FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Escambia County. J. Scott
L. Didier and J. Nixon Daniel of Beggs & Lane, RLLP,
Pensacola, for Appellant.
P. Fleming and R. Todd Harris of McDonald, Fleming, Moorhead,
Ferguson, Green & de Kozan, LLP, Pensacola, for Appellee
Seville Harbour, Inc.
A. Emmanuel and Adam J. White of Emmanuel, Sheppard &
Condon, Pensacola, for Appellee Merrill Land, LLC.
Charles F. Beall, Jr. of Moore, Hill & Westmoreland,
P.A., Pensacola, for Appellee Great Southern Restaurant Group
of Pensacola, Inc.
City of Pensacola appeals the final summary judgment
determining that the lease between the City and Appellee
Seville Harbour, Inc., was properly renewed and that an
agreement between Seville Harbour and Appellee Merrill Land,
LLC, was a sublease, not a pro tanto (partial)
assignment of the lease. We affirm the trial court's
determination that the lease was properly renewed without
further comment, and we affirm its determination as to the
nature of the Seville Harbour-Merrill Land agreement for the
reasons that follow.
and Procedural Background
1985, the City and Seville Harbour's
predecessor-in-interest entered into a lease agreement-which
we will refer to as the "Marina Lease"-for three
parcels of undeveloped property along the waterfront in
downtown Pensacola. The leased property was comprised of
uplands and submerged lands, and as contemplated by the
Marina Lease, the property has been developed into a marina
and related facilities.
time the Marina Lease was executed, two of the parcels
(Parcels I and III) were owned by the City, while the third
parcel (Parcel IA) was owned by the State of Florida and
leased to the City. In 1990, the State deeded Parcel IA to
the City. None of the provisions of the Marina Lease related
to Parcel IA were modified after this change of ownership.
Marina Lease provided an initial lease term of 30 years for
Parcels I and III, which could be "renewed and
extended" for an additional 30 years upon written notice
from the lessee (now Seville Harbour) to the City. The
initial (sub)lease term for Parcel IA was also 30 years, but
it could only be renewed in "successive five (5) year
increments" upon payment of a "lease fee . . .
equal to the appraised rental value . . . charged to [the
City] by the State of Florida."
annual rent due under the Marina Lease is the greater of a
per-square-foot "ground rent" or a percentage of
the lessee's (now Seville Harbour's) "gross
sales" and "gross rentals" in the prior year.
The Marina Lease defines "gross sales" as all
monies received from business conducted on the leased
property "by [Seville Harbour], its subsidiaries or
business combinations" (emphasis supplied), and
it defines "gross rentals" as all rents received
"by [Seville Harbour] from all . . . sublessees or
tenants" on the property.
2000, Seville Harbour and Merrill Land entered into the
"Pitt Slip Marina Sublease Agreement" pursuant to
which Seville Harbour "subleased" Parcels IA, III
and part of Parcel I to Merrill Land
for "the remaining term of the Marina Lease plus any
extensions or renewals thereof." This agreement, which
we will refer to as the "Marina Sublease, "
reserved to Seville Harbour "a perpetual non-exclusive
easement over and on the property . . . for ingress, egress,
parking, signage, utility lines . . . as well as for
maintenance, construction, and reconstruction of [the
non-transferred part of Parcel I]." It also gave Seville
Harbour (and the City) the right to ...