HomeMy Public PortalAbout2006.06.08 General Aviation Lease Drafti
MUNICIPAL AIRPORT
GENERAL AVIATION LEASE
This Lease is made,(insert date), by and between the City of McCall, an Idaho municipal
corporation (called "City" in the rest of this Lease) as Lessor, and Hangar Solutions LLC
an Idaho Limited Liability Company (called "Lessee" in the rest of this Lease), as
Lessee, for and in consideration of the mutual promises, covenants, agreements and
conditions in this Lease. This Lease consists of this "McCall Municipal Airport General -
Aviation Lease" together with the legal description, Exhibit ",a drawinq_of the Subject_ -
Property,_Exhibit "B"� City of McCall Request for Proposal dated March 5, 2006„Exhibit
"C"; and the,Hangar Solutions LLC, response to Exhibit.„= "Proposal for Taxilane and
General Aviation Hangar Development" dated April 4, 2006, Exhibit "D",
Background
1 City is the owner in fee simple of the land described on Exhibit "A" and depicted
on Exhibit "B" ("Subject Property"), and holds it for the use and benefit of the .
people of McCall and their guests as a part of the McCall Municipal Airport (all of
which Airport is called "Airport" in the rest of this Lease); and Lessee desires to
make use of the Subject Property exclusively and the Airport nonexclusively for
aviation -related activities, - Deleted: ;
2. On March 5, 2006 City published a Request for Proposal (RFP), Exhibit "C", to
the public for the purpose of constructing a Taxilane and General Aviation
Hangar Development. Lessee responded to the RFP and was selected by City to
accomplish the work proposed in the RFP on April 13, 2006.The parties hereto
now desire to enter into this General Aviation Lease of the land described in
Exhibits A and B (approximately 6.0 acres)., where the improvements described
in Lessee's response to the RFP, Exhibit "D", will be built. It is the intent of
Lessee to build thirty (30) aircraft hangers and offer these hangars for sale (1) to
the individuals on the City of McCall's "Aircraft Waiting List" which is maintained
by the Airport Manager, and (2) to the general aviation public who own aircraft.
3. Uses of the Airport must be compatible with the provision of safe air
transportation, be compatible with aircraft ground activity, not devote Airport land
to non -aviation -oriented activity, and maintain an attractive appearance of the
Airport.
l Deleted:
Deleted: Tenant
-Deleted:
Deleted: a drawing
' Deleted: -----
Deleted: ,
Deleted: :
Deleted: C
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Agreements
4. Lease. City leases to Lessee, and Lessee leases from City, the property
described on Exhibit "A," called "Subject Property" in the rest of this Lease,
together with the right of ingress and egress as provided below in paragraph 6,
subject to and in accordance with the terms of this Lease.
Page 1 of 13
5. Use of Subject Property.
A. The principal and predominant use of any building constructed on Subject
Property shall be,for aircraft storage and other aviation -oriented activities of the
Lessee permitted pursuant to this paragraph 5. No other uses of the property are
allowed. Lessee is authorized also to make use of the Subject Property for
incidental Airport -related activities. The Airport Manager•has the sole discretion
to determine whether use of the Subject Property is reasonably incidental to
"Airport related,activities."
B. The placement of and plans for improvements are subject to approval as
provided below under paragraph 17, Construction, and Lessee shall obtain that
approval before commencing any construction. Such construction and any use
shall comply with this Lease, and with the McCall City Code_
C. Lessee shall keep and maintain the.leased premises in a neat and orderly
manner, includingponcealing from view temporary storage of, and then making
lawful disposal of, debris, garbage and other waste material arising out of its
occupancyyUnder no circumstances shall Lessee permit junk, debris, inoperable
or unlicensed vehicles or equipment, or other unsightly material, to be stored or
otherwise abandoned on the Subject Property.
D. Fuels and other flammable materials shall,pe stored in,secured and
approved containers.
E. Lessee shall not engage in commercial activity with the aviation public
using the airport, except:
i. A business client of Lessee may coincidentally be present.
ii. Lessee shall be permitted to engage the services ofJicensed and
qualified contractors to perform services for Lessee at the Subject.
Property.
At no time may Lessee's invitees be unaccompanied by Lessee or one of
Lessee's officers or employees while at the Airport except for the contractors
referenced in the preceding sentence who shall be permitted to perform such
services without the presence of one of Lessee's officers or employees,_
6. Uses in Common. Lessee shall have the nonexclusive right to use, in common
with others, all Airport facilities and improvements of a public nature which are
now, or may come to be provided, including, but not limited to, runways,
taxiways, aprons, roadways, parking areas, and other common use facilities,
provided such use is in accord with applicable law and regulations, for the
purpose of completing the work outlined in Exhibit "D" as proposed and agreed
by the Lessee.
Page 2of13
Deleted: primarily
- -{Deleted: -
{ Deleted: ,
Deleted: keeping grass cut and
buildings painted a color approved by
City in like fashion as provided in
paragraph 17, as well as
Deleted: .
7
l Deleted: not
Deleted: hangars, nor shall heating
fuel lines be located above ground
Deleted: aviation related
Deleted:. Lessee is specifically
prohibited from fueling aircraft inside
any hangar, and from engaging in the
specific uses assigned to Fixed Base
Operators, according to the specific
use provisions of the City's standard
form lease for Foxed Base Operators,
available to Lessee for inspection at
City Hall.
Deleted: takeoff, flying and landing
of aircraft owned, leased, or rented by
the Lessee, and its occasional
invitees.
7. Parking.,Vehicles may be parked in areas_designated by the Airport Manager
when used for the completion of the work outlined in Exhibit "C".,
8. Operations to be Lawful. Lessee and Lessee's improvements and use shall
comply in all material respects with all applicable laws, ordinances, rules, and
regulations of the United States, the State of Idaho, and the City of McCall,
including those laws, rules and regulations which may be lawfully promulgated
by any of the same during the term of this Lease. Lessee shall further obey in all
material respects any other lawful directions of the Airport Manager, even if
Lessee wishes to appeal such directions. An appeal of any such direction shall
be filed with the Airport Manger in writing by a written appeal. The notice to the
City providing particularized claim(s) shall be filed within ten (10) calendar days
of the event being appealed. The City shall respond in writing within sixty (60)
days from receipt of the written appeal. Lessee shall comply in all material.
respects with this Lease and all applicable other laws, ordinances, rules, and
regulations; where requirements differ among these. various sources, the laws,
ordinances, rules, and regulations that are most compatible with safe air
transportation shall be complied with; the interpretation of the Airport Manger in
these regards made in good faith shall be conclusive. The City may enter into or
on the Lessee's premises to conduct inspections to insure lawful and safe use of
the premises with twenty four (24) hour written notice or without notice in
emergency situations.
Subordination to Federal Funding and Emergency Requirements. This Lease is
subordinate to the provisions of any existing or future agreement between City
and the United States, relative to the operation or maintenance of the Airport, the
execution of which agreement has been or may be required as a condition
precedent to the expenditure of Federal funds for the development of the Airport.
This Lease shall be subordinate to the right of the City during the time of war or
national emergency to lease the landing area or any part thereof to the United
States Government for military or emergency use, and if any such lease is so
made, the provisions of this Lease in conflict with the provisions of the lease to
the Government, shall be suspended for the duration of the conflict or
emergency. City of McCall covenants that Lessee, upon paying the rent and
other sums when due hereunder and observing and keeping all terms,
covenants, agreements, limitations and conditions hereof on the part of Lessee
to be kept when provided herein and within any grace periods available under
this Lease, shall have and may quietly enjoy the possession of the Subject
Property together with the right of ingress and egress herein provided during the
term hereof, without hindrance or molestation by City of McCall or anyone
claiming by, through or under City of McCall, and City of McCall shall not
authorize or consent to any hindrance or molestation of Lessee by others.
10. Compliance with Enforcement. Lessee shall comply with such enforcement
procedures and orders as the United States might demand that the City follow or
Page 3 of 13
Deleted: Automobiles
Deleted: inside hangars. or
Deleted: . Vehicles may be stopped
and stand for loading and unloading
in front of the hangars. Unattended
vehicles or aircraft not in an area
designated for their use will be
regarded as illegally parked and may
be towed at the direction of the
Airport Manager, or ticketed pursuant
to the McCall City Code, or both.¶
Deleted:)
issue in order to comply with the City's assurances to the United States, and to
enforce applicable federal, state and local laws.
11. Nondiscrimination. Lessee shall use the premises in compliance with all
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 IV of the Civil Rights Act of 1964, and as
said regulations may be amended. Lessee, in its operations and uses of the
Airport will not, on the grounds of race, creed, color,age, marital status, national
origin or handicap discriminate or permit discrimination against any person or
groups of persons in any manner. Noncompliance with these assurances shall
constitute a breach of this Lease; and in the event of such noncompliance, City
may take appropriate action to enforce compliance, may terminate this Lease, or
seek judicial enforcement, in each instance in accordance with the terms and
procedures set forth in this Lease.
12. City's Reserved Rights. Subject to the provisions of this Lease, City specifically
reserves the right:
a. To develop improve, or make any lawful use of the Airport premises as it
sees fit, regardless of the desires or views of the Lessee, and without
interference or hindrance by Lessee;
b. To maintain and keep in repair the Airport and all publicly owned facilities
of the Airport, together with the right to direct and control all activities of Lessee
of the Subject Property;
c. To enter upon any lease premises at reasonable times for the purpose of
making inspections to determine compliance with these minimum standards, fire
codes, building codes or any covenant or condition of any contract or lease,
including this Lease;
d. To temporarily close the Airport or any of the facilities thereon for
maintenance, improvement, safety or other public benefits; and
e. To devote exclusive use of the Airport to emergency aircraft operations,
including, but not limited to, fire suppression activities and medical operations.
13. Terra,and_Renewal_ The_initial term of this leaseshall_be for,eighteen (18)
months commencing at 12:01 AM. on , 2006, until 11:59 PM on
,42007. his Lease may be renewed for up todsix (6) additional _ _
rnonths,for so lb • :s the rent and other conditions of the Lease are adhered to,_
ustment of rent provided herein. If Lessee determines they
and subject to
wish to rene his Lease, it shall give notice of that fact during the last,three (3)_
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- - Deleted: ,
Deleted: 3 years,
-LDeleted: 2006
Deleted: four (4)
( Deleted: one
Deleted: year terms
Deleted: six
months of the expiring term. Further extensions of this lease are subject of the
prior approval of the City Council.,,
14. Rent. Rent shall be payable on the commencement date of this lease, in the
amount of $1.00 per month. Additional payments are due when any extension of
the lease is requested by the Lessee
15. Taxes, Assessments, Fees. Lessee shall, upon completion of construction and
sale of any hangars on the subject property, enroll the Leasehold Improvements
and taxable personal property on the tax rolls of Valley County. Lessee shall pay,
before they become delinquent, all taxes, assessments and fees assessed or
levied upon Lessee or the Subject Property or any interest therein, including, but
not limited to buildings, structures, fixtures, equipment or other property installed
or constructed on it. Lessee further agrees not to allow any such tax,
assessment or fee to become a lien against the Subject Property or any
improvement on it. Nothing herein contained shall be deemed to prevent or
prohibit the Lessee from contesting the validity or amount of any such tax
assessment or fee in the timely manner authorized by law, but in no event may
Lessee permit any such process to go to a foreclosujppn Subject P
any interest in i • in any Leasehold Improvement
Improements bject to the prior approval of the sty and shall include a duly
consummate • eas of the City property on which the Improvements are located.
1.5
16. Utilities and Services. Lessee shall order, obtain and pay for all utilities and
services which Lessee causes to be supplied to the Subject Property, and shall
pay all services and installation charges in connection therewith, including but
not limited to electrical power, water, sewer, garbage, gas and telephone
services, including water and sewer connection and service charges, in each
case to the extent caused to be supplied or connected by the Lessee. In those
locations where sewer is not yet available, such charges shall be paid, both for
hook-up and monthly, in the event Lessee requires sewer service at the time
same is made available. Lessee, to the extent it installs rest -room facilities, shall
install a holding tank to Central District Health standards at Lessee's expense.
City will provide for the pumping of such tank. City will provide physical sewer
when and if available to the lot when and if requested by Lessee, and in such
event, Lessee shall provide a stub out for connection thereto. City shall remove
snow from the taxilane and the apron area in front of the hangars on all City
owned property. Lessee may at its election, arrange for and pay for removal of
snow and agrees to not place any such snow on any improved part of the Airport
nor in any place obstructing pilots views of the aprons, runways and taxiways, or
in any area where snow storage is otherwise in violation of Federal or local
regulation, or in violation of directions of the Airport Manager.
17. Construction. Installation, erection and construction of Leasehold Improvements
shall be at Lessee's sole cost and expense and according to Drawings and
Specifications and Schedules submitted to and approved by City prior to
Page 5 of 13
l Deleted:
Deleted: annually in advance on
October 1 of each year
Deleted: The first year' s rent is due
and payable in advance upon
execution of this lease
commencement. of construction. Private hangars shall be constructed according
to the aesthetic design standards of the City (see the City of McCall Design
Guidelines); thus color, shape, architectural features, and other aesthetic issues
may be controlled by the City. Drawings must accurately depict and describe all
Leasehold Improvements proposed. All construction on the airport will materially
conform to the City's current Airport Master Plan as approved by the Federal
Aviation Administration. All Drawings and Specifications must materially conform
to the Building, Fire, and Fire Protection Codes and Regulations in effect in
McCall, including but not limited to those set out in the McCall City Code. No
Drawings and Specifications shall be submitted for a building permit as required
by the McCall City Code, until the same have been reviewed and approved in
writing for Airport purposes by the Airport Manger, who shall first seek the advice
of the Airport Advisory Committee and approvals by any applicable Federal
agencies. Also, the approval by the City in accordance with the provisions of the
,City Code is required prior to the issuance of a building permit. Approved _
Drawings and Specifications shall be placed on file with the City Building
Inspector long enough for such Building Inspector to determine that the Drawings
submitted to the Building Inspector are the same as those approved by theeCity._
Lessee shall make substantial progress toward construction of the buildings and
physical facilities anticipated by the Lessee within twenty-four calendar months
after execution of this Lease. "Execution of this lease" shall mean the date
signed by the City. Completion and occupancy of the structures must occur
within twenty-four (24) months after the date of execution of this Lease. Failure
to achieve either substantial progress or completion shall constitute cause for the
City to cancel this Lease in accordance with the terms hereof or to extend the
completion dates for construction and sale.
18. Construction Indemnification. Lessee shall at all times indemnify and save City
harmless from all claims for labor or materials, and/or other construction liens, in
connection with construction, repair, alteration, replacement, or installation of
structures, improvements, equipment or facilities within the Subject Property, and
from the cost of defending against such claims, including attorneys' fees. In the
event a lien is imposed or purportedly imposed upon the Subject Property as a
result of such construction, repair, alteration, or installation, Lessee shall procure
and record a bond which frees the Subject Property from the claim of the lien
and from any action brought to foreclose the lien. Should Lessee fail to procure
and record said bond within thirty (30) days after filing of such a lien, this Lease
shall be in default and shall be subject to immediate termination and possession
by City in accordance with the terms hereof.
19. Ownership of Tenant Personal Property. Title to personal property placed on
Subject Property by Lessee shall at all times during the term of this Lease or any
extension of this Lease remain in Lessee, and Lessee shall have the right at any
time to remove any or all personal property of every kind and nature whatsoever
which Lessee may have placed, brought and/or installed upon the Subject
Property. Lessee shall have said right to remove same at any time provided,
Page 6of13
-{ Formatted: Font: Bold, Italic
"(Deleted: Airport Manager )
Deleted: approved
-{ Deleted: Airport Manager )
J
that, upon any such removal of fixtures, Lessee shall repair, at his own expense,
any material damage resulting there from and leave the Subject Property in a
clean and neat condition. Lessee shall remove all personal property within 30
days of the end of this Lease or of any renewal of this Lease, or within 30 days
after the termination of this Lease for any reason. Personal property, including
fixtures, left on Subject Property after such time, becomes the property of the
City and may be disposed of by the City as allowed by law.
20. Leasehold Improvements. In this Lease the term "Leasehold Improvements"
means all buildings (including but not limited to hangars) and/or improvements,
whether or not permanently attached or affixed to the Subject Property, placed
and/or built and/or constructed on the Subject Property during the term of this
Lease by the Lessee At all times during the lease term, ownership of unsold
Leasehold Improvements remains with the Lessee, and Lessee shall have the
right to remove and sell any and all such Leasehold Improvements, subject to
the terms of this Lease. Subject to the provisions of paragraph 28 hereof, upon
expiration or termination of this Lease or any renewal thereof, Leasehold
Improvements shall become the property of the City unless the Lessee, not more
than fifteen (15) days after expiration or termination of this Lease, provides
written notice to City that Lessee intends to remove such Leasehold
Improvements within ninety (90) days of expiration or termination. Such notice
shall indicate whether Lessee intends to remove a building by demolition, and
City may in the discretion of the Airport Manager direct that the building and such
fixtures on Subject Property not be removed. Should the Lessee require a longer
time to remove Leasehold Improvements, it shall request a specific amount of
additional time in writing from the Airport Manager. Such an extension shall not
be unreasonably withheld, although City may condition such extension upon the
furnishing of collateral for the promise to remove in the form of a bond, cash
escrow, or other arrangement acceptable to the Airport Manager and the City
Attorney. All Leasehold Improvements not removed pursuant to the terms of this
Lease become the sole property of the City.
21. Repairs. Lessee shall repair damages (excluding normal wear and tear) to the
Airport and/or the Subject Property which damages are the result of the Lessee's
actions or the actions of any invitee of Lessee making use of Subject Property.
Repairs shall be completed within thirty (30) days of the date any such damage
is incurred. In the event that Lessee cannot reasonably repair such damage
within thirty (30) days, Lessee shall provide prior written notice and permission to
the City from the Airport Manager. Such an extension shall not be unreasonably
withheld, although the City may condition such extension upon the furnishing of
collateral for the promise to repair in the form of a bond, cash escrow, or other
arrangement acceptable to the Airport Manager.
22. Indemnity. Lessee agrees to indemnify and hold harmless the City during the
term of this Lease from any and all losses, actions or judgments for damages
from any and all claims made by a third party against the City arising out of the
Page 7of13
i
negligence or other acts of the Lessee or Lessee's invitees in their use of the
Subject Property. City agrees to indemnify and hold harmless the Lessee during
the term of this Lease from any and all losses, actions or judgments for damages
from any and all claims made by a third party against the Lessee arising out of
the negligence or other acts of the City or City's invitees, agents, employees or
instrumentality in their use of the Subject Property.
23. Insurance. Lessee shall carry at all times during the term of this Lease fire and
extended insurance coverage, including also against water damage as an
indirect result of fire, and including a provision for debris cleanup, in an amount
not less than ninety percent. (90%) of the full replacement value of Leasehold .
Improvements and such further insurance as follow;
(a) Public liability insurance coverage for a total amount of not less than
$500,000.00 Combined Single Limit for bodily injury and property damage. A
current certificate of insurance evidencing compliance and naming City as an
"Additional Insured" shall be maintained with the City at all times during the term
of lease. The limits of insurance shall not be deemed a limitation of Lessee's
covenants to indemnify or hold harmless City as set forth above; and
(b) Public liability insurance on all aircraft owned, leased or controlled by
Lessee with a Combined Single Limit for a total amount of not less than
$1,000,000 subject to availability of such coverage in the marketplace at regular
premium rates. Subject to the preceding sentence, these minimum limits may be
increased by State law or the City during the term of this Lease or upon any
renewal of this Lease. Each policy of insurance shall contain thefull substance of
the following clause: "It is agreed that this policy shall not be canceled nor the
coverage reduced until thirty (30) days after the City of McCall shall have
received written notice of such cancellation or reduction. The notice shall be sent
by certified or registered mail and shall be deemed effective the date delivered to
the City of McCall, as evidenced by a properly validated return receipt.
24. Termination by Lessor for Cause. Should the Lessee fail to comply with any
material obligation in this Lease, the City may terminate this Lease with sixty (60)
days prior written notice subject to the terms of this Lease and the Lessee's right
to cure such failure as herein provided. Any breach of the terms of this Lease -
must be cured within that sixty (60) day period or the Lease is deemed
terminated and the City takes possession of the Subject Property and
improvements as described herein and as allowed by law; or if the failure could
only be reasonably remedied in a period of time exceeding 60 days, failure within
such 60 days to undertake reasonable steps to begin such cure or failure
thereafter diligently to pursue the cure to completion within a reasonable time.
City shall provide written notice to Lessee of City's intent to terminate, and this
Lease shall. terminate as of the date or upon the lapse of time as above provided,
as the case may be.
Page 8 of 13
25. Termination by Lessee for Cause. This Lease may be terminated by Lessee as
follows:
(a) The permanent abandonment of the Airport as a public and/or general
and/or commercial air facility and/or as a facility in substantially the present or
larger size and/or substantially the present or more extensive use.
(b) The assumption by the United States Government, or by any authorized
agency of the United States, of this Lease, or of the operation, control or use of
the Airport, or of any substantial part or parts of the Subject Property, in such a
manner as substantially restrict Lessee from operating in a reasonable manner,
for a period of more than 120 days. The use of the Airport by the United States
Forest Service or the Boise Interagency Fire Center, or like agency, during fire
season shall not be considered a substantial restriction.
(c) Issuance by any Court of competent jurisdiction of any injunction in any
way preventing or restraining the use of the Airport, and the remaining in force of
such injunction for a period more than 120 days.
(d) Any other reason and/or cause which is beyond the reasonable control of
Lessee which in any way substantially restricts the present type of use of the
Airport for a period of more than 120 days. The use of the Airport by the United
States Forest Service or the Boise Interagency Fire Center, or like agency,
during fire season shall not be considered such a substantial restriction.
(e) The default by City in the performance of any covenant or agreement
required in this Lease to be performed by City, and the failure of City to remedy
such default for a period of 60 days after receipt from Lessee of written notice to
remedy the same, or if the failure could only be reasonably remedied in a period
of time exceeding 60 days, failure within' such 60 days to undertake reasonable
steps to begin such cure or failure thereafter diligently to pursue the cure to
completion within a reasonable time. Lessee shall provide written notice to City
of Lessee's intent to terminate, and this Lease shall terminate as of the date or
upon the lapse of time as above provided, as the case may be. Rentals and fees
due hereunder shall be payable only to the date of valid termination by Lessee,
and all obligations of any kind or nature of Lessee under this Lease shall end
upon such a valid termination.
26. Holding Over. In the event Lessee holds over after the expiration of the Lease or
of any renewal of this Lease, such holding over shall be deemed to be a tenancy
from month to month subject to conditions established by the Airport Manager,
including but not limited to, an increase in the rental rate.
27. Abandonment. If Lessee abandons the Subject Property (other than during
winter months or other temporary periods when Lessee's officers and employees
may have established residence other than in Valley County), is dispossessed by
Page 9 of 13
third parties by process of law or otherwise, the City may terminate this Lease on
sixty (60) days advance written notice to Lessee; and Lessee shall not be
entitled to the return of prepaid rent under this Lease. Any real or personal
property belonging to Lessee and left on the Subject Property after sixty (60)
days following notice of termination on grounds of abandonment or
dispossession shall be deemed to have been transferred to City. City shall have
the right to remove and dispose of such property without liability therefore to
Lessee, or to dispose of it to any person claiming under Lessee, or may transfer
it to a new lessee, or may simply dispose of it as solid waste; and City shall have
no need to account therefore._ _
28. Right of First Refusal. Upon the expiration or termination of this Lease or of any
renewal of this Lease, the City shall have the first right of refusal to purchase or
accept transfer of Leasehold Improvements, and may transfer this right of first
refusal to a new lessee. Under such circumstances, Lessee, and any person
proposing to sell or transfer such improvements by or through or under Lessee,
shall first give notice to City advising of the proposed sale or transfer, and its
price and terms; and City shall have ninety (90) days following receipt of such
notice to complete a purchase or receive.a transfer upon the identical terms.
Notwithstanding the foregoing, the City acknowledges that Lessee intends to
construct aircraft hangars on the leased premises and sell those hangars to
persons on the hangar waiting list, or others, all pursuant to Lessee's contract
with the City. The purchasers of said hangars, upon qualification by the City, will
be entitled to enter into a new lease with the City for the actual space upon which
the hangar is built. This right of first refusal shall apply after the initial lease to a
hangar purchaser, and shall be subject to the rights of any lender holding a
security interest in the hangar or the lease of the hangar space.
29. Legal Proceedings. If any legal action or proceeding related to this Lease is
begun by any party to this Lease, the prevailing party shall be entitled to recover
its costs, damages, and expenses, including commercially reasonable attorneys
fees and witness and expert witness fees, incurred in prosecuting or defending
the same, whether or not such action or proceeding is litigated or prosecuted to
judgment. The prevailing party will be that party who was awarded judgment as a
result of trial or arbitration, unless the dispute was only as to the amount of a
claim conceded to exist, in which case the finder of fact shall determine the
identity of the prevailing party.
30. Governing Law. This Lease is governed by the law of Idaho, and Valley County,
Idaho is the proper venue.
31. Headings. The headings of paragraphs and articles of this Lease are provided as
a guide to the reader, and shall not in any way affect the meaning or
interpretation of this Lease.
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t Deleted: therefor
32. Time of the Essence. Time is of the essence with respect to the obligations of
the parties under this Lease.
33. . No Election of Default Remedies. In the event of any default under this Lease,
the non -defaulting party shall be entitled to all rights, powers and remedies
available at law or in equity, including, without limitation, specific performance,
damages and equitable relief, and/or resort to any security. Any rights, powers
and remedies stated in this Lease, or now or hereafter existing in law, at equity,
by statute, or otherwise are cumulative and concurrent, and shall each be in
addition to, and not in lieu of, all the others. The exercise or the beginning of the
exercise or the forbearance of exercise by any party of any one or more of such
rights, powers and remedies shall not preclude the simultaneous or subsequent
exercise by such party of any or all of such other rights, powers and remedies.
34. No Waiver of Rights. The neglect of the City or the Lessee to enforce its rights,
powers or remedies at any particular times or upon any particular occurrences
shall not preclude resort to those rights, powers or remedies at any other time or
with respect to any other occurrences. Any waiver of any right, power or remedy
must be done in a writing executed by the party to be charged with such waiver,
and executed with no fewer or different formalities and approvals than were
attendant upon execution of this Lease. Any waiver of a breach of a covenant,
term or condition of this Lease shall not be deemed a waiver of any other breach
of the same or any other covenant, term or condition of this Lease. Acceptance
of overdue performance of a covenant, term or condition of this Lease shall not
constitute a waiver of the breach existing prior to the performance, unless so
agreed in writing by the recipient of the performance.
35. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, terrorist acts, acts of war, acts of God, inability to obtain labor or
materials or reasonable substitutes therefore, governmental restrictions,
governmental regulations, government controls, enemy or hostile government
action, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of the party obligated to perform, shall excuse the
performance by such party for a period equal to any such prevention, delay or
stoppage; provided, however, that this clause shall not bar resort by City to any
security applicable tothe furnishing of such performance under circumstances in
which City acting to obtain alternative performance would not be subject to such
force majeure. The term "govemmental restrictions, govemmental regulations,
government controls, and hostile government action" shall not be construed to
have any reference to City enforcing this Lease or any other agreement between
the City and any other party, nor the City enforcing the City Code or other
applicable law, nor any other government enforcing an agreement with a party or
the conditions on the issuance of its permit(s) issued to a party.
36. Counterpart Execution. This Lease may be executed in any number of
counterparts. No single counterpart need be signed by all parties to this Lease;
Page 11 of 13
z
as long as each party hereto has executed at least one such counterpart, this
Lease shall be considered fully executed. Each such counterpart shall be
deemed to be an original instrument; and all such counterparts together shall
constitute but one agreement. Facsimile signatures are deemed to have the
same legal weight as original signatures.
37. Burden and Benefit; Assignment. This Lease shall bind and inure to the benefit
of the parties and their respective heirs, legal representatives, successors and
assigns. Lessee shall neither assign this Lease, nor sublet or rent all or any part
of Subject Property, without the written consent of the City, which consent shall
not be unreasonably withheld; that consent will, however, be conditioned upon
an increase of rents to the then current City published lease rates for the Airport.
In the case of partial assignment or partial sublet or rent of less than half of the
interior space, the rent increase shall be only with respect to the interior space in
question and related exterior space, unless such assignment, sublet or rent is in
the discretion of the Airport Manager and City Council, determined to be de
minimis and counter -productive to the City for the City to calculate, record, and
remember.
38. Integration. All exhibits and other attachments, if any, to this Lease are a part of
this Lease, as if set out again in this Lease. This Lease constitutes the entire
Lease between and among the parties as to the matter set out in it, and all prior
negotiations and discussions, memoranda, correspondence, and
communications are merged into and extinguished by this Lease; provided,
however, that nothing in this Lease shall be held to merge into this Lease any
other written document described in this Lease, nor any Subdivision or
Development Agreement among any of the parties, unless this Lease expressly
identifies such other written document or agreement and states that this Lease
supersedes such other document or agreement.
39. Counsel and Interpretation. All parties to this Lease have been represented by
legal counsel at all stages of the negotiations for and the preparation of this
Lease, including during the proceedings relating to the approval and the
conditions of approval of any project or development which approval or
conditions gave rise to this Lease; accordingly, in all cases, the language of this
Lease will be construed simply, according to its fair meaning, and not strictly for
or against any party.
40. Notice. Notices between the parties may be made by personal delivery or by
United States mail, postage pre -paid, registered or certified, with return receipt
requested, or by telegram, facsimile transmission or mail-o-gram or by
recognized courier delivery (e.g. Federal Express, UPS, DHL, etc.) addressed to
the parties, as the case may be, at the address set forth below or at such other
addresses as the parties may subsequently designate by written notice given in
the manner provided in this section. The parties are required to provide any
change of address to each other.
Page 12of13
ILTo City:
City Manager Copy to: Airport Manager
City of McCall City of McCall
216 E. Park Street 216 E. Park Street
,208)634-1488
To Lessee:
Hangar Solutions
84 Jughandle Rd.
McCall, ID 83638
,(208) 34-5454
(208)04-5456 (facsimile)
Dated:
City of McCall
by:
• Attest:
State of Idaho )
) ss.
County of Valley )
On this of , in the year 200_, before me,
, notary public, personally appeared
, known or identified to me to be the person whose name
is subscribed to the within instrument, and acknowledge to me that he executed
the same.
Notary Public for Idaho
Residing at:
My commission expires:
State of Idaho )
) ss.
County of Valley )
On this day of , in the year 200_, before me,
, notary public, personally appeared
, known or identified to me to be the Mayor
of the City of McCall that executed the said instrument, and acknowledged to
me that such City of McCall executed the same.
Notary Public for Idaho
Residing at:
My commission
expires:
Page 13 of 13
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