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HomeMy WebLinkAboutO-1997-2205 ordinance tabled 12/8/97,approved 1/26/98 e e OR~GINAL ORDINANCE NO. 97-2205 AN ORDINANCE APPROVING AND AUTHORIZING A LEASE FOR FIXED BASE OPERATIONS FOR CITY OF LA PORTE MUNICIPAL AIRPORT BETWEEN THE CITY OF LA PORTE, LESSOR, AND D.E. AVIATION, INC., LESSEE; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, in substantially the form as shown in the document which is attached hereto and incorporated herein by this reference. The City Manager is hereby authorized to execute such document and all related documents on behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal of the city to all such documents. section 2 0 The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the Ci ty for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. section 3. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. e ORDINANCE NO. 97-2205 e ORiGINAL PAGE 2 PASSED AND APPROVED, this 26th day of January, 1998. ATTEST: ~OJJh{JvO. ~LttL Martha A. Gille t City Secretary CITY OF LA PORTE By: LL#m/!e1~~~ Ndrman L. Malone Mayor e ~(Q)~r AGREEMENT AND LEASE POR PIXED BASE OPERATIONS AT CITY OP LA PORTE MDNICIPAL AIRPORT THIS AGREEMENT AND LEASE, made and entered into this 1st day of January, 1997, by and between the City of La Porte, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter referred to as "Lessor", and D. E. Aviation, Inc., a Texas business corporation, acting herein by and through its duly authorized officers, hereinafter referred to as "Lessee." WIT N E SSE T H: WHEREAS, the Lessor controls and operates an airport known as La Porte Municipal Airport, located in the City 'of La Porte, State of Texas, which airport and any additions or improvements thereto or changes therein which the Lessor hereafter makes or authorizes are hereinafter collectively referred to as the "Airport", and, WHEREAS, the parties hereto desire to enter into an Agreement and Lease for the use of premises and facilities at the Airport all as more fully hereinafter set forth. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, the Lessor and the Lessee do hereby mutually undertake, promise and agree, each for itself and its successors and assigns, as follows: ARTICLE I - TERM OF AGREEMENT The term of this Agreement and Lease shall be for the period commencing January 1, 1997, and terminating December 31, 2017, unless sooner terminated as hereinafter provided. The Lessee reserves the option to renew this lease for two consecutive five year terms provided written notice is provided the Lessor within thirty days of lease termination. ARTICLE II - LEASED PREMISES AND FACILITIES 1. The Lessor, in consideration of the compensation and sundry covenants and agreements set forth herein to be kept and performed by the Lessee, does hereby, and by these presents, demise and lease unto the Lessee, upon the conditions hereinafter set forth, all of which the Lessee accepts, the exclusive use and occupancy of the Leased Premises, to-wit: Property at La Porte Municipal Airport, consisting of 2.000 acres, more or less, identified as "Fixed Base Operator Area" on Exhibit "A" attached hereto and made a part of this Agreement; and twenty four (24) tie-downs which will become available January 1, 1998, identified as "Tie-Down Area", on Exhibit "B" attached hereto and made a part of this agreement. ], e t(g~Y The location and boundaries of said Leased Premises, as indicated on Exhibit "A" and Exhibit "B" attached hereto, are stipulated and agreed between the parties to be correct and by reference are made a part hereof. 2 . Lessee takes all of such property in its present condition "as is", and except as otherwise specifically provided herein, agrees to provide all necessary and reasonable maintenance and repairs in order to maintain such property, identified in Exhibit "A", in a usable condition. 3 . Lessee shall make available to the public for rental purposes, the T-Hangars and 24 tie-down facilities leased to Lessee herein. In its rental of such T-Hangars and tie-down facilities, the Lessee shall provide reasonable rental rates, consistent with industry standards for this region. Notwithstanding any other provision of this Agreement, the parties recognize and agree that Lessee is not herewith given and shall not exercise exclusive control over the ramp area not specifically leased under this Agreement; and that the public shall have the right, at all time, to ingress and egress, over and through said area, as reasonably necessary for the use by the public of airport facilities at La Porte Municipal Airport, Lessor agrees to abide by the terms as set forth in Standard Minimum Requirements for Airport Aeronautical Services, Exhibit "C", 4. The Lessor expressly reserves from the lease of the Leased Premises the following: A. All gas, oil and mineral rights in and under the soil. B. The right to grant utility rights-of-ways to others over, under, through, across or on the Leased Premises, provided that such use will not unreasonably or materially interfere with the Lessee's use of the Leased Premises. 5. Lessor agrees that in the event the Lessee desires to amend this lease through the acquisition of additional property that the fees as noted in Section 3 of the Standard Minimum Requirements for Airport Aeronautical Services, La Porte Municipal Airport (October 23, 1995) will be waived, provided Lessee pays for any survey required. ARTICLE III - RENTALS AND CHARGES 1, For the Leased Premises, as described in Article II, Exhibit "A", the basic ground rental calculated for an index value of 100.0 is Eight Hundred Seventy-one and 20/100 Dollars ($871,20) per acre per year, 2 e e CCCOJrPt The actual rentals for the Leased Premises, Exhibit "A", to be paid to the Lessor by the Lessee, shall be determined by mul tiplying said basic rentals specified under paragraph 1 above by the index value determined for successive calendar years in the manner herein set forth, The index value for the calculation of actual rental rates shall be based on the Consumer Price Index for All Urban Consumers, using as base year 1982-84 = 100, published by the Bureau of Labor Statistics of the United States Department of Labor, and shall be calculated as follows: A. The index for any particular lease year shall be the index for the month of December of the calendar year next preceding the year for which the calculation is made, The index for the lease year 1997 is based on the December 1995 of 153.5, resulting in an annual rental rate of One Thousand Three Hundred Thirty-seven 29/100 Dollars ($1,337,29) per acre for the lease year beginning January 1, 1996. This rate results in a total 1997 lease year ground rental for the Leased Premises of Two Thousand Six Hundred Seventy-four and 58/100 Dollars ($2,674.58) , The index for lease year 1998 is based on the December 1996 index of 158,6, resulting in an annual rental rate of One Thousand Three Hundred Eighty-one 72/100 Dollars ($1,381.72) per acre for the lease year beginning January 1, 1996, This rate results in a total 1998 lease year ground rental for the Leased Premises of Two Thousand Seven Hundred Sixty-three and 44/100 Dollars ($2,763,44) . B. The actual rental rate shall be determined prior to January 1st of each lease year and shall be effective for that lease year. C. In the event that the United States Department of Labor discontinues publication of the above index or data from which the index can be directly computed, or if the method for the determination of such index is substantially different than that existing at the time this Agreement and Lease is executed, the basis for the rental rate adjustment shall be the most closely comparable index published by the U.S. Government. 1.a Effective January 1, 1998, for the 24 Tie-Down Areas described on Exhibit "B" attached hereto, the following rental: A. Lessee shall pay to Lessor, as additional rent, a sum equal to thirty percent (30%) of the gross revenues obtained from rental of tie-down spaces; provided, however, Lessee shall guarantee Lessor a yearly rental of not less that $144.00, multiplied by the 24 tie-downs leased; 3 e e cc~>>~y B. Rental for the 24 tie-downs shall be paid monthly, in a sum equal to 1/12th of the annual rental due, in advance, on the 1st day of each and every month. Cost of living indexing shall not apply to the rental and charges for the tie-down areas. l,b In the event that Lessor and Lessee reach agreement in the future, for possible future construction by Lessee in the designated use area for T-Hangars, such additional lease shall be subject to all of the terms and provisions of this lease, with a rental rate of $0.14 per square foot, based on the CPI-U in effect on July 1, 1995, based on the Consumer Price Index for All Urban Consumers (1982-84 = 100), 2 , The parties recognize that Lessee shall lease to tenants, facilities for the storage and/or tie-down' of aircraft within leased properties described as "Designated Use Area" on Exhibit "A". The Lessee shall have the right to provide additional T-Hangar or tie- down facilities on the property leased herein, but any such additional facility shall only be provided after specific written authorization from the Lessor, Additional facilities shall be provided only in areas specifically authorized by the Lessor and shall be hardsurfaced rather than grass areas, 3. The rental above provided for during the term of this Agreement and Lease shall be paid monthly, in sum equal to 1/12 of the annual rental due hereunder, in advance on the first day of each and every month, In the event that this Agreement and Lease commences or terminates other than on the first or last day of the month, pro- rata payments shall be made for the fractional part of a month involved. 4, The Lessor is entitled to collect and the Lessee agrees to pay, all rentals due under this Agreement and Lease to the City of La Porte, La Porte Municipal Airport, La Porte, Texas, without notice to the Lessee. Rentals more than thirty (30) days past due may be subject to a service charge of one percent (1%) per month, based on an annual rate of twelve percent (12%), 5. Without prejudice to any other remedy which otherwise might be used for arrears of rent or other breach of this Agreement, if the Lessor is required or it elects to pay any sum or incurs any obligations or expense, by reason of a failure, neglect or refusal of the Lessee to perform anyone or more of the terms, conditions or covenants of this Agreement and Lease or as the resul t of any act or omission of Lessee contrary to said terms, conditions and covenants, the sum or sums so paid or the expense so incurred, including all interest, costs, damages and penalties 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 Lessor in the same manner and with like remedies as if it were originally a part of ,the rent as set forth hereinabove. 4 e e rc(g~Y ARTICLE IV - ACTIVITIES. USES. PRIVILEGES AND OBLIGATIONS OF THE LESSEE ~. A Fixed Base Operations is defined as a commercial aviation activity conducted by a person, partnership, firm or corporation engaged in the hangaring, maintenance, care and operation of aircraft for use by the public, and such other activities as may be pertinent to such use. This definition specifically includes all terms as set forth in Minimum Standards for Equipping & Operating A General Fixed Base Operation at the La Porte Municipal Airport, made a part hereof by reference and attached as Exhibit "C". 2 , During the term of this Agreement and Lease, the Lessee agrees to use the Leased Premises for the purposes or a~tivities stated above, subject to the conditions generally or particularly set forth herein, and not to use or permit the use of the Leased Premises or any part thereof for any purposes or activities other than those specifically stated above without first obtaining the express, written approval of the Lessor. . 3 . Lessee agrees that the rights and privileges granted herein are non-exclusive except as to the Leased Premises which shall be for the exclusive use of the Lessee. 4. The Lessee agrees that the Lessor has the right to adopt and enforce reasonable rules and regulations and that it and all its employees, agents and servants will faithfully observe and comply with all rules and regulations as may from time to time be promulgated by the Lessor, the United States of America or by any department or agency thereof, the State of Texas and the City of La Porte. 5. The Lessee agrees, at its own expense, to pay any and all taxes levied by the City, County or other appropriate governmental units and to pay any and all costs or charges for utility services furnished to or required by the Lessee. 6. The Lessee will not suffer or permit to be maintained upon the Leased Premises or upon the exterior of any improvements or appurtenances thereto any billboards, signs or other advertising media except those which have prior written approval of the Lessor. Flashing, rotating, animated or intermittent illuminated type signs are prohibited, ' 7, Lessee shall utilize on the Airport, only service contractors authorized to operate at the Airport, including, but not limited to vendors of aircraft, aircraft parts, service and fuel, car rental service, taxicab service, vending machine service and the like; it being understood that fees may be imposed or collected by the Lessor from such contractors for the privilege of operating at the Airport. .5 e e ~~[PV ARTICLE V - RIGHTS AND COVENANTS OF THE LESSOR 1, The Lessor covenants that it is well seized of the Leased Premises and has good title thereto free and clear of all liens and encumbrances and has full right and authority to lease the same as herein set forth. 2, The Lessor covenants that the Lessee shall have peaceful possession and quiet enjoyment of the Leased Premises during the term hereof so long as the Lessee performs and observes all of the covenants, agreements, terms and conditions hereof, 3. The Lessor reserves the right to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of the Lessee in this regard. 4. The Lessor reserves the right further to develop or improve the landing area and all publicly owned air navigation facilities of this Airport as it sees fit, regardless of the desire or views of the Lessee, and without interference or hindrance. 5. The Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the airport against obstruction, together with the right to prevent the Lessee from erecting, or permitting to be erected, any building or other structure on the airport which in the opinion of the Lessor would limit the usefulness of the Airport or constitute a hazard to aircraft, 6. During time of war or national emergency Lessor shall' have the right to enter into an agreement with the Unites States Government for military or naval use of part or all of the landing area, the publicly owned air navigation facilities of the Airport. If any such agreement is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the agreement with the Government, shall be suspended. 7. This Agreement shall be subordinate to the provisions of any outstanding agreement between Lessor and the United States relative to the maintenance, operation or development of the Airport, 8, It is understood and'agreed that the rights granted by this Agreement will not be exercised in such a way as to interfere with or adversely affect the use, operation, maintenance or development of the Airport. 9. There is hereby reserved to the Lessor, its successors and assigns, for the use and benefit of the public, a free and unrestricted right of flight for the passage of aircraft in the airspace above the surface of the premises herein conveyed, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or hereafter b (cfQ\fB)~ ,/ ~~ U=-' U used for navigation of our flight in the air, using said airspace for landing at, taking off from, or operating on or about the Airport. e e 10 . It is acknowledged and understood that the lessor will be bound by all the terms and conditions outlined in the Standard Minimum Requirements for Airport Aeronautical Services, Exhibit "C", for the duration of the lease. ARTICLE VI - IMPROVEMENTS AND MAINTENANCE 1. Lessee agrees that construction of all facilities, improvements or appurtenances on or in connection with the Lease Premises is prohibited without the express written consent of the Lessor before commencement of said construction. All facilities, improvements, or appurtenances proposed for construction shall comply with all existing applicable codes, ordinances, laws and regulations relating thereto, 2 . Lessee agrees that T-Hangars constructed within the designated "T-Hangar Development Area" will be built in structures containing no fewer than ten (10) units each. 3 . The Lessee agrees that no obstruction to air navigation as such are now defined by application of the criteria of Part 77 of the Federal Aviation Regulations of the Federal Aviation Administration will be constructed or permitted to remain on the Leased Premises absent a waiver. Any unreasonable obstructions shall be removed by the Lessee at its expense. The Lessee agrees not to increase the height of any structure or objects or permit the growth of plantings of any kind or nature whatsoever that would interfere with the line of sight of aircraft operating on or above the Airport in airspace protected under rules prescribed by FAR Part 77, '!'he Lessee further agrees not to install any structures, objects, machinery or equipment that would interfere with operation of navigation aids or that would interfere with the safe and efficient operations of the Airport, or interfere with the operations of other tenants and users of the Airport. 4, The Lessee agrees that all utility services required by it during the lease term for the Lease Premises must be paid for by the Lessee including the maintenance cost of service lines, s. The Lessee agrees, at its own expense, to cause the Leased Premises and any improvements and appurtenances thereto to be maintained in a tenantable and in a safe, neat, clean and presentable condition including, but not limited to, the necessary mowing and snow removal of the Leased Premises during the appropriate periods of the year. 7 e e (r>f(J rfS)~r '\6~1l U . ~ 6. The Lessee agrees, at its own expense to reasonably keep and reasonably maintain in good repair, all structures, pavements, utilities and all other improvements and appurtenances within and upon the Leased Premises in Exhibit "A". Lessee further agrees that Lessor shall have no duplicate maintenance responsibilities that are the Lessor's with respect to the Leased Premises in Exhibit "A". 7. Lessee agrees, at his own expense, to remove all waste, garbage, and rubbish from the Lease Premises, and agrees not to deposit the same. on any part of the Leased Premises except temporarily in connection with collection for removal. No waste, garbage or rubbish will at any time be deposited on any other area of the Airport, 8. Lessee agrees to provide, at its own expense, such janitor, toilet, and cleaning services and supplies as may be necessary or required in the operation and maintenance of the Leased Premises and the improvements and appurtenances thereto. 9, The Lessor and its authorized officers, employees, agents, contractors, subcontractors, and other representatives shall have the right to enter upon or in the Leased Premises and any improvements thereon for the following purposes: A. To inspect the Leased Premises and any improvements thereon at reasonable intervals during regular business hours or at any time in case of emergency, to determine whether the Lessee has complied and is complying with the terms and conditions of this Agreement and Lease with respect to such Leased Premises. B. To perform any and all things which the Lessee is obligated to do and has failed,.after reasonable notice to do, including maintenance, repairs and replacements of any portion of the Leased Premises, improvements or appurtenances thereto, in which event the Lessee agrees to reimburse the Lessor for reasonable costs thereof promptly upon demand, as set forth herein before. C. In the exercise of the Lessor's police power, D. To inspect the Leased Premises and perform any and all things with reference thereto which the Lessor is obligated or authorized to do as set forth herein, No such entry by or on behalf of the Lessor within or upon the Leased Premises or any improvements thereon shall cause or constitute a termination of the letting thereof or be deemed to constitute an interference with the possession thereof by the Lessee. 8 e e ~'/ 0. ii' ~ i ("])~'N7 ~ :t I! ,J.' " _-/ '/ \. "I !j ,., " ,>~ 1:." iJ' I: · . '-/ ,J U 10. Upon termination of this Agreement and Lease at the expiration of the term or for any other reason or cause, the Lessee shall have the right to remove any structures or other improvements and all machinery, fixtures, apparatus and equipment owned by the Lessee and located on the Leased Premises for a period of 120 days after said termination date and ~pon payment of rentals as provided in Article III hereof to the date of removal of said improvements. The Lessor shall be entitled to have the Lease Premises herein demised returned to it clear of all improvements owned by the Lessee and may require the Lessee to make such restoration by written notification within 120 days following termination of this Agreement and Lease; and, in the event of the failure by the Lessee to restore the Leased Premises as herein required, within 120 days of s~id written notification, then the Lessor may make such restoration at the Lessee's expense. In the event that Lessee does not remove all said improvements or equipment, and the Lessor elects not to require said restoration of the Leased Premises, then upon the expiration of 120 days from the date of termination of this Agreement and Lease, all' structures or other improvements and all machinery, fixtures, apparatus and equipment located on the Leased Premises shall become the property of the Lessor, ARTICLE VII - INDEMNIFICATION AND INSURANCE 1 . The Lessee covenants and agrees to indemnify and save harmless the City of La Porte, its officers, agents and employees, their successors and assigns , individually or collectively, from and against all liability for any fines, claims, suits, liens, demands, actions or cause of action of any kind or nature for personal injury or death, or property damage in any way arising out of or ~esulting from any activity or operation of the Lessee on the Leased Premises or in connection with its use of the Leased Premises, and the Lessee further agrees to pay all expenses in defending against any such claims made against the Lessor, including reasonable attorney's fees; provided, however, that the Lessee shall not be liable for any injury, damage or loss occasioned by the negligence or willful misconduct of the Lessor, its agents or employees, The Lessee and the Lessor shall give prompt and timely notice of any claim made or suit instituted which, in any way, directly or indirectly, contingently or otherwise, affects or might affect either party. If the Lessee fails, after written notice from Lessor, to so save harmless and indemnify Lessor, Lessor shall have the right, in addition to its other legal remedies, to declare a default in Lessee's obligation to fulfill and comply with the terms and conditions of this Lease, and Lessor may then proceed to termination of the Lease pursuant to Article IX hereof. 2 , The Lessee shall procure and maintain in effect during the term of this Agreement and Lease insurance with companies licensed to do business in the State of Texas, and naming the Lessor as an additional insured and containing a cross liability agreement, providing the following coverages: 9 e e ~~~-..;;;; f(~\ rf~)\ \\(<7- \ ,l '. J ~ I~ "~ ~:: "? \\../, 1,' ~' i. "1_. t." AIRCRAFT LIABILITY Bodily Injury One Hundred Thousand Dollars ($100,000) each person One Million Dollars ($~,OOO,OOO) each accident Property Damage Five Hundred Thousand Dollars ($500,000) each accident Passenger Legal Liability One Hundred Thousand Dollars ($~OO, 000) each passenger seat Or alternatively a single limit legal liability policy (public liability and property damage) of not less than One Million Dollars ($~,OOO,OOO) which may include a limit of One Hundred Thousand Dollars ($100,000) each person. COMPREHENSIVE PUBLIC LIABILITY AND COMPREHENSIVE PROPERTY DAMAGE Bodily Injury One Hundred Thousand Dollars ($~OO,OOO) each person One Million Dollars ($~,OOO,OOO) each accident Five Hundred Thousand Dollars ($500,000) each accident Or alternatively a single limit legal liability policy (public liability and property damage) of not less than One Million Dollars ($1",000,000) which may include a limit of One Hundred Thousand Dollars ($100,000) each person. Property Damage 3. A certified copy of each policy evidencing the existence thereof shall be delivered to the Lessor within ten (10) days after the execution of this Agreement and Lease. Each such copy shall contain a valid provision or endorsement that the policy may not be cancelled, terminated, changed or modified without giving ten (10) days written advance notice thereof to the Lessor. Each such policy shall not, without obtaining express advance permission from the Lessor, raise any defense involving in any way the immunity of the City of La Porte, its members, officer, agents, or employees, the governmental nature of the Lessor, or the provisions of any statutes respecting suits against the City, 4. The Lessee, if applicable, shall furnish to the City satisfactory evidence that it carries Workmen's Compensation Insurance in accordance with the laws of the State of Texas. 10 e . <<;~~)\:,:>>~ ~.J ~.~ I; 1,1 5. In the event that any repairs, alterations, additions, or improvements are made, in, on or to the Leased Premises by reason of the use and occupancy of the Leased Premises by the Lessee, then the Lessee covenants and agrees to make such repairs, alterations, additions, or improvements in, on or to the Leased Premises at its own expense, The Lessee covenants and agrees to indemnify and save harmless Lessor from and against all expenses, liens, claims, or damages to either persons or property which mayor might arise by reason of any repairs, alterations, additions, or improvements made by the Lessee in, on or to the Leased Premises. ARTICLE VIII - TERMINATION OF LESSEE 1. In addition to all other remedies available to the Lessee, this Agreement and Lease shall be subject to cancellat:ion by the Lessee should anyone or more of the following events occur: A. The pennanent abandonment of the Airport. B. The issuance by any court of competent jurisdiction of any injunction preventing or restraining the use of the Airport in such manner as to substantially restrict the Lessee from conducting its fixed base operation, and the remaining in force of such injunction for at least sixty (60) days, C. The breach by the Lessor of any of the terms, covenants, or conditions of this Agreement and Lease to be kept, performed, and observed by the Lessor, and the failure of the Lessor to remedy such breach for a period of sixty (60) days after written notice from the Lessee of the existence of such breach. D. The assumption by the United States Government, or any authorized agency thereof, of the operation, control or use of the Airport and its facilities in such a manner as to substantially restrict the Lessee from conducting its operation, if such restrictions be continued for a period of three (3) months or more. ARTICLE IX - TERMINATION BY LESSOR 1. In addition to all other remedies available to the Lessor, this Agreement and Lease shall be subject to cancellation by the Lessor should anyone or more of the following events occur: A, If the Lessee shall file a petition of bankruptcy; or if proceedings in bankruptcy shall be instituted against it and it is thereafter adjudicated a bankrupt pursuant to proceedings; or if a court shall take jurisdiction of the Lessee and its assets pursuant' to proceedings brought under the provisions of any Federal Re-Organization Act; or if a Receiver for the Lessee I s assets is appointed; or if the Lessee shall be divested of its rights, powers 11 e e (;~lJr',\~\ tf':,,\\ /'/''' '" j,~" "'j .....v.J ;;~~t.V:jir )1 . -- ""-.'/ I'J U and privileges under this Agreement and Lease by other operation of law, B. If the Lessee shall default in or fail to make any payments at the times and in the amount required of it under this Agreement and Lease. C, If the Lessee shall abandon and discontinue the conduct of a fixed base operation, D. If the Lessee shall fail to perform, keep and observe all the covenants and conditions contained in this Agreement and Lease to be performed, kept and observed by it, E. If the Lessee shall fail to abide by all applicable laws, ordinances, rules and regulations of the United States, State of Texas, or the City of La Porte. Provided that upon happening of any of the contingencies recited in subparagraphs B, C, D and E above the Lessor shall give written notice to the Lessee to correct or cure such default, failure to perform, or breach, and if, within thirty (30) days from the date of such notice, the default, failure to perform or breach complained of, shall not have been corrected in a manner satisfactory to the Lessor, then, and in such event, the Lessor shall have the right at once and without further notice to the Lessee to declare this Agreement and Lease terminated and to enter upon and take full possession of the Leased Premises and Leased Facilities and, provided further that upon the happening of anyone of the contingencies enumerated in subsection A hereof, this Agreement and Lease shall be deemed to be breached by the Lessee and thereupon ipso facto and without entry or any other action by the Lessor, the Agreement and Lease shall terminate, subject to be reinstated only if such involuntary bankruptcy or insolvency proceedings, petitions for reorganization, trusteeship, receiver ship, or other legal act divesting the Lessee of its rights under this Agreement and Lease shall be denied, set aside, vacated or terminated in the Lessee's favor within forty-five (45) days from the happening of the contingency. Upon the happening of said latter event, this Agreement and Lease shall be reinstated as if there had been no breach occasioned by the happening of said contingencies provided that the Lessee shall within ten (10) days discharge any and all sums of money which may have become due under this Agreement and Lease in the interim and shall then remain unpaid and shall likewise fully perform and discharge all other obligations which may have accrued and become payable in the interim. The acceptance of rentals and fees by the Lessor for any period or periods after a default of any of the terms, covenants, and conditions herein contained to be performed, kept and observed by the Lessee shall not be deemed a waiver of any rights of the Lessor to cancel this Agreement and Lease for failure by the Lessee to so perform, keep, or observe any of the terms of this Agreement and Lease to be kept, performed, and observed by the Lessee. 12 e e /~~(l";:~' rr~)~\\.l.f , . ". U') ~ L~ )'./ '::;~';) ~.Jl ~;'"' I' r , '-,"/ <,j (L 1 ARTICLE X - ASSIGNMENT AND SUBLETTING 1. The activities, uses, privileges and obligations authorized herein are personal and the Lessee agrees that it will not assign, subcontract, sublet, or underlet the same or any portion thereof, or assign, subcontract, sublet or underlet the Leased Premises or any portion thereof without the expressed consent of the Lessor in writing and any purported assignment or subcontract in violation hereof shall be void. In no case, however, may the activities, uses, privileges and obligations authorized herein or the Leased Premises or any portion thereof be assigned, subcontracted, sublet, or underlet by the Lessee for any use other ~han herein specified, All provisions of this Agreement and Lease applicable to, the Lessee hereunder shall be equally binding upon any party to which the activities, uses, privileges and obligations authorized herein, leased Premises 'are assigned, subcontracted, sublet or underlet. 2. The Lessor will not be unnecessarily arbitrary in granting said permission, but the Lessor shall be the sole judge as to the reliability, capability, character, and desirability of the parties involved. ARTICLE XI - HOLDING OVER 1, In the event the Lessee shall hold over and remain in possession of the Leased Premises herein leased after expiration of this Agreement and Lease without any written renewal thereof, such holding over shall not, be deemed to operate as a renewal or extension of this Agreement and Lease but shall only create a tenancy from month to month which may be terminated at any time by the Lessor ARTICLE XII - SUCCESSOR AND ASSIGNS BOUND BY COVENANTS 1, All covenants, stipulations and agreements in this Agreement and Lease shall extend to and bind the legal representatives, successors, and assigns of the respective parties hereto, ARTICLE XIII - GENERAL PROVISIONS 1. Notices to the Lessor provided for in this Agreement and Lease shall be sufficient if sent by certified or registered mail, postage prepaid, addressed to the City Manager, City of La Porte, P,O. Box 1115, La Porte, Texas 77572, and notices to the Lessee if sent by certified or registered mail, postage paid addressed to D . E . Aviation, Inc., 101 Airport Blvd., La Porte, Texas 77571, or to such other respective address as the parties may designate to each other from time to time. 2, The Lessee represents that it has carefully reviewed the terms and conditions of the Agreement and Lease and is familiar with such terms and conditions and agrees faithfully to comply with the same to the extent to which said terms and conditions apply to its activities, authorized and required by this instrument. 13 e e ,rr;i::;) I.{'-~: r~~') ~ ,") r;l I', ~ih.~ ,VI' ,,' ft I. ".,~ ;'* -_ 'I ,~~) '\, ~jJ !' ~, , ~,~ ~ ~! 3 , The term "Lessor" as used in this Agreement and Lease means the City of La Porte, and where this Agreement and Lease speaks of approval and consent by the Lessor, such approval is understood to be manifested by act of the City Manager, except as otherwise expressly stated in this Agreement and Lease. ARTICLE XIV - INVALID PROVISION 1. In the event that any covenant, condition or prov1s10n herein contained is held to be invalid by any Court of competent jurisdiction, the invalidity of any such covenant, condition, or provision shall in no way affect any other covenant, condition or provision herein contained; provided that the validity of any such covenant, condition, or provision does not materially prejudice either the Lessor or the Lessee in its respective rights and obligations contained in the valid covenants, conditions, or provisions of this Agreement and Lease. ARTICLE XV - FEDERAL REOUIREMENTS 1. The right to conduct aeronautical activities or furnishing services to the public is granted the Lessee subj ect to Lessee agreeing to: A, Furnish said services on a fair, equal and not unjustly discriminatory basis to all users thereof, and B. Charge fair, reasonable, and not unjustly discriminatory prices for each unit or service; provided, that the Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. 2 . The Lessee in exercising any of the rights or privileges herein granted to it shall not on the grounds of race, color, or national origin discriminate or permit discrimination against any person or group of persons in any manner prohibited by Part 2~ of the Regulations of the Secretary of Transportation. The Lessor is hereby granted the right to take such action, anything to the contrary herein notwithstanding, as the United States may direct to enforce this nondiscrimination covenant, 3. The Lessee assures that it will undertake an affirmative action program as required by ~4 CFR Part 152, Subpart E, to insure that no person shall on the grounds of race, creed, color, national origin, or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E, 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 covered suborganizations provide assurances to the Lessee that they similarly will undertake affirmative action programs and that they will require assurances from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect, 14 e e ARTICLE XVI - ENVIRONMENTAL t'/r" ')CO~' '~: I'::'~)'\/I I '1' / ......... ; \~ t \ \ "" .)1 j :S , < ;' , ~'tLJ !', 1. "Environmental Laws" means all federal, state, and local environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to the protection of the environment and/or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of Hazardous Substances, "Hazardous Substances" means, without limitation, radon, radioactive materials, asbestos, urea formaldehyde form insulations, polychlorinated biphenyls, benzene, hazardous materials, flammable explosives, hazardous or toxic wastes, hazardous or toxic substances or related materials including all such wastes, materials and sUbstances as such terms are defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended [42 U.S,C. Sec. 9601 et. seq.], the Resource Conservation and Recovery Act, as amended [42 U.S.C. Sec. 6901 et. seq.] or any other applicable environmental laws and the regulations adopted pursuant thereto and other Environmental Laws governing waste substances, and the rules, regulations, policies, guidelines, interpretations, decisions,. orders, and directives of any governmental authority with respect thereto, "Polluting Substances" means, without limitation, fuels, crude oil, chemicals, or any other liquid or solid material which if spilled or disposed of on real estate will pollute such real estate. 2, Lessee covenants and agrees, in its use of the leased premises, that it shall comply with all Environmental Laws. Lessee covenants and agrees, in its use and occupancy of the leased premises, that (a) no release of a hazardous substance or polluting substance shall occur on the leased premises that would constitute a violation of any Environmental Law; (b) any underground storage tanks placed on the leased premises shall be used in conformity with all Environmental Laws, and all necessary permits shall be obtained therefore; (c) there shall not be any Hazardous Substances or Polluting Substances in or contaminating any of the land, buildings, structures, or other improvements constituting a part of the Leased Premises that would constitute a violation of any Environmental Laws; and (d) there have not been nor are there any Hazardous Substances in concentrations that exceed amounts permitted by Environmental Laws on or in any of the land, buildings, structures, or other improvements on the Leased Premises. 15 e e ~;.'~) /'.,;.....\' ,\ :::' ~~\\/ / 'I' I', ~ 'c, ./) \: I' , H" -/ "f ~. ''; \~,.!) :'J:' ' :U ARTICLE XVII - FAVORED NATIONS CLAUSE 1. Lessor covenants and agrees not to hereafter enter into any lease, contract, or agreement, nor any renewal of any existing leases, with any other party with respect to the Airport, containing more favorable terms than this lease or to grant to any other operator rights, privileges or concessions with respect to the Airport which are not accorded to Lessee hereunder, unless the same rights, privileges and concessions are concurrently and automatically made available to Lessee. It is understood and agreed that the intent of the parties in this paragraph is to provide that Lessee shall not be put at a competitive disadvantage with any other operator rights , privileges or concessions which have not been granted to Lessee or terms and conditions more favorable than those enjoyed by Lessee. ARTICLE XVIII - PRIOR LEASE 1, This Agreement of Lease supersedes that certain Airport Lease Agreement between the City of La Porte, Lessor, and Robert A. Gregory and James M. Williams, Lessee, dated January 1, 1977, and expiring on the 31st day of December, 1996, which Agreement of Lease was assigned to D,E, Aviation, a General Partnership consisting of E. Harvey and Deborah Rihn, on the 5th day of August, 1981, ARTICLE XIX - CORPORATE GUARANTY 1, In the event Lessee constructs further permanent improvements, or demolishes permanent improvements, on the Leased Premises, the corporation reasonably guarantee the performance of such construction or demolition. 1b e e ~r=v ft ~':, . : . '~\\I? .' .":. j . :~;/ .); \. . l,.) I , . i;; \.,'; ,; .~ .; .. ~ '. IN WITNESS WHEREOF, the parties have caused these presents to be signed by their duly authorized representatives. Lessor: CITY OF LA PORTE ~ d BY: ~~~~1' Norman ~ alone }-Mayor ATTEST: ~A;hhOl.O . A1illd Mare a A. Gillett City Secretary ,- i/~7 APPROVED: .I , / . / ' ;" r :;..../") ! i /!t{,~ cJ tiJ~'t~ K1lox W. Askins City Attorney Lessee: By: ' ATTEST: ~{,. cretary 17 CCs , / , , , rcOJ. ..- 0.'- "'~, . ,.,/ ~Fnd',5'8" IR /~ . /. "',," , ......... /' .'........." ~<O.P ......... 7 ........~~ ~ ................... '. / root ,/ o. '" ",'Ii ,..' / +~ / 5 " -... //Fnd. ~ IR ,".. " ",0) .1 ~ · ~~~ $' s.. .............. .rs~. ... ~o~ ..........,~ .to~ . ...............~~.1J'.~... .to.P.T~ 2.000 ACRES . , ( 87.120 Sq. Ft.)' i/ Aif"'Dlane ?Qt"~jng Area ~ ~ '\fs~. ~O.. , ~ ' 0.. .e f?~) It "\'. :: '~~~:; \, \.,1~ t \ j} ;'. ~.if~r' ,,::..,.I \:,~ "'/ F7.... [R SCALE: 1"=100' .. .... CD . CD - - N ...... U) . o N ~.. ~ ..,..,----Place of Beginning IR~ Fnd; 5,&" Lease Tract For o E Aviation La Porte Munrci~al Airport Being 2.000 Acres out of the W.M. Jones Survey A482. ~a Porte. Texas .. en . U) N ..,. Southeast corner of la Porte Municipal' A/I r~Ol'"t 100.00' N 89.33'00" W :x: .1- a:: c z SPENCER HIGHWAY CIVIL CONCEPTS INC. , 4117 V fste Rood Pascden'a. 'T8xas 77'504 Phone: (713) 947-6606 September 3. 1997 e e '""", f( . ~ -D'~ I l,r\-.' : r '~\ '. -', \,\11.- , ~ I ~! ,I I.. ' " \\,o,-,,'\'__} I)' I;' . \"'~.: .' '\~~~". "I t LEGAL DE~~RlP1JON DEAVIATION 2.000 ACRE LEASE TRACT A tract ofland containing 2.000 acres (87,120 Sq. Ft.) Being out of the W.M. Jones Survey Abstract Number 482, and also situated within the confines of the La Porte Municipal Airport and being more particularly described by metes and bounds as follows: Commencing at the Southeast comer of the La Porte Municipal Airport property, said point also lying in the north right-of-way line of Spencer Highway; Thence North 89 deg: 33 min. 00 sec. West with the north right-of-way line of said Spencer Highway, also being the south line of the said La Porte Municipal Airport, for a distance of 100.00 feet to a point for comer; Thence North along a line parallel to and 100.09 feet west of the east. line of said La Porte Municipal Airport for a distance of 426.19 feet to a found 5/8 inch iron rod marking the Place of Beginning of the herein described 2.000 acre tract; Thence North 52 deg. 20 min. 30 sec. West for a distance of 479.64 feet to a point for comer; - - Thence North 37 deg. 39 min. 30 sec. East for a distance of22,O.89 feet to a point for comer; Thence South 52 deg. 20 min. 30 sec. East for a distance of309.17 feet to a point for comer being 100.00 feet west of the said east line of La Porte Municipal Airport; Thence South along a line parallel to and 100.00 feet )Vest of the east line ofsajd La ~orte ;Municipal Airport for a ~stance of279.02 feet to the Place of Beginning. q~d~/ -Richard W. Cansler RPLS -~ - Civil Concepts Inc. 4117 Vista Road - Pasadena, Texas 7?504 September 3, 1997 e .I;'::~~.'~::l:';' -.-: "-~ ,I ,''-' "'~, '1/ ",'" ,', .'. .._..~1 ~'/l . ',_ " ,,':.-' ~. , r . ' M @ F-i td F--I ~ ... ... td ... ... .0 . . j\u , -0). 1.0 e e EXHIBIT C (Exhibit C not preprinted),' ' STAL'IDARD MINIMUM REQUIREMENTS FOR AIRPORT AERONAUTICAL SERVICES LAPORTE MUNICIPAL AIRPORT OCTOBER 23, 1995 ,.f~ .,.. ;~~ i \~.' r, '-..:: '\' tj ) i'o . ~}~::,!~ :,~., · ; . 1 .