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HomeMy WebLinkAboutResolution - 4889 - Sublease Agreement - American Airlines Inc, American Eagle - LIA - 07_13_1995Resolution No. 4889 July 13, 1995 Item #23 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 Sublease Agreement between American Airlines, Inc. and Simmons Airlines, Inc. d/b/a American Eagle, attached hereto, 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 13th y July , 1995. ATTEST: &�-' /(k Q"-tp� etty lk.Johnson, City Secretary APPROVED AS TO CONTENT: Mar arle, Aviation Manager APPROVED AS TO FORM: A�Z� V-jW4X'0 Harold Willard, Assistant City Attorney HW.js/AMEREGLE.RES ccdocs/June 15, 1995 Resolution No. 4889 July 13, 1995 Item #23 AMERICAN AIRLINES, INC. AGREEMENT OF SUBLEASE This Agreement of Sublease (the "Sublease"), dated as of the 15th day of December, 1994, is entered into by and between AMERICAN AIRLINES, INC., a Delaware corporation, ("American") and SIMMONS AIRLINES, INC., d/b/a AMERICAN EAGLE, a Delaware corporation, (the "Sublessee"); WITNESSETH: WHEREAS, by lease dated June 1, 1983, and any amendments thereto, (as may be applicable) (the 'Base Lease"), American leases from The City of Lubbock (the "Landlord") certain premises at Lubbock International Airport (the 'Base Lease Premises"), (to the extent that the Base Lease Premises are part of a larger structure) that structure shall be referred to herein as the "Building"; and WHEREAS, American is willing to sublease to Sublessee and Sublessee is willing to sublease from American, all or a portion of the Base Lease Premises, (as may be applicable) as more fully described herein, on the terms and conditions set forth herein. NOW, THEREFORE, American and Sublessee agree as follows: 1. Premises. American hereby subleases to Sublessee and Sublessee hereby Subleases and takes from American approximately 3,882 square feet of space in the Base Lease Premises, such space being shown by the red lines on Exhibit "A" attached hereto and made a part hereof (the "Demised Premises"). 2. Term. The term of this Sublease shall commence on December 15, 1994 and shall expire on September 30, 1999, subject to cancellation by either party on 30 days written notice. LBBSubl 1 3. Base Lease Incorporated. Except as set forth herein, this subletting shall be on the same terms and conditions as are contained in the Base Lease, to the extent that such Base Lease terms are appropriate to this Sublease. Further, Sublessee acknowledges and agrees that this Sublease shall be in all respects subject and subordinate to the Base Lease. Nothing contained in this Sublease shall be deemed to confer upon Sublessee any rights which are in conflict with the Base Lease, as the same may be altered or amended from time to time. Sublessee shall not do or permit to be done any act or thing which would contravene the terms of the Base Lease, and the Base Lease shall govem in the event of a conflict with this Sublease. In the event that the Base Lease is canceled or terminated for any reason, the term of this Sublease shall automatically terminate simultaneously therewith. 4. Use. During the term hereof, Sublessee shall use and occupy the Demised Premises for airline operations and for no other purpose. 5. Rent/Default Interest. A. Rent. As rental for the Demised Premises, Sublessee shall pay American a base rental of $4,182.38 per month, without set-off or deduction, due and payable in advance on the first day of each month during the term hereof, which Base Rental is in addition to the cost of utilities and services described in Section 6. In addition, Sublessee shall pay a monthly amount for common bag claim and common boarding lounge based on 20/80 formula. Rental due hereunder shall be subject to adjustment for any changes made to the rental due under the Base Lease, or for any increase in American's costs in providing, maintaining or operating the Demised Premises, and American shall notify Sublessee in writing of any such adjustment. Any adjustment in rental shall be effective simultaneously with the increase of American's costs. In the event this sublease commences or terminates on other than the last day of any particular month, all rentals hereunder shall be prorated. B. Default Interest. If Sublessee shall default in its payment of any rent or LBBSubl 2 other amounts or charges required to be paid pursuant to this Sublease, such unpaid amount shall bear interest from the date of default at the maximum lawful rate. C. Late Payment. Sublessee acknowledges that the late payment by Sublessee of any monthly installment of rent or other charges (including common area charges based on 20/80 formula) will cause American to incur certain costs and expenses not contemplated under this Sublease, the exact amount of which costs are difficult or impracticable to determine. Therefore, if any such amount owing is not received by American with ten (10) days following the due date thereof, Sublessee shall immediately pay to American a late charge equal to 1.5% of such amount owing. To the extent that any late charge provided for hereunder is determined to constitute interest, in no event shall such late charges, plus any other interest due on sums owed to American hereunder, ever exceed the maximum interest rate permitted by law, and in the event such amount should exceed the maximum rate, then the amount owed to American shall automatically be reduced to equal the maximum amount permitted by law. 6. Utilities and Services. American will furnish the Demised Premises with utilities and services to the extent that they are furnished to American under the Base Lease, except that American assumes no responsibility for interruption of such services for any reason whatsoever, and Sublessee agrees to pay American for any extraordinary electrical, gas or water consumption to the Demised Premises at the rate payable by American for that utility. 7. Acceptance of Premises. Sublessee has inspected the Demised Premises and accepts the Demised Premises AS -IS and acknowledges that, except as otherwise contained herein, American has made no representations as to the condition thereof. 8. Repairs and Maintenance. The Sublessee, at its sole cost and expense, shall keep the Demised Premises in a clean, neat and orderly condition at all times. Further, Sublessee shall, at its own expense, make all necessary interior, non-structural repairs to the Demised Premises so as to maintain LBBSubl 3 the Demised Premises in good order and condition, reasonable wear and tear and damage by fire or other casualty excepted. In the event that Sublessee fails to make any required repair within ten (10) days after receiving written notice from American that such repair is needed, or in the event that Sublessee fails within ten (10) days to commence and thereafter diligently complete such repair, American, without being obliged to do so, may make such repairs and Sublessee shall thereafter promptly reimburse American for all expenses incurred on account thereof. 9. Taxes. Sublessee agrees to pay, before they become delinquent, all taxes (both general and special), assessments or governmental charges of any kind whatsoever (the 'Taxes"), levied or assessed against the Demised Premises, or any property of Sublessee located thereon or any business conducted by Sublessee thereon. Sublessee agrees to use its best efforts to cause the Demised Premises, its personal property and business operations to be assessed and taxed separately from the Demised Premises. In the event that American shall be assessed for Taxes on the Demised Premises or any or all of Sublessee's leasehold improvements, equipment, furniture, fixtures, personal property or Sublessee's business operations, Sublessee shall pay to American the amount of the Taxes within ten (10) days after delivery to Sublessee by American of a written statement setting forth the amount of the Taxes payable by Sublessee. On demand by American, Sublessee shall furnish American with satisfactory evidence that the payments required to be made by Sublessee hereunder. 10. Alterations. Sublessee may not make any alteration, addition or improvement to the Demised Premises, except for non structural repairs as required under paragraph 7 herein, without the prior written approval of American and the Landlord. Unless American elects otherwise, all alterations, additions or improvements to the Demised Premises shall become the property of American upon the expiration of this Sublease or any extension thereof. In the event American so elects, such alterations, additions or improvements shall be removed by Sublessee at its own cost and expense, prior to expiration of the term of this Sublease, and Sublessee shall repair any damage to the Demised Premises caused by such removal. LBBSubl 4 11. Right of Entry. American shall have the right to enter the Demised Premises for any reasonable purpose, including to gain access to and egress from those portions of the Base Lease Premises or the Building not leased to Sublessee hereunder and to perform such functions as may be necessary or convenient for the maintenance and operation thereof. 12. Compliance with Law. Sublessee will comply with all applicable statutes, ordinances, rules, regulations, orders and directives of any governmental authority applicable to the Demised Premises or Sublessee's use or occupancy thereof and perform, at its own expenses, all obligations imposed thereby. 13. Casualty. In the event that the Demised Premises or any portion thereof should be damaged or destroyed by fire, or other casualty, American, at its option, may either terminate this Sublease or diligently proceed to cause the repair of the damage to the Demised Premises. ff American elects to repair or rebuild, and if the Demised Premises are so damaged that Sublessee is unable to occupy the Demised Premises or a portion thereof during such repair or reconstruction, then the rental hereunder shall be appropriately abated until the Demised Premises can be occupied by Sublessee. American shall in no event be required to rebuild, repair or replace any improvements, fixtures or personal property of Sublessee. Notwithstanding the foregoing, in the event the Building or the Demised Premises or the Base Lease Premises are damaged or destroyed through the negligence or willful misconduct of Sublessee, its officers, directors, employees, agents, customers, concessionaires, vendors, contractors or invitees, then Sublessee shall pay to American upon demand, the cost of repairing any such damage. 14. Release and Indemnity. A. Release. Sublessee hereby agrees that American shall not be liable for any loss or any damage to any property (including the property of Sublessee, its officers, directors, employees, agents, customers, concessionaires, vendors, contractors or invitees) or the death or injury of LBBSubl 5 any persons (including Sublessee, its officers, directors, employees, agents, customers, concessionaires, vendors, contractors or invitees) occasioned by theft, fire, acts of God, public enemy, injunction, riot, strike, insurrection, war, or any other action of any governmental body or authority, by other tenants of the Base Lease Premises or the Building or any other matter beyond the control of American, or for any injury or damage or inconvenience which may arise through repair or alteration of any part of the Demised Premises or the Base Lease Premises or the Building, or failure to make repairs, or for any cause whatsoever, except in each case arising from the negligence or willful misconduct of American. B. Indemnity. Sublessee hereby releases and will defend, indemnify and hold harmless American and the Landlord, their respective officers, directors, employees, agents, concessionaires, vendors and contractors (the "Indemnified Parties") from and against any and all liability, claims, penalties, fines, causes of action, suits, liens, losses, loss of use, damages, costs and expenses of any kind (including legal fees and litigation costs) which may be suffered by, accrued against, charged to or recoverable from the Indemnified Parties by reason of (i) any occurrence in, upon, or at the Demised Premises, however caused, including without limitation, occurrences caused, in whole or in part, by the negligence or misconduct of Sublessee, its officers, directors, employees, agents, customers, concessionaires, vendors, contractors or invitees; or (ii) any occupancy, use, or misuse of the Demised Premises, or the areas surrounding the Demised Premises or the service areas, parking areas, pedestrian areas, pedestrian walks or driveways in or around the Demised Premises, by Sublessee, its officers, directors, employees, agents, customers, concessionaires, vendors, contractors or invitees; (iii) any occurrence elsewhere in the Base Lease Premises or the Building occasioned in whole or in part by the act or omission of Sublessee; or (iv) any occurrence occasioned by the violation of any law, regulation or ordinance by Sublessee or its employees, officers, directors, employees, agents, customers, concessionaires, vendors, contractors or invitees. 15. Insurance. LBBSubl 6 A. Coverage. During the term of this Sublease, Sublessee, at its own cost and expense, shall maintain with insurers acceptable to American, the following coverage: (i) Comprehensive Airline Liability insurance including but not limited to Comprehensive General Liability, Contractual Liability and Automobile Liability coverages in an amount not less than $2 Million for bodily injury and property damage combined single limit, and (ii) all risk property insurance covering loss of or damage to property of the Sublessee in an amount at least, equal to the value of such property. Sublessee shall also maintain Worker's Compensation and Employer's Liability coverage as may be required by law. B. Form and Certificates. The liability policies shall: (i) name American and the Landlord as additional insureds; (ii) specifically insure the liability assumed by Sublessee hereunder, (iii) be primary without right of contribution from any insurance carried by American or the Landlord hereunder, and (iv) provide for thirty (30) days written notice to American and the Landlord prior to cancellation or material change. Certificates evidencing the above coverages and special endorsements shall be provided to American and the Landlord on or before the date Sublessee takes possession of the Demised Premises. C. Waiver of Subrogation. Sublessee, on behalf of itself and its insurers, hereby waives any claim or right of recovery from American or Landlord, their officers, directors, employees, agents, concessionaires and contractors, for loss or damage to Sublessee or its property or the property of others under Sublessee's control, to the extent that such loss is covered by valid insurance policies. Sublessee shall provide notice of this waiver of subrogation to its insurers. 16. Liens. Sublessee hereby agrees to keep the Demised Premises, and the improvements thereon, free and clear of mechanics' liens and other liens for labor, services, equipment or materials. In the event such a lien is filed or recorded, Sublessee shall take all action required to remove the same within fifteen (15) days of the filing or recordation. In the event that Sublessee fails to take such action to remove the lien, then American may do so and all costs associated therewith shall be due to American from LBBSubl 7 Sublessee upon demand. 17. Condemnation. A. Total Taking. If during the term of this Sublease or any extension or renewal thereof, all or a substantial part of the Demised Premises should be taken for any public or quasi -public use under any governmental law, ordinance or regulation or by right of eminent domain, or should be sold to the condemning authority under threat of condemnation, this Sublease shall terminate and the rent hereunder shall be abated during the unexpired portion of this Sublease, effective from the date of taking of the Demised Premises by the condemning authority. B. Partial Taking. If less than a substantial part of the Demised Premises is taken for public or quasi -public use under any governmental law, ordinance or regulation, or by right of eminent domain, or is sold to the condemning authority under threat of condemnation, American, at its option, may by written notice terminate this Sublease or shall forthwith at its sole expense restore the Demised Premises (other than leasehold improvements made by Sublessee), situated on the Demised Premises in order to make the same reasonably tenantable and suitable for the uses for which the Demised Premises are subleased. The rent payable hereunder during the unexpired portion of this Sublease shall be adjusted equitably. C. Awards. American and Sublessee shall be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceedings. The termination of this Sublease shall not affect the rights of the respective parties to such awards. 18. Defaults. The occurrence of any of the following shall constitute a default by Sublessee under this Sublease: (i) Sublessee fails to pay any sum as required hereunder and such failure continues for ten (10) days; LBBSubl 8 (ii) Sublessee abandons or vacates the Demised Premises; (iii)Sublessee fails to observe and perform any other provision of this Sublease, and such failure continues for thirty (30) days after written notice thereof by American to Sublessee; provided however, that if the default cannot reasonably be cured within said 30-day period, Sublessee shall not be deemed to be in default if Sublessee timely commences to cure the default and thereafter diligently prosecute the same to completion; (iv)Sublessee (a) fails to pay its bills when due without just cause; or (b) takes any steps leading to its cessation as a going concern or ceases or suspends operations for reasons other than a strike; or (c) becomes insolvent or makes transfers in fraud of creditors or makes an assignment for the benefit of creditors; or (d) files a petition for protection under any state or federal bankruptcy act or a trustee or receiver is appointed for all or substantially all of Sublessee's assets. 19. Remedies Upon Default. Upon the occurrence of an event of default hereunder, American may take any one or more of the following actions: (i) Maintain this Sublease in full force and effect and recover any and all rent and other monetary charges as they become due, without terminating Sublessee's right to possession, regardless of whether Sublessee shall have abandoned the Demised Premises. If American elects not to terminate this Sublease, American shall have the right to attempt to relet the Premises on behalf of Sublessee upon such conditions and for such a term and to do all acts necessary to maintain or preserve the Demised Premises as American deems reasonable and necessary, including the removal of all persons and property from the Demised Premises, without being deemed to have elected to terminate this Sublease. Any property so removed may be disposed of or stored in a public warehouse or elsewhere, at American's election, at the cost of and for the account of Sublessee. Notwithstanding that American fails to elect to terminate this Sublease initially, American at any time thereafter may elect to terminate this Sublease as a result of such previous and then existing default of Sublease; LBBSubl 9 (ii) Terminate this Sublease by written notice to Sublessee, in which event this Sublease shall be ended as to Sublessee and all persons holding under Sublessee, and all of Sublessee's rights shall be forfeited and lapsed, as fully as if this Sublease had expired by lapse of time. In such event, Sublessee shall be required to vacate the Demised Premises immediately and surrender same to American. If Sublessee fails to surrender the Demised Premises immediately to American, American, without prejudice to any other remedy, may enter upon and take possession of the Demised Premises and expel or remove Sublessee and any other person who may be occupying the Demised Premises or any part thereof, without being liable for prosecution or any other claim of damages. In the event of termination in accordance with this provision, the rental or any other sums payable by Sublessee pursuant to this Sublease that have accrued hereunder but are unpaid shall be immediately due and payable by Sublessee to American. In addition, Sublessee agrees to pay to American upon demand the amount of all loss and damages which American may suffer by reason of such termination, whether through inability to relet the premises on satisfactory terms or otherwise, including, without limitation, (a) all expenses incurred by American, including court costs and attorney's fees, in recovering possession of the Demised Premises or enforcing American's rights under this Sublease; (b) all costs and charges for care of the Demised Premises while vacant; (c) all costs of restoring the Demised Premises to a good condition; (d) all costs associated with American's efforts to relet the Demised Premises; and (e) the difference between the total rental that would have accrued to American under the Sublease for the remainder of the term had the Sublease not been terminated and the total fair market rental value of the Demised Premises for the remainder of the term of the Sublease. The failure of American to relet the Demised Premises or any part or parts thereof shall not release or effect Sublessee's liability for damages hereunder; (iii)Cure the default on the behalf of the Sublessee, in which event the Sublessee shall, upon demand by American, pay all sums reasonably expended by American in accomplishing such cure; LBBSubl 10 (iv) Exercise any right available to American in law or in equity. 20. Cumulative Rights. American's rights and remedies hereunder shall be cumulative and shall not be exclusive of one another, and American shall have the right to pursue any one or more of them. American's acceptance of any rent or other payments due hereunder or American's failure to take any action on account of a default if such default persists or is repeated, shall not be deemed a waiver of any default. American's consent to any act by Sublessee requiring American's consent or approval shall not be deemed to waive or render unnecessary American's consent or approval to any subsequent or similar acts by Sublessee. 21. Surrender of Premises/Holding Over. At the expiration or earlier termination of this Sublease, Sublessee shall surrender the Demised Premises to American in good condition, broom clean, reasonable wear and tear, damage by fire or other casualty excepted. Should Sublessee remain in possession of the Demised Premises, or any portion thereof, after the termination of this Sublease (whether by expiration of the term of this Sublease or otherwise), without the express written consent from American or the execution of a new Sublease, Sublessee shall become a tenant from month to month and shall be liable to pay monthly rental at double the rate provided hereunder, as long as Sublessee remains in the Demised Premises. Such tenancy shall be subject to all terms and conditions of this Sublease. 22. Assignment and Sublease. Sublessee shall not assign this Sublease or any right hereunder or sublet the Demised Premises during the tern of this Sublease, without the prior written consent of American. American's acceptance of rent from any person other than Sublessee shall not be deemed to be a waiver of this provision. Consent to one assignment or subletting shall not be deemed to be consent to any subsequent assignment or subletting. 23. Accord and Satisfaction. No payment or receipt by American of a lesser amount than the rent or other charges herein stipulated shall be deemed to be other than on account of the rent or such charges. Further, no LBBSubl 11 endorsement or statement on any check or any letter accompanying any check shall be deemed to be an accord and satisfaction. American may accept such check or payment without prejudice to American's right to recover the balance of such rent or other charges or pursue any other remedy provided in this Sublease. 24. Force Maleure. Neither party shall be deemed to be in breach of this Sublease by reason of a failure to perform any of its obligations hereunder to the extent that such failure is caused by strike or labor troubles, unavailability of materials or utilities, riots, rebellion, insurrection, invasion, war, action or interference of governmental authorities, acts of God, or any other cause whether similar or dissimilar to the foregoing which is reasonably beyond the control of the parties; provided, however, this clause shall not apply to Sublessee's obligation to pay rent or other sums due hereunder, such obligation being absolute and unconditional. 25. Attornev's Fees. In the event that Sublessee defaults in the performance of any of the terms, conditions or agreements contained in this Sublease and American places the enforcement of all or part of this Sublease in the hands of an attorney for enforcement, including the filing of a suit upon the same, Sublessee agrees to pay all of American's reasonable attorneys fees and costs. 26. GOVERNING LAW. THIS SUBLEASE SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE DEMISED PREMISES IS LOCATED. 27. Entire Agreement/Amendment. This Sublease constitutes the complete agreement of the parties with respect to the subject matter hereof and supersedes all previous agreements, representations and understandings concerning the same, whether written or oral. The provisions of the Sublease may be modified, amended or waived only by a written instrument, executed by American and Sublessee. 28. Waiver. A wavier by either party to this Sublease of any breach of the covenants, conditions or agreements contained herein shall not be LBBSubl 12 construed as a waiver of any succeeding breach of the same or other covenants, conditions or agreements. 29. Severability. If any provision or term of this Sublease shall be determined to be illegal, invalid or unenforceable, the remainder of this Sublease shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law. 30. Approval by Landlord. This Sublease is conditioned upon written consent being obtained from the Landlord. In the event the Landlord does not give its consent, either of the undersigned parties may, at its option, rescind its signature and this Sublease shall thereafter be of no force or effect. 31. Notices. Any notice required or sent hereunder shall be in writing and shall be sent as follows: When to American: American Airlines, Inc. Attn.: Vice President - Corporate Real Estate, MD 4213 P. 0. Box 619616 DFW Airport, TX 75261-9616 Overnight Delivery Address: 4255 Amon Carter Blvd., MD 4213 Fort Worth, TX 76155 Facsimile Number: - 817-967-3111 When to Sublessee: AMR Eagle Attn.: Director Corporate Real Estate, MD 5494 P. 0. Box 619616 DFW Airport, TX 75261-9616 4333 Amon Carter Blvd., MD 5494 Fort Worth, TX 76155 817-967-3902 Either party from time to time, may change its address by written notice to the other party. Notices hereunder shall be deemed effective when delivered by hand delivery or overnight courier, or three days after deposit in the United States mail, first class, postage prepaid. 32. Quiet Enioyment. Upon Sublessee's payment of all sums due hereunder and provided that Sublessee is not otherwise in default hereunder, LBBSubl 13 Sublessee shall peaceably and quietly hold, occupy and enjoy the Demised Premises for the term of this Sublease without hindrance, ejection or interruption by American, or persons lawfully claiming through American. 33. Binding Effect. Subject to prohibitions against assignment, this Sublease shall be binding upon the parties, their personal representatives, successors and assigns. WITNESS the signatures of the parties as of the date first written above. AMERICAN AIRLINES, INC.: By: J Name: Title: S✓"'cc Name Title: President 13th Landlord this / day of July , 19 95 CI OF t�J BOCK By: ID R. LANGS Title: MAYOR ATTEST: C6"'r' Betty Johnso , City Secretary APPROVE CONTENT: l" Mar ar e, Aviation Manager APPROVED AS TO FORM g::�44 I kt&deea Harold Willard, ssis nt City Attorney LBBSubl 14 No Text t F� p #T d' � 4 t k r! jk 'ft*✓' 1 -A. 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