HomeMy WebLinkAboutContract 31763 CITY sECRETARY
CONTRACT NO.
FORT WORTH MEACHAM INTERNATIONAL AIRPORT
TANK FARM LEASE AND PUBLIC FUELING AGREEMENT
FUEL FARM
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 PHAERO, L.L.C., ('Lessee'), a Texas
Corporation,acting by and through Gary W.Havener,its duly authorized Managing Partner.
In consideration of the mutual covenants,promises and obligations contained herein,Lessor
and Lessee agree as follows:
1. PROPERTY LEASED.
Pursuant to City Secretary Contract("CSC")No.30199,Lessor and Lessee have previously
entered into a lease of unimproved ground space with mandatory improvements for the following
property at Fort Worth Meacham International Airport ("Airport") attached as Exhibit "A" and
hereby made a part of this Lease for all purposes herein.
2. TERM OF LEASE.
2.1. Initial
al Term.
The "Initial Term' of this Lease shall commence on the date of execution
("Effective Date") and expire at 11:59 P.M. on September 30, 2034, unless terminated
earlier as provided herein.
2.2 Ren ewals.
Unless Lessee is in default under this Lease at the time, at Lessee's option, this
Lease shall automatically renew for subsequent terms of five (5) years each (each a
"Renewal Teein")at rental rates for comparable property at the Airport, as specified by the
Aviation Department's published Schedule of Rates and Charges ("Schedule of Rates and
Charges")in effect at the time;provided,however,that,notwithstanding anything that may
be construed to the contrary herein, this Lease may not be renewed for any term past
September 30,2044.
2.3. Holes
If Lessee holds over after the expiration of the Initial Term or any Renewal Term,
this action will create a month-to-month tenancy. In this event,for and during the holdover
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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.
3, RENT,FEES AND OTHER CHARGES.
3.1. Annual Rent for Premises.
Lessee shall pay Lessor$.21 per square foot for the improved property surrounding
the fuel farm, or, collectively, $28.00 per month. Prior to or on the Effective Date of this
Lease,Lessee shall pay one (1) month in advance. Monthly 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 19. Payment
shall be considered past due if Lessor has not received full payment after the tenth (10th)
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 amount that Lessee may accrue.
3.2. Annual Adiustinents.
The rental rates set forth in Section 3.1 shall be subject to increase by Lessor on
October 1, 2005, and on October 1 of any year during the Initial Term or a Renewal Term
(other than on the effective date of any Renewal Term, in which case, as provided in
Section 3.1, the rental rates shall be adjusted to equal the then-current rates prescribed by
the Schedule of Rates and Charges) 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 during the
immediately preceding twelve-month period ("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
ist. In no event shall the rental rate for the Premises ever be adjusted downward.
3.3. 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 and calculated in accordance with the Schedule of
Rates and Charges in effect at the time of the calculation. By way of example, as of the
Effective Date of this Agreement, fuel flowage fees for the period between the Effective
Date of this Agreement and September 30,2005 shall be calculated as follows:
0-1,000,000 gallons(annually) _ $0.118/gallon
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1,000,001-1,500,000 gallons(annually) = $0.096/gallon
1,500,001-2,000,000 gallons(annually) = $0.064/gallon
Over 2,000,000 gallons(annually) = $0.054/gallon
In other words,between the Effective Date and September 30,2005,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.
Payments of the fuel flowage fees are due and payable on the tenth (10th) 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 19. 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.
3.4. Annual Nature and Adiustments AFuel Flowage Fees.
The fuel flowage fee rate scale is based on the number of gallons of fuel delivered to
the Premises annually.Therefore,on October 1,2005,Lessee will resume 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
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.
3.5. 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.
4. 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 (collectively, the "Director"). Within thirty (30) days
following the end of Lessor's fiscal year,Lessee shall submit to Lessor a detailed statement of the
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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 Agreement, the City 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.
5. N61NE%1UM STANDARDS.
Unless otherwise specifically provided herein, all terms, conditions and covenants of
Lessee's FBO Permit as may subsequently be amended, which is attached as Exhibit `B,"
incorporated herein and made a part of this agreement for all purposes, shall apply in full force and
effect to this Agreement for the duration of the Initial Term and. any Renewal Term. Lessee
covenants and agrees that as an FBO it will, at all times, comply with the Minimum Standards.
Lessee's failure to otherwise abide by the Minimum Standards shall result in the immediate
termination by Lessor of this Agreement.
6. DEv••
Lessee has remitted to Lessor a fuel flowage fee deposit (°'Deposit") in the amount of
$500.00. If Lessee's payment of a fuel flowage fee to Lessor is at any time delinquent for more than
fifteen (15) calendar days, Lessor may draw upon such Deposit to secure the payment due. The
amount of the Deposit is subject to increase at any time as reasonably determined by the Director,
provided that no such increase shall cause the Deposit to exceed the sum of Lessee's actual fuel
flowage fee payments to Lessor for the immediately preceding two (2) months. Within thirty(30)
days following any such determination,Lessee shall increase its bond or provide Lessor with a cash
deposit in the amount of the difference between the current Deposit and the higher Deposit.
7. UTILITIE5•
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
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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. Insneetion.
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.
5.3. 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
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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 14.1 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 10.2 through 10.6 of this Lease.
9.2. Premises Uninsured or Underinsured by Lessee.
If Lessee fails to carry adequate property insurance in accordance with Section 14.1
of this Lease, Lessor, at Lessor's sole option, may (i) terminate this Lease upon thirty (30)
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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. In other words, if
'Lessee was paying an unimproved ground rate and, pursuant to this Section 9.2, Lessor
repaired or rebuilt an aircraft hangar originally constructed by Lessee, then the subsequent
rental rate would not be that for unimproved land, but rather that which applied to similar
hangar space at the Airport at the time.
10. CONSTRUCTION AND 1WROVElViENTS.
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 10 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, provided that trade fixtures shall
remain the property of Lessee and may be removed so long as Lessee repairs any damage
caused thereby.
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.
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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 Improvement, 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 construction 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 respective 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 and apply the proceeds to complete the
Improvem�:nts or satisfy the claims,provided that any balance shall be remitted to Lessee.
10.5. Bonds Required of Lessee's Contractors.
Prior to the commencement of any Improvement, 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 10.4
shall apply.
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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(collectively
the "Leased Premises"). 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 Fuel Farm.
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. 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.
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13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
11.1. 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 11, 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,
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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. Adjustments to IBeguired Coverage and Limits.
Insurance requirements, including additional types of coverage and increased limits
on existing coverages, are subject to change at Lessor's option if Lessor's risk manager
reasonably determines that additional coverage or increased limits are 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.
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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. LIABILITIES AND INIDEMVMCATION.
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. INADDITION,
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, PROPERTY DAMAGE 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 ACTS) OR
OMISSION(S) 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.
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 12 of 20
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 Charges.
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 lawfully not renewed, Lessor shall
have the right to terminate this Lease immediately upon provision of written notice to
Lessee.
18.3. Failure to Comely 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 Section 3,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. Ri"hts 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
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 13 of 20
assert no claim of any kind against Lessor, its agents, servants, employees or
representatives, which may stem from Lessor's lawful 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 excluding such acts of Lessor's negligence which cause direct damages
to Lessee.
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
Revenue Office Aviation Department
1000 Throckmorton 4201 N.Main St. Ste.200
Fort Worth TX 76102 Fort Worth TX 76106
To LESSEE:
Brian Perryman or Gary Havener
Phaero LLC
4701 N. Main Street P 0 Box 121969
Fort Worth, Texas 76106 Fort Worth,Texas 76121
20. ASSIGNMENTS AND SUIBLETTING.
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.
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 14 of 20
21. LEENS.
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.
IN ADDITION TO ANY APPLICABLE STATUTORY LANDLORDS LIEN,
LESSEE GRANTS TO LESSOR, IN ORDER TO SECURE PERFORMANCE BY
LESSEE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, 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
AGREEMENT FOR A FAILURE 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 ANY PUBLIC 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.
Upon Lessor's advance written consent, which shall not be unreasonably withheld or
delayed, Lessor's security interest in the Collateral may be subordinated to a third party
lender if the lender demands such subordination as a condition of financing Improvements
undertaken by or on behalf of Lessee.
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
Tank Farm Lease and Public Fueling Agreement with
Phaero,LL.C.
Page 15 of 20
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,the Mandatory Improvements and any Discretionary Improvements.
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-DISCREWNATION 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.
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 16 of 20
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 party 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 TURISDICTION.
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, 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, riots, material or labor restrictions, transportation
problems and/or any other cause beyond the reasonable control of Lessor or Lessee.
31. READINGS 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
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 17 of 20
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.
[Signature Page Follows]
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 18 of 20
IN WITNESS WHEREOF,the parties hereto have executed this Lease in multiples,this
day of _,2005.
CITY OF FORT WORTH: PHAERO L.L.C.:
By: By: %L
Marc Ott Gary Havener
Assistant City Manager Managing Partner
ATTEST: ATTEST:
By:
City Secretary
APPROVED AS TO FORM AND LEGALITY:
c1 r
Assistant City ttomey
M&C: C-20056 5/4/04
OPICIAL RECORD
My MCNE Y
Tank Farm Lease and Public Fueling Agreement with (� a•�
Phaero,L.L.C. FT. .WORS, Mo
Page 19 of 20
STATE OF TEXAS §
COUNTY OF 7KQ"a eat — §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Gary Havener, Managing Partner of Phaero,L.L.C.,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 Phaero,L.L.C., and that he executed the same as the act of Phaero,L.L.C.,
for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this.AC& day of ,
7005.
Notary Public in and for the State of Texas
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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 3�� day of 717
2005. —'
i
Notary Public in and for the State of Texas
MY
HETTIE LADE
MY COMMISSION EXPIRES.
July 26,2007
Tank Farm Lease and Public Fueling Agreement with
Phaero,L.L.C.
Page 20 of 20
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Exhibit "B"
FORT WORTH ARACHAM U1'I` MATZONAL AIRPORT
FMD BASE OPERATOR PERMIT
1• Ibis F=M BASE OPERATOR PElit4= ("PerjWt") is issued by the City of Fort Worth
Aviation Department ("Department") to Phaero, L.L.C., ("Permittee"). This per Rut ho r ites
Permittee and its employees to provide Fixed Rase Operator(,PRO")services at Fort Worth Meacham .
International Airport only. Permittee may not contract with a third party-to provide FBO services at the
Airport. This Permit may not be assigned to any other individual or entity•without the prior written consent
of the Director of,the Deportment. '
2. This Permit shall be in effect from November 1, 2004 through September 30,2009. Pgrtittae
shall have consecutive options to receive now permits from the Department every five(S)years through
June 30, 2044 so long as Pernrittee is not in default of its obligations under the then-curtcttt Permir,
Petmittee shall netify the Department not more than 180 mar 1030 than 90 calendar days prior to the
expiration of the Permit then in effect of its desire for a new five(S)-year permit. The Depart may
revoke'this Permit, either temporarily or permanently, far any uncured violation of the Depa rtment s
published Minimum Standards for Fixed Base Operators,as adopted by the Fort Worth City Council on
June 16, 1992,and/or any additional or replacement=equirtmeuts subsequently adopted by the Fart Wort}t
City Council during the period in which this Pettuit is m effect,except as may be waived or modified th
writing by the Department (collectively, the"Mnimum Standards"). A default under the Minimum
Standards shall be deemed uncured if Permittee has failed to cure the-default within thirty(30) calendar
days following receipt'of written notice
provided in the Minunun bf such default by th®Department unless( otherwise specifically
n Standards, in which rase the applicable provision of the Minimum Standards
shall control or (i) Perm'" 0 cauea to qualify as a provider.of FBO services under the terms of the
MSaimutu Standards, in which ease the Dapsttmenr=y revoke this Permit at any time following the
milestone ender which Pemtittee has lost such qualification.
3. Penzittee shall post and keep visible at all times this Peraut at a location to which the general
public has access and which is acceptable to the bepatttneat
COMPLAINTS
REGARDrNG SE L.L.C.RVICESP®®/R�,�'CO ED]gX
A HABRO.,L.L.C.
MAY BE DEUCTED TO
CITY Calf+'FORT WORTH ANION DEPARTNMNT
817-871-5400
CI Y OF FORT�WORTH: Pl' "RO,L.L.C.:
arc Ott
Assistant Ci Manager ,L.L.C. ,aria;, P► -}'rr+4n
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 5/4/2004
DATE: Tuesday, May 04, 2004
LOG NAME: 55PHAZARFBO REFERENCE NO.: **C-20056
SUBJECT:
Authorize Execution of an Unimproved Ground Lease Agreement with Mandatory Improvements,
Public Fueling Agreement and Fixed Base Operator (FBO) Permit with APIAQ Limited Partnership
d/b/a Phazar Aerocorp, Inc. at Fort Worth Meacham International Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to:
1. Execute an Unimproved Ground Lease Agreement with mandatory improvements with APIAQ Limited
Partnership d/b/a Phazar Aerocorp, Inc. for 1600 square feet of property adjacent to the aircraft fuel farm at
Meacham International Airport to establish a fuel tank farm; and
2. Execute a Public Fueling Agreement and Fixed Base Operator Permit with APIAQ Limited Partnership
d/b/a Phazar Aerocorp, Inc. authorizing them to operate as a FBO at Fort Worth Meacham International
Airport.
DISCUSSION:
APIAQ Limited Partnership d/b/a Phazar Aerocorp, Inc. through its President, Mr. Brian Perryman, has
proposed to lease 1,600 square feet of unimproved ground adjacent to the west side of the aircraft fuel farm
at Meacham International Airport for the purpose of developing an above-ground fuel storage facility. The
actual square footage of the lease site will be determined by a subsequent ground survey. The proposed
facility will be capable of storing 36,000 gallons of aircraft fuel and will be used for aircraft fueling and de-
fueling.
Upon completion of the fuel storage facility, APIAQ Limited Partnership d/b/a Phazar Aerocorp, Inc.
proposes to begin providing FBO services at their existing facility. On December 9, 2003 City Council
(M&C No. 26292) approved Phazar's request to enlarge their existing facility by 39,875 square feet. The
proposed additions are under review by the Federal Aviation Administration. If approved, the facility's
expansion will provide for additional operating space to enhance their FBO operations. In the interim,
Phazar has proposed to begin providing FBO services from their existing facility.
The lease will provide for a (30) thirty-year term with two consecutive (5) five-year options to renew. The
initial term of the lease will commence upon the date of execution. Rental rates shall be subject to an
increase on October 1 st of any given year to reflect the upward percentage change, if any, in the Consumer
Price Index for the period since the last adjustment. All agreements and terms will be in accordance with
City and Aviation policies.
The initial square footage rate of the ground lease will be $0.21 per square foot, which is $336 annually,
and $28 on a monthly basis. Based on an assumed start date of June 1, 2004, the additional revenue that
will be generated under this lease for the remainder of the fiscal year is $112.
Logname: 55PHAZARFBO Page 1 of 2
The site plan is in accordance with the Fort Worth Meacham International Airport Master Plan and is subject
to Federal Aviation Administration airspace review.
The property is located in Council District 2.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Revenue Divison of the Finance Department will be responsible for
the collection and deposit of funds due to the City under this Agreement.
TO Fund/Account/Centers FROM Fun d/Accou nt/C enters
PE40 491472 0551101 $112.0
Submitted for City Manager's Office b Marc Oft (8476)
Originating Department Head: Mike Feeley (5403)
Additional Information Contact: Mike Feeley (5403)
Logname: 55PHAZAR-FBO Page 2 of 2