HomeMy WebLinkAboutContract 30198 -' TY SECRETARY
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ITFIACT NO.
FORT WORTH SPINKS AIRPORT
UNIMPROVED GROUND LEASE AGREEMENT
WITH MANDATORY IMPROVEMENTS
This UNIMPROVED GROUND LEASE AGREEMENT ("Lease") is made and
entered into by and between the CITY OF FORT WORTH ("Lessor"), a home rule municipal
corporation situated partly in Tarrant County, Texas acting by and through Marc Ott, its duly
authorized Assistant City Manager, and Spinks Air Associates, L.L.C. ("Lessee"), a Texas
Limited Liability Company acting by and through, its duly authorized Managing Member.
WITNESSETH:
That in consideration of the mutual covenants,promises and obligations contained herein,
the parties agree as follows:
1. PROPERTY LEASED.
Lessor hereby demises to Lessee approximately Eighty Six Thousand Six Hundred Thirty
Three (86,633.00) square feet of unimproved ground space at Fort Worth Spinks Airport
("Airport") in Fort Worth, Tarrant County, Texas, ("Premises"), as shown in Exhibit "A",
attached hereto and hereby made a part of this Lease for all purposes.
2. TERM OF LEASE.
2.1. Initial Term.
The Initial Term of this Lease shall commence on the date of execution by both
parties ("Effective Date") and expire at 11:59 P.M. on December 31, 2034, unless
terminated earlier as provided herein.
2.2 Renewals.
If Lessee performs and abides by all provisions and conditions of this Lease, upon
expiration of the Initial Term of this Lease, Lessee shall have two (2) consecutive options
to renew this Lease for two (2) additional successive terms of five (5) years each (each a
"Renewal Term") at a rental rate calculated in accordance with Section 3.1 and 3.2 of
this Lease. Lessee shall notify Lessor in writing of its intent to exercise a respective
option not less than ninety(90) nor more than one hundred eighty(180) days prior to the
expiration of the term then in effect. If Lessee does not exercise its option for a first
Renewal Term within the time frame provided herein, Lessee shall automatically and
simultaneously forfeit its second option to lease the Premises for a second Renewal Term,
and Lessee shall no longer have any rights or interest in the Premises following the
expiration of the Initial Term.
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2.3. Holdover.
If Lessee holds over after the expiration of the Initial Tenn or any Renewal 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 Lessor's Schedule of Rates and Charges or similarly published schedule in
effect at the time.
3. RENT.
3.1. Annual Rent for Premises.
Lessee shall commence the payment of rent, in accordance with this Section 3, on
the date that the first certificate of occupancy is issued for a hangar structure erected
pursuant to Section 6.1 of this Lease ("Occupancy Date"). From the Occupancy Date
until September 30, 2005, Lessee shall pay Lessor rent in the amount of Twelve
Thousand One Hundred Twenty Eight and 62/100 Dollars ($12,128.62) which is based
on a rental rate $0.14 per square foot on an annual basis, and which will be payable in
monthly installments of One Thousand Ten and 71/100 Dollars($1,010.71).
3.2. Rent Adiustments.
On October 1, 2005, and on October 1st of each year thereafter during both the
Initial Term and any Renewal Tenn, Lessee's rental rate shall be subject to increase by
Lessor to reflect the upward percentage change, if any, in the Consumer Price Index
("CPI") for the Dallas/Fort Worth Metropolitan Area, as announced by the United States
Department of Labor or successor agency (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; provided, however, that Lessee's rental rates shall not exceed the then-
current rates prescribed by Lessor's published 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 the Occupancy Date occurs on or after October 1, 2004, Lessee's initial
payment of rent shall be calculated in the same manner as it would have been if the
Occupancy Date and Lessee's initial payment of rent had occurred prior to October 1,
2004.
3.3. Five-Year Adiustments.
In addition to the Annual Rent Adjustments, on October 1, 2015, and every fifth(5)
year thereafter for the remainder of the Initial Term (i.e. on October 1st of 2020, 2025 and
2030), rent shall automatically be adjusted to equal 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
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3.4. Payment Dates and Late Fees.
Monthly rent payments are due on or before the first (l st) day of each month.
Payments must be received during normal working hours by the due date at the location
for Lessor's Revenue Office set forth in Section 14. Rent 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 rent that Lessee may accrue.
4. 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. In addition, Lessee agrees that all
utilities, air conditioning and heating equipment and other electrically-operated equipment which
may be used on the Premises shall fully comply with Lessor's Mechanical, Electrical, Plumbing,
Building and Fire Codes ("Codes"), as they exist or may hereafter be amended.
5. MAINTENANCE AND REPAIRS.
5.1. Maintenance and Repairs bV 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 will, at Lessee's sole cost and expense, 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 structures, including, but not
limited to, doors, windows and roofs, and all fixtures, equipment, modifications and
pavement on the Premises. 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 or otherwise cure 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'
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 Lessee's sewer or steam
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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.
5.2. Compliance with ADA.
Lessee, at its sole cost and expense, agrees to keep and maintain the Premises in
full compliance at all times with the Americans with Disabilities Act of 1990, as
amended ("ADA"). In addition, Lessee agrees that all improvements it makes at the
Airport shall comply with all ADA requirements.
5.3. Inspection.
5.3.1. Lessor shall have the right and privilege, through its officers, agents,
servants or employees, to inspect the Premises. Except in the event of an
emergency, Lessor shall conduct during Lessee's ordinary business hours and
shall use its best efforts to provide Lessee at least two (2) hours notice prior to
inspection.
5.3.2. If Lessor determines during an inspection of the Premises that Lessee is
responsible under this Lease for any maintenance or repairs, Lessor shall notify
Lessee in writing. Lessee agrees to begin suchmaintenance or repair work
diligently within thirty (30) calendar days following receipt of such notice and to
then complete such maintenance or repair work within a reasonable time,
considering the nature of the work to be done. If Lessee fails to begin the
recommended maintenance or repairs within such time or fails to complete the
maintenance or repairs within a reasonable time, Lessor may, in its discretion,
perform 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.
5.3.3. During any inspection, Lessor may perform any obligations that Lessor is
authorized or required to perform under the terms of this Lease or pursuant to its
governmental duties under federal state or local laws,rules or regulations.
5.3.4. Lessee will permit Lessor's Fire Marshal or his or her authorized agents to
inspect the Premises and Lessee will comply with all requirements of the Fire
Marshal or his or her authorized agents that are necessary to bring the Premises
into compliance with the City of Fort Worth Fire Code and Building Code
provisions regarding fire safety, as such provisions exist or may hereafter be
amended. Lessee shall maintain in proper condition accessible fire extinguishers
of a number and type approved by the Fire Marshal or his or her authorized agents
for the particular hazard involved.
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5.4. Environmental Remediation.
To the best of Lessor's knowledge, the Premises comply with all applicable
federal, state and local environmental regulations or standards. 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
FULL Y 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
6. CONSTRUCTION AND IMPROVEMENTS.
6.1. Mandatory Improvements.
Lessee covenants and agrees that it shall improve the Premises in accordance with
the time frames, milestones, specifications and other conditions of Exhibit "B", attached
hereto and made a part of this Lease for all purposes. Such improvements shall
hereinafter be referred to as "Mandatory Improvements". Lessee shall diligently
commence construction of such Mandatory Improvements within six (6) months
following receipt of approval to commence construction from the governing agencies
referred to in Section 6.3. Lessee shall fully comply with all provisions of this Section 6
in the performance of any such Mandatory Improvements. In the event that Lessor and
Lessee agree in writing to deviate from the terms, provisions, specifications or conditions
of Exhibit "B" in any way, a revised Exhibit "B" signed and dated by both Lessor and
Lessee shall be attached to and made a part of this Lease and shall supersede the previous
Exhibit "B". Upon expiration of the lease term and any extensions, or earlier termination
of this Lease, Lessor shall take full title to any Mandatory Improvements on the Premises.
6.2 Discretionary Improvements.
Lessee may, at its sole discretion, perform modifications, renovations or
improvements on the Premises in addition to those required by Section 6.1. However,
Lessee may not initiate any kind of modification, renovation or improvement on or to the
Premises unless 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 of Airport Systems or authorized designee. Lessee covenants and agrees that it
shall fully comply with all provisions of this Section 6 in the performance of any such
discretionary modifications,renovations or improvements.
6.3. Process for Approval of Plans.
Lessee's plans for construction and improvements shall conform with the Airport's
architectural standards and must also receive written approval from Lessor's Departments
of Development, Engineering and Transportation and Public Works. All plans, and
specifications for the Mandatory Improvements shall be submitted to all governmental
agencies within three (3) months of the execution of this Lease and all 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.
6.4. Documents.
Lessee shall supply the Director of Airport Systems or authorized designee with
comprehensive sets of documentation relative to any modification, renovation,
construction or 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 of Airport Systems or authorized designee. Lessee shall supply
the textual documentation in computer format as requested by Lessor.
6.5. Bonds Required of Lessee.
Prior to the commencement of any mandatory or discretionary modification,
renovation, improvement or new construction, 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 completion by Lessee of the respective modifications,
renovations, construction projects or 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 modifications,renovations, construction projects or 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 modifications, renovations,
construction projects or improvements, or if claims are filed by third parties on grounds
relating to such modifications, renovations, construction projects or improvements,
Lessor shall be entitled to draw down the full amount of Lessee's cash deposit or
certificate of deposit.
6.6. Bonds Required of Lessee's Contractors.
Prior to the commencement of any modification, renovation, improvement or new
construction, 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 modifications, renovations, improvements or new
construction. Lessee shall provide Lessor with copies of such bonds prior to the
commencement of such modifications, renovations, improvements or new construction.
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 the City 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 6.5 shall apply.
6.7. 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.
6.8 Construction Financine
As part of the construction of the Mandatory Improvements, Lessee may encumber
its leasehold interest in the Premises to a Lender furnishing construction financing to Lessee
(or permanent financing in an amount equal to the greater of; (i) the construction loan
principal amount or (ii) an amount which reimburses Lessee for the costs of construction
including permits, mitigation fees and construction interest), provided that Lessor's City
Council has consented to such encumbrance by executing a Consent of Hypothecation (the
"Lessors Consent") in the form attached hereto as Exhibit "C" or other form acceptable to
Lessor. In the event Lessee so desires to encumber its leasehold interest in the Premises,
Lessor's staff shall recommend that the City Council approve such encumbrance within
forty-five (45) days of submittal to the Lessor, and such approval shall not be unreasonably
withheld or denied. The term "Approved Encumbrance" shall mean an encumbrance
approved by the Lessor's City Council by way of written Consent. The term "LENDER"
shall mean the owner and holder of an Approved Encumbrance.
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7. USE OF PREMISES.
Lessee hereby agrees to use the Premises solely for aviation-related purposes only
and strictly in accordance with the terms and conditions of this Lease. Lessee shall have
the right to sublease portions of the Premises, including individual hangars constructed
pursuant to the Mandatory Improvements, to various third parties ("Sub lessees") under
terms and conditions acceptable to and determined by Lessee, provided that all such
arrangements shall be in writing, and shall be approved in advance by Lessor as to form,
and shall expressly incorporate by reference all limitations, restrictions, and conditions
upon the use of the Premises contained in this Lease. Lessee and all sublesses are hereby
prohibited from non-aviation related uses, including without limitation the following:
concessions, ground transportation for rent or hire, including taxi and limousine service;
food sales; barber and valet services; alcoholic beverage sales; sales of pilot supplies;
newsstands; and gift and other retail shops. However, Lessee may install and operate
vending machines on the Premises for use by Lessee and its employees.
8. SIGNS .
Lessee may, at its sole expense and with the prior written approval of the Director of
Airport Systems or authorized designee, install and maintain signs on the Premises related to
Lessee's business operations. Such signs, however, must be in keeping with the size, color,
location and manner of display of other signs at the Airport. Lessee shall maintain all signs in a
safe, neat, sightly manner and physically good condition.
9. RIGHTS AND RESERVATIONS OF LESSOR.
Lessor hereby retains the following rights and reservations:
9.1. 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 aviation or
navigational aids used at the Airport.
9.2. 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.
9.3. This Lease shall be subordinate to the provisions of any existing or future
agreement between Lessor and the United States Government that 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.
9.4. 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 that 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,
9.5. 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; and Lessee agrees that this Lease and Lessee's rights and privileges
hereunder shall be subordinate to the Sponsor's Assurances.
9.6. Lessee's rights hereunder shall be subject to all existing and future utility and
drainage 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 shall additionally be
subject to all rights granted by any ordinance or statute which allows utility companies to
use publicly-owned property for the provision of utility services.
10. INSURANCE.
10.1. 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 10, 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:
• Proper :
Fire and Extended Coverage on all improvements at full replacement cost limit;
• Commercial General Liabili :
$1,000,000 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;
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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.
10.2. Adjustments to Required Coveraee and Limits.
Providing Lessor imposes the same insurance requirements on each Lessee and/or
Sub lessee located upon the airport with uses identical to those of this Lessee, 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.
10.3. 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.
10.4. Additional Requirements.
Lessee shall maintain its insurance with underwriters authorized to do business in
the State of Texas. 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.
11. 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.
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12. INDEMNIFICATION.
LESSEE COVENANTS AND AGREES TO, AND DOES HEREBY,
INDEMNIFY, HOLD HARMLESS AND DEFEND LESSOR, ITS OFFICERS, AGENTS,
SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR
LAWSUITS FOR EITHER 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, ARISING OUT OF OR
IN CONNECTION WITH THE USE, LEASING, MAINTENANCE, OCCUPANCY,
EXISTENCE OR LOCATION OF THE PREMISES OR ANY IMPROVEMENTS
THEREON, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF LESSOR, ITS OFFICERS AGENTS, SERVANTS OR
EMPLOYEES.
LESSEE SHALL BE LIABLE TO LESSOR FOR ANY AND ALL INJURIES OR
DAMAGES TO AIRPORT PROPERTY, THE PREMISES OR ANY IMPROVEMENTS
THEREON WHICH ARISE OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS
OR OMISSIONS OF LESSEE, ITS OFFICERS, AGENTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, SUBLESSEES OR INVITEES,
EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF LESSOR, ITS SERVANTS, AGENTS OR
EMPLOYEES.
LESSOR DOES NOT GUARANTEE POLICE PROTECTION TO LESSEE OR ITS
PROPERTY. LESSOR IS OBLIGATED ONLY TO PROVIDE SECURITYADEQUATE TO
MAINTAIN LESSOR'S CERTIFICATION UNDER FAA REGULATIONS. LESSEE
SHALL COMPLY WITH ALL APPLICABLE REGULATIONS OF THE FAA RELATING
TO AIRPORT SECURITY. LESSEE SHALL PAY ALL FINES IMPOSED BY THE FAA
ON LESSOR OR LESSEE RESULTING FROM LESSEE'S FAILURE TO COMPLY WITH
SUCH FAA REGULATIONS OR TO PREVENT UNAUTHORIZED PERSONS OR
PARTIES FROM THEIR OBTAINING ACCESS TO THE AIR OPERATIONS AREA OF
THE AIRPORT FROM THE PREMISES.
13. TERMINATION.
In addition to termination rights contained elsewhere in this Lease, Lessor shall have the
right to terminate this Lease as follows:
13.1. 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 thirty (30)
calendar days. If Lessee fails to pay the balance outstanding within such time, Lessor
shall have the right to terminate this Lease immediately.
13.2. Breach or Default by Lessee.
If Lessee commits any breach or default, other than Lessee's failure to pay rent,
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,
commence to cure, adjust or correct the problem to the standard existing prior to the
breach, and shall continue said efforts in a conscientious manner until said default is
cured. If Lessee fails to cure, or undertake to cure,the breach or default within such time
period, Lessor shall have the right to terminate this Lease immediately
13.3. Failure to Construct Mandatory Improvements.
If Lessee has not diligently submitted plans for approval and/or commenced
construction of the Mandatory Improvements to the Premises as set forth in Section 6.1
within the time specified therein, Lessor shall have the right to terminate this Lease
immediately. If, by February 1, 2005, Lessee has not obtained a final certificate of
occupancy from the City of Fort Worth, and has failed to conscientiously, and in good
faith, pursue completion of said mandatory improvements, Lessor shall have the right to
tenninate this Lease upon forty-five(45)days written notice.
13.4. Lessee's Financial Obligations to Lessor upon Termination,Breach or
Default.
If Lessor terminates this Lease for any non-payment of rent, fees or other charges
or for any breach or default as provided in Sections 13.1, 13.2 or 13.3 of this Lease, then
subject to offsets for rents received by Lessor from Sub lessees subsequent to the breach,
Lessee shall be liable for and shall pay to Lessor all rent due Lessor for the remainder of
the term then in effect as well as all arrearages of rentals, fees and charges payable
hereunder. In no event shall a reentry onto or reletting of the Premises by Lessor be
construed as an election by Lessor to forfeit any of its rights under this Lease.
13.5. Rights of Lessor Upon Termination or Expiration.
Upon termination or expiration of this Lease, and any exercised option periods,
title to all improvements on the Premises and all fixtures and other items attached to any
structure on the Premises shall pass to Lessor. In addition, 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
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any act incident to Lessor's assertion of its right to terminate or Lessor's exercise of any
rights granted hereunder.
14. NOTICES.
Notices required pursuant to the provisions of this Lease shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, its agents, employees,
servants or representatives, or(2) deposited in the United States Mail, postage prepaid, addressed
as follows:
To LESSOR:
For Rent: For All Other Matters:
CITY OF FORT WORTH DEPT OF AVIATION
REVENUE OFFICE MEACHAM INTL AIRPORT
1000 THROCKMORTON STREET 4201 N MAIN ST STE 200
FORT WORTH TX 76106-6312 FORT WORTH TX 76106-2749
To LESSEE:
DARRELL D. CLENDENEN
ATTORNEY AT LAW
1215 POMONA RD SUITE D
CORONA CALIFORNIA, 92882
15. ASSIGNMENT['AND SUBLETTING.
15.1. In General.
Lessee shall have the right to sublease portions of the Premises as provided by
and in accordance with Section 7 of this Lease. Provided, however, that Lessee shall not
assign, sell, convey, sublease or transfer the entirety of its rights, privileges, duties or
interests granted by this Lease without the advance written consent of Lessor.
15.2. 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.
�I
13
16. 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.
17. 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.
18. 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 of Airport Systems;
and all rules and regulations adopted by the City Council pertaining to the conduct required at
airports owned and operated by the City of Fort Worth, 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.
19. 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
14
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.
20. 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.
21. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Lease, Lessor does not waive or
surrender any of its governmental powers.
22. NO WAIVER.
The failure of Lessor 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 Lessor's right to
insist upon appropriate performance or to assert any such right on any future occasion.
23. 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, 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.
24. ATTORNEYS' FEES.
In the event there should be a breach or default under any provision of this Lease and
either party should retain attorneys or incur other expenses for the collection of rent, fees or
charges, or the enforcement of performance or observances of any covenant, obligation or
agreement, Lessor and Lessee agree that the prevailing party shall be entitled to recover
reasonable attorneys' fees and other reasonable expenses from the other party.
15r,/
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25. 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.
26. 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.
27. 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.
28. 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 it is 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 Pages Follow]
16
IN WITNESS WHEREOF, the parties hereto have executed this Lease in multiple
originals, this tI, day of 2004.
CITVO' FORT WORTH: SPINKS AIR SO E C.:
LJ
By: By:
Marc Ott Name:
Assistant City Manager Title: ,/1owAf,a��,�s
Date: Date: ';�Zo ` e"
ATT
Z"t
By:
A�-6ty Secretary
Date: A:/, 6`-7
M&C: ��20(a5 , / I
APPROVED AS TO FORM AND LEGALITY:
By:
Assistant CAY Attorney
Date: CA Mal
�DD
17
STATE OF TEXAS §
COUNTY OF TARRANT §
SPINKS AIR ASS E L.C.
By
Name:_,,/ y
Title:
Date:
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,on
this day personally appeared Pa P-A-e i/ D. C Leoi deo en 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 Spinks Air Associates L.L.C. and that he executed the same as the act of Spinks Air
Associates,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 3 U day
2004.
t
Notary Public in an a tate of Texas
-00
LISA KAUFMAN
Notarryy Public
STATE OF TEXAS
QDmy Comm,Ezpa. 03-16-2006
i
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF FORT WORTH
By:
Marc Ott
Assistant City Manager
Date:
BEFORE ME, the undersigned authority,a Notary Public in and for the State of Texas,on
this day personally appeared Marc Ott,]mown 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 OFFTCE this day
l u , 2004.
I-ETTIE LANE otary Public in and for the State of Texas
MY COMMISSION EXPIRES.
y July 26,2007
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L`AiUBI1 "B"
DESCRIPTION OF MANDATORY IMPROVEMENTS
Spinks Air Associates L.L.C.,Fort Worth Spinks Airport
Sp ecifications
Total
Total hn ervious Area 259482.31 S.F. 5.957 Acres
Building 1 16,279.20 S.F.
Building 2 16,285.40 S.F.
Building 3 15,400.77 S.F.
Building 4 24,564.12 S.F
Building 5 14,105.91 S.F.
Total Building Area 86,632.40 S.F.
Total Asphalt Area 186,956.88 S.F
Parking 9' X 18' 2
Handicap Parking 2
Handicap Restrooms 2 mens,2 womens
Building 1 15 single engine T-Hangar Units
Building 2 15 single engine T-Han ar Units
Building 3 9 multi engine T-Han ar Units
Building 4 2 -60 X 60 Executive Box Hangars
and 16 single engine T-Hanar Units
Building 5 13 single engine T-Hangar Units
21
Prepared by: Alan Ward Surveying #CGDS02310
Trans-Rot-Move SPINKLAT 5/20/03 16:13:58 Factor: 1.0000000
Prepared by: Alan Ward Surveying #CGDS02310
TX: NAD 1983 <-->Latitude/Longitude SPINKLAT 5/20/03 16:14:06 Factor: 1
State: TX Zone: NC Station: SW HANGAR ONE
GIVEN FEET—North: 6893153.0200 East: 2337159.6700 Pt. NO.: 1
CALC. —Latitude: 32-34-19.340700 Longitude: 97-18-11.562595
Converge Angle: 0-39-09.797690 Scale Factor: 0.999907420653
State: TX Zone: NC Station: SW HANGAR TWO
GIVEN FEET—North: 6893154.7100 East: 2337043.0100 Pt. No.: 2
CALC. —Latitude: 32-34-19.370571 Longitude: 97-18-12.925629
Convergence Angle: 0-39-09.054298 Scale Factor: 0.999907419450
State: TX Zone: NC Station: SW HANGAR THREE
GIVEN FEET—North: 6893214.7000 East: 2336912.2500 Pt.No.: 3
CLAC. — Latitude: 32-34-19.978899 Longitude: 97-18-14.445677
Convergence Angle: 0-39-08-225273 Scale Factor: 0.999907394954
State: TX Zone: NC Station: SW HANGAR FOUR
GIVEN FEET—North: 6893214.7000 East: 2336912.2500 Pt. No.: 4
CALC.—Latitude: 32-34-20.811562 Longitude: 97-18-15.913745
Convergence Angle: 0-39-07.424596 Scale Factor: 0.999907361439
State: TX Zone: NC Station: SW HANGAR FIVE
GIVEN FEET—North: 6893428.4500 East: 2336675.4900 Pt.No.: 5
CLAC.—Latitude: 32-34-22.120596 Longitude: 97-18-17.183981
Convergence Angte: 0-39-06.731817 Scale Factor: 0.999907308783
22
EXHIBIT "C"
CONSENT TO HYPOTHECATION
The CITY OF FORT WORTH, hereinafter referred to as "LESSOR" and SPINKS AIR
ASSOCIATES, hereinafter referred to as "LESSEE", entered into an Airport Unimproved
Ground lease Agreement dated , hereinafter referred to as "Lease", covering
certain real property located in the City of Fort Worth, State of Texas, hereinafter referred to as "
Premises".
By use of the following documents which are attached hereto and made a part hereof, and
hereinafter collectively referred to as "Documents", LESSEE proposes to hypothecate its
leasehold estate created under said Lease:
These documents are for financing related to leasehold development of said Demised Premises.
On this day of ,
LESSOR hereby consents to the execution, delivery, and recordation of the above stated
documents subject to the following terms and conditions:
I. That , hereinafter referred to as "LENDER",
shall fully reconvey all interest in said real property upon repayment of the
loan described in the loan document since the sole purpose of the
hypothecation of the subject leasehold estate is to secure the loan amount for
LENDER.
2. Except as otherwise provided herein, the above-referenced documents and any
other future additional instruments which may be approved by LESSOR or its
agents, shall be subject to each and every covenant, condition, and restriction
set forth in said Lease, and to all rights and interest of the LESSOR therein,
none of which are or shall be waived by this Consent.
3. In the event of any conflict between the provisions of said Lease and the
provisions of said documents, the provisions of said Lease shall control.
4. Any additions or modifications to said financing documents shall first be
approved by the LESSOR. LESSEE warrants that all docutnents and
agreements pertaining to the hypothecation of its leasehold have been fully
disclosed to LESSOR.
5. The proceeds of the loan to LESSEE shall be used solely for payment of
expenses incident to construction on the Mandatory Improvements to the
Premises under paragraph 4, CONSTRUCTION AND IMPROVEMENTS, of
the Lease and described in the loan documents.
23
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved As Amended on 2/24/2004
DATE: Tuesday, February 24, 2004
LOG NAME: 55CLENDENEN REFERENCE NO.: **L-13765
SUBJECT:
Authorize Execution of Unimproved Ground Lease Agreement with Mandatory Improvements with
Clendenen Development Company at Fort Worth Spinks Airport
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute an Unimproved Ground
Lease with Mandatory Improvements with Clendenen Development Company for approximately 56,784
square feet of land at Fort Worth Spinks Airport.
DISCUSSION:
Clendenen Development Company, (Clendenen) through it's President, Mr. Darrell Clendenen, proposes to
lease approximately 56,784 square feet of unimproved land on the east side of Fort Worth Spinks
Airport. The actual square footage of the lease site will be determined by a subsequent ground
survey. Clendenen Development Company proposes to construct 44 T-hangars on the site. Clendenen
has also requested the right to first refusal to lease an additional 56,784 square feet of land to the proposed
site for future hangar development. Clendenen will pay an annual fee of $0.01 per square foot of such
additional land in consideration of this right of first refusal.
The lease will provide for a thirty-year term with two five-year options to renew. The initial term of the lease
will commence on 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; as well as adjustments in the 10th, 15th, 20th, and 25th years to reflect the then current
applicable rate. All lease terms will be in accordance with City policies.
The initial square footage rate of the ground lease will be $0.14 per square foot. Payment of rent for each
lease site will commence upon the issuance of a Certificate of Occupancy for the proposed improvements
set forth above, or January 1, 2005, whichever is earlier. The annual revenue generated from this lease,
based on the current Aviation Department's Schedule of Rates and Charges will be $8,517.60, or $709.80
on a monthly basis. Based on the development timeline there will be no revenue generated this fiscal year.
The site plan is in accordance with the Fort Worth Spinks Airport Master plan and is subject to Federal
Aviation Administration airspace review.
The property is located in COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that the Revenue Office of the Finance Department will be responsible for the
collection and deposit of funds due to the City under this lease.
r I1-1 ,-1 -.-1T-1,
TO Fund/Account/Centers FROM Fund/Account/Centers
PE40 491352 0551101 $8,517.60
Submitted for City Manager's Office by. Marc Ott (8476)
Originating Department Head: Mike Feeley (Acting) (5403)
Additional Information Contact: Mike Feeley (Acting) (5403)
f Z'/'1T TI.TTI TIN TTI.T