LEASE AGREEMENT
UNITED STATES OF AMERICA
STATE OF LOUISIANA
PARISH OF VERMILION
This agreement made and entered into by and between THE CITY OF
ABBEVILLE, LOUISIANA, a Municipal Corporation (hereinafter called "LESSOR"),
herein represented by its Mayor, R. Xxxxx Xxxxxxxxx, he being duly authorized
herein by virtue of the ordinance of the City Council of the City of Abbeville,
dated the 4th day of January, 1994 a certified copy of which is attached hereto
and made a part hereof, and XXXXXX XXXXXX CORPORATION (hereinafter called
"LESSEE"), a domestic corporation, domiciled in and having its principal place
of business in Vermilion Parish, Louisiana, herein represented by Xxxxxx X.
Xxxxx, its General Manager, he being duly authorized in the premises by virtue
of a resolution of the Board of Directors of said corporation, a certified copy
of which is attached hereto and made a part hereof;
WHEREAS, the LESSOR currently owns and operates the land premises
known as the Abbeville Municipal Airport (hereinafter called the "Airport"),
located in Abbeville, Louisiana, and;
WHEREAS, the LESSOR deems it advantageous to itself and to its
operations of the Airport area to lease to LESSEE certain rights, privileges,
and uses herein as necessary to conduct its business as hereinafter set forth;
NOW, THEREFORE, LESSOR and LESSEE, for and in consideration of
the covenants and mutual agreements hereinafter contained, do hereby covenant
and agree as follows:
ARTICLE I
PREMISES, TERMS, AND PRIVILEGES
DEFINITIONS:
"Abbeville Municipal Airport": That certain area administered by
the City pursuant to covenants and conditions contained in those certain
contracts, agreements, resolutions and actions of the City of Abbeville,
Louisiana, constituting agreements between the City and the United States of
America and its agents, including, but not limited to, the Federal Aviation
Administration (FAA).
"LESSOR": The City of Abbeville, Louisiana, by and through its
duly constituted agent, the Mayor, shall be considered the LESSOR for all
purposes of this lease.
"TERMS": The terms of this contract area binding on the heirs,
successors, administrators, trustees and assigns of LESSEE, except where
otherwise noted in this instrument.
1.01 LEASED AREA:
The LESSOR does hereby lease the premises containing a total
approximately 23,500 square feet, more particularly described as:
A certain tract or parcel of ground together will all buildings
and improvements thereon situated located at the Abbeville
Municipal Airport and being generally described as the "Old
Hangar" building being the Eastern most edge of the public
parking lot, thence Easterly along a line parallel to the front
of the "Old Hangar" a distance of 235 feet and having a depth
between parallel lines of 100 feet.
2
Said tracts are more particularly shown and designated on a plat of survey
prepared by Xxxx X. Xxxxxx, Registered Surveyor, dated October 25, 1983, a copy
of which is attached hereto and marked as Exhibit A, all hereinafter referred to
as the "premises", all within the Abbeville Municipal Airport, and LESSEE hereby
leases the said premises from LESSOR, which property pursuant to the provisions
of LSA-R.S.33:4712, has been duly declared as surplus and as no longer
necessary for the public use and purposes as reflected in the ordinance of the
City of Abbeville dated the 4th day of January, 1994, a certified copy of which
is attached hereto and made a part hereof.
Subject to the terms, covenants and conditions embodied below,
the LESSEE shall have the right and privilege to construct and maintain
improvements upon the leased premises.
1.02 TERMS:
This lease is to be for a primary term of ten (10) years
commencing on January 1, 1994, and ending on December 31, 2003.
1.03 RENTAL OBLIGATION:
LESSEE herein agrees to pay to LESSOR, in advance, the sum of SIX
HUNDRED AND 00/100 ($600.00) DOLLARS, per month, payable in equal monthly
payments for each month, during the term of this lease.
Monthly rentals shall be paid in advance on or before the first
(1st) day of each month, the first of such monthly rental payments (or
proportionate part thereof, should the lease be effective on a day other than
the first day of the month) being due on the effective date of this lease.
3
The basic rent and such additional charges as accrued shall be
paid by the first (1st) day of each month without notice, demand, counterclaim,
setoff, deduction or defense, and without abatement, suspension, deferment or
diminution or reduction by reason of, and, except as otherwise provided in this
agreement, the obligations and liabilities of the LESSEE shall not be affected
by any circumstances or occurrences, including:
(a) Any damages to or destruction of the premises or any part
thereof;
(b) Any restriction or prevention of, or any interference with,
any use of the leased property or any part thereof;
(c) Any claim LESSEE has or might have against LESSOR;
(d) Notice of termination of leasehold, whether by LESSOR or
LESSEE.
1.04 OPTION TO EXTEND:
LESSEE is hereby granted an option to extend the lease for ten
(10) years until December 31, 2013, with such option to be exercised in writing
delivered to and received by the Mayor at his office, at least sixty days before
the end of the previous term. Extension shall be upon the terms and conditions
of this agreement.
1.05 RENTAL ESCALATION FOR OPTION PERIOD:
Without waiving other rental escalation provisions in this
contract, monthly rentals shall be adjusted annually during the primary and
extension periods by an amount which is equivalent to the percent change in the
Consumer Price Index (CPI) of the preceding calendar year's average,
specifically defined as the Consumer Price Index (U.S. Average, All Urban
Consumers, All Items) 1967 = 100 Base as compiled by the Bureau of Labor
Statistics. This means that at the anniversary date of November 1, 1994, and
annually
4
thereafter, the rent will be adjusted on the percent change in the CPI of the
preceding calendar year (January - December).
Example:
1. First Anniversary: Base rent X CPI = adjustment + base
rent = rent for second year.
2. Second Anniversary: Second year's rent X CPI = adjustment +
second year's rent = rent for third year ...
etc., annually until lease expiration.
1.06 SERVICE CHARGE:
Rentals, fees, charges assessed pursuant to this lease are due
and payable monthly, no later than the first (1st) day of the month. A service
charge of five (5%) percent of the rental payment will be assessed for any
rental payment made after the tenth (10th) day of the month.
1.07 DEPOSIT:
In addition to the initial rental payment called for in the
preceding paragraph, LESSEE shall deposit with LESSOR the sum of the amount
equivalent to one month's rent which deposit shall be retained during the lease
term and, upon termination of the lease, returned to LESSEE less and except and
this will serve to authorize LESSOR'S withholding from such funds, any monies
then due and owing to the LESSOR by LESSEE under the terms of this lease,
including, but not limited to, any costs of restoring the premises to the
condition called for under the terms hereof, as well as any other indebtedness
caused, or charges owing, by LESSEE to LESSOR or to any third parties.
5
1.08 FUEL FLOW FEE:
LESSEE shall pay to LESSOR a fuel flowage fee of $0.04 per gallon
for every gallon of fuel purchased by LESSEE for its airplane operations. Said
fees shall be payable by LESSEE to LESSOR on the first day of each month for the
fuel purchased in the immediately preceding month. All payments of said fees by
LESSEE to LESSOR must be accompanied by copies of LESSEE'S purchase invoices
and/or delivery schedules.
1.09 UTILITIES:
LESSEE shall provide and pay, or cause to be paid, all charges
for water, heat, gas, electricity, sewers, and any and all other utilities used
on the premises throughout the term of this lease, including any connection
fees. LESSOR shall make water, electricity, and sewer service available to
LESSEE for connection.
1.10 TAXES:
Upon receipt of written notice of any taxes, impositions, and
surcharges upon the premises, LESSEE agrees to pay and discharge promptly,
before delinquency, any and all such taxes, impositions, and surcharges imposed
by taxing agencies against the leasehold premises and any personal property,
tools, equipment, furniture, fixtures, and inventory belonging to LESSEE.
1.11 USE AND USE CONFLICT:
The premises herein leased are to be used and occupied solely for
the purposes of operations and maintenance of LESSEE'S aircraft and no other use
of the premises is permitted.
6
Neither the leased premises nor any portion thereof shall be
sublet, nor shall this lease or any interest therein be assigned, hypothecated
or mortgaged by LESSEE, and any attempted assignment, subletting, hypothecation
or mortgaging of this lease shall be of no force effect, and shall confer no
rights upon any assignee, sublessee, mortgagee or pledgee, but shall constitute
a material breach of this contract.
In the event that LESSEE shall become incompetent, bankrupt or
insolvent, or be dissolved, or should a guardian, trustee, or receiver be
appointed to administer LESSEE'S business or affairs, neither this lease nor any
interest herein shall become an asset of such guardian, trustee, or receiver,
this lease shall immediately terminate and end.
1.12 PEACEFUL POSSESSION:
LESSEE shall peacefully have, hold, and enjoy the leased
premises, subject to the terms and conditions herein, and provided LESSEE pays
the rentals and performs all of its covenants and agreements herein agreed to.
1.13 OFFSTREET PARKING:
a. The LESSEE shall make provision for automobile parking for its
employees, visitors, and other invitees on the demised premises by utilizing the
parking areas available at the Abbeville Municipal Airport. No parking shall be
permitted on the streets immediately adjacent to the leased premises.
b. Each parking space shall be designated by white lines painted
upon the paved surface.
c. Parking for handicapped persons will be provided by the LESSEE
and such spaces shall be clearly designated as handicapped parking.
7
1.14 VEHICLE LOADING:
All provisions for loading and maneuvering of vehicles necessary
to the operation of LESSEE'S business shall be conducted as near as practical
within the boundaries of the leased premises or upon the public areas.
1.15 BUILDING HEIGHTS:
Building heights for any new construction anticipated or planned
by LESSEE shall be limited to a maximum of fifty (50') feet above the ground
level. This limitation includes phasial extensions of any building erected on
the leased premises or other extension attached to any such building.
1.16 TYPE OF CONSTRUCTION:
a. All buildings shall be framed with reinforced concrete or
masonry, structural steel, structural aluminum or wood, which has been
satisfactorily treated to resist fire, rot, and insects. Siding shall consist of
masonry, glass, enameled steel, or treated wood. Common masonry and treated wood
siding shall be kept neatly painted.
b. All buildings shall conform to all local building codes and
ordinances.
1.17 PIPES:
With the exception of hoses and movable pipes used for
irrigation, LESSEE shall neither install nor maintain water, gas, sewer, or
drainage pipes above the surface of the ground. This restriction does not apply
to pipes installed or maintained within structures to be constructed by the
LESSEE on the leased premises.
8
ARTICLE II
REPAIRS AND ALTERATIONS
2.01 LESSEE'S DUTY TO REPAIR:
LESSEE shall, through the term of this lease, take good care of
the leased premises and the fixtures and appurtenances therein and at its sole
cost and expense make all nonstructural repairs thereto as and when needed to
preserve them in good working order and condition, damage from the elements and
fire excepted. In this regard, LESSEE is responsible for the maintenance and
repair at LESSEE'S sole cost and expense of all windows, doors, plumbing,
electrical, light fixtures, plumbing, fixtures, air conditioning system,
painting of interior and exterior wall when needed, floor covering and other
nonstructural repairs.
Damage or injury to the premises, fixtures, appurtenances whether
requiring structural or nonstructural repairs, caused by or resulting from
carelessness, omission, neglect, or improper conduct of LESSEE, its servants,
employees, invitees or licensees, shall be repaired promptly by LESSEE at its
sole cost and expense, to the satisfaction of LESSOR.
LESSEE herein agrees to promptly notify LESSOR of any accident
to, or any defects in, utility system or structure used in common with other
tenants, including, but not limited to, water pipes, drainage pipes, air
conditioning ducts.
The City of Abbeville is expressly granted the right of access to
any such system or structure used in common, and the right to enter the premises
to inspect and repair, if necessary, any such system(s) or structure(s) for its
work or repair, its cost of same
9
shall be apportioned among the tenant(s) served by such system(s) or
structure(s). The reasonable cost of such repair shall be determined by the
Mayor.
2.02 ALTERATIONS:
LESSEE is granted the right to make alterations to the premises
other than structural repairs, at LESSEE'S sole cost and expense, subject to the
following terms and conditions:
(a) LESSEE must first obtain the written consent of LESSOR.
LESSOR reserves the right to reject any proposed extension, repair or
alteration, any particular contractor or each and every subcontractor or the
complete project.
(b) Ultimate title to an alteration properly consented to by
LESSOR will rest with LESSOR immediately upon approval and will remain in
LESSOR's possession at termination of LESSEE'S tenancy.
(c) Trade fixtures, movable furniture, and other service
equipment of LESSEE peculiar to LESSEE'S business are not to be included in
alterations, and must removed at his option and convenience, provided LESSEE is
not in default of lease obligations.
LESSOR reserves the right to demand that LESSEE restore the
premises to reasonably the same condition and state as the premises were found
prior to making such alterations, in a manner acceptable to LESSOR, and to
demand that LESSEE pay all costs of such restoration.
10
LESSEE further agrees that any damages as may be caused by the
installation or removal of trade fixtures discussed in condition (c) above, will
bind LESSEE to repair said damage expeditiously at LESSEE'S sole expense.
LESSEE maintains and reserves the right to make alterations and
remodeling changes, provided said work does not interfere with LESSEE'S
day-to-day operations and business.
ARTICLE III
USE RESTRICTIONS
3.01 GENERAL:
a. No land, alteration, or structure occupied or erected by the LESSEE
shall be used or occupied in any manner which could create conditions:
1. Adversely affecting the health, comfort, or safety of members
of the general public or other tenants of the LESSEE; or
2. Adversely affecting the beneficial enjoyment and use of
properties leased to LESSOR'S other tenants.
b. Prohibited uses include, but are not limited to, those which create:
1. Fire hazards;
2. Explosive hazards;
3. Excessive noise;
4. Excessive vibration;
5. Excessive shock;
6. Smoke, dust, pungent odors, noxious emissions constituting air
pollution;
11
7. Electrical disturbances; and
8. Excessive liquid or solid refuse, waste, or emissions;
9. Environmental hazards.
3.02 ULTRA-HAZARDOUS ACTIVITIES INCLUDING FIRE AND EXPLOSIVE HAZARDS:
No ultra-hazardous activities including those creating fire or
explosive hazards endangering life or property shall be conducted on the leased
premises by the LESSEE.
3.03 NOISE LEVELS:
At no point on the leased premises shall the sound pressure of
any individual plant or operation conducted by the LESSEE (other than operation
of motor vehicles, aircraft, or other conveyances of transportation) exceed the
decibel levels in the designated octave bands shown below:
Maximum Permitted Sound
Octave Band Cycles Level in Decibels
Per Second RE 0.0002 dynes/cm/2
------------------- -------------------
0 - 300 75
300 - 1200 55
1200 - 4800 45
4800 and above 40
3.04 VIBRATION OR SHOCK:
No vibration or shock perceptible to a person of normal
sensibilities shall be permitted within fifty (50') feet of any property line
delineating the leased premises.
12
3.05 AIR POLLUTION:
a. Any use of the premises by the LESSEE, which will produce smoke, gas,
dust, odor, fumes, aerosols, particles, products of combustion, or other
atmospheric pollutant, shall be conducted within a completely enclosed building.
b. Visible emissions of smoke, which exceed Ringlemann No. 1 on the
Ringlemann Chart of the U.S. Bureau of Mines other than motor vehicle emissions
from conveyances of transportation, shall not be permitted. This requirement is
applicable to trash and waste material disposal. Windborne dust, sprays, and
mists originating in any plants upon the leased premises will not be permitted.
c. No plant or operation shall discharge toxic or noxious matter into
the atmosphere.
d. Emission of odors detectable at any point beyond the property line of
any plant erected by LESSEE shall not be permitted.
3.06 DUST CONTROL:
All ground areas not covered by structures shall be landscaped or
surfaced with concrete, asphaltic concrete, asphalt oil, or other dust-free
surfacing. These areas shall be maintained in good condition by LESSEE and shall
at all times be kept free of weeds, trash, dust, and other debris. They shall be
properly drained and graded. This dust control shall be accomplished before the
issuance of a certificate of occupancy.
13
3.07 HEAT OR GLARE:
Any operation producing intense glare or heat shall be performed
within an enclosed or screened area in such a manner which prevents the glare or
heat so emitted from being discernible from any point on the property line of
the leased premises.
3.08 ILLUMINATION:
a. The maximum height of any lighting standard shall be limited to
thirty (30') feet above ground level.
b. The intensity of illumination shall be limited to 10 foot-candles or
0.1 lumens per square foot for open areas or surfaces visible at the property
line.
c. The design and location of exterior lighting shall comply in all
respects to the requirements of the Federal Aviation Administration or any
successor agencies and other governmental agencies having applicable
jurisdiction with respect to height, type, and placement of lighting standards
as they may affect the safety of flight operations at the airport.
3.09 SIGNS:
The following regulations shall apply to all commercial signs
displayed for observation from outside a building whether displayed on, near, or
within a building:
a. Permitted Signs: LESSEE'S commercial signs shall be
limited to those identifying the uses conducted on the
site and to those necessary for directional purposes. The
size, design, and location of all signs shall require the
written approval of the LESSOR or its authorized agent
prior to installation. On-premise billboards and flashing
signs are not permitted.
b. Construction: All signs shall comply with all building
codes of the City of Abbeville and with all rules and
regulations of the
14
Federal Aviation Administration or any other successor
agencies.
3.10 REFUSE AND TRASH:
No refuse or trash shall be kept, stored, or allowed to
accumulate on the leased premises.
3.11 SEWAGE DISPOSAL SYSTEMS:
No cesspool, septic tank, or other sewage disposal system or
device shall be installed, maintained, or used upon any parcel without LESSOR'S
prior written approval and the prior written approval of the State of Louisiana.
ARTICLE IV
INDEMNITY AND INSURANCE
4.01 INDEMNITY AND NONCLAIM:
LESSEE hereby declares itself fully familiar with the physical
condition of the leased premises and the improvements, fixtures, and equipment
leased herein, and declares that said premises were in good condition when
possession of same was accepted.
LESSEE and its heirs, successors, and assigns promise to hold
harmless and indemnify LESSOR from and against any and all claims by and on
behalf of any person, of whatsoever kind or nature, whether legal or equitable,
including governmental bodies, arising from the conduct or management of or from
any work or thing done and from any and all conditions of the leased premises or
other structures, sidewalks, driveways, or parking areas and facilities on the
leased premises or any street, curb, or sidewalk adjoining thereon, (excluding
common areas maintained by LESSOR) including environmental conditions and from
all costs, attorney's fees, expenses, and liabilities incurred in or about
15
any such claim or action or proceeding brought thereon except any and all
actions or proceedings arising out of the negligence whether sole, joint or
concurrent or willful act of LESSOR, its employees, agents, representatives, or
invitees from which LESSOR shall defend, indemnify and hold LESSEE harmless; and
in the event that any action or proceeding brought against the LESSOR by reason
of such claim, the LESSEE upon notice from the LESSOR covenants to resist and
defend such actions or proceedings.
LESSEE agrees for itself and its heirs, successors, and assigns
that it will not bring suit against the LESSOR or assign any cause or action
resulting from accident, fire, noise, or disturbance from the operation,
maintenance, accident, crash, or crash landing of any airplane in the Abbeville
Municipal Airport area or in the vicinity of the Abbeville Municipal Airport, or
during any operation of aircraft over the premises, except any such cause or
action arising out of the negligence or willful act of LESSOR, its employees,
agents, representatives, or invitees.
4.02 FIRE AND OTHER RISKS INSURANCE:
LESSEE, at his sole cost and expense, shall, throughout the term
of this lease, keep or cause to be kept all improvements now or hereafter
located upon the leased premises insured for the mutual benefit of LESSOR and
LESSEE against loss or damage by fire and against loss or damage by other risks
embraced by "extended coverage" and against civil commotions, riots, vandalism,
and malicious mischief in an amount equal to the actual replacement cost of such
improvements, including costs of replacing excavations and foundation, but
without deduction for depreciation (hereinafter called "Full Insurable Value").
LESSEE shall name the City of Abbeville as co-payee. In the event a dispute
arises
16
as to the Full Insurable Value, which cannot be resolved by agreement, an
appraisal of the leased premises and improvements thereon shall be made by an
appraiser selected by LESSEE and reasonably acceptable to LESSOR to determine
the Full Insurable Value, as defined in this provision. The resulting
determination shall be conclusive between the parties for the purposes of this
section. The expense of this appraisal shall be borne by LESSEE.
4.03 OBLIGATIONS OF LESSEE:
During the term hereof, except as provided in Section 4.05 below,
and should the improvements constructed by LESSEE upon the leased premises be
damaged or destroyed in whole or in part by fire or other casualty, LESSEE shall
give prompt notice to LESSOR. LESSEE, at its own cost and expense, shall
promptly repair, and rebuild the same to the extent as the prior value of, and
as near as is practicable to the character of the buildings and improvements
existing immediately prior to such damage. Such repairs, replacements, or
rebuilding shall be made by LESSEE and in accordance with the following terms
and conditions:
a. Prior to commencing such repairs, LESSEE shall deliver to LESSOR
a set of the preliminary construction plans and specifications
for LESSOR'S approval. In the event the preliminary plans and
specifications are disapproved, LESSEE will be notified in
writing. The notice shall specify in detail the reasons for the
disapproval. LESSOR shall specify the corrections to the
specifications and plans.
b. Upon approval of the preliminary plans and specifications by
LESSOR, LESSEE shall prepare, or cause to be prepared, final
working plans and specifications. These shall conform to the
preliminary plans and specifications. Upon completion of the
final working plans and specifications, LESSEE shall submit the
same to appropriate governmental agencies for approval. Upon
approval by such agency and the issuance of permits for the
commencement of construction, LESSEE shall deliver to LESSOR one
complete set of the final
17
working plans and specifications, as approved by the appropriate
governmental agencies. Changes from the preliminary plans and
specifications shall be considered to be within the scope of the
preliminary plans and specifications if such changes are made to
comply with suggestions, requests, or requirements of the
governmental agencies.
c. Prior to commencing construction, LESSOR may require LESSEE to
furnish a performance and payment bond and, if requested,
Builder's Risk Insurance.
d. Upon compliance with the foregoing, and after settlement shall
have been made with the insurance company or companies, and said
proceeds of such insurance policy or policies shall have been
paid to LESSEE, LESSEE shall commence such repair, replacement,
or rebuilding within a reasonable time and shall continue such
work with reasonable diligence until completion.
4.04 INSURANCE PROCEEDS:
Upon receipt by LESSEE and LESSOR of the proceeds of the
insurance policy or policies, LESSEE and LESSOR shall deposit same in an escrow
account to pay for the cost of such repair, replacement and rebuilding. Such
proceeds shall be disbursed by LESSEE and LESSOR during construction to pay the
cost of such work.
If the amount of such insurance proceeds is insufficient to pay
the costs of the necessary repair, replacement, or rebuilding of such damaged
improvements, LESSEE shall pay any additional sums required and if the amount of
such insurance proceeds is in excess of the costs thereof, the amount of such
excess shall be retained by LESSEE.
4.05 CANCELLATION OF LEASE:
Should the improvements on the leased premises be damaged or
destroyed in whole or in part by fire or other casualty during the initial term
or during the option term of this lease, LESSEE shall be relieved of the
obligation to repair, replace, and rebuild the same and shall have the right to
cancel this lease by giving LESSOR written notice of its election to do so with
thirty (30) days after the date of any such damage or destruction. In
18
such event, this lease shall terminate as of the date of such destruction and
the insurance proceeds received or receivable under any policy of insurance
shall be paid to and retained by LESSOR. All rents payable under this lease
shall be prorated and paid to the date of such termination. The receipt of all
insurance proceeds by LESSOR will relieve LESSEE from any responsibility to
restore the leased premises to their former condition.
4.06 CONTENTS:
Insurance on contents of building is sole responsibility of the
LESSEE.
4.07 PUBLIC LIABILITY INSURANCE:
LESSEE agrees to indemnify and hold harmless LESSOR from any and
all claims, damages, causes of action, costs and expense, including attorney's
fees resulting from or related to LESSEE'S use and occupancy of the leased
premises and the condition thereof, including environmental conditions, except
any such claims, damages, causes of action, costs and expenses arising out of
the negligence or willful act of LESSOR, its employee, agent, representative, or
invitee, from and against which LESSOR shall indemnify and hold LESSEE harmless.
In this connection, LESSEE shall carry and maintain public liability insurance
in minimum amounts of ONE MILLION DOLLARS ($1,000,000.00) for each accident and
THREE HUNDRED THOUSAND DOLLARS ($300,000.00) property damage in which LESSOR
shall be named as additional insured and as a co-insured. Such policies shall
provide that same shall not be canceled without thirty (30) days prior written
notice to LESSOR, and LESSOR shall be furnished, within thirty (30) days from
the effective date of this lease, with a copy of such proof of insurance. LESSOR
reserves the right to
19
accept or reject the insurance company issuing such policy or policies based on
LESSOR's prior experience with any particular insurance company.
4.08 POLICIES AND MODIFICATIONS:
Copies of all LESSEE'S policies and modifications shall be
deposited with LESSOR no later than forty-five (45) days after the execution of
this lease.
ARTICLE V
ENCUMBRANCES
5.01 ENCUMBRANCES:
LESSEE may encumber its leasehold interest by the execution and
delivery of a mortgage. The mortgagee of such mortgage may deliver to LESSOR a
written notice specifying:
a. The amount of the obligation secured by the
mortgage and the date of the maturity or maturities
thereof, and
b. The name and address of the mortgagee.
After receipt of such notice, LESSOR shall serve mortgagee, by
certified mail at the last address furnished by mortgagee, a copy of every
notice or demand served by LESSOR upon LESSEE under the terms and provisions of
this lease so long as such mortgage is in effect.
5.02 MORTGAGEE'S RIGHT:
Upon receipt of a notice or demand, in accordance with Section
5.01 above, mortgagee shall have one hundred eighty (180) days after receipt of
such notice within which, at mortgagee's election, to:
20
a. Cure any default, if it can be cured, by the payment or
expenditure of money; or
b. Perform such other action as may be necessary to cure the
default; or
c. Institute foreclosure proceedings and prosecute same
diligently to conclusion.
5.03 RIGHTS ON FORECLOSURE:
In the event of foreclosure by mortgagee, the purchaser at the
foreclosure sale, or the person acquiring LESSEE's interest by virtue of or in
lieu of foreclosure, shall succeed to all of LESSEE's rights, interests, duties,
and obligations under this lease.
5.04 LESSEE'S RIGHT TO ENCUMBER:
Nothing herein shall be construed to prohibit LESSEE from encumbering
LESSEE's leasehold interest provided, however, that such leasehold interest
shall not be encumbered beyond the expiration date of the primary term of this
lease. Provided LESSOR shall not be liable in any manner to any mortgagee except
as otherwise herein provided.
ARTICLE VI
TERMINATION, CANCELLATION, ASSIGNMENT OF TRANSFER
6.01 CANCELLATION:
Subject to the provisions of Article V above, 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 part of the
rental amounts agreed upon hereunder for a period of ten (10)
days after LESSOR has notified LESSEE in writing that payment was
not received when due;
b. File in any court a petition in bankruptcy or insolvency or for
the appointment of a receiver or trustee of all or a portion of
LESSEE's property;
21
c. Make any 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 receipt of written notice from LESSOR to cure such
default, unless during such thirty (30) day period, LESSEE shall
commence and thereafter diligently perform such action as may be
reasonably necessary to cure such default;
e. LESSEE abandons the premises or leaves the premises vacant or
unoccupied for thirty (30) consecutive days;
f. LESSEE permits the leased premises to be used for any
unauthorized or unlawful business or purpose;
g. Be adjudged bankrupt in involuntary bankruptcy proceedings; or
h. Be made a party to any receivership proceedings in which a
receiver is appointed for the property or affairs of LESSEE where
such receivership is not vacated within sixty (60) days after the
appointment of such receiver.
In any of the aforesaid events, LESSEE may re-enter to take immediate
possession of the leased premises and remove LESSEE's effects or assert its
lessor's liens upon them, as provided in paragraph 6.05, without being deemed
guilty of trespassing.
6.02 REPOSSESSING AND RELETTING:
In the event of default by LESSEE hereunder which shall remain uncured
after the required notices have been given pursuant to this lease, and for such
time as provided herein, LESSOR may at once thereafter, or at any time
subsequent during the existence of such breach or default:
a. Re-enter the demised premises or improvements or any part of them
and repossess them; and
b. Either cancel this lease by notice or without canceling this
lease, relet the leased premises or any part thereof upon such
terms and conditions as shall appear advisable to LESSOR. If
LESSOR shall proceed to relet the leased premises and the amounts
received from reletting the leased premises during
22
any month or part thereof be less than the rent due and owing
from LESSEE during such month or part thereof under the terms of
this lease, LESSEE shall pay such deficiency to LESSOR
immediately upon calculation thereof, providing LESSOR has
exercised good faith in terms and conditions of reletting.
Payment of any such deficiencies shall be made monthly within ten
(10) days after receipt of notice of deficiency.
6.03 ASSIGNMENT AND TRANSFER:
LESSEE shall have the right and privilege to assign or transfer this
lease subject to the prior written approval of LESSOR.
6.04 SUBLEASING:
LESSEE shall have the right to sublease all or any part of the space
demised hereunder for the same purposes permitted under the terms and provisions
of this lease, provided LESSEE first obtains LESSOR's consent, such consent
shall not be unreasonably withheld. Any such sublease shall be subject to the
same conditions, obligations, and terms as set forth herein and LESSEE shall be
responsible for the observance by its sublessees of the terms and covenants
contained in this lease.
6.05 LESSOR'S LIEN AND PRIVILEGE:
It is expressly agreed that, in the event of default by LESSEE
hereunder, LESSOR shall have a lien and privilege upon all goods, chattels,
personal property, or equipment of any description belonging to LESSEE or to any
other person which are placed in or become a part of the leased premises as a
security for rent due and to become due for the remainder of the lease term,
which lien shall not be in lieu of or in any way affect the statutory lessor's
lien given by law.
Default on rental payments entitles LESSOR, at its option, to take
whatever lawful action reasonably necessary to protect LESSOR's interest in said
property, including the
23
storing of goods, secured by a lessor's lien for nonpayment of rent for a
reasonable time, as well as the selling of such goods at public or private
auction for rental due, without waiving LESSOR's right to the total rental due.
6.06 CANCELLATION BY LESSEE:
LESSEE shall have the right to cancel this lease agreement upon
providing to LESSOR written notice of its intention to do so which shall be
received by LESSOR at least sixty (60) days prior to LESSEE's proposed
cancellation date. Attached to said notice shall be certified funds equal to
twelve times the monthly rental amount for the month in which the cancellation
is to be effective. LESSEE shall have the right upon proper cancellation and
satisfaction of all other rental obligations to LESSOR, of removing all movable
items located on the leased premises, provided that LESSOR has not exercised any
statutory or contractual of right of sequestration.
ARTICLE VII
MISCELLANEOUS
7.01 ATTORNEY'S FEES:
In case LESSEE defaults in the performances of any of the terms,
covenants, agreements, or conditions contained in this lease and LESSOR places
the enforcement of the term of this lease, or any part thereof, or the
collection of any rent due, or to become due hereunder, or recovery of
possession of leased premises in the hands of an attorney, or files suit upon
same, LESSEE agrees to pay LESSOR reasonable attorney's fees and payment of same
shall be secured in a like manner as herein provided as to lien for rent due.
24
7.02 LESSOR'S REPRESENTATION AND WAIVER:
Any representations by LESSOR regarding LESSEE's leasehold interest must
be embodied in this writing. Any amendments to this lease must be in writing and
signed by both parties.
The waiver by LESSOR or LESSEE of performance of any provisions of this
agreement shall not amount to a future waiver of strict performance of such
provision or any other provision of this agreement.
7.03 ANTI-DISCRIMINATION CLAUSES MANDATED BY FEDERAL GOVERNMENT:
a. The LESSEE assures that it will undertake an affirmative action
program, as required by 14 Code of Federal Regulations Part 152, Subpart E, to
insure that no person shall on the grounds of race, color, creed, national
origin, or sex be excluded from participating in any employment activities
covered by 14 Code of Federal Regulations Part 152, Subpart E. The LESSEE
assures that no person shall be excluded on these grounds from participating in
or receiving the services or benefits of any program or activity covered by this
subpart. The LESSEE assures that it will require that its covered
suborganizations provide assurances to the LESSEE that they similarly undertake
affirmative action programs and that they will require assurance from their
suborganizations, as required by 14 Code of Federal Regulations Part 152,
Subpart E, to the same effect.
b. The LESSEE for himself, his personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree as a covenant running with the land that: (1) no person on
the grounds of race, color, or national origin shall be excluded from
participating in, denied the benefits of, or be otherwise subjected
25
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
thereon, no person on the grounds of race, color, or national origin shall be
excluded from participating in, denied the benefits of, or otherwise subject to
discrimination, (3) that the LESSEE shall use the in compliance with all other
requirements imposed by or pursuant to CFR Part 21, Nondiscrimination in
Federally Assisted Program of the Department of Transportation, and as said
regulations may be amended.
c. That, in the event of breach of any of the preceding
nondiscrimination covenants, the City of Abbeville shall have the right to
terminate this lease and to reenter and repossess said land and the facilities
thereon, and hold the same as if said lease had never been made or issued.
7.04 LAWS AND REGULATIONS:
Further, LESSEE shall keep and maintain the premises in a clean and
healthful condition and comply with all laws, ordinances, orders, rules and
regulations, whether State, Federal, or Municipal, and shall hold LESSOR
harmless and indemnified for any violation of same on the leased premises or
which are caused by LESSEE.
7.05 OUTSIDE STORAGE PROHIBITED:
Storage of vehicles, equipment, supplies, or any other items outside of
the leased building(s) is prohibited, unless the storage area is fenced and
approved by the LESSOR. For the purpose of this provision, the term "storage"
shall mean the placing of vehicles, equipment, supplies, or any other items
outside the leased building and which vehicles, equipment, supplies, or any
other items do not serve an actual day-to-day business function.
26
7.06 HOUSEKEEPING:
If accumulation of weeds, rubbish, or items of equipment or supplies are
permitted to remain on the premises more than ten (10) days after a request in
writing from the LESSOR to have them removed, the LESSOR or authorized agent may
enter upon the demised premises for the purpose of removing same by whatever
means it deems necessary but shall not have any affirmative duty to do so. Such
entry shall not be deemed a trespass and the LESSOR shall not be subject to any
liability. The cost of such work shall be borne by the LESSEE.
7.07 GARBAGE STORAGE AND DISPOSAL:
LESSEE agrees to store all accumulated garbage in a neat and clean
manner, as an essential element of its responsibilities for neatness of the
premises and agrees to comply with all rules and ordinances of the city and
state regarding its storage and disposal.
7.08 CUMULATIVE RIGHTS AND REMEDIES:
All rights and remedies of LESSOR and LESSEE enumerated in this lease
shall be in addition to other rights or remedies allowed by law. Likewise, the
exercise or failure to exercise by LESSOR and LESSEE of any remedy provided for
herein or allowed by law shall not preclude its exercise of other remedies.
7.09 INTERPRETATION:
Words of gender used in this lease shall be held and construed to
include any other gender and words in the singular shall be held to include the
plural and vice versa unless the context otherwise requires.
27
7.10 INVALIDITY OR ILLEGALITY OF PROVISIONS:
The invalidity or illegality of any provisions shall not affect the
remainder of this lease.
7.11 SUCCESSORS AND ASSIGNS:
All of the terms, provisions, covenants, and conditions of this lease
shall inure to the benefit of and being binding upon LESSOR and LESSEE and their
successors, assigns, legal representatives, heirs, executors, and
administrators.
7.12 NON-EXCLUSIVE USE:
It is understood that nothing herein contained shall be construed to
grant or authorize the granting of an exclusive right unless specifically
identified herein.
7.13 TRAILERS, ABANDONED VEHICLES EXPRESSLY PROHIBITED:
Towed vehicles or any motor vehicles not currently licensed and actively
used, are not permitted on the demised premises. Under this provision, vehicles,
RV trailers, travel homes and mobile homes, wrecked or abandoned vehicles must
be removed at LESSEE's expense, and failure to do so shall constitute a breach
of this lease. Provided, however, that LESSEE is specifically authorized to
place and maintain on the leased premises trailers, and/or mobile homes used for
occupancy by pilots or other personnel or employees of LESSEE.
7.14 CAPTIONS:
Articles and headings are inserted only as a matter of convenience and
for reference and in no way define, limit, or describe or intent of any
provision hereof, nor are they meant to bind the LESSOR or LESSEE to the meaning
of such heading.
28
7.15 RIGHT OF FLIGHT:
LESSOR, for itself, its lessees, consignees, permittees, successors and
assigns, reserves the right of flight for the passage of all types of aircraft
now in existence or hereafter created above the leased premises. LESSOR, its
consignees, lessees, permittees, invitees, licensees, successors and assigns
shall likewise be entitled to cause such noise, smoke, vapor, sound effects, and
other distractions as may be inherent in the operation and flight of such
aircraft.
7.16 GOVERNING LAW/VENUE:
This agreement shall be construed under and in accordance with the laws
of the State of Louisiana. Venue of any action arising under this agreement
shall lie in Vermilion Parish, Louisiana.
7.17 NOTICES:
Any notices which are required hereunder, or which either LESSOR or
LESSEE may desire to serve upon the other, shall be in writing and shall be
deemed served when deposited in the United States mail, postage paid, return
receipt requested, addressed to LESSEE as follows:
CITY OF ABBEVILLE
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and to LESSOR:
XXXXXX XXXXXX CORPORATION
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
29
7.18 SUBORDINATION OF LEASE:
This lease shall be subordinated to the provisions of any existing or
future agreement between LESSOR and the United States, relative to the operation
or maintenance of the airport, the execution of which has been or may be
required as a condition to the expenditure of Federal funds for the development
of the airport.
It is expressly understood and agreed that this lease is subject to and
subordinate to and controlled by provisions, stipulations, covenants, and
agreements contained in those certain contracts, agreements, resolutions, and
actions of the City of Abbeville, constituting agreements between the city and
the United States of America and its agent including, but not limited to, the
Federal Aviation Administration (FAA) and all regulations now and hereafter
imposed upon the city and that the LESSOR shall not be liable to LESSEE on
account of any of the foregoing matters and all of such contracts, agreements,
resolutions, and regulations are incorporated herein by reference, and if any
provision of this lease is determined to be a variance with same, such provision
is unilaterally reformable at LESSOR's option.
The parties agree that, as of the date of execution of this contract,
there exists no provisions, stipulations, covenants, or agreements which would
prohibit LESSEE from using the leased premises for the purpose set forth in
Paragraph 1.11 titled "Use and Use Conflict" in this agreement.
7.19 NATIONAL EMERGENCY:
During the time of war or national emergency, LESSOR shall have the
right to lease the landing area or any part hereof to the United States
Government for military or naval
30
use, and if such lease is executed, the provisions of this instrument insofar as
they are inconsistent with the provisions of the lease to the Government, shall
be suspended.
7.20 FAA APPROVAL:
This agreement is subject to FAA and City Council approval and also
constitutes a public document being subject to public inspection at any time
hereafter.
7.21 AIRPORT HAZARD:
The LESSEE, and its successors and assigns, will not make or permit any
use of the property which would interfere with landing or taking off of aircraft
at the airport or otherwise constitute an airport hazard. This includes such
items as electrical and electronic interference with communications, electrical
or electronic equipment, creation of smoke or dust, or glaring or misleading
lights.
7.22 NOTICE OF PROPOSED CONSTRUCTION OR ALTERATIONS:
The LESSEE, and its successors and assigns, will complete an FAA Form
7460-1, Notice of Proposed Construction or Alteration, and receive a favorable
determination from FAA prior to any construction on the property.
7.23 AERIAL APPROACHES:
LESSOR reserves the right to take any action it considers necessary to
protect the aerial approaches of the airport against obstruction, together with
the right to prevent LESSEE from erecting, or permitting to be erected, any
building or other structure on or adjacent to the airport which, in the opinion
of the LESSOR, would limit the usefulness of the airport or constitute a hazard
to aircraft.
31
7.24 IMPROVEMENTS VESTED IN LESSOR:
The parties agree that the obligation and promises of LESSEE, as
expressed herein, to make improvements and maintain building is a part of the
total consideration for this lease agreement. Therefore, all right, title, and
interest in and to said improvements shall at all times herein be vested in
LESSOR, subject only to the right of LESSEE to the use and possession of said
building and improvements during this lease plus any extensions hereof, as
provided in said lease, so long as LESSEE is not in default of any of the terms
of this lease agreement. It shall be the obligation of LESSEE to maintain and
repair the said building and improvements during the term of this lease or any
extension thereof. Upon termination, interest in and to the said improvements
shall remain vested in LESSOR, and LESSEE shall not have any further rights
therein nor be entitled to any reimbursement by reason of LESSEE's maintenance,
improvements, repair, or use of said building.
7.25 CANCELLATION OF PRIOR LEASE AGREEMENT:
The parties agree that this document is the current lease agreement
between them and that no other past document contains or reflects any agreement
with regard to the leased premises between the parties. The parties hereto
expressly cancel any pre-existing lease agreements between the City of Abbeville
and Xxxxxx Xxxxxx Corporation whether direct agreements between them or
agreements obtained through assignment, sale, or sublease.
32
THUS DONE AND PASSED in Abbeville, Vermilion Parish, Louisiana, in the
Presence of Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxxxx, good and competent
witnesses who have signed these presents with the appearer and me, Notary, on
this 4th day of January, 1994.
WITNESSES: CITY OF ABBEVILLE
___________________ By: ____________________________
Xxxxxx Xxxxxxxxx R. Xxxxx Xxxxxxxxx, Mayor
___________________
Xxxxx Xxxxxxxxxxx
_____________________________
Notary Public
33
THUS DONE AND PASSED in Abbeville, Vermilion Parish, Louisiana, in the
presence of Xxxxx Xxxxxx and Xxxxxx Xxxxxxxx, good and competent witnesses who
have signed these presents with the appearer and me, Notary, on this 19th day of
January, 1994.
WITNESSES: XXXXXX XXXXXX CORPORATION
___________________ By: ____________________________
Xxxxx Xxxxxx Xxxxxx X. Xxxxx
___________________
Xxxxxx Xxxxxxxx
_____________________________
Notary Public
34
