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HomeMy WebLinkAboutResolution - 3724 - Lease Agreement - Swetech Inc - Operations Hanger, LIA - 10/10/1991Resolution No. 3724 October 10, 1991 Item #20 HW: js RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Lease Agreement by and between the City of Lubbock and Swetech, Inc., attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 10th day of October 1991. ATTEST: APPROVED AS TO CONTENT: Bern E. Case, Director of Aviation APPROVED AS TO FORM: �&� 0 "'D Fffr-Zld Willard, 'Assistant MY Attorney Resolution No. 3724 October 10, 1991 Item #20 HW: js THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § LEASE AGREEMENT This Lease Agreement, entered into at Lubbock, Texas, by and between the City of Lubbock, hereinafter referred to as "Lessor," and Swetech, Inc., hereinafter referred to as "Lessee." WITNESSETH WHEREAS, Lessor owns and operates a public airport designated as Lubbock International Airport and herein called "Airport;" and WHEREAS, Lessor also owns a hangar located on the east side of the Airport which Lessee desires to lease and utilize for the manu- facture of a nutrient contained in cattle feed; and WHEREAS, Lessor deems it in the public interest to lease said hangar to the Lessee for good and valuable consideration; ARTICLE I NOW THEREFORE, for and in consideration of the terms, cove- nants and conditions hereinafter set forth, the Lessor does hereby lease unto Lessee, for its use in the manufacture of a nutrient contained in cattle feed, the hangar whose location at the Airport is depicted on Exhibit A attached hereto and by this reference made a part hereof for all purposes, together with the right of ingress and egress. The term of this Agreement shall be for a period of one (1) year commencing on September 1, 1991, and ending on August 31, 1992, both dates inclusive. However, this Agreement is subject to earlier termination as hereinafter provided. ARTICLE II In consideration of the rights and privileges herein granted, Lessee shall pay to the Lessor a rental of SEVEN THOUSAND ONE HUN- DRED TWENTY-FIVE AND NO/100 DOLLARS ($7,125.00) for the term of this Lease, payable in twelve (12) equal monthly installments of FIVE HUNDRED NINETY-THREE AND 75/100 DOLLARS ($593.75), in advance, by the fifteenth (15th) day of each month this Lease is in effect. All payments that become due and payable by Lessee shall be made to the City of Lubbock at the office of the Director of Avia- tion, Lubbock International Airport, Lubbock, Texas. ARTICLE III This Lease is granted subject to the following provisions and conditions: 1. Lessee shall use the hangar solely for the purpose herein stated. 2. Lessee agrees that it will at all times during the term of this Lease maintain the hangar in good condition, or- dinary wear and tear excepted, such maintenance to be the sole responsibility and obligation of Lessee. 3. Lessor will not be required to provide Lessee with access to the hangar by removing snow or ice from any portion of the Airport. 4. Lessee will erect no signs and will distribute no ad- vertising matter on Airport premises without the prior written consent of the Director of Aviation. such prior written consent shall not be required for advertising placed by Lessee with Ackerley Airport Advertising, Inc. or any other party having the right to sell, rent or offer Airport Terminal advertising space. 5. Lessee shall not permit any mechanic's, materialman's or contractor's liens to arise against the hangar, and Lessee expressly agrees that it will keep and save the hangar and Lessor harmless from all costs and damages re- sulting from any lien or liens of any character created or that may be asserted through any act or thing done by Lessee, its agents, officers or employees. 6. In the event any mechanic's liens or other liens or or- ders for payment shall be filed against the hangar while this Agreement is in effect, Lessee shall within ten (10) -2- days cause the same to be cancelled and discharged of re- cord, by bond or otherwise, at the election and expense of Lessee, and shall also defend on behalf of Lessor, at Lessee's sole cost and expense, any action, suit or proceeding which may be brought thereon or for the en- forcement of such liens or orders. 7. Lessor shall assume no responsibility as to the condition of the hangar and Lessee herein expressly assumes all responsibility for maintenance, upkeep and repairs necessary to keep the hangar in a safe and serviceable condition. 8. The Lessee shall not make, permit or suffer any addi- tions, improvements or alterations to the hangar herein leased without prior written consent of the Director of Aviation of the City of Lubbock. Any such additions, improvements or alterations made with the consent of the Director of Aviation shall be solely at the expense of the Lessee, and unless such consent provides specifically that title to the additions, improvements or alterations so made shall vest in the Lessee, title thereto shall at all times remain in the Lessor, and such additions, im- provements or alterations shall be subject to all of the terms, covenants and conditions of this Agreement. 9. The Lease herein granted is subject to any and all appli- cable laws, ordinances, rules and regulations pertaining to the Airport. 10. During time of war or national emergency, the Lessor shall have the right to enter into an agreement with the United States Government for military or naval use of all or part of the landing area, the publicly owned air navigation facilities, and other area or facilities of the Airport. If any such agreement is executed, the provisions of this instrument, insofar as they are in- consistent with the provisions of the agreement with the -3- Government, shall be suspended, but rent hereunder shall abate accordingly. 11. This Agreement shall be subordinate to the provisions of any existing or future agreement between the Lessor and the United States pertaining to the operation or mainte- nance of the Airport, the execution of which has been or may be required as a condition precedent to the receipt or expenditure of federal funds for the development of the Airport. Should the effect of such agreement with the United States effectively destroy the commercial value of Lessee's rights under this Agreement, the Lessor shall not be held liable therefor, but rent hereunder shall abate accordingly. 12. All rights, privileges and interests acquired herein by Lessee may, at the option of the Lessor, be suspended if such suspension is found by the Lessor, acting in good faith, to be necessary to secure federal financial aid for the development of the Airport, or further develop- ment or promotion of aeronautical operations thereon, but rent hereunder shall abate accordingly. 13. The Lessor, acting by and through the Director of Avia- tion or other designated representative, shall have the right to inspect the hangar at all reasonable times that this Lease is in effect. 14. Any property of the Lessor or any property for which the City of Lubbock may be responsible which is damaged or destroyed incident to the exercise of the privileges herein granted, or as a result of acts or omissions of the employees or agents of Lessee, shall be properly re- paired or replaced by the Lessee to the satisfaction of the Lessor and its authorized representatives, or in lieu of such repair or replacement, the Lessee shall, if so required by the Lessor, pay to the Lessor money in any amount deemed sufficient by the Lessor to compensate for -4- 15. 16. the loss sustained by the Lessor which results from the loss of, damage to or destruction of such property. The Lessee agrees to indemnify, defend and forever save the Lessor, its authorized agents, representatives and employees, harmless from and against any and all penal- ties, liability, annoyances, expense or loss, including attorneys' fees, resulting from claims or court action of any nature arising directly or indirectly out of any acts or omissions of the Lessee, its agents, servants, guests, employees or business visitors under this Agreement. The Lessee shall maintain at all times, at its sole ex- pense, with an insurance underwriter authorized to do business in the State of Texas and acceptable to the Lessor, insurance against claims of public liability and property damage resulting from Lessee's activities at the Airport. The amount of insurance coverage shall not be less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000) for property damage arising out of any one accident or event, or less than ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000) for personal injury or death of any one person in any one event, or less than THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000) for personal injury or death of two (2) or more persons in any one event. Certificates of insurance or other satisfactory evidence of coverage shall be filed with the Director of Aviation prior to entry into the hangar premises by the Lessee. Each policy shall name the Lessor, City of Lubbock, as an additional insured as its interest may appear and shall contain a provision requiring the insurer to give the Lessor written notice of cancellation or of any material change in said policy or certificates at least thirty (30) days in advance of the effective date of such can- cellation or material change. Each policy shall also contain a provision waiving the right of such insurer to subrogation. -5- 17. Lessee shall furnish to the Lessor satisfactory evidence that it carries Workers' Compensation Insurance in accor- dance with the laws of the State of Texas. 18. The Lessee herein agrees to assume responsibility for the payment of all public utility charges connected with Lessee's use of the hangar including, but not limited to water, gas, electricity, telephone and sewer service. 19. The Lessee warrants that it has not employed any person employed by the Lessor to solicit or secure this Lease Agreement upon any agreement for a commission, percent- age, brokerage or contingent fee. 20. Lessee shall not assign nor sublet this Lease without prior written consent of the Director of Aviation of the City of Lubbock, and no such assignment or subletting shall affect Lessee's obligations to make all required rental payments hereunder. 21. The failure of the Lessor to insist upon performance of any of the terms, covenants or conditions of this Lease shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions, and the Lessee's obligation with respect to such future performance shall continue in full force and effect. 22. Lessee shall, at its sole expense, provide a complete and property arrangement for the adequate sanitary handling and disposal away from the Airport of all trash, garbage and other refuse that results from Lessee's use of the hangar. 23. In the event Lessee remains in possession of the hangar after the expiration of this Agreement, such holding over shall not be deemed as a renewal or extension of this Lease, but shall create only a tenancy from day to day which may be terminated at any time by Lessor. -6- 24. Lessee shall prohibit both unauthorized persons and vehi- cles from entering those Airport premises over which Lessee has control or usage of either exclusively or in common with other Airport tenants, and Lessee agrees that in the event that a civil penalty or fine is levied against the Airport or City as a result of Lessee's fail- ure to comply or act in accordance with this provision or any other applicable federal, state or local statutes, ordinances, rules and regulations affecting the use, occupancy or operation of any of said premises, Lessee shall immediately reimburse the Airport or City the full amount of the penalty or fine and correct the act or omission leading to, causing or contributing to the vio- lation. ARTICLE IV This Lease Agreement shall terminate at the end of the initial term hereof and Lessee shall have no further right or interest in the hangar except as provided in numbered Paragraph 23 of Article III of this Agreement. This Agreement is also subject to termination for the reasons set forth below, provided that fifteen (15) days written notice is given to the non -terminating party. Rental due hereunder shall be payable only to the effective date of said termination. The Lessee may terminate upon the happening of any of the following: 1. The permanent abandonment of the Airport as an airline terminal. 2. The issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of the Airport, provided such injunction remains in force for at least thirty (30) days. 3. The breach by the Lessor of any of the terms, covenants or conditions of this Agreement to be kept, performed and observed by the Lessor, and the failure of the Lessor to -7- remedy such breach for a period of thirty (30) days after written notice from the Lessee of the existence of such breach. 4. The assumption by the United States Government, or any authorized agency of same, of the operation, control or use of the Airport and its facilities in such a manner as to substantially restrict the Lessee from utilizing the hangar under the terms of this Agreement for a period of at least thirty (30) days. The Lessor may terminate upon the happening of any of the following: 1. If the Lessee shall file a voluntary petition of bank- ruptcy; if Lessee is adjudicated as bankrupt; if a court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any fed- eral reorganization act; if a receiver for Lessee's assets is appointed; or if Lessee is divested of its rights, powers and privileges under this Agreement by other operation of law. 2. If the Lessee shall abandon and discontinue operations under this Agreement. 3. If the Lessee shall default in or fail to make any pay- ments at any time and in the amounts required under this Agreement. 4. If the Lessee shall fail to perform, keep or observe any of the terms, covenants or conditions contained in this Agreement to be performed, kept or observed by Lessee. 5. If the Lessee shall fail to abide by all applicable laws, ordinances, rules and regulations of the United States, State of Texas, City of Lubbock and Director of Aviation of the City of Lubbock. 6. If Lessor, acting in good faith, finds termination of the rights, privileges and interests of Lessee acquired under this Lease to be necessary to secure federal financial -8- aid for the development of the Airport, or further devel- opment or promotion of aeronautical operations thereon. In the event the hangar herein leased is damaged by fire or other accidental cause during the term of this Agreement so as to become totally or partially unusable for purposes herein permitted, Lessor shall have the option to restore the structure to its former condition. If Lessor exercises its option to restore the hangar, Lessor shall proceed with due diligence. If the damage is so extensive as to practically amount to the total destruction of the utility of the hangar for manufacturing purposes, Lessee's obliga- tion to pay rent hereunder shall abate for the time and to the extent that the hangar has been rendered unusable. Should Lessor not exercise its option to restore the structure, this Lease shall terminate, such termination to be effective on the date of damage by fire or other accidental cause, and the rent shall be appor- tioned to that date. Within ten (10) days following the date of expiration or ter- mination of this Agreement, the Lessee shall, as required by the Lessor, vacate said hangar, remove all property of Lessee, and restore the hangar to as good a condition on such date of expira- tion or termination as when received, ordinary wear and tear excepted; provided, however, that Lessee's right to remove its property from the hangar upon expiration or termination is subject to the condition that Lessee has paid in full all amounts due Lessor under this Agreement. If the Lessee shall fail or neglect to restore the hangar within ten (10) days of said expiration or termination, then at the option of Lessor, said property of the Lessee shall either become the property of the Lessor without com- pensation therefor or the Lessor may restore the hangar at the expense of the Lessee, and no claim for damages against the Lessor or its officers, agents or employees shall be created or made as a result of either action. -9- ARTICLE V Notices to the Lessor required or appropriate under this Lease shall be deemed sufficient if in writing and mailed by registered mail with postage prepaid to the Director of Aviation, Lubbock International Airport, Route 3, Box 201, Lubbock, Texas 79401. Notices to the Lessee required or appropriate under this Lease shall be deemed sufficient if in writing and mailed by registered mail with postage prepaid to Lessee at its address on file with the Director of Aviation of the Lessor. Should Lessor institute legal action to collect rentals due under this Lease Agreement or damages for breach of any covenant made herein, a reasonable sum shall be added to the amount of re- covery for attorneys' fees together with all costs of court. Both parties hereby agree that this instrument constitutes the final agreement of the parties and that all other previous agree- ments, leases and contracts between the parties which pertain to the property described herein are hereby declared null and void. EXECUTED this the 10th day of October , 1991. LESSOR: CITY OF LUBBOCK BY: B . -C: - •MCM N , MAYOR ATTEST: Rahe. to Boyd., City Secretary APPROVED AS TO CONTENT: Bern E. Case, Director of Aviation APPROVED AS TO FORM: arold Willard, Assistant City Attorney -10- LESSEE: SWETECH, BY: ATTEST: Secretary