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HomeMy WebLinkAboutRes.2870.02-02-2015BILL NO. 15-21 RESOLUTION NO. 2870 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT WITH NEMESIS FLIGHT OPS., LLC, AT THE CAPE GIRARDEAU REGIONAL AIRPORT BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Airport Ground Lease, with Nemesis Flight Ops., LLC, for the rental of hangar parcel space at the Cape Girardeau Regional Airport, in the City of Cape Girardeau, Missouri. The Agreement shall be in substantially the form attached hereto as Exhibit A, which document is hereby approved by the City Council, with such changes therein as shall be approved by the officers of the City executing the same. PASSED AND APPROVED THIS 2nd day of February;] 2015. Mark , Ah?(ot/X./, Mayor Pro Tempore ATTEST: A-,,dl,� &-rXV& Gayle L. Conrad, City Clerk AIRPORT GROUND LEASE This Agreement made and entered into this day of 2015, by and between the City of Cape Girardeau, Missouri, a Municipal Corporation, hereinafter called "Lessor" and Nemesis Flight Ops, a Missouri limited liability company hereinafter referred to as `'Lessee". For and in consideration of the mutual covenants, terms and conditions contained herein, the parties agree as follows: PREMISES. Lessor hereby leases to Lessee the following described property a part of the Cape Girardeau Regional Airport: That part of the Northwest Quarter of Section 36, Township 30 North, Range 13 East of the Fifth Principal Meridian, County of Scott, State of Missouri, more particularly described as follows: Commence at the Southwest Corner of the Main Terminal Building of the Cape Girardeau Regional Airport: thence South 00000'00" East. 235.41 feet; thence North 90°00'00" East; 520.26 feet: thence North 00°00'00" East, 42.94 feet, to the Southwest Corner of the Fisher lease tract; thence with the south line of said tract, North 89°36' 13" East, 145.46 feet, to the point of beginning; thence North 00°21'47" West, 195.00feet; thence North 89038'l 3" East, 161.00 to the point of beginning and containing 31,395 square feet, more or less as shown on Plat dated 6/25/07 prepared by Koehler Engineering attached hereto as Exhibit A. Together with the right of ingress and egress over adjoining streets, alleys and taxiways to include but not limited to the access to John E. Godwin Dr to the north as depicted on Exhibit A which is incorporated herein by reference and to insure ready access to taxiways and runways of the said Cape Girardeau Regional Airport for planes stored and kept in the structure to be erected thereon. 2. TERM. The original term of this agreement shall be twenty-five (25) years and shall commence on the 1 S` day of February, 2015 and shall expire on the 31 S` day of January, 2041. Lessee shall have the option to renew this lease on the same terms and conditions for four (4) additional terms of five (5) years each by serving written notice of its election to renew upon the Lessor at least ninety (90) days prior to the expiration of the existing term. If the four (4) five (5) year options are exercised upon expiration, Lessee shall then have the option of negotiating with Lessor for a separate and new lease for the premises. 3. RENTAL. Lessee shall pay Lessor annually the rental amount as hereinafter provided, on or before the 10`h day of the receipt of a statement for the same rendered -to Lessee by the Lessor. For the, first five (5) years of the term of this lease the annual rental amount shall be Five Thousand Six Hundred Fifty -One Dollars and Ten Cents ($5,651.10) which is the product of $0.18 per square foot times the number of square feet leased herein (31,395 square feet). Page 1 of 8 For each successive five (5) year period during the remainder of this agreement, the rental amount shall equal the rental amount for the preceding twelve (12) month period plus percentage of said preceding rental amount. Such percentage shall be the percentage increase in the All Urban Consumer Price Index for the preceding five (5) year period (for which that data is available), not to exceed three (3) percent per year. All payments are to be made at the office of the City Collector of the city of Cape Girardeau or at such other place as Lessor may direct. 4. USE OF THE PREMISES. The premises are to be used for the purpose of constructing and maintaining a hangar for airplanes to be owned and operated hereunder and such use to include normally related activities including but not limited to office and break facilities, storage and parking and other reasonable uses related to Lessee's activities. Lessee shall not use or permit the use of all or any portion of the leased premises in any other manner than herein set forth, without the prior written consent of Lessor. 5. UTILITIES. Lessee shall assume and pay for all costs and charges for utility services furnished to Lessee during the term of this lease, and Lessee shall have the right to connect to any and all storm and sanitary and storm sewers or other drainage facilities reasonably required for a structure of the type anticipated by this agreement, together with water, gas, electrical and phone services are available to the property at or adjacent to the boundary lines thereof and are available for connection without further charge or assessment save and except ordinary monthly recurring charges for service and ordinary connection fees and deposits to outside services such as phone, cable and electricity. CUSTODIAL SERVICES. Lessee agrees to provide the necessary materials, equipment and labor to provide all necessary janitorial and custodial services, and to maintain the premises in a clean, safe, orderly, and sanitary condition. Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal of all trash and other refuse caused by its operations under this lease. MAINTENANCE AND REPAIR. Lessee shall at its sole cost and expense, keep and maintain the demised premises, all improvements, additions or alterations thereto, equipment and landscaping constructed or installed by Lessee upon the demised premises, in first class condition, which condition shall at all times be based on a standard of care reflecting prudent property management, reasonable wear and tear excepted. INGRESS AND EGRESS. As set forth in Section 1, Lessor shall provide a right of ingress and egress to the demised premises for the Lessee, its officers, employees and agents. Such access shall be maintained a daily basis absent force majeure or emergency beyond Lessor's control. Such access shall be maintained and provided during periods of heavy use including air shows, fly -ins and the like. It is provided, however, that such access will be provided within the guidelines of Federal Aviation Regulations and FAA Advisory Circulars and such access may be denied during and period of FAA coordinated, approved, or directed airport closure. Page 2 of 8 9. IMPROVEMENTS. In the event Lessee desires to construct buildings or facilities on the demised premises, Lessee shall submit to Lessor, final plans, specifications and architectural renderings prepared by registered architects and engineers. Lessee shall hold the Lessor harmless and reimburse it for any and all expenses of any nature whatsoever arising out of any claim from said improvements. Lessee agrees not to construct any buildings or facilities on the demised premises without prior written consent of Lessor; however such approval shall not be unreasonably withheld. Lessee shall keep the real estate leased hereunder free and clear of any and all liens or encumbrances of any kind in any way arising out of any such construction. In the event any buildings or facilities are constructed upon the premises, Lessee shall purchase and maintain insurance on said buildings or facilities against damage or loss by fire or risk of a similar nature which are on or shall be customarily covered under standard policies of fire insurance having standard extended coverage endorsements. In the event any buildings or facilities constructed upon the demised premises are totally destroyed by fire or other casualty loss, Lessee shall have the option of either restoring the buildings or facilities and continuing under the terms of this lease, or terminating this lease as hereinafter provided. At the termination of this lease for any reason, except as hereinbefore provided, Lessor has the first option to purchase all real property improvements at 75% of the Fair Market Value of the improvements, as set by a local appraiser to be selected mutually by the parties; or Lessor may require Lessee to remove said improvements and restore the land substantially to its original condition, all at Lessee's expense. Lessor shall give written notice to Lessee of its decision within thirty (30) days of termination of the lease. If the Lessor elects to not purchase the said improvements or request their removal by the Lessee, the Lessee may, within sixty (60) days of mailing of the written notice from Lessor, a) negotiate with Lessor for a separate and new lease for the premises, b) sell the said improvements to another party, in which case the purchaser will either be subject to removing the improvements or attempting to negotiate a new lease with Lessor, or c) remove said improvements and restore the land substantially to its original condition, all at Lessee's expense. In the event Lessee has not performed any of the above options within one hundred twenty (120) days after the date of mailing of the written notice from Lessor, Lessor may retain as its sole property all real property improvements which have been constructed by Lessee, as well as all remaining personal property, but Lessee shall have the right to lease the improvements from the Lessor at a Fair Market Value rate. During periods referred to in this section, Lessee shall continue to be liable for rent at the regular monthly rate. Further, upon termination of this lease for any reason, Lessor shall have lien upon and against all of the Lessee's property, real and personal, and located on the lease premises, for any sums from Lessee. Page 3 of 8 10. RIGHT OF ENTRY. Lessor shall have at all reasonable times during business hours, the full and unrestricted right to enter the leased premises for the purpose of inspection, and for the purpose of doing any and all things which it is obligated or has a right to do under this agreement or by law. 11. TAXES. Lessee shall pay personal property taxes which may be assessed against equipment, merchandise or other personal property owned or used by Lessee located on the demised premises. 12. REHABILITATION ACT REQUIRMENTS. Lessee shall operate and maintain its facilities in accordance with the applicable requirements of Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. 794) and will assure that no qualified handicapped person shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination, including discrimination in employment under any program or activity that receives funds or benefits from a Federal Grant. Lessee further assures that it shall comply with the requirements imposed on it by or pursuant to 49 C.F.R., Part 27. 13. NON DISCRIMINATION. To the extent that Lessee shall engage in any activities covered by the provisions cited herein: Lessee shall not, on the grounds of race, color, creed or national origin, discriminate or permit discrimination against any person or group of persons in any manner prohibited by Title VI of the Civil Rights Act of 1964, and Part 21 of the Regulations of the Office of the Secretary of Transportation in the use of the leased premises. Lessor reserves the right to take such action as the United States Government may direct to enforce this covenant. The 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 ground of race, creed, color, national origin, or sex be excluded from participating in any employment activities covered by 14 CFR Part 152, Subpart E. The Lessee assures that no person shall be excluded on the 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 sub - organizations 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. It is understood and agreed that nothing herein contained 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. Lessee agrees to furnish service on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED, that Lessee may make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. Page 4 of 8 14. ASSIGNMENT AND SUBLEASE. Lessee shall have the right, with the prior written consent of Lessor, to assign this lease, or to sublease any portion of the demised premises, but in such even Lessee shall remain liable to. Lessor for the remainder of the term of the lease to pay to Lessor any portion of the rent and fees provided for herein upon failure of the assignee or sub lessee to pay the same when due. Said assignee or sub -lessee shall not assign or sublease without the prior written consent of Lessor and Lessee. Any such assignment by Lessee shall contain a clause to this effect. Lessee hereby agrees that any sublease or assignment shall be solely for the same general nature and purposes as specified herein. 15. NO WAIVER OF FUTURE BREACH. The failure of Lessor or Lessee to insist, in any one or more instances, on a strict performance of any of the terms or the conditions of this Lease, or to exercise any right herein contained, shall not be construed as a future waiver or a relinquishment of the provisions or right, but the same shall continue and remain in full force and effect. The receipt by Lessor of rent, with knowledge of the breach of any term or condition hereof, shall not be deemed a waiver of the breach and no wavier by Lessor of any provision hereof shall be deemed a waiver of the breach and no waiver by Lessor of any provision hereof shall be deemed to have been made unless expressed in writing and signed by Lessor. Should Lessor at some time consent to an assignment of this Lease or to a sublease of the whole or any part of the demised premises, no further assignment and no further sublease shall be made without the express consent in writing by Lessor. None of the terms or conditions of the Lease shall be altered, waived, or modified in any manner except by written instrument executed by both parties. 16. INDEMNIFICATION. Lessee agrees to indemnify, defend and hold harmless the Lessor from all claims, actions, suits, and demands because of bodily injury, including death, and because of damages to property of losses which may arise out of or result from Lessee's operations or use of the demised premises whereof such operations or use are by Lessee, its agent, employee or anyone directly or indirectly employed by Lessee. Lessee shall procure and maintain in effect for the term of this Agreement, liability insurance in an amount no less than $100,000.00 for one person and $1,000,000.00 for any one occurrence involving injury, including death, to more than one person, with property damage insurance of not less than $100,000.00 for any one occurrence. In addition, Lessee shall procure hanger keepers liability insurance for aircraft in the custody of Lessee on the demised premises. If, however, the Sate of Missouri raises the liability limits for municipalities contained in Section 537.600 et seq., revised statutes of Missouri, or elsewhere, Lessee shall increase its liability insurance to an amount equal to those increased liability limits. 17. LESSEE'S RIGHT OF TERMINATION. Lessee shall have the right to terminate this lease upon the happening of one or more of the following events: A. The permanent abandonment of the Airport, B. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport, or nay substantial part thereof, in such a manner as to substantially restrict Lessee's use of the premises for a period of forty-five (45) days, Page 5 of 8 C. Issuance by any Court of competent jurisdiction of any injunction in any way preventing or restricting the use of the Airport and the remaining in force of such injunction for a period of at least forty-five (45) days, D. The default by Lessor in the performance of any covenant or agreement herein required to be performed by Lessor, and the failure of Lessor to remedy such default. Lessee may exercise the right of termination by written notice to Lessor at any time within thirty (30) days after any of the events mentioned in the preceding subparagraphs (A) through (D) above. In the vent of such a termination under this section, Lessor and Lessee shall negotiate in good faith for the purchase of the improvements placed on the premises by Lessee and in the event of failure to reach agreement on such terms within one hundred twenty (120) days, the Lessee shall have an additional one hundred twenty (120) days to remove such improvements. Failure of the Lessee to so remove the improvements during the period provided shall result in all right title and interest therein to become the property of Lessor. 18. LESSOR'S RIGHT OF THERMINATION. This lease shall be subject to termination by Lessor upon the happening of any one or more of the following events: A. Lessee shall be in arrears in the payment of rent for a period of thirty (30) days after the time such payment shall be due and the receipt of ten (10) days written notice of such delinquency, B. Lessee shall make a general assignment for the benefit of creditors, C. Lessee shall file a voluntary, or have filed against it an involuntary, petition in bankruptcy, provided such petition whether voluntary or involuntary shall not be dismissed within fifteen (15) days after it is filed, D. Lessee shall abandon the demised premises, E. Lessee shall discontinue its use of the premises for a period of sixty (60) days, F. Lessee shall default in the performance of any of the other covenants, agreements and conditions required to be kept and preformed by lessee, and such default continue for a period of thirty (30) days after receipt of written notice from Lessor of said default. G. Lessee shall violate any portion of the "Cape Girardeau Regional Airport Rules and Regulations" in effect at any time during the term of this lease and continue in default for a period of sixty (60) days after written notice thereof. Lessor may exercise the right of termination provided for herein by written notice to Lessee of its intention to terminate In the event of termination Lessor may take possession of the demised premises upon the effective date of said termination. In the even Lessor shall take possession of the demised premises. 19. NOTICES. Any notice or other communication to Lessor or Lessee referred to in the this lease agreement shall be deemed validly given, served and delivered upon deposit in the Page 6 of 8 United States Mail, registered and with proper postage and registration fee prepaid, addressed as follows: LESSOR: City Clerk City Hall 401 Independence P.O. Box 617 Cape Girardeau, Missouri 63702-0617 LESSEE: Mr. Shannon Davis Nemesis Flight Ops, LLC 429 Broadview St. Cape Girardeau, MO 63701 Page 7 of 8 20. PARTIES BOUND. All of the terms, covenants and conditions herein contained shall be binding upon and shall inure to the benefit of the parties, their successors, heirs, executors, administrators and assigns. IN WITNESS WHEREOF, the parties here to have caused this agreement to be executed as of the day and year first above written at Cape Girardeau, Missouri. Gayl . Conrad ly City Clerk LESSOR CITY OF COE 91RARDEAU, MISSOURI Cott A. Meyer City Manage LESSEE Nemesis Flight Ops, LLC Sh na non Davis Page 8 of 8