HomeMy WebLinkAboutContract 23685 03-09-98A10 :05 RCVD
CITY SECRETARY
CONTRACT NO. -21af
FBO GROUND LEASE AGREEMENT
This FBO Ground Lease Agreement is made and entered into this 11/1 day of
06hkez.7 199orby and between:
The CITY OF FORT WORTH, TEXAS, having offices at 1000 Throckmorton, Ft.
Worth, Tx. 76102, hereinafter referred to as the "Cily"; and ALLIANCE AIR
PARTNERS, LTD., a Texas limited partnership (successor in interest to Alliance Air
Services, Inc., formerly known as Pinnacle Air Services, Inc.), having an office at 2250
Alliance Boulevard, Fort Worth, Texas 76117, hereinafter referred to as the "Lessee."
Lessee's Federal Identification Number is
WITNESSETH THAT:
WHEREAS,the City is the owner of an airport consisting of approximately 520 acres of
land and facilities known as the Fort Worth Alliance Airport, located in the Counties of Denton
and Tarrant in the State of Texas, hereinafter,the"Airport"; and
WHEREAS, the City, as Lessor, and Alliance Air Services, Inc., as Lessee, entered into
that certain Lease Agreement dated December 15, 1993, and designated as City Secretary
Contract No. 2006 (the "Original Lease") for the lease of unimproved real property at the
Airport, together with improvements to be constructed thereon (the "Original Leased Premises"),
which Original Lease was assigned from Alliance Air Services, Inc. to Alliance Air Partners,
Ltd. on February 22, 1994; and
WHEREAS, the Original Lease contemplates and allows the Original Leased Premises
to be divided into separately platted portions for the purpose of constructing improvements on
such separately platted portions; and
WHEREAS, the Original Lease requires a separate lease agreement (in substantially the
form of the Original Lease, to the extent applicable, and otherwise subject to the terms and
conditions of Section 1.2 of the Original Lease) for each portion of the Original Leased Premises
that is divided into a separately platted portion for the construction of improvements; and
WHEREAS, the City has approved a division of the Original Leased Premises in a
separately platted portion for the purpose of constructing an FBO Facility (as defined in Section
4.4 below); and
WHEREAS, the City and Lessee desire to enter into this separate FBO Ground Lease
Agreement (the "FBO Ground Lease") for such separately platted portion of the Original Leased
Premises upon which the FBO Facility will be constructed. maAL RE00 RD
F70 KROH, WIL
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NOW, THEREFORE, in consideration of the premises and of the rents, covenants, and
conditions herein contained, the City does hereby lease to the Lessee a portion of the Original
Leased Premises as more particularly described in Article 2 hereof, hereinafter referred to as the
"Leased Premises," during the term hereof for the term and pursuant to the conditions hereinafter
set forth.
ARTICLE 1
TERM; NO CROSS DEFAULT
1.1 The term of this FBO Ground Lease shall begin on the "Effective Date," unless sooner
terminated in accordance with the provisions hereof, and shall terminate on September
27, 2025. The `Effective Date" is defined to be the date on which the City issues a
certificate of occupancy for the FBO Facility.
1.2 Notwithstanding any provision of the Original Lease to the contrary, Lessor and Lessee
acknowledge and agree:
1.2.1 that the Leased Premises (i) is a separately platted portion of the Original Leased
Premises and(ii) is no longer part of the Original Leased Premises; and
1.2.2 that no provision of the Original Lease (including, but not limited to, the obligation to
pay rental under the Original Lease) shall apply to this FBO Ground Lease or to the
Leased Premises; and
1.2.3 that no event of default under the Original Lease shall be an event of default under this
FBO Ground Lease or otherwise in any way affect the rights, obligations, or remedies of
the parties under this FBO Ground Lease; and
1.2.4 that no event of default under any other separate lease created pursuant to the Original
Lease shall be an event of default under this FBO Ground Lease or otherwise in any way
affect the rights, obligations, or remedies of the parties under this FBO Ground Lease;
and
1.2.5 that no event of default under this FBO Ground Lease shall be an event of default under
the Original Lease or otherwise in any way affect the rights, obligations, or remedies of
the parties under the Original Lease (other than as necessary to reflect the fact that the
Leased Premises are no longer part of the Original Leased Premises); and
1.2.6 that no event of default under this FBO Ground Lease shall be an event of default under
any other separate lease created pursuant to the Original Lease or otherwise in any way
affect the rights, obligations, or remedies of the parties under any such other separate
lease.
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ARTICLE 2
LEASED PREMISES
2.1 The "Leased Premises" shall consist of approximately 3.337 acres of unimproved real
property, being part of Alliance Airport Lot 1, Block 1, Cabinet A, Slide 622 (as
described on Exhibit A-1 attached hereto), together with all improvements (collectively,
the "Improvements")hereafter constructed thereon, including, but not limited to,the FBO
Facility.
2.2 Lessee shall also have the non-exclusive use of that portion of the paved.aircraft parking
apron (the "Transient Apron") that abuts the Leased Premises along the entire westerly
boundary of the Leased Premises. The Transient Apron area that abuts the Leased
Premises is shown on Exhibit A-2 attached hereto. If at any time during the term of this
FBO Ground Lease, Alliance Air Services, Inc. (or any of its affiliates) is not the operator
of the Airport, then Lessee, as further consideration for Lessee's use of the Transient
Apron, shall keep and maintain the Transient Apron free of trash, debris, and other
foreign objects that result from the use of the Transient Apron by Lessee or anyone
claiming a right by, through, or under Lessee. The City or the Airport operator shall
otherwise be responsible at all times for the maintenance and reconstruction of the
Transient Apron and shall maintain and keep the Transient Apron free from snow and ice;
all at the sole cost and expense of the City or the Airport operator. The timing of such
maintenance and reconstruction shall be at the City's sole discretion.
2.3 The Transient Apron is not a part of the Leased Premises.
ARTICLE 3
USE OF LEASED PREMISES
Lessee shall occupy and use the Leased Premises for any lawful purpose and in a manner
which conforms to the City's Minimum Standards for Fixed Base Operators and Other
Airport Tenants, as may be amended from time to time.
ARTICLE 4
RENT AND USE FEES
4.1 For use and occupancy of the Leased Premises and privileges herein granted, the Lessee
agrees to pay to the City during the period commencing on the Effective Date, an annual
rental equal to (i) 19¢ per square foot multiplied times (ii) the number of square feet
within the Leased Premises, subject to adjustment pursuant to Sections 4.2 and 4.7 below
and pursuant to Article 19 hereof(upon partial termination).
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4.2 Commencing on the first anniversary of the Effective Date, and on each anniversary
thereof during the remainder of the term of this FBO Ground Lease and any extension
thereof, the ground rental rate set forth in Section 4.1 above shall be adjusted based upon
the upward percentage change in the Consumer Price Index for the Dallas/Fort Worth
Metropolitan Area, as announced by the United States Department of Labor during any
preceding 12-month period or in accordance with the formula, index or other method, if
any, that is most favorable to Lessee of any of the formulas, indices, or methods being
used and actually applied by the City for the adjustment of any rental rates at the Airport.
4.2.1 Notwithstanding the per-square-foot rate specified in Section 4.1, above and
notwithstanding any adjustment thereof that would result from the application of Section
4.2 above, in no event shall the "effective" rental rate paid to the City by Lessee exceed
the "effective" rental rate being paid to the City by any other lessee or tenant at the
Airport (excluding any lease between the City and the FAA or other U.S. governmental
entities). The "effective" rate shall take into account all financial incentives, as well as
non-cash consideration, available to such other lessee or tenant, as negotiated by the City.
4.3 The annual rent payable hereunder shall be paid in equal monthly installments. Each
installment shall be made no later than the first day of that month for which payment is
due and shall be made at the office of the Airport operator or at such other office as may
be directed in writing by the City. The initial annual rental pursuant to Section 4.1 shall
be$27,618.35,payable in monthly installments of$2,301.53.
4.4 The Lessee, as additional rent, shall construct on the Leased Premises the improvements
more particularly described on ExhibitA-3 attached hereto (the "FBO Facility"). Lessor
acknowledges and agrees that the FBO Facility constitutes the "Initial Improvements," as
defined in the Original Lease, and that the FBO Facility conforms to the provisions of
Appendix A to the Original Lease and to the provisions of Exhibit B to the Original
Lease. Lessor further acknowledges and agrees that Lessor has approved plans and
specifications for(and has issued a building permit for)the FBO Facility.
4.5 The Lessee hereby agrees to pay all fuel flowage fees, landing fees and tie down fees
imposed by the City from time to time, provided such fees are not unjustly
discriminatory.
4.6 Notwithstanding any other provision of the Original Lease or this FBO Ground Lease, in
the event the enforceability or validity of any provision of the Management Agreement
between the City and Alliance Air Services, Inc. (dated December 15, 1993) for the
Management, Operation, and Maintenance of Fort Worth Alliance Airport is hereafter
challenged by the City or any third party: (i) and such challenge results in termination of
said Management Agreement, then Lessee shall be entitled to offset against rental and
other sums owed by Lessee to the City under this FBO Ground Lease the amount, if any,
of Alliance's "Risk Amount" (as defined in said Management Agreement); and (ii) if
such challenge does not result in such a termination, then Lessee shall be entitled to a
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similar offset in an amount equal to all actual and reasonable costs and expenses paid or
incurred by Alliance Air Services, Inc. in responding to and defending against such
challenge; provided, however, the amount of any offset applied to this FBO Ground
Lease, together with the amount of any offset applied to the Original Lease or any other
separate lease, shall not, in the aggregate, exceed the net ground rental paid to the Airport
operator under the Original Lease (excluding any ground rental paid directly to the City)
during the first 20 years of the Original Lease.
ARTICLE 5
ACCEPTANCE, CARE,MAINTENANCE,IMPROVEMENTS AND REPAIR
5.1 Lessee warrants it has inspected the Leased Premises and accepts possession of the
Leased Premises "as is" in its present condition, and subject to all limitations imposed
upon the use thereof by the rules and regulations of the Federal Aviation Administration
and by ordinances of the City, and admits its suitableness and sufficiency for the uses
permitted hereunder. Except as may otherwise be provided for herein, the City shall not
be required to maintain nor to make any improvements, repairs, or restoration upon or to
the Leased Premises or to any of the Improvements hereafter constructed thereon. The
City shall not have any obligation to repair, maintain, or restore, during the term of this
FBO Ground Lease, any Improvements placed upon the Leased Premises by the Lessee,
its successors and assigns.
5.2 The Lessee shall, throughout the term of this FBO Ground Lease, assume the entire
responsibility, cost, and expense for all repair and maintenance whatsoever of the Leased
Premises and all Improvements thereon in a good workmanlike manner, whether such
repair or maintenance be ordinary or extraordinary, structural or otherwise. Additionally,
the Lessee, without limiting the generality hereof, shall:
5.2.1 Keep at all times, in a clean and orderly condition and appearance, the Leased Premises,
all Improvements thereon and all of the Lessee's fixtures, equipment and personal
property which are located on any part of the Leased Premises.
5.2.2 Provide and maintain on the Leased Premises all obstruction lights and similar devices
and safety equipment required by law.
5.2.3 Repair any damage caused by Lessee to paving or other surface of the Leased Premises
caused by any oil, gasoline, grease, lubricants or other flammable liquids and substances
having a corrosive or detrimental effect thereon.
5.2.4 Take measures to prevent erosion, including, but not limited to, the planting and
replanting of grasses with respect to all portions of the Leased Premises not paved or built
upon; and in particular, shall plant,maintain and replant any landscaped areas.
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5.2.5 Be responsible for the maintenance and repair of all utility services lines placed on the
Leased Premises and used by the Lessee exclusively, including, but not limited to, water
lines, gas lines, electrical power and telephone conduits and lines, sanitary sewers and
storm sewers.
5.3 In the event the Lessee fails: (a) to commence to maintain, clean, repair, replace, rebuild
or repaint within a period of thirty (30) days after written notice from the City to do any
maintenance or repair work required to be done under the provisions of this FBO Ground
Lease, other than preventive maintenance; (b) or within a period of ninety (90) days if the
said notice specified that the work to be accomplished by the Lessee involves preventive
maintenance only; (c) or to diligently continue to completion any repairs, replacement,
rebuilding, painting or repainting as required under this FBO Ground Lease; then, the
City may enter the Leased Premises involved, without such entering causing or
constituting a termination of this FBO Ground Lease or an interference with the
possession of the Leased Premises, and repair, replace, rebuild or paint all or any part of
the Leased Premises or the Improvements thereon, and do all things reasonably necessary
to accomplish the work required, and the cost and expense thereof shall be payable to the
City by the Lessee on demand. Provided, however, if in the opinion of the City, the
Lessee's failure to perform any such maintenance endangers the safety of the public, the
employees or property of the City or other tenants at the Airport, and the City so states
same in its notice to the Lessee, the City may elect to perform such maintenance at any
time after the giving of such notice, and the Lessee agrees to pay to the City the cost and
expense of such performance, on demand. The City's costs and expenses shall include,
but not be limited to, all direct and indirect costs and expenses of the City, its agents,
contractors, and employees, and all financing charges, if any, and all allocations of fringe
benefits, overhead, legal, and administration charges the City deems appropriate.
Furthermore, should the City, its officers, employees or agents, undertake any work
hereunder, the Lessee hereby waives any claim for damages, consequential or otherwise,
as a result therefrom except for claims for damages arising from the negligence of the
City, its agents and contractors. The foregoing shall in no way affect or alter the primary
obligations of Lessee as set forth in this FBO Ground Lease and shall not impose or be
construed to impose upon the City any obligations to maintain the Leased Premises,
unless specifically stated otherwise herein.
5.4 Final plans and specifications for all repairs, construction, alterations, modifications,
additions or replacements of Improvements shall be submitted to the City by Lessee and
be accompanied by the City's Building Permit Application. The plan shall include
landscaping, architectural details and color schemes. The Building Permit Application
must receive the written approval of the City, and no such work shall be commenced until
such written approval is obtained from the City, which approval shall not be
unreasonably withheld or delayed, provided the architectural detail and aesthetics of the
Improvements are reasonably satisfactory to the City. The City shall advise the Lessee
within thirty (30) days after receipt of the written request, together with copies of the
plans and specifications for the proposed Improvements in sufficient detail to snake a
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proper review thereof, of its approval or disapproval of the proposed Improvements, and,
in the event it disapproves, stating its reason therefor. In determining whether to approve
a major repair, construction, alteration, modification, addition or replacement, the City
shall be guided by the criteria set forth in Section 2 of Appendix A to this FBO Ground
Lease.
5.5 If the Lessee makes any Improvements without City approval that are disapproved by the
City, then, upon reasonable notice to do so, the Lessee shall remove the same, or at the
option of the City cause the same to be changed to the reasonable satisfaction of the City.
If the Lessee fails to comply with such notice within thirty (30) days or to commence to
comply and pursue diligently to completion, the City may effect the removal or change
without any liability by the City for such removal or change, and the Lessee shall pay the
cost thereof(as defined in Section 5.3 hereof)to the City.
5.6 Upon the completion of construction or installation, title to all Improvements located on
the Leased Premises shall remain in the Lessee until the expiration or earlier termination
of this FBO Ground Lease, at which time title shall immediately vest in the City free and
clear of any and all claims on the part of the Lessee and free and clear of any mechanics'
and materialmen's liens by any person on account of any repair or improvement work
done or to be done under the terms hereof by the Lessee. This vesting of title in the City
at the time specified is a part of the consideration for this FBO Ground Lease. The City
shall not be liable (i) to assume, take subject to, or otherwise be responsible for the
payment or performance under any Leasehold Mortgage (as hereinafter defined) or (ii) to
the Lessee or the Lessee's contractors, Sublessees, or anyone else, for the value of any
Improvements constructed or located on the Leased Premises.
5.7 Lessee agrees to secure its obligations to maintain and repair the Leased Premises
through the execution and delivery of a "Pledge Agreement" in the form attached hereto
as Exhibit B. A separate pledge agreement will be executed for each Improvement
constructed pursuant to this FBO Ground Lease. The value of the collateral held pursuant
to each pledge agreement shall equal or exceed $2.00 per net rentable square foot of the
applicable Improvement.
ARTICLE 6
ADDITIONAL OBLIGATIONS OF LESSEE
6.1 The Lessee shall conduct its operations hereunder in an orderly and proper manner,
considering the nature of such operation, so as not to unreasonably annoy, disturb,
endanger or be offensive to others.
6.2 Further,the Lessee shall take all reasonable measures:
6.2.1 To reduce to a practicable minimum vibrations tending to damage any equipment,
structure, buildings or portions of buildings.
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6.2.2 Not to produce on the Airport, through the operation of machinery or equipment, any
electrical, electronic or other disturbance that interferes with the operation by the City or
the Federal Aviation Administration of air navigational, communication or flight
equipment on the Airport or on aircraft using the Airport or with ground transportation
communications.
6.3 The Lessee shall control the conduct and demeanor of its officers, agents, employees,
invitees and, upon objection from the City concerning the conduct or demeanor of any
such person, the Lessee shall immediately take all lawful steps necessary to remove the
cause of the objection. If the City shall so request, the Lessee agrees to supply and
require its employees to wear badges or other suitable means of identification, which
shall be subject to the prior and continuing approval of the Airport operator.
6.4 The Lessee shall comply with all health and safety laws and requirements and any other
federal, state or municipal laws, ordinances, rules, regulations and requirements
applicable to the Leased Premises and the Improvements thereon and its operations at the
Airport hereunder.
6.5 The Lessee shall comply with all written instructions of the City in disposing of its trash
and refuse at Lessee's expense. The Lessee shall be responsible for removal from the
Airport, or otherwise disposing of in a manner approved by the City, all garbage, debris
and other waste materials (whether solid or liquid) arising out of its occupancy of the
Leased Premises or out of its operations. The Lessee shall provide and use suitable
covered metal or other rigidly and sturdily constructed receptacles, suitably screened
from public view, for all garbage, trash and other refuse created on or arising in
connection with the activities conducted on the Leased Premises. Piling of boxes,
cartons, barrels or other similar items, in an unsightly or unsafe manner, on or about the
Leased Premises is forbidden. The manner of handling and disposing of trash, garbage
and other refuse and the frequency of removal thereof from the Airport shall at all times
be subject to the rules, regulations and approval of the City. Lessee shall use extreme
care when handling, disposing of, and removing all such waste to prevent littering the
Airport.
6.6 The Lessee shall cause no nuisance, waste or injury on or to the Leased Premises and
shall not do, or permit to be done, anything which may result in the creation, commission
or maintenance of such nuisance, waste or injury on or to the Leased Premises.
6.7 The Lessee shall not do, nor permit to be done, anything which may interfere with the
effectiveness or accessibility of the drainage system, sewer system, fire protection
system, sprinkler system, alarm system and fire hydrants and hoses, if any, installed or
located on the Leased Premises.
6.8 The Lessee shall take measures to insure security in compliance with Federal Aviation
Regulations and the Airport Security Plan.
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6.9 The Lessee shall not overload any floor, structure, structural member or paved area on the
Leased Premises, or paved area elsewhere on the Airport, and shall repair at the Lessee's
expense any floor, structure, structural member, or any paved area damaged by
overloading without limiting the Lessee's obligations pursuant to Article 5 above.
6.10 The Lessee shall not do, nor permit to be done, any act or thing upon the Leased
Premises:
6.10.1 which will invalidate or conflict with any fire insurance policies or regulations applicable
to the Leased Premises or any part thereof; or,
6.10.2 which may constitute a hazardous condition that increases the risks attendant upon the
operations permitted by this FBO Ground Lease.
6.11 The Lessee shall not use any flammable liquids within any covered or enclosed portion of
the Leased Premises, except those oils, solvents and fuels and other liquids used to repair
and maintain aircraft and ground equipment as long as such liquids are kept only in
working supply quantities. Any other supplies of such liquids shall be kept and stored in
safety containers of a type approved by the Underwriters Laboratories. The term
"working supply" as used in this Section 6.11 shall mean the amount consumed by the
Lessee and other parties using the Leased Premises during any normal work day.
6.12 From time to time, the City may conduct pressure, water flow, and other appropriate tests
of the fire extinguishing system and apparatus, if installed, which constitutes a part of the
Leased Premises; and the Lessee's proportionate share of the cost of such tests shall be
paid to the City by the Lessee upon demand.
6.13 Except for uses permitted under Article 3 hereof to be performed by the Lessee or the
Lessee's subcontractors,the Lessee shall provide prompt written notice to the City of any
person, firm or corporation performing aircraft maintenance work, flight instruction of
any sort, air taxi, aircraft charter or aircraft leasing of any sort, or any ground taxi services
and any other ground transportation for hire on the Leased Premises for commercial
purposes without a valid permit from the City.
6.14 It is the intent of the parties hereto that noise, including, but not limited to, noise caused
by aircraft engine operation, shall be held to a reasonable minimum. To this end, the
Lessee will conduct its operations in such a manner as to keep the noise produced by
aircraft engines and component parts thereof or any other noise,to a reasonable minimum
by such methods as are practicable considering the extent and type of the operations of
the Lessee. In addition, the Lessee will employ noise arresting and noise reducing
devices that are available and economically practicable, considering the extent of the
operations of the Lessee, but in no event less than those devices required by federal, state
or local law. In its use of the Leased Premises, the Lessee shall take all reasonable care,
caution and precaution, and shall use all reasonable efforts, to minimize prop or jet blast
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interference to aircraft operating on taxiways or to buildings, structures and roadways,
now located on or, which in the future may be located on areas adjacent to the Leased
Premises. In the event the City determines that the Lessee has not used all reasonable
efforts to curb the prop or jet blast interference, the Lessee hereby covenants and agrees
to erect and maintain, at its own expense, such structure or structures as may reasonably
be necessary to prevent prop or jet blast interference, subject, however to the prior written
approval of the City as to type, manner and method of construction, which approval shall
not be unreasonably withheld.
6.15 In the event of any product spills or other environmentally polluting discharges arising
from Lessee's equipment or caused by Lessee, its employees, agents or servants, clean up
of such spills or discharges and the payment of all fines and penalties (including the cost
of such cleanup) shall be the sole responsibility of the Lessee. The Lessee shall
immediately commence containment and clean up operations as necessary for operational
or safety consideration and shall notify the City and the appropriate state and federal
authorities immediately of the spill and such cleanup operation. Such cleanup shall be to
the standards required by the U.S. Environmental Protection Agency and any other
agency with jurisdiction over the Leased Premises. A spill or discharge means a
discharge of any petroleum or hazardous substance which is in such quantity or
concentration as may be harmful or which poses a foreseeable risk of harm to public
health or welfare or to natural resources or which is defined as a spill or discharge by
federal, state, or local laws, or ordinances. All costs of containment or clean up for such
spill or discharge shall be borne by the Lessee. The Lessee shall comply with all
applicable federal and state laws, regulations and rules regarding aboveground and
underground storage tanks. The obligations of Lessee under this Section 6.15 shall
survive the termination of this FBO Ground Lease.
AR'T'ICLE 7
INGRESS AND EGRESS
7.1 The Lessee shall have the right of ingress and egress between the Leased Premises and
the public landing areas at the Airport by means of connecting taxiways; and between the
Leased Premises and the entrance(s) to the Airport by means of connecting paved roads.
Such rights of ingress and egress shall be in common with others having rights of passage
thereon.
7.2 The use of any such roadway or taxiway shall be subject to the Rules and Regulations of
the Airport which are now in effect or which may hereafter be promulgated. The City
may, at any time, temporarily or permanently, close or consent to, or request the closing
of, any such roadway or taxiway and any other way at, in or near the Leased Premises
presently or hereafter used as such, so long as a reasonable means of ingress and egress as
provided above remains available to the Lessee. The Lessee hereby releases and
discharges the City, its officers, employees and agents, and all other governmental
authorities and their respective successors and assigns, of and from any and all claims,
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demands, or causes of action which the Lessee may now or at anytime hereafter have
against any of the foregoing, arising or alleged to arise out of the closing of any street,
roadway or other area,provided that a reasonable means of access to the Leased Premises
remains available to the Lessee. The Lessee shall not do or permit anything to be done
which will interfere with the free access and passage of others-to space adjacent to the
Leased Premises or in any streets or roadways on the Airport.
ARTICLE 8
INSURANCE DAMAGE OR DESTRUCTION
8.1 To safeguard the interest and property of the City,the Lessee, at its sole cost and expense,
shall procure and maintain through the term of this FBO Ground Lease insurance
protection for all risk coverage on the Improvements located on the Leased Premises to
the extent of one hundred percent (100%) of the actual replacement cost thereof. Such
insurance shall be written by insurers of recognized financial standing and authorized to
conduct business in the State of Texas. If said insurers become financially incapable of
performing under the terms of said policy, the Lessee shall promptly obtain a new policy
issued by a financially responsible and authorized carrier and shall submit such new
policy as previously provided.
8.1.1 The property insurance shall provide for thirty (3 0) days notice of cancellation or material
change, by registered mail, to the City, Attention: City Manager, and to the Airport
operator.
8.1.2 The Lessee shall settle all losses with the insurance carrier and shall consult with the City
and use all reasonable efforts to obtain a settlement that covers the cost of repairing or
rebuilding.
8.1.3 The Lessee shall provide certificates of insurance, marked "premium paid," evidencing
existence of all insurance required to be maintained prior to the commencement of this
FBO Ground Lease. Upon the failure of the Lessee to maintain such insurance as above
provided, the City, at its option, may take out such insurance and charge the cost thereof
to the Lessee, or City may give notice of default hereunder pursuant to Article 18 herein.
8.2 In the event any Improvements, insurable or uninsurable, on the Leased Premises are
damaged or destroyed, the use of all insurance proceeds and Lessee's obligations, if any,
to rebuild shall be governed solely by any Leasehold Mortgage(s) that covered the
Improvements at the time of the damage or destruction. If the damaged or destroyed
Improvements are not covered by any Leasehold Mortgages (or if covered by a Leasehold
Mortgage, the Leasehold Mortgagee does not require Lessee to rebuild), the Lessee shall
have the election of repairing or reconstructing the Improvements substantially as they
were immediately prior to such casualty or in a new or modified design, subject to the
provisions of Section 8.3 and 8.4 below, Article 5 hereof, and applicable building codes
existing at the time of repairing or rebuilding; or, notwithstanding the provisions of
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Article 5 hereof, not to reconstruct the Improvements, in which case the provisions of
Section 8.5 below shall apply. The Lessee shall give the City written notice of its
election hereunder within sixty (60) days after the occurrence of such casualty or the
adjustment of the claim, whichever is later. In the event of damage or destruction to any
of the Improvements upon the Leased Premises, the City shall have no obligation to
repair or rebuild the Improvements or any fixtures, equipment or other personal property
installed by the Lessee pursuant to this FBO Ground Lease.
8.3 If the damaged or destroyed Improvements are not covered by any Leasehold Mortgages,
the insurance proceeds shall be paid to an escrow agent (the "Escrow Agent') mutually
agreed upon by the Lessee and the City. If the Lessee elects to repair or reconstruct the
damaged Improvements, to the extent that any loss is recouped by payment to the Escrow
Agent of the proceeds of the insurance, the amount of such proceeds, together with any
interest thereon, will be paid to the Lessee to the extent necessary to cover its costs of
rebuilding or repairing the portion or all of the Leased Premises which have been
damaged or destroyed. Such payments will be made by the Escrow Agent to the Lessee,
subject to the prior written approval of the City, in installments as work progresses,
provided that as to each request for payment the Lessee shall certify to the Escrow Agent
and the City, by a responsible officer or authorized representative, that the amounts
requested are due and payable to its contractors for work completed. Upon completion of
all the work, the Lessee shall certify to the Escrow Agent and the City, by a responsible
officer or authorized representative, that such rebuilding and repairs have been
completed, that all costs in connection therewith have been paid by the Lessee and said
costs are fair and reasonable, and said certification shall also include an itemization of
costs. If the insurance proceeds are not sufficient, the Lessee agrees to bear and pay the
deficiency. If the insurance proceeds are in excess of all costs incurred, the Escrow
Agent shall pay such excess proceeds to Lessee. Nothing herein contained shall be
deemed to release the Lessee from any of its repair, maintenance or rebuilding obligations
under this FBO Ground Lease.
8.4 In the event the Lessee elects to repair or reconstruct as provided in Section 8.3 above,
Lessee, if it elects to continue its operation on the Airport, shall, at its expense, replace
and repair any and all fixtures, equipment and other personal property necessary to
properly and adequately continue its airport business on the Airport, but in no event shall
Lessee be obligated to provide equipment and fixtures in excess of those existing prior to
such damage or destruction, except for requirements of construction codes existing at the
time of repair or replacement. During such period of repair or replacement, the rentals
provided for elsewhere herein shall be proportionately abated during the period from the
date of such damage, destruction or loss until the same is repaired, replaced, restored or
rebuilt, according to the portion of the Improvements on the Leased Premises that are
used only for repair or rebuilding of same and not for the uses described in Article 3.
Such abatement shall not exceed the actual time required for arranging for and the doing
of such work. The proportional amount of reduction of rentals will be reasonably
determined by the City. The Lessee agrees that such work will be promptly commenced
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and prosecuted to completion with due diligence; subject to delays beyond the Lessee's
control.
8.5 If the damaged or destroyed Improvements are not covered by any Leasehold Mortgages
(or if covered by a Leasehold Mortgage, the Leasehold Mortgagee does not require
Lessee to rebuild), and if the Lessee shall elect not to repair or to reconstruct the damaged
Improvements, the Lessee shall, at its own cost and expense, remove all debris resulting
from such damage to the Leased Premises, including foundations, concrete piers,
pavement, etc., and shall stub up utilities and restore the surface to a level condition at its
original elevation, and the Escrow Agent shall deliver the balance of the insurance
proceeds to the City. Upon completion of such debris removal and restoration, and the
insurance proceeds payment by the Escrow Agent to the City, Lessee may elect to
terminate this FBO Ground Lease or continue to use the Leased Premises for other
aeronautical purposes. There shall be no obligation on the part of the City or the Escrow
Agent to reimburse the Lessee from the insurance proceeds for the loss or damage to
fixtures, equipment or other personal property of the Lessee. The Lessee, for its own
protection, may separately insure such fixtures, equipment or other personal property as
its interests may appear.
ARTICLE 9
LIABILITY INSURANCE AND INDEMNIFICATION
9.1 The City shall in no way, nor under any circumstances, be responsible for any property
belonging to the Lessee, its officers, agents, employees, licensees, invitees, tenants,
guests, patrons, contractors and subcontractors, which may be stolen, destroyed or in any
way damaged, and Lessee hereby covenants and agrees to indemnify, hold harmless, and
defend the City, and its officers, agents and employees, from and against any and all such
claims.
9.2 The Lessee hereby covenants and agrees to (i) indemnify, hold harmless, and defend the
City, and its officers, agents and employees, from and against any and all claims or suits
for property damage and/or personal injury, including death, to any and all persons, of
whatsoever kind or character, whether real or asserted, arising out of or in connection
with the operation, maintenance,use, or occupancy of the Leased Premises by the Lessee,
its officers, employees, contractors, subcontractors, licensees, or tenants, and (ii) provide
such insurance, as required in Section 9.3 hereof, covering the acts and omissions of all
named insureds, including the City; and the Lessee hereby assumes all liability and
responsibility for such claims or suits. The Lessee likewise shall assume all
responsibility and liability for, and shall indemnify and hold harmless the City, for any
and all injury or damage to the Airport, the Leased Premises or their facilities, arising out
of or in connection with the operation, maintenance, use or occupancy of the Leased
Premises,by the Lessee, its officers, employees, contractors, subcontractors, licensees, or
tenants.
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Upon the filing with the City of a claim for damages or injuries arising out of or in
colmection with the incidents for which the Lessee herein agrees to indemnify and hold
the City harmless, the City shall immediately notify the Lessee of such claim, and in the
event the Lessee does not settle or compromise such claim, then the Lessee shall provide,
at Lessee's expense, the legal defense for the City should any litigation or arbitration
result from such claim.
9.3 In addition to the Lessee's undertaking, as stated in this Article, and as a means of further
protecting the City, its officers, agents, servants and employees, the Lessee shall at all
times during the term of this FBO Ground Lease obtain and maintain in effect insurance
coverage consistent with the requirements of Section 9.2 hereof and Schedule A attached
hereto and made a part hereof. In this connection, the Lessee agrees to require its
contractors doing work on the Airport, and the Lessee's tenants and Sublessees, to carry
adequate insurance coverage.
9.3.1 The Lessee shall review its coverage annually and increase the minimum liability
insurance set forth in Schedule A to an amount when, in the Lessee's opinion, the risks
attendant to the Lessee's operations hereunder have increased. The City shall not be
liable for any shortfall in Lessee's coverage or the coverage of Lessee's tenants or
Sublessees. In no event shall the Lessee allow such insurance coverage to be below the
minimum requirements set forth in Schedule A. Failure to maintain such insurance in the
types and amounts specified herein shall constitute a material and substantial breach of
this FBO Ground Lease.
9.4 The Lessee represents that it is the owner of or Hilly authorized to use any and all
services, processes, machines, articles, marks, names or slogans used by it in its
operations under or anywise connected with this FBO Ground Lease. The Lessee agrees
to save and hold the City, its officers, employees, agents and representatives, free and
harmless of and from any loss, liability, expense, suit or claim for damages in connection
with any actual or alleged infringement of any patent, trademark or copyright, or arising
from any alleged or actual unfair competition or other similar claim, arising out of the
operations of the Lessee under or in anywise connected with this FBO Ground Lease.
ARTICLE 10
RULES AND REGULATIONS AND MINIMUM STANDARDS
From time to time the City may adopt and enforce Rules and Regulations and Minimum
Standards with respect to the occupancy and use of the Airport. The Lessee agrees to
observe and obey any and all such Rules and Regulations and Minimum Standards and
all other Federal, State and municipal rules, regulations and laws in effect from time to
time and to require its officers, agents, employees, tenants, Sublessees, contractors, and
suppliers,to observe and obey the salve. This provision will include compliance with the
Airport's Noise Abatement Plan, as promulgated. The City reserves the right to deny
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access to the Airport and its facilities to any person, firm or corporation that fails or
refuses to obey and, comply with such Rules and Regulations, laws and Minimum
Standards.
ARTICLE 11
SIGNS
The Lessee shall have the right to install and maintain one or more signs on the Leased
Premises identifying it and its operations, provided, however, the subject matter, type,
design, number, location and elevation of such signs, and whether lighted or unlighted,
shall be subject to and in accordance with the written approval of the City. No sign will
be approved which, in the City's opinion, may be confusing to aircraft pilots or
automobile drivers or other traffic or which fails to conform to the architectural scheme
of the Airport or meet the requirements of the City.
ARTICLE 12
LEASEHOLD MORTGAGES SUBLETTING AND ASSIGNMENT
12.1 Lessee shall have the right, at any time and from time to time, without the City's consent,
and on terms and conditions determined by Lessee to be appropriate, to mortgage, pledge,
grant deed(s) of trust, or otherwise encumber all or any portion of the leasehold estate
created hereby and all or any portion of the right, title, and interest of Lessee hereunder
(including Lessee's interest in the Improvements), and to assign, hypothecate, or pledge
the same as security for the payment of any debt to any holder of a promissory note or
other evidence of indebtedness (such notes, mortgages, deeds of trust, and other
documents evidencing and securing such loans shall be referred to as a "Leasehold
Mortgage"; and a holder of a Leasehold Mortgage as a "Leasehold Mortgagee"). No
Leasehold Mortgagee, trustee, or other person claiming by, through, or under any
Leasehold Mortgagee shall by virtue thereof acquire any liens on the fee interest of the
City in the Leased Premises or any greater right in the Leased Premises than Lessee then
had under this FBO Ground Lease, except for the rights expressly granted to such
Leasehold Mortgagee,trustee, or other person under the terms of this FBO Ground Lease.
All Leasehold Mortgages shall be subject to all of the conditions, covenants, and
obligations of this FBO Ground Lease and to all of the rights of the City hereunder.
Lessee shall also have the right to finance any Improvements (or any additions,
alterations, or improvement thereof) through the issuance of bonded indebtedness
secured, in whole or in part, by the Leased Premises, the Improvements, or any rents or
other revenues resulting therefrom.
After the execution and recordation of any Leasehold Mortgage, Lessee or the Leasehold
Mortgagee shall notify the City in writing that such Leasehold Mortgage has been given
and executed by Lessee and shall fiurnish the City with the address to which copies of
notices should be mailed. The City agrees that it will thereafter give to the Leasehold
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Mortgagee, at the address so given, duplicate copies of any and all notices in writing
which the City may from time to time give or serve upon Lessee under and pursuant to
the terms and provisions of this FBO Ground Lease. Such Leasehold Mortgagee shall
have the same cure rights available to Lessee with respect to any alleged failure by the
Lessee to perform under this FBO Ground Lease, and if the alleged failure is cured, the
City will accept such cure tendered by such Leasehold Mortgagee.
In addition to the cure rights of a Leasehold Mortgagee as described above, each
Leasehold Mortgagee shall also have the right to partially cure any alleged default by the
Lessee under this FBO Ground Lease to the extent that such default affects any portion of
the Leased Premises or Improvements covered by its Leasehold Mortgage (including, but
not limited to, a prorated payment of rent and use fees as set forth in Article 4 hereof). In
the event of such a partial cure by a Leasehold Mortgagee, the City agrees that this FBO
Ground Lease shall continue in full force and effect with respect to the portion of the
Leased Premises and Improvements covered by the Leasehold Mortgage of such
Leasehold Mortgagee; provided, however, all reasonable and necessary City costs related
to such documentation, including reasonable and necessary attorneys fees, shall be paid to
the City by Lessee. The City agrees to reasonably cooperate with Lessee and any
prospective Leasehold Mortgagee in documenting these partial cure rights in a manner
reasonably requested by such Leasehold Mortgagee.
No Leasehold Mortgagee shall be or become liable to the City as an assignee of this FBO
Ground Lease or otherwise until it expressly assumes such liability in writing, and no
assumption shall be inferred or result from foreclosure or other appropriate proceedings
in the nature thereof or as the result of any other action or remedy provided for by any
Leasehold Mortgage or other instrument executed in connection with such Leasehold
Mortgage or from a conveyance from Lessee pursuant to which the purchaser at
foreclosure (or grantee or transferee in lieu thereof) shall acquire the rights and interests
of Lessee under the terms of this FBO Ground Lease.
12.2 Lessee may enter into agreements (collectively, "Subleases") with sub-lessees, licensees,
and concessionaires (collectively, "Sublessees") for the right to use or occupy the Leased
Premises or the Improvements or any part thereof without the consent of the City;
provided, however, all Sublessees must still obtain FBO permits or commercial operating
permits, as applicable, from the City in accordance with the Minimum Standards in effect
from time to time. All Subleases shall be subordinate to all the terms, conditions, and
covenants of this FBO Ground Lease, and no such Sublease shall extend beyond the term
of this FBO Ground Lease.
12.3 Except as provided in Sections 12.1 and 12.2 above, the Lessee covenants and agrees that
it will not sell, convey, transfer, mortgage, pledge, or assign this FBO Ground Lease, or
any part hereof, or any interests herein, or any rights created hereby, without the prior
written consent of the City. The foregoing notwithstanding, the City, in consideration of
the investments by Lessee, agrees that (i) Lessee may, without the consent of the City,
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assign all or any portion of its interest in this FBO Ground Leases the Leased Premises,
or the Improvements to any "Affiliate" (i.e., any entity that controls, is controlled by, or
is under common control with the Lessee) of Lessee and (ii) the City will consent to the
assignment of this FBO Ground Lease by the Lessee to a responsible third parry,
provided, that the request for the City's consent is in writing and presented at least sixty
days prior to the date of assignment and provided further, that the City determines, in its
sole discretion and to its satisfaction, that the prospective assignee is financially and
operationally responsible to fulfill the duties and responsibilities prescribed by this FBO
Ground Lease. The City shall not unreasonably delay action on the Lessee's request for
its consent; provided, however, that any such consent shall be given only by formal
action of the City Council of the City of Fort Worth.
12.4 Except as provided in Section 12.1 and Section 12.2 above, any attempted assignment or
transfer of this FBO Ground Lease, or any rights of the Lessee hereunder, without the
prior written consent of the City, shall be void.
12.5 Any assignment of this FBO Ground Lease shall be on the condition that the assignee
accepts and agrees.to all of the terms, conditions and provision of this FBO Ground Lease
and agrees to accept and discharge all of the covenants and obligations of the Lessee
hereunder, including, but not limited to, the payment of all stuns due and to become due
by Lessee under the terms hereof.
12.6 No Sublease shall in any way relieve the Lessee of any of its obligations to the City set
forth or arising from this FBO Ground Lease. Any termination of the Lessee's rights
hereunder shall only give the City the right to terminate "below-market" Subleases with
Affiliates (defined in Section 12.3 above) of Lessee. All other Subleases, however, shall
survive any termination of Lessee's rights hereunder, and the rights of such Sublessees
shall not be disturbed so long as they perform in accordance with their respective
Subleases. Any surviving Sublessee shall be deemed to have agreed to attorn to the City,
and from that time the City shall have all of the rights and remedies of Lessee under all
such Subleases.
12.7 If the Lessee assigns, sells, conveys, transfers, mortgages, or pledges this FBO Ground
Lease in violation of the foregoing provisions of this Article, the City may collect from
such assignee, or anyone else who claims a right to this FBO Ground Lease or who
occupies the Leased Premises, any charges or fees payable by it and may apply the net
amount collected to the rents hereunder, and no such collection shall be deemed a waiver
by the City of the agreements contained in this Article nor of acceptance by the City of
any assignee, claimant, or occupant, nor as a release of the Lessee by the City from the
further performance by the Lessee of the agreements contained herein.
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ARTICLE 13
CONDEMNATION
13.1 In the event that the Leased Premises or any part thereof shall be condemned and taken
by authority of eminent domain for any purpose during the term of this FBO Ground
Lease or sold to such authority in lieu of a taking (collectively, a "condemnation"), any
award which shall be made as a result of such condemnation (i) if for the fee interest in
the Leased Premises, shall be paid to the City and (ii) if for the leasehold interest in the
Leased Premises or for any interest in any Improvements placed, located, or constructed
thereon, shall be paid to Lessee and any Leasehold Mortgagees in accordance with the
rights under any Leasehold Mortgages, it being understood that the City has fee title to
the real property and title to all Improvements thereon is vested in the Lessee until the
expiration or earlier termination of this FBO Ground Lease. Either party, consistent with
its rights under applicable law, may appear in any such condemnation proceeding and
present its claims for damages, if any, arising from such condemnation.
13.2 Rentals for that portion of the Leased Premises condemned shall be abated from the date
that the Lessee is dispossessed therefrom; provided, however, if all of the Leased
Premises are condemned, or if a portion of the Leased Premises are condemned and in the
Lessee's judgment, the remaining portion of the Leased Premises is insufficient for the
Lessee's operations authorized hereunder, the Lessee may terminate this FBO Ground
Lease, and all of its rights and unaccrued obligations hereunder effective as of the date of
the taking of the condemned portion by giving the City written notice of its desire to
terminate.
13.3 The Lessee shall be entitled to the award made for a temporary taking of possession of all
or part of the Leased Premises for any period of time within the term of this FBO Ground
Lease. Such award shall be full compensation to the Lessee for such temporary taking
and no claims for damages arising out of the temporary taking shall be made against the
City.
ARTICLE 14
NON-DISCRIMINATION
14.1 The Lessee, for itself and on behalf of its heirs, personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby covenant and
agree, as a covenant running with the land, that in the event facilities are constructed,
maintained, or otherwise operated on the Leased Premises for a purpose for which a
United States Government program or activity is extended, the Lessee shall maintain and
operate such facilities and services in compliance with all other requirements imposed
pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle
A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of
the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964,
and as said Regulations may be amended.
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14.2 The Lessee, for itself and on behalf of its personal representatives, successors in interest
and assigns, as a part of the consideration hereof, does hereby covenant and agree as a
covenant running with the land that (i) no person on the grounds of race, color, or
national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of the Leased Premises; (ii) that in the
construction of any Improvements on, over, or under such land and the furnishing of
services thereon, no person on the grounds of race, .color, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be subjected to
discrimination, (iii) that the Lessee shall use the Leased Premises in compliance with all
other requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
Nondiscrimination in Federally assisted programs of the Department of Transportation-
Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended.
14.3 In this connection, the City reserves the right to take whatever action it might be entitled
by law to take in order to enforce this provision. This provision is to be considered as a
covenant on the part of the Lessee, a breach of which, continuing after notice by the City
to cease and desist, will constitute a material breach of this FBO Ground Lease and will
entitle the City, at its option, to exercise its right of termination as provided for herein, or
take any action that it deems necessary to enforce compliance herewith.
14.4 The Lessee shall include the foregoing provisions in every agreement or concession
pursuant to which any person or persons, other than the Lessee; operates any facility at
the Leased Premises providing service to the public and shall include therein a provision
granting the City a right to take such action as the United States may allow or direct to
enforce such covenant.
14.5 The Lessee shall indemnify and hold harmless the City from any claims and demands of
third persons, including the United States of America, resulting from the Lessee's
noncompliance with any of the provisions of this Section and the Lessee shall reimburse
the City for any loss or expense incurred by reason of such noncompliance.
14.6 To the extent legally required and applicable, the Lessee assures that it will undertake an
affirmative action program as required by 14 CFR Part 152, Subpart E and 49 CFR Part
23, Subparts E & F, if applicable, to insure that no person shall on the grounds of race,
creed, color, national origin, or sex be excluded from participation in any employment
activities covered in 14 CFR Part 152, Subpart E and 49 CFR Part 23, Subparts E & F, if
applicable. The Lessee assures that no person shall be excluded on these grounds from
participating in or receiving the services or benefits of any program or activity covered by
this subpart. The Lessee assures that it will require that its tenants and Sublessees and its
covered suborganizations provide assurances to the Lessee that they similarly will
undertake affirmative action programs and that they will require assurances from their
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suborganizations, to the extent required by 14 CFR Part 152, Subpart E and 49 CFR Part
23, Subparts E &F, if applicable,to the same effect.
ARTICLE 15
GOVERNMENTAL REQUIREMENTS
15.1 The Lessee shall procure all licenses, certificates,permits, or other authorizations from all
governmental authorities, if any, having jurisdiction over the Lessee's operations at the
Leased Premises which may be necessary for the Lessee's operations thereat.
15.2 The Lessee shall pay all taxes, license, certification, permit and examination fees, and
excise taxes which may be assessed, levied, exacted, or imposed on the Leased Premises
or operation hereunder or on the gross receipts or gross income to the Lessee therefrom,
and shall make all applications,reports and returns required in connection therewith.
15.3 In addition to compliance by the Lessee with all laws, ordinances, governmental rules,
regulations, and orders now or at any time in effect during the term hereunder which, as a
matter of law, are applicable to the operation, use or maintenance by the Lessee of the
Leased Premises or the operations of the Lessee under this FBO Ground Lease, the
Lessee agrees that it shall conduct all its operations under this FBO Ground Lease and
shall operate, use, and maintain the Leased Premises in such manner that there will be at
all times a practicable minimum of air pollution or any other type of pollution, and in
accordance with Section 6.14, a practicable minimum of noise emanating from, arising
out of, or resulting from the operation, use, or maintenance of the Leased Premises by the
Lessee and from the operations of the Lessee under this FBO Ground Lease.
15.3.1 The City hereby reserves the right from time to time and at any time during the term of
this FBO Ground Lease to require the Lessee, and the Lessee agrees, to design and
construct at its sole cost and expense such reasonable structures, fences, equipment,
devices, and other facilities as may be necessary or appropriate to accomplish the
objective as set forth in Section 15.3 hereof. All locations, the manner, type, and method
of construction and the size of any of the foregoing shall be determined by the City.
15.3.2 The Lessee shall submit for City approval an application together with its plans and
specifications covering the required work or any other work and, subject to receiving
such approval, shall proceed diligently to construct the same.
ARTICLE 16
RIGHTS OF ENTRY RESERVED
16.1 The City, by its officers, employees, agents, representatives, and contractors, shall have
the right at all reasonable times to enter upon the Leased Premises for any and all
reasonable purposes not inconsistent with this FBO Ground Lease.
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16.2 Without limiting the generality of the foregoing, the City, by its officers, employees,
agents, representatives contractors, and furnishers of utilities and other services, shall
have the right, at its own cost and expense, whether for its own benefit or for the benefit
of others than the Lessee at the Airport, to maintain existing and future underground
mechanical, underground electrical and other underground utility systems and to enter
upon the Leased Premises at all reasonable times, and upon notice to Lessee, to make
such repairs, replacements, or alterations thereto, as may, in the opinion of the City, be
deemed necessary or advisable, and from time to time (with the prior written approval of
Lessee, which approval will not be unreasonably withheld) to construct or install under
the Leased Premises such underground systems or parts thereof and, in connection with
such maintenance, use the Leased Premises for access to such underground systems. The
City agrees that in the event it exercises the rights reserved in this Section 16.2, the City,
at its costs and expense, shall repair any damage to the Leased Premises that result
therefrom (including damage caused by the City or its employees, agents, representatives,
contractors, or any other person to whom such rights have been assigned). It is
specifically understood and agreed that the reservation of the aforesaid right by the City
shall not impose or be construed to impose upon the City any obligation to repair,
replace, or alter any utility service lines now or hereafter located on the Leased Premises
for the purpose of providing utility services only to the Leased Premises.
16.3 In the event that any personal property of the Lessee shall obstruct the access of the City,
its officers, employees, agents, or contractors, or the utility company furnishing utility
service to any of the underground utility systems described in Section 16.2 above, and
thus shall interfere with the inspection, maintenance, or repair of any such system
pursuant to Section 16.2, the Lessee shall move such property, as directed by the City or
said utility company, in order that access may be had to the system or part thereof for
inspection, maintenance or repair. If the Lessee shall fail to so move such property after
direction from the City or said utility company to do so, the City or the utility company
may move it, and the Lessee hereby agrees to pay the cost of such moving upon demand,
and further the Lessee hereby waives any claims against the City for damages as a result
therefrom.
16.4 Exercise of any or all of the foregoing rights in this Article, by the City, or others under
right of the City, shall not be, nor be construed to be, an eviction of the Lessee, nor be
made the grounds for any abatement of rental nor any claim or demand for damages
against the City, consequential or otherwise.
ARTICLE 17
ADDITIONAL RENTS AND CHARGES
17.1 Except as provided in Section 5.3 (b), in the event the Lessee fails within thirty (30) days
after receipt of written notice from the City to perform or commence to perform any
obligation required herein to be performed by the Lessee,.the City may enter the Leased
Premises (without any liability for such entry and without such entering causing or
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constituting a cancellation of this FBO Ground Lease or an interference with the
possession of such Leased Premises by the Lessee) and do all things reasonably necessary
to perform such obligation, charging to the Lessee the cost and expense thereof, and the
Lessee agrees to pay to the City upon demand such charge in addition to any other
amounts payable by the Lessee hereunder. Provided, however, that if the Lessee's failure
to perform any such obligation endangers the safety of the public or employees or
property of the City or other tenants of the Airport, and the City so states in its notice to
the Lessee, the City (without any liability to the Lessee) may perform such obligation of
the Lessee at any time after the giving of such notice and charge to the Lessee the
reasonable cost and expense thereof which the Lessee shall pay upon demand.
17.2 If the City elects to pay any sum or sums or incur any obligation or expense by reason of
the failure, neglect, or refusal of the Lessee to perform or fulfill any one or more of the
conditions, covenants, or agreements contained in this FBO Ground Lease, or as the
result of any act or omission of the Lessee contrary to said conditions, covenants, or
agreements, the Lessee hereby agrees to pay the sum or sums so paid or expense so
incurred by the City as the result of such failure, neglect, or refusal of the Lessee,
including interest, not to exceed twelve percent (12%) per annum, together with all costs,
damages and penalties. n such event, the total of such amounts may be added to any
installment of rent thereafter due hereunder, and each and every part of the same shall be
and become additional rent recoverable by the City in the same manner and with like
remedies as if it were originally a part of the rent provided for in this FBO Ground Lease.
ARTICLE 18
TERMINATION BY THE CITY
18.1 In the event Lessee (or any successor in interest to Lessee) ceases to pay the full amount
of rental or any other charges required by this FBO Ground Lease to be paid to the City,
the City shall give written notice to the Lessee of such default. If, within fifteen (15)
days after the date the City gives such notice, the Lessee has not corrected said default
and paid the delinquent amount in full, the City may by written notice to the Lessee
terminate this FBO Ground Lease and all rights and privileges granted hereby in and to
the Leased Premises.
18.2 Upon the default by the Lessee in the performance of any covenant or conditions required
to be performed by the Lessee, and the failure of the Lessee to commence to remedy such
default for a period of thirty (30) days after receipt fiom the City of written notice to
remedy the same (except as otherwise provided in Section 5.3(b) above) and thereafter
diligently pursue the completion of such remedy and, except default in the timely
payment of any money due the City, within fifteen (15) days after notice to Lessee, the
City shall have the right to terminate this FBO Ground Lease for such cause by giving
written notice of termination to the Lessee. Notwithstanding the fact that Lessee may be
diligently pursuing the completion of any remedy, Lessee must substantially complete
such remedy within nine months after beginning same.
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18.3 Upon the default by Lessee, and the giving of notice of the default by the City as
provided for elsewhere herein, and the expiration of all applicable cure periods, the notice
of termination shall become final; provided, however, that should the City determine that
the Lessee is diligently remedying such default to completion, the City may withhold said
notice of termination. If, however, the City determines, in its reasonable discretion, that
such default is no longer being diligently remedied to conclusion, the City shall have the
right to issue said notice of termination, and said notice of termination shall no longer be
held in abeyance for any reason and shall become final upon notice to the Lessee.
18.4 Upon termination of this FBO Ground Lease for any reason, all rights of the Lessee shall
terminate. The rights of any Sublessees who are Affiliates of Lessee and who occupy the
Leased Premises at "below-market" rates shall also terminate. The rights of other
Sublessees, however, shall not terminate, and their rights shall not be disturbed so long as
they perform in accordance with their respective Subleases. Upon such termination, the
Leased Premises, except for Lessee's equipment, fixtures, and other personal property
which may be removed from said Leased Premises as provided elsewhere herein, shall be
free and clear of all claims of the Lessee, and the City shall have immediate right of
possession to the Leased Premises. The City shall not be liable (i) to assume, take subject
to, or otherwise be responsible for the payment or performance under any Leasehold
Mortgage or (ii) to Lessee or Lessee's contractors, Sublessees, or anyone else, for the
value of Improvements constructed or located on the Leased Premises.
18.5 Failure by the City to take any authorized action upon default by the Lessee of any of the
terms, covenants or conditions required to be performed, kept, and observed by the
Lessee shall not be construed to be, nor act as, a waiver of said default nor of any
subsequent default of any of the terms, covenants and conditions contained herein to be
performed, kept, and observed by the Lessee. Acceptance of rentals by the City from the
Lessee, or performance by the City under the terms hereof, for any period or periods after
a default by the Lessee of any of the terms, covenants, and conditions herein required to
be performed, kept and observed by the Lessee shall not be deemed a waiver or estoppel
of any right on the part of the City to cancel this FBO Ground Lease for any subsequent
failure by the Lessee to so perform, keep, or observe any of said terms, covenants or
conditions.
18.6 Foreclosure by Leasehold Mortgagee. Notwithstanding anything in this FBO Ground
Lease to the contrary, the City shall not be entitled to exercise its right to terminate this
FBO Ground Lease as provided in this Article 18 during the period that a Leasehold
Mortgagee shall require to (i) foreclose its mortgage or otherwise to fulfill or complete its
remedies under its Leasehold Mortgage or (ii) cure any default under this FBO Ground
Lease; provided, however, such period shall not exceed 180 days after the City gives
notice of termination pursuant to Section 18.1 and Section 18.2 hereof and provided
further that within such period: (a) such Leasehold Mortgagee proceeds promptly and
with due diligence with its remedies under its Leasehold Mortgage or its cure under this
FBO Ground Lease; (b) there is timely paid to the City the rental and all other sums
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which have, or may, become due and payable with respect to the portion of the Leased
Premises or Improvements covered by the Leasehold Mortgage of such Leasehold
Mortgagee and (c) and all other terms and provisions of this FBO Ground Lease, to the
extent they are applicable to the portion of the Leased Premises covered by the Leasehold
Mortgage of such Leasehold Mortgagee, are duly complied with by such Leasehold
Mortgagee.
18.7 No Voluntary Surrender of Leasehold Estate Without Consent of Leasehold Mortgagee.
So long as there exists an unpaid or undischarged Leasehold Mortgage on the estate of
Lessee created hereby, the City expressly agrees for the benefit of the Leasehold
Mortgagee that it will not accept from Lessee a voluntary surrender of the Leased
Premises or a cancellation or amendment of this FBO Ground Lease prior to the
expiration of this FBO Ground Lease without the written consent of the Leasehold
Mortgagee.
18.8 New Lease with Leasehold Mortgagee upon Termination. If this FBO Ground Lease
shall terminate for any reason, the City agrees that the Leasehold Mortgagee shall have
the right, for a period of 90 days subsequent to such termination of this FBO Ground
Lease, to deliver to the City written notice of the Leasehold Mortgagee's election to
execute a new lease of the Leased Premises of the character and, when executed and
delivered and possession of the Leased Premises is taken thereunder, having the effect
hereinafter set forth. The new lease shall be executed by the City and the Leasehold
Mortgagee within 15 days after the receipt by the City of such written notice. Such new
lease shall be for a term to commence at the termination of this FBO Ground Lease and
shall have as the date for the expiration thereof the same date stated in this FBO Ground
Lease as the date for the expiration hereof. The rent thereof shall be at the same rate as
would have been applicable during such term under the provisions of this FBO Ground
Lease had this FBO Ground Lease not so tenninated, and all the rents, covenants,
conditions, and provisions of such new lease, including, but not limited to, the
conditional limitations set forth in this FBO Ground Lease, shall be the same as the
terms, conditions and provisions of this FBO Ground Lease. The Leasehold Mortgagee
shall, at the time of the execution and delivery of such new lease,pay to the City all rental
and other sums which would have become payable hereunder by Lessee to the City to the
date of the execution and delivery of such new lease had this FBO Ground Lease not
terminated, and which remain unpaid at the time of the execution and delivery of such
new lease, together with reasonable attorney's fees and expenses in connection therewith.
Any such new lease, as contemplated in this Section 18.8 may, at the option of the
Leasehold Mortgagee, be executed by a nominee of such holder, without' the Leasehold
Mortgagee assuming the burdens and obligations of Lessee thereunder beyond the period
of its ownership of the leasehold estate created hereby.
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ARTICLE 19
REMEDIES; SURRENDER; AND RIGHT OF RE-ENTRY
19.1 Limitation on City's Remedies. Notwithstanding any other provision in this FBO
Ground Lease to the contrary, upon any default by Lessee of any provision of this FBO
Ground Lease or upon any termination of this FBO Ground Lease for any reason
(including, but not limited to, any such default by Lessee), the City's sole and exclusive
remedy shall be to re-enter and take possession of the Leased Premises (or portion
thereof) and to take title to and possession of the Improvements (or portion thereof) then
located, placed, or constructed thereon, free from any claims by Lessee. The exercise of
such remedy (i) shall not obligate the City to assume, take subject to, or otherwise be
responsible for the payment or performance under any Leasehold Mortgage and (ii) shall
not affect the rights of any Sublessee (except Sublessees that are Affiliates of Lessee and
that occupy the Lease Premises at "below-market"rates). The remedy limitation set forth
in this Section 19.1 shall not apply to (a) any indemnity obligations of Lessee set forth in
this FBO Ground Lease; (b) to the repayment obligations of Lessee pursuant to Sections
5.3 or 5.4 hereof; or (c) to the obligations of Lessee pursuant to Section 6.15 hereof. In
addition, nothing contained in this FBO Ground Lease shall be interpreted to constitute
the personal obligations of Lessee to pay or perform under or in accordance with any
Leasehold Mortgage.
19.2 Upon the expiration or termination of this FBO Ground Lease pursuant to any terms
hereof,the Lessee agrees peaceably to surrender up the Leased Premises to the City in the
same condition as they were at the time of the commencement of the term hereof, and as
they may hereafter be repaired and improved by the Lessee; save and except, (a) such
normal wear and tear thereof as could not have been prevented by ordinary and usual
repairs and maintenance, (b) obsolescence in spite of repair, and (c) damage to or
destruction of the Improvements for which insurance proceeds are received by the City.
Upon such termination, the City may re-enter and repossess the Leased Premises together
with all Improvements. Furthermore, upon such termination, and for a reasonable time
thereafter (not exceeding thirty (30) days after such termination, and for which period the
Lessee will pay to the City current lease rentals), or during the term of this FBO Ground
Lease, if the Lessee is not in default in rentals or any other charges or obligations due the
City, the Lessee shall have the right to remove its personal property, fixtures and trade
equipment which it may have on the Leased Premises, provided the removal thereof does
not impair, limit, or destroy the utility of said Leased Premises or building for the
purpose for which they were constructed or unproved, and provided further that the
Lessee repairs all damages that might be occasioned by such removal and restores the
Leased Premises to the condition above required.
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ARTICLE 20
SERVICES TO LESSEE
20.1 The City covenants and agrees that during the term of this FBO Ground Lease it will
operate the Airport as such for the use and benefit of the public, provided however, that
the City may prohibit or limit any given type, kind, or class of aeronautical use of the
Airport if such action is necessary for the safe operation of the Airport or necessary to
serve the civil aviation needs of the public. The City further agrees to use its best efforts
to maintain the runways and taxiways in good repair. The City agrees to keep in good
repair hard-surfaced public roads for access to the Leased Premises. The City also agrees
to provide and maintain water and sanitary sewer services in areas designated for utilities
or easements adjacent to the Leased Premises for access thereto by the Lessee in
accordance with the City policy governing same.
20.2 The Lessee will contract with and obtain all required permits from the appropriate
departments for any utility services provided by the City for the Lessee, paying any
required connection fees, including those to be paid by owners, and all such services will
be provided at rates and on terms and conditions established by the City for similar users
in the City.
20.3 The Lessee will also contract with the furnishers of all other utilities for the furnishing of
such services to the Leased Premises and shall pay for all water, gas, electricity, sanitary
sewer service, other utilities, telephone, private security and fire protection services
furnished to the Leased Premises. The City shall allow the providers of such utilities
reasonable access to the boundaries of the Leased Premises for the installation of their
utility systems.
ARTICLE 21
THIS ARTICLE 21 INTENTIONALLY LEFT BLANK
ARTICLE 22
THIS ARTICLE 22 INTENTIONALLY LEFT BLAND
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ARTICLE 23
LIMITATION OF RIGHTS AND PRIVILEGES GRANTED
23.1 Except the exclusive right of the Lessee to possession of the Leased Premises, no
exclusive rights at the Airport are granted by this FBO Ground Lease, and no greater
rights or privileges with respect to the use of the Leased Premises or any part thereof are
granted or intended to be granted to the Lessee by this FBO Ground Lease, or by any
provision thereof,than the rights and privileges expressly and specifically granted hereby.
ARTICLE 24
NOTICES
24.1 All notices, consents and approvals required or desired to be given by the parties hereto
shall be sent in writing, and shall be deemed given when received at the recipient's notice
address, except that notice that must be given by a certain time to be effective and is sent
registered or certified mail, postage prepaid, return receipt requested, addressed to the
recipient's address shall be deemed given when posted. Notice that starts the running of a
time period and is delivered on a non-business day shall be deemed delivered on the next
business day if left at the notice address, or the next business day on which it is
redelivered if it is not left at the notice address.
24.2 The notice addresses of the parties are as follows:
To the City:
City Manager
City of Fort Worth
1000 Throckmorton
Ft. Worth, Texas 76102
and
Director Airport Systems
Meacham Airport
4201 North Main Street
Ft. Worth, Texas 76106
To The Lessee:
Alliance Air Partners,Ltd.
Attn: Timothy D. Ward
2250 Alliance Boulevard
Ft. Worth, Texas 76117
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and
Hillwood Development Corporation
Attn: Rick Patterson
2421 Westport Parkway
Suite 200
Ft. Worth, Texas 76177
Such addresses shall be subject to change from time to time to such other representatives
or addresses as may have been specified in written notice given by the intended recipient
to the sender.
24.3 Notice to Leasehold Mortgagee. Notwithstanding anything in this FBO Ground Lease to
the contrary, the City agrees, if and so long as the leasehold estate of Lessee is
encumbered by any Leasehold Mortgages in favor of any Leasehold Mortgagees, to give
the Leasehold Mortgagees (at such address or addresses as may be specified by said
Leasehold Mortgagees to the City in writing) duplicate copies of any and all notices in
writing which the City may from time to time give or serve upon Lessee under and
pursuant to the terms and provisions of this FBO Ground Lease, and no such notice to
Lessee shall be effective or be deemed to have been given to Lessee hereunder unless
such notice is also given to said Leasehold Mortgagees; and said Leasehold Mortgagees
shall have the right, within the said period of time as given to Lessee, and to the same
extent and with the same effect as though done by Lessee, to take such action or to make
such payment as may be necessary or appropriate to cure any event of default, it being the
intention of the parties hereto that the City shall not terminate this FBO Ground Lease or
Lessee's rights of possession hereunder without first affording to said Leasehold
Mortgagees the same rights and the same notices with respect to any such default and the
same period or periods of time within which to cure the same, including the right to enter
into possession of the Leased Premises.
ARTICLE 25
HOLDING OVER
25.1 No holding over by the Lessee after the termination of this FBO Ground Lease shall
operate to extend or renew this FBO Ground Lease for any further term whatsoever; but
the Lessee will by such holding over become a tenant at will of the City and, after written
notice by the City to vacate such premises, continued occupancy thereof by the Lessee
shall constitute the Lessee a trespasser.
25.2 Any holding over by the Lessee beyond the thirty (30) day period permitted for removal
of fixtures without the written consent of the City shall make the Lessee liable to the City
for damages equal to double the rentals provided for herein and which were in effect at
the termination of this FBO Ground Lease.
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25.3 All insurance coverage that the Lessee is required under the provisions hereof to maintain
in effect shall continue in effect for so long as the Lessee, or any of the Lessee's
Sublessees or tenants occupy the Leased Premises or any part thereof.
ARTICLE 26
INVALID PROVISIONS
26.1 The invalidity of any provisions, articles, paragraphs, portions, or clauses of this FBO
Ground Lease shall have no effect upon the validity of any other part or portion hereof, so
long as the remainder shall constitute an enforceable agreement.
ARTICLE 27
MISCELLANEOUS PROVISIONS
27.1 Non-Waiver of Rights
The failure by either parry to exercise any right, or rights accruing to it by virtue of the
breach of any covenant, condition or agreement herein by the other party shall not operate
as a waiver of the exercise of such right or rights in the event of any subsequent breach by
such other party, nor shall such other parry be relieved thereby from its obligations under
the terms hereof.
27.2 Non-liability of Individuals.
No director, officer, agent or employee of either party hereto shall be charged personally
or held contractually liable by or to the other party under any term or provision of this
FBO Ground Lease or of any supplement, modification or amendment to this FBO
Ground Lease because of any breach thereof or because of his or their execution or
attempted execution of the same.
27.3 Quiet Enjoyment.
The City covenants that as long as the Lessee is not in default of any provision of this
FBO Ground Lease,the Lessee shall and may peaceably and quietly have, hold and enjoy
the Leased Premises exclusively to it and the rights appurtenant to the Leased Premises
granted in this FBO Ground Lease during the term hereof unless sooner canceled as
provided in this FBO Ground Lease.
27.4 Estoppel Certificates.
At the request of the Lessee in connection with any Leasehold Mortgage, Sublease, or
assignment, the City shall execute and deliver a written statement addressed to such
Leasehold Mortgagee, Sublessee, or assignee identifying it as the Lessor under this FBO
Ground Lease and certifying: (i) the documents that then comprise this FBO Ground
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Lease, (ii) that this FBO Ground Lease is in full force and effect, (iii) the then current
annual amount of rent and the date through which it has been paid, (iv) the expiration
date of this FBO Ground Lease, (v) that no amounts are then owed by the Lessee to the
City (or, if amounts are owed, specifying the same), (vi) to the knowledge of the City,
there are no defaults by the Lessee, under this FBO Ground Lease or any facts which but
for the passage of time, the giving of notice or both would constitute such a default, (vii)
that the rights of Sublessees (except Sublessees that are Affiliates of Lessee and that
occupy the Leased Premises at"below-market"rates)will not be disturbed by any default
of Lessee, and (viii) any other fact or information reasonably requested by such
Leasehold Mortgagee, Sublessee, or assignee. The person or entity to whom such
statement is addressed shall be entitled to rely conclusively upon such written statement.
27.5 Short Form of Lease.
This FBO Ground Lease shall not be recorded, but at the request of either party, the other
shall execute a memorandum or short form of lease for recording.
27.6 General Provisions.
Lessee shall not use, or permit the use of, the Leased Premises, or any part thereof, for
any purpose or use other than those authorized by this FBO Ground Lease.
27.7 This FBO Ground Lease shall be performable and enforceable in Tarrant County, Texas,
and shall be construed in accordance with the laws of the State of Texas.
27.8 This FBO Ground Lease is made for the sole and exclusive benefit of the City and the
Lessee,their successors and assigns, and is not made for the benefit of any third party.
27.9 In the event of any ambiguity in any of the terms of this FBO Ground Lease, it shall not
be construed for or against any party hereto on the basis that such parry did or did not
author the same.
27.10 All covenants, stipulations and agreements in this FBO Ground Lease shall extend to and
bind each party hereto, its legal representatives, successors and assigns.
27.11 The titles of the several articles of this FBO Ground Lease are inserted herein for
convenience only, and are not intended and shall not be construed to affect in any manner
the terms and provisions hereof or the interpretation or construction thereof.
27.12 Nothing herein shall be construed as creating a joint enterprise or partnership between the
City and Lessee. Lessee shall at all times be considered an independent contractor in the
performance of the terms and conditions of this FBO Ground Lease, and shall be solely
responsible for the servants, employees, contractors, and subcontractors. The doctrine of
respondeat superior shall have no application as between the City and the Lessee.
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27.13 Leasehold Mortgagee Protection.
The City and Lessee shall cooperate in including in this FBO Ground Lease by suitable
amendment from time to time any provision which may reasonably be requested by any
proposed Leasehold Mortgagee for the purpose of implementing the mortgagee protection
provisions contained in this FBO Ground Lease and allowing such mortgagee reasonable
means to protect or preserve the lien of the Leasehold Mortgage on the occurrence of a
default under the terms of this FBO Ground Lease. The City and Lessee each agree to
execute and deliver (and to acknowledge, if necessary, for recording purposes) any
agreement necessary to effect any such amendment; provided, however, that any such
amendment shall not in any way affect the term or rent under this FBO Ground Lease nor
otherwise in any material respect adversely affect any rights of the City under this FBO
Ground Lease. It is understood and agreed, however, that if such amendments or
agreements vary the substantive rights of the parties as set forth in this FBO Ground
Lease, then such amendments or agreements must be approved by the City Council of the
City.
27.14 Nonmerger.
There shall be no merger of this FBO Ground Lease or the leasehold estate created hereby
with the fee estate in and to the Leased Premises by reason of the fact that this FBO
Ground Lease or the leasehold estate created hereby, or any interest in either of them,
may be held directly or indirectly by or for the account of any person who shall own the
fee estate in and to the Leased Premises, or any portion thereof,and no such merger shall
occur unless and until all persons at the time having any interest in the fee estate and all
persons having any interest in this FBO Ground Lease or the leasehold estate, including
the holder of any mortgage upon the fee estate, shall join in a written instrument effecting
such merger.
27.15 Force Majeure.
Any time period specified in this FBO Ground Lease for the performance of any
duty or obligation by either the City or Lessee shall be extended to include delays that
result from any cause beyond the reasonable control of either party.
27.16 Other Ground Leases.
If at anytime during the term of this FBO Ground Lease the City, as lessor, enters into
any other ground lease of real property located at Alliance Airport, and if such other
ground lease contains any terms, conditions, or other provisions (including, but not
limited to, the payment of rent and use fees, but excluding any provision that would
extend the 30-year term of this FBO Ground Lease) which, directly or indirectly, are
more favorable or beneficial to the lessee thereunder than are the terms, conditions, and
provisions of this FBO Ground Lease to Lessee; then the terms, conditions, and other
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07525.0013:0186279.04
provisions of this FBO Ground Lease shall be deemed to be automatically amended to the
extent necessary to confer substantially the same favorable or beneficial treatment upon
Lessee.
ARTICLE 28
SUBORDINATION CLAUSES
28.1 This FBO Ground Lease is subject and subordinate to the following:
28.1.1 The City reserves the right to develop and improve the Airport as it sees fit, regardless of
the desires or view of the Lessee, and without interference or hindrance by or on behalf of
the Lessee. Accordingly, nothing contained in this FBO Ground Lease shall be construed
to obligate the City to relocate the Lessee.
28.1.2 The City reserves the right to take any action'it considers necessary to protect the aerial
approaches to the Airport against obstruction, together with the right to prevent Lessee
from erecting or permitting to be erected any building or other structure on the Airport
which, in the opinion of the City, would limit the usefulness of the Airport or constitute a
hazard to aircraft.
28.1.3 This FBO Ground Lease is and shall be subordinate to the provisions of existing and
future agreements between the City and the United States relative to the operation or
maintenance of the Airport, the execution of which has been or may be required as a
condition precedent or relevant to the obtaining or expenditure of federal fiends for the
benefit of the Airport.
28.1.4 During the time of war or national emergency, the City shall have the right to lease all or
any part of the landing area or of the Airport to the United States for military or naval
use, and if any such lease is executed, the provisions of this FBO Ground Lease insofar as
they may be inconsistent with the provisions of such lease to the Government, shall be
suspended; but such suspension shall not extend the term of this FBO Ground Lease.
Abatement of rentals shall be reasonably determined by the City in proportion to the
degree of interference with the Lessee's use of the Leased Premises:
28.1.5 Except to the extent required for the performance of any obligations 'of the Lessee
hereunder, nothing contained in this FBO Ground Lease shall grant to the Lessee any
rights whatsoever in the airspace above the Leased Premises other than those rights which
are subject to Federal Aviation Administration rules, regulations and orders currently or
subsequently effective.
28.1.6 Nothing in this FBO Ground Lease obligates the City in any way to take any action that
is prohibited by the 1968 Concurrent Ordinance adopted by the City of Fort Worth and
the City of Dallas, Texas regarding the Dallas/Fort Worth International Airport. The
Lessee agrees that in the performance of this FBO Ground Lease, it will do no act and
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07525.0013:0186279.04
cause no omission that is inconsistent with, or that will place the City in violation of, the
1968 Concurrent Ordinance or any proceedings relating to the operation of the
Dallas/Fort Worth International Airport. The parties hereto acknowledge that the rights
and duties of the Lessee and the terms of this FBO Ground Lease may be qualified to the
extent that the provisions of the 1968 Concurrent Ordinance and proceedings relating to
the operation of the Dallas/Fort Worth International Airport govern the operation of the
Airport.
28.1.7 Notwithstanding anything to the contrary stated herein, any contractual or statutory lien
claimed by the City in all goods, wares, equipment, fixtures, furniture and other personal
property of Lessee presently or hereafter situated in the Leased Premises and all proceeds
therefrom (collectively, the "Collateral") (save and except liens for ad valorem taxes
levied on such personal property) shall be subject and subordinate to the rights, if any, of
any Leasehold Mortgagee, any holder of any Leasehold Mortgage or any holder of a lien
or security interest securing purchase money indebtedness covering any of the Collateral,
and the City agrees to execute such additional documents as shall be reasonably
necessary to effect or evidence such subordination. Lessee agrees to pay the City all
reasonable and necessary costs incurred by the City in connection with the negotiation,
preparation, review, and execution of such additional documents, including, but not
limited to, all reasonable and necessary attorneys' fees.
28.1.8 It is agreed and understood that nothing in this FBO Ground Lease shall be interpreted to
constitute an amendment or modification to the respective rights, duties, and obligations
of either the City or the Airport Operator under that certain Management Agreement
between Alliance Air Services, Inc., as Operator, and the City of Fort Worth dated
December 15, 1993. Notwithstanding the foregoing, however, in the event there is any
conflict between this FBO Ground Lease and any term or provision of the Management
Agreement that concerns, addresses, or deals with any ground lease of Airport property
(including constructing improvements and/or providing FBO services), this FBO Ground
Lease shall control.
28.1.9 Any person or entity to which this FBO Ground Lease (or any rights herein) is assigned,
conveyed, or otherwise transferred as a result of any foreclosure by any Leasehold
Mortgagee (or as a result of any deed or other transfer in lieu of foreclosure) shall be
bound by all terms and conditions of this FBO Ground Lease.
ARTICLE 29
VENUE
Should any action, whether real or asserted, at law or in equity, arise out of or in
connection with the terms and conditions of this FBO Ground Lease or the performance,
nonperformance or attempted performance hereof, venue for said action shall be in
Tarrant County, Texas.
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ARTICLE 30
ENTIRE AGREEMENT
30.1 This FBO Ground Lease consists of Articles 1 to 30, inclusive, Exhibits A-1 A-2 A-3,
and B, Schedule A and Appendix A.
30.2 This FBO Ground Lease constitutes the entire agreement of the parties hereto and may
not be changed, modified, discharged or extended except by written instrument duly
executed by the City and the Lessee. The parties agree that no representations or
warranties shall be binding upon the City or the Lessee unless expressed in writing in this
FBO Ground Lease.
IN WITNESS WHEREOF, the parties hereto have executed this FBO Ground Lease on
the day and year written above.
LESSOR:
ATTEST: CITY OF FORTH WORTH, TEXAS
By.
6
City Secretary Title: City Manager
LESSEE:
Approved As to Form
L galit ALLIANCE AIR PARTNERS, LTD.
aloe_
City Attorney By: Hillwood Property Company,
general partner
e:
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07525.0013:0186279.04
Schedule A
Lessee shall, at its own cost and expense, take out and maintain such insurance for the
term of this FBO Ground Lease as the Lessee is required to take out and maintain under
the Workers' Compensation Act; and also take out and maintain such public liability and
automobile liability insurance sufficient to fulfill the Lessee's indemnification obligations
set forth in Article 9 of this FBO Ground Lease. The policies shall provide the amounts of
insurance specified in this schedule A and shall name the City and its Airport Operator as
additional insureds for their own acts or omissions. Upon execution of this FBO Ground
Lease, certificates of insurance in form acceptable to the City and marked "premium
paid"must be submitted to the City. Each certificate shall have endorsed thereon:
A clause naming the City of Fort Worth and its Airport Operator, Alliance Air
Services, Inc., as additional insureds under the policies.
- "No cancellation or change in the policy shall become effective until after thirty
(30) days notice by registered mail to the City Manager, City of Ft. Worth, 1000
Throckmorton, Ft. Worth, TX. 76102."
Upon failure of Lessee to furnish, deliver and maintain such insurance as above provided,
the City may obtain such insurance and charge Lessee the cost of the insurance phis all
appropriate administrative charges and incidental expenses associated with the
transaction. Failure of Lessee to take out and/or maintain, or the taking out and/or
maintenance of any required insurance shall not relieve Lessee from any liability -under
this FBO Ground Lease, nor shall the insurance requirements be construed to conflict
with the obligations of Lessee concerning indemnification.
All required insurance must be in effect and so continue during the life of this FBO
Ground Lease in not less than the following amounts:
A. Workers' Compensation Unlimited Statutory in compliance with the
Compensation Law of the State of Texas.
B. General Liability Insurance with a maximum combined single limit of
$3,000,000.00 per occurrence. This insurance shall indicate on the Certificate(s)
of Insurance, marked"premium paid,"the following coverages:
Comprehensive General Liability
Premises/Operations
Contractual Liability
Independent Contractors
Products and Completed Operations
Broad Form Property Damage
Personal Injury
Execution Copy 1-18-97 Page 35
07525.0013:0186279.04
Hangar Keepers Liability
C. Auto Liability (single limit or occurrence $500,000.00). Owned, Non-owned and
Hired Location of operation shall be "All locations in Tarrant and Denton
Counties, Texas".
Nothing herein contained shall prevent the Lessee from taking out any other insurance for
protection of its interest which it deems advisable or necessary.
Execution Copy 1-18-97 Page 36
07525.0013:0186279.04
Appendix A
Construction by Lessee
I Prior to the commencement of construction of any Improvements, Lessee shall
submit to the City complete plans and specifications and an estimated time table
for such proposed construction.
2. The City may refuse to grant approval of Lessee's plans and specifications if, in
its reasonable opinion, the proposed facilities as laid out and indicated by the
Lessee on such plans or constructed according to such plans and specifications:
2.1 will be structurally unsound or unsafe or hazardous for human occupancy;
2.2 will not substantially comply with all the requirements of this FBO Ground Lease;
2.3 will be so located that there will not be sufficient clearances in respect to existing
or planned projecting aprons,runways or taxiways adjacent thereto;
2.4 will be in violation of any state code, OSHA-70, the National Electric and Fire
Protection Codes or any other laws, ordinances or regulations of any
governmental authority having jurisdiction over the Airport;
2.5 will not be at locations or not be oriented in accordance with the approved
comprehensive plans for the Airport.
3. Upon approval of such plans and specifications by the City, the Lessee shall
proceed expeditiously and with all reasonable diligence to construct, at its own
expense and cost, the facilities in accordance with such approved plans and
specifications and complete the facilities in accordance with the estimated time
table (subject to delays beyond Lessee's reasonable control).
3.1 At any time that Lessee undertakes construction of any Improvements in excess of
$25,000.00, Lessee shall, at its own cost and expense, cause to be made, executed
and delivered to the City a cash deposit or a pledge of government securities (in
the form attached herewith as Exhibit B) in an amount sufficient to secure
Lessee's construction obligations or two separate bonds in accordance with
Chapter 2253 of the Texas Government Code as follows:
(1) Prior to the date of commencement of construction, a contract surety bond
(performance bond) in a sum equal to the full amount of the construction
contract awarded. Said bond shall be drawn in a form and from such
company as approved by the City; shall guarantee the faithful performance
of necessary construction and completion of Improvements in accordance
with approved final plans and detailed specifications; and shall guarantee
Execution Copy 1-18-97 Page 37
07525.0013:0186279.04
the City against any losses and liability, damages, expenses, claims and
judgments caused by or resulting from any failure of Lessee to perform
completely the work described as herein provided.
(2) Prior to the date of commencement of construction, a payment bond with
Lessee's contractor or contractors as principal, in a sum equal to the full
amount of construction contract awarded. Said bond shall guarantee
payment of all wages for labor and services engaged and of all bills for
materials, supplies and equipment used in the performance of said
construction contract.
Bonds shall be standard performance and payment bonds provided by a licensed
surety company in the State of Texas.
4. All construction work shall be done in accordance with the following terms and
conditions:
4.1 The Lessee hereby assumes the risk of loss or damage to all of the construction
work prior to the completion thereof and the risk of loss or damage to all property
of the City arising out of or in connection with the performance of the
construction work. In the event of such loss or damage, the Lessee shall forthwith
repair, replace and make good the construction work and the property of the City
without cost or expense to the City.
4.2 The Lessee shall itself and shall require its contractors to indemnify, hold
harmless and defend the City, its officers, agents and employees from and against
any and all claims or suits for property damage and/or personal injury, including
death, to any and all persons, of whatsoever kind or character, whether real or
asserted, arising out of or in connection with any construction, maintenance or
repair work performed on or in connection with the Leased Premises, by the
Lessee, its officers, employees, contractors, subcontractors, licensees, invitees, or
tenants (and to provide such insurance as required in Section 4.7 of this
Appendix) covering the acts and omissions of the Lessee and its contractors; and
the Lessee shall itself assume and shall require its contractors to assume all
responsibility and liability for such claims or suits. The Lessee shall itself assume
and shall require its contractors to assume all responsibility and liability for, and
shall indemnify and hold harmless the City for any and all damage to or
destruction of Airport property, the Leased Premises, and their facilities, arising
out of or in connection with any construction, maintenance or repair work
performed on or in connection with the Leased Premises, by the Lessee, its
officers, employees, contractors, subcontractors, licensees, invitees, or tenants.
4.3 The Lessee shall identify a project manager during the construction period with
whom the City may communicate at all times.
Execution Copy 1-18-97 Page 38
07525.0013:0186279.04
4.4 The City shall have the right, through its duly designated representatives, to
inspect the construction work and the plans and specifications thereof, at any and
all reasonable times during the progress thereof and from time to time, in its
discretion, to take samples and perform testing on any part of the construction
work, but the taking of samples and testing shall be conducted so as to minimize
interference with the construction work.
4.5 The Lessee agrees that it shall deliver to the City "as-built" drawings (capable of
being reproduced) of the construction work and shall during the term of this FBO
Ground Lease keep said drawings current showing thereon any changes or
modifications which may be made. (No changes or modifications to be made
without the City's consent not to be unreasonably withheld or delayed.)
4.6 The Lessee shall pay or cause to be paid all claims lawfully made against it by its
contractors, subcontractors, materialmen and workmen, and all claims lawfully
made against it by other third persons arising out of or in connection with or
because of the performance of any repair, maintenance or construction work, and
shall cause its contractors and subcontractors to pay all such claims lawfully made
against them, provided, however, that nothing herein contained shall be construed
to limit the right of the Lessee to contest any claim of a contractor, subcontractor,
materialman, workman and/or other person and no such claim shall be considered
to be an obligation of the Lessee within the meaning of this Section unless and
until the same shall have been finally adjudicated. The Lessee shall use its best
efforts to resolve any such claims and shall keep the City fully informed of its
actions with respect thereto.
4.7 The Lessee shall procure and maintain comprehensive general liability insurance,
including automotive, with a contractual liability endorsement covering the
obligations assumed by the Lessee in Sections 4.1 and 4.2 of this Appendix,
which shall be in addition to all policies of insurance otherwise required under
this FBO Ground Lease; or the Lessee may provide such insurance by requiring
each contractor engaged by it for the construction work to procure and maintain
such insurance including such contractual liability endorsement. Said insurance
shall not contain any care, custody or control exclusions, any exclusion for
explosions, collapses or damage, or any exclusions for bodily injury to or
sickness, disease, or death of any employee of the Lessee or of any of its
contractors which would conflict with or in anyway impair coverage under the
contractual liability endorsement. Said insurance shall name the City, its officers,
its employees and its agents as additional insureds and be in not less than the
following amounts:
Execution Copy 1-18-97 Page 39
07525.0013:0186279.04
(i) Bodily Injury Liability:
For injury to or wrongful death
toone person................................................................................$1,000,000
For injury or wrongful death of more
than one person for any one occurrence.......................................$5,000,000
Aggregate Products Completed Operations.......................................$3,000,000
(ii) Property Damage Liability:
For all damages arising out of injury
to or destruction of property in any
one occurrence.............................................................................$3,000,000
Aggregate Products Completed Operations.......................................$3,000,000
Aggregate Operations ........................................................................$3)0005000
Aggregate Productive.........................................................................$3,000,000
Aggregate Contractual.......................................................................$3,000,000
The insurance required hereunder shall be maintained in effect during the
performance of the maintenance, repair or construction work. A certified copy of
each of the policies or a certificate or certificates' evidencing the existence
thereof, or binders, shall be delivered to the City at least fifteen (15) days prior to
the commencement of any work. In the event any binder is delivered, it shall be
replaced within thirty (30) days by a certified copy of the policy or a certificate.
Each such copy or certificate shall contain a valid provision or endorsement that
the policy may not be canceled, terminated, changed or modified without giving
fifteen(15) days' written advance notice thereof to the City.
-4.8 The Lessee shall procure and maintain or cause to be procured and maintained
Builder's Risk Completed Value Insurance covering the construction work during
the performance thereof, including material delivered to the construction site but
not attached to the realty, in an amount and form satisfactory to the City. Such
insurance shall name the City, the Lessee and its contractors and subcontractors as
additional assureds and such policy shall provide that the loss shall be adjusted in
accordance with Article 8 of this FBO Ground Lease. The policies or certificates
representing this insurance shall be delivered by the Lessee to the City prior to the
commencement of construction and each policy or certificate delivered shall bear
the endorsement of or be accompanied by evidence of payment of the premium
thereon and, also, a valid provision obligating the insurance company to furnish
the City fifteen (15) days' advance notice of the cancellation, termination, change
or modification of the insurance evidenced by said policy or certificate.
Execution Copy 1-18-97 Page 40
07525.0013:0186279.04
4.9 Nothing contained herein shall grant or be deemed to grant to any contractor,
architect, supplier, subcontractor or any other person engaged by the Lessee or
any of its contractors in the performance of any part of the construction work any
right of action or claim against the City, its officers, agents and employees with
respect to any work any of them may do in connection with the construction work.
4.10 Nothing contained herein shall create or be deemed to create any relationship
between the City and any such contractor, architect, suppliers subcontractor or
any other person engaged by the Lessee or any of its contractors in the
performance of any part of the construction work, and the City shall not be
responsible to any of the foregoing for any payments due or alleged to be due
thereto for any work performed or materials purchased in connection with the
construction work.
4.11 When the construction work is substantially completed and is ready for use by the
Lessee,the Lessee shall advise the City to such effect and shall deliver to the City
a certificate by an authorized officer of the Lessee certifying that such
construction work has been constructed substantially in accordance with the
approved plans and specifications and the provisions of this FBO Ground Lease
and in compliance with all applicable laws, ordinances and governmental rules,
regulations and orders. Thereafter, such construction work will be inspected by
the City and if the same has been completed as specified by the Lessee, a
certificate to such effect shall be delivered to the Lessee, subject to the condition
that all risks thereafter with respect to the construction and installation of the same
and any liability therefor for negligence or other reason shall be borne by the
Lessee.
The Lessee shall not use or permit the use of the construction work for the
purposes set forth in this FBO Ground Lease until such certificate is received
from the City. The date of delivery of the certificate by the City shall constitute
the Completion Date for the purposes of this FBO Ground Lease.
6. Other Construction by Lessee
Title to any construction, improvement, alteration, modification or addition
performed by Lessee at or on the Leased Premises in accordance with a City
approved building permit shall vest in the Lessee and remain in Lessee until the
expiration or earlier termination of this FBO Ground Lease.
Execution Copy 1-18-97 Page 41
07525.0013:0186279.04
Exhibit A-1
LEGAL DESCRIPTION
LEASE SITE-F.B.O. FACILITY
Being a tract of land situated in Lot 1, Block 1, Alliance Airport, an addition to the City of Fort Worth as
recorded in Plat Cabinet A. Slide 622, County Records, Tarrant County, Texas, said tract being more
particularly described by metes and bounds as follows:
BEGINNING at the northerly end of a curved comer dip where the northerly right-of-way line of Alliance.
Boulevard intersects the westerly right-of-way line of Jet Stream Way;
THENCE 31.42 feet along the arc of said curve and along said comer dip, through a central angle of
90 000'00",whose radius is 20.00 feet, the long chord of which bears S35006'47"W,28.28 feet,to the north
right-of-way line of Alliance Boulevard;
THENCE S80006'47"W. 14.00 feet to the beginning of a curve to the left;
THENCE 173.37 feet along the arc of said curve and along said right-of-way line, through a central angle
of 35 043'51", whose radius is 278.00 feet, the long chord of which bears S62014'52W, 170.57 feet to the
beginning of a curve to the right;
THENCE 28.18 feet along the arc of said curve,leaving the right-of-way line of said Jet Stream Way,through
a central angle of 80 043'51",whose radius Is 20.00 feet,the long chord of which bears 884044'52"W, 25.91
feet to the northeasterly right-of-way line of a 56 foot wide street right-of-way;
THENCE N54053'13"W, 25.09 feet along said right-of-way line to the beginning of a curve to the left;
THENCE 100.53 along the arc of said curve and along said right-of-way line, through a central angle of
45 000'00",whose radius Is 128.00 feet, the long chord of which bears N77023'13"W, 97.97 feet;
THENCE S80°06'47"W, 119.50 feet along said right-of-way line;
THENCE N09051'30"W, 307.50 feet;
THENCE N8000647"E, 449.72 feet to the westerly right-of-way line of said Jet Stream Way, and the
beginning of a curve to the right;
THENCE 1.67 feet along the arc of said curve and along said right-of-way line,through a central angle of
03°11'17", whose radius is 30.00 feet, the long chord of which bears S11 028'51"E, 1.67 feet;
THENCE S09 053'13"E,290.83 feet along said right-of way line to the POINT OF BEGINNING,and containing
145,360 square feet, or 3.337 acres of land, more or less.
Exhibit A-1
C
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SCALE= 1 " = 100'
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449.12'
06' 41 A=03°1 1 17"
R=30.00' o
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PART OF
ALLIANCE AIRPORT ,
LOT1, BLOCKI u 1
CABINET A, SLIDE 622 &=9o°00'00" j
R=20.00'
3. 337 ACRES T=20:00'
L.C.=S35°06'47"W
28.28'
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S80 006' 47"W
A=350 43'51" 14.00'
R=278.00'
L=173. 37' ���
T=89.61' PO(y11/ OF
o L.C. =S620 14' 52"W BEffiJVNIAG
N540 53' 13"W 170.57'
W 25.09' V� f
5 80°0650�� A=450 00' 00"
119. R=128.00'
L=100.53'
L.C3=N77°23' 13"W �Qv
97.97'
A=80°43' 51"
R=20. 00'
/L=28. 18'
T=17.00'
L.C.=584°44'52"W
25.91'
Ft4.x a m,d,h.emtronm..r
DATE 1/26/96 17 - SHT. N0.® rtc�. ur ess X DRAWN SMB B I T
��In e,4u.«f,q,Ad F .B.O .s FACILITY
CARTER& BURGESS,INC.
DESIGNED
3600 HUEN STOM
FT.W0VK 7K 76107-775
JOB N0. 961054-010 CHECKED JFK
Exhibit A-2
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SCALE= 1 " = 100'
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1
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449.72' E 1�
N B0°06' 4T" A=030 1 1' 17"
R=30.00' o
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T=0.83' 7�0
L.C.=S11°28'51"E "' �n
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PART OF
tD ALLIANCE AIRPORT
LOT1, BLOCKI 1
CABINET A, SLIDE 622 &=90°00,00" 1
R=20.00
3. 337 ACRES 00' 1
L.C.=S350 06'47"W 1
28.28'
.1
S80°06 47"W 1
A=35°43'51" 14.00' 1
o R=278.00'
L=173. 37' ��,�
T-89.61' PIO i .OF
L.C.=S620 14'52"W .�Q�INNI
N540 53' 13"W 170.57'
25.09'
80°06' 4i'W 4v
S 9.50' A=45°00' 00"
R=128.00'
- L=100.53'
T=53.02' /QV�
L.C.=N77°23' 13"W /
97.97'
A-80043'51"
R=20.00'
L=28. 18'
T=17.00'
L.C.=S84°44'52"W
25. 91'
rter°' Burgess LEASE EXH lB I T DATE 1/26/96 SHT. N0.
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CARTER& BURGESS,INC DESIGNED
3880 NUIEN STIM
FT.W08TF1,TX 76107-72S1
JOB NO. 961054-010 CHECKED JFK
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City of Fort Worth, Texas
Mayor and Council Communication'
DATE REFERENCE NUMBER LOG NAM PAGE
10/14/97 **1A 2106 1 12FI30] 1 1 of 1
SUBJECT FIXED BASE OPERATOR GROUND LEASE AT FORT WORTH ALLIANCE AIRPORT
WITH ALLIANCE AIR PARTNERS, LTD.
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a Fixed Base
Operator (FBO) Ground Lease of approximately 3.337 acres of unimproved land at Fort Worth
Alliance Airport with Alliance Air Partners, Ltd.
DISCUSSION:
Under City Secretary Contract No. 20061, as assigned (the "Lease"), the City has leased to
Alliance Air Partners, Ltd. .("Lessee"), approximately 4.735 acres of land also known as Parcel
No. 3, at Fort Worth Alliance Airport ("Airport"). The Lease provides that Lessee may divide
Parcel No. 3 into separately platted portions in order to construct improvements on the land and
that, in such an event, the parties will execute a separate lease. The approximately 3.337 acres
of land that will comprise the leased premises in the proposed lease constitute this type of
division of Parcel No. 3.
The term of the proposed lease will commence on the date that the lease is executed and expire
on September 27, 2025. Lessee shall pay annual rent in the amount of nineteen cents ($0.19)
per square foot, subject to an annual adjustment based on the upward percentage change in the
Consumer Price Index for the Dallas/Fort Worth Metropolitan Area for the previous twelve (12)
months. Lessee shall also pay all fuel flowage fees, landing fees and tie down fees imposed by
the City. In addition, Lessee plans to construct a Fixed Base Operator facility on the leased
premises. The City.will-haVe the right to review and approve all plans and specifications for this
facility. Title to the facility shall vest with Lessee until the expiration or earlier termination of the
proposed lease.
FISCAL INFORMATION/CERTIFICATION:
The Alliance Airport Manager is responsible for collection of funds from this lease.
CB:f
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
Ramon GuaJardo 6191 "r\r
r
Originating Department Head:
�
Wade Adkins 7623 (from) Lill q J" VJ
For Additional Information . ......
Contact:
Peter Vaky 7601
Printed on Recycled Paper