Loading...
HomeMy WebLinkAboutContract 31965 CITY SECRETARY CONTRACT NO. FORT WORTH SPINKS AIRPORT TANK FARM LEASE AND PUBLIC FUELING AGREEMENT FUEL FARM,SELF-SERVE UNITS,AND RAMP MANAGEMENT This TANK FARM LEASE AND PUBLIC FUELING AGREEMENT ("Lease") is made and entered into by and between the CITY OF FORT WORTH ("Lessor"), a home rule municipal corporation situated in Tarrant, Denton, and Wise counties,Texas, organized under the laws of the State of Texas, acting by and through Marc Ott, its duly authorized Assistant City Manager, and HARRISON AVIATION,LTD. ("Lessee"),a Texas limited partnership acting by and through John Cockerham on behalf of Haydn Cutler, the duly authorized President of Harrison Realty Investments,LLC, a Texas limited liability corporation and Lessee's sole general partner. In consideration of the mutual covenants, promises and obligations contained herein, Lessor and Lessee agree as follows: 1. PROPERTY LEASED. Lessor hereby demises to Lessee the following real property at Fort Worth Spinks Airport ("Airport"): (i) the fuel farm identified as the Fuel Farm and depicted on Exhibit"A,"attached hereto and hereby made a part of this Lease for all purposes, and (ii)the 2 self-serve fueling units, as depicted on Exhibits "B" and "C" (collectively, the"Premises"). Lessee, at Lessee's sole cost and expense, shal I have the Premises surveyed and, after Lessor and Lessee have approved such survey, the survey shall be incorporated herein for all purposes and, if agreed to by both Lessor and Lessee, may be attached to this Lease as part of or as a replacement to Exhibit"A." 1.2. Equipment Licensed for Lessee's Use. Lessor hereby licenses to Lessee the use of the equipment identified on Exhibit"D,"attached hereto and hereby made a part of this Lease for all purposes, from the Effective Date of this Lease until the expiration of the Initial Term or any Renewal Term or earlier termination of this Lease. Upon receipt of Lessor's written consent,Lessee, at Lessee's sole cost and expense, may upgrade or replace such equipment as necessary for Lessee's use of the Premises and operations at the Airport with furniture and equipment of a type and in a condition as good as or better than the equipment identified on Exhibit"D."Title to any such upgraded or replaced equipment shall vest in Lessor upon installation in the Premises unless Lessee delivers, the corresponding piece of equipment licensed hereunder to Lessor in accordance with Lessor's instructions, in which case title to such upgraded or replaced equipment shall remain with Lessee. Lessee may also use and retain title to equipment owned by Lessee other than tile equipment licensed hereunder in its provision of F130 services at the Airport. 2. TERM OF LEASE. 2.1. Initial Term. The"Initial Term" of this Lease shall commence at 12:00 A.M. on July I, 2005 ("Effective Date") and expire at 11:59 P.M. on September 30, 2010, unless terminated earlier as provided Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 1 of 21 " ' herein. 2.2. Renewals. Unless Lessee is in default under this Lease at the time, at Lessee's option, this Lease shall automatically renew for subsequent terms of five (5)years each (each a "Renewal Term") at rental rates for comparable property at the Airport, as specified by the Aviation Department's published Schedule of Rates and Charges ("Schedule of Rates and Charges") in effect at the time; provided, however, that, notwithstanding anything that may be construed to the contrary herein, this Lease may not be renewed for any term past June 30, 2045. 2.3. Holdover. If Lessee holds over after the expiration of the Initial Term or any Renewal Term, this action will create a month-to-month tenancy. In this event, for and during the holdover period, Lessee agrees to pay all applicable rentals, fees and charges at the rates provided by the Schedule of Rates and Charges or similarly published schedule in effect at the time. 2.4. Right of First Refusal. Lessee shall have a Right of First Refusal to lease up to 8,000 Sq.Ft. of improved land for access to the self serve pumps (to be subsequently determined). Lessee shall pay an annual fee equal to one cent ($.01) per square foot of this parcel in exchange for this ROFR. If Lessor receives a qualified, written offer from a third party to lease all or a portion of this Parcel, Lessor shall provide to Lessee a true and correct copy of such offer. Lessee shall have thirty (30) days from receipt of the true and correct copy of the offer made by the third party to exercise this ROFR and execute a new ground lease. 3. RENT,FEES AND OTHER CHARGES. 3.1. Annual Rent for Premises. From the Effective Date until September 30, 2005 Lessee shall pay Lessor rent for the Premises based on annual rental rates equal to$283.36 per month for the fuel farm; and the 2 self-serve units. Prior to or on the Effective Date of this Lease,Lessee shall pay one (1) month's rent in advance. Monthly rent payments are due on or before the first(1 st) day of each month. Payments must be received during normal working hours by such date at the location for Lessor's Revenue Office set forth in Section 19. Rent shall be considered past due if Lessor has not received fill payment after the tenth (10th)day of the month for which payment is due. Without limiting Lessor's termination rights as provided by this Lease,Lessor will assess a late penalty charge often percent(10%) per month on the entire balance of any overdue rent that Lessee may accrue, 3.2. Annual Adjustments. The rental rates set forth in Section 3.1 shall be subject to increase by Lessor on October 1, 2005, and on October 1 of any year during the Initial Term or a Renewal Term (other than on the effective date of any Renewal Term, in which case, as provided in Section 3.1, the rental rates shall be adjusted to equal the then-current rates prescribed by the Schedule of Rates and Charges) to reflect the upward percentage change, if any, in the Consumer Price Index for the Dallas/Fort Worth Metropolitan Area, as announced by the United States Department of Labor or successor index and/or agency during the immediately preceding twelve-month period ("CPI Change") (i), for the first increase, since the Effective Date of this Lease and (ii) for each subsequent increase, since the effective date of the last increase("Annual Rent Adjustment"); provided, however, Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport - - Page 2of21 v��l- 5[fj't:� •'(.... that Lessee's rental rate shall not exceed the then-current rates prescribed by the Schedule of Rates and Charges for the type or types of property at the Airport similar to the type or types of property that comprise the Premises. If there is no CPI Change or the CPI Change is downward, the rental rate for the Premises shall remain constant until the following October 1 st. In no event shall the rental rate for the Premises ever be adjusted downward. Rent shall also be adjusted in the 10`h, 15', 20`' and 25th years to reflect the then current applicable unimproved ground rental rate. If the airport management is being handled by an entity other than the Lessor, then Lessee shall have the right to request that a market survey be prepared for the Airport and to pay the lesser of the unimproved ground rental rate calculated by the market survey rate or the applicable unimproved ground rental rate. 3.3. Fuel Flowage Fees. As consideration for the privilege allowed Lessee by Lessor to dispense aircraft fuels at the Airport, Lessee shall pay Lessor fuel flowage fees based on the number of gallons of hid delivered to the Premises and calculated in accordance with the Schedule of Rates and Charges in effect at the time of the calculation. By way of example, as of the Effective Date of this Agreement, fuel flowage fees for the period between the Effective Date of this Agreement and September 30,2005 shall be calculated as follows: 0- 1,000,000 gallons (annually) _ $0.118/gallon 1,000,001 - 1,500,000 gallons (annually)_ $0.096/gallon 1,500,001 -2,000,000 gallons (annually)_ $0.064/gallon over 2,000,000 gallons (annually) _ $0.054/gallon In other words, between the Effective Date and September 30,2005, for the first one million (1,000,000)gallons of fuel delivered to the Premises,Lessee shall pay Lessor a fuel flowage fee of$0.118 per gallon.Thereafter, Lessee shall pay Lessor$0.096 per gallon until the time 1,500,000 gallons of fuel have been delivered to the Premises; thereafter, Lessee shall pay Lessor $0.064 per gallon until the time 2,000,000 gallons of fuel have been delivered to the Premises; thereafter, Lessee shall pay Lessor$0.054 for each gallon of fuel delivered to the Premises. Payments of the fuel flowage fees are due and payable on the tenth(10th) day of each month succeeding that in which aircraft fuels were delivered to the Premises. Payments must be received during normal working hours by such date at the location for Lessor's Aviation Department set forth in Section 19.This fee shal I be considered past due if Lessor has not received the payment after the fifteenth(15th) day of that month. Lessor will assess a late penalty charge often percent (10%) per month on top of the entire month's fee for each month in which a fee is past due. 3.4. Annual Nature and Ad.iustments of Fuel Flowage Fees. The fuel flowage fee rate scale is based on the number of gallons of fuel delivered to the Premises annually. Therefore, on October 1,2005,Lessee will resume a fuel flowage fee payment of $0.118 per gallon, and the above calculations will begin anew through the following September 30th; provided, however, that the City Council may, in its discretion, adjust fuel flowage fees and rate scales for all providers of Fixed Base Operator("FBO") services at the Airport, as may be set forth in the Schedule of Rates and Charges, in which case the adjusted rates shall be applied. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 3 of 21 3.5. Management of Ramp Tie Downs. Lessee will assume the responsibility of managing the ramp tie down spaces and collecting rent from the tenants. The City will be paid 40% of the tie down rent collected within 15 days after the end of the month. 3.6. Other Fees and Charees. Lessee agrees to pay all other fees and charges stipulated in the Lessor's published Minimum Standards for Fixed Base Operators and Other Airport Tenants("Minimum Standards")as they exist or may hereafter be amended and as they apply to the specific operations of Lessee. The Minimum Standards is a public document adopted by the City Council on June 16, 1992, on file and available for public inspection in the City Secretary's Office, and incorporated herein by reference for all purposes. 4. REPORTS AND AUDITS. Lessee shall keep true and accurate books reflecting all fuel deliveries to the Premises. Lessee shall furnish monthly fuel delivery reports and fuel sales reports to the Aviation Department Director or authorized representative(collectively, the"Director"). Within thirty (30) days following the end of Lessor's fiscal year, Lessee shall submit to Lessor a detailed statement of the total number of gallons of fuel delivered to the Premises. This statement shall be prepared at Lessee's sole cost and expense by an independent Accountant satisfactory to Lessor. Any adjustment to the fuel flowage fee payments made during the preceding fiscal year shall be made at this time. At any time during the term of this Agreement, the City shall have the right to authorize an audit of Lessee's records as they pertain to its fueling operations at the Airport. These audits shall be prepared at Lessor's expense by an independent Certified Public Accountant selected by Lessor. 5. MIMINUM STANDARDS. Unless otherwise specifically provided herein, all terms, conditions and covenants of Lessee's FBO Permit, City Secretary Contract No. , as may subsequently be amended, shall apply in full force and effect to this Agreement for the duration of the Initial Term and of any Renewal Term. Lessee covenants and agrees that as an FBO it will, at all times, comply with the Minimum Standards subject to any exemption granted in accordance with this paragraph. Lessee further agrees that as a condition precedent to the effectiveness of this Agreement, it will for the duration of the Initial Term and of any Renewal Term comply with the requirements for dispensers of public aircraft fuels set forth in Article II of the Minimum Standards. If Lessee wishes to be exempt from any specific requirements of the Minimum Standards, Lessee must first submit a written request to and receive written approval from the Director. Any such exemptions granted to Lessee are or shall be specifically set forth in Exhibit"B," attached hereto and hereby made a part of this Agreement for all purposes. Lessee's failure to otherwise abide by the Minimum Standards shall result in the immediate termination by Lessor of this Agreement. Harrison Aviation,LTD(Haydn Cutler) _ Tank Farm and Fueling Agreement Spinks Airport Page 4 of 21 L; a:. 6. DEPOSIT. Lessee has remitted to Lessor a fuel flowage fee deposit ("Deposit") in the form of a Three Thousand Dollar($3,000) bond. If Lessee's payment of a fuel flowage fee to Lessor is at any time delinquent for more than fifteen (IS)calendar days, Lessor may draw upon such Deposit to secure the payment due. The amount of the Deposit is subject to increase at any time as reasonably determined by the Director, provided that no such increase shall cause the Deposit to exceed the sum of Lessee's actual fuel flowage fee payments to Lessor for the immediately preceding two (2) months. Within thirty(30)days following any such determination, Lessee shall increase its bond or provide Lessor with a cash deposit in the amount of the difference between the current Deposit and the higher Deposit. 7. UTILITIES. Lessee, at Lessee's sole cost and expense, shall be responsible for the installation and use of all utilities service to all portions of the Premises and for all other related utilities expenses, including, but not limited to, deposits and expenses required for the installation of meters. Lessee further covenants and agrees to pay all costs and expenses for any extension, installation, maintenance or repair of any and all utilities serving the Premises, including, but not limited to, water, sanitary sewer, electric, gas and telephone utilities. Notwithstanding the above, nothing herein obligates the Lessee to install, construct, extend or repair any public use or municipal utilities which have been or will be installed, constructed or extended by Lessee. Lessor and Lessee agree to cooperate and support each other's effort to gain access to any and all federal, state, municipal funding or other grants available to accomplish the Utilities described herein. Such cooperation and support could include, but not be limited to, Lessor making application for available funding and taking and maintaining title to all improvements in its name. Lessor and Lessee agree to assist and cooperate with the construction, implementation, adjustment or movement of any and all utilities incidental to the construction, maintenance, management and utilization of any and all Utilities referenced herein. 8. MAINTENANCE AND REPAIRS. 8.1. General Maintenance and Repairs by Lessee. Lessee agrees to keep and maintain the Premises in a good, clean and sanitary condition at all times. Lessee covenants and agrees that it will not make or suffer any waste of the Premises. Lessee, at Lessee's sole cost and expense, will make all repairs necessary to prevent the deterioration in condition or value of the Premises, including, but not limited to, the maintenance of and repairs to all aircraft hid storage tanks and other structures, facilities,equipment, appurtenances and pavement on the Premises.Lessee, at Lessee's sole cost and expense, shall promptly make any changes, modifications or improvements to the Premises as they become necessary, subject to prior written approval from Lessor and in accordance with all applicable federal, state and local laws or regulations. Lessee shall be responsible for all damages caused by Lessee, its agents, servants,employees,contractors, subcontractors, licensees or invitees, and Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 5 of 21 g Lessee agrees to fully repair all such damages at Lessee's sole cost and expense. Lessee agrees that,except as otherwise expressly provided herein, all improvements, trade fixtures, furnishings, equipment and other personal property of every kind or description which may at any time be on the Premises shall be at Lessee's sole risk or at the sole risk of those claiming under Lessee. Lessor shall not be liable for any damage to such property or loss suffered by Lessee's business or business operations, which may be caused by the bursting, overflowing or leaking of sewer or steam pipes, from water from any source whatsoever, or from any heating fixtures, plumbing fixtures, electric wires, noise, gas or odors, or from causes of any other matter. Lessor agrees to assist and cooperate with and not impede Lessee with respect to any and all maintenance and/or repairs deemed necessary by Lessee, with the understanding that the financial obligation to accomplish such maintenance and repairs remains with Lessee. 8.2. Inspection. Lessor shall have the right and privilege, through its officers, agents, servants and/or employees, to inspect the Premises at any time during normal business hours. Except in the event of an emergency, Lessor shall conduct inspections during Lessee's ordinary business hours and shall use its best efforts to provide Lessee at least twenty four(24) hours' notice prior to inspection, unless an emergency situation exists requiring immediate inspection, in such event that Lessor will attempt to notify Lessee by phone, fax or e-mail that an inspection will be conducted within a two (2) hour period. Lessor shall have the right to perform any and all duties or obligations that Lessor is authorized or required to do under the terms of this Lease or to perform its governmental duties under federal, state or local rules, regulations and laws. Lessee will permit the City's Fire Marshal or his or her authorized agents to inspect the Premises and Lessee will comply with all requirements of the Fire Marshal or his or her authorized agents that are necessary to bring the Premises into compliance with the City of Fort Worth Fire Code and Building Code provisions regarding fire safety, as such provisions exist or may hereafter be amended, but only in the event that the applicable law,code or regulations require such changes when the Premises are not subject to substantial remodeling,construction or renovation. Lessee shall maintain in proper condition accessible fire extinguishers of a number and type approved by the Fire Marshal or his or her authorized agents for the particular hazard involved. Lessee shall maintain in a proper condition accessible fire extinguishers of a number and type approved by fire underwriters for the particular hazard involved. Lessor shall provide Lessee with advance notice of inspection when reasonable under the circumstances. Notwithstanding anything to the contrary in this Section 8.2,Lessor shall have the right to inspect the Premises at any time and for any purpose in the event of an emergency. 8.3. Performance. If Lessee is responsible under this Lease for any maintenance or repairs, Lessor shall notify Lessee in writing. Lessee agrees to undertake such maintenance or repair work diligently within thirty (30) calendar days following receipt of such notice. If Lessee fails to undertake the required maintenance or repairs within this time, Lessor may, in its discretion, undertake such maintenance or repairs on behalf of Lessee. In this event, Lessee will reimburse Lessor for the cost of the maintenance or repairs, and such reimbursement will be due on the date of Lessee's next monthly rent payment following completion of the maintenance or repairs. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 6 of 21 r 8.4. Environmental Remediation. Lessee agrees that it has inspected the Premises and is fully advised of its own rights without reliance upon any representation made by Lessor concerning the environmental condition of the Premises.LESSEE, AT ITS SOLE COSTAND EXPENSE, AGREES THAT IT SHALL BE FULLY RESPONSIBLE FOR THE REMEDIATION OF ANY VIOLATION OF ANY APPLICABLE FEDERAL, STATE OR LOCAL ENVIRONMENTAL REGULATIONS OR STANDARDS THAT IS CAUSED BY LESSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR INVITEES. Lessor shall be responsible for the remediation of any violation of any applicable federal, state or local environmental regulations that is caused by Lessor, its officers, agents, servants or employees. For any violation of any applicable federal, state or local environmental regulations that is caused by a contractor of Lessor (other than Lessee), a subcontractor, prior tenant or other third party, Lessor shall be responsible for the remediation of the same or shall take all necessary steps to ensure that the person or entity causing such violation remediates the same. 8.5. Lessee's Acceptance of Premises. Lessee accepts the Premises in its present condition as satisfactory for all purposes set forth in this Lease. 9. DAMAGE OR DESTRUCTION TO PREMISES. In the event of fire or other casualty which damages or destroys all or any part of the Premises, the following provisions shall apply: 9.1. Coverage by Lessee's Insurance. Lessee's property insurance, as required by Section 14.1 of this Lease, shall be primary to any insurance on the Premises carried by Lessor and shall be used exclusively to repair or rebuild the damaged or destroyed portions of the Premises. Lessee shall be responsible for oversight of all repairs or reconstruction on and to the Premises and shall repair or rebuild the damaged or destroyed portions of the Premises to the size and standards that meet or exceed the size and standards of such portions of the Premises prior to the damage or destruction. All repair and reconstruction activities carried out by or on behalf of Lessee shall be conducted in accordance with Sections 10.2 through 10.6 of this Lease. 9.2. Premises Uninsured or Underinsured by Lessee. If Lessee fails to carry adequate property insurance in accordance with Section 14.1 of this Lease, Lessor, at Lessor's sole option, may (i) terminate this Lease upon thirty (30) days' advance written notice to Lessee or(ii) repair or rebuild the Premises substantially to its former condition at Lessor's own cost and expense. If Lessor notifies Lessee in writing within thirty (30) days following the date of damage or destruction that Lessor intends to undertake the necessary repairs or reconstruction, and the damage or destruction does not render the affected portion of the Premises untenable, this Lease shall continue in effect without any rent abatement whatsoever so long as Lessor diligently commences the repairs or reconstruction within one hundred eighty (180) days from the date of the damage or destruction. If the damage or destruction does render the affected portion of the Premises temporarily untenable, or Lessor does not commence the repairs or reconstruction within one hundred eighty (180) days from the date of the damage or destruction, then for the period of time between the date the Premises become untenable or the one-hundred-eighty-first (181") day from the date of damage or destruction and the date a Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 7 of 21 certificate of occupancy is issued for the portion of the Premises that was rendered untenable, rent shall be proportionally reduced by the amount of square footage rendered untenable. Upon the issuance of a certificate of occupancy and thereafter, rent shall comply with the Schedule of Rates and Charges in effect at the time as they apply to the Premises as improved by Lessor. In other words, if Lessee was paying an unimproved ground rate and, pursuant to this Section 9.2, Lessor repaired or rebuilt an aircraft hangar originally constructed by Lessee, then the subsequent rental rate would not be that for unimproved land, but rather that which applied to similar hangar space at the Airport at the time. 10. CONSTRUCTION AND IMPROVEMENTS. 10.1. In General. Lessee may, at its sole discretion, perform modifications, renovations or improvements on or to the Premises (collectively, "Improvements") so long as it first submits all plans, specifications and estimates for the costs of the proposed work in writing and also requests and receives in writing approval from the Director. Lessee covenants and agrees that it shall fully comply with all provisions of this Section 10 in the undertaking of any such Improvements. Lessor shall take full title to any Improvements on the Premises upon the expiration or earlier termination of this Lease, provided that trade fixtures shall remain the property of Lessee and may be removed so long as Lessee repairs any damage caused thereby. 10.2. Process for Approval of Plans. Lessee's plans for Improvements shall conform to the Airport's architectural standards and must also receive written approval from Lessor's Departments of Development, Engineering and Transportation/Public Works. All plans, specifications and work shall conform to all federal, state and local laws, ordinances, rules and regulations in force at the time that the plans are presented for review. Lessor covenants and agrees that, upon receipt of such plans, specifications and estimates that it will identify any and all omissions or flaws in such submission by Lessee within ten (10) business days and upon the receipt of satisfactory and complete plans, specifications and estimates, Lessor shall promptly review, consider and make a decision on approval of such plans, specifications and estimates within thirty (30) business days. Lessee shall have the right, but not the obligation, to advance funds to Lessor for Lessor's share of future infrastructure costs that Lessor deems necessary in exchange for an abatement of Lessee's future lease payments set forth herein. In the event of any such discretionary advance or advances by Lessee, such total advance shall not exceed the estimated future lease payments by Lessee hereunder. 10.3. Documents. Lessee shall supply the Director with comprehensive sets of documentation relative to any Improvement, including, at a minimum, as-built drawings of each project. As-built drawings shall be new drawings or redline changes to drawings previously provided to the Director. Lessee shall supply the textual documentation in computer format as requested by Lessor. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Bal Page8of2l 10.4. Bonds Required by Lessee. Prior to the commencement of any Improvement, Lessee shall deliver to Lessor a bond, executed by a corporate surety in accordance with Texas Government Code, Chapter 2253, as amended, in the full amount of each construction contract or project.The bonds shall guarantee (i) satisfactory compliance by Lessee with all requirements, terms and conditions of this Lease, including, but not limited to,the satisfactory completion of the respective Improvements, and (ii) full payments to all persons, firms, corporations or other entities with whom Lessee has a direct relationship for the construction of such Improvements. In lieu of the required bond, Lessee may provide Lessor with a cash deposit or an assignment of a certificate of deposit in an amount equal to 100%of the full amount of each construction contract or project. If Lessee makes cash deposit,Lessee shall not be entitled to any interest earned thereon. Certificates of deposit shall be from a financial institution in the Dallas-Fort Worth Metropolitan Area which is insured by the Federal Deposit Insurance Corporation and acceptable to Lessor.The interest earned on the certificate of deposit shall be the property of Lessee and Lessor shall have no rights in such interest. If Lessee fails to complete the respective improvements, or if claims are filed by third parties on grounds relating to such Improvements, Lessor shall be entitled to draw down the full amount of Lessee's cash deposit or certificate of deposit and apply the proceeds to complete the Improvements or satisfy the claims, provided that any balance shall be remitted to Lessee. Subject to further written agreement between Lessor and Lessee with respect to any specific future modification, renovation, improvement or new construction initiated by Lessee, Lessor and Lessee agree and understand that if progress payments are made by Lessee to its contractors on a project or projects for which a cash deposit or certificate of deposit is provided to Lessor, then and in that event, upon the presentation to Lessor of proof of such payment or payments to such contractor, Lessee shall be entitled to reduce and draw down the amount of its cash deposit and/or certificate of deposit in an amount equal to such payment or payments. 10.5. Bonds Required of Lessee's Contractors. Prior to the commencement of any Improvement, Lessee's respective contractor shall execute and deliver to Lessee surety performance and payment bonds in accordance with the Texas Government Code, Chapter 2253, as amended, to cover the costs of al I work performed under such contractor's contract for such Improvements. Lessee shall provide Lessor with copies of such bonds prior to the commencement of such Improvements. The bonds shall guarantee(i) the faithful performance and completion of all construction work in accordance with the final plans and specifications as approved by Lessor and (ii) full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of the construction contract. Such bonds shall name to both Lessor and Lessee as dual obligees, If Lessee serves as its own contractor, Section 10.4 shall apply. 10.6. Releases by Lessor Upon Completion of Construction Work. Lessor will allow Lessee a dollar-for-dollar reimbursement from its cash deposit account or reduction of its claim upon Lessor's certificate of deposit upon(i), where Lessee serves as its own contractor, verification that Lessee has completed construction work or (ii), where Lessee uses a contractor, receipt of the contractor's invoice and verification that the contractor has completed its work and released Lessee to the extent of Lessee's payment for such work, including bills Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 9 of 21 paid, affidavits and waivers of liens. 11. USE OF PREMISES. Lessee agrees that it will use the Premises for the sole purpose of aircraft fuel storage and that it will not store such fuel or receive deliveries of such fuel at any location at the Airport other than the Premises and any other sites at the Airport that Lessee may lease exclusively (collectively the "Leased Premises"). Lessee may also sell and dispense such items on (i) the public use transient apron and (ii) at hangars and on other aprons at the Airport, subject to permission from the respective parties in control of those properties. Lessee shall not in any manner sell or dispense fuel on the Fuel Farm. 12. SIGNS. Lessee shall not erect or maintain on the Premises any signs or billboards except those that, without advertising Lessee's operations at the Airport, identify the fuel stored on the Premises. All signs permitted by this Lease shall be subject to prior written approval by the Director as to placement, appearance,construction and conformity with applicable laws, ordinances, rules and regulations. 13. RIGHTS AND RESERVATIONS OF LESSOR. Lessor hereby retains the following rights and reservations: 13.1. Lessee's rights hereunder shall be subject to all existing and future utility easements and rights-of-way granted by Lessor for the installation, maintenance, inspection, repair Or removal of facilities owned or operated by electric, gas, water, sewer, communication or other utility companies. Lessee's rights additionally shall be subject to all rights granted by all ordinances or statutes which allow such utility companies to use publicly owned property for the provision of utility services, 13.2. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, including, but not limited to, the right to prevent Lessee from erecting or permitting to be erected any building or other structure which, in the opinion of Lessor, would limit the usefulness of the Airport, constitute a hazard to aircraft or diminish the capability of existing or future navigational or navigational aids used at the Airport. 13.3. Lessor reserves the right to close temporarily the Airport or any of its facilities for maintenance, improvements, safety or security of either the Airport or the public, or for any other cause deemed necessary by Lessor. In this event, Lessor shall in no way be liable for any damages asserted by Lessee, including, but not limited to, damages from an alleged disruption of Lessees business operations. Lessor and Lessee acknowledge and understand that in the unlikely event that the airport is closed temporarily or otherwise restricted to prevent normal, civilian aircraft operations Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport r r _-• �. _ _ . _ Page 10 of 21 = - A. for a duration in excess of five (5)calendar days, it is financially impossible for Lessee to sustain its operation. In such event, Lessee shall be entitled to an abatement of all lease obligations. Such lease obligation shall be abated until the airport is restored to normal operations. 13.4. This Lease shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States Government which relates to the operation or maintenance of the Airport and is required as a condition for the expenditure of federal funds for the development, maintenance or repair of Airport infrastructure. 13.5. During any war or national emergency, Lessor shall have the right to lease any part of the Airport, including its landing area, to the United States Government. In this event, any provisions of this instrument which are inconsistent with the provisions of the lease to the Government shall be suspended. Lessor shall not be liable for any loss or damages alleged by Lessee as a result of this action. However, nothing in this Lease shall prevent Lessee from pursuing any rights it may have for reimbursement from the United States Government. Lessor and Lessee acknowledge and agree that in the unlikely event that the airport is closed temporarily or otherwise restricted to prevent normal, civilian aircraft operations for a duration in excess of five(5)calendar days, it is financially impossible for Lessee to sustain its operation. In such event, Lessee shall be entitled to an abatement of all lease obligations. Such lease obligation shall be abated until the airport is restored to normal operations. 13.6. Lessor covenants and agrees that during the term of this Lease it will operate and maintain the Airport and its facilities as a public airport consistent with and pursuant to the Sponsor's Assurances given by Lessor to the United States Government through the Federal Airport Act, a public document which is on file in Lessor's City Secretary's Office and which is incorporated herein by reference for all purposes. Lessee agrees that this Lease and Lessee's rights and privileges hereunder shall be subordinate to the Sponsor's Assurances. Lessor and Lessee acknowledge and agree that in order for Lessee to fulfill its obligations under this Lease, Lessee must be able to have access to its leasehold. Lessor and Lessee acknowledge and agree that each will cooperate to assure that such access is maintained and that, in the unlikely event that such access is denied for any reason for a duration in excess of ten (10) calendar days or more, then Lessee shall be entitled to an abatement of all lease obligations hereunder. In addition,Lessor and Lessee agree that, in the event access is denied to Lessee for ten (10) calendar days or more, all terms and conditions of this Lease shall be suspended until access is fully restored so that normal civilian aircraft operations can take place. In the event that access cannot be restored in an economically reasonable timeframe, then Lessor and Lessee agree that the terms of this Lease will be renegotiated and/or terminated in accordance with the provisions stated herein. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 11 of 21 14. INSURANCE. 14.1. Types of Coverage and Limits. Lessee shall procure and maintain at all times, in full force and effect, a policy or policies of insurance as specified in this Section 11, naming the City of Fort Worth as an additional insured and covering all risks related to the leasing, use, occupancy, maintenance, existence or location of the Premises. Lessee shall obtain the following insurance coverage at the limits specified herein: •Property: Fire and Extended Coverage on all improvements on the Premises at 80% replacement cost limit; •Commercial General Liability: $3,000,000 per occurrence, including products and completed operations; • Automobile Liability: $1,000,000 per accident, including, but not limited to,coverage on any automobile used in Lessee's operations on the Premises; •Environmental Impairment Liability: $1,000,000 per occurrence. In addition, Lessee shall be responsible for all insurance to construction, improvements, modifications or renovations to the Premises and for personal property of its own or in its care, custody or control. 14.2. Adjustments to Required Coveralze and Limits. Insurance requirements, including additional types of coverage and increased limits on existing coverages, are subject to change at Lessor's option if Lessor's risk manager reasonably determines that additional coverage or increased limits are necessary to cover Lessee's operations at the Airport. Lessee will accordingly comply with such new requirements within thirty (30) days following notice to Lessee. Lessor and lessee acknowledge and agree that neither Lessor nor Lessee controls the coverage limits available and/or the cost of aviation/airport insurance. As a result, in the unlikely event that such coverage becomes unavailable or unreasonably expensive, Lessor and Lessee shall reach an agreement as to how to proceed with or without such insurance and absent an agreement on this insurance issue, this agreement shall terminate in accordance with the provision stated herein. 14.3. Certificates. As a condition precedent to the effectiveness of this Lease, Lessee shall furnish Lessor with appropriate certificates of insurance signed by the respective insurance companies as proof that it has obtained the types and amounts of insurance coverage required herein. Lessee hereby covenants and agrees that not less than thirty (30) days prior to the expiration of any insurance policy required hereunder, it shall provide Lessor with a new or renewal certificate of insurance. In addition, Lessee shall, at Lessor's request, provide Lessor with evidence that it has maintained such coverage in full force and effect. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement h, Spinks Airport Page 12 of 21 u I 14.4. Additional Requirements. Lessee shall maintain its insurance with underwriters authorized to do business in the State of Texas or which, if not authorized to do business in the State of Texas, are otherwise satisfactory to Lessor.The policy or policies of insurance shall be endorsed to cover all of Lessee's operations at the Airport and to provide that no material changes in coverage, including, but not limited to, cancellation, termination, non-renewal or amendment, shall be made without thirty (30) days' prior written notice to Lessor. 15. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Lessee shall operate as an independent contractor as to all rights and privileges granted herein, and not as an agent, representative or employee of Lessor. Lessee shall have the exclusive right to control the details of its operations and activities on the Premises and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees and invitees. Lessee acknowledges that the doctrine of respondent superior shall not apply as between Lessor and Lessee, its officers, agents, employees, contractors and subcontractors. Lessee further agrees that nothing herein shall be construed as the creation of a partnership orjoint enterprise between Lessor and Lessee. 16. LIABILITY AND INDEMNIFICATION. LESSEE SHALL BE LIABLE AND RESPONSIBLE FOR ANY CLAIMS, DEMANDS LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMA GE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT OR WILLFUL ACT(S) OR OMISSION(S) OF LESSEE, ITS OFFICERS,AGENTS, SERVANTS, EMPLOYEES AND/OR SUBLESSEES. IN ADDITION, LESSEE,AT LESSEE'S OWN EXPENSE, SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LESSOR, ITS OFFICERS,AGENTS, SERVANTS AND/OR EMPLOYEES, FROM AND AGAINST ANY CLAIM, LAWSUIT OR OTHER ACTION FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TOPROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO LESSEE'S BUSINESS AND ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT OR WILLFUL ACT(S) OR OMISSION(S) OF LESSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES AND/OR SUBLESSEES. LESSOR DOES NOT GUARANTEE POLICE PROTECTION TO LESSEE OR ITS PROPERTY. LESSOR IS OBLIGATED ONLY TO PROVIDE SECURITY ADEQUATE TO MAINTAIN LESSOR'S CERTIFICATION UNDER FAA REGULATIONS. LESSEE SHALL COMPLY WITH ALL APPLICABLE REGUL4 TIONS OF THE FAA PER TA INING TO AIRPORT SECURITY ON THE PREMISES WHICH IS RELA TED TO LESSEE'S OPERATIONS THEREON AND SHALL COOPERATE WITH LESSOR IN THE IMPLEMENTA TION AND ENFORCEMENT OF LESSOR'S SECURITY PLAN AT THE Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 13 of 21 AIRPORT. LESSEE SHALL PAYALL FINES IMPOSED BY THE FAA ON LESSOR OR LESSEE RESULTING FROM LESSEE'S FAILURE TO COMPLY WITH SUCH FAA REGULATIONS APPLICABLE TO THE PREMISES OR TO PREVENT UNAUTHORIZED PERSONS OR PAR TIES FROM THEIR OBTAINING ACCESS TO THE AIR OPERATIONS AREA OF THE AIRPORT FROM THE PREMISES. Lessor and Lessee acknowledge and agree that Lessor is a sovereign as contemplated by the Texas Tort Claims Act, Texas Civil Practice and Remedies Code §§ 101.001 et seq. As such, liability is waived in only limited circumstances. Lessor and Lessee acknowledge and agree that nothing contained in this Section 12 is intended to nor does it operate to extend any liability of Lessor or the indemnification obligation to Lessor of Lessee beyond the provisions of the Texas Tort Claims Act. 17. WAIVER OF CHARITABLE IMMUNITY OR EXEMPTION. If Lessee, as a charitable association, corporation, partnership, individual enterprise or entity, claims immunity to or an exemption from liability for any kind of property damage or personal damage, injury or death, Lessee hereby expressly waives its rights to plead defensively any such immunity or exemption as against Lessor. 18. DEFAULT AND REMEDIES. 18.1. Failure by Lessee to Pay Rent,Fees or Other Charges. Lessee fails to pay any rent, fees or other charges due under this Lease, Lessor shall deliver to Lessee a written invoice and notice to pay the invoice within ten (10)calendar days. If Lessee fails to pay the balance outstanding within such time, Lessor shall have the right to terminate this Lease immediately. 18.2. Failure to Have or Maintain FBO Certification. If Lessee's FBO Permit is lawfully revoked or lawfully not renewed, Lessor shall have the right to terminate this Lease immediately upon provision of written notice to Lessee. 18.3. Failure to Comply with Other Terms or Conditions. If Lessee breaches or defaults under any provision of this Lease, other than those breaches or defaults that are addressed by Sections 15.1 and 15.2,Lessor shall deliver written notice to Lessee specifying the nature of such breach or default. Lessee shall have thirty (30) calendar days following such written notice to cure, adjust or correct the problem to the standard existing prior to the breach. If Lessee fails to cure the breach or default within such time period, Lessor shall have the right to terminate this Lease immediately; provided, however, that in the event such breach or default cannot reasonably be cured within thirty(30)calendar days following such written notice, Lessee shal I not be in default if Lessee commences to cure, adjust or correct the problem within such thirty (30)day period and thereafter diligently and in good faith pursues such cure,adjustment or correction to conclusion. 18.4. Rights of Lessor Upon Termination or Expiration. Upon termination or expiration of this Lease, all rights, powers and privileges granted to Lessee hereunder shall cease and Lessee shall vacate the Premises. Within twenty (20)days following the effective date of termination or expiration, Lessee shall remove from the Premises all trade Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 14 of 21 fixtures, tools, machinery, equipment, materials and supplies placed on the Premises by Lessee pursuant to this Lease. After such time, Lessor shall have the right to take full possession of the Premises, by force if necessary, and to remove any and all parties and property remaining on any part of the Premises. Lessee agrees that it will assert no claim of any kind against Lessor, its agents, servants, employees or representatives, which may stem from Lessor's lawful termination of this Lease or any act incident to Lessor's assertion of its right to terminate or Lessor's exercise of any rights granted hereunder excluding such acts of Lessor's negligence which cause direct damages to Lessee. Lessor and Lessee hereby agree that there shall be no cross-defaults as to any related contractual obligations between the parties or affiliates and specifically agree that, in the unlikely event that one contract becomes allegedly in default, that such default shall not cause any other contract for which there is no other independent act or omission constituting a default as to that contract to be in default. 19. NOTICES. Notices required pursuant to the provisions of this Lease shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, its agents, employees, servants or representatives, or(ii) deposited in the United States Mail, postage prepaid, addressed as follows: To LESSOR: For Rent: For All Other Matters: City of Fort Worth City of Fort Worth Revenue Office Aviation Department 1000 Throckmorton 4201 N. Main St. Ste. 200 Fort Worth TX 76102 Fort Worth TX 76106 With a Copy to: City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth,Texas 76102 To LESSEE: Harrison Aviation, Ltd. Attn: John Cockerham On behalf of Haydn Cutler 1320 S University, Suite 1015 Fort Worth,TX 76107 With a Copy to: Mr. Kevin H. Good 13601 Preston Road, Suite 940 East Dallas,Texas 75240 214-446-1002 214-446-1005 (fax) Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 15 of 21 20. ASSIGNMENT AND SUBLETTING. 20.1. In General. Lessee shall not assign, sell, convey, sublease or transfer any of its rights, privileges, duties or interests granted by this Lease without the advance written consent of Lessor's City Council, which consent shall not be unreasonably withheld or delayed. 20.2. Conditions of Approved Assignments and Subleases. If Lessor consents to any assignment or sublease, all terms, covenants and agreements set forth in this Lease shall apply to the assignee or sublessee, and such assignee or sublessee shall be bound by the terms and conditions of this Lease the same as if it had originally executed this Lease.The failure or refusal of Lessor to approve a requested assignment or sublease shall not relieve Lessee of its obligations hereunder, including payment of rentals, fees and charges. 21. LIENS. 21.1. Liens by Lessee. Lessee acknowledges that it has no authority to engage in any act or to make any contract which may create or be the foundation for any lien upon the property or interest in the property of Lessor. If any such purported lien is created or filed, Lessee, at its sole cost and expense, shall liquidate and discharge the same within thirty (30) days of such creation or filing. Lessee can, at its sole option, post a bond protecting the property on which the lien is purportedly attached and litigate, mediate or arbitrate the validity of the lien for so long as necessary with the understanding that the Lessor's interest in said property is adequately protected. Lessee's failure to discharge any such purported lien shall constitute a breach of this Lease and Lessor may terminate this Lease upon thirty (30) days' written notice. However, Lessee's financial obligation to Lessor to liquidate and discharge such lien shall continue in effect following termination of this Lease and until such a time as the lien is discharged. 21.2. Landlord's Lien. INADDITION TO ANYAPPLIC4BLE STATUTORY LANDLORD'S LIEN, LESSEE GRANTS TO LESSOR, IN ORDER TO SECURE PERFORMANCE BY LESSEE OF ITS OBLIGATIONS UNDER THIS AGREEMENT,A SECURITY INTEREST IN ALL GOODS, INVENTORY, EQUIPMENT, FIXTURES, FURNITURE, IMPROVEMENTS, CHATTEL PAPER, ACCOUNTS AND GENERAL INTANGIBLES,AND OTHER PERSON4L PROPERTY OF LESSEE NOW OR HEREAFTER SITUATED ON OR IN THE PREMISES OR OTHERWISE REMTING TO LESSEE'S USE OF THE PREMISES,AND ALL PROCEEDS THEREFROM(THE "COLLATERAL"). IF LESSOR TERMINATES THIS AGREEMENT FOR A FAILURE BY LESSEE TO PAY LESSOR RENT OR FOR ANY OTHER BREACH OR DEFAULT BY LESSOR, LESSOR MAY, IN ADDITION TO ALL OTHER REMEDIES, WITHOUT NOTICE OR DEMAND EXCEPT AS PROVIDED BELOW, EXERCISE THE RIGHTS AFFORDED A SECURED PARTY UNDER THE TEXAS UNIFORM COMMERCIAL CODE("UCC"). IN CONNECTION WITH ANY PUBLIC OR PRIVATE SALE UNDER THE UCC, LESSOR SHALL GIVE LESSEE FIVE (5) CALENDAR DAYS'PRIOR WRITTEN NOTICE OF THE TIME AND PLACE OF ANY PUBLIC SALE OF THE COLLATERAL OR OF THE TIME AFTER WHICH ANY PRIVATE SALE OR OTHER INTENDED DISPOSITION THEREOF IS TO BE MADE, WHICH IS AGREED TO BEA REASONABLE NOTICE OF SUCH SALE OR DISPOSITION. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement �( Spinks Airport Page 16 of 21 Upon Lessor's advance written consent, which shall not be unreasonably withheld or delayed, Lessor's security interest in the Collateral may be subordinated to a third party lender if the lender demands such subordination as a condition of financing Improvements undertaken by or on behalf of Lessee. 22. TAXES AND ASSESSMENTS. Lessee agrees to pay any and all federal,state or local taxes or assessments which may lawfully be levied against Lessee due to Lessee's use or occupancy of the Premises or any improvements or property placed on the Premises by Lessee as a result of it occupancy. Lessee also agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Lessor due to Lessee's use or occupancy of the Premises or property placed on the Premises by Lessee as a result of its occupancy, including, but not limited to, the Mandatory Improvements and any Discretionary Improvements. 23. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Lessee covenants and agrees that it shall not engage in any unlawful use of the Premises. Lessee 1 irther agrees that it shal I not permit its officers, agents, servants, employees, contractors, subcontractors, patrons, licensees or invitees to engage in any unlawful use of the Premises and Lessee immediately shall remove from the Premises any person engaging in such unlawful activities. Unlawful use of the Premises by Lessee itself shall constitute an immediate breach of this Lease. Lessee agrees to comply with all federal, state and local laws; all ordinances, rules and regulations of Lessor; all rules and regulations established by the Director; and all rules and regulations adopted by the City Council pertaining to the conduct required at airports owned and operated by Lessor, as such laws, ordinances, rules and regulations exist or may hereafter be amended or adopted. If Lessor notifies Lessee or any of its officers, agents, employees, contractors, subcontractors, licensees or invitees of any violation of such laws, ordinances, rules or regulations, Lessee shall immediately desist from and correct the violation. 24. NON-DISCRIMINATION COVENANT. Lessee, for itself, its personal representatives, successors in interest and assigns, as part of the consideration herein, agrees as a covenant running with the land that no person shall be excluded from participation in or denied the benefits of Lessee's use of the Premises on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. Lessee thither agrees for itself, its personal representatives, successors in interest and assigns that no person shall be excluded from the provision of any services on or in the construction of any improvements or alterations to the Premises on grounds of race, color, national origin, religion, handicap, sex, sexual orientation or familial status.Lessee agrees to famish its accommodations and to price its goods and services on a fair and equal basis to all persons In addition, Lessee covenants and agrees that it will at all times comply with any requirements imposed by or pursuant to Title 49 of the Code of Federal Regulations, Part 21, Non-Discrimination in Federally Assisted Programs of the Department of Transportation and with any amendments to this Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 17 of 21 regulation which may hereafter be enacted. If any claim arises from an alleged violation of this non-discrimination covenant by Lessee, its personal representatives, successors in interest or assigns, Lessee agrees to indemnify Lessor and hold Lessor harmless. 25. LICENSES AND PERMITS. Lessee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for the operation of its operations at the Airport. 26. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Lease, Lessor does not waive or surrender any of its governmental powers. 27. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Lease or to exercise any right granted herein shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 28. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Lease or of Lessee's operations on the Premises, venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. This Lease shall be construed in accordance with the laws of the State of Texas. 29. SEVERABILITY. If any provision of this Lease shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. The parties hereby agree that any dispute that arises under this Lease may be resolved through mediation upon consent of both parties. . In the event that a dispute arises between the parties and the parties agree that the dispute is one that is appropriate for mediation, then such dispute will be submitted to mediation in Tarrant County, Texas, in accordance with the rules for alternative dispute resolutions set forth under Texas law. The parties will mutually cooperate to select the mediator to be used. Any and all information, negotiation and results of the mediation will remain confidential, unless otherwise required to be disclosed by law. Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 18 of 21 30. FORCE MAJEURE. Lessor and Lessee shall exercise every reasonable effort to meet their respective obligations as set forth in this Lease, but shall not be held liable for any delay in or omission of performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions, transportation problems and/or any other cause beyond the reasonable control of Lessor or Lessee. 31. HEADINGS NOT CONTROLLING. Headings and titles used in this Lease are for reference purposes only and shall not be deemed a part of this Lease. 32. ENTIRETY OF AGREEMENT. This written instrument, including any documents attached hereto or incorporated herein by reference, contains the entire understanding and agreement between Lessor and Lessee, its assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provisions of this Lease. The terms and conditions of this Lease shall not be amended unless agreed to in writing by both parties and approved by the City Council of Lessor. [Signature Pages Follow] Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 19 of 21 IN . ITNESS +REOF, the parties hereto have executed this Lease in multiples, this day of L� - , 20QL. CIS FO T WOR H: HARRISON AVIATION, LTD. By: By- are Ott ohn Cockerham on behalf of Hadyn Assistant City Manager Cutler, President of Harrison Realty Investments, LLC Date: Date: e4, i ATTEST: ATTEST: By: By: City Secretary i Date: Date: e,-S APPROVED AS TO FORM AND LEGALITY: B y`-- Assistant Aty Attorney Date: (,j M&C: C-20086 Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 20 of 21 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Marc Ott, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of City of Fort Worth, and that he executed the same as the act of City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 911R] Notary Public in and for the State of Texas STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared John Cockerham known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Harrison Aviation, LTD, by Harrison Realty Investments, LLC, General Parnter, and that he executed the same as the act of Harrison Aviation LTD, by Harrison Realty Investments, LLC, General Partner, for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ° day of TON TEXAS 2 15-2008 otar blic in and for the St of Texas _ Harrison Aviation,LTD(Haydn Cutler) Tank Farm and Fueling Agreement Spinks Airport Page 21 of 21 } EXHIBIT A FUEL FARM LEASE +o-tom � kid t: lu. z _ �' � f s,, .._ A���-Lf fig,�+ �?,��}- '���� R � I � _ •'ti t 4� qj i• r � d �` - u � � k r +u ! � —00 Ir • f I �_�,.• --+—ice`~' �_ � e ' V - •ra— 4' FUEL FARM LEASE SITE 3,600 SQUARE FEET ' EXIBIT A FUEL FARM LEASE PAGE 2 PRCVIC�E HL E14TRAWI- IN • � iC �E�"! �N Tsar•:G E F � STC t�I E Kiln l� NeW 2,41 ,x���`._ °�- GITY a� i-�K7 WG�i�-tN Rec�u►�E,M��, �RaJlt�� ; _ #-r` d � -a_ _'tsj��`s-f� •� 1+-1 •.+:Ott' - .�,. ,.;. ��� P 7t•' Vit. `^,'' :'.`i-'�-- '•' �# -. ����•�tt��� �l� � ,�, ...-•�C _ .� - ~ ti=p' ,_ �,_ _. .�.,_ �. _ .� <��, �._2.6t80�+.473 1 _ S: 3 t}1 • N t � E JUN. 27. 2005 9: 25AM •CITY OF FT WORTH NO. 739 P. 2 d [.. - in � t �I (gyp !� 1 I �.,... "4 � a J f 1 o � C5 - 4.0 ' 4 � Y a v� 14. LU • a m' " 'd lr 6U 'ON HidOM A d0 AM MSZ : b S60Z 16 'NO EXHIBIT "D" Equipment Quantity Description Serial No. 1 Unicom Base Radio, 300-B-1 and Antenna 319 1 Scanner n/a 1 Clark Aircraft Tug 600-0012 1 North Western Aircraft Tug 600-0015 1 Tow Bar n/a 1 Foxcart - GPU n/a FORT WORTH SPINKS AIRPORT FIXED BASE OPERATOR PERMIT 1. This FIXED BASE OPERATOR PERMIT ("Permit") is issued by the City of Fort Worth Aviation Department ("Department") to Harrison Aviation, LTD, by Harrison Realty Investments, LLC, General Partner ("Permittee"). This Permit authorizes Permittee and its employees to provide Fixed Base Operator("FBO")services at Fort Worth Spinks Airport only. Permittee may not contract with a third party to provide FBO services at the Airport. This Permit may not be assigned to any other individual or entity without the prior written consent of the Director of the Department. 2. This Permit shall be in effect from July 1,2005 through September 30,2010. Permittee shall have consecutive options to receive new Permits from the Department every five(5)years through June 30,2045 so long as Permittee is not in default of its obligations under the then-current Permit. Permittee shall notify the Department not more than 180 nor less than 90 calendar days prior to the expiration of the Permit then in effect of its desire for a new five (5)-year Permit. The Department may revoke this Permit, either temporarily or permanently, for any uncured violation of the Department's published Minimum Standards for Fixed Base Operators, as adopted by the Fort Worth City Council on June 16, 1992, and/or any additional or replacement requirements subsequently adopted by the Fort Worth City Council during the period in which this Permit is in effect, except as may be waived or modified in writing by the Department (collectively, the "Minimum Standards"). A default under the Minimum Standards shall be deemed uncured if Permittee has failed to cure the default within thirty (30) calendar days following receipt of written notice of such default by the Department unless(i)otherwise specifically provided in the Minimum Standards, in which case the applicable provision of the Minimum Standards shall control or(ii) Permittee ceases to qualify as a provider of FBO services under the terms of the Minimum Standards, in which case the Department may revoke this Permit at any time following the milestone under which Permittee has lost such qualification. 3. Permittee shall post and keep visible at all times this Permit at a location to which the general public has access and which is acceptable to the Department. COMPLAINTS REGARDING SERVICES PROVIDED BY HARRISION AVIATION, LTD. MAY BE DIRECTED TO CITY OF FORT WORTH AVIATION DEPARTMENT 817-871-5400 CITY OF FORT WORTH:/, HARRISON AVIATION, LTD.: By: r, By: Marc Ott ohn Cockerham on behalf of Haydn Assistant City Manager Cutler, Harrison Realty Investments, LLC, General Partner City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 5/18/2004 DATE: Tuesday, May 18, 2004 LOG NAME: 55HAYDN CUTLER REFERENCE NO.: C-20086 SUBJECT: Authorize Execution of Unimproved Ground Lease with Mandatory Improvements, Public Fueling Agreement, Fixed Based Operator Permit, and a Right of First Refusal with Haydn Cutler to Lease Additional Unimproved Land at Fort Worth Spinks Airport RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute: 1. An Unimproved Ground Lease Agreement with mandatory improvements with Haydn Cutler, an individual, for approximately 46,000 square feet of unimproved ground at Fort Worth Spinks Airport to develop an executive terminal building and two-20,000 square foot executive aircraft storage hangars and associated office space, and; 2. A Public Fueling Agreement and Fixed Base Operator (FBO) Permit upon completion of the Terminal Facility, and 3. Right of First Refusal to lease approximately 80,000 square feet of additional unimproved land to build additional executive aircraft storage hangars and associated office space. DISCUSSION: Mr. Cutler, has proposed to lease approximately 46,000 square feet of unimproved land at Fort Worth Spinks Airport for the purpose of developing an executive terminal building and two corporate hangars. In addition, he requests the Right of First Refusal to lease an additional 80,000 square feet of unimproved ground to develop additional aircraft storage space and associated office space, when demand dictates. Upon completion of the terminal building, Mr. Cutler has requested that the City of Forth Worth issue a Public Fueling Agreement and FBO Permit for the purpose of providing FBO services at Spinks Airport. Mr. Cutler proposes to absorb the City of Fort Worth's Aviation Fuel contract with Avfuel, and proposes that the City of Fort Worth phase out its provision of providing FBO functions at Spinks Airport. Mr. Cutler has requested that the City of Fort Worth take title to the improvements upon the issuance of a Certificate of Occupancy. In exchange for the City taking title to the improvements, he has proposed to pay a fee equivalent to 1% of the appraised value of the hangar facilities beginning in the sixth year of the lease and remaining for the full term. Mr. Cutler also proposes to invest $800,000 in additional airport facilities to include warehouses, T-hangars and office space. In addition, Mr. Cutler proposes to provide the City's 10% share for future federally funded airport upgrade projects that are mutually agreed upon, in exchange for abatement of future lease payments or fuel flowage fees. The lease will provide for a (30) thirty-year term with (2) two consecutive (5) five-year options to renew. The Logname: 55HAYDN CUTLER Page 1 of 2 initial term of the lease will commence upon the date of execution. Rental rates shall be in accordance with the Schedule of Rates and Charges, subject to an increase on October 1st of any given year to reflect the upward percentage change, if any, in the Consumer Price Index for the period since the last adjustment. Rent shall also be adjusted in the 10th, 15th, 20th and 25th years, to reflect the then current applicable ground rental rate. All agreements and terms will be in accordance with City and Aviation policies. The actual square footage of the lease sites will be determined upon completion of a ground survey. The proposals are in accordance with the Fort Worth Spinks Airport Master Plan and are subject to Federal Aviation Administration airspace review. Due to the projected time of completion, staff anticipates there will be no new revenue associated with this action for this fiscal year. The Aviation Advisory Board unanimously recommended approval of the proposal at their April 14, 2004 meeting. The details of the project were presented at the May 4, 2004, Capital Improvement and Infrastructure Committee meeting. The property is located in Council District 8. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Revenue Division of the Finance Department will be responsible for the collection and deposit of funds due to the City under this agreement. TO Fund/Account/Centers FROM Fund/Account/Centers PE40 491352 0551201 $0.00 Submitted for City Manager's Office bv: Marc Ott (8476) Originating Department Head: Mike Feeley (5403) Additional Information Contact: Mike Feeley (5403) Logname: 55HAYDN CUTLER Page 2 of 2