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HomeMy WebLinkAboutRES.2520.03-15-2010BILL NO. 10-35 RESOLUTION NO. a�a O A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR USE OF THE CAPE GIRARDEAU REGIONAL AIRPORT FACILITIES WITH HYANNIS AIR SERVICE, INC., D/B/A CAPE AIR 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 Agreement for Use of the Cape Girardeau Regional Airport Facilities with Hyannis Air Service, Inc., d/b/a Cape Air. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS �i/ DAY OF 20 %ll ATTEST: ? e 6.wvp. -"Nb B. Knudtson, Mayor Gayle Cape Girardeau Rellional Airport HYANNIS AIR SERVICE INC, d/b/a/ CAPE AIR. AGREEMENT FOR USE OF THE CAPE GIRARDEAU REGIONAL AIRPORT THIS AGREEMENT, dated 33 /(c &D by and between the CITY OF CAPE GIRARDEAU, MISSOURI, a municipal corporation, (Lessor) and HYANNIS AIR SERVICE INC, d/b/a CAPE AIR, (Lessee). WHEREAS, Lessor owns and operates a public airport designated as CAPE GIRARDEAU REGIONAL AIRPORT (Airport); and WHEREAS, Lessee is engaged in the business of air transportation with respect to persons, cargo and property, and desires to obtain the right and privilege of using certain of the Lessor's Airport Facilities; NOW, THEREFORE, for and in consideration of the rents, covenants and agreements provided for and contained herein, the parties agree as follows: ARTICLE I. GRANT OF RIGHTS WITH RESPECT TO AIRPORT FACILITIES Lessor grants to Lessee and Lessee takes from Lessor the right to use Lessor's Airport Facilities in common with others to whom similar rights have or may be granted and subject to rules and regulations prescribed by the Airport Manager of Lessor. The right granted shall include the right to transport, load and unload persons, cargo, property and mail, to, from and at the Airport at the gate position designated by the Airport Manager and to conduct such other activities which are reasonably necessary to the proper conduct and operation by the Lessee of the business of operating an air transportation business. ARTICLE II. TERM OF AGREEMENT The term of this agreement shall commence November 8, 2009, and continue until November 7, 2011, unless canceled earlier as hereinafter provided. ARTICLE III. AIRPORT FEES TO BE PAID BY LESSEE 1. Lessee agrees to pay Lessor for the right to use Lessor's Airport Facilities, other than building space occupied by Lessee as provided in Article VIII, a landing fee of fifty-eight cents ($0.58) per 1,000 pounds of the aircrafts' gross landing weight for each landing (using the manufacturer's published maximum weight), with a 15,000 pound minimum, except that training, testing and courtesy flights by Lessee will incur no landing fee. 2. Lessee agrees to pay Lessor Nine Hundred Dollars and No Cents ($900.00) per month for the right to hangar their aircraft nightly at the Cape Aviation hangar facility. Lessor agrees to tow the Lessee's aircraft at times specified on a day to day basis. 3. Lessee agrees to pay Lessor an in -to -plane fee of $0.60 per gallon for all fuel sold and pumped into Lessee's aircraft, in addition to the regular fuel cost. 4. No additional fees shall be charged the Lessee unless otherwise provided for herein or otherwise mutually agreed upon by written contract between the parties and shall be deemed to be in lieu of any and all licenses or permit fees which the Lessee might otherwise be required to pay for the use of said landing field and Terminal Facilities. ARTICLE IV. MAINTENANCE AND OPERATION BY LESSOR OF AIRPORT FACILITIES 1. Lessor will maintain and operate the Airport Facilities in compliance with FAA Part 139. 2. Lessor shall not be liable to Lessee for any loss of revenue to Lessee resulting from Lessor's acts, omissions or negligence in the maintenance and operation of the Airport and its facilities. ARTICLE V. RULES AND REGULATIONS 1. Lessee agrees to observe and obey all applicable State, Federal and Municipal statutes, ordinances or regulations, including applicable Airport regulations. 2. Lessee agrees that advertising signs of Lessee on the Airport and the location thereof shall be subject to the approval of the Airport Manager, and such approval shall not be unreasonably withheld. ARTICLE VI. PROCUREMENT OF SUPPLIES Lessee, in connection with the exercise by it of any of the rights granted to it hereunder shall have the full right to procure at the Airport, or elsewhere, all materials, equipment, food, supplies and products, except fuel, from any person of its own choice, and no charges will be made directly or indirectly against Lessee for any right or privilege granted to Lessee by this agreement or against its furnishers of services or supplies, except as provided in the following paragraph. 2 ARTICLE VII. RIGHT OF LESSEE TO REMOVE PROPERTY Lessee shall be entitled during the term of this agreement and for a period of ten (10) days after its termination to remove from the Airport, or any part thereof, all equipment and trade fixtures placed, installed or constructed thereon by it, provided, however, that all buildings from which any property is so removed shall be restored to their original condition, normal wear and tear excepted. ARTICLE VIII. RENTAL OF SPACE IN TERMINAL BUILDING 1. During the term of this agreement, Lessor leases to the Lessee approximately 440 square feet of space in the Terminal Building identified on Exhibit A attached hereto. For said exclusive space, Lessee agrees to pay Lessor for the herein stated period the sum of $431.20 per month. 2. Lessee, its employees, passengers, guests, patrons and invitees, in common with others, shall have the right to the use of all public space in the Terminal Building or any addition thereto, including, without limiting the generality hereof, its lobby, waiting rooms, restrooms and other public and passenger conveniences. ARTICLE IX. COST OF COMPLIANCE WITH FAA PROGRAMS Lessee hereby acknowledges that the Lessor is required by TSA Part 1542 to adopt and put into use facilities and procedures designed to prevent and deter persons and vehicles from unauthorized access to air operations areas. Lessee will execute its responsibility as set forth in the Airport Security Program to support the Lessor's requirements under TSA 1542. Lessee has on file with the Federal Aviation Administration an approved airline security program in accordance with TSA 1542. ARTICLE X. PAYMENT OF RENTALS AND FEES Lessee shall, within five (5) days following the end of each calendar month, transmit to Lessor a true report giving the total number of aircraft landings, maximum gross landing weight of each landing aircraft, and the total number of enplaning passengers for the month; and Lessor shall, following receipt of such data, transmit to Lessee a statement of the rentals, fees and charges incurred by Lessee during said month, and the same shall be paid by Lessee within twenty (20) days after receipt of such statement. ARTICLE XI. INSURANCE 1. Lessee shall procure and maintain in full force and effect during the term of this agreement a policy or policies of public liability and property damage insurance from 3 a company or companies authorized to do business in the State of Missouri, with minimum coverage of $1,000,000.00 per seat per occurrence of the largest of Lessee's aircraft landing at the Cape Girardeau Regional Airport, combined single limit for bodily injury or death of any person or persons, or for loss by damage or injury to property in any one occurrence, whereby the issuing insurance company agrees to pay the loss, including the expenses of defending suits, from any liability imposed by law upon the Lessee for damages on account of any bodily injuries, death or damage to property alleged to have been suffered by any person or persons as a result of the use of the leased premises by the Lessee. The Lessor shall be named as an additional insured and the policy shall provide that in the event of cancellation, written notice of such cancellation shall be given to District at least thirty days prior to the effective date of such cancellation. In no event, however, shall the insurance required herein be less than the sovereign immunity limits established by Section 537.610 of the Revised Statues of Missouri, in effect for that year. 2. The insurance herein referred to shall be issued by an insurance company to be approved by the Lessor, which approval shall not be unreasonably withheld; all premiums for such insurance shall be paid by the Lessee and a Certificate of Insurance evidencing such coverage shall be filed with the office of the Lessor. ARTICLE XII. INDEMNITY -FORCE MAJEURE Lessee shall indemnify and hold harmless and defend the Lessor, its officers, agents and employees from and against any and all claims, demands, damage, loss or liability of any kind or nature, costs or expenses, including attorney's fees and witness costs which may be asserted by any person or persons for or on account of any injuries or death or damages to property sustained because of or arising out of activities of Lessee, its officers, agents or employees provided for herein, whether or not there is concurrent active or passive negligence on the part of the Lessor, but excluding liabilities due to the sole negligence or willful misconduct of Lessor. Lessor shall not be liable for its failure to perform the Agreement or for any loss, injury, damage or delay of any nature whatsoever resulting therefrom caused by any Act of God, fire, flood, accident, strike, labor dispute, riot, insurrection, war or any other cause beyond Lessor's control. ARTICLE XIII. BREACH OF SECURITY In the event that the Lessor is assessed a fine by the Federal Aviation Administration under the TSA Part 1542 for breach of security by an unauthorized employee of Lessee at Cape Girardeau Regional Airport entering into a restricted area of Cape Girardeau Regional Airport, or is fined for an unsecured gate or door in use by Lessee or access point in use by Lessee to a restricted area, Lessee shall fully reimburse the Lessor for the amount of such fine. 0 ARTICLE XIV. TERMINATION BY LESSOR In the case of happening of one or more of the following events, this lease may be terminated by Lessor: a. Lessee shall voluntarily abandon the business of transporting, in regularly scheduled service to and from the airport, persons, cargo, mail and property, by aircraft, for a period of thirty (30) days; b. Default shall be made by Lessee in the observance or performance of any covenant or agreement herein required to be kept or performed by it, and such default shall continue for a period of thirty (30) days after written notice specifying such default shall have been given by Lessor to Lessee; c. The termination, suspension or revocation by the United States Government or any authorized agency of the Government of the Lessee's Certificate of Operation, in which case the Lessor may terminate upon ten (10) days' written notice, which shall be effective thirty (30) days after the serving thereof upon Lessor. Upon termination of this agreement, Lessor may relet the space in the Terminal Building therein demised. Acceptance by Lessor of rentals and Airport fees after the right to terminate this agreement accrues shall not be deemed a waiver of such right to terminate. Upon termination of this agreement, Lessee's right to use the Airport Facilities thereupon shall terminate, and Lessee agrees to surrender such rights immediately, without the receipt of any demand for rent, notice to quit, or demand for possession whatsoever. ARTICLE XV. TERMINATION BY LESSEE In case of the happening of any one or more of the following events, this lease may be terminated by Lessee: a. Any court of competent jurisdiction shall issue an injunction in any way preventing or restraining the use of the Airport or the Airport Facilities or any substantial part or parts of any thereof, to such an extent as to interfere materially with the operation by the Lessee of an air transportation system, to and from, or at the Airport, and such injunction shall remain in force without consent of Lessee (not stayed by way of appeal or otherwise) for a period of ninety (90) days; b. The Lessee shall be unable to use the Airport for the conduct of an air transportation system for a period of ninety (90) days due to any law or executive order, or any order, rule or regulation of any appropriate government authority F affecting the Airport; or to war, bombardment, power or drainage failure, earthquake or other casualty; c. The United States Government or any authorized agency thereof shall occupy the Airport or the Airport Facilities, or any substantial part or parts thereof, to such an extent as to interfere materially with the operation by the Lessee of an air transportation system, to, from or at the Airport for a period of ninety (90) days; or d. Default shall be made by Lessor in the observance or performance of any covenant or agreement herein required to be kept or performed by it, and such default shall continue for a period of thirty (30) days after written notice specifying such default shall have been given by Lessee to Lessor; e. At the expiration or termination of any Essential Air Service contract (EAS Contract) between Lessee and the United States Department of Transportation (DOT) or any governmental agency succeeding to the jurisdiction of the DOT, under which EAS Contract Lessee has or had agreed to provide Essential Air Services to THE CAPE GIRARDEAU REGIONAL AIRPORT, Cape Girardeau, Missouri. In that event, Lessee may terminate this agreement by serving written notice of its intention to terminate upon the Lessor, which notice shall be effective upon the date specified therein, which effective date shall not be less than thirty (30) days after the termination of the EAS contract ARTICLE XVII. SUBORDINATION AGREEMENT This agreement shall be subordinate to the provisions of any existing or future agreement between the Lessor and the United States relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. ARTICLE XVIII. NONDISCRIMINATION 1. Lessee, for itself, its personal representatives, successors in interest and assigns, as a part of the consideration thereof, does herby covenant and agree as a covenant running with the land, that (a) no person on the grounds of race, religion, sex, color, age, physical handicap, marital status, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (b) that in the construction of any improvement on, over or under such land and the furnishing of services thereon, no person on the grounds of race, religion, sex, color, age, physical handicap, marital status, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (c) that the Lessee shall use the premises in compliance with all other Con requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation - Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 2. That in the event of breach of any of the above nondiscrimination covenants, the Lessor shall have the right to terminate this agreement and hold the same as if said agreement had never been made or issued. 3. In addition to the foregoing provisions contained in this paragraph, and not in limitation thereof, the parties hereto adopt and agree to be bound by and comply with the provisions of an Equal Employment Opportunity Clause, Exhibit D, attached hereto any by reference made a part hereof, to the same extent and for all purposes as though this said Equal Opportunity Clause were set forth in full in the main body of this agreement. ARTICLE XIX. MISCELLANEOUS 1. Assignment. Lessee shall not assign this agreement or any of its rights hereunder or sublet the premises or any part thereof demised hereby to any person without the written consent of the Lessor first had and obtained; provided that the foregoing shall not prevent the assignment of this agreement to any corporation with which Lessee may merge or consolidate, or which may succeed to the business of Lessee, or to which the business and properties of the Lessee, or substantially all of the same, may be sold or transferred by the Lessee. 2. No Waiver of Default. No action whatsoever, except an express written waiver, shall be construed to be or act as a waiver by Lessor or Lessee of any default by the other in the performance of any of the terms, covenants or conditions hereof to be performed, kept and observed by it. No express written waiver by Lessor or Lessee shall be construed to be or act as a waiver of any subsequent default by the other in the performance of any of the terms, covenants and agreements hereof to be performed, kept and observed by it. 3. Remedies Are Cumulative. The rights and remedies hereby created are cumulative and the use of one remedy shall not be taken to exclude or waive the right to the use of another. 4. Successors and Assigns. All of the covenants, stipulations and agreements in this agreement shall extend to and bind the successors and assigns of the respective parties hereto. 5. Notice. Any notice provided herein shall be sufficient if sent by certified mail, return receipt requested, postage prepaid, to the Lessor, addressed to the City Manager, P.O. Box 617, Cape Girardeau, Missouri, with a copy to Airport Manager, Cape 7 Girardeau Regional Airport, P.O. Box 617, Cape Girardeau, Missouri; and to the Lessee mailed in like manner, addressed to Charles J. Ferrara, Jr., Hyannis Air Service, Inc., d/b/a Cape Air, 6600 Barnstable Road, Hyannis, MA 02601, or to such other addressee as the parties may designate to each other in writing from time to time. 6. Laws of Missouri Shall Govern. This agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the State of Missouri. 7. Counterparts. This agreement has been executed in several counterparts, each of which shall be and shall be taken to be original, and all collectively but one instrument. 8. It is expressly understood and agreed between the parties hereto that said rights and privileges herein granted are non-exclusive; and the Lessor hereby reserves the right to enter into agreements with any other individual, company or corporation, if it so desires, for engaging in like activity at said Airport. 9. Lessee agrees to maintain the exclusively leased area in the Terminal Building at its own expense, in a neat and clean condition and commit no waste thereon and make no alteration therein without consent of the Lessor. The Lessor will provide basic janitor service for the cleaning of the walls, floors and windows. 10. All lawful taxes and assessments which may become due and payable upon all taxable property owned by the Lessee shall be the full responsibility of Lessee. Lessee shall cause said taxes and assessments to be paid promptly. 11. Lessor agrees to provide at its own expense heat and electric lighting for all space included in this agreement and also air conditioning of all space included in this agreement. 12. Lessee agrees that installation of corporate identification or logos shall be subject to the prior approval of the Lessor, and such approval shall not be unreasonably withheld. 13. Lessor may enter upon the premises leased exclusively to Lessee at any reasonable time for the purpose of inspection, or in the exercise of its governmental function. IN WITNESS WHEREOF, the parties hereto have executed this agreement at the places and on the dates hereinafter set forth. Executed at Cape Girardeau, Missouri this day of _ U& 2010 V1 1 i ti `i f l CITY OF CAP GIRARDEAU, MISSOURI By City Man4 Ue Hyannis Air Service, Inc., /b/a/ Cape Air 1 By E