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HomeMy WebLinkAboutResolution - 2134 - Lease Agreement - Berry Enterprises - Land, LIA - 09/12/1985MH:cl Resolution #21344 September 12, 1985 Agenda Item #27 RFSnI IITTnNI 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 between the City of Lubbock and John Berry d/b/a Berry Enterprises, for land at the 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 12th day of September __, 1985. Zil L TEX HENRY, AOR ATTEST: Ranette Boyd, City Secretary APPROVED AS TO CONTENT: — Marvin Coffee, Director o viation APPROVED AS TO FORM: Miche Hart, Assistant City Attorney This resolution shall take effect and be in force from and after its passage. PASSED AND APPROVED THIS 12th DAY OF SEPTEMB 85. Henry, yor o44A41 ATTEST: Ra nette 136y -d, City Secretary APPROVE,p AS TO CONTENT: Larry Hof an, Dire I; Transportation APPROVED AS TO -FORM: - Jdthr Ross, Jr., City Attorney Resolution #2134 THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § LEASE AGREEMENT THIS AGREEMENT entered into by the City of Lubbock, a Home Rule Municipality of Lubbock County, Texas, acting through the Lubbock International Airport Board and John Berry dba Berry's Enterprises of Lubbock County, Texas. ARTICLE ONE LEASED OF DESCRIBED PREMISES The City of Lubbock, (referred to the "City"), upon the mutual execution of this Agreement, does lease to John Berry dba Berry Enterprises, a sole proprietorship, (referred to as "Lessee"), the following premises located at the Lubbock Inter- national Airport, (referred to as the "Airport"), in Lubbock County, Texas: 45,000 square feet of land. A description of these locations is shown on the attached and incorporated "Exhibit A". TERM The term of this Lease shall be for twenty (20) years, beginning August 1, 1985, and terminating July 31, 2005. ARTICLE THREE USE OF PREMISES The Lessee is granted for the stated terms, a nonexclusive privilege of conducting T -Hangar rental service from the leased premises and for no other purpose. ARTICLE FOUR RENTALS, RECORDS, AUDIT AND PLACE OF PAYMENT A. RENTAL - The Lessee shall pay to the City as annual rental, 7.7 cents per square foot adjusted annually by the Consumer Price Index. 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 rent due hereunder. The first payment shall be due July 31, 1990. B. Lessee agrees that the rental rate will be adjusted upward or downward for each ensuing year at the beginning of the year on the anniversary date and will be in direct propor- tion to the fluctuation in the U. S. Department of Labor, Bureau of Labor Statistics Cost of Living Index (C.P.I.). For the purpose of computing all adjustments, the Bureau of Labor Statistics Cost of Living Index as of January 1985 shall be construed as the base period. C. RECORDS - The Lessee will provide the City a list of tenants subleasing from Lessee and will promptly notify City of changes so that the list is current. D. PAYMENT - All payments that become due and payable by the Lessee shall be made to the City of Lubbock at the office of Director of Aviation, Lubbock International Airport, Lubbock, Texas, or as specified by the City Secretary. OBLIGATIONS OF THE CITY A. CLEAR TITLE - The City covenants and agrees that until the granting and delivery of this Lease, it is well seized of the leased premises and has good title, free and clear of all liens and encumbrances having priority over this Lease; and that the City has full right and authority to lease the premises described in the Contract. B. MAINTENANCE OF AIRPORT - The City covenants and agrees that it will during the period of this Contract operate and maintain the Airport as a public facility consistent with and pursuant to the Sponsor's Assurances given by the City of Lubbock to the United States Government under the Federal Airport Act. C. CONDITION AND MAINTENANCE OF PREMISES - The City shall assume no responsibility as to the condition of the leased premises and shall not assume responsibility for mainte- nance, upkeep or repair necessary to keep the premises in a safe and serviceable condition. - 2 - The City shall maintain roads, which may be relocated, on the Airport access to the leased premises in a good and adequate condition for use by cars and trucks and shall maintain free and uninterrupted access to the leased premises over the roads at all times. ARTICLE SIX OBLIGATIONS OF LESSEE A. NET LEASE - This Lease shall be without cost to the City for the development, maintenance and improvement of the leased premises. It shall be the sole responsibility of the Lessee to keep, maintain, repair and operate the entirety of the leased premises and all improvements and facilities placed on the leased premises at Lessee's sole cost and expense. B. PRIVILEGES AND CONDITIONS - The City grants to the Lessee the following general privileges, uses and rights, all of which are subject to the nonexclusive on the Airport: 1. The right of ingress to and egress from the leased premises over and across common or public roadways serving the Airport for Lessee, its agents and em- ployees, patrons and invitees, suppliers or service and furnishers of materials. The rights granted being subject to such ordinances, rules and regulations, existing or later promulgated. 2. Lessee agrees to maintain the doors as necessary for safe and operable operation as required at no expense to the City. 3. Lessee agrees to terminate this Agreement upon thirty (30) days notice if it is deemed by the Airport Board that the hangars leased herein need to be removed from the Airport site in order to provide for development of the Airport. - 3 - 4. Lessee agrees that it will not engage nor permit the engagement of any persons on the premises here leased, in any business other than that which is expressly authorized herein. 5. Lessee agrees that it will not permit the storage of gasoline, oil, paint, dope or any other flammables in facilities leased herein and that no smoking or open flame will be permitted. It is also understood that Lessee will not permit itself or any person or firm to use leased facilities for any purpose other than for storage of aircraft or uses authorized by Director of Aviation and in no way shall any commercial operation of any nature be permitted. It will be the responsibility of the Lessee to insure that all Lessees of the T -Hangars will comply with all rules, regula- tions, policies, and security procedures. C. MAINTENANCE - The Lessee accepts the leased premises in their present condition and shall, at its sole cost and expense, maintain the leased premises, buildings, improve- ments and appurtenances, in a neat and attractive condition consistent with good business practice and equal appearance and character to similar improvements of like buildings on the Airport. The color of the buildings shall match or be compatible with executive hangars. New metal siding and roof shall be put on all buildings by December 31, 1985. The Lessee shall repair all damage to the leased premises or City owned property caused by its employees, patrons or its operations upon the Airport. The City shall be the sole judge of the quality of maintenance and upon written notice from the Director of Aviation, the Lessee shall be required to perform such maintenance as the City deems necessary. Failure by Lessee to comply within thirty (30) days follow- ing receipt of the written notice from the Director of - 4 - Aviation shall give the City the right to enter upon the leased premises and perform the necessary maintenance, the cost of which shall be borne by the Lessee. D. PROPERTY PERMANENTLY AFFIXED TO PREMISES - Any property belonging to Lessee which becomes permanently attached to the premises, shall become the property of the City upon termination of this Contract whether upon expiration of the primary term or earlier under any provision of this Lease Agreement. Determination by the City Attorney as to whether an item has been "permanently attached" shall be final. E. REMOVAL OF LESSEE'S PROPERTY - The Lessee shall have the right, within fifteen (15) days after the termination of this Contract, whether such termination comes upon expira- tion of the primary term or otherwise under any provision of this Contract, to remove from the premises all of its furniture, fixtures, equipment and furnishings which have not become the property of the City and it shall have the duty to restore the premises to their original condition, normal wear and tear alone excepted, provided the City shall have a lien on all of Lessee's property to secure any unpaid rental or other charge due the City, and the right of removing Lessee's property is made upon the condition that all amounts due and owing the City have been paid in full by the Lessee. Property left on the premises after thirty (30) days from the date of termination of the Contract, no renewal agreement having been executed, shall be deemed abandoned and will become the property of the City and may be disposed of as the City sees fit, without liability to account to the Lessee for the proceeds of sale; and provided that the City, at its option, may charge rent from termina- tion of the Contract through the day of final removal of the property or of notification to the Lessee of the abandonment of the property and the taking of the City, as the case may - 5 - be, which rent shall not be less than the fixed rent or minimum guarantee required to be paid by the Lessee to the City. F. SUBORDINATION OF LIEN - Any person or firm holding a lien against any property to be used or installed by Lessee upon the leased premises shall execute a subordination agreement with the City, subordinating the lien against any item to the City's lien to secure payment of all amounts due the City under this Contract. The Lessee shall file a copy of each subordination agreement with the Director of Aviation. G. RATES - The Lessee agrees to charge fair, reasonable and nondiscriminatory rates and charges for the rental of T -Hangar units. Rates to be charged by Lessee for each unit will have been previously reviewed and approved by the Airport Board and the Director of Aviation. H. ADVERTISING - The Lessee will erect no signs and will distribute no advertising matter on the Airport without the prior written consent of the Director of Aviation. I. UTILITIES - The Lessee shall. assume and pay for all costs or charges for metered utility services furnished Lessee during the term hereof; provided that Lessee shall have the right to connect to any storm and sanitary sewers and water and utility outlets, the cost of extension, installation and meters, where required, to be borne by the Lessee. J. PAYMENT OF TAXES, FEES - The Lessee shall pay all federal, state and local government taxes, license fees, assessments and occupation taxes levied on the business conducted on the leased premises, or on any Lessee's property used in connection therewith. The Lessee shall render for taxation purposes all property used in connection with the business on the Airport, and that all such property shall have it situs and domicile in Lubbock, Lubbock County, Texas. Delinquency in payment of such obligations, at the option of the City shall be cause for termination of this Lease. - 6 - K. REGULATIONS - the Lessee's officers, agents, employees and servants will obey all airport rules and regulations which may be promulgated by the City or its authorized agents in charge of the Airport, or by other lawful authority, to insure the safe and orderly conduct of operations and traffic on the Airport. L. PROHIBITION OF SUBLEASES AND ASSIGNMENTS - The Lessee will not, directly or indirectly assign, sublet, sell, hypothe- cate or otherwise transfer this Lease or any portion to the leased premises, without the prior written consent of the City. M. REMOVAL OF TRASH - Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage and other refuse caused as a result of the operation of its business at its sole expense. N. INDEMNIFICATION AND INSURANCE 1. The City shall stand indemnified by the Lessee as provided by this Contract. The Lessee shall be deemed to be an independent contractor and operator, responsi- ble to all parties for its acts and omissions, and the City shall in no way be responsible therefor. In the use of the Airport generally, or the leased premises specifically, in the exercise or enjoyment of the privileges granted by this Contract, the Lessee shall indemnify and save harmless the City Airport Board or its representatives from any and all losses that may proximately result to the City because of negligence on the part of the Lessee, its agents or employees or invitees and shall indemnify the City against any and all claims, demands, suits, judgments and losses whatsoever. - 7 - 2. The Lessee shall maintain at all times, at its sole expense, insurance with an insurance underwriter acceptable to the City and authorized to do business in the State of Texas, against claims of public liability and property damage resulting from Lessee's business activities at the Airport. The amount of insurance coverage shall be not less than FIFTY THOUSAND DOLLARS ($50,000) for property damage as a result of any one event; or less than ONE HUNDRED THOUSAND DOLLARS ($100,000) for personal injury or death of any one person in any one event; or less than THREE HUNDRED THOUSAND ($300,000) for personal injury or death of two or more persons in any one event. Certificates of insurance or other satisfactory evidence shall be filed with the Director of Aviation prior to entry upon the premises by the Lessee. Each policy shall name the City as an additional insured as its interest may appear. Each policy shall also provide, "It is agreed that insurer shall notify the Director of Aviation of the City of Lubbock, Texas, of any alteration, renewal or cancellation of this policy and that this policy shall remain in full force and effect until ten (10) days after such notice is received by the Director of Aviation." This above referenced insurance coverage must also include Hangar Keepers Liability coverage. The Lessee shall procure insurance from a company authorized to do business in the State of Texas and keep in force Hazard and Extended Coverage Insurance upon the buildings herein leased 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. - 8 - The Lessee shall provide workmen's compensation insurance to meet statutory requirements, if qualified. The workmen's compensation policy shall provide employers' liability insurance in the amount of ONE HUNDRED THOUSAND DOLLARS ($100,000). 0. WAGES - The Lessee shall pay, or require the payment of, the prevailing rate of wages for each craft or workman employed by it, or by persons or firms engaged by it, for any alteration of premises or installation, maintenance or repair of vehicles, fixtures, equipment and furnishings, used in its operations, as required by ordinances enacted pursuant to Article 5159a, V.A.C.S., as amended or as may be amended. The ordinances and statute and amendments thereto, are incorporated herein by reference for all purposes. P. CONDUCT AND APPEARANCE OF EMPLOYEES - Any employee in Lessee's operations that may be deemed to be discourteous or objectionable on reasonable grounds shall be removed from employment on the premises upon demand by City. City likewise reserves the right to eject any objectionable person or persons, including LESSEE'S EMPLOYEES from said premises, and upon the exercise of this authority through City's agents or employees, Lessee hereby waives any right and all claims for damage against City or any of its agents, officials or employees. Q. LIENS PROHIBITED - The Lessee shall not bind, or attempt to bind, City for payment of any money in connection with con- struction, repairing, alterations, additions or reconstruc- tion work on the premises and it shall not permit any mechanic's, materialman's or contractor's liens to arise against the premises or improvements thereon or any equip- ment, machinery and fixtures therein belonging to the City, and Lessee expressly agrees it will keep and save the premises and the City harmless from all costs and damages - 9 - resulting from any liens or lien of any character created or that may be asserted through any act or thing done by the Lessee. In the event any mechanic's or other liens or orders for payment shall be filed against the premises or improvements thereon, or the City -owned property located therein, during the term hereof, 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 the City, at Lessee's sole cost and expense, any action, suit or proceeding which may be brought thereon or for the enforcement of such lien or order. Failure of the Lessee to comply with any requirement of this section or paragraph shall be cause for immediate termina- tion of this Contract by the City. R. NONDISCRIMINATION PRACTICES - Lessee, its agents and employees will not discriminate against any person or class of persons by reason of sex, age, race, color, creed 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 the Federal Aviation Regulations. The Lessee further agrees to comply with such enforcement procedures as the United States might demand that the City take in order to comply with the Sponsor's Assurances. Lessee agrees to not discriminate against any employee or applicant for employment because of sex, age, race, creed, color or national origin. The Lessee agrees to take affirmative action to insure that applicants are employees, and that employees are tested during employment without regard to their sex, age, race, creed, color 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. �Im The Lessee will conduct its programs and operate its facilities so as to 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, in any activity at the Airport. ARTICLE SEVEN TERMINATION, CANCELLATION A. TERMINATION - This Lease shall terminate at the end of the full term hereof and Lessee shall have no further right or interest in any of the lands or improvements hereby demised, except as provided in Article Six. B. CANCELLATION BY LESSEE - This Lease shall be subject to cancellation by Lessee after the happening of one of more of the following events: 1. The permanent abandonment of the Airport as an air terminal. 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport, or any substantial part or parts thereof, in such a manner as substantially to restrict Lessee for a period of at least ninety (90) days from operating thereon. 3. Issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use and operation of the Airport, and the remaining in force of such injunction for a period of at least ninety (90) days. 4. The default by the City in the performance of any covenant or agreement herein required to be performed by the City and the failure of the City to remedy such default for a period of sixty (60) days after receipt from Lessee of written notice to remedy the same. Lessee may exercise such right of termination by thirty (30) days written notice to the City at any time after the lapse of the applicable periods of time and this Lease shall terminate as of that date. Rental due hereunder shall be payable only to the effective date of said termination. C. CITY'S OPTION TO CANCEL - The City can cancel this Lease giving Lessee sixty (60) days written notice, upon or after the happening of any one of the following events: 1. The filing of a voluntary petition in bankruptcy by Lessee. 2. The institution of proceedings in bankruptcy against Lessee, unless such proceedings are vacated within sixty (60) days after initiation thereof. 3. The taking by the court of jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any reorganization act, unless such proceedings are vacated within sixty (60) days after initiation thereof. 4. The appointment of a receiver of Lessee's assets, unless such proceedings are vacated within sixty (60) days after initiation thereof. 5. Any assignment of Lessee's assets for the benefit of creditors. 6. The taking of Lessee's leasehold interest by execution or other process by law. 7. The divestiture of Lessee's estate herein by other operation of law. 8. The default by Lessee in the performance of any covenant or agreement herein contained and the failure of Lessee to remedy such default within thirty (30) days after receipt from the City of written notice to remedy same. - 12 - No waiver of default by the City of any of the obliga- tions to be performed by Lessee shall be construed to be or act as a waiver of any subsequent default. Acceptance of rental by the City for any period or periods after default by Lessee of any of Lessee's obligations hereunder shall not be deemed a waiver by the City of its right to cancel this Lease for such default. ARTICLE EIGHT GENERAL A. TIME OF EMERGENCY - During time of war or national emer- gency, the City shall have the right to lease the landing area or any part thereof to the United States for government use, and if any such Lease is executed, the provisions of this instrument, insofar as they are inconsistent with provisions of the Lease to the Government, shall be sus- pended. B. SPONSOR'S ASSURANCE SUBORDINATION - This Lease shall be subordinate to the provisions of any existing or future agreement between the City and the United States relative to the operation and maintenance of the Airport, the execution which has been or may be required as a condition precedent to the expenditure of Federal Funds for the development of the Airport. Should the effect of such agreement with the United States be to take any of the property under lease or substantially destroy the commercial value of such improve- ments, the City shall not be held liable therefor. C. REPLACEMENT AFTER DAMAGE - It is agreed between the parties here that, in the event said building is damaged by fire or other accidental cause during the term hereof so as to become totally or partially untenantable, the Lessee will restore the premises to their former condition. - 13 - D. CONFLICT OF INTEREST - The Lessee acknowledges that it is informed that Texas prohibits contracts between the City and its "officers" and "employees," and that the prohibition extends to an officer and employee of City agencies such as City owned utilities and certain City boards and commis- sions, and to contracts with any partnership, corporation or other organization in which the officer or employee has an interest. Lessee certifies (and this Contract is made in reliance thereon) that neither it nor any person having an interest in this Contract is an officer or employee of City or any of its agencies. E. LANDLORD'S LIEN - Lessee hereby gives to the City a lien upon all of its property, now or at any time hereafter placed in or upon the said premises, to secure the prompt payment of the charges herein stipulated to be paid for the use of said premises, all exemptions of such property, or any of it, being hereby waived. F. RIGHT OF INSPECTION - The City reserves the right to conduct inspections, at reasonable times of the leased premises to insure that fire, safety, and sanitation regulations and other provisions contained in this Lease are being adhered to by the Lessee. G. HEADINGS - Paragraph headings contained herein are for convenience in reference and are not intended to define, extend or limit the scope of any provisions of this Agree- ment. H. NOTICES - Notices to the City required or appropriate under this Contract shall be deemed sufficient if in writing and mailed, registered or certified mail, postage prepaid, ad- dressed to the Director of Aviation, Lubbock International Airport, Route 3, Box 201, Lubbock, Texas 79401. Notices to the Lessee shall be deemed sufficient if in writing and - 14 - r mailed, registered or certified mail, postage prepaid, addressed to the Lessee at the address on file with the Director of Aviation. I. ENTIRE AGREEMENT - This Contract constitutes the entire agreement, and any other written or parole agreement with City being expressly waived by Lessee. EXECUTED this 12th day of September , 1985. LESSOR: THE CITY OF LUBBOCK BY: ALA HENRY, MAYOR ATTEST: Ranett�e Boyd City Secretary APPROVED AS TO CONTENT: Marvin Coffee fa Director of Aviation APPROVED AS TO FORM: Mi ele Hart Assistant City Attorney LESSEE: JOHN BERRY DBA BERRY'S ELATE PROES B ATTEST: Ccf.��� Title: - 15 - P E -w yam. 51 L