Res 131-2010 12/7/2010 RESOLUTION NO. 131-2010
Resolution Authorizing The City Manager To Execute An Airport
Facilities Lease and Fixed Base Operator's Agreement with
Piedmont Hawthorne Aviation, LLC, dba Landmark Aviation
WHEREAS, the City of Wichita Falls recognizes the need for a fixed base
operator (FBO) agreement at Wichita Falls Municipal Airport; and
WHEREAS, the City desires to enter into a 10-year agreement with the current
FBO, Piedmont Hawthorne Aviation, LLC, dba Landmark Aviation, for the lease of
3,650 square feet of office and lobby space for $30,132 annually, and hangar and bulk
fuel storage facilities for a fuel flowage fee of $.055 for each gallon of fuel sold by the
FBO; and
WHEREAS, the City Council finds that entry into this lease agreement is in the
best interest of the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The City Manager is authorized to execute the attached Airport Facilities Lease
and Fixed Base Operator's Agreement befinreen the City of Wichita Falls and
Piedmont Hawthorne Aviation, LLC dba Landmark Aviation, with exhibits and such
changes as are approved by the City Attorney.
PASSED AND APPROVED this the 7th day of December, 2010.
MAYOR
ATTEST:
ty Clerk
AIRPORT FACILITIES LEASE
AND FIXED BASE OPERATOR'S AGREEMENT
Between
City of Wichita Falls, Texas
and
Piedmont Hawthorne Aviation, LLC dba Landmark Aviation
Wichita Falls Municipal Airport
Wichita Falls, Texas
October 1, 2010
TABLE OF CONTENTS
RECITALS ................................................................................................................................................................... 1
1 . DEFINITIONS ........................................................................................................................................................1
1 .1 Airport ....................................................................................................................................................................1
1.2 Airport Administrator ............................................................................................................................................ 1
1.3 Agreement .............................................................................................................................................................. 1
1 .4 Premises .................................................................................................................................................................1
1.5 Administration BuildinQ ......................................................................................................................................... 2
1.6 FBO Premises .........................................................................................................................................................2
2. USE OF AIRPORT FACILITIES .........................................................................................................................2
2.1 Ouerational Ri ts ..................................................................................................................................................2
2.2 Administration Buildin�' Han�ars and Fuel Farm ..................................................................................................2
2.3 Substitute Space ..................................................................................................................................................... 3
2 .4 Ri t of Ing,ress and E r�ess .................................................................................................................................... 3
2 .5 Limitation on Uses .................................................................................................................................................. 3
2.6 Option for Additional Space ................................................................................................................................... 3
3 . OBLIGATIONS OF FBO ..................................................................................................................................... 3
3.1 Rentals and Charees ............................................................................................................................................... 3
3 .2 Terms and Conditions of Pa� .......................................................................................................................... 4
3 .3 Maintenance of Premises ........................................................................................................................................ 5
3.4 Liabilitv and Hazard Insurance ............................................................................................................................... 5
3.5 Indemnification of Citv ........................................................................................................................................... 7
3.6 Lessee's Other Obli at� ..................................................................................................................................... 7
3 .7 New Government Re lg,u ation ................................................................................................................................. 9
3 .8 Performance Bond ...................................................................................................................................................9
3.9 Costs of Operation ................................................................................................................................................... 9
4. OBLIGATIONS OF THE CITY ...........................................................................................................................9
4.1 Ouiet Enjovment .....................................................................................................................................................9
4.2 Maintenance ........................................................................................................................................................... 9
43 Utilities ..................................................................................................................................................................9
4.4 Snow Removal ......................................................................................................................................................10
5. TERM .................................................................................................................................................................... 10
5.1 Term ..................................................................................................................................................................... 10
5.2 Holding Over ........................................................................................................................................................10
6. TERMINATION, SURRENDER AND DAMAGES ......................................................................................... 10
6 .1 Termination bYFBO ............................................................................................................................................. 10
6 .2 Termination bYCitv .............................................................................................................................................. 11
6.3 Surrender of Possession ........................................................................................................................................ 12
6.4 Damage or Destruction of Premises ..................................................................................................................... 12
7. ASSIGNMENT AND SUBLETTING .................................................................................................................13
7 .1 Assi�nment and Sublettin� ................................................................................................................................... 13
7 .2 Successors to Citv ................................................................................................................................................. 13
73 Hangar Rentals ..................................................................................................................................................... 13
8 . OTHER AGREEMENTS ....................................................................................................................................13
8 .1 Compliance with Applicable Laws .......................................................................................................................14
8.2 Lease A�ement with Department of Defense ...................................................................................................14
8 .3 Agxeement Subordinate ........................................................................................................................................ 14
8 .4 Non-Discrimination .............................................................................................................................................. 14
8.5 Inspection bv Citv ................................................................................................................................................. 14
8 .6 Improvements on the Premises ............................................................................................................................. 14
8.7 Disadvantaeed Business Enterprises ....................................................................................................................15
8 .8 Condemnation .......................................................................................................................................................15
8 .9 Liens .....................................................................................................................................................................
8 .10 Force MaLure ..................................................................................................................................................... 15
8 .11 Grievance Procedure .......................................................................................................................................... 15
8 .12 Reserved Ri ts of City ......................................................................................................................................16
9 . MISCELLANEOUS PROVISIONS ...................................................................................................................16
9.1 Headines ...............................................................................................................................................................17
9 .2 Time of Essence ................................................................................................................................................... 17
9 .3 Attornevs' Fees ..................................................................................................................................................... 17
9 .4 Non-Waiver ..........................................................................................................................................................17
9.5 Limitation of Benefit ............................................................................................................................................17
9 .6 Severabilitv ...........................................................................................................................................................17
9.7 Effect of Agreement .............................................................................................................................................17
9.8 Notices ..................................................................................................................................................................17
9 .9 Governing Law and Venue ...................................................................................................................................18
9 .10 Entire Agreement .................................................................................................................................................18
9.11 Non-Liabilitv of City's A�ents and Emplovees ................................................................................................... 18
9 .12 Modification of Aga'eement ................................................................................................................................18
9.13 Relationship of Parties .........................................................................................................................................19
EXHIBIT A: Leased Office Premises
EXHIBIT B: Leased Hangar Areas
EXHIBIT C: SAFB Lease
AIRPORT FACILITIES LEASE
AND FIXED BASE OPERATOR'S AGREEMENT
Wichita Falls Municipal Airport
This Airport Facilities Lease and Fixed Base Operator's Agreement dated as of October 1, 2010, is between City of
Wichita Falls, Texas ("City"), and Piedmont Hawthorne Aviation, LLC dba Landmark Aviation, a limited liability
company organized under the laws of the State of Delaware, and having a principal address of 1500 Citywest Blvd,
Suite 600, Houston, TX 77042, ("FBO").
RECITALS
The parties recite and declare that:
A. City is the operator of the Wichita Falls Municipal Airport and owns certain buildings, structures and
other facilities on the property.
B. Aircraft refueling, aircraft storage and other services at the Airport are desirable for the proper
accommodation of general aviation aircraft, pilots and passengers arriving at and departing from the Airport.
C. City desires to make said services available at the Airport and the FBO is qualified, ready and able to
perform or see to the performance of said services.
D. In consideration of the foregoing and of the mutual covenants and agreements herein, the City is willing
to lease to the FBO a portion of the Airport premises, and grant the FBO certain non-exclusive rights and privileges.
1. DEFINITIONS
As used in this Agreement, defined words and terms shall have the following meanings:
1.1 "Airport" is the Wichita Falls Municipal Airport located approximately five miles north of downtown
Wichita Falls, Texas.
1.2 "Airport Administrator" is the director and manager of the Airport as may be designated from time to
time by the City.
1.3 "Agreement" is this Airport Facilities Lease and Fixed Base Operator's Agreement.
1.4 "Premises" is a collective term, which refers to the Administration Building, Hangars, Fuel Farm and
Parking Areas allocated to FBO hereunder.
1.5 "Administration Building" is the existing Administration Building at the Airport which houses the
general aviation terminal and Federal Aviation Administration o�ces.
1.6 "FBO Premises" consist of the exclusive use space, lobby and office space, leased to the FBO, as
described in subsection 2.2.1 of this Agreement, and as depicted on Exhibit A.
2. USE OF AIRPORT FACILITIES
2.1 Operational Ri ts. Subject to the terms and conditions of this Agreement, FBO is granted the right to
conduct and operate a fixed base operation at the Airport, and to use the Premises in conjunction with FBO activities
at the Airport.
2.2 Administration Buildin� . The City grants FBO use of the following space at the Airport:
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AGENDA ITEM NO. 86
2.2.1 exclusive use of the FBO Premises consisting of lobby and office space identified in Exhibit
A, consisting of approximately two thousand, twenty-five (2,025) square feet;
2.2.2 joint use of the lobby space identified in Exhibit A, consisting of approximately one
thousand six hundred twenty-five (1,625) square feet which has limited use by another tenant (presently a
government agency) that leases other space in the Administration Building
2.2.3 joint use with others of employee parking areas, roads and driveways useful in the conduct,
operation and maintenance of FBO's activities granted under this Agreement;
2.2.4 exclusive use of Hangars 1, 2, 3 and 4 and Ten (10) T-Hangar facilities identified in Exhibit
B consisting of the following:
Hangar 1— 170' wide by 105' deep for a total of 17,850 square feet
Hangar 2— 229' wide by 105' deep for a total of 24,045 square feet
Hangar 3— 125' wide by 120' deep for a total of 15,000 square feet
Hangar 4— 70' wide by 70' deep for a total of 4,900 square feet
T-hangars — 316.5' wide by 34.5' deep for a total of 10,919 square feet
2.2.5 exclusive use of the bulk fuel storage facilities consisting of two (2) -18,500 gallon and one
(1) — 10,000 gallon above ground fuel tanks with pumping equipment
2.2.6 exclusive use of six (6) customer parking spaces located on the public side of the
Administration Building
2.2.7 joint use with others of aircraft parking aprons, taxiways and runways
2.3 Substitute Space.
23.1 In the event that proper development or operation of the Airport requires that any part of the
FBO Premises be devoted to a different use, City shall have the right, upon three (3) months advance written notice
to FBO, and without cost or expense to FBO, to relocate all or a part of the FBO Premises. Said relocated FBO
Premises shall be of no less area, and to the extent practicable, as conveniently located with reference to and/or
within the FBO activities, and (b) relative to the substitute locations of the other classes of Airport tenants. All of
FBO's trade fixtures shall, without cost or expense to FBO, be relocated or replaced on said relocated Premises, and
this Agreement shall continue in effect to such relocated FBO Premises.
23.2 In the event the Ciry elects to expand or remodel any buildings on the Airport, or to reconfigure
Airport parking lots, it reserves the right without liability to it whatsoever, to relocate parking spaces and entrance
roads within such reorganized area.
2.4 Ri t of In�ess and Egress. FBO shall have to the fiu extent possible the full and free right of
ingress to and egress from the Premises for FBO, its employees, customers, guests and other invitees. T'he FBO
Premises are located in a Secured Area as defined by the Transportation Security Administration/Department of
Homeland Security. In the event that additional access restrictions are imposed, the City and FBO will attempt to
coordinate for accessibility as may be permitted. If no such resolution can be attained, this agreement may be
terminated be either pariy as so provided for in section 6.
2.5 Limitation on Uses. FBO's uses of the Airport authorized and granted in this Agreement shall be
limited to providing aircraft refueling, aircraft storage and other aviation related services. Any additional aviation
services including but not limited to maintenance and repair services, aircraft rentals, charters or taaci services shall
be approved by the City in writing prior to commencing such activities. The City reserves the right to amend
insurance requirements as provided for in section 3.4 based on such additional services. FBO shall not conduct or
operate non-aeronautical activities in the leased premises.
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AGENDA ITEM NO. 88
2.6 Option for Additional Space. The City grants the FBO an option to lease an approximately 1,050
additional square feet as identified in Exhibit A. The primary term of such option shall be three years from the date
of this agreement. There shall be no additional rent charged for such additional space. After three years, the City
reserves the right to lease said space to another entity, should one be interested.
3. OBLIGATIONS OF FBO
3.1 Rentals and Charees. FBO agrees to pay City rentals and charges for the use of the FBO Premises
and for services and privileges granted under this Agreement, according to the following schedule:
3.1.1 As floor space rental for exclusive use of FBO Premises identified in Paragraph 2.2.1 above,
a rental rate of $0.75 per square foot per month
3.1.2 As lobby space used jointly with another tenant of the administration building as identified in
Paragraph 2.2.2 above, a rental rate of $0.50 per square foot per month
3.1.3 As space rental for the exclusive use of customer parking spaces allocated to FBO under
paragraph 2.2.6 above, the sum of thirty dollars ($30.00) per month per space.
3.1.4 For use of the hangazs, pazking aprons, aircraft movement areas and fuel farm facilities, the
FBO agrees to pay a fuel flowage fee at the sum of $0.055 per gallon of aviation fuel sold by the FBO to all aircraft,
exclusive of that delivered by the FBO to regularly scheduled commercial aircraft operating under contract with the
City. Such sum shall increase to $0.06 per gallon effective October 1, 2016.
3.1.5 FBO agrees to pay the first $7,500 of repairs and maintenance costs to FBO Premises on a
per occurrence basis.
3.1.6 FBO agrees to pay for utility costs for FBO Premises as outlined in Section 4.3.
3.1.7 If any rental, fee or charge is not paid within the calendar month of the due date, FBO shall
pay a late charge equal to 1 U2% per month on the unpaid balance, accruing from the date due until paid.
3.2 Terms and Conditions of Pavment.
3.2.1 Space rental specified in subsections 3.1.1, 3.1.2 and 3.13 above shall be paid monthly in
advance on ar before the first business day of each calendar month during the term of this agreement.
3.2.2 On or before the twentieth (20�`) of each calendar month during the term the FBO shall remit
payment for the fuel flowage fees as specified in subsection 3.1.4 and submit to the City a detailed statement of sales
for the previous month.
3.2.3 City shall have the right at any reasonable time to examine all records maintained by FBO
under this Agreement and to have an audit prepared by an independent Certified Public Accountant. In the event that
there is a discrepancy representing an under payment by FBO in excess of 5% of gallons sold between FBO's
monthly statements, required by subsection 3.2.2 of this Agreement, and such independent audit, FBO shall bear the
cost of such audit.
3.2.4 Payments required under this Agreement shall be accompanied by financial and other
information on FBO's operations at the Airport on such reports or forms as the Airport Administrator may reasonably
require.
3.3 Maintenance of Premises
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AGENDA ITEM NO. 86
3.3.1 During the term of this Agreement, FBO shall maintain and keep the FBO Premises in good
repair and clean condition in accordance with applicable laws, rules and regulations, and in accordance with first
class maintenance practices.
3.3.2 FBO shall ensure that trash generated by its operations is immediately placed in covered
containers, that no fugitive trash is generated, that the Premises aze policed for trash on a daily basis, and that trash
and other wastes are disposed of lawfully and promptly. FBO shall not store hazardous wastes on the Premises
except in strict compliance with Federal, State and local laws and regulations.
3.3.3 FBO shall ensure that aircraft washing by its tenants is done in accordance with applicable
regulations including but not limited to the airport's Storm Water Pollution Prevention Plan.
3.4 Liabilitv and Hazard Insurance.
3.4.1 FBO shall secure and maintain for the term of its contractual relationship with City such
insurance policies, from companies licensed in the State of Texas, as will protect itself, City of Wichita Falls (with
City of Wichita Falls named as additional insured to the extent permitted by law), and others as specified, from
claims for bodily injuries, death, personal injury or property damage, which may arise out of or result from the FBO's
intentional or negligent acts, errors or omissions. The following insurance coverage, at or above the limits indicated
and including such endorsements as are indicated by an"X" below are required:
3.4.1.1 Statutory Workmen's Compensation
Texas Statutory Minimums
3.6.1.2 Commercial General Liability
Policy Limits: Bodily Injury/Property
Damage Combined Single Limit of $5,000,000;
Endorsements:
X Comprehensive Forms (all risks)
X Premises/Operations
X Underground, Explosion & Collapse Hazard
X Products/Completed Operations
X Broad Form Blanket Contractual
(Hold Hannless Coverage)
X Independent Contractors and Sub-Contractors
X Broad Form Property Damage
X Personal Injury, with Employment Exclusion Deleted.
3.4.1.3 Comprehensive Motor Vehicle Liability Insurance
Policy Limits: Bodily Injury/Property Damage
Combined Single Limit of $1,000,000
Endorsements:
X Any Auto
X All Owned Autos
X Hired Autos
X Non-Owned Autos
X Garage Keepers
3.4.1.4 Hangar Keeper's Liability
Policy Limits: Bodily Injury/Property Damage
Combined Single Limit of $5,000,000
X Premises/Operations
X Products/Completed Operations
PAGE 8 OF 18 PAGES
AGENDA ITEM NO. 86
3.4.2 Failure to maintain the foregoing insurance coverage is a material breach of this agreement
and grounds for termination. To provide evidence of the required insurance coverages, copies of Certificates of
Insurance in a form acceptable to the Ciry shall be filed with City. The Certificates of Insurance shall contain a
provision that coverage afforded under the policies will not be canceled or materially altered unless at least thirty
(30) calendar days prior written notice by certified mail, return receipt requested (effective upon proper mailing), has
been sent to City (through the Airport Administrator). For purposes of this provision, "materially altered" shall mean
a change to policy limits as set out in the then-current policy declarations page. Simultaneously with the Certificates,
FBO shall file and update as necessary a certified statement as to claims pending against required coverages, reserves
established on account of such claims, defense costs expended and amounts remaining in policy limits. .
3.4.3 In addition, required Certificates of Insurance shall contain the following clauses:
3.4.3.1 The clause "other insurance provisions" in a policy in which City of Wichita Falls
is named as an inswed, shall not apply to the Ciry of Wichita Falls.
3.4.3.2 The insurance companies issuing the policy or policies shall have no recourse
against the City of Wichita Falls far payment of any premiums or for assessments under any form of policy.
3.4.3.3 Any and all deductibles in the above described insurance policies shall be
assumed by and be for the amount of, and at the sole risk of, the FBO.
3.43.4 Location of operations shall be: "all operations and locations on the Wichita Falls
Municipal Airport conducted by or occupied by FBO."
3.4.4 If at any time during the term of this Agreement the FBO shall fail to obtain and maintain
insurance required in subparagraphs 3.4.1 above, City may, but is not required to, effect such insurance by taking out
policies in companies satisfactory to City. The amount of the premium or premiums paid for such insurance by City
shall be immediately payable by FBO to City upon receipt of notice that such premiums have, in fact, been paid.
3.4.5 FBO may insure in such amounts as it deems appropriate with respect to any other risk,
including risk to personal property or trade fixtures located on the Premises.
3.5 Indemnification of Citv. FBO (for itself and on behalf of the FBO' s employees, officers, agents and
representatives) shall release, discharge, indemnify and hold harmless the City, and City's officials, employees,
agents and representatives (the "Indemnitees") from and against liability for any claim, demand, loss, damages,
penalty, judgment, expenses, costs (including costs of investigation and defense), fees (including reasonable attorney
and expert wifiess fees) or compensation in any form or kind whatsoever for any bodily injury, death, personal
injury or property damage arising out of or in connection with any act, error or omission by the FBO, or for any
resulting liability alleged to accrue against the Indemnitees or any of them on account of the FBO's acts, errors or
omissions; provided, however, that such indemnity shall not be construed as an indemnity for bodily injury or
property damage arising from the negligent, willful or reckless acts of City or its employees.
3.6 FBO's Other Obli at� ions. FBO hereby covenants and agrees, that with respect to operations authorized
under this Agreement:
3.6.1 it will furnish good, safe, prompt and efficient service, adequate to meet all reasonable
demands for general aviation services at the Airport allowed under Section 2.5 of this agreement, on a fair and
reasonable basis, and consistent with first-class FBOs, and shall contain all necessary safery equipment;
3.6.2 it will provide servicing capabilities for dispensing aviation jet fuel and aviation gasoline
and will provide such services in conformity with regulations and guidance from the National Fire Protection
Association (NFPA), International Fire Code, the Federal Aviation Administration Part 139 regulations and
applicable air carrier requirements.
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AGENDA ITEM NO. 86
3.6.2 FBO shall remain open for business at the Airport from 6:00 a.m. unti19:00 p.m. or for such
periods during each day and such days during each week as may be necessary to meet reasonable demands for
services, including those services required by commercial air carriers.
3.63 personnel performing services shall be neat, clean and courteous; FBO shall not permit its
agents, servants or employees so engaged, to conduct business in a loud, noisy, boisterous, offensive or objectionable
manner, or to solicit business outside the Premises in any manner whatsoever except through the use of authorized
signs;
3.6.4 it understands that certain office space in the Administration Building is leased to others
(presently a governmental agency) and that such space is not included in this lease. Such tenants shall have the right
of ingress and egress through the lobby and the right to use the kitchen area and restrooms in the northeast corner of
the building. FBO hereby covenants and agrees that it will keep the premises in a neat, clean and presentable
condition and provide custodial and window washing services to its leased area, including the lobby and restrooms.
3.6.5 it shall abide by and be subject to all rules and regulations which are now, or may from time
to time be, promulgated by City concerning management, operation or use of the Airport;
3.6.6 it will keep ar cause to be kept true, accurate and complete records of business conducted at
the Airport;
3.6.7 it will meet all expenses in connection with the use of the Premises and the rights and
privileges herein granted, including without limitation taxes, permit fees, license fees and assessments lawfully levied
or assessed upon the Premises or structures and improvements situated thereon, and that it will secure all such
permits and licenses;
3.6.8 it will furnish, install, operate and maintain the Premises and the furniture, fixtures and
equipment installed therein and thereon, all in good order, condition and repair, and upon termination of this
Ageement will deliver up the Premises to City in good order, condition and repair, reasonable wear and tear
excepted;
3.6.9 it will providing initial and recurring training for its personnel in refueling procedures and
fire procedures as necessary to satisfy Part 139 requirements and requirements imposed by the scheduled air carrier.
It will also maintain records of such as so required.
3.6.10 it shall provide the required criminal history records checks and security threat assessments
required for FBO employees, tenants, visitors and vendors who may at the determination of the City or the
Transportation Security Administration require airport badges to comply with applicable security requirements.
3.6.11 it shall comply with the rules and practices as set forth in the current Airport Security Plan
as amended from time to time, and any fines assessed by the federal government or any govemmental agency having
jurisdiction, as a result of the FBO's failure to comply with the provisions of this paragraph or other intentional or
negligent acts or omissions of FBO's employees or agents will be paid promptly to City by FBO; and
3.6.12 it shall conduct, direct and supervise in a prompt, safe and efficient manner all traffic on
the Premises, including aircraft, motor vehicle traffic and pedestrian traffic, in connection with its operations.
3.7 New Government Re ul� ation. In the event City is required to make additional direct expenditures in
connection with the implementation of any future federal regulation imposed upon City as a result of FBO's
operation during the term of this Agreement, City may call a conference for the purpose of discussing and
determining methods of compliance and recovery from FBO and other affected lessees of cost so incurred, and FBO
agrees to attend and negotiate in good faith regarding its participation in recovery of such costs.
3.8 Performance Bond. With the execution of this Agreement, and to secure its perfortnance hereunder,
FBO shall provide a Performance Bond, Letter of Credit, other form of third party security acceptable to City ar cash
PAGE 1 O OF 18 PAGES
AGENDA ITEM NO. 86
deposit in lieu of bond in the sum of (Fifteen Thousand Dollars) $15,000.00. Any surety must be qualified to do
business in Texas, and hold an AM Best rating of "A" plus or higher, or otherwise be acceptable to the City, and any
Bank issuing a Letter of Credit shall have and maintain a main or branch office in Texas.
3.9 Costs of Operation. FBO shall pay all costs of its operation other than those expressly set forth herein.
4. OBLIGATIONS OF CITY
4.1 (�uiet En�ovment. City covenants that on paying the rent and performing the covenants herein
contained, FBO shall peacefully and quietly have, hold and enjoy the rights granted herein for the agreed term.
4.2 Maintenance. During the term of this Agreement, City shall maintain and keep in good repair the
Airport, and so much of the Terminal as is not under the exclusive control of individual lessees, in accordance with
applicable laws, rules and regulations.
4.3 Utilities. City shall, at no additional cost to FBO, provide natural gas and water to the FBO's Premises.
All other services and charges, including electrical, heating, lighting, air conditioning, telephones and custodial
service shall be provided by FBO at its own cost. FBO shall permit no liens or claims against the Premises arising
from unpaid or disputed utility bills. If, during the term of this Agreement, the Airport is required to increase its
water, sewer, gas or electric service and such increase requires a capital contribution from City, FBO, if it consumes
any part of the increased utility, agrees to pay its pro-rated amortized portion of said capital contribution which
amount will be set by agreement or binding arbitration; provided, however, that such pro rata contribution shall not
exceed the utility tap fees and plumbing taps associated with areas no further than six feet from the FBO leasehold.
4.4 Snow Removal. City agees, to the extent that its resources allow, to provide snow removal for the
joint use aircraft parking and t�i areas. The timing and priority of such removal will be at the sole discretion of the
City in consultation with the FBO. Snow removal of taxiways and runways is at the sole discretion of Sheppard
AFB. FBO is responsible for snow removal to and from and in the vicinity of the FBO Premises.
5. TERM
5.1 Term. Subject to earlier termination as hereinafter provided, the term of this Agreement shall be the
period commencing on October 1, 2010, and ending September 30, 2020. FBO is hereby granted the option to
extend the term through September 30, 2025 by providing written notice to City which such notice shall be provided
no earlier than January 30, 2020 and no later than June 30, 2020.
5.2 Holdin�. Holding over or failure to vacate the Premises at the end of the term shall not be
construed to be the granting or exercise of an additional term, but shall create only a month to month tenancy, under
the payment and other terms of this Agreement, which may be terminated by either party upon 30 days notice to the
other.
6. TERMINATION, SURRENDER AND DAMAGES
6.1 Termination by FBO. FBO shall have the right, upon written notice to City, to terminate the
Agreement upon the happening of one or mare of the following events if said event or events shall then be
continuing:
6.1.1 The issuance by any court of competent jurisdiction of any injunction, order or decree
preventing or restraining the use by FBO of all or any substantial part of the Premises, or preventing or restraining
the use of the Airport for normal airport purposes or the use of any essential part thereof which may be used by FBO
and which is necessary for FBO's operations on the Airport, which remains in force for a period of at least ninety
(90) days;
6.1.2. If City shall default in fulfilling any of the material terms, covenants or conditions to be
fulfilled by it under this Agreement, and shall fail to cure said default within thirty (30) days following receipt of
PAGE 11 OF 18 PAGES
AGENDA ITEM NO. 8B
written demand from FBO to do so, or if such cure cannot reasonably be completed within thirty (30) days, if City
fails to promptly undertake and diligently prosecute such cure;
6.13 If all or a material and essential part of the Airport or Airport facilities shall be destroyed by
fire, explosion, earthquake, other casualty, or acts of God or the public enemy;
6.1.4 If the United States Government or any of its agencies shall occupy the Airport or any
substantial part thereof to such an extent as to interfere materially with FBO's operation for a period of sixty (60)
consecutive days or more;
6.1.5 In the event all commercial airline service to the Airport is terminated, FBO may terminate
this Agreement upon thirty (30) days notice to City, provided that such termination continues through said notice
period.
6.2 Termination bv Citv.
The following shall constitute defaults by the FBO:
6.2.1 Failure by FBO to make any payment due hereunder within 15 days after notice of the
overdue payment is sent to FBO, in which case, City may, at its option, in addition to other remedies, and with or
without terminating this Agreement, take possession of so much of FBO's personal property as is reasonably
necessary to secure payments of the amounts due and unpaid;
6.2.2 The appointment of a trustee or receiver for, or the attachment, levy, execution or other
judicial seizure of any portion of the Premises which is not released, expunged; discharged or dismissed prior to the
earlier of: (a) thirty (30) days after such attachment, levy, execution or seizure; or (b) the sale of the assets affected
thereby;
6.23 Failure by FBO to conduct business at the Airport for a period of five (5) cumulative days
during any one calendar month without reasonable cause including, but not limited to force majeure, strikes, work
stoppage and equipment failures;
6.2.4 Default in the performance of any covenant or agreement in this Agreement required to be
performed by FBO, other than the payment of money or the occurrence of the events described in this pazagraph, and
the failure of FBO to remedy such default for a period of thirty (30) days after receipt from City of written notice to
remedy the same.
6.2.5 FBO's filing of a petition for relief under any present or future federal or state law regarding
banlmiptcy, reorganization or other relief to debtors, or FBO' s insolvency or inability to pay its debts as they
mature, or FBOs making a general assignment for the benefit of its creditors, or FBO's applying for a receiver,
trustee, custodian or liquidation for FBO or any of its property, or the filing by or against FBO of a petition or the
commencement of any other procedure to liquidate or dissolve FBO;
6.2.6 FBO's failure to effect a full dismissal of any involuntary bankruptcy petition that is filed
against FBO or that in any way restrains or limits FBO or the City regarding this Agreement or the Premises prior to
the earlier of (a) the entry of any arder granting relief sought in the involuntary petition; ar(b) ninety (90) days after
the date of filing of the petition, or FBO's filing of any pleading in any such involuntary proceeding which admits the
jurisdiction of the court or the petitioner's material allegations regarding FBO's insolvency;
6.2J The failure of FBO to comply with: (a) Department of Transportation Regulations
concerning Non-Discrimination (Title 49 C.F.R. Parts 21, and 27), (b) Title VI of the Civil Rights Act of 1964, or
(c) the Americans with Disabilities Act as they now exist ar may hereafter be amended.
PAGE 12 OF 18 PAGES
AGENDA ITEM NO. 86
City may, but need not, terminate this Agreement upon any such default, but at its discretion and without terminating
this Agreement, may seek any and all other available relief, including but not limited to specific performance or an
award of damages incurred as a result of FBO's default.
6.3 Surrender of Possession
6.3.1 On the expiration or other termination of this Agreement, FBO's rights to use of the
Premises, facilities and services described herein shall cease, and FBO shall vacate the Premises leaving them in
good condition and repair, ordinary wear and tear excepted.
63.2 Except as otherwise provided in this Agreement, all fixtures, improvements, equipment and
other property bought, installed, erected or placed by FBO in, on or about the Airport, shall be deemed to be
personality and shall remain the property of FBO. FBO shall have the right at any time during the term of this
Agreement, or any renewal or extension hereof, and for an additional period of 10 days after the expiration or other
termination of this Agreement, to remove any or all of such property from the Airport, subject, however, to FBO's
obligation to repair all damage, if any, resulting from such removal. Any and all property not so removed by FBO
shall become a part of the land on which it is located and title thereto shall vest in the City. City may, however, at its
option, require and accomplish the removal of said properiy at the expense of FBO.
6.4 Dama�e or Destruction of Premises.
6.4.1 If the Terminal is partially damaged by fire, the elements, the public enemy or other
casualty, and the damage is so extensive as to render the Premises untenantable, but said damage is capable of being
repaired in 60 days or prior to the termination date, whichever date first occurs, the Premises shall be repaired with
due diligence by City at its own cost and expense, and the rent payable under subsection 3.1.1 of this Agreement
shall be proportionately paid up to the time of such damage and shall thenceforth abate in the ratio the space ren-
dered unusable bears to the total space leased until such time as the Terminal shall be fully restored. If the Terminal
is completely destroyed or the Premises are so damaged that it will remain untenantable for more than 60 days or
beyond the termination date of this Agreement, whichever date first occurs, either party may, at its option, cancel so
much of this Agreement as relates to the untenantable space, such cancellation to be effective as of the date the
Terminal was damaged or destroyed.
6.4.2 In the event that the Premises are rendered untenantable for reasons beyond FBO's control
and other than those set forth above, there shall be a reasonable and proportionate abatement of the rentals, fees and
charges provided for in this Agreement during the period that the same are so untenantable or unusable.
6.43 Notwithstanding any of the foregoing, in the event any damage or destruction is caused by a
negligent or intentional act or omission by FBO, its subleases, agents, invitees, or employees, FBO shall reimburse
City for its actual costs incurred in repairing the Premises. Nothing in this Agreement shall be construed as a waiver
of or limitation on the right of City to recover damages from FBO arising out of the fault or negligence of FBO.
6.4.4 In the application of this Section 6.4, City's obligations shall be limited to repair or
reconstruction of the Terminal to the extent and of equal quality as obtained at the commencement of operations
under this Agreement. Redecoration or replacement of FBO's furniture, equipment and supplies shall be the
responsibility of FBO, unless damage thereto is caused solely by a negligent act or omission of City, its agents and
employees, in which event City shall be responsible for the redecoration and replacement. Any such redecoration or
refurnishing shall be of equivalent quality to that originally existing at the commencement of the Agreement.
7. ASSIGNMENT AND SUBLETTING
7.1 Assignment and Sublettin�. FBO shall not at any time assign or sublet its rights under this Agreement
or any part thereof without the written consent of City; provided, however, that the foregoing shall not prevent the
assignment of such rights to any corporation with which FBO may merge or consolidate, or which may succeed to
the business of FBO. No such assignment or subletting shall release FBO from its obligations to pay any and all of
PAGE 13 OF 18 PAGES
AGENDA ITEM NO. 86
the rentals and charges and to otherwise perform FBO's obligations under this Agreement accrued as of the date of
the assignment or subletting. In any event, City may require any proposed assignee to submit qualifying information.
7.2 Successors to Citv. The rights and obligations of City under this Agreement may be assigned by City,
at the option of City, and without the necessity for the concurrence of the FBO in any such assignment.
7.3 Han�ar Rentals. Notwithstanding Section 7.1, the FBO shall have the right to rent hangar spaces
throughout the term of this Agreement and to receive all rentals for the same, provided the City retains the right to
review said rental rate to determine unjust discrimination and/or if rates charged are comparable to rates chazged for
like facilities at other airports. The FBO will not be permitted to lease hangar spaces for any non-aeronautical
purposes or activities.
8. OTHER AGREEMENTS
8.1 Compliance with Applicable Laws. In connection with its use of the Premises and the conduct of its
operation at the Airport, the FBO shall comply with all applicable laws, rules and regulations of the City, the State of
Texas and the United States of America and any and all deparhnents and agencies thereof, as the same may now exist
or may hereafter be promulgated or amended from time to time.
8.2 Lease Agreement with Departrnent of Defense. The City operates the Wichita Falls Municipal Airport
under a Lease agreement with the Department of the Air Force, lease USAF/AETGSHE-1-09-003 effective May 15,
2009. As per that Lease, a copy of the lease is a required attachment to any subleases executed by the City.
Therefore, such is provided for in Exhibit C. Specifically, the FBO is required to make note of and comply with
Sections 21.1.3, Section I 1 and Section 25.
83 AQreement Subordinate. This Agreement shall be subordinate to any existing or future agreement
between City and the United States relative to the operation or maintenance of the Airport (including the Lease
Agreement with Department of Defense described in Section 8.2), the execution of which has been or may be
required as a condition to the expendihue of federal funds for development of the Airport. If, by reason of any such
agreement with the United States as aforesaid, it becomes necessary to modify, relocate or remove any improvements
situated on the Premises or the Premises themselves, the FBO agrees to modify, relocate or remove from the
Premises or any such improvements as directed by City.
8.4 Non-Discrimination. The FBO, in its operations at and use of the Airport, shall not, on the gounds of
race, color, national origin or sex, discriminate or permit discrimination against any person or group of persons in
any manner prohibited by applicable law, shall abide by the provisions of the non-discrimination provision contained
in the Agreement, and shall abide by the provisions of Part 21 of the Rules and Regulations of the Office of the
Secretary of Transportation effectuating Title VI of the Civil Rights Act of 1964.
8.5 Inspection b,�tv. City, through its authorized agent, shall have the right at all reasonable times to
enter upon the Premises to inspect, to observe the performance by FBO of its obligations hereunder, prevent waste or
loss, respond to emergencies, and to do any act which City may be obligated to do or have the right to do under this
Agreement, under any other agreement to which City is a party or under applicable law.
8.6 Improvements on the Premises. Construction plans, specifications, budgets and schedules for all
proposed improvements on the Premises shall be submitted by FBO and subject to City's approval. City may reject
submissions which are not in accordance with applicable codes, rules, regulations, ordinances and statutes, and
which are inadequate or incompatible with Airport conditions or inconsistent with Airport architectural style and
design or with uses typically made of public use airports.
8.7 Disadvantaged Business Enterprise.
8.7.1 It is the policy of City that disadvantaged business enterprises ("DBEs"), including firms
owned and controlled by minorities and/or women as defined in 49 C.F.R. Part 23, shall have m�imum opportunity
to participate in the performance of its leases.
PAGE 14 OF 18 PAGES
AGENDA ITEM NO. 86
8.7.2 In the performance of this Agreement, FBO hereby assures that no person shall be excluded
from participation, denied benefits or otherwise discriminated against by FBO in connection with the award and
performance of any contract, including leases, covered by 49 C.F.R. Part 23 on the grounds of race, color, national
origin or sex.
8.73 FBO assures that it will include this section 8.7 in all subleases and cause all subleases to
similarly include clauses in further subleases.
8.7.4 FBO agrees that it shall comply with federal laws and regulations which now, or may
hereafter, impose upon FBO, or require City to impose upon FBO, requirements that a portion of FBO's subcontracts
and/ar purchase contracts be awarded to DBE enterprises. FBO shall comply with applicable provisions of City's
FAA-approved DBE Concession Plan as it now exists, or as it may hereafter be amended.
8.8 Condemnation. Nothing contained in this Agreement shall be deemed to limit or restrict in any way
such lawful rights as FBO may have now or in the future to maintain claims against the federal, state or municipal
government, or any department or agency thereof, or against any interstate body, commission or authority, or other
public or private body exercising governmental powers, for damages or compensation by reason of the taking or
occupation, by condemnation or otherwise, of all or a substantial part of the Premises, or of all or a material part of
the Airport.
8.9 Liens. FBO shall immediately cause to be removed any and all liens of any nature arising out of or
imposed because of any repair performed by FBO or any of its contractors or subcontractars upon the Premises or
arising out of or because of the performance of any work or labor upon or the furnishing of any materials for use on
the Premises.
8.10 Force Majeure. Neither City nor FBO shall be deemed in violation of this Agreement if it is
prevented from performing any of its obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes,
shortage of material, or fuel as the result of governmental decree, acts of God, acts of the public enemy, acts of
superior governmental authority, weather condition, riots, rebellion, sabotage or any other circumstances for which it
is not responsible or which is not under its control.
8.11 Grievance Procedure. The parties both recognize that it is in the public interest and to their mutual
benefit that a satisfactory range of general aviation services be made available to the public in a prompt, efficient and
courteous manner. To that end, FBO and City shall meet together from time to time, upon request of City, for the
purpose of addressing any complaints which may have been received by City and reviewing in general the services
being furnished by FBO from the Premises. FBO agrees to promptly undertake such action as may be reasonable
and appropriate to remedy the situation giving rise to any such complaints and/or any operational deficiencies noted
by City. Failure to provide minimum required service and hours of operation shall be considered as a breach of the
contract terms.
8.12 Reserved Ri ts of City. City reserves the following rights with respect to the Airport, the Premises
and the uses and operations to be conducted thereon by FBO:
8.12.1 to unimpeded access over and across the surface of the Premises, provided that City shall
not, in the exercise of this reserved right, unreasonably interfere with FBO's use of the Premises;
8.12.2 to protect the aerial approaches of the Airport against obstruction, including the right to
prohibit FBO from erecting, or permitting to be erected, any building or other structure on the Premises which
would, in the judgment of City limit the usefulness of the Airport or constitute a hazard to air navigation;
8.12.3 to direct all activities of the FBO at the Airport, as is reasonably necessary to respond to
any emergency which threatens life or property;
PAGE 15 OF 18 PAGES
AGENDA ITEM NO. 8B
8.12.4 to direct FBO and its employees in the event FBO's operations are unreasonably interfering
with the use by others of the Airport, including but not necessarily limited to, restricting the use of parking areas
(aircraft and vehicle) or blocking public access to curbs, sidewalks, parking areas and roadways;
8.12.5 to prohibit any commercial or non-commercial activity not expressly permitted herein; and
8.12.6 to establish reasonable rules and regulations for the conduct of activities and uses permitted
herein and also to promulgate minimum standards for the conduct of commercial activities related hereto.
8.12.7 to enter into other Airport Facilities Lease and Fixed Base Operator's Agreements, with
other FBOs, and to the ma�cimum extent practical the terms of any other such Agreement shall be no more favorable
to FBOs than those contained herein. City reserves the right to replace, through proposal procedure, or through
negotiation, a FBO, if this Agreement is terminated prior to the end of the term, upon the same terms and conditions
as exist in this agreement, including the same termination date.
9. MISCELLANEOUS PROVISIONS
9.1 HeadinQS. The section headings contained in this Agreement are for convenience in reference and are
not intended to define or limit the scope of any provision.
9.2 Time of Essence. Time is of the essence in this Agreement.
93 Attorne, s�. If any action at law or in equity is necessary to enforce this Agreement, each party
agrees to pay its own attorney's fees and will not seek to recover its attorney's fees from the other party. FBO
understands that pursuant to TEXAS LOCAL GOVERNMENT CODE §271.153(a)(3), the total amount of money
awarded in an adjudication brought against a governmental entity for breach of contract includes reasonable and
necessary attorney's fees that are equitable and just. FBO expressly waives its statutory rights to recover attorney's
fees as outlined in §271.153(a)(3).
9.4 Non-Waiver. Waiver by either party of or the failure of either party to insist upon the strict
performance of any provision of this Agreement shall not constitute a waiver of the right or prevent any such party
from requiring the strict performance of any provision in the future.
9.5 Limitation of Benefit. This Agreement does not create in or bestow upon any other person or entity not
a party to this Agreement any right, privilege or benefit unless expressly provided in this Agreement. This
Agreement does not in any way represent, nor should it be deemed to imply, any standard of conduct to which the
parties expect to conform their operations in relation to any person or entity not a party.
9.6 Severabilitv. Any covenant, condition or provision herein contained that is held to be invalid by any
court of competent jurisdiction shall be considered deleted from this Agreement, but such deletion shall in no way
affect any other covenant, condition or provision herein contained so long as such deletion does not materially
prejudice City or FBO in their rights and obligations contained in valid covenants, conditions or provisions.
9.7 Effect of A�eement. All covenants, conditions and provisions in this Agreement shall extend to and
bind the successors of the parties hereto, the assigns of City and to the permitted assigns of FBO.
9.8 Notices. Any notice given pursuant to this Ageement other than which is specifically permitted to be
given in some other fashion shall be in writing and shall be delivered by hand, by overnight courier or by registered
ar certified mail, postage prepaid, return receipt requested and addressed as follows:
If to City:
Airport Administrator
PAGE 16 OF 18 PAGES
AGENDA ITEM NO. 8B
Wichita Falls Municipal Airport
4000 Armstrong Drive, Suite 8
Wichita Falls, Texas 76301
Telephone Number: (940) 855-3623
With a copy to:
City of Wichita Falls, Texas
Director of Aviation, Traffic and Transportation
2100 Seymour Highway
Wichita Falls, Texas 79601
Telephone Number: (940) 761-7640
If to FBO:
Landmark Aviation
4000 Artnstrong Drive, Suite 7
Wichita Falls, TX 76305
Attn: General Manager
Telephone Number: (940)-855-5460
With a copy to:
Landmark Aviation
1500 Citywest Blvd, Suite 600
Houston, TX 77042
Attn: General Counsel
Notice shall be deemed given when delivered if hand-delivered by courier or two days after the date indicated on the
postmark if sent by U.S. Mail. Either party may change its address to which notices shall be delivered or mailed by
giving notice of such change as provided above.
9.9. GoverninQ Law and Venue. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Texas without reference to choice of laws rules. The parties hereby agree that venue
and jurisdiction for all actions taken with respect to this Agreement shall be in Wichita County, Texas.
9.10 Entire A�eement. This Agreement embodies the entire agreement between the parties hereto
concerning the subject matter hereof and supersedes all prior conversations, proposals, negotiations, understandings
and agreements, whether written or oral.
9.11 Non-Liabilitv of City's A�ents and Emplovees. No official, agent, or employee of City shall be
personally liable to FBO in the event of any default or breach hereunder by City.
9.12 Modification of Aereement. This Agreement may not be altered, modified or changed in any manner
whatsoever except by a written Agreement signed by both parties.
9.13 Relationship of Parties. It is the intent and purpose of the parties that they shall have the relationship
of Licensor and/or Landlord, and Licensee and/or Tenant hereunder, and nothing contained herein shall be deemed
or construed to constitute the parties as partners or joint ventures, and in no event shall City be liable far any loss
which may result from the operations of FBO upon the Premises or for any indebtedness incurred by FBO as Tenant
and/or FBO in the operation of its business on the Premises.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed as of the day and year
first above written.
PAGE 17 OF 18 PAGES
AGENDA ITEM NO. 86
City of Wichita Falls
By:
Darron Leiker, City Manager
Attest:
Lydia Ozuna, City Clerk
Approved as to Form:
Miles Risley, City Attorney
FIXED BASE OPERATOR
PIEDMONT HAWTHORNE
AVIATION, LLC
DBA LANDMARK AVIATION
By:
EXHIBIT A— Leased Office Premises
EXHIBIT B— Leased Hangar Areas
EXHIBIT C— Lease USAF/AETGSHE-1-09-003 between the Department of the Air Force and the City of Wichita
Falls, Texas
Provided as a separate attachment
PAGE 18 OF 18 PAGES
AGENDA ITEM NO. 8B