2004-023O INANCE NO. d F¢-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS TERMINATING THAT CERTAIN
AIP, PORT LEASE DATED MARCH 1, 1999, BY AND BETWEEN THE CITY OF DENTON,
TEXAS AND WAYNE ALLEN CONSTRUCTION, INC.; AUTHORIZING THE CITY
ATTORNEY OR HIS DESIGNEE TO TAKE APPROPRIATE LEGAL ACTION, IF
NECESSARY, TO EFFECTUATE THE TERMINATION; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Denton, Texas (the "City") and Wayne Allen Construction, Inc.
("Allen") have entered into that certain Airport Lease Agreement dated March 1, 1999 (the
"Lease Agreement") whereby the City leased to Allen for aviation purposes an approximate
11,000 square feet of land described as Lot lA (called "Lot IA") and an approximate 8,800
square feet of land described as Lot lB (called "Lot lB"), which are more particularly described
in the Lease Agreement which is incorporated herein by reference (the "Leased Property"); and
WHEREAS, pursuant to the Lease Agreement Allen has the duty and obligation to
construct on Lot A a hangar/office facility of not less than 3,500 square feet, including related
improvements, and on Lot B the duty and obligation to construct a hangar/office facility of not
less than 2,500 square feet, including related improvements (the "Improvements"); and
WHEREAS, Allen's obligation to construct the Improvements is a material obligation of
Allen under the Lease Agreement; and
WHEREAS, on or about February 26, 2001 the City gave Allen notice that an
unreasonable period of time had elapsed without construction of the Improvements on the
Leased Property, a copy of which is attached hereto as Exhibit "A" and incorporated herein by
reference (the "February 26, 2001 Notice"); and
WHEREAS, in the February 26, 2001 Notice the City requested that Allen obtain a
building permit within 45 days of the February 26, 2001 Notice and complete the Improvements
no later than eight months after March 1, 2001, which was the two-year anniversary of the Lease
Agreement; and
WHEREAS, on or about September 10, 2001 the City gave Allen a notice of default
under the Lease Agreement stating that the Lease Agreement would be terminated if construction
was not completed within 30 days of the notice, a copy of said notice being attached hereto as
Exhibit "B" and incorporated herein by reference (the "September 10, 2001 Notice); and
WHEREAS, despite the February 26, 2001 Notice and the September 10, 2001 Notice
Allen failed or refused to obtain a building permit or construct the Improvements; and
WHEREAS, on or about November 20, 2003 the City gave Allen another notice of
default for failing to construct the Improvements on the Leased Property, a copy which is
attached hereto as Exhibit "C" and incorporated herein by reference (the "November 20, 2003
Notice); and
S:\Our Documents\Ordinances\03\Termination of Airport Lease-Wayne Allen.doc
WHEREAS, the address for Allen on the November 20, 2003 Notice was the address for
Allen contained in the Lease Agreement, but it was returned because Allen's address had
changed; therefore the City re-sent the November 20, 2003 Notice to Allen's current address on
December 4, 2003 which was received by Allen on December 5, 2003; and
WHEREAS, the November 20, 2003 Notice informs Allen that if the Improvements are
not constructed with 30 days of the notice the City will terminate the Lease Agreement; and
WHEREAS, to date, which is over 30 days since the November 20, 2003 Notice was
received by Allen, Allen has failed to construct any of the Improvements on the Leased Property;
and
WHEREAS, the City Council of the City of Denton hereby finds that the more than 4 ½
year delay to construct the Improvements is an unreasonable period time for construction of the
Improvements and is a material breach of the Lease Agreement; NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. The City Council hereby terminates the Lease Agreement due to
nonperformance of a material obligation of Allen under the Lease Agreement. Should legal
action be required to effectuate the termination of the Lease Agreement and/or if it should
become necessary to file legal action to remove Allen from the Leased Property or to determine
the rights and obligations of the parties under the Lease Agreement, the City Attorney, or his
designee is hereby authorized to file such legal actions or lawsuits on behalf of the City.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the~__..c[ay of ~tT~, 2004.
F~O~, MAY~//
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
AP~;;EDf'A,~T O- LE G~F ORM:
BY:
( / Page 2
DENTON
Exhibit A
DENTON MUNICIPAL AIRPORT, TERMINAL BUILDING, DENTON, TX 76207-4504
(940) 349-7736 - (940) 349-7702 - Fax (940) 349-7289
February26,2001
Mr. Wayne Allen, President
Wayne Allen Construction, Inc.
100 North Locust, Suite 1
Denton, TX 76201
FEB 2 a '
LEGAL ~)~'
Airport Lease Agreement dated March 1, 2001 between the City of Denton, Texas and
Wayne Allen Construction, Inc., for Commercial Operations (the "Lease Agreement").
Dear Mr. Allen:
Under the terms of the Lease Agreement you are required to construct at a minimum a 3,500 square
foot hangar/office facility on Lot lA and a 2,500 square foot hangar/office facility on Lot lB of the
leased premises. We are approaching the second anniversary of the commencement of the Lease
Agreement and no substantial construction activity has been initiated as of the date of this letter. The
construction of these facilities is an integral part of the lease agreement. The Airport Advisory
Board believes that a two-year delay in construction is an unreasonable amount of time to delay the
proposed development of said lots.
This letter shall serve as written notification the Denton Municipal Airport is requestinglthat a
building permit be obtained for the construction of said facilities on Lot lA and lB within 45-days
of the receipt of this letter. Furthermore, it is requested that said development be completed or near
completion within eight months of the two-year anniversary, March 1,2001, of the lease agreement.
Should you have any questions concerning this request, please do not hesitate to contact me at 349-
7702.
Sincerely,
Mark Nelson
Airport Manager
PC:
Denton Airport Advisory Board
Jon Fortune, ACM, Public Safety and Transportation Operations
Ed Snyder, First Assistant City Attorney
"Dedz?ated to Qualil? Servt~e"
DENTON
Exhibit B
City Attorney's Office
City of Denton, Texas
215 East McKinney
Denton, Texas 76201
(940) 349-8333
Fax (940) 382-7923
September I 0, 2001
CERTII~IED MAIL RRR#7000 1530 0005 1310 4594
Wayne Allen
President
Wayne Allen Construction, Inc.
100 North Locust, Suite 1
Denton, Texas 76201
Airport Lease Agreement dated March 1, I999 between the City of Denton, Texas and Wayne
Allen Construction, Inc. (the "Lease Agreement")
Dear Mr. Allen:
On February 26, 2001 the City notified you in writing that you have failed to even commence
construction of the hanger/office facilities required by the Lease Agreement. You were asked to provide
the City in writing dates upon which you would begin and complete construction of the required
improvements. You have failed to respond. To date no construction has begun. I have tried on several
occasions to set up a meeting through your attorney, Ike Shupe, to discuss this issue. Each time he has
indicated that he would try and fred out when you would be available to meet. To date I have not
received any confirmations on whom you are willing to meet.
You are hereby given notice that you are in default of the Lease Agreement by failing to construct the
required improvements as provided in Article II D of the Lease Agreement. Should this default continue
for thirty days after your receipt of this notice then the City shall terminate the Lease Agreement.
Your prompt attention to this letter is r~quested. '~
, Very truly yours,
Deputy City Attorney
Jon Fortune, Assistant City Manager/Public Safety & Transportation Operations
Mark Nelson, Director of Airport & Transit Operations
Ike Shupe
S;\Our Documents\Correspondence\Ed Snyder\01\Wayne Allen-9-11-01.doc
"Dedt~ated to Quality Servt~e'
wwmcityq/denton, com
Exhibit C
City Attorney's Office
City of Denton, Texas
215 East McKinney
Denton, Texas 76201
(940) 349-8333
Fax (940) 382-7923
November 20, 2003
VIA CERTIFIED MAIL
RET[IRN RECEIPT REQUESTED #7003 1010 0004 2399 6522
AND FIRST CLASS MAIL
Wayne Allen, President
Wayne Allen Construction, Inc.
100 North Locust, Suite 1
Denton, Texas 76201
RE: Airport Lease Agreement dated March 1, 1999 between the City of Denton, Texas and
Wayne Allen Construction, In¢: (the "Lease Agreement")
Dear Mr. Allen:
On February 26, 2001 and September 10, 2001 the City gave you written notices that you
are in default under the Lease Agreement for failing to commence construction of the
hangar/office facilities required by the Lease Agreement. To date you have not performed any
construction activities for these required improvements even though you have had over 4 ½ years
to do so.
You are hereby given notice that you are in default of the Lease Agreement by failing to
construct the required improvements as provided in Article II D of the Lease Agreement. If this
default continues for thirty days after the receipt of this notice the City will terminate the Lease
Agreement.
Deputy City Attorney
C:
Jon Fortune, Assistant City Manager
Mark Nelson, Director of Airport & Transit Operations
S:\Our Documents\Correspondence\Letters\03\Allen Lease Default.doc
"Dedicated to Qualihj Seroice "