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HomeMy WebLinkAbout1997-120C \WPDOCS\ORD\FOX51 ORD Note Amended by Ordinance No 97-132 ORDINANCE NO. q ?—/A2Z6 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON AND FOX-51 LIMITED WHICH AMENDS THE EXISTING FIXED BASE OPERATOR AND COMMERCIAL AIRPORT LEASES BETWEEN THE PARTIES AND INCORPORATES THE TERMS OF SUCH LEASES INTO ONE NEW LEASE; AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY DENTON HEREBY ORDAINS• SECTION I That the City Manager is authorized to execute an Airport Lease Agreement between the City of Denton and Fox-51 Limited which amends the existing Fixed Base Operator and Commercial Airport Leases between the parties and incorporates the terms and conditions contained within such leases as amended into one new lease, which is attached hereto and made a part hereof for all purposes SECTION II. That this ordinance shall become effective immediately upon its passage and approval //.,[����..Q PASSED AND APPROVED this the day of _I NX/LA6.�' 1997 JACF MILLER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY, APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY CZ Z c 1 AIRPORT LEASE AGREEMENT COMMERCIALIFBO WHEREAS, the City of Denton, Texas as Lessor and Fox-51 Limited, as Lessee, entered into an Airport Lease Agreement dated May 6, 1980, and WHEREAS, such Airport Lease Agreement was amended in writing as of June 16, 1980 and February 19, 1985, and WHEREAS, the City of Denton, Texas as Lessor and Fox-51 Limited, as Lessee, entered into a Commercial Operator Lease dated April 1, 1986, and WHEREAS, such Commercial Operator Lease was amended in writing as of February 2, 1988 and again as of August 20, 1991, and WHEREAS, 9 lathe mutual desire of each of the parties to further amend such leases and place in one instrument all of the provisions of the leases between the parties hereto, WHEREAS, the City of Denton, Texas, Lessor and Fox-51 Limited, Lessee desire that this agreement constitutathe entire understanding between the parch$ and as of its effective date supersedes all prior or independent leases/agreements between the parties covering the subject matter hereof, NOW, THEREFORE, This lease and agreement Is made and entered into this /5 'day of 1997 by and between the City of Denton, a Municipal Corporation, situated in Denton County, Texas, hereinafter called "Lessor", and Fox-51 Limited, a corporation of the State of Texas, located at Route 1, Box 102, Denton , Texas, and whose registered agent is F D Strickler, located at Route 1, Box 102, Denton , Texas, hereinafter referred to as "Lessee" In consideration of the premises and the mutual covenants, the parties agree that the land to be leased is the following described land situated in Denton County, Texas I PREMISES AND USE A 100 x 200 foot tract of land, being approximately 20,000 square feet, and a 165 x 220 foot tract of land, being approximately 36,300 square feet, having a combined area of approximately 56,300 square feet or 129 acres, described as follows COMMENCING at the northwest corner of a tract of land as conveyed to P F Breen deed recorded in Volume 127, Page 185 of the Deed Records of Denton County, Texas said point log in the South right of way line of FM Road 1515, THENCE west along the south right of way line of FM Road 1515 a distance of 350 feet to a point, THENCE north along the west right of way line of FM Road 1515 a distance of 1,000 feet to a point, THENCE west perpendicular to said right of way line of FM 1515 a distance of 870 feet, more or less, to a point on the east edge of the pavement of the north taxiway, THENCE north 1305V41" west along the east edge of pavement of said north taxiway a distance of 10 feet to a point for a corner, THENCE north 76'09`191' east perpendicular to said east edge of pavement a distance of 175 feet to the point of beginning, THENCE north 13°50'41" west 175 feet east of and parallel to said east edge of pavement a distance of 220 feet to a point for a corner, THENCE north 76009'19" east perpendicular to said east edge of pavement a distance of 5 feet to a point for a corner, THENCE north 13050'41" west 180 feet east of and parallel to said east edge of pavement a distance of 200 feet for a point for a corner, THENCE north 76°09'19" east perpendicular to said east edge of pavement a distance of 100 feet to a point for corner, THENCE south 13050'41" east 280 feet east of and parallel to said east edge of pavement a distance of 200 feet to a point for a corner, THENCE north 76009'19" east perpendicular to said east edge of pavement a distance of 60 feet to a point for a corner, THENCE south 13050'41" east 340 feet east of and parallel to said east edge of pavement a distance of 220 feet to a point for a corner, THENCE south 76009'19" west perpendicular to said east edge of pavement a distance of 165 feet to the place of beginning and containing 56,300 square feet of land, more or less, as shown on Exhibit "A", attached hereto and incorporated herein by reference Lessor does hereby demise and let unto the Lessee, and Lessee does hereby lease and take from the Lessor, the land and facilities herein described, and the rights, licenses, and privileges in connection with the use of such property and improvements as follows The use, in common with others authorized so to do, of said airport and all appurtenances, fac ilNes, improvements, equipment and services which have been or may hereafter be provided thereat The operation of a transportation system by aircraft, the repairing, maintaining, conditioning, servicing, parking or storage of aircraft or other equipment, the training of personnel and the testing of aircraft and other equipment, the sale, disposal or exchange of aircraft, engines, accessories, and related equipment, the servicing by Lessee of aircraft and other airport related equipment, Including the right to Install and maintain on said airport adequate storage facilities, and appurtenances, including right of way necessary therefor, the landing, taking off, parking, loading, and unloading of aircraft and other equipment, the right to load and unload persons, property and mail at said airport, by such means as Lessee may desire, with the right to designate the tamers who shall transport Lessee's passengers and their baggage to and from the airport, and, also, the further right to designate the carriers who shall transport Lessee's airborne freight, if any, to and from the said airport, the right to install and operate advertising signs, the general type and design of such signs to be reasonable and appropriate, the right, but not the duty or obligation, to install, maintain and operate radio, communications, meteorological and aenal 2 navigation, and such other similar equipment and facilities in, on or about the premises herein leased, as may be necessary or convenient for Lessee's operations, the conduct of any other aviation related business or operations reasonably necessary to the proper, necessary and appropriate conduct and operation by Lessee of its business, and without in any way limiting the foregoing, Lessee specifically agrees that, if Lessee elects to engage in or provide any of the above services on the premises herein leased, Lessee will a Provide service to the public on a non-discriminatory basis, b Conduct and operate its business and management in a courteous and efficient manner, c If Lessee provides tie -down service, Lessee will provide tie -down service to overnight or other transient aircraft or aircraft remaining at the airport for twenty-four (24) hours or less, d If Lessee provides aircraft fuel services, Lessee will make available either by tank truck, stationary pump or other suitable dispensing equipment approved by the Fire Marshall of the City of Denton, the quality of gasoline and other petroleum distillates normally found at similar airports, and all storage tanks for gasoline and other aviation fuels shall be placed underground in accordance with the provisions of the Fire Code of the City of Denton for underground Flammable liquid storage tanks e Lessee may not use any of the leased land or premises for the operation of, a motel, hotel, restaurant, private club or bar, apartment house, or for industrial, commercial or retail purposes, except as authorized herein, without the expressed written consent of Lessor 3 Lessee is hereby authorized to construct upon the land herein leased, at its own cost and expense, buildings, hangars, and structures, including fuel storage tanks or other equipment, that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this lease, provided, however, before commencing the construction of any improvements upon the premises, Lessee shall submit all plans and specifications showing the location upon the premises of the proposed construction, b the estimated cost of such construction No construction may commence until Lessor, acting by its City Council, has approved the plans and specifications and the location of the improvements, the estimated costs of such construction, and the agreed estimated life of the budding or structure Documentary evidence of the actual cost of construction shall be delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by Lessee, and Lessor's City Manager is hereby authorized to endorse upon a copy of this lease filed with the City Secretary of Lessor such actual amounts as he shall have found to have been pad by Lessee, and the findings of said City Manager when endorsed by him upon said contract shall be conclusive upon all parties for all purposes of this agreement C Commercial Land Premises Tract I and Tract II Commercial Tract 1(CTI) - Developed Land subject to Lease Payments All,that tract or parcel of land lying in the T Toby Survey, Abstract Number 1285, City of Denton, Denton County, Texas, as shown in Exhibit A and described as follows COMMENCING at the northwest corner of a tract of land as conveyed to the Nobles Company by deed recorded in Volume 2798, Page 695, Real Property Records of Denton County, Texas, said point lying in the south line of F M 1515, THENCE north 88°33'43" west with the south line of said F M 1515 a distance of 265 14 feet, THENCE north 01°50'39" west along and near a fence on the east line of Tom Cale Road a distance of 1000 00 feet, THENCE south 8800971"west a distance of 902 71 feet to a corner on the east line an asphalt taxiway, THENCE north 12025'00" west with the east line of said taxiway a distance of 274 35 feet, THENCE north 77°35'00" east a distance of 280 00 feet to an iron pin at the point of beginning of the herein described tract, THENCE north 12025'00" west a distance of 240 00 feet to a point for a corner, THENCE north 77035'00" east a distance of 427 15 feet to a point for a corner, THENCE south 17042'13" east a distance of 24103 feet to a point for a corner, THENCE south 77035'00" west a distance of 449 36 feet to the Point of Beginning and containing 105,180 55 square feet or 2 4146 acres of land Together with the right of Ingress and egress to the property, in common with others so authorized, of passage upon the Airport property generally, subject to reasonable regulations of Lessor This right shall extend to Lessee's employees, passengers, patrons, and invdees 2 Commercial Tract it (CTII)- Land development completion required by January 1, 1998 All that certain tract or parcel of land lying in the T Toby Survey, Abstract Number 1285, City of Denton, Denton County, Texas, as shown in Exhibit A, and described as follows COMMENCING at the northwest corner of a tract of land as conveyed to the Nobles sid Company by deed e recorded in Volume 2798, Page 695, Real Property Records, of Denton County, plying in the south line of F M Road 1515, THENCE north 88033'43" west with the south line of said F M Road 1515 a distance of 265 14 feet, THENCE north 0105039" west along and near a fence on the east line of Tom Cole Road a distance of 1000 00 feet, THENCE south 8800921"west a distance of 902 71 feet to a corner on the east line an asphalt taxiway, THENCE north 12°25'00" west with the east line of said taxiway a distance of 274 35 feet, THENCE north 7P35'00" east a distance of 340 00 feet to an iron pin at the point of beginning of the herein described tract, THENCE north 77°35'00" east a distance of 389 36 feet to a point for a corner, THENCE south 17042'13" east a distance of 115 49 feet to a point for a corner, THENCE south 55035'32" west a distance of 280 40 feet to an iron pin for a corner, 4 THENCE south 77°35'00" west a distance of 140 00 feet to an iron pin for corner, THENCE north 12°25'00" west a distance of 220 00 feet to the Point of Beginning and containing 73,737 45 square feet or 16928 acres of land Commercial Tract ll Development (CT11) Requirements (CTII)is leased to Lessee for the purpose of future development by Lessee Upon commencement of development of any property within (CTII), the property shall on, that date be considered to be an addition to Commercial Tract I (CTI) and be subject to the same terms and conditions as (CTI), including but not limited to, the same rental rate and adjustments, if any, as If the added property had been within (CTI) from the original date of execution of this Lease The date of issuance of a budding permit by Lessor for the improvements shall be considered the "commencement of development" b If Lessee fads to commence development of at least thirty-six thousand eight hundred sixty nine (36,869) square feet of (CTII) by January 1, 1996, that amount of property shall be automatically considered as an addition to (CTI) on that date as if commencement of development had begun on that property c If Lessee fads to commence development of the remainder of the property within (CTII) by January 1,1998, that property shall be automatically be considered as an addition to (CTI) on that date as if commencement of development had begun on that property •uu. sip-' u Lessee is granted the non-exclusive privilege to engage in or provide the following Hangar Lease and Rentat The rental or lease of hangars and hangar space and related facilities upon the leased premises 2 Office Space Lease or Rental The rental or lease of office space in or adjoining Lessee's hangars 3 Aircraft Storage and Tie -down To provide parking, storage and tie -down service, for both Lessee's and itinerant aircraft upon or within the leased premises Lessee, his tenants and sublessees shall not be authorized to conduct any services not specifically listed in this agreement The use of the lease premises of Lessee, his tenants or sublessees shall be limited to only those private, commercial, retail or industrial activities having to do with or related to airports and aviation No person, business or corporation may operate a commercial, retail or industrial business upon the premises of Lessee or upon the Airport without authorization from the Lessor in a written form approved by City Council The City shall respond to the request for authorization within sixty (60) days of written notification Lessor's City Manager If authorization is not received within the required sixty-day time period, authorization of the activity will be considered granted This granting of authorization does not relieve the Lessee or it sublessee, successor, or assign of compliance with terms or conditions in this agreement II PREMISES AND LEASEHOLD IMPROVEMENTS , it _ .:..i For the purposes of this lease the term "Premises" shall mean all property located within the metes and bounds described above in Section I, including leasehold improvements constructed by the Lessee, but not including 5 certain easements or property owned or controlled by the Lessor B Improvement Reaurrements. In making any improvements on the Premises, Lessee shall comply with the following 1 All requirements of the Lessor's Land Development Code, other than platting requirements, including but not limited to Lessor's Budding, Fire, Electrical, and Plumbing Codes, and other Codes and ordinances applicable to the improvements to be made, including the payment of any fees established by ordinance 2 Prior to commencing development, Lessee shall obtain the City Council's determination that the improvements conform to and are compatible with the overall size, shape, color, quality, design, appearance, and general plan of the program established by the Lessor's Master Plan for the Airport 3 Any rules or regulations of the any Federal or State agency having jurisdiction thereof C Time for Approval by Council The required determination by the City Council that the plans are compatible with the Master Plan for the Airport shall be made by the Council within sixty (60) days of proper submission of the plans to Lessor If the Council fails to act within the sixty (60) days, the plans shall be deemed approved for the purposes of the requirement of compatibility with the Master Plan, but shall not be deemed approved for any other requirement, including the requirement to comply with the Lessor's Land Development Code and other applicable codes All buildings and improvements constructed upon the premises by Lessee shall remain the property of Lessee unless said property becomes the property of Lessor under the following conditions, terms and provisions 1 Removal of Bu0mas No budding or permanent fixture maybe removed from the premises without the written consent of the Lessor 2 Assumo8on All buildings and improvements of whatever nature remaining upon the leased premises at the and of the primary term, or any extension thereof, of this lease shall automatically become the property of Lessor absolutely in fee without any cost to Lessor 3 Buddlna IJfe It is agreed that the life of the building to be constructed by Lessee on the property herein leased is a Thirty (30) years for Land A b Twenty-five (25) years for Commercial Tracts I and II 4 Cancellation Should this lease be canceled for any reason before the and of the terms, it is especially understood and agreed that Lessor reserves the right to purchase all buildings, structures and improvements then existing upon the premises by tendering to Lessee [one twenty- fifth (1f25th) of property on Commercial Tracts I and II and one-thubeth (1 /30) of property on Land A] of the undepreciated value of such building for each year remaining on the agreed life of such budding The undepreciated value of all improvements is to be determined by having such improvements appraised by three appraisers, one appointed by Lessor, one appointed by Lessee and one appointed by the two appraisers, provided, however, the total value of such building plus an increase in value not to exceed fifty percent (50%) of the original cost of such improvements for each five (5) year rental adjustment period III PAYMENTS 1 Fixed Base Operator Land Payment Land Rental payments will be due on the 15th of each month The amount due currently is two - hundred, eighty -rive dollars and thirty-three cents ($285 33) This amount will be adjusted according to the land lease payment adjustments in Section IV If payments are delinquent, they will be penalized according to the Adjustments and Payment Terms criteria set forth in Section IV of this lease 2 Improvement Rental None, as there were no improvements on the property herein leased at the beginning of the primary agreement 3 Hangar and Tie -Down Rental Fees Ten (10%) percent of all hangar and tie -down rental fees collected by Lessee from customers of Lessee each month during the term of this lease A certified statement concerning collection of hangar and tie -down space rentals will be submitted within 60 days of the end of the calendar month or, in the event of termination, 60 days from the date of termination 4 Aviation Fuel Fees Fuel payments shall be based on fuel purchased by Lessee and the Lessee's sublessees, assigns, heirs or successors It will include all fuel purchased from off-avport fuel vendors The payment shall be based on the amount of four percent (4%) of net cost of fuel purchased Net cost of fuel purchased is the cost of fuel not including taxes on the purchase Lessee will provide invoices on a monthly basis along with the payment to the Lessor An annual certified copy of purchases will be submitted within 60 days of the end of the calendar year or, in the event of termination, within 60 days from the date of termination B Payments - Commercial Land Rentat (Commercial Tracts I & II) Land Rental The land rental for Commercial Tract I and required development land in Commercial Tract II is currently at One -thousand, Thirteen Dollars ($1,013 00) Property in Tract 11 will be added according to the procedures set forth in this document as of 1998 Adjustments to the rate shall be made in accordance with the Adjustments and Payment Terms, Section IV The payments will be due as of the 15th of each month 2 Lessor Improvement Rentals None, as there were no improvements upon the leased premises at the beginning of the primary agreement 7 IV PAYMENT ADJUSTMENTS AND TERMS A Adrustments It is expressly understood and agreed that the yearly rental for the land herein leased shall be readjusted in five (5) year periods during the term of this lease, (the first such readjustment occurring April 1, 1998), up or down, on the basis of the proportion that the then current United States Cost of Living Index for the Dallas/Fort Worth, Texas Standard Metropolitan Statistical Area, as compiled by the U S Department of Labor, Bureau of Labor Statistics, bears to the June, 1980, index which was 256 4 (1967 = 100) The adjustment shall be based on the annual cents per square feet based on the square footage for the Fixed Base Operator Land "A" and the Commercial Tract I plus additions required with development as stated in Section I, Commercial Land Premises - Tract I & 11, C , 3 Current Fixed Base Operator Land rental is at $ 0608 ($285 33 x 12 = $3,423 96 land rental per year / 56,300 square feet = $ 0608 per square foot) The Commercial Tract I is currently at $ 08558 ($1,013 / 12 = $12,156 rental per year / 142,049 55 square feet = $ 08558 per square foot) SCHEDULED ADJUSTMENTS Land rental adjustments will be based on the month of March and put into effect as of the 1 at of April in the years of 1998, 2003, and 2008 B Payment Terms All payments, including land rental, and fees, will be due on the 15th of the month This payment will be for the prior month fees and the current month land rentals If payments are not received before or on the 15th, a 50A penalty will be due as of the 16th If payments are not received by the first of the subsequent month, an additional penalty of 1 % of the unpaid rental/fee amount Nil be due A 1 % charge will be added on the first of each subsequent month until unpaid rental/fee payment is made Failure to pay the rent, fee, or either monetary penalty amounts on delinquent rent or fees shall constitute an event of default of this Lease V LEASE TERMS A The Fixed Base Operator Land The remaining term of this lease will be for a term of fourteen (14) years and four months, commencing on the 1 at day of March, 1997, and ending on the thirtieth (30th) of June, 2011, unless sooner terminated as hereinafter set forth Lessee shall have an option to renew this lease at the termnation of this lease on the thirtieth (30th) of June, 2011 at a renegotiated rental and terms mutually agreed upon by the Lessor and Lessee without regard for or considering the then cost of living index Lessee's election to renegotiate this lease shall be in writing, addressed to the City Manager of the City of Denton, and shall be filed with Lessor's City Manager at least 180 days before the expiration of this agreement B Commercial Land, Tract I and Tract II The remaining term of this lease Nil be for a term of fourteen (14) years and four months, commencing on the 1 at day of March, 1997, and continuing through the last day of June, 2011, unless earlier terminated under the provisions of the Agreement Lessee shall have an option to renew this lease at the termination of this lease on the thirtieth (30th) of June, 2011 at a renegotiated rental and terms mutually agreed upon by the Lessor and Lessee without regard for or considering the then cost of living index If Lessee elects to renew this Lease, Lessee shall notify the City Manager, in writing, at least one hundred eighty (180) days before the expiration of this agreement V ASSIGNMENT OF LEASE Lessee expressly covenants that 9 will not assign this lease, nor sublet the whole or any part of the said premises for any purpose, except for rental of hangar space or he -down space, without the written consent of Lessor, except that any person, corporation or institution that lends money to Lessee for the construction of any hangar, structure, budding or improvement upon the leased premises and retains a security interest in said hangar, structure, budding or improvement shall, upon default of Lessee's obligation to said mortgagee, have the right to enter upon said leased premises and operate or manage said hangar, structure, budding or improvement according to the terms of this agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid in full, but in no event longer than the term of this lease Lessor agrees that A will not unreasonably withhold its approval of the sale or sublease of the facilities for airport related purposes VI SUBROGATION OF MORTGAGE Any person, corporation or institution that lends money to Lessee for construction of any hangar, structure, building or improvement and retains a security interest in said hangar, structure, budding or improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon said leased premises and operate or manage said hangar, structure, budding or improvement according to the terms of this Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid in full; or such mortgagee shall have the right to remove any buildings or structures from the premises, however, d such mortgagee is planning to remove any buildings, then they will notify Lessor in writing of such intent to remove, and Lessor will have sixty (60) days from receipt of such notice to exercise an option to purchase such buildings or structures under the provisions of Article II hereof VII RIGHT OF EASEMENT Lessor shall have the right to establish easements, at no cost to Lessor, upon the leased ground space for the purpose of providing utility services to, from or across the airport property However, any such easements shall not Interfere with Lessee's use of the "leased ground space" and Lessor shall restore the property to As original condition upon the installation of any utility services on, in, over or under any such easement Vill CANCELLATION OF LEASE A Cancellation by Lessor In the event that Lessee shall file a voluntary petition in Bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and As assets pursuant to proceedings brought under the provisions of any Federal reorganization act, or Lessee shall be divested of As estate herein by other operation of law, or Lessee shall fail to perform, keep and observe any of the terms, covenants, or conditions herein contained, or on As part to be performed, the Lessor may give Lessee written notice to correct such condition or cure such default and, if any condition or default shall continue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may, terminate this lease by a thirty (30) days written notice to Lessee In the event of default, Lessor has the right to purchase any or all structures on the leased premises under the provisions of Article 11 hereof B Cancellation by Lailisee Lessee may cancel this Agreement in whole or part, and terminate all or any of As obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of any one of the following events (t) issuance by any court of competent jurisdiction of a permanent injunction in any way preventing or restraining the use of said airport or any part thereof for airport purposes, (2) any action of the Civil Aeronautics Board and/or Federal Aviation Agency refusing to permit Lessee to operate into, from or through said airport such aircraft as Lessee may reasonably desire to operate thereon, the breach by Lessor of any of the covenants or agreements contained herein and the failure of Lessor to remedy such breach for a period of thirty (30) days after receipt of a written notice of the existence of such breach, (3) the inability of Lessee to use said premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, rule or regulation of any appropriate governmental authority having jurisdiction over the operations of Lessor or due to war, earthquake or other casualty, or (4) the assumption or recapture by the United States Government or any authorized agency thereof of the maintenance and operation of said airport and facilities or any substantial part or parts thereof IX SPECIAL CONDITIONS it is especially understood and agreed by and between Lessor and Lessee that this lease agreement is subject to the following special terms and conditions A Nothing contained herein shall be construed to grant or authonze the granting of an exclusive right within the meaning of Section 1349 of Title 49, United States Code Annotated B Lessor reserves the right to further develop or improve any public parking area, landing area, or other portion of the airport property without notice to Lessee C During time of war or national emergency, declared by the Congress or the President of the United States, Lessor reserves the right to alter, amend, or suspend this agreement upon demand of military, or naval authonbes of the United States D Lessee, its personal representative, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, that in the construction of any improvements on, over, or under such land and the furnishing of services thereof, no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, 3 that the Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -assisted programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended That in the event of breach of any of the above nondiscrimination covenants, Lessor shall have the right to terminate the lease and to re-enter and repossess said land and the facilities thereon, and hold the same as if said lease had never been made or issued E The Lessee assures that it Nil undertake an affirmative action program as required by 14 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 seances 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 Lessor 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 some effect 10 F If Lessor flies an action to enforce any covenant, term or condition of this lease, or for the recovery of the possession of the leased area, or for breach of any covenant, term or condition of this lease, then Lessee agrees to pay to Lessor reasonable attorneys fees for the services of Lessor's attorney in such action as part of the costs incurred, such attorneys fees to set by the Court G Lessor's waiver or breach of one covenant or condition of this lease shall not be deemed a waiver of subsequent breaches of other provisions, and Lessor's acceptance of rental payments shall not be deemed a waiver of any of the provisions of this lease H Lessee shall be provided access to the property leased hereunder either through access "A" or access "B", at Lessor's discretion, as shown on Exhibit "A" attached hereto and incorporated herein by reference Lessor reserves the right to change Lessee's means of ingress and egress from one designated access to another at Lessor's option I Runways and Taxwvays That because of the present sixty thousand (60,000) pound continuous use weight bearing capacity of the runway and taxiways of the Airport, Lessee herein agrees to limit all aeronautical activity including landing, takeoff and taxiing, to aircraft having an actual weight, including the weight of Its fuel, of sixty thousand (60,000) pounds or less, until such time that the runway and designated taxiways on the Airport have been improved to handle aircraft of such excessive weights It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that the Lessee agrees to abide by any such changes or revisions as such studies may dictate "Aeronautical Activity" referred to in this clause shall include that activity of the Lessee or its agents or subcontractors, and its customers and invitees, but shall not include those activfies which it neither controls nor solicits, such as an unsolicited or unscheduled or emergency landing Negligent disregard of the provisions of this section shall be sufficient to cause the immediate termination of this entire Agreement and subject the Lessee to be liable for any damages to the Airport that might result J Principles of Operations The right to conduct aeronautical activities for furnishing services to the public is granted the lessee subject to Lessee agreeing, To furnish said services on a fair, equal and not unjustly discriminatory basis to all users thereof, and To 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 pnce reductions to volume purchasers K Right of Individuals to Maintain Aircraft It is clearly understood by the Lessee that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the airport from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform L Public Areas 1 Lessor reserves the right to further develop or improve the landing area of the airport as it sees fit, regardless of the desires or views of the Lessee, and without interference or hindrance Lessor shall be obligated 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 Lessee in this regard During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and, if 11 such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended 4 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 Lessee from erecting, or permitting to be erected, any budding or other structure on or adjacent to the airport which, in the opinion of the Lessor, would limit the usefulness or safety of the airport or constitute a hazard to aircraft or to aircraft navigation This Lease shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States or agency thereof, relative to the operation or maintenance of the Airport X INSURANCE A Required Insurance Lessee, at its expense, shall maintain continuously in effect at all times during the term of this agreement the following insurance coverages 1 Comprehensive general liability covering the leased premises, the Lessee or its company, its personnel, and its operations on the Airport 2 Aircraft liability to cover all flight operations of lessee 3 Fire and extended coverage for replacement value for all facilities used by the Lessee either as a part of this agreement or erected by the Lessee subsequent to this agreement 4 Liability insurance limits shall be in the following minimum amounts Bodily Injury and Property Damage One Million Dollars ($1,000,000) combined single limits on a per occurrence basis 5 All policies shall name the City of Denton as an additional named insured and provide for a minimum of thirty (30) days written notice to the City prior to the effective date of any cancellation or lapse of such policy 6 All policies must be approved by the Lessor 7 The Lessor shall be provided with a copy of all such policies within thirty (30) days of the signing of this Agreement During the original or extended term of this Lease, Lessor herein reserves the right to adjust or increase the liability Insurance amounts required of the Lessee, and to require any additional rider, provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by Lessor, provided however, that any requirements shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal Airport, in size and in scope of aviation activities, located in the southwestern region of the United States Lessee herein agrees to comply with all increased or adjusted insurance requirements that may be required by the Lessor throughout the original or extended term of this Lease, including types of insurance and monetary amounts or limits of insurance, and to comply with said insurance requirements within sixty (60) days following the receipt of a notice in writing from Lessor stating the increased or adjusted insurance requirements Lessee shall have the right to maintain in force both types of insurance and amounts of insurance which exceed Lessor's minimum insurance requirements 12 In the event that State law should be amended to require additional types of insurance and/or insurance amounts which exceed those of like or similar public use airports in the southwestern region of the United States of America, then in such event, Lessor shall have the right to require that Lessee maintain in force types of insurance and/or amount of insurance as specified by State law Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease B INDEMNITY. During all times that this lease is in effect, the parties agree that Lessee is and shall be deemed to be an independent contractor and operator and not an agent or employee of City with respect to its acts or omissions hereunder For all the purposes hereunder, Lessee is and shall be deemed an independent contractor and it is mutually agreed that nothing contained herein shall be deemed or construed to constitute a partnership or joint venture between the parties hereto Lessee agrees to indemnify and hold harmless the City and its agents, employees, and representatives from and against all liability for any and all claims, suits, demands, and/or actions arising from or based upon intentional or negligent acts or omissions on the part of Lessee, its agents, representatives, employees, members, patrons, visitors, contractors and subcontractors (d any), and/or sublessees, which may arise out of or result from Lessee's occupancy or use of the premises and/or activities conducted in connection with or incidental to this Lease Agreement Lessee shall also indemnify City against any and all mechanic's and materralmen's liens or any other types of liens imposed upon the premises demised hereunder arising as a result of Lessee's conduct or activity This Indemnity Provision extends to any and all such claims, surfs, demands, and/or actions regardless of the type of relief sought thereby, and whether such relief is in the form of damages, judgments, and costs and reasonable attorney's fees and expenses, or any other legal or equitable form of remedy This Indemnity Provision shall apply regardless of the nature of the injury or harm alleged, whether for injury or death to persons or damage to property, and whether such claims by alleged at common law, or statutory or constitutional claims, or otherwise This Indemnity Provision shall apply whether the basis for the claim, suit, demand, andlor action maybe attributable in whole or in part to the Lessee, or to any of its agents, representatives, employees, members, patrons, visitors, contractors (if any), and/or sublessees or to anyone directly or indirectly employed by any of them Further, City assumes no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects or conditions which may now exist or which may hereafter arise upon the premises, any and all such defects being expressly waived by Lessee Lessee understands and agrees that this Indemnity Provision shall apply to any and all claims, suits, demands, and/or actions based upon or arising from any such claim asserted by or on behalf of Lessee or any of its members, patrons, visitors, agents, employees, contractors and subcontractors (d any), and/or sublessees It is expressly understood and agreed that the City shall not be liable or responsible for the negligence of Lessee, its agents, servants, employees and customers Lessee further agrees that it shall at all times exercise reasonable precautions for the safety of and shall be solely responsible for the safety of its agents, representatives, employees, members, patrons, visitors, contractors and subcontractors (d any), andlor sub -lessees, and other persons, as well as for the protection of supplies and equipment and the property of Lessee or other persons Lessee further agrees to comply with all applicable provisions of Federal, State and municipal safety laws, regulations, and ordinances PROVIDED FURTHER, that the Lessee and the City each agree to give the other party prompt and timely notice of any such claim made or suit instituted which in any way, directly or indirectly, contingently or otherwise, affects or might affect the Lessee or the City Lessee further agrees that this Indemnity Provision shall be considered as an additional remedy to City and not an exclusive remedy 13 XI STANDARDS Lessee shall meet or exceed the following standards A Address Lessee shall file with the City Manager's airport designee and keep current its mailing address, telephone number(s) and contacts where he can be reached in an emergency B LjM Lessee shall file with the City Manager's airport designee and keep current a list of its tenants and sublessees C Canduct Lessees shall contractually require its employees and sublessees (and sublessee's invitees) to abide by the terms of this agreement Lessee shall promptly enforce its contractual rights in the event of a default of such covenants D Utilities Taxes and Fees Lessee shall meet all expenses and payments in connection with the use of the Premises and the rights and privileges herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed E Laws Lessee shall comply with all current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, including rules, regulations and ordinances promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place all necessary and/or required licenses or permits F Maintenance of Proper Lessee shall be responsible for the maintenance, repair and upkeep of all property, buildings, structures and improvements, including the mowing or elimination of grass and other vegetation on the Premises, and shall keep said Premises neat, clean and in respectable condition, free from any objectionable matter or thing G Unauthorized Use of Premises Lessee may not use any of the leased land or premises for the operation of a motel, hotel, restaurant, private club or bar, apartment house, or for industrial, commercial or retail purposes, except as authorized herein H >D%vaWpgs It is expressly understood and agreed that no permanent dwelling or domicile may be built, moved to or established on or within the leased premises nor may the Lessee, his tenants, invitees, or guests be permitted to reside or remain as a resident on or within the leased premises or other airport premises Chemicals Lessee agrees to properly store, collect and dispose of all chemicals and chemical residues, to properly store, confine, collect and dispose of all paint, including paint spray in the atmosphere, and paint products, and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints J Sions During the term of this Agreement, Lessee shall have the right, at its own expense, to place in or on the lease Premises signs identifying lessee Said signs shall be of a size, shape and design, and at a location or locations, approved by the Lessor and in conformance with any overall directional graphics or sign program established by Lessor on the Airport Lessor's approval shall not be withheld unreasonably Said signs shall be maintained in good repair throughout the term of this agreement Notwithstanding any other provision of this agreement, said signs shall remain the property of Lessee Lessee shall remove, at its expense, all lettering, signs and placards so erected on the premises at the expiration of the term of this Agreement or extensions thereof 14 XII COVENANTS BY LESSOR Lessor hereby agrees as follows A To provide and pay for the installation and monthly electricity required for security lighting at the airport which Lessor requires to be installed under any safety or fire regulations, or as may be required by Lessor, B To maintain the airport in an acceptable condition for general aviation activrties on said airport, C Lessor covenants and agrees not to enter into any subsequent lease, contract, or agreement with any other person, firm or corporation for the operation of a fixed base general aviation operation or business similar to Lessee's business on the airport containing more favorable terms than this agreement or not accorded to Lessee hereunder unless the same rights, privileges and concessions are concurrently and automatically made available to Lessee D That on payment of the rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the leased premises and all the rights and privileges herein granted E Lessor warrants and represents that in the establishment, construction and operation of the said Denton Municipal Purport, that Lessor has heretofore and at this time is complying with all existing rules, regulations, and criteria distributed by the Federal Aviation Agency, Civil Aeronautics Board, or any other governmental authority relating to and including, but not limited to, noise abatement, air rights and easements over adjoining and contiguous areas, over -flight in landing or take -off, to the and that Lessee will not be legally liable for any action of trespass or similar cause of action by virtue of any aerial operations over adjoining property in the course of normal take -off and landing procedures from said Denton Municipal Airport, Lessor further warrants and represents that at all times during the term hereof, or any renewal or extension of the same, that it will continue to comply with the foregoing XIII COVENANTS BY LESSEE Lessee hereby agrees as follows A To indemnify and hold harmless the Lessor from and against all loss and damages, including death, personal injury, loss of property or other damages, arising or resulting from the operation of Lessee's business in and upon the leased premises B Not to make or suffer any waste to be made of the premises and will keep said premises neat, clean and respectable condition, free from objectionable matter or thing C To observe and comply with all current and future laws and ordinances and all regulations of federal, state, county or city airport authorities or agencies having jurisdiction over the conduct of operations at the airport D To keep adequate records of income and expenses and make such records reasonably available, upon request, to the Director of Finance of the City of Denton, Texas E Lessee will quit possession of all premises leased herein at the end of the primary term of this lease or any renewal or extension thereof, and deliver up the premises to Lessor in as good condition as existed when possession was taken by Lessee, reasonable wear and tear excepted 15 F Lessee shall, at its expense, procure all licenses, certificates, permits, or other authorization from any and all governmental authorities, if any, having jurisdiction over the operations of Lessee XIV MISCELLANEOUS PROVISIONS A Utilities Lessee shall provide all utilities for the premises leased to Lessee at its own cost and expense Utilities shall also include any security lighting required by Lessee for the convenience of customers of Lessee Lessee shall have the right to connect to the airport water line now existing and to connect to any future utility Imes at Lessee's expense B Entire Agreement This Agreement constitutes the entire understanding, between the parties and as of its effective date supersedes all prior or independent Agreements between the parties covering the subject matter hereof Any change or modification hereof shall be in writing signed by both parties C Binding Effect All the covenants, stipulations and agreements herein shall extend to, bind and inure to the benefit of the legal representatives, successors and assigns of the respective parties hereto D Severabrlrtv If a provision hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Agreement shall not be void, but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties E Not Any notes given by one party to the other in connection with this Agreement shall be in writing and shall be sent by registered mail, return receipt requested, with postage and registration fees prepaid If to Lessor, addressed to City Manager City of Denton Denton, Texas 76201 2 If to Lessee, addressed to Mr F D Strickler Fox-51 Limited Route 1, Box 102 Denton, Texas 76201 Notices shall be deemed to have been received on the date of receipt as shown on the return receipt F Headmas The headings used in this Agreement are intended for convenience of reference only and do not define or limit the scope G Govemrna taw This agreement is to be construed in accordance with the laws of the State of Texas 16 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written CITY OF DENTON, LESSOR BY TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY I APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY FOX-51 LIMITED, LESSEE BY FRANK D STRICKLER TITLE THE STATE OF TEXAS § COUNTY OF DENTON § no This instrument was acknowledged before me on theQid day of 1997 by Frank D Strickler C:L/iG( a N AR UBLIC, STATE OF TEXAS My Commission Expires JOE.' 1EANI,TTE SCOTT 17 NMW PUBLIC, STATE Or TEAS My cmmmmum Expires March 31 W RESOLUTION NO 9--L0010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPROVING THE ASSIGNMENT BY FOX-51, LIMITED OF THE FIXED BASED OPERATOR AND COMMERCIAL OPERATOR LEASES OF AIRPORT PROPERTY CODIFIED INTO ONE LEASE ON APRIL 15, 1997 TO EZELL AVIATION, INC, SAID PROPERTY CONSISTING OF APPROXIMATELY 235,218 SQUARE FEET OF LAND, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City of Denton has leased airport property to Fox-5 1, Limited, one parcel being identified as Land "A", Fixed Base Operator Premises consisting of approximately 56,300 square feet of land, more or less, and another parcel identified as Commercial Land Premises, Tract I and Tract 11, Tract I consisting of approximately 105,180 55 square feet of land and Tract II, land development completion required by January 1,1998 consisting of approximately 73,737 45 square of land, and WHEREAS, Fox-5 1, Limited wishes to assign it's interest in the above Airport Lease Agreement approved by the City Council on April 15, 1997, to Ezell Aviation, Inc , and WHEREAS, Fox-5 1, Limited is required to obtain the City's written consent to this assignment, NOW, THEREFORE, 5BC1ION L That the City of Denton hereby gives its written consent to the assignment of Fox-5 1, Limited's Airport Lease Agreement between the City of Denton dated May 6, 1980, and amended on June 16, 1980, and February 19,1985, and the Commercial Operator Lease dated April 1, 1986 and amended on February 2, 1988 and August 20,1991, pursuant to the assignment dated April 10, 1997 between Fox-51, Limited and Ezell Aviation, Inc, attached as Exhibit "A" These leases were codified into one lease on April 15, 1997 1L That consent to this assignment is subject to and shall be considered valid only for so long as Ezell Aviation, Inc complies with all terns of the Airport Lease Agreement between the City of Denton, Texas and Fox-5 1, Limited dated April 15, 1997, except the City drops its claim for late payment fees ansmg under Section IV C of the April 1, 1986 Commercial Operator Lease in consideration of the additional benefits provided to the City by the April 15, 1997 Airport Lease Agreement $FACTION III. That this resolution shall become effective immediately upon its passage and approval PASSED AND APPROVED this them_ day of 1997 JA ILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY B A OVED AS TO LEGAL FORM 14ERBERT L PROUTY, CITY ATTORNEY EXHIBIT A Apnl 10, 1997 Nelson Ezell d b a EZELL AVIATION, INC has agreed to accept the assignment of Fox-51 Lmuted's Fixed Based Operator and Commercial Operator Leases that it currently has at the Denton Municipal Airport described as approximately 235,218 square feet of land FOX-51, LIMITED i Given under my hand and seal of office this day of April, 1997 lam^ Y EZELL AVIATION, INC P O BOX 1793 BRECKENRIDGE, TX 76424 NELSON EZELL Given under my hand and seal of office this // 4- day of Apnl, 1997 ka Y L'nn,, psy 5 i IRV ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANGER TO EXECUTE AN AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND EZELL AVIATION INCORPORATED FOR APPROXIMATELY 8.2 ACRES OF PROPERTY LOCATED AT THE DENTON MUNICIPAL AIRPORT, WHICH PREEMPTS THE LEASE ASSIGNED PER RESOLUTION NO. 97-020 TO EZELL AVIATION, INC FROM FOX-51 LIMITED; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS - SECTION I That the City Manager is authorized to execute an airport lease agreement between the City of Denton, Texas for approximately 8 2 acres of land located at the Denton Municipal Airport, under the terms and conditions contained within this agreement, which is attached, hereto and made a part hereof SECTION H. The lease assignment per Resolution No 97-020 to Ezell Aviation, Inc from Fox-51 Limited is hereby preempted SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the (O� day of 1997 JAQj.WLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY)922-& APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY /'.i,���] l� , c'WPOOCBbgpNZ8L1.W AIRPORT LEASE AGREEMENT COMMERCIAUFBO WHEREAS, the City of Denton, Texas as Lessor and Ezell Aviation, Incorporated, as Lessee desire to enter into an airport lease agreement which amends the terms and conditions of the lease approved by Ordinance No 97-120 between the City of Denton and Fox-51 Limited which was assigned by the Lessor on April 15, 1997. per Resolution No 97-020 to Ezell Aviation, Inc NOW THEREFORE This lease and agreement is made and entered into thisday of 1997 but effective May 1, 1997, by and between the City of Denton, a Municipal Corporation, situat Denton County Texas hereinafter called "Lessor", and Ezell Aviation, Incorporated, a corporation of the late of Texas, located at Stephens County Airport, Post Office Box 1793, Breckenridge, Texas, and whose registered agent is Nelson Ezell, located at Stephens County Airport, Post Office Box 1793, Breckenridge, Texas, hereinafter referred to as "Lessee " In consideration of the premises and the mutual covenants the parties agree that the land to be leased is the following described land situated in Denton County, Texas I PREMISES AND USE * =732T u - TRACT "A" A 100 x 200 foot tract of land being approximately 20 000 square feet and a 165 x 220 foot tract of land, being approximately 36,300 square feet, having a combined area of approximately 56,300 square feet or 129 acres, described as follows COMMENCING at the northwest corner of a tract of land as conveyed to P F Breen by deed recorded in Volume 127, Page 185 of the Deed Records of Denton County, Texas said point lying in the South right of way line of FM Road 1515, THENCE west along the south right of way line of FM Road 1515 a distance of 350 feet to a point, THENCE north along the west right of way line of FM Road 1515 a distance of 1 000 feet to a point, THENCE west perpendicular to said right of way line of FM 1515 a distance of 870 feet more or less, We point on the east edge of the pavement of the north taxiway, THENCE north 13050'41" west along the east edge of pavement of said north taxiway a distance of 10 feet to a point for a comer, THENCE north 76009'19" east perpendicular to said east edge of pavement a distance of 175 feet to the point of beginning, THENCE north 13050'41" west 175 feet east of and parallel to said east edge of pavement a distance of 220 feet to a point for a corner, THENCE north 76009'19" east perpendicular to said east edge of pavement a distance of 5 feet to a point for a comer, THENCE -north 13050'41" west 180 feet east of and parallel to said east edge of pavement a distance of 200 feet for a point for a comer, THENCE north 7600919" east perpendicular to said east edge of pavement a distance of 100 feet to a point for corner, THENCE south 13050'41" east 280 feet east of and parallel to said east edge of pavement a distance of 200 feet to a point for a comer, THENCE north 76009'19" east perpendicular to said east edge of pavement a distance of 60 feet to a point for a corner, THENCE south 13°50'41" east 340 feet east of and parallel to said east edge of pavement a distance of 220 feet to a point for a corner, THENCE south 76009'19" west perpendicular to said east edge of pavement a distance of 165 feet to the place of beginning and containing 56,300 square feet of land, more or less, as shown on Exhibit "A", attached hereto and incorporated herein by reference PLUS, TRACT "B" All that certain tract or parcel of land lying in the T Toby Survey, Abstract Number 1285 City of Denton, Denton County, Texas, as shown in Exhibit B (Tract "B"), and described as follows COMMENCING at the northwest comer of a tract of land as conveyed to the Nobles Company by deed recorded in Volume 2798, Page 695 Real Property Records, of Denton County Texas said point lying in the south line of F M Road 1515 THENCE north 88033'43" west with the south line of said F M Road 1515 a distance of 265 14 feet, THENCE north 01050'39" west along and near a fence on the east line of Tom Cole Road a distance of 1000 00 feet, THENCE south 88009'21" west a distance of 902 71 feet to a corner on the east line an asphalt taxiway, THENCE north 12025'00" west with the east line of said taxiway a distance of 274 35 feet THENCE north 77035'00" east a distance of 340 00 feet to an iron pin set for southwest corner of a tract of land described as property A in Resolution No R91-052, 8-20-1991 City of Denton Denton County Texas and the point of beginning of the herein described tract, THENCE north 77035'00" east a distance of 389 60 feet to a point for a corner, THENCE south 17035'52" east a distance of 115 49 feet to an von pin found at the southeast comer of a tract of land described as property B in Resolution No R91-052, 8-20-1991 City of Denton, Denton County Texas and the point of beginning of the herein described tract, EZELL AVIATION, INC LEASE AGREEMENT - PAGE 2 THENCE south 55035'52" west a distance of 280 53 feet to an iron pin for a corner, THENCE south 77036'29" west a distance of 139 91 feet to an iron pin for corner. THENCE north 12025'00" west a distance of 220 01 feet to the Point of Beginning and containing 73,766 18 square feet or 16934 acres of land PLUS, TRACT"C" All that certain tract or parcel of land tying in the T Toby Survey, Abstract Number 1285, City of Denton, Denton County, Texas, as shown in Exhibit 8 (Tract "C"), and described as follows COMMENCING at the Northwest comer of a Tract of Land as conveyed to the Nobles Company by deed recorded in Volume 2798 page 695, Real Property Records of Denton County, Texas said point lying in the south line of F M Road 1515, THENCE, north 88.33"43 seconds west with the south line of said F M Road 1515 a distance of 265 14 feet, THENCE, north 01.50' 39" west along and near a fence on the east line of Tom Cole Road a distance of 1000 0 feet, THENCE, south 88.09'21" west a distance of 902 71 feet to a corner on the east line of an asphalt taxiway, THENCE, north 12.25'00" west with the east line of said taxiway a distance of 274 35 feet THENCE, north 77.35'00" east a distance of 340 00 feet to an iron pin at the northwest corner of a tract of land described as property B in Resolution No R-91-052, City of Denton Denton County, Texas, THENCE, south 1 T25'00" east, with the west line of said 16928 acre tract a distance of 222 00 feet to an iron pin found at the southwest corner of said 16928 acre tract and the point of beginning of the herein described tract, THENCE, south 770degrees 44'34" west a distance of 164 52 feet to an iron pin set for the northwest comer of the herein described tract, THENCE, south 12.2600" east a distance 200 00 feet to an von pin set for the southwest corner of the herein described tract, THENCir north 77.36'29" east a distance of 530 00 feet to an von pin set for the southeast corner of the herein described tract, THENCE, north 07.49'03" west a distance of 306 14 feet to an iron pin found at the southeast comer of said 16928 acre tract a distance of 280 54 feet to a found pin, THENCE, south 55.35'29" west with the south line of said 16928 acre tract a distance of 280 54 feet to a found von pin, THENCE, south 77.36'29 seconds west with said south line a distance of 139 90 feet to the point of beginning and containing 120,841 858 square feet, or 2 7741 acres of land EZELL AVIATION, INC LEASE AGREEMENT - PAGE 3 The Fixed Base Operator tract, as described in Section I A , will comprise of a total of 250,908 038 square feet or approximately 5 7569 acres Together with the right of ingress and egress to the property, in common with others so authorized, of passage upon the Airport property generally, subject to reasonable regulations of Lessor This right shall extend to Lessee's employees, passengers, patrons, and invitees Lessor does hereby demise and let unto the Lessee and Lessee does hereby lease and take from the Lessor, the land and facilities herein described, and the rights, licenses, and privileges in connection with the use of such property and improvements as follows The use, in common with others authorized so to do, of said airport and all appurtenances facilities, improvements, equipment and services which have been or may hereafter be provided thereat The operation of a transportation system by aircraft, the repairing, maintaining, conditioning, servicing, parking or storage of aircraft or other equipment, the training of personnel and the testing of aircraft and other equipment, the sale, disposal or exchange of aircraft, engines, accessories, and related equipment, the servicing by Lessee of aircraft and other airport related equipment, including the right to install and maintain on said airport adequate storage facilities, and appurtenances, including right of way necessary therefor, the landing, taking oft, parking, loading, and unloading of aircraft and other equipment, the right to load and unload persons, property and mad at said airport, by such means as Lessee may desire with the right to designate the camers who shall transport Lessee's passengers and their baggage to and from the airport, and, also the further right to designate the carriers who shall transport Lessee s airborne freight, if any, to and from the said airport, the right to install and operate advertising signs, the general type and design of such signs to be reasonable and appropriate the conduct of any other aviation related business or operations reasonably necessary to the proper necessary and appropriate conduct and operation by Lessee of its business, and without in any way limiting the foregoing, Lessee specifically agrees that, if Lessee elects to engage in or provide any of the above services on the premises herein leased, Lessee will a Provide service to the public on a non-discriminatory basis, b Conduct and operate Its business and management in a courteous and efficient manner c If Lessee provides tie -down service, Lessee will provide tie -down service to overnight or other transient aircraft or aircraft remaining at the airport for twenty-four (24) hours or less d If Lessee provides aircraft fuel services, Lessee will make available either by tank truck stationary pump or other suitable dispensing equipment approved by the Fire Marshall of the City of Denton, the quality of gasoline and other petroleum distillates normally found at similar airports, and all storage tanks for gasoline and other aviation fuels shall be placed underground in accordance with the provisions of the Fire Code of the City of Denton for underground flammable liquid storage tanks Lessee may not use any of the leased land or premises for the operation of, a motel hotel private club or bar, apartment house, or for industrial, commercial or retail purposes except as authorized herein, without the expressed written consent of Lessor EZELL AVIATION, INC LEASE AGREEMENT - PAGE 4 f~ Lessee shall have the non-exclusive right to construct and operate a restaurant on the leased premises during reasonable hours as agreed to by Lessee and Lessor g Lessee shall install, maintain, and operate proper radio and meteorological equipment to man (monitor and respond) the Airport Unicorn frequency 122 7 Lessee will operate the Unicom during normal Airport operating hours, Monday through Friday, 8 00 A M to 5 00 PM Lessee will have the non-exclusive right to conduct Unicorn operations on the above identified frequency Lessee is hereby authorized to construct upon the land herein leased, at its own cost and expense, buildings, hangars, and structures, including fuel storage tanks or other equipment that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this lease, provided, however, before commencing the construction of any improvements upon the premises, Lessee shall submit all plans and specifications showing the location upon the premises of the proposed construction, and b the estimated cost of such construction No construction may commence until Lessor, acting by its City Council, has approved the plans and specifications and the location of the improvements, the estimated costs of such construction and the agreed estimated life of the building or structure Documentary evidence of the actual cost of construction shall be delivered by Lessee to Lessors City Manager from time to time as such costs are paid by Lessee, and Lessor's City Manager is hereby authorized to endorse upon a copy of this lease filed with the City Secretary of Lessor such actual amounts as he shall have found to have been paid by Lessee, and the findings of said City Manager when endorsed by him upon said contract shall be conclusive upon all parties for all purposes of this agreement C Commercial Land Promise TRACT "D" Commercial Tract "0" - Developed Land subject to Lease Payments All that tract or parcel of land lying in the T Toby Survey, Abstract Number 1285 City of Denton Denton County, Texas, as shown in Exhibit C (Tract "A"), and described as follows COMMENCING at the northwest comer of a tract of land as conveyed to the Nobles Company by deed recorded in Volume 2798, Page 695, Real Property Records of Denton County Texas said point lying in the south line of F M 1515 THENCE north 88033'43" west with the south line of said F M 1515 a distance of 265 14 feet THENCE north 01050'39" west along and near a fence on the east line of Tom Cole Road a distance of 1000 00 feet, THENCE south 8800721" west a distance of 902 71 feet to a corner on the east line an asphalt taxiway, THENCE north 12025'00" west with the east line of said taxiway a distance of 274 35 feet, EZELL AVIATION, INC LEASE AGREEMENT - PAGE 5 THENCE north 77035'00" east a distance of 280 00 feet to an iron pin set for southwest corner of a tract of land described as property A in Resolution No R91-052,8-20-1991. City of Denton, Denton County Texas and the point of beginning of the herein described tract, THENCE north 12°25'00" west a distance of 240 00 feet to a point for a corner THENCE north 77035'00" east a distance of 427 15 feet to a point for a corner THENCE south 17035'52" east a distance of 240 98 feet to a point for a comer, THENCE south 77035'00" west a distance of 448 93 feet to the Point of Beginning and containing 105,131 154 square feet or 2 4135 acres of land Together with the right of Ingress and egress to the property, in common with others so authorized, of passage upon the Airport property generally, subject to reasonable regulations of Lessor This right shall extend to Lessee's employees, passengers, patrons, and invitees Lessee is granted the non-exclusive privilege to engage in or provide the following Hangar Lease and Rental The rental or lease of hangars and hangar space and related facilities upon the leased premises Office Space Lease or Rental The rental or lease of office space in or adjoining Lessees hangars Aircraft Storage and Tie -down To provide parking, storage and tie -down service, for both Lessee's and itinerant aircraft upon or within the leased premises Lessee, his tenants and sublessee shall not be authorized to conduct any services not specifically listed in this agreement The use of the lease premises of Lessee, his tenants or sublessee shall be limited to only those private, commercial, retail or industrial activities having to do with or related to airports and aviation No person, business or corporation may operate a commercial retail or industrial business upon the premises of Lessee or upon the Airport without authorization from the Lessor in a written form approved by City Council The City shall respond to the request for authorization within sixty (60) days of written notification to Lessor's City Manager If authorization is not received within the required sixty-day time period, authorization of the activity will be considered granted This granting of authorization does not relieve the Lessee or it sublessee successor or assign of compllandgwilh terms or conditions in this agreement II PREMISES AND LEASEHOLD IMPROVEMENTS A Premise Define For the purposes of this lease the term 'Premises" shall mean all property located within the metes and bounds described above in Section I including leasehold improvements constructed by the Lessee, but not including certain easements or property owned or controlled by the Lessor EZELL AVIATION, INC LEASE AGREEMENT - PAGE 6 4 - 11 • ' l l ' 1 � 'a' - 11 - 1 . In making any Improvements on the Premises, Lessee shall comply with the following 1 All requirements of the Lessor's Land Development Code, other than platting requirements including but not limited to Lessor's Building, Fire, Electrical and Plumbing Codes and other Codes and ordinances applicable to the improvements to be made, including the payment of any fees established by ordinance 2 Prior to commencing development, Lessee shall obtain the City Council's determination that the improvements conform to and are compatible with the overall sae, shape, color quality, design, appearance, and general plan of the program established by the Lessor's Master Plan for the Airport 3 Any rules or regulations of the any Federal or State agency having jurisdiction thereof 4 Construction of drainage Improvements, as required by City's subdivision rules and regulations located at boundary between FBO Tracts "B" and 'C" to be completed June 1 1998 5 The construction of an addition to the existing FBO facility of approximately 7,000 square feet to be completed June 1, 1998 6 Construction of a new hangar of approximately 44,000 square feet to be completed June 1, 1998 7 The City of Denton agrees to pay ten (10) percent of construction costs of the drainage Improvements which are descnbed in paragraph 4 above These costs will not be eligible for payment until they have been reviewed and found to be accurate and reasonable by the City of Denton Engineering Department Such costs will not be paid until completion of improvements listed in 4, 5, and 6 above The ten (10) percent credit will be refunded in twelve monthly increments by reduction of the monthly land lease payments to begin the first month after completion of 4, 5, and 6 above u- I The required determination by the City Council that the plans are compatible with the Master Plan for the Airport shall be made by the Council within sixty (60) days of proper submission of the plans to Lessor If the Council falls to act within the sixty (60) days, the plans shall be deemed approved for the purposes of the requirement of compatibility with the Master Plan, but shall not be deemed approvedlbr any other requirement, including the requirement to comply with the Lessor's Land Development Code and other applicable codes � • I - t I • 11 • - 11 ' 1 . All buildings and Improvements constructed upon the premises by Lessee shall remain the property of Lessee unless said property becomes the property of Lessor under the following conditions terms and provisions Removal of Bwldinas No building or permanent fixture may be removed from the premises without the written consent of the Lessor EZELL AVIATION, INC LEASE AGREEMENT - PAGE 7 Asaumotion All buildings and improvements of whatever nature remaining upon the leased premises at the end of the primary term, or any extension thereof, of this lease shall automatically became the property of Lessor absolutely in fee without any cost to Lessor Building 6dtt It to agreed that the life of the building to be constructed by Lessee on the property herein leased is a Thirty (30) years for existing FBO and commercial tract improvements b Forty-five (45) years for new Improvements to be constructed on FBO Tracts A, B and C Cancellation Should this lease be canceled for any reason before the end of the terms, it is especially understood and agreed that Lessor reserves the right to purchase all buildings structures and Improvements then existing upon the premises by tendering to Lessee (one thirtieth (1130th) of property on Commercial Tract D, one forty-fifth (1/45) for the new Improvements constructed on FBO Tracts A, B, and C, and one -thirtieth (1/30) of the existing improvements in FBO Tract A of the undepreciated value of such budding for each year remaining on the agreed life of such building The undepreciated value of all improvements is to be determined by having such Improvements appraised by three appraisers, one appointed by Lessor, one appointed by Lessee and one appointed by the two appraisers, provided however, the total value of such budding plus an increase in value not to exceed fifty percent (50%) of the original cost of such improvements III PAYMENTS A Payments - Fixed Based Operator Premises Fixed Base Operator Land Payment Land Rental payments shall be due and payable in twelve (12) equal monthly installments in advance, on or before the 15th of each month Annual rental payments will be based on the following formulae, calculated on the basis of minimum yearly rentals adjusted for inflation as per Section IV a 05/01/97 - 04/30/2019, $0 061 per square foot minimum yearly rental ($0 061 x 250 908 038 $15,306 40 land rental per year 112 = $1,275 45 land rental per month ) Land rental will be adjusted in two (2) flve-(5) year periods (the first such readjustment occurring May 1 2002, the second at May 1, 2007 and annually thereafter per Section IV of this lease until May 1, 2019 b 05/01/2019 - 04/30/2027. The current lease rate will be increased by a sum of $0 06 per square foot minimum yearly rental, and adjusted annually thereafter per Section IV A of this lease until April 30, 2027 Hangar and Tie -Down Rental Fees Ten (10%) percent of all hangar and tie -down rental fees collected by Lessee from customers of Lessee each month during the term of this lease An annual certified statement concerning collection of hangar and tle-down space rentals will be submitted within 60 days of the end of the calendar year or, in the event of termination, 60 days from the date of termination Aviation Fuel Fees Fuel payments shall be based on fuel purchased by Lessee and the Lessee's sublessee, assigns, heirs or successors It will include all fuel purchased from off -airport fuel vendors The EZELL AVIATION, INC LEASE AGREEMENT - PAGE 8 payment shall be based on the amount of four percent (4%) of net cost of fuel purchased Net cost of fuel purchased is the cost of fuel not including taxes on the purchase Lessee will provide invoices on a monthly basis along with the payment to the Lessor An annual certified copy of purchases will be submitted within 60 days of the end of the calendar year or, in the event of termination, within 60 days from the date of termination Land Rental Land Rental payments for Commercial Tract "D" shall be due and payable in twelve (12) equal monthly installments in advance, on or before the 15th of each month Annual rental payments will be based, and adjusted, on the following formulae a 05/01/97 - 04/30/2011 $0 08558 per square foot minimum yearly rental ($0 08558 x 105,131 154 = $8,997 12 land rental per year 112 = $749 78 land rental per month ) Land rental will be adjusted in two (2) five-(5) year periods (the first such readjustment occurring May 1, 2002, the second at May 1, 2007 ) Commercial Land will be readjusted per Section IV of this Lease b 05/01/2011 - 04/30/2027 $0 15 per square foot minimum yearly rental for land described as Commercial Tract "D" on Exhibit "C" Commercial Land will be readjusted annually per Section IV of this Lease IV PAYMENT ADJUSTMENTS AND TERMS A Adjustments: It is expressly understood and agreed that the yearly rental for the land herein leased shall be readjusted, up or down, on the basis of the proportion that the then current United States Cost of Living Index (CPI-U) for the Dallas/Fort Worth Texas Standard Metropolitan Statistical Area, as compiled by the U S Department of Labor, Bureau of Labor Statistics, bears to the January 1997 index which was 150 (1982-84 = 100) Each rental adjustment, it any, shall occur on the 1st day of May, with respect to the adjustments defined in Section III The adjustments shall be based on the annual cents per square feet based on the square footage for the Fixed Base Operator and the Commercial Tract The adjustments in the yearly rent shall be determined by multiplying the minimum rent as set forth in section in Section III by a fraction, the numerator of which is the index number for the last available month prior to the adjustment, and the denominator of which is the index number for January 1997 which was 150- (i982.84 =100) If the product of this multiplication is greater than the minimum yearly rent as set forth in Section III , Lessee shall pay this greater amount as the yearly rent until the time of the next rental, adjustment as called for in this section If the product of this multiplication is less than the minimum yearly rent of as set forth in Section III there shall be no adjustment in the annual rent at that time, and Lessee shall pay the minimum yearly rent as set forth in Section III The adjustment shall be limited so that the annual rental payment determined for any given year shall not exceed the annual rental calculated for the previous year by more than ten percent (10%) If the consumer price Index for all urban consumers (CPI.U) for the Dallas -Fort Worth geographical region, as compiled by the U S Department of labor, Bureau of Labor Statistics, is discontinued during the term of this lease, the remaining rental adjustments called for in this section shall be made using the formula set forth in Section III of this lease, but substituting the index numbers for the Consumer Price Index -Seasonally Adjusted U S City Average For All Items For All Urban Consumers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas -Fort Worth geographical region If both the EZELL AVIATION INC LEASE AGREEMENT - PAGE 9 D CPI-U for the Dallas -Fort Worth geographical region and the U S City Average are discontinued during the term of this lease, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the United States Department of Labor that are most nearly comparable to the CPI-U applicable to the Dallas -Fort Worth geographical region If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics called for in this section adjustments shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor B Payment Terms, All payments, including land rental, and fees, will be due on the 151h of the month This payment will be for the prior month fees and the current month land rentals If payments are not received before or on the 15th, a 5% penalty will be due as of the 16th If payments are not received by the first of the subsequent month, an additional penalty of 1% of the unpaid rental/fee amount will be due A 1 % charge will be added on the first of each subsequent month until unpaid rental/tee payment is made Failure to pay the rent, fee, or either monetary penalty amounts on delinquent rent or fees shall constitute an event of default of this Lease V. LEASE TERMS A. The Fixed Base Operator: The term of this Lease shall be a period of thirty (30) years, commencing on the 1 at day of May 1997, and ending at midnight on the 30th day of April, 2027 unless terminated under the provisions of this lease Lessee shall have the option to extend the term of this Lease for two additional ten (10) year periods subject to terms negotiated at that time between Lessor and Lessee If Lessee elects to exercise its option to renew this Lease Lessee shall notify the City Manager, in writing, at least one hundred eighty (180) days before the expiration of the initial thirty (30) year Lease At the and of the initial ten (10) year option, Lessee shall have the option to extend the term of this Lease for an additional ten (10) years subject to terms negotiated at that time between Lessor and Lessee If Lessee elects to exercise this second option, Lessee shall notify the City Manager, in writing, at least one hundred eighty (180) days before the expiration of the initial ten (10) years B Commercial Land, Tract D: The remaining term of this lease will be for a term of thirty (30) years, commencing on the 1 at day of May, 1997, and continuing through the 30th day of April, 2027 unless earlier terminated under the provisions of the Agreement Lessee shall have the option to extend the term of this Lease for an additional period of ten (10) years subject to terms negotiated at that time between Lessor and Lessee If Lessee elects to exercise its option to renew this Lease, Lessee shall notify the City Manager, in writing, at least one hundred eighty (180) days before the expiration of the initial thirty (30) year Lease At the and of the initial ten (16) year option, Lessee shall have the option to extend the term of this Lease for an additional ten (10) years subject to terms negotiated at that time between Lessor and Lessee If Lessee elects to exercise this second option, Lessee shall notify the City Manager, in writing, at least one hundred eighty (180) days before the expiration of the initial ten (10)years VI ASSIGNMENT OF LEASE Lessee expressly covenants that it will not assign this lease, nor sublet the whole or any part of the said premises for any purpose, except for rental of hangar space or tie -down space, without the written consent of Lessor, except that any person, corporation or institution that lends money to Lessee for the construction of any hangar, structure, building or Improvement upon the leased premises and retains a security interest in said hangar, structure, building or improvement shall, upon default of Lessee's obligation to said mortgagee have the right to enter upon said leased premises and operate or manage said hangar structure, building or EZELL AVIATION, INC LEASE AGREEMENT - PAGE 10 improvement according to the terms of this agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid In full, but in no event longer than the term of this lease Lessor agrees that it,will not unreasonably withhold Its approval of the sale or sublease of the facilities for airport related purposes VII SUBROGATION OF MORTGAGE Any person, corporation or institution that lends money to Lessee for construction, purchase and or refinance of any hangar, structure, building or improvement and retains a security interest in said hangar structure, building or Improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon said leased premises and operate or manage said hangar, structure, building or improvement according to the terms of this Agreement for a period not to exceed the term of the mortgage with Lessee or until the loan Is paid in full, or such mortgagee shall have the right to remove any buildings or structures from the premises, however, if such mortgagee is planning to remove any buildings, then they will notify Lessor in writing of such intent to remove, and Lessor will have sixty (80) days from receipt of such notice to exercise an option to purchase such buildings or structures under the provisions of Article II hereof It is expressly understood and agreed that the right of the mortgagee referred to herein is limited and restricted to those Improvements constructed with funds borrowed from mortgage, those Improvements purchased with the borrowed funds, and those improvements pledged to secure the refinancing of the improvements Vill RIGHT OF EASEMENT Lessor shall have the right to establish easements, at no cost to Lessor, upon the leased ground space for the purpose of providing utility services to, from or across the airport property However, any such easements shall not Interfere with Lessee's use of the "leased ground space" and Lessor shall restore the property to its original condition upon the installation of any utility services on in, over or under any such easement IX. CANCELLATION OF LEASE 1 • .7111 TTf� In the event that Lessee shall file a voluntary petition in Bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any Federal reorganrcabon act, or Lessee shall be divested of its estate herein by other opefBtion of law, or Lessee shall fad to perform, keep and observe any of the terms covenants, or conditions herein contained, or on its part to be performed, the Lessor may give Lessee written notice tor -correct such condition or cure such default and, if any condition or default shall continue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may, terminate this lease by a thirty (30) days written notice to Lessee In the event of default, Lessor has the right to purchase any or all structures on the leased premises under the provisions of Article II hereof _ . , I7_ 1!'T'LTT. Lessee may cancel this Agreement, in whole or part, and terminate all or any of its obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of any one of the following events (1) issuance by any court of competent jurisdiction of a permanent injunction in any way preventing or restraining the use of said airport or any part thereof for airport purposes, (2) any EZELL AVIATION, INC LEASE AGREEMENT - PAGE 11 action of the Civil Aeronautics Board and/or Federal Aviation Agency refusing to permit Lessee to operate into, from or through said airport such aircraft as Lessee may reasonably desire to operate thereon, the breach by Lessor of any of the covenants or agreements contained herein and the failure of Lessor to remedy such breach for a period of thirty (30) days after receipt of a written notice of the existence of such breach, (3) the Inability of Lessee to use said premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, rule or regulatlon of any appropriate governmental authority having Jurisdiction over the operations of Lessor or due to war, earthquake or other casualty, or (4) the assumption or recapture by the United States Government or any authorized agency thereof of the maintenance and operation of said airport and facilities or any substantial part or parts thereof X SPECIAL CONDITIONS It is especially understood and agreed by and between Lessor and Lessee that this lease agreement is subject to the following special terms and conditions A Nothing contained herein shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 1349 of Title 49, United States Code Annotated B. Lessor reserves the right to further develop or improve any public parking area, landing area, or other portion of the airport property without notice to Lessee C During time of war or national emergency, declared by the Congress or the President of the United States, Lessor reserves the right to alter, amend, or suspend this agreement upon demand of military, or naval authorities of the United States D Lessee, its personal representative, successors in interest, and assigns as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities that in the construction of any improvements on, over, or under such land and the furnishing of services thereof, no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, that the Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation Subtitle A Office of the Secretary, Part 21, Nondiscrimination in Federally -assisted programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended That in the event of breach of any of the above nondiscrimination covenants, Lessor shall have the right to terminate the lease and to re-enter and repossess said land and the facilities thereon and hold the same as if said lease had never been made or issued E. The Lessee assures that it will undertake an affirmative action program as required by 14 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 Lessor that they EZELL AVIATION, INC LEASE AGREEMENT - PAGE 12 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. F. If Lessor -files an action to enforce any covenant, term or condition of this lease, or for the recovery of the possession of the leased area, or for breach of any covenant, term or condition of this lease, then Lessee agrees to pay to Lessor reasonable attorneys fees for the services of Lessor's attorney in such action as part of the costs Incurred, such attorneys fees to set by the Court O Lessor's waiver or breach of one covenant or condition of this lease shall not be deemed a wanner of subsequent breaches of other provisions and Lessor's acceptance of rental payments shall not be deemed a waiver of any of the provisions of this lease H. Lessee shall be provided access to the property leased hereunder either through access "A' or access " B", at Lessor's discretion, as shown on Exhibits 'A" 'B," and "C " attached hereto and Incorporated herein by reference Lessor reserves the right to change Lessee's means of ingress and egress from one designated access to another at Lessor's option I Runways and Taxiways: That because of the present sixty thousand (60 000) pound continuous use weight bearing capacity of the runway and taxiways of the Airport Lessee herein agrees to limit all aeronautical activity including landing, takeoff and taxiing, to aircraft having an actual weight Including the weight of its fuel, of sixty thousand (60,000) pounds or less, until such time that the runway and designated taxiways on the Airport have been improved to handle aircraft of such excessive weights It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that the Lessee agrees to abide by any such changes or revisions as such studies may dictate "Aeronautical Activity" referred to in this clause shall include that activity of the Lessee or its agents or subcontractors and its customers and invitees but shall not Include those activities which it neither controls nor solicits, such as an unsolicited or unscheduled or emergency landing Negligent disregard of the provisions of this section shall be sufficient to cause the Immediate termination of this entire Agreement and subject the Lessee to be liable for any damages to the Airport that might result J Principles of Operations: The right to conduct aeronautical activities for furnishing services to the public is granted the Lessee subject to Lessee agreeing, To furnish said services on a fair, equal and not unjustly discriminatory basis to ail users thereof, and, 2 To 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, orether similar types of price reductions to volume purchasers K. Ri9ht of jpolviduals to Maintain Aircraft It is clearly understood by the Lessee that no right or privilege has been granted which would operate to prevent any person, fine or corporation operating aircraft on the airport from performing any services on its own aircraft with its own regular employees (Including, but not limited to, maintenance and repair) that it may choose to perform L. Public Areas. Lessor reserves the right to further develop or improve the landing area of the airport as it sees fit, regardless of the desires or views of the Lessee, and without interference or hindrance EZELL AVIATION, INC LEASE AGREEMENT • PAGE 13 2 -Lessor shall be obligated 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 Lessee in this regard 3 During Ume of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this Instrument insofar as they are inconsistent with the provisions of the lease to the Govemment, shall be suspended 4 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 Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the airport which in the opinion of the Lessor, would limit the usefulness or safety of the airport or constitute a hazard to aircraft or to aircraft navigation 5 This Lease shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States or agency thereof, relative to the operation or maintenance of the Airport XI INSURANCE A RReyulred Insurance* Lessee, at its expense, shall maintain continuously in effect at all times during the term of this agreement the following insurance coverage 1 Comprehensive general liability covenng the leased premises, the Lessee or its company its personnel, and its operations on the Airport 2 Aircraft liability to cover all flight operations of Lessee 3 Fire and extended coverage for replacement value for all facilities used by the Lessee either as a part of this agreement or erected by the Lessee subsequent to this agreement 4 Liability insurance limits shall be in the following minimum amounts Bodily Injury and Property Damage One Million Dollars ($1,000,000) combined single limits on a per occurrence basis 5 All policies' shall name the City of Denton as an additional named insured and provide for a minimum of thirty (30) days written notice to the City prior to the effective date of any cancellatlon or lapse of such policy All policies must be approved by the Lessor The Lessor shall be provided with a copy of ail such policies within thirty (30) days of the signing of this Agreement During the onginal or extended term of this Lease, Lessor herein reserves the right to adjust or Increase the liability insurance amounts required of the Lessee, and to require any additional rider provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by Lessor, provided however, that any requirements shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal EZELL AVIATION, INC LEASE AGREEMENT - PAGE 14 Airport, At size and in scope of aviation activities, located in the southwestern region of the United States Lessee herein agrees to comply with all increased or adjusted Insurance requirements that may be required by the Lessor throughout the original or extended term of this Lease, including types of insurance and mgnetory amounts or limits of insurance, and to comply with said insurance requirements within sixty (60) days following the receipt of a notice in wnting from Lessor stating the increased or adjusted Insurance requirements Lessee shall have the right to maintain in force both types of insurance and amounts of Insurance which exceed Lessor's minimum Insurance requirements In the event that State law should be amended to require additional types of insurance and/or insurance amounts which exceed those of like or similar public use airports in the southwestern region of the United States of America, then in such event Lessor shall have the right to require that Lessee maintain in force types of Insurance and/or amount of insurance as specified by State law Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease B INDEMNITY: During all times that this lease Is In effect, the parties agree that Lessee is and shall be deemed to be an Independent contractor and operator and not an agent or employee of City with respect to Its acts or omissions hereunder For all the purposes hereunder, Lessee is and shall be deemed an Independent contractor and it Is mutually agreed that nothing contained herein shall be deemed or construed to constitute a partnership or joint venture between the parties hereto. Lessee agrees to Indemnify and hold harmless the City and Its agents, employees, and representatives from and against all liability for any and all claims, suits, demands, and/or actions arising from or based upon Intentional or negligent acts or omissions on the part of Lessee, Its agents, representatives, employees, members, patrons, visitors, contractors and subcontractors (If any), and/or sublessee, which may arise out of or result from Lessee's occupancy or use of the premises and/or activities conducted in connection with or Incidental to this Lease Agreement. Lessee shall also Indemnify City against any and all mechanic's and materialmen's Ilene or any other types of Ilene imposed upon the premises demised hereunder arising as a result of Lessee's conduct or activity This Indemnity Provision extends to any and all such claims, suits, demands, and/or actions regardless of the type of relief sought thereby, and whether such relief is In the form of damages, judgments, and costs and reasonable attorney's fees and expenses, or any other legal or equitable form of remedy. This Indemnity Provision shall apply regardless of the nature of the Injury or harm alleged, whether for Injury or death to persons or damage to property, and whether such chime by alleged at common law, or statutory or constitutional claims, or otherwise. This Indemnity Provision shall apply whether the basis for the claim, suit, demand, and/or action may be attributable In whole or In part to the Lessee, or to any of Its agents, representatives; employees, members, patrons, visitors, contractors (If any), and/or sublessee or to anyone directly or Indirectly employed by any of them Further, City assumes no responsibility or liability for harm, injury, or any damaging events which are directly or Indirectly attributable to premise defects or conditions which may now exist or which may hereafter arise upon the premises, any and all such defects being expressly waived by Lessee. Lessee understands and agrees that this Indemnity Provision shall apply to any and all claims, suits, demands, and/or actions based upon or arising from any such claim asserted by or on behalf of Lessee or any of Its members, patrons, visitors, agents, employees, contractors and subcontractors (if any), and/or sublessee. EZELL AVIATION, INC LEASE AGREEMENT - PAGE 15 It Is expressly understood and agreed that the City shall not be liable or responsible for the negligence of Lessee, its agents, servants, employees and customers, Lessee further agrees that It shall at all times exercise reasonable precautions for the safety of and shall be solely responsible for the safety of Its agents, representatives, employees, members, patrons, visitors, contractors and subcontractors (B any), and/or sub -loess", and other persons, as well as for the protection of supplies and equipment and the property of Lessee or other persons. Lessee further agrees to comply with all applicable provisions of Federal, State and municipal safety laws, regulations, and ordinances. PROVIDED FURTHER, that the Lessee and the City each agree to give the other party prompt and timely notice of any such claim made or suit Instituted which In any way, directly or indirectly, contingently or otherwise, affects or might affect the Losses or the City Lessee further agrees that this indemnity Provision shall be considered as an additional remedy to City and not an exclusive remedy. XII. STANDARDS Less" shall most or exceed the following standards A. Address: Lessee shall file with the City Manager's airport design" and keep current its mailing address, telephone number(s) and contacts where he can be reached in an emergency B. LW: Lessee shall file with the City Manager's airport designee and keep current a list of its tenants and sublessee C. Conduct* Lessees shall contractually require its employees and sublessee (and sublessee s invitees) to abide by the terms of this agreement Lessee shall promptly enforce its contractual rights in the event of a default of such covenants D Utilities. Taxes and Fees. Lessee shall meet all expenses and payments in connection with the use of the Premises and the rights and privileges herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed E. LUM: Lessee shall comply with all current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, Including rules regulations and ordinances promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place all necessary and/or required licenses or permits F Malntonanle of Property* Lessee shall be responsible for the maintenance repair and upkeep of all property, buildings, structures and improvements including the mowing or elimination of grass and other vegetation on the Premises, and shall keep said Premises neat, clean and in respectable condition, free from any objectionable matter or thing G Unauthorized Use of Premises• Lessee may not use any of the leased land or premises for the operation of a motel, hotel, restaurant, private club or bar, apartment house or for industrial commercial or retail purposes, except as authorized herein H Dwellings: It is expressly understood and agreed that no permanent dwelling or domicile may be built, moved to or established on or within the leased premises nor may the Lessee, his tenants invitees, or guests be permitted to reside or remain as a resident on or within the leased premises or other airport premises EZELL AVIATION, INC LEASE AGREEMENT • PAGE 16 1. Chemicals: Lessee agrees to property store, collect and dispose of all chemicals and chemical residues, to properly store, confine, collect and dispose of all paint including paint spray in the atmosphere, and paint products, and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints J. AIM: During the term of this Agreement Lessee shall have the right, at its own expense to place in or on the lease Premises signs identifying Lessee Said signs shall be of a size, shape and design and at a location or locations, approved by the Lessor and in conformance with any overall directional graphics or sign program established by Lessor on the Airport Lessor's approval shall not be withheld unreasonably Said signs shall be maintained In good repair throughout the term of this agreement Notwithstanding any other provision of this agreement, said signs shall remain the property of Lessee Lessee shall remove, at Its expense, all lettering, signs and placards so erected on the premises at the expiration of the term of this Agreement or extensions thereof Xlil. COVENANTS BY LESSOR Lessor hereby agrees as follows A. To provide and pay for the installation and monthly electricity required for security lighting at the airport which Lessor requires to be installed under any safety or fire regulations, or as may be required by Lessor, B To maintain the airport in an acceptable condition for general aviation activities on said airport, C Lessor covenants and agrees not to enter into any subsequent lease, contract or agreement with any other person, firm or corporation for the operation of a fixed base general aviation operation or business similar to Lessee's business on the airport containing more favorable terms than this agreement or not accorded to Lessee hereunder unless the same rights, privileges and concessions are concurrently and automatically made available to Lessee D. That on payment of the rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the leased premises and all the rights and privileges herein granted E. Lessor warrants and represents that in the establishment, construction and operation of the said Denton Municipal Airport, that Lessor has heretofore and at this time is complying with all existing rules regulations, and criteria distributed by the Federal Aviation Agency, Civil Aeronautics Board or any other governmental authority relating to and Including, but not limited to, noise abatement air rights and easements over adjooining and contiguous areas, over -flight in landing or take -off to the end that Lessee will not be legally liable for any action of trespass or similar cause of action by virtue of any aerial operations over adjoining property in the course of normal take -off and landing procedures from said Denton Municipal Airport, Lessor further warrants and represents that at all times during the term hereof, or any renewal or extension of the same, that it will continue to comply with the foregoing XIV COVENANTS BY LESSEE Lessee hereby agrees as follows A To indemnify and hold harmless the Lessor from and against all loss and damages including death, personal injury, loss of property or other damages, ansing or resulting from the operation of Lessee's business in and upon the leased premises EZELL AVIATION, INC LEASE AGREEMENT - PAGE 17 S. Not to make or suffer any waste to be made of the premises and will keep said premises neat, clean and respectable condition, free from objectionable matter or thing C. To observe and comply with all current and future laws and ordinances and all regulations of federal, state, county or city airport authorities or agencies having jurisdiction over the conduct of operations at the airport D. To keep adequate records of income and expenses and make such records reasonably available, upon request, to the Director of Finance of the City of Denton, Texas E Lessee will quit possession of all premises leased herein at the end of the primary term of this lease or any renewal or extension thereof, and deliver up the premises to Lessor in as good condition as existed when possession was taken by Lessee, reasonable wear and tear excepted F. Lessee shall, at Its expense, procure all licenses, certificates, permits, or other authorization from any and all governmental authorities, if any, having jurisdiction over the operations of Lessee XV MISCELLANEOUS PROVISIONS A. Utli ties Lessee shall provide all utilities for the premises leased to Lessee at its own cost and expense Utilities shall also Include any security lighting required by Lessee for the convenience of customers of Lessee Lessee shall have the right to connect to the airport water line now existing and to connect to any future utility lines at Lessee's expense B. Entire Agreement This Agreement constitutes the entire understanding, between the parties and as of Its effective date supersedes all prior or independent Agreements between the parties covering the subject matter hereof Any change or modification hereof shall be in writing signed by both parties C. Binding Effect All the covenants, stipulations and agreements herein shall extend to bind and inure to the benefit of the legal representatives, successors and assigns of the respective parties hereto D. Severability. If a provision hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Agreement shall not be void, but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties E. jyollic4. A J notice given by one party to the other in connection with this Agreement shall be in writing and shall be sent by registered mail, return receipt requested, with postage and registration fees prepaid If to Lessor, addressed to City Manager City of Denton Denton, Texas 76201 EZELL AVIATION, INC LEASE AGREEMENT - PAGE 18 If to Lessee, addressed to Mr Nelson Ezell Post Office Box 1793 Breckenridge, Texas 76424 Notices shall be deemed to have been received on the date of receipt as shown on the return receipt F Pleadings The headings used in this Agreement ere intended for convenience of reference only and do not define or limit the scope G t3gvernina Law This agreement Is to be construed in accordance with the laws of the Stale of Texas IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written ATTEST JENNIFER WALTERS CITY SECRETARY ` I l APPROVED AS TO LEGAL FORM HERBERT L PROUTY CITY ATTORNEY BY l CITY OF DENTON LESSOR BY�- TED BENAVIDES CITY MANAGER EZELL AVIATION, INCORPORATED BY 4 t NELSON EL/LL TITLEy- EZELL AVIATION INC LEASE AGREEMENT -PAGE 19 THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the _ day of 1997 by Nelson Ezell My Commission Expires NOTARY PUBLIC, STATE OF TEXAS EZELL AVIATION, INC LEASE AGREEMENT - PAGE 20 ACQ ss "B" ASP100 s�t M 71• Ar Or ! o� iM TRACT A law% r.xHIAIT "A" 421 is 0 IT• 4z fssas r Ora FBO TRACT "A" = shaded area 0' /A Access "A" TrTr ti� J� 0 JO /or op 1u� i POP 0 290 EXHIBIT "B" PAS► G ASPNa'T it OVOL 1 2 241 Cl D 0'91 \ 51 1►M NO. R9 052, B 04�10 �' ' 4469 W -4 35'0 � v, T � 1 6934 p&REs TRAM 91 N FOX'51 vorTED ION N0. R91-052. 8�20 h� z �► c RE50LU��0 53 y p ,t 11 �� to y 139.9 1 W y5 Q. S 7T38'2cf owa �D of 1 g4 52' ,'1' �V ' 0 • E 11 w �S�O s 88 09'21"W 902 71' /A N 7T36' FBO Tracts "B" and "C" EXHIBIT "C" Commercial Tract p