HomeMy WebLinkAboutResolution - 3257 - Lease Agreement - KMMS Inc - Operations Space, LIA - 12/07/1989Resolution # 3257
December 7, 1989
Item #16
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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 Agree-
ment by and between City of Lubbock and K.M.M.S, 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 7th day of December 1989.
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4B. MCMINN, AYOR
W ATTEST:
Ranette-`Boyd, City Secretary
APPROVED AS TO CONTENT:
Bern E. Case, Director of Aviation
APPROVED AS TO FORM:
Harold WiTard, Assistant City
Attorney
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THE STATE OF TEXAS §
COUNTY OF LUBBOCK §
KNOW ALL MEN BY THESE PRESENTS:
LEASE AGREEMENT
THIS AGREEMENT, entered into at Lubbock, Texas, by and between
the City of Lubbock, hereinafter referred to as "Lessor," and
K.M.M.S., Inc., hereinafter referred to as "Lessee," acting by and
through its officers hereunto duly authorized.
WITNESSETH
WHEREAS, Lessor owns and operates a public airport designated
as Lubbock International Airport and herein called "Airport;" and
WHEREAS, Lessee is a corporation primarily engaged in manufac-
turing agricultural products and amusement rides and equipment; and
WHEREAS, Lessee desires to lease certain Airport -owned build-
ings and land located in the East Airport District of the Lubbock
International Airport from which to conduct its business; NOW
THEREFORE:
ARTICLE I
For and in consideration of the covenants and conditions
herein contained and other valuable consideration, the Lessor au-
thorizes the Lessee to exercise the rights, powers and privileges
hereinafter set forth and does hereby lease to the Lessee the
premises described and being:
The buildings and land as shown on Exhibit "A" attached
hereto and incorporated herein by reference, which buildings
and land are hereinafter referred to as "leased premises" or
"premises."
The term of this Agreement shall be for a period of five (5)
years, commencing on the day of
19 , and ending on day of
19 , both dates inclusive, unless sooner terminated as herein
provided.
ARTICLE II
In consideration of the rights and privileges herein granted,
Lessee shall pay to the Lessor a rental of ONE THOUSAND AND N0/100
DOLLARS ($1,000.00) per month during the first two (2) years of
the term of this Lease, then TWO THOUSAND AND N0/100 DOLLARS
($2,000.00) per month during the third (3rd) year and fourth (4th)
year of the term of this Lease, then THREE THOUSAND AND NO/100
DOLLARS ($3,000.00) per month during the fifth (5th) and final year
of this Lease.
All rental payments are due and payable in advance on the
first day of each month this Agreement is in effect and shall be
made at the office of the Director of Aviation, Lubbock Interna-
tional Airport, Lubbock, Texas.
ARTICLE III
This Lease is granted subject to the following provisions and
conditions:
1. Lessee shall use the leased premises solely for the
purpose of conducting those business activities for which it
was chartered as a corporation.
2. Lessee's right to conduct business at the Lubbock
International Airport shall be nonexclusive.
3. Lessee, at its own expense, shall be responsible for
securing all permits, clearances, rights-of-way and other
matters necessary to conduct business in a lawful manner.
4. Lessor agrees to repair and maintain the roofs of
the buildings herein leased during the first (1st) year of the
term of this Lease. Thereafter, the Lessee shall be.responsi-
ble for the maintenance and repair of said roofs.
Lessor also agrees to renovate and bring the restrooms in
the buildings herein leased into operable condition upon exe-
cution of this Lease, but Lessee shall thereafter be responsi-
ble for the maintenance and repair of such restrooms.
Except as provided above, the Lessee agrees to maintain
the leased premises, at Lessee's sole cost and expense, in a
clean and presentable condition consistent with good business
practice.
5. Lessee agrees to construct a screening fence ap-
proved by the Director of Aviation as shown by the double line
on Exhibit "A," Building Plan.
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6. Lessee agrees to limit the outside storage of any
and all materials, components, assemblies and repaired and
manufactured products to the area on the leased premises
behind the screening fence and to control the growth of vege-
tation and weeds on the leased premises and extending outward
a distance of twenty (20) feet from the fence.
7. Lessee agrees that Lessor shall have and Lessee
hereby grants to Lessor a contractual landlord's lien on all
of Lessee's property of whatsoever nature placed in or upon
the leased premises, such lien to guarantee the payment of any
and all arrearages arising under this Agreement. Lessee fur-
ther agrees to sign a financing statement to be filed with the
Secretary of the State of Texas and the County Clerk of
Lubbock County to perfect Lessor's lien and to furnish Lessor
an itemized list of all such improvements, additions or alter-
ations which Lessee installs, adds or uses on the leased
premises.
8. Lessee agrees to erect no signs and distribute no
advertising on the Airport 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.
9. All of Lessee's business operations and solicita-
tions will be confined to the leased premises. Furthermore,
Lessee shall designate adequate parking areas on the leased
premises for vehicular movement and parking for its employees,
vendors, suppliers and invitees.
10. The Lessee shall not bind or attempt to bind the
Lessor for payment of any money in connection with installa-
tions, alterations, additions or repairs on the leased
premises or any of Lessee's equipment or facilities located on
the leased premises, and shall not permit any mechanic's,
materialman's or contractor's liens to arise against the
leased premises or any improvements, equipment, machinery or
fixtures thereon belonging to the Lessor, and Lessee expressly
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agrees that it will keep and save the premises and Lessor
harmless from all costs and damages resulting from any lien or
liens of any character created or that may be asserted through
any act or thing done by Lessee.
11. Lessee shall not make, permit or suffer any addi-
tions, improvements or alterations to the leased premises
which constitute any major structural change or changes
without first submitting plans and specifications for such
additions, improvements or alterations to the Director of
Aviation of the City of Lubbock and securing prior written
consent of the Director of Aviation. 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 or improvements so made shall vest in
the Lessee, title thereto shall at all times remain in the
Lessor, and such additions or improvements shall be subject to
all terms and conditions of this Agreement. The Lessee agrees
to hold Lessor harmless from all Mechanic's and Materialman's
Liens arising from any construction, additions, improvements,
repairs or alterations effected by the Lessee. In the event
any mechanic's or other liens or orders for payment shall be
filed against the leased premises or improvements thereon, or
other property of the Lessor located thereon, during the term
of this Lease Agreement, Lessee shall within ten (10) days
cause the same to be cancelled and discharged of record by
bond or otherwise, at the election and expense of Lessee, and
shall also defend on behalf of Lessor, at Lessee's sole cost
and expense, any action, suit or proceeding which may be
brought thereon or for the enforcement of such lien or order.
12. Lessor reserves the right to take any action it con-
siders necessary to protect the aerial approaches of the
Airport against obstruction, together with the right to pre-
vent Lessee from erecting or permitting to be erected any
building or other structure on or off the Airport which, in
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the opinion of Lessor, would limit the usefulness of the
Airport or constitute a hazard to aircraft.
13. Except as otherwise stated in Article III, numbered
paragraph 4 of this Agreement, Lessor shall assume no respon-
sibility for the condition of the leased premises and shall
not assume any responsibility for maintenance, upkeep or re-
pair necessary to keep the premises in a safe and serviceable
condition.
14. Lessor reserves the right to issue through the
Director of Aviation such 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.
15. Lessor reserve the right to establish standards for
the construction, maintenance, alterations, repairs, additions
or improvements to Lessee's facilities that are placed on the
leased premises. This will include structural design, color,
materials used, landscaping and maintenance of Lessee's facil-
ities.
16. Lessee shall prohibit and prevent unauthorized per-
sons from obtaining access or entry into the air operations
area and any other sterile area at the Airport through the
leased premises, and Lessee agrees that in the event that a
civil penalty or fine is levied against the Airport or Lessor
as a result of Lessee's failure 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 Lessor the
full amount of the penalty or fine and correct the act or
omission leading to, causing or contributing to the violation.
17. Failure of the Lessee to comply with any requirement
of these paragraphs 10, 11, 12 or 16 shall be cause for imme-
diate termination of this Agreement by Lessor.
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This Lease is granted subject to the following additional pro-
visions and conditions:
1. The Lease herein granted is subject to any and all
applicable laws, ordinances, rules and regulations pertaining
to the Lubbock International Airport.
2. Lessee agrees that Lessor has the right to further
develop or improve the Airport as Lessor sees fit, regardless
of the desires or views of the Lessee, and without interfer-
ence or hindrance. In the event of a war or national emer-
gency, 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 areas or facilities
of the Airport; and if any such agreement is executed, the
provisions of this Lease, insofar as they are inconsistent
with the provisions of the agreement with the United States,
shall be suspended, but rent due hereunder shall be abated
proportionately.
3. This Agreement shall be subordinate to the provi-
sions of any existing or future agreement between Lessor and
the United States pertaining to the operation and maintenance
of the Airport, the execution of which has::been.or.may be re-
quired 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 lease or substantially destroy the commercial
value of Lessee's rights under this Agreement, the Lessor
shall not be held liable therefor, but rent due hereunder
shall be abated proportionately.
4. Any rights, privileges and interests acquired herein
by Lessee may be suspended at the option of the Lessor follow-
ing written notice of thirty (30) days, 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 Air-
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port, or the development of aeronautical operations thereon,
but rent due hereunder shall be abated proportionately.
5. The Lessor, acting by and through the Director of
Aviation or other designated representative, shall have the
right to inspect the leased premises at all reasonable times
during the term of this Lease.
6. 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 repaired or replaced by
the Lessee to the satisfaction of the Lessor and its autho-
rized representatives, or in lieu of such repair or replace-
ment, 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 the loss sustained by the Lessor as a result
of the damage to or destruction of such property.
7. The Lessee shall be deemed to be an independent con-
tractor and operator and solely responsible for its respective
acts and omissions, and Lessor shall in no way be responsible
therefor.
8. The Lessee agrees to indemnify, defend and forever
save harmless the Lessor, its authorized agents, representa-
tives and employees, from and against any and all penalties,
liability, annoyances or loss resulting from claims or court
actions of any nature arising directly or indirectly out of
any acts or omissions of the Lessee, its agents, servants,
employees or business visitors under this Agreement.
9. The Lessee shall maintain at all times, at its sole
expense, insurance with an insurance underwriter acceptable to
the Lessor and authorized to do business in the State of
Texas, and which insures Lessee against claims of public lia-
bility and property damage resulting from Lessee's business
activities at the Airport. The amount of insurance coverage
shall not be less than ONE HUNDRED THOUSAND AND N0/100 DOLLARS
($100,000.00) for property damage as a result of any one
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event; or less than ONE HUNDRED THOUSAND AND N0/100 DOLLARS
($100,000.00) for personal injury or death of any one person
in any one event; or less than THREE HUNDRED THOUSAND AND
N0/100 DOLLARS ($300,000.00) for personal injury or death of
two (2) or more persons in any one event. Certificates of in-
surance or other satisfactory evidence of insurance shall be
filed with the Director of Aviation prior to entry upon the
premises by the Lessee. Each policy shall name the Lessor,
City of Lubbock, as an additional insured. Furthermore, each
policy shall be worded so as to insure ten (10) days notice to
the Lessor of cancellation or modification of coverage.
10. Lessee shall furnish to the Lessor satisfactory evi-
dence that Lessee carries Workers' Compensation Insurance in
accordance with the laws of the State of Texas.
11. The Lessee shall assume all responsibility for the
payment of all taxes and assessments, license fees and public
utility charges levied on the business conducted on the leased
premises or which may become due on the property of Lessee
used in connection therewith from the date of execution of
this Agreement. The Lessee agrees to pay all claims or dam-
ages for or on account of water, lights, heat, power, sewage
disposal and any other services or utilities furnished to or
with respect to the leased premises or any.part thereof. The
Lessor does not guarantee to furnish utilities or utility ser-
vices in the future. In the event utility service is not fur-
nished for reasons other than repair or installation of lines
or nonpayment of charges, Lessee shall have the option to can-
cel this Lease upon thirty (30) days written notice to the
Lessor.
12. Lessee, its agents and employees will not discrim-
inate against any person or class of persons by reason of age,
sex, race, color, handicap, religion or national origin in
providing any services or in the use of any of its facilities
provided for the public, in any manner prohibited by Federal
Aviation Administration Regulations. Lessee further agrees to
comply with such enforcement procedures as the United States
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might demand that the Lessor take in order to comply with the
Sponsor's Assurances given by the City of Lubbock.
13. Lessee agrees not to discriminate against any em-
ployee or applicant for employment because of age, sex, race,
color, handicap, religion or national origin. Lessee further
agrees to take affirmative action to insure that applicants
are employed, and that employees are treated during employ-
ment, without regard to their age, sex, race, color, handicap,
religion or national origin. Such action shall include, but
not be limited to employment, upgrading, demotion, transfer,
recruitment, layoff, rates of pay or other forms of compensa-
tion, and selection for training, including apprenticeship.
14. Lessee will conduct its activities and operate its
facilities on the premises in accordance with the requirements
of Section 504 of the Rehabilitation Act of 1973 and will
assure that no qualified handicapped person shall, solely by
reason of his or her handicap, be excluded from participation
in, be denied the benefits of, or otherwise be subjected to
discrimination, including discrimination in employment, under
any program or activity of the Lessee.
15. Lessee acknowledges that it is informed that Texas
Law generally prohibits contracts between the Lessor and its
"officers" and "employees," and that the prohibition extends
to officers and employees of City agencies such as City -owned
utilities and certain City boards and commissions, and to con-
tracts with any partnership, corporation or other organization
in which officers or employees have an interest. Lessee
herein certifies that no person having an interest in this
this Lease is an officer or employee of the City of Lubbock or
any of its agencies, boards or commissions.
16. Lessee warrants that it has not employed any person
employed by the Lessor to solicit or secure this Agreement in
exchange for a commission, percentage, brokerage or contingent
fee.
17. Lessee may not assign or sublet this Agreement with-
out the written consent of the Director of Aviation, but such
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consent shall not be unreasonably withheld. No such assign-
ment or subletting shall affect Lessee's obligations to make
all required rental payments hereunder.
18. The failure of the Lessor to insist upon performance
of any of the terms or conditions of this Lease shall not be
construed as a waiver or relinquishment of the future perfor-
mance of any such terms or conditions, but the Lessee's obli-
gation with respect to such failure of performance shall con-
tinue in full force and effect.
19. Lessee shall at its sole expense provide for the
adequate sanitary handling and disposal away from the Airport
of all trash, garbage and other waste and refuse resulting
from the operation of its business.
20. In the event Lessee remains in possession of the
leased premises after the expiration of this Agreement without
any written renewal or extension of this Lease, 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.
ARTICLE V
This Lease Agreement shall terminate at the end of the full
term hereof and Lessee shall have no further right or interest in
the premises hereby demised except as provided in. Article IV, num-
bered paragraph 20.
This Agreement is subject to termination for the reasons set
forth below, provided that thirty (30) days written notice is given
to the non -terminating party. Rental due hereunder shall be pay-
able only to the effective date of said termination.
A. The Lessee may terminate upon the happening of any of the
following:
1. The permanent abandonment of the Airport as an air
terminal.
2. The issuance by any court of competent jurisdiction
of an injunction in any way preventing or restraining the use
of the Airport for a period of thirty (30) days or more.
3. The breach by the Lessor of any of the terms,
covenants or conditions of this Agreement to be kept, per-
formed and observed by the Lessor, and the failure of the
Lessor to remedy such breach for a period of sixty (60) 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 the same, of the operation, control
or use of the Airport and its facilities in such a manner as
to substantially restrict the Lessee from operating under the
terms of this Agreement for a period of three (3) months or
more.
B. The Lessor may terminate upon the happening of any of the
following:
1. If the Lessee shall file a voluntary petition of
bankruptcy; or if proceedings in bankruptcy shall be insti-
tuted against Lessee and Lessee is thereafter adjudicated as
bankrupt pursuant to such proceedings; or if a court shall
take jurisdiction of Lessee and its assets pursuant to pro-
ceedings brought under the provisions of any federal reorga-
nization act; or if a receiver for Lessee's assets is ap-
pointed; or if Lessee shall be divested of its rights, powers
and privileges under this Agreement by other: operation of law.
2. If the Lessee shall abandon and discontinue opera-
tions under this Agreement.
3. If the Lessee shall default in or fail to make any
rental payments at any time and in the amounts required of
Lessee under this Agreement.
4. If the Lessee shall fail to perform, keep and ob-
serve all of the covenants and conditions contained in this
Agreement to be performed, kept and observed by Lessee.
5. If the Lessee shall fail to abide by all applicable
laws, ordinances and rules and regulations of the United
States, State of Texas, City of Lubbock and Director of Avia-
tion 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
aid for the development of the Airport, or development of
aeronautical operations thereon.
C. In the event the leased premises are damaged by fire or
other accidental cause during the term of this Agreement so as to
become totally or partially untenantable, Lessor shall have the
option to restore the premises to their former condition. If
Lessor exercises its option to restore the premises, 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
leased premises for the uses expressed in this Agreement, Lessee's
obligation to pay rent hereunder shall be abated for the time and
to the extent that the leased premises have been rendered un -
tenantable. Should Lessor not exercise its option to restore the
leased premises, 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 apportioned to that date.
D. Within fifteen (15) days following the date of expiration
or termination of this Agreement, Lessee shall vacate said prem-
ises, remove all property of Lessee and restore the leased premises
to as good a condition on such date of expiration or termination as
when received, ordinary wear and tear excepted; provided, however,
that Lessee's right to remove its property is subject to the condi-
tion that Lessee has paid in full all amounts due and owing Lessor
under this Agreement. If, after being requested to do so by
Lessor, the Lessee shall fail or neglect to remove said property
and so restore the leased premises within fifteen (15) days of said
expiration or termination, then at the option of Lessor said
property shall either become the property of Lessor, without com-
pensation therefor, or Lessor may cause the property to be removed
and the leased premises to be restored at the expense of Lessee,
and no claim for damages against Lessor or its officers, agents or
employees shall be created or made on account of such removal and
restoration.
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%T3rnT1"T V A"
1. Notices to the Lessor required or appropriate under this
Lease shall be deemed sufficient if in writing and mailed by regis-
tered mail with postage prepaid to the Director of Aviation,
Lubbock International Airport, Route 3, Box 389, 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 the address for K.M.M.S., Inc. on file
with the Director of Aviation.
2. Should Lessor institute legal action to collect rent due
under this Agreement or damages for breach of any covenant made
herein, a reasonable sum shall be added to the amount of recovery
for attorney's fees together with all costs of court.
3. Both parties hereby agree that this instrument consti-
tutes the final agreement of the parties and that all other pre-
vious agreements, leases and contracts between the parties which
pertain to the property described herein are hereby declared null
and void.
EXECUTED this 7th day of December , 1989.
LESSOR:
CITY OF LUBBOCK
BY:
B. C. MCMI N, MAYOR
` ST: _
Q_
Rane to Boyd, City Secretary
AP ROVEDy AS --TO CONTENT:
ern E. Case, Director of
Aviation
APPROVED AS TO FORM:
arold Willa -rd, Assistant City
Attorney
LESSEE:
K.M.M. ., INC.
BY:
ATTEST:
Secretary
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