2010-194llcodadWepartntentsllegallour documentslordinances1101airport bam lease ordinance.doc
ORDINANCE NO. 2010-194
AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND BAM DENTON
MANAGEMENT VENTURES, LLC AT THE DENTON MUNICIPAL AIRPORT; AND
PROVIDING AN EFECTIVE DATE.
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute an airport
lease agreement for commercial operator between the City of Denton and BAM Denton
Management Ventures, LLC at the Denton Municipal Airport, in substantially the form of the
Airport Lease Agreement which is attached to and made a part of this ordinance for all purposes.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval. -4 /2 j 1'4~
PASSED AND APPROVED this the day of , 2010.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
BAM Ramp Lease 2010.DOC
AIRPORT LEASE AGREEMENT
COMMERCIAL OPERATOR
This Lease Agreement is made and executed to be effective as of the 1st day of
September , 2010 (the "Effective Date") at Denton, Texas, by and between the City
of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", and BAM
Denton Management Ventures, a Texas limited liability company, hereinafter referred to as
"Lessee".
WITNESSETH:
WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport
(the "Airport') in the City of Denton, County of Denton, State of Texas; and
WHEREAS, Lessee desires to lease certain premises at the Airport for the purpose of
managing and operating aircraft tie-down and other ramp services; and
WHEREAS, pursuant to this Agreement, Lessee is leasing that certain parcel or tract
of land depicted as Parcel B on Attachment A attached hereto and made a part hereof by
reference;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. CONDITIONS OF LEASE AGREEMENT
NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER
CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS
SECTION SHALL BE BINDING.
A. PRINCIPLES OF OPERATIONS. The right to conduct aeronautical and related
activities for furnishing services to the public is granted to Lessee subject to Lessee
agreeing:
1. To furnish said services on a fair, equal and not unjustly discriminatory basis
to all users thereof; and
2. To charge fair, reasonable and not unjustly discriminatory prices for each unit
or service; provided, that Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price reductions
to volume purchasers.
B. NON-DISCRIMINATION: Lessee, for itself, its personal representatives,
successors, and assigns, as a part of the consideration hereof, does hereby
covenant and agree as a covenant running with the land that:
1. No person on the grounds of race, religion, color, sex, 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;
2. In the construction of any improvements on, over, or under such land and the
furnishing of services thereon, no person on the grounds of race, religion,
color, sex, or national origin shall be excluded from participation in, denied
the benefits of, or otherwise be subjected to discrimination;
3. 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, Nondiscrimi-
nation in Federally assisted programs of the Department of Transportation -
Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may
be amended.
C. RIGHT OF INDIVIDUALS TO MAINTAIN AIRCRAFT. It is clearly
understood by 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.
D. NON-EXCLUSIVE RIGHT. It is understood and agreed that nothing herein
contained shall be construed to grant or authorize the granting of an exclusive right within
the meaning of Title 49 U.S.C. Appendix §1349.
E. 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 Lessee, and without
interference or hindrance.
2. Lessor shall be obligated to maintain and keep in good 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 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 building or other
structure on or adjacent to the Airport which, in the opinion of Lessor, would
BAM Ramp Lease - 2010- Page 2
limit the usefulness or safety of the Airport or constitute a hazard to aircraft or
to aircraft navigation. The hangar/office/shop complex as currently proposed
as provided in Section II.D. does not violate this provision.
5. This Lease Agreement 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.
II. LEASED PREMISES
Lessor, for and in consideration of the covenants and agreements herein contained, to
be kept by Lessee, and subject to the conditions contained herein, does hereby demise and
lease unto Lessee, and Lessee does hereby lease from Lessor, for the lease term described in
Article III, the following described land situated in the City of Denton, Denton County,
Texas:
A. Land. A tract of land, being approximately 50,000 square feet, drawn and outlined
on Attachment "A", and legally described in Attachment "B" as Parcel B (the "Leased
Premises'
Together with the right of ingress and egress to the Leased Premises; and the right in
common with others so authorized of passage upon the Airport property generally, subject
to reasonable regulations by the City of Denton and such rights shall extend to Lessee's
employees, passengers, patrons and invitees. For purposes of this Agreement, the term
"Leased Premises" shall include leasehold improvements constructed by the Lessee, but not
including certain easements or property owned and/or controlled by the Lessor.
A legal description of Parcel B is not currently attached to this Lease Agreement.
Lessee shall deliver to Lessor no later then 30 days after the Effective Date of this
Agreement a legal description of Parcel B accurately describing same that is acceptable to
Lessor. If Lessee fails to do so, Lessor at its option may terminate this Agreement as to
Parcel B, in which case it will have no further force and effect. The approved legal
description will be attached to this Agreement as Attachment "C".
B. RVIPROVEMENTS PROVIDED BY LESSOR: NONE: There will be no
improvements provided by Lessor, except as set forth in Article II.E. "Access to Utilities"
below.
The term "Lessor improvements" shall mean those things on or adjacent to the Leased
Premises belonging to, constructed by, or to be constructed by the Lessor. Unless otherwise
noted herein, all Lessor improvements are and will remain the property of Lessor. All
Lessor improvements must be described in detail above, or above referenced and attached to
this Agreement in an exhibit approved by Lessor.
BAM Ramp Lease -2010- Page 3
C.. IMPROVEMENTS PROVIDED BY LESSEE. NONE: Lessee accepts property
in the current condition and there are no additional improvements required to be
constructed.
D. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the
Leased Premises, easements for public access on roads and taxiways.
E. ACCESS TO UTILITIES. Lessor represents that there are water, sewer and 3-
phase electricity lines within close proximity to the Leased Premises available to "tap-in" by
Lessee, and that the same are sufficient for usual and customary service on the Leased
Premises.
M. TERM
The term of this Lease Agreement shall be for a period of ten (10) years (the
"Lease Term") commencing on the 1St day of September, 2010 and continuing through
the 31St day of August of 2020, unless earlier terminated or reduced under the provisions
of the Lease Agreement. The lease may be extended for two additional ten (10) year
periods upon the mutual consent of the Lessee and Lessor. If the Lessee desires to extend
the lease for an additional term, the lessee must provide written notice to Lessor of its
desire to extend for an additional 10 year option period no later than 180 days prior to the
expiration of each successive option term. The rental and terms to be negotiated for the
option terms shall be reasonable and consistent with the then value, rentals and terms of
similar property on the Airport.
IV. PAYMENTS RENTALS AND FEES
Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement,
the following payments, rentals and fees:
A. LAND RENTAL. Land rental shall be due and payable to Lessor in twelve (12)
equal monthly installments in the sums set forth below, on or before the 1 st day of each and
every month during the term of this Lease Agreement. Lessee has the option to pay annual
rentals and fees in whole on or before the 1st day of October, at the beginning of the City's
fiscal year, each and every year of this Lease Agreement. Annual rent shall be a sum equal
to $0.17 per square foot of the land area contained in the Leased Premises (the "Original
Rent"). Monthly rental shall be 1/12th of the annual rent. However, beginning Au ug st I ,
2012 the Original Rent will be adjusted in accordance with Section IV.C.
Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease
rate per square foot, as adjusted by the CPI-U referenced in Section N.C., times the number
of square. feet comprising all easements established in accordance with Section II.E..
BAM Ramp Lease - 2010- Page 4
B. LESSOR IMPROVEMENTS RENTALS. NONE: There are no Lessor
improvements on the Leased Premises.
C. PAYMENT, PENALTY, ADJUSTMENTS. All payments due Lessor from Lessee
under this Lease Agreement shall be made to Lessor at the offices of the Finance
Department of the City of Denton, Customer Service Division, 601 West Hickory, Denton,
Texas, unless otherwise designated in writing by the Lessor. If payments are not received
on or before the 15th day of the month, a five percent (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 one percent (1%) of the unpaid rental/fee amount will be due. A one percent
(1%) charge will be added on the first of each subsequent month until the unpaid rental/fee
payment is made. The Original Rent for the Leased Premises shall be readjusted at the end
of each two year period during the Lease Term on the basis of the proportion that the then
current United States Consumer Price Index for all urban consumers (CPI-U) for the Dallas-
Fort Worth Bureau of Labor Statistics bears to the previous odd month 2004 index
(September), which was 179.7 (1982-84 = 100). Each rental adjustment, if any, shall
occur on the 1st day of December, beginning 2012, and every second year thereafter on
such date.
The adjustments in the yearly rent shall be determined by multiplying the Original
Rent by a fraction, the numerator of which is the index number for the last month prior to
the adjustment, and the denominator of which is the index number applicable at the
execution of this Lease Agreement. If the product of this multiplication is greater than
the Original Rent, 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 Original Rent there shall be no adjustment in the annual rent at that time,
and Lessee shall pay the previous year's annual rent until the time of the next rental
adjustment as called for in this section. In no event shall any rental adjustment called for
in this section result in an annual rent less than the previous year's annual rent. The
adjustment shall be limited so that the annual rental payment determined for any given
two-year period shall not exceed the annual rental payment calculated for the previous
CPI adjustment by more than twenty percent (20%) percent.
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 Lease Term, the remaining rental adjustments called
for in this section shall be made using the formula set forth above, but by 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 CPI-U for the Dallas-
Fort Worth geographical region and the U.S. City Average are discontinued during the
Lease Term, 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 concerning the purchasing power of the consumer dollar
BAM Ramp Lease - 2010- Page 5
during the Lease Term, the remaining rental adjustments called for in this section shall be
made using the most nearly comparable statistics published by a recognized financial
authority selected by Lessor.
D. OTHER PAYMENTS TO LESSOR.
1. Hanger and Tie-Down Fees Lessee shall pay Lessor a percentage of all aircraft
parking and tie-down rentals and fees collected by Lessee from persons parking aircraft on
the Leased Premises. Such fees shall be equal to:
a. 11 % of all hangar and tie-down fees through November 30, 2019.
b. 12% of all hangar and tie-down fees through the end of the Lease Tenn.
All such fees shall be paid monthly to Lessor on or before the 15t" day of each month
during the Lease Term. The fees shall be accompanied by records showing the date and
location on the Airport where the aircraft was hangared or parked and the tail number, or
side number, of the aircraft.
E. RECORDS. Lessee shall keep and maintain accurate records of parking and
tie-down fees collected, for a period of three (3) years from the date the record is made.
Such records shall be kept according to generally accepted accounting principles. Lessor
or its duly authorized representatives shall have the right at all reasonable times during
business hours to inspect the books, records and receipts of Lessee, for the purpose of
verification.
F. ANNUAL STATEMENT Within sixty (60) days after the end of each
calendar year, Lessee shall furnish to Lessor a certified statement of parking and tie-down
fees collected during the preceding calendar year. Lessor reserves the right to audit said
statement and Lessee's books and records, including examination of the general ledger
and all other supporting material, at any reasonable time during business hours, for the
purpose of verification.
If the audit establishes the Lessee has understated or overstated parking fees, or
tie-down rentals collected by five percent (5%) or more, the entire expense of said audit
shall be borne by Lessee. Any additional payment due from Lessee shall forthwith be
paid to Lessor, with interest thereon at one percent (1%) per month from the date such
amount originally became payable to Lessor. Any overpayment by Lessee shall be
credited against further payments due to Lessor. Either party may refer the results of the
audit for resolution in accordance with Section IV.G. (Disputes) below.
G. DISPUTES. If any dispute arises as to the amount owed from tie-down or
parking fees collected, the party disputing the amount and/or fee shall notify the other, in
writing, within thirty (30) days from the date the dispute arises. Upon notification of the
BAM Ramp Lease - 2010- Page 6
dispute, the disputed amount shall be submitted to a panel of three (3) certified public
accountants, one to be selected by Lessor, one to be selected by Lessee and the third to be
chosen by the first two accountants selected. This panel shall, by majority vote,
determine the rights of the parties hereunder in conformity with generally accepted
accounting principles. The fees due the accountants for such service shall be paid by the
unsuccessful party, or in the event the determination is partially in favor of each party, the
fee shall be borne equally by the parties.
V. RIGHTS AND OBLIGATIONS OF LESSEE
A.USE OF LEASED PREMISES. Lessee is granted the non-exclusive
privilege to engage in or provide the following on the Leased Premises:
1. The right and privilege to engage in commercial aviation activities, hereby
defined as those activities which involve the sale of aviation services for profit
to the general public and shall include the maintenance and servicing of aircraft,
which right shall include only aviation services performed on flight certified and
operable aircraft.
2. The storing of aircraft on tie down areas operated by Lessee.
3. The sale of said fuels, lubricants, and propellants shall include the right to use
vehicles necessary for the servicing of aircraft.
No person, business or corporation other than Lessee may operate a commercial,
retail or industrial business upon the Leased Premises or upon the Airport, without prior
written consent from Lessor authorizing such commercial, retail or industrial activity.
Lessee shall file with the Airport Manager and keep current its mailing address,
telephone number(s) and contacts where he can be reached in an emergency.
Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct
any services not specifically listed in this Lease Agreement. The use of the Leased Premises
by Lessee, its tenants, employees, invitees or guests shall be limited to only those private,
commercial, retail or industrial activities having to do with or related to airports and avia-
tion. Except as specifically authorized in this Lease Agreement, no person, business or
corporation may operate a commercial, retail or industrial business upon the Leased
Premises or upon the Airport without a lease or license from Lessor authorizing such
commercial, retail or industrial activity. The Lessor shall not unreasonably withhold
authorization to conduct aeronautical or related services.
B. STANDARDS. Lessee shall meet or exceed the following standards:
BAM Ramp Lease -2010- Page 7
Address. Lessee shall file with the Airport Manager and keep current its
mailing addresses, telephone numbers and contacts where it can be reached in
an emergency.
2. Conduct. Lessee shall contractually require its employees and sublessees (and
sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee
shall promptly enforce its contractual rights in the event of a default of such
covenants.
3. Utilities, Taxes and Fees Lessee shall meet all expenses and payments in
connection with the use of the Leased 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.
4. 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.
5.Maintenance of Property. Lessee shall be responsible for the maintenance,
repair and upkeep of the Leased Premises, and shall keep the Leased Premises
neat, clean and in respectable condition, free from any objectional matter or
thing, including trash or debris. Lessee agrees not to utilize or permit others to
utilize areas on the Leased Premises except for the purpose of aircraft parking
and tie-down service, except as provided in Article V.B.6 of this Lease
Agreement.
6. Annual Air Show. During the Lease Term of this Lease Agreement and
during each extension, Lessor shall provide access to and use of leased
premises for the conduct of a one-day air show to be scheduled in coordination
with the Airport manager.
7. Unauthorized use of Leased Premises. Lessee may not use any of the Leased
Premises for any use not authorized herein unless Lessor gives Lessee prior
written approval of such additional use. Without limiting the foregoing the
Leased Premises shall not be used for the operation of a motel, hotel,
restaurant, private club or bar, apartment house, storage of recreational
vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail,
or other purposes, except as authorized herein.
S. Dwellings. It is expressly understood and agreed that no dwelling or domicile
may be built, moved to or established on or within the Leased Premises nor
may lessee, its tenants, employees, invitees, or guests be permitted to reside or
remain as a resident on or within the Leased Premises.
BAM Ramp Lease - 2010- Page 8
9. Quit Possession. Lessee shall quit possession of the Leased Premises at the end
of the Lease Term or any renewal or extension thereof, or upon cancellation or
termination of the Lease Agreement, and deliver up the Lease Premises to
Lessor in as good condition as existed when possession was taken by Lessee,
reasonable wear and tear excepted.
10.Indemni . Lessee must indemnify, hold harmless and defend the Lessor, its
officers, agents and employees, from and against liability for any and all
claims, liens, suits, demands and/or actions for damages, injuries to persons
(including death), property damage, (including loss of use), and expenses,
including court costs, attorneys' fees and other reasonable costs, occasioned
by or incidental to the Lessee's occupancy or use of the Leased Premises or
the Airport and/or activities conducted in connection with or incidental to this
Lease Agreement, including all such causes of action based on common,
constitutional or statutory law, or based in whole or in part upon the negligent
or intentional acts or omissions of Lessee, its officers, agents employees,
invitees or other persons. Lessee must at all times exercise reasonable
precautions on behalf of, and be solely responsible for, the safety of its
officers, employees, agents, customers, visitors, invitees, licensees and other
persons, as well as their property, while in, on, or involved in any way with
the use of the Leased Premises. The Lessor is not liable or responsible for
the negligence or intentional acts or omissions of the Lessee, its officers,
agents, employees, agents, customers, visitors and other persons. The Lessor
shall assume no responsibility or liability for harm, injury, or any damaging
events which are directly or indirectly attributable to premise defects, whether
real or alleged, which may now exist or which may hereafter arise upon the
Leased Premises, responsibility for all such defects being expressly assumed
by the Lessee. The Lessee agrees that this indemnity provision applies to all
claims, suits, demands, and actions arising from all premise defects or
conditions.
THE LESSOR AND THE LESSEE EXPRESSLY INTEND THIS
INDEMNITYPROVISION TO REQUIRE LESSEE TO INDEMNIFY
AND PROTECT THE LESSOR FROM THE CONSEQUENCES OF THE
LESSOR'S OWN NEGLIGENCE WHILE LESSOR IS PARTICIPATING
IN THIS LEASE AGREEMENT WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH, OR DAMAGE.
NOTWITHSTANDING THE TERMS OF THE PRECEDING
SENTENCES, THIS INDEMNITY PROVISION DOES NOT APPLY TO
ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND
LIABILITY WHERE THE INJURY, DEATH, OR DAMAGE RESULTS
FROM THE SOLE NEGLIGENCE OF THE LESSOR OR ANY OF ITS
EMPLOYEES, CONTRACTORS, OR AGENTS, UNMIXED WITH THE
FAULT OF ANY OTHER PERSON OR ENTITY.
BAM Ramp Lease - 2010- Page 9
11. 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. Further, the Lessee shall be
solely responsible for all discharges, whether accidental or intentional, of any
chemical and for the costs associated with the cleanup, remediation and
disposal of said chemicals.
12. Hazardous Activities. Should Lessee violate any law, rule, restriction or
regulation of the City of Denton or the Federal Aviation Administration, or any
other regulatory authority, or should the Lessee engage in or permit other
persons or agents to engage in activities which could produce hazards or
obstruction to air navigation, obstructions to visibility or interference with any
aircraft navigational aid station or device, whether airborne or on the ground,
then Lessor shall state such violation in writing and deliver written notice to
Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the
Leased Premises who are causing said violation(s), and upon delivery of such
written notice, Lessor shall have the right to demand that the person(s)
responsible for the violation(s) cease and desist from all such activity creating
the violation(s). In such event, Lessor shall have the right to demand that
corrective action, as required, be commenced immediately to restore the Leased
Premises into conformance with the particular law, rule or aeronautical
regulation being violated. Should Lessee, Lessee's agent, or the person(s)
responsible for the violation(s) fail to cease and desist from said violation(s)
and to immediately commence correcting the violation(s), and to complete said
corrections within twenty-four (24) hours following written notification, then
Lessor shall have the right to enter onto the Leased Premises and correct the
violation(s) at the sole cost and expense of Lessee, and Lessor shall not be
responsible for any damages incurred to any improvements on the Leased
Premises as a result of the corrective action process. In addition, such violation
shall be considered a material default by Lessee authorizing Lessor, at its sole
option and discretion, to immediately terminate and cancel this Lease
Agreement.
13. Manager. Lessee shall select, appoint, and designate to Lessor in writing, a
full-time Manager of business at the Leased Premises. The manager shall be
vested with full power and authority to act in the name of Lessee with respect
to the method, manner and conduct of the operation of the fixed base services
to be provided under this agreement. The manager shall be available during
regular business hours and during the manager's absence, a duly authorized
subordinate shall be in charge and available during Required Hours of
Operation, and on an on-call basis during other hours of the day.
14. Employees. Lessee shall provide, at its sole expense, the employees
necessary to provide effectively and efficiently the services required or
BAM Ramp Lease -2010- Page 10
authorized in this Agreement. Lessee shall control the conduct, demeanor
and appearance of its employees, who shall possess such technical
qualifications and hold such certificates of qualification as may be required in
carrying out assigned duties. Lessee shall be responsible to supervise its
employees to assure a high standard of service to customers of the Lessee.
15. Charges b Lessee: The Lessee agrees to furnish all 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, however, that the Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price
reductions to volume purchasers.
16. Property Ap earance: Lessee shall at its sole cost and expense keep and
maintain the Leased Premises and all improvements, additions or alterations
thereto, equipment and landscaping constructed or installed upon the Leased
Premises, in first-class condition, which condition shall at all times be based on
a standard of care reflecting prudent property management.
D. SIGNS. No signs, posters, or other similar devices ("Signage") shall be placed on
any portion of the Leased Premises or Airport property without the prior written approval of
Lessor. Lessee, at its sole expense, shall be responsible for the creation, installation and
maintenance of all such Signage. Lessee shall pay to Lessor any and all damages, injuries,
or repairs resulting from the installation, maintenance or repair of any such Signage.- Any
Signage placed on the Leased Premises shall be maintained at all times in a safe, neat,
sightly and good physical condition. All signage shall be removed from the Leased
Premises by Lessee immediately upon receipt of instructions for removal of same from
Lessor, including without limitation, upon expiration or termination of this Lease
Agreement. If Lessee fails to remove the Signage then Lessor may do so at the sole cost and
expense of Lessee. Lessee shall be permitted the right to place two wall signs, no greater
than thirty-two square feet each, identifying the commercial hangar operation. All signage
shall comply with all applicable ordinances including the City of Denton sign ordinance."
E. ENTRY. Lessor and its designees shall have the right to enter the Leased
Premises upon reasonable advance notice (written or oral) and at any reasonable times for
the purposes of inspecting the Leased Premises, performing any work which Lessor elects
to perform under this Lease Agreement. Nothing in this section shall imply any duty
upon Lessor to do any work, which under any other provision of this Lease Agreement
Lessee is required to perform, and any performance by Lessor shall not constitute a
waiver of Lessee's default.
W. COVENANTS BY LESSOR
Lessor hereby agrees as follows:
A. PEACEFUL ENJOYMENT. Upon payment of all rent, fees, and performance of
BAM Ramp Lease -2010- Page 11
the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall
peaceably hold and enjoy the Leased Premises and all rights and privileges herein granted.
B. COMPLIANCE. Lessor warrants and represents that in the establishment,
construction and operation of the Airport, that Lessor has heretofore and at this time is
complying with all existing rules, regulations, and criteria distributed by the Federal
Aviation Administration, 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 takeoff, 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 of
adjoining property in the course of normal take-off and landing procedures from the
Airport; Lessor further warrants and represents that at all times during the Lease Term, or
any renewal or extension of same, that it will continue to comply with the foregoing.
VII. SPECIAL CONDITIONS
It is expressly understood and agreed by and between Lessor and Lessee that this
Lease Agreement is subject to the following special terms and conditions.
RUNWAYS AND TAXIWAYS. Because of the present sixty thousand (60,000)
pound continuous use weight bearing capacity of the taxiways, Lessee herein agrees to limit
all aeronautical activity including landing, take-off 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 Lessee agrees to abide by any such changes or revisions as such studies may
dictate. "Aeronautical activity" referred to in this clause shall include any activity of the
Lessee or its agents or subcontractors, and its customers and invitees, but shall not include
those activities over which it has no solicitory part or control, such as an unsolicited or
unscheduled or emergency landing. A pattern of violating the provisions of this section on
two or more occasions shall be sufficient to cause the immediate termination of this entire
Lease Agreement and subject Lessee to liability for any damages to the Airport that might
result.
VIII. LEASEHOLD MPROVEMENTS
A. REQUIREMENTS: Before commencing the construction of any additional
improvements on the Leased Premises, Lessee shall submit:
1. Documentation, specifications, or design work, to be approved by the Lessor,
which shall establish that the improvements to be built or constructed upon the
Leased Premises are in conformance with the overall size, shape, color, quality
and design, in appearance and structure of the program established by Lessor
on the Airport.
BAM Ramp Lease -2010- Page 12
2. All plans and specifications showing the location upon the Leased Premises of
the proposed construction and improvements;
3. The estimated cost of such construction.
No construction may commence until Lessor has approved the plans and
specifications and the location of the Lease Improvements, and the estimated costs of such
construction. Approval by the Lessor shall not be unreasonably withheld. Documentary
evidence of the actual cost of construction on public areas only (such as taxiways) 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 or designee is hereby authorized to endorse upon a copy
of this Lease Agreement 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 the City Manager when
endorsed by him upon said contract shall be conclusive upon all parties for all purposes of
this Lease Agreement.
No later than 30 days after completion of the Additional Lease Improvements, Lessee
shall submit to Lessor detailed as built plans of the Additional Lease Improvements and
documentary evidence acceptable to Lessor evidencing the total cost to construct the Lease
Improvements ("Cost to Construct Lease Improvements").
B. OWNERSHIP OF IlVIPROVEMENTS: Except as otherwise provided in this
Lease Agreement, the Lease Improvements constructed upon the Leased Premises by lessee
shall remain the property of Lessee during the Lease Term subject to the following
conditions, terms and provisions:
1. Assumption. The Lease Improvements shall automatically become the
property of Lessor absolutely free, without any cost to Lessor, at the end of the
Lease Term, or any extension thereof.
2. Cancellation or Termination. Should this Lease Agreement be cancelled or
terminated before the end of the Lease Tenn, or extension thereof, Lessor shall
have the right to purchase all of the Lease Improvements. In the event of a
cancellation or termination, other then due to a default by Lessee that has not
been cured as provided below, the purchase price shall be equal to the most
recent value of the Lease Improvements as determined by the Denton County
Central Appraisal District ("Value of the Lease Improvements") reduced by
1/30 for each year of the Lease Term that has expired as of the date of
termination (the "Purchase Price"). With regard to Additional Lease
Improvements, should the Denton County Central Appraisal District not
determine a separate value for the Lease Improvements, or should such
BAM Ramp Lease - 2010- Page 13
separate valuation be older than two years, then the Purchase Price will be
determined taking the Cost to Construct the Lease Improvements reduced by
1130 for each year the Lease Term has expired as of the date of termination. If
the termination or cancellation is due to a default by Lessee that has not been
cured within 30 days after written notice of default to Lessee, then the
Purchase Price as determined above shall be reduced by 50%. However, if
Lessee provides written notice to Lessor within said 30 day cure period that it
is impossible to cure such default within said time period, then the Lessor may
consent to an extension of such time to cure, which consent will not be
unreasonably withheld.
IX. SUBROGATION OF MORTGAGEE
Any person, corporation or institution that lends money to Lessee for construction
of improvement and retains a security interest in said improvement shall, upon default of
Lessee's obligations to said mortgagee, have the right to operate or manage such
improvement according to the terms of this Lease Agreement, for a period not to exceed
the term of the mortgage with Lessee, or until the loan is paid in full, whichever comes
first, but in no event longer than the Lease Term. 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 mortgagee, those improvements
purchased with the borrowed funds, and those improvements pledged to secure the
refinancing of the improvements.
X. RIGHT OF EASEMENT
Lessor shall have the right to establish easements, at no cost to Lessee, upon the
Leased Premises for the purpose of providing underground utility services to, from or
across the Airport property or for the construction of public facilities on the Airport.
However, any such easements shall not interfere with Lessee's use of the Leased Premises
and Lessor shall restore the property to the original condition as is reasonable practicable
upon the installation of any utility services on, in, over or under any such easement at the
conclusion of such construction. Construction in or at the easement shall be completed
within a reasonable time.
XI. ASSIGNMENT OF LEASE
Lessee expressly covenants that it will not assign this Lease Agreement, convey more
than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise,
transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose,
except for rental of hangar space or tie-down space for storage of aircraft only, without the
written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval
of such sale, sublease, transfer, license, or assignment of the facilities for Airport related
purposes; provided however, that no such assignment, sublease, transfer, license, sale or
otherwise shall be approved if the rental, fees or payments, received or charged are in excess
of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion
BAM Ramp Lease - 2010- Page 14
of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or
otherwise. The provisions of this Lease Agreement shall remain binding upon the
assignees, if any, of Lessee.
XII. INSURANCE
A. REQI D INSURANCE: Regardless of the activities contemplated under this
Lease Agreement, Lessee shall maintain continuously in effect at all times during the term
of this agreement, at Lessee's sole expense, the following minimum insurance coverages:
Commercial (Public) General Liability covering the Lessee or its company, its
employees, agents, tenants and independent contractors, and its operations on the
airport. Coverage shall be in an amount not less than $1,000,000 per occurrence
and provide coverage for premises/operations and contractual liability AND where
exposure exists, coverage for: products/completed operations; explosion, collapse
and underground property damage.
2. All risk property insurance on a replacement cost basis covering loss or damage to
all facilities used by the Lessee, either as a part of this agreement or erected by the
Lessee subsequent to this agreement. Under no circumstances shall the Lessor be
liable for any damages to fixtures, merchandise or other personal property of the
Lessee or its tenants.
3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non-
Owned Autos and Hired Cars:
For operation in aircraft movement areas the limit of liability shall be $100,000
per occurrence.
For other operations the limit of liability shall be consistent with the amount set
by State Law.
B. ADDITIONAL COVERAGES: In addition to the above referenced coverages, the
following insurance is required if the activity or exposure exists or is contemplated:
1. Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public)
General Liability shall include coverage or separate coverage shall be provided for
Environmental Impairment Liability.
2. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat) shall
be provided.
3. Aircraft Rental or Flight Training - Aircraft Liability in the amount of $1,000,000
BAM Ramp Lease -2010- Page 15
per occurrence to include Hull Coverage and Liability, Passenger Liability in the
amount of $100,000 per person (per passenger seat) and Student/Renter Liability
covering all users in the amount of $500,000 per occurrence.
4. Specialized Commercial Flying (including crop dusting, seeding, and spraying,
banner towing and aerial advertising, aerial photography and surveying, fire
fighting, power line or pipe line patrol) - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat)
shall be provided.
5. Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount
of $1,000,000 per occurrence to include Hull Coverage and Liability. In
addition, Hanger Keepers Liability in the amount of $500,000 per occurrence
shall be provided. The requirement for Hangar Keepers Liability shall not
apply to individual owner/operators whose primary use of the hangar space is
the storage of their own aircraft. The requirement does not apply to such
individuals notwithstanding the fact that they may, from time to time, permit
the storage of non-owned aircraft in the hangar space and charge a fee for the
storage of such aircraft so long as such use is in the nature of a rent-sharing
agreement rather than a commercial aircraft storage business.
C. COVERAGE REQUIREMENTS: All insurance coverages shall comply with the
following requirements:
1. All liability policies shall name the City of Denton, and its officers and employees
as an additional named insured and provide for a minimum of 30 days written
notice to the City of any cancellation or material change to the policy.
2. All insurance required by this Lease Agreement must be issued by a company or
companies of sound and adequate financial responsibility and authorized to do
business in the State of Texas. All policies are subject to the examination and
approval of the City's office of Risk Management for their adequacy as to content,
form of protection and providing company.
3. Required insurance naming the City as an additional insured must be primary
insurance and not contributing with any other insurance available to the City
whether from a third party liability policy or other. Said limits of insurance shall in
no way limit the liability of the Lessee hereunder.
4. The Lessor shall be provided with a copy of all such policies and renewal
certificates. 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 Agreement.
5. During the Lease Term, or any extension thereof, Lessor herein reserves the right
BAM Ramp Lease -2010- Page 16
to, with 60 days notice, 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.
XIII. 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 its assets pursuant to proceedings brought under the provisions of any Federal
reorganization act, or Lessee shall be divested of its 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 its 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 Agreement by written notice to Lessee. However, if
Lessee provides written notice to Lessor within said 30 day cure period that it is impossible
to cure such default within said time period, then the Lessor may consent to an extension of
such time to cure, which consent will not be unreasonably withheld. In the event of
default, Lessor has the right to purchase any or all of the Lease Improvements under the
provisions of Section VM.C.4. hereof.
XIV. CANCELLATION BY LESSEE
Lessee may cancel this Lease 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 anyone of the following events: (1) issuance by any court of competent juris-
diction of a permanent injunction in any way preventing or restraining the use of the Airport
or any part thereof for airport purposes; (2) 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
ninety (90) days after receipt of a written notice of the existence of such breach; (3) the
inability of Lessee to use the Lease 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.
Upon the happening of any of the four events listed in the preceding paragraph, such
BAM Ramp Lease - 2010- Page 17
that the Leased Premises cannot be used for aviation purposes, then the Lessee rnay cancel
this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its
terms, except, however, that the use of the Leased Premises shall not be limited to aviation
purposes, their use being only limited by such laws and ordinances as may be applicable at
that time.
Should Lessor close the Airport and relocate the Airport to another location during the
primary term of this Lease Agreement, Lessee shall have the right to relocate its facilities to
the new airport at a suitable location under the same or similar terms of this Lease
Agreement. The cost of relocation of Lessee's facilities will be shared by Lessor and Lessee
in proportion to the number of years remaining on the primary term of this Lease
Agreement. In this regard Lessor will be responsible for 1/30 of the such costs for every
year remaining on the primary term.
XV. MISCELLANEOUS PROVISIONS
A. ENTIRE AGREEMENT. This Lease 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.
B. BINDING EFFECT. All 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.
C. SEVERABILITY. If a provision hereof shall be finally declared void or illegal by
any court or administrative agency having jurisdiction, the entire Lease 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.
D. NOTICE. Any notice given by one party to the other in connection with this
Lease Agreement shall be in writing and shall be sent by certified mail, return receipt
requested, with postage fees prepaid or via facsimile as follows:
1. If to Lessor, addressed to:
City Manager
City of Denton
215 E. McKinney Street
Denton, Texas 76201
Fax No.940.349.8596
2. If to Lessee, addressed to:
Damon Ward, President
BAM Ramp Lease -2010- Page 18
BAM Denton Management Ventures, L.L.C.
5007 Airport Road
Denton, Texas 76207
Phone (940) 898-1200
Fax No. (940) 382-5602
E. HEADINGS. The headings used in this Lease Agreement are intended for
convenience of reference only and do not define or limit the scope or meaning of any
provision of this Agreement.
F. GOVERNING LAW AND VENUE. This Lease Agreement is to be construed in
accordance with the laws of the State of Texas and is fully performable in Denton County,
Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease
Agreement shall be a court of competent jurisdiction in Denton County, Texas.
G. NO WAIVER. No waiver by Lessor or Lessee of any default or breach of
covenant or term of this Lease Agreement may be treated as a waiver of any subsequent
default or breach of the same or any other covenant or term of this Lease Agreement.
H. NO AGENCY. During all times that this Lease Agreement is in effect, the parties
agree that Lessee is and shall not be deemed an agent or employee of the Lessor.
1. FORCE MAJEURE. None of the Parties shall be in default or otherwise liable for
any delay in or failure of performance under this Lease Agreement if such delay or failure
arises by any reason beyond their reasonable control, including any act of God, any acts of
the common enemy or terrorism, the elements, earthquakes, floods, fires, epidemics, riots,
failures or delay in transportation or communications. However, lack of funds shall not be
deemed to be a reason beyond a Party's reasonable control. The Parties will promptly inform
and consult with each other as to any of the above causes, which in their judgment may or
could be the cause of a delay in the performance of this Lease Agreement.
J. SUPERCEDES EXISTING LEASE. This Lease Agreement supercedes and takes
the place of the Existing Lease in its entirety.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the
Effective Date first above written.
CITY OF DENTON, TEXAS, LESSOR
BY
EO GE CAMPBELL, 6 TV MANAGER
BAM Ramp Lease- 2010- Page 19
ACKNOWLEDGMENTS
THE STATE OF TEXAS
COUNTY OF DENTON §
This instrument was acknowledged before me on the Z- -day of , 2010, by
George C. Campbell, City Manager of the City of Denton, Texas on behalf of said
mu
JANE E. RICHARDSON c
Notary Public, State of Texas
° :..e My Commission Expires
June 27, 2013
NO ARY PUBLIC, STATE OF TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
BAM DENTON MANAGEMENT
VENTURES, L.L.C., a Texas limited
BY:
D ON WARD, PRESIDENT
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS §
COUNTY OF DENTON
This instrument was acknowledged before me on the _[~L day of , 2010 by
Damon Ward, President, BAM Denton Management Ventures, L.L.C., a Texas limited
liability company, on behalf of said company.
M. C. MC/LNiyMiOM
M~► Ca1~M~Me~ ~PNM - .
NO ARY P LIC, ST OF TEXAS
BAM Ramp Lease - 2010- Page 20
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