HomeMy WebLinkAbout09-304 1 RESOLUTION NO. 09 - 304
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3 A RESOLUTION WAIVING THE COMPETITIVE
4 BID/PROPOSAL REQUIREMENTS FOR LEASE OF
s LOTS 1, 2 AND 3, AIRPORT WEST COMMERCE
6 PARK TO A MEDICAL SUPPLY AND TESTING
~ PRODUCTION FIRM PURSUANT TO SECTION 1-
s 16.2-9 (BID/PROPOSAL WAIVER PROCEDURE) OF
9 THE ST. LUCIE COUNTY CODE OF ORDINANCES
to AND COMPILED LAWS; AUTHORIZING THE CHAIR
11 OF THE BOARD OF COUNTY COMMISSIONERS TO
12 EXECUTE THE LEASE AGREEMENT ON BEHALF OF
13 THE COUNTY; AND PROVIDING AN EFFECTIVE
14 DATE
1S
16 WHEREAS, the Board of County Commissioners of St. Lucie County, Florida,
1~ has made the following determinations:
is
19 1. On October 6, 2009, the Board adopted Ordinance No. 09-028 which
20 amended Chapter 1-16-2 (Public Property) of the St. Lucie County Code of
21 Ordinances and Compiled Laws to establish alternative leasing standards and
22 procedures for the Airport West Commerce Park located at the St. Lucie County
23 International Airport.
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2s 2. The Board desires to enter into a lease agreement with a medical
26 supply and testing production firm known as "Project Can Do", (the "Lessee), for
27 certain property located in the Airport West Commerce Park.
2s
2a 3. Use of the alternative leasing procedures for the Airport West
3o Commerce Park will better address the needs of both the County and the Lessee.
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32 NOW, THEREFORE, BE IT RESOLVED by the Board of County
33 Commissioners of St. Lucie County, Florida:
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3s 1. The Board hereby makes the following findings of fact:
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1
i A. The Lessee desires to lease the following described Premises
2 from the County:
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4 Lots 1, 2, and 3, Airport West Commerce Park Phase I, as
5 recorded in the Plat thereof in Plat Book 60, Pages 31-35
6 of the public records of St. Lucie County, Florida.
s B. The Lessee intends to construct on the above-described
a Premises a manufacturing and research facility for a targeted
to industry meeting the criteria set forth in Section 1-7.55-1(d)(2) of
i i the St. Lucie County Code of Ordinances and Compiled Laws, namely a
12 medical testing and supply production firm which will employ a
13 minimum of sixty (60) persons by December 31, 2011, an additional
14 sixty (60) persons by December 31, 2012, and an additional forty (40)
is persons by December 31, 2014, with an average annual wage of sixty
16 thousand and 00/100 dollars ($60,000.00).
i~
~s C. The Lessee's intended use of the leased premises will significantly
is enhance economic activity in the County.
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2i 2. Pursuant to Section 1-16.2-9, the Board hereby waives the competitive
22 bid/proposal requirements for the proposed lease of the Premises to the Lessee.
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24 3. The Board further authorizes the Chair to sign the Lease Agreement,
d i co orated herein as Exhibit "A" as
hich is attached hereto an n r
2s a co of w ,
P
pY
26 negotiated by the County Administrator and approved as to legal form and
27 correctness by the County Attorney.
2s
29 4. In the event of any conflict between terms and conditions of this
3o resolution and the St. Lucie County International Airport Leasing Policy and
31 Procedure, this resolution shall control.
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33 5. This resolution shall take effect upon the date of adoption.
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4 After motion and second, the vote on Resolution 09-304 was as follows:
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6 Chair Paula Lewis AYE
7 Vice-Chair Charles Grande AYE
s Commissioner Doug Coward AYE
9 Commissioner Chris Craft AYE
to Commissioner Chris Dzadovsky AYE
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12 PASSED AND DULY ADOPTED this 3rd day of November 2009.
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14
15 ATTEST: BOARD OF COUNTY COMMISSIONERS
16 / ST. LUCIE C LORIDA
17
-
18 BY:
19 DEPUTY C CHAIR
r ,
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23 ~ ~,;5. ;"~r~ APPROV AS TO LEGAL FORM AND
~a ~ 4"~ _ CORRECTN 55:
24 E if ° ~ ~ ro~. ~
25 i* r ~ ~ f
26 ~ ~
27 ~ ~ t ~ C LINTY ATT N
29 5;\atty\resoltn\2009\09-304.doc
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LEASE AGREEMENT
THIS IS A LEASE AGREEMENT, by and between the ST. LUCIE .
COUNTY, a political subdivision of the State of Florida, ("Lessor"), and PROJECT
CAN DO, ("Lessee").
In consideration of the mutual promises and covenants contained in this
Lease and other good and valuable consideration, the receipt of which is
acknowledged, it is agreed between Lessor and Lessee as follows:
1. PREMISES. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, certain real property located at ,Fort
Pierce, Florida, and more particularly described in Exhibit "A", attached hereto and
incorporated herein, ("premises" or ".leased premises").
2. PURPOSE. Lessee agrees to use the premises for a manufacturing
production facility. Within thirty-six (36) months of the date written above, the
Lessee shall design, permit and construct a building with a 200,000 square feet
obtain a certif icate of occupancy and/or commence operations on the leased
premises. Failure to obtain a certificate of occupancy or commence operations
within such period shall be considered a default under Paragraph 16 of this Lease.
The use of the leased premised by the Lessee is specifically subject to the rules,
regulations, and conditions promulgated by the Lessor, the Federal Aviation
Administration or its successor agency, or by St. Lucie County, the State of
Florida or any other federal, state, or local agency having jurisdiction over the
operations of St. Lucie County International Airport and is further subject to the
terms, conditions, and regulations imposed by the Lessor, including but not limited
to the "St. Lucie County International Airport Leasing Policy and Procedure", a copy
of which is attached hereto and incorporated herein as Exhibit "B". In the event
of a conflict between the terms and conditions of this Lease and the above-
refernced Leasing Policy, the terms and conditions of this Lease shall control. The
parties further acknowledge and agree the leased premises were constructed
pursuant to U.S. Department of Commerce Financial Assistance Award No. 04-01-
05375 and the use of the leased premises is subject to the terms and conditions
of said Award.
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3. MUTUAL REPRESENTATIONS AND WARRANTIES. Lessee
acknowledges that it has made, or had an opportunity to make, a thorough and
complete inspection of the leased premises and is fully advised of its condition,
nature of construction, if any, and state of repair. Lessee fully accepts the leased
premises in its present state of condition. Lessor warrants that Lessor has full
authority to enter into this Lease, notwithstanding the foregoing; Lessee may
conduct additional site inspections, and may, at Lessee's sole discretion terminate
this lease with written notice to Lessor within Sixty (60) days of the Effective
Date of this Lease Agreement.
4. INDEMNIFICATION AGAINST CLAIMS. The Lessee is and shall be an
independent contractor and operator, responsible to all parties for all of its acts
or omissions and the Lessor shall in no way be responsible for such acts or
omissions. The Lessee shall and will indemnify and hold harmless Lessor from and
against any and all liability, claims, demands, damages, expenses, fees, fines,
penalties, suits, proceedings, actions, and costs of actions, including reasonable
attorney's fees of any kind and nature arising or growing out of or in any way
connected with the use, occupation, management, or control of the leased premises
by the Lessee or its agents, servants, employees, customers, patrons, or invitees,
arising out of or in any way connected with the operation or conduct of any
business or businesses of the Lessee or its agent, servants, employees, customers,
patrons, or invitees, whether on the leased premises or surrounding area, or
resulting from injury to person or property, or loss of life or property of any kind
or nature whatsoever sustained during the term of this agreement, in or about the
leased premises or surrounding area (except for injuries, damages or claims which
are the result of the primary negligence of the Lessor and for which the Lessor is
legally, directly, and primarily liable).
5. NO LIENS CREATED. Lessee 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 Lessor in and to the property covered by this lease, and
that no third person shall ever be entitled to any lien, directly or indirectly derived
through or under the other party, or its agents or servants, or on account of any
act or omission of any other party, except as allowed in this section and detailed
below. All persons contracting with Lessee, or furnishing materials or labor to
Lessee, or to its agents or servants, as well as all persons whomsoever, shall be
bound by this provision of the lease.
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6. Leasehold Mortgages.
1) Lessee, may from time to time during the term of this Lease
mortgage, hypothecate, or encumber, in whole or in part, its leasehold estate,
subject to Lessor's prior written consent, which shall not be unreasonably withheld
or delayed, and which consent shall not be withheld provided in each case that:
(a) The holder of the Leasehold Mortgage shall be an
Institutional Lender whose lending activities are regulated or supervised by an
agency of the federal government or the State of Florida, with a minimum tangible
net worth (i.e. net worth less intangible assets such as goodwill, trade names, patent
rights and the like) or capital and surplus, at the time of such encumbrance or
hypothecation, of at least Twenty Million Dollars ($20,000,000) but in no event less
than the minimum net worth required to be maintained by such lender under any
applicable regulations of the Federal Deposit Insurance Corporation, the Federal
Savings and Loan Insurance Corporation, or any other applicable federal or state
governmental agency;
(b) In no event shall Lessor be required to encumber or
subordinate its fee title to the Premises or any part thereof or interest therein for
any reason;
(c) The Leasehold Mortgage shall not prohibit the disposition
and application of insurance proceeds and condemnation awards as provided herein;
(d) The Leasehold Mortgage shall encumber only the Lessee's
interest as Lessee in the Premises and its interest as owner of the Improvements;
(e) The Lessee or holder of the Leasehold Mortgage shall
promptly deliver to the Lessor, in the manner herein provided for the giving of
notice to Lessor, a true copy of the Leasehold Mortgage and any assignment
thereof, and shall notify the Lessor of the address of the holder of the Leasehold
Mortgage to which notices from the Lessor may be sent; and
(f) Until such time as construction of the Improvements
contemplated by this lease is complete, all of the proceeds from any loan secured by
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the Lessee's interest in the Property shall be utilized in connection with the
development and construction of such improvements.
(2) In the event that Lessee encumbers or hypothecates its interest
in this Lease as security for a loan as permitted above, and provided that Lessee
delivers written notice to Lessor of the name and address of the lender of such loan,
then Lessor hereby agrees that Lessor will give written notice of any default under
the terms of this Lease, by registered or certified mail, to such lender at the
address contained in such notice. Provided Lessee gives to Lessor written notice of
the name and address of such lender as required above, no notice of a default by
Lessor to Lessee shall be deemed to have been duly given to Lessee unless and until a
copy thereof has been mailed to such lender at the address provided. Such lender,
in case Lessee shall be in default under this Lease, shall, within the period and
otherwise as herein provided, have the right to remedy such default, or cause the
same to be remedied, and Lessor shall accept such performance by or at the
instance of such lender as if the same had been made by Lessee. Provided Lessee
gives to Lessor written notice of the name and address of such lender as required
above, Lessor shall not take any action to terminate this Lease because of any
default or breach thereunder on the part of Lessee if such lender (i) within sixty
(60) days after mailing of written notice to such lender from Lessor of its intention
to terminate the Lease for such default or breach, shall cure such default or breach
if the same can be cured by the payment of expenditure of money, or (ii) shall
diligently take action to obtain possession of the Premises (including possession by
receiver) and to cure such default or breach in the case of a default or breach
which cannot be cured unless and until such lender has obtained possession and shall,
during such time, pay all rental and all other payments required to be made under
this Lease, or (iii) if such default or breach is not so curable under the foregoing
subparagraphs (i) or (ii), shall institute and carry forward with due diligence
foreclosure or sale proceedings under its mortgage or deed of trust securing such
loan and pay all rental and all other payments required to be made under such Lease
until such time as Lessee's interest in this Lease shall be sold upon such foreclosure
or sale proceedings pursuant to said mortgage or deed of trust; provided, however,
such lender shall not be required to continue such action for possession or such
foreclosure or sale proceedings if such default or breach shall be cured by Lessee.
Upon completion of any such foreclosure or sale proceedings under said mortgage or
deed of trust, the purchaser (whether such lender or otherwise) at such sale will be
recognized by Lessor as Lessee under the terms of this Lease for all purposes and
shall be bound hereby for the remaining term hereof. A lender who acquires title to
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Lessee's interest in this Lease by acceptance of a deed in lieu of foreclosure shall
be deemed a "purchaser" for these purposes.
It is acknowledged and agreed by the Lessor and Lessee that bonds or other
indebtedness may be issued for purposes of financing or reimbursing the costs of
certain development, construction and acquisition of all or a portion of the Lessee
Improvements and Equipment. The Lessor acknowledges and agrees that the
obligation of the Lessee to repay the bonds or any indebtedness associated
therewith, may be secured by a leasehold mortgage from the Lessee to a bond
trustee or other lender in a form reasonably acceptable to the Lessor (the
"Leasehold Mortgage"), pursuant to which Lessee shall grant a mortgage to the
trustee or lender encumbering Lessee's leasehold estate created by this Lease and
any and all of Lessee's right, title and interest in and to this Lease. The parties
hereto recognize that, if Lessee so requests, and the bonds or other indebtedness
are issued and sold to finance the Lessee Improvements as contemplated herein, it
may become necessary to modify or amend this Lease to make the bonds or other
indebtedness saleable. The parties hereto agree that in the event the bondholders
or the underwriters of the Bonds require modifications or amendments to this
Lease (exclusive of economic modifications or amendments), the parties will in good
faith consider and, if reasonable and not contrary to the parameters set forth
below, negotiate the terms of such modifications and amendments as may be
reasonably required by such parties; provided, however, that neither party shall be
obligated to agree to any modification or amendment that results in: (i) the
creation of any mortgage interest, security interest, lien, or any other
encumbrance on Lessor's interest in the leasehold premises other than as provided
in paragraph 1)(b) and (d) of this Section 6; or (ii) the Lessor or the Lessee
incurring a greater financial obligation, economic burden or financial risk than is
set forth herein; or (iii) that places additional obligations or liability on the Lessor
or releases Lessee from any obligations or liability hereunder; or (iv) that
otherwise deprives a party of the benefit, or deviates from the basis, of their
bargain as set forth herein; or (v) that is deemed, in the reasonable judgment of a
party, less favorable than the terms hereof.
7. OPERATION COSTS. Lessee agrees promptly to pay when due all of its
operating, maintenance and servicing charges and costs, including telephone, gas,
electricity, water and sewer, and all other expenses incurred in and use and
operation of the leased premises.
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Lessee agrees to obtain at its expense all permits and licenses which may be
required by any governmental unit. Upon Lessor's request, at reasonable intervals,
Lessee shall promptly furnish to Lessor evidence satisfactory to Lessor showing
Lessee's compliance with its obligations under this section.
Lessee shall be responsible for the payment of any and all ad valorem taxes
and other taxes and/or assessments, which may be assessed against the leased
premises during the term of this Lease. Lessor and Lessee acknowledge that
Lessee intends to apply fora 10 year declining tax abatement for the property and
anticipated improvements to be constructed thereon.
8. BANKRUPTCY OF LESSEE. Should Lessee, at any time during the term
of this lease, file a voluntary petition in bankruptcy, or permit an involuntary
petition in bankruptcy to be filed against it, or institute a composition or any
arrangement proceeding under Chapter X or XI of the Chandler Act, or make any
assignments for the benefit of its creditors, or should a receiver or trustee be
appointed for Lessee's property because of Lessee's insolvency, and the
appointment is not vacated within thirty (30) days thereafter, or should Lessee's
leasehold interest be levied on and the lien not discharged within thirty (30) days
after levy has been made, or should Lessee fail promptly to make the necessary
returns and reports required of it by city, state and federal law, or should Lessee
fail promptly to comply with all governmental regulations, city, state and federal,
and should such failure in any manner jeopardize the rights of Lessor, then, and in
such event, and upon the happening of either or any of such events, Lessor shall
have the right, at its election, to consider the same a default on the part of Lessee
of the terms and provisions of this lease, and, in the event of such default not
being cured by Lessee within a period of thirty (30) days from the date of the
giving by Lessor of written notice to Lessee of the existence of such default,
Lessor shall have the option of declaring this lease terminated, and the interest of
Lessee forfeited, or Lessor may exercise any other rights conferred upon it by
this lease. The pendency of bankruptcy proceedings or arrangement proceedings,
to which Lessee shall be a party shall not preclude Lessor from exercising any of
its rights. In the event Lessee, or the trustee or receiver of Lessee°s property,
shall seek an injunction against Lessor's exercise of any right, such action on the
part of Lessee, its trustee or receiver, shall automatically terminate this lease as
of the date of the making of such application. In the event the court shall enjoin
Lessor from exercising any of its rights, such injunction shall automatically
terminate this lease.
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9. REPAIRS AND MAINTENANCE. Lessee agrees at is expense to keep and
maintain the leased premises, including grounds, furnishings, fixtures and personal
property, if any, in a good state of repair and condition. Lessee shall comply with
any aesthetic standards, which the Lessor may subsequently adopt for its leased
properties. Lessee agrees at its expense to make all routine repairs to the leased
premises, including electrical, plumbing, sewer, sewer conditions, and all other
repairs that may be required to be made, including structural and air conditioner,
and Lessee at its expense will keep the building interior, fixtures and equipment in
a good state of repair, in good condition and at all times well painted. Lessee. at its
expense agrees to deliver to Lessor upon the termination of this lease the entire
leased premises in a good state of repair and condition, ordinary wear and tear, and
damage by the elements or by fire excepted. Lessee shall, throughout the term of
this lease, assume the entire responsibility and shall relieve Lessor from all
responsibility for all repair and maintenance whatsoever to the premises. Lessee
shall keep the premises at all times in a clean and orderly condition and appearance
and all of Lessee's fixtures, equipment and personal property which are located on
any part of the premises which are open or visible to the general public shall
likewise be so kept and maintained. Lessee shall be responsible for the
maintenance and repair of all fuel tanks and utilities service lines that Lessee is
using (except common utilities, if any), including, but not limited to, service lines
for the supply of water, gas, electricity and telephone service, sanitary sewers and
storm sewers. Lessee shall, at all times during the term of this lease, take
appropriate anti-erosion measures to prevent or restore erosion caused by Lessee,
its agents, employees, or sublessees. In the event the Lessee fails in any material
respect to so maintain, clean, repair, replace, rebuild the premises within a period
of sixty (60) days after notice from Lessor to do so, or fails in any material
respect diligently to pursue to completion such repair, replacement, or rebuilding,
then Lessor may, at its option, and in addition to any other remedies which may be
available to it, repair, replace, or rebuild all or any part of the premises included in
such notice, and cost shall be payable by Lessee immediately upon demand of
Lessor.
10. SIGNS AND OBSTRUCTION LIGHTS. Lessee shall have the right to
erect, maintain or display any signs or any advertising on the exterior of the leased
premises or within the leased premises, provided that such signs and advertising
comply with all FAA, local government and airport rules, regulations and ordinances.
At its own expense _Lessee shall install any obstruction and/or mitigation lights on
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the leased premises and any improvements thereon as may be recommended by the
Federal Aviation Administration.
11. TERM; TERMINATION. The term of this lease shall begin on November
1, 2009, (hereinafter referred to as the "Lease Commencement Date"), and shall
terminate forty-nine (49) years from that date. Delivery of the possession of the
premises to Lessee shall be made on the date of this Lease. The Rent
Commencement Date shall be the first day of the month following the date of
issuance of the certificate of occupancy or its equivalent by the appropriate
governmental entity for the manufacturing facility to be constructed by Lessee on
the leased premises, or December 1, 2010, whichever is earlier.
Subject to the terms of this Section and the approval of the Federal
Aviation Administration, Lessee shall have the option to renew the term of this
Lease for One (1) term of forty-nine (49) years, to run concurrent with the
expiration of the Primary Term.
Lessee may exercise each option to renew the term by giving Lessor no less
than One Year and no more than Three year's written notice of its intent to extend
the term at the end of the then-expiring term. The day that is 365 days prior to
the end of the then-expiring term for which the written notice is given as provided
herein shall be the "Exercise Date." Within 30 days of the Exercise Date, Lessor
shall provide to Lessee, an estimate of the next occurring adjustments to Base
Rent as provided by Section 11 of this Lease. Lessee shall have 30 days after
Lessee's receipt of Lessor's estimate of such adjustments to withdraw by written
notice to Lessor, its exercise of its option to renew. Notwithstanding the
foregoing, Lessee may terminate this Lease by providing a three year written
notice to Lessor anytime after the seventeenth anniversary of the Rent
Commencement Date.
In the event that Lessee is unable to secure financing for the leasehold
improvements necessary to construct a manufacturing production facility suitable
to Lessee's requirements within twelve (12) months from Commencement Date,
then Lessee may give written notice to Lessor of its decision to terminate the
Lease and upon providing that written notice to Lessor, this Lease shall terminate
without further obligation of either party.
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12. RENT, SECURITY DEPOSIT, RENT CREDIT, AND ANNUAL
ADJUSTMENT. The parties acknowledge and agree that the fair market rental
rate for the leased premises as of the date of the Lease Agreement is one
hundred nineteen thousand eight hundred three and 00/100 dollars ($119,803.00).
The parties further acknowledge and agree that the annual rental rate, and any
rental rate adjustments, shall be abated for the first ten years of the Lease term.
The parties acknowledge and agree the Lessee intends create at least sixty (60)
jobs by December 31, 2011, an additional sixty (60) jobs by December 31, 2012,
and an additional forty (40) jobs by December 31, 2014 which jobs shall have an
annual average wage of sixty thousand and 00/100 dollars ($60,000.00). The
parties intend to further memorialize this commitment in a Job Growth Incentive
Grant Agreement. The parties further acknowledge and agree the creation of
employment opportunities in a targeted industry is a significant factor in the
Lessor's agreement to abate the rent as herein provided. Accordingly, the Lessee's
failure to create and maintain the jobs as set out above and as may be set out in
the Job Growth Incentive Grant Agreement shall be considered a default subject
to the provisions of Paragraph 17
On or before the Rent Commencement Date, Lessee shall pay a security
deposit in the amount of twenty-nine thousand nine hundred fifty and 76/100
dollars ($29,950.76). Such deposit shall be governed by the procedures set forth
in Section 83.49, Florida Statutes. Payment shall be by check made payable to "St.
Lucie County" and delivered to 2300 Virginia Avenue, Administration Annex, Fort
Pierce, Florida 34982, or such other location as directed in writing by Lessor.
Lessee shall also pay all applicable sales tax imposed by federal, state and local
governments.
Beginning upon the tenth anniversary of the Lease Commencement Date and
continuing each year thereafter, the Annual Rent shall be adjusted in accordance
with the provisions hereinbelow. Said adjustments shall be computed six (6)
months prior to the end of the preceding year, as the case may be, with the
adjusted Annual Rent to be paid in equal consecutive monthly installments. The
annual adjustment to the rental rate shall be determined by multiplying the annual
rent then in effect by a fraction, the numerator of which shall be the index figure
indicated for the month of June preceding each January 1st of the year of
- adjustment, such figure to be shown by the Consumer Price Index ,the United
States City Average All Items and Commodity Groups (1967 = 100), issued by the
Bureau of Labor Statistics of the United States Department of Labor, and the
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denominator of which shall be such Consumer Price Index figure indicated for the
month of June preceding each January 1st of the year preceding the year of
adjustment. Lessor shall provide Lessee with the new Annual Rent amount and
Lessor's calculations to arrive at same within ten (10) days following the
aforementioned calculation date. In no event shall the adjusted annual rental rate
be less than the initial annual rent rate paid by the Lessee.
If the Lease Term commences on a date other than the first day of a month,
Lessee is obligated to advance its first payment of gross monthly rent on a pro-
rata basis, computed based upon the number of days remaining the month of
commencement divided by the total number of days in the month of the Lease's
commencement.
The rental rate, as stated and adjusted above, shall be subject to fair and
non-discriminatory review and adjustment at the end of every five (5) year period
from the Lease Commencement Date, including the rent abatement period. The
Lessor shall base the adjustment on two appraisals and one review appraisal of the
fair market rental value of the real property. The appraisals and review appraisal
shall be conducted by appraisers who are designated members of a professionally
recognized real estate appraisers' organization. The Lessor and the Lessee shall
each be responsible for the selection and compensation of one of the appraisers.
The parties shall jointly select the review appraiser and shall each pay one-half of
the review appraiser's compensation. When such rental rates are established and
approved by appropriate action of the Lessor, this Lease Agreement shall be
considered amended, upon written notification by the Lessor to the Lessee of the
establishment of the said rental rate applicable to the leased premises. The rental
rate shall continue to be subject to yearly adjustment based upon the Consumer
Price Index as above provided.
13. INSPECTION OF PREMISES. Lessor or its agents shall have the right
to enter the leased premises and the buildings and improvements constructed on
them at all reasonable business hours on twenty-four (24) hours notice for the
purpose of inspecting the same, or for any other purposes not inconsistent with the
terms of this lease. Lessor shall use its best efforts to not disturb the rights or
business operations of Lessee or of any subtenants or occupants of the premises,
except in the event of an emergency.
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At any time and from time to time during reasonable business hours within
six (6) months next preceding the expiration of this lease agreement or
immediately upon the determination by Lessor of abandonment or a breach of this
lease by Lessee, Lessor shall have the absolute right to enter the premises for the
purpose of exhibiting and viewing all parts of the same and to place and maintain on
the premises "To Let" signs, which signs Lessee shall allow to remain without
interference or hindrance. If, during the Bast month of the term of this lease
agreement, Lessee shall have removed all or substantially all of its property from
the premises, Lessor may immediately enter, alter, renovate and redecorate the
premises.
The exercise of any or all of the foregoing rights by Lessor shall not be
construed to be an eviction of Lessee nor shall the same be grounds for any
abatement of rental or grounds for any claim or demand for damages by Lessee
against Lessor, consequential or otherwise.
14. APPROVAL OF CONSTRUCTION. Prior to any construction upon the
premises by Lessee, including any alterations, changes or additions, Lessee shall
submit to Lessor complete building plans for such proposed construction, and prior
to such construction, the written approval of plans must be given by Lessor and the
St. Lucie County Growth Management Department which approval will not be
unreasonably withheld and any other applicable government or agency.
15. CONDEMNATION. If any part of the Premises shall be taken or
condemned for a public or quasi-public use, and a part remains which is susceptible
of occupation, the rent payable shall be reduced, commencing with the date title
shall vest in the condemnor, to the amount determined by multiplying such rent by
a fraction, the numerator of which is the areas of the Premises remaining after
condemnation, and the denominator of which is the area of the Premises as of the
date of condemnation. If Lessee determines that the remaining portion of the
Premises is inadequate for the uses contemplated by this Lease, Lessee shall have
the option to terminate this Agreement as of the date when title to the part so
condemned vests in the condemnor. If all of the Premises shall be so taken, this
Agreement shall terminate on the date when title to the Premises vests in the
condemnor. If a part or all of the Premises be so taken or condemned, Lessee shall
be entitled to that portion of any award for Lessee's loss of buildings and its
furniture and fixtures, the cost of removing its property and the loss of the value
of its leasehold interest in the land so taken. In the event of such taking, Lessor
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shall receive such portion of the award as is attributable to its reversionary fee
interest in the land and any improvements comprising the Premises. Any portion of
any condemnation award which is not specifically apportioned to Lessee, as
aforesaid, shall be and become the property and belong to Lessor.
16. DEFAULT IN RENT. Lessee agrees promptly to perform, comply with
and abide with this lease, and agrees that time of payment and of performance are
of the very nature and essence of it. If any sums of money required to be paid by
Lessee to Lessor shall remain unpaid for a period of ten (10) days after its due
date and after ten (10) days written notice from Lessor stating that such ten (10)
day grace period has expired, then Lessor shall have the following options and
privileges:
(a) Lessor may declare one (1) year's rental as presently due and
payable. Such declaration shall not be construed as a splitting
of a cause of action, nor shall it alter or affect the obligations
of Lessee to pay rent under the terms of this lease for the
period unaffected by the declaration.
(b) Lessor may, after notice, terminate the lease.
In addition to the options granted above, Lessor may exercise any and all
other options available to it, which options may be exercised concurrently or
separately with the exercise of the above options.
17. DEFAULT IN OTHER PROVISIONS. If Lessee shall default in the
performance of any other term of this lease (except the payment of rent), then
Lessor shall send to Lessee a written notice of default, specifying the nature of
the default, and Lessee shall, within thirty (30) days after the date of notice, cure
and remedy the default, whereupon this lease shall continue as before. If Lessee
shall fail to cure and remedy such default within the applicable time, Lessor shall
have the right to declare, by written notice to Lessee, that the lease is in default,
and to use all remedies available to Lessor, including, but not limited to, the default
in rent, remedies, procedures and rights specified in subsections 16(a) and 16(b) of
this lease. If written notice of the default shall have been given to Lessee, and if
Lessee, prior to the expiration of thirty (30) days from and after the giving of
such notice commences to eliminate the cause of such default and proceeds
diligently to take all steps and do all work required to cure such default and does
12
so cure such default, Lessor shall not have the right to declare that lease term
ended by reason of such default; provided, however, that the curing of any default
in such manner shall not be construed to limit or restrict the right of Lessor to
declare the lease term ended and enforce all of its rights and remedies under this
lease for any other default not so cured.
18. OWNERSHIP AT TERMINATION. Except as otherwise herein
provided, all buildings, structures and fixtures of every kind now existing or
hereafter erected, installed or placed on the leased premises are the property of
Lessor and shall be left in good condition and repair, ordinary wear and tear by the
elements excepted. The Lessee shall satisfy any and all liens on all buildings,
structures and fixtures of every kind now existing or hereafter erected, installed
or placed on the leased premises prior to the effective date of termination. A
fixture is defined as an article which was a chattel, but which, by being physically
annexed or affixed to the premises by Lessee and incapable of being removed
without structural or functional damage to the premises, becomes a part and parcel
of it. For the purposes of this Lease, agricultural operational equipment and fuel
tanks shall not be considered fixtures and shall be removed by the Lessee upon
termination of the lease. Nonfixture personalty owned by Lessee at the expiration
of the term or earlier termination of this lease, for any reason, shall continue to be
owned by Lessee, and at the time of such expiration or earlier termination, Lessee
at its option may remove all such personalty, provided Lessee 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 Lessor from any such default
have been ascertained and compensated by the Lessee. Any damage to the
premises caused by the removal by Lessee of any such personalty shall be repaired
by Lessee forthwith at its expense.
19. INSURANCE. The parties agree to the following provisions pertaining
to insurance:
a. Fire and Extended Coverage
Lessee shall, at all times during the term of this lease
and at Lessee's sole expense keep the leased premises insured
against loss or damage by fire and hazards customarily insured
by extended coverage in an amount greater than or equal to the
fair market value of the leased premises. Such insurance shall
be obtained from an insurance company licensed and authorized
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to do business in the State of Florida and shall designate
Lessor as an additional named insured. A certif icate of such
insurance shall be provided by Lessee to Lessor at the time of
execution of this lease, specifically providing that the insurance
shall not be amended or canceled by the insurer until thirty
(30) days advance written notice has been given to Lessor.
b. Worker's Compensation
Lessee shall carry, maintain and pay for all necessary
workman's compensation insurance in its own name, as required
by law.
c. Liability Insurance
The Lessee shall, at its own cost and expense, promptly
procure and pay for and at all time maintain a policy or policies
of insurance in a company or companies acceptable to the
Lessor, protecting and insuring the Lessor against any and all of
the foregoing with coverage limits of not less than $1,000,000
for bodily injury and property damage as a result of any single
occurrence concerning Lessee's operation of the leased
premises. The described policies of insurance and all renewals
of those policies shall be delivered to and held by the Lessor.
The insurance policy shall provide Broad Form Comprehensive
General Liability coverage and it shall include personal injury;
products and completed operations; and contractual liability
specifically insuring this Hold Harmless paragraph. The policy
shall further name St. Lucie County as an additional named
insured and shall provide a thirty (30) day notice of cancellation
or non-renewal and a severability of interest endorsement. A
certificate of such insurance shall be provided by Lessee to
Lessor at the time of execution of this lease and upon request
of the Lessor.
d. Damage or Destruction to leased premises
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Except as otherwise provided in this lease, if the
premises or any part of them (including any leasehold
improvements), shall be damaged or destroyed, Lessee shall, to
the extent of the insurance deductible and insurance proceeds
available, promptly repair or replace the same, and any
insurance proceeds received with respect to such damage or
destruction shall be applied to payment of the expenses of such
repair or replacement, and any excess insurance proceeds shall
belong to Lessee. It shall be the Lessee's responsibility to
repair or reconstruct the leased premises as appropriate. The
Lessee shall be responsible for the payment of any deductible
required under its insurance coverage. Any other terms or
provisions of this lease agreement pertaining to repair,
alteration, construction or reconstruction by Lessee shall be
binding upon Lessee in repairing or reconstructing the leased
premises. If such a substantial portion of the leased premises
is destroyed so that Lessee determines that Lessee cannot
reasonably continue to utilize the leased premises until the
same are repaired or replaced, then Lessee may elect to either
repair or replace the same, to the extent of the insurance
proceeds available, or to abstain from repairing or replacing the
same and to terminate this agreement, whereupon any insurance
proceeds shall be paid to the holder of any leasehold mortgage
which encumbers the leased premises in an amount equal to the
outstanding balance of the loan and the balance of such
proceeds, if any shall be paid to Lessor.
20. ASSIGNMENT AND SUBLEASING. Lessee may not sublease the leased
premises, or any portion of those premises without the prior approval by the
Lessor of the form sublease. Lessee shall not assign this agreement without the
prior written consent of the Lessor. If Lessee is a corporation, partnership or
other type of business entity other than an individual, there shall be no transfer of
the control of such business entity without prior approval of Lessor, which approval
shall not be unreasonably withheld. A transfer of control of the business entity
shall be deemed to occur when the owner(s) of more than seventy five percent
(75%) of the proprietary interest in the business entity transfer, other than
between themselves, their immediate families or their heirs, such proprietary
interest to another person, firm, partnership, corporation or business entity.
15
Notwithstanding the foregoing, approval by Lessor of the acquisition of the
Lessee by a private entity or public company with a market value in excess of
$500,000,000, shall not be deemed an assignment of this lease, so long as all of
the responsibilities of the Lessee under the lease remain unchanged. Any attempt
to affect a sublease or assignment without Lessor°s prior written consent shall be
deemed a default subject to the remedies provided herein.
In the event the Lessee subleases or assigns the lease, the rent abatement
provided for in Paragraph 10 shall terminate as of the effective date of the
sublease or assignment.
21. NOTICES. All notices required by law and by this lease to be given by
one party to the other shall be in writing, and the same shall be sent by certified
mail, return receipt requested to:
Lessor: With copies to:
St. Lucie County Administrator St. Lucie County Attorney
2300 Virginia Avenue 2300 Virginia Avenue
Administration Annex Administration Annex
Fort Pierce, Florida 34982 Fort Pierce, Florida 34982
Lessee:
XXX Robert J. Kanjian
XXX 314 Clematis St., Suite 201
XXX West Palm Beach, FL 33401
XXX
or to such other address(es) as Lessor or Lessee may designate by writing to the
other. The effective date of any notice shall be the date that such notice is
received or refused.
22. SEVERABILITY. If any section, subsection, sentence, clause, provision
or part of this agreement shall be held invalid for any reason, the remainder of
this agreement shall not be affected.
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23. LEASE NOT EXCLUSIVE. Any term, provision or condition in this lease
to the contrary notwithstanding, it is specifically understood and agreed that this
lease is not exclusive, and that Lessor shall be entitled to lease to competitors of
Lessee within the Lessor's property.
24. NONDISCRIMINATION. Lessee, in exercising any of the rights or
privileges granted to it shall not on the grounds of race, color or national origin
discriminate or permit discrimination against any persons or group of persons in any
manner prohibited by Part 21 of the Regulations of the Secretary of
Transportation. Lessor is granted the right to take such action, anything to the
contrary in this lease notwithstanding, as the United States may direct to enforce
this nondiscrimination covenant.
25. SUBROGATION. Lessor shall have the option, without waiving or
impairing any of its rights, to pay any sum or perform any act required of Lessee,
and the amount of any such payment and the value of any such performance,
together with interest, shall be secured by this lease, and shall be promptly due
and payable to Lessor.
26. STANDARD PROTECTION CLAUSES. Lessor reserves the right to
itself, its successors and assigns, for the use and benefit of the public, a right of
flight for the passage of aircraft in the airspace above the surface of the leased
premises, together with the right to cause in the airspace such noise as may be
inherent in the operation of aircraft, now known or later used, for the navigation
of or flight in airspace, and for use of airspace for landing on, taking off from or
operating on the St. Lucie County International Airport. Lessee expressly agrees
for itself, its successors and assigns to restrict the heights of structures, objects
of natural growth or other obstructions on the leased premises, to such a height so
as to comply with Federal Aviation Regulations, Part 77, or any other applicable
state, federal, or local regulation. Lessee 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 St. Lucie
County International Airport, or otherwise constitute an airport hazard.
27. INTEREST. All delinquent payments to Lessor shall bear interest at
the rate equivalent to the periodic composite of current annual interest rates on
five (5) year United States Government agency issues in effect as of the date of
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delinquency, but not less than ten (10%) per annum. Such interest shall be
calculated from the due date after the expiration of any applicable grace period to
the date of payment, on a daily basis, and will be due and payable when billed.
28. FORFEITURE. If Lessee shall fail to keep and perform any of the
covenants, conditions, and agreements in this lease provided to be performed by
Lessee, and such default is not remedied within the grace period provided
elsewhere in this lease, Lessor shall have the right to treat such default as
intentional, inexcusable and material, and Lessor, by notice in writing transmitted
to Lessee, may at its option declare Lessee's interest under this lease ended and
without further force. Thereupon, Lessor is authorized to re-enter and repossess
the leased premises, and the buildings, improvements and personal property
located on them, either with or without legal process, and Lessee does in such
event waive any demand for possession of the property, and agrees to surrender
and deliver up the leased premises and property peaceably to Lessor. In the event
of such forfeiture, Lessee shall have no claim whatsoever against Lessor by reason
of improvements made upon the premises, rents paid, or from any other cause
whatsoever. The provisions of this paragraph shall not be construed so as to
divest Lessor, in the event of such default, of any legal right or remedy which it
may have by statutory or common law, enforceable at law, or in equity. It is
intended that the provisions of this paragraph shall afford to lessor a cumulative
remedy, in addition to such other remedy or remedies as the law afford a Lessor
when, the terms of a lease have been breached by a Lessee.
29. NONWAIVER. Failure of Lessor to insist upon the strict performance
of any of the covenants, conditions and agreements of this lease in any one or more
instances, shall not be construed as a waiver or relinquishment in the future of
such covenants, conditions and agreements. Lessee covenants that no surrender or
abandonment of the leased premises or of the remained of the term shall be valid
unless accepted by Lessor in writing. Lessor shall be under no duty to relet the
premises in the event of an abandonment or surrender or attempted abandonment
or attempted abandonment of the lensed premises by Lessee. Upon Lessee's
abandonment or surrender or attempted abandonment or attempted surrender of
the premises, Lessor shall have the right to retake possession of the leased
premises or any part of them, and such retaking of possession shall not constitute
an acceptance of Lessee's abandonment or surrender.
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30. REMOVAL OF LESSEE'S PROPERTY BY LESSOR. If, under the terms
of this lease agreement, Lessee is entitled to remove its property from the
premises, but shall fail to do so on or before the termination or expiration of the
term or on or before the termination or expiration of this lease agreement for any
other cause specified herein then Lessor may remove such property and retain the
same in its possession, and may sell the same at public auction, .the proceeds of
which shall be applied first to the expenses of such removal and storage and sale,
and the balance paid to Lessee upon the demand of Lessee, providing that the
proceeds of such sale exceed the expenses of such removal, storage and sale.
31. QUIET ENJOYMENT. Lessor covenants, warrants and agrees that
Lessee shall be entitled peacefully to enjoy, to occupy and to possess the Premises
throughout the lease term without interference, hindrance or molestation.
Wherever this lease requires Lessors consent or approval such consent or approval
will not be unreasonably withheld.
32. RIGHT TO RECORD. Lessee shall have the right at its expense, to
record this lease in the Public Records of St. Lucie County, Florida.
33. DATE OF THIS AGREEMENT. Any reference in this lease to the words
"date of this agreement" or "date of this lease" shall be deemed to be the date
this lease is executed by the party last executing same.
34. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof and
supersedes all prior verbal or written Agreements between the parties with
respect thereto. This Agreement may only be amended by written document,
properly authorized, executed and delivered by both parties hereto. This
Agreement shall be interpreted as a whole unit and section headings are for
convenience only. Any conflicts between exhibits to this Agreement and this
Agreement shall be interpreted in favor of this Agreement. The laws of the State
of Florida shall govern all interpretations. In the event it is necessary for either
party to initiate legal action regarding this Agreement, venue shall be in the
Nineteenth Judicial circuit for St. Lucie County, Florida, for claims under state law
and the Southern District of Florida for any claims which are justiciable in federal
court.
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35. VENUE. In the event of a dispute between the parties in connection
with this Agreement, the parties agree to submit the disputed issue or issues to a
mediator for non-binding mediation prior to filing a lawsuit. The parties shall agree
on a mediator chosen from a list of certified mediators available from the Clerk of
Court for St. Lucie County. The parties shall share the fee of the mediator equally.
To the extent allowed by law, the mediation process shall be confidential and the
results of the mediation or any testimony or argument introduced at the mediation
shall not 'be admissible as evidence in any subsequent proceeding concerning the
disputed issue.
36. ENVIRONMENTAL COMPLIANCE; ENVIRONMENTAL CONTAINMENT
AND REMOVAL
a. Lessee acknowledges and agrees that the County makes
no presentations or warranties whatsoever as to whether any
pollutant, or hydrocarbon contamination, hazardous materials, or
other contaminates or regulated materials (collectively, "Materials")
exist on or in the Premises or the improvements in violation of any
federal, state, County or local law, rule or regulation or in violation of
any order or directive of any federal, state or local court or entity
with jurisdiction of such matter. It shall be the responsibility of the
Lessee to make sufficient inspection of the Premises and the
improvements to satisfy itself as to the presence or absence of any
such Materials.
Lessee shall provide the Airport Director, if requested at any time,
with a list of all hazardous, bio-hazardous, or other Materials stored,
used, generated or disposed of on the Premises.
Lessee agrees to comply with all existing and future federal, state,
local and County environmental laws, ordinances and regulations, and
the requirements of any Development Order covering the Airport,
issued to the County pursuant to Chapter 380, Florida Statutes,
including without limitation those addressing the following:
1. Proper use, storage, treatment and disposal of Materials,
including contracting with a licensed hazardous waste transporter
20
and/or treatment and disposal facility to assure proper transport and
disposal of hazardous waste and other regulated Materials;
2. Proper use, disposal and treatment of storm water
runoff, including the construction and installation of adequate pre-
treatment devices or mechanisms on the Premises, if applicable;
3. Adequate inspection, licensing, insurance, and
registration of existing and future storage tanks, storage systems,
and ancillary facilities to meet all County, local, state and federal
standards, including the installation and operation of adequate
monitoring devices and leak detection systems; and
4. Adequate facilities on the Premises for management and,
as necessary, pretreatment of industrial waste, industrial wastewater,
and regulated Materials and the proper disposal thereof.
The release of any Materials on the Premises, or as a result of
Lessee's operations at the Airport, that is in an amount that is in
violation of any federal, state, County or local law, rule or regulation
or in violation of any order or directive of any federal, state, or local
court or governmental authority, by Lessee, or any of its sublessees
or the officers, employees, contractors, subcontractors, invitees, or
agents of Lessee or its sublessees, whether committed prior to or
subsequent to the date of execution of this Agreement, shall be, at
the Lessee's expense, and upon demand of County or any of its
agencies or any local, state, or federal regulatory agency, immediately
contained or removed to meet the requirements of applicable
environmental laws, rules and regulations. If Lessee does not take
action immediately to have such Materials contained, removed and
abated, the County or any of its agencies may upon reasonable notice
to Lessee (which notice shall be written unless an emergency condition
exists) undertake the removal of the Materials; however, any such
action by the County or any of its agencies shall not relieve the Lessee
of its obligations under this or any other provision of this Agreement
or as imposed by law. No action taken by either the Lessee or the
County to contain or remove Materials, or to abate a release, whether
such action is taken voluntarily or not, shall be construed ns an
21
admission of liability as to the source of or the person who caused the
pollution or its release. As use in this Agreement, Lessee's operations
and Lessee's actions and words of similar import, -shall include all
actions and inaction by Lessee, by its sublessees, or by any of their
officers, employees, contractors, subcontractors, invitees, or agents.
As required by law, Lessee shall provide the federal, state,
County and local regulatory agencies with notice of spills, releases,
leaks or discharges (collectively, Release of Materials on the Premises
or on the Airport property which exceeds an amount required to be
reported to any local, County, state, or federal regulatory agency
under applicable environmental laws, rules and regulations, which
notice shall be in accordance with applicable environmental laws, rules
and regulations. Lessee shall further provide the Airport Department
with written notice within one (1) business day following
commencement of same, of the curative measures, remediation
efforts and/or monitoring activities to be effected on the Premises.
Lessee shall have an updated contingency plan in effect relating to
such releases which provide minimum standards and procedures for
storage of regulated Materials and other Materials, prevention and
containment of spills and releases, and transfer and disposal of
regulated Materials and other Materials. The contingency plan shall
describe design features, response actions, and procedures to be
followed in case of releases or other accidents involving hazardous
Materials, bio-hazardous Materials or petroleum products or other
Materials. The Lessee agrees to permit entry at all reasonable times,
of inspectors of the County and of other regulatory authorities with
jurisdiction.
The Airport Department, upon reasonable written notice to
Lessee, shall have the right to inspect all documents relating to the
environmental condition of the Premises, including without limitation,
the release of any Materials at the Premises, or any curative,
remediation, or monitoring efforts, and any documents required to be
maintained under applicable environmental laws, rules and regulations
pertaining to the Airport including, but not limited to, manifests
evidencing proper transportation and disposal of Materials,
environmental site assessments, and sampling and test results. Lessee
22
agrees to allow inspection of the Premises by appropriate federal,
state, County, and local agency personnel in accordance with applicable
environmental laws, rules and regulations and as required by any
development order issued to the County pertaining to the Airport,
pursuant to Chapter 380, Florida Statutes.
If the County arranges for the removal of any Materials on the
Premises that were caused by the Lessee, or any of its sublessees or
the officers, employees, contractors, subcontractors, invitees, or
agents of Lessee or its sublessees, all costs of such removal incurred
by the County shall be paid by Lessee to the County within ten (10)
calendar days of County's written demand, with interest at the rate of
ten percent (10%) per annum thereafter accruing.
Lessee shall not be liable for the release of any materials
caused by anyone other than Lessee, or any of its sublessees or the
officers, employees, contractors, subcontractors, invitees, or agents
of Lessee or any of its sublessees. Nothing herein shall relieve Lessee
of its general duty to cooperate with the County in ascertaining the
source and, containing, removing and abating any Materials. The
Airport Department shall cooperate with the Lessee with respect to
Lessee's obligations pursuant to these provisions, including making
public records available to Lessee in accordance with Florida law;
provided, however, nothing herein shall be deemed to relieve Lessee
of its obligations hereunder or to create any affirmative duty of
County to abrogate its sovereign right to exercise its police powers
and governmental powers by approving or disapproving or taking any
other action in accordance with County codes, ordinances, rules and
regulations, federal laws and regulations, state and local laws and
regulations, development orders and grant agreements. The Airport
Department and its employees, contractors, and agents, upon
reasonable written notice to Lessee, and the federal, state, local and
other County agencies, and their employees, contractors, and agents,
at times in accordance with applicable laws, rules and regulations, shall
have the right to enter the Premises for the purposes of the
foregoing activities and conducting such environmental assessments
(testing or sampling), inspections and audits as it deems appropriate.
23
The Lessee hereby agrees that upon any assignment of this
Lease, and at anytime during the last year of the term of this Lease,
and at anytime during the year following any termination of this Lease,
the County shall have the right to require Lessee to conduct an
Assessment and Facility Exit Inspection of the Premises, at the
Lessee's expense. If documentation warrants, the County shall have
the right to require the Lessee to conduct a further assessment of
the Premises at the Lessee's expense which may include, but shall not
be limited to, soil and water samples.
If any assessment or inspection indicates that further actions
should be conducted, then the County shall have the right to have
such further actions conducted at the Lessee's expense. Nothing
herein shall be construed to limit County's right of entry onto the
Premises pursuant to other provisions of this Section or of this
Agreement, or pursuant to its regulatory powers.
Lessee shall reimburse to the County the cost of such
assessments and inspections as are chargeable to the Lessee pursuant
hereto, within ten (10) calendar days following written demand
therefore, with interest at the rate of eighteen percent (18%) per
annum thereafter accruing.
In the event County shall arrange for the removal of Materials
on the Premises that are not the responsibility of the Lessee to
correct, and if any such clean-up activities by County shall prevent
Lessee from using the Premises for the purposes intended, the rent
shall be abated in accordance with Section 30, hereof, from the date
that the use of the Premises for its intended purposes is precluded
and until the Premises again become available for the Lessee's use.
County shall use reasonable efforts to not disrupt Lessee's business,
however, in no event shall Lessee be entitled to any amount on account
of lost profits, lost rentals, or other damages as a result of County's
clean-up activities.
The provisions of this Section shall survive the expiration or
other termination of this Agreement.
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IN WITNESS WHEREOF, Lessee has executed this Lease Agreement on
this day of , 2009.
WITNESSES PROJECT CAN DO
BY:
STATE OF FLORIDA )
ss
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared
being duly sworn, deposes and says that he has read and
executed the foregoing instrument and acknowledged to and before me that he
executed said instrument for the purposes therein expressed on this day of
2009.
Personally Known
Produced Identification _ Notary Public
Type of Identification Produced State of Florida
My Commission Expires:
25
IN WITNESS WHEREOF, Lessor has executed this Lease Agreement on
this day of , 2009.
ATTEST: BOARD OF COUNTY COMMISSIONERS
ST. LUCIE COUNTY, FLORIDA
BY:
DEPUTY CLERK CHAIR
APPROVED AS TO FORM AND
CORRECTNESS:
COUNTY ATTORNEY
STATE OF FLORIDA )
ss
COUNTY OF ST. LUCIE )
BEFORE ME, the undersigned authority, personally appeared
Chair of the St. Lucie County Board of County
Commissioners, being duly sworn, deposes and says that he has read and executed
the foregoing instrument and acknowledged to and before me that she executed
said instrument for the purposes therein expressed on this day of
2009.
Personally Known
Produced Identification Notary Public
Type of Identification Produced State of Florida
My Commission Expires:
26
EXHIBIT "A"
LEGAL DESCRIPTION OF LEASED PREMISES
Lots 1, 2, and 3, Airport West Commerce Park Phase I, as recorded in the Plat
thereof in Plat Book 60, Pages 31-35 of the public records of St. Lucie County,
Florida.
27
EXHIBIT "B"
St. Lucie County International Airport
LEASING POLICY AND PROCEDURE
12/12/06
Policy
The St. Lucie County Board of County Commissioners (Board), as the governing agency
controlling the St. Lucie County International Airport, is responsible for leasing
Airport land according to Local, State, and Federal law including, but not limited to, the
guidelines and grant assurances of the Federal Aviation Administration (FAA), the
Florida Department of Transportation (FDOT), County Code of Ordinances, Land
Development Code, and Resolutions adopted by the Board. It is the policy of the Board
to lease property on Airport for aviation purposes as a first priority. If there is no
aviation purpose that can be identified for a site available for lease, the Board will
consider non-aviation or interim proposals.
Authority to Lease
All leases and subleases require the approval of the Board of County Commissioners.
The Board must also approve all amendments to such leases. The Board has in the
public interest, the right to:
1. Impose and update from time to time fair and reasonable operating
requirements and standards for commercial and non-commercial activities that
are conducted on airport property.
2. Impose and adjust from time to time fair and reasonable fees, rents, or other
charges, for the privilege of conducting commercial and non-commercial
activities upon Airport property, the proceeds of which are to be used to pay
for operating, maintenance, and development expenses of the Airport. The
rates and fees charged by the Airport are meant to be structured, to make the
Airport as self-sustaining as possible, while ensuring fair and reasonable rates.
No person, group of people, firm, or corporation shall locate a commercial business
activity within the boundaries of the St. Lucie County International Airport without
the written approval of, or under the specific terms and conditions of, a lease
agreement or other operating agreement with the Board and, as necessary, approval by
the Federal Aviation Administration.
No one shall enter upon airport property for the purpose of conducting any commercial
activity that is competitive to any existing airport tenant without the written approval
of the Board, and when necessary, the Federal Aviation Administration.
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Land Uses
Land uses on the Airport are described in the Airport Master Plan and Airport Layout
Plan, which have been developed and periodically updated along with any associated
environmental impact documents. These documents are reviewed and approved by the
FAA, FDOT, and the Board, following a public review and input process. These
documents serve to guide Airport staff in making land use leasing recommendations to
the Board for approval. The lease documents specify the allowed uses of airport land
and any land use restrictions that may apply. At the Board's sole discretion, interim
uses may be permitted if the demand for the highest and best use for the property is
delayed due to market conditions. Interim uses would be considered for shorter term
leases.
Competitive Lease Proposals
Airport property identified for aviation uses may be leased without seeking
competitive proposals when it is in the best interest of Airport, such as when
supporting community aviation needs. This is usually done only when there is a surplus
of airport land available for lease, and when not more than one party has expressed an
interest in leasing a particular parcel of land. In some instances, lessees that adjoin a
vacant parcel may be given the first opportunity to lease the adjoining parcel. Periodic
appraisals or market analyses will be used to establish lease rates. The potential
tenant is leasing property in an AS IS condition and must use due diligence in
investigating the condition of the site or facilities.
If more than one party is interested in bidding on anon-aviation (including industrial)
lease, competitive proposals may be after establishing a starting rent through an
appraisal process or market analysis to set fair market value. If used, this process will
involve Board review and selection of the proposal based on financial standing, lease
rate, ability to construct in a timely manner, provisions for any unmet aviation segment
to serve the general aviation or commercial service needs, and investment in, and
appearance of the facilities to be constructed. Operating fees or percentage of gross
sales may alternatively be used in determining a rental rate for non-aviation uses such
as hotels, rental car facilities, and restaurants.
A minimum deposit of three months of rent will be required on the execution of any
lease, which can be returned to the Lessee at the end of the lease if the Lessee leaves
the property in good condition, normal wear and tear excepted, has removed and
appropriately closed all fuel or other storage tanks, and after all rent due is paid.
Length of Lease Term
To allow the County the greatest flexibility in making land use decisions over time,
lease
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terms are generally limited to the shortest term possible, especially for interim uses.
When necessary, fixed-term leases are granted for the minimum number of years to
allow a lessee to amortize, and receive a reasonable return on, the lessee's investment
in leasehold improvements. A formula to determine term based on investment is to
grant one year of lease term for each $5,000 invested per acre of leased land, with an
initial term for aviation leases not to exceed 40 years. Accordingly, to qualify for a
forty-year term on a 5-acre parcel, a lessee would have to invest $1,000,000 in
approved leasehold improvements ($5,000 x 5 acres x 40 years = $1,000,000). The
$5,000 per acre per year formula for determining the length of lease term is a
minimum requirement. Airport industrial land leases typically have the same minimum
investment requirements, at $5,000 per acre per year, with an initial lease term of 40
years. Extensions of term beyond this timeframe may be negotiated subject to the
additional investment as noted above. Both aviation and industrial leases will be
subject to periodic adjustments to keep pace with the rising cost of land. Lease terms
for other non-aviation use properties may have different investment requirements and
longer or shorter lease terms based on the proposed use. Leases where there is no
investment by the lessee will be on a month-to-month basis, depending on the
circumstances.
Fnir Market Rental
It is a policy of the Board, and a requirement of the FAA and FDOT, that the Airport
receive fair market value based on the highest and best use when leasing airport land.
As noted above, interim land uses may be allowed if the demand for the highest and
best use is delayed due to market conditions. Achieving fair market value usually
starts with an appraisal requisitioned by the Airport, followed by negotiations between
Airport staff and the lessee, or prospective lessee, to reach agreement on terms. The
County typically negotiates for a rent based on an 8% return on the appraised value of
the land or as recommended by a qualified appraiser based on market conditions.
Restaurants, hotels, rental car facilities, and certain other land uses, usually result in
rentals based on a percentage of the lessee°s gross income, as is customary for such
leases. Leases with a term exceeding ten years in length shall provide for
renegotiation of rent to market value at ten-year intervals. Annual adjustments based
on Consumer Price Index (CPI) or 2 whichever is greater, will be required in
intervening years to ensure that the value of land leased adjusts accordingly.
Lease Contracts and Legal Review
County lease contracts are intended to transfer to the lessee the liabilities associated
with possession and control of real property regarding compliance with all federal,
state and local laws and regulations, including those pertaining to the use, storage and
disposal of hazardous materials and maintenance of the facility. All County leases shall
be written on a form approved by County Attorney°s Office and shall, at a minimum,
conform to local/regional standards of tenant responsibility and liability and
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consistency with all FAA and FDOT guidelines and grant assurances. County leases may
contain more restrictive clauses than private sector leases to better protect the public
interest. The County requires strict compliance with the Airport's security program
and all federal, state and local laws, particularly environmental laws such as hazardous
materials management, spill control and counter measures plans, and storm water
pollution prevention regulations. Any violations caused by the tenant for failing to
comply with any of the federal, state or local laws will be the sole responsibility of the
tenant. Lease language may be periodically updated to reflect changes in real estate
law and to meet changing economic and other risks associated with the ownership of
land. During the term of a lease, lease amendments may be agreed to between the
parties to effect changes to the rent or other economic lease provisions, or to update
antiquated lease language that no longer protects one or both of the. parties as
originally intended.
Construction of Leasehold Improvements
Airport leases typically require the construction of leasehold improvements, which will
be owned by the lessee during the term of their lease and which will revert to the
ownership of the County at the end of the ?ease term. Height restrictions, lot-line set
backs, parking requirements, building design, quality of construction, and other
requirements are controlled by the County Land Development Code, County building
code requirements, and FAA design standards. A performance bond may be required to
guarantee the timely construction of required leasehold improvements. A potential
lessee that has a conceptual approval from the Board has no more than 90 days for a
due diligence period prior to entering a lease with the County for the land. This 90-day
period should include filing a site plan/conditional use applications, completing an
environmental phase 1 audit if desired, and submitting an FAA airspace study. If
development does not occur in a timely fashion (18 months), the performance bond and
all rights to leasing the property may be forfeited. Exceptions may be allowed by the
Board, but this must be based only on reasons beyond the control of the potential
lessee.
Lease Extensions Existing Tenants and Equitx
A lease extension may be granted to a tenant who has fully complied with all terms and
conditions of the lease, including timely payment of rent, and if granting an extension
would be in the best interests of the County. Existing tenants may submit a request
for a new lease six months prior to the end of their lease. The County is not obligated
to accept such a request, but will consider all proposals, evaluating them in light of the
following criteria:
• Existing/proposed use must be consistent with Airport Layout Plan, Master Plan,
Zoning, Comprehensive Plan, and other relevant land use planning documents.
• County must determine that there is no immediate need for the land after the
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current lease expires.
Lessee must be in good standing (i.e., compliant with existing lease terms including
timely payment of rent and other operating fees).
• New capital investment shall apply to qualify for a term in excess of the current
termination date at current standard (see "Length of Lease Term" above).
• County shall determine whether or not the public interest would be better served
by allowing the lease to expire so that potential new tenants may participate in a
competitive selection process.
• If the developments on the site are to revert to County ownership, the County may
chose to retain ownership of the facilities and to lease these improvements back to
the Lessee with the extended lease term, or the County may require payment for
the present value of its reversionary interest in the leasehold improvements.
It is the practice of the Airport to negotiate lease extensions when it is in the best
interest of the aviation community or when a surplus of land is available for lease and
there is no written notice of interest by third parties in bidding on the particular
parcel of land covered by the expiring lease.
Typically, Airport leases provide that at the end of the lease the improvements will become
the property of the County regardless of who originally installed the improvements. If a
lease is extended prior to the expiration of its term, the County may require payment for
the present value of its reversionary interest in the leasehold improvements. This interest
is referred to as Equity. The amount of equity is based on appraising the value of the
improvements as of the end of the lease, and discounting that value to a present value.
Typically, an appraisal is done by the Airport to establish this value, and negotiation may
ultimately be involved to settle on terms acceptable to both the County and the lessee. The
County will permit an amortization of the equity it is owed, with interest, over a period of
months not to exceed approximately 50% of the extended lease term. The purchase of the
County's equity interest by the lessee, whether by cash payment or amortization, may be
counted as part of the investment requirement in establishing the length of extended term,
as discussed above under "Length of Lease Term"
Procedure for Granting n New Lease to an Existing Lessee for a Longer Term
At times, part way through an existing lease, a Lessee may express interest in
constructing new capital improvements in exchange for an extension of a lease. This
can
be in the County's best interest because: (1) it provides for new and improved aviation
and/or industrial facilities earlier than if Airport was to wait until the lease
terminates;
(2) it prevents deferred maintenance, which can be common in the final years of a long
term lease; and (3) it allows a successful business to continue on at the airport. The
initial
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term for leases is typically 40 years or less. The procedure fora .lease extension
includes:
1. County receives a written request from Lessee, proposing a new lease.
2. County staff reviews Lessee°s proposal to determine if :
• Lessee is in good standing and provides a valuable service to the local aviation
and/or business community.
• The existing or proposed use is appropriate and consistent with the Airport
Layout Plan, Master Plan, Zoning, Comprehensive Plan, and any other relevant land
use planning documents.
• The existing use is an interim use and it may be in the best interest of the County
to allow the use to continue until market demand necessitates the change in use at
the County's sole discretion.
• No written Notice of Interest by other parties to bid on this premises have been
received by County.
• County has no need for this area upon the termination of the existing lease.
3. If it is determined that it is appropriate to enter into a new lease, County
Attorney's Office will draft a written lease amendment to Lessee, subject to Board
approval. This proposal will detail the Capital Improvement Requirements and the
Equity Payment that may be paid to County for postponement of County's
reversionary interest in the property.
4. Upon acceptance by Lessee, the proposal is placed on the agenda for the Board to
approve the lease. There is public notice of all items on the Board Agenda and public
comment on any item is accepted upon request.
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