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HomeMy WebLinkAboutResolution - 3312 - Lease Agreement - Berry Enterprises - 12 T Hanger Units, LIA - 02_22_1990Resolution # 3312. February 22, 1990 Item 31 HW:js RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Lease Agreement by and between the City of Lubbock and John Berry d/b/a Berry's Enterprise, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 22nd day of February , 1990. c C. McMINN, MAYOR ATTEST: , City S APPROVED AS TO CONTENT: Bern E. Case, Director of Aviation APPROVED AS TO FORM: 1j arold Willard, Assistant City Attorney Resolution #3312 HW:js G4��Y��tcV9����Ya1'�b9 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK LEASE AGREEMENT THIS AGREEMENT, entered into at Lubbock, Texas, by and between the City of Lubbock, hereinafter referred to as "Lessor," and John Berry d/b/a Berry's Enterprise, hereinafter referred to as "Lessee." ARTICLE ONE LEASED PREMISES For and in consideration of the terms, covenants and condi- tions hereinafter set forth, Lessor does hereby lease unto Lessee the following premises, hereinafter called "Leased Premises," lo- cated at the Lubbock International Airport, hereinafter referred to as the "Airport," to -wit: T-HANGARS - 12 units plus office space whose general location is shown on Exhibit "A," attached hereto and incorporated herein as part of this Agreement. ARTICLE TWO TERM The term of this Lease shall be for a period of three (3) years beginning on December 1, 1989, and expiring on November 30, 1992, unless terminated earlier as hereinafter provided. ARTICLE THREE USE OF PREMISES Lessee is herein granted the Leased Premises for the nonexclu- sive privilege of conducting a T-Hangar rental service and for no other purpose. ARTICLE FOUR RENTALS, CPI ADJUSTMENTS, RECORDS AND PLACE OF PAYMENT A. RENTAL - In consideration of the rights and privileges herein granted, Lessee shall pay to the Lessor an annual rental of FOUR THOUSAND THREE HUNDRED FIFTY-THREE AND 12/100 DOLLARS ($4,353.12), which rental shall be paid in twelve (12) equal monthly installments of THREE HUNDRED SIXTY-TWO AND 76/100 DOLLARS ($362.76), in advance, by the tenth (loth) day of each month. B. CPI ADJUSTMENTS - Lessor and Lessee mutually agree that during the term of this Agreement the rental rate will be adjusted upward or downward for each ensuing year beginning January 1, 1991, in direct proportion to the fluctuation in the U. S. Department of Labor, Bureau of Labor Statistics Consumer Price Index. For the purpose of computing all adjustments, the Bureau of Labor Statistics Consumer Price Index as of January 1990 shall be construed as the base period. C. RECORDS - Lessee will provide Lessor with a list of tenants who lease T-Hangar units from Lessee and will promptly notify Lessor of changes in the list so that the same may be kept current. D. PAYMENT - All payments that become due and payable by Lessee shall be made to the City of Lubbock at the office of the Director of Aviation, Lubbock International Airport, Lubbock, Texas. ARTICLE FIVE OBLIGATIONS OF THE LESSOR A. CLEAR TITLE - Lessor covenants that it is well seized of the Leased Premises, has good title, free and clear of all liens and encumbrances having priority over this Lease, and has full right and authority to lease the property described in this Agreement. B. MAINTENANCE OF AIRPORT - Lessor covenants and agrees that it will during the term of this Agreement operate and maintain the Airport as a public facility consistent with and pursuant to the Sponsor's Assurances given by the City of Lubbock to the United States Government. - 2 - C. CONDITION AND MAINTENANCE OF PREMISES - Lessor shall assume no responsibility as to the condition of the Leased Premises and shall not assume responsibility for any maintenance, upkeep or repair necessary to keep the Leased Premises in a safe and serviceable condition. D. MAINTENANCE OF ROADS - Lessor shall maintain roads on the Airport which afford access to the Leased Premises in a good and adequate condition for use by automobiles and trucks. ARTICLE SIX OBLIGATIONS OF THE LESSEE A. NET LEASE - This Lease shall be without cost to the City of Lubbock for the development, maintenance and improvement of the Leased Premises. It shall be the sole responsibility of the Lessee to keep, maintain, repair and operate the entirety of the Leased Premises and all improvements and facilities placed thereon at Lessee's sole cost and expense. B. PRIVILEGES AND CONDITIONS - Lessee is herein granted the fol- lowing nonexclusive general privileges, uses and rights: 1. The right of ingress to and egress from the Leased Premises over and across common or public roadways serving the Airport. Such right of ingress and egress, however, shall be subject to all laws, ordinances, rules and regulations now existing or hereafter promulgated by the City of Lubbock or other lawful authority. 2. Lessee agrees to maintain, at no expense to the Lessor, all T-Hangar unit doors as necessary for their safe operation. 3. Lessee agrees that it does not acquire any equity or title to the Leased premises as a result of this Agree- ment and that the T-Hangar units and office space herein leased shall remain the sole property of Lessor. 4. Lessee agrees to terminate this Agreement upon thirty (30) days notice from Lessor if the City of Lubbock in - 3 - good faith deems that the T-Hangar units herein leased need to be removed from the Airport site in order to pro- vide for development of the Airport. 5. Lessee agrees that it will not use or permit the Leased Premises herein leased to be used for any other purpose other than that which is expressly herein authorized. 6. Lessee covenants that it will not store or permit storage of gasoline, oil, paint or any other flammables on the Leased Premises and that no smoking or open flame will be permitted thereon. It is also understood that Lessee will not use or permit use of the T-Hangar units for any purpose other than for storage of aircraft or uses autho- rized by the Director of Aviation of the City of Lubbock, and in no way shall any commercial operation of any na- ture be permitted. 7. Lessee covenants that it will ensure that all lessees of the T-Hangar units comply with all laws, ordinances, rules, regulations, policies and security procedures now existing or hereafter promulgated by the City of Lubbock or other lawful authority. 8. Lessee shall prohibit both unauthorized persons and vehicles from entering restricted Airport premises through gates or premises which Lessee or its tenants control, singularly or otherwise, and Lessee agrees in the event that a civil penalty or fine is levied against the Airport or City of Lubbock as a result of Lessee's failure to comply or act in accordance with this provi- sion or any other applicable federal, state or local statutes, ordinances, rules and regulations affecting the use, occupancy or operation of any of said restricted premises, Lessee shall immediately reimburse the Airport or City of Lubbock the full amount of the penalty or fine - 4 - and correct the act or omission leading to, causing or contributing to the violation. C. MAINTENANCE - Lessee accepts the Leased Premises in their present condition and shall, at its sole cost and expense, repaint, repair and maintain the T-Hangar units and office space herein leased consistent with good business practice and at least equal in appearance and character to similar improve- ments on the west side of the Airport. Lessee shall repair all damage to the Leased Premises and other City -owned prop- erty resulting from its business activities at the Airport. Lessor shall be the sole judge of the quality of maintenance and repairs; and upon written notice, Lessee shall be required to perform such maintenance and repairs as the Director of Aviation of Lessor deems necessary. Lessor shall have the right to terminate this Agreement immediately upon Lessee's failure to comply with this provision within fifteen (15) days following receipt of such written notice from the Director of Aviation. D. PROPERTY PERMANENTLY AFFIXED TO PREMISES - Any property be- longing to Lessee which becomes permanently attached to the Leased Premises shall become the property of the City of Lubbock either upon termination of this Agreement or expira- tion of its term. Determination by the City Attorney of the City of Lubbock as to whether an item has become "permanently attached" to the Leased Premises shall be final. E. REMOVAL OF LESSEE'S PROPERTY - Lessee shall have the right, except as otherwise herein provided, within fifteen (15) days of termination of this Agreement or expiration of its term, to remove from the Leased Premises all of Lessee's furniture, equipment and other property which have not become permanently affixed to the Leased Premises, but Lessee shall also have the duty to restore the Leased Premises to their original condi- tion, normal wear and tear excepted. Lessor shall have a - 5 - contractual lien on all of Lessee's property to secure any unpaid rentals or other charges due Lessor, and Lessee's right to remove its property from the Leased Premises is contingent upon all sums due or owed to Lessor being paid in full by Lessee. Property left by Lessee on the Leased Premises after thirty (30) days from the date of termination or expiration of this Agreement shall be deemed abandoned and will become the property of Lessor and may be disposed of as the Lessor chooses, without liability to account to the Lessee for the proceeds of any sale. Lessor, at its option, may charge Lessee rent from the date of expiration or termination of this Agreement through the day of final removal of said property or of notification to Lessee that said property has been deemed abandoned, as the case may be, which rent shall not be less than the monthly rental herein required to be paid to the Lessor. F. SUBORDINATION OF LIEN - Lessee must provide the Director of Aviation of Lessor with a subordination agreement executed by each lien holder that has a lien against any property to be used or installed by Lessee upon the Leased Premises which subordinates said lien or liens to Lessor's contractual lien securing payment of all sums due Lessor under this Agreement. G. RATES - Lessee agrees to charge fair, reasonable and nondis- criminatory rates and charges for the rental of T-Hangar units, which rates and charges shall be subject to review and approval by the Airport Board of the City of Lubbock. H. ADVERTISING - Lessee will erect no signs and will distribute no advertising at the Airport without the prior written con- sent of the Director of Aviation of Lessor. I. UTILITIES - Lessee shall assume responsibility and pay for all costs and charges for metered utility services furnished Lessee during the term of this Agreement. Lessee shall have the right to connect to any storm or sanitary sewers and water =Mc and utility outlets, the cost of extension, installation and meters, where required, to be borne by Lessee. J. PAYMENT OF TAXES, FEES - Lessee shall pay all federal, state and local government taxes, license fees, assessments and occupation taxes levied on the business conducted on the Leased Premises, or on any of Lessee's property used in con- nection therewith. Lessee shall render for taxation purposes all property used in connection with the business conducted on the Leased Premises, and all such property shall have its situs and domicile in Lubbock, Lubbock County, Texas. Delin- quency in the payment of any such obligations shall constitute grounds for immediate termination of this Agreement by Lessor. K. REGULATIONS - Lessee's officers, agents, employees and ser- vants will obey all laws, ordinances, rules and regulations which have been or may be promulgated by the City of Lubbock or by other lawful authority to ensure the safe and orderly conduct of operations and traffic at the Airport. L. PROHIBITION OF SUBLEASES AND ASSIGNMENTS - Lessee will not, directly or indirectly assign, sublet, sell, hypothecate or otherwise transfer this Lease or any portion of the Leased Premises without the prior written consent of the Director of Aviation of the City of Lubbock. M. REMOVAL OF TRASH - Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage and other refuse resulting from its business activities at the Airport. N. INDEMNIFICATION AND INSURANCE - 1. Lessee shall be deemed to be an independent contractor and operator, responsible to all parties for its own acts and omissions, and Lessor shall in no way be responsible therefor. Lessee agrees to indemnify, defend and forever save the Lessor, it authorized agents, representatives and employees, harmless from and against any and all - 7 - penalties, liability, annoyances, expense or loss, in- cluding attorneys' fees, resulting from claims or court actions of any nature arising directly or indirectly out of any acts or omissions of the Lessee, its agents, servants, guests, employees or business visitors under this Agreement. 2. The Lessee shall maintain insurance at all times, at its sole expense, with an insurance underwriter authorized to do business in the State of Texas and acceptable to the Lessor, against claims of public liability and property damage resulting from Lessee's business activities at the Airport. The amount of insurance coverage shall not be less than FIFTY THOUSAND AND N0/100 DOLLARS ($50,000.00) for property damage as a result of any one accident or event, or less than ONE HUNDRED THOUSAND AND N0/100 DOLLARS ($100,000.00) for personal injury or death of any one person in any one accident or event, or less than THREE HUNDRED THOUSAND AND N0/100 DOLLARS ($300,000.00) for personal injury or death of two (2) or more persons in any one accident or event. Certificates of insurance or other satisfactory evidence of coverage shall be filed with the Director of Aviation of Lessor prior to entry upon the Leased Premises by the Lessee. Each policy shall name the City of Lubbock as an additional insured as its interest may appear, and shall contain a provision requiring the insurer to give the Lessor written notice of cancellation or of any material change in said policy or certificates at least thirty (30) days in advance of the effective date of such cancellation or material change. Each policy shall also contain a provision waiving the right of such insurer to subrogation. The above insurance coverage must also include Hangar Keepers Liability coverage. - 8 - 3. Lessee shall also procure from a company authorized to do business in the State of Texas and maintain Hazard and Extended Coverage Insurance upon the buildings herein leased to 80% of the full insurable value thereof and shall furnish the Director of Aviation of Lessor with evidence that such coverage has been procured and is being maintained. 4. Lessee shall furnish to the Lessor satisfactory evidence that it carries Workers' Compensation Insurance in accor- dance with the laws of the State of Texas. 0. WAGES - Lessee shall pay, or require payment of, not less than the prevailing wage rates for each worker employed by Lessee, or by persons or firms engaged by Lessee, as required by Arti- cle 5159a, Vernon's Ann.Civ.Stat., or by ordinances enacted pursuant to said Texas statute. P. LIENS PROHIBITED - Lessee shall not bind Lessor or attempt to bind Lessor for payment of any money in connection with any construction, reconstruction, repairs, alterations or addi- tions to the Leased Premises, and Lessee shall not permit any mechanic's, materialman's or contractor's liens to arise against the Leased Premises or improvements thereon or any equipment, machinery and fixtures thereon belonging to the Lessor, and Lessee expressly agrees it will keep and save the Leased Premises and the Lessor harmless from all costs and damages resulting from any lien or liens of any character created or that may be asserted through any act or thing done by the Lessee, it officers, agents or employees. In the event any mechanic's lien or other liens or orders for payment shall be filed against the Leased Premises or improvements thereon, or City -owned property located thereon, during the term hereof, Lessee shall within ten (10) days cause the same to be cancelled and discharged of record, by bond or otherwise, at the election and expense of Lessee, and shall also defend on - 9 - behalf of Lessor, at Lessee's sole cost and expense, any action, suit or proceeding which may be brought thereon or for the enforcement of such liens or orders. Failure of the Lessee to comply with any requirement of this paragraph shall be cause for immediate termination of this Agreement by Lessor. Q. NONDISCRIMINATION PRACTICES - Lessee, its agents and employees will not discriminate against any person or class of persons in any manner prohibited by the Federal Aviation Regulations. Lessee further agrees to comply with such enforcement proce- dures as the United States might demand that the Lessor take in order to comply with the Sponsor's Assurances. Lessee also agrees not to discriminate against any employee or applicant for employment because of race, color, sex, age, religion or national origin. Lessee further agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, sex, age, religion or national origin. Such action shall include, but not be limited to, employment, upgrading, demotions, transfers, recruitment, layoffs, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Lessee will conduct its business activities and operate its facilities in accordance with the requirements of Section 504 of the Rehabilitation Act of 1973 so as to ensure 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 activity of the Lessee. ARTICLE SEVEN EXPIRATION, TERMINATION A. EXPIRATION - This Lease shall expire at the end of its term and Lessee shall have no further right or interest in the land - 10 - or improvements hereby demised, except as provided in Article six. B. TERMINATION BY LESSEE - This Lease shall be subject to termi- nation by Lessee without further liability to Lessor, after the happening of any one or more of the following events: 1. The permanent abandonment of the Airport as an air termi- nal. 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part thereof, in such a manner as to substantially restrict Lessee from conducting business activities thereon for a period of ninety (90) days. 3. The issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of the Leased Premises for a period of at least ninety (90) days or more. 4. The breach by Lessor of any of the terms, covenants or conditions of this Agreement to be kept, performed and observed by Lessor, and the failure of Lessor to remedy such breach for a period of sixty (60) days after receipt from Lessee of written notice of said breach. C. TERMINATION BY LESSOR - This Lease shall be subject to termi- nation by Lessor, without further liability to Lessee, after the happening of any one or more of the following events: 1. If Lessee makes an assignment for the benefit of credi- tors; or files a voluntary petition of bankruptcy; or if proceedings in bankruptcy are instituted against Lessee and Lessee is thereafter adjudicated as bankrupt pursuant to such proceedings; or if a court assumes jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any federal reorganization act; or if a receiver for Lessee's assets is appointed; or if Lessee petitions or applies to any tribunal for the appointment of a trustee or receiver for Lessee under any bankruptcy, reorganization arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction. 2. If Lessee abandons and discontinues its business activi- ties at the Airport. 3. If Lessee defaults in or fails to make any payments at the time and in the amounts required of Lessee under this Agreement. 4. If Lessee fails to perform, keep and observe all of the covenants and conditions contained in this Agreement to be performed, kept and observed by Lessee. 5. If Lessee fails to abide by all applicable laws, ordi- nances, rules and regulations of the United States, State of Texas, City of Lubbock or Airport Board of the City of Lubbock. Lessor shall give written notice to Lessee to correct or cure any such default, failure to perform or breach and if, within thirty (30) days from the date of such notice, the default, failure to perform or breach complained of shall not have the been corrected in a manner satisfactory to Lessor, then and in such event Lessor shall have the right, at once and without further notice to Lessee, to declare this Agreement terminated and to enter upon and take full possession of the Leased Premises and, provided further, that upon the happening of any one or more of the events enumerated in Article Seven, Section C, numbered Paragraph 1 hereof, this Agree- ment shall be deemed to be breached by Lessee and thereupon "ipso facto," and without entry or any other action by Lessor, this Agreement shall terminate, and be reinstated only if such invol- untary bankruptcy or insolvency proceedings, petition for reorgani- zation, trusteeship, receivership or other legal act divesting Lessee of its rights under this Agreement shall be denied, set - 12 - aside, vacated or terminated in Lessee's favor within thirty (30) days from the happening of the events. Reinstatement of this Agreement is also conditioned upon Lessee paying or discharging, within ten (10) days after the final denial, vacating or setting aside of such petition or vacating, terminating or setting aside of such appointment, any and all sums of money which may have become due under this Agreement in the interim and remain unpaid, and Lessee shall likewise fully perform and discharge all other obliga- tions which may have accrued and become payable in the interim. The acceptance of rentals or charges by Lessor for any period or periods after a default of any of the terms, covenants or condi- tions herein contained and to be performed, kept or observed by Lessee shall not be deemed a waiver of any rights on the part of Lessor to cancel this Agreement for failure by Lessee to so per- form, keep or observe any of the terms, covenants or conditions hereof to be performed, kept or observed. No waiver by Lessor of any of the terms of this Agreement to be kept, performed or ob- served by the Lessee shall be construed to be or act as a waiver by Lessor of any subsequent default by Lessee. ARTICLE EIGHT GENERAL A. TIME OF EMERGENCY - During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government, and if any such lease is executed, the provisions of this instrument, insofar as they are inconsistent with provisions of the lease executed with the Government, shall be suspended. B. SPONSOR'S ASSURANCE SUBORDINATION - This Lease shall be subor- dinate to the provisions of any existing or future agreement between the Lessor and the United States pertaining to the operation and maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the receipt or expenditure of federal funds for the develop- - 13 - ment or maintenance of the Airport. Should the effect of such agreement with the United States be to take any portion of the Leased Premises or substantially destroy the commercial value thereof, Lessor shall not be held liable therefor. C. REPLACEMENT AFTER DAMAGE - Lessor and Lessee agree that in the event the Leased Premises are damaged by fire or other acci- dental cause during the term hereof so as to become totally or partially untenantable, Lessee will restore such Leased Premises to their former condition. D. CONFLICT OF INTEREST - Lessee acknowledges that it is informed that Texas law prohibits contracts between the City of Lubbock and its "officers" and "employees," and that the prohibition extends to officers and employees of City agencies such as City -owned utilities and certain City boards and commissions, and to contracts with any partnership, corporation or other organization in which such officers or employees have an in- terest. Lessee certifies that neither it nor any person having an interest in this Agreement is an officer or employee of the City of Lubbock or any of its agencies, boards or com- missions. E. LANDLORD'S LIEN - Lessee hereby gives Lessor a lien upon all of its property, now or at any time hereafter placed in or upon the Leased Premises, to secure the prompt payment of the rentals and charges herein required, and Lessee hereby waives all exemptions for such property, and any portion thereof, insofar as permitted by law. F. RIGHT OF INSPECTION - Lessor reserves the right to conduct in- spection of the Leased Premises at reasonable times to ensure that fire, safety and sanitation regulations and other provi- sions contained in this Lease are being adhered to by the Lessee. - 14 - G. HEADINGS - Paragraph headings contained herein are for conve- nience in reference and are not intended to define, extend or limit the scope of any provisions of this Agreement. H. NOTICES - Notices to the Lessor required or appropriate under this Agreement shall be deemed sufficient if in writing and mailed, registered or certified mail, postage prepaid, addressed to the Director of Aviation, Lubbock International Airport, Route 3, Box 389, Lubbock, Texas 79401. Notices to the Lessee shall be deemed sufficient if in writing and mailed, registered or certified mail, postage prepaid, addressed to the Lessee at the address for Lessee on file with the Director of Aviation of the City of Lubbock. I. ENTIRE AGREEMENT - This Agreement constitutes the entire agreement between Lessor and Lessee, and any other written or oral agreements shall not be asserted. EXECUTED this 22nd day of February , 1990. LESSOR: CITY OF LUBBOCK BY: -A. C. MCMINN, MAYOR ATTEST: Ranettte Boyd, City Secretary APPROVED AS TO CONTENT: Bern E. Case, Director of Aviation APPROVED AS TO FORM: Ha�llard, Assistant City Attorney LESSEE: JOHN BERRY D/B/A BERRY'S ENTERPRISE ZtJte: !1/t w r ATTEST: - 15 - Resolution #3312 HW:js THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK LEASE AGREEMENT THIS AGREEMENT, entered into at Lubbock, Texas, by and between the City of Lubbock, hereinafter referred to as "Lessor,".and John Berry d/b/a Berry's Enterprise, hereinafter referred to as "Lessee." ARTICLE ONE LEASED PREMISES For and in consideration of the terms, covenants and condi- tions hereinafter set forth, Lessor does hereby lease unto Lessee the following premises, hereinafter called "Leased Premises," lo- cated at the Lubbock International Airport, hereinafter referred to as the "Airport," to -wit: T-HANGARS - 12 units plus office space whose general location is shown on Exhibit "A," attached hereto and incorporated herein as part of this Agreement. ARTICLE TWO TERM The term of this Lease shall be for a period of three (3) years beginning on December 1, 1989, and expiring on November 30, 1992, unless terminated earlier as hereinafter provided. ARTICLE THREE USE OF PREMISES Lessee is herein granted the Leased Premises for the nonexclu- sive privilege of conducting a T-Hangar rental service and for no other purpose. ARTICLE FOUR RENTALS, CPI ADJUSTMENTS, RECORDS AND PLACE OF PAYMENT A. RENTAL - In consideration of the rights and privileges herein granted, Lessee shall pay to the Lessor an annual rental of FOUR THOUSAND THREE HUNDRED FIFTY-THREE AND 12/100 DOLLARS ($4,353.12), which rental shall be paid in twelve (12) equal monthly installments of THREE HUNDRED SIXTY-TWO AND 76/100 DOLLARS ($362.76), in advance, by the tenth (loth) day of each month. B. CPI ADJUSTMENTS - Lessor and Lessee mutually agree that during the term of this Agreement the rental rate will be adjusted upward or downward for each ensuing year beginning January 1, 1991, in direct proportion to the fluctuation in the U. S. Department of Labor, Bureau of Labor Statistics Consumer Price Index. For the purpose of computing all adjustments, the Bureau of Labor Statistics Consumer Price Index as of January 1990 shall be construed as the base period. C. RECORDS - Lessee will provide Lessor with a list of tenants who lease T-Hangar units from Lessee and will promptly notify Lessor of changes in the list so that the same may be kept current. D. PAYMENT - All payments that become due and payable by Lessee shall be made to the City of Lubbock at the office of the Director of Aviation, Lubbock International Airport, Lubbock, Texas. ARTICLE FIVE OBLIGATIONS OF THE LESSOR A. CLEAR TITLE - Lessor covenants that it is well seized of the Leased Premises, has good title, free and clear of all liens and encumbrances having priority over this Lease, and has full right and authority to lease the property described in this Agreement. B. MAINTENANCE OF AIRPORT - Lessor covenants and agrees that it will during the term of this Agreement operate and maintain the Airport as a public facility consistent with and pursuant to the Sponsor's Assurances given by the City of Lubbock to the United States Government. - 2 - .xhibit A LUBBOCK INTERNATIONAL AIRPORT g EXISTING FACILITIES �;� L ,� �? �'r: rr �.. k�` ,�, .� �-. .r, } s � 1-� - �1- �' � r•. ,'.. `� •_�i7of �}� x'%y_ � r '�- .. f� b`�,.^. .� .�„%�T. �"s i ',C�t"I^up a__ �)\ ..... .�.. .. � .. t r .rf - �:� •:�.• •� .... ,, ::r .+. �� K d„f.: ys ;f:; C. CONDITION AND MAINTENANCE OF PREMISES - Lessor shall assume no responsibility as to the condition of the Leased Premises and shall not assume responsibility for any maintenance, upkeep or repair necessary to keep the Leased Premises in a safe and serviceable condition. D. MAINTENANCE OF ROADS - Lessor shall maintain roads on the Airport which afford access to the Leased Premises in a good and adequate condition for use by automobiles and trucks. ARTICLE SIR OBLIGATIONS OF THE LESSEE A. NET LEASE - This Lease shall be without cost to the City of Lubbock for the development, maintenance and improvement of the Leased Premises. It shall be the sole responsibility of the Lessee to keep, maintain, repair and operate the entirety of the Leased Premises and all improvements and facilities placed thereon at Lessee's sole cost and expense. B. PRIVILEGES AND CONDITIONS - Lessee is herein granted the fol- lowing nonexclusive general privileges, uses and rights: 1. The right of ingress to and egress from the Leased Premises over and across common or public roadways serving the Airport. Such right of ingress and egress, however, shall be subject to all laws, ordinances, rules and regulations now existing or hereafter promulgated by the City of Lubbock or other lawful authority. 2. Lessee agrees to maintain, at no expense to the Lessor, all T-Hangar unit doors as necessary for their safe operation. 3. Lessee agrees that it does not acquire any equity or title to the Leased premises as a result of this Agree- ment and that the T-Hangar units and office space herein leased shall remain the sole property of Lessor. 4. Lessee agrees to terminate this Agreement upon thirty (30) days notice from Lessor if the City of Lubbock in - 3 - good faith deems that the T-Hangar units herein leased need to be removed from the Airport site in order to pro- vide for development of the Airport. 5. Lessee agrees that it will not use or permit the Leased Premises herein leased to be used for any other purpose other than that which is expressly herein authorized. 6. Lessee covenants that it will not store or permit storage of gasoline, oil, paint or any other flammables on the Leased Premises and that no smoking or open flame will be permitted thereon. It is also understood that Lessee will not use or permit use of the T-Hangar units for any purpose other than for storage of aircraft or uses autho- rized by the Director of Aviation of the City of Lubbock, and in no way shall any commercial operation of any na- ture be permitted. 7. Lessee covenants that it will ensure that all lessees of the T-Hangar units comply with all laws, ordinances, rules, regulations, policies and security procedures now existing or hereafter promulgated by the City of Lubbock or other lawful authority. 8. Lessee shall prohibit both unauthorized persons and vehicles from entering restricted Airport premises through gates or premises which Lessee or its tenants control, singularly or otherwise, and Lessee agrees in the event that a civil penalty or fine is levied against the Airport or City of Lubbock as a result of Lessee's failure to comply or act in accordance with this provi- sion or any other applicable federal, state or local statutes, ordinances, rules and regulations affecting the use, occupancy or operation of any of said restricted premises, Lessee shall immediately reimburse the Airport or City of Lubbock the full amount of the penalty or fine - 4 - and correct the act or omission leading to, causing or contributing to the violation. C. MAINTENANCE - Lessee accepts. the Leased Premises in their present condition and shall, at its sole cost and expense, repaint, repair and maintain the T-Hangar units and office space herein leased consistent with good business practice and at least equal in appearance and character to similar improve- ments on the west side of the Airport. Lessee shall repair all damage to the Leased Premises and other City -owned prop- erty resulting from its business activities at the Airport. Lessor shall be the sole judge of the quality of maintenance and repairs; and upon written notice, Lessee shall be required to perform such maintenance and repairs as the Director of Aviation of Lessor deems necessary. Lessor shall have the right to terminate this Agreement immediately upon Lessee's failure to comply with this provision within fifteen (15) days following receipt of such written notice from the Director of Aviation. D. PROPERTY PERMANENTLY AFFIXED TO PREMISES - Any property be- longing to Lessee which becomes permanently attached to the Leased Premises shall become the property of the City of Lubbock either upon termination of this Agreement or expira- tion of its term. Determination by the City Attorney of the City of Lubbock as to whether an item has become "permanently attached" to the Leased Premises shall be final. E. REMOVAL OF LESSEES PROPERTY - Lessee shall have the right, except as otherwise herein provided, within fifteen (15) days of termination of this Agreement or expiration of its term, to remove from the Leased Premises all of Lessee's furniture, equipment and other property which have not become permanently affixed to the Leased Premises, but Lessee shall also have the duty to restore the Leased Premises to their original condi- tion, normal wear and tear excepted. Lessor shall have a - 5 - contractual lien on all of Lessee's property to secure any unpaid rentals or other charges due Lessor, and Lessee's right to remove its property from the Leased Premises is contingent upon all sums due or owed to Lessor being paid in full by Lessee. Property left by Lessee on the Leased Premises after thirty (30) days from the date of termination or expiration of this Agreement shall be deemed abandoned and will become the property of Lessor and may be disposed of as the Lessor chooses, without liability to account to the Lessee for the proceeds of any sale. Lessor, at its option, may charge Lessee rent from the date of expiration or termination of this Agreement through the day of final removal of said property or of notification to.Lessee that said property has been deemed abandoned, as the case may be, which rent shall not be less than the monthly rental herein required to be paid to the Lessor. F. SUBORDINATION OF LIEN - Lessee must provide the Director of Aviation of Lessor with a subordination agreement executed by each lien holder that has a lien against any property to be used or installed by Lessee upon the Leased Premises which subordinates said lien or liens to Lessor's contractual lien securing payment of all sums due Lessor under this Agreement. G. RATES - Lessee agrees to charge fair, reasonable and nondis- criminatory rates and charges for the rental of T-Hangar units, which rates and charges shall be subject to review and approval by the Airport Board of the City of Lubbock. H. ADVERTISING - Lessee will erect no signs and will distribute no advertising at the Airport without the prior written con- sent of the Director of Aviation of Lessor. I. UTILITIES - Lessee shall assume responsibility and pay for all costs and charges for metered utility services furnished Lessee during the term of this Agreement. Lessee shall have the right to connect to any storm or sanitary sewers and water - 6 - and utility outlets, the cost of extension, installation and meters, where required, to be borne by Lessee. J. PAYMENT OF TAXES, FEES - Lessee shall pay all federal, state and local government taxes, license fees, assessments and occupation taxes levied on the business conducted on the Leased Premises, or on any of Lessee's property used in con- nection therewith. Lessee shall render for taxation purposes all property used in connection with the business conducted on the Leased Premises, and all such property shall have its situs and domicile in Lubbock, Lubbock County, Texas. Delin- quency in the payment of any such obligations shall constitute grounds for immediate termination of this Agreement by Lessor. K. REGULATIONS - Lessee's officers, agents, employees and ser- vants will obey all laws, ordinances, rules and regulations which have been or may be promulgated by the City of Lubbock or by other lawful authority to ensure the safe and orderly conduct of operations and traffic at the Airport. L. PROHIBITION OF SUBLEASES AND ASSIGNMENTS - Lessee will not, directly or indirectly assign, sublet, sell, hypothecate or otherwise transfer this Lease or any portion of the Leased Premises without the prior written consent of the Director of Aviation of the City of Lubbock. M. REMOVAL OF TRASH - Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage and other refuse resulting from its business activities at the Airport. N. INDEMNIFICATION AND INSURANCE - 1. Lessee shall be deemed to be an independent contractor and operator, responsible to all parties for its own acts and omissions, and Lessor shall in no way be responsible therefor. Lessee agrees to indemnify, defend and forever save the Lessor, it authorized agents, representatives and employees, harmless from and against any and all - 7 - penalties, liability, annoyances, expense or loss, in- cluding attorneys' fees, resulting from claims or court actions of any nature arising directly or indirectly out of any acts or omissions of the Lessee, its agents, servants, guests, employees or business visitors under this Agreement. 2. The Lessee shall maintain insurance at all times, at its sole expense, with an insurance underwriter authorized to do business in the State of Texas and acceptable to the Lessor, against claims of public liability and property damage resulting from Lessee's business activities at the Airport. The amount of insurance coverage shall not be less than FIFTY THOUSAND AND N0/100 DOLLARS ($50,000.00) for property damage as a result of any one accident or event, or less than ONE HUNDRED THOUSAND AND N0/100 DOLLARS ($100,000.00) for personal injury or death of any one person in any one accident or event, or less than THREE HUNDRED THOUSAND AND N0/100 DOLLARS ($300,000.00) for personal injury or death of two (2) or more persons in any one accident or event. Certificates of insurance or other satisfactory evidence of coverage shall be filed with the Director of Aviation of Lessor prior to entry upon the Leased Premises by the Lessee. Each policy shall name the City of Lubbock as an additional insured as its interest may appear, and shall contain a provision requiring the insurer to give the Lessor written notice of cancellation or of any material change in said policy or certificates at least thirty (30) days in advance of the effective date of such cancellation or material change. Each policy shall also contain a provision waiving the right of such insurer to subrogation. The above insurance coverage must also include Hangar Keepers Liability coverage. - 8 - 3. Lessee shall also procure from a company authorized to do business in the State of Texas and maintain Hazard and Extended Coverage Insurance upon the buildings herein leased to 80% of the full insurable value thereof and shall furnish the Director of Aviation of Lessor with evidence that such coverage has been procured and is being maintained. 4. Lessee shall furnish to the Lessor satisfactory evidence that it carries Workers' Compensation Insurance in accor- dance with the laws of the State of Texas. 0. WAGES - Lessee shall pay, or require payment of, not less than the prevailing wage rates for each worker employed by Lessee, or by persons or firms engaged by Lessee, as required by Arti- cle 5159a, Vernon's Ann.Civ.Stat., or by ordinances enacted pursuant to said Texas statute. P. LIENS PROHIBITED - Lessee shall not bind Lessor or attempt to bind Lessor for payment of any money in connection with any construction, reconstruction, repairs, alterations or addi- tions to the Leased Premises, and Lessee shall not permit any mechanic's, materialman's or contractor's liens to arise against the Leased Premises or improvements thereon or any equipment, machinery and fixtures thereon belonging to the Lessor, and Lessee expressly agrees it will keep and save the Leased Premises and the Lessor harmless from all costs and damages resulting from any lien or liens of any character created or that may be asserted through any act or thing done by the Lessee, it officers, agents or employees. In the event any mechanic's lien or other liens or orders for payment shall be filed against the Leased Premises or improvements thereon, or City -owned property located thereon, during the term hereof, Lessee shall within ten (10) days cause the same to be cancelled and discharged of record, by bond or otherwise, at the election and expense of Lessee, and shall also defend on - 9 - behalf of Lessor, at Lessee's sole cost and expense, any action, suit or proceeding which may be brought thereon or for the enforcement of such liens or orders. Failure of the Lessee to comply with any requirement of this paragraph shall be cause for immediate termination of this Agreement by Lessor. Q. NONDISCRIMINATION PRACTICES - Lessee, its agents and employees will not discriminate against any person or class of persons in any manner prohibited by the Federal Aviation Regulations. Lessee further agrees to comply with such enforcement proce- dures as the United States might demand that the Lessor take in order to comply with the Sponsor's Assurances. Lessee also agrees not to discriminate against any employee or applicant for employment because of race, color, sex, age, religion or national origin. Lessee further agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, sex, age, religion or national origin. Such action shall include, but not be limited to, employment, upgrading, demotions, transfers, recruitment, layoffs, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Lessee will conduct its business activities and operate its facilities in accordance with the requirements of Section 504 of the Rehabilitation Act of 1973 so as to ensure 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 activity of the Lessee. ARTICLE SEVEN EXPIRATION, TERMINATION A. EXPIRATION - This Lease shall expire at the end of its term and Lessee shall have no further right or interest in the land - 10 - or improvements hereby demised, except as provided in Article Six. B. TERMINATION BY LESSEE - This Lease shall be subject to termi- nation by Lessee without further liability to Lessor, after the happening of any one or more.of the following events: 1. The permanent abandonment of the Airport as an air termi- nal. 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part thereof, in such a manner as to substantially restrict Lessee from conducting business activities thereon for a period of ninety (90) days. 3. The issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of the Leased Premises for a period of at least ninety (90) days or more. 4. The breach by Lessor of any of the terms, covenants or conditions of this Agreement to be kept, performed and observed by Lessor, and the failure of Lessor to remedy such breach for a period of sixty (60) days after receipt from Lessee of written notice of said breach. C. TERMINATION BY LESSOR - This Lease shall be subject to termi- nation by Lessor, without further liability to Lessee, after the happening of any one or more of the following events: 1. If Lessee makes an assignment for the benefit of credi- tors; or files a voluntary petition of bankruptcy; or if proceedings in bankruptcy are instituted against Lessee and Lessee is thereafter adjudicated as bankrupt pursuant to such proceedings; or if a court assumes jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any federal reorganization act; or if a receiver for Lessee's assets is appointed; or if Lessee petitions or applies to any tribunal for the appointment of a trustee or receiver for Lessee under any bankruptcy, reorganization arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction. 2. If Lessee abandons and discontinues its business activi- ties at the Airport. 3. If Lessee defaults in or fails to make any payments at the time and in the amounts required of Lessee under this Agreement. 4. If Lessee fails to perform, keep and observe all of the covenants and conditions contained in this Agreement to be performed, kept and observed by Lessee. 5. If Lessee fails to abide by all applicable laws, ordi- nances, rules and regulations of the United States, State of Texas, City of Lubbock or Airport Board of the City of Lubbock. Lessor shall give written notice to Lessee to correct or cure any such default, failure to perform or breach and if, within thirty (30) days from the date of such notice, the default, failure to perform or breach complained of shall not have the been corrected in a manner satisfactory to Lessor, then and in such event Lessor shall have the right, at once and without further notice to Lessee, to declare this Agreement terminated and to enter upon and take full possession of the Leased Premises and, provided further, that upon the happening of any one or more of the events enumerated in Article Seven, Section C, numbered Paragraph 1 hereof, this Agree- ment shall be deemed to be breached by Lessee and thereupon "ipso facto," and without entry or any other action by Lessor, this Agreement shall terminate, and be reinstated only if such invol- untary bankruptcy or insolvency proceedings, petition for reorgani- zation, trusteeship, receivership or other legal act divesting Lessee of its rights under this Agreement shall be denied, set - 12 - aside, vacated or terminated in Lessee's favor within thirty (30) days from the happening of the events. Reinstatement of this Agreement is also conditioned upon Lessee paying or discharging, within ten (10) days after the final denial, vacating or setting aside of such petition or vacating, terminating or setting aside of such appointment, any and all sums of money which may have become due under this Agreement in the interim and remain unpaid, and Lessee shall likewise fully perform and discharge all other obliga- tions which may have accrued and become payable in the interim. The acceptance of rentals or charges by Lessor for any period or periods after a default of any of the terms, covenants or condi- tions herein contained and to be performed, kept or observed by Lessee shall not be deemed a waiver of any rights on the part of Lessor to cancel this Agreement for failure by Lessee to so per- form, keep or observe any of the terms, covenants or conditions hereof to be performed, kept or observed. No waiver by Lessor of any of the terms of this Agreement to be kept, performed or ob- served by the Lessee shall be construed to be or act as a waiver by Lessor of any subsequent default by Lessee. ARTICLE EIGHT GENERAL A. TIME OF EMERGENCY - During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government, and if any such lease is executed, the provisions of this instrument, insofar as they are inconsistent with provisions of the lease executed with the Government, shall be suspended. B. SPONSOR'S ASSURANCE SUBORDINATION - This Lease shall be subor- dinate to the provisions of any existing or future agreement between the Lessor and the United States pertaining to the operation and maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the receipt or expenditure of federal funds for the develop- - 13 - ment or maintenance of the Airport. Should the effect of such agreement with the United States be to take any portion of the Leased Premises or substantially destroy the commercial value thereof, Lessor shall not be held liable therefor. C. REPLACEMENT AFTER DAMAGE - Lessor and Lessee agree that in the event the Leased Premises are damaged by fire or other acci- dental cause during the term hereof so as to become totally or partially untenantable, Lessee will restore such Leased Premises to their former condition. D. CONFLICT OF INTEREST - Lessee acknowledges that it is informed that Texas law prohibits contracts between the City of Lubbock and its "officers" and "employees," and that the prohibition extends to officers and employees of City agencies such as City -owned utilities and certain City boards and commissions, and to contracts with any partnership, corporation or other organization in which such officers or employees have an in- terest. Lessee certifies that neither it nor any person having an interest in this Agreement is an officer or employee of the City of Lubbock or any of its agencies, boards or com- missions. E. LANDLORD'S LIEN - Lessee hereby gives Lessor a lien upon all of its property, now or at any time hereafter placed in or upon the Leased Premises, to secure the prompt payment of the rentals and charges herein required, and Lessee hereby waives all exemptions for such property, and any portion thereof, insofar as permitted by law. F. RIGHT OF INSPECTION - Lessor reserves the right to conduct in- spection of the Leased Premises at reasonable times to ensure that fire, safety and sanitation regulations and other provi- sions contained in this Lease are being adhered to by the Lessee. - 14 - G. HEADINGS - Paragraph headings contained herein are for conve- nience in reference and are not intended to define, extend or limit the scope of any provisions of this Agreement. H. NOTICES - Notices to the Lessor required or appropriate under this Agreement shall be deemed sufficient if in writing and mailed, registered or certified mail, postage prepaid, addressed to the Director of Aviation, Lubbock International Airport, Route 3, Box 389, Lubbock, Texas 79401. Notices to the Lessee shall be deemed sufficient if in writing and mailed, registered or certified mail, postage prepaid, addressed to the Lessee at the address for Lessee on file with the Director of Aviation of the City of Lubbock. I. ENTIRE AGREEMENT - This Agreement constitutes the entire agreement between Lessor and Lessee, and any other written or oral agreements shall not be asserted. EXECUTED this 22nd day of February 1990. LESSOR: LESSEE: JOHN BERRY D/B/A CITY OF LUBBOCK. BERRY'S ENTERPRISE BY: yJ� c �'� BY. 8. C. McMINN, MAYOR Title: ATTEST: ATTEST: l RanetEte Boyd, City S cretary APPROVED AS TO CONTENT: Bern E. Case, Director of Aviation APPROVED AS TO FORM: �g� WJL-tv Ha olWillard, Assistant City Attorney - 15 - xhibit A r I.- cc ' LUBBOCK INTERNATIONAL AIRPORT EXISTIN_G FACILITIES ,� ^. iK't.'�a�' .�••. :a':-z.xiipn'�r."i,`"`'��'i •c' 7^ W .! ��', •r•:}r-::: .:a :;ti.! �.: L•.Y+•.. •j d'• .� .+t•. ,r,.+, •�•�' ��1V�- ��i'•3'':•i,+' =f nY hr•. 'S. k E y..'