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HomeMy WebLinkAboutContract 35504 CITY SECRETARY CONTRACT NO. FORT WORTH MEACHAM INTERNATIONAL AIRPORT TANK FARM LEASE AND PUBLIC FUELING AGREEMENT (FUEL FARM SITE NO.1) This TANK FARM LEASE AND PUBLIC FUELING AGREEMENT ("Lease") is made and entered into by and between the CITY OF FORT WORTH ("Lessor"), a home rule municipal corporation organized under the laws of the State of Texas, acting by and through Marc Ott, its duly authorized Assistant City Manager, and ATLANTIC AVIATION ("Lessee"), acting by and through 4t Aliehael-Simmaag,41egieual ageF of Atlantic Aviation. J. Calvin Miller , Chief Financial Officer k Recitals The following statements are true and correct and foul'the basis upon which Lessor and Lessee have entered into this Lease. A. Lessor and Fort Worth Jet Center, Inc. previously entered into City Secretary Contract ("CSC")No. 21582, as subsequently amended by CSC No. 24182, a lease of a fuel farm at Fort Worth Meacham International Airport ("Airport") known as Fuel Farm Site No. 1 and all improvements thereon (the "Previous Lease"). Under CSC No. 27507, Lessor consented to the assignment of the Previous Lease by Fort Worth Jet Center, Inc.to Lessee. The Previous Lease commenced on January 1, 1996 and was to expire on September 11, 2011 or earlier, as provided in the Previous Lease, unless renewed for one additional five (5)-year term by Lessee. B. Under CSC No. 24858, the City consented to Lessee's execution with Texas Bank Brownwood of a deed of trust lien on improvements owned by Lessee and located on Fuel Farm Site No. 1. Lessee now wishes to reorganize its financing on all improvements owned by Lessee on Lessee's Airport leasehold by entering into a new loan with another lending institution and executing new deed of trust lien agreements with that institution. In order to amortize this new loan, Lessee has requested that the term of all of Lessee's leases be extended to expire in thirty(30)years, or 2032. C. Lessor's published Minimum Standards for Fixed Base Operators and Other Airport Tenants prohibit the lease of property owned by Lessor for initial terms greater than thirty (30)years. As a result, the term of the Previous Lease cannot be amended to expire in 2032 because such action would result in an aggregate term in excess of thirty (30) years. Therefore, Lessor and Lessee have agreed to terminate the Previous Lease and to enter into a new lease of the same property for a term of approximately, but not more than,thirty(30)years. (REMAINDER OF PAGE LEFT BLANK INTENTIONALLY) Agreement In consideration of the mutual covenants, promises and obligations contained herein, Lessor and Lessee agree as follows: 1. TERMINATION OF PREVIOUS LEASE. The Previous Lease, City Secretary Contract No. 28388, is hereby terminated contemporaneously with the execution of this Lease. However, such termination shall not constitute (i) a release by one party of any liability accruing or obligation to indemnify under the Previous Lease or(ii) a waiver of one party to enforce any unperformed duties or obligations of the other under the Previous Lease. Section 16 of the Previous Lease shall specifically, but without limitation, survive termination of the Previous Lease. 2. PROPERTY LEASED. Lessor hereby demises and leases to Lessee 3,600 square feet of improved property at the Airport, including the fuel farm identified as Fuel Farm Site No. 1, as depicted on Exhibit "A",attached hereto and hereby made a part of this Lease for all purposes(the "Premises"). 3. TERM OF LEASE. The "Term" of this Lease shall commence upon execution by both parties ("Effective Date") and expire at 11:59 P.M. on July 31, 2032, unless terminated earlier as provided herein. If Lessee holds over after the expiration of the Term, this action will create a month-to-month tenancy. In this event, for and during the holdover period, Lessee agrees to pay all applicable rentals, fees and charges at the rates provided by the Schedule of Rates and Charges or similarly published schedule in effect at the time. 4. RENT,FEES AND OTHER CHARGES. 4.1. Initial Monthly Rent for Premises. From the Effective Date until September 30, 2007 Lessee shall pay Lessor as rent for the Premises the sum of$353.25 per month. Prior to or on the Effective Date of this Lease, Lessee shall pay one (1) month's rent in advance. Monthly rent payments are due on or before the first (1st) day of each month. Payments must be received during normal working hours by such date at the location for Lessor's Revenue Office set forth in Section 20. Rent shall be considered past due if Lessor has not received full payment after the tenth (loth) day of the month for which payment is due. Without limiting Lessor's termination rights as provided by this Lease, Lessor will assess a late penalty charge of ten percent (10%) per month on the entire balance of any overdue rent that Lessee may accrue. 4.2. Annual Adiustments. Rent for the Premises as provided by Section 4.1 may be increased by Lessor on October 1, 2007, and on October 1 of any subsequent year during Term, to reflect the upward percentage change, if any, in the Consumer Price Index for the Dallas/Fort Worth Metropolitan Area, as announced by the United States Department of Labor or successor index and/or agency ("CPI Change") (i), for the first increase, since the Effective Date of this Lease and (ii) for each subsequent increase, since the effective date of the last increase ("Annual Rent Adjustment"); provided, however, that Lessee's rental rate shall not exceed the then-current rates prescribed by the Schedule of Rates and Charges for the type or types of property at the Airport similar to the type or types of property that comprise the Premises. If there is no CPI Change or the CPI Change is downward, the rental rate for the Premises shall remain constant until the following October 1st. In no event shall the rental rate for the Premises ever be adjusted downward. 4.3. Five-Year Adjustments. In addition to the Annual Rent Adjustments, on October 1, 2012, and every five (5)years thereafter for the remainder of the Term (i.e. on October 1 of 2017, 2022 and 2027), rent shall automatically be adjusted to equal the then-current rates prescribed by the Schedule of Rates and Charges for fuel farms at the Airport. 4.4. Fuel Flowage Fees. As consideration for the privilege allowed Lessee by Lessor to dispense aircraft fuels at the Airport, Lessee shall pay Lessor fuel flowage fees based on the number of gallons of fuel delivered to the Premises annually and calculated in accordance with the Schedule of Rates and Charges in effect at the time. By way of example, as of the Effective Date of this Lease, fuel flowage fees for the period between the Effective Date of this Lease and September 30, 2007 shall be calculated as follows: 0-1,000,000 gallons =$0.118/gallon 1,000,001-1,500,000 =$0.096/gallon 1,500,001-2,000,000 =$0.064/gallon over 2,000,000 gallons = $0.054/gallon In other words, between the Effective Date and September 30, 2007, for the first one million(1,000,000) gallons of fuel delivered to the Premises, Lessee shall pay Lessor a fuel flowage fee of$0.118 per gallon. Thereafter, Lessee shall pay Lessor $0.096 per gallon until the time 1,500,000 gallons of fuel have been delivered to the Premises; thereafter, Lessee shall pay Lessor $0.064 per gallon until the time 2,000,000 gallons of fuel have been delivered to the Premises; thereafter, Lessee shall pay Lessor $0.054 for each gallon of fuel delivered to the Premises. Thereafter, fuel flowage fees shall be measured and calculated as of October 1 of each year,beginning October 1, 2007, during the Term in accordance with the Schedule of Rates and Charges in effect at the time. Payments of the fuel flowage fees are due and payable on the tenth (loth) day of each month succeeding that in which aircraft fuels were delivered to the Premises. Payments must be received during normal working hours by such date at the location for Lessor's Aviation Department set forth in Section 20. This fee shall be considered past due if Lessor has not received full payment after the fifteenth(15th) day of that month. Lessor will assess a late penalty charge of ten percent (10%) per month on top of the entire month's fee for each month in which a fee is past due. .;u 4.5. Annual Nature and Adiustments of Fuel Flowage Fees. The fuel flowage fee rate scale is based on the number of gallons of fuel delivered to the Premises annually. Therefore,upon execution of this Agreement, Lessee shall pay a fuel flowage fee payment of$0.118 per gallon, and the above calculations will begin anew through the following September 30th; provided, however, that the City Council may, in its discretion, adjust fuel flowage fees and rate scales for all providers of Fixed Base Operator ("FBO") services at the Airport, as may be set forth in the Schedule of Rates and Charges, in which case the adjusted rates shall be applied. 4.6. Other Fees and Charges. Lessee agrees to pay all other fees and charges stipulated in the Lessor's published Minimum Standards for Fixed Base Operators and Other Airport Tenants ("Minimum Standards") as they exist or may hereafter be amended and as they apply to the specific operations of Lessee. The Minimum Standards is a public document adopted by the City Council on June 16, 1992,on file and available for public inspection in the City Secretary's Office, and incorporated herein by reference for all purposes. 5. REPORTS AND AUDITS. Lessee shall keep true and accurate books reflecting all fuel deliveries to the Premises. Lessee shall furnish monthly fuel delivery reports and fuel sales reports to the Aviation Department Director or authorized representative (the "Director"). Within thirty (30) days following the end of Lessor's fiscal year, Lessee shall submit to Lessor a detailed statement of the total number of gallons of fuel delivered to the Premises.This statement shall be prepared at Lessee's sole cost and expense by an independent Certified Public Accountant satisfactory to Lessor. Any adjustment to the fuel flowage fee payments made during the preceding fiscal year shall be made at this time. At any time during the Term of this Lease,Lessor shall have the right to authorize an audit of Lessee's records as they pertain to its fueling operations at the Airport. These audits shall be prepared at Lessor's expense by an independent Certified Public Accountant selected by Lessor. 6. NE NIMUM STANDARDS. Unless otherwise specifically provided herein, all terms, conditions and covenants of Lessee's FBO Permit, as may subsequently be amended, shall apply in full force and effect to this Lease for the duration of the Term. Lessee covenants and agrees that as an FBO it will,at all times, comply with the Minimum Standards. Lessee further agrees that as a condition precedent to the effectiveness of this Lease, it will for the duration of the Term comply with the requirements for dispensers of public aircraft fuels set forth in Article II of the Minimum Standards.If Lessee wishes to be exempt from any specific requirements of the Minimum Standards, Lessee must first submit a written request to and receive written approval from the Director and receive the consent of the City Council. Any such exemptions granted to Lessee are or shall be specifically set forth in Exhibit "B", attached hereto and hereby made a part of this Lease for all purposes. Lessee's failure to otherwise abide by the Minimum Standards shall result in the immediate termination by Lessor of this Lease. 7. UTILITIES. Lessee, at Lessee's sole cost and expense, shall be responsible for the installation and use of all utilities service to all portions of the Premises and for all other related utilities expenses, including, but not limited to, deposits and expenses required for the installation of meters. Lessee further covenants and agrees to pay all costs and expenses for any extension, installation, maintenance or repair of any and all utilities serving the Premises, including, but not limited to, water, sanitary sewer,electric, gas and telephone utilities. 8. MAINTENANCE AND REPAIRS. 8.1. General Maintenance and Repairs by Lessee. Lessee agrees to keep and maintain the Premises in a good, clean and sanitary condition at all times. Lessee covenants and agrees that it will not make or suffer any waste of the Premises. Lessee, at Lessee's sole cost and expense, will make all repairs necessary to prevent the deterioration in condition or value of the Premises, including,but not limited to,the maintenance of and repairs to all aircraft fuel storage tanks and other structures,facilities,equipment, appurtenances and pavement on the Premises. Lessee,at Lessee's sole cost and expense, shall promptly make any changes, modifications or improvements to the Premises as they become necessary, subject to prior written approval from Lessor and in accordance with all applicable federal, state and local laws or regulations. Lessee shall be responsible for all damages caused by Lessee, its agents, servants, employees, contractors, subcontractors, licensees or invitees, and Lessee agrees to fully repair all such damages at Lessee's sole cost and expense. Lessee agrees that, except as otherwise expressly provided herein, all improvements, trade fixtures, furnishings, equipment and other personal property of every kind or description which may at any time be on the Premises shall be at Lessee's sole risk or at the sole risk of those claiming under Lessee. Lessor shall not be liable for any damage to such property or loss suffered by Lessee's business or business operations, which may be caused by the bursting, overflowing or leaking of sewer or steam pipes, from water from any source whatsoever, or from any heating fixtures, plumbing fixtures,electric wires,noise,gas or odors,or from causes of any other matter. 8.2. Inspection. Lessor shall have the right and privilege, through its officers, agents, servants and/or employees, to inspect the Premises at any time during normal business hours. Lessor shall have the right to perform any and all duties or obligations that Lessor is authorized or required to do under the terms of this Lease or to perform its governmental duties under federal, state or local rules,regulations and laws. Lessee will permit the Fire Marshal of the City of Fort Worth or authorized designees to inspect the Premises at any time during normal business hours, and Lessee will comply with all recommendations made to Lessee by the Fire Marshal or authorized designee to bring the Premises into compliance with Fire Code and Building Code provisions, as such provisions exist or may hereafter be added or amended. Lessee shall maintain in a proper condition accessible fire extinguishers of a number and type approved by fire underwriters for the particular hazard involved. Lessor shall provide Lessee with advance notice of inspection when reasonable under the circumstances. Notwithstanding anything to the contrary in this Section 8.3, Lessor shall have the right to inspect the Premises at any time and for any purpose in the event of an emergency. 8.3. Performance. If Lessee is responsible under this Lease for any maintenance or repairs, Lessor shall notify Lessee in writing. Lessee agrees to undertake such maintenance or repair work diligently within thirty (30) calendar days following receipt of such notice. If Lessee fails to undertake the recommended maintenance or repairs within this time, Lessor may, in its discretion, undertake such maintenance or repairs on behalf of Lessee. In this event, Lessee will reimburse Lessor for the cost of the maintenance or repairs, and such reimbursement will be due on the date of Lessee's next monthly rent payment following completion of the maintenance or repairs. 8.4. Environmental Remediation. Lessee agrees that it has inspected the Premises and is fully advised of its own rights without reliance upon any representation made by Lessor concerning the environmental condition of the premises. LESSEE, AT ITS SOLE COST AND EXPENSE, AGREES THAT IT SHALL BE FULLY RESPONSIBLE FOR THE REMEDIATION OF ANY VIOLATION OF ANY APPLICABLE FEDERAL, STATE OR LOCAL ENVIRONMENTAL REGULATIONS OR STANDARDS THAT IS CAUSED BY LESSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR INVITEES. Lessor shall be responsible for the remediation of any violation of any applicable federal, state or local environmental regulations that is caused by Lessor, its officers, agents, servants or employees. For any violation of any applicable federal, state or local environmental regulations that is caused by a contractor of Lessor (other than Lessee), a subcontractor, prior tenant or other third party, Lessor shall be responsible for the remediation of the same or shall take all necessary steps to ensure that the person or entity causing such violation remediates the same. 8.5. Lessee's Acceptance of Premises. Lessee accepts the Premises in its present condition as satisfactory for all purposes set forth in this Lease. 9. DAMAGE OR DESTRUCTION TO PREMISES. In the event of fire or other casualty which damages or destroys all or any part of the Premises, the following provisions shall apply: 9.1. Coverage by Lessee's Insurance. Lessee's property insurance, as required by Section 15.1 of this Lease, shall be primary to any insurance on the Premises carried by Lessor and shall be used exclusively to repair or rebuild the damaged or destroyed portions of the Premises. Lessee shall be responsible for oversight of all repairs or reconstruction on and to the Premises and shall repair or rebuild the damaged or destroyed portions of the Premises to the size and standards that meet or exceed the size and standards of such portions of the Premises prior to the damage or destruction. All repair and reconstruction activities carried out by or on behalf of Lessee shall be conducted in accordance with Sections 11.2 through 11.6 of this Lease. 9.2. Premises Uninsured or Underinsured by Lessee. If Lessee fails to carry adequate property insurance in accordance with Section 15.1 of this Lease, Lessor, at Lessor's sole option, may (i) terminate this Lease upon thirty (30) days' advance written notice to Lessee or (ii) repair or rebuild the Premises substantially to its former condition at Lessor's own cost and expense. If Lessor notifies Lessee in writing within thirty(30) days following the date of damage or destruction that Lessor intends to undertake the necessary repairs or reconstruction, and the damage or destruction does not render the affected portion of the Premises untenable, this Lease shall continue in effect without any rent abatement whatsoever so long as Lessor diligently commences the repairs or reconstruction within one hundred eighty (180) days from the date of the damage or destruction. If the damage or destruction does render the affected portion of the Premises temporarily untenable, or Lessor does not commence the repairs or reconstruction within one hundred eighty (180) days from the date of the damage or destruction, then for the period of time between such date and the date a certificate of occupancy is issued for the portion of the Premises that was rendered untenable,rent shall be proportionally reduced by the amount of square footage rendered untenable. Upon the issuance of a certificate of occupancy and thereafter, rent shall comply with the Schedule of Rates and Charges in effect at the time as they apply to the Premises as improved by Lessor. 10. CONSTRUCTION AND IMPROVEMENTS. 10.1 In General. Lessee may, at its sole discretion, perform modifications, renovations or improvements on or to the Premises (collectively, "Improvements") so long as it first submits all plans, specifications and estimates for the costs of the proposed work in writing and also requests and receives in writing approval from the Director.Lessee covenants and agrees that it shall fully comply with all provisions of this Section 11 in the undertaking of any such Improvements. Lessor shall take full title to any Improvements on the Premises upon the expiration or earlier termination of this Lease. 10.2. Process for Approval of Plans. Lessee's plans for Improvements shall conform to the Airport's architectural standards and must also receive written approval from Lessor's Departments of Development, Engineering and Transportation/Public Works. All plans, specifications and work shall conform to all federal, state and local laws, ordinances, rules and regulations in force at the time that the plans are presented for review. 10.3. Documents. Lessee shall supply the Director with comprehensive sets of documentation relative to any Improvement, including, at a minimum, as-built drawings of each project. As-built drawings shall be new drawings or redline changes to drawings previously provided to the Director. Lessee shall supply the textual documentation in computer format as requested by Lessor. 10.4. Bonds Required of Lessee. Prior to the commencement of any Improvements, Lessee shall deliver to Lessor a bond, executed by a corporate surety in accordance with Texas Government Code, Chapter 2253, as amended, in the full amount of each construction contract or project. The bonds shall guarantee (i) satisfactory compliance by Lessee with all requirements, terms and conditions of this Lease, including, but not limited to, the satisfactory, completion of the respective Improvements, and (ii) full payments to all persons, firms, corporations or other entities with whom Lessee has a direct relationship for the performance of such Improvements. In lieu of the required bond, Lessee may provide Lessor with a cash deposit or an assignment of a certificate of deposit in an amount equal to 125% of the full amount of each construction contract or project. If Lessee makes a cash deposit, Lessee shall not be entitled to any interest earned thereon. Certificates of deposit shall be from a financial institution in the Dallas-Fort Worth Metropolitan Area which is insured by the Federal Deposit Insurance Corporation and acceptable to Lessor. The interest earned on the certificate of deposit shall be the property of Lessee and Lessor shall have no rights in such interest. If Lessee fails to complete the Improvements, or if claims are filed by third parties on grounds relating to such Improvements, Lessor shall be entitled to draw down the full amount of Lessee's cash deposit or certificate of deposit. 10.5. Bonds Required of Lessee's Contractors. Prior to the commencement of any Improvements, Lessee's respective contractor shall execute and deliver to Lessee surety performance and payment bonds in accordance with the Texas Government Code, Chapter 2253, as amended, to cover the costs of all work performed under such contractor's contract for such Improvements. Lessee shall provide Lessor with copies of such bonds prior to the commencement of such Improvements. The bonds shall guarantee (i) the faithful performance and completion of all construction work in accordance with the final plans and specifications as approved by Lessor and (ii) full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of the construction contract. Such bonds shall name to both Lessor and Lessee as dual obligees. If Lessee serves as its own contractor, Section 11.4 shall apply. 10.6. Releases by Lessor Upon Completion of Construction Work. Lessor will allow Lessee a dollar-for-dollar reimbursement from its cash deposit account or reduction of its claim upon Lessor's certificate of deposit upon (i), where Lessee serves as its own contractor, verification that Lessee has completed construction work or (ii), where Lessee uses a contractor, receipt of the contractor's invoice and verification that the contractor has completed its work and released Lessee to the extent of Lessee's payment for such work, including bills paid, affidavits and waivers of liens. 11. USE OF PREMISES. Lessee agrees that it will use the Premises for the sole purpose of aircraft fuel storage and that it will not store such fuel or receive deliveries of such fuel at any location at the Airport other than the Premises and any other sites at the Airport that Lessee may lease exclusively. Lessee may also sell and dispense such items on (i) the public use transient apron and (ii) at hangars and on other aprons at the Airport, subject to permission from the respective parties in control of those properties.Lessee shall not in any manner sell or dispense fuel on the Premises. 12. SIGNS. Lessee shall not erect or maintain on the Premises any signs or billboards except those that, without advertising Lessee's operations at the Airport, identify the fuel stored on the Premises. All signs permitted by this Lease shall be subject to prior written approval by the Director as to placement, appearance, construction and conformity with applicable laws, ordinances,rules and regulations, 13. RIGHTS AND RESERVATIONS OF LESSOR Lessor hereby retains the following rights and reservations: 13.1. Lessee's rights hereunder shall be subject to all existing and future utility easements and rights-of-way granted by Lessor for the installation, maintenance, inspection,repair or removal of facilities owned or operated by electric, gas, water, sewer, communication or other utility companies. Lessee's rights additionally shall be subject to all rights granted by all ordinances or statutes which allow such utility companies to use publicly owned property for the provision of utility services. 13.2. All fixtures and items permanently attached to any structure on the Premises belong to Lessor, and any additions or alterations made thereon shall immediately become the property of Lessor. 13.3. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, including, but not limited to, the right to prevent Lessee from erecting or permitting to be erected any building or other structure which, in the opinion of Lessor, would limit the usefulness of the Airport, constitute a hazard to aircraft or diminish the capability of existing or future avigational or navigational aids used at the Airport. 13.4. Lessor reserves the right to close temporarily the Airport or any of its facilities for maintenance, improvements, safety or security of either the Airport or the public, or for any other cause deemed necessary by Lessor. In this event, Lessor shall in no way be liable for any damages asserted by Lessee, including,but not limited to, damages from an alleged disruption of Lessee's business operations. 13.5. This Lease shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States Government which relates to the operation or maintenance of the Airport and is required as a condition for the expenditure of federal funds for the development, maintenance or repair of Airport infrastructure. 13.6. During any war or national emergency, Lessor shall have the right to lease any part of the Airport, including its landing area,to the United States Government. In this event, any provisions of this instrument which are inconsistent with the provisions of the lease to the Government shall be suspended. Lessor shall not be liable for any loss or damages alleged by Lessee as a result of this action. However, nothing in this Lease shall prevent Lessee from pursuing any rights it may have for reimbursement from the United States Government. 13.7. Lessor covenants and agrees that during the term of this Lease it will operate and maintain the Airport and its facilities as a public airport consistent with and pursuant to the Sponsor's Assurances given by Lessor to the United States Government through the Federal Airport Act, a public document which is on file in Lessor's City Secretary's Office and which is incorporated herein by reference for all purposes. Lessee agrees that this Lease and Lessee's rights and privileges hereunder shall be subordinate to the Sponsor's Assurances. 14. INSURANCE. 14.1. Types of Coverage and Limits. Lessee shall procure and maintain at all times, in full force and effect, a policy or policies of insurance as specified in this Section 15, naming the City of Fort Worth as an additional insured and covering all risks related to the leasing, use, occupancy, maintenance, existence or location of the Premises. Lessee shall obtain the following insurance coverage at the limits specified herein: • Property: Fire and Extended Coverage on all improvements on the Premises at full replacement cost limit; • Commercial General Liability: $3,000,000 per occurrence, including products and completed operations; • Automobile Liability: $1,000,000 per accident, including, but not limited to, coverage on any automobile used in Lessee's operations on the Premises; • Environmental Impairment Liability: $1,000,000 per occurrence. In addition, Lessee shall be responsible for all insurance to construction, improvements, modifications or renovations to the Premises and for personal property of its own or in its care,custody or control. 14.2. Adiustments to Required Coverage and Limits. Insurance requirements, including additional types of coverage and increased limits on existing coverages, are subject to change at Lessor's option and as necessary to cover Lessee's operations at the Airport. Lessee will accordingly comply with such new requirements within thirty(30)days following notice to Lessee. 14.3. Certificates. As a condition precedent to the effectiveness of this Lease,Lessee shall furnish Lessor with appropriate certificates of insurance signed by the respective insurance companies as proof that it has obtained the types and amounts of insurance coverage required herein. Lessee hereby covenants and agrees that not less than thirty(30)days prior to the expiration of any insurance policy required hereunder, it shall provide Lessor with a new or renewal certificate of insurance. In addition, Lessee shall, at Lessor's request, provide Lessor with evidence that it has maintained such coverage in full force and effect. 14.4. Additional Requirements. Lessee shall maintain its insurance with underwriters authorized to do business in the State of Texas and which are satisfactory to Lessor. The policy or policies of insurance shall be endorsed to cover all of Lessee's operations at the Airport and to provide that no material changes in coverage,including,but not limited to,cancellation,termination,non-renewal or amendment, shall be made without thirty(30)days'prior written notice to Lessor. 15. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Lessee shall operate as an independent contractor as to all rights and privileges granted herein, and not as an agent, representative or employee of Lessor. Lessee shall have the exclusive right to control the details of its operations and activities on the Premises and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees and invitees. Lessee acknowledges that the doctrine of respondeat superior shall not apply as between Lessor and Lessee, its officers, agents,employees,contractors and subcontractors. Lessee further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between Lessor and Lessee. 16. LIABILITY AND INDEMNMCATION. LESSEE SHALL BE LIABLE AND RESPONSIBLE FOR ANY CLAIMS, DEMANDS, LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT OR WILLFUL ACT(S) OR OMISSION(S) OF LESSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND/OR SUBLESSEES. IN ADDITION, LESSEE, AT LESSEE'S OWN EXPENSE, SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LESSOR, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES,FROM AND AGAINST ANY CLAIM, LAWSUIT OR OTHER ACTION FOR DAMAGES OF ANY KIND,INCLUDING, BUT NOT LIMITED TO,PR OPER TY DAMA GE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO LESSEE'S BUSINESS AND ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT OR WILLFUL ACT(S) OR OMISSIONS) OF LESSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND/OR SUBLESSEES. LESSOR DOES NOT GUARANTEE POLICE PROTECTION TO LESSEE OR ITS PROPERTY. LESSOR IS OBLIGATED ONLY TO PROVIDE SECURITY ADEQUATE TO MAINTAIN LESSOR'S CERTIFICATION UNDER FAA REGULATIONS LESSEE SHALL COMPLY WITH ALL APPLICABLE REGULATIONS OF THE FAA PERTAINING TO AIRPORT SECURITY ON THE PREMISES WHICH IS RELATED TO LESSEE'S OPERATIONS THEREON AND SHALL COOPERATE WITH LESSOR IN THE IMPLEMENTATION AND ENFORCEMENT OF LESSOR'S SECURITY PLAN AT THE AIRPORT. LESSEE SHALL PAY ALL FINES IMPOSED BY THE FAA ON LESSOR OR LESSEE RESULTING FROM LESSEE'S FAILURE TO COMPLY WITH SUCH FAA REGULATIONS APPLICABLE TO THE PREMISES OR TO PREVENT UNAUTHORIZED PERSONS OR PARTIES FROM THEIR OBTAINING ACCESS TO THE AIR OPERATIONS AREA OF THE AIRPORT FROM THE PREMISES. 17. WAIVER OF CHARITABLE IMMUNITY OR EXEMPTION. If Lessee, as a charitable association, corporation, partnership, individual enterprise or entity, claims immunity to or an exemption from liability for any kind of property damage or personal damage, injury or death, Lessee hereby expressly waives its rights to plead defensively any such immunity or exemption as against Lessor. 18. DEFAULT AND REMEDIES. 18.1. Failure by Lessee to Pay Rent,Fees or Other Charles. If Lessee fails to pay any rent, fees or other charges due under this Lease, Lessor shall deliver to Lessee a written invoice and notice to pay the invoice within ten (10) calendar days. If Lessee fails to pay the balance outstanding within such time, Lessor shall have the right to terminate this Lease immediately. 18.2. Failure to Have or Maintain FBO Certification. If Lessee's FBO Permit is lawfully revoked or not renewed, Lessor shall have the right to terminate this Lease immediately upon provision of written notice to Lessee. 18.3. Failure to Comply with Other Terms or Conditions. If Lessee breaches or defaults under any provision of this Lease, other than those breaches or defaults that are addressed by Sections 19.1 and 19.2, Lessor shall deliver written notice to Lessee specifying the nature of such breach or default. Lessee shall have thirty(30) calendar days following such written notice to cure, adjust or correct the problem to the standard existing prior to the breach. If Lessee fails to cure the breach or default within such time period, Lessor shall have the right to terminate this Lease immediately; provided, however, that in the event such breach or default cannot reasonably be cured within thirty (30) calendar days following such written notice, Lessee shall not be in default if Lessee commences to cure, adjust or correct the problem within such thirty (30) day period and thereafter diligently and in good faith pursues such cure,adjustment or correction to conclusion. 18.4. Rights of Lessor Upon Termination or Expiration. Upon termination or expiration of this Lease, all rights, powers and privileges granted to Lessee hereunder shall cease and Lessee shall vacate the Premises. Within twenty(20) days following the effective date of termination or expiration, Lessee shall remove from the Premises all trade fixtures, tools, machinery, equipment, materials and supplies placed on the Premises by Lessee pursuant to this Lease. After such time,Lessor shall have the right to take full possession of the Premises,by force if necessary, and to remove any and all parties and property remaining on any part of the Premises. Lessee agrees that it will assert no claim of any kind against Lessor, its agents, servants, employees or representatives, which may stem from Lessor's termination of this Lease or any act incident to Lessor's assertion of its right to terminate or Lessor's exercise of any rights granted hereunder. 19. NOTICES. Notices required pursuant to the provisions of this Lease shall be conclusively determined to have been delivered when(i)hand-delivered to the other party,its agents,employees, servants or representatives, or(ii)deposited in the United States Mail, postage prepaid, addressed as follows: To LESSOR: For Rent: For All Other Matters: City of Fort Worth City of Fort Worth Aviation Department Aviation Department 4201 N. Main St Ste200 4201 N.Main St. Ste. 200 Fort Worth TX 76106 Fort Worth TX 76106 To LESSEE: ATLANTIC AVIATION 201 Aviation Way HGR 11N Fort Worth,Texas 76106 20. ASSIGNMENT AND SUBLETTING. 20.1. In General. Lessee shall not assign, sell,convey,sublease or transfer any of its rights,privileges,duties or interests granted by this Lease without the advance written consent of Lessor, which consent shall not be unreasonably withheld or delayed. 20.2. Conditions of Approved Assignments and Subleases. If Lessor consents to any assignment or sublease, all terms, covenants and agreements set forth in this Lease shall apply to the assignee or sublessee, and such assignee or sublessee shall be bound by the terms and conditions of this Lease the same as if it had originally executed this Lease.The failure or refusal of Lessor to approve a requested assignment or sublease shall not relieve Lessee of its obligations hereunder, including payment of rentals, fees and charges. 21. LIENS. 21.1. Liens by Lessee. Lessee acknowledges that it has no authority to engage in any act or to make any contract which may create or be the foundation for any lien upon the property or interest in the property of Lessor.If any such purported lien is created or filed, Lessee, at its sole cost and expense, shall liquidate and discharge the same within thirty(30) days of such creation or filing. Lessee's failure to discharge any such purported lien shall constitute a breach of this Lease and Lessor may terminate this Lease upon thirty (30) days' written notice. However, Lessee's financial obligation to Lessor to liquidate and discharge such lien shall continue in effect following termination of this Lease and until such a time as the lien is discharged 21.2. Landlord's Lien. INADDITION TO ANYAPPLICABLE STATUTORYLANDLORD'S LIEN,LESSEE GRANTS TO LESSOR, IN ORDER TO SECURE PERFORMANCE BY LESSEE OF ITS OBLIGATIONS UNDER THIS LEASE, A SECURITY INTEREST IN ALL GOODS, INVENTORY, EQUIPMENT, FIXTURES, FURNITURE, IMPROVEMENTS, CHATTEL PAPER, ACCOUNTS AND GENERAL INTANGIBLES, AND OTHER PERSONAL PROPERTY OF LESSEE NOW OR HEREAFTER SITUATED ON OR IN THE PREMISES OR OTHERWISE RELATING TO LESSEE'S USE OF THE PREMISES, AND ALL PROCEEDS THEREFROM (THE "COLLATERAL'). IF LESSOR TERMINATES THIS LEASE FOR A FAIL URE BY LESSEE TO PAY LESSOR RENT OR FOR ANY OTHER BREACH OR DEFAULT BY LESSOR, LESSOR MAY, IN ADDITION TO ALL OTHER REMEDIES, WITHOUT NOTICE OR DEMAND EXCEPT AS PROVIDED BELOW, EXERCISE THE RIGHTS AFFORDED A SECURED PARTY UNDER THE TEXAS UNIFORM COMMERCIAL CODE ("UCC). IN CONNECTION WITH ANY PUBLIC OR PRIVATE SALE UNDER THE UCC, LESSOR SHALL GIVE LESSEE FIVE (5) CALENDAR DAYS'PRIOR WRITTEN NOTICE OF THE TIME AND PLACE OF ANYPUBLIC SALE OF THE COLLATERAL OR OF THE TIME AFTER WHICH ANY PRIVATE SALE OR OTHER INTENDED DISPOSITION THEREOF IS TO BE MADE, WHICH IS AGREED TO BE A REASONABLE NOTICE OF SUCH SALE OR DISPOSITION 22. TAXES AND ASSESSMENTS. Lessee agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Lessee due to Lessee's use or occupancy of the Premises or any improvements or property placed on the Premises by Lessee as a result of its occupancy. Lessee also agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Lessor due to Lessee's use or occupancy of the Premises or property placed on the Premises by Lessee as a result of its occupancy, including,but not limited to,any improvements constructed by or on behalf of Lessee. 23. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Lessee covenants and agrees that it shall not engage in any unlawful use of the Premises. Lessee further agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees or invitees to engage in any unlawful use of the Premises and Lessee immediately shall remove from the Premises any person engaging in such unlawful activities.Unlawful use of the Premises by Lessee itself shall constitute an immediate breach of this Lease. Lessee agrees to comply with all federal, state and local laws; all ordinances, rules and regulations of Lessor; all rules and regulations established by the Director; and all rules and regulations adopted by the City Council pertaining to the conduct required at airports owned and operated by Lessor, as such laws, ordinances, rules and regulations exist or may hereafter be amended or adopted. If Lessor notifies Lessee or any of its officers, agents, employees,contractors, subcontractors, licensees or invitees of any violation of such laws, ordinances, rules or regulations, Lessee shall immediately desist from and correct the violation. 24. NON-DISCRIMINATION COVENANT. Lessee, for itself, its personal representatives, successors in interest and assigns, as part of the consideration herein, agrees as a covenant running with the land that no person shall be excluded from participation in or denied the benefits of Lessee's use of the Premises on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. Lessee further agrees for itself, its personal representatives, successors in interest and assigns that no person shall be excluded from the provision of any services on or in the construction of any improvements or alterations to the Premises on grounds of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. Lessee agrees to furnish its accommodations and to price its goods and services on a fair and equal basis to all persons. In addition, Lessee covenants and agrees that it will at all times comply with any requirements imposed by or pursuant to Title 49 of the Code of Federal Regulations, Part 21, Non- Discrimination in Federally Assisted Programs of the Department of Transportation and with any amendments to this regulation which may hereafter be enacted. If any claim arises from an alleged violation of this non-discrimination covenant by Lessee, its personal representatives, successors in interest or assigns, Lessee agrees to indemnify Lessor and hold Lessor harmless. 25. LICENSES AND PERMITS. Lessee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for the operation of its operations at the Airport. 26. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Lease, Lessor does not waive or surrender any of its governmental powers. 27. NO WAIVER The failure of either parry to insist upon the performance of any term or provision of this Lease or to exercise any right granted herein shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 28. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Lease or of Lessee's operations on the Premises and/or the Airport, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. This Lease shall be construed in accordance with the laws of the State of Texas. 29. SEVERABILITY. If any provision of this Lease shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 30. FORCE MAJEURE. Lessor and Lessee shall exercise every reasonable effort to meet their respective obligations as set forth in this Lease, but shall not be held liable for any delay in or omission of performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, fiats, material or labor restrictions, transportation problems and/or any other cause beyond the reasonable control of Lessor or Lessee. 31. HEADINGS NOT CONTROLLING. Headings and titles used in this Lease are for reference purposes only and shall not be deemed a part of this Lease. 32. ENTIRETY OF AGREEMENT. This written instrument, including any documents attached hereto or incorporated herein by reference, contains the entire understanding and agreement between Lessor and Lessee, its assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provisions of this Lease. The terms and conditions of this Lease shall not be amended unless agreed to in writing by both parties and approved by the City Council of Lessor. IN W T S WHEREOF, the parties hereto have executed this Lease in multiples, this day of 2007. [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] CITY OF FORT WORTH: ATLANTIC AVIATION: By: - By• C. ., Marc i hael-Simmaag- J. Calvin Miller Assistant City Manager i%ages- Chief Financial O f f i c 4 ATTEST: ATTEST: By: )[� By: Marty Hendri City Secretary APPKO V- AS T- FORM AND LEGALITY: By: Benita F.Harper Assistant City Attorney M&C Ci- 11%kC1 yl ll 1 ,0-1 STATE OF TEXAS § COUNTY OF § J. Calvin Miller , Chief Financial Office BEFORE ME, the undersigned au ty, a Notary Public in and for the State of Texas, on this day personally appeared Afiehael-Sun g al Umagm sfAtlaxitiaA-Aationrthe sole Gexeml-Par#r of Atlantic Aviation,known to me to be the person whose name is subscribed to the foregoing instrument,and acknowledLed to me that the same was the act of Atlantic Aviation and that he executed the same as the act of Atla ><�, o Ilt hI Jkp s a AL O consideration therein expressed and in the capacity therein stated. '° P. = Notary Public,State of Texas " My Commission Expires Se tember 23 2007 r OFFICE this�day of �►1� 2007. STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Marc Ott, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in,the capacity therein stated. - 44 GIVEN UND`Y R MY HAND AND SEAL OF OFFICE this .3 day of 2007. rxt' kl Y��N � �' ' + HETTIE LANE MY COMMISSION EXPIRES Z � July 26,2007 No City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 4/17/2007 DATE: Tuesday, April 17, 2007 LOG NAME: 55TRAJEN NAME REFERENCE NO.: **C-22069 SUBJECT: Authorize the Execution of a Public Fueling Agreement and Fixed Base Operator Permit with Atlantic Aviation, Currently d/b/a Trajen FBO Network, and Contemporaneously Terminate the Existing Public Fueling Agreement and Fixed Base Operator Permit at Fort Worth Meacham International Airport RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Public Fueling Agreement and Fixed Base Operator (FBO) Permit with Atlantic Aviation, currently d/b/a Trajen FBO Network, and contemporaneously terminate the existing Public Fueling Agreement and FBO Permit at Fort Worth Meacham International Airport. DISCUSSION: On April 18, 2006, Trajen FBO Network was acquired through a 100 percent stock transaction by Atlantic Aviation. The transaction included the acquisition of the FBO located at Fort Worth Meacham International Airport. Since that date Atlantic Aviation has been operating the FBO at Fort Worth Meacham International Airport and doing business as Trajen FBO Network. On December 14, 2006, staff received a request from Mr. Michael Simmang, Regional Manager for Atlantic Aviation, requesting a name change be granted from Trajen FBO Network to Atlantic Aviation to reflect the new Atlantic Aviation identity. Atlantic Aviation then proposes to continue to conduct FBO operations at Fort Worth Meacham International Airport. Staff has no objections to Mr. Simmang's request and will insure that all terms and conditions follow standard City and Aviation Department policies. Fort Worth Meacham International Airport is located in COUNCIL DISTRICT 2. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers Submitted for City Manager's Office by Marc Ott (8476) Originating Department Head: Angie Highland (5402) Additional Information Contact: Angie Highland (5402) Logname: 55TP AJEN NAME Page 1 of 1