HomeMy WebLinkAboutFIFD - Fishers Island Airways LLC =o�gUFFO(r�o RESOLUTION 2019-786
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s �a ADOPTED DOC ID: 15551
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2019-7.86 WAS
ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON
SEPTEMBER 10, 2019:
RESOLVED that the Town Board of the Town of Southold hereby ratifies and approves the
resolutions of the Fishers Island Ferry District Board of Commissioners dated September 3,
2019, as follows:
FIFD
resolution# Regarding
2019 134 Airport
2019 135 Airport Lease
2019 136 Legal
2019 137 Legal
Elizabeth A. Neville
Southold Town Clerk
RESULT: ADOPTED [UNANIMOUS]
MOVER: Jill Doherty, Councilwoman-
SECONDER:William P. Ruland, Councilman
AYES: Dinizio Jr, Ruland, Doherty, Ghosio, Evans, Russell
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RECEIVED
OCT - 2 2019
Office of the Town Attorney
Town of Southold Southold Town Clerk
Town Hall Annex, 54375 Route 25
P.O. Box 1179
Southold, New York 11971-0959
Telephone : 631-765-1939
Facsimile: 631-765-6639
MEMORANDUM
To: Ms. Elizabeth A. Neville, Town Clerk
From: Mary Silleck
Secretary to the Town Attorney
Date: October 2, 2019
Subject: Lease between Fishers Island Ferry District, Town of
Southold and Fishers Island Airways LLC
With respect to the above-referenced matter, I am enclosing the original
Agreement together with the Resolution.
If you have any questions regarding the enclosed, please do not hesitate to call
me. Thank you.
/ms
Enclosures
cc: Accounting
Trustees
HANGAR PROJECT AGREEMENT AND GROUNDLEASE
This Hangar Project Agreement and Groundlease(this"Lease") is executed on the 15
day of 5J- &m W-- ,2019,by and between Fishers Island Ferry District("Landlord"), a
Special Tax District within the Town of Southold,New York,which is authorized by the owner,
the Town of Southold,New York,to act as manager of the Airport(as hereinafter defied), and
FISHERS ISLAND AIRWAYS LLC ("Tenant"), a New York limited liability company.
WITNESSETH
WHEREAS,pursuant to the New York State Fishers Island Ferry District Act of 1947, as
amended, Landlord operates Elizabeth Field Airport 0138 (the"Airport"),the airport located on
and serving Fishers Island,New York, on behalf of the Town of Southold,the owner of the
airport property and the improvements thereon;
WHEREAS,Tenant approached Landlord with an offer to lease a hangar at the Airport
and, since no hangar currently exists at the Airport, to help facilitate the design, financing,
approval and construction of a hangar at the Airport(collectively,the"Project"); and
WHEREAS,the parties hereto wish to memorialize their agreements about how to go
about pursuing and completing the Project, as well as to provide for the eventual leasing of the
hangar by Tenant from Landlord;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth,Landlord and Tenant agree as follows:
ARTICLE ONE—Lease Data
Landlord: Fishers Island Ferry District
P.O. Box 607
Fishers Island,New York 06390
Attn: Manager
Tel: (631) 788-7463
Email: gcook@fiferry.com
Tenant: FISHERS ISLAND AIRWAYS LLC
40 Fifth Avenue,Unit 12E
New York,New York 10011
Attn: Brad Burnham
Tel: (908) 512-6340
Email: brad@usv.com
Premises: Approximately 21,135 square feet of land at the Airport, as
improved with a private airplane storage hangar to be built by
Tenant (the "Hangar") and certain other improvements and rights
relating to the use of the Premises, as more fully described in this
Lease and Exhibit A attached hereto.
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Permitted Use: Use of the Premises for construction and subsequent operation of
the Hangar and activities similar thereto
Rent: $50/month for the period between the date hereof and the Rent
Commencement date; from and after the Rent Commencement
date, $50/month for the period between the date hereof and the
Rent Commencement date; from and after the Rent
Commencement Date, $6,600 for the first Lease Year (being
$550/month), and thenafter adjusted in accordance with Section
4.1 hereof and subject to Section 8.1(b)(ii)hereof
Rent Commencement Date:The first day of the month after the date when all land use,
construction and related permits for the Project have been issued
by the Town of the Southold and all other applicable approval
authorities
Initial Term: Subject to Section 8.1(b)(i)hereof,twenty-five(25)years,
commencing on the Rent Commencement Date
Options to Extend: Two (2) options to extend for five (5)years each, for total possible
term of thirty-five(35)years
Lease Year: A twelve (12) month period, commencing on the Rent
Commencement Date and each anniversary thereof
Security Deposit: One quarter annual Rent, as adjusted in accordance with Section
4.1 hereof.
ARTICLE TWO—Premises
2.1 Lease. Landlord hereby leases to the Tenant and the Tenant hereby leases from
the Landlord,the Premises,upon and subject to the terms of this Lease.
2.2 Condition of Premises. Notwithstanding anything to the contrary in this Lease,
the Premises are hereby leased in an"as is" condition, it being expressly understood and agreed
that Landlord is not obligated to install services or facilities in or about the Premises in addition
to those now in place but is obligated to maintain access to the Premises in the condition in
which access has heretofore been maintained and to keep such access open and unobstructed.
2.3 Ownership of Hangar. The parties acknowledge that,pursuant to and in
accordance with this Lease, Tenant shall construct the Hangar and other related improvements
located on the Premises, (but not the land upon which the Hangar is built) during the term of this
Lease and, in accordance with Article Eleven hereof, shall either transfer ownership of the
Hangar to Landlord or shall demolish and remove the Hangar upon expiration or earlier
termination of this Lease.
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ARTICLE THREE—Maintenance and Services
3.1 Current Condition. Tenant has examined the Premises which are, on the date hereof,
mostly raw and unimproved. Tenant agrees to enter into this Lease, despite the condition of the
Premises, in order to construct the Hangar and in anticipation of its eventual use of the Premises.
3.2 Maintenance of Improvements. Tenant shall be responsible for maintenance of the
roof, exterior and structural integrity of the Hangar once it is fully constructed and a Certificate of
Occupancy("C/O")has been issued. Tenant also shall be responsible for the maintenance of the
systems and interior elements of the Hangar during the term of this Lease after the C/O has been
issued.
3.3 Electricity. An electric meter will be installed at the Premises as part of the
Project. Tenant shall arrange for and pay directly for electricity servicing the Premises.
3.4 Trash Removal; Debris. Tenant shall supply a receptacle suitable for the day-to-day
disposal of refuse(which receptacle shall not be a dumpster or other unsightly container) and shall be
responsible for the disposal of all refuse on the Premises at its own expense. Tenant shall not permit
any refuse to accumulate that would constitute a fire or health hazard or unsafe condition on, about or
within the Premises. Tenant shall maintain the Premises in good and sanitary condition, and shall not
permit refuse, debris or any unsightly condition to exist outside of the Hangar.
3.5 Landscape Maintenance; Snow Removal. Tenant shall be responsible for the
maintenance of the Premises grounds, including lawn and yard maintenance, and snow removal.
The grounds shall be maintained in a neat and orderly condition. Tenant shall remove snow
from the Airport taxiways at its own expense so that the Permitted Use is not compromised.
3.6 Securitv. Tenant shall operate the Premises at its own risk,providing whatever
type of security it deems appropriate. Without limiting the foregoing, Tenant shall do nothing
which decreases the overall security at the Airport. Tenant shall not install fences and/or other
physical boundaries on the Premises without Landlord's permission.
3.7 General Airport Maintenance. Landlord shall maintain and continue to operate
the Airport in compliance with all applicable regulations and at a level of diligence and quality
so that the value of the Premises is not diminished. It is understood that in the event that during
the Term,Landlord is no longer permitted or otherwise able to operate the Airport as an airport,
from a date agreeable to both Tenant and Landlord,this Lease will cease to exist, subject to the
"End of Term"obligations set forth in Article Eleven, and the obligations of the parties
hereunder will also cease.
ARTICLE FOUR—Rent and Other Charges
4.1 Rent. Tenant shall pay to Landlord, during the term hereof, and subject to
Section 8.1(b)(ii)hereof,the Rent set forth in Article One hereof, such amount to be paid at least
monthly before the Rent Commencement Date and, after the Rent Commencement Date,
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annually on or before the anniversary of each Rent Commencement Date. After the Rent
Commencement Date,Rent shall be increased on each five-year anniversary of the Rent
Commencement Date by the amount that is the larger of. (a) 5%; or(b)the five-year cumulative
total(measured from the January 1 of the year six years prior to the year in which the five-year
anniversary will fall) of North East Inflation as reported by the United States Bureau of Labor
Statistics.
4.2 Security Deposit. On or before the date hereof, Tenant shall pay to Landlord the
amount of the Security Deposit,which shall be held by the Landlord,without obligation for
interest, as security for the performance of the Tenant's covenants and obligations under this
Lease. If Landlord draws upon the Security Deposit in accordance with the terms of this Lease,
Tenant shall, within fifteen(15) days after receipt of written notice,replenish the amount of the
Security Deposit held by Landlord. The amount of the Security Deposit shall be modified each
time Rent is increased in accordance with Section 4.1 hereof.
4.3 Late Payment Fee. Any amount due from Tenant to Landlord under this Lease
that is not paid when due shall bear and accrue interest at the rate of one and one-half percent
(1.5%)per month from the due date until receipt of payment. Any partial payments received on
said indebtedness shall be applied first to interest, and then to principal.
4.4 Real Estate Taxes. Tenant shall pay real estate taxes assessed on the Premises
due to Tenant's private use of the Premises under this Lease.
ARTICLE FIVE—Term and Extensions
5.1 Term. The term of this Lease shall commence on the Rent Commencement Date
and, subject to earlier termination in accordance with the terms hereof, continue for the Initial
Term.
5.2 Extension Options. This Lease may be extended by Tenant,with Landlord's
written consent(which shall not be unreasonably withheld),if: (a) at the time of both the
exercise of the option to extend and the extension of this Lease,Tenant is in full compliance with
the terms and conditions hereof, and there are no defaults or circumstances which,by the giving
of notice,would constitute a default under this Lease; and(b)throughout the term of the Lease,
Tenant has not been in any material default hereunder that was not duly cured within the
applicable grace period. Tenant shall inform Landlord of its intent to exercise its option to
extend hereunder by giving written notice to Landlord no later than six(6)months prior to the
expiration of the then-current term. If Landlord objects to Tenant's extension of the term of this
Lease, it shall inform Tenant of the same in writing within ninety(90)days of receiving Tenant's
written extension notice. Except as the terms may apply to any further options, all the terms and
conditions of this Lease shall apply for the extended period, except that the Rent for the initial
year of the extension period shall be the Rent for the final year of the then-current term, as
adjusted as provided in Section 4.1 hereof, and be increased similarly thereafter.
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5.3 Holding Over. If, after the termination or expiration of this Lease, Tenant shall
remain in possession of the Premises without any express written agreement as to such holding
over, Tenant shall be deemed to be a tenant at sufferance from day to day at a daily rental rate
equal to two hundred fifty percent(250%) of the Rent previously in effect. During such
continued occupancy, all other provisions of this Lease(except as to the term) shall be in effect.
ARTICLE SIX-Rules and Regulations Governing the Airport
6.1 Acceptance of Airport Rules and Regulations. Tenant and Landlord shall observe
and obey all laws,rules, orders and regulations promulgated by all local, state and federal entities
having jurisdiction over the Airport or the activities occurring thereon, including,but not limited
to, the Federal Aviation Administration, the U.S. Department of Homeland Security and the New
York Department of Transportation. Tenant shall also not take, and shall not fail to take, any
action where the taking of the action or the failure to take the action, as the case may be,will or
has a reasonable likelihood to, adversely affect the insurability of the Premises or any other
portion of the Airport.
6.2 Non-Discrimination Assurances. Tenant, for itself, its heirs,personal
representatives and its successors and assigns, does hereby covenant and agree,that: (a)no
person on the grounds of race, color,handicap, or national origin shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of
the Premises; and(b)Tenant shall use the Premises in compliance with all other requirements
imposed by or pursuant to 49 CFR 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. The breach of this Section 6.2 shall constitute a material
breach of this Lease and the Landlord shall have the right immediately to terminate the Lease
and to re-enter and repossess the Premises, and hold the same as if said Lease had never been
made or issued.
6.3 Liability for Fines and Penalties. Should Tenant, its customers, agents,
employees, officers or guests violate any law, code,rule or regulation, or any governmental
approval, license,permit or consent, and should any said violation result in a citation,penalty,
charge, fee or fine to Landlord, then Tenant shall fully and immediately defend, indemnify and
hold harmless the Landlord, and reimburse the Landlord, for said citation,penalty, charge, fee or
fine, and for all costs and expenses,including reasonable attorney's fees, incurred by the
Landlord in defending against and/or pursuing recovery of the citation,penalty, charge, fee or
fine. All such amounts shall constitute additional Rent due under the Lease and shall be paid
within fifteen(15) days of Tenant's receipt of notice or invoice thereof.
ARTICLE SEVEN—Use of Premises
7.1 Use of Premises. Tenant shall use the Premises solely for the purposes set forth in
Article One. The Premises may only be used for aeronautical/aviation purposes in accordance
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with the regulations,requirements, and guidelines promulgated by the Federal Aviation
Administration, and for no other purpose. Tenant shall be properly licensed by the appropriate
governing body or bodies for any business conducted on the Premises. Tenant shall not make or
suffer to exist any unlawful, improper,noisy or offensive use of the Premises, or engage in,
permit or suffer to exist any use that has a reasonable likelihood to endanger, affect, or make
voidable any insurance on the Premises, or the building or any contents thereof.
7.2 Signage. Subject to Landlord's consent(which shall not be unreasonably withheld),
Tenant shall have the right to place on the Premises, at locations and with designs selected by Tenant
and approved by Landlord, any signs permitted by applicable zoning ordinances. During the last year
of the term of this Lease, Landlord or Landlord's agent may display"For Sale"or"For Rent"or
"Vacancy"or similar signs on or about the Premises and enter to show the Premises to prospective
tenants.
ARTICLE EIGHT—Tenant Covenants and Restrictions
8.1 Alterations. (a) Tenant shall not make any alterations, additions or
improvements to the Premises without the prior written consent of the Landlord,which may be
withheld in Landlord's sole and absolute discretion. All such alterations, additions or
improvements, if any, shall be at Tenant's expense.
(b) Notwithstanding the restriction set forth in Section 8.1(a)hereof, Tenant is
authorized to complete the Project outlined in the proposal attached hereto as Exhibit B at
Tenant's sole cost and expense, and subject to the issuance of all required Federal, State, County
and Town regulatory approvals and permits,which Tenant shall be responsible to obtain at its
sole cost and expense. Such authorization shall include Tenant's right to make such
modifications to the proposal as it shall deem necessary or advisable provided the same do not,
in the aggregate,materially alter in such proposal.
(i) With respect to the Project, Tenant shall: (A)take primary
responsibility for the management of the Project, including working closely with C&S (as
defined below)to develop land use approval materials,pursuing the land use application
processes to completion,retaining lawyers and other consultants as appropriate,maintaining
proper accounting of expenses, and reporting to Landlord as appropriate; (B)pay out-of-pocket
expenses of the Project during the construction of the Project; (C)bring, connect, establish
separate metering for and make all payments associated in connection therewith to the Premises;
(D) cause all contractors to carry workers' compensation insurance in accordance with statutory
requirements and comprehensive public liability insurance naming Landlord and the Town of
Southold as additional insureds and automobile liability insurance covering such contractors and
their work on or about the Premises with limits of coverage reasonably acceptable to Landlord
and the Town of Southold; and(E) cooperate with Landlord and do whatever is reasonably
necessary to ensure the successful approval and completion of the Project. Landlord shall
cooperate in Tenant's efforts to design, seek approvals for,bid, secure financing for and oversee
construction of the Project.
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(ii) Tenant has represented and the Landlord concurs that the proposed
renovations comprising the Project do not constitute"public work" and accordingly are not
subject to the Prevailing Wage Requirements of the New York State Labor Law. To the extent
that it is later determined by the applicable authority that some or all of the completed
renovations constitute public work, Tenant shall pay any wages together with any penalties
(together,the"Prevailing Wage Payment")required to be paid relating to such public work,
and expressly indemnifies and holds the Fishers Island Ferry District and the Town of Southold
harmless from any claims, suits, damages or judgments relating to the payment of the Prevailing
Wage Payment.
(iii) The parties acknowledge that completion of the Project will require the
retention of project consultants (e.g., an architect, a surveyor, a land use attorney). Except as set
forth as follows in this Section 8.1(b)(iii), Tenant shall retain and pay all project consultants
directly. The parties acknowledge that Landlord has hired C&S Engineers, Inc. ("C&S")to be
its engineering consultant on various projects relating to the Airport, including without limitation
the Project. Tenant agrees to reimburse Landlord for any and all consultation fees due to C&S
relating directly to the Project but not more than$5,000.00 in the aggregate, such consultation
fees to be indicated in an itemized invoice with appropriate backup that Landlord requests that
C&S keep for the purpose of supporting the reimbursement indicated in this Section 8.1(b)(iii).
Landlord shall forward such evidence of required reimbursement to Tenant with a letter: (A)
representing that the fees being charged by C&S are properly charged and correct under
Landlord's agreement with C&S; and(B)providing evidence that such payment was made to
C&S.
(iv) Notwithstanding any other provision of this Lease, in the event that
Tenant is unable to obtain a construction permit from the Town of Southold to build the Project
(the"Project Building Permit")within three (3)years from the date hereof, Tenant shall have
the right to send a notice to Landlord exercising its right to terminate this Lease, in which case
this Lease shall be terminated and of no further effect or power, and Tenant shall remove any
alterations it made to the Premises after the date hereof.
(c) With respect to work that Tenant is authorized to perform on the Premises, Tenant
shall procure all necessary local, state and federal permits, licenses and approvals before
undertaking such work, and shall cause all such work to be performed in a good, first-class, and
workmanlike manner, and in accordance with all applicable laws and regulations, and the
requirements of Landlord and insurers of the Premises, and shall, in performing the work,use
and employ new materials of prime quality.
(d) Tenant shall not file or place, cause or permit to be placed or filed, or suffer to
exist any liens on the Premises, including mechanic's liens for labor and materials furnished to
Tenant in connection with work of any character performed for or on behalf of the Tenant, and
shall cause any such lien to be released of record or duly bonded without cost to Landlord within
sixty(60) days of the filing of the lien.
8.2 Assignment and SublettinK: Tenant shall not assign, sublet,underlet,mortgage,
pledge or encumber this Lease or any portion of the Premises without, in each instance, having
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first obtained the prior written consent of Landlord,which consent shall not be unreasonably
withheld;provided,however, that Tenant may,without additional approval by Landlord, sublet
or license the Hangar for the storage of up to three(3) airplanes. Any assignment or sublease
under and notwithstanding such consent shall be void unless the assignee or subtenant
acknowledges in writing that it will be bound by and subject to the terms of this Agreement. In
the event that Tenant wishes to transfer its interest in the Lease and as found a willing buyer for
that assignment,Tenant shall submit to Landlord a notice outlining the terms of the agreement
for such assignment and Landlord shall have 15 days to agree to purchase Tenant's leasehold
interest in the Lease on the terms so provided or to approve of such assignment; Landlord's
failure to respond to Tenant's notice within the 15-duy period being deemed consent to the
assignment.No permitted assignment or subletting shall in any way impair or relieve Tenant
from the continuing primary liability of the Tenant-assignor hereunder, and no consent by the
Landlord in a particular instance shall be deemed to be a waiver of the obligation to obtain the
Landlord's consent in a subsequent instance. As used herein,the term"assign"or"assignment"
shall be deemed to include,without limitation, any transfer of Tenant's interest in the Lease by
operation of law.
8.3 Aeronautics Restrictions. In addition to the other provisions of this Lease,
Tenant's activities on the Premises shall be subject to the following restrictions, among any other
restrictions generally applicable to persons operating on a municipal airport:
(a) Landlord reserves unto itself, its successors and assigns, for the use and benefit of
the public, a right of flight for the passage of aircraft in the airspace above the surface of the real
property as described in this Lease, together with the right to cause, in said airspace, such sound
as may be inherent in the operation of aircraft, now known or used or hereafter used for the
navigation or flight of aircraft in said airspace, together with the emission of fumes or particles
incidental to aircraft operation, and for the use of said airspace for the landing on,taking off
from, or operating on or about the Airport.
(b) Tenant, its successors and assigns shall not use the Premises in any manner or for
any purpose that will create or result in hazards or unsafe conditions to flight such as,but not
limited to: (i)the production of electrical interference with radio communications; (ii)the use of
lights or reflective devices that may make it difficult for pilots to distinguish between such lights
or devices and airport or runway lights; (iii)projecting glare in the eyes of the pilots; (iv)
impairing visibility on or in the vicinity of the airport; or(v) otherwise endanger or create risks
of endangering the operation of aircraft, including the landing, take-off or maneuvering of such
aircraft.
(c) Landlord retains the continuing right in the Premises to prevent the erection or
growth of any building, structure, tree or other object extending in to the airspace(i.e.,the
airspace that is above 45 feet Mean Ground Level) and, at Tenant's expense,to remove from said
airspace, or at the sole option of the Landlord, as an alternative, to mark and light as obstructions
to air navigation, any such building, structure, tree or other object now upon, or which in the
future may be upon, the property together with the right of ingress to,passage over, and egress
from the Premises and Tenant's property for the above purposes.
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(d) The reservations and restrictions set forth in this Section 8.3 shall run with the
Premises which shall be the servient tenement, it being intended that the lands now and hereafter
comprising the Airport shall be the dominant tenement; excepting,however, that such
reservations and restrictions shall become void and of no force and effect on such date as the
lands comprised in the aforesaid Airport shall cease to be used for Airport purposes.
(e) If Tenant is authorized by Landlord to furnish aeronautical services to the public,
such services and/or activities shall be offered,performed or conducted upon the Premises in
accordance with the following principles:
(i) Tenant shall furnish said service on a fair, equal, and not unjustly
discriminatory basis to all users thereof, and
(ii) Tenant shall charge fair,reasonable, and not unjustly discriminatory prices
for each unit or service;provided that the Tenant may be allowed to make reasonable and
nondiscriminatory discounts, rebates or other similar types of price reductions to volume
purchasers.
(f) It is mutually understood and agreed by the parties hereto that nothing contained
in this Lease shall be construed as granting or as authorizing the granting of an exclusive right
within the meaning of Section 308 (a)of the Federal Aviation Act of 1958.
8.4 Maintenance and Repair. Tenant agrees that it shall not injure, deface or
otherwise harm the Premises or use the Premises in any manner that will constitute waste.
Tenant shall maintain the Premises and any structures or other improvements constructed or
existing thereon, in good condition and repair, including painting the exterior of the Hangar to
prevent rusting or deterioration of any portions thereof. Tenant shall correct any visible damage
or defacement to the Premises that it caused or allowed to be caused as quickly as possible to
prevent a continuing condition of apparent disrepair or remove the damaged remains from the
Premises. If Tenant shall fail to keep the Premises in the condition required herein, or if repairs
are required to be made by Tenant pursuant to the terms hereof, Landlord shall have the right,
but not the obligation, after thirty(30) days' notice to Tenant by Landlord(or without notice in
the event of an emergency), to make such repairs or perform maintenance work or any other
work required of Tenant pursuant to this Lease and charge the costs thereof to Tenant as
additional Rent to be paid by Tenant to Landlord in the next Rent payment cycle;provided that,
if Tenant has promptly commenced and diligently prosecutes to completion the necessary repairs
or the correction of any nonconformity, as reasonably determined by Landlord, Landlord shall
exercise such right, if at all, if and only if Tenant shall ceases so to diligently prosecute the same
to completion.
8.6 Airport Construction and Development. Tenant recognizes that•from time to time
during the term of this Lease it may be necessary for Landlord or another governmental entity
with jurisdiction over Landlord and the Airport,to initiate and carry forward programs of
construction, improvements,remediation, inspections, expansion, maintenance and repair at the
Airport which may inconvenience or interrupt Tenant in its operations at the Airport. Tenant
agrees that no liability shall be attached to Landlord, its agents or'employees by reason of any
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such inconvenience or interruption so long as such does not render Tenant incapable of using the
Premises for an extended period of time; provided,however, that Tenant agrees that its sole
relief for any such inconvenience or interruption shall be a reasonable and proportionate rental
abatement. To the extent that Landlord shall have the responsibility of initializing and carrying
forward any such programs, it shall do so with all due diligence.
8.7 Hazardous Materials. Tenant shall not use,handle, store or dispose of, or
exacerbate any Hazardous Waste,Hazardous Material, Oil or radioactive material, as such terms
are used or defined in applicable environmental laws, and the regulations promulgated
thereunder, as such laws and regulations may be amended from time to time(collectively
"Hazardous Materials") in,under, on or about the Premises, except for such storage and use of
minor amounts of such materials necessary for the normal use of the Premises and aircraft using
the Hangar. Any Hazardous Materials on the Premises, and all containers therefor, shall be used,
kept, stored and disposed of in conformity with all applicable laws, ordinances, codes,rules,
regulations and orders of governmental authorities. Any violation of said laws,rules or
regulations shall be deemed a material breach of this Lease for which Landlord may terminate
this Lease. Tenant shall: (a)notify Landlord immediately of any release or threat of release of
any Hazardous Materials on or from the Premises and any loss or damage or claim of loss or
damage resulting therefrom; and(b)be solely responsible for remediating all contamination that
results from a release of any Hazardous Material on or from the Premises in full compliance with
all applicable statutes,rules and regulations and to a standard that, at a minimum, allows
Landlord to use the Premises for airport purposes, as set forth more particularly herein, at
Tenant's sole cost and expense, and, in addition to any other rights and remedies available to
Landlord.
8.8 Respectful Premises Operations. Without limiting any other provisions of this
Lease, Tenant shall not operate the Premises in a manner that endangers or materially disrupts
the Airport or the community adjacent hereto.Accordingly, Tenant shall not engage in material
commercial maintenance operations at the Premises, shall observe all relevant safety regulations,
and shall limit the running of aircraft engines and otherwise shall operate the Premises in a
manner to limit the amount of noise generated.
ARTICLE NINE -Indemnity and Public Liability Insurance
9.1 Tenant's Indemnity. To the maximum extent permitted by law, Tenant agrees, in
addition to any other rights and remedies available to Landlord and the Town of Southold, to
defend, indemnify and save harmless Landlord and the Town of Southold from and against all
claims, expenses or liability of whatever nature from any suits, claims and demands arising
directly or indirectly: (a) from the failure of Tenant or Tenant's contractors, agents, employees,
representatives,permittees, licensees, invitees or anyone claiming by or through the Tenant(the
"Tenant Parties")to comply with the terms of this Lease or with any applicable laws, codes,
bylaws,rules, orders, regulations or lawful directions now or hereafter in force of any public
authority and any accident, injury or damage whatsoever to any person, or to the property of any
person, occurring on or about the Premises; (b) from any accident, injury or damage,however
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caused,to any person or property on the Premises or occurring outside of the Premises but on the
Airport property, in each case where such accident, damage or injury results from any act,
omission or negligence on the part of any Tenant Parry; and(c) from any and all costs and
expenses incurred in connection with any cleanup,remediation, removal or restoration work
required by any federal, state or local governmental authority because of the presence of any
Hazardous Materials on or about the Premises to the extent that Tenant or any of the other
Tenant Parties caused or contributed to such environmental occurrence, during the term of this
Lease or thereafter, so long as Tenant is in occupancy of or any of its personal property remains
on any part of the Premises. This indemnity and hold harmless agreement shall include
indemnity against all costs, expenses and liabilities incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof, including,without limitation,
reasonable attorneys' fees incurred by Landlord and the Town of Southold in connection
therewith.
9.2 Insurance. Tenant agrees to maintain in full force throughout the term of this
Lease, and agrees prior to the commencement of the Lease, to deliver to the Landlord a
certificate of insurance evidencing compliance with the requirements herein:
(a) A policy of general liability and property damage insurance with respect
to the Premises and the property of which the Premises are a part, naming Tenant as an insured
and Landlord and the Town of Southold as an additional named insured, in the minimum amount
of$1,000,000 bodily injury and property damage for each occurrence,with a combined single
limit of$3,000,000 annual aggregate limit. Landlord shall have the right from time to time to
increase such minimum amounts upon notice to Tenant,provided that any such increase is
consistent with the amount of coverage carried for similar property;
(b) A policy of fire and extended coverage insurance upon its building and
leasehold improvements, furniture, furnishings, fixtures and equipment to the full insurable value
thereof and any applicable equipment vendors or lenders give the Airport satisfactory releases
from fire and extended coverage liability; and
(c) Such other insurance as may reasonably be required by Landlord.
Without limiting Landlord's other rights under any other provisions of this Lease, if
Tenant shall fail to keep the Premises insured as provided herein, and if such failure shall
continue for a period of ten(10) days following written notice by Landlord to Tenant thereof,
then Landlord,without further notice to Tenant,may take out and pay for such insurance, and the
amount of such payment shall become due and payable as additional Rent on demand, or
Landlord may terminate this Lease immediately.
9.3 Tenant's Risk. To the maximum permitted by law, and notwithstanding anything
to the contrary in this Lease, Tenant agrees that all of the furnishings, fixtures, equipment, effects
and property of every kind,nature and description of Tenant and all persons claiming by,
through or under Tenant, including Tenant's employees, agents, invitees, licensees, and insurers,
which, during the Term of this Lease or any occupancy of the Premises by Tenant or any such
Tenant Party,may be on the Premises or elsewhere on the Property, shall be at the sole risk and
11
hazard of Tenant, and if the whole or any part thereof shall be destroyed or damaged by fire,
water or otherwise, or by the leakage or bursting of water pipes or sprinklers,by theft or from
any other cause whether foreseeable or unforeseeable,no part of said loss of damage is to be
charged to or be borne by Landlord unless due to the negligence or willful misconduct of
Landlord, and in all events Tenant's insurance that may be available to cover any such damage
or destruction shall be deemed primary vis-a-vis any insurance of Landlord.
ARTICLE TEN—Default and Landlord's Remedies
10.1 Tenant's Default. If at any time during the term of this Lease any one or more of
the following events (each a "Default of Tenant") shall happen, Landlord may, in addition to
any other rights and remedies available to it, including any rights of termination set forth
elsewhere in this Lease,terminate this Lease upon ten(10) days' notice to Tenant and Tenant
will then immediately quit and surrender the Premises to Landlord:
(a) Tenant shall fail to pay the Rent and/or any additional Rent when due and such
failure shall continue for ten (10) days after written notice thereof; or
(b) Tenant shall fail to pay charges hereunder when due and such failure shall
continue for ten(10) days after notice to Tenant; or
(c) Tenant shall neglect or fail to perform or observe any other covenant herein
contained on Tenant's part to be performed or observed and Tenant shall fail to remedy the same
as soon as practicable and in any event within thirty(30) days after written notice to Tenant
specifying such neglect or failure, or if such failure is of such a nature that Tenant cannot
reasonably remedy the same within such thirty(30) day period, Tenant shall fail to commence
promptly(and in any event within such thirty(30) day period)to remedy the same and to
prosecute such remedy to completion diligently and continuously,no later than sixty (60) days
from said notice; or
(d) Tenant shall make an assignment for the benefit of creditors or shall file a
voluntary petition in bankruptcy or shall be adjudicated bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement, composition,readjustment,
liquidation, dissolution or similar relief for itself under any present or future Federal, State or
other statute, law or regulation for the relief of debtors, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of Tenant or of all or any part of its
properties, or shall admit in writing its inability to pay its debts generally as they become due; or
(e) A petition shall be filed against Tenant in bankruptcy or under any other law
seeking any reorganization, arrangement, composition,readjustment,liquidation, dissolution, or
similar relief under any present or future Federal, State or other statute,law or regulation and
shall remain undismissed or unstayed for an aggregate of sixty(60) days (whether or not
consecutive), or if any debtor in possession (whether or not Tenant)trustee,receiver or liquidator
of Tenant or of all or any substantial part of its properties or of the Premises shall be appointed
12
without the consent or acquiescence of Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of ninety(90) days(whether or not consecutive); or
10.2 Re-entry by Landlord. If this Lease shall have been terminated as provided in this
Article Ten, or if any execution or attachment shall be issued against Tenant or any Tenant's
property whereupon the Premises shall be taken or occupied by someone other than Tenant,then
Landlord may,without notice,reenter the Premises, either by force, summary proceedings,
ejectment or otherwise, and remove and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made, and Tenant hereby waives the
service of notice of intention to reenter or to institute legal proceedings to that end.
10.3 Damages. In the event of any termination as provided in this Article Ten, Tenant
shall pay the Rent, any additional Rent and all other sums payable hereunder up to the time of
such termination, and thereafter Tenant shall,until the end of what would have been the Term of
this Lease in the absence of such termination,be liable to Landlord for, and shall pay to
Landlord,as liquidated current damages,the Rent, any additional Rent and all other sums which
would be payable hereunder if such termination had not occurred, less the net proceeds, if any, of
any re-letting of the Premises.
10.4 Re-letting of Premises. In case of any Default of Tenant,reentry, expiration and
dispossession by summary proceedings or otherwise, Landlord may relet the Premises or any
part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may,
at Landlord's option,be equal to or less than, or exceed,the period that would otherwise have
constituted the balance of the Term of this Lease, and may grant concessions or free rent to the
extent that Landlord considers reasonably advisable and necessary for the purpose of re-letting
the Premises; and such actions and the making of any alterations,repairs and decorations to the
Premises in connection therewith shall not operate, or be construed,to release Tenant from
liability hereunder as aforesaid.
10.5 No Limitation of Remedies. The specified remedies to which Landlord may
resort hereunder are not intended to be exclusive or in limitation of any rights,remedies or
means of redress to which Landlord may at any time be entitled lawfully and in equity, and
Landlord may invoke any right,remedy or means (including the remedy of specific performance)
allowed at law or in equity as if specific remedies were not herein provided for.
10.6 Costs. All reasonable costs and expenses incurred by or on behalf of Landlord
(including,without limitation,reasonable attorneys' fees and expenses, including at both the trial
and appellate levels)in enforcing its rights hereunder in connection with any Default of Tenant
shall be paid by Tenant.
ARTICLE ELEVEN—Tenant Obligation Upon Lease Termination
11.1 Landlord's Direction. One year before the expiration of this Lease or with as
much advance notice as possible in the event of a termination of this Lease prior to expiration,
Landlord shall notify Tenant whether Tenant shall be responsible for the demolition of the
13
Hangar and returning the Premises to their condition prior to the development of the Hangar or,
in lieu thereof,Landlord will accept a bill of sale, in recordable form, transferring ownership of
the Hangar to Landlord as of the relevant Lease end date. In the event that Landlord choses to
have Tenant demolish the Hangar and return the Premises to their condition prior to the
development of the Hangar, Tenant shall undertake and complete this work within 3 months after
the final date of the term of this Lease and shall maintain appropriate insurance during the post-
Lease demolition and restoration period.
11.2 Condition of Premises Upon Transfer to Landlord. In the event that, in
accordance with Section 11.1 hereof,Landlord opts to accept ownership of the Premises upon
the expiration or earlier termination of this Lease, Tenant shall remove all Tenant's personal
goods and effects from the Premises (including, without hereby limiting the generality of the
foregoing, all signs and lettering affixed or painted by the Tenant, either inside or outside the
Premises). Tenant shall deliver to the Landlord the Premises and all keys, locks thereto, and
other fixtures connected therewith and all alterations and additions made to or upon the Premises
not otherwise required to be removed under the terms of this Lease,in a good and safe condition.
In the event of the Tenant's failure to remove any of Tenant's property from the Premises,
Landlord is hereby authorized,without liability to Tenant for loss or damage thereto, and at the
sole risk of Tenant,to remove and store any of the property at Tenant's expense, or to retain
same. Tenant shall deliver the Premises and the improvements thereon to Landlord in broom
clean condition.
ARTICLE TWELVE—Miscellaneous
12.1 Notices. Whenever under this Lease a provision is made for any demand,notice
or declaration of any kind or where it is deemed desirable or necessary by either party to give or
serve any such notice, demand or declaration to the other, it shall be in writing sent by certified
or registered mail,return receipt requested with postage prepaid at the address set forth in Article
One hereof, or at such other addresses as the parties may from time to time designate by written
notice to the other party.
12.2 Waiver. One or more waivers of any covenant, term or condition of this Lease by
either party shall not be construed by the other party as a waiver of a subsequent breach of the
same covenant, term, or condition. The consent or approval of either party to or of any act by the
other party of a nature requiring consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any subsequent similar act.
12.3 Relationship of Parties. Nothing contained in this Lease shall be deemed or
construed by the parties or by any third parry to create any relationship between Landlord and
Tenant other than the relationship of landlord and tenant.
12.4 Governing Law. The law of the State of New York shall govern the validity,
performance and enforcement of this Lease.
14
12.5 Successors. The provisions, covenants and conditions of this Lease shall be
binding on the legal representatives,heirs, successors and permitted assigns of the respective
parties.
12.7 Amendments. No alterations, amendments, changes or additions to this Lease
shall be binding upon Landlord or Tenant unless and until reduced to writing and signed by both
parties.
12.8 Quiet Enjoyment. Landlord agrees that, on payment of the Rent and other
charges herein provided for and the performance of the covenants and agreements on the part of
the Tenant to be performed hereunder, and subject to the terms of this Lease,Tenant shall have
peaceful and quiet use and possession of the Premises.
12.9 Severability. If any provision of this Lease is declared to be illegal,
unenforceable or void,then both parties shall be relieved of all obligations under that provision;
provided,however,that the remainder of this Lease shall be enforced to the fullest extent
permitted by law.
12.10 Authorization. This Lease is subject to the approval of the Board of
Commissioners of Landlord and ratification of the Town Board of the Town of Southold.
[signature page follows]
15
IN WITNESS WHEREOF,Landlord and Tenant have caused this Lease Agreement to
be executed under seal as of the day and year first above written.
LANDLORD: TENANT:
Fishers Island Ferry District FISHERS ISLAND AIRWAYS LLC
0By: 642 By: �,� •
Name: Geb Cook Name: Brad Burnham
Title: Manager Title: Member
1
Town of Southold j
By: .e
Name: Scott A. Russell, Supervisor
I
16
Acknowledgments
STATE OF NEW YORK )
ss..
COUNTY OF9
�.�, se��)�mfg
On the day oft, 2019,before me, the undersigned,personally appeared Geb
Cook,personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s)whose name(s) (is)are subscribed to the within instrument and acknowledged to me
that(he)(she)they executed the same in(his)(her)their capacities, and that by(his)(her)their
signature(s) on the instrument, the individuals, or the person upon behalf of which the
individual(s) acted, executed the instrument.
;II
(signature and office of individual taking acknowledgment)
JASON W.DRENA F �', s .44 e
Notary Public-State of New York
.,'
No01DR6350454 +n`�', � � ~%SE'/'®........
Qualified in Sso
My Commission ExpeNovember7,2020
�
��'Ofry19111\\
STATE OF NEW YORK )
ss..
COUNTY OF )
On the day of August, 2019,before me, the undersigned,personally appeared Brad
Burnham,personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s)whose name(s) (is)are subscribed to the within instrument and acknowledged to me
that (he)(she)they executed the same in(his)(her)their capacities, and that by(his)(her)their
signature(s) on the instrument, the individuals, or the person upon behalf of which the
individual(s) acted, executed the instrument.
(signature and office of individual taking acknowledgment)
CHRISTINE A BRIGANTI
NOTARY PUBLIC-STATE OF NEW YORK
No. 01DR6365450
Qualified In Richmond County
-Certificate Filed In New York County
My Commission Expires October t 0, 2021
17
Acknowledgments
STATE OF NEW YORK )
ss..
COUNTY OF,�k--F C )
On the 16nay of September, 2019,before me, the undersigned, personally appeared
Scott A. Russell, personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his capacities, and that by his signature on the instrument,the
individuals, or the person upon behalf of which the individual acted, executed the instrument.
C��o -M . ooh
(signature and office of individual taking acknowledgment)
LAUREN M.STAINDIS14IN"ryNo 01ST8164008 Yak
Auelified in Suffolk COO8 3023
commission Eviros lV
EXHIBIT A
Description of Premises
A certain tract or parcel of land located at Elizabeth Field on Fishers Island, in the Town of
Southold, County Suffolk, State of Connecticut being bounded and described as follows:
BEGINNING at a point at the Northern most corner of the herein described tract. SaM point
having New York State grid coordinates of North 380847.49 and East 2541275.10 and thence
running South 29° 58' 18"East 60.30 feet to a point; thence North 60° 01' 42"East 45.00 feet to
a point; thence South 29° 58' 18"East 59.70 feet to a point;thence South 60° 01' 42"West
50.00 feet to a point; thence South 29° 58' 18"East 67.50 feet to a point;thence South 60° 0V
42"West 25.00 feet to a point; thence North 29° 58' 18"West 67.50 feet to a point; thence South
60° 01' 42"West 109.67 feet to a point; thence North 29° 58' 18"West 120.00 feet to a point;
thence North 60° 0l' 42"East 139.67 feet to the point of beginning.
Containing 21,135 square feet,more or less.
Together with a right of way for ingress and egress extending Northeastwardly from the herein
described lease tract to Airport Drive. Said right of way being 20 feet in width and described as
follows:
BEGINNING at a point in the Northeasterly line of the herein described lease tract. Said point
being located South 29° 58' 18"East 40.30 feet from the point of beginning of said lease tract
and thence running North 60° 01' 42"East 45.00 feet to a point of curve to the right having a
radius of 20.00 feet and the direction of whose radius at that point is South 29° 58' 18"East;
thence Eastwardly, following the arc of said curve 15.71 feet to a point of curve to the left having
a radius of 48.28 feet and the direction of whose radius at that point is North 15° 01' 56"East;
thence Northeastwardly, following the arc of said curve 37.92 feet to a point;thence North 60°
01' 39"East 263.74 feet to a point at Airport Drive; thence along the Southwesterly side of
Airport Drive South 23°48' 18"East 20.12 feet to a point;thence South 60°01' 39"West
261.58 feet to a point of curve to the right having a radius of 68.28 feet and the direction of
whose radius at that point is North 29° 58' 21"West;thence Southwestwardly, following the arc
of said curve 53.63 feet to a point; thence South 60° 01' 42' West 45.00 feet to a point;thence
North 29° 58' 18"West 20.00 feet to the point of beginning.
18
Attachment to Exhibit A
Premises Drawing
19
EXHIBIT B
Project Description `
20
39 Brow Neegm
NOTES
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Flehers l9arM NYOfi390
OCCUPANCY TYPE(2015 IBC CHAPTER 31 M B B
STORAGE GROUP S-1-4,200 SF
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f NWest O'M9% tMIS
OCCUPANCY CALCULATIONS(2015 IBC 100412) NewYmM,NexYork 10018
canes-nccesaowv� \\ / 4 200 SF GROSW500=8
e° �� \ //I • / EGRESS CALCULATIONS
eauNnnav oPrwTM \ ��/Y MAXIMUM OCCUPANT LOAD FOR SPACES WITH
�nsEn nnEn
mw..O
ONE EXIT 29(2015 IBC 1006 21)
I MAXIMUM EXIT ACCESS TRAVEL DISTANCE 200
4A ; / FT(20151BC10172)
S
CONSTRUCTION TYPE VB(2015 IBC TABLE 601)
�„ • _ ` o / 1 FIRE RESISTANCE RATINGS
PRIMARY STRUCTURAL FRAME'UNRATED
NONBEARING WALLS AND PARTITIONS
INTERIOR UNRATED
FLOOR CONSTRUCTION AND SECONDARY
i�Y \� \. :'( \ "sJ f .n'"".^^...•—� MEMBERS WA
ROOF CONSTRUCTION AND SECONDARY
\J— \ MEMBERS UNRATED
� RISK CATEGORY 11(2015IBC TABLE 1604 5)
1A s4 �' IJP SPRINKLER REQUIREMENTS(2015 IBC 903 2 9
GROUP
AREA=4,2 4,2
00 SF WA
SMOKE OR HEAT VENT REQUIREMENTS(2015
IBC 91021 GROUPS-1)
fk. \ AREA=4,200 SF N/A
CLASSIFICATION OF WORK
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