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FirstAmendmenttoAirportLeaseAgreementɋ
OrdinanceNo.201633711/01/16JR
Mark Hicks Transport, LLC
ORDINANCE NO. 2015 -324
AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND MARK HICKS
TRANSPORT, LLC; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS 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 Mark Hicks Transport,
LLC 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.
PASSED AND APPROVED this the 20th day of October, 2015.
V,
IS WATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:`
AIRPORT LEASE AGREEMENT
COMMERCIAL OPERATOR
This Lease Agreement (the "Lease Agreement" or "Agreement ") is made and
executed to be effective as of the 41h day of August, 2015 (the "Effective Date ") at Denton,
Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter
referred to as "Lessor ", and Mark Hicks Transport, LLC, 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 known as 4901
Lockheed Lane and construct, operate and maintain an aircraft hangar and related aviation
facilities thereon;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained in this Agreement, the parties agree as follows:
I. GENERAL CONDITIONS OF LEASE AGREEMENT
A. PRINCIPLES OF OPERATIONS. The right to conduct aeronautical and related
activities for furnishing services to the public is granted to Lessee subject to the terms hereof
and to Lessee agreeing:
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,
Nondiscrimination in Federally Assisted Programs of the Department of
Transportation - Effectuation 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 in this Agreement 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 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. §40103.
E. PUBLIC AREAS.
"Public Areas" or "Public Area" is that portion of the Airport, which is now or
hereafter considered by the FAA, TxDOT, the City of Denton, or any other regulatory
agency with oversight of the Airport to be the obligation and responsibility of the Lessor to
operate and maintain for the common use and benefit of the general aviation public. The
Airport Public Area includes, without limitation, any air navigation facility or structure
designed and intended to serve the general public not specifically subject to an exclusive use
agreement such as a lease agreement, license or permit. The Airport Public Areas include
all runways, taxiways and other common -use paved, graveled or turfed areas and their
respective protection zones, safety areas and/or object free areas; any other facility or
facilities at the Airport that are eligible for federal or state grants or subsidies awarded on the
basis of their serving the benefit of the public (including runways, taxiways, vehicle streets
and alleys, public aircraft aprons /tarmac, vehicle parking areas, and drainage structures);
field lighting and associated beacon and lighted wind and landing direction indicators;
security, fire, and emergency medical facilities; directional signs; and perimeter or restricted
access fences. Generally, the Public Area is the total area and facilities of the Airport
exclusive of all non - public airport facilities, and may vary from time to time depending on
the total land comprising the Airport and the change of land use at the Airport.
F. LESSOR AND THIRD PARTY RIGHTS
1. Lessor reserves the right to further develop or improve the Public Area of the
Airport and any other property at the Airport not part of the Leased Premises
as it sees fit, regardless of the desires or views of Lessee, and without
interference or hindrance.
Airport Lease Agreement Mark Hicks Transport, LLC - Page 2
1 Lessor shall be obligated to maintain and keep in good repair the Public
Area, together with the right to direct and control all activities of Lessee in
this regard.
3. During time of war or national emergency, Lessor shall have the right to
lease the Public 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
Agreement 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 ftom erecting, or permitting to be erected, any
building or other structure on or adjacent to the Airport which, in the opinion
of Lessor, would limit the usefulness or safety of the Airport or constitute a
hazard to aircraft or to aircraft navigation. The Lessee Improvements as
currently contemplated in Section II.D. do 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.
Provided, however, any such agreement shall be required to provide that
(i) the United States recognizes this Lease Agreement and shall not
disaffirm it, except in the event of a declared national or regional
emergency; (ii) Lessee shall be entitled to use and occupy the Leased
Premises and use the Public Areas in accordance with the terms of the
Lease Agreement; (iii) Tenant shall be entitled to all of its rights under the
Lease; and (iv) Tenant's possession of the Leased Premises shall not be
disturbed by any such agreement, except in the event of a declared
national or regional emergency.
6. This Lease is given and entered into and subject to all laws, ordinances,
statutes, rules, regulations, directives, permits, or standards of any
governmental authority, entity, or agency (including, without limitation, the
City of Denton, Texas, the State of Texas, the Federal Aviation
Administration, and the Texas Department of Transportation), whether now
in existence or hereafter enacted, adopted or imposed, and including, without
limitation, any and all grant agreements or grant assurances now existing or
as hereafter agreed to, adopted or imposed.
II. LEASED PREMISES
Lessor, for and in consideration of, and subject to, the terms, covenants and conditions
set forth in this Lease Agreement to be kept by Lessee, 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 Denton County, Texas:
Airport Lease Agreement Clark hicks Transport, LLC - Page 3
A. LAND. A tract of land, being approximately 23,435 square feet or 0.538 acres, as
described on Attachment "A ", such attachment being incorporated herein by reference (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 Public Area, 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 Lease Agreement, the term "Leased
Premises" shall mean all property located within the metes and bounds described in
Attachment "A ", including all Lease Improvements (as defined below) constructed or
assumed by the Lessee.
B. LESSEE ACCEPTS LEASED PREMISES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS LEASE AGREEMENT, LESSOR
MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
AS TO THE VALUE, QUALITY, QUANTITY, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE LEASED PREMISES AND /OR
MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE LEASED
PREMISES, THE NATURE OF THE PAST OR HISTORIC USE OF THE LEASED
PREMISES, AND /OR MERCHANTABILITY, SUITABILITY OR FITNESS FOR
PURPOSE OF ANY OF THE LEASED PREMISES, ABSENCE OF LATENT
DEFECTS AND COMPLIANCE WITH LAWS AND REGULATIONS RELATED TO
THE LEASED PREMISES. Lessee further acknowledges that, in executing and
accepting this Lease Agreement, it has relied solely upon its independent evaluation and
examination of the Leased Premises, and the independent evaluations and studies based
thereon. Lessor makes no warranty or representation as to the accuracy, completeness or
usefulness of any information furnished to Lessee, if any, whether furnished by Lessor or
any third party. Lessor, its officers, employees, elected officials and agents assume no
liability for the accuracy, completeness or usefulness of any material furnished by Lessor,
if any, or any of its officers, employees, elected officials and /or agents, and /or any other
person or party, if any and Lessee hereby releases such parties from and against any
claims related to such matters. Reliance on any material so furnished shall not give rise
to any cause, claim or action against Lessor, its officers, employees, elected officials
and /or agents, and any such reliance shall be at Lessee's sole risk.
THE EXECUTION AND DELIVERY OF THIS LEASE AGREEMENT IS ON A
"WHERE IS ", "AS IS ", AND "WITH ALL FAULTS" BASIS, AND IS WITHOUT
REPRESENTATION OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED,
INCLUDING, BUT WITHOUT LIMITATION, AS TO THE PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE LEASED PREMISES AND /OR
MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE LEASED
PREMISES, THE NATURE OF THE PAST OR HISTORIC USE OF THE LEASED
PREMISES, THE QUALITY, QUANTITY AND VALUE OF THE LEASED
PREMISES, FITNESS FOR PURPOSE, SUITABILITY, MERCHANTABILITY,
Airport Lease Agreement Mark hicks Transport, LLC - Page 4
ABSENCE OF LATENT DEFECTS AND COMPLIANCE WITH LAWS AND
REGULATIONS RELATED TO THE LEASED PREMISES. Lessee has satisfied itself
as to the condition, quality and extent of the property and property interests which
comprise the Leased Premises and the interests and rights provided by this Lease
Agreement.
Notwithstanding anything to the contrary set forth herein, Lessor hereby covenants,
warrants, and represents that as of the Effective Date: (1) it owns fee simple estate in the
Leased Premises and the Public Areas, (2) it has full right and power to execute and
perform this Lease Agreement and to grant the leasehold estate demised herein, (3) its
execution of this Lease Agreement does not require the approval or joinder of any other
person, (4) no existing zoning ordinance or restrictive covenant prevents the use of the
Leased Premises for the Permitted Use, (5) all necessary consents and approvals to lease
the premises have been obtained, and (6) Lessee shall peaceably and quietly have, hold
and enjoy the Leased Premises and all rights, easements, privileges and appurtenances
belonging or in any wise appertaining thereto during the term of this Lease Agreement
and any extensions thereof.
C. IMI'1�OVEMENTS PROVIDED BY LI ` SOR. 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. The Lessor Improvements on the Leased
Premises are to provide site grading described in Attachment "B ", attached hereto and made
a part hereof. There will be no additional improvements provided by Lessor, except as may
be set forth in Article II.F., "Access to Utilities".]
D. IMPI�.OVEMENTS PROVIDED BY L'[kASSN °J:,.
Lessee shall construct or cause to be constructed buildings and other improvements on
the Leased Premises and the applicable portion of the Public Area, if any (the "Lessee
Improvements "), as described in Attachment "C ", at Lessee's sole cost, expense and risk
(except as may be otherwise agreed to between Lessor and Lessee) in accordance with the
plans and specifications which are subject to the review and approval in writing by the
Lessor, as set forth herein and Article VIII, below. The term "Lessee Improvements" shall
also include those real property and structural improvements having been made prior to
the Effective Date and now existing on the Leased Premises, other than Lessor
Improvements, if any. Lessee shall own such Lessee Improvements during the Lease
Term, as provided in Article VIII. Except as provided otherwise in this Agreement,
Lessee may not construct, locate, install, place or erect any other improvements upon the
Leased Premises or the Public Area without the express written consent of the Lessor, such
consent not to be unreasonably withheld or delayed. Lessee shall also construct appropriate
culverts or drainage as required by City ordinances, as well as other improvements as
determined necessary by Lessor or as required by City ordinances
Construction of Lessee Improvements shall be commenced no later than 180
days (the "Commencement Period ") following the Effective Date, and shall be completed
no later than 360 days, after the Effective Date (the "Construction Period "). For the
Airport Lease Agreement Mark Hicks Transport, LLC - Page 5
purposes hereof, construction of the Lessee Improvements shall be deemed to have
commenced when all of the following events shall have occurred: (i) Lessor's written
approval and acceptance of the final construction design plans and specifications is provided
to Lessee, such approval and acceptance not to be unreasonably withheld or delayed; (ii)
Lessee has been issued the required building permit(s) or licenses necessary to construct the
Lessee Improvements; (iii) Lessee shall have received (and shall have provided or caused to
be provided to Lessor) a true and correct copy of the FAA's determination to Lessee's filing
Form 7460 Notice of Proposed Construction or Alterations or other such filings required by
the FAA and, or TxDOT; (iv) Lessee's execution of a contract with a qualified general
contractor; (v) proof of required Builder's Risk Insurance Policy and Payment and
Performance Bond, as required in Article VIII, below, is provided to Lessor; and (vi) the
initiation of actual mobilization of construction equipment on the Leased Premises and/or
the area of the Public Area wherein Lessee Improvements are to be constructed, if any.
Construction of the Lessee Improvements shall be considered complete upon (i) the
issuance of a Certificate of Occupancy for the Lessee Improvements (other than the Lessee
Improvements located on the Public Areas); and (ii) acceptance by the Lessor of the Lessee
Improvements constructed upon the Public Areas, if applicable, such acceptance not to be
unreasonably withheld or delayed.
In addition, within 60 days after the Effective Date of this Lease Agreement ( "Condition
Precedent Date "), Lessee shall provide to Lessor (i) a written estimate to construct Lessee
Improvements certified by the design architect or engineer and prepared by a contractor who
has demonstrated experience in the successful construction of improvements similar to the
Lessee Improvements (the "Construction Cost Estimate "); and, (ii) a written schedule of
construction to complete Lessee Improvements (collectively, "Conditions Precedent ").
Should the Conditions Precedent not be met, either party may terminate this Lease
Agreement by giving the other party written notice within ten (10) days following the
Condition Precedent Date, in which case this Lease Agreement shall be null and void and of
no further force and effect, and all funds held on deposit with the Lessor and all documents
and submittals provided to the Lessor shall be immediately refunded and returned to the
Lessee. Such termination shall not prevent the Lessee from submitting a new proposed
lease request at a later date. The parties may extend the Condition Precedent Date if agreed
to by Lessor and Lessee, as evidenced in writing duly authorized and executed by both
parties.
E. EASEMENTS. ENTS. Lessor and Lessee by mutual agreement may establish, on the Leased
........
Premises, easements for public access on roads and taxiways. Nothing contained herein
shall be deemed to affect Lessor's rights provided in Article X, below.
F. UTILITIES.
1 Lessor represents that there are water, sewer and single -phase electricity lines
within two hundred feet (200') of the Leased Premises available to "tap -in" by
Lessee, and that the same are sufficient for usual and customary service on the
Leased Premises. Lessor warrants and represents that separate meters for
Airport Lease Agreement Mark Hicks Transport, LLC - Page 6
utilities can be installed on the Leased Premises by Lessee.
2, Lessee shall be responsible, at Lessee's sole cost and expense, for obtaining all
utility connections at or for the Leased Premises and Lessee shall pay all
charges for water, electricity, gas, sewer, telecommunications or any other
utility connections, tap -in fees, impact fees, other fees or expenses of any kind
and for services furnished to the Leased Premises during the Term hereof.
Lessee agrees to contact all utility service providers and all other parties that
may own or claim to own underground pipelines, telecommunications, cable or
any other structure or facility, prior to any excavation or boring on or under the
Leased Premises. Lessor shall in no event be liable or responsible for any
cessation or interruption in any such utility services. Provided, however, if any
utility to the Leased Premises should become unavailable for a continuous
period in excess of forty-eight (48) hours and such unavailability is directly
caused by Lessor, all Original Rent shall abate until utility service to the Leased
Premises is restored.
III. TERM,
A. TERM. The term of this Lease Agreement shall be for a period of forty (40) years,
commencing on the 20th day of October, 2015 (the "Commencement Date ") and continuing
through the 19th day of October 2055, unless earlier terminated under the provisions of the
Lease Agreement (the "Lease Term" or "Term ").
B. HOLDING OVER. If Lessee holds over and continues in possession of the Leased
Premises after the Term of this Lease Agreement expires, the holding over may be
considered by the Lessor, at the Lessor's option, a month to month tenancy binding Lessee
to all terms and conditions as set forth herein with the following exception: The rental
payment due Lessor herein shall be the amount per month at the last full month of the Term
prior to expiration of this Lease Agreement, payable on the first day of each month
thereafter, until the tenancy is terminated as provided herein. The holding over tenancy may
be terminated at any time by Lessor or Lessee upon thirty (30) days written notice to the
other party, or may be terminated by Lessor as a remedy in accordance with the terms of this
Lease, as elected by Lessor.
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 AND RENTAL., Rental shall be due and payable to Lessor in the sum of
$0.27 per gross square foot, as etermined and provided in Attachment "A ", said sum being
stipulated herein as $6,327.45 per year (the "Original Rent "), payable in twelve (12) equal
monthly installments in the sum of $527.29 in advance, on or before the 1st day of each and
every month during the term of this Lease Agreement. The first monthly payment under the
terms of this Agreement shall be due the first day of the month following issuance of a
Airport Lease Agreement Mark Flicks Transport, LLC - Page 7
building permit by the City of Denton for improvements as described in Attachment B to
this Agreement. Lessee has the option to pay annual rentals and fees in whole on or before
the 1 st day of October, at the beginning of the City's fiscal year, each and every year of this
Lease Agreement.
Notwithstanding the foregoing, the Original Rent will be reduced by the current lease rate
per square foot, as adjusted by the CPI -U referenced in Section IV.C., times the number of
square feet comprising all easements established in accordance with Section II.E.
B. LESSOR IMPROVEMENTS RENTALS. None. There are no Lessor
Improvements on the Leased Premises as of the _... e Effective Date.
C. PAYMENT, PENALTY, ADJUSTMENTS. All payments due Lessor from Lessee
shall be made to Lessor at the offices of the Finance Department of the City of Denton,
Comptroller's Office, 215 E. McKinney, Denton, Texas, unless otherwise designated in
writing by the Lessor. If payments are not received on or before the 151' day of the month,
the lesser of the maximum amount allowed by law and 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 the lesser of the maximum amount allowed by law and one percent
(1 %) of the unpaid rental /fee amount will be due. The lesser of the maximum amount
allowed by law and one percent (1 %) will be added on the first of each subsequent month
until the unpaid rental /fee payment is made. Notwithstanding anything herein to the
contrary, any such penalty shall be limited to but not exceed the maximum amount provided
by law, if any.
The Original Rent for the Leased Premises shall be readjusted at the end of each
two (2) year period during the Lease Term, starting on the 1 st day of October 2017 and
every two (2) years thereafter, 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 Jules index, which was 218.676 (1982 -84 =
100). Each rental adjustment, if any, shall occur on the 1st day of October, beginning 2017,
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 new Original 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 Original
Rent at that time, and Lessee shall pay the previous year's Original 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 Original Rent less than the previous
year's Original Rent. The adjustments herein shall be limited so that the Original Rent
payment determined for any given two -year period shall not exceed the Original Rent
payment calculated for the previous two year period by more than twenty percent (20 %)
Airport Lease Agreement Mark Hicks Transport, LLC - Page 8
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 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.
V. RIGHTS AND OBLIGATIONS OF LESSEE
A. USE OF LEASED PREMISES. Lessee is granted the non - exclusive privilege to
engage in owner /operator activities providing only the following aviation services (herein
"Permitted Use "):
Hangar and Office Space Leasing. Lessee is granted the non - exclusive right
to rent hangar and office space.
2. General Aircraft Maintenance. Lessee is granted the non - exclusive right to
conduct airframe and power plant maintenance services.
Aircraft Management Services. Lessee is granted the non - exclusive right to
manage aircraft and flight operations for third parties.
4. Charter Flight Service. Lessee is granted the non - exclusive right to conduct
charter flight services from the hangar to be constructed on the property
described in this Agreement.
5. Aircraft Sales and Brokerage. Lessee is granted the non - exclusive right to
engage in the sale and/or brokering of aircraft.
& Tie -Down Services. Lessee is granted the non - exclusive right to charge for
tie -down services on Lessee's property.
Unless otherwise agreed to in writing by the Lessor, Lessee, its tenants, employees,
invitees and guests shall not be authorized to conduct any services not specifically listed in
Airport Lease Agreement Mark Hicks Transport, LLC - Page 9
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 aviation, as provided herein. 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 indus-
trial activity.
B. STANDARDS. Lessee shall meet or exceed the following standards and perform
the following activities or actions:
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. List. Lessee shall file with the Airport Manager and keep current a list of its
sub - lessees and shall keep current and provide to the Airport Manager, as
requested, a list of all aircraft hangared or tied down on the Leased Premises
within the previous twelve (12) month period.
Conduct. Lessee shall contractually require its employees and sub - lessees (and
sub - lessee'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 by such employees and sub - lessees (and sub - lessee's invitees).
4. Utilities, Taxes and Fees. Lessee shall meet and pay 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.
Laws. Lessee, at Lessee's sole cost and expense, shall comply with all current
and future federal, state and local laws, rules and regulations which may apply
to the conduct of business contemplated and /or occupation of the Leased
Premises, 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.
6, Maintenance of Property. Lessee shall be responsible for the maintenance,
repair and upkeep of all property, buildings, paving, structures and
improvements, including the mowing or elimination of grass and other
vegetation on the Leased Premises and the Lessee Improvements constructed
on the Public Area, if any, and shall keep the Leased Premises neat, clean and
in respectable condition, free from any objectionable matter or thing, including
trash or debris. Lessee agrees not to utilize or permit others to utilize areas on
the Leased Premises which are located on the outside of any hangar or
building for the storage of wrecked or permanently disabled aircraft, aircraft
Airport Lease Agreement Mark hicks Transport, LLC - Page 10
parts, automobiles, vehicles of any type, or any other equipment or items
which would distract from the appearance of the Leased Premises.
7. Painting of Buildings. During the Lease Term, Lessor shall have the right to
require, not more than once every five years, that the metal exterior of
hangar(s) and building(s) located on the Leased Premises be repainted. The
Lessor may require Lessee to repaint said exteriors according to Lessor's
specifications (to specify color of paint, quality of workmanship and the year
and month in which the hangar(s) and building(s) are to be painted, if needed.)
Lessee shall complete the painting in accordance with such specifications
within one (1) year of receipt of notice from Lessor. Lessee shall pay all costs
and expenses involved in the hangar or building painting process.
8. 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, flea market type sales,
industrial, commercial, retail sales, storage of recreational vehicles,
automobiles, or marine vehicles not incidental to uses permitted by this Lease,
or any other use or purpose not expressly authorized by this Lease.
9, Dwellings. 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 or other Airport premises. Lessee may have a pilot
lounge, including restroom and shower facilities, for use by flight crew and
passengers.
10. Quit Possession. Lessee shall quit possession of the Leased Premises at the
end of the Lease Term, 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 and as Lessee has
constructed, or accepted at the beginning of the Term, including the Lessee
Improvements and Lease Improvements provided in Section II.D. and Article
VIII, hereof, reasonable wear and tear excepted.
11. Indemnity andIT Release. Lessee shall indemnify, hold harmless and defend
the Lessor, its officers, agents, elected officials and employees, and hereby
releases Lessor, its officers, agents, elected officials and employees, from
and against any and all claims, liens, suits, liabilities, causes of action,
demands, losses, damages and /or actions for damages, injuries to persons
(including death), property damage (including loss of use), lost profits, and
expenses, including court costs, attorneys' fees and other reasonable costs
(collectively, "Claims "), occasioned by, arising from or incidental or related
to the Lessee's occupancy or use of the Leased Premises or the Airport, the
Airport Lease Agreement Mark Hicks Transport, LLC - page 11
activities of Lessee and /or any party acting under the authority of, or rights
granted by, Lessee conducted in connection with or incidental to this Lease
Agreement, and /or Lessees' breach or default under this Lease Agreement,
including without limitation all such Claims based on common,
constitutional or statutory law or regulation, whether existing as of the date
hereof or as may be created or recognized hereafter. 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 the Leased Premises and
Lease Improvements, while in, on, or involved in any way with the use or
occupation of the Leased Premises.
Without limiting the indemnity and release provided herein, the Lessor shall
assume no responsibility or liability for harm, injury, or any damaging events
which are directly or indirectly attributable to premise condition 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, without limiting the
indemnity and release provided herein, this indemnity and release provision
applies to all Claims arising from all premise condition defects or related to
the condition of the Leased Premises and /or the Lease Improvements, of any
kind or type.
'111E LESSOR A_ _D _. . C I � fE LESSEE EXPR.E....SSL. Y ,
INTEND T141S
PROVISION TO RELEASE L1 sSS7Ra ITS OF 1C 1 -,',RS,
AGrEN 1°
LLI�,C,7TI?17 011I�. (71A]. S AND 1. M.PI -OYEES AND TO CAE 1JTR E
LESSEE TO INDEMNIFY AND DEFEND TFIE LESSOR,, ITS
011` 1C,1`,RS, AG' V ,LFC: TI UD OFFICIALS AND EM1'1 O` I_1_,m,
FROM AND AGAINST ALL MATTERS SET FORTH IN -THIS
SECTION ION B.11 mTIIE C:`QNSC a UENCES X01° C ".AUSFJ) BY
OR RELATED TO THE LESSOR'S ,OWN NEGLIGENCE,, OF ANY
K 1_011 TYP ^. OR Ql1- ':�QREl: EXCEPTAS SPE'C:`l FICA C.LY PROV[DF,11.7
BELOW. NOTWITHSTANDING TI TERMS OF THE PRECEDING
S1 ',N'1"
.� ..�.. _ RELEASE PC�C)IS1f.�N DOES
1 1(_FmS ...I1_fS IN:171�bMI�11'C' AND
NOTw APPLY TO ANY CLAIM. Wl l `RE THE INJURY DEATH OR
DAIS'AG1,,; R[F'S11LTS FROM T1 4E SOLE NEGLIGENCE OF '1111,'
LESSOR UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR
ENTITY,.,
The provisions of this Section V.B.11. shall survive the expiration and
termination of this Lease Agreement.
12. Chemicals and Other Substances. Lessee shall properly store, use, collect and
dispose of all chemicals, chemical residues, paints and/or any other pollutant,
contaminant, intermediate, hazardous substance, waste, asbestos containing
material, petroleum product and any substance containing any of the above
Airport Lease Agreement Mark hicks Transport, LLC - Page 12
( "Chemical "); to properly store, confine, collect and dispose of Chemicals,
including without limitation, paint spray in the atmosphere; and to comply
with all local, state and federal statutes, rules, regulations and ordinances
governing the storage, handling, use or disposal of such Chemicals. Further,
the Lessee shall be solely responsible for, and without limiting the provisions
of Article V.B.11., shall indemnify Lessor against any and all claims, losses,
liens, suits, fines, penalties, liabilities, damages, causes of action and
demands, including without limitation, costs, liabilities and damages
associated with the cleanup, remediation and disposal of said Chemicals,
damage to the environment or natural resources, property damage and/or
injury, disease or death of any person, related to discharges or releases,
whether accidental or intentional, of any Chemical or any other matter, claim,
loss, lien, suit, liability, damage, demand or cause of action associated with or
related to the Chemicals.
13. Hazardous Activities. Should Lessee violate any statute, rule, restriction,
order, ordinance 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, if so elected by Lessor,
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 statute, rule, restriction,
order, ordinance or regulation being violated or to remove or remediate any
hazard described herein. 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 exercise any and all other rights and
remedies available to it under this Lease Agreement.
Airport Lease Agreement Mark Hicks Transport, LLC - Page 13
C. SIGNS. No signs, posters, or other similar devices ( "Signage ") shall be placed on
the exterior of the Lease Improvements, Lessor Improvements, if applicable, or on any
portion of the Leased Premises or Airport property without the prior written approval of
Lessor which shall not be unreasonably withheld or delayed. Lessee, at its sole expense,
shall be responsible for the creation, installation and maintenance of all 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. Subject to approval by Lessor as provided herein, Lessee may place two
wall signs, no greater than thirty -two square feet each, identifying the commercial hangar
operation. Notwithstanding anything contained herein to the contrary, all signage shall
comply with all applicable City of Denton ordinances, including the City of Denton sign
ordinance.
D. 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, and exhibiting the Leased Premises for
sale, lease, or mortgage. Any entry after the Effective Date by the Lessor shall be
conducted with due regard for the construction activities or business being conducted on
the Leased Premises, and shall not unreasonably interfere with Lessee's activities
thereon. Where such is reasonable to do so, Lessor hereby agrees to provide Lessee with
prior notice of any entry into or onto the Leased Premises. References to Lessor herein
shall also include Lessor's employees, contractors, agents, and representatives. Nothing
in this section shall imply any duty upon Lessor to do any work or perform any activity,
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 any default by Lessee
hereunder.
VI. COVENANTS BY LESSOR
Lessor hereby agrees as follows:
A. PEACEFUL ENJOYMENT. Upon payment of all rent, fees and performance of
the covenants and agreements on the part of Lessee to be performed hereunder, Lessee
(subject to the terms and conditions of this Lease Agreement) shall peaceably hold and
enjoy the Leased Premises and all rights and privileges herein granted; however, Lessee
accepts this Lease Agreement subject and subordinate to any recorded mortgage, deed of
trust, or other lien presently existing upon, or to any other matter of record in the Real
Property Records of Denton County, Texas and/or that Lessee is otherwise charged with
notice or inquiry notice, affecting the Leased Premises.
B. COMPLIANCE. 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
Airport Lease Agreement Dark Flicks Transport, LLC - Page 14
of normal take -off and landing procedures from the Airport.
VII. WEIGHT LIMIT OF AIRCRAFT
A. RUNWAY Smmmm AND TAXIWAYS. Lessee shall limit all aeronautical activity,
including without limitation, landing, take -off and taxiing, to aircraft having an actual
weight, including the weight of its fuel, of thirty thousand (30,000) pounds or less, unless
and 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. Violation of the provisions of this section
on two or more occasions during the Term shall be sufficient to cause (i) the immediate
termination of this Lease Agreement, without opportunity to cure by Lessee; (ii) shall
otherwise constitute a default hereunder wherein Lessor may resort to all other remedies
provided in this Lease Agreement; and (iii) without limiting the provisions of Section
V.13.11., subject Lessee to liability for any damages to the Airport that might result.
Nothing contained herein shall be construed as creating any obligation on the part of Lessor
to improve or modify any part of the Airport.
VIII. LEASEHOLD IMPROVEMENTS
A. ADDITIONAL CONSTRUCTION OR IMPROVEMENTS. In addition to the
Lessee Improvements, ,
p roveme nt s su bj ect to the terms of this Article VIII, Lessee may construct upon
the Leased Premises, at its own cost and expense, buildings, hangars and structures, that
Lessor and Lessee mutually agree in their discretion, are necessary for use in connection
with the operations authorized by this Lease Agreement ( "Additional Improvements "); pro-
vided however, Lessee shall comply with all of the requirements of this Article VIII.
B. RE' I l "fl LEASE 1MP ) � ; "15. Before commencing
construction activities related to the Lessee Improvements and/or the Additional
Improvements upon the Leased Premises (the Additional Improvements and the Lessee
Improvements are collectively referred to in this Lease Agreement as the "Lease
Improvements "), Lessee shall submit to Lessor:
1. Documentation, specifications, or design work, prepared by an architect
and/or engineer selected by Lessee which shall be reviewed and approved by
the Lessor, which shall establish that the improvements to be built or
constructed upon the Leased Premises and Public Area, if applicable, 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.
Airport Lease Agreement Mark Hicks Transport, LLC - Page 15
2. All plans and specifications showing the location upon the Leased Premises
and Public Area, if applicable, 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 Public Area, if applicable, and the estimated
costs of such construction. Approval by the Lessor of construction in conformity with the
terms of this Lease Agreement shall not be unreasonably withheld or delayed.
B.1. CONSTRUCTION OF LEASE IMPROVEMENTS.
1, Construction and modification of the Lease Improvements shall be
performed in a good and workmanlike manner and in compliance with all
applicable building codes, rules, standards, zoning and other ordinances and
all state and federal standards (including, without limitation, Title III of the
Americans With Disability Act of 1990, any state statutes, governing
handicapped access or architectural barriers, and all rules, regulations and
guidelines promulgated under such laws, as amended from time to time).
2. Without limiting the provisions of Section V.B.11., Lessee shall promptly
pay and discharge all costs, expenses, claims for damages or injury
(including without limitation claims for personal injury or death, or property
damage or destruction, or economic loss), liens and any and all other
liabilities and obligations which arise in connection with such construction.
3. Lessee shall cause each contractor performing any work or otherwise
occupying the Leased Premises or Public Area and/or Airport related to the
Lease Improvements or pursuant to the authority provided to Lessee
hereunder, to indemnify the Lessor and its officers, agents, elected officials
and employees to the same extent provided by Lessee to Lessor in Section
V.B.1 L.
4. Lessee shall properly and timely submit to the FAA, TxDOT, and any other
governmental entity or agency having jurisdiction regarding the Airport, a
Notice of Proposed Construction and any and all other documents or
materials as may be required, when and as required.
5. Without limiting the rights to Lessor provided in Section V.D., Lessor has
the right and is authorized by Lessee at all times during any construction
project to enter upon the Leased Premises to observe the performance of
such construction. Exercise of Lessor's rights hereunder shall be conducted
with due regard for the construction and business being conducted on the
Leased Premises, and shall not unreasonably interfere with such activities.
Nothing contained herein shall be construed as an obligation, of any kind or
Airport Lease Agreement Mark hicks Transport, LLC - gage 16
type, on the part of Lessor related to the construction activities and /or to
assure Lessee's compliance with the provisions of this Lease Agreement.
& No later than thirty (30) days after completion of the Lease Improvements,
Lessee shall submit to Lessor detailed as-built plans of the Lease
Improvements and documentary evidence acceptable to Lessor evidencing
the total cost to construct the Lease Improvements ( "Cost to Construct Lease
Improvements ").
7, No improvements to the Leased Premises, including without limitation, the
Lease Improvements, may be removed from the Leased Premises during the
Term hereof, unless otherwise specifically authorized herein.
8. Lessee shall cause the general contractor to obtain (i) payment bonds for
construction contracts greater than Fifty Thousand and no /100 Dollars
($50,000); and (ii) payment and performance bonds for construction
contracts greater than One Hundred Thousand and no /100 Dollars
($100,000), for each construction activity on the Leased Premises and Public
Area, if applicable, each naming the Lessor as an Additional Obligee.
Lessee shall furnish such bonds to Lessor prior to any work on the Leased
Premises or Public Area, if applicable. Additionally, any and all insurance
provided by the general contractor to Lessee shall name the Lessor as an
Additional Insured and/or Loss Payee, as applicable, and provide the
following coverages, at a minimum:
• Commercial General Liability - $1,000,000 per occurrence and $2,000,000 aggregate
• Business Automobile Liability - $500,000 per occurrence and $1,000,000 aggregate
• Workers' Compensation — Statutory Limits
• Builder's Risk (if applicable) —100% of the completed value
�Www ERSHIP OF IMPROVEMENTS. Except as otherwise provided in this Lease
C. OWN ..........._.
Agreement, the improvements now located, or constructed or to be constructed upon the
Leased Premises by Lessee (including without limitation, the Lease Improvements), but
excluding the Lessor Improvements, if any, shall remain the property of Lessee during the
Lease Term subject to the following conditions, terms and provisions:
L Upon the termination of this Agreement, whether by expiration of the Term
hereof or by reason of default on the part of Lessee, or for any other reason
whatsoever, the improvements (including without limitation, the Lease
Improvements), and all parts thereof, shall merge with the title of, or be
otherwise considered and deemed a part of the real property, free and clear
of any claim of Lessee and all persons or entities claiming under or through
Lessee (including, without limitation, any holder of a leasehold mortgage),
and shall become the property of Lessor; provided, however:
t
(i) if Lessee is not then in default hereunder, Lessee shall have the right to
remove all personal property and trade fixtures owned by Lessee from the
Leased Premises, but Lessee shall be required to repair any damage to the
Leased Premises caused by such removal in a good and workmanlike
manner and at Lessee's sole cost and expense; and
(ii) Upon such expiration or earlier termination, Lessee shall deliver the
Leased Premises to Lessor in good condition, reasonable wear and tear
excepted, and shall, at Lessor's request, execute a recordable instrument
evidencing the termination of this Agreement, expressly stating the
termination or expiration date thereof.
2. The Lessor Improvements, if any, shall remain the property of Lessor at all
times during and after the expiration or earlier termination of this Lease
Agreement.
3. Nothing contained herein shall be construed to limit or prohibit Lessor and
Lessee from mutually agreeing to either (i) amend or modify this Lease
Agreement or, (ii) enter into a new agreement to supersede and replace this
Lease Agreement, which may, among other things, effectively extend or
otherwise defer the transfer of title and ownership of the Lease
Improvements to Lessor as provided for in this Section VIII.C., prior to the
expiration of this Lease Agreement. However, nothing contained herein
shall be deemed or construed to require any amendment or modification of
this Lease or the entering into of a new lease agreement. Any such action
shall be at the sole and absolute discretion of Lessor and Lessee.
IX. COLLATERAL ASSIGNMENT
A. CONSENT TO ENCUMBER. Except as otherwise authorized herein, including
but not limited to IX.B. below, Lessee shall not collaterally assign this Lease or otherwise
encumber the estate created by this Lease Agreement without the written consent of
Lessor, which such consent shall be at Lessor's sole discretion. As conditions to such
consent, Lessor may require from Lessee and /or the Secured Party (herein so called) any
commitment, condition or requirement deemed necessary or advisable by Lessor,
including without limitation, provision for:
1. Express agreement that the Lessee shall in no way be released from any of
its obligations under this Lease Agreement, including without limitation,
the obligation to pay rent;
2. The Secured Party to promptly provide Lessor notice of any default by
Lessee in any obligation to Secured Party;
3. The Secured Party to provide notice to Lessor at least fifteen (15) days
prior to (i) accelerating any indebtedness owed by Lessee to Secured
Airport Lease Agreement Mark Hicks Transport, LLC - Page 18
Party; (ii) initiation of any foreclosure proceedings; and /or (iii) any other
actions to enforce any financial obligation of Lessee to Secured Party.
B. USE OF LOAN PROCEEDS,.
1. Lessee may borrow funds in which this Lease Agreement or the estate
created by this Lease Agreement are utilized as security or collateral, in
whole or in part, so long as the borrowed funds are used only for (i) the
construction of the Lease Improvements, as described in Section II.D. and
Article VIII hereof; (ii) acquisition of the leasehold estate created by this
Lease; or (iii) any other purpose which may be approved from time to time
by Lessor, in writing, in its sole discretion.
C.LIEN. No lien contemplated by this Article IX shall constitute a lien on Lessor's fee
title. Any indebtedness secured by a lien against or on the estate created by this Lease
Agreement or this Lease shall at all times be and remain inferior and subordinate to
conditions, covenants and obligations of this Lease Agreement and to all of Lessor's
rights under this Lease Agreement.
X. RIGHT OF EASEMENT
Lessor shall have the right to establish easements, at no cost to Lessor, upon the
Leased Premises for the purpose of (i) providing underground utility services to, from or
across the Airport property; or (ii) for the construction of public facilities and /or
infrastructure on the Airport. However, any such easements shall not interfere with
Lessee's use of the Leased Premises and Lessor shall restore the Leased Premises to as
close to its 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 within the easement upon the Leased Premises shall be completed within a
commercially reasonable time.
XI. ASSIGNMENT OF LEASE
Lessee expressly covenants that it (i) will not assign this Lease Agreement; (ii) convey
more than fifty percent (50 %) of the voting interest in its business or entity as of the
Effective Date of this Lease Agreement, through the sale of stock or otherwise; or (iii)
transfer, license, or sublet the whole or any part of the Leased Premises for any purpose,
except for rental of hangar or office space or tie -down space for storage of aircraft only,
without the prior written consent of Lessor. Lessor agrees that it will not unreasonably
withhold or delay its approval of such sale, sublease, transfer, license, or assignment of the
facilities for Airport related purposes. The provisions of this Lease Agreement shall remain
binding upon the Lessee and the sublessees and assignees, if any, of Lessee.
XIL C.."ASUALTY LOSS /CONDh,'MNATION
A CASLCAI "FY /'1`0TAL OR PARTIAL DESTRUCTION, In the event the Leased
Airport Lease Agreement Mark Hicks Transport, LLC - Page 1.9
Premises, or any improvements located thereon, are damaged by casualty, regardless of the
extent of the damage or destruction or whether insurance proceeds, if any, are sufficient,
Lessee shall, at its sole cost, risk and expense, promptly commence within six (6) months
after such casualty, and thereafter complete with diligence, the restoration, repair and/or
replacement of any such improvements to substantially the same condition as they existed
prior to the casualty loss, conditioned upon the following provisions:
1. Any and all activities related to the restoration, repair and replacement of the
damaged improvements, shall be subject to (i) Lessor's prior approval, as
provided in Section II.D. and Article VIII, as applicable to the
improvement affected by casualty; and (ii) the provisions set forth in this
Section XII.A.
2. Lessor, as loss payee under the all risk property insurance coverage required
by this Lease Agreement, shall be entitled to approve disbursements of the
insurance proceeds as restoration, repair and replacement activities are
completed by Lessee, such approval not to be unreasonably withheld or
delayed.
1 Lessee shall take and complete whatever actions are necessary, if applicable,
to obtain disbursement authority of insurance proceeds from any secured
party possessing a lien on the leasehold estate created by this Lease
Agreement.
4. In the event Lessee fails to promptly commence restoration, repair and/or
replacement of the damaged improvements in conformance with the
provisions hereof, Lessee shall be in default under this Lease Agreement, in
which event Lessor may seek any remedies available hereunder, and Lessee
shall provide such endorsements or take any other actions necessary,
including without limitation, any action required of any secured party, to
cause all or any remaining portion of the insurance proceeds payable due to
such damage or casualty loss to be paid to Lessor.
B. TOTAL OR PARTIAL CONDEMNATION.
1. If the Leased Premises or any part of them are taken by condemnation as a
result of any action or proceeding in eminent domain, or are transferred in
lieu of condemnation to any authority entitled to exercise the power of
eminent domain, this Article governs Lessor's and Lessee's interest in the
award or consideration for the transfer and the affect of the taking or transfer
of this Lease Agreement.
2. In the event the entire Leased Premises are taken or transferred as described
in Section XII.B.1., above, this Lease Agreement and all the rights, titles
and interest under it will cease on the date that title to the Leased Premises
vests in the condemning authority. If such taking or acquisition occurs
Airport Lease Agreement Mark Hicks Transport, LLC - Page 20
during the first twenty (20) years of the Lease Term, then all parties shall be
free to make a claim against the condemning authority for compensation or
damages for the injuries and loss sustained by them as a result of the taking
or acquisition. During the first twenty (20) years of the Lease Term, Lessee
may recover from the condemning authority or from the Lessor (if included
within Lessor's award), that portion of any award attributable to the value of
the Lessee Improvements, including any Additional Improvements,
constructed by Tenant. If such taking or acquisition occurs after the first
twenty (20) years of the Lease Term, then all proceeds of the condemnation
shall be the property of Lessor.
3. If only part of the Leased Premises is taken or transferred, as described in
Section XII.13.1., above, this Lease Agreement shall terminate if, in Lessee's
reasonable judgment, the remainder of the Leased Premises is in such a
location, or is in such form, shape or reduced size, that Lessee's operations
cannot be effectively and practicably operated upon the remaining portion of
the Leased Premises. In such event, this Lease Agreement and all rights,
title and interest under it will cease on the date that the title to the portion of
the Leased Premises taken or transferred vests in the condemning authority.
If such taking or acquisition occurs during the first twenty (20) years of the
Lease Term, then all parties shall be free to make a claim against the
condemning authority for compensation or damages for the injuries and loss
sustained by them as a result of the taking or acquisition. During the first
twenty (20) years of the Lease Term, Lessee may recover from the
condemning authority or from the Lessor (if included within Lessor's
award), that portion of any award attributable to the value of the Lessee
Improvements, including any Additional Improvements, constructed by
Tenant. If such taking or acquisition occurs after the first twenty (20) years
of the Lease Term, then the proceeds of the condemnation shall be the
property of Lessor.
4. In the event part of the Leased Premises is taken or transferred as described in
Section XII.B.1., above, and, in Lessee's reasonable judgment, the remainder
of the Leased Premises is in such a location and in such form, shape or size,
that Lessee's operations may be effectively and practicably operated on the
remaining portion of the Leased Premises, this Lease shall terminate with the
respect to the portion of the Leased Premises taken or transferred as of the
date title to such portion vests in the condemning authority, but shall continue
in full force with respect to the portion of the Leased Premises not taken or
transferred. In such event, as of the date that title to the Leased Premises
vests in the condemning authority, the Original Rent due hereunder shall be
reduced by multiplying the Original Rent then due by the ratio of the square
footage of the Leased Premises after the taking divided by the square footage
of the Leased Premises before the taking.
5. Nothing contained in this Article XII shall be construed to prohibit Lessor
Airport Lease Agreement Mark hicks Transport, LLC: - Page 21
from voluntarily conveying all or part of the Leased Premises to any party
with condemning authority under state or federal laws, however, any such
voluntary conveyance shall be treated as a taking within the meaning of this
Article XII.
6. Notwithstanding the above, in the event the condemning authority, as
described in Section XII.13.1., above, is the Lessor, all of the proceeds of the
condemnation attributable to the Leased Premises shall be the property of
Lessee.
XIII. INSURANCE
A. REQUIRED INSURANCE. Regardless of the activities contemplated under this
Lease Agreement, Lessee shall maintain continuously in effect at all times during the term
of this Lease Agreement, at Lessee's sole expense, the following minimum insurance
coverage:
1, Commercial General Liability covering the Lessee, 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 in the opinion of Lessor, coverage for:
products /completed operations; explosion, collapse and underground
property damage; and environmental impairment.
2. All risk property insurance on a one - hundred percent (100 %) replacement
cost basis covering loss or damage to all facilities and improvements
located on the Leased Premises, either as a part of this Lease Agreement or
erected by the Lessee subsequent to this Lease Agreement. Under no
circumstances shall the Lessor be liable for any damages to fixtures,
merchandise or other personal property of the Lessee or its sub - lessees.
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 coverage, the
following insurance is required if, in the opinion of Lessor, the activity or exposure exists or
is contemplated:
L Aircraft Fuel /Oil Storage and Dispensing — Comprehensive Commercial
General Liability shall include coverage or separate coverage for
Airport Lease Agreement Mark Hicks Transport, LLC - Page 22
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 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 coverage shall comply with the
following requirements:
All liability policies shall be endorsed to include the City of Denton, and its
officers and employees as an Additional Insured. All all -risk property
policies shall be endorsed to name the City of Denton as a loss payee. All
required insurance policies shall 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.
Airport Lease Agreement Mark Hicks Transport, LLC - Page 23
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 to, with 60 days notice, reasonably adjust or increase the liability
insurance amounts required of the Lessee, and to require any additional rider,
endorsement, provisions, or certificates of insurance, and Lessee hereby
agrees to provide any such insurance requirements as may be required by
Lessor.
XIV. DEFAULT BY LESSEE AND LESSOR
A. l.Vl ' TS OF DEFAULT Ol° 'L l SSI, t�. The term "Event of Default ", as used
herein, shall mean the occurrence �or__._.
of any one more of the following events:
1. Failure of Lessee (i) to pay any installment of rent or any other sum
payable to Lessor hereunder; or (ii) to pay or cause to be paid ad valorem
taxes, utilities or insurance premiums, or any other payment which Lessee
is to make under this Lease Agreement, on the date that same is due and
such failure shall continue for a period of ten (10) days after Lessee
receives written notice thereof from Lessor. Notwithstanding anything to
the contrary set forth in this XIV.A.1., Lessor shall not be required to
provide Lessee with any additional notices for monetary defaults if during
any twelve (12) month period during the term of this Lease, Tenant has
failed to make payment on or before the tenth (10) day of each month after
the date on which such payment is due;
2. Lessee shall become insolvent, apply for or consent to the appointment of a
receiver, trustee, custodian, intervenor, liquidator or other similar official of
itself, the Leased Premises, or all or substantial part of Lessee's assets,
make a general assignment for the benefit of creditors, or commence a
voluntary case or action under any applicable bankruptcy, rehabilitation,
insolvency or other similar law now or hereafter in effect;
3. A court having jurisdiction of or over the Leased Premises or Lessee shall
enter a decree or order for relief in respect of Lessee in any case or
proceeding under any applicable bankruptcy, rehabilitation, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
Airport Lease Agreement Dark Hicks Transport, LLC - Page 24
trustee, custodian, intervenor, liquidator or other similar official for Lessee,
the Leased Premises, or all or a substantial part of Lessee's assets, or
ordering the winding up or liquidation of Lessee's affairs and such decree
or order shall remain unstayed and in effect for a period of sixty (60)
consecutive days;
4. Lessee shall make a transfer in fraud of creditors;
5. Abandonment or cessation of use of the Leased Premises for the purposes
leased by Lessee, as provided herein, for a period of thirty (30) consecutive
days, provided that the Lessor has sent at least thirty (30) days prior written
notice to the Lessee of such abandonment, and Lessee has failed to reenter
the Leased Premises and begin use of the Leased Premises for the purposed
leased by Lessee, as provided herein; or
6. Lessee fails to punctually and properly perform, keep or observe any of the
terms, covenants, agreements or conditions herein contained and such
failure shall not be cured within thirty (30) days after written notice thereof
to Lessee, unless a shorter notice period, or no requirement of notice, is
otherwise specifically prescribed herein; and provided, however, that if the
nature of Tenant's obligations is such that more than thirty (30) days or
more than such shorter period is reasonably required for performance, then
Lessee shall not be in default if Lessee commences performance within
such thirty (30) days or such shorter period, and thereafter diligently
prosecutes the same to completion.
B. TERMINATION AND REMEDIES ON DEFAULT BY LESSEE.
1. In the event of an Event of Default by Lessee, if such Event of Default
shall be continuing after the applicable notice of default period provided in
this Lease Agreement, if applicable, Lessor may declare this Lease
Agreement, and all rights and interests created by it, terminated. If Lessee
elects to terminate, this Lease Agreement will cease as if the day of
Lessee's election were the day originally fixed in the Lease Agreement for
its expiration. Lessor, at its option, may resume possession of the Leased
Premises and re -let them for the remainder of the Term at the rent
obtainable for the account of Lessee, who shall make good any deficiency
therein. Lessor shall take all reasonable efforts to mitigate its damages in
the Event of Default by Lessee.
2. Any termination of this Lease Agreement shall not relieve Lessee from the
obligation of paying any sum or sums due and payable to Lessor under the
Lease Agreement at the time of termination and /or any claim for damages
then or previously accruing against Lessee under this Lease Agreement.
Any such termination shall not prevent Lessor from enforcing the payment
of any such sum or sums or claim for damages by any remedy provided by
Airport Lease Agreement Mark Hicks Transport, LLC - Page 25
law, contract, equity, or otherwise, including without limitation,
recovering damages from Lessee arising from or related to any default
under this Lease Agreement. All Lessor's rights, options and remedies
under this Lease Agreement shall be construed to be cumulative, and no
one of them is exclusive of the other. Lessor may pursue any or all such
remedies or any other remedy or relief provided by law, contract, equity or
otherwise, whether or not expressly stated in this Lease Agreement.
1 In the event of an Event of Default by Lessee, Lessor may, but shall not be
required, remedy the Event of Default by any necessary action and, in
connection with such remedy, may pay expenses and costs related to such
curative efforts. In such event, Lessee shall pay Lessor for all sums
expended or obligations incurred by Lessor in connection with curing
Lessee's default.
4. Lessor and Lessee agree that, for the purposes of posting notice prescribed
by Section 93.002 (f) of the Texas Property Code, the front door of the
Leased Premises is the entry doorway on the east side of the hangar to be
constructed at 4901 Lockheed Lane, Denton Enterprise Airport.
C. FV1; NTS OF DEF L.I"LT OF 1 1 SS0R. The term "Event of Default ", as used
herein, shall mean that Lessor defaults in performing any term, agreement or covenant
that Lessor is required to perform under the Lease Agreement, and such default shall not
be cured within ninety (90) days after written notice thereof to Lessor describing with
specificity the claim of default, along with all required actions of Lessor to cure such
default. It is expressly agreed and stipulated that until such notice of default is provided,
and such cure period has expired, no such act or event shall be deemed an Event of
Default by Lessor hereunder.
D. REMEDIES ON DEFAULT BY LESSOR. If Lessor defaults in performing any
term, agreement or covenant that Lessor is required to perform under this Lease
Agreement, Lessee may, after notice to Lessor, as provided in Section XIV.C., remedy
the Event of Default by any necessary action and, in connection with such remedy, may
pay expenses. Lessor shall pay Lessee all sums reasonably expended or reasonable
obligations incurred by Lessee in connection with remedying Lessee's default, so long as
such claimed default is an Event of Default hereunder. Lessee may, if not so reimbursed,
deduct the costs and expenses from rent subsequently due under this Lease Agreement
and /or may terminate this lease at Lessee sole option.
XV. ASSUMPTION BY UNITED STATES GOVERNMENT
Lessee, subject to the terms hereof, may terminate this Lease Agreement and its
obligations hereunder, by providing thirty (30) days written notice, upon or within thirty
(30) days after the assumption or recapture by the United States Government, or any
authorized agency thereof, of the operation of the Airport and the Leased Premises, to the
resulting extent that the uses of the Leased Premises, as prescribed in this Lease Agreement,
Airport Lease Agreement Mark Hicks Transport, LLC - Page 26
cannot effectively and practicably be operated by Lessee, in the reasonable judgment of
Lessor. If this Lease Agreement is terminated by Lessor during the first twenty (20) years
of the Lease Term, then Lessor shall reimburse Lessee for the then unamortized value of the
Lessee Improvements, including any Additional Improvements, based on a twenty (20) year
straight -line depreciation from the Effective Date until the date of termination of this Lease
Agreement. The reimbursement provisions of this paragraph do not apply if the Leased
Premises and/or Airport are (i) leased pursuant to the United States or agency thereof
pursuant to paragraph I.F.3. or (ii) operated, managed, and /or leased by the United States or
agency thereof in the event of a declared national or regional emergency.
XVI. 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 duly authorized and signed by both parties.
B. BINDING EFFECT. All covenants, stipulations and agreements herein shall run
with the land and 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. Notices or other communications required or permitted to be given under
this Lease Agreement must be (i) given in writing and personally delivered or mailed by
prepaid certified or registered mail, return receipt requested; or (ii) transmitted by telephonic
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
With copies to:
Airport Manager
5000 Airport Road
Denton, Texas 76207
Fax No. 940.
Airport Lease Agreement Mark Hicks 'transport, LLC - Page 27
City Attorney
215 E. McKinney
Denton, Texas 76201
Fax No. 940.3 82.7923
2. If to Lessee, addressed to:
Mark Hicks
4901 Lockheed Lane
Denton, Texas 76207
With Copies to:
R. Scott Alagood
Alagood Cartwright Burke PC
319 W. Oak Street
Denton, Texas 76201
Any notice provided herein shall be deemed to have been given (whether actually
received or not) on the day it is personally delivered as aforesaid, or, if mailed, on the third
day after it is mailed as aforesaid, or, if transmitted by telephonic facsimile, on the day such
notice is transmitted, whichever is earliest to occur. Any party may change its address for
the purposes of this Lease Agreement by giving notice of such change to the other parties
pursuant to this Section XVI.D.
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 ACTION RELATED TO THIS LEASE AGREEMENT SHALL BE
SOLELY IN 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.
m
H. NO AGENCY. During all times that this Lease Agreement is in effect, the parties
.,
agree that Lessee shall not in any event be deemed an agent or employee of the Lessor, nor
shall this Lease Agreement be construed to create or constitute a joint enterprise.
I. 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
Airport Lease Agreement Mark Hicks Transport, LLC - Page 28
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. In the event either party hereto
is not able to perform under this Lease Agreement due to an alleged event of force majeure,
as set forth herein, such party shall provide notice to the other party, on or before five (5)
calendar days after the occurrence of such event (i) specifically describing such force
majeure event; (ii) describing with specificity the acts to be taken by the party claiming
force majeure to remedy the force majeure event; and (iii) the estimated time to remedy the
force majeure event. In the event the notice as set forth herein is not provided it shall be
deemed for all purposes that no such force majeure event has occurred.
J. RELEASE OF LESSOR. If Lessor sells or transfers all or part of the Leased
Premises and as a part of the transaction assigns its interests as Lessor in this Lease
Agreement, then as of the effective date of the sale, assignment or transfer, Lessor shall have
no further liability under this Lease to Lessee, except with respect to liability matters that
have accrued and are unsatisfied as of such date. Underlying this release is the parties'
intent that Lessor's covenants and obligations, express and implied, under this Lease
Agreement will bind Lessor and its successors and assigns only during and in respect of
their successive periods of ownership of the underlying fee estate of the Leased Premises.
K. LESSEE REFERENCES. In the event reasonably requested by Lessor, Lessee
shall deliver, from time to time as requested, credit and banking references as Lessor may
reasonably request, during the term of this Lease Agreement, but not more than one during
any lease year.
L. MEMORANDUM OF LEASE. Upon request of either party hereto, the parties
shall execute a Memorandum of Lease for the purpose of imparting to the public notice of
the existence of this Lease Agreement, and /or its subsequent amendment, modification or
early termination, to be filed in the Real Property Records of Denton County, Texas.
M. AIRPORT SPONSOR. Notwithstanding any provision contained herein to the
contrary, Lessor may limit or temporarily obstruct access to the Leased Premises and/or
Public Areas of the Airport in connection with or related to events occurring at the Airport.
Lessee stipulates that Lessor shall have such right to limit or temporarily obstruct such
access and hereby releases Lessor, its officers, elected officials, agents and employees from
any losses, damages or claims of any kind or type that Lessee may have related to such
limited or obstructed access. Unless this Lease Agreement otherwise allows such
obstruction or Lessor and Lessee otherwise agree, Lessor shall not completely obstruct
access to the Leased Premises for a period in excess of twenty -four (24) consecutive hours
related to such special events.
N. SUBLESSEES AND ASSIGNEES. In the event this Lease Agreement provides
applicability of any of its provisions to sub - lessees or assigns, such provision shall be
deemed to mean solely the sub - lessees or assignees of Lessee, as may be permitted by
Lessor.
Airport Lease Agreement Mark hicks Transport, LLC - Page 29
O. TIME OF ESSENCE. It is expressly agreed by Lessor and Lessee that time is of the
essence with respect to this Lease Agreement.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the
Effective Date first above written.
CITY OF DENTON, TEXAS, LESSOR
a �
BY
GL.OI t. F (_. CAMPBELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
w
TITLE: MM
Airport Lease Agreement Mark Hicks Transport, LLC - Page 30
ACKNOWLEDGMENTS
THE STATE OF TEXAS §
COUNTY OF DENTON
This instrument was acknowledged before me on th . "lacy �; . �, 21)15_, by
George C. Campbell, City Manager of the City of Dc.om,`T s, on bebal`1' of said
municipality.
C W� y p p p ry
Al a`. P "'�Mtl"u�t."VWW II�n.�Od �VI4�, "a�i�V a id 8rn,i i�'u
C V "W"niWw uW n Exph i' i.a
OWWVY0311�91 1 9, 2iW'1 5
w °1c 1.l.,lt„ 1AIE01'r ]1AAS
SEE
THE STATE OF TEXAS §
COUNTY OF DENTON §
�sk instrument was acknowledged before me on d'ic�� ., day rid , 12015 by
�`-
11'1' TEXAS
KATHY KAPIAN -SMITH
MY COMMISSION EXPIRES
October 27, 2018
Airport Lease Agreement Mark Hicks Transport, LLC - Page 31