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HomeMy Public PortalAbout179-2011 - Airport - FlightMaster Aviation SerLEASE AGREEMENT THIS LEASE AGREEMENT (this "Lease"), made and entered into this 19th day of _December , 2011 by and between FlightMaster Aviation Services Inc., 603 Elm Drive, Centerville, Indiana, 47330 ("Lessee"), and Richmond, Indiana, a municipal corporation acting through its Board of Aviation Commissioners with its office at 50 North 5th Street, Richmond, Indiana, ("Lessor"). WITNESSETH: WHEREAS, Lessor is owner and operator of the Richmond Municipal Airport (the "Airport") and desires to lease a maintenance hangar at the Airport to Lessee; and WHEREAS, Lessee desires to lease the maintenance hangar. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, including the above stated recitals, it is mutually agreed as follows: GRANTING CLAUSE: 1.01 Lessor does hereby lease to Lessee and the Lessee does hereby lease from Lessor the hanger at the Richmond Municipal Airport now located northeast of the main drive, known as the small corporate maintenance hangar, and consisting of approximately 2500 square feet, more or less (hereinafter referred to as "the Premises"). TERM: 2.01 The Original Term of this lease shall commence on December 15, 2011, and end on December 15, 2012, except that Lessee may terminate this Lease as provided herein. TERMINATION: 3.01 Lessee may terminate this Lease at any time during the lease term by giving written notice to Lessor at least sixty (60) days prior to the date of termination. All rents that are due and owing on and up to the date of termination must be paid in full on the date of termination. RENT: 4.01 Rent shall be Five Hundred Dollars ($500.00) per month on or before the 1st day of each month. Contract No. 179-2011 RENEWAL PRIVILEGES: 5.01 Lessee is hereby granted and shall, if not at the time in default under this Lease, have an option to renew this Lease for a period of one (1) year from the termination date of the Original Term, except that rent shall be re -negotiated. This option shall be exercised by Lessee's delivering to Lessor, in person or by United States Mail, on or before thirty (30) days prior to the termination date of the Original Term, written notice of Lessee's election to renew the term of this Lease as herein provided. LEASEHOLD IMPROVEMENTS: 6.01 Lessee, at its cost and expense, may make improvements to the Premises, after first obtaining written approval from Lessor. If Lessor wishes revisions in the plans or specifications submitted by Lessee with respect to a proposed improvement, Lessor shall submit its proposed revisions to Lessee within thirty (30) calendar days of receipt by Lessor of the original plans and specifications from Lessee. In the event that Lessor does require revisions to the original plans and specifications, Lessee shall have thirty (30) days from the date of receipt of the proposed revisions to resubmit the plans and specifications for Lessor's approval. If Lessee fails to so resubmit the plans and specifications, Lessee shall be deemed to have decided not to go forward with such improvements. Lessor's approval of plans and specifications shall not be withheld unreasonably. Any plans and specifications submitted by Lessee and not objected to by Lessor within thirty (30) days shall be deemed approved. Once plans and specifications are finally approved as provided for above, Lessee shall engage one or more qualified contractors to construct said improvements. Construction shall commence within ninety (90) calendar days of Lessee's receipt of Lessor's final approval of the plans and specifications and shall be scheduled for completion not later than Two Hundred Seventy (270) calendar days after commencement of construction. Lessee nevertheless covenants and agrees that any such improvements shall be made in a careful, workmanlike manner and in compliance with all applicable federal, state and municipal laws and regulations. 6.02 It is mutually agreed between the parties hereto that Lessee shall be solely responsible and have the obligation to secure all permits and approvals for the construction activities it conducts. Lessor agrees to cooperate, upon request and as reasonably necessary, with Lessee's efforts to secure all permits and approvals described in this Section 6.02. 6.03 Lessee agrees to maintain all improvements in original condition, normal wear and tear excepted, and agrees to return the Premises to Lessor in a well -maintained and tenantable condition upon the termination of the Original Term or any renewal thereof. Lessor reserves the right to inspect, at any reasonable time, the Premises and improvements thereon. 6.04 Title to any and all improvements constructed or placed on the Premises by Lessee shall become the sole and absolute property of Lessor without additional consideration upon the termination of the Original Term or any renewal thereof. CERTAIN OBLIGATIONS OF LESSEE: 7.01 Lessee shall use the premises for aviation related purposes only as approved by the Lessor and such other regulatory agencies having authority over the Airport. 7.02 It is mutually agreed between the parties hereto that the purpose of this Lease is to permit Lessee to conduct its aircraft maintenance operations and hangar aircraft. It is further agreed that Lessee may have in said hangar, a corporate office, restrooms, and storage space to be used for storage of parts, supplies and equipment attendant to the operations of the hangar. 7.03 In the event Lessee shall cause any mortgage, lien or encumbrance to be placed on or attached to the Premises and Lessee shall fail to cause such mortgage, lien or encumbrance to be removed within sixty (60) days after the notice of filing thereof, the term of this Lease shall then terminate and all improvements to the Premises shall be forfeited to Lessor as liquidated damages for the breach of this covenant (in addition to such other damages as may be attributable to Lessee's breach); provided, however, that Lessee shall not be deemed in default under this Section 7.03 if Lessee commences efforts to remove any such mortgage, lien, or encumbrance within thirty (30) days after receiving notice of the filing thereof, and thereafter diligently prosecutes the removal of the mortgage, lien or encumbrance. 7.04 This Lease, or any part thereof, may not be assigned, transferred or subleased by Lessee, by process or operation of law or in any manner whatsoever, without the written consent of Lessor, which consent shall not be unreasonably withheld. Notwithstanding the foregoing provision, Lessee shall have the right, without the consent of Lessor, to assign this Lease or sublet the Premises to any direct or indirect parent or subsidiary of Lessee, and any successor to Lessee by merger or consolidation, or any purchaser of substantially all of Lessee's assets. Lessee shall be released from all liability so long as the purchaser or successor, parent or subsidiary has a net worth not less than Lessee's net worth immediately prior to the assignment. 7.05 It is understood and agreed by the Lessee and Lessor that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the airport from performing any services on its own aircraft with its own regular employees (including but not limited to, maintenance and repair) that it may choose to perform. CERTAIN OBLIGATIONS OF LESSOR: 8.01 On December 15, 2011, Lessor shall deliver the Premises to Lessee in suitable, clean condition appropriate for the purposes described herein. 8.02 Lessor shall provide all appropriate and necessary services usually supplied by an airport operator of hangar space so that Lessee may fully utilize its aircraft at the Airport. 8.03 Lessor shall maintain, and make repairs as necessary to, the heating, electrical, and plumbing systems and structural components of the Premises, including but not limited to the roof, walls, floors, foundations and sanitary systems. The word "floor" in the preceding sentence refers to the structural mass only and not to the finish or covering on said floors. Lessor shall also maintain the grounds in and around the Premises, including but not limited to the grass and pavement areas, and shall keep the pavement areas free from debris, ice and snow on the same basis that Lessor maintains the runways and taxiways of the Airport and shall cut grass and mow weeds on the Premises in the same manner and at the same frequency that grass is mowed in other hangar areas of the Airport. 8.04 Lessor covenants and agrees that Lessee shall have quiet enjoyment of the Premises during the term of this Lease as long as Lessee complies with all applicable laws, ordinances and government regulations and is not in default with respect to any provision of this Lease. INSURANCE AND INDEMNIFICATION: 9.01 During the term of this lease, Lessor shall procure, maintain and pay the premiums upon all risk, fire and extended coverages on the Premises (excluding any improvements made by Lessee) and any other contents of the Premises owned by Lessor, in amounts no less than the full replacement cost thereof without reduction for depreciation. Copies of the above -required policy shall be provided to Lessee prior to the commencement date of this Lease together with certificates of insurance reasonably acceptable to Lessee. 9.02 During the term of this Lease, Lessee shall procure, maintain, and pay the premiums upon public liability and property damage insurance with companies reasonably acceptable to Lessor which shall insure Lessee and Lessor against any and all injury and damage to any person, persons or property in connection with the Premises, and having minimum limits of liability of not less than One Million Dollars ($1,000,000.00) coverage for any one occurrence involving no more than one person and Two Million Dollars ($2,000,000.00) coverage for any one occurrence involving more than one person and One Hundred Thousand ($100,000.00) coverage for property damage and all-risk, fire and extended coverages on all improvements now or hereafter constructed on the Premises in amounts not less that the full replacement cost thereof without reduction for depreciation. Copies of the above -required policies shall be provided to Lessor prior to the commencement date of this Lease together with certificates of insurance acceptable to Lessor. 9.03 All such policies of insurance required by this Agreement shall name Lessor and Lessee as the insured parties, as their respective interests appear, and shall contain a clause that the insurer will not cancel or change the insurance without first giving Lessor and Lessee thirty (30) days written notice. 9.04 Lessee agrees to indemnify and save harmless the Lessor against any and all claims, losses, costs, damages, and expenses arising out of or from the conduct or management of, or from any work or anything whatsoever done in and about the Premises, causing injury or damage to any person or property due to any act or neglect of the Lessee, Lessee's agents, contractors, or employees, or due to any failure of the Lessee, Lessee's agents, contractors, or employees, to comply with or perform any requirements of the provisions of this Lease, on Lessee's part to be performed, or due to any use made by the Lessee of the Premises. In case of any action or proceeding being brought against the Lessor by any reason of any such claim, Lessee, on notice from Lessor, shall resist and defend such action or proceeding. The foregoing provision shall not be construed to require Lessee to indemnify or save harmless Lessor against consequences due to any work or act done by said Lessor in or to the Premises or any part of the Airport other than the Premises. 9.05 Lessor agrees to indemnify and save harmless Lessee and Lessee's agents, contractors and employees against any and all claims, losses, costs, damages, and expenses arising out of or from the conduct or management of, or from any work or anything whatsoever done in and about the Premises, or arising during the term from any condition of the buildings or driveways or sidewalks adjoining the Premises, causing injury or damage to any person or property due to any act or neglect of the Lessor, Lessor's agents, contractors, or employees, or due to any failure of the Lessor, Lessor's agents, contractors, or employees to comply with or perform any requirements of the provisions of this Lease, on Lessor's part to be performed, or due to any use made by the Lessor of the Premises. In case of any action or proceeding being brought against the Lessee or Lessee's agents, contractors, and employees by reason of any such claim, the Lessor, on notice from the Lessee, shall resist and defend such action or proceeding. The foregoing provision shall not be construed to require said Lessor to indemnify or save harmless Lessee against consequences due to any work or act done by said Lessee in and to the Premises. DISCRIMINATION: 10.01 The Lessee, for itself, its personal representative, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that: (a) No person on the grounds of race, religion, color, sex, disability, national origin, or ancestry shall be excluded from participation in, denied benefits or, or be otherwise subjected to discrimination in the use of the Premises; (b) Pursuant to Indiana Code 22-9-1-10, Lessee, any subcontractor or any person acting on behalf of Lessee or any subcontractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. (c) In the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, religion, color, sex, disability, national origin, or ancestry shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and (d) The Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 10.02 In the event of breach of any of the above nondiscrimination covenants, Lessor shall have the right to terminate the Lease and re-enter and repossess said land and the facilities thereon, and hold the same as if said Lease had never been made or issued and title to any and all improvements on said premises shall then vest in Lessor in the same manner as if this Lease were terminated, provided, however, subject to FAA regulations to the contrary, if any, Lessee shall be given reasonable notice and opportunity to remedy unintentional violations of such covenants prior to Lessor having the right to terminate this Lease. RIGHTS RESERVED TO LESSOR: 11.01 Lessor will maintain and keep in regular repair the landing area of the airport and all publicly owned facilities of the airport, together with the right to reasonable direct and control all activities of Lessee in this regard. 11.02 During the time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and if such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the government, shall be suspended. 11.03 Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the airport against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the airport which, in the reasonable opinion of the Lessor, would limit the usefulness of the airport or constitute a hazard to aircraft. 11.04 This Lease shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States, relative to the operation or maintenance of the airport, the execution of which has been or may be required as a condition precedent to the expenditure of Federal funds for the development of the airport. Lessor warrants and agrees that no such agreements will prevent or impair Lessee's use of the Premises for the intended purposes herein and that Lessee may terminate this Lease if its use of the property is so impaired or prevented by such agreement. 11.05 It is understood and agreed by Lessee that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right to provide aeronautical services to the public as prohibited by Section 308(a) of the Federal Aviation Act of 1958, as amended, and the Lessor reserves the right to grant to others the privilege and right of conducting any one or all activities of an aeronautical nature. DEFAULT OR BREACH: 12.01 In the event of any breach of this Agreement by Lessee, and in addition to any other damages or remedies, Lessee shall be liable for all costs incurred by City due to the enforcement of this Agreement, including but not limited to City's reasonable attorney's fees. 12.02 A breach of this Agreement shall include, but not be limited to, failure of Lessee to comply with any of the terms of this Agreement, failure of Lessee to pay rent when due; failure of Lessee to keep any covenant agreed to be performed under this Lease; failure of Lessee to procure and maintain appropriate levels of general liability insurance as set forth in the terms of this Agreement, or failure to adhere to all federal laws, state laws, and local ordinances. In the event Lessee is able to cure or resolve any action or situation that caused the breach, Lessor will not hold Lessee in default if such cure is able to be performed within thirty (30) days of the date breach is deemed by the Lessor to have occurred. Lessor shall provide Lessee with written notice of the breach by first class mail, and Lessee shall have thirty (30) days from the receipt of notice of breach or default to perform said cure. 12.03 In the event Lessee is unable to cure or resolve the breach, Lessor may declare Lessee in default and breach of this Agreement, and shall proceed with any action necessary to take possession of the Premises. In the event of an emergency, Lessor shall immediately proceed with any action necessary to take possession of the Premises. Lessor may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination. 12.04 Lessee shall also be in default under the terms of this Lease if Lessee files a voluntary petition in bankruptcy, or is adjudicated as bankrupt or insolvent, or files any petition or answer seeking any reorganization, composition, liquidation, dissolution or similar relief under the present or future federal bankruptcy act or any other present or future applicable federal, state or other statute or law; or seeks or consents to or acquiesces in or fails within 90 days to set aside the appointment of any trustee, receiver, or liquidator or Lessee or of all or any substantial part of its properties or of demised properties. If there shall be determined to be an event of default as specified in this paragraph, in addition to this Lease being terminated by such default, all rent then due or which would become due shall in such event be liquidated damages for the loss of the bargain and not as a penalty. 12.05 In the event this Lease shall be terminated by reason of the default of Lessee, Lessee shall surrender the Premises in as good or better condition they were at the commencement of this Lease, normal wear and tear excepted, and if the Premises be not in such condition, the Lessee shall be liable for such amount of money as is necessary to so replace or repair the Premises. UTILITIES: 13.01 Lessor shall furnish water to the Premises and shall provide an adequate septic system to be used by Lessee at the Premises. Lessee shall provide and pay for all other utility services extended to the Premises including but not limited to electric power, telephone, Internet, heating fuel, and sewer. DAMAGE TO THE PREMISES: 14.01 Lessee shall be solely responsible for any and all upkeep and maintenance of the interior of the Premises and any improvements erected thereon (except maintenance and repairs that are the responsibility of the Lessor pursuant to this Agreement), and shall keep and maintain the interior of the Premises and improvements thereon in good repair, normal wear and tear excepted, in a manner consistent with the surrounding improvements and facilities and reasonably acceptable to Lessor. 14.02 Lessor shall be responsible for any and all upkeep and maintenance of the exterior of the Premises. 14.03 In the event the Premises, or any part thereof other than improvement made by the Lessee, are damaged or destroyed by fire, accident or any other form of insured casualty whatsoever, regardless of cause, Lessor will restore, repair, replace or rebuild the same at its cost to substantially the same condition that exists immediately prior to such casualty. Such work shall be commenced and completed as promptly as is practicable. 14.04 In the event of any damage, destruction or loss to improvements constructed on the Premises by Lessee, Lessee agrees that it will promptly use the proceeds of the insurance required by this Agreement to replace, restore, or repair such loss. In the event that such insurance proceeds are not sufficient to completely replace, restore, or repair such loss, Lessee shall have the right to terminate this Lease and deliver to Lessor all insurance proceeds paid to Lessee for damage to improvements at the Premises. NOTICES: 15.01 All notices sent because of any provision of this Lease shall be in writing and sent by U.S. Mail delivered to addressee only, with a return receipt, and shall be effective as of the date of receipt as stamped or written on the return receipt by the postal authority making the delivery. 15.02 Notice given to Lessor shall be sent to Board of Aviation Commissioners Municipal Building 50 North Fifth Street Richmond, Indiana 47374 MODIFICATION OF AGREEMENT: Notices given to Lessee shall be sent to: FlightMaster Aviation Services, Inc. 603 Elm Drive Centerville, Indiana 47330 16.01 This Lease Agreement contains the entire agreement between the parties hereto. Any modification or addition shall be in writing and signed by all parties hereto in order for said modification or addition to become effective. MISCELLANEOUS PROVISIONS: 17.01 Lessor shall have the right to inspect the Premises upon giving Lessee written notice at least three (3) days in advance of the date Lessor intends to inspect the Premises. 17.02 Lessee or Lessor shall have the right to record this Lease. 17.03 If any provision of this Lease shall be declared invalid or unenforceable, the remainder of this Lease shall continue in full force and effect. 17.04 Lessee shall control the conduct, demeanor, and appearance of its employees, who shall possess such technical qualifications and hold such certificates of qualification as may be required in carrying out assigned duties. 17.05 Lessee shall comply with all federal, state and local laws, rules and regulations which may apply to the conduct of the business contemplated, including rules and regulations promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place all necessary and/or required permits. 17.06 Lessee shall not permit any paint or other flammable materials to be stored in the Premises, unless in an approved OSHA container or cabinet. 17.07 This indenture of Lease is made in conformance with the "Minimum Standards" passed and adopted by the Board of Aviation Commissioners of Richmond, Indiana, and no clause, paragraph or section hereof shall be construed to be in conflict therewith and all improvements made to or upon the Premises shall be in conformity therewith. 17.08 Taxes levied on the leasehold improvements shall be borne by Lessee. Any taxes that may be assessed against the real estate, exclusive of taxes assesses on any improvements leased to Lessee, shall be borne by Lessor. 17.09 Lessee represents, warrants and covenants that it has the authority and power to execute, deliver, and perform this Lease and has taken all requisite action necessary to authorize the execution, delivery and performance of this Lease. 17.10 Lessor represents, warrants, and covenants as of the commencement date as follows: (a) Lessor has the authority and power to execute, deliver, and perform this Lease and has taken all requisite action necessary to authorize the execution, delivery, and performance of this Lease; (b) This Lease constitutes a legal, valid and binding obligation of Lessor enforceable in accordance with its terms; (c) Lessor has good and indefeasible and record fee simple title of the Premises free and clear of any liens, encumbrances, restrictions, agreements, and encroachments that would interfere with Lessee's uses hereunder; (d) During the period of Lessor's ownership of the Premises and, to the best of Lessor's knowledge, for the period prior to Lessor's ownership of the Premises (i) there were no releases or threatened releases of Hazardous Materials, as hereinafter defined, on, from, or under the Premises; (ii) no Hazardous Materials were used, generated, stored, or disposed of on the Premises; (iii) no Hazardous Materials were transported to or from the Premises; (iv) there were no violations of any federal, state, or local laws, ordinance, or regulations relating to the environmental, ecological or wetland conditions on, under, or about the Premises, including, but not limited to, soil and ground water conditions; and (v) there were no contaminated discharges to a storm sewer. "Hazardous Material" means any flammable explosives, radioactive materials, hazardous or toxic substances and waste, or related materials, including but not limited to, "hazardous substances", "hazardous materials", or "toxic substances" as defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, ("CERCLA"), the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, all state laws, and all regulations pursuant thereto. "Disposal", "release", and "threatened release" shall have the meaning set forth in CERCLA. Lessor shall define, indemnify and hold harmless Lessee, any successors to Lessee's interest in this Lease, and Lessee's and such successors' directors, officers, employees, agents, and contractors from and against any losses, claims, damages (including consequential damages), penalties, liabilities, costs (including cleanup and recovery costs) and expenses resulting from any condition which would constitute a breach of this representation and warranty. Lessor's indemnity shall survive the termination of this Lease; (e) Lessor has not received notice of, nor is there any violation of, or non-compliance with, any laws, orders, rules, regulations, ordinances, or codes of any kind or nature whatsoever relating to the Premises or the ownership or operation thereof, including but not limited to, building, fire, health, occupational safety and health, zoning and land use, planning and environmental laws, orders, rules and regulations, or of any covenants or conditions, restrictions or agreements affecting or relating to the ownership, use, or occupancy of the Premises. No condition exists which constitutes a violation of, or non-compliance with, any such matters. Lessor shall cure any existing violations or conditions which, through notice or lapse of time or both, would become violations of any laws, orders, rules, regulations, ordinances, and codes, and Lessor shall comply with all such laws during the term of this Lease; (f) Lessor has paid for any materials delivered or furnished to the Premises or work or labor performed on or in connection with the improvement of the Premises and no person has any lien or right of lien against the Premises for labor or materials. 17.11 The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Contract, if any, must be filed in said courts. 17.12 Any person executing this Contract in a representative capacity hereby warrants that he has been duly authorized by his or her principal to execute this Contract. 17.13 In the event of any breach or default of this Agreement by Lessee, and in addition to any other damages or remedies, Lessee shall be liable for all costs incurred by City due to the enforcement of this Agreement, including but not limited to City's reasonable attorney's fees. 17.14 This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 17.15 In the event that an ambiguity or a question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto set their hands effective the day and year first above written although signatures may be subsequently affixed. "LESSOR" Richmond, Indiana Board of Aviation Commissioners _S/S Larry Richards , Larry Richards, Vice President Approved: _S/S Sarah L. Hutton Sarah L. "Sally" Hutton, Mayor City of Richmond, Indiana "LESSEE" FightMaster Aviation Services Inc. _S/S Henry F. Morrissey, JR , Henry F. Morrissey, JR Title: President This instrument prepared by City ofRichmond Law Department