Exhibit No. 10.10
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Ground Lease-Billings
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LIMITED COMMERCIAL AVIATION BUILDING AND GROUND LEASE
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THIS LEASE AGREEMENT, made and entered into this 28 day of Sept.
1999 by and between the following:
CITY OF BILLINGS, MONTANA, hereinafter
designated "Lessor"
and
ALPINE AVIATION, INC., d/b/a, ALPINE AIR, a
Utah Corporation, hereinafter designated "Lessee"
WITNESSETH
RECITALS
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1) Lessor owns and operates XXXXXXXX XXXXX INTERNATIONAL AIRPORT
(hereinafter called the Airport) situated in the City of Billings, Montana,
and
2) Lessor deems it advantageous to itself and the operation of
the Airport to lease to the Lessee a certain parcel of land and aircraft
hangar hereinafter described together with certain privileges, rights, uses
and interests, and
3) Lessee is a firm wishing to engage in certain limited
commercial aviation activities, proposes to lease on a net basis from Lessor
said parcel of land and to avail itself of the same privileges, rights, uses
and interests contemplated herein and,
4) Lessee has indicated a willingness and ability to properly
keep, maintain and improve said land and building in accordance with standards
established by Lessor.
NOW THEREFORE, the Parties hereto covenant and agree as follows:
ARTICLE I
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PREMISES AND PRIVILEGES
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A. Description of the Premises. Lessor hereby leases to Lessee
and Lessee hereby hires and takes from Lessor that certain parcel of real
property, together with improvements (hereinafter called the premises), for
its exclusive use, specifically described as follows:
8,648 square feet, of hangar floor space, and 1,755 of office and
storage area on the east side of one (1) metal aircraft hangar referred to as
Industrial Park Hangar #5 for a total of 10,403 square feet. Includes 65,582
square feet of land underneath and contiguous to said building. The site is
set forth on Exhibit A attached hereto and by this reference made a part
hereof.
B. General Privileges, Uses and Rights. Lessor hereby grants to
Lessee the following general privileges, uses and rights, all of which shall
be subject to the terms, conditions and covenants herein set forth.
1) The general unrestricted use of all public Airport facilities
and improvements which are now or may hereafter be connected with or
appurtenant to said Airport, except as hereinafter provided, to be used by
Lessee and its sublessees for limited commercial aviation activity as herein
defined. For the purpose of this lease, public airport facilities shall
include all necessary landing area appurtenances including but not limited to
approach areas, runways, taxiways, aprons, aircraft and automobile parking
areas, roadways, sidewalks, navigational aids, lighting facilities,
terminal facilities or other public facilities appurtenant to said Airport.
2) The right of ingress to and egress from the premises over and
across public roadways serving the Airport for Lessee, his agents and
servants, patrons and invitees, suppliers of service and furnishers of
material. Said right shall be subject to such ordinances, rules and
regulations as now or may hereafter have application at the Airport.
C. Specific Privileges, Uses and Rights. In addition to the
general privileges, uses and rights described above and without limiting the
generality thereof, Lessor hereby grants to Lessee and sublessees the right to
engage in limited commercial aviation activity on the premises as defined in
sub-paragraphs 1 through 7 below, subject to the conditions and covenants
hereafter set out:
1) The maintenance, storing and servicing of aircraft, which
shall include overhauling, rebuilding, repairing, inspection and licensing of
same, and the purchase of parts, equipment and accessories therefore.
2) The right to use vehicles necessary for the service of
aircraft.
3) The storage of aircraft not owned by the Lessee.
4) The loading and unloading of aircraft in any lawful activity
as incidental to the conduct of any services or operations outlined in this
paragraph.
5) The operation of non-scheduled charter transportation
business for hauling passengers.
6) The operation of scheduled or non-scheduled transportation
business for hauling freight and/or mail by aircraft.
7) The maintenance of an office on the premises necessary for
the conduct of the activities defined above.
8) The aforementioned rights shall apply to the persons, firms
or corporations having actual possession and occupancy of the hangars
described herein, and the agents, employees, and invitees of such persons,
firms or corporations.
D. Concessions Excluded. The following concessions and services
and the establishment thereof shall be specifically excluded from this
Lease:
1) Ground transportation for hire.
2) Auto rental services.
3) Food sales (except the sale of tobacco, confections and
refreshments through coin-operated vending machines).
4) News and sundry sales,
5) Xxxxxx, valet, and personal services-
6) Fuel sales.
7) On site fuel storage facilities.
8) The buying and selling of aircraft, parts and accessories, and
aviation equipment of all descriptions either for retail, wholesale or as a
deader, except for use in Lessee's own aircraft or operations.
9) Flight schools and flight instruction, except that Lessee's
Chief Pilot shall have the right to give private instructions to employees.
10) Aircraft repair and servicing except on Lessee's own aircraft.
E. Reservation of Right-of-Way. Lessor hereby reserves a
right-of-way easement for access purposes over the above described leasehold.
Said reserved rights-of-way may be used by Lessor and all of Lessor's tenants,
agents, employees of said tenants, and persons and entities serving said
tenants.
ARTICLE II
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TERM OF LEASE
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A. Term. The term of this Lease shall be for a period of four
(4) years, commencing on the 1st day of November, 1998 and terminating
on the 31st day of October, 2002.
B. National Emergency. In the event the rights and privileges
hereunder are suspended by reason of war of other national emergency,
the term of this Lease shall be extended by the amount of the period
of such suspension.
ARTICLE III
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RENTAL AND FEES
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A. Building and Ground Rental. For the building and land
described in Article I, Paragraph A, Lessee shall pay to Lessor $1.44 per
square foot per annum for the building space in this Lease for an annual
rental of $14,980.32. Said rental shall be payable monthly in advance without
billing on the first day of each month in an amount equal to one-twelfth of
the annual rental, or $1,248.32.
B. Annual Readjustment of Ground Rental.. During the term of
the Agreement the rental rate will be adjusted annually on the anniversary of
the Agreement using the Consumer Price Index for all Urban User (CPI-U) for
the previous twelve (12) month period. In no case shall the rate be less than
the previous year.
ARTICLE IV
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OBLIGATIONS OF LESSOR
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A. Lessor Warranties. Lessor warrants all things have happened
and have been done to make its granting of said least effective and that
Lessee shall have peaceful possession and quiet enjoyment of the leased
premises during the term hereof, upon performance of Lessee's covenants
herein.
B. Operation as Public Airport. Lessor shall during the term
hereof, operate and maintain the airport and its public facilities, as defined
hereinabove, as a public airport consistent with and pursuant to the sponsor's
assurances given by Lessor to the United States Government under the Federal
Airport Act.
C. Condition and Maintenance of Premises. Lessor shall assume no
responsibility for the condition of the demised premises after delivery of
premises to Lessee. Lessor shall maintain all existing roads on the Airport
giving access to the leased premises in good and adequate condition for use by
cars and trucks. Lessor shall remove snow from the access road and taxiways
as Lessor's resources permit. Snow removal on the leasehold will be the
responsibility of the Lessee.
ARTICLE V
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OBLIGATIONS OF LESSEE
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A. Condition of Premises. It shall be the sole responsibility of
the Lessee to develop, keep, maintain and operate the entirety of the premises
and all improvements and facilities placed thereon at Lessee's sole cost and
expense. This Lease in every sense shall be without cost or expense to the
Lessor. Lessee accepts the premises in its present condition and will repair
and maintain any installations thereon except as provided in Article IV,
Paragraph B-C and will remove or cause to be removed any debris to the extent
required for its continuing use thereof.
B. Improvements. Lessee shall have the right to and shall
provide for the siting construction, erection, maintenance of its own
improvements, in any lawful manner, upon or in the premises, for the purpose
of carrying out any of the activities provided for herein, but shall require
the written approval of Lessor before beginning any such improvements, which
approval shall not be unreasonably withheld.
C. Maintenance. Lessee shall, at its sole cost and expense,
maintain thepremises and the building, land, improvements, and appurtenances
thereto in a presentable condition free, of refuse and debris consistent with
good business practice.
D. Utilities. Lessee shall assume and pay for all costs or
charges for utility services furnished to Lessee.
E. Trash, Garbage, Etc. Lessee shall provide a complete and
proper arrangement for the adequate sanitary handling and disposal of all
trash, garbage and other refuse occurring as a result of the operation of its
business. Lessee shall provide and use lessor approved receptacles for ail
garbage, trash and other refuse and shall place them on the premises in a
location acceptable to the Department of Sanitation for their removal. Piling
of boxes, cartons, barrels, or other similar items in an unsightly or unsafe
manner on or about the premises, is forbidden.
F. Signs. Lessee shall not maintain on the premises any
billboards or advertising signs; provided, however, that Lessee may maintain
on the outside of its building its name(s) or signs, the size, location and
design of which shall be subject to prior written approval of Lessor.
G. Federal, State and Local Regulations. Lessee acknowledges
that the right to use said airport facilities in common with others authorized
to do so shall be exercised subject to and in accordance with the laws of the
United States of America, the State of Montana and the City of Xxxxxxxx, all
rules and regulations and ordinances of Lessor now in force or hereafter
prescribed or promulgated by authority or by law shall be closely observed
during the full term of this Lease.
H. Hazardous Substances. Lessee assumes full responsibility for
the proper and legal use, handling, storage and disposal of any hazardous
substances used or consumed in the conduct of its business. "Hazardous
substance" shall be interpreted broadly to mean any substance or toxic
material hazardous or toxic or radioactive substance, or other similar term by
any Federal, State or local environmental law, regulation or rule presently in
effect or promulgated in the future, as such a laws, regulations or rules may
be amended from time to time; and it shall be interpreted to include, but not
be limited to, any substance which after release into the environment will or
may reasonably be anticipated to cause sickness, death or disease. Lessee
will hold Lessor harmless from and indemnify Lessor against and from any
damage, loss, expenses or liability resulting from any breach of this
representations and warranty including all attorneys' fees and costs incurred
as a result thereof.
Premises has a floor drainage system that drains into an
onsite holding tank. Lessee shall be responsible for the testing and the
removal of holding tank's contents upon lease termination. Said testing and
removal shall be in accordance with any Federal, State, or Local law,
regulation or rule presently in effect or promulgated in the future.
I. Taxiways. Lessee shall insure that Lessee's aircraft and all
sublessees aircraft are not permitted to block the public use taxiway that
passes the front of the Lessee's premises.
ARTICLE VI
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INSURANCE AND INDEMNIFICATION
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A. Indemnification. Lessor shall stand indemnified by Lessee
as herein provided. It is expressly understood and agreed that Lessee is and
shall be deemed to be an independent contractor and operator responsible to
all parties for its respective acts or omissions and that Lessor shall in no
way be responsible therefore. It is further agreed that in the use of the
Airport, in the erection or construction of any improvements thereon, and in
the exercise of enjoyment of the privileges herein granted, Lessee shall
indemnify and save harmless the Lessor from any and all losses that may result
to the Lessor because of any negligence, act or omission on the part of the
Lessee, and shall indemnify Lessor against any and all mechanic and
materialmen's liens or any other types of liens imposed upon the premises.
Lessee expressly agrees that City shall not be liable to Lessee, for
personal injury or for any loss or damage to real or personal property
occasioned by flood, fire, earthquake, lightning, windstorm, hail, explosion,
riot, strike, civil disobedience or commotion, aircraft, smoke, vandalism,
malicious mischief, or acts of civil authority, unless caused by the fault or
negligence of City, its officers, agents or employees.
B. Insurance. Lessee shall promptly, after the execution of
this Lease, provide public liability insurance in a minimum amount of One
Million Dollars ($1,000,000) per occurrence for bodily injury, property
damage, personal injury and or death growing out of any one accident of other
cause. The City of Xxxxxxxx shall be named as additional insured.
Lessee shall maintain said insurance with insurance underwriters
authorized to do business in the State of Montana satisfactory to Lessor. All
policies shall name Lessor, its officers, servants and agents and employees as
additional insureds as their interests shall appear. Lessee shall furnish
Lessor with a certificate from the insurance carrier showing such insurance to
be in full force and effect during the entire term of this Lease, or shall
deposit with Lessor copies of said policies immediately upon execution of this
agreement.
ARTICLE VII
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TERMINATION OF LEASE, CANCELLATION & TRANSFER
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A. Termination. This Lease shall terminate at the end of the
full term hereof without any notice by either party, A holding over by the
Lessee, its assigns or sublessees beyond the expiration of the term shall not
be permitted without the written consent of the Director of Aviation and then
only on a month-to-month basis. Upon termination Lessee shall have the right
to remove all moveable fixtures, machinery and equipment and all other
personal property installed by it on the premises, and all expenses connected
with such removal shall be borne by the Lessee, said property to be removed
within thirty (30) days after termination of Lease. In the event the Lessee
elects not to remove their personal property upon termination of the Lease,
the disposition of the personal property will be left to the sole discretion
of the Lessor, removal of property by Lessor because of failure of Lessee to
do so, shall be at Lessee's expense.
This right to remove personal property does not extend to buildings
and structures,pavement, water lines, sewer lines, electrical lines, utility
poles, fencing., exterior light poles, which improvements shall remain the
property of the Lessor and shall not be removed.
B. Cancellation by Lessee. This Lease shall be subject to
cancellation by Lessee after the happening of one or more of the following
events:
1) The permanent abandonment of the Airport as an Air Terminal
2) The lawful assumption of the United States Government or any
other authorized agency thereof, of the operation, control or use of the
Airport, or any substantial part or parts thereof, in such a manner that
substantially restricts Lessee for a period of at least ninety (90) days from
operating in a normal manner.
3) Issuance by any court of competent jurisdiction of an
injunction anyway preventing or restraining the use of the Airport, and the
remaining in force of such injunction for a period of at least 90 days.
4) The default by Lessor in the performance of any covenant
or agreement herein required to be performed by Lessor and the failure of
Lessor to remedy such default for a period of ninety (90) days after receipt
from Lessee or written notice to remedy same.
Lessee may exercise such right of termination by written notice to
Lessor at any time after the lapse of the above applicable periods of time and
this Lease shall terminate as of that date. Rental due hereunder shall be
payable only to the date of the happening of the event which results in said
termination. Upon termination under the provisions of this paragraph, Lessee
shall have the same rights as described in the second paragraph of Article
VII, Paragraph A herein.
C. Cancellation by Lessor
1) This Lease shall be subject to cancellation by Lessor in the
event Lessee shall:
a) Be in arrears in the payment of the whole or any pan of the
amounts agreed upon hereunder for a period of ten (IO) days after payment is
due.
b) File a voluntary petition of bankruptcy.
c) Make a general assignment for the benefit of creditors
d) Default in the performance of any of the covenants and
conditions required herein (except rental payments) to be kept and performed
by Lessee, and such default continues for a period of thirty (30) days after
written notice from Lessor of said default.
2) In the event of termination because of the happening of any of
the aforesaid events. Lessor may take immediate possession of the premises
and remove Lessee's effects, forcibly if necessary, without being deemed
guilty of trespassing. Upon said entry, this Lease shall terminate.
3) It is agreed that failure of Lessor to declare this Lease
terminated or to re-enter and take possession upon the default of Lessee
for any of the reasons set out shall not operate to bar or destroy the right
of Lessor to declare this Lease null and void by reason of any subsequent
violation of the terms of this Lease.
D. Suspension of Lease. During the time of war or declared
national emergency, Lessor shall have the right to lease the landing area or
any part thereof to the United States Government for military use. If any
such lease is executed, any provisions of this instrument which are
inconsistent with the provision of the lease to the Government shall be
suspended, provided that the term of the Lease shall be automatically extended
by the amount of the period of suspension.
E. Subleasing and Transferring. The Lessee shall have the right
to sell, sublease, assign or transfer all or any part of the premises for the
same purpose established in Article I, Paragraph C, provided written approval
of the Lessor is obtained. Lessor reserves the right to alter the existing
Lease as deemed necessary as a condition of approval. Any sublessee shall be
subject to the same conditions, obligations and terms as set forth herein and
Lessee shall be responsible for the observance by its tenants and sublessees
for the terms and covenants of this Lease.
ARTICLE VIII
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GENERAL PROVISIONS
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A. Attorney's Fees. Should either party employ an attorney or
attorneys or utilize the services of in-house attorneys to enforce any other
provisions hereof or to protect its interest in any manner arising under the
Agreement, the non-prevailing party in any action pursued in a court of
competent jurisdiction agrees to pay to the prevailing party all reasonable
costs, damages, expenses, and attorney's fees, including fees for in-house
attorneys, expended or incurred in connection therewith.
B. Taxes. Lessee shall pay any taxes or assessments which may
be lawfully levied against Lessee's occupancy or use of the premises or any
improvements placed thereon as a result of Lessee's occupancy, but Lessee as
independent contractor reserves the right to contest the levy of any tax or
assessment which it feels is unjust.
C. Subordination of Lease.
1) This Lease shall be subordinate to the provisions of any
existing or future agreements between Lessor and the U6ted States relative to
the administration, operation, or maintenance of the Airport, the execution of
which has been or may be required as a condition precedent to the expenditure
of Federal funds for the development of the Airport.
2) Any mortgagee or beneficiary shall have the right to cure
any default on the part of Lessee in the payment of rent hereunder and,
in the event of default, to assume the Lessee's position under this
Lease. Lessor in no event shall be liable for the payment of the sum secured
by such mortgage or trust indenture, nor for any expenses in connection with
the same. Furthermore, such mortgage or trust indenture shall expressly
provide that the mortgagor or beneficiary will seek no money judgment against
Lessor. The mortgage or trust indenture shall also contain provisions
requiring the holder of the indebtedness secured by such mortgage or trust
indenture to mail to Lessor by certified mail a copy of each notice of breach
of covenant, default or foreclosure given by the holder of the trustee under
such mortgage or deed of trust.
D. Non- Discrimination. Lessee, for itself, its personal
representatives, successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree:
1) That no person on the grounds of race, color, creed, political
ideas, sex, age, or physical or mental handicap, shall be excluded from
participation, denied the benefits of, or be otherwise subjected to
discrimination in the use of Airport facilities, or the exercise of its rights
and privileges under this Agreement.
2) That, in the construction of any improvements on behalf of
lessee and the furnishing of services, no person shall be excluded from
participation in, denied the benefits of, or otherwise be subjected to
discrimination on the grounds of race, color, creed, political ideas, sex,
age, or physical or mental handicap.
3) That Lessee shall use the Airport facilities in compliance
with all other requirements imposed by or pursuant to Title 49, Code of
Federal Regulations, Department of Transportation, Subtitle A, Office of
the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs
of the Department of Transportation, Effectuation of Title VI of the
Civil Rights Act of 1964, and as said Regulations may be amended.
Paragraph Headlines. The paragraph headings contained herein are for
convenience, in reference and are not intended to define or limit the scope of
any provisions of this Lease or the particular paragraphs.
F. Notices Notices to Lessor provided for herein shall be
sufficient if sent by certified mail, postage prepaid, addressed to:
Director of Aviation
Xxxxxxxx Xxxxx International Airport
0000 Xxxxxxxx Xxxxxx, Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
and notices to Lessee, if sent by certified mail, postage prepaid, addressed
to:
Alpine Air
0000 Xxxx Xxxxx Xxxxxxx
Xxxxx, Xxxx 00000
Attn: Xxxx Xxxxxxxx, C.E.O.
or to such other addresses as the parties may designate to each other in
writing from time to time.
G. Successors and Assigns. All of the terms, covenants and
agreements herein contained shall be binding upon and shall inure to the
benefit of successors, assignees and sublessees of the respective parties
hereto.
IN WITNESS WHEREOF, the parties have hereinto set their hands this 28 day of
Sept, 1998
ATTEST CITY OF XXXXXXXX
BY /s/ BY /s/
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Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxx
City Clerk Mayor
APPROVED AS TO FORM
BY /s/ /s/
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X.X. Xxxxxxxxxx Xxxxxx Xxxxxxxx
City Attorney
