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XXXXXXX 00.0
XXXXXX XXXXXX OF AMERICA
STATE OF LOUISIANA
PARISH OF IBERIA
LEASE AND OPERATING AGREEMENT BETWEEN IBERIA PARISH AIRPORT
AUTHORITY AND PRIDE AVIATION, INCORPORATED TO ESTABLISH AND
OPERATE AS A HEAVY AIRCRAFT MAINTENANCE OPERATOR AT ACADIANA
REGIONAL AIRPORT, IBERIA PARISH, LOUISIANA
This agreement, made in the City of New Iberia and Parish of Iberia,
State of Louisiana and entered into this 28th day of December 1994.
By and Between
The IBERIA PARISH AIRPORT AUTHORITY, a political subdivision duly
created, organized and existing under and by virtue of a resolution of the
Police Jury of Iberia Parish, Louisiana on January 26, 1966, Resolution Number
6, hereinafter called "LESSOR" and represented by and acting through XXXXX X.
XXXXXX, its Chairman, duly authorized by a Resolution of the Iberia Parish
Airport Authority (a copy of which is attached hereto), having 0000 Xxxxx
Xxxxx, Xxx Xxxxxx XX 00000, as its permanent mailing address, and PRIDE
AVIATION, INCORPORATED, an Oklahoma corporation, herein represented by and
acting through XXXXX XXXX, its President, hereinafter called "LESSEE", duly
authorized by a Resolution of the Directors of said corporation (a copy of
which is attached hereto), having 0000 Xxxxxx Xxxxx, as its permanent mailing
address,
WITNESSETH
WHEREAS, the Lessor now operates a public airport certified under FAA
Part 139 designated as Acadiana Regional Airport, located in Iberia Parish,
Louisiana, hereinafter referred to as Airport; and
WHEREAS, the Lessee desires to locate its heavy maintenance operation
on the Airport, and was awarded a contract to lease available land with certain
buildings and improvements and assignment of Common Aircraft Ramp Areas.
WHEREAS, in reliance on Lessee's bid and subsequent award, Lessor has
determined to make the site available to Lessee to be used for heavy aircraft
maintenance operations, therewith defined under IRS 2:135.1(G).
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NOW, THEREFORE, for and in consideration of the premises and mutual
undertakings, agreements and covenants hereinafter set forth, the parties
hereto agree as follows:
ARTICLE I. PREMISES LEASED, PURPOSE, OBJECTS, RIGHTS AND PRIVILEGES
A. Leased Premises
1.00 Upon payment by Lessee of the considerations provided, and
upon the observance and performance of all the covenants, terms and conditions
on Lessee's part to be observed and performed, Lessee shall peaceably and
quietly hold and enjoy the leased premises for the term or terms hereby
stipulated without hindrance or interruption by Lessor or any other person or
persons lawfully or equitably claiming by, through or under Lessor.
1.02 Lessor does hereby lease to Lessee and Lessee does hereby
accept and lease from Lessor the land, buildings and improvements of the
airport, more particularly described as follows:
A. AIRCRAFT MAINTENANCE HANGAR 88-C COMPLEX
The real estate,, buildings and improvements located at the Acadiana
Regional Airport, Iberia Parish, Louisiana, being more particularly
described as follows:
TRACT D
A certain tract of land, with all improvements, located and being situated at
the old U.S. Naval Auxiliary Air Station, Iberia Parish, Louisiana, measuring
and containing 4.348 superficial acres of land, and being more particularly
described as follows:
Beginning at a Point on the western right-of-way line of Hangar Drive, said
Point being designated as Point "S" and having USNAAS coordinates of
y=40,399.7 and x=51,728.2; said Point "S" being the POINT OF BEGINNING; thence,
along the western right-of-way line of Xxxxxx Xxxxx X00 degrees 27'E 426.00' to
a Point in the center of a concrete driveway and Point "A" and corner; thence,
leaving said western right-of-way line of Hangar Drive and along the center
line of the concrete driveway S77 degrees 30'W 365.19' to Point "V" and corner;
thence, leaving said concrete driveway and extension thereof S12 degrees 30'E
24.O' to a point on the northern edge of the concrete ramp and Point "U" and
corner; thence, along the northern edge of the concrete ramp S77 degrees 30'W
75.0 to Point "T" and corner; thence, leaving said concrete ramp N12 degrees
30'W 450.0' to Point "K" and corner; thence, N77 degrees 30'E 440.57' to Point
"S" and corner, said Point "S" being the POINT OF BEGINNING.
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Said tract of land is depicted and set forth on a Plat of Survey by X.X. Xxxxx
Xxxxxx, R.L.S. No. 2794, dated June 7, 1990, revised February 27, 1993, and is
shown on said Plat as TRACT D, "SAVUTKS", and containing 4.348 superficial
acres of land.
AIRCRAFT RAMP
1.03 Lessee is assigned and shall have and enjoy, in common with
the general public, the use of the adjoining aircraft ramp areas which are
depicted and designated as Aircraft Ramp Area on the above referenced survey
plat and may also perform routine fueling and maintenance operations therein.
1.04 Lessee is not granted the exclusive use of the common aircraft
ramp areas but Lessor delegates and assigns to Lessee authority to oversee the
safe flow of traffic through these areas. Lessee shall have and enjoy the right
of ingress and egress to and from the leased premises, the aircraft ramp areas
and the landing areas for airplanes. The runway and taxiways shall be used
jointly with other tenants, operators and other designated users at the
airport, and except as may be necessary to protect the safe flow shall not
interfere with the rights and privileges of other persons or firms using said
facilities. Lessor reserves the right to designate, assign and delegate
authority over any and all aircraft ramp areas and, as may be necessary,
change, alter, or adjust said areas to enhance public use and availability, and
to protect the safe flow of all traffic, personnel, aircraft and equipment
thereon. Lessor shall act reasonably in the delegation, designation,
assignment, change, alteration and/or adjustment of said areas to substantially
comply with the assignment of aircraft ramp areas provided. Lessor will not
restrict the aircraft ramp area to prevent Lessee's use of hangar facilities.
B. Purposes, Objects, Rights and Privileges
1.05 This agreement vests Lessee with the right and privilege to
operate as a heavy aircraft maintenance operator on the airport and the leased
premises shall be used by Lessee solely for said purposes, as defined by the
Federal Aviation Act of 1958 as amended and the Minimum Standards and
Requirements for the Conduct of Commercial Aeronautical Services and Activities
at Acadiana Regional Airport adopted November 7, 1979, as amended on August 30,
1989, where applicable.
1.06 Lessee agrees to provide, and is herein required to provide
the aforementioned and described services and the right and privileges to
operate as a heavy aircraft maintenance operator hereby granted shall exist so
long as the character of the facilities operated or services furnished shall be
consistent with the requirements of the Federal Aviation Act of 1958, as
amended, and the Minimum Standards
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and Requirements for the Conduct of Commercial Aeronautical Services and
Activities at Acadiana Regional Airport adopted November 7, 1979, as amended on
August 30, 1989, where applicable.
1.07 Lessee shall not engage in those aircraft and aviation
services customerly rendered by a Fixed Based Operator (FBO) under the
Airport Minimum Standards. Any such activity is considered a breach of this
lease, and at its option, Lessor may impose a civil penalty of not more than
$5,000.00 for each violation. Lessee agrees not to engage in such activity and
acknowledges notice of Lessor's rights to enforcement by termination of this
lease or the imposition of civil penalties.
ARTICLE II. TERM OF LEASE, EXTENSIONS AND OPTIONS TO
EXTEND; LESSOR/LESSEE CONSTRUCTION; INDEPENDENT
CONTRACTOR STATUS
A. Term of Lease, Extensions and Options to Extend
2.00 This lease shall be for a primary term of thirty (30) years
from the effective date hereof designated as the 1st day of October, 1993.
2.01 The term of this lease may be extended for an additional
period not to exceed twenty-five years without advertising or competitive
bidding in accordance with the provisions of Louisiana Revised Statutes, Title
II, Section 135.1(G).
X. Xxxxxx'x Construction
2.02 Lessor may provide additional improvements to the leased
premises during the terms and extensions of this lease but is not obligated to
do so.
2.03 Lessor may employ all efforts necessary to apply for and
obtain local, state and federal grants, loans and other aids to improve the
runways, taxiways, landing fields, air traffic control and other facilities on
the airport but is not obligated to do so.
C. Lessee's Construction
2.04 Lessee may construct buildings and improvements on the leased
premises to facilitate its operations and to conduct its activities and
services.
2.05 All improvements shall be made in accordance with plans and
specifications provided by the Lessee. Engineering or architectural expertise
required for these improvements shall be provided by duly licensed professional
engineers or architects. All engineering or architectural fees associated with
these improvements shall be the responsibility of the Lessee.
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2.06 All plans and specifications for proposed construction shall
be submitted to the Airport Authority and approved by same prior to the
commencement of construction. Lessee shall demand or provide 100% performance
and lien insurance on all such construction and name Lessor as co-obligee,
additional insured, named insured or third party beneficiary.
2.07 All aviation hangars and buildings constructed by Lessee shall
be constructed of building materials commonly employed in aviation hangar
construction and of similar in architectural design to the present facilities
at Acadiana Regional Airport and contain sufficient area to conduct minimum
services therefrom.
2.08 All buildings and improvements constructed at Lessee's expense
shall, upon completion, be free and clear of all laborers, mechanics,
materialism, contractor, surveyor and architectural liens, privileges,
judgments and obligations excepting valid and approved mortgages for
construction or operations.
2.09 Lessee shall provide adequate adjacent hard surfaced parking
to its buildings and improvements to accommodate aircraft, employees, guests,
and business invitees.
2.10 Upon completion of any such improvements, Lessee shall present
to Lessor a statement of the "Construction and/or Alteration Costs" which shall
include all monies paid by Lessee for actual demolition, construction or
alterations, including architectural, engineering costs and other pertinent
fees and charges.
2.11 All such improvements shall be and remain the property of
Lessor at the termination of the lease upon Lessee's fault or abandonment by
Lessee of the leased premises, without any cost to Lessor. If termination of
the lease occurs without fault or neglect on the part of Lessee, any right or
claim to compensation for improvements shall not be affected by Lessor's rights
under this section.
2.12 Lessee shall at all times keep these improvements in good
operating condition and shall be returned to the Airport Authority in good
operating condition at the end of the lease period, normal wear and tear
accepted.
D. Independent Contractor Status
2.13 Lessor and Lessee agree that Lessee will maintain independent
contractor status during the term of this lease and will not be an agent of the
Lessor. It is agreed and understood that, as an independent contractor, such
status will not constitute any liability of any nature on the part of the
Lessor for Lessee's operation and activities.
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ARTICLE III. RENTALS AND OTHER CONSIDERATIONS
A. Rentals
3.00 Lessee, in consideration of the possession and use of the
premises shall be obligated to pay rental, in advance, monthly. Monthly rental
shall be paid in installments equal to one-twelfth (1/12) of the annual rental
due and payable on the first day of each and every month. The first payment is
due the first day of the fifth (5th) month after occupancy of the facility by
Lessee. The date of occupancy is hereby established as October 1, 1993.
In the event that the date of occupancy occurs after the first day of the
month, the first rental payment shall include rental on a prorated formula
calculated on a thirty (30) day month. Thereafter, rental will be due on
the first day of each month.
3.01 Commencing with and continuing throughout the primary term of
this lease and any and all extensions thereof, Lessee shall pay Lessor rentals,
in cash, annually or monthly, in advance, as follows:
(a) The first five (5) years, beginning on the effective date of
the lease, an annual rental of ONE HUNDRED FIFTY-EIGHT
THOUSAND ONE HUNDRED AND NO/100 ($158,100.00) DOLLARS payable
in monthly installments equal to one-twelfth (1/12th) of the
annual rental, or THIRTEEN THOUSAND ONE-HUNDRED SEVENTY-FIVE
AND NO/100 ($13,175.00) DOLLARS per month; and, in addition,
(b) For each successive five year period after the effective date
of the lease, and to include the original term and any
extensions thereof, the annual rental shall increase by a
compound rate of TEN (10%) PER CENTUM of the base rental. No
rate of increase shall apply during the first five years of
this lease. At the beginning of the sixth (6th) year the
annual rental shall be calculated by adding 10% of $158,100.00
(or $15,810.00) to the previous annual rental amount yielding
an annual rental of $173,910.00; at the beginning of the tenth
(10th) year the annual rental shall be calculated by adding
10% of $173,910.00 (or $17,391.00) to the previous annual
rental amount yielding an rental of $191,301.00; and at the
beginning of the sixteenth (16th) year the annual rental shall
be calculated by adding 10% of $191,301.00 (or $19,301.00) to
the previous annual rental amount yielding an annual rental of
$210,431.00.
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B. Fuel Flowage
3.02 The parties agree that in consideration of Lessee receiving
fuel and lubricating oil for resale at Acadiana Regional Airport for aircraft,
it shall pay to the Airport Authority fuel flowage fees as follows:
(a) an amount equal to four percent (4%) of the operator's
invoiced cost of fuel, never less than three ($0.03) per
gallon, for aviation operations at Acadiana Regional Airport:
and
(b) twelve percent (12%) of the operator's invoiced cost of oil
and lubricants, never less than nine ($0.09) per gallon, for
aviation operations at Acadiana Regional Airport.
3.03 Fuel flowage fees are due and payable by Lessee to Lessor, in
cash, monthly on or before the tenth (10th) day of each month. Payments are
from fuel and oil pumped from the previous month. All payments of fuel flowage
fees shall be accompanied by a statement or invoice from the wholesaler or
retail fuel and lubricant distributor.
3.04 In the event that Lessee chooses to install fuel tanks on the
leased premises, it must first secure written approval from Lessor to do so. If
approval is granted by the Authority, then Lessee shall install the tanks in
accordance with rules, regulations and specifications of the Louisiana State
Fire Xxxxxxxx, Louisiana Department of Environmental Quality (DEQ) and the U.S.
Environmental Protection Agency (EPA) presently in effect and as may be amended
during the term or terms of this lease.
C. Delinquency and Default
3.05 Lessee shall be deemed in default of this lease and agreement
if Lessee fails to remit to Lessor the monthly rental installment (one-twelfth
(1/12) of the annual rental) TEN (10) days after the due date.
3.06 All monthly rental installments due and owing, but unpaid,
more than THIRTY (30) days beyond the due date shall be deemed delinquent and
shall be assessed a delinquency charge of one (1%) percent per month or twelve
(12%) percent per annum on the unpaid balance.
3.07 In the event a dispute arises as to the correct amount of rent
due, Lessor may accept the sum tendered by Lessee under protest, and if a
deficiency is subsequently determined, the delinquency charge shall apply to
any deficiency.
3.08 Should Lessee at any time violate any of the conditions of
this lease requiring the payment of rent, fuel flowage or other monetary
obligations, as stipulated, or upon
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the filing of a bankruptcy, receivership or respite petition by or against
Lessee, or upon Lessee's suspension, failure or insolvency, the rent for the
whole unexpired term of this lease shall, without demand or putting Lessee in
default, become due and payable and Lessor, at its option, has the right to
cancel the lease, or re-enter and lease said premises for such price and on
such terms as may be immediately obtainable, and apply the net amount realized
to the payment of the rent. In the event the premises are re-leased, Lessee
would be liable for all Lessor's expenses, including but not limited to loss of
rent and collection expenses.
3.09 Should the premises be vacated or abandoned by Lessee because
of ejectment for breach hereof, or otherwise, or should the Lessee begin to
remove personal property or goods to the prejudice of the Lessor's privilege,
then the rent for the unexpired term, with attorney fees, shall at once become
due and exigible and Lessor, at its option, has the right to cancel the lease,
or re-enter and lease said premises for such price and on such terms as may be
immediately obtainable, and apply the net amount realized to the payment of the
rent. In the event the premises are released, Lessee would be liable for all
Lessor's expenses, including but not limited to loss of rent and collection
expenses.
3.10 The failure of the tenant to pay the rent punctually, or
thirty (30) days beyond the due date, shall be, ipso facto and without demand
or putting in default, grounds to terminate and cancel the lease. In such
event, the Lessor may take such legal steps as are necessary and appropriate
under the law to cancel the lease, to evict the Lessee or sublessees refusing
to leave the grounds leased and to recover monies due the Lessor for past due
rentals and damages for lost rentals occasioned by them. Improvements placed on
the property leased shall be subject to seizure and sale by the Lessor in order
to satisfy the Lessor's claim for monies and/or damages owed.
3.11 At the expiration of this lease, or its termination for
failure to pay the rent and fuel flowage fees, Lessee is obligated to
immediately surrender possession, and should Lessee fail to do so, it consents
to pay as liquidated damages five times the rent per day, with attorney fees
and costs. Lessee also expressly waives any notice to vacate at the expiration
of this lease and all legal delays, and hereby confesses judgement with costs,
placing Lessor in possession to be executed at once. Should Lessor allow or
permit Lessee to remain in the leased premises after the expiration of this
lease, this shall not be constructed as a reconduction of this lease.
3.12 Failure to strictly and promptly enforce these conditions
shall not operate as a waiver of Lessor's rights, Lessor expressly reserving
the right to always enforce prompt payment of rent, or to cancel this lease,
regardless of any indulgences or extensions previously granted. Failure to
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comply with any condition or obligation of this lease will make Lessee liable
for any loss or damage sustained by Lessor.
3.13 In case suit shall be brought, or an attorney shall be
employed, for recovery of the leased premises, for the recovery of rent or any
other amounts due under the provisions of this lease, or for the enforcement
of, or because of the breach of, any covenant herein contained on the part of
Lessee to be kept or performed, and a breach shall be established, Lessee shall
pay to Lessor all costs and expenses incurred, including a reasonable
attorney's fee.
3.14 Rental payments shall be made payable to the:
Iberia Parish Airport Authority
0000 Xxxxx Xxxxx
Xxx Xxxxxx, XX 00000
or to such other department or address as may be specified by Lessor in writing
from time to time.
ARTICLE IV. UTILITIES
4.00 Lessee agrees to make its own arrangements for all utility
extensions, modification and services and to pay for such services and deposits
on its leased premises. No waste shall be committed or damage done to the
property of the Lessor in the establishment of said utility services.
ARTICLE V. SIGNS
5.00 Lessee is authorized to erect and install signs and
advertisements promoting its name and/or services it may offer subject to
Lessor's prior written consent, provided that such consent will not be
unreasonably withheld.
ARTICLE VI. ALTERATIONS, FURNITURE AND FURNISHING
A. Alterations
6.00 Lessee shall not construct or install any additional buildings
or structures on the leased premises nor otherwise alter or modify the leased
premises without first obtaining the written consent of Lessor. Lessor's
consent will not be unreasonably withheld.
6.01 Lessee shall not remove, alter, modify or make any structural
changes in any of the buildings or structures placed thereon without first
obtaining the written consent of Lessor, Lessor's consent will not be
unreasonably withheld.
6.02 Lessee shall not modify or make any additions to the plumbing,
electrical or other utilities therein without first obtaining the written
consent of Lessor. Lessor's consent will not be unreasonably withheld.
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6.03 For the purpose of this paragraph, any penetration of the
roof, exterior walls, floor and foundation shall be considered a structural
change.
6.04 In the event Lessee makes alterations or improvements to the
leased premises, then the use thereof shall be enjoyed by Lessee during the
remaining term of the lease without the payment of additional rental and such
alterations or improvements shall become the property of Lessor at the
termination of this lease.
B. Furniture or Furnishings
6.05 Lessee agrees to install the necessary furniture, furnishings,
equipment and fixtures necessary for the conduct of its operations with the
Minimum Standards.
ARTICLE VII. MAINTENANCE
7.00 The Lessor shall maintain the roof, walls and foundations and
all concrete or pavement of the premises in good condition.
7.01 Lessor shall at all times maintain design load limits on all
concrete and paving surfaces of the leased premises and shall not allow
overloading of any concrete or paved surface of the leased area.
7.02 Utility line maintenance outside the Lessee's delineated
property boundary shall be the Lessor's responsibility.
7.03 Lessor will not be responsible for damage caused by leaks in
the roof, by bursting of pipes, by freezing or otherwise, or by any vice or
defects of the leased property or the consequences thereof except in the case
of positive neglect or failure to take action toward the remedying of such
defects within reasonable time after having written notice from Lessee of such
defects and the damage caused thereby. Should Lessee fail to promptly so notify
Lessor, in writing, of any such defect, Lessee will become responsible for any
damage resulting to Lessor or other parties.
7.04 Lessee shall maintain interior plumbing fixtures, outlets, and
drains and keep them free from foreign objects and obstructions; maintain the
heating and air conditioning system, including cleaning and removal of filters
and general maintenance; and maintain the electrical system including
replacement of fixtures and lamps. Lessee shall maintain inside and
outside of premises in accordance with Airport Authority standards. Lessee
shall be responsible for major repairs to the hangar doors, the central heating
and air conditioning system, such as replacement of compressors, and major
plumbing repairs, such as replacement of fixtures or corroded sewer lines
within the boundary of the leased premises.
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7.05 All major repairs to electrical and mechanical equipment
contained on the leased premises shall be made by licensed personnel. Other
repairs shall be made by skilled craftsmen performing such work regularly as a
trade. Lessee shall be responsible for maintaining electrical loads within the
designed capacity of the system as installed or modified.
7.06 Subject to the foregoing, Lessee shall maintain the leased
premises in good repair, ordinary wear and tear accepted. Lessee shall maintain
the leased premises and the assigned aircraft ramp areas in a neat and sightly
condition and shall not permit the accumulation of waste, trash or debris on
airport property.
7.07 Collection and on site storage of wrecked or derelict aircraft
or equipment not under repair shall be prohibited under the terms and
conditions of this lease.
7.08 Lessee will not allow any waste, trash, debris, fuels,
lubricants or any other material whatsoever to be discharged onto the leased
premises. Lessee shall dispose or contract with an EPA and/or DEQ approved
operator for the removal and proper disposal of expended lubricating oil,
solvents, fuels, chemical and other products that may accumulate as a result of
the Lessee's use of the leased premises. The Lessor may remove any waste,
trash, fuel, lubricants, or other materials discharged or otherwise placed on
said leased premises by Lessee, its employees, agents, representative,
licenses, invitees, patrons or customers and charge Lessee for such cost
including testing, clean up including labor and material.
ARTICLE VIII. PAYMENT OF TAXES
8.00 Lessee shall be liable for any and all taxes, penalties and
interest thereon assessed, levied or charged by any governmental agency against
Lessee's tangible personal property (inventory, equipment, machinery,
furnishings and other movable assets) situated on the leased premises and
against any interest acquired under this agreement.
8.01 No exemption or waive from taxes on personal or business
property insures to the benefit of Lessee by association, contract or other
relationship to the Lessor as a public body.
ARTICLE IX. COMPLIANCE WITH LAW
9.00 Lessee while exercising rights granted herein, shall observe
and comply with, and at its own cost and expense, requirements of Federal,
State or local statutes, ordinances, regulations and standards applicable to
Lessee or its use of the leased premises, including but not limited to Exhibit
"A", (Minimum Standards and Requirements for the Conduct of Commercial
Aeronautical Services and Activities at Acadiana Regional Airport adopted
November 7, 1979, as amended on
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August 30, 1989) other rules and regulations promulgated from time to time by
the Iberia Parish Airport Authority and the Iberia Parish Council for
administration of the airport.
9.01 Lessee shall procure and maintain during the term of the
agreement, all licenses, permits and similar authorizations required for the
conduct of its business operations.
ARTICLE X. AIRPORT SECURITY
10.00 Lessee agrees that it will, at its own cost and expense,
enroll and participate in the airport security program during the term of this
agreement.
ARTICLE XI. RIGHT OF ENTRY, INSPECTION AND ACCOMPLISHMENT OF OBLIGATIONS
11.00 The Lessor reserves the right to inspect the premises, within
reasonable time periods and upon advance notice and shall be permitted to enter
and view the premises or equipment on the leased premises. Lessor shall at all
reasonable times have the right to enter the premises accompanied by Lessee for
the purpose of inspecting and of making such, if any, repairs that Lessor may
be bound or elect to make.
ARTICLE XII. WAIVER OF LIABILITY, INDEMNITY AND INSURANCE
A. Indemnity
12.00 Lessee assumes full responsibility for the condition of the
leased premises, and all buildings, improvements, fixtures and equipment
thereon, and for all of Lessee's operations but does not assume any
responsibility for lessor's negligence or the negligence of lessor's agents,
officers, or employees. In the event of any suit, claim or action by Lessee,
its agents, employees, invitees or third persons is brought against Lessor or
the Iberia Parish Council to recover for, or on account of any injury to person
or property (including death) caused by any vice or defect in or upon said
leased premises, including the buildings, improvements, fixtures and equipments
thereon, or on account of Lessee's operations, Lessee agrees to appear, defend,
adjust and settle said action or claim at its sole cost and expense and to pay
and satisfy any adverse judgment that may be entered on final determination.
12.01 Lessee will indemnify Lessor and save it harmless from and
against any and all claims, actions, loss, cost (including attorney's fees),
damages, expenses, and liability (including statutory liability and liability
under workers' compensation laws) in connection with loss of life, personal
injury and/or damage to property arising from or out of any occurrence in, upon
or at the leased premises, or the occupancy or use by Lessee of the leased
premises or any part
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thereof, and any activities of the Lessee in the parking areas and common
service areas sustained by Lessee and all other persons which are occasioned
wholly or in partly by any act or omission of Lessee, Lessee's partners,
agents, sublessees, contractors, subcontractors, invitees, customers,
employees, servants, or concessionaires. In case Lessor and the Iberia Parish
Council, its individual members, the Parish President and the Airport Director
and their employees and agents shall, without fault on its part, be made a
party to any litigation commenced by or against Lessee, then Lessee shall
protect and hold Lessor harmless and shall pay all costs, expenses, and
reasonable attorney's fees incurred or paid by Lessee in connection with such
litigation.
B. Insurance
12.02 Lessee agrees to provide, at its expense, for the duration of
this lease and any extensions hereof, tenants liability insurance, and to
furnish Lessor a certificate of such insurance, with limits of no less than
$100,00.00 for injury to any other person and $300,00.00 for injuries sustained
in any one accident, and with property damage limits of $25,000.00 which policy
shall provide, as a condition precedent to cancellation, ten (10) days advance
written notice to Lessor and shall name as additional insured, the Lessor, and
the Iberia Parish Council.
12.03 In addition to the above, Lessee shall provide the minimum
insurance requirements as listed below:
(a) Comprehensive Public Liability and Property Damage;
(i) Bodily Injury (each accident) $25,000,000.00 any one
offense and aggregate annually;
(ii) General Liability and Property Damage: $50,000,000.00
combined single limit, any one occurrence/offence and
annual aggregate including products, grounding and
completed operations;
(c) Motor Vehicle Liability: $1,000,000.00 combined single limit;
(d) Xxxxxxx'x Compensation and Employer's Liability:
Up to Statutory Limit
(e) Hangar Keepers Liability Coverage: $15,000,000.00 any one
aircraft, $30,000,000.00 any one occurrence subject to
$15,000.00 deductible each and every loss;
(f) Fire and Extended Coverage on all buildings and improvements
located on the leased premises in an amount of 80% of
replacement cost of the improvements. Replacement cost is
defined as cost to replace the buildings and improvements with
like materials and like configuration, but in no case less
than $2,300,000.00. The Lessee shall be allowed to determine
the deductible on this all risk coverage, but Lessee shall be
fully
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responsible for the payment of any and all deductibles,
whatever they may be. Flood and earthquake coverage shall not
be a requirement of this section. Said policy shall provide,
as a condition for cancellation,, ten (10) days advance
written notice to Lessor and shall name Lessor and the Iberia
Parish Council as additional insureds under the policy.
12.04 If through no fault, neglect or design of Lessee, the premises
are destroyed by fire or other casualty, and provided that at the time of such
damage or destruction there exists no incurred default by Lessee under this
lease, the following obligation to repair and/or reconstruct shall apply:
(a) If the cost to repair the damage, including
architect's fees, surety bond, etc., does not exceed the sum determined and
payable by an insurance underwriter under coverage for fire and extended
coverage, as estimated by an architect licensed in the' State of Louisiana
selected by Lessor and any bid, acceptable to Lessor, Lessor shall repair the
damage as expeditiously as possible;
(b) In the event that repair and/or reconstruction of the
damage shall be undertaken, this lease shall not be cancelled, and Lessee shall
be entitled to a proportionate reduction or remission of the rent until such
damage has been repaired;
(c) Lessor may, at its option, terminate or cancel this
lease if the cost of repair exceeds sums payable under insurance coverage. In
the event the lease is terminated by Lessor under these provisions, the Lessor
shall fairly apportion the insurance award between Lessor and Lessee, if such
insurance award is made specifically for loss of improvements made to the
leased premises by Lessee.
12.05 Lessee shall cause any and all policies of insurance obtained
by it, including bailee coverage, covering movable property (including
aircraft) located on the leased premises or on the adjoining aircraft apron
areas or used in connection with Lessee's operations conducted thereon and
therefrom to contain a waiver of subrogation, (excepting negligence) against
Lessor, the Iberia Parish Council, their individual members, the Airport
Director and their employees and agents.
12.06 In the event Lessee fails to procure any of the insurance
required hereunder, Lessor may, at its option, cause such insurance to be
issued at the cost and expense of Lessee, and all sums advanced for such
purpose shall be due Lessor as charges and expenses plus 15% service charge,
payable on or before the first day of the month following written notice
thereof to Lessee.
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ARTICLE XIII. NON-DISCRIMINATION
13.00 The Lessee, in exercising any of the rights or privileges
herein granted to it, shall not, on the grounds of age, race, color, creed,
sex, national origin or physical condition, discriminate or permit
discrimination against any person or group of persons in any manner prohibited
by Part 21 of the Regulations of the Secretary of Transportation. The Lessor is
hereby granted the right to take such actions to correct same, anything to the
contrary herein notwithstanding, as the United States may direct, to enforce
this nondiscrimination covenant.
13.01 Lessee, as a heavy aircraft maintenance operator, will furnish
its accommodations and/or services on a fair, equal and not unjustly
discriminatory basis to all users thereof and it shall charge, fair, reasonable
and not unjustly charge discriminatory prices for each unit or service;
PROVIDED, THAT the Lessee may be allowed to make reasonable and
non-discriminatory discounts, rebates or other similar type of price reductions
to volume purchasers.
13.02 Lessee shall make its accommodations and/or services available
to the public on fair and reasonable terms without unjust discrimination on the
basis of age, race, creed, color, sex, national origin or physical condition.
13.03 Lessee assures that it will undertake an affirmative action
program as required by 14 CFR Part 152, Subpart E, to insure that no person
shall, on the grounds of age, race, color, creed, national origin, sex or
physical condition, be excluded from participating in any employment activities
covered in 14 CFR 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 will undertake affirmative action programs and
that they will require assurances from their sub-organizations, as required by
14 CFR Part 152, Subpart E, to the same effect.
13.04 The Lessor is granted the right to take such actions to
correct violations, anything to the contrary herein notwithstanding, as the
United States may direct, to enforce this non-discrimination covenant.
Noncompliance of the above non-discrimination provisions shall constitute a
material breach and subject the lease to immediate termination.
13.05 Non-compliance with paragraphs 13.00, 13.01, 13.02, 13.03
and 13.04, shall constitute a material breach thereof and, in the event of such
non-compliance, Lessor shall have the right, subject to the provisions of
Article XIX hereof, to terminate this lease and operating agreement and the
estate hereby created, without liability therefor, or at the election of
Lessor, or the United States, either or both said
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governments, shall have the right to judicially enforce said paragraphs 13.00,
13.01, 13,02, 13.03 and 13.04.
13.06 Lessee agrees to insert the five (5) preceding provisions,
namely paragraphs 13.00, 13.01, 13.02, 13.03 and 13.04 of Article XIII, in any
lease, agreement or contract, by which Lessee grants a right or privilege to
any person, firm or corporation, to render accommodations and/or services to
the public, on the premises herein leased.
ARTICLE XIV. LESSOR'S RESERVED RIGHTS AND LESSEE'S PROTECTION
14.00 Lessor reserves the right to take any action it considers
necessary to protect the aerial approaches to the Airport against obstructions,
together with the right to prevent Lessee from erecting or permitting to be
erected, any building or other structure, including signs and lighting
fixtures, on the Airport which, in the opinion of Lessor, would limit the
usefulness of the Airport or constitute a hazard to aircraft.
14.01 During the time of war or national emergency, Lessor shall
have the right to lease the Airport or any part thereof to the United States
Government for military or naval use, and if any such lease is executed, the
provisions of this instrument insofar as they are inconsistent with the lease
to the government shall be suspended, and in that event a just and
proportionate part of the rent hereunder shall be abated. Lessee shall have no
claim against the Lessor for the value of any unexpired term of this lease.
Lessee is not prohibited from asserting any claim or claims for loss of
improvements to the leased premises, leasehold advantages and/or loss of
business opportunity against the United States.
14.02 Any other provisions of this lease notwithstanding, this lease
shall be subordinate to the provisions of any existing or future agreement
between Lessor and the United States, relative to the operation or maintenance
of the Airport, the terms and execution of which has been or may be required as
a condition precedent to the expenditure or reimbursement to Lessor of federal
funds for the development of the Airport or reverter clause in the deed of
trust and/or conveyance to the Parish of Iberia executed by the United States
of America, on the 6th day of May, 1969 filed for record on the 9th day of May,
1969 and recorded at conveyance book 539, folio 119, entry no.146092, records
of Iberia Parish, Louisiana.
ARTICLE XV. NOTICES, CONSENTS AND APPROVALS
15.00 Notices or other communications to Lessor pursuant to the
provisions hereof shall be sufficient if sent by registered or certified United
States mail, postage prepaid, addressed to the:
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IBERIA PARISH AIRPORT AUTHORITY
0000 XXXXX XXXXX
XXX XXXXXX, XXXXXXXXX 00000
and to Lessee as follows:
PRIDE AVIATION, INCORPORATED
0000 XXXXXX XXXXX
XXX XXXXXX, XX. 00000
ARTICLE XVI. COVENANT TO BIND LESSOR AND LESSEE
16.00 This lease and operating agreement and all of the covenants
and conditions contained herein shall be binding upon Lessor and Lessee and
upon their respective heirs, executors, administrators, successors and assigns.
ARTICLE XVII. SUBLETTING, ASSIGNMENT AND MORTGAGE
A. Subletting and Assignment
17.00 Any transfer, sublease or assignment (hereinafter in this
lease referred to as "transfer") of Lessee's interest in the leased premises,
or any portion thereof, must be approved by Lessor, in advance of its
consummation or execution. If Lessee grants a transfer, without obtaining prior
approval from Lessor, such act shall constitute a material breach of this lease
and grounds for its termination.
17.01 In the event Lessor consents to a transfer, such consent shall
not constitute a waiver of any other condition, term and covenant of this
lease. All such terms, conditions, or covenants shall apply to each and every
transferor, assignee, transferee, subtenant, or other person acquiring rights
and/or interests through Lessee.
17.02 Any document to transfer, sublet or assign the premises or any
part thereof, shall incorporate, directly or by reference, all provisions of
this lease.
17.03 Occupancy of the premises by a prospective transferor,
transferee, sublessee, assignee, or assignor, prior to approval of the
transfer, sublease or assignment by Lessor, shall be deemed an unauthorized
activity and shall constitute a breach of this lease.
17.04 In the event Lessee fails to cease, remove or prohibit an
unauthorized activity, after notice by Lessor, such failure shall constitute a
material breach of this lease and shall be grounds for termination.
17.05 Lessor agrees that it will not arbitrarily or unreasonably
withhold consent to a transfer.
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17.06 An application fee of $500.00 shall accompany all requests to
transfer, assign or sublease. This application fee is not refundable.
17.07 Lessor may reasonably withhold its consent to any transfer, if
any of the following conditions exist:
1. Lessee, or any of its successors or assigns, is in
default as to any term, covenant, or condition of
this lease, whether notice of default has or has not
been given by Lessee;
2. The prospective transferor or transferee has not
agreed, in writing, to keep, perform, and be bound by
all terms, covenants and conditions of this lease;
3. All terms, covenants and conditions of the transfer,
including the consideration therefor, of any and
every kind, has not been revealed, in writing, to
Lessor;
4. Any member of the local, state or federal government,
or any resident Commissioner of Lessor be admitted to
any share or part of this agreement or to any benefit
that may arise hereunder. This provision shall not
be constructed to extend to agreements make with a
corporation for the general benefit of any such
party.
17.08 In no event shall Lessor's consent to a tranfer, sublease or
assignment release Lessee from the obligations of this lease.
B. MORTGAGE
17.09 Any mortgage, pledge, hypothecation, encumbrance or
subordination (hereinafter in this lease referred to as "mortgage") of Lessee's
leasehold interest in the leased premises, or any portion thereof, must be
approved by Lessor, in advance of its execution. If Lessee grants a mortgage,
without obtaining prior approval from Lessor, such act shall constitute a
material breach of this lease and grounds for its termination.
17.10 No mortgage, pledge, hypothecation or encumbrance shall bear
against immovable property owned by the Lessor or Iberia Parish, Louisiana.
Lessee does not have, nor does this lease and operating agreement grant to it,
the authority, right, or privilege to mortgage lands, buildings or improvements
owned by Lessor or Iberia Parish, Louisiana. A mortgage, not approved by
Lessor, shall be deemed void and shall not effect Lessor's rights hereunder.
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17.11 Notwithstanding the provisions of Article XVII, paragraph
17.09, Lessor agrees, upon written request by Lessee, to execute its written
consent to a mortgage of Lessee interests in this leasehold to secure the
beneficial interest of a lender for the purpose of financing construction,
development, or operations on the airport upon and subject to the following
covenants and conditions:
1. Upon application for approval of a mortgage, Lessee
shall furnish Lessor a complete copy of the mortgage
and note to be secured thereby, together with the
name and address of the proposed holder thereof;
2. Said lender and all rights acquired by said lender
under said mortgage shall be subject to each and
every covenant, condition, and restriction set forth
in this lease and to all the rights and interests of
Lessor thereunder, except as otherwise provided;
3. In the event of any conflict between the provisions
of this lease and the provisions of any such
mortgage, the provisions of this lease shall govern
and control; and
4. Upon and immediately after the recording of a
mortgage affecting the leasehold interest, Lessee, at
its expense, shall cause to be recorded in the Office
of the Clerk of Court, Iberia Parish, Louisiana, a
written request by Lessor for notice of default or
any notice of seizure and/or sale under the mortgage
as provided by the statutes of the State of Louisiana
relating thereto.
17.12 Lessor agrees that it will not terminate this lease on default
or breach on the part of Lessee, if the lender under any mortgage to which
Lessor has given its consent, within sixty (60) days after service of written
notice on the lender by Lessor of its intention to terminate this lease for
such default or breach, shall:
1. Cure such default or breach, if the same can cured by
the payment or expenditure of money required to be
paid under the terms of this lease; and
2. Keep and perform all of the covenants and conditions
of this lease requiring the payment of an expenditure
of money by Lessee until such time as the security
shall be sold upon foreclosure pursuant to the
mortgage or shall be released or reconveyed
thereunder; provided, however, that if the lender
shall fail or refuse to comply with any or all of the
provisions of
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this paragraph, then and thereupon, Lessor shall be
released from its covenant of forebearance.
17.13 In the event of default not curable as aforementioned, lender
shall commence steps and proceedings for the exercise of the power of seizure
and sale under and pursuant to the mortgage and in the manner provided by law,
but assignee will first offer and Lessor shall have the option to purchase, all
rights, titles and interests in the security encumbered under said mortgage
directly from lender and without public sale for the outstanding balance due on
the note or notes secured by said mortgage.
17.14 In the event Lessor does not exercise its option to purchase
from the lender as provided above, then the prior written consent of Lessor
shall not be required and transfer or conveyance may occur under the following
conditions:
a. The transfer of the security at foreclosure sale
pursuant to judicial foreclosure or by an assignment
in lieu of foreclosure; or,
b. To any subsequent transfer by the lender if the
lender is an established bank, savings and loan
association or insurance company, and is the
purchaser at such foreclosure sale, provided that in
such event, the lender forthwith gives notice to
Lessor in writing of any such transfer, setting forth
the name and the express agreement(s) with the
transferee or transferor, the effective date of such
transfer, and the express agreement of the transferee
transferor assuming and agreeing to perform all of
the obligations under this lease, and submits to
Lessor a copy of the document or transfer.
17.15 Lessee, for itself, its subsidiaries, affiliates, associates,
representatives, successors, and assigns, as a part of the consideration of
this lease, hereby covenant and agree, as a covenant running with the land,
that:
1. No person on the grounds of race, color, creed, age,
sex, national origin or physical condition shall be
excluded from participation, denied the benefits or
be otherwise subjected to discrimination in the use
of said facilities:
2. That, in furnishing of services thereon, no person on
the grounds of race, color, creed, age, sex, national
origin or physical condition shall be excluded from
participation in, denied the benefits of, or
otherwise be subjected to discrimination:
3. That, Lessee shall use the premises in compliance
with all other requirements imposed by and pursuant
to Title 49, Code of Federal
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Regulations of the Department of Transportation and
the Civil Rights Act of 1964, as may be amended; and
4. That, in the event of a breach of any of the
non-discrimination covenants, Lessor shall have the
right to terminate the lease and to re-enter and
repossess said land and the facilities thereon, and
hold the same as if said lease had never been made or
issued.
ARTICLE XVIII. RIGHTS OF THE UNITED STATES GOVERNMENT
18.00 This lease shall be subordinate to the provisions and
requirements of any existing agreement between Lessor and the United States
relative to the development and maintenance of the airport.
(a) In the event any agreement between Lessor and the
United States relative to the development and maintenance of the airport
results in a total condemnation or expropriation of the leased premises for
public use or purpose, the term of this lease shall cease and terminate as of
the date title vests in the condemnor and all rentals and other payments shall
be paid up to that date, and Lessee shall have no claim against the Lessor for
the value of any unexpired term of this lease. Lessee is not prohibited from
asserting any claim or claims for loss of improvements to the leased premises,
leasehold advantages and/or loss of business opportunity against the United
States.
(b) In the event any agreement between Lessor and the
United States relative to the development and maintenance of the airport
results in a partial condemnation or expropriation of the leased premises for
public use or purpose, then Lessor and Lessee shall each have the right to
terminate this lease upon written notice to the other given at least thirty
(30) days prior to the date title vests in the condemnor and all rentals and
other payment shall be paid up to that date. Lessee shall have no claim against
Lessor for the value of any unexpired term of this lease. Lessee is not
prohibited from asserting any claim or claims for loss or improvements to the
leased premises, leasehold advantages and/or loss of business opportunity
against the United States.
(c) In the event that neither party shall elect to so
terminate this lease, Lessor, to the extent of the condemnation award, if any,
shall repair and restore the portion not affected by the taking so as to
constitute the remaining premises a complete architectural unit. Thereafter,
the rental to be paid by Lessee shall be adjusted according to the ratio that
the square footage of interior and exterior area remaining in the leased
premises bears to the former area, and all of the other terms of this lease
shall remain in full force and effect.
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18.01 Lessee agrees to comply with the notification of and review
requirements covered in Part 77 of the Federal Aviation Regulations in the
event any future structure or building is planned or alteration of any present
or future building or structure situated on the premises.
18.02 It is understood and agreed that nothing herein shall be
construed to grant or authorize the granting of an exclusive right within the
meaning of Section 308 of the Federal Aviation Act of 1958.
18.03 There is hereby reserved by Lessor, its successors and
assigns, for the use and benefit of the public, a right of flight for passage
of aircraft in the airspace above the surface of the premises hereby leased
together with the right to cause in said airspace such noise as may be inherent
in the operation of aircraft, now known or hereafter used for navigation of or
flight in the air, using said airspace for landing at, taking off from or
operating on the Airport, subject to applicable controlling flight
restrictions.
18.04 Lessee by accepting this lease expressly agrees for itself,
its successors and assigns, that it will not erect nor permit the erection of
any structure or object or permit the growth of any tree on the land leased
hereunder above a mean sea level elevation of 70 feet. In the event the
aforesaid covenant is breached, Lessor reserves the right to enter upon the
land leased hereunder and remove the offending tree or structure, all of which
shall be at the total expense of Lessee.
18.05 Lessee, by accepting this lease, expressly agrees for itself,
its successors and assigns, that it will not make use of the premises in any
manner which might interfere with the landing and taking off of aircraft from
the Airport, or otherwise constitute a hazard. In the event the aforesaid
covenant is breached, Lessor reserves the right to enter upon the premises
hereby leased and cause the abatement of such interference at the total expense
of Lessee.
18.06 This lease and all provisions hereof shall be subject to
whatever right the United States Government now has or in the future may have
or acquire, affecting the control, operations and regulation of said Airport.
18.07 The Lessee and any sublessee, transferee, subtenant,
subsidiary, affiliate, associate, successor or assign for whom consent to
acquire an interest in this leasehold, leased premises and/or privilege under
this operating agreement, is required by the Lessor, shall comply with the
Affirmative Action Plan Program requirements, if it maintains a business
located within Iberia Parish, Louisiana, and uses such business location in any
manner connected with his lease.
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18.08 This lease shall be subordinate to and subject to the terms,
conditions, restrictions, and other provisions of any existing permit, lease
and/or agreement between the Lessor and the United States of America and/or any
other local, state or federal agency, relative to the control, operation or
maintenance of the Airport, the execution of which has been or will be required
as a condition precedent to the operation or control of, or to the expenditure
of Federal funds for the Airport. Lessee agrees to be bound by such terms,
conditions, restrictions or provisions.
18.09 Lessee warrants that no improvements shall be erected, placed
upon, operated nor maintained within the premised, nor any business or other
activity conducted or carried on therein or therefrom, in violation of the
terms of this lease, or of any regulation, order of law, statute, bylaw, or
ordinance of a governmental agency having jurisdiction and any breach of said
warranty shall constitute a breach of this lease.
ARTICLE XIX. TERMINATION BY LESSOR AND WAIVER OF BREACH
19.00 In the event that Lessee shall fail to perform, keep and
observe any of the terms, covenants or conditions herein, Lessor may give
written notice to Lessee to use due diligence to correct such condition or
default, and if Lessee fails to correct such condition or fails to commence
action to correct within Thirty (30) days after receipt of such notice, or
fails to diligently pursue such action to correct after same has been commence,
Lessor may terminate this agreement by giving ten (10) days notice thereof.
19.01 No default on the part of the Lessee shall be deemed to
continue so long as Lessee shall have taken action to correct the same and
shall be diligently prosecuting such action.
19.02 In any case where Lessor shall be entitled hereunder to
terminate this lease agreement for failure of the Lessee to correct or cure a
default after due notice, Lessor may, as an alternative to termination of the
lease agreement, pay or perform the obligation imposed under this lease and
operating agreement for the account of and at the total expense of the Lessee
and the same shall be paid by Lessee as additional charges due under the lease.
19.03 Lessor may terminate this agreement and all of its obligations
hereunder by giving Lessee ten (10) days written notice upon or after filing by
Lessee of a voluntary petition in bankruptcy.
19.04 Lessor may terminate this agreement and all of its obligations
hereunder by giving Lessee sixty (60) days written notice upon or after failure
of Lessee to vacate or set aside the following:
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a. If involuntary proceedings in bankruptcy be
instituted against the Lessee and the Lessee is
thereafter adjudicated a bankrupt pursuant to such
proceedings;
b. If a court shall take jurisdiction of the Lessee
pursuant to proceedings brought under the provisions
of any Federal Reorganization Act; or
c. If a receiver of Lessee's assets be appointed.
19.05 Lessor may terminate this agreement and all of its obligations
hereunder by giving Lessee ten (10) days written notice upon the happening of
either or both of the following events:
a. If Lessee voluntarily abandons and
discontinue the conduct and operation of its service
at the Airport for a continuous period of
30 days; or
b. If Lessee abandons any of the premises leased to it
hereunder at any time, except when such abandonment
be caused by fire, flood, earthquake, war, strike or
other calamity beyond Lessee's control.
B. WAIVER OF BREACH
19.06 No waiver by Lessor of any of the terms, covenants,
or conditions hereof to be performed, kept or observed by Lessee, shall be
construed to be, or act as a waiver of any subsequent default of the terms,
covenants and conditions. The acceptance of rental by Lessor for any period or
periods after default of any of the terms, conditions, or covenants shall not
be deemed a waiver of any right on the part of the Lessor to cancel this
agreement for failure by Lessee to perform, keep or observe any of the terms,
covenants or conditions of this agreement.
ARTICLE XX. ENVIRONMENTAL MATTERS
Authority's Environmental Representations and Warranties.
20.00 Lessor represents and warrants to Lessee, to the best of its
knowledge, as follows:
a. That the Lessor has duly complied with, and the
premises is in compliance with the provisions of federal, state and local
environmental, health and safety laws, codes, ordinances, rules and/or
regulations promulgated thereunder, except as disclosed in the attached
environmental site analysis and report dated February 22, 1993 and annexed
hereto as Exhibit "B".
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b. That the Lessor has not received any notice, does not
know nor suspect, any facts which might constitute violations of any federal,
state or local environmental, health or safety laws, codes, ordinances, rules
and/or regulations promulgated thereunder, which relate to the use, ownership
or occupancy of the premises and is not in violation of any covenants,
conditions, easements, rights of way or restrictions affecting the premises or
any rights appurtenant thereto, except as disclosed in the attached
environmental site analysis report.
c. No emission, spill, release or discharge has occurred
except in accordance with a valid governmental permit, license, certificate or
approval, whether on the premises, or sites adjacent to the premises into or
upon (i) the air, (ii) soils or improvements, (iii) surface water or ground
water, or (iv) the sewer, septic system or waste treatment, storage or disposal
system servicing the premises, involving any toxic or hazardous substances or
wastes used, stored, generated, treated or disposed on or from the premises,
except as disclosed in the attached environmental site analysis report.
d. No complaint, order, directive, claim, citation or
notice has been filed by any governmental authority or any other person or
entity with respect to (i) air emissions, (ii) spills, releases or discharges
to soils or any improvements located thereon, surface water, ground water or
the sewer, septic system or waste treatment, storage or disposal systems
servicing the premises, (iii) noise emissions, (iv) solid or liquid waste
disposal, (v) the use, generation, storage, transportation or disposal of
environmental, health or safety matters affecting Lessor, the premises, and any
improvements located thereon, except as disclosed in the attached environmental
site analysis report.
e. Prior to the execution of this Lease, or occupancy of
the premises, whichever is later, no reported occurrence of any hazardous
discharge (as defined in Section 20.03 of this Lease Agreement) except in
accordance with a valid governmental permit, license, certificate or approval
or an environmental complaint (as defined in Section 20.04 of this Lease
Agreement), except as disclosed in the attached environmental site analysis
report.
x. Xxxxxx has provided Lessee with true, accurate and
complete information pertaining to the environmental history of the premises.
Throughout the term of this Lease, Lessor shall promptly furnish to Lessee
true, accurate and complete copies of all sampling and test results obtained
from all environmental and/or health samples and tests taken at and around the
premises including all sampling and tests results taken by any and all prior
occupants of the premises.
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20.01 Lessee's Environmental Indemnification of the Lessor. Lessee
agrees to defend, indemnify and hold harmless Lessor from and against any and
all claims, suits, demands, losses, liabilities, damages, and/or judgments,
costs and expenses (including, without limitation, any and all testing and
cleanup costs and attorneys' and consultants' fees) (hereinafter referred to as
"claims") arising directly or indirectly by reason of a hazardous discharge or
environmental complaint or any violation of an environmental protection, health
or safety law regulation, or requirement governing Lessee, its business
operations, assets or equipment, including without limitation any claims:
a. arising directly or indirectly out of, or relating to, any
investigatory, removal or remedial action involving Lessee's facility or any
governmental authority having jurisdiction under any law; or
b. arising directly or indirectly on account of, or in connection
with, any claim or injury or actual injury to any person or property, relating,
regarding, or in any way pertaining to:
(1) any of Lessee's obligations under the provisions of
this lease,
(2) the existence, treatment, storage, disposal, release,
spill, generation, removal, manufacture or other handling of any hazardous
substances or hazardous wastes on the premises by Lessee caused by or the
result of actions or operations of Lessee, or arising in the course of or
relating to Lessee's business, during the lease term provided that the
foregoing indemnity shall not apply to any hazardous discharge or environmental
complaint caused by or related to the Lessor, prior owners, prior operators,
prior occupants or prior tenants of the premises, or which cannot be shown to
have been caused by or the result of actions or operations of Lessee or arising
in the course of or relating to Lessee's business or Lessee's use of the
premises.
20.02 In case any action shall be brought against or commenced
against the Lessor, and in which Lessee may be required to indemnify the Lessor
in whole or in part pursuant to Section 20.01, the Lessor shall have the right
to assume the defense thereof, including the employment of counsel. In cases
in which the Lessor chooses not to exercise its right to assume its own
defense, the Lessor shall have the right to approve Lessee's choice of counsel,
which approval shall not be unreasonably withheld. In the event that Lessee
assumes the defense of the Lessor subsequent to the Lessor's engagement of
defense counsel (it being understood and agreed that the Lessor shall give
Lessee ten (10) days prior notice before it engages defense counsel), then
Lessee shall, upon demand of the Lessor, immediately reimburse the Lessor for
all reasonable legal fees, costs and disbursements expended or incurred by the
Lessor prior to the date Lessee assumed the
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defense thereof.
20.03 For purposes of this indemnification, the term "Hazardous
Discharge" shall include any emission, seepage, leakage, spill, discharge,
release or threatened release of any toxic or hazardous substances (as defined
in 42 U.S.C. 9601 et seq.) or hazardous wastes (as defined in 40 C.F.R. 260)
at or from the premises into or upon (i) the air, (ii) surface and subsurface
soils or any improvements located thereon, (iii) surface water or groundwater,
or (iv) the sewer, septic system or waste treatment, storage or disposal system
servicing the premises.
20.04 For purposes of this indemnification, the term "Environmental
Complaint" shall include any complaint, order, directive, claim, citation or
notice by any governmental authority or agency or any person or entity with
respect to (i) air emissions, (ii) spills, releases, or discharges to surface
and subsurface soils or improvements located thereon, surface water,
groundwater, or the sewer, septic system or waste treatment, storage or
disposal systems servicing the premises, (iii) noise emissions, (iv) solid or
liquid waste disposal, (v) use, generation, storage, transportation or disposal
of toxic or hazardous substances or hazardous wastes (as both said terms are
defined hereinabove) or (vi) other environmental, health or safety matters
affecting Lessee's or its operations that occur after the commencement of
Lessee's use of the premises.
20.05 Lessee agrees that the Lessor may at its discretion,
conduct such environmental inspections, audits and test (including soil borings
and/or ground water tests) as it shall deem necessary or desirable in order to
evaluate the environmental status of the premises as it exists. Any and all
reports of said inspections, audits and tests conducted by the Lessor, prior to
execution of this Lease and Agreement, shall define the Environmental Baseline.
20.06 Without limiting any of Lessee's obligations, Lessee
agrees specifically with respect to any contaminants and levels of
contamination identified in the Environmental Baseline as defined in Section
20.05, Lessee will take appropriate steps, at Lessee's sole cost and expense,
to accomplish any necessary removal, decontamination, site remediation,
restoration work, containment and/or monitoring under any requirement of any
governmental entity having jurisdiction over the premises now or at any time
during the lease term.
20.07 Without limiting any of Lessee's obligations, Lessee agrees
specifically with respect to any contaminants and levels of contamination in
excess of those identified in the Environmental Baseline as defined in Section
20.05 and caused by or as a result of actions or operations of Lessee or
arising in the use of or relating to Lessee's business during the lease term,
Lessee will take appropriate steps, at
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Lessee's sole cost and expense, to accomplish any necessary removal,
decontamination, site remediation, restoration work, containment and/or
monitoring under any requirement of any governmental entity having jurisdiction
over the premises. The aforementioned indemnity provisions shall service until
all such matters included or referred to herein have been determined to have
prescribed by law.
20.08 Environmental Representations and Warranties.
The Lessor represents and warrants to the Lessee, to the best of its
information, knowledge and belief, as follows:
a. The Lessor acknowledges that it has received a final report of
the Site Survey and Assessment for the Iberia Parish Airport Authority dated
February 22, 1993 and has examined same. The Lessor shall furnish Lessee the
report of Subra Company Environmental Consultants. The Lessor acknowledges that
it may exercise its rights to conduct additional sampling, tests, studies and
examinations as contemplated by Section 20.05 hereof. The Lessor shall fully
inform Lessee of the results of such sampling tests, studies and examination.
c. Throughout the lease term, Lessee shall not undertake or
permit any environmental activity other than (i) in compliance with all
applicable laws, (ii) in such a manner as not to present a significant present
or potential health risk to the Lessor. Lessee shall immediately and fully
inform the Lessor of any such breach. If Lessee shall breach the
representation provided in this section, then, in addition to any other rights
and remedies which may be available to the Lessor under this lease or otherwise
at law or in equity, Lessor may require Lessee to take all actions, or to
reimburse the Lessor for the costs of any and all action taken by the Lessor as
are necessary to comply with all applicable laws and to xxxxx any significant
present or potential health risk with respect to any environmental activity
conducted or permitted or any Hazardous Substances or Hazardous Wastes (as both
said terms are defined hereinabove) present at the premises. Lessee's
obligation under this section shall survive the expiration or earlier
termination of this Lease.
20.09 No portion of the premises may be used for the subsurface
disposal or storage of radioactive material and/or for the disposal or
subsurface storage of hazardous materials as such term may be defined by the
regulations of the U.S. Environmental Protection Agency, or any local or state
authority. Any and all hazardous material handled or temporarily stored at or
on the premises shall be contained and used in accordance with all applicable
laws and regulations.
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ARTICLE XXI. SURRENDER OF PREMISES
21.00 Lessee agrees, that upon the expiration of the terms of this
agreement or cancellation thereof, to vacate the leased premises. All buildings
and improvements thereon will be delivered to the Lessor in good condition,
reasonable wear and tear accepted.
21.01 Lessee shall be allowed to remove improvements and fixtures
not of a permanent nature so long as the leased premises is not damaged or
defaced by said removal.
21.02 If Lessee fails to remove fixtures and improvements more than
thirty (30) days after the expiration of the lease, Lessor shall remove same at
Lessee's cost.
21.03 All improvements of a permanent nature made by Lessee during
the primary term of the lease or any extension thereof shall become property of
the Lessor at the expiration of the lease and at no cost to Lessor.
ARTICLE XXII. PRIOR AGREEMENTS AND AMENDMENTS
22.00 Lessor and Lessee agree that this lease and operating
agreement contains all that is applicable to operation of a heavy aircraft
maintenance operator at Acadiana Regional Airport and that all other prior
agreements relative thereto are ineffective.
ARTICLE XXIII. CAPTIONS
23.00 Lessor and Lessee agree that all headings in this lease and
operating agreement are used solely for convenience and shall be disregarded in
the construction of the agreement.
ARTICLE XXIV. COVENANTS AND CONDITIONS
24.00 Lessor and Lessee agree that each provision of this lease and
operating agreement which is performable by the Lessee and Lessor is herewith
deemed a covenant and a condition of this lease and operating agreement.
ARTICLE XXV. VENUE
25.00 Both parties agree that this agreement shall be construed
pursuant to the laws of the State of Louisiana and the venue for returns at law
or equity upon or affecting this lease and agreement shall be: Iberia Parish,
Louisiana.
ARTICLE XXVI. PARTIAL INVALIDITY
26.00 If any section, clause, sentence, word, or provisions of this
lease or the application thereof to any party or circumstances shall, to any
extent, be or become invalid or illegal, and such provision shall thereby
become null and void, the remainder of this lease shall not be
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affected thereby, and each remaining provision of this lease shall be valid and
enforceable to the fullest extent permitted by law.
THIS DONE AND SIGNED at New Iberia, Louisiana on this 28th day of December
1994.
WITNESSES: IBERIA PARISH AIRPORT AUTHORITY
/s/ M. I. LASSERRY /s/ XXXXX X. XXXXXX
------------------------ ----------------------------------
/s/ XXXXXX X. XXXXXX BY: XXXXX X. XXXXXX, CHAIRMAN
------------------------
PRIDE AVIATION, INCORPORATED
/s/ M. I. LASSERRY /s/ XXXXX XXXX
------------------------ ----------------------------------
/s/ XXXXXX X. XXXXXX BY: XXXXX XXXX, CHAIRMAN
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