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2011-035s:\Iegal\our documents\ordinances111\airport first financial lease 2nd amendment.doc ORDINANCE NO. 2011-035 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO APPROVE A SECOND AMENDMENT TO AN AIRPORT LEASE DATED SEPTEMBER 15, 1987 BETWEEN THE CITY OF DENTON, TEXAS AND FIRST FINANCIAL RESOURCES, INC. AT THE DENTON MUNCIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, certain real property upon the Denton Municipal Airport was leased to First Financial Services, Inc. in an Airport Lease Agreement, and WHEREAS, the City of Denton and Lessee desire to amend the lease agreement, and WHEREAS, the Airport Board recommends approval of the Amendment; and WHEREAS, the City Council deems it in the public interest to approve this Assignment of the Lease; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Second Amendment to an Airport Lease Agreement between the City of Denton and First Financial Services, Inc. at the Denton Municipal Airport which is attached to and made a part of this ordinance for all purposes and to exercise all rights and duties of the City of Denton under the Airport Lease Agreement. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. s~ PASSED AND APPROVED this the day of u ek , 2011. MARK RR UGHS, MAYOR sAlegallour documents\ordinances\l l\airport first financial lease 2nd amendment.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By 7,4 SECOND AMENDMENT TO COMMERCIAL OPERATOR LEASE AGREEMENT BETWEEN CITY OF DENTON AND FIRST FINANCIAL RESOURCES, INC. THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS COUNTY OF DENTON § This Second Amendment to that certain Commercial Operator Lease which was first made and executed on September 15, 1987 at Denton, Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor," and First Financial Resources, Inc., hereinafter referred to as "Lessee". WITNESSETH: WHEREAS, the Lessor and the Lessee have requested an amendment of the Lease term and the City Manager and the Airport Advisory Board support the amendment of the Lease; NOW, THEREFORE, in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows: SECTION III. - TERM OF THE LEASE IS HEREBY AMENDED TO READ AS FOLLOWS: The term of this Agreement shall be for a period of twenty-three (23) years, commencing on the 15th day of September, 1987 and as amended to continue through the 14th day of March 2011, except as amended hereby to extend for ninety (90) days through the 15th day of June, 2011, unless earlier terminated under the provisions of the Agreement. Lessee shall have the first right of refusal to renegotiate this lease for three (3) additional five year periods at rentals 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 at least one hundred eighty (180) days before the expiration of the primary term of twenty- three (23) years as amended hereby to extend for ninety (90) days and at least 180 days before the expiration of each additional renegotiated period. The rental and terms to be negotiated shall be reasonable and consistent with the then value, rentals and terms of similar property on the Airport. Lessee's first right of refusal to renegotiate this lease shall expire upon the end of the last day of the primary term of twenty-three (23 ) years as amended hereby to extend for ninety (90) days and the last day of each additional renegotiation period. SECTION IV. - PAYMENTS, RENTALS AND FEES IS HEREBY AMENDED TO READ AS FOLLOWS: Land rental shall be the sum of Two Hundred Twenty Eight Dollars and Eighty One Cents ($228.81) per month effective March 15, 2011 through June 15, 2011, payable in six (6) equal monthly installments in the sum of Two Hundred Twenty Eight Dollars and Eighty One Cents ($228.81) in advance, on or before the first day of each and every month during the term of this agreement. Notwithstanding the foregoing, the lease rental is reduced by the product of $0.11481 per square foot times the number of square feet compromising all easements established in accordance with Article II (c). SECTION XI. - INSURANCE OF THE LEASE IS HEREBY AMENDED TO READ AS FOLLOWS: C. Indemnity. 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. 2 THE LESSOR AND THE LESSEE EXPRESSLY INTEND THIS INDEMNITY PROVISION 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. ALL OTHER PROVISIONS OF THE LEASE AGREEMENT REMAIN IN FULL FORCE AND EFFECT. 5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day March 2011. BY LESSOR: GEO GE C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ?'M ~ APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: FIRST FINANCIAL SERVICES, INC. LESSEE: BY: Byron Hart STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the day of F ru4v, , 20 11 , by Byron Hart. IS JULIE NO MULL MS MY conNINIt ar 90" Mpg 21.2013 a STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on 20 , by George Campbell, City Manager on behalf the corporation. ~O;'PY~'yAL~ANE E. RICHARDSON ^ L Notary Public, State of Texas "1ie"F My Commission Expires Not~iry State of Texas My Commission Expires (or Notary Stamp) /51 the ff day of City of Denton, nv h , Te s, a municipal 0 'Z N ary Public, State of Texas My Commission Expires (or Notary Stamp) 4