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HomeMy WebLinkAboutResolution - 3108 - Ramp Area Use Agreement - ABX Air Inc - Operating Space, OTB, LIA - 05/25/1989HW:da RESOLUTION Resolution# 3108 May 25, 1989 Item #2.8 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 Ramp Area Use Agreement by and between the City of Lubbock and ABX Air, Inc., for the priority use of ramp area adjacent to the Old Terminal Building at Lubbock International Airport, 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 25th day of _ May 1989. �t A 9 M I -N_ N�f B.C. , MAYO ATTEST: +cane tw coya, pity bece APPROVED AS TO CONTENT: Marvin Coffee, ctor of Aviation APPROVED AS TO FORM: Harold Willard, Assistant City Attorney r HW: da LUBBOCK INTERNATIONAL AIRPORT RAMP AREA USE AGREEMENT THE STATE OF TEXAS § COUNTY OF LUBBOCK § This Agreement is entered into at Lubbock, Texas, by and between the City of Lubbock, Texas, hereinafter referred X 1,88 X !� to as "CITY", and �bame , Inc.,, hereinafter -,Wx - referred to as "AIRBORNE". WITNESSETH: WHEREAS, CITY owns and operates a public airport designated as Lubbock International Airport and hereinafter called "Airport;" and WHEREAS, AIRBORNE desires to have priority use of approximately 30,000 square feet of ramp area adjacent to the Old Terminal Building at the Airport for the purpose of conducting air express operations; and WHEREAS, the Airport Board of the City of Lubbock has approved and recommends that AIRBORNE be granted priority use of such ramp area for a term hereinafter designated; and WHEREAS, the City Council of the City of Lubbock accepts the recommendation of the Airport Board and finds that execution of this Agreement will properly serve the public interest of the citizens of the City of Lubbock; ARTICLE I NOW THEREFORE, for and in consideration of the covenants and conditions herein contained and other valuable consideration, CITY hereby authorizes AIRBORNE to exercise the rights, powers and privileges hereinafter set forth and does hereby grant to AIRBORNE priority use of 30,000 square feet of ramp area adjacent to the Old Terminal Building of the Airport, located in Lubbock County, the location of which is designated in yellow on Exhibit "A" attached hereto and incorporated herein by reference. 1.01. NONEXCLUSIVE. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308(a) of the Civil Aeronautics Act. 1.02. PURPOSE. AIRBORNE's use of said ramp area shall be for the sole purpose of conducting air express operations. 1.03. SIGNS. AIRBORNE shall have the right to place signs identifying its business on and in the Old Terminal Building at locations designated by the Director of Aviation of the City of Lubbock. Said signs shall be of a type, size and design approved in writing by the Director of Aviation. The installation of such signs must comply with all applicable City Codes and shall be without cost to CITY. ARTICLE II TERM 2.01. The initial term of this Agreement shall be for a period of three (3) years commencing on the day of , 1989, and ending on the day of , 1992. However, AIRBORNE may renew this Agreement for an additional three (3) year term by giving the Director of Aviation of the City of Lubbock written notice of AIRBORNE's desire to renew at least thirty (30) days prior to the expiration of the initial term of this Agreement. ARTICLE III FEES 3.01. RAMP USE FEE. In consideration of the rights and privileges herein granted, AIRBORNE shall pay to CITY an annual ramp use fee of ONE THOUSAND EIGHT HUNDRED SEVENTY- FIVE AND N0/100 ($1,875.00) DOLLARS, which fee shall be payable in twelve equal monthly installments of ONE HUNDRED FIFTY-SIX AND 25/100 ($156.25) DOLLARS, prior to the tenth (10th) day of each month this Agreement is in effect. 3.02. LANDING FEES. In addition to the ramp use fee, AIRBORNE shall also pay CITY landing fees at the rate of - 2 - $.50 per 1,000 lbs. of the approved maximum gross landing weight of each actual flight operated. As used herein, the phrase "approved maximum gross landing weight" shall mean the maximum landing weight for an aircraft approved by the Federal Aviation Administration for that aircraft. Not later than the fifth day of each month, AIRBORNE shall file with the Director of Aviation a report of AIRBORNE's actual landings at the Airport for the preceding month, which report shall include the number and type of aircraft making such landings. Upon receipt of such report, CITY shall transmit to AIRBORNE a statement of the landing fees incurred by AIRBORNE for the preceding month. Payment shall be made by AIRBORNE to CITY on or before the 25th day of the month in which such statement is transmitted. AIRBORNE shall further provide CITY with a summary of the approved maximum gross landing weights for each type of aircraft AIRBORNE operates at the Airport. 3.03. DEFAULT FOR FAILURE TO PAY FEES. If AIRBORNE fails to pay any fees due hereunder within thirty (30) days after CITY transmits a statement therefore to AIRBORNE, CITY may, at its option, upon fifteen (15) days written notice to AIRBORNE (unless in such fifteen (15) day period AIRBORNE shall have corrected such failure to pay) immediately or at any time thereafter, enter into and upon the ramp area or any part thereof in the name of the whole, and repossess the same without being deemed guilty of trespass. 3.04. PAYMENTS. All payments that become due and payable by AIRBORNE shall be made to the City of Lubbock at the office of the Director of Aviation, Lubbock International Airport, Lubbock, Texas, or as specified by the City Secretary. ARTICLE IV RIGHTS RESERVED TO LESSOR The following rights are reserved to CITY, and AIRBORNE agrees that all rights, powers and privileges granted under - 3 - the terms of this Agreement shall be subordinated to CITY's rights as hereinafter stated. 4.01. AIRPORT HAZARDS. CITY reserves the right to take action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent AIRBORNE from erecting or permitting the erection of any building or other structure on the Airport which in the opinion of CITY would limit the usefulness of the Airport or constitute a hazard to aircraft. 4.02. AGREEMENT WITH UNITED STATES. During time of war or national emergency, CITY 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. If any such agreement is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the agreement with the Government, shall be suspended. 4.03. SUBORDINATION OF AIRBORNE'S RIGHTS. This Agreement shall be subordinate to the provisions of any existing or future agreement between the CITY and the United States pertaining to the operation and 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. 4.04. SUSPENSION OF AIRBORNE'S RIGHTS. All rights, privileges and interests acquired herein by AIRBORNE, at the option of CITY, following thirty (30) days written notice to AIRBORNE, may be suspended if such suspension is found by CITY, acting in good faith, to be necessary to secure federal financial aid for the development of the Airport, or further development of aeronautical operations thereon. =KIM ARTICLE V GENERAL CONDITIONS This Agreement is granted subject to the following provisions and conditions: 5.01. RULES AND REGULATIONS. In conducting its business, hereunder, AIRBORNE shall comply with all applicable laws of the United States of America and the State of Texas; the rules and regulations promulgated by their authority pertaining to aviation and air navigation, and all reasonable and applicable rules, regulations and ordinances of the City of Lubbock now in force or hereafter prescribed or promulgated by authority or by law. 5.02. IMPROVEMENTS OR ALTERATIONS. AIRBORNE shall not make, permit or suffer any additions, improvements or alterations to the ramp area without prior written consent of CITY. Any such additions, improvements or alterations made with the consent of CITY shall be solely at the expense of AIRBORNE and unless such consent provides specifically that title to the additions, improvements or alterations so made shall vest in AIRBORNE, title thereto shall at all times remain in CITY and such additions, improvements or alterations shall be subject to all terms and conditions of this instrument. 5.03. REMOVAL AND DEMOLITION. AIRBORNE shall not remove or demolish, in whole or in part, any improvements that already exist on the ramp area without prior written consent of CITY, which may, at its discretion, condition such consent upon the obligation of AIRBORNE to replace the same improvements specified in such consent upon termination of this Agreement. CITY shall not withhold consent unreasonably and shall not impose unreasonable conditions on its consent. 5.04. MECHANIC'S LIENS. AIRBORNE shall not bind or attempt to bind CITY for payment of any money in connection with installations, alterations, additions or repairs on the ramp area or any of AIRBORNE's equipment or facilities - 5 - located on the ramp area and shall not permit any mechanic's materialman's or contractor's liens to arise against the ramp area or any improvements, equipment, machinery or fixtures thereon belonging to CITY, and AIRBORNE expressly agrees that it will keep and save CITY 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 AIRBORNE. 5.05. DUTY TO DEFEND. In the event any mechanic's or other liens or orders for payment shall be filed against the ramp area or improvements thereon, or the property of CITY located thereon, during the term of this Agreement, AIRBORNE 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 AIRBORNE, and shall also defend on behalf of CITY, at AIRBORNE's sole cost and expense, any action, suit or proceeding which may be brought for the enforcement of such liens or orders. 5.06. CITY'S RIGHT TO INSPECT. CITY, acting by and through the Director of Aviation or other designated representative, shall have the right to inspect the ramp area at all reasonable times during the term of this Agreement. 5.07. AIRBORNE'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 AIRBORNE, its employees, agents, servants, patrons or invitees, shall be properly repaired or replaced by AIRBORNE to the satisfaction of CITY and its authorized representatives, or in lieu of such repair or replacement, AIRBORNE shall, if so required by CITY, pay CITY money in any amount deemed sufficient by CITY to compensate for the loss sustained or expense incurred by CITY by reason of the loss of, damage to, or destruction of such property. - 6 - 5.08. TRASH DISPOSAL. AIRBORNE shall at its sole expense provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage and other refuse resulting from its business operations authorized by this Agreement. 5.09. UTILITIES. AIRBORNE agrees to pay for all utility charges resulting from or connected with AIRBORNE's use of the ramp area. 5.10. TAXES AND LICENSES. AIRBORNE shall pay all taxes of whatever character that may be lawfully levied or charged upon AIRBORNE's use of the ramp area. AIRBORNE shall obtain and pay for all licenses or permits necessary or required by law for the construction of any additional improvements, the installation of equipment and furnishings, and any other licenses necessary for the conduct of its business. 5.11. HOLD HARMLESS. AIRBORNE agrees to indemnify, defend and forever save CITY, its authorized agents, representatives and employees, harmless from and against any and all penalties, liability, annoyances or losses resulting from claims or court actions of any nature arising directly or indirectly out of any acts or omissions of AIRBORNE, its agents, servants, guests, employees or business visitors under this Agreement. 5.12. PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE. AIRBORNE shall maintain at all times during the term of this Agreement, at its sole expense, insurance with an insurance underwriter acceptable to CITY and authorized to do business in the State of Texas, against claims of public liability and property damage resulting from AIRBORNE's business activities at the Airport. The amount of insurance coverage shall not be less than ONE HUNDRED THOUSAND DOLLARS ($100,000) for property damages as a result of any one event, or less than THREE HUNDRED THOUSAND DOLLARS ($300,000) for personal injury or death of any one person in any one event, or less than FIVE HUNDRED THOUSAND DOLLARS - 7 - ($500,000) for personal injury or death of two or more persons in any one event. All policies shall contain an agreement on the part of the respective insurers, waiving the right of such insurers to subrogation. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City Secretary and an additional copy of such certificates given to the Director of Aviation prior to the commencement of the initial term of this Agreement. Each policy shall name the City of Lubbock as an additional insured as its interest may appear, require the insurer to notify the Director of Aviation of the City of Lubbock, Texas, 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 Director of Aviation. 5.13. FIRE INSURANCE. AIRBORNE shall insure for fire and extended coverage risks all of AIRBORNE's improvements on the ramp area and shall keep such insurance in full force and effect during the entire term of this Agreement. Such insurance shall be in an amount equal to the full insurable replacement value of such improvements. All fire insurance policies shall contain loss payable endorsements in favor of the parties as their respective interests may appear hereunder, and an agreement on the part of the insurers waiving the right of such insurers to subrogation. AIRBORNE shall furnish three (3) copies of certificates of insurance or other satisfactory evidence of compliance with this provision to the City Secretary prior to the commencement of the initial term of this Agreement. 5.14. WORKERS' COMPENSATION. AIRBORNE shall furnish to CITY satisfactory evidence that AIRBORNE carries Workers' Compensation Insurance in accordance with the laws of the State of Texas. 5.15. AIRBORNE SHALL VACATE. On or before the date of expiration of this Agreement, AIRBORNE shall, as required by CITY, vacate said ramp area, remove all property of - 8 - AIRBORNE, and restore the ramp area and any improvements, facilities and equipment thereon to as good condition on such date of expiration as when received, ordinary wear and tear excepted. If, however, this Agreement is terminated pursuant to Article VI, AIRBORNE shall vacate the ramp area, remove said property, and restore the ramp area, improvements, facilities and equipment thereon as aforesaid within thirty (30) days following the date of such termination; provided, however, that AIRBORNE'S right to remove its property is subject to the condition that AIRBORNE has paid in full all amounts due and owed to CITY under this Agreement. If AIRBORNE shall fail or neglect to remove said property and so restore the ramp area, improvements, facilities and equipment included thereon on or before said expiration or within thirty (30) days of such termination, then at the option of CITY, said property shall either become the property of CITY without compensation therefor or CITY may cause such property to be removed, the ramp area, improvements, facilities and equipment included thereon to be restored at the expense of AIRBORNE, and no claim for damages against CITY, or its officers, agents or employees shall be created or made on account of such removal and restoration. 5.16. NONDISCRIMINATION. AIRBORNE, its agents and employees will not discriminate against any person or class of persons by reason of race, color, sex, religion or national origin in providing any services or in the use of any of its facilities provided for the public; nor shall AIRBORNE discriminate against any person or class of persons on the basis of age in a manner that violates any prohibition against such discrimination under the Age Discrimination Act of 1975, 42. U.S.C. §6101 et seq. AIRBORNE further agrees to comply with such enforcement procedures as the United States might demand that CITY take in order to comply with the Sponsor's Assurances. AIRBORNE agrees to not discriminate against any employees or applicant for employment because of race, color, age, sex, religion or national origin. AIRBORNE also agrees to take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, age, sex, religion or national origin. Such action shall include, but not be limited to, employment, upgrading, demotion or transfer, recruitment, layoff, rates of pay or other forms of compensation, and selection for training, including apprenticeship. AIRBORNE will also conduct its activities and operate its facilities 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 AIRBORNE. 5.17. WARRANTY OF NO SOLICITATION. AIRBORNE 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. 5.18. NO ASSIGNMENT. Except with prior written consent of CITY, AIRBORNE shall not assign any of its rights hereunder. No such assignment made with CITY's consent shall affect AIRBORNE's obligations to make all required fee payments hereunder upon default of any assignee. 5.19. WAIVER. The failure of CITY to insist in any one or more instance upon performance of any of the terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any such terms or conditions, and AIRBORNE's obligation with respect to such future performance shall continue to be in full force and effect. - 10 - 5.20. CITY'S RIGHT TO LEASE TERMINAL BUILDING. AIRBORNE agrees that CITY has the right to lease portions of the Old Terminal Building to any tenants as CITY desires. 5.21. DUTY TO PREVENT UNAUTHORIZED ACCESS TO THE RAMP AREA. AIRBORNE shall prohibit both unauthorized persons and vehicles from entering those Airport premises which AIRBORNE has priority use of, and AIRBORNE agrees that in the event that a civil penalty or fine is levied against the Airport or City as a result of AIRBORNE'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, AIRBORNE 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 violation. ARTICLE VI TERMINATION This Agreement is subject to termination for the reasons set forth below, provided that thirty (30) days written notice is given to the nonterminating party. 6.01. AIRBORNE'S RIGHT TO TERMINATE. AIRBORNE may terminate upon the happening of any of the following: A. The permanent abandonment of the Airport as an air terminal. B. The insurance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of the ramp area for at least thirty (3 0) days. C. The breach by CITY of any of the terms, covenants or conditions of this Agreement to be kept, performed and observed by CITY, and the failure of CITY to remedy such breach for a period of sixty (60) days after written notice from AIRBORNE of the existence of such breach. D. 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 AIRBORNE from operating under the terms of this Agreement, if such restriction is to continue or has continued for a period of three (3) months of more. E. AIRBORNE ceases operations at the Airport for six (6) months after notifying the Director of Aviation of the City of Lubbock in writing of the date on which AIRBORNE either has ceased operations or intends to cease operations. 6.02. CITY'S RIGHT TO TERMINATE. CITY may terminate upon the happening of any of the following: A. If AIRBORNE shall file a voluntary petition of bankruptcy; or, if the proceedings in bankruptcy shall be instituted against AIRBORNE and it is thereafter adjudicated as bankrupt pursuant to such proceedings; or if a court shall take jurisdiction of AIRBORNE and its assets pursuant to proceedings brought under the provisions of any federal reorganization act; or if a receiver for AIRBORNE's assets is appointed under state or federal law; or if AIRBORNE shall be divested of its rights, powers and privileges under this Agreement by other operation of law. B. If AIRBORNE shall abandon and discontinue operations under this Agreement. C. If AIRBORNE shall default in or fail to make any fee payments at the time and in the amounts required under this Agreement. D. If AIRBORNE shall fail to perform, keep and observe all of the covenants and conditions contained in this Agreement to be performed, kept and observed by AIRBORNE. E. If AIRBORNE shall fail to abide by all applicable laws, ordinances and rules and regulations of the - 12 - United States, State of Texas, City of Lubbock or Director of Aviation of the City of Lubbock. F. If CITY, acting in good faith, finds termination of the rights, privileges and interests of AIRBORNE acquired under this Agreement to be necessary to secure federal financial aid for the development of the Airport, or further development of aeronautical operations thereon. 6.03. FIRE DAMAGE. In the event the Old Terminal Building or ramp area for which AIRBORNE is herein granted priority use are damaged by fire or other accidental cause during the term of this Agreement so as to become totally or partially unusable, CITY shall have the option to restore the premises to their former condition. If CITY exercises its option to restore the premises, CITY shall proceed with due diligence. If the damage is so extensive as to amount practically to the total destruction of the utility of the ramp area for the uses expressed in this Agreement, AIRBORNE's obligation to pay fees hereunder shall abate for the time and to the extent that the ramp area has been rendered unusable. Should CITY not exercise its option to restore the premises, this Agreement shall terminate, such termination to be effective on the date of damage by fire or other accidental cause, and all fees due pursuant to this Agreement shall be apportioned to that date. ARTICLE VII MISCELLANEOUS PROVISIONS 7.01. NOTICES. Notices to CITY provided for herein shall be sufficient if sent by certified mail, postage prepaid, addressed to the Director of Aviation, Route 3, Box 389, Lubbock, Texas 79401, and notices to AIRBORNE, if sent by certified mail, postage prepaid, addressed to Airborne Express, Inc., Airborne Air Park, 145 Hunter Drive, Wilmington, Ohio 45177, or to such other addresses as the parties may designate to each other in writing from time to time. - 13 - action to fees due under this Agreement or damages pV for breach of any covenan erein, a reasonable sumo shall be added to the amount of recovery orneys' fees 7.03. HOLDING OVER. In the event AIRBORNE continues its usage of the ramp area after the expiration of this Agreement, without any written renewal or extension of this Agreement, such holding over shall not be deemed as a renewal or extension of the same, and may be terminated at any time by CITY. EXECUTED this day of , 1989. AIRBORNE EXPRESS, INC. CITY OF LUBBOCK, TEXAS BY: BY: C . c ATTEST: N. C. Mc , MAYOR EST: C: a tte Boyd, City'Sebretary APPROVED AS TO CONTENT: Marvin Coffee Director of A iation APPROVED AS TO FORM: arold Willard, Assistant City Attorney - 14 - SCALE:1"=100' ACCESS ROAD AIRBORNE EXPRESS INC. LEASE AREA