HomeMy Public PortalAbout2012_11_13_R124 Lease Renewal for Leesburg Hangar Condominium Assoc.The Town of
Leesburg,
Virginia PRESENTED: November 13, 2012
RESOLUTION NO. 2012-124 ADOPTED: November 13, 2012
A RESOLUTION: LEASE RENEWAL FOR THE LEESBURG HANGAR CONDOMINIUM
ASSOCIATION, INC.
WHEREAS, the Town of Leesburg entered into an agreement October 1, 1982 with Janelle
Aviation predecessor -in- interest to the Leesburg Hangar Condominium Association that permitted the
private construction, operation, and maintenance of fifty (50) hangars at the Leesburg Executive Airport;
and
WHEREAS, the original agreement is for a thirty (30) year period and includes a ten (10) year
renewal option; and
WHEREAS, under Article II, Section 2 of the Lease and Operating Agreement, the Town has been
officially requested by the Leesburg Hangar Condominium Association to renew the lease for a ten (10)
year period as allowed under the agreement; and
WHEREAS, the renewal is predicated upon the finding that the tenant has not failed to perform any
covenant of the lease; and
WHEREAS, Town staff has completed its due diligence, and finds the Leesburg Hangar
Condominium Association to be in compliance with the existing agreement.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows:
The Town Manager is authorized to execute a ten (10) year lease renewal for the Leesburg Hangar
Condominium Association in a form acceptable to the Town Attorney.
PASSED this 13th day of November, 2012.
e,
C. U stattd, Mayor
Town of Leesburg
T S :
Clerk of Council
P:\Resolutions\2012 \1101 Renewal of Lease Agreement with Hangar Condo Assoc Inc.doc
Town of
Virginia
JOHN WELLS
Town Manager
25 West Market Street ■ 20176 ■ 703 -771 -2700 ■ Fax: 703 - 771 -2727 ■ jwells @leesburgva.gov ■ www.leesburgva.gov
November 14, 2012 DELIVERED VIA EMAIL AND REGULAR MAIL
Mr. Thomas Toth
Leesburg Hangar Condominium Association, Inc.
11133 Glade Dr.
Reston, VA 20191
Re: Renewal of Lease ,�greement for Leesburg Hangar Condominium Association, Inc.
Dear Mr. Toth: ,
Please be advised that the Leesburg Town Council resolved at its meeting of November 13,
2012, to authorize the renewal of the Lease Agreement dated October 1, 1982, ( "Lease ")
between the Town of Leesburg and Janelle Aviation, Inc., predecessor -in- interest to Leesburg
Hangar Condominium Association, Inc.
This letter shall serve as notice of the renewal of the Lease under Article III, Section 2. All other
terms of the lease shall remain in full force and effect. The Lease will now terminate on
September 30, 2022.
I enclose a copy of the resolution authorizing the renewal for your records.
Sincerely,
JbI n Wells
Town Manager
cc: Kaj Dentler, Deputy Town Manager
Scott Coffman, Airport Manager
Jeanette A. Irby, Town Attorney
Chad Carper, FAA
Scott Denny, DOAV
Hometown of the 21" Century
NO
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AND OPERATING AGREEMENT [/0/8/82)
This agreement, made by and between the Town of Leesburg,
Virginia, a Virginia Municipal Corporation, (hereinafter referred
to as "landlord ") and'Janelle Aviation, Inc., a Maryland corpora-
tion
(hereinafter referred to as "tenant ").
WITNESSETH:
ARTICLE I
FACILITIES TO BE LEASED
Section 1
In consideration of the covenants and conditions hereinafter
set forth, and other good and valuable consideration, landlord
hereby leases to tenant that portion of the Leesburg Municipal
Airport, Loudoun County, Virginia (hereinafter referred to as
it which is located and described as:
All of that area north of the 28 aircraft parking ramp,
containing 5.6 acres, more or less, along with a non-
exclusive egress and ingress easement for construction and
later use as-an access road, containing 1.2 acres, more or
less; said premises delineated on a plat of the airport
attached hereto as Exhibit "A ".
Section 2
That portion of the airport referred to in Section 1 above
together with the improvements thereon and thereunder shall con-
stitute the "premises" and all operations conducted thereon and
therefrom and all revenues derived therefrom except for the rent
and fees herein reserved shall inure to the benefit of the
tenant.
10/1/82
0
- --- -- -- -- ------ ------------------------------------ --------------------------------------------------------- ..._ -------------------------------- ------- ----------------- - - - - -- -------------------- - -- -- - --
(a) In addition to the premises described above, landlord
hereby grants to tenant an easement for vehicular ingress and
egress over and across the remainder of the property owned by
landlord and known as Leesburg Municipal-Airport, Loudoun County,
Virginia from (a) the southernmost part of the portion of the
Premises described in the Lease as the non - exclusive access road
(the "Beginning Point "), to (b) Virginia State Route No. 643. The
precise location of the easement may be changed from time to time
by landlord, but landlord shall at all times maintain a means of
ingress and egress from the Beginning Point.to Virginia State
Route No. 643. Landlord shall be solely responsible for the main-
tenance, repair and replacement of such access easement. Landlord
covenants that such access easement shall be paved and kept in
reasonably good repair. If relocated, the access easement shall
be similar in size and quality of construction to the access road
existing on the date hereof.
(b) The easement shall be available twenty -four hours a day,
seven days a week for so long as this Lease (or any extension,
modification, amendment, restatement or replacement thereof)
remains in effect, or, if longer, for so long as any person or
entity claiming through tenant has a right to occupy ang portion
of the premises, for a maximum duration of forty (40) years from
the date hereof.
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- ..._... - -- - - - - -- - ---_---------------------------- - - - - -- - - - - -- - -- - - -- -- - - ..__... - - -- -- - - - -- -
(c) This grant of easement shall be construed as a real
covenant and shall run with the land and shall bind landlord, its
successors and assigns for the benefit of tenant, its transferees,
invitees, guests, subtenants, successors and assigns (including
each and every transferee, successor or assign of less than all of
the premises, whether by subdivision, condominium subdivision,
.. s
sublease or otherwise).
ARTICLE TI
RENT
Section 1
The tenant shall pay the landlord for the premises during the
initial 30 --year lease term and the 10 -year optional extension, if
lawfully exercised, in the sums and,at the times and manner
provided below:
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Monthly Rent
Lease.Xear
Per Occupied Storage Space
(Due in advance the first of each
Jac
month)
hfr- 10/311982 -83
$ 6.00
1983 -84
$ 6.00
1984 -85
$ 6.00
1985 -86
$ 6.00
1986 -87
$ 6.00
1987 -88
$ 7.20
1988 -89
$ 7.20
1989 -90
$ 7.20
1990 -91
$ 7.20
1991 -92
$ 7.20
1992 -93
$ 8.65
1993 -94
$ 8.65
1994 -95
$ 8.65
1995 -96
$ 8.65
1996 -97
$ 8.65
-3-
y3
3 po
Fy o0
71,lgq
5'
199.7 -98
$10.40
1998 -99
$10.40
1999 -2000
$10.40
2000 -01
$10.40
2001 -02
$10.40
2002 -03
$12.50
2003 -04
$12.50
2004 -05
$12.50
_ 2005 -06
$12.50
2006 -07
$12.50
2007 -08
$15.00
2008 -09
$15.00
2009 -10
$15.00
2010 -11
$15.00
2011 -12
$15.00
2012 -13
$18.00
2013 -14
$18.00
2014 -15
$18.00
2015 -16
$18.00
2016 -17
$18.00
2017 -18
$21.50
2018 -19
$21.50
2019 -20
$21.50
2020 -21
$21.50
2021 -22
$21.50
The first "Lease Year" shall be the twelve month period
beginning with the first day of the first month following the
effective date hereof.
Section 2
The tenant shall, in addition to the rents provided in this
article, pay to landlord the fixed base operator's fees required
Ca
under Chapter 2.1 of the Leesburg Town ^pertaining to occupied
inside storage space (currently $3.00 per hangar per month). Said
fee may be increased by the town at the end of each 10 year period
following the effective date of this lease. Such increase shall
not be unreasonable.
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ARTICLE II-I
TERM OF LEASE
Section 1
The initial term of this lease shall be for a period of 30
years beginning from the first day of the calendar month next
after the time all conditions to effectuation of this lease set
out in Article XIV below are fulfilled. The landlord, through its
town manager, shall notify the tenant when these conditions have
been met and the beginning date for the lease. In the event
� o tr'
conditions in Article XIV are not met within 30 days of� _,
1982, the lease may be voided at the option of the town and the
$2,000 bid guarantee shall be retained by the town as liquidated
damages.
The landlord shall have the option to renew the lease for an
additional period of ten years, by giving its notice of intention
to extend to tenant in writing at least six months prior to the
termination date of the tenant's initial term, provided, however,
landlord shall exercise its option to renew unless the tenant has
failed to perform any covenant of the lease and such failure has
continued past the applicable time for cure after notification of
non- performance of such covenant.
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ARTICLE IV
USE AND OPERATIONS
Section 1
The tenant shall use and occupy the premises solely for the
purpose of constructing, operating and maintaining enclosed air-
craft storage facilities. The tenant shall conduct its operations
at the airport in accordance with the obligations imposed by those
certain grant agreements between landlord and the Federal Aviation
Administration for the airport, Project #9 -44 -01 -0401, Project
#76- 1- 5- 51- 0027 -01, Project #5 -51- 0027 -02 and #5 -51- 0027 -03 and
all future similar FAA projects. In furtherance of this general
covenant, but without limiting its general applicability, the
tenant specifically agrees to conduct its operation at the airport
for the use and benefit of the general public; to make available
all airport facilities and services to the general public on fair
and reasonable terms without discrimination; and provide space on
the airport to the extent available, and grant rights and privi-
leges for use of the landing area facilities to the airport, to
all qualified persons, firms and corporation desiring to conduct
aeronautical operations on the airport.
--- Section 2
It is specifically understood and agreed that nothing herein
contained shall be construed as granting or authorizing the grant-
ing of an exclusive right within the meaning of Section 308(a) of
the Federal Aviation Act.
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The tenant assures that it will undertake an affirmative ac-
tion program as required by 14 CFR Part 152, Subpart E, of the
Code of Federal Regulations to ensure that no persons shall be on
the grounds of race, creed, color, national origin, or sex ex-
cluded from participating in any employment activities covered in
14 CFR, Part 152, Subpart E. The tenant assures that no person
shall be excluded on these grounds from participating in or re-
ceiving the services or benefits of any program or activity
covered by this subpart. The tenant assures that it will require
that its covered suborganizations provide assurances to the
landlord that they similarly will undertake affirmative action
programs and that they will require,assurances from their
suborganizations, as required by 14 CFR part 152, Subpart E, to
the same effect.
Section 4
The tenant further assures that it will undertake a minority
business enterprise program as required by 49 CFR, part 23, of
the Code of Federal Regulations to ensure full participation by
minority business enterprises in Department of Transportation
--� - -- Programs.
Section 5
The tenant agrees at its sole cost and expense, to provide
the necessary facilities, equipment and any other thing necessary
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.. __- .
to construct and operate 18 aircraft storage facilities in line
with the town's request for proposal dated April 14, 1982 and
proposal response submitted by the tenant on May 26, 1982. The
tenant agrees to construct a minimum of 18 enclosed aircraft
storage facilities to.be finished and ready for occupancy within
one year of the effective date of this lease. Within three years
from the effective date of this lease the tenant shall construct
and operate an additional hangar facility of identical design for
the occupancy of an additional six aircraft.
The proposed facilities must be designed and constructed in
accordance with the tenant's proposal, the approved airport layout
plan for Leesburg Municipal Airportz and FAA construction design
criteria where applicable.
Section 7
The tenant agrees not to conduct any other aeronautical
commercial enterprise or service other than the construction,
operation, sale, and /or lease of aircraft storage facilities as
provided herein unless a fixed base operator's license is obtained
from the town for each specific additional service requested.
-- Section 8
The tenant further agrees, at its sole cost and expense to
provide the necessary equipment, material and supplies and all
other things, except as hereinafter provided, to construct the
asphaltic concrete access road and internal taxiway system in
accordance with design standards approved by the Director of
Engineering and tenant's aforementioned proposal.
Section 9
Within 30 days of the effective date of this lease, the town
shall pay to the tenant a sum in the amount of $5,000 as partial
reimbursement for tenant expenditures in connection with the
engineering and design of the aircraft storage project, ancilliary
structures and general site development.
Section 10
The covenants and agreements set forth in Section 1 through 9
of this Article IV shall he personal to Janelle Aviation, Inc. and
shall not be binding upon mortgagees of this lease, transferees of
condominium units, mortgagees of transferees, and any mortgagees
of tenant or any transferees in possession or who have acquired
title by foreclosure or deed in lieu thereof.
ARTICLE V
MAINTENANCE
Section 1
The tenant shall be responsible for exterior maintenance and
repair of all common areas, hangar storage facilities, access
- - - -- roads, taxiways, and other facilities on the premises.
Maintenance will include grass cutting, snow removal,
pavement cleaning and resurfacing (when determined by landlord),
crack sealing and weed control.
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Tenant shall keep the premises free from any obstruction an
in neat and presentable condition in accordance with industry
standards for a first class general aviation airport.
Section 2
In addition, the tenant shall perform the structural main-
tenance of the access road and internal taxiway system and main-
tain them in condition suitable for their contemplated use.
Landlord reserves the right to close any airport facility
when reasonably necessary for the purpose of maintenance, repair,
further development or construction or for the safety of the
general public.
Section 3
The maintenance obligations in,this Article V and other obli-
gations under this lease shall be separately applied to those por-
tions of the premises submitted to the condominium regime and
those portions not yet submitted. The submitted portions shall be
the responsibility of the Condominium Unit Owners Association, and
a default by Janelle Aviation as to the portions not yet submitted
shall not affect the submitted portions. The Condominium Unit
Owners Association will contribute its pro rata share (based on
- -- the proportion of the premises submitted to condominium) for the
upkeep of the access easement which is not a portion of the sub-
mitted land. Landlord shall have no responsibility for maintain-
ing the access easement while this Lease or any portion hereof
remains in-effect.
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ARTICLE VI
UTILITIES AND TAXES
Section 1
Tenant shall be responsible for and covenants promptly to pay
all bills for heat, light, gas, electricity, water and other
utilities provided on the premises at the option of the tenant.
Section 2
The tenant shall be liable for all taxes, penalties and
interest thereon assessed, levied or charged by any government
against tenant's leasehold interest or any improvements made by
the tenant on the premises hereafter. In the event said tenant
does not promptly pay said taxes, landlord shall have the right to
pay the same and charge the same to,tenant as additional rent.
The tenant shall further promptly deliver to landlord a photo-
static copy of paid real estate and personal property tax receipts
from the County of Loudoun within 15 days of payment.
ARTICLE VII
INSURANCE AND LIABILITY
Section 1
Tenant agrees to carry and maintain, with a responsible
-- -- insurance company approved by landlord, insurance in amounts not
less than those shown below:
(a) Workmen's compensation insurance as required by the
appropriate laws of the State of Virginia;
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(b) Fire and extended coverage., vandalism and malicious mis-
chief on all structures on the premises in an amount equal to
their -fair insurable value as approved by the town..
Tenant agrees that all insurance policies will contain an
appropriate endorsement with a 30 day notice of cancellation
clause. All proceeds of insurance shall be first applied to the
rebuilding of any damaged or destroyed buildings. Certificates
from the insurance company showing the coverage carried, with the
endorsements thereon, shall be furnished by tenant to landlord
within 30 days from the effective date of this lease-and in the
event they are not so furnished to landlord it shall have the
right to secure the same and such charges shall become additional
rent. Leasehold mortgagees may be named as additional insureds on
all policies required hereunder.
Section 2
Tenant shall not do or permit any act or thing upon the
premises which may - subject landlord to any liability or responsi-
bility by reason of any violation of law or of any legal require-
ment of public authority, but shall exercise such control over the
premises as to fully protect landlord against any such liability.
Tenant shall indemnify and hold landlord harmless from and against
any and all liability, fines, suits, claims, demands and actions
and costs and e.xpenses of kind or nature of anyone whomsoever, due
to or arising out of (a) any breach, violation or non - performance
of any covenant, condition or agreement in this lease set forth
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and contained herein on the part of tenant to be fulfilled, kept,
observed and performed; and /or (b) any damage to property
occasioned by tenant's construction, alteration, restoration, use
or occupancy of the premises; and /or (c) any injury to any person
or persons, including death resulting at any time therefrom occur-
ring in or about the premises, and not caused by or resulting from
the fault of landlord or any tenant of landlord other than the
tenant or its subtenants, if any.
Section 3
The tenant shall add the premises to its public liability
insurance policy under Article VII, Section 3 of its lease with
the town assigned from Century Aviation, Inc. An appropriate
endorsement adding the premises shall be delivered to the town
within 30 days of the effective date of this lease. This covenant
shall be personal to Janelle Aviation, Inc.
Section 4
Landlord and tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any
loss or damage to property covered by any insurance then in force,
even if such loss or damage shall have been caused by the fault of
negligence of the other party, or anyone for whom such party may
be responsible, provided, however, that this release shall be
applicable and in force and effect only with respect to any loss
or damage occurring during such time as the policy or policies of
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insurance covering said loss shall not adversely affect or impair
said insurance or.prejudice the right of the insured to recover
thereunder.. The parties hereto agree to endeavor to procure such
a clause or endorsement, provided no additional charge is made
therefor.
Section 5
Tenant agrees to save harmless and indemnify landlord from
any judgment recovered by anyone for personal injury or property
damage sustained or claimed to have been sustained by reason of
any of the rights granted tenant by this lease or any activities
conducted by'the tenant and shall pay all expenses and costs in
defending against any such claim made against landlord provided
that tenant shall not be liable for.any damage, injury or loss
occasioned by the negligence of landlord, its agents or em-
ployees. Landlord shall be named as an additional insured on all
liability policies of insurance purchased by tenant.
Section 6
No destruction or damage to the premises, or any part
thereof, by fire, flood, Wind storm or other casualty or hazard
shall terminate this lease, or any provision thereof.
ARTICLE VIII
DAMAGES TO OR DESTRUCTION OF PREMISES
In the event any of the above premises Leased to tenant are
destroyed or damaged by fire or other casualty, tenant covenants
to rebuild said structures, in the same location, as soon as prac-
MEC
............._...... .
ticable and of at least equal size and quality as the original.
Tenant shall be entitled to use the proceeds from any and all
insurance payments for the reconstruction, repair and rebulding of
any structures which have been destroyed or damaged, however, the
proceeds of insurance -shall be held by an insurance trustee whose
appointment shall be approved by any first mortgagees and by land-
lord, pending receipt and approval of progress invoices for com-
pletion of the rebuilding which approval shall be timely and not
unreasonably withheld.
ARTICLE IX
CIVIL RIGHTS
Section 1
Janelle Aviation, Inc., as a covenant personal to it, as a
part of the consideration hereof, does hereby covenant and agree
that (1) no person on the grounds of race, color, or national
origin shall be excluded from participation in, denied the bene-
fits of, or be otherwise subjected to discrimination in the use of
said facilities, (2) that in the construction of any improvements
on, over, or under such land and the furnishing of services there-
on, no person on the .grounds of race, color, or national origin
— - shall be excluded from participation in, denied the benefits of,
or otherwise be subjected to discrimination, (3) that the tenant
shall use the premises incompliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary,
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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.
Section 2
That in the event of the .failure to comply with any of the
above nondiscrimination covenants after notice and the applicable
period to cure, landlord shall have the right, subject to Articles
XIII and XVII, to terminate the lease, and to re -enter and repos-
sess said land and the facilities thereon, and hold the same as if
said lease had never been made or issued.
ARTICLE X
RULES AND REGULATIONS
Section 1
The tenant shall continually police subtenants and aircraft
storage owners on the premises relative to their compliance with
all airport rules and regulations and the terms of this lease.
Throughout the initial and subsequent term of this lease the
tenant shall be responsible for the actions of its subtenants and
owners. Subtenants and condominium unit owners shall not be
responsible for the failure of Janelle Aviation, Inc. hereunder so
-- - long as they are in compliance with all applicable rules and regu-
lations imposed by the town and contained in the condominium
documents.
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Section 2
Rules and Regulations dealing with the airport and additions,
alternations or modifications of said rules and regulations may
from time be made by landlord and be deemed a part of this lease
and shall be effective immediately at such time as notice is given
to tenant.
Section 3
The right to dispute the reasonableness of any additional
Rules or Regulations upon tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice in writ-
ing upon landlord within ten days after the notice of adoption of
any such additional Rules and Regulations. Pending resolution of
such dispute, tenant shall nevertheless comply with the rule or
regulation in question as well as all others. Wherever there is
any conflict between the provisions of this lease and the Rules
and Regulations, this lease shall govern.
Section 4
This lease shall be subordinate to the lease and operating
agreement between the Town of Leesburg and Janelle Aviation, Inc.
as assigned from the original lease and operating agreement
- - - - -- between the Town of Leesburg and Century Aviation, Inc., and
except where inappropriate by its context, any covenant, require-
ment, or regulation prescribed in the assigned Century Aviation
lease shall apply to the conduct of operations to be performed by
tenant on the premises; provided, however, that the estate of any
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transferee or mortgagee of condominium units or the estate of any
transferee or mortgagee of this lease shall not be affected by any
failure to comply with the Century Aviation Lease, and such trans-
ferees or mortgagees need only comply with the terms hereof and of
the condominium documents, when recorded.
ARTICLE XI
EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an
event of default hereunder.
(a) Failure of tenant to take any or all acts required prior
to the effectuation of this lease within the prescribed time.
(b) Failure to construct any of the improvements called for
in this lease within the prescribed.time period.
(c) Failure of tenant to pay when due any installment of
rent or fees hereunder or any such other sum herein required to be
paid by tenant.
(d) Failure to meet any of the maintenance or repair
requirements prescribed herein.
(e) Tenant's failure to vacate and surrender the premises as
required in this lease upon expiration of the term or termination
-- - -_ of this lease.
(f) Tenant's failure to perform any other covenant or
condition of this lease.
so long as this lease has not expired or been terminated, the
tenant shall have the right to cure any default within 30 days
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after receipt of ...a ,notice of such default from Landlord. No
further time shall be permitted to cure any monetary default. If
a non - monetary default cannot be totally.cured within the said 30
day period, and tenant is in good faith using all due speed to
cure this default, commencing within the said 30 day period, then
tenant shall be allowed such further reasonable time to cure as is
necessary, provided that landlord shall have the right to request
that tenant supply evidence on the progress of the efforts to cure
every two weeks during the extended period, and this Lease shall
continue as if no such default has been committed.
ARTICLE XII
RIGHTS OF LANDLORD UPON
DEFAULT BY TENANT
Section 1
In the event of occurrence of an event of default hereunder:
(a) At any time after any event of default shall occur and
remain uncured after the expiration of the prescribed time to
cure, and subject to Articles XIII and XVII, landlord, at its
option, may serve notice upon tenant that this lease and the then
unexpired term hereof shall cease and expire and become absolutely
void on the date specified in such notice, to be not less than
five days after the date of such notice, and thereupon, and at the
expiration of the time limit in such notice this lease and the
term hereby granted, as well as all of the right, title and inter-
est of tenant hereunder, shall wholly cease and expire and become
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void in the same manner and with the same force and effect (except
as to tenant's liability) as if the date fixed in such notice were
the date herein specified for expiration of the term of this
lease. Thereupon, tenant shall immediately quit and surrender to
landlord the premises., and landlord may enter into and repossess
the premises by summary proceedings, detainer, ejectment or other-
wise, and remove all occupants thereof and, at landlord's option,
any property thereon without its employees being liable to indict-
ment, prosecution or damages therefor.
(b) In the event of default by tenant under a covenant not
personal to Janelle Aviation, Inc. and failure to cure as
aforesaid, landlord shall be entitled as a matter of right and
without notice to tenant or any other party or parties (such
notice hereby waived) to the appointment of a receiver with full
and complete authority to enter upon the premises, to employ
watchmen to protect any improvements from depredation or injury
and to preserve and protect the personal property therein, to
continue any and all outstanding contracts or, at receiver's
option, to enter into a new contract or contracts and to continue
the commercial operation of the Airport, subject, however, at all
-- times to the rights of transferees of hangar condominium units and
their mortgagees provided such transferees and mortgagees are not
in default hereunder.
(c) In the event of a breach or threatened breach by tenant
of any of the agreements, conditions, covenants or terms hereof,
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landlord shall have the right to injunction to restrain the same
and the right to invoke any remedy allowed by law or in equity
whether or not other remedies, indemnity or reimbursements are
herein provided. The rights and remedies given to landlord in
this lease are distinct, separate and cumulative remedies, and no
one of them, whether or not exercised by landlord, shall be deemed
to be in exclusion of any of the others.
O - wL.- - h
In addition to the rights afforded to landlord in Section 1
of this Article, landlord may declare that the bond described in
Article XIV, Section 2, is forfeited and may claim the same as
liquidated damages for the breach of this agreement.
ARTICLE XIII
SALE OR SUBLEASE OF HANGARS
0 -n4- i n» i
The tenant shall have the right to sell as condominium or
sublease the hangar storage facilities constructed under this
lease. All condominium documents and other instruments related to
any sale of the facilities shall be approved in advance by the
Leesburg Airport Commission. Any such sales transaction shall ex-
-- -- clude the sale of land which shall remain in fee simple ownership
of the Landlord. All facilities constructed on the premises shall
become the property of the landlord at the expiration of the
initial term of this lease or subsequent term of this lease if
legally extended by landlord and tenant.
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LP
Prior to approval of the condominium documents and instru-
ments, the tenant shall furnish an attorney's certificate from an
attorney licensed by the Virginia Bar Association certifying that
the documents meet all national, state and local regulations and
laws governing such documents.
Section 2
Tenant plans to construct hangar buildings on the premises
and to sell individual hangars within such buildings as condomini-
um units. The terms and provisions of this Section shall apply in
the event tenant chooses to proceed with such condominium project.
A condominium unit is hereafter called "Unit" and the owner of any
Unit is hereafter called a "Unit Owner ".
(a) While still owner of the entire leasehold estate and of
the improvements, tenant proposes to file a Condominium Declara-
tion with respect to the premises and the improvements thereon,
such Declaration to be filed just prior to the first conveyance of
a Unit to a Unit Owner. Upon purchasing a Unit, the Unit Owner
will, in addition to title to the improvements constituting the
Unit, acquire an undivided interest in the leasehold estate
created hereby, and will thereupon be deemed an assignee of the
- leasehold estate to the extent of such undivided interest, and
shall assume the obligations of tenant hereunder insofar as such
obligations affect the undivided interest of the Unit Owner and
are not personal to Janelle Aviation, Inc. Without limiting the
generality of the foregoing, the Unit Owner will be obliqated to
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pay the monthly rent hereunder and fixed base operator's fee
referred to in Article II, Section 2. Notwithstanding anything to
the contrary contained herein, at such time as Janelle Aviation,
Inc. has assigned all of its interests in the premises to Unit
Owners, landlord will.consider only the assignee Unit Owners,
their transferees, heirs and.successors bound hereunder and
Janelle Aviation, Inc. shall be relieved of all those rights,
obligations, duties and interests under this lease which are not
personal to Janelle Aviation, Inc.
(b) Each Unit Owner shall comply with all of the require-
ments of the Condominium Declaration and the Bylaws of any Con-
dominium Association established with respect to such condominium
as the same may be amended from time to time, and a default by the
Unit Owner under such Declaration or Bylaws shall constitute an
event of default under this lease and shall entitle landlord to
exercise the landlord's remedies under this lease with respect to
the undivided leasehold estate of such Unit Owner.
(c) If required by landlord or by such Declaration or
Bylaws, the Unit Owner shall pay his proportionate part of the
rent payable hereunder, including, but not limited to, such Unit
-` Owner's pro rata share of the insurance premiums and property
taxes applicable to the premises and to the Unit Owner's Unit, to
the Condominium Association for payment, in turn, to landlord or
other person entitled thereto. The fire and extended insurance
coverage with respect to such Unit shall be included within a
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...........................
blanket fire and extended insurance policy covering all of the
inprovements located on the premises, which policy shall comp. ly
with the requirements contained in this lease.
(d) Irrespective of any default by Janelle Aviation, Inc. or
by .any other Unit Owner, so long as any Unit Owner is not in
default hereunder with respect to a covenant not personal to
Janelle Aviation, Inc., the undivided leasehold estate of such
Unit Owner may not be terminated prior to the expiration of the
term of this lease.
(e) Any mortgage or deed of trust granted by a Unit Owner
covering his Unit shall be a leasehold mortgage covering the unit
and the undivided interest in the leasehold estate of the Unit
Owner in and to the premises. Any mortgagee of such Unit shall
have the same rights and be entitled to the s »^e notices with
respect to default by the Unit Owner- Mortgagor under this lease as
are afforded to any mortgagee of the entire l- asehold estate here-
under by Article XVII hereof, and there shall be no termination
of the undivided interest of the Unit Owner in and to the lease-
hold estate because of default by such Unit Owner without compli-
ance by landlord with the applicable provisions of such Article
XVII.
(f) No termination of the undivided interest in the lease-
hold estate of any Unit Owner shall terminate the Condominium
Declaration unless the interest of all Unit. owners has terminated,
but such Condominium Declaration shall remain in full force and
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effect so long as any Unit Owner owns a Unit unless otherwise
terminated in accordance with the provisions of such Declaration
and with the prior written consent of the mortgagees of all Unit
Owners. Upon the expiration of the term of this lease, or upon
the_ earlier termination of the entire leasehold estate hereunder,
the Condominium Declaration shall terminate and be of no further
force an effect unless at the time of such termination landlord
shall file an instrument of record expressly consenting to the
continuation of such Declaration.
(g) The landlord agrees to join with the tenant in executing
the Condominium Declaration approved by landlord pursuant hereto,
submitting the premises to the Condominium Act (Title 55, Chapter
4.2, 1950 Code of Virginia as amended) .
ARTICLE XIV
CONDITIONS TO EFFECTUATION OF LEASE
The obligations of this lease are subject to the following
conditions precedent:
(a) If required, the lease must be approved by the Virginia
Department of Aviation. In addition, the said tenant must secure
all necessary permits for the conduct of the oneration.of the said
airport and service to be conducted there. In the event the lease
is disapproved by the Virginia Department of Aviation and /or the
location of the hangar facilities is disapproved by the Federal
Aviation Administration, all rights and obligations in this lease
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shall terminate. Both parties covenant to use their best efforts
to secure the necessary and requisite approvals described above.
( -b) Landlord shall have received, prior to execution of this
lease, a corporate surety bond, or other acceptable security, in a
form approved by the town attorney, to guarantee the construction
of all facilities required to be completed hereunder.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 1
Failure of landlord to insist in any one or more instances
upon a strict performance by Tenant of any of the provisions,
terms, covenants, reservations, conditions or stipulations
contained in this lease shall not be construed as a waiver or
relinquishment thereof for the future, but the same shall continue
and remain in full force and effect, and no waiver by landlord of
any provisions, terms, covenants, reservations, conditions or
stipulations hereof shall be deemed to have been made in any
instance unless specifically expressed in writing by landlord as
an amendment to this lease.
Section 2
"- Tenant warrants that no person or agency has been employed or
retained to solicit or secure this lease upon an agreement or un-
derstanding for a commission, percentage, brokerage or contingent
fee and shall hold the landlord harmless from any claim for same,
including attorneys' fees in the event any claim is made upon
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landlord or litigation is commenced or threatened against land-
lord.
ARTICLE XVI
QUIET ENJOYMENT
Section 1
Landlord warrants that it has the power and authority to
enter into this lease and so long as tenant performs each and
every covenant agreement, term provision, and condition herein
tenant and its customers shall have quiet and peaceful possession
of the premises without hinderance from landlord or anyone.claim-
ing under or through landlord.
Section 2
Landlord agrees that it will supply any person legitimately
requesting same with a statement as to the continuing validity of
this lease, the status of rental payments and any defaults then in
existence. Such statements shall be delivered upon request to
purchasers of Condominium Units or a mortgagee with respect to the
portion of the premises occupied by such Unit or Units. Landlord
may collect a reasonable fee for its expenses in preparing such
statements.
ARTICLE XVII
PROVISIONS RESPECTING MORTGAGEES
The following sections shall be in effect, anything contained
in this lease to the contrary notwithstanding:
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.....................
Section 1
(a) A leasehold mortgagee has the unrestricted right to take
this Tease (or any portion thereof relating to a condominium Unit)
by assignment in lieu of foreclosure and to sell it either after
foreclosure or after taking the assignment, all without the con-
sent of landlord, but no such occurrence shall relieve Janelle
Aviation, Inc. of its obligations hereunder until after completion
of the original improvements, free and clear of all mechanics'
liens. The leasehold mortgagee shall be personally liable for
tenant's obligations hereunder, to the extent the same are not
personal to Janelle Aviation, Inc., but only for the period during
which it is the owner of the leasehold estate, whether by fore -
closure or assignment.
(b) The mortgagee of the tenant's leasehold estate, at any
time before the rights of tenant shall have been terminated here-
under, as provided in this lease, may, at its option do any act or
any thing necessary proper hereunder to prevent such termination,
and any act or thing so done shall be as effective to prevent such
termination of tenant's rights hereunder as if done by said
tenant; and if tenant so desires any such mortgage or deed of
trust may provide that, as between any such mortgagee and land-
lord, such mortgagee on making good any default hereunder by
tenant shall thereby have all the rights provided by law.
(c) For the benefit of the holder of any mortgage on the
leasehold estate created by this lease who shall have become
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.................. ...............................
entitled to notice as hereinafter provided in Section 1(d) of this
Article XVII, landlord agrees not to accept a surrender of this
lease -at any time while such mortgage shall remain a lien on said
leasehold; and landlord and tenant further agree for the benefit
of _any such leasehold, mortgagee that, so long as any such mortgage
shall remain a lien on said leasehold, landlord and tenant will
not subordinate this lease to any mortgage that may hereafter be
placed on the fee or amend or alter any terms or provisions of
this Lease or consent to any prepayment of any rent without secur-
ing the written consent thereto from such leasehold mortgagee.
(d) Landlord agrees that if and so long as the leasehold
estate of the tenant is encumbered by a leasehold mortgage or deed
of trust, landlord will give to the.holder of any such mortgage
notice of any default under this Lease or the happening of any
contingency referred to in Article XI simultaneously with the qiv-
ing of such notice to the tenant. In the event the tenant fails
to cure a default within the period in Article XI, landlord shall
give notice of such failure to the leasehold mortgagee, and such
leasehold mortgagee shall have the right for an additional period
of thirty (30) days from the receipt of such notice from landlord
of failure by lessee to cure the previously noticed default and,
to the same extent and with the same effect as though done by
tenant, to take such action and /or to make such payment as may be
necessary or appropriate to cure any such default or contingency
so specified, it being the intention of the parties hereto that
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............ ...............................
...... ...............................
the landlord shall not exercise its right to terminate this Lease
as in Article XII, without affording to the holders of any such
mortgages or deeds of trust the same rights and the same notices
with respect to any such default or contingency and the additional
notice of tenant's failure to cure as above provided, and the same
period or periods of time within which to cure the same as are
afforded to the tenant hereunder (and a period of thirty, (30) days
from receipt of such notice or failure by tenant to cure the
previously noticed default).
With regard to any default that may not be cured by the
payment of money, the leasehold mortgagee shall have the right,
prior to termination of this Lease by landlord, to extend the
period of time beyond the said thirty (30) days for such addi-
tional period as, in good faith, will enable the leasehold mort-
gagee to institute foreclosure proceedings, appoint a receiver for
the purposes, among other things, of curing such default and /or to
acquire by foreclosure tenant's interest in this Lease, to affect
a removal of tenant from and /or acquire possession of the leased
premises and for such reasonable time thereafter as may enable the
leasehold mortgagee to cure any and all such defaults provided
that with respect to defaults in the payment of rent the time for
the leasehold mortgagee to cure shall not exceed thirty (30) days.
Landlord agrees to accept performance and compliance by any such
leasehold mortgagee of and with any term, covenant, agreement,
provision, condition or limitation on tenant's part to be kept,
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observed or performed hereunder with the same force and effect as
though kept, observed or performed by tenant. Landlord's right to
terminate this lease or any part thereof shall be subject to the
rights of any mortgagee to receive notice and opportunity to cure,
and-such mortgagee, their transferees, successors and assigns,
shall not be obligated to cure any default under a covenant which
is personal to Janelle Aviation, Inc.
(e) If this lease shall terminate prior to the expiration of
the lease term, landlord shall enter into a new lease for the
leased premises with any such leasehold mortgagee for the remain-
der of the then term, effective as of the date of such termina-
tion, at the rent and upon the same terms, covenants and condi-
tions contained herein (includinq the option to extend this
Lease), on conditions that:
(i) Such leasehold mortgagee shall make a written
request for such new lease within thirty (30) days after date of
such termination; and
(ii) On the commencement date of the term of the new
lease, such leasehold mortgagee shall cure all defaults of tenant
which are not personal to Janelle Aviation, Inc. under this Lease
(susceptible of being cured by such leasehold mortgagee) which
remain uncured on that date, and shall pay or cause to be paid all
unpaid sums which at such time would have been payable under this
Lease but for such termination, and shall pay or cause to be paid
to landlord on that date all expenses, including legal expenses
-31-
and reasonable attorneys' fees, incurred by landlord in connection
with any such default and termination, as well as in connection
with the execution and delivery of such new lease.
Section 2
. Landlord agrees that it shall not encumber or cause a lien,
claim or charge to be placed against or imposed on the title to
the premises; and should any lien, claim or charge be placed
against or imposed on the title to the premises by or on account
of the landlord, and properly chargeable to it, then tenant at its
option may pay the same and deduct that amount.plus interest and
costs from the rent payment next due. Landlord further represents
and warrants to tenant that the premises are free from all encum-
brances, liens, defects in.title, violations of law, leases,
tenancies, easements, restrictions and agreements.
In the event of a taking of the premises by eminent domain or
condemnation proceedings so as to render the same unusable for the
purposes contemplated by the parties hereto on the date hereof,
then tenant shall have the option to terminate this lease, or
renegotiate the terms hereof in view of said taking_ In the event
__ -- of such a taking which does not significantly or materially affect
the use of the premises as contemplated on the date hereof, then
this lease shall remain in full force and effect.
In the event that the lease is not terminated following any
such taking, both the landlord and tenant shall share in the award
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or purchase price of the premises taken according to the respec-
tive interests therein as determined by a court of competent
jurisdiction; in.the event of a termination of this lease and
there is at that time a mortgage on the leasehold interest of the
property, such mortgagee shall have the right to first receive
such amount as may be necessary to pay off the balance of the out-
standing loan; and the balance after paying the landlord the value
of the land as determined in such taking shall be divided between
the parties according to their respective interests, and provided,
however, that if this lease continues in effect after such taking
and it is necessary for the balance of the premises to be restored
or repaired, then the tenant, at its sole expenses, shall make
such repairs or restoration and it shall first receive the cost
thereof out of any award or purchase price before the sharing of
any residue of the award or purchase price between the landlord
and tenant.
ARTICLE XVIII
NOTICES
Any notice required or permitted to be given pursuant to this
Agreement shall be in writing and shall be sufficient if actually
delivered or if sent by certified mail (return receipt requested)
properly stamped and addressed, to landlord as follows:
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............. ...................
Town Manager
ATTN: Assistant Town Manager
Town of Leesburg in Virginia
P.O. Box 88
Leesburg, Virginia 22075
to tenant as follows:
JANELLE AVIATION, INC.
Leesburg Municipal Airport
Route 1, Box 432
Leesburg, VA 22075
or to such other address as landlord and tenant may from time to
time designate by written notice.
ARTICLE XIX
ASSIGNMENT
The personal obligations of Janelle Aviation, Inc. under this
lease may not be assigned in whole or in part during the first
five years of the lease term. Thereafter such assignment shall
require the prior approval of the Leesburg Town Council.
Tenant shall have the right and privilege to mortgage and /or
otherwise encumber its leasehold interest, in whole or in part, in
the premises and /or in any part thereof, and to assign this Lease
as security for the performance of its obligation under such Mort-
gage and other encumbrance. In addition, tenant shall have the
right to assign this lease in connection with the sale of Con -
dominum Units as contemplated in Article XIII to such other per-
sons, firms and /or corporations as tenant may select; provided,
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however: (1) such assignment shall be made expressly subject to
the terms, covenants and conditions of this lease; and (2) there
shall.be delivered to. landlord a duly executed copy of such deed
of assignment; and such assignment shall not be effective to bind
landlord until notice shall designate the name and address of the
assignee and the post office.address of the place to which all
notices required by this Lease shall be sent. Such assignee of
tenant (and all succeeding and successive assignees) shall succeed
to all rights of tenant under this Lease, including the right to
mortgage, encumber and otherwise assign and sublet, subject, how-
ever, to all the duties and obligations of tenant (which are not
personal to tenant) in and pertaining to the then unexpired term
of this Lease. Upon such assignment by tenant, or by a successive
tenant, the original tenant (and /or its successive assignee or
assignees), the assignor in such an assignment, shall be released
and discharged from those duties and obligations hereunder which
pertain to the portion of the premises assigned as to the then
unexpired term of this Lease, including the payment of rents,
taxes or other impositions which are not then due and payable; it
being the intention of this Lease that the tenants then in posses-
sion shall be the sole persons liable for the payment of rent,
taxes and other impositions becoming due and payable during the
term of its possession of the demised premises and that there
shall be no obligation on the part of the original tenant (or any
assignee) for the payment of any rent, taxes or other impositions
-35-
becoming due and payable after the term of its possession of the
premises.
Section 3
Tenant or its assignees shall have the right to sublet all or
any_ part of-the premises upon the following terms and condi-
tions:
(1) No such sublease shall in any way affect or modify the
tenants` obligations under this lease.
(2) Each sublease shall provide that it is subject and
subordinate to the rights of the landlord under this lease, and to
any modification thereof, and to the terms and provisions of any
deeds of trust or mortgages to which this lease is subordinate,
and to all renewals, extensions or modifications thereof_. The
provisions for such subordination shall be self- operative so that
no further instrument of subordination need be required.
(3) Each sublease shall also provide that the sublessee
shall abide by and comply with all of the terms set forth in this
lease, or any modifications thereof, except with respect to the
terms regarding rent and insurance, which shall remain the
tenants' obligations.
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IN WITNESS WHEREOF, the parties have caused the same to be
executed by themselves and their appropriate officer, all being
duly authorized to act, this d day of 1982.
ATTEST:
Clerk of ouncil
ATTEST:
(TENANT)
TOWN OF LEESBURG IN VIRGINIA
(LANDLO )
By:
R bert E. evi]a�,,;- Mayor
JANELLE AVIATION, INC.
By
James M. Hay es, Jr. resident
(SEAL) d
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State of Virginia )
ss
County of Loudoun }
The foregoing instrument was acknowledged before me this 8
day of October , 1982, by Robert E. Sevila ,the
Mayor of the Town of Leesburg, Virginia, a Virginia
municipal corporation, on behalf of the corporation.
[Notarial Seal]
219-tary Public
My commission expires: 2 -25 -83
State of
` ) ss
County of�
Th foregoing instrument was acknowledged before me this
day of L -4u_ _ , 1982, by James M. Haynes, Jr., the
president of Janelle Aviation, Inc., a Maryland corporation, on
behalf of the corporation.
Notary Pub is
[Notarial Seal] My commission expires:
My Commission Expires February 2' 6, i7mf
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