HomeMy WebLinkAboutResolution - 2014-R0121 - Boomer Development, LLC For Hotel At Lubbock International Airport - 04/10/2014Page 1 of 1
Thomas Harris - Contract Canceled - Boomer Development
From: Becky Garza
To: Citysec
Date: 6/22/2015 2:05 PM
Subject: Contract Canceled - Boomer Development
CC: Chad Weaver
Attachments: Reso No. 2014 -R0121 -Contract Canceled.pdf, Becky Garza.vcf
Re: Reso. No. 2014-RO121 - Agreement Boomer Development
Per Marta Alvarez, the above contract has been canceled.
Jenn: Please file this email and the attached letter/backup from Kelly Campbell in the resolution file. Also notate
on the resolution folder that the contract is canceled, and date it.
thanks,
bg
Becky Garza, TRMC
City Secretary
City of Lubbock
162513th Street
Lubbock TX 79401
PH# 806-775-2061
Fax: 806-775-3983
bgarza@mylubbock.us
file:/IC:\Users'.135630.LBBDOM\AppDatalLocal\Temp\XPgrpwis&5588161 CLubbockne... 6:'22.'2015
Lubbock Preston Smith
International Airport
June 1, 2015
Mr. Andy Hutchison
Boomer Development, Inc.
7704 Trenton Ave.
Lubbock, TX 79424
Dear Mr. Hutchison,
Please consider this letter as official notice of cancellation of the agreement between the City of
Lubbock and Boomer Development in accordance with Article 9a(1).
Thank you for your interest in commercial development at Lubbock Preston Smith International Airport
and the effort put forth on this project. I wish you all the best in your current and future endeavors.
Sincerely,
Kelly L. Campbell, AAE
Executive Director of Aviation
Enclosure
5401 N Manin Luther King Blvd., Unit 369 Lubbock. IX 79403 806 7753126 v,-wv: Hyka.cern
city of
F ' Lubbock
TEXAS
Regular City Council Meeting
Meeting Date: 04 10 2014
Information
Agenda Item
Resolution - Aviation: Consider a resolution authorizing the Mayor to execute a lease agreement between the City
of Lubbock and Boomer Development, LLC for a hotel at Lubbock Preston Smith International Airport.
Item Summary
Mr. Andy Hutchison of Boomer Development, LLC has requested to lease approximately 2.54 acres of land on the
west side of Lubbock Preston Smith International Airport in order to construct and operate a franchised hotel. The
land is adjacent to Interstate 27 by the entrance to the Silent Wings Museum.
Plans are being finalized for Cobblestone Hotels and Suites to be the franchiser. The three-story facility would
include an 80-90 room hotel, a workout room and a couple of meeting rooms which would accommodate 50-60
people. Groundbreaking will be planned for late June with completion in Spring 2015. The agreement also allows
first right of refusal for the surrounding area for commercial development.
The lease has a term of thirty (30) years with a ten (10) year option to extend the agreement.
The land rental fee will commence one year from the Date of Beneficial Occupancy or eighteen (IS) months after
execution of the agreement, whichever occurs first. The following is the rental structure through the term of the
agreement:
Years 2 — 10: $25,000 per year; $2,083.33 per month
Years 11 — 20: $30,000 per year; $2,500.00 per month
Years 21 — 30: $35,000 per year; $2,916.67 per month
Years 31 — 40: $40,000 per year; $3,333.33 per month (Option Extension)
Fiscal Impact
Revenues will increase due to the rentals received from the new tenant.
Staff/Board Recommending
Kelly Campbell, Interim Director of Aviation
Airport Board
Attachments
Resolution - Boomer Development
Agreement - Hotel Land Lease
Boomer Exhibits A -B
Boomer Exhibits C -E
Resolution No. 2014-RO121
April 10, 2014
Item No. 6.1
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock 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 Boomer Development, LLC, a Texas corporation, and related documents. Said Lease
Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and
shall be included in the minutes of the City Council.
Passed by the City Council on April 10, 2014
GLf-N C. ROBERTSON, MAYOR
ATTEST:
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
Kelly Campbell, Interim Director of Aviation
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocs: RES.Agrmt-Boomer Development
March 27, 2014
Resolution No. 2014-RO121
STATE OF TEXAS
COUNTY OF LUBBOCK
HOTEL LAND LEASE AGREEMENT
THIS LEASE AGREEMENT, hereinafter called "Agreement," made and entered into by
and between the CITY OF LUBBOCK, a Home Rule Municipality of Lubbock County, Texas,
hereinafter called "City," and BOOMER DEVELOPMENT LLC, a Texas corporation, hereinafter
called "Lessee."
WITNESSETH:
WHEREAS, City operates an airport known as Lubbock Preston Smith International
Airport which is located in the City of Lubbock, County of Lubbock, State of Texas, which is
hereinafter called "Airport"; and,
WHEREAS, Lessee desires to lease certain parcels of land at the Airport for construction
and operation of a hotel and related facilities and improvements on said parcel; and,
WHEREAS, City is willing to lease said parcels of land to Lessee for said purposes and to
grant specified rights and privileges in addition thereto;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained, City and Lessee do hereby mutually undertake, promise and agree,
each for itself and its successors and assigns, as follows:
1. TERM
a. The term, hereinafter referred to as "Term," of the Agreement shall commence on the
execution date of this Agreement and terminate thirty (30) years after the Date of Beneficial
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Hotel Land Lease Agreement
Occupancy (DBO), which shall be the date the hotel is initially opened for business. The parties
agree to confirm the DBO in writing.
b. Option to Renew
So long as Lessee is not in default of the terms and conditions of this Agreement,
Lessee shall have the option to extend this Agreement for an additional term of ten (10) years. Such
option must be requested in writing at least one hundred twenty (120) calendar days prior to the
expiration date of the original term of the Agreement.
C. Holding
If Lessee shall, with the consent of the City, hold over after the expiration or sooner
termination of the Term of this Agreement, the resulting tenancy privilege shall, unless otherwise
mutually agreed, be on a month-to-month basis until such time as Lessee shall surrender the Leased
Premises (with thirty (30) days prior written notice to City) or City shall reenter the Leased Premises
(with thirty (30) days prior written notice to Lessee). During such month-to-month tenancy, Lessee
shall pay rentals to City established in accordance with the provisions of this Agreement, and shall
be bound by all of the additional provisions of this Agreement insofar as they may be pertinent.
2. PREMISES
a. City hereby leases and grants to Lessee and Lessee hereby rents and takes from the
City, the premises described below, hereinafter referred to as "Premises" or "Leased Premises," and
further described in Exhibit "A", which is attached hereto and made a part hereof, subject to any
recorded easements, restrictions, agreements, and other lawful encumbrances.
Leased Premises SF/Acre/Number
Land
b. Survey
110,642.4 sq. ft. /2.54 ± acres
City shall provide Lessee with a boundary survey of the Premises, prepared by a
registered land surveyor duly licensed in the State of Texas, within thirty (30) days after the
execution of this Agreement. The cost of said survey shall be paid by the City. The acreage amounts
stipulated herein are estimates only and such amounts are subject to change slightly upon
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Hotel Land Lease Agreement
completion of the boundary survey of the Premises. Upon the completion of the survey, it shall be
incorporated herein as Exhibit "A."
The final acreage amount is subject to change and will be calculated based on the site
plan as approved by the City, and/or by the final "as -built" drawings of the project.
3. USES AND RIGHTS
a. Lessee shall have the right to construct and operate a hotel and related facilities upon
the Leased Premises upon the Airport. All other uses of the Premises not expressly authorized by
this Agreement are prohibited. The hotel shall meet Hotel Standards as set forth in Exhibit "C"
attached hereto and incorporated herein by reference.
apply:
b. During the Term of this Agreement, the following additional rights and prohibitions
(1) Lessee shall have the right to sell alcoholic beverages by the drink to its
patrons and guests, in accordance with state and local laws and ordinances.
(2) Lessee shall have the right to operate a restaurant, with the prior written
approval by City of the type (franchise, if applicable), plans and specifications for the proposed
restaurant on the Leased Premises, including the right to sell snacks and beverages from vending
machines.
(3) Lessee shall have the right to obtain supplies or services from suppliers,
vendors or contractors of its own choice at the Premises, provided that Lessee acknowledges City's
right to regulate providers of ground transportation service to the Airport.
(4) Lessee shall have the right to operate a shuttle service for hotel and restaurant
guests subject to reasonable regulations adopted by the City for the regulation of ground
transportation to and from the Airport, including but not limited to Article 24 of the Lubbock City
Code.
(5) Lessee shall use the Premises only in accordance with the laws of the United
States of America and the State of Texas, the rules and regulations promulgated by their authority
with reference to aviation and air navigation; and all rules, regulations and ordinances of City, as all
these may be amended.
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Hotel Land Lease Agreement
City covenants that it has lawful authority to execute this Agreement and that upon
payment of the rentals provided herein, and upon performance of the covenants and agreements on
the part of Lessee to be performed hereunder, Lessee shall peacefully have and enjoy the Premises
and the rights and privileges granted by this Agreement.
d. The Agreement, in every sense, shall be without cost to the City for the development,
maintenance and improvement of the Premises. It shall be the sole responsibility of Lessee to
develop, keep, maintain, repair and operate the entirety of the Premises and all improvements and
facilities placed thereon at Lessee's sole cost and expense.
e. In the event that Lessee desires to carry on activities in addition to those herein listed
as part of its business operations, Lessee shall do so only upon the express written approval of the
Director of Aviation.
4. RENTS, FEES AND CHARGES
In consideration of the rights and privileges to be granted to Lessee by City, the Lessee shall
pay to City as compensation therefore the following fees and charges commencing as set forth in
Subpart c. below.
a. Lessee agrees to pay the City a minimum monthly rental fee as outlined herein;
Years 2 — 10: $25,000 per year; $2,083.33 per month
Years 11 — 20: $30,000 per year; $2,500.00 per month
Years 21 — 30: $35,000 per year; $2,916.67 per month
Years 31 — 40: $40,000 per year; $3,333.33 per month (Option Extension)
b. The monthly fixed rental fee shall be paid in advance on the first day of each month
during the Term of this Agreement.
C. Payment of the monthly fixed rental fee shall commence one year from the Date of
Beneficial Occupancy (DBO) or eighteen (18) months after execution of this agreement, whichever
occurs first, unless otherwise approved by City.
d. Late Payment Charges
(1) Without waiving any other right of action available to the City in the event of
default in payment of charges and fees hereunder, if the Lessee fails to make a payment when due
and said failure continues for a consecutive period of thirty (30) days, a late payment charge of five
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Hotel Land Lease Agreement
percent (5%) of the total amount due shall be assessed. Thereafter, late payment charges shall be
assessed for each additional thirty (30) day period or portion thereof that the payment is late.
(2) All payments are due and payable on or before the 1 St day of each month this
Agreement is in effect and shall be made to the City at the Office of the Director of Aviation,
Lubbock Preston Smith International Airport, 5401 N. MLK Blvd., Unit 389, Lubbock, Texas
79403.
(3) Collection Costs
Lessee agrees to pay/reimburse the City for all costs of collection, including
but not limited to attorney's fees, in the event of default occurring by Lessee for non-payment of
rents, fees and charges as stated herein.
e. Annual Certified Statement
For each contract year, the Lessee (including any sublessee under this Agreement,
sometimes hereinafter referred to as "sublessee"), at its own cost and expense, shall provide to the
City a statement of Gross Receipts for the previous contract year prepared by an independent
certified public accountant certifying that such statements have been prepared in accordance with
Generally Accepted Accounting Principles and under the terms and conditions of the Agreement as
follows:
(1)
Room Rentals
(2)
Food and Beverage Sales
(3)
Vending Machine Sales
(4)
Miscellaneous
Such statement of Gross
Receipts shall be substantially the same as provided in Exhibit "D" as
attached hereto.
f. Definition of Gross Receipts
(1)
The term "Gross Receipts" as used in this Agreement means the total
dollar value of all receipts received by Lessee (including sublessees) which are derived from, arise
out of, or become payable on account of Lessee's (including sublessees) business and all business
transactions conducted at or from the Leased Premises by or for the account of Lessee (including
sublessees). Gross receipts are both cash and credit, regardless of when paid, on all orders of goods
and services, including but not limited to receipts received for the rental of rooms, food and
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Hotel Land Lease Agreement
beverage sales, miscellaneous sales, and commissions received for orders for goods and services
performed by a third party vendor used by and charged to the customer, such as movies, video
games, valet laundry services, tour services and vending machine sales, accepted or sold by Lessee
(including sublessees) in, on, about, or from the Leased Premises, whether or not to be filled or
performed at any other location, and the full amount of all orders accepted by Lessee (including
sublessees) elsewhere, but to be filled or performed in, on, about or from the Premises.
(2) The following shall be excluded or deducted, as the case may be, from the
computation of "Gross Receipts":
(a) Any and all retail sales taxes, excise taxes, hotel and restaurant taxes,
lodging and/or bed taxes, bar or entertainment taxes, or related direct taxes collected by Lessee in
the course of making such sales, and thereafter remitted to any governmental agency.
(b) Receipts from the sale or trade-in value of any equipment used upon
the Premises and owned by Lessee.
(c) Receipts from telephone calls made by guests, invitees or patrons of
Lessee through the hotel and restaurant telephone switchboard and pay phones.
(d) Employee meals, complimentary rooms, and complimentary meals, if
included in Gross Receipts;
(e) Payments remitted to any franchisor pursuant to Frequent Guest
Programs and transfers between affiliated properties.
C
(f) Damage fees, including pet and smoking fees, billed to the customer.
Books and Records of Lessee
(1) Books and Records
The Lessee (and sublessee) shall maintain such books and records in
accordance with Generally Accepted Accounting Principles as would normally be examined by an
independent certified public accountant pursuant to such standards in performing an audit of the
Lessee's Gross Receipts. Such books or records shall contain records of all the Lessee's (and
sublessee's) receipts in connection with its operations in a form consistent with good accounting
practice and shall contain itemized records of all Gross Receipts by such categories of sales as are
specified herein above (or such other categories as the City may require from time to time) and of all
other receipts derived by the Lessee (and sublessee) from its operations.
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Hotel Land Lease Agreement
(2) Location of Books and Records
The Lessee (and sublessee) may keep the books and records at its corporate
office, provided that such books shall be made available to the City at the Leased Premises or a
mutually agreed upon site, upon the City's request.
(3) Controls
The Lessee (and sublessee) shall cause to be installed on the Premises, and
shall at all times use, such computers, cash registers, invoicing machines, sales slips or other
accounting equipment, devices and forms as are reasonably necessary to record properly, accurately
and completely all sales from and on the Premises of the Lessee's goods and services.
h. The City expressly reserves the right to assess and collect the following:
(1) Charges for the provision of any services or facilities which the City is
required to provide by any governmental entity having jurisdiction over the Airport.
(2) The Lessee shall pay charges for other services or facilities provided by the
City to the Lessee. Such services or facilities may include, but are not limited to, special
maintenance of Lessee's Premises, vehicle permits, ID badges or equipment/vehicle storage areas.
(3) Charges provided for herein shall not exceed the charges imposed by the City
on other Lessees or users of such services.
i. No payment by the Lessee or receipt by the City of a lesser payment amount than that
which is due and payable under the provisions of the Agreement at the time of such payment shall
be deemed to be other than a payment on account of the earliest payment then due, nor shall any
endorsement or statement on any check or in any letter accompanying any check or payment be
deemed an accord and satisfaction and the City may accept any check or payment without
prejudicing in any way its right to recover the balance of such payment or to pursue any other
remedy provided in this Agreement or by law.
5. MAINTENANCE, REPAIRS AND INSPECTIONS
a. Lessee shall, at its expense, maintain the Premises (including all leasehold
improvements) in good and safe repair and in a neat, clean, and orderly condition. Lessee further
agrees to paint, redecorate, repair and renovate the same as needed, but not less than to the extent
and quality as required by the initial Franchise Agreement between Lessee and Cobblestone Hotel
Page 7 of 36
Hotel Land Lease Agreement
and Suites, a copy of which shall be provided to the City upon its execution, or similar Franchise
Agreement(s) approved by the City, and to surrender the Premises and leasehold improvements at
the termination of this Agreement in the condition they were upon construction, reasonable wear
and tear excepted.
b. City assumes no responsibility as to the condition of the Premises or any
improvements located thereon and shall not assume responsibility for maintenance, upkeep, or
repair necessary to keep the Premises in a safe and serviceable condition. City shall not be
responsible for any expenses incurred in connection with preparing the Premises for development,
except as may be expressly identified within the Agreement. Notwithstanding anything to the
contrary contained herein, City warrants and represents that it is not aware of any covenants and
restrictions encumbering the Premises, except as described herein or may be filed of record.
C. Waiver of Warranty of Suitability. City further disclaims any warranty of suitability
that may arise by operation of law. Lessee leases the Premises "as is" and City does not warrant that
there are no latent defects that are vital to Lessee's use of the Premises for its intended uses.
d. Any damage caused to any property of City by any act, omission or negligence of
Lessee, its employees, invitees, suppliers or furnishers of service shall be repaired and restored to
the condition existing prior to damage either (at City's election) by Lessee at Lessee's sole expense
in accordance with Plans and Specifications approved by City, or by City, in which case Lessee shall
pay City, as additional rent, the expenses of repair thereby incurred.
e. Lessee shall not undertake any maintenance or repair on the Premises involving
structural change, alteration or rebuilding until detailed Plans and Specifications prepared by an
architect or engineer registered in the State of Texas have first been approved in writing by City.
Such approval shall not be unreasonably withheld.
f. Trash Disposal
As required by the City, Lessee shall provide for the complete removal, sanitary
handling, and disposal of all trash, garbage and other refuse resulting from operations on the Leased
Premises. Trash receptacles shall be maintained in a clean and sanitary condition and located away
from public view.
Page 8 of 36
Hotel Land Lease Agreement
9.
Janitorial Service
Lessee agrees to provide, at its own expense, such janitorial and cleaning services
and supplies as may be necessary or required in the operation and maintenance of its Leased
Premises. Lessee also agrees to keep and maintain its Leased Premises in a clean, neat and sanitary
condition, and attractive in appearance.
h. City, its authorized employees, agents, contractors, subcontractors, and other
representatives shall have the right, but not the obligation, at all reasonable times to enter upon the
Premises, for the following purposes:
(1) To inspect the Premises during regular business hours (or at any time in case
of emergency) to ascertain the condition of Premises and to determine Lessee's compliance with the
terms of this Agreement. The right of inspection shall impose on City no duty to inspect and shall
impart no liability upon City for failure to inspect.
(2) To perform (or arrange to perform) maintenance and repairs and replacements
in any event when Lessee is obligated to do so under this Agreement and has failed to do so within
thirty (30) days after written notice from City; provided, however, that as to any such maintenance,
repairs or replacements, Lessee shall pay City's entire cost and expense of performing such work as
additional rent to City upon written demand.
(3) To perform any obligation of City under this Agreement and to make
additions, alterations, maintenance and repairs to its utility systems; provided, however, the City
shall repair any damage to the Leased Premises resulting from such additions, alterations,
maintenance or repairs.
(4) All entries made for the purposes set forth in this Section shall be without
abatement of rent and without unreasonable interference with Lessee's operations.
6. CONSTRUCTION, IMPROVEMENTS AND ALTERATIONS
a. General Requirements
(1) Lessee has specifically requested that the Premises be leased for use as a hotel
site. Lessee's request for such use is based upon its own inspections and review of the Premises.
Lessee therefore accepts the Premises in an "as is" condition.
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Hotel Land Lease Agreement
(2) Lessee shall comply in every respect to applicable statutes, ordinances,
building codes, and rules and regulations of all governmental agencies as may have jurisdiction at
the time any construction is performed or any improvements are placed upon the Leased Premises
by Lessee. Lessee shall obtain and provide to City copies of all required permits and licenses.
(3) Within ninety (90) days of the execution date of the Agreement, Lessee shall
provide to the Airport, City and other appropriate agencies, preliminary Plans and Specifications
prepared by an architect or engineer registered in the State of Texas. Such preliminary Plans and
Specifications shall be subject to approval in quality and design by the Director of Aviation, such
approval not to be unreasonably withheld.
(4) Lessee shall submit to the Director of Aviation for approval of the final Plans
and Specifications prepared by an architect or engineer registered in the State of Texas for
improvements to be constructed by Lessee on the Leased Premises within one hundred twenty (120)
days of the execution of the Agreement, unless otherwise approved in writing by the City. It is
stipulated that Lessee shall be responsible for construction of all improvements to Leased Premises
necessary to create and maintain a quality facility, including without limitation, construction of all
utility improvements and connections within the Leased Premises.
(5) Upon completion of any construction of the facilities, Lessee and its prime
contractor, contractors or Architect shall furnish City with a set of "as -built" drawings duly certified
by an architect or engineer registered in the State of Texas promptly after completion.
(6) Lessee shall not implement or commence any change in the original Plans
and Specifications without the express written approval of the Director of Aviation, which approval
shall not be unreasonably withheld. The City shall approve or disapprove said modified Plans and
Specifications within ten (10) business days after submission by Lessee, otherwise such Plans and
Specifications shall be deemed approved. Any request for changes to the original Plans and
Specifications shall be submitted for approval to the City prior to the commencement of any work
relating to implementation of same. All approvals are without recourse or the assumption of liability
by the City or the reviewing engineer.
(7) No change of flag, a hotel re -branding or change in affiliation shall be made
on the hotel site without prior written consent of City, which consent shall not be unreasonably
withheld. City shall be provided with a copy of the applicable franchise agreement between Lessee
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Hotel Land Lease Agreement
and franchisor prior to City's issuance of its consent, if any.
(8) Lessee shall not install any billboards on the Premises or any off -premises
advertising signs. Lessee shall install and maintain signage for the hotel or any such other buildings
or improvements in accordance with the standards prescribed in the Covenants in Exhibit "C"
attached hereto and incorporated herein by reference.
(9) Upon expiration or termination of this Agreement, title to all improvements,
structures, alterations of or additions erected or constructed by Lessee on the Premises (excluding
trade fixtures, furnishings, equipment and other personal property which may be removed without
material injury to the Premises), shall automatically vest in the City.
(10) Lessee acknowledges that, from time to time, City may undertake
construction, repair or other activities related to the operation, maintenance and repair of Airport
property which will require temporary accommodation by Lessee. Lessee agrees to accommodate
City in such matters, even though Lessee's own activities may be inconvenienced or partially
impaired, and Lessee agrees that no liability shall attach to City, its elected officials, employees or
agents by reason of such inconvenience or impairment. City shall undertake its construction, repair
or other activities in a manner which shall not unreasonably disrupt Lessee's business on the
Premises, or deny access to the Premises.
b. Utilities
(1) City reserves the right for itself and others to existing utility easements over,
under or across the Leased Premises, to grant necessary utility easements therefore, provided that in
the exercise of such rights it shall not unreasonably interfere with Lessee's use of the Leased
Premises, and that it shall repair any damage to the Leased Premises and leasehold improvements
caused by City as a result of the exercise of such reserved rights. City also reserves the right to
utilize any existing surface, overhead and underground pipes, pumps, utility lines or hydrant systems
on the Leased Premises as are necessary to supply utility service to other portions of the Airport or
Lessee thereon.
(2) Lessee shall be responsible for the construction and expense of all utility
improvements and connections, including any tie-in fees to the public water and sewer systems,
within the Leased Premises and to utility systems located adjacent to the Premises as provided for
by the City, limited only to hook up fees for sewer and water taps Lessee shall not be responsible
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Hotel Land Lease Agreement
for any other fee or pro -rata assessment for any construction or improvements to any of the utility
systems provided by the City. Furthermore, Lessee shall be responsible for the cost and expense of
all utility services used by Lessee as determined by separate meter.
C. Landscaping
(1) All areas within the Leased Premises not utilized by structures, parking
spaces or vehicular way shall be landscaped by Lessee.
(2) A landscaping plan, which shall be acceptable to the franchisor, is to be
included along with the Plans and Specifications for approval by the City. No initial landscaping is
to be undertaken by Lessee before written approval is obtained from the franchisor and the Director
of Aviation. Landscaping material shall be chosen for its permanence, attractiveness and ease of
maintenance. Landscaped areas shall be kept maintained at all times.
d. Construction Commencement
Lessee agrees to begin construction of the hotel within six (6) months after execution
of this Agreement, and shall complete construction no later than one (1) year after the
commencement date of construction, unless otherwise approved in writing by the City.
e. Failure to Timely Construct
In the event construction of the hotel contemplated herein is not complete within one
(1) year after the commencement date of construction, Lessee shall nevertheless, pay the City
according to the Rents, Fees and Charges, set forth herein, unless construction has been interrupted
by a natural, unforeseen occurrence which prevents construction from proceeding for more than
thirty (30) days.
f. Possession
Lessee shall have the right to enter upon the Premises and commence the
construction of improvements immediately upon the approval of Lessee's Plans and Specifications
by the City.
7. DAMAGE AND DESTRUCTION
In the event that the Leased Premises or improvements made by Lessee thereon shall be
damaged by fire or other casualty, in whole or in part, and such damage renders the Premises and/or
improvements untenantable in whole or in part, Lessee shall give immediate notice thereof to City
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Hotel Land Lease Agreement
and the same shall be repaired, restored and/or rebuilt by Lessee at its sole cost and expense to the
condition at least equal to that which existed prior to its damage or destruction and in compliance
with all laws and regulations applicable at the time of repair and/or restoration of the Premises
and/or improvements, and in accordance with a schedule as approved by the City. City has relied
upon Lessee to provide its own business interruption and rents insurance to cover the rental fees for
the lease of the Premises and the loss to Lessee of any improvements and other property in
accordance with paragraph 8 of this Agreement.
8. INSURANCE AND INDEMNIFICATION
a. Insurance coverages and limits required of Lessee hereunder are designed to meet the
minimum requirements of Lessee and are not a recommended insurance program for Lessee. Lessee
alone shall be responsible for the sufficiency of its own insurance program. With no intent to limit
Lessee's liability or the indemnification provisions set forth herein, Lessee shall procure and
maintain during the Term of this Agreement the following minimum limits:
(1) General Liability Insurance no less than One Million Dollars ($1,000,000)
each occurrence, Combined Single Limit (CSL), bodily injury and property damage, including
Personal and Advertising Injury and Employer's non -ownership liability; Two Million Dollars
($2,000,000) aggregate.
(2) Worker's Compensation in compliance with Texas Statutory Limits, including
an All States Endorsements.
applicable).
(3) Liquor Liability - $1,000,000 per occurrence/$2,000,000 Aggregate (as
(4) Comprehensive Automobile Liability Insurance - $1,000,000 CSL for all
automotive equipment owned, non -owned, operated, leased or hired.
(5) Umbrella — Two Million Dollars ($2,000,000) to follow form for all
underlying casualty lines of coverage.
b. Lessee must carry and place on file in the City and Airport offices an original signed
copy of Lessee's Certificate of Insurance reflecting the following additional policies:
(1) Property Insurance Special form or a broader form of coverage at 100%
replacement cost for all improvements and betterments to the Leased Premises.
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Hotel Land Lease Agreement
(2) In the event of a casualty, City agrees to allow Lessee to utilize the insurance
proceeds to rebuild the Premises as required herein.
(3) Business Interruption (Rents) Insurance equal to one year of the rental income
herein stated and naming the City of Lubbock loss payee with respect to the rents.
improvements.
(4) Builder's Risk to cover the amount equal to the full replacement value of any
(5) Underground or Above Ground Storage Tank — No less than $1,000,000 limit
(as applicable).
C. Lessee's policy(ies) covering the said insurance shall be issued by a company doing
business in the State of Texas (Best's A -VII or better) and countersigned by a Texas agent and
approved by the Airport's Director of Aviation, and shall not be subject to cancellation or change
until after thirty (30) days written notice shall have been given to City. All Certificates of Insurance,
except Worker's Compensation, reflecting the above and naming the City of Lubbock as additional
insured, shall be delivered to City by Lessee in advance of the date of occupancy as established
herein with renewal certificates provided to City as applicable.
d. All insurance policies shall contain a standard cross -liability provision and shall
stipulate that no insurance held by City will be called upon to contribute to a loss covered
thereunder. City shall have no liability for any premiums charged for such coverage, and the
inclusion of City as an additional insured is not intended to, and shall not, make City a partner or
joint venturer with Lessee in Lessee's operations. Such policies shall also insure Lessee against the
risks to which it is exposed as the Lessee of the business authorized under this Agreement, and shall
be for full coverage with any deductibles and/or retentions subject to approval by City and shall
contain provisions on the part of the respective insurers waiving the right of such insurers to
subrogation.
e. The City reserves the right to periodically review the insurance provisions stated
herein as to the amount of coverage, new types of insurance and new terms (such as combined
single limit coverage) and to reasonably modify the insurance coverage under this Agreement.
f. If Lessee places a first mortgage upon its leasehold estate, Lessee's policies shall
provide that any and all payments for loss shall be payable to mortgagee (lending institution), the
City and Lessee as their respective interests shall apply.
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g. City shall not be liable for any damage to Lessee's property from any cause unless
solely caused by fault or negligence of City, its officers, agents, contractors or employees, and
Lessee and Lessee's insurance companies, waive all claims against City for damage to persons or
property arising for any reason, unless solely caused by fault or negligence of City, its officers,
agents, contractors, or employees.
h. Indemnification
Lessee shall protect, defend, and indemnify City and its officers, elected officials,
agents and employees from and against any and all liabilities, losses, suits, claims, judgments, fines
or demands arising by reason of injury or death of any person, damage to any property, or other
liability, including all reasonable costs for investigation and defense thereof (including but not
limited to attorney fees, court costs, and expert fees), of any nature whatsoever arising out of or
incident to this Agreement and/or the use or occupancy of the Leased Premises or the acts or
omissions of Lessee's officers, agents, employees, contractors, subcontractors, licensees, or invitees,
regardless of where the injury, death or damage may occur, unless such injury, death or damage is
caused by the sole negligence and willful misconduct of the City. The City shall give to Lessee
reasonable notice of any such claims or actions. The Lessee shall also use counsel reasonably
acceptable to City in carrying out its obligations hereunder. The provisions of this section shall
survive the expiration or early termination of this Agreement.
9. CANCELLATION PROVISIONS
a. City's Right to Cancellation
The City shall have the right to terminate this Agreement in its entirety immediately
if one or more of the following events of default occur by Lessee:
(1) If Lessee shall neglect or fail to perform or observe any of the terms,
provisions, conditions or covenants herein contained and if such neglect or failure shall continue for
a period of thirty (30) days after written notice from City of such neglect or failure or, if more than
thirty (30) days shall be required to cure the default because of its nature, if Lessee shall fail within
said thirty (30) day period to commence and thereafter diligently proceed to cure such default; or,
(2) The occurrence of any act which deprives the Lessee of the rights, licenses,
permits, and authorizations necessary for the proper and lawful conduct of the Lessee's operations or
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services, and if such default is not cured within thirty (30) days after written notice from the City;
or,
(3) If Lessee shall abandon the Leased Premises or shall cease to operate a hotel
on the Leased Premises, except when Lessee is remodeling or reconstructing the Premises as agreed
to in writing by the City and Lessee; or,
(4) Any termination of this Agreement shall not affect or impair the right of City
to recover damages occasioned by default of Lessee.
b. Lessee's Right to Cancellation
The Lessee shall have the right to terminate this Agreement in its entirety upon thirty
(30) days written notice to the City if one or more of the following events of default occur by City:
(1) The issuance by any court of competent jurisdiction of any injunction
preventing or restraining the use of Airport in such a manner as to substantially restrict Lessee from
conducting its operations not caused by any act or omission of Lessee and the remaining in force of
such injunction for at least thirty (30) days; or,
(2) If for any reason Lessee is deprived of access to the Leased Premises for
thirty (30) consecutive days or more; or,
(3) The assumption by the United States Government and the authorized agencies
thereof, or any other governmental agency, of the operation, control, or use of the Airport facilities,
or any substantial part or parts thereof in such a manner as to substantially restrict for a period of
thirty (30) days or more the conduct of the Lessee's business thereto; or,
(4) A breach by the City of any of the terms and covenants or conditions within
this Agreement, and the failure of the City to remedy such breach, for a period of thirty (30) days
after receipt of written notice from the Lessee of the existence of such breach.
Abatement of Rent
In lieu of a termination of this Agreement pursuant to subparagraph b. above, Lessee
may elect to receive a full abatement of rent for each month in which there is an occurrence of any
event set forth in subparagraphs (1) through (4) of subparagraph b.
d. Leasehold Mortgagee Compliance
The City agrees that while any leasehold mortgage remains in effect, if, before the
expiration of the sixty (60) day default period as provided for in subparagraph a. (1) above, the
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leasehold mortgagee cures the default, or has commenced and is diligently proceeding to cure the
default in lieu of Lessee, to the satisfaction of the City which shall be established in writing, then
any written notice of termination by City shall be void and of no effect.
10. SURRENDER OF OCCUPANCY
a. When this Agreement expires or is terminated in whole or in part as provided for
elsewhere in this Agreement, the Lessee shall surrender its Leased Premises therein in good
condition, with the exception of reasonable wear and tear.
b. The Lessee shall be deemed to have abandoned to the City any personal property
which it has failed to remove from its Leased Premises within sixty (60) calendar days after the end
of the Term of this Agreement or the effective date of termination thereof, unless the City grants
additional time for this purpose in writing. After the expiration of the sixty (60) day period, or any
extension thereof granted by City, the City shall have the right to remove the property and restore
the area to a satisfactory condition and hold the Lessee liable for all costs incident thereto. In the
event it is necessary for the City to remove such property, the City shall not sustain or be charged
with any liability by reason of the removal or custodial care of the same.
11. ASSIGNMENT AND SUBLETTING
The Lessee shall not transfer or assign this Agreement, or any part hereof, or interest herein,
or sublease any of the Leased Premises hereunder, except with the prior written approval of the
Director of Aviation, which approval shall not be unreasonably withheld. Any other attempted
transfer, assignment or sublease shall be void and shall confer no rights upon any third person. No
assignment or sublease shall relieve the Lessee of any obligation under this Agreement unless
otherwise agreed by the City. Notwithstanding the foregoing, this section shall not be interpreted to
preclude the assignment of this Agreement to a parent, subsidiary, or merged company, if such
parent, subsidiary, or merged company assumes all rights and obligations of this Agreement.
Written notice of such assumption shall be provided to the City by the parent, subsidiary, or merged
company thirty (30) days prior to the effective date of such assignment.
12. GOVERNMENT REQUIREMENTS
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a. Sponsor's Assurances
This Agreement shall be subordinate to the provisions of any existing or future
agreements between the City and the United States Government, and any applicable federal laws or
regulations relative to the operation, security or maintenance of the Airport at Lubbock, the
execution of or compliance with which is, or will be, required as a condition precedent to the
granting of federal funds for the development of the Airport, including but not limited to, the
compliance requirements as set forth in the Sponsor's Assurances, attached as Exhibit `B", and as
may be amended from time to time.
In the event that the Federal Aviation Administration or its successors requires
modifications or changes in this Agreement as a condition precedent to the granting of funds for the
improvement of the Airport, Lessee agrees to consent to such amendments, modifications, revisions,
supplements, or deletions or any of the terms, conditions or requirements of this Agreement as may
be reasonably required to obtain such funds.
b. Nondiscrimination and Affirmative Action
Lessee hereby agrees to comply with the following requirements as they pertain to
Lessee's operations at the Airport.
(1) Lessee for itself, its personal representatives, successors in interest, and assigns,
as a part of the consideration hereof, does hereby agree as a covenant running with the land that: (a) no
person on the grounds of race, color, or national origin shall be excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination in the use of the Leased Premises, (b) in the
construction of any improvements on, over, or under the Leased Premises and the furnishing of
services thereon, no person on the grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or otherwise be subjected to discrimination, and (c) Lessee
shall use the Premises in compliance with all other requirements imposed by or pursuant to 49 CFR
Part 21, Nondiscrimination in Federal -Assisted Programs of the Department of Transportation, and as
said Title and Regulations may be amended.
(2) In conducting or engaging in any aeronautical activity for furnishing services to
the public at the Airport, Lessee shall furnish said services on a fair, equal, and not unjustly
discriminatory basis to all users thereof, and shall charge fair, reasonable, and not unjustly
discriminatory prices for each unit or service as required pursuant to 14 CFR 152. Lessee may make
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reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to
volume purchasers.
(3) Lessee acknowledges that the provisions of 49 CFR Part 23, Disadvantaged
Business Enterprises (DBE), as said regulations may be amended, and such other similar regulations
may be enacted, may be applicable to the activities of Lessee under the terms of this Agreement, unless
exempted by said regulations, and Lessee hereby agrees to comply with the regulatory agencies, in
reference thereto. These requirements may include, but not be limited to, compliance with DBE
participation goals, the keeping of certain records of good faith compliance efforts, which would be
subject to review by the various agencies, the submission of various reports and, if so directed, the
contracting of specified percentages of goods and services contracts to DBEs.
(4) In the event of breach of any of the above nondiscrimination covenants which is
not cured, City shall have the right to cancel this Agreement after such action as the United States
Government may direct to enforce this covenant has been followed and completed, including exercise
or expiration of appeal rights.
C. Airport Safety/Security
(1) Lessee shall observe all security requirements of Federal Aviation
Regulations, Transportation Security Administration and Airport Security Program, applicable parts,
as the same may be amended from time to time, which will be furnished to Lessee as approved by
the Federal Aviation Administration and/or Transportation Security Administration, and to take
such steps as may be necessary or directed by City to ensure that sublessees, employees, invitees,
and guests observe these requirements.
(2) If City incurs any fines and/or penalties imposed by federal, state or other
governmental agencies any expense in enforcing the regulations of Federal Aviation Regulations,
Transportation Security Administration and/or Airport Security Program, as a result of the acts or
omissions of Lessee, Lessee agrees to pay and/or reimburse all such costs and expense. Lessee
further agrees to rectify any deficiency as may be determined by such federal, state, or other
governmental agency. City reserves the right to take whatever action necessary to rectify any
security deficiency, in the event Lessee fails to remedy the security deficiency.
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d. Non Exclusive
Nothing herein contained shall be deemed to grant the Lessee any exclusive right or
privilege within the meaning of the Sponsor's Assurances in Exhibit `B" or the conduct of any
activity on Airport, except that, subject to the terms and provisions hereof, Lessee shall have the
right to possess the Leased Premises under the provisions of this Agreement.
e. Right of First Refusal
In the event any acceptable offer from a third party is received by the City to lease
any of the property described in Exhibit "E," attached hereto and incorporated herein by reference,
the City prior to acceptance of such offer shall give Lessee written notice thereof including a copy of
the offer so that the Lessee shall have a right of first refusal for ninety (90) days after receipt of the
notice within which to elect in writing to lease the property on the terms of the offer.
If Lessee elects to lease the property and notifies the City of its election in writing,
City and Lessee shall negotiate a lease agreement based upon the terms of the offer. Lessee
acknowledges that such negotiated lease agreement shall be distinct from the terms, conditions and
covenants of this Agreement and that City shall not be under any obligation to enter a lease
agreement with the Lessee that is identical to this Agreement.
If Lessee fails to respond within the ninety (90) day period or elects to decline the
offer, City may accept the offer from the third party.
Lessee's failure at any time to exercise its right of first refusal as set forth in this
paragraph shall not affect this Agreement.
Lessee shall have this right of first refusal for a fifteen (15) year period commencing
on the execution date of this Agreement.
f. Height Restrictions
Lessee expressly agrees for itself, its successors and assigns to restrict the height of
structures, objects or natural growth, and other obstructions on the Leased Premises in accordance
with CFR Part 77 of the Federal Aviation Regulations and in accordance with the City's approved
height restriction ordinance.
g. Right of Flight
(1) City 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 Leased Premises,
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together with the right to cause in the airspace such noise as may be inherent in the operation of
aircraft, now known or hereafter used, for navigation of or flight in the said airspace, and for the use
of said airspace for landing on, taking off from or operation on the Airport.
(2) City reserves to itself, its successors and assigns, for the use and benefit of the
public, a continuing right and easement over the Leased Premises to take any action it deems
necessary to prevent the construction, erection, alteration or growth of any structure, tree or other
object in the vicinity of the runways of the Airport which would constitute an obstruction to air
navigation according to the criteria or standards prescribed in Subpart C of Part 77 of the Federal
Aviation Regulations.
(3) City reserves for itself, its successors and assigns, the right to prevent any use
of the Leased Premises which would interfere with aircraft landing on or taking off from the Airport
and the right to prevent any other use which would constitute an airport hazard.
h. Disadvantaged Business Enterprise
(1) In accordance with the requirements of the U. S. Department of
Transportation (DOT), Disadvantaged Business Enterprises (DBE) as defined in 49 CFR Part 23
shall have the maximum opportunity to participate in the performance of contracts financed in
whole or in part with federal funds and in concession agreements at Airports. Consequently, the
DBE requirements of 49 CFR Part 23 are hereby included in this Agreement. Lessee agrees that it
will not discriminate against any business owner because of the owner's race, color, national origin,
or sex in connection with the award or performance of any concession agreement covered by 49
CFR Part 23. Lessee agrees to include the immediately preceding sentence in any subsequent
concession agreements (subcontracts) that it enters and cause those businesses to similarly include
the statements in further agreements.
(2) Lessee shall submit information as required concerning the DBE(s) that will
participate in this concession. This information will include the names and addresses of each DBE
and/or DBE suppliers of goods and services, a description of the work to be performed by each DBE,
the dollar value (annual estimated gross receipts) of the DBE's contracted participation, and a
description of the legal arrangements to be utilized. At the sole discretion of the City, a DBE goal may
be established for each year of the Term of the Agreement, as measured by total estimated annual gross
receipts.
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(3) The Lessee shall make good faith efforts to explore all available opportunities
to meet the goal to the maximum extent practicable, or, if Lessee fails to meet the goal, Lessee must
document acceptable good faith efforts to meet the goal as required by the City.
(4) DBE participation may be in the form of one or more subleases, joint
ventures, partnerships, or other legal arrangement meeting the eligibility standards in 49 CFR
Part23. In the event that the Lessee qualifies as a DBE, the goal shall be deemed to have been met.
Should Lessee be unable to attain participation as provided for above, Lessee may use or obtain the
services, goods and products from DBEs as allowed by 49 CFR Part23.
(5) The Lessee shall replace a DBE firm whose contract is terminated with
another DBE firm in order to meet the goal, unless otherwise approved by the City.
(6) Lessee shall maintain records and documents of payments to DBEs for three
(3) years following their performance under this Agreement.
13. FIRE REGULATIONS
a. Lessee shall at all times comply with all applicable laws, ordinances, and regulations
pertaining to fire prevention.
b. If Lessee receives an inspection notice or a deficiency notice following inspection by
the Fire Department or authorized City or insurance inspector, Lessee agrees to make any and all
reasonable corrections, in the manner required by the Fire Department or insurance inspector, within
ten (10) days after receipt of the notice.
14. HAZARDOUS MATERIALS/OPERATIONS
Further, Lessee shall, at Lessee's expense, comply with all present and hereinafter enacted
Environmental Laws and any amendments thereto, affecting Lessee's use, operation, occupation or
alteration of the Premises including any improvements thereon.
a. Definitions.
(1) "Environmental Laws" means any one or all of the following as the same are
amended from time to time: the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et se .; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6941 et seq.; the Toxic
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Substances Control Act, 15 U.S.C. Section 2601 et seg.; the Safe Drinking Water
Act, 42 U.S.C. Section 300h et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et
M.; the Clean Air Act, 42 U.S.C. Section 7401 et SeMc .; and the regulations
promulgated thereunder and any other laws, regulations and ordinances (whether
enacted by the local, state or federal government) now in effect or hereinafter enacted
that deal with the regulation or protection of the environment, including the ambient
air, ground water, surface water, and land use, including substrata land.
(2) "Hazardous Material" shall mean all substances, materials and wastes that
are, or that become, regulated under or classified as hazardous or toxic under any
Environmental Law.
(3) "Release" shall mean any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or dumping
into the environment.
b. Compliance.
(1) Lessee shall not cause or permit any hazardous material to be used, generated,
manufactured, produced, stored, brought upon, or released, on, under or about the
Premises, or transported to and from the Premises, by Lessee, its agents, employees,
contractors, invitees, or a third party in violation of any Environmental Law. Lessee
shall indemnify, defend and hold harmless City, its successors and assigns, its
officers, directors, employees, agents and attorneys from and against any and
all liability, loss, damage, expense, penalties and legal and investigation fees or
costs, arising from or related to any claim or action for injury, liability, breach
of warranty or representation, or damage to persons or property and any and
all claims or actions brought by any person, entity or governmental body,
alleging or arising in connection with contamination of, or adverse effects on,
the environment or violation of any Environmental Law or other statute,
ordinance, rule, regulation, judgment or order of any government or judicial
entity which are incurred or assessed as a result (whether in part or in whole) of
any activity or operation by Lessee or its employees, sublessees, invitees,
contractors or agents on or discharge from the Premises or any improvements
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thereon. This obligation includes, but is not limited to, all costs and expenses
related to cleaning up the Premises, improvements, land, soil, underground or surface
water as required under the law. Lessee's obligations and liabilities under this
paragraph shall continue so long as City bears any liability or responsibility under the
Environmental Laws for any action that occurred on the Premises or any
improvements thereon, save and except those incurred or assessed as a result of any
activity, operation or use of the Premises by City or its lessees, employees,
contractors, invitees prior to this Agreement or occurring on or as a result of the
City's or public's use of the public roads, streets, entryways, and alleys adjoining the
Premises. This indemnification of City by Lessee includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of hazardous material located
on the Premises or any improvements thereon, or present in the soil or ground water
on, under or about the Premises. However, excluding any environmental conditions
that occurred and existed prior to the effective date of this Agreement. The parties
agree that City's right to enforce Lessee's promise to indemnify is not an adequate
remedy at law for Lessee's violation of any provision of this Section. City shall also
have all other rights and remedies provided by law or otherwise provided in this
Agreement.
(2) Without limiting the foregoing, if the presence of any hazardous material on,
under or about the Premises or in any improvements thereon or permitted by Lessee
results in any contamination of the Premises, any improvements thereon, or any
surrounding property, Lessee shall promptly take all actions at its sole cost and
expense as are necessary to return the Premises or any improvements thereon to the
condition existing prior to the introduction of any such hazardous material to the
Premises or in any improvements thereon; provided that City's approval of such
actions shall first be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material adverse long-term effect
on the Premises or on any improvements thereon.
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(3) Lessee shall, at Lessee's own cost and expense, make all submissions to,
provide all information to, and comply with all requirements of the appropriate
governmental authority (the "Government") pursuant to the Environmental Laws.
Should the Government determine that site characterization, site assessment and/or a
cleanup plan be prepared or that a cleanup should be undertaken on the Premises or
in any improvements thereon, then Lessee shall, at Lessee's own cost and expense,
prepare and submit the required plans and financial assurances, and carry out the
approved plans. At no cost or expense to City, Lessee shall promptly provide all
information requested by City to determine the applicability of the Environmental
Laws to the Premises or to respond to any governmental investigation or to respond
to any claim of liability by third parties which is related to environmental
contamination.
(4) Lessee shall immediately notify City of any of the following: (a) any
correspondence or communication from any governmental entity regarding the
application of Environmental Laws to the Premises or Lessee's operation on the
Premises; or (b) any change in Lessee's operation on the Premises that will change or
has the potential to change Lessee's or City's obligations or liabilities under the
Environmental Laws.
(5) Lessee shall insert the provisions of this Section in any sublease agreement or
other contract by which Lessee grants a right or privilege to any person, firm or
corporation pursuant to this Agreement.
Emergency.
In the event of an emergency (meaning a Release of Hazardous Materials in violation
of Environmental Laws on the Premises that presents an immediate threat of injury to persons or
property) or the expiration of cure periods provided for in this Agreement, then notwithstanding any
other provision in this Agreement to the contrary, City shall have the right of "self-help" or similar
remedy in order to minimize any damages, expenses, penalties and related fees or costs, arising from
or related to a violation of any law on, under or about the Premises, the cost of which including
attorneys fees, shall be borne by Lessee. City shall use its best efforts to notify Lessee prior to its
exercise of such self-help rights.
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Lessee's failure or the failure of its agents, employees, contractors, invitees or the failure of a
third party to comply with any of the requirements and obligations of this Section shall constitute a
material default of this Agreement and shall permit City to pursue the remedies as set forth herein in
addition to all other rights and remedies provided by law or otherwise provided in the Agreement, to
which City may resort cumulatively, or in the alternative.
Notwithstanding anything to the contrary contained herein, City acknowledges that Lessee's
agreement to comply with the Environmental Laws does not equate to or require Lessee's waiver of
any grandfathered or vested rights.
d. Compliance Upon Termination
Prior to the expiration of this Agreement or vacation of the Leased Premises, Lessee
shall complete a Phase I environmental assessment to determine whether any Hazardous Substances
are located on, at, in or under the Leased Premises. If the assessment reveals that Hazardous
Substances are located on, at, in or under the Leased Premises, Lessee shall, at Lessee's sole
expense, remove or permanently clean all such Hazardous Substances that Lessee, or anyone for
whom Lessee is responsible, including, but not limited to, a customer, invitee, employee, agent, or
person having a contractual relationship with the Lessee, caused to be situated on, at, in or under the
Leased Premises. This shall be done in compliance with all applicable federal, state and local laws,
regulations and ordinances and shall include the performance of any necessary cleanup or remedial
action. Lessee shall provide City with copies of all records related to any Hazardous Substances
that are required to be maintained by any applicable federal, state or local laws or regulations.
e. Ci . 's Representation
To the best of the City's current actual knowledge and belief as of the date of
Agreement execution, City is not aware of any disposal of any Hazardous Substances on the Leased
Premises prior to the date of Agreement execution. City has provided Lessee with an opportunity to
inspect the Leased Premises or to conduct a Phase I Environmental Assessment at Lessee's own cost
prior to the execution of the Agreement and date of possession.
f. Underground/Above Ground Storage Tanks
(1) Installation
All storage tanks shall be installed according to the requirements of the Texas
Commission on Environmental Quality, the Environmental Protection Agency, the City of Lubbock,
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Hotel Land Lease Agreement
and any other applicable government related authorized agencies collectively hereinafter referred to
as the "Appropriate Governmental Agencies." All installation, design and construction of the
storage tanks shall be at the Lessee's expense and in accordance with the Appropriate Governmental
Agencies' regulations and certified by an independent professional engineer registered in the State of
Texas. All installation specifications and drawings shall be submitted in advance to the City.
(2) Removal
At the time the Lessee removes a storage tank, such removal shall be at the
Lessee's expense and pursuant to rules and regulations as required by the Appropriate Governmental
Agencies. Upon removal of the storage tank, the Lessee shall perform site assessment in order to
demonstrate that there have not been any leaks from the storage tank to the environment during the
period in which the storage tank has been in service. The Lessee shall perform initial abatement,
site characterization and corrective action as outlined herein upon termination of this Agreement.
(3)
Leak Detection
The Lessee shall be responsible for regularly monitoring and inspecting the
storage tanks on its Leased Premises and performing leak detection tests thereon in accordance with
state and federal law. The City shall be notified immediately of any leaks or releases discovered at
any time by the Lessee.
g. Lessee shall arrange for the storage and for the daily disposal, at its own expense, of
all waste material in a manner satisfactory to the Director of Aviation.
15. SERVICE STANDARDS
a. Quality of Service
It is an express condition of this Agreement that Lessee maintains a high standard of
product quality and service and maintains a reasonable level of prices comparable with prices of
similar businesses within the Lubbock area. Questions or complaints regarding the quality of its
products or services and/or prices, whether raised by patrons' complaints or on the City's own
initiative or otherwise, may be submitted to Lessee for response.
b. Complaints b. Public
In the event the Lessee receives (or the City receives and forwards to the Lessee) any
written complaint concerning the Lessee's operations at the Airport, the Lessee shall promptly
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Hotel Land Lease Agreement
respond to such complaint in writing within thirty (30) days of its receipt. Without further notice or
demand, the Lessee shall keep a copy of each such complaint and the Lessee's written response for a
period of one (1) year from the date of the complaint and shall make the complaint and the written
response available to the City upon its request.
Hours of Operation
Lodging services shall be provided by Lessee twenty-four (24) hours a day, seven (7)
days a week, including holidays, unless otherwise permitted by the prior written consent of the
Director of Aviation.
d. Covenant Against Waste and Nuisance
Lessee covenants and agrees that it shall not use the Leased Premises in any manner
that will constitute waste, and that it shall not cause or permit any unlawful conduct, unreasonable
annoyance or nuisance to exist or arise in the course of or as a result of its use of the Premises, nor
permit any activity or omission which constitutes or results in unlawful conduct, unreasonable
annoyance or nuisance.
16. EMINENT DOMAIN
a. If at any time during the Term of this Agreement or any extension thereof, the entire
Premises, or such portion thereof as would render it impossible or impractical to operate a hotel,
shall be taken or appropriated by virtue of eminent domain, or other similar proceedings, or be
condemned for any public or quasi -public use, the Lessee shall have the right and privilege of
terminating this Agreement. Such termination shall not affect the Lessee's right to recover the
apportionment of damages as herein provided. All the rents and other charges and payments
reserved herein shall be permanently abated from the time of such taking or appropriation.
b. In the event of a partial taking or appropriation of the Premises not resulting in a
termination of this Agreement, Lessee shall be entitled to an abatement of rent, immediately upon
the taking, in such amount as shall be just and equitable.
C. It is understood and agreed that in the event of a partial or complete taking or
appropriation, whether or not this Agreement be terminated as above provided, the City and the
Lessee may, if permissible by applicable law, prosecute at their option their respective claims
Page 28 of 36
Hotel Land Lease Agreement
against the public or private body designated as the taking authority on account of any taking or
appropriation of the Premises.
d. Any damage claimed by Lessee as a result of any loss to or of improvements paid for
or contributed by the Lessee on the Premises, shall be without diminution by reason of any
provision in this Agreement or by operation of law that the said leasehold improvements may be or
shall become the property of the City at any time prior to or at the expiration of the full Term hereof.
e. In ascertaining the Lessee's interest and the damages sustained by the Lessee, the
Term of this Agreement shall be deemed to run for the full Term allowable, including any
extensions under the terms of this Agreement, notwithstanding any prior termination thereof which
may result as provided in this Agreement in the case of a taking or appropriation.
17. MORTGAGING OF LEASEHOLD
The Lessee and every successor is given and has the right to mortgage its interest in this
Agreement, subject to giving written notification to the City which shall be deemed validly given,
serviced or delivered upon deposit in the United States mail, certified, and with proper postage and
fees prepaid, addressed to City at the most recent address, at any time and from time -to -time during
the term hereof. If the Lessee or any successor or assign shall mortgage this leasehold, then so long
as such mortgage shall remain in effect the following provisions shall apply:
a. Notice of Default, Cure
The City shall, upon serving on the Lessee any notice of default, simultaneously
serve a copy of such notice upon the leasehold mortgagee. The mortgagee shall thereupon have the
same time within which to remedy or cause to be remedied the defaults complained of as is allowed
to the Lessee, and the City shall accept such performance by or at the instigation of the mortgagee as
if such performance had been accomplished by the Lessee.
b. Insurance
The name of the leasehold mortgagee may be added to the "loss payable
endorsement" of any and all insurance policies required to be carried by the Lessee hereunder. The
City will make available to the Lessee all insurance or condemnation proceeds to which the Lessee
may be entitled hereunder for purposes of restoration of the Premises.
C. Estoppel Certificate
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Hotel Land Lease Agreement
The City, within ten (10) days after a request in writing by the Lessee or the
leasehold mortgagee, shall furnish a written statement, duly acknowledged, that this Agreement is in
full force and effect and that there is no default hereunder by the Lessee, or if there is a default, such
statement shall specify the default which the City claims to exist.
d. No Mortgage by City
The City may not place any mortgage or encumbrance on its fee interest in the
Leased Premises for the City's special benefit during the Term of this Agreement, and covenants not
to do so.
18. CONTINGENCIES
This Agreement is contingent upon the following:
a. Financing
This Agreement is contingent upon Lessee's ability to obtain a loan from a lender
acceptable to Lessee to be secured by a first lien security deed on the leasehold estate. If a firm
commitment for said loan is not obtained within ninety (90) days of the execution of this
Agreement, the Agreement may be rescinded at the option of Lessee.
b. Franchise Agreements
(1) This Agreement is contingent on Lessee obtaining a franchise commitment to
operate a minimum 70 -room hotel on the Premises on terms acceptable to Lessee. Lessee shall
obtain a franchise commitment within forty-five (45) days after the execution of the Agreement.
The City reserves the right to terminate this Agreement at any time after the forty-five (45) days, if
Lessee fails to obtain a franchise agreement.
Agreement.
(2) Lessee agrees to provide the City with a fully executed copy of the Franchise
Permits
This Agreement is contingent on the ability of the Lessee to obtain all necessary
permits (including any appropriate zoning classification) for the construction of a minimum 70 -
room guest hotel and restaurant on the Premises. If Lessee has been unable to obtain all necessary
permits for the construction of said hotel within one hundred eighty (180) days of the execution of
this Agreement, this Agreement may be rescinded at the option of Lessee.
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1 lotel Land Lease Agreement
d. Environmental Assessment
Lessee has the option to complete a Phase I environmental assessment to determine
whether any Hazardous Substances (as defined in Section 14.) are located in, on, or under the
Leased Premises in excess of allowable levels established by all applicable federal, state and local
laws and regulations. If Lessee elects to perform said environmental assessment, it shall be
completed within ninety (90) days of the execution of this Agreement, and the cost of said
assessment shall be paid by the Lessee. If any Hazardous Substances are located on the Leased
Premises as a result of said environmental assessment, this Agreement may be rescinded at the
option of the Lessee on the date that written notice is given to the City provided that written notice
is given within ten (10) days of the ninety (90) day period stipulated herein. Lessee shall provide a
copy of the Environmental Assessment to the City upon its completion.
19. MISCELLANEOUS
a. Personal Liability
No member of the City or employee of either party shall be charged personally or
held contractually liable by or to the other party under any term or provision of this Agreement
because of any breach thereof or because of its execution or attempted execution.
b. Non -Waiver of Rights
No waiver of default by the City of any of the terms, conditions, covenants, or
agreements hereof to be performed, kept, or observed by the Lessee shall be construed or act as a
waiver of any subsequent default of any of the terms, covenants, conditions, and agreements, herein
contained to be performed, kept, or observed by the Lessee, and City shall not be restricted from
later enforcing any of the terms and conditions of this Agreement.
City Employees
Lessee shall not during the Term of this Agreement, hire or employ, on either a full-
time or part-time basis, any person or persons so long as such person shall be employed by the City
of Lubbock, Aviation Department.
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1otel Land Lease Agreement
d. Entire Agreement
This Agreement, including exhibits attached hereto at the time of its execution,
constitutes the entire Agreement between the parties hereto, and all prior agreements covering the
rights and privileges set out herein are superseded by and merged into this Agreement.
Lessee.
Amendment
This Agreement may be amended only by a written instrument executed by City and
f. Governing Law
This Agreement shall be deemed to be governed by and construed in accordance with
the laws of the State of Texas. Lessee agrees and consents to the exclusive jurisdiction of the courts
of the State of Texas for all purposes regarding this Agreement and further agrees and consents that
venue of any action brought hereunder shall be exclusively in the County of Lubbock.
g. Invalid Provisions
If any provision of this Agreement or any application thereof shall be held to be
invalid by a court of competent jurisdiction, the remainder of this Agreement shall not be affected
thereby, unless one or both parties would be substantially and materially prejudiced.
h. Headinas
The headings contained herein are for convenience in reference only and are not
intended to define or limit the scope of this Agreement or any term thereof.
i. Notices
Any notice or other communication to City or Lessee pursuant hereto shall be
deemed validly given, serviced or delivered upon deposit in the United States mail, certified, and
with proper postage and fees prepaid, addressed to City or Lessee, respectively, at the addresses
hereinafter shown or at the address hereafter specified in writing.
(1) The address of the City is:
Director of Aviation
Lubbock Preston Smith International Airport
5401 N. MLK Blvd., Unit 389
Lubbock, TX 79403
Page 32 of 36
Hotel Land Lease Agreement
(2) The address of the Lessee is:
Boomer Development LLC
7704 Trenton Avenue
Lubbock, Texas 79424
Telephone: (806) 698-0990
j. Agreement Alteration
This Agreement, together with any riders and exhibits attached hereto forming a part
hereof, sets forth all of the promises, agreements, conditions and understandings between the parties
hereto, either oral or written. It is understood and agreed that no subsequent alteration, amendment,
change or addition to the Agreement shall be binding upon City or Lessee unless reduced to writing
by them and by direct reference made a part hereof.
k. Rules and Regulations
Lessee shall observe and obey and require its officers, employees, agents and invitees
to obey and observe the duly enacted and lawful rules and regulations of the City and ordinances of
the City of Lubbock and the duly enacted and lawful rules and regulations now in existence or
hereafter promulgated by City, by the Federal Aviation Administration, or by any other local, state
or federal agency of competent jurisdiction. Lessee shall comply with all federal, state and
municipal laws, regulations and ordinances, including all promulgated which may apply to the
operations of Lessee at the Airport.
1. Pest Control
Lessee agrees to provide adequate and lawful control of rodents and insects and other
pests on its Leased Premises.
M. Permits and Taxes
The Lessee shall pay all expenses in connection with the use of the Leased Premises
herein and the rights and privileges herein granted, including without limitation by reason of
enumeration, taxes, including ad valorem taxes, permit fees, license fees, including tap fees and
pure water fees, and assessments lawfully levied or assessed upon the Leased Premises or structures
and improvements at any time situated thereon and that Lessee will secure all such permits and
licenses. Failure to pay said taxes and/or fees shall be considered an event of default under the
terms of this Agreement.
Page 33 of 36
Hotel Land Lease Agreement
n. Access
During the term of this Agreement, Lessee shall have access to and from the Leased
Premises by means of a public access road provided and maintained by the City or State.
o. &M
Lessee may, at its own expense, install and operate necessary and appropriate
identification signs on its Leased Premises in compliance with the City of Lubbock sign ordinance.
All signs located on the Leased Premises, excluding signs located on Lessee's buildings, are subject
to the approval of the Director of Aviation, which consent shall not be unreasonably withheld.
Additionally, Lessee may, at its own expense, request directional signs be placed in other locations
within the Airport property, subject to the approval of the Director of Aviation, which consent shall
not be unreasonably withheld.
P. Bankruptcy
Lessee agrees not to file any petition by or on the behalf of Lessee seeking protection
under the federal bankruptcy laws or similar relief under any law or statute of the United States or
any State thereof without first giving City reasonable notice in advance.
q. Amendments
Lessee agrees not to terminate or make any material amendments of any long term
franchise agreements without prior Director of Aviation approval, and shall provide the Director of
Aviation with a copy of all proposed and finalized amendments.
r. Landlord's Lien.
It is expressly agreed that in the event of default in the payment of rent or any other
sum due from Lessee to City under the terms of this Agreement, City shall have a lien upon all
goods, chattels, personal property or equipment belonging to Lessee, which are placed in, or become
a part of the Premises, as security for rent due and to become due for the remainder of the
Agreement Term. City agrees that it will not levy a landlord's lien against any delivery vehicle or
rolling stock or any of the goods or personal property of third parties in the possession of Lessee,
any sublessee or any assignee of the Lessee.
In the event City exercises the option to terminate the leasehold as provided herein, the City,
after providing reasonable notice to Lessee of its intent to take possession and giving an opportunity
to cure the default, may take possession of all of Lessee's property on the Premises and sell it at a
Page 34 of 36
Hotel Land Lease Agreement
public or private sale after giving Lessee reasonable notice of the time and place of any public sale
or of the time after that any private sale is to be made for such prices and terms as City deems best.
The proceeds of the sale shall be applied first to the necessary and proper expense of removing,
storing and selling such property, then to the payment of any rent due or to become due under this
Agreement, with the balance, if any, to be paid to Lessee. City acknowledges that any lien or
security interest City may claim pursuant to this section is subordinated to any lien or security
interest now or subsequently held by any mortgagee, when said mortgagee is pursuing its rights
under the mortgage, as those terms are defined with this Agreement.
S. Liens against the Citv
In accordance with the laws of the State of Texas, Lessee understands and agrees
that, for itself, and as a condition of doing business with the Lessee, its contractors, suppliers,
vendors, tenants, agents, or any other person shall agree not to levy any lien against the real property
of the City.
t. Non -Arbitration
The City reserves the right to exercise any right or remedy available to it by law,
contract, equity, or otherwise, including without limitation, the right to seek any and all forms of
relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration
process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth
herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any
conflict between this provision and another provision in, or related to, this document, this provision
shall control.
U. No Joint Venture.
It is acknowledged and agreed by the Parties that the terms hereof are not intended to
and shall not be deemed to create a partnership or joint venture among the Parties.
Page 35 of 36
Hotel Land Lease Agreement
IN WITNESS WHEREOF, said parties have caused these presents to be duly executed by
their proper officers thereunto authorized, and corporate seals affixed.
This document constitutes the entire Agreement between the City and Lessee, and
any other written or parole agreement with the City is expressly waived by Lessee.
EXECUTED this 10th day of April, 2014.
THE CITY OF LUBBOCK BOOMER D V L PMEN /C
BY: BY: '�--
GLE ROBERTSON, MAYOR Print: ANDY aTCHISON
Title: Principal ^�
Date: L4 'Qtr
ATTEST:
RLJQI..p -
Rebe ca Garza, City Secretary
APPROVED AS TO CONTENT:
U
Kelly Campbell, Interim Director of Aviation
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
Page 36 of 36
Hotel Land Lease Agreement
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Exhibit "B"
ASSURANCES
Sponsors
A. General.
1. These assurances shall be complied with in the performance of grant agreements
for airport development, airport planning, and noise compatibility program grants
for airport sponsors.
2. These assurances are required to be submitted as part of the project application by
sponsors requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as
amended. As used herein, the term "public agency sponsor" means a public
agency with control of a public -use airport; the term "private sponsor" means a
private owner of a public -use airport; and the term "sponsor" includes both public
agency sponsors and private sponsors.
3. Upon acceptance of this grant offer by the sponsor, these assurances are
incorporated in and become part of this grant agreement.
B. Duration and Applicability.
1. Airport development or Noise Compatibility Program Projects Undertaken
by a Public Agency Sponsor. The terms, conditions and assurances of this grant
agreement shall remain in full force and effect throughout the useful life of the
facilities developed or equipment acquired for an airport development or noise
compatibility program project, or throughout the useful life of the project items
installed within a facility under a noise compatibility program project, but in any
event not to exceed twenty (20) years from the date of acceptance of a grant offer
of Federal funds for the project. However, there shall be no limit on the duration
of the assurances regarding Exclusive Rights and Airport Revenue so long as the
airport is used as an airport. There shall be no limit on the duration of the terms,
conditions, and assurances with respect to real property acquired with federal
funds. Furthermore, the duration of the Civil Rights assurance shall be specified
in the assurances.
2. Airport Development or Noise Compatibility Projects Undertaken by a
Private Sponsor. The preceding paragraph 1 also applies to a private sponsor
except that the useful life of project items installed within a facility or the useful
life of the facilities developed or equipment acquired under an airport
development or noise compatibility program project shall be no less than ten (10)
years from the date of acceptance of Federal aid for the project.
3. Airport Planning Undertaken by a Sponsor. Unless otherwise specified in this
grant agreement, only Assurances 1, 2, 3, 5, 6, 13, 18, 30, 32, 33, and 34 in
section C apply to planning projects. The terms, conditions, and assurances of
this grant agreement shall remain in full force and effect during the life of the
project.
C. Sponsor Certification. The sponsor hereby assures and certifies, with respect to this
grant that:
Airport Sponsor Assurances (4/2012) 1 of 17
1. General Federal Requirements. It will comply with all applicable Federal laws,
regulations, executive orders, policies, guidelines, and requirements as they relate
to the application, acceptance and use of Federal funds for this project including
but not limited to the following:
Federal Legislation
a. Title 49, U.S.C., subtitle VII, as amended.
b. Davis -Bacon Act - 40 U.S.C. 276(a), et sea.1
C. Federal Fair Labor Standards Act - 29 U.S.C. 201, et sea.
d. Hatch Act — 5 U.S.C. 1501, et see
e. Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 Title 42 U.S.C. 4601, et seq. 12
f. National Historic Preservation Act of 1966 - Section 106 - 16 U.S.C.
470(f).1
g. Archeological and Historic Preservation Act of 1974 - 16 U.S.C. 469
through 469c.1
h. Native Americans Grave Repatriation Act - 25 U.S.C. Section 3001, et
sec ..
i. Clean Air Act, P.L. 90-148, as amended.
j. Coastal Zone Management Act, P.L. 93-205, as amended.
k. Flood Disaster Protection Act of 1973 - Section 102(a) - 42 U.S.C. 4012a.
1. Title 49, U.S.C., Section 303, (formerly known as Section 4(f))
M. Rehabilitation Act of 1973 - 29 U.S.C. 794.
n. Civil Rights Act of 1964 - Title VI - 42 U.S.C. 2000d through d-4.
o. Age Discrimination Act of 1975 - 42 U.S.C. 6101, et seq.
P. American Indian Religious Freedom Act, P.L. 95-341, as amended.
q. Architectural Barriers Act of 1968 -42 U.S.C. 4151, et seg.I
r. Power plant and Industrial Fuel Use Act of 1978 - Section 403- 2 U.S.C.
8373.1
S. Contract Work Hours and Safety Standards Act - 40 U.S.C. 327, et seg.1
t. Copeland Anti kickback Act - 18 U.S.C. 874.1
U. National Environmental Policy Act of 1969 - 42 U.S.C. 4321, et seq.l
V. Wild and Scenic Rivers Act, P.L. 90-542, as amended.
W. Single Audit Act of 1984 - 31 U.S.C. 7501, et see
X. Drug -Free Workplace Act of 1988 - 41 U.S.C. 702 through 706.
Executive Orders
Executive Order 11246 - Equal Employment Opportunityl
Executive Order 11990 - Protection of Wetlands
Executive Order 11998 — Flood Plain Management
Executive Order 12372 - Intergovernmental Review of Federal Programs
Executive Order 12699 - Seismic Safety of Federal and Federally Assisted New
Building Constructioni
Executive Order 12898 - Environmental Justice
Airport Sponsor Assurances (4/2012) 2 of 17
Federal Regulations
a. 14 CFR Part 13 - Investigative and Enforcement Procedures.
b. 14 CFR Part 16 - Rules of Practice For Federally Assisted Airport
Enforcement Proceedings.
C. 14 CFR Part 150 - Airport noise compatibility planning.
d. 29 CFR Part 1 - Procedures for predetermination of wage rates.'
e. 29 CFR Part 3 - Contractors and subcontractors on public building or
public work financed in whole or part by loans or grants from the United
States.'
f. 29 CFR Part 5 - Labor standards provisions applicable to contracts
covering federally financed and assisted construction (also labor standards
provisions applicable to non -construction contracts subject to the Contract
Work Hours and Safety Standards Act).'
g. 41 CFR Part 60 - Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor (Federal and federally
assisted contracting requirements).'
h. 49 CFR Part 18 - Uniform administrative requirements for grants and
cooperative agreements to state and local governments.3
i. 49 CFR Part 20 - New restrictions on lobbying.
j. 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.
k. 49 CFR Part 23 - Participation by Disadvantage Business Enterprise in
Airport Concessions.
1. 49 CFR Part 24 - Uniform relocation assistance and real roperty
acquisition for Federal and federally assisted programs.'
m. 49 CFR Part 26 — Participation By Disadvantaged Business Enterprises in
Department of Transportation Programs.
n. 49 CFR Part 27 - Nondiscrimination on the basis of handicap in programs
and activities receiving or benefiting from Federal financial assistance.'
o. 49 CFR Part 29 — Government wide debarment and suspension
(nonprocurement) and government wide requirements for drug-free
workplace (grants).
P. 49 CFR Part 30 - Denial of public works contracts to suppliers of goods
and services of countries that deny procurement market access to U.S.
contractors.
q. 49 CFR Part 41 - Seismic safety of Federal and federally assisted or
regulated new building construction.'
Office of Management and Budget Circulars
a. A-87 - Cost Principles Applicable to Grants and Contracts with State and
Local Governments.
b. A-133 - Audits of States, Local Governments, and Non -Profit
Organizations
' These laws do not apply to airport planning sponsors.
Airport Sponsor Assurances (4/2012) 3 of 17
These laws do not apply to private sponsors.
49 CFR Part 18 and OMB Circular A-87 contain requirements for State
and Local Governments receiving Federal assistance. Any requirement
levied upon State and Local Governments by this regulation and
circular shall also be applicable to private sponsors receiving Federal
assistance under Title 49, United States Code.
Specific assurances required to be included in grant agreements by any of the
above laws, regulations or circulars are incorporated by reference in this grant
agreement.
2. Responsibility and Authority of the Sponsor.
a. Public Agency Sponsor: It has legal authority to apply for this grant, and
to finance and carry out the proposed project; that a resolution, motion or
similar action has been duly adopted or passed as an official act of the
applicant's governing body authorizing the filing of the application,
including all understandings and assurances contained therein, and
directing and authorizing the person identified as the official
representative of the applicant to act in connection with the application
and to provide such additional information as may be required.
b. Private Sponsor: It has legal authority to apply for this grant and to
finance and carry out the proposed project and comply with all terms,
conditions, and assurances of this grant agreement. It shall designate an
official representative and shall in writing direct and authorize that person
to file this application, including all understandings and assurances
contained therein; to act in connection with this application; and to
provide such additional information as may be required.
3. Sponsor Fund Availability. It has sufficient funds available for that portion of
the project costs which are not to be paid by the United States. It has sufficient
funds available to assure operation and maintenance of items funded under this
grant agreement which it will own or control.
4. Good Title.
a. It, a public agency or the Federal government, holds good title,
satisfactory to the Secretary, to the landing area of the airport or site
thereof, or will give assurance satisfactory to the Secretary that good title
will be acquired.
b. For noise compatibility program projects to be carried out on the property
of the sponsor, it holds good title satisfactory to the Secretary to that
portion of the property upon which Federal funds will be expended or will
give assurance to the Secretary that good title will be obtained.
5. Preserving Rights and Powers.
a. It will not take or permit any action which would operate to deprive it of
any of the rights and powers necessary to perform any or all of the terms,
conditions, and assurances in this grant agreement without the written
approval of the Secretary, and will act promptly to acquire, extinguish or
Airport Sponsor Assurances (4/2012) 4 of 17
modify any outstanding rights or claims of right of others which would
interfere with such performance by the sponsor. This shall be done in a
manner acceptable to the Secretary.
b. It will not sell, lease, encumber, or otherwise transfer or dispose of any
part of its title or other interests in the property shown on Exhibit A to this
application or, for a noise compatibility program project, that portion of
the property upon which Federal funds have been expended, for the
duration of the terms, conditions, and assurances in this grant agreement
without approval by the Secretary. If the transferee is found by the
Secretary to be eligible under Title 49, United States Code, to assume the
obligations of this grant agreement and to have the power, authority, and
financial resources to carry out all such obligations, the sponsor shall
insert in the contract or document transferring or disposing of the
sponsor's interest, and make binding upon the transferee all of the terms,
conditions, and assurances contained in this grant agreement.
C. For all noise compatibility program projects which are to be carried out by
another unit of local government or are on property owned by a unit of
local government other than the sponsor, it will enter into an agreement
with that government. Except as otherwise specified by the Secretary, that
agreement shall obligate that government to the same terms, conditions,
and assurances that would be applicable to it if it applied directly to the
FAA for a grant to undertake the noise compatibility program project.
That agreement and changes thereto must be satisfactory to the Secretary.
It will take steps to enforce this agreement against the local government if
there is substantial non-compliance with the terms of the agreement.
d. For noise compatibility program projects to be carried out on privately
owned property, it will enter into an agreement with the owner of that
property which includes provisions specified by the Secretary. It will take
steps to enforce this agreement against the property owner whenever there
is substantial non-compliance with the terms of the agreement.
e. If the sponsor is a private sponsor, it will take steps satisfactory to the
Secretary to ensure that the airport will continue to function as a public -
use airport in accordance with these assurances for the duration of these
assurances.
f. If an arrangement is made for management and operation of the airport by
any agency or person other than the sponsor or an employee of the
sponsor, the sponsor will reserve sufficient rights and authority to insure
that the airport will be operated and maintained in accordance Title 49,
United States Code, the regulations and the terms, conditions and
assurances in this grant agreement and shall insure that such arrangement
also requires compliance therewith.
g. Sponsors of commercial service airports will not permit or enter into any
arrangement that results in permission for the owner or tenant of a
property used as a residence, or zoned for residential use, to taxi an
aircraft between that property and any location on airport. Sponsors of
general aviation airports entering into any arrangement that results in
Airport Sponsor Assurances (4/2012) 5 of 17
permission for the owner of residential real property adjacent to or near
the airport must comply with the requirements of Sec. 136 of Public Law
112-95 and the sponsor assurances.
6. Consistency with Local Plans. The project is reasonably consistent with plans
(existing at the time of submission of this application) of public agencies that are
authorized by the State in which the project is located to plan for the development
of the area surrounding the airport.
7. Consideration of Local Interest. It has given fair consideration to the interest of
communities in or near where the project may be located.
8. Consultation with Users. In making a decision to undertake any airport
development project under Title 49, United States Code, it has undertaken
reasonable consultations with affected parties using the airport at which project is
proposed.
9. Public Hearings. In projects involving the location of an airport, an airport
runway, or a major runway extension, it has afforded the opportunity for public
hearings for the purpose of considering the economic, social, and environmental
effects of the airport or runway location and its consistency with goals and
objectives of such planning as has been carried out by the community and it shall,
when requested by the Secretary, submit a copy of the transcript of such hearings
to the Secretary. Further, for such projects, it has on its management board either
voting representation from the communities where the project is located or has
advised the communities that they have the right to petition the Secretary
concerning a proposed project.
10. Air and Water Quality Standards. In projects involving airport location, a
major runway extension, or runway location it will provide for the Governor of
the state in which the project is located to certify in writing to the Secretary that
the project will be located, designed, constructed, and operated so as to comply
with applicable air and water quality standards. In any case where such standards
have not been approved and where applicable air and water quality standards have
been promulgated by the Administrator of the Environmental Protection Agency,
certification shall be obtained from such Administrator. Notice of certification or
refusal to certify shall be provided within sixty days after the project application
has been received by the Secretary.
11. Pavement Preventive Maintenance. With respect to a project approved after
January 1, 1995, for the replacement or reconstruction of pavement at the airport,
it assures or certifies that it has implemented an effective airport pavement
maintenance -management program and it assures that it will use such program for
the useful life of any pavement constructed, reconstructed or repaired with
Federal financial assistance at the airport. It will provide such reports on
pavement condition and pavement management programs as the Secretary
determines may be useful.
12. Terminal Development Prerequisites. For projects which include terminal
development at a public use airport, as defined in Title 49, it has, on the date of
Airport Sponsor Assurances (4/2012) 6 of 17
submittal of the project grant application, all the safety equipment required for
certification of such airport under section 44706 of Title 49, United States Code,
and all the security equipment required by rule or regulation, and has provided for
access to the passenger enplaning and deplaning area of such airport to passengers
enplaning and deplaning from aircraft other than air carrier aircraft.
13. Accounting System, Audit, and Record Keeping Requirements.
a. It shall keep all project accounts and records which fully disclose the
amount and disposition by the recipient of the proceeds of this grant, the
total cost of the project in connection with which this grant is given or
used, and the amount or nature of that portion of the cost of the project
supplied by other sources, and such other financial records pertinent to the
project. The accounts and records shall be kept in accordance with an
accounting system that will facilitate an effective audit in accordance with
the Single Audit Act of 1984.
b. It shall make available to the Secretary and the Comptroller General of the
United States, or any of their duly authorized representatives, for the
purpose of audit and examination, any books, documents, papers, and
records of the recipient that are pertinent to this grant. The Secretary may
require that an appropriate audit be conducted by a recipient. In any case
in which an independent audit is made of the accounts of a sponsor
relating to the disposition of the proceeds of a grant or relating to the
project in connection with which this grant was given or used, it shall file
a certified copy of such audit with the Comptroller General of the United
States not later than six (6) months following the close of the fiscal year
for which the audit was made.
14. Minimum Wage Rates. It shall include, in all contracts in excess of $2,000 for
work on any projects funded under this grant agreement which involve labor,
provisions establishing minimum rates of wages, to be predetermined by the
Secretary of Labor, in accordance with the Davis -Bacon Act, as amended (40
U.S.C. 276a -276a-5), which contractors shall pay to skilled and unskilled labor,
and such minimum rates shall be stated in the invitation for bids and shall be
included in proposals or bids for the work.
15. Veteran's Preference. It shall include in all contracts for work on any project
funded under this grant agreement which involve labor, such provisions as are
necessary to insure that, in the employment of labor (except in executive,
administrative, and supervisory positions), preference shall be given to Vietnam
era veterans, Persian Gulf veterans, Afghanistan -Iraq war veterans, disabled
veterans, and small business concerns owned and controlled by disabled veterans
as defined in Section 47112 of Title 49, United States Code. However, this
preference shall apply only where the individuals are available and qualified to
perform the work to which the employment relates.
16. Conformity to Plans and Specifications. It will execute the project subject to
plans, specifications, and schedules approved by the Secretary. Such plans,
specifications, and schedules shall be submitted to the Secretary prior to
Airport Sponsor Assurances (4/2012) 7 of 17
commencement of site preparation, construction, or other performance under this
grant agreement, and, upon approval of the Secretary, shall be incorporated into
this grant agreement. Any modification to the approved plans, specifications, and
schedules shall also be subject to approval of the Secretary, and incorporated into
this grant agreement.
17. Construction Inspection and Approval. It will provide and maintain competent
technical supervision at the construction site throughout the project to assure that
the work conforms to the plans, specifications, and schedules approved by the
Secretary for the project. It shall subject the construction work on any project
contained in an approved project application to inspection and approval by the
Secretary and such work shall be in accordance with regulations and procedures
prescribed by the Secretary. Such regulations and procedures shall require such
cost and progress reporting by the sponsor or sponsors of such project as the
Secretary shall deem necessary.
18. Planning Projects. In carrying out planning projects:
a. It will execute the project in accordance with the approved program
narrative contained in the project application or with the modifications
similarly approved.
b. It will furnish the Secretary with such periodic reports as required
pertaining to the planning project and planning work activities.
C. It will include in all published material prepared in connection with the
planning project a notice that the material was prepared under a grant
provided by the United States.
d. It will make such material available for examination by the public, and
agrees that no material prepared with funds under this project shall be
subject to copyright in the United States or any other country.
e. It will give the Secretary unrestricted authority to publish, disclose,
distribute, and otherwise use any of the material prepared in connection
with this grant.
f. It will grant the Secretary the right to disapprove the sponsor's
employment of specific consultants and their subcontractors to do all or
any part of this project as well as the right to disapprove the proposed
scope and cost of professional services.
g. It will grant the Secretary the right to disapprove the use of the sponsor's
employees to do all or any part of the project.
h. It understands and agrees that the Secretary's approval of this project grant
or the Secretary's approval of any planning material developed as part of
this grant does not constitute or imply any assurance or commitment on
the part of the Secretary to approve any pending or future application for a
Federal airport grant.
19. Operation and Maintenance.
a. The airport and all facilities which are necessary to serve the aeronautical
users of the airport, other than facilities owned or controlled by the United
States, shall be operated at all times in a safe and serviceable condition
Airport Sponsor Assurances (4/2012) 8 of 17
and in accordance with the minimum standards as may be required or
prescribed by applicable Federal, state and local agencies for maintenance
and operation. It will not cause or permit any activity or action thereon
which would interfere with its use for airport purposes. It will suitably
operate and maintain the airport and all facilities thereon or connected
therewith, with due regard to climatic and flood conditions. Any proposal
to temporarily close the airport for non -aeronautical purposes must first be
approved by the Secretary. In furtherance of this assurance, the sponsor
will have in effect arrangements for -
1) Operating the airport's aeronautical facilities whenever required;
2) Promptly marking and lighting hazards resulting from airport
conditions, including temporary conditions; and
3) Promptly notifying airmen of any condition affecting aeronautical
use of the airport. Nothing contained herein shall be construed to
require that the airport be operated for aeronautical use during
temporary periods when snow, flood or other climatic conditions
interfere with such operation and maintenance. Further, nothing
herein shall be construed as requiring the maintenance, repair,
restoration, or replacement of any structure or facility which is
substantially damaged or destroyed due to an act of God or other
condition or circumstance beyond the control of the sponsor.
b. It will suitably operate and maintain noise compatibility program items
that it owns or controls upon which Federal funds have been expended.
20. Hazard Removal and Mitigation. It will take appropriate action to assure that
such terminal airspace as is required to protect instrument and visual operations to
the airport (including established minimum flight altitudes) will be adequately
cleared and protected by removing, lowering, relocating, marking, or lighting or
otherwise mitigating existing airport hazards and by preventing the establishment
or creation of future airport hazards.
21. Compatible Land Use. It will take appropriate action, to the extent reasonable,
including the adoption of zoning laws, to restrict the use of land adjacent to or in
the immediate vicinity of the airport to activities and purposes compatible with
normal airport operations, including landing and takeoff of aircraft. In addition, if
the project is for noise compatibility program implementation, it will not cause or
permit any change in land use, within its jurisdiction, that will reduce its
compatibility, with respect to the airport, of the noise compatibility program
measures upon which Federal funds have been expended.
22. Economic Nondiscrimination.
a. It will make the airport available as an airport for public use on reasonable
terms and without unjust discrimination to all types, kinds and classes of
aeronautical activities, including commercial aeronautical activities
offering services to the public at the airport.
b. In any agreement, contract, lease, or other arrangement under which a
right or privilege at the airport is granted to any person, firm, or
corporation to conduct or to engage in any aeronautical activity for
Airport Sponsor Assurances (4/2012) 9 of 17
furnishing services to the public at the airport, the sponsor will insert and
enforce provisions requiring the contractor to-
e) furnish said services on a reasonable, and not unjustly
discriminatory, basis to all users thereof, and
2) charge reasonable, and not unjustly discriminatory, prices for each
unit or service, provided that the contractor may be allowed to
make reasonable and nondiscriminatory discounts, rebates, or other
similar types of price reductions to volume purchasers.
C. Each fixed -based operator at the airport shall be subject to the same rates,
fees, rentals, and other charges as are uniformly applicable to all other
fixed -based operators making the same or similar uses of such airport and
utilizing the same or similar facilities.
d. Each air carrier using such airport shall have the right to service itself or to
use any fixed -based operator that is authorized or permitted by the airport
to serve any air carrier at such airport.
e. Each air carrier using such airport (whether as a tenant, non tenant, or
subtenant of another air carrier tenant) shall be subject to such
nondiscriminatory and substantially comparable rules, regulations,
conditions, rates, fees, rentals, and other charges with respect to facilities
directly and substantially related to providing air transportation as are
applicable to all such air carriers which make similar use of such airport
and utilize similar facilities, subject to reasonable classifications such as
tenants or non tenants and signatory carriers and non signatory carriers.
Classification or status as tenant or signatory shall not be unreasonably
withheld by any airport provided an air carrier assumes obligations
substantially similar to those already imposed on air carriers in such
classification or status.
f. It will not exercise or grant any right or privilege which operates to
prevent any person, firm, or corporation operating aircraft on the airport
from performing any services on its own aircraft with its own employees
[including, but not limited to maintenance, repair, and fueling] that it may
choose to perform.
g. In the event the sponsor itself exercises any of the rights and privileges
referred to in this assurance, the services involved will be provided on the
same conditions as would apply to the furnishing of such services by
commercial aeronautical service providers authorized by the sponsor
under these provisions.
h. The sponsor may establish such reasonable, and not unjustly
discriminatory, conditions to be met by all users of the airport as may be
necessary for the safe and efficient operation of the airport.
i. The sponsor may prohibit or limit any given type, kind or class of
aeronautical use of the airport if such action is necessary for the safe
operation of the airport or necessary to serve the civil aviation needs of the
public.
23. Exclusive Rights. It will permit no exclusive right for the use of the airport by
any person providing, or intending to provide, aeronautical services to the public.
Airport Sponsor Assurances (4/2012) 10 of 17
For purposes of this paragraph, the providing of the services at an airport by a
single fixed -based operator shall not be construed as an exclusive right if both of
the following apply:
a. It would be unreasonably costly, burdensome, or impractical for more than
one fixed -based operator to provide such services, and
b. If allowing more than one fixed -based operator to provide such services
would require the reduction of space leased pursuant to an existing
agreement between such single fixed -based operator and such airport. It
further agrees that it will not, either directly or indirectly, grant or permit
any person, firm, or corporation, the exclusive right at the airport to
conduct any aeronautical activities, including, but not limited to charter
flights, pilot training, aircraft rental and sightseeing, aerial photography,
crop dusting, aerial advertising and surveying, air carrier operations,
aircraft sales and services, sale of aviation petroleum products whether or
not conducted in conjunction with other aeronautical activity, repair and
maintenance of aircraft, sale of aircraft parts, and any other activities
which because of their direct relationship to the operation of aircraft can
be regarded as an aeronautical activity, and that it will terminate any
exclusive right to conduct an aeronautical activity now existing at such an
airport before the grant of any assistance under Title 49, United States
Code.
24. Fee and Rental Structure. It will maintain a fee and rental structure for the
facilities and services at the airport which will make the airport as self-sustaining
as possible under the circumstances existing at the particular airport, taking into
account such factors as the volume of traffic and economy of collection. No part
of the Federal share of an airport development, airport planning or noise
compatibility project for which a grant is made under Title 49, United States
Code, the Airport and Airway Improvement Act of 1982, the Federal Airport Act
or the Airport and Airway Development Act of 1970 shall be included in the rate
basis in establishing fees, rates, and charges for users of that airport.
25. Airport Revenues.
a. All revenues generated by the airport and any local taxes on aviation fuel
established after December 30, 1987, will be expended by it for the capital
or operating costs of the airport; the local airport system; or other local
facilities which are owned or operated by the owner or operator of the
airport and which are directly and substantially related to the actual air
transportation of passengers or property; or for noise mitigation purposes
on or off the airport. The following exceptions apply to this paragraph:
1) If covenants or assurances in debt obligations issued before
September 3, 1982, by the owner or operator of the airport, or
provisions enacted before September 3, 1982, in governing statutes
controlling the owner or operator's financing, provide for the use of
the revenues from any of the airport owner or operator's facilities,
including the airport, to support not only the airport but also the
Airport Sponsor Assurances (4/2012) 11 of 17
airport owner or operator's general debt obligations or other
facilities, then this limitation on the use of all revenues generated
by the airport (and, in the case of a public airport, local taxes on
aviation fuel) shall not apply.
2) If the Secretary approves the sale of a privately owned airport to a
public sponsor and provides funding for any portion of the public
sponsor's acquisition of land, this limitation on the use of all
revenues generated by the sale shall not apply to certain proceeds
from the sale. This is conditioned on repayment to the Secretary
by the private owner of an amount equal to the remaining
unamortized portion (amortized over a 20 -year period) of any
airport improvement grant made to the private owner for any
purpose other than land acquisition on or after October 1, 1996,
plus an amount equal to the federal share of the current fair market
value of any land acquired with an airport improvement grant
made to that airport on or after October 1, 1996.
3) Certain revenue derived from or generated by mineral extraction,
production, lease, or other means at a general aviation airport (as
defined at Section 47102 of title 49 United States Code), if the
FAA determines the airport sponsor meets the requirements set
forth in Sec. 813 of Public Law 112-95.
b. As part of the annual audit required under the Single Audit Act of 1984,
the sponsor will direct that the audit will review, and the resulting audit
report will provide an opinion concerning, the use of airport revenue and
taxes in paragraph (a), and indicating whether funds paid or transferred to
the owner or operator are paid or transferred in a manner consistent with
Title 49, United States Code and any other applicable provision of law,
including any regulation promulgated by the Secretary or Administrator.
C. Any civil penalties or other sanctions will be imposed for violation of this
assurance in accordance with the provisions of Section 47107 of Title 49,
United States Code.
26. Reports and Inspections. It will:
a. submit to the Secretary such annual or special financial and operations
reports as the Secretary may reasonably request and make such reports
available to the public; make available to the public at reasonable times
and places a report of the airport budget in a format prescribed by the
Secretary;
b. for airport development projects, make the airport and all airport records
and documents affecting the airport, including deeds, leases, operation and
use agreements, regulations and other instruments, available for inspection
by any duly authorized agent of the Secretary upon reasonable request;
C. for noise compatibility program projects, make records and documents
relating to the project and continued compliance with the terms,
Airport Sponsor Assurances (4/2012) 12 of 17
conditions, and assurances of this grant agreement including deeds, leases,
agreements, regulations, and other instruments, available for inspection by
any duly authorized agent of the Secretary upon reasonable request; and
d. in a format and time prescribed by the Secretary, provide to the Secretary
and make available to the public following each of its fiscal years, an
annual report listing in detail:
1) all amounts paid by the airport to any other unit of government and
the purposes for which each such payment was made; and
2) all services and property provided by the airport to other units of
government and the amount of compensation received for
provision of each such service and property.
27. Use by Government Aircraft. It will make available all of the facilities of the
airport developed with Federal financial assistance and all those usable for
landing and takeoff of aircraft to the United States for use by Government aircraft
in common with other aircraft at all times without charge, except, if the use by
Government aircraft is substantial, charge may be made for a reasonable share,
proportional to such use, for the cost of operating and maintaining the facilities
used. Unless otherwise determined by the Secretary, or otherwise agreed to by the
sponsor and the using agency, substantial use of an airport by Government aircraft
will be considered to exist when operations of such aircraft are in excess of those
which, in the opinion of the Secretary, would unduly interfere with use of the
landing areas by other authorized aircraft, or during any calendar month that —
a. Five (5) or more Government aircraft are regularly based at the airport or
on land adjacent thereto; or
b. The total number of movements (counting each landing as a movement) of
Government aircraft is 300 or more, or the gross accumulative weight of
Government aircraft using the airport (the total movement of Government
aircraft multiplied by gross weights of such aircraft) is in excess of five
million pounds.
28. Land for Federal Facilities. It will furnish without cost to the Federal
Government for use in connection with any air traffic control or air navigation
activities, or weather -reporting and communication activities related to air traffic
control, any areas of land or water, or estate therein, or rights in buildings of the
sponsor as the Secretary considers necessary or desirable for construction,
operation, and maintenance at Federal expense of space or facilities for such
purposes. Such areas or any portion thereof will be made available as provided
herein within four months after receipt of a written request from the Secretary.
29. Airport Layout Plan.
a. It will keep up to date at all times an airport layout plan of the airport
showing (1) boundaries of the airport and all proposed additions thereto,
together with the boundaries of all offsite areas owned or controlled by the
sponsor for airport purposes and proposed additions thereto; (2) the
location and nature of all existing and proposed airport facilities and
structures (such as runways, taxiways, aprons, terminal buildings, hangars
Airport Sponsor Assurances (4/2012) 13 of 17
and roads), including all proposed extensions and reductions of existing
airport facilities; (3) the location of all existing and proposed nonaviation
areas and of all existing improvements thereon; and (4) all proposed and
existing access points used to taxi aircraft across the airport's property
boundary. Such airport layout plans and each amendment, revision, or
modification thereof, shall be subject to the approval of the Secretary
which approval shall be evidenced by the signature of a duly authorized
representative of the Secretary on the face of the airport layout plan. The
sponsor will not make or permit any changes or alterations in the airport or
any of its facilities which are not in conformity with the airport layout plan
as approved by the Secretary and which might, in the opinion of the
Secretary, adversely affect the safety, utility or efficiency of the airport.
b. If a change or alteration in the airport or the facilities is made which the
Secretary determines adversely affects the safety, utility, or efficiency of
any federally owned, leased, or funded property on or off the airport and
which is not in conformity with the airport layout plan as approved by the
Secretary, the owner or operator will, if requested, by the Secretary (1)
eliminate such adverse effect in a manner approved by the Secretary; or
(2) bear all costs of relocating such property (or replacement thereof) to a
site acceptable to the Secretary and all costs of restoring such property (or
replacement thereof) to the level of safety, utility, efficiency, and cost of
operation existing before the unapproved change in the airport or its
facilities except in the case of a relocation or replacement of an existing
airport facility due to a change in the Secretary's design standards beyond
the control of the airport sponsor.
30. Civil Rights. It will comply with such rules as are promulgated to assure that no
person shall, on the grounds of race, creed, color, national origin, sex, age, or
handicap be excluded from participating in any activity conducted with or
benefiting from funds received from this grant. This assurance obligates the
sponsor for the period during which Federal financial assistance is extended to the
program, except where Federal financial assistance is to provide, or is in the form
of personal property or real property or interest therein or structures or
improvements thereon in which case the assurance obligates the sponsor or any
transferee for the longer of the following periods: (a) the period during which the
property is used for a purpose for which Federal financial assistance is extended,
or for another purpose involving the provision of similar services or benefits, or
(b) the period during which the sponsor retains ownership or possession of the
property.
31. Disposal of Land.
a. For land purchased under a grant for airport noise compatibility purposes,
including land serving as a noise buffer, it will dispose of the land, when
the land is no longer needed for such purposes, at fair market value, at the
earliest practicable time. That portion of the proceeds of such disposition
which is proportionate to the United States' share of acquisition of such
land will be, at the discretion of the Secretary, (1) reinvested in another
Airport Sponsor Assurances (4/2012) 14 of 17
project at the airport, or (2) transferred to another eligible airport as
prescribed by the Secretary. The Secretary shall give preference to the
following, in descending order, (1) reinvestment in an approved noise
compatibility project, (2) reinvestment in an approved project that is
eligible for grant funding under Section 47117(e) of title 49 United States
Code, (3) reinvestment in an approved airport development project that is
eligible for grant funding under Sections 47114, 47115, or 47117 of title
49 United States Code, (4) transferred to an eligible sponsor of another
public airport to be reinvested in an approved noise compatibility project
at that airport, and (5) paid to the Secretary for deposit in the Airport and
Airway Trust Fund. If land acquired under a grant for noise compatibility
purposes is leased at fair market value and consistent with noise buffering
purposes, the lease will not be considered a disposal of the land.
Revenues derived from such a lease may be used for an approved airport
development project that would otherwise be eligible for grant funding or
any permitted use of airport revenue.
For land purchased under a grant for airport development purposes (other
than noise compatibility), it will, when the land is no longer needed for
airport purposes, dispose of such land at fair market value or make
available to the Secretary an amount equal to the United States'
proportionate share of the fair market value of the land. That portion of
the proceeds of such disposition which is proportionate to the United
States' share of the cost of acquisition of such land will, (1) upon
application to the Secretary, be reinvested or transferred to another eligible
airport as prescribed by the Secretary. The Secretary shall give preference
to the following, in descending order: (1) reinvestment in an approved
noise compatibility project, (2) reinvestment in an approved project that is
eligible for grant funding under Section 47117(e) of title 49 United States
Code, (3) reinvestment in an approved airport development project that is
eligible for grant funding under Sections 47114, 47115, or 47117 of title
49 United States Code, (4) transferred to an eligible sponsor of another
public airport to be reinvested in an approved noise compatibility project
at that airport, and (5) paid to the Secretary for deposit in the Airport and
Airway Trust Fund.
Land shall be considered to be needed for airport purposes under this
assurance if (1) it may be needed for aeronautical purposes (including
runway protection zones) or serve as noise buffer land, and (2) the revenue
from interim uses of such land contributes to the financial self-sufficiency
of the airport. Further, land purchased with a grant received by an airport
operator or owner before December 31, 1987, will be considered to be
needed for airport purposes if the Secretary or Federal agency making
such grant before December 31, 1987, was notified by the operator or
owner of the uses of such land, did not object to such use, and the land
continues to be used for that purpose, such use having commenced no later
than December 15, 1989.
Airport Sponsor Assurances (4/2012) 15 of 17
d. Disposition of such land under (a) (b) or (c) will be subject to the retention
or reservation of any interest or right therein necessary to ensure that such
land will only be used for purposes which are compatible with noise levels
associated with operation of the airport.
32. Engineering and Design Services. It will award each contract, or sub -contract
for program management, construction management, planning studies, feasibility
studies, architectural services, preliminary engineering, design, engineering,
surveying, mapping or related services with respect to the project in the same
manner as a contract for architectural and engineering services is negotiated under
Title IX of the Federal Property and Administrative Services Act of 1949 or an
equivalent qualifications -based requirement prescribed for or by the sponsor of
the airport.
33. Foreign Market Restrictions. It will not allow funds provided under this grant to
be used to fund any project which uses any product or service of a foreign country
during the period in which such foreign country is listed by the United States
Trade Representative as denying fair and equitable market opportunities for
products and suppliers of the United States in procurement and construction.
34. Policies, Standards, and Specifications. It will carry out the project in
accordance with policies, standards, and specifications approved by the Secretary
including but not limited to the advisory circulars listed in the Current FAA
Advisory Circulars for AIP projects, dated (the latest approved version as of this
grant offer) and included in this grant, and in accordance with applicable state
policies, standards, and specifications approved by the Secretary.
35. Relocation and Real Property Acquisition. (1) It will be guided in acquiring
real property, to the greatest extent practicable under State law, by the land
acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse
property owners for necessary expenses as specified in Subpart B. (2) It will
provide a relocation assistance program offering the services described in Subpart
C and fair and reasonable relocation payments and assistance to displaced persons
as required in Subpart D and E of 49 CFR Part 24. (3) It will make available
within a reasonable period of time prior to displacement, comparable replacement
dwellings to displaced persons in accordance with Subpart E of 49 CFR Part 24.
36. Access By Intercity Buses. The airport owner or operator will permit, to the
maximum extent practicable, intercity buses or other modes of transportation to
have access to the airport; however, it has no obligation to fund special facilities
for intercity buses or for other modes of transportation.
37. Disadvantaged Business Enterprises. The recipient shall not discriminate on the
basis of race, color, national origin or sex in the award and performance of any
DOT -assisted contract or in the administration of its DBE program or the
requirements of 49 CFR Part 26. The Recipient shall take all necessary and
reasonable steps under 49 CFR Part 26 to ensure non discrimination in the award
and administration of DOT -assisted contracts. The recipient's DBE program, as
required by 49 CFR Part 26, and as approved by DOT, is incorporated by
reference in this agreement. Implementation of this program is a legal obligation
Airport Sponsor Assurances (4/2012) 16 of 17
and failure to carry out its terms shall be treated as a violation of this agreement.
Upon notification to the recipient of its failure to carry out its approved program,
the Department may impose sanctions as provided for under Part 26 and may, in
appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or
the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801).
38. Hangar Construction. If the airport owner or operator and a person who owns an
aircraft agree that a hangar is to be constructed at the airport for the aircraft at the
aircraft owner's expense, the airport owner or operator will grant to the aircraft
owner for the hangar a long term lease that is subject to such terms and conditions
on the hangar as the airport owner or operator may impose.
39. Competitive Access.
a. If the airport owner or operator of a medium or large hub airport (as
defined in section 47102 of title 49, U.S.C.) has been unable to
accommodate one or more requests by an air carrier for access to gates or
other facilities at that airport in order to allow the air carrier to provide
service to the airport or to expand service at the airport, the airport owner
or operator shall transmit a report to the Secretary that -
1) Describes the requests;
2) Provides an explanation as to why the requests could not be
accommodated; and
3) Provides a time frame within which, if any, the airport will be able
to accommodate the requests.
b. Such report shall be due on either February 1 or August 1 of each year if
the airport has been unable to accommodate the request(s) in the six month
period prior to the applicable due date.
Airport Sponsor Assurances (4/2012) 17 of 17
EXHIBIT "C"
HOTEL LAND LEASE AGREEMENT
LEASE COVENANTS AND RESTRICTIONS
ARTICLE I — DEFINITIONS
Whenever used in this instrument or as used within the Agreement to which this instrument is
attached, the following terms shall have the following meanings:
A. "AIRPORT" shall mean the Lubbock Preston Smith International Airport.
B. "BUILDING" shall include all buildings and all projections or extensions there from, including
any garages, outside platforms and docks, carports, canopies and porches, excluding ground cover.
C. "LOT COVERAGE" shall mean the surface area of the Premises that may be covered by
Buildings, expressed as a percentage of the total area.
D. "BUILDING SITE" shall mean the entire Premises leased by Lessee and shown as "Premises" or
"Leased Premises" in EXHIBIT "A" of the Agreement.
E. "CITY" shall mean the City of Lubbock, Texas, it's duly elected Council, or any duty constituted
agent/committee appointed through said Council to fulfill the obligations herein required.
F. "COVENANTS" shall mean the lease agreement restrictions and covenants expressed
within this instrument, as attached and incorporated into the Agreement.
G. "DIRECTOR OF AVIATION" or "DIRECTOR" shall mean the Director of Aviation of the
Airport.
H. "FAA" shall mean the Federal Aviation Administration of the U. S. Government or any federal
agencies succeeding to its jurisdiction.
I. "LESSEE" shall mean Boomer Development LLC.
J. "PERMITTED USES" shall mean the uses, which may be engaged in upon the Premises.
K. "PREMISES" the property as identified in Article 2a and more fully described in EXHIBIT "A"
of the Agreement.
Page 1 of 7
L. "SETBACK" shall mean the distance a building must be set back from the property line of the
Premises.
M. "STREET" shall mean any street, highway or other public thoroughfare recognized by the City.
ARTICLE 11— PERMITTED USES AND PERFORMANCE STANDARDS
A. Permitted Uses. No building, structure or land provided to Lessee pursuant to the Agreement shall
be used by Lessee for any purpose other than for a hotel and related facilities and improvements,
including all uses commonly found in a hotel, and/or for commercial out parcels as more fully
described within the Agreement. Lessee shall not operate or permit others to operate an auto rental
concession or business on the Premises, except that Lessee may allow an auto rental company to
maintain a direct telephone line, information or rental desk in the hotel lobby for the convenience of
hotel guests, provided such auto rental company has an appropriate contractual arrangement with
City permitting its operation on Airport property. Also, Lessee shall not operate or permit others to
operate an auto parking concession or business on the Premises except to the extent necessary to
provide parking for hotel guests and customers. Lessee may operate a Park and Stay Program with
the written approval of the Director of Aviation. All uses not expressly granted in this section or
otherwise expressly permitted by the Agreement are prohibited.
B. Performance Standards. Subject to the limited exceptions arising related to the construction
activities required for the improvements contemplated by the Agreement and provided that such
instances are the result of standard construction activities, the Premises shall not be used or
occupied in any manner so as to create any dangerous, noxious, or otherwise objectionable
conditions which may affect any other property, including, but not limited to:
(i.) Fire, explosive or other hazardous noise, vibration or shock;
(ii.) Smoke, dust, odor or other forms of air pollution;
(iii.) Heat;
(iv.) Glare;
(v.) Electrical or other disturbance; or
(vi.) Liquid or solid refuse wastes or other substances, conditions or elements in such a manner
or in such an amount as to affect the surrounding area or adjoining properties.
C. Fire and Explosive Hazards. No activity shall be undertaken involving fire or explosive hazards
which may endanger the property, improvements or employees of the City or any other property
owner or Lessee.
D. Noise. No noise, other than from the operation of motor vehicles or aircraft, which is objectionable
to a person of normal sensibilities shall be permitted within fifty (50) feet of the property line of the
Premises.
Page 2 of 7
E. Air Pollution. No activity of any type shall be conducted or permitted on the Premises which
violate any applicable federal, state, or local law, rule or regulation.
F. Dust Control. All ground areas that will not be covered by structures shall be landscaped or
surfaced with concrete, asphalt concrete, asphalt oil or other comparable dust free surfacing
permitted by applicable City and State regulations, and shall be maintained in good condition.
G. Heat or Glare. Any operation producing intense glare or heat shall be performed within an
enclosed or screened area in such manner that the glare or heat emitted will not be discernible from
the property line of the Premises.
H. Electronic or Radio Interference. No electrical, electronic, or radio emissions shall be produced
on the Premises that may interfere, obstruct, or adversely affect the operation of air navigation aids
or Airport communications.
Illumination/Exterior Lighting.
(i) Exterior Lighting_ The design and location of exterior lighting shall comply in all
respects to the applicable requirements of the City, the FAA or successor agencies, and
any other governmental agencies having applicable jurisdiction with respect to height,
type, and placement of lighting standards as they may affect the safety of flight operations
into, from, and around the Airport.
(ii) Interior Lighting. The source of illumination of any kind within any Building on the
Premises shall not be visible at the property line, except for normal installation of standard
interior lighting fixtures within buildings.
I Signs. The number, size, design, and location of all signs displayed for observation from outside a
Building whether displayed on, near, or within a Building shall be subject to prior written approval
by the Director of Aviation. Further, all such signs shall comply with all applicable sign ordinances
and building codes of the City of Lubbock, and with all rules and regulations of the FAA, or any
successor agencies.
Signs on the Premises shall be limited to those identifying the uses conducted on the Premises and
to those necessary for directional purposes. Notwithstanding anything to the contrary contained
herein, the Director of Aviation will not unreasonably withhold approval of signs that, when
applicable, are consistent with the prototype design of a nationally/regionally recognized retail
brand licensor/franchisor; provided, however, that no outdoor advertising, billboards or flashing
lighting shall be permitted.
Page 3 of 7
K. Refuse or Trash. No refuse or trash shall be kept, stored or allowed to accumulate on the
Premises, except as expressly permitted by the Agreement.
L. Storage. All storage of every type, except of automobiles, shall be within approved Buildings or
enclosures. Storage shall be expressly prohibited outside of approved Buildings or enclosures,
including but not limited to the storage of parts, service equipment or similar items.
M. Sewage Disposal Systems. No cesspool, septic tank or other sewage disposal system or device
shall be installed, maintained or used upon the Premises without the written approval of the City.
ARTICLE III — DEVELOPMENT OF SITE-REOUIRED IMPROVEMENTS
A. Required Parking. Parking facilities shall be provided in accordance with all applicable City,
State and Federal Laws, rules and regulations, and shall be entirely sufficient for the parking of all
vehicles necessary for the conduct of the hotel and other permitted uses of the Premises. Such
parking facilities shall comply with all applicable City, State and Federal laws, including, but not
limited to, the American with Disabilities Act. Each parking space shall be designated by white
lines painted upon paved surface.
B. Vehicle Loading. All provisions for the loading and maneuvering of vehicles incidental to the
operation of the hotel and other permitted uses on the Premises shall comply with all applicable
City, State and Federal laws, rules and regulations.
C. Setbacks. All Building setbacks shall comply with the requirements of the City of Lubbock,
through its planning and zoning requirements or otherwise, shall be more restrictive, in which case
the more restrictive requirements shall apply.
D. Landscaping. Every lot on the Premises for which a Building shall be constructed must be
landscaped. This provision applies to the entirety of the Premises, unless the requirements of the
City of Lubbock, through its planning and zoning requirements or otherwise shall be more
restrictive, in which case the more restrictive requirements shall apply. Lessee is also encouraged
to expand landscape development plans to include such elements as sculptures, rock arrangements
and sheltered outdoor seating areas, all subject to design approval by the Director of Aviation or
authorized agent prior to installation. All landscaping shall be maintained in good condition, free
of weeds, trash and other debris; and shall be properly drained and graded
E. Building Heights. All building heights shall conform to standards established by FAA rules and
regulations and shall require prior written approval of the Director of Aviation. The term "building
height' shall include any Building equipment, structures or other extrusions from the roof.
Page 4 of 7
F. Lot Coverage. All Buildings and structures, or portions thereof, excluding paving and
landscaping, placed on the Premises shall be constructed in compliance with the City of Lubbock,
as amended. This provision applies to each individual lot.
G. Type of Construction. All Buildings shall be constructed in compliance with the Architectural
Design Standards of the City of Lubbock, as amended. In addition, concrete or masonry units shall
be kept neatly painted, if used. Pre -fabricated metal buildings are specifically prohibited. All
Buildings shall conform to applicable laws, ordinances and building codes of the City.
H. Storage and Vehicle Loading Area. All outside storage and refuse areas shall be constructed and
contained to eliminate odors, insects, dust, visual nuisances, and other similar nuisances.
No materials, supplies, or equipment, including Lessee -owned or Lessee -operated trucks, with the
exception of the Hotel Shuttle Vehicle(s), shall be stored in an area on the Premises, except inside a
closed Building, behind a barrier completely screened from view of adjoining Lots or Streets.
All provisions for the loading and maneuvering of vehicles incidental to the operation of the hotel
or other permitted uses shall be placed on the Premises and shall not encroach into Setback areas
except the side and rear setback area; on street vehicle loading shall not be permitted. Vehicle
loading shall be permitted only at the rear of Buildings, or on a side, except that such loading
performed at a side shall be completely screened from view of adjoining Lots or Streets.
Piaes. No water pipes, sewer pipes, or drainage pipes (other than those within structures) shall be
installed or maintained upon the Premises above the surface of the ground, except hoses and
moveable pipes used for irrigation or similar purposes, as approved by the Director of Aviation.
ARTICLE IV — PREPARATION AND SUBMISSION OF PLANS FOR IMPROVEMENT
A. General. All plans for alterations to the Premises in excess of FIFTY THOUSAND AND 00/100
DOLLARS ($50,000.00) ("Material Amount"), either for the construction of additional facilities or
alterations to existing Buildings, including repairs, shall be prepared, submitted and approved as
outlined herein. This requirement shall be in addition to the requirements set forth in the
Agreement but shall not be applicable to alterations that are less than the Material Amount. All
initial plans for improvements to each site shall be prepared by a registered engineer or architect
and shall be axed with their signature and official seal, and further, shall require the prior written
approval by the Director of Aviation before any construction may begin ("Initial Plans"). Such
approval from the Director of Aviation shall not be unreasonably withheld. The architect or
engineer who prepares the Initial Plans and other construction documents shall have full
responsibility for complying with Texas Codes for Engineers and Architects, as applicable.
Notwithstanding anything to the contrary contained herein, the Director of Aviation will not
withhold its approval of the Initial Plans and Final Plans (including but not limited to the plans for
repairs or alterations to existing Buildings) provided that, when applicable, such plans are
Page 5 of 7
consistent with the prototype design of the hotel brand franchisor or the retail brand
licensor/franchisor.
The Director of Aviation shall provide written approval or disapproval of any submitted plans,
within the timelines established below. The Initial Plans for proposed improvements shall include
the following:
(i) A plot plan at a scale not smaller than one (1) inch equaling one hundred (100)
feet showing the relationship of the proposed improvements to the Premises and
to the improvements on adjacent lots, utilities and access thereto, curbs, walks,
driveways, parking areas, and other pertinent design information;
(ii) Preliminary schematic plans for the improvements showing typical, general
layouts, including guest room areas, public spaces, back -of -house areas, and
lounge and banquet areas for the hotel site and comparable plans for the other,
non -hotel sites;
(iii) Ground cover plans, including landscaping;
(iv) A true architectural rendering of the proposed Buildings, including elevations, the
proposed exterior color scheme, style, materials and design and placement of
signs; and
(v) Any other plans, specifications or design features which the Director of Aviation
may reasonably deem necessary and request.
B. Codes and Reeulations. All improvements shall be planned and constructed in accordance with
the laws and ordinances of the City, as amended, applicable building codes as amended, all
applicable State and Federal laws as amended, and all rules and regulations of the FAA or any
successor agencies; as amended. Notwithstanding anything to the contrary contained herein, City
acknowledges that Lessee's agreement to comply with the Codes and Regulations does not equate
to or require Lessee's waiver of any grandfathered or vested rights.
C. Commitment to Construct. Once the Director of Aviation approves Construction Specifications
for any structure, a copy of the approved plans shall be deposited for permanent record with the
Airport. Approval of these plans by the Director of Aviation shall constitute a commitment on the
part of the Lessee to obtain all required permits and licenses and, to erect and maintain the
improvements as proposed and approved, and to do so within the time period set forth in the
Agreement.
D. Construction Within Time Specified. Any approved construction shall be prosecuted diligently
in accordance with the approved plans and specifications and shall be completed within the time
Page 6 of 7
specified, provided that in no event shall such construction period exceed those timelines
established within the Agreement. Failure to complete such construction in the time specified shall
be considered a default as set forth within the Agreement.
E. Construction Without Approval. If any structure shall be altered, erected, placed or maintained
upon the Premises other than in accordance with the requirements of these Covenants and the
Agreement, including the plans and specifications approved by the City, such alterations, erection
and maintenance shall be deemed to have been undertaken without the approvals required herein.
This restriction shall be applicable to landscaping plans and signage plans as well as architectural
plans.
In the event of such construction without approval, the Lessee will be considered in default of the
Agreement and the City may terminate said Agreement, in accordance with the provisions set forth
therein.
ARTICLE V — GENERAL PROVISIONS
A. Maintenance of Premises. Lessee shall, at its sole cost and expense, provide for the maintenance
of the Premises and the Buildings, improvements and appurtenances thereto, in a presentable
condition consistent with good business practice and equal in appearance and character to other
similar improvements on the Airport.
B. Maintenance of Landscaping. If landscaped areas are not maintained in accordance with the
standards prescribed under this Agreement and these Covenants, and the condition is not corrected
within ten (10) days after written notice from the City or the Airport, the Director or authorized
agent shall have the right to enter on the Premises and plant or replant such areas without being
deemed guilty of trespass and without incurring any liability. The costs therefore, as determined by
the City, shall be paid by the Lessee to the City within thirty (30) days from Lessee's receipt of
notice of such costs.
C. Use Permits. Such use and occupancy permits as may be required by the Building Code of the
City shall be maintained in force at all time by Lessee, at its sole cost. To the extent legally
permitted, the City shall cooperate with Lessee in obtaining any such required use and occupancy
permits.
D. Failure to Enforce a Restriction. The City may fail to enforce any restriction herein specified, but
in no event should such failure be deemed a waiver of that particular restriction or of these
Covenants or the right to enforce any restriction at a later date.
[END OF COVENANTS]
Page 7 of 7
EXHIBIT "D"
LUBBOCK PRESTON SMITH INTERNATIONAL AIRPORT
Hotel Gross Revenues Reporting Form
Lessee Name:
Property Name:
Annual Reporting Period: (Year)
REVENUE CATEGORIES
Room Sales
Gross Revenues
Less Allowances $
Total Room Sales $
Alcoholic Beverage Sales
Gross Revenues $
Less Allowances $
Total Alcoholic Beverage Sales $
Food Sales
Gross Revenues $
Less Allowances $
Total Food Sales $
Miscellaneous Sales
Gross Revenues $
Less Allowances $
Total Miscellaneous Sales
Page 1 of 1
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