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HomeMy WebLinkAboutContract 41116CITY SECRETARY CONTRACT Na 4nu0 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 FERNANDO COSTA, its duly authorized Assistant City Manager, and DON E. HANSEN ("Lessee") an Individual. RECITALS The following introductory provisions are true and correct and form the basis of this Agreement: A. Lessor and Don E. Hansen previously entered into City Secretary Contract ("CSC") No. 9779, as amended by CSC No. 15513 and assigned to Lessee pursuant to CSC No. 18968 (the "Lease"), a lease of real property at Fort Worth Meacham International Airport ("Airport") generally known as the South Fuel Farrn, as more specifically described and depicted in the Lease (the "Leased Premises"), and a license to store, dispense and sell aircraft fuel at the Airport in accordance with the terms and conditions of the Lease. The Lease is a public document on file in Lessor's City Secretary's Office. B. Pursuant to CSC No. 28263, Lessor consented to the execution of a Deed of Trust between Lessee and Summit Bank, N.A. under which Lessee gave Summit Bank, N.A. a lien on Lessee's leasehold interest in the Leased Premises. C. On or about December 30, 2002, pursuant to CSC No. 28258, Lessee, Sandpiper Airport Inn, Inc., assigned all of Lessee's right, title and interest in the Leased Premises to Assignee, Don E. Hansen; and Lessor consented to such assignment based on all terms and conditions set forth in the Consent. D. Lease Site South Fuel Farm shall hereinafter and collectively be referred to as the "Leased Premises," and CSC Nos. 9779, 15513, 18968 and 28258 shall hereinafter and collectively be referred to as the "Previous Lease." E. In exchange for significant improvements to the Leased Premises, Lessee has requested, and the City has consented, to cancel all terms and conditions of the Previous Lease, and enter into a New Lease Agreement (the "Lease") with Lessee to provide for an additional ten (10) years with two (2) five-year options to renew on all portions of the Leased Premises under the Lease. OFFICIAL RECORD NOW, THEREFORE, in consideration of the mutual covenants, %pry e ec wz iRY Ft WORTH, TX obligations contained herein, the parties agree as follows: Tank Farm Lease Agreement Don E. Hansen Page 1 11-16-10 A11:48 IN PROPERTY LEASED. 1.1. Leased Premises Lessor hereby demises and leases to Lessee the South Fuel Faun Site shown in the map on Exhibit "A" attached hereto and incorporated herein for all purposes Lessee agrees that it will use the Tank Farm 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 other location at the Airport. Lessee may not in any way sell or dispense fuel on the Tank Faini Premises Lessee accepts the Tank Faun Premises in its present condition as satisfactory for all purposes set forth in this Lease. 1.2. Termination of Previous Lease The parties hereby agree that execution of this Lease simultaneously terminates the Previous Lease. 2. TERM OF LEASE. 2.1 Initial Term. The teini of this Lease shall commence on the date of execution ("Effective Date") and expire at 11:59 P.M. on May 31, 2026, unless terminated earlier as provided herein 2.2 Renewals. If Lessee perfoiins 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 additional successive terns of five (5) years each (each a "Renewal Term") at a rental rate calculated in .accordance with this Lease and on terns and conditions that may be prescribed by Lessor at the time 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 Tern, and Lessee shall no longer have any rights or interest in the Premises following the expiration of the Initial Term. 2.3. Holdover. If Lessee holds over after the expiration of the Initial Tenn or any Renewal Tenn, 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 Tank Farm Lease Agreement Don E. Hansen Page 2 3. RENT, FEES AND OTHER CHARGES. 3.1. 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. 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, 2011 shall be calculated as follows: Gallons (annually) $0.12/gallon. Fuel flowage fees shall be measured and calculated as of October 1 of each year, beginning October 1, 2010 during the Term in accordance with the Schedule of Rates and Charges in effect at the time. Payments of the fuel flowage fees are due and payable on the tenth (10t1') day of each month succeeding that in which aircraft fuels were delivered to the Premises. Payments must be received during norrnal working hours by such date at the location for Lessor s Aviation Department set forth in Section 18. This feeshall 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. 3.2. Annual Nature and Adjustments of Fuel Flowage Fees. The fuel flowage fee rate scale is based on the number of gallons of fuel delivered to the Premises annually Therefore, on the Effective Date, Lessee will pay a fuel flowage fee payment of $0.12 per gallon through the following September 30th; provided, however, that the City Council may, in its discretion, adjust fuel flowage fees and rate scales for all providers of Fixed Base Operator ("FBO") services at the Airport, as may be set forth in the Schedule of Rates and Charges, in which case the adjusted rates shall be applied whether before or after September 30, 2011 and all succeeding years of this Lease Term. 3.3. 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. Tank Farm Lease Agreement Don E. Hansen Page 3 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 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. MINIMUM 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 Tenn and of any Renewal Ten i. 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 tennination by Lessor of this Agreement 6. UTILITIES. Lessee, at Lessee's sole cost and expense, shall be responsible for the installation and use of all utility service to all portions of the Premises and for all other related utility 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. 7. MAINTENANCE AND REPAIRS. 7.1. General Maintenance and Repairs by Lessee. Lessee agrees to keep and maintain the Premises in a good, clean and sanitary condition at all times Lessee covenants and agrees that it will not make or suffer any waste of the Premises Lessee, at Lessee's sole cost and expense, will make all repairs necessary to prevent the deterioration in condition or value of the Premises, including, but not limited to, the maintenance of and repairs to all aircraft fuel storage tanks and other structures, facilities, equipment, appurtenances and pavement on the Premises. Lessee, at Lessee's sole cost and expense, shall promptly make any changes, modifications or improvements to the Premises as they become necessary, subject to prior written approval from Lessor and in accordance with all applicable federal, state Tank Farm Lease Agreement Don E. Hansen Page 4 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. 7.2. Inspection. Lessor shall have the right and privilege, through its officers, agents, servants and/or employees, to inspect the Premises at any time during nonnal 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, ordinances and laws Lessee will peiinit 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 7.2 Lessor shall have the right to inspect the Premises at any time and for any purpose in the event of an emergency. 7.3. Performance. If Lessee is responsible under this Lease for any maintenance or repairs, Lessor shall notify Lessee in writing Lessee agrees to undertake such maintenance or repair work diligently within thirty (30) calendar days following receipt of such notice. If Lessee fails to undertake the recommended maintenance or repairs within this time, Lessor may, in its discretion, undertake such maintenance or repairs on behalf of Lessee In this event, Lessee will reimburse Lessor for the cost of the maintenance or repairs, and such reimbursement will be due on the date of Lessee's next monthly rent payment following completion of the maintenance or repairs. 7.4. 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 Tank Farm Lease Agreement Don E. Hansen Page 5 EXPENSE, AGREES THAT IT SHALL BE FULLY RESPONSIBLE FOR THE REMEDIATION OF ANY VIOLATION OF ANY APPLICABLE FEDERAL, STATE OR LOCAL ENVIRONMENTAL REGULATION OR STANDARD 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 regulation 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. 7.5. Lessee's Acceptance of Premises. Lessee accepts the Premises in its present condition as satisfactory for all purposes set forth in this Lease. 8. 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: 8.1. Coverage by Lessee's Insurance. Lessee s property insurance, as required by 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 9.2 through 9.6 of this Lease. 8.2. Premises Uninsured or Underinsured by Lessee. If Lessee fails to carry adequate property insurance in accordance with Section 13 of this Lease, Lessor, at Lessor's sole option, may (i) terminate this Lease upon thirty (30) days' advance written notice to Lessee or (ii) repair or rebuild the Premises substantially to its former condition at Lessor's own cost and expense. If Lessor notifies Lessee in writing within thirty (30) days following the date of damage or destruction that Lessor intends to undertake the necessary repairs or reconstruction, and the damage or destruction does not render the affected portion of the Premises untenable, this Lease shall continue in effect without any rent abatement whatsoever so long as Lessor diligently commences the repairs or reconstruction within one hundred eighty (180) days from the date of the damage or destruction If the damage or destruction does render the Tank Farm Lease Agreement Don E. Hansen Page 6 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 8 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. 9. CONSTRUCTION AND IMPROVEMENTS. 9.1. In General. Lessee may, at its sole discretion, perfoini 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 Airport Systems Director Lessee covenants and agrees that it shall fully comply with all provisions of this Section 9 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 tiade fixtures shall remain the property of Lessee and may be removed so long as Lessee repairs any damage caused thereby. 9.2. Process for Approval of Plans. Lessee's plans for Improvements shall confoini to the Airport's architectural standards and must also receive written approval from Lessor s Departments of Planning and Development and Transportation and 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. 9.3. Documents. Lessee shall supply the Airport Systems 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 Airport Systems Director Lessee shall supply the textual documentation in computer format as requested by Lessor. 9.4. Bonds Required of Lessee. Tank Fail Lease Agreement Don E. Hansen Page 7 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 fines, 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 assigmnent 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 Improvements or satisfy the claims, provided that any balance shall be remitted to Lessee 9.5. 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 9 4 shall apply. 9.6. 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. 10. USE OF PREMISES. Tank Farm Lease Agreement Don E. Hansen Page 8 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. 11. 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. 12. RIGHTS AND RESERVATIONS OF LESSOR. Lessor hereby retains the following rights and reservations: 12.1. 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. 12.2. All aircraft fuel storage tanks, structures, fixtures and items permanently attached to any structure on the Tank Farm Premises belong to Lessor, and any additions or alterations made thereon shall immediately become the property of Lessor. 12.3. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, including, but not limited to, the right to prevent Lessee from erecting or permitting to be erected any building or other structure which, in the opinion of Lessor, would limit the usefulness of the Airport, constitute a hazard to aircraft or diminish the capability of existing or future avigational or navigational aids used at the Airport. 12.4. Lessor reserves the right to temporarily close 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. Tank Farm Lease Agreement Don E. Hansen Page 9 12.5. This Lease shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States Government, which relates to the operation or maintenance of the Airport and is required as a condition for the expenditure of federal funds for the development, maintenance or repair of Airport infrastructure. 12.6. During any war or national emergency, Lessor shall have the right to lease any part of the Airport including its landing area, to the United States Government. In this event, any provisions of this instrument, which are inconsistent with the provisions of the lease to the Government, shall be suspended Lessor shall not be liable for any loss or damages alleged by Lessee as a result of this action. However, nothing in this Lease shall prevent Lessee from pursuing any rights it may have for reimbursement from the United States Government. 12.7. Lessor covenants and agrees that during the tern 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. 13. INSURANCE. 13.1. 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 13, naming the City of Fort Worth as an additional insured and covering all risks related to the leasing, use occupancy, maintenance, existence or location of the Premises Lessee shall obtain the following insurance coverage at the limits specified herein: • Property: Fire and Extended Coverage on all improvements on the Premises at full replacement cost limit; • Commercial General Liability: $3,000,000 per occurrence, including products and completed operations; • Automobile Liability: $1,000,000 per accident, including, but not limited to, coverage on any automobile used in Lessee's operations on the Premises; Tank Fa Lease Agreement Don E. Hansen Page 10 • Environmental Impairment Liability: $1,000,000 per occurrence. In addition, Lessee shall be responsiblefor 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. 13.2. Adjustments to Required Coverage and Limits. Insurance requirements, including additional types of coverage and increased limits on existing coverages, are subject to change at Lessor's option 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. 13.3. 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. 13.4. 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. 14. 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 Tank Farm Lease Agreement Don E. Hansen Page 11 that nothing herein shall be construed as the creation of a partnership or joint enterprise between Lessor and Lessee. 15. LIABILITIES AND INDEMNIFICATION. 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 ACT(S) 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. 16. 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. 17. DEFAULT AND REMEDIES. 17.1. Failure by Lessee to Pay Rent, Fees or Other Charges. Tank Farm Lease Agreement Don E. Hansen Page 12 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 teiiumate this Lease immediately. 17.2. 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 temmnate this Lease immediately upon provision of written notice to Lessee. 17.3. Failure to Comply with Other Terms or Conditions. If Lessee breaches or defaults under any provision of this Lease, other than those breaches or defaults that are addressed by Sections 17.1 and 17.2, Lessor shall deliver written notice to Lessee specifying the nature of such breach or default Lessee shall have thirty (30) calendar days following such written notice to cure, adjust or correct the problem to the standard existing prior to the breach If Lessee fails to cure the breach or default within such time period, Lessor shall have the right to terminate this Lease immediately; provided, however, that in the event such breach or default cannot reasonably be cured within thirty (30) calendar days following such written notice, Lessee shall not be in default if Lessee commences to cure, adjust or correct the problem within such thirty (30) day period and thereafter diligently and in good faith pursues such cure, adjustment or correction to conclusion. 17.4. Rights of Lessor Upon Termination or Expiration. Upon termination or expiration of this Lease, all rights powers and privileges granted to Lessee hereunder shall cease and Lessee shall vacate the Premises. Within twenty (20) days following the effective date of termination or expiration, Lessee shall remove fiom 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 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. 18. 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: Tank Farm Lease Agreement Don E. Hansen Page 13 To LESSOR: City Of Fort Worth Aviation Department 4201 North Main Street, Suite 200 Fort Worth, Texas 76106 19. ASSIGNMENTS AND SUBLETTING. 19.1. In General. To LESSEE: Don E Hansen 4201 North Main Street, Suite 119 Fort Worth, Texas 76106 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. 19.2. 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. 20. LIENS. 20.1. 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 hen 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 hen shall continue in effect following termination of this Lease and until such a time as the lien is discharged. 20.2. Landlord's Lien. IN ADDITION TO ANY APPLICABLE STATUTORY LANDLORD'S 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 Tank Farm Lease Agreement Don E. Hansen Page 14 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. 21. TAXES AND ASSESSMENTS. Lessee agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Lessee due to Lessee's use or occupancy of the Premises or any improvements or property placed on the Premises by Lessee as a result of its occupancy Lessee also agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Lessor due to Lessee's use or occupancy of the Premises or property placed on the Premises by Lessee as a result of its occupancy, including, but not limited to, the Mandatory Improvements and any Discretionary Improvements 22. 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 inunediate 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. 23. NON-DISCRIMINATION COVENANT. Tank Farm Lease Agreement Don E. Hansen Page 15 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, disability, sex, sexual orientation, transgender, gender identity, or gender expression. 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, disability, sex, sexual orientation, transgender, gender identity, or gender expression. 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 hannless. 24. 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. 25. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Lease, Lessor does not waive or surrender any of its governmental powers. 26. NO WAIVER. The failure of either party to insist upon the performance of any tenn 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. 27. 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. 28. ATTORNEYS' FEES. Tank Farm Lease Agreement Don E. Hansen Page 16 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 each party shall be responsible for its own attorneys fees, and the prevailing party shall not be entitled to recover attorneys' fees. 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 unpaired. 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. HEADINGS NOT CONTROLLING. Headings and titles used in this Lease are for reference purposes only and shall not be deemed a part of this Lease. 32. ENTIRETY OF AGREEMENT. This written instrument, including any documents attached hereto or incorporated herein by reference, contains the entire understanding and agreement between Lessor and Lessee, its assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provisions of this Lease. The terms and conditions of this Lease shall not be amended unless agreed to in writing by both parties and approved by the City Council of Lessor. Execution of this Lease hereby ten itinates CSC Nos. 9779, 15513, 18968 and 28258. [Signature Pages Follow] Tank Farm Lease Agreement Don E. Hansen Page 17 IN WITN SS WHEREOF, the parties hereto have executed this Lease in multiples, this �'' day of ,, , 2010. CITY OF FORT WORTH: By: C-4 Fernando Costa Assistant City Manager Date: / /////ia 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 Fernando Costa, 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 City of Fort Worth, and that he executed the same as the act of 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 /44ay of agide4, 2010. ROSELLA BARNES MY COMMISSION EXPIRES March 31, 2013 APPROVED AS TO FORM AND LEGALITY: By: Charlene Sanders Assistant City Attorney Date: M&C: C-21287; Approved 2/14/06 Tank Farm Lease Agreement Don E. Hansen Page 18 Notary Public in and for the State of Texas ATTEST: By: Marty Hendrix City Secretary Date: Q PgOQ0°'' s 11.1L • \le OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX LESSEE: DON E. HANSEN ATTEST: C2 By: e> Don E. Hansen Individual Date: STATE OF TEXAS § COUNTY OF TARRANT § j /L /0 By: Naive BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Don E. Hansen, 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 Don E. Hansen, and that he executed the same as the act of Don E. Hansen, for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this /o day of /llfid e yyl 2010. Tank Farm Lease Agreement Don E. Hansen Page 19 NotPublic f and for the State of Texas 5 �P , `ett,- JUDY C. NICKIS6W' 1 �\\ RY P //i it till IIn'tit$ Notary Public, State of Texas y "'''%��► �r: Comm. EM 12-11-11 s JI Oen d — Oc 1332:11SL _ ____ N / / / StE 7 1 .••••••••••••r OG • a U r cn z Exhibit "B" FORT WORTH MEACHAM INTERNATIONAL AIRPORT FIXED BASE OPERATOR PERMIT DON E. HANSEN 1. This FIXED BASE OPERATOR PERMIT ("Permit") is issued by the City of Fort Worth Aviation Department ("Department") to Don Hansen and individual, ("Permittee") This Permit authorizes Permittee and its employees to provide Fixed Base Operator ("FBO ) 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 Department. 2. This Permit shall be in effect from October 1, 2007 through September 30, 2017. The Department may revoke this Permit either temporarily or permanently, for an uncured violation of the Department 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 requirements subsequently adopted by the Fort Worth City Council during the period m which this Permit is in effect, except as may be waived or modified in writing by the Department (collectively the ` Minimum 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 of such default by the Department unless (i) otherwise specifically provided in the Minimum Standards, in which case the applicable provision of the Minimum Standards shall control or (ri) Permittee ceases to qualify as a provider of FBO services under the terms of the. Minimum Standards, in which case the Department may revoke this Permit at any time following the milestone under which Permittee has lost such qualification. 3. Permittee shall post and keep visible at all times this Permit at a location to which the general public has access and which is acceptable to the Department. COMPLAINTS REGARDING SERVICES PROVIDED BY DON E. HANSEN MAY BE DIRECTED TO CITY OF FORT WORTH AVIATION DEPARTMENT 817-392-5400 CITY OF FORT WORTH: B Assistant City Manager DON E. HANSEN: By Don E. Hansen Page 1 of 2 City of Fort Worth, Texas ayor and ouncil ommunication COUNCIL ACTION: Approved on 2/14/2006 CONTINUED FROM A PREVIOUS WEEK DATE: Tuesday, February 07, 2006 REFERENCE NO.: C-21287 LOG NAME: 5555SAND ADD SUBJECT: Authorize Consent of Proposed Leasehold Improvements on Lease Site 9 South at Fort Worth Meacham International Airport with Don E. Hansen RECOMMENDATION: It is recommended that the City Council authorize the City Manager to authorize consent of proposed leasehold improvements on Lease Site 9 South at Fort Worth Meacham International Airport with Don E. Hansen. DISCUSSION: On January 16, 2006, City staff received a request from Mr. Don E. Hansen, President of Sandpiper Aviation, to develop leasehold improvements on Lease Site 9 South at Fort Worth Meacham International Airport. On August 24, 1989 City Secretary Contract (CSC) No. 17327 was executed with Don E. Hansen for the lease of site 9 South at Fort Worth Meacham International Airport. Don E. Hansen now proposes to develop leasehold improvements on the lease site. The proposed improvements include 13,500 square feet of aircraft storage space, associated parking and maneuvering areas and office space on the existing lease site. The actual square footage of the improvements will be contingent upon a ground survey. The total cost of the improvements is estimated to be approximately $450,000. Mr. Hansen has requested that his existing contracts identified as CSC No's. 9779, 17322, 17325, 17327, 25212 along with all subsequent amendments be extended for a period of ten years with two five-year options to renew. In exchange for the development of the leasehold improvements, City staff proposes to cancel the existing contracts and execute a new agreement ultimately bundling the contracts under one agreement. This will be more administratively efficient and allow for an extended term. as proposed by Mr. Hansen. For the remainder of the existing terms, for all contracts, the rates and subsequent increases will be applied as was previously negotiated. At the end of the original term, rental rates will then be adjusted to the rates in effect at that time as is published in the Department of Aviation Schedule of Rates and Charges and subject to an increase October 1, of any given year to reflect the upward percentage change, if any, in the Consumer Price Index. Sandpiper Aviation has contributed significantly to the success of Fort Worth Meacham International Airport through the successful promotion and management of their facilities. As a result of the contributions made by Sandpiper Aviation and the condition of the existing hangar, City staff is in support of this proposal, contingent upon the completion of the leasehold improvements. The site plan is in accordance with the Fort Worth Meacham International Airport Master Plan. The Federal Aviation Administration has reviewed the leasehold improvements and have no objections. The property is located in COUNCIL DISTRICT 2. http://apps.cfwnet.org/ecouncil/printmc.asp?id=5291&print=true&DocType=Print 11/11/2010 Page 2 of 2 FISCAL INFORMATION / CERTIFICATION: The Finance Director certifies that this action will have no material effect on City funds. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: Marc Ott (8476) Mike Feeley (871 5403) Mike Feeley (871 5403) ATTACHMENTS No attachments found. http://apps.cfwnet org/ecouncil/printmc.asp?id=5291&print=true&DocType=Print 11/11/2010