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HomeMy WebLinkAboutResolution - 2244 - Lease Agreement - Gary L Mcmillan - Operations Space, LIA - 02/13/1986MH:js RESOLUTION Resolution #2244 February 13, 1986 Agenda Item #27 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 Fixed Base Operator Lease Agreement by and between the City of Lubbock and Gary L. McMillan, 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 13th day of February , 1986. ALAN ENRY, AOR /-- ATTEST: , ulty Secretary APPROVED AS TO CONTENT: Marvin Coffee, D' for of Aviation APPROVED AS TO FORM: Mic ele ar , Assistant City Attorney kl., �-,)a . FIXED BASE OPERATOR LEASE AGREEMENT Lubbock International Airport Lubbock, Texas Gary L. McMillan LESSEE Term: July 1, 1985 to June 30, 1988 FIXED BASE OPERATOR LEASE AGREEMENT TABLE OF CONTENT Page RECITALS 1 ARTICLE I 1 PREMISES AND PRIVILEGES 1 A. DESCRIPTION OF LEASED PREMISES 1 B. DESCRIPTION OF PRIVILEGES, USES AND RIGHTS 2 C. CONDITIONS OF GRANTING LEASE 2 ARTICLE II 2 TERM 2 A. TERM OF LEASE AGREEMENT 2 B. NATIONAL EMERGENCY 2 ARTICLE III 2 RENTALS, FEES, CHARGES AND OTHER CONSIDERATION 2 A. CPI ADJUSTMENT 2 B. PAYMENT OF GROUND RENTAL 3 C. GROUND RENTAL RATE 1983 3 D. 1985 GROUND RENTALS 3 E. PAYMENT OF BUILDING RENTAL 3 F. BUILDING RENTAL RATE 1983 3 G. 1985 BUILDING RENTALS 3 H. FUEL FLOWAGE FEE 4 I. MINIMUM ANNUAL FIXED BASE OPERATOR'S FEE 4 J. UNPAID RENT, FEES AND CHARGES 4 K. ABATEMENT OF RENTALS 4 L. INSPECTION OF BOOKS AND RECORDS 4 M. NONDISCRIMINATION 4 N. AFFIRMATIVE ACTION 5 ARTICLE IV 6 OBLIGATIONS AND RIGHTS OF THE CITY 6 A. DESIGNATION OF CITY'S REPRESENTATIVE 6 B. SAFETY 6 C. MAINTENANCE OF PUBLIC AREA 6 D. STANDARDS 6 ARTICLE V 6 OBLIGATIONS AND RIGHTS OF LESSEE 6 A. ASSIGNMENT, TRANSFER, PLEDGE 6 B. SUBLEASING 6 C. NET LEASE 6 D. CONDITION OF PREMISES 7 E. MAINTENANCE 7 F. TRASH, GARBAGE, REFUSE 7 G. INSPECTION 7 H. SIGNS 7 I. UTILITIES 7 J. TAXES AND ASSESSMENTS 7 K. EXISTING IMPROVEMENTS 7 L. IMPROVEMENTS MADE BY LESSEE 8 M. AIRPORT LAND USE POLICY 8 N. PARKING 8 0. VEHICULAR MOVEMENT 8 ARTICLE VI 8 INSURANCE AND INDEMNIFICATION 8 A. HAZARD INSURANCE 8 B. WORKER'S COMPENSATION 8 C. PUBLIC LIABILITY INSURANCE 8 D. INDEMNIFICATION 9 E. INDEPENDENT CONTRACTOR 9 ARTICLE VII ENCUMBRANCES A. ENCUMBRANCES B. MORTGAGEE'S RIGHTS C. NOTICE TO MORTGAGEE ARTICLE VIII TERMINATION OR CANCELLATION A. TERMINATION B. RIGHTS OF CITY UPON TERMINATION C. CANCELLATION BY LESSEE D. CANCELLATION BY THE CITY E. NO WAIVER OF RIGHTS BY CITY F. LESSEE'S RIGHTS AND OBLIGATIONS UPON CANCELLATION BY CITY ARTICLE IX GENERAL PROVISIONS A. SECURITY VIOLATIONS B. SUBORDINATION OF LEASE AGREEMENT C. PUBLIC BENEFIT D. NON-EXCLUSIVE RIGHTS E. DEVELOPMENT OF AIRPORT F. RIGHTS OF OTHERS G. LAW GOVERNING AND VENUE H. SUCCESSORS AND ASSIGNS I. WAIVER J. SEVERABILITY K. ENTIRE AGREEMENT AND AMENDMENT L. CONTRACTUAL LIEN M. REMEDIES CUMULATIVE N. HOLDING OVER ARTICLE X NOTICE EXHIBIT A DESCRIPTION OF LEASED PREMISES EXHIBIT B LAND USE POLICIES 10 10 10 10 10 10 11 11 12 12 12 12 12 12 12 12 13 13 13 13 13 13 13 13 14 14 FIXED BASE OPERATOR LEASE AGREEMENT STATE OF TEXAS COUNTY OF LUBBOCK On this day of , 1985, the CITY OF LUBBOCK, TEXAS, hereinafter referred to as "CITY" and GARY L. McMILLAN, whose business address is 1946 Avenue Q, Suite 200, Lubbock, Texas 79411, hereinafter referred to as "LESSEE", made and entered into this LEASE AGREEMENT for the premises herein- after described, which are situated at the Lubbock International Airport in Lubbock County, Texas. RECITALS The CITY and LESSEE do hereby agree and stipulate that the following facts are true and form the basis of this LEASE AGREEMENT. 1. The CITY owns and operates the Lubbock International Airport located in the City of Lubbock, Lubbock County, Texas, hereinafter referred to as "AIRPORT". 2. LESSEE is the president and principal shareholder of Aeroplanes, Inc., a corporation organized under the laws of the State of Texas, whose principal place of business is Lubbock, Texas. 3. Aeroplanes, Inc., is primarily engaged in aviation retail sales and the activities of a fixed based general aviation operator. 4. LESSEE has indicated a willingness and ability to keep, maintain, and improve the premises herein leased in accordance with standards established by the CITY. 5. The Airport Board of the City of Lubbock has recom- mended that the City Council of the City of Lubbock grant to LESSEE a lease on the hereinafter described premises located at the Airport. ARTICLE I PREMISES AND PRIVILEGES NOW THEREFORE, for and in consideration of the terms, con- ditions, and covenants of this lease to be performed by LESSEE, all of which LESSEE accepts, the CITY does hereby demise and lease unto LESSEE and LESSEE does hereby hire and take from the CITY the following described property, hereinafter called LEASED PREMISES, and the CITY hereby grants to LESSEE certain attendant privileges, uses and rights, as hereinafter specifically set out. A. DESCRIPTION OF LEASED PREMISES. The premises hereby leased are Building #108 located on the East ramp of the Lubbock International Airport and the land under and extending out twenty (20) feet on all sides of said Building #108, all of which pre- mises are located on a tract of land out of the Northwest one- fourth (NW 1/4) of Section Two (2), Block D-3, Lubbock County, Texas. The location of the Leased Premises is shown on Exhibit A, attached hereto and incorporated herein by this reference. The area of said Building #108 and the land under and around said building are as follows: 1. Building area - 12,371 square feet 2. Land area - 26,132 square feet B. DESCRIPTION OF PRIVILEGES, USES AND RIGHTS. The CITY grants to LESSEE the following privileges, uses and rights, all of which shall be subject to the terms, conditions and covenants hereinafter set forth and to all ordinances, rules and regula- tions as now or hereafter shall have effect at the Airport. All privileges, uses and rights herein granted shall be non-exclu- sive. 1. LESSEE shall have the free and non-exclusive use in common with others at the Airport of all public Airport facilities and improvements which are now or may hereafter be connected with or appurtenant to said Airport, including, but not limited to, approach areas, runways, taxiways, aprons, aircraft parking areas, navigational and avigational aids, lighting facilities, terminal facilities, and other public facilities appurtenant to said Airport. 2. LESSEE, his sublessees, agents, employees, patrons, invitees and suppliers shall have the right of ingress to and egress from the Leased Premises. 3. LESSEE may engage in the business of aeronautics, engine and aircraft repairs, modifications, sales and renting of aircraft, sales of aircraft engine parts and accessories, inspections, licensing, fabrication aircraft components, flight instruction, storage of aircraft and equipment, airplane charter flights and local short flights and may operate at the Lubbock International Airport as a Fixed Base Operator. 4. LESSEE may give flying instructions, provide pilots for planes for others, and carry passengers and freight for hire, subject to all appropriate laws of the Federal government, and the State of Texas, and the require- ments of all duly authorized governmental agencies. 5. LESSEE, in common with others, may sell aviation fuel, oil and other propellants or lubricants to the general public at said airport. 6. LESSEE may not use the leased premises for storage of anything except materials and equipment used in connection with the above-mentioned permitted acti- vities. C. CONDITIONS OF GRANTING LEASE. The granting of the Lease and its acceptance by LESSEE is conditioned upon LESSEE'S covenant that the right to use Airport facilities shall be exercised subject to and in accordance with the laws of the United States of America and the State of Texas, the ordinances of the City of Lubbock, the rules and regulations promulgated by the authority of the United States of America, the State of Texas, the County of Lubbock or the City of Lubbock with refer- ence to aviation and air navigation. ARTICLE II TERM A. TERM OF LEASE AGREEMENT. The term of this Lease Agreement shall commence on the first day of July 1985 and end on the thirtieth (30th) day of June 1988. B. NATIONAL EMERGENCY. In the event the rights and privileges hereunder are suspended by reason of war or other national emergency, the term of this lease shall be extended by the amount of the period of such suspension. - 2 - ARTICLE III RENTALS, FEES, CHARGES AND OTHER CONSIDERATION A. CPI ADJUSTMENT. The CITY and LESSEE do hereby mutually agree that the annual ground and building rental rates herein- after specified will be adjusted upward or downward in direct proportion to the fluctuation in the U.S. Department of Labor Bureau of Labor Statistics Consumer Price Index, hereinafter referred to as "CPI." Such adjustment shall be made on the first day of January of each year of the term of this lease beginning on January 1, 1986. For purposes of computing all such adjust- ments, the CPI of January 1, 1985, shall be construed as the base figure. B. PAYMENT OF GROUND RENTAL. LESSEE shall pay to the CITY an annual ground rental. Such rental shall be paid monthly in advance on the first day of each month in a sum equal to one - twelfth (1/12) of the annual ground rental due hereunder. Such rental is equal to the ground rental rate specified in paragraph C hereafter, as adjusted for fluctuations in the CPI, multiplied by the number of square feet of ground area contained in the Lease Premises. C. GROUND RENTAL RATE 1985. For the calendar year 1985, the ground rental rate for the land area comprising the Lease Premises herein is $.077 per square foot per year. D. 1985 GROUND RENTALS. The ground rental for the period from July 1, 1985 to December 31, 1985, is ONE THOUSAND SIX AND 08/100 DOLLARS ($1006.08), payable in monthly payments of ONE HUNDRED SIXTY-SEVEN AND 68/100 DOLLARS ($167.68). E. PAYMENT OF BUILDING RENTAL. LESSEE shall pay to the CITY an annual building rental. Such rental shall be paid monthly in advance on the first day of each month in a sum equal to one -twelfth (1/12) of the annual building rental due here- under. Such building rental is equal to the building rental rate specified in paragraph H hereafter, as adjusted for fluctuations in the CPI, multiplied by the number of square feet contained in Building #108 which comprises a part of the Leased Premises - herein. F. BUILDING RENTAL RATE 1985. For the calendar year 1985, the building rental rate for Building #108 is $.69737 per square foot per year. G. 1985 BUILDING RENTALS. The building rental for the period from July 1, 1985 to December 31, 1985, is FOUR THOUSAND THREE HUNDRED THIRTEEN AND 58/100 DOLLARS ($4,313.58)9 payable in monthly payments of SEVEN HUNDRED EIGHTEEN AND 93/100 DOLLARS ($718.93). H. FUEL FLOWAGE FEE. As part of the pecuniary considera- tion for the rights and privileges herein granted, LESSEE agrees to pay a fuel flowage fee of four cents ($.04) per gallon for each gallon of aviation fuel delivered to LESSEE or his agents at the Airport by or brought to the Airport by or for LESSEE, excluding all aviation fuel delivered by LESSEE or his agents to a regularly scheduled certified airline operating at the Airport pursuant to a contract with the CITY. The supplier of such aviation fuel may pay such flowage fees on behalf of LESSEE, but in the event that the aforesaid flowage fees are not paid by such supplier, said fees shall be due and payable by LESSEE on the first day of the month succeeding the month in which such aviation fuel is delivered to LESSEE at the Airport. In comput- ing the aforesaid fuel flowage fee, the total gallonage of aviation fuel delivered to LESSEE, other than fuel delivered to regularly scheduled certified airlines as provided above, may be - 3 - reduced by two percent (20) as an allowance for loss from any and all causes. I. MINIMUM ANNUAL FIXED BASE OPERATOR'S FEE. LESSEE agrees to pay a minimum annual Fixed Base Operator's fee of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) for each calendar year during the term of this Lease Agreement. The annual minimum fee shall be pro rated for the first and last year of the term of this Lease Agreement. All ground rentals and fuel flowage fees paid by LESSEE during any one calendar year shall apply toward payment of said annual minimum fee. The minimum annual fee shall be payable monthly at the pro rated amount of $208.34, which amount shall be due no later than the 15th day of each month. In any month during any calendar year in which the payments made by LESSEE for ground rentals and fuel flowage fees do not equal or exceed the amount currently due for payment of the annual minimum Fixed Base Operator's fee, LESSEE shall pay an additional sum as needed to equal the payment of $208.34 per month for that calendar year. J. UNPAID RENT, FEES AND CHARGES. Any installment of rent, any fees or other charges accruing under any provision of this Lease Agreement that are not received by the 15th day of the month in which payment is due shall bear interest at the rate of fifteen percent (150) per annum from the date when such payment was due, according to the terms of the Lease Agreement, until the CITY receives such payment. K. ABATEMENT OF RENTALS. In the event that during the term of this Lease Agreement, the rights and privileges herein granted to LESSEE are temporarily suspended by reason of war or other national emergency so that LESSEE is prevented from using the Leased Premises for the purpose of conducting a fixed base operation, all rentals hereunder shall abate for the period of time that such rights and privileges are suspended. L. INSPECTION OF BOOKS AND RECORDS. LESSEE shall maintain complete books and records of all transactions, sales and income resulting from its operation at Lubbock International Airport which books and records may be inspected at anytime by the CITY or its duly authorized representatives at Lubbock, Texas, upon reasonable notice to LESSEE. In the event LESSEE requests such inspection to be performed outside the Lubbock area, such request may be honored at the CITY'S discretion; however, any and all expenses incurred by so doing shall be reimbursed by the LESSEE. LESSEE agrees to furnish facts and figures necessary to determine the amount to be paid the CITY. Upon receipt of written request from the Director of Aviation of the City of Lubbock, LESSEE shall furnish a signed statement certified by a Certified Public Accountant that said figures are correct and properly stated. M. NONDISCRIMINATION. LESSEE, for himself, his heirs, personal representatives, successors in interest and assigns, as part of the consideration hereof, does hereby covenant and agree as follows: 1. That in the event facilities are constructed, main- tained, or otherwise operated on the property described in this Lease for a purpose for which a Department of Transportation program of activity is extended, or for another purpose involving the provision of similar services or benefits, the LESSEE shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transporta- tion, Subtitle A, Part 21, Nondiscrimination in federally -assisted programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. - 4 - 2. That no person on the ground of race, creed, color, national origin or sex shall be excluded from partici- pation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facili- ties. 3. That in the construction of any improvements on, over, or under such land and the furnishings of services thereon, no person on the grounds of race, color, national origin or sex shall be excluded from partici- pation in, denied the benefits of, or otherwise subjected to discrimination. 4. That LESSEE shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Trans- portation, Subtitle A, Part 21, Nondiscrimination in federally -assisted programs of the Department' of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. 5. In conducting all his activities and operations on the Airport LESSEE shall carry out the intent of section 504 of the Rehabilitation Act of 1973, 29 USC 794 as amended, to the end that no otherwise qualified handicapped individual shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimi- nation under any program or activity of LESSEE. LESSEE shall comply with the regulations promulgated by the Department of Transportation regarding nondiscrimina- tion on the basis of handicap in programs and activi- ties receiving or benefiting from federal financial assistance found in Part 27 of Title 49 CFR. 6. LESSEE shall not discriminate against any person on the basis of age in a manner prohibited by the Age Discrim- ination Act, 42 USC §6101 et seq. N. AFFIRMATIVE ACTION. LESSEE assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, and any amendments thereto, and any other federal statutes or regulations applicable to the receipt of federal assistance from the Department of Transportation by local governments for Airport use, or otherwise applicable to persons leasing premises from the City of Lubbock, to insure that no person shall, on the grounds of race, creed, color, sex or national origin, be excluded from participating in or receiving the services or benefits of any program or activity covered by this Subpart. LESSEE assures that it will require that its covered suborganizations (sublessees) provided assurances to lessor, as set forth herein, that they similarly will undertake affirmative action programs, and that they will require assurance from their suborganizations (sublessees) to the same effect. ARTICLE IV OBLIGATIONS AND RIGHTS OF THE CITY A. DESIGNATION OF CITY'S REPRESENTATIVE. The CITY hereby designates the Director of Aviation of the City of Lubbock, Texas, as its representative to administer and enforce the terms, covenants, and conditions of this Lease Agreement and authorizes said Director to take any action or to give any approval or notice that may be taken or given by the CITY pursuant to the terms of this Lease Agreement. - 5 - B. SAFETY. The 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 erecting or permitting to be erected any building or other structure on or off the Airport, which, in the opinion of the CITY, would limit the usefulness of the Airport or constitute a hazard to aircraft. C. MAINTENANCE OF PUBLIC AREA. The 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, together with the right to direct and control all activities of LESSEE in this regard. D. STANDARDS. The CITY reserves the right to establish standards for the construction, maintenance, alterations, repairs, additions or improvements of LESSEE'S facilities. This will include structural design, color, materials used, land- scaping and maintenance of LESSEE'S facilities and Leased Premises. ARTICLE V OBLIGATIONS AND RIGHTS OF LESSEE A. ASSIGNMENT, TRANSFER, PLEDGE. LESSEE shall not at anytime assign, transfer, pledge or otherwise alienate this Lease Agreement or any interest herein, without the prior written consent of the CITY. B. SUBLEASING. LESSEE may sublease Leased Premises to Aeroplanes, Inc.,; provided, however, that any such sublease shall not in any way diminish LESSEE'S obligation hereunder, and LESSEE shall be responsible for the observance by its sublessee of the terms, conditions and covenants of this Lease Agreement. LESSEE shall not sublease all or any part of the Leased Premises to any party other than Aeroplanes, Inc., without securing the prior written approval of the CITY. Such approval shall not be unreasonably withheld. LESSEE shall promptly furnish the CITY with a copy of any such sublease agreement. C. NET LEASE. This Lease Agreement shall be without cost to the CITY for the development, maintenance and improvement of the Leased Premises. LESSEE shall have the sole responsibility to keep, maintain, repair and operate the Leased Premises and all improvements and facilities placed thereon at LESSEE'S sole cost and expense. D. CONDITION OF PREMISES. LESSEE accepts the Leased Premises in their present condition and, without expense to the CITY, will repair and maintain any installations thereon and remove or cause to be removed any debris or other waste matter therefrom. E. MAINTENANCE. 1. LESSEE shall, at his sole cost and expense, maintain the Leased Premises and any improvements thereon in a presentable condition consistent with good business practice. LESSEE shall repair any and all damages to the Leased Premises caused by his sublessee, agents, employees, patrons, invitees or his operations thereon, including any drainage installations, paving or curbs. LESSEE shall repaint his own buildings as necessary. LESSEE shall keep the leased ground area free from all tall grass and vegetation. 2. The CITY shall be the sole judge of the quality of such maintenance, and upon written notice by the CITY to LESSEE, LESSEE shall perform whatever maintenance the - 6 - CITY deems necessary. If LESSEE fails to undertake the performance of any such maintenance within twenty (20) days after receipt of written notice from the CITY to do so, the CITY shall have the right to enter upon the Leased Premises and perform the necessary mainten- ance, the cost of which shall be borne by LESSEE. F. TRASH, GARBAGE, REFUSE. LESSEE shall provide a complete and proper arrangement for adequate sanitary handling and disposal, away from the Airport, of all trash, garbage, and other refuse caused as a result of the operation of LESSEE'S business. LESSEE shall use suitable covered metal receptacles for all such garbage, trash and other refuse. LESSEE shall not pile boxes, cartons, barrels or other similar items on or about the Leased Premises nor shall LESSEE permit any other person to do so. LESSEE shall keep the Leased Premises clean and free of all debris and other waste matter. G. INSPECTION. The CITY shall have the right at all reasonable times to enter upon the Leased Premises for the purpose of inspecting the premises under LESSEE'S control. H. SIGNS. LESSEE may not erect or cause to be erected on the Leased Premises any billboards or advertising signs; pro- vided, however, with the prior written consent of the Director of Aviation of the City of Lubbock, LESSEE may maintain on the outside of any building located on the Leased Premises one sign with the name of LESSEE'S business thereon. The size and location of such sign shall conform with the sign ordinance of the City of Lubbock. I. UTILITIES. LESSEE shall have the right to connect to any and all storm and sanitary sewers and water and utility outlets including metering devices at its own cost and expense; and Lessee shall promptly pay for any and all service charges incurred therefor and for all charges for water, electricity, or any other utility used in connection with LESSEE'S business operation. J. TAXES AND ASSESSMENTS. LESSEE agrees to pay all taxes and assessments levied on the Leased Premises and any other taxes or assessments in connection with its business which may be levied, promptly when due. K. EXISTING IMPROVEMENTS. LESSEE shall not remove or demolish, in whole or in part, any improvement that already exists on the Leased Premises without the prior written consent of the CITY. The CITY shall not withhold such consent unreason- ably. L. IMPROVEMENTS MADE BY LESSEE. LESSEE shall not make, permit, or suffer any additions, improvements or alterations to the property which constitute any major structural change or changes 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 said Director of Aviation shall be solely at the expense of the LESSEE and, unless such consent provides specifically that title to the addition or improvements so made shall vest in the LESSEE, title thereto shall at all times remain in the CITY, and such additions or improvements shall be subject to all terms and conditions of this instrument. The LESSEE agrees to hold the CITY harmless from Mechanic's and Materialman's Liens arising from any construction, additions, improvements, repairs or alterations effected by the LESSEE. M. AIRPORT LAND USE POLICY. LESSEE agrees to abide by the Airport Land Use Policy a copy of which is attached hereto as Exhibit "B" and incorporated herein for all purposes. - 7 - N. PARKING. LESSEE shall at its sole cost and expense construct adequate and suitable pavement areas for use by its customers for parking of aircraft and automobile parking for its employees, patrons, guests or invitees. 0. VEHICULAR MOVEMENT. LESSEE will not permit the driving of vehicles by its employees, customers, guests or invitees on the apron, taxiways, or runways except specifically authorized vehicles. ARTICLE VI INSURANCE AND INDEMNIFICATION A. HAZARD INSURANCE. 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 buildings located on the leased premises to 80% of the full insurable value thereof, and shall furnish the CITY with evidence that such coverage has been procured and is being maintained. B. WORKER'S COMPENSATION. LESSEE shall furnish to the CITY satisfactory evidence that it carries Worker's Compensation Insurance in accordance with the laws of the State of Texas. C. PUBLIC LIABILITY INSURANCE. 1. LESSEE will carry and maintain Public Liability Insurance for personal injury or death in companies licensed to do business in the State of Texas for the protection of the CITY and naming the City of Lubbock, Texas, as an insured, insuring against all claims, losses, costs or expense arising out of injuries to persons, whether or not employed by the LESSEE, that occur on the Leased Premises or as a result of any activity of LESSEE on the Airport. Such policy shall provide coverage for liability on account of each incident resulting in bodily injury or death to one person of not less than TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) and coverage for liability on account of each incident resulting in bodily injury or death to more than one person of not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000.00). 2. LESSEE will carry and maintain Property Damage Liabi- lity Insurance with coverage for liability for each incident of not less than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) for damages to property resulting from acts or omissions of the LESSEE, his sublessee, agents, servants, employees, patrons or invitees. 3. LESSEE shall furnish to the CITY certificates of insurance showing such Hazard Insurance, Worker's Compensation Insurance, Public Liability and Property Damage Liability Insurance to be in full force and effect or shall deposit with the CITY copies of the aforesaid insurance policies. Said policies shall contain a provision that written notice of cancellation or of any material change in said policy by the insurer shall be delivered to the City of Lubbock, Texas, ten (10) days in advance of the effective date thereof. All certificates of insurance furnished to the CITY as provided hereunder shall contain provision for such ten (10) day advance notice of cancellation or modification of said policies. D. INDEMNIFICATION. LESSEE agrees to hold the CITY free and harmless from loss from each and every claim, and demand of whatsoever nature made on behalf of or,by any person or persons resulting from LESSEE'S business operation and/or use of the - 8 - Airport or of the Leased Premises by LESSEE, his sublessees, agents, servants, employees, and from all loss and damages by reason of negligence of the LESSEE, his sublessees, agents, servants and employees. E. INDEPENDENT CONTRACTOR. LESSEE is and shall be deemed to be an independent contractor and operator responsible to all parties for his respective acts or omissions, and the CITY shall in no way be responsible therefor. ARTICLE VII ENCUMBRANCES A. ENCUMBRANCES. LESSEE may encumber his interest in the buildings and improvements on the Leased Premises by mortgage, deed of trust, or other instrument in the nature of a mortgage or deed of trust. LESSEE shall deliver to the CITY a written statement signed by the trustee of such deed of trust or by the payee or beneficiary of any note or other obligation secured by a deed of trust, or other instrument showing (a) the amount of the obligation secured by such instrument and the date or dates of the maturity thereof and (b) the name and address of such bene- ficiary, payee or trustee. B. MORTGAGEE'S RIGHTS. In the event of the nonperformance or default in the performance of any covenant or provision of this Lease Agreement to be performed by LESSEE during the existence of any such encumbrance that LESSEE has placed upon LESSEE'S interest in the improvements on the Leased Premises, the beneficiary, mortgagee, trustee or payee named in any mortgage or deed of trust shall have the right to perform and comply with all payments required of LESSEE by this Lease Agreement and by doing so to cure and remove any such default or nonperformance as if the same had been done and performed by LESSEE. Any such bene- ficiary, mortgagee, trustee or payee named in any mortgage or deed of trust or other like instrument shall have thirty (30) days after receipt from LESSOR of notice that LESSEE is in default in which to cure such default. If the nature of the default is such that it cannot be cured within thirty (30) days, such beneficiary, mortgagee, trustee or payee shall be deemed to have cured such default if such beneficiary, mortgagee, trustee or payee commences performance of the covenant or provision of this Lease Agreement which LESSEE is obligated to perform, but has failed to do so, within such thirty (30) day period and thereafter diligently prosecutes the same to completion. C. NOTICE TO MORTGAGEE. If LESSOR has received a written statement as provided in paragraph A of this Article, LESSOR shall, during the existence of any encumbrance evidenced thereby, serve on the mortgagee, beneficiary, payee or trustee named in such statement a copy of every notice served by LESSOR upon LESSEE under the terms of this Lease Agreement. Any such notice shall be deemed sufficient if mailed by certified mail, return receipt requested, to the address given in said written state- ment. ARTICLE VIII TERMINATION OR CANCELLATION A. TERMINATION. This Lease Agreement shall terminate at the end of the term hereof, and LESSEE shall have no further right or interest in any land hereby leased or in any building or improvements thereon. B. RIGHTS OF CITY UPON TERMINATION. At the termination of this Lease Agreement by expiration of the term hereof, the CITY shall be entitled to have the land leased hereunder returned to it clear of all improvements above ground level that have been - 9 - constructed or purchased by LESSEE. If LESSEE fails to remove all such improvements, the CITY may remove such improvements at LESSEE'S EXPENSE. At the option of the CITY, the CITY may take title to such improvements in lieu of removal by or for LESSEE. Upon termination of this Lease Agreement, the CITY shall have the right to take immediate possession of the Leased Premises and all improvements and other property remaining thereon without being deemed guilty of trespass of conversion. C. CANCELLATION BY LESSEE. LESSEE may cancel this Lease Agreement by giving written notice to the City after the occur- rence of any one of the events hereinafter described. Any such cancellation by LESSEE shall be without liability of the CITY, and the rentals and fees due hereunder shall be payable only to the effective date of such cancellation. Cancellation shall be effective upon delivery of possession of the Leased Premises to the CITY free and clear of all above ground improvements thereon belonging to LESSEE. The happening of any one of the following events shall constitute grounds for cancellation of this Lease Agreement by LESSEE: 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 in such manner as substantially to impair LESSEE'S use of the Leased Premises and the remaining in force of such injunction for at least thirty (30) days. 3. The breach by the CITY of any of the terms, covenants or conditions of this agreement to be kept, performed and observed by the CITY, and the failure of the CITY 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 same, of the operation, control or use of the Airport and its facilities in such a manner as substantially to restrict the LESSEE from operating said Fixed Base Operator facilities, if such restric- tion be continued for a period of ninety (90) days or more. D. CANCELLATION BY THE CITY. The CITY may cancel this Lease Agreement by giving written notice to LESSEE after the occurrence of any one of the events hereinafter described. Such cancellation of this Lease Agreement shall be effective ten (10) days after receipt by LESSEE of said written notice of cancella- tion. LESSEE shall be obligated to pay all rentals or fees accruing after such effective date of cancellation up to the time LESSEE surrenders possession of the Leased Premises to the CITY. 1. LESSEE is in arrears in the payment of the whole or any part of the rentals or fees agreed to be paid by LESSEE hereunder for a period of ten (10) days after receipt of written notice from the CITY that such payment is delinquent; or 2. LESSEE files in any court a petition for his adjudi- cation as a bankrupt or a petition is filed against LESSEE by another party for the purpose of obtaining his adjudication as a bankrupt, and LESSEE is there- after adjudicated as a bankrupt pursuant to such proceeding; or - 10 - 3. LESSEE makes a general assignment for the benefit of creditors; or 4. LESSEE is divested of his rights, power, and privileges under this Lease Agreement by operation of law; or 5. LESSEE abandons or discontinues the conduct and operation of the business of a Fixed Base Operator; or 6. LESSEE conducts any activity on the Leased Premises other than the activities described in Subparagraphs 3, 4 and 5 of Paragraph B of Article I of this Lease Agreement. 7. LESSEE cancels this Lease Agreement by giving notice of such cancellation to the CITY after the occurrence of an event described in Paragraph C of this Article, and LESSEE fails to deliver possession of the Leased Premises to the CITY within ninety (90) days after the date of receipt by the CITY of LESSEE'S notice of cancellation. 8. LESSEE defaults in the performance or observance of all of the covenants, conditions and terms contained in this Lease Agreement to be performed, kept, and observed by LESSEE, other than the payment of rentals and fees, the default of which is provided in subpara- graph 1 of this Paragraph D of Article VIII, and such default continues for a period of thirty (30) days after receipt of written notice from the CITY demanding that LESSEE cure such default in a manner satisfactory to the CITY. E. NO WAIVER OF RIGHTS BY CITY. The acceptance of rentals and fees by the CITY for any period or periods after a default of any of the terms, covenants, and conditions herein contained to be performed, kept and observed by LESSEE shall not be deemed a waiver of any rights on the part of the CITY to cancel this Lease Agreement for failure by LESSEE to so perform, keep or observe any of the terms, covenants or conditions hereof to be performed, kept and observed. No waiver by the CITY of any of the terms or conditions of this Lease Agreement to be kept, performed and observed by the LESSEE shall be construed to be or act as a waiver by the CITY or any subsequent default on the part of the LESSEE. F. LESSEE'S RIGHTS AND OBLIGATIONS UPON CANCELLATION BY CITY. Immediately after the effective date of the cancellation of this Lease Agreement by the CITY, LESSEE shall remove all equipment, goods and chattels belonging to LESSEE and situated on said Leased Premises. LESSEE shall have ninety (90) days after the effective date of cancellation of this Lease Agreement by the CITY to remove all improvements and fixtures owned by LESSEE and placed upon the Leased Premises. In the event of the failure on the part of LESSEE to remove from the premises all property owned by LESSEE as herein required, the CITY may effect such removal at LESSEE'S EXPENSE. LESSEE covenants and agrees to pay all reasonable costs of removal, attorney's fees, and all other expenses that are incurred by the CITY in enforcing the covenants and conditions contained in this Paragraph F. At the option of the CITY, the CITY may deem all property remaining on the Leased Premises at the expiration of the ninety (90) day period herein provided for the removal of such property to be abandoned property, and the CITY shall take title to all such abandoned property; however, LESSEE shall in no way be relieved of any obligation to pay any past due rentals or fees due hereunder by such action of the CITY in taking title to any such abandoned property. Upon expiration of said ninety (90) day period, the CITY shall.be entitled to take possession of the Leased Premises and all improvements or property remaining thereon without being deemed guilty of trespass. ARTICLE IX GENERAL PROVISIONS A. SECURITY VIOLATIONS. LESSEE agrees to abide by all laws of the United States and all regulations of the Department of Transportation, Federal Aviation Administration, governing Airport security. In the event that a violation of any Airport security regulation or law upon the Leased Premises or by act or omission of LESSEE or LESSEE'S agents, sublessees, employees or servants on the Airport results in a fine being levied against the CITY or the Airport, LESSEE agrees promptly to remit the full amount of said fine upon demand and proof of payment by CITY. B. SUBORDINATION OF LEASE AGREEMENT. This lease shall be subordinate to the provisions of any existing or future agreement between the CITY and the United States, relative to the operation and maintenance of the Airport, or which may be required as a condition precedent to the expenditure of Federal funds for the development of the Airport. C. PUBLIC BENEFIT. LESSEE agrees to operate the premises leased for the use and benefit of the public. 1. To furnish good, prompt and efficient services adequate to meet all the demands for such service at the airport. 2. To furnish said service on a fair, equal and nondiscrim- inatory basis to all users thereof, and 3. To charge fair, reasonable and nondiscriminatory prices for each unit of sale or service, provided that the LESSEE may be allowed to make reasonable and nondis- criminatory discounts, rebates or other similar type of price reductions to volume purchases. D. NONEXCLUSIVE RIGHTS. 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. E. DEVELOPMENT OF AIRPORT. LESSEE agrees that the CITY has the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of LESSEE, and without interference or hindrance. F. RIGHTS OF OTHERS. It is clearly understood by the LESSEE that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the airport from performing any services on its own aircraft with its own regular employees including, but not limited to, maintenance and repair that it may choose to perform. G. LAW GOVERNING AND VENUE. This Lease Agreement is entered into in the City of Lubbock, Lubbock County, Texas, and the laws of the State of Texas shall govern the validity, performance and enforcement of this Lease Agreement. Venue shall be in Lubbock County, Texas. H. SUCCESSORS AND ASSIGNS. All of the terms, covenants and agreements herein contained shall be binding upon and shall inure to the benefit of successors and assigns of the respective parties hereto. - 12 - I. WAIVER. One or more waivers of any covenant, term or condition of this Lease Agreement by either party hereto shall not be construed by any other party as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval of either shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar act. J. SEVERABILITY. Every provision of this Lease Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this Lease Agreement. K. ENTIRE AGREEMENT AND AMENDMENT. This Lease Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof, and no amendment, modifi- cation or alternation of the terms hereof shall be binding, unless the same be in writing, dated subsequent to the date hereof and duly executed by the parties hereto. L. CONTRACTUAL LIEN. LESSEE hereby expressly agrees that in the event of default by LESSEE hereunder, the CITY shall have a lien upon all buildings, improvements, goods, chattels, personal property or equipment of any description belonging to LESSEE which are placed upon or which become a part of the Leased Premises, as security for rentals and fees due hereunder and to become due for the remainder of the term of this Lease Agreement, which contractual lien shall not be in lieu of or in any way affect the statutory landlord's lien given by law, but which shall be cumulative thereto. LESSEE agrees to execute financing statements to be filed with the Secretary of State of the State of Texas and the County Clerk of Lubbock County, Texas, to perfect this contractual lien of the CITY. M. REMEDIES CUMULATIVE. All rights and remedies of the CITY herein enumerated shall be cumulative and none shall exclude any other right or remedy allowed by law. The exercise by the CITY of any remedy provided for herein or allowed by law shall not be to the exclusion of any other remedy. N. HOLDING OVER. In the event LESSEE remains in posses- sion of the Leased Premises after the expiration of the term of this Lease Agreement without any written renewal or extension of this Lease Agreement, such holding over, with or without the consent of the CITY, shall be treated as a tenancy from month to month under the same terms and conditions as set forth herein. Such tenancy shall be terminable by either the CITY or LESSEE by giving to the other party thirty (30) day written notice of such termination. ARTICLE X NOTICE Any required notice to the CITY provided for herein shall be deemed sufficient if sent by certified mail, return receipt requested and postage prepaid, to the Director of Aviation, Route 3, Box 389, Lubbock, Texas 79401, and any such notice to the LESSEE shall be deemed sufficient if sent in the same manner addressed to Gary L. McMillan, 1946 Avenue Q, Suite 200, Lubbock, Texas 79411 or such other addresses as may be designated by written notice given by the CITY or LESSEE to the other party hereto from time to time. The date of any notice provided for in this Lease Agreement shall be the date it is placed in the United States mail, properly addressed, with postage prepaid. LESSEE hereby designates Senator John T. Montford as his agent upon whom may be served any notice required hereunder at the address of Thompson & Thomas, P.O. Box 10113, Lubbock, Texas 79408. Any - 13 - notice served upon Senator Montford shall constitute good and sufficient notice to LESSEE hereunder. This Lease Agreement is executed in three counterparts, each of which shall have the force and effect of an original, on this 23rd day of February , by the CITY, acting by and through its Mayor hereunto duly authorized, and by Gary L. McMillan, acting in his individual capacity. LESSOR: THE CITY OF LU 0 K, T XAS ALAN HENRY, AYOR ATTEST: anet a Boyd, City Secretary APPROVED AS TO CONTENT: Alf Mar in Coffee, Director of Aviation APPROVED AS TO FORM: - , ZY/ Mic"le Hari, Assistant City Attorney LESSEE: GARY L. McMILLAN - 14 - { LUBBOCK INTERNATIONAL AIRPORT LUBBOCK) TEXAS INTEP.STATE 27 I EXHIBIT A IMBOCK INIT.RVATIONAL AIRPORT MIND USE DEVEI-0PM!:,:,Tf POLICIES I. GOAL, - In that the Lubbc)ck International Airport is the "front -door" to the City, Ixibbock shall strive to create and maintain, within the Airpr>rt and its adjacent environs, an image of quality development which reflects the pride and high standards of the entire community. Objectives 1. Coordination of building materials, building colors, and building styles, within designated sub -areas or districts within the airport. 2. Provide landscaping to compliment site development. 3. Maintain proper sign standards which are in scale with buildings. 4. Require proper site maintenance (weed and junk removal, maintenance of landscape, buildings, and signs) . 5. Provide proper screening of open storage areas. II. DEVIIAP,`,IE�'T MONITORING POLICY 1. All buildings, signs and structures shall be developed in accordance with the "Lubbock International Airport Development Standards and Policies", and shall require building permits from the City of bubtxx k. 2. All building and sign permits shall be routed through the Lubbock P.-ii.lding Inspection Department, to check for compliance with Bu.iwuzn�; Codes. 3. Permits will be checked by the Planning Department staff for compliance with "Lubbock International Airport Development Standards and Policies". The Planning Department will make comments to the Airport Board, Nebo will give final clearance for building permits. 4.1 The Building Inspection Department shall monitor construction for code compliance. 5. The Airport Staff shall monitor construction for policy compliance. 6. Lease agreements on the International Airport will incorporate or reference the Lubbock International Airport Development Standards and Policies, and will be subject to cancellation for non-compliance. III. LJBBOCK"INTERNATIONAL AIRPORT DISTRICT'S The Lubbock International Airport complex, shall be recognized as three basic districts: (see attached map) A. WEST AIRPORT DISTRICT Primary Concerns: (1) First -impression image of Lubbock by general aviation traffic, (2) Appearance of the International Airport as seen from I.H. 27, (3) Orderly development and identification of individual. businesses within the district. B. PASSENGER TERMINAL DISTRICT . Primary Concerns: (1) First -impression image of Lubbock by all enplaned corrry--rcial flight passengers, (2) Appearance of the passenger terminal area from Regis and from the Quirt Avenue entrance, (3) Orderly development and identification of individual businesses within the district. EXHIBIT B C. EAST AImurr DIS' icr r' .'� "` Pr ui��rV—Gc�ncC'.zls • (1) A o�-�Zr�nce Pi , as seen fry - n the passenger texmi.n:sl of th�� Intc.i-n,�t cm:il Ai.rpc)I•t, (2) ;�Lai_ntain an "industrial -'nal -k" 1ntC;'I'I1Rl1 Y. " (3) Or•dei`ly development and identification of iisdividual busine,.ses %ithin the. district. IV. DEj'ELOPIF�,I' STANTY-)AM (Pertain to all districts unless otherwise stated) 1. Yard requirements: Front: 20' frau interior streets, drives, or lease boundaries and 431 - frons any thoroughfare or expressway. Rear or side: 20, from any street or lease boundary. 2. Height limits: As established in the Airport Zoning Ordinance. 3. Offstreet parking: As guided by the Lubbock Zoning Ordinance and required by the Airport Board. 4. Landscaping: West Airport District: 576 of any lease lot facing onto a thoroughfare - or expressv,ay or access street to the tenni:: al building . Passenger Terminal District : 5 0 of any lease lot area facing onto a thoroughfare. East Airport District: There shall be no required landscaping: 5. Signs: Wall signs: West Airport District: 1M Maximum of each wall area facing a street and 1570 maximum of each wall area facing the air sides. Passenger Terminal District: 10% maximum of each wall area facing the street and 157o maximum of each wall area facing the air side; only for lots south of Bluefield Road. East Airport District: (Area "A") 1066 maximum of each wall,area facing a street and 1576 maximum of each wall area facing the air side. ( Area- "B")- 10;''0 -maximum ' of each wall area facing a street. Free Standing: Free-standing district identification and directory signs shall be at airport entry roads only and shall be of uniform size and letters of each airport tenant, as established by the Airport Board. (see attachment) Individual tenant signsshall not be permitted. Directional and Traffic Information Signs: Signs installed and controlled by the Airport giving directions, instructions or traffic information shall be permitte Auxiliary Signs: Signs for pricing, credit cards, etc, which are attached to a building wall and not exceeding a total of 10 sq. ft. Illunin.ation: only cx)n.,;ta.nt-illumLn;tt:ion signs of b�cklighting�,, :';.i ;iiting -' is permitted. Floodlighting design shall be approv.-,d by the Airport Board. 6. Building raterial and style: West Airport District, Passenger Terminal District, East Airport District (Area "A"): Exterior building material may include brick, stone, concrete block, precase exposed aggregated concrete, metal or a combination thereof. Building colors must be specified. on the building plans and should corrpliment-the exteriors of the terminal buildings. Front walls of metal buildings �facine) thoroughfares or expressways shall have an ex-terio-n composition of not less than 30% of wood, brick,. stucco, aggregate stone, natural stone or glass (exclusive of doors and uindows). East Airport District (Area "B"): Exterior building.material may include brick, stone, concrete block, precast exposed aggregate concrete,. metal or a canbination thereof. Building colors. must be specified on the building plans and should compliment the exteriors of the terminal buildings. 7. Outside Storage: West Airport District, Passenger Terminal District, East Airport DisT-nett, (Area. "A") : All outside storage areas shall be screened by a per�?;.inc_nt six-foot fence of brick, wood or a combination thereof, unless Nvaived by the Airport Board. Material shall not be stacked above the height of the fence. East Airport District (Area 'B"): All outside storage areas shall be screened by a permanent six-foot fence of brick, wood or a combination thereof, unless waived by the Airport Board. Material shall not be stacked above the height of the fence, for any parcel fronting on Avenue H or Bluefield Road. 8. Ma.intenance: All buildings, structures, signs, landscaping or vacant land areas shall be kept in a good state of repair and maintenance at all times. 9. Permitted Uses: West Airport District: Permitted uses shall include light commercial retail, service comrercial, offices and general aviation facilities. Passenger Terminal District: Permitted uses shall include light comrercial retail, light service camnerical, professional offices, general aviation, and commercial aviation facilities. East Airport District (Area "A"): Permitted uses shall include light comnercial retail, service corn;.se-rcial, offices and general aviation facilities. (Area "B"): Permitted uses shall include comrnrcial, light industrial, and heavy industrial.