RECORDS OF THE COUNTY OF BREYARD, STATE
OF FLORIQ,4, RUN SOUTH 44.59'29" WEST ALONG THE SOUTHEASTERLY LINE OF SAID
5ECTJ'ON 28 A DISTANCE OF 268.1.27 fEE7;• THENCE DEPARTING SAID SOUTHEASTERLY
LINE; RUN NORTH 45'00'31'" WIES T A DISTANGE OF 1726.3a FEET Tn THE POWT OF
BEis^INNING; FROA! TFIE POINT OF BEGINNING RUN SOUTH 39'53'00" WEST A DVS7ANCE
OF 70,06 fFET; THENCE RUN SOUTH 89'47'.36" WEST A OfSTANCE OF 511.49 FEET;
THENCE RUN NORTH 44'35'30" FAST A DISTANCE OF 374.93 FEET; THENCE RUN
SOUTH 45'06'03" EAST A DISTANCE OF 120.22 FEET; THENCE RUN NORTH 43'x3'18"
EAST A DISTANCE OF 57.02 FEET; THENCE RLNV SOLlTN 4.'1'09'00" Ei~.ST A DISTANCE
OF 238.14 FEET TO THE Pr?INT OF BECINr1IlNG.
5A/D LANDS NOW LYINC AND' BEING IN INDWN RNER COUNTY, I~iORrtti~, ~ [aONTAINING
1.93 ACRESr MORE OR LESS.
Schedule "A"
~~
pARt~, 1; LEGAL DESCRIPTION
From the East Corner of Section 29, being also the South corner of
Section 30 of the Fleming Grant, Indian River County, Florida, Run
1"]05.85 ft. bearing S-45°08.'49" W along the Fleming Grant line to
a concrete monument, thence run 1137.65 ft. bearing N-44°26'00" W
to a concrete monument being the Southwest corner of Tract No. 4
as shown in the Lloyd & Associates Survey, Job 58-142, .dated
August: 12, 1958, thence run 382.22 ft. bearing N-O1°54'41" E to a
point, thence run 367.63 ft. bearing 5-89 54'38" to a point which
is the point of beginning, continuing 219.97 ft. along said
bearing_being_the south edge of the East-West runway of Roseland
Satellite Field to a'nail & disk, thence run 175.031 ft. bearing
N-0° 02'59" W to a concrete monument, thence run 220.026 ft.
bearing N-89 54'06" W to a concrete monument, thence run 174.98
ft. bearing N-0°04'55" E to the point of beginning, containing .88
acres more or less.
PARCEL 2:
LEGAL DESCR1FT1ON FOR From the East comer
of Section 29, beu-g also she South comer of Section 30 of The Fltming Crtaat. lndiaa Rimer
County, Florida, run S 4S degrees 08~rninutca 49 seconds W aioag 1lteFieming Grant line s distanco '
of T 705.85 feet w a coacrote moaumeat; thence rue N d4 degrees 26 minutes 00 seconds W a
distance of 1137.65 feet to a coacrote mamumeat; said comer bciag fire Southwest corner of Tract
No. 4 es shown 'tn the Lloyd ~ Associates Surrey lob No. S& 142. dated August 12, 1458; thence
run N 1 degree 54 minutes 41 secatids E n distance of 382.22 fast; thcncx run S 89 degrees 54
minutes 38 secvn~ds W ~- distance of 5$7.68 feet; thcaet rue N 8 degrees 42 minutes 59 seconds W
s distance of 100.0 feet to the Point of Bagiauing of the heron described parcel; thaace nai S 89
degrees 54 minutes 38 seconds W a distanta of 450.0 feet; thence rue N 0 degrees 82 minutes 59
seconds W a distance of itNl.0 feet; thctue rtsm N 89 degrees 54 minutes 38 sccoads E a distaaec o f
450.0 feet; theruce nut S 0 degrees OZ minutes 59 secossds E a distance of 100.0 feet to the PoteYt of
. Begittai~ag. Caatairtiag 45,008 square feet or 1.03 scree.
Schedule "B"
~J
-~ a
IN THE CIRCUIT COURT OF THE
NINETEENTH JUDICIAL CIRCUIT IN AND
FOR INDIAN RIVER COUNTY, FLORIDA
CASE N0.20050622-CA03
J & S AVIATION, INC.,
Plaintiff,
vs.
CITY OF SEBASTIAN,
Defendant.
ANSWER, AFFIRMATIVE DEFENSES AND COUNTER CLAIM
COMES NOW the undersigned counsel to Defendant CITY OF SEBASTIAN and
in response to the third amended complaint herein files this, its
ANSWER
1. Paragraph 1 is admitted for jurisdictional purposes only.
2. Paragraphs 2 through 4 are admitted.
3. As to the allegations contained in paragraphs 5 through 7, the document speaks for
itself.
4. As to paragraph 8, it is admitted that the City decided to reactivate runway 9-27, but it
is denied that the decision was made in 2003.
5. As to paragraph 9, it is admitted that the parties executed said agreement on the date
set forth and that a copy of the same is attached as Exhibit B, however it is denied that the
agreement in and of itself modified the lease.
6. Paragraph 10 is admitted, however, a copy of the attachments to said exhibit were not
included in the amended complaint herein.
7. As to paragraph 11, the first sentence thereof is admitted. As to the remaining
allegations therein, the document speaks for itself.
8. As to paragraphs 12 and 13, the document speaks for itself.
9. Paragraph 14 is denied.
10. As to Paragraph 15, Defendant is without knowledge as to the meaning of the terms
"fuel farm at the old location" and "old fuel farm" specifically and, accordingly, demands
strict proof of said allegations.
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11. As to paragraph 16, the agreement speaks for itself as to the first sentence thereof,
it is denied that Plaintiff contacted the Sebastian Airport Manager as alleged, and Defendant
is without knowledge as to the remaining allegations of said paragraph and, accordingly,
demands strict proof of said allegations.
12. As to paragraph 17, Plaintiff is without knowledge as to the allegations contained in
said paragraph and, accordingly, demands strict proof of said allegations.
13. As to paragraph 18, it is admitted that said official told Plaintiff of the need to contact
the fire department, however, it is denied that those were the only requirements told to
Plaintiff.
14. As to paragraph 19, Defendant is without knowledge of said allegations and,
accordingly, demands strict proof of said allegations.
15. As to paragraph 20, it is admitted that the Plaintiff did receive said permit on the date
set forth, however, the remainder of said paragraph is denied.
16. Paragraph 21 is admitted.
17. Paragraph 22 is denied.
18. As to paragraph 23, it is admitted that the Defendant removed the remainder of the
fuel containment structure from the prior leased property, but the remainder of said paragraph
is denied.
19. As to paragraph 24, it is admitted that said official was at the airport in April 2005,
but the remainder of said paragraph is denied.
20. As to paragraph 25, the first two sentences thereof are admitted. The third sentence
thereof is denied.
21. As to paragraph 26, Defendant is without knowledge of the allegations therein and,
accordingly, demands strict proof of said allegations.
22. As to paragraph 27, Defendant is without knowledge as to what date the Plaintiff
received the letter, but admits that said letter was sent. The letter speaks for itself as to the
contents thereof.
23. As to paragraph 28, it is admitted that said letter was sent on the date set forth, it is
denied that said letter advises as to actions taken, and it is set forth that the letter speaks for
itself.
LI .'
24. Defendant is without knowledge as to the allegations of paragraph 29 and,
accordingly, demands strict proof of said allegations.
25. As to paragraph 30 and 31, it is admitted that the letters were sent on the dates alleged
however, Plaintiff's characterizations of the contents thereof are denied and the letters speak
for themselves.
26. Paragraph 32 is admitted.
27. As to paragraph 33, the first sentence thereof is admitted and remainder of said
allegations are denied. '
28. As to paragraph 34, it is admitted that said letter was sent on the date set. forth and the
letter speaks for itself as to its terms.
29. As to paragraph 35, it is admitted that Defendant removed some signs off site, but
denied that these are the business location signs and that said removal was not justified.
30. Paragraph 36 is denied..
31. Defendant re-assert its answers previously set forth to said allegations.
32. As to paragraph 38, it is admitted that the parties entered into the specified
agreements, however it is denied that any additional documents are "clarifying".
33. As to paragraph 39, the contract documents speak for themselves as to the terms and
purposes thereof.
34. Paragraph 40 is denied.
35. As to paragraph 41, the contract documents speak for themselves.
36. Paragraphs 42 through 44 are denied.
37. As to paragraph 45, Defendant is without knowledge as to relationship between
Plaintiff and its attorneys, aserts that the contract language speaks for itself, but denies
Plaintiff s entitlement to payment of said fees.
38. As to paragraph 47, Plaintiff has not existed for 30 years and the principal listed with
the Division of Corporations appears to be someone other than John Van Antwerp.
Accordingly, the first two sentences of said paragraph are denied. The third sentence of said
paragraph has no place in a legal pleading and is therefore ignored.
39. Paragraph 48 is a statement of law and requires no response.
40. Paragraph 49 states legal conclusions and, accordingly, requires no response.
~: _.
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41. As to paragraph 50, it is admitted that city and Plaintiff were both cited, however, the
landowner is always cited for the actions of its tenant in these matters regardless of
complicity.
42. Paragraph 51 is denied.
43. As to paragraph 52, it is denied that the city participated in moving the fuel farm,
admitted that the City demolished a portion of apre-existing fuel farm site, but denied that
City was responsible for obtaining the required approvals.
44. Paragraphs 53 through 57 are denied.
45. As to pazagraph 58, Defendant incorporates by reference the relevant portions of its
Answer to the referenced allegations.
46. As to pazagraph 59, the documents speak for themselves as to the terms therein.
47. Paragraphs 60 through 63 aze denied.
48. As to pazagraph 64, Defendant is unaware as to the relationship between Plaintiff and
its attorneys, but denies the entitlement to payment of said fees by Defendant.
49. As to pazagraph 65, Defendant incorporates by reference the relevant portions of its
Answer to the referenced allegations.
50. As to paragraph 66, Defendant admits that a relationship existed between the parties,
admits the authenticity of the attached documents, but asserts that the documents are not an
integrated "contract".
51. As to pazagraph 67, Defendant admits that a lease was negotiated for a specific
location, but denies that there are unique benefits thereto.
52. Paragraphs 68 and 69 are denied.
53. As to paragraph 70, Defendant is unaware as to the relationship between Plaintiff and
its attorneys, but denies the entitlement to payment of said fees by Defendant.
AFFIIZMATNE DEFENSES
54. As its First Affirmative Defense, Defendant asserts that Plaintiff has "unclean hands"
in its dealings with regulatory agencies in the relocation of its fuel tanks, and is not entitled to
the equitable relief requested in Count N.
55. As its Second Affirmative Defense, Defendant asserts that Plaintiff is estopped in
bringing this action due to its bad faith performance of its obligations and prior breach.
~~
COUNTERCLAIM
Defendant counterclaims against Plaintiff and for cause of action says:
Count I -Possession
56. This is an action for possession of real property located in Indian River County,
Florida.
57. The real property that is the subject of this action, hereinafter called the "Premises",
is
more particularly described in the attached Exhibit "I".
58. The parties entered into a lease agreement for said real property, the terms being set
forth in the Lease attached to the Third Amended Complaint as Exhibit "A" thereto, as
modified by the First Amendment to the Airport Lease, a copy of which is attached as Exhibit
"C" to said Third Amended Complaint, said Exhibits being hereby incorporated by reference.
59. Despite the contractual requirement that it complete relocation by January 1, 2004;
Plaintiff did not have facilities constructed at the Premises as of January 1, 2005.
60. At that point, Defendant informed Plaintiff that the Airport could no longer
accommodate continued operations at the initial leasehold due to grant deadlines and
construction contracts for the runway reactivation project.
61. Despite the requirements of City Code, Plaintiff requested that Defendant allow
operations out of a temporary facility at the Premises for 90 days while the new structure was
completed, and Defendant agreed to allow this accommodation for a period of 120 days.
62. In or around February, 2005, Plaintiff removed the fuel tank located at the original
leasehold and stored it at the Premises.
63. The Indian River County Health Department (hereinafter called the "Department"),
an
agency of the state of Florida, has primary regulatory authority under Florida law in matters
governing the installation, operation and removal of fuel tanks.
64. In violation of state law, Plaintiff removed the fuel tank from the original leasehold
without notice to, or approval from, the Department.
65. Defendant received a Notice from the Department dated April 18, 2005, addressing
~/i ,,
the closure of the fuel facility as a violation of law, a true and correct copy of said Notice
being attached hereto as Exhibit "II".
66. After numerous verbal reminders while Plaintiff was in dispute with other regulatory
agencies over its construction plan permitting, Defendant sent a written reminder to Plaintiff
on Apri120, 2005, that use of the temporary facilities must cease by May 15, 2005.
67. Defendant delivered a Notice dated May 3, 2005, to Plaintiff that it was in default of
the Lease due to the tank relocation issues, and that corrective action was required per the
Lease, a true and correct copy of said Notice being attached hereto as Exhibit "III".
68. After delivery of the Notice contained in Exhibit "II", Plaintiff installed the fuel tank
as part of a fuel farm facility at the Premises.
69. In violation of state law, Plaintiff installed the fuel tank upon the Premises without
notice to, or approval from, the Department.
70. Defendant received a second formal Notice from the Department dated May 18
2005, which included the issue of installation of the fuel facility at the Premises as a violation
of law, a true and correct copy of said Notice being attached hereto as Exhibit "IV".
71. Plaintiff refused to cure the default delineated in Exhibit "III" within the time
provided in the Lease.
72. On June 3, 2005, Defendant gave Plaintiff a second Notice of Default, a true and.
correct copy being attached hereto as Exhibit ""V", due to the continued operations out of
temporary facilities at the Premises.
73. Plaintiff failed to cure the default noticed in Exhibit "V" and, through the present
date, Defendant has continuously operated from the temporary facilities.
74. Further, from January 2005 through March 2006, Plaintiff, as a fiduciary, collected
funds due the Airport for tie-down fees in accordance with .the Lease, yet failed to remit the
same to Defendant until April 17, 2006.
75. On June 22, 2005, Defendant terminated the Lease.
76. By letter dated August 2, 2005, Defendant demanded that Plaintiff vacate the
Premises no later than August 31, 2005. Plaintiff, however, refused to vacate the same and
continues occupancy as a Tenant at Sufferance.
77. Defendant is entitled to possession of the Premises and invokes the summary
_~
.~
procedures of FS 51.011 in this action for possession.
78. Defendant is represented by the undersigned counsel and compensates the same for
legal services. Plaintiff is required to pay the fair value of this legal representation pursuant to
paragraph 34 of the Lease as well as the Florida Statutes.
WHEREFORE Defendant prays that the Court take jurisdiction of the cause herein,
and enter its Judgment granting Defendant possession of the Premises, court costs and such
fiu ther relief as the Court deems meet and proper.
Count II -Quantum Meruit
79. Defendant realleges and incorporates the allegations of paragraphs 58 - 62 and 67 by
reference.
80. 'This is an action in quantum meruit for the fair value of the use of the Premises-
described in Exhibit "I".
81. The terms of the First Amendment to the Airport Lease were negotiated in early 2003
in conjunction with, and attached as an exhibit to, the Buy-out Agreement set forth in the
Third Amended Complaint as Exhibit "B" thereto.
82. Said terms were premised upon Plaintiff taking possession of the Premises and.
constructing its new facility while still in possession of, and operating from, the initial
leasehold.
83, Because the agreements contemplated dual possession of both parcels of land by
Plaintiff, but actual business use of only one at any given time, ,Defendant agreed to the
pazagraph 2 rent abatement provision of Plaintiff's Exhibit "C" as an fair and equitable
accommodation to its tenant.
84. Plaintiff did not undertake construction of its new facilities in a reasonable or timely
manner, and never exercised dual possession of the properties and, accordingly, has never
received a certificate of occupancy for the facilities at the Premises.
85. By allowing Plaintiff to occupy and use the Premises with a temporary facility,
Defendant conferred a benefit to Plaintiff beyond the requirements of the Amended Lease.
86. Plaintiff accepted this benefit with full knowledge that it was beyond the contractual
r~ __
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obligations of Defendant.
87. Citing the rent abatement provision of the Amended Lease, Plaintiff has refused to
compensate Defendant for the occupancy and business use of the Premises.
88. Under these circumstances, it would be inequitable for Plaintiff to have accepted the
benefit of use and occupancy of the Premises without paying Defendant the fair value of the
same.
89. Defendant is represented by the undersigned counsel and compensates the same for
legal services. Plaintiff is required to pay the fair value of this legal representation pursuant to
paragraph 34 of the Lease.
WHEREFORE Defendant prays that the Court take jurisdiction of the cause herein,
and enter its Judgment granting Defendant compensation for the fair value of the use of
Premises, court costs and such further relief as the Court deems meet and proper. -
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by I7.S.
mail to Robert B. Meadows, Esq., 2205 14~' Avenue, Suite 201, Vero Beach, FL 32960 and to
Paul R. Berg, Esq., Co-Counsel for Plaintiff, Clem, Vocelle & Berg, LLP, 3333 20~' Street,; Vero
Beach, FL 32960 this 8~' day of September, 2006.
Rich Stringer, City ~
1225 Main Street
Sebastian, FL 32958
(772)388-8201
FL Bar # 731277
~~
~?~ : "fJ-
A PARCEL OF LAND tYlNG AND 8ElNG !N THE COUNTY OF INDIAN RIVER, STATE OF
FLORIDA, 6ETNC A PORTION OF THE FLEMINC CR4NT • IN TiDWNSHIP 3l SOUTH. RANGE
3i9 'FAST. TAl,LANASSEE il~lERlDIAN, FLORlt~4, AS SHOWN ON THE SUBDNISlON PLAT OF
SAID FLEMING GRANT RECORDED AT PAGES 72 AND T3 IN P[AT BOOK M0. t !N TWE
PUBLIC RECORDS OF THE COUNTY OF BRE~ARD, STAT£ OF FLORIDA. SA10 L4N0 BEING
4fORE PARTTCUL4RLY DESCRIBED AS FOLLOWS:
CQAIAIENCING AT THE EASTERLY CORNER OF SECTION 29 OF THE FLEMIIVG GRANT !M
TiDWN5HIP 3f SOUTH. RANGE 38 EAST. TALLAHASSEE NERIONW. FLOR!!34 A5 SHOWM
OIV THE SU$DMSION PLAT OF SAID fLE~flNG GRANT RECORDED AT PAGES T2 AND T3
!N PLAT' BOOK N0. 1 !N THE PUBUC RECORDS OF THE COUNTY OF BREVARD. STATE
OF FLORIDA. RUN SOUTH 44'59'29' WEST .ALONG THE 50UTHEASTERLY UNE OF SAID
SECTION 29 A DISTANCE OF 268.3.27 FET:?,• THENCE DEPARTING SAID SDUTHEAS'TERLY-
LNY~ RUN NORTH 45'00'31'" WEST A DISTANCE OF 1726,30 FEtT T70 THE P01NT OF
8EGlNN1NGi ~ FROM THE POWT OF 8E'GlNNlIVG RUN SOUT?4 39.53'00" WEST A DISTANCE'
OF 70,06 FEETi THENCE RUN SOUTH 89'47'36' WEST A D15TANCE OF 51 i.49 FEETi
!HENCE RUN NORTH 44'35'50" E+0.ST A DISTANCE OF 374.93 FEET; TJIENCE RUN
SOUTH 4+5'08'03" EAST A DISTANCE OF 120.22 FEET; THENCE RUN NORTH 43'23'-18"
EAST A DISTANCE OF 57.02 FEET; THENCE RUN SOUTH 4,'3'09'00" EAST A DISTANCE
OF 238.14 FEET 70 THE POINT OF BEGlNNIMaG
SAID LANDS NOW ~ LYING i9ND' 6ETNG IN ~IND~4N RNER COUNTY, J20RIDY~ • GONTA-NING
f.93 ACRES, MORE OR LEA
1~
~.o~ ~axr of
7eb Hersh ~A~fi Jahn O. Ag~wnohi. M.D., M.H.A.
Govemur
5ee:re
INDIAN RIVER COUNTY HEALTH DEPARTMENT
Apri118, 2005
Mr. Michael Stanek, Registered Agent
~ and S Aviation, Inc.
302 Airport Drive East
Sebastian, FL. 32958
CERTIFIED No: 7004 2510 0006 2432 6242
RL: FDFP Facility #318509256
J and S Aviation, Ync
Dear Mr. Stanek:
This letter constitutes Format Notice to Contact Violation of Chapter SS-427, Special
Acts, Laws of Florida, the Indian River County I3nviranmental Control Act, Indian River
Coumy EnvironmentaJ..Control Rule 1 S Indian River County .ordinance No. 9122, and .
the following Iaavs.aud r-ales-which-axc-adopted~by-reference-in the-said Act,~.Ru1e,_aud --:~...-
Qrdinance. This notice is given pursuant to the authority of the Indian River County
Bnvironmental Control Act, Chapter 85-427, Laws of Florida. S
The faIlawing violations were found to exist at the aforementioned facility located at 302
AirpartDrive Fast; Sebastian, Floridaby representatives bf #his depar6ment.
VIaLATION:
i. Chapter 52-761.400(4)_Z Florida Administrative Code. Failure to submit
notification to the department for the change in status of the Pollutant Storage System.
2. Chapter 62-761.450(1}(a)-2 I+'Iorida Administrative Code. Failure to submit
required notification within l0 days of Pollutant Storage System Closure to this office.
3. Chapter 62-761.450(1)(a)-3 Florida Administrative Code. Faihire to submit
required notification within 48 hours of Pollutant Storage System Closure to this office.
4. Chapter 52-751.450(1)b Florida Administrative Code. Failure to provide
notification within 30 days to this department for closure of the Pollutant Storage System..
5. Chapter 62~761.800(Z}a Florida Administrative Code. Failure to provide the
requirements for "out of service status" of a Pollutant Storage System.
Etsvirn:nnt~:tal Hcelttt Telephaee: (772)794-7440
1900 -27fle Streit 8unextn: 259 7440
vein B~ FL.3346U Fax: {770794-7447
~~
1~-~l. ~ 1 i ~_L._
Formal Notice to Correct Violation
Page iwo
6. ~ Chapter 62-'161.800{3)(a){I)-a Florida Administrative Code. Failure to
properlyramove-all liquids and sludge from an "out of service" Pollutant Storage System.
7. Chapter 62-761.800(3}(a}(i}-a Florida Ailminisfrative Code. Failure to
properly render free all explosive vagors from an "out of service" Pollutant Storage
System
CO}1S.tEC7.'IVE ACTION: Within 14 business days of receipt of this letter, you are
required to. provide a written response specifying dates and details of each and every act
by you which you contend constitutes compliance with the above requiremers.
If you are unable to comply with any ofthe requirements of this letter, it is imperative
that you immediately call Mr. Charles Vogt of this office. No ad1usiment of the above
requirements or extensions of the deadlines in this letter shall be valid unless made in
venting.. Any extensions or adjustments must be sought and obtained priar to the
expiration of the stated deadlines.
Failure to correct the above violations within. the specif ed time may result ~ a summons
to appear before the IndianRYVer County EnvironmentalControlHeoring Board or
Circuit Court and could sabject you to a fvae of up to Five Hundred Dollars ($S40}per
day gcr violation. In addition, you are subj ect to #"ines of up to Five Hundred Dollars
($504) per day far each day you cre ate a Public Health Threat, pr conduct an Activity ~ .
which Results .in Environmental Damage, ar conduct an Activity Without or. in Violation
of a.R ~~ired Permi#. Accordingly, a Notice ~f Nan Compliance will be filed with the '~
Indian River County Environmental Control Hearing Board seeking Civil Penalties in S
this matter.
Sincerely,
a
Charles L.Vogt, 111IS~CPSSI
Envirommental Speciakist III
~i 3
May 3, 2005
John Van Antwerp
J&S Aviation
302 East Airport Dr.
Sebastian, FL 32958
Subject: Default of Lease Agreement
Dear Mr. Van Antwerp,
We have received the following attached warning. from the Florida Department of Health.
This constitutes an "Event of llefault" in that item (1) of paragraph (5), as well as
subparagraph (a) of paragraph 39, of the lease agreement between J&S Aviation Inc. and.
the City of Sebastian requires that the'use of the property, and the fuel farm specifically,
comply with all federal, state and local law3~, rules and regulations. Further, legal- action
by the Florida Department of Health may subject the City to fines and penalties du` to
your actions, which shall be an additional area of default. ~~
Accordingly, please consider this to be notice pursuant to paragraph 21 of the Lease that
these items of default must be remedied within 30 days hereof or the Lease shall be
subject~to termination.
As always, please . do not hesitate to contact me at 581-0111, should you have any
questions or concerns regarding this matter.
Sincerely,
Ryan Denver
Airport Management Specialist
Ord
cc: Jim Davis, City Manager .
Rich Stringer, City Attorney
E:\TenantsV&S AviationV.ease Compliance.doc
~ `~
~..~ 7~-~-l l~~ ( -' '-
F~L01RIDrA, DEPARTML?NI` OF
Jeb Bush ,~ T
Governor 1 11J~ John O. Agwunobi, M.D., M.B.A.
Secrete
INDIAN RIVER COUNTY HEALTH DEPARTMENT
May 18, 2005
City Manager through
Rich Stringer, City Attorney
City of Sebastian
1225 Main Street
Sebastian, FL 32958
CERTIFIED NO: 7004 2510 0006 2432 6501
RE: FDEP Facility #318509256, J and S Aviation, Inc.
Violation of Chapter 62-761, Florida Administrative Code
Deaz Sir or Madam :
REC~~V~~
MAY ~ :q ~U05
BY:
This letter constitutes Formal Notice to Correct Violation of Chapter 85-427, Special
Acts, Laws of Florida, the Indian River County Environmental Control Act, Indian River.
County Environmental Control Rule 1, Indian River County Ordinance No. 91-22, and
the following laws and rules which are adopted by reference in the said Act, Rule, and
Ordinance. This notice is given pursuant~o the authority of the Indian River County
Environmental Control Act, Chapter 85-427, Laws of Florida.
. ~ S
The following vioiations:were found to exist at the aforementioned facility located~at 302
Airport Drive East and 204 East Airport Drive East, Sebastian, Florida.by representatives
of this department.
I. Violations for the above ground pollutant storage tank originally located at the
former J&S Aviation facility site registered at the above facility:
Chapter 62-761.450(1)(x)(2), Florida Administrative Code. Failure to submit required
notification within 10 days of Pollutant Storage System Closure to this office.
Chapter 62-761.450(1)(a)(3), Florida Administrative Code. Failure to submit required
notification within 48 hours ofPollutant Storage System Closure to this office.
Chapter 62-761.450(1)(b), Florida Administrative Code. Failure to provide
notification within 3Q days to this department for closure of the Pollutant Storage System.
CORRECTIVE ACTION: Within 30 days of receipt of this letter the results from soil
and ground water analysis collected in accordance with the standard closing of a storage
tank system referenced in Chapter 62-761 FAC, shall be submitted to this office for
review. The area to be tested is at the former J&S Aviation pollutant storage tank site at
302 East Airport Drive. In the event contamination exceeding state soil and /or ground
water critena is discovered; this shall be reported within 24 hours and immediate actions
to contain and abate contamination shall be implemented and completed in a timely
manner in accordance with 62-770 FAC..
Environmental Health
1900 - 279 Street Telephone: (772)7947440 J' / ~ G;
Vero Beach, FL31960 Suncom: ~ 259-7440 ~~
Fax: (772)794-7447
~~~1 ~1 r ~
Formal Notice to Correct Violation
Page two
II. Violations for the above ground pollutant storage tank intermediately
located in and around 204 East Airport Drive, the J&S Aviation facility compound:
Chapter 62-761.40(1)(a)(2). Florida Administrative Code. Failure to submit
notification to the department for the change in status of the Pollutant Storage System.
Chapter 62-761.500(1) through (4), Florida Administrative Code. Failure to properly
install an above ground pollutant storage tank.
Chapter 62-761.510(1) through (3), Florida Administrative Code. Failure to
secondarily contain an above ground pollutant storage tank.
Chapter 62-761.600(1), Florida Administrative Code. Failure to conduct release
.detection for an above ground pollutant storage tank.
Chapter 62-761.640(1) and (2), Florida Administrative Code. Failure to record
release detection for an above ground pollutant storage tank
Chapter 62-761.800(2) and (3), Florida Administrative Code. Failure to empty and
render freeliquids_and explosive gases from an "out of service" above ground pollutant - -
storage tank.
CORRECTIVE ACTION: Within 30 days of receipt of this letter, retain the services
of a q ed environmental consultant to conduct an evaluation into the potential for soil
and ground water contamination from theistorage tank system, and submit said evaluation:
to this office for review. The area to be tested is at the intermediate J&S Aviation `
compound pollutant storage tank site at 204 East Airport Drive. In the event
contamination exceeding state soil and /or ground water criteria is discovered, this shall
be reported within 24 hours and immediate actions to contain and abate the
contamination shall be implemented.
III. Violations for the above ground pollutant storage tank newly located at the
J&S Aviation facility site.
Chapter 62-761.450(1)(a), Florida Administrative Code. Failure to provide
notification within 48 hours to this deparment of the installation of a Pollutant Storage
System.
Chapter 62-761.450(1)b, Florida Administrative Code. Failure to provide registration
within 30 days to the FDEP~for installation of a Pollutant Storage System.
Chapter 62-761.800(2) and (3), Florida Administrative Code. Failures to upgrade,
inspect, evaluate, and test an above ground pollutant storage tank system prior to
returning the system to service.
CORRECTIVE ACTION:
Wi 30 ys o receipt .of this letter, plans certified by a professional engineer shall be
submitted for review to this office for the aboveground pollutant storage system
construction. These plans shall be reviewed and approved by the Fire Department and
any other applicable agencies for compliance.
~~'
Formal Notice to Correct Violation
Page three
All requirements by these agencies shall be implemented prior to usage. Engineering
attention should be made to the requirements found in 40 CFR 112 (Spill Prevention
Control and Countermeasure Plan -SPCC) for facility compliance with Federal Law.
If you are unable to comply with any of the requirements of this letter, it is imperative
that you immediately call Mr. Charles Vogt of this office. No adjustment of the above
requirements or extensions of the deadlines in this letter shall be valid unless made in
wntmg. Any extensions or adjustments must be sought and obtained in writing prior to
the expiration of the stated deadlines.
Failure to correct the above violations within the specified time may result in a summons
to appear before the Indian River County Environmental Control Hearing Board or
Circuit Court and could subject you to a fine of up to Five Hundred Dollars ($500) per
day per violation. In addition, you are subject to fines of up to Five Hundred Dollars
($50.0) per day for each day you create a Public Health Threat, or conduct an Activity
which Results in Environmental Damage, or conduct an Activity Without or in Violation
of a Required Permit. Accordingly, a Notice ofNon-Compliance will be filed with the
Indian River County Environmental Control Hearing Board seeking Civil Penalties in
this matter.
......Sincerely, ,`
~ t
Charles ogt, III, CPSSI
Environmental Specialist III
C~
June 3, 2005
John Van Antwerp
J&S Aviation
302 East Airport Dr.
Sebastian, FL 32958
Subject: Default of Lease Agreement
- Dear Mr. Van Antwerp;
Despite written notice to cease, you have continued to operate out of temporary facilities
at your airport site beyond the grace period granted by the City for such operations.
Accordingly, you are in violation of City Code provisions against the-use of land other
than in accordance with an approved site plan. -
~ .
This constitutes an `went of Default" in that the lease agreement between J&S Aviation
Inc. and the City of Sebastian requires that the use . of the property comply v~ith all
federal, state and local laws, rules and regulations.
Accordingly, please consider- this to -be notice pursuant to paragraph 21 of the Lease that
these items of default must be remedied within 30 days hereof or the:Lease shall be
subject to termination.
As always, please do not hesitate to contact me at 581-0111, should you have any
questions or concerns regarding this matter:
Sincerely,
Jason Milewski
Airport Manager
Ord _ .
cc: Al Minner, City Manager
Rich Stringer, City Attorney
E:\TenantsU&S Aviaflon\L,ease Compliance2.doc
~%
L X~ i3~ i v
09-29-`06 16.24 F130M-GLEN, VOCELLE & BERG 772-562-2870 T-79.7 P003/007 F-931
IN THE CIRCUIT COURT OF THE 19rH
JUDICIAL CIRCUIT IN AND I;OR
INDIAN RIVER COUNTY, FLORIDA
CASE NO.: 20050622-CA-03
] & S AV CATION, INC.
Flair~tiff,
vs.
CTTY OF SEBASTIAN
REC]EIV~IJ
0 C T W ~ Z006
~ _.T_ : _:
Defendant.
ANS'VVER AND AI+FIRMATIV'B DEFENSES TO COUNTERCLAIM
The Plaintiff, ] & S AVIATION, INC., by and through-its undersigned attonley -
files this 1,nsvver and Affirmative Defenses to the Defendant's Counterclaim and states:
Count I -Possession
56: Denied.
S7. Denied.
5$. Admitted that the party entered into a lease agreement. The terms are set
forth in al: of the attachments as set forth in the Third Amended Complaint.
59. Denied.
64. Denied.
61. benied.
62. Denied.
63. Denied.
64. Denied.
65. Denied.
66. Denied.
,•'"`~,.
~~~~
09-29-'06 16;24 FF30M-GLEN, VOCELLE & BEBG 772-562-2870
J do S Avis rtion, Inc. v. City of Sebastian
Case No.: 2005-0622-CA~03
Alaintdf, j`''s Answer and A~rmatdve Defenses to Counterclaim
b7. Denied.
b8. Denied.
69. Denied.
70. Denied.
71. Denied.
72. Denied.
73. Denied.
74. Denied.
75 Denied.
7b. Denied.
77. Denied.
78. Denied.
ount II - Quantum Meruit
T-717 P004/007 F-931
RECEI~~
0 C T - 1 2006
T3Y: a~_
79. The Plaintiff, J & S AVIATION, INC., realleges and reavers responses to
paragraph > 58- b2 and 67 as if set forth fiilly herein.
80. Denied.
81. Denied.
82. Denied.
83. Denied.
84. Denied.
8S. Denied.
$6. Denied.
Page 2 of 3
C~,;
09-29-'06 16;24 FBOM-GLEN, VOCELLE & BERG 772-562-2870
,I & S Avfa Lion,1'n~c. v. City of Sebastian
Case No.: 2005-0622-GA-03
Plainnf~"s ~4nswer and A~rmative Defenses to Counterclaim
87. Denied.
88. Denied,
89. Denied.
90. Every allegation not expressly admitted herein is denied.
Affirmative Defenses
T-77.7 P005/007 F-931
REC~~ . -
ocr - 1 Zoos
BY:
91. As a first affirmative defense, the Plaixtiff asserts that the Defendant has
unclean hf nds attd is not entitled to equitable relief requested in its Counterclaim.
92. As a second affirmative defense, the Plaintiff asserts that the Defendants is
estopped f rom bringing this action due to its bad-faith performance and its obligations and p~7or
breach of he agreements between the parties.
Demand far Jury Trial_
The Plaintiff demands a trial by jury on all issues so triable on the Counterclaim.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. mail, postage prepaid, to: Rich Stringer, Esquire, Attorney for City. of
Sebastian, 1225 Main Street, Sebastian, Florida 32958, and ob Meadove~ 1705 9th Flare,
Vera Bcac h, Florida 32960, Co-Counsel for Plaintiff, on this day of , 2006.
CX.EM, VOCELLE & BERG, L.L.P.
Attorney for Plaintiff
3333 20th Street
'Vero Beach, FL 32964-2469
Telephone: (772) X62-8111
Facsimile : (772_~5.fa2~2870
By:
No: '9~i 172
p;Vlpps~4tpp~ \I~RPraC~Case biractoryV ~ 5 Aviation, Inc~WeadmgsW~we~ Snd Alf. oefenses to CounCarclBiM 09.29.06.Jb.doc
Page 3 of 3
C~ 1
~~ ~-
09-29-' 06 16 23 F130h1-GLEN, VOCELLE & BEF3G 772-562-2870 T-717 P002/0®7 F-931
IN THE CIRCUIT COURT OF THE 19~"
JUDICIAL CIRCUIT IN AND FOR
INDIAN RIVER COUNTY, FLORIDA
CASE NO.; 2005-0622-CA-03
J 8c S AVI. ~TION,ING. JUDGE; ROBERT A. I•IA'WLEY
Plaintiff, -
vs. OCT ~ ~ ZUU6
CITY OF ; EBASTIAN BY:
befendant.
REPLY TO AFFIRMATIVE DEFENSES
The Plaintiff,: J & S AVIATION, INC., by and through its undersigned attorneys
hereby file; this Reply to Defendant, CITY OF SEBASTIAN'S, Affirmative Defenses and
states:
1. J & S Aviation, Inc. denies each and every affirmative defense and
demands st ict proof thereof.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished H y U.S. mail, postage prepaid, to: Mich Springer, Esquire, Attorney for City of
Sebas#ian, .225 1Vlain Street, Sebastian, Florida 32958, and...$ Meado , I7 19th Place,
Vero Beach , FIorida 32960, Co-Counsel for Plaintiff, on thi day of , 2006.
CLEM, VOCEI,LE & BERG, L.L.P.
. A,ttvrncy for Plaintiff
3333 20th Street
Vero Beach, FL 32960-2169
Telephone: (772) 562-8111
Facsimile :~~) 562-2$70
By:
Bar No. 901 I72
j , '7 L'iQ ~ ~ GI
D:URDeVWCpD2~ ~fPrac~Case DirecWry~l 8 S Aviation, in~pleadmgsVteply to At(. Defenses 04.29.06.jD.0oe
r~ y~
VOCELLE ~ BERG, L.L.P.
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
OF PROFESSIONAL ASSOCIATIONS:
LOUIS B. VOCELLE, JR., P.A.*O°
PAUL R. BERG, P.A.* O
3333 - 20TH STREET
VERO BEACH, FLORIDA 32960-2469
TELEPHONE (772) 562-8111
FAX (772) 562-2870
INTERNET www.cpvlaw.com
BREVARD COUNTY OFFICE
321 SIXTH AVENUE
INDIALANTIC, FLORIDA 32903
TELEPHONE: (321) 725-3303
PETER J. SWEENEY, JR.
ROBERT GOLDEN, RETIRED PLEASE REPLY TO VERO BEACH
OF COUNSEL
July 3, 2007
VIA FACSIMILE (772-589-5570)
Richard Stringer, Esquire
City of Sebastian
1225 Main Street
Sebastian, FL 32958
Re: J & S Aviation, Inc. v. City of Sebastian
Dear Rich:
ST. LUCIE COUNTY OFFICE
133 SO. SECOND STREET, SDTTE 106
FT. PIERCE, FLORIDA 34950
TELEPHONE: (772) 489-0774
* BOARD CERT. CIVIL TRIAL LAWYER
O BOARD CERT. BUSINESS LFFIGATION
¢ CERTIFIED CIVIL MEDIATOR
RE C EI~TEI~
JUL 5 2007
BY:
Please allow this letter to confirm the settlement that has been tentatively reached
between the parties in the above-referenced case. My understanding of the terms of the
settlement are as follows:
1. The City of Sebastian will pay $200,000.00 to J & S Aviation, Inc within
l0:days of counsel approval.
2. J & S Aviation, Inc. may keep the steel building currently sitting on the
site. and may keep the fuel tank and fueling equipment at its option.
3. J & S Aviation will vacate the premises and remove all property no later
than August 31, 2007.
4. J & S Aviation, its principals and their immediate family members will not
take direct or indirect ownership interest or managerial positions in any
commercial operation located on the Sebastian airport for a period of ten
(10) years.
If my understanding of any of the terms of this settlement are incorrect, please
advise immediately. I understand that you will attempt to hold a special meeting of the City
counsel in order to approve this settlement and bring this matter to a final conclusion. Given the
short time frame in which this case might be tried, I am asking that you advise me when you
think this special meeting .will be held and whether we should advise the Court of the time
frames for approval of this settlement.
Thank you for your attention to this matter.
Sinc r y
P 1 R.~
PRB/jb ~/ _ _
cc: J & S Aviation, Inc. ~j
._J