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HomeMy WebLinkAboutResolution - 2019-R0424 - Lease Agreement With Webber - 11/19/2019Resolution No. 2019-RO424 Item No. 6.25 November 19, 2019 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 Webber, a Texas Limited Liability Company, 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 November 19 2019 DANIEL M. POPE, MATOR ATTEST: Rebec a Garza, City Sec et APPROVED AS TO CONTENT: Kelly Campbell, A.A.E. Executive Director of Aviation te,Tirst-Assistant City Attorney ccdocs/RES.LeaseAgrmt- Webber LLC October 30, 2019 Resolution No. 2019-RO424 STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS: LEASE AGREEMENT THIS LEASE AGREEMENT, hereinafter referred to as the "Agreement" or "Lease," is entered into by the CITY OF LUBBOCK (referred to herein as City), a Home Rule Municipality of Lubbock County, Texas, and WEBBER LLC., (referred to herein as Lessee). WITNESSETH WHEREAS, City owns, controls and operates the Lubbock Preston Smith International Airport (referred to herein as Airport), situated at Lubbock, Lubbock County, Texas, and has the authority to grant certain rights and privileges with respect thereto, including those hereinafter set forth; and WHEREAS, City deems it advantageous to itself and to its operation of the Airport to lease unto Lessee ground area described herein, together with certain privileges, rights, uses and interest therein, as hereinafter set forth; and WHEREAS, Lessee is an individual primarily engaged in road construction; and WHEREAS, Lessee has indicated a willingness and an ability to properly keep, maintain, and improve said premises in accordance with standards established by City, and NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms and conditions, both general and special, as hereinafter set forth, City hereby grants to Lessee the rights and privileges hereinafter described; Lessee agrees to accept the duties, responsibilities and obligations as hereinafter set forth; and the parties hereto, for themselves, their successors and assigns, agree as follows: ARTICLE ONE DEMISE OF LEASED PREMISES 1.01 LEASED PREMISES City does hereby lease unto Lessee the premises described below and shown on, Exhibit "A" which is attached and is incorporated into and made a part of this Lease (hereinafter referred to as "Premises" or "Leased Premises"). Description of Leased Premises: Land: 45,150 square feet 1.02 USE OF AIRPORT Lessee shall use the Leased Premises for a temporary office site during the I-27 road construction project. Lessee shall not use the Leased Premises identified as contrary to the Airport Layout Plan, Airport Land Use Plan, and/or Legal requirements. 1.03 PUBLIC BENEFIT Lessee agrees to operate the Leased Premises for the use and benefit of the public and further agrees where applicable: A. To use reasonable efforts to furnish good, prompt and efficient services adequate to meet all the demands for its services at the Airport; B. To furnish said services on a fair, equal and not unjustly discriminatory basis to all users thereof, and C. To charge fair, reasonable and nondiscriminatory prices for each unit of sale or service, provided that the Lessee may make reasonable nondiscriminatory discounts, rebates or other similar types of price reductions for volume purchases. ARTICLE TWO 2.01 TERM The initial term of this Agreement shall begin on NOVEMBER 20, 2019 and terminate on JUNE 30, 2021. Webber LLC Page 2 2.02 HOLDING OVER In the event Lessee remains in possession of the Leased Premises after the expiration of this Agreement or any extension thereof, without any written renewal or extension of the Agreement, the rents, fees, and other charges paid during the holding over period shall be equal to a minimum of 150% of the monthly rents, fees, and other charges that were charged by the City at the time the Agreement expired. ARTICLE THREE RENTAL AND FEES 3.01 RENTALS In consideration of the rights and privileges herein granted as singularly related to its use and enjoyment of the Leased Premises, Lessee shall pay to the City the following: A. The annual rental rate is $0.2038 per square foot per year. The annual rent will be NINE THOUSAND ONE HUNDRED SEVENTY-ONE AND NO/100 DOLLARS ($9,171.00) which shall be due and payable, in (12) equal monthly installments of SEVEN HUNDRED SIXTY-FOUR AND 25/100 DOLLARS ($764.25). B. CONSUMER PRICE INDEX The parties hereto mutually agree that during the initial term of this Agreement, and during any renewal period, except as otherwise might be set out in this Agreement, the rental rates will be adjusted upward or downward for each ensuing calendar year beginning January 1, 2020, in direct proportion to the fluctuation in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index (CPI) for All Urban Consumers. Any adjustment to the rental rates resulting from changes in the CPI shall be determined by calculating the increase or decrease in the CPI for the preceding twelve (12) months. 3.02 PAYMENTS All payments shall become due and payable on or before the 201h day of each month by the Lessee under this Agreement and shall be made to the City at Lubbock Preston Smith International Airport, 5401 N. MLK Blvd. Unit 389, Lubbock, Texas 79403. Lessee shall pay City a late payment charge of five percent (5%) of the total amount of rentals Webber LLC Page 3 payable if payment of such rentals is not received by City on or before the 25t6 day of the month. ARTICLE FOUR RIGHTS RESERVED TO CITY 4.01 SAFETY City reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from constructing or permitting construction of any building or other structure on or off the Airport which, in the opinion of City, would limit the usefulness of the Airport or constitute a hazard to aircraft. 4.02 MAINTENANCE OF PUBLIC AREA City reserves the right, but shall not be obligated to Lessee, to maintain and keep in repair the landing area of the Airport and all publicly -owned facilities of the Airport. Lessee will perform no maintenance activities outside the Leased Premises without the consent of the Executive Director of Aviation. City reserves the right to establish reasonable standards for the construction and maintenance of and alterations, repairs, additions or improvements of the leased facilities. This includes structural design, color, materials used, landscaping and maintenance of the Leased Premises. Lessee shall comply with applicable statutes, ordinances, building codes, and rules and regulations of all governmental agencies as may have jurisdiction at the time. Subject to Lessee's Duty to Repair, City will not require Lessee to reconstruct or alter an existing improvement that has been constructed and maintained in good condition under a prior design standard. 4.04 TIME OF EMERGENCY During time of war or national emergency, the City shall have the right to lease the landing area and any other portion of the Airport to the United States for governmental use and, if any such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the United States, shall be suspended. Webber LLC Page 4 4.05 DEVELOPMENT OF AIRPORT City reserves the right to further develop or improve the Airport. However, the City shall notify Lessee, in writing, prior to the planned development or improvement affecting Lessee's Leased Premises. 4.06 SPONSOR'S ASSURANCE SUBORDINATION This Lease shall be subordinate to the provisions of any existing or future agreement between the City and the United States concerning the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. Should the effect of such agreement with the United States be to take any of the property under this Lease or otherwise diminish the commercial value of this Lease, the City shall not be held liable therefor. The City covenants and agrees that it will during the term of this Agreement operate and maintain the Airport as a public facility consistent with and pursuant to the Assurances given by the City to the United States Government under federal law. 4.07 INSPECTION OF LEASED PREMISES City reserves the right to conduct inspections of the Leased Premises at reasonable times to ensure that fire, safety, and sanitation regulations and other provisions contained in this Lease are being adhered to by the Lessee. 4.08 RESERVATION OF AVIGATIONAL EASEMENT City reserves to itself and its successors and assignees, for the use and benefits of the public, a right of avigation over the Leased Premises for the passage of Aircraft utilizing the Airport. ARTICLE FIVE RIGHTS RESERVED TO LESSEE 5.01 WAGES The Parties hereto acknowledge and agree that any Improvements constructed on the Leased Premises by Lessee shall be considered Public Works for the purposes of determining applicability of Chapter 2258, Texas Government Code. The Parties further agree that all wages paid by Lessee in connection with the construction of said Webber LLC Page 5 Improvements shall comply with the prevailing wage requirements set forth in state and federal law including Chapter 2258, Texas Government Code. 5.02 LESSEE'S DUTY TO REPAIR Except as provided herein, any property of City, or for which City may be responsible, which is damaged or destroyed incident to the exercise of the rights or privileges herein granted, or which damage or destruction is occasioned by the negligence of Lessee, its employees, agents, servants, patrons, or invitees shall be properly repaired or replaced by Lessee to the reasonable satisfaction of the Director. In lieu of such repair or replacement, Lessee shall, if so required by the Director, pay City the replacement cost of such property. 5.03 PARKING Lessee shall at its sole cost and expense provide adequate and suitable parking areas for use by its customers, employees, patrons, guests, and invitees upon its Premises. 5.04 WARRANTY OF NO SOLICITATION Lessee warrants that it has not employed any person employed by City to solicit or secure this Agreement upon any agreement for a commission, percentage, brokerage, or contingent fee. 5.05 LESSEE'S OBILGATIONS Lessee shall be responsible for maintaining an on -going business at the Airport and complying with the PMCDs throughout the term of the Agreement. Additionally, any modifications to the business or corporate structure of the Lessee shall be communicated in advance to the Director. Lessee shall be responsible for the conduct, demeanor, and appearance of Lessee's representatives, officers, officials, employees, agents, and volunteers at the Airport and on the Leased Premises. Lessee shall be responsible for conducting Lessee's authorized Activities in a manner that does not interfere with or disturb others while also complying with applicable Legal Requirements. Lessee shall be responsible for promptly paying when due and owing all: A. UTILITIES — Lessee shall assume and pay for all costs or charges for metered utility services provided to Lessee at the Premises during the term of this Agreement. Lessee shall have the right, with written approval of City, to connect to any storm and Webber LLC Page 6 sanitary sewers, and water, and utility outlets, the cost of usage, extension, installation, and meters, where required, to be paid by the Lessee. B. TRASH, GARBAGE, REFUSE, ETC. — Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage, and other refuse produced as a result of Lessee's business operations on the Leased Premises. C. PAYMENT OF TAXES, FEES, AND ASSESSMENTS — The Lessee agrees to pay promptly when due all federal, state, and local government taxes, license fees, and occupation taxes levied on either the Leased Premises or on the business conducted on the Leased Premises or on any of Lessee's property used in connection therewith, except as provided herein. Taxation may be subject to legal protest in accordance with the provisions of the taxing authority whose levy is questioned. Any protest shall be at the sole expense of Lessee. Delinquency in payment of such obligations after any protest has been settled shall, at the option of the City, be cause for immediate termination of this Lease. D. PAYMENT OF EXPENSES — Lessee agrees to pay all costs, expenses, and other charges in connection with the property related to Lessee's use. 5.06 AMERICANS WITH DISABILITIES ACT Less shall be solely and fully responsible for complying with the Americans with Disabilities Act of 1990 as amended from time -to -time, with respect to the Leased Premises and its Activities at the Airport. 5.07 NON-DISCRIMINATION PRACTICES Lessee, its agents and employees will not discriminate against any person or class of persons by reason of race, creed, color, national origin, age, sex, or disability in providing any services or in the use of any of its facilities provided for the public. Lessee further agrees to comply with such enforcement procedures as the United States Government might demand that the City take in order to comply with the Sponsor's Assurances. Lessee agrees not to illegally discriminate against any Employee or applicant for employment because of race, creed, color, national origin, age, sex, or disability. Webber LLC Page 7 ARTICLE SIX GENERAL CONDITIONS 6.01 BUSINESS SOLICITATIONS All of Lessee's business operations and solicitations will be confined to the Leased Premises. 6.02 RULES AND REGULATIONS City reserves the right to issue through its Executive Director of Aviation such reasonable rules, regulations and procedures for activities and operations conducted on the Airport as deemed necessary to protect and preserve the safety, security and welfare of the Airport and all persons, property and facilities located thereon. The Lessee's officers, agents, employees and servants will obey all rules and regulations which may be promulgated from time to time by the City or its authorized agents at the Airport, or by other lawful authority, to ensure the safe and orderly conduct of operations and traffic on the Airport. 6.03 COMPLIANCE WITH RULES AND REGULATIONS Lessee agrees to operate and conduct its business in compliance with applicable federal, state and local rules and regulations and in compliance with all applicable statutes, ordinances, rules and regulations affecting the use, occupancy or operation of the Leased Premises and Airport. Lessee further agrees that in the event that a civil penalty or fine is levied against the Airport as a result of Lessee's failure to comply or act in accordance with said regulations, statutes and/or ordinances, Lessee shall within fifteen (15) days reimburse the Airport the full amount of the penalty or fine and immediately correct the failure, act or omission leading to, causing or contributing to the violation. Failure of the Lessee to comply with any requirement of this paragraph shall be cause for immediate termination of this Lease Agreement by City's Executive Director of Aviation. Provided, however, that the duty of the Lessee to reimburse City is subject to City providing written notice of any potential fine or penalty. Lessee shall be provided notice to participate in the proceeding and defend itself, with counsel of its choice, at its own cost. 6.04 IMPROVEMENTS OR ALTERATIONS Lessee shall not make, permit or suffer any additions, improvements or alterations to the Leased Premises without the approval of the Director. Any such additions, improvements Webber LLC Page 8 or alterations shall be made at the sole expense of the Lessee and title to the addition or improvements so made shall vest in the Lessee. Any trade fixtures installed by Lessee shall be removed by Lessee at its expense. The Lessee agrees to hold City harmless from Mechanic's and Materialman's liens arising from any construction additions, improvements, repairs or alterations effected by the Lessee. 6.05 SIGNAGE The Lessee shall not erect outdoor identification signs without the prior written consent of the Director. Said consent will not be unreasonably withheld. Lessee's signage shall be in compliance with applicable City of Lubbock code of ordinances. 6.06 LIENS PROHIBITED The Lessee shall not bind or attempt to bind the City for payment of any money in connection with the construction, repairing, alterations, or additions on the Leased Premises, and Lessee shall not permit any mechanic's, materialman's or contractor's liens to arise against the Premises or improvements thereon. Lessee expressly agrees that it will keep and save the Premises and the City harmless from all costs and damages resulting from any liens of any character created or that may be asserted through any act or thing done by the Lessee. In the event that, as a result of Lessee's actions, any mechanic's lien or other lien or order for payment shall be filed against the Leased Premises or improvements thereon, or against City -owned property located thereon during the initial term hereof, or during any subsequent extension, Lessee shall defend on behalf of the City, at Lessee's sole cost and expense, any action, suit or proceeding which may be brought thereon or for the enforcement of such lien or order. Failure of the Lessee to comply with any requirement of this section after having received fifteen days written notice thereof shall be cause for termination of this Agreement by the City. 6.07 INSPECTION OF LEASED PREMISES City reserves the right to conduct inspections of the Leased Premises at reasonable times to ensure that fire, safety, and sanitation regulations and other provisions contained in this Lease are being adhered to by the Lessee. Webber LLC Page 9 6.09 RESERVATION OF AVIGATIONAL EASEMENT City reserves to itself and its successors and assignees, for the use and benefits of the public, a right of avigation over the Leased Premises for the passage of Aircraft utilizing the Airport. 6.10 MAINTENANCE The Lessee shall, at its own cost and expense, maintain the Leased Premises in a presentable condition reasonably free of trash, debris and weeds, and consistent with good business practices. Lessee shall repair all damages to Leased Premises caused by its employees, patrons or business operations thereon. Upon written notice by City to Lessee, Lessee shall be required to perform whatever reasonable maintenance, City deems necessary. If said maintenance is not undertaken by Lessee within twenty (20) days after receipt of written notice, City shall have the right to enter upon the Leased Premises and perform the necessary maintenance, the cost of which shall be paid by Lessee. ARTICLE SEVEN INDEMNIFICATION AND INSURANCE 7.01 INDEMNIFICATION The Lessee shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the City shall in no way be responsible therefore. Lessee shall indemnify and hold harmless, to the fullest extent permitted by law, City, and City's respective officers, employees, elected officials and agents, from and against any and all losses, damages, claims or liabilities, of any kind or nature, which arise directly or indirectly, or are related to, in any way, manner or form, the activities of Lessee contemplated hereunder. Lessee further covenants and agrees to defend any suits or administrative proceedings brought against the City and/or City's respective officers, employees, elected officials and/or agents on account of any claim for which it is obligated to indemnify City, and to pay or discharge the full amount or obligation of any such claim incurred by, accruing to, or imposed on City, or City's respective officers, employees, elected officials and/or agents, as applicable, resulting from the settlement or resolution of said suits, claims, and or administrative proceedings. Webber LLC Page 10 In addition, Lessee shall pay to City, City's respective officers, employees, elected officials and/or agents, as applicable, all attorney fees incurred by such parties in enforcing Lessee's indemnity in this section. Indemnification — Environmental Harm. Without limiting any provisions of this Agreement, Lessee shall also defend, indemnify and hold City and its respective officers, employees, elected officials and agents harmless from and against all suits, actions, claims, demands penalties, fines liabilities, settlements, damages, costs and expenses (including but not limited to reasonable attorney's and consultant's fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, brought against City arising out of or in any way related to: 1. Any actual, threatened or alleged contamination by hazardous substances of the Premises or contamination by hazardous substances of the Airport by Lessee or its agents; 2. The presence, disposal, release or threatened release of hazardous substances by Lessee or its agents at the Airport that is on, from or affects the soil, air, water, vegetation, buildings, personal property, persons, animals or otherwise; 3. Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to hazardous substances by Lessee at the Airport; or 4. Any violation by Lessee of any Environmental Laws that affects the Airport. 7.02 INSURANCE The Lessee shall carry and maintain insurance at all times that this Lease is in effect, at Lessee's sole expense and with an underwriter authorized to do business in the State of Texas and acceptable to the City, against claims of general liability and workers' compensation resulting from Lessee's business activities at the Airport. General Liability Insurance — Lessee will carry and maintain General Liability Insurance for the protection of City, naming City as an additional insured and insuring against all claims, losses, costs and expenses arising out of injuries to persons whether or not employed by the Lessee, damage to property whether resulting from acts or omissions, negligence or otherwise of the Lessee or any of its agents, employees patrons or other persons, and growing out of the use of the said Leased Premises by Lessee, such policies Webber LLC Page 11 1. The permanent abandonment or closure of the Airport by the City as a commercial service airport. 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part or parts thereof, in such a manner that substantially restricts Lessee for a period of at least ninety (90) days from operating thereon. 3. In the event of acquisition by Condemnation or exercise of the power of eminent domain (by any Agency permitted to take property for public use) of any land or improvements associated with Lessee's Leased Premises, Lessee shall not institute any action or proceeding or assert any claim against the City for Compensation or consideration of any nature . All Compensation or consideration awarded or paid to Lessee upon a total or partial acquisition of the Leased Premises to the extent not related to Lessee's improvements (which for these purposes shall not include any Compensation or consideration from City) shall belong to the City without any participation of Lessee. 4. The issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use and operation of the Airport for a period of at least ninety (90) days. 5. The default of the City in the performance of any covenant or agreement herein required to be performed by the City and the failure of the City to remedy such default for a period of sixty (60) days after receipt from Lessee of written notice to remedy the same. 6. Failure of City to maintain the landing area of the Airport for a period of at least sixty (60) days, which results in Lessee's inability to conduct business operations. Lessee may recover directly from the condemning Agency the value of any claim relating to a taking of Lessee's improvements, provided that no such claim shall diminish or otherwise adversely affect the City's award. In the event of an acquisition by Condemnation or eminent domain of all interest in the Leased Premises, Lessee's obligation to pay rent shall cease and all leasehold interest created shall cease. In the event of an acquisition by Condemnation or eminent domain of a portion of interest in the Leased Premises, Lessee's obligation to pay rent shall cease as it pertains to the specific Webber LLC Page 14 portion of the Leased Premises acquired. If the Condemnation or eminent domain substantially impairs the conduct of the Lessee's Activities and equates to more than 50% of the total Leased Premises, Lessee may terminate the Agreement by notifying the City. If the Agreement is not terminated by the Lessee, the rent shall be adjusted accordingly Lessee may exercise such right of termination by giving sixty (60) days advance written notice to the City at any time after the lapse of the applicable periods of time and this Lease shall terminate as of the sixty first (61') day after such notice is given. Rental due hereunder shall be payable only to the effective date of said termination. 9.03 TERMINATION BY CITY Any default or breach of this Agreement by Lessee shall constitute a default or breach of all agreements between the City and Lessee. The City shall consider any of the following a default or breach under the Agreement: 1. Failure to comply with Legal Requirements, Assurances, PMCDs, Airport's policies, standards, rules, regulations, and directives. 2. Failure to perform any condition, obligation, or privilege contained in this Agreement. 3. Failure of a Lessee engaged in Activities to obtain prior written consent from the Director before conducting additional Activities. 4. Failure to obtain prior written consent from the Director before making any improvements to the Leased Premises and/or at the Airport. 5. Failure to obtain prior written consent of the Director to sublease (or attempt to sublease) any portion of the Leased Premises. 6. Any sale or assignment of the Leased Premises or Agreement made (or attempted to be made) without the prior written consent of the Director. 7. Any change in controlling ownership of Lessee made (or attempted to be made) without the prior written consent of the Director. 8. Any encumbrance of the Leased Premises or Improvements on the Leased Premises made (or attempted to be made) without the prior written consent of the Director. 9. Failure to properly maintain the Leased Premises or promptly pay all utilities, insurance, and taxes when due and owing. Webber LLC Page 15 to provide not less than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) for Combined Single Limit General Liability Insurance. Workers' Compensation and Employer Liability — If Lessee employs persons other than family members, Lessee shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Lessee shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Lessee maintains said coverage. Any termination of worker's compensation insurance coverage by Lessee or any cancellation or nomenewal of worker's compensation insurance coverage for the Lessee shall be a material breach of this Agreement. To the extent permitted by law, the above -mentioned policies shall all include a waiver of subrogation. tion. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City's Executive Director of Aviation prior to entry upon the Premises by the Lessee. The General Liability policies shall name the City as an additional insured, require the insurer to notify the Executive Director of Aviation of any alteration, renewal or cancellation, and remain in full force and effect until at least ten (10) days after such notice of alteration, renewal or cancellation is received by the Executive Director of Aviation. Current Certificates of Insurance and Endorsements shall be provided to the City, or other satisfactory evidence of insurance shall be filed with the Director of Aviation. Hazard and Extended Coverage — Lessee shall procure from a company authorized to do business in the State of Texas and keep in force Hazard and Extended coverage insurance upon the Lessee owned buildings located on the Leased Premises to 80% of the full insurable value and shall furnish City with evidence that such coverage has been procured and is being maintained. City shall be named as additional insured on the policy. Webber LLC Page 12 ARTICLE EIGHT SUBLEASE, SALE, ASSIGNMENT, OR TRANSFER 8.01 SUBLEASING Lessee shall not sublease, sell, assign, or transfer the Agreement, in whole or in part, or any interest in the Agreement, or any rights or obligations the Lessee has under the Agreement, without the prior written consent by the Director. 8.02 SALE, ASSIGNMENT, OR TRANSFER Lessee shall not sell, assign, or transfer the Agreement, in whole or in part, or any interest in the Agreement, or any rights or obligations the Lessee has under the Agreement, without the prior written consent by the Director. 8.04 ENCUMBRANCES AND MORTGAGES Lessee shall not mortgage, pledge, assign as collateral, encumber or in any manner transfer, convey, or dispose of the Leased Premises or any interest therein without the prior written consent of the Director. 8.08 EXCLUSIVITY It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right to conduct construction activities. 8.09 NO RESIDENTIAL USE It is understood and agreed that Lessee shall not permit or enter into any arrangement that results in permission for the Leased Premises to be used as a residence. ARTICLE NINE TERMINATION, CANCELLATION 9.01 TERMINATION This Agreement shall terminate at the end of the term. Lessee shall have no further right or interest in any of the Premises or improvements hereby demised, except as provided herein. 9.02 TERMINATION BY LESSEE The Lessee may, at the Lessee's option and provided the Lessee is current and in good standing, terminate the Agreement on the occurrence of any one or more of the following events: Webber LLC Page 13 10. The filing of bankruptcy and/or assignment of substantially all Lessee's assets for the benefit of Lessee's creditors. 11. The filing of a lien against the Leased Premises. 12. The voluntary abandonment of the Leased Premises. 13. Falsification of any record so as to deprive the City of any right, privileges, rent, fees, or other charges under the Agreement. 14. Failure to remain Current or in Good Standing. The failure of Lessee to observe or perform any of the terms and conditions of the Agreement, or the failure of Lessee to perform any of the terms and conditions of any other agreement with the City in any material respect such failure which shall have continued for thirty (30) days after written notice from Director, and without meaningful steps having been taken by Lessee to cure such default. Once Agreement is terminated, City's agents may enter upon the Leased Premises and take immediate possession of the same and remove Lessee's effects. Any rental due hereunder shall be payable to said date of termination. It is agreed that failure to declare this Lease terminated upon the default of Lessee for any of the reasons set forth above shall not be construed as a waiver of any of the City's rights hereunder or otherwise bar or preclude City from declaring this Agreement cancelled as a result of any subsequent violation of any of the terms or conditions of this Agreement. The acceptance of rentals or fees by City for any period or periods after a default of any of the terms, covenants, or conditions herein contained shall not be construed to be or act as a waiver by City of any subsequent by the Lessee. 9.04 REPLACEMENT AFTER DAMAGE It is agreed between the parties hereto that in the event the Leased Premises are damaged by fire or other accidental cause during the initial term of this Lease so as to become totally or partially untenantable, the City shall have the option to restore the Premises to their former condition. If the City elects to exercise the option, the City shall give Lessee notice in writing of its election within thirty (30) days of the occurrence of such damage. If the City elects to restore the Premises, the City shall proceed with due diligence and there shall be an abatement of the rent until repairs have been made for the time and to the extent for which the Premises, or part thereof, have been untenantable. Should the Webber LLC Page 16 City not exercise the option to restore the Premises, the lease of such untenantable portion of the Premises shall cease and terminate effective on the date of damage by fire or other accidental cause. 9.05 REMOVAL OF LESSEE'S PROPERTY The Lessee shall have the right, within thirty (30) days after the termination of this Lease, whether such termination comes upon expiration of the initial term, any extension or otherwise under any provision of this Lease, to remove from the Leased Premises all of Lessee's property which has not become the property of the City, but Lessee shall restore the Premises to the original condition, normal wear and tear excepted. The City, however, shall have a lien on all of Lessee's property to secure any unpaid rentals or other revenue due the City; and Lessee's right to remove property from the Leased Premises is conditioned upon all amounts due the City from Lessee having been paid in full. Unless a renewal agreement is executed, property left on the Premises after thirty (30) days from the date of termination of this Agreement shall be deemed abandoned and will become the property of the City, and may be disposed of as the City sees fit, without any liability to the Lessee to account for the proceeds of any sale; and the City, at its option, may require Lessee to remove the abandoned property and may charge rent from the date of expiration or termination of this Agreement through the day of final removal of the property, or of notification to the Lessee of the abandonment of the property and taking by the City, as the case may be. 9.06 TERMINATION OF LEASE AND SURRENDER OF LEASED PREMISES The Lessee covenants and agrees that at the expiration of the initial term of this Lease, or any extension, or upon earlier termination as provided elsewhere in this Agreement, Lessee will quit and surrender the Leased Premises and the improvements in good condition, reasonable wear and tear expected, and the City shall have the right to take possession of the Leased Premises and the improvements, subject to the limitations expressed in Article Nine, of this Lease, with or without process of law. Webber LLC Page 17 ARTICLE TEN MISCELLANEOUS PROVISIONS 10.01 CONFLICT OF INTEREST The Lessee acknowledges that it is informed that Texas law prohibits contracts between the City of Lubbock and its "officers" and "employees," and that the prohibition extends to officers and employees of the City of Lubbock agencies, such as City -owned utilities, and certain City of Lubbock boards and commissions, and to contract with any partnership, corporation or other organization in which the officers or employees have a substantial interest. Lessee certifies (and this Agreement is made in reliance thereon) that neither the Lessee nor any person having an interest in this Agreement is an officer or employee of the City of Lubbock or any of its agencies, boards or commissions. 10.02 NO WAIVER City shall not waive the right to enforce the Agreement, in whole or in part. 10.03 LICENSES, CERTIFICATIONS, AND PERMITS Lessee shall have (and provide copies to the Director upon request) all licenses, certifications, and permits required to conduct Lessee's Activities. 10.04 INDEPENDENT ENTITIES This Agreement shall not be construed to establish a partnership between the City and Lessee. 10.05 BINDING EFFECT This Agreement shall be binding on and take effect to the benefits of the heirs, successors, and assigns of the City and the Lessee. 10.06 SUBORDINATION This Agreement is subordinate to any agreement between the City and the United States Government, the State of Texas, or any other Agency having jurisdiction. 10.07 NON -LIABILITY OF OFFICIALS AND EMPLOYEES OF CITY No officer, elected official, Employee, agent, or representative, etc. of City shall be personally liable for a default or liability under this Agreement. 10.08 GOVERNING LAW AND VENUE This Agreement shall be made in accordance with the laws of Texas and the venue in Lubbock County. Webber LLC Page 18 10.09 PARAGRAPH HEADINGS The paragraph headings in this Agreement shall only be used as a matter of convenience and/or reference. 10.10 SEVERABILITY If a provision of the Agreement is held to be unlawful, invalid, or unenforceable by final judgment of any Agency or court of competent jurisdiction, the invalidity, voiding, or unenforceability of such provision shall not in any way affect the validity of any other provisions of the Agreement. 10.11 COUNTERPARTS If this Agreement is executed in counterparts, each shall be deemed an original and which together shall constitute one and the same Agreement. 10.12 MODIFICATION Any change or modification to the Agreement shall not be valid unless made in writing, agreed to, and signed by the City and Lessee. 10.13 COMPLIANCE WITH CHAPTER 2270, SUBTITLE F, TITLE 10, TEXAS GOVERNMENT CODE The Lessee warrants that it is in compliance with Chapter 2270, Subtitle F, Title 10 of the Texas Government Code by verifying that: (1) it does not boycott Israel; and (2) it will not boycott Israel during the term of the Agreement. 10.14 NOTICES Notices to the City required or appropriate under this Agreement shall be deemed sufficient if in writing and hand delivered or mailed, registered or certified mail, postage prepaid, addressed to the Executive Director of Aviation, Lubbock Preston Smith International Airport, 5401 N. MLK Blvd., Unit 389, Lubbock, Texas 79403. Notices to the Lessee shall be deemed sufficient if in writing and hand delivered or mailed, registered or certified mail, postage prepaid, addressed to Webber LLC, 5701 Geneva Ave., Lubbock, Texas 79413. 10.15 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, City shall not be subject to any Webber LLC Page 19 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. 10.16 TIME OF THE ESSENCE The City and Lessee shall agree that time is of the essence in performance of the Agreement. 10.17 ENTIRE AGREEMENT This Lease constitutes the entire Agreement between the City and Lessee, and any other written or parole agreement with the City is expressly waived by Lessee. Webber LLC Page 20 EXECUTED this 19th day of November , 2019. THE CITY LOFFUBB WEBBER LLC BY: BY: DANIEL M. POPE, AAYOR ATTEST: CPO dx-".4 t, IN �v Rebe ca Garza, City Sec tar APPROVED AS TO CONTENT: Title: 9 A Sk. AI�C - ON04,a�er Date: Z 9, U GT ZV ! % CAKelly 4Capbefl, Aviation Webber LLC Page 21 FedEx Ship Center Webber Yard 150' X 300' CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1- 4 and 6 if there are interested parties. Complete Nos.1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2019-556251 Date Filed: 10/29/2019 Date Acknowledged: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Webber LLC The Woodlands, TX United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Texas g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 15038 Land lease for temporary office 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling intermediary 5 Check only if there is NO Interested Party. X 6 UNSWORN DECLARATION My name is W. AAI'GLCIL e— O IAJ ey and my date of birth is My address is 5 70 1 G e44 a UcL j% o-e L N 6 be ck— Tx , / 9+t 3 (street) (city) (state) (zip code) (country) I declare under penalty( of perjury that the foregoing is true and correct. Executed in L � V 6y c. -- County, State of K S on the zq day of C� 20__LJ. (month) (year) / Signature of authorized agent of contracting business entity (Declarant) Forms nrovided by Texas Ethics Commission www.ethics.state.tx.us Version V1.1.3a6aaf7d