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HomeMy WebLinkAbout027063 ORD - 12/12/2006AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A SHORT TERM LEASE AGREEMENT, WHICH WILL TERMINATE ON DECEMBER 31, 2007, WITH JAMES CHARLES BERNSEN, FOR APPROXIMATELY 244.12 ACRES OF LAND AT THE CORPUS CHRISTI INTERNATIONAL AIRPORT, TO BE USED FOR CROP FARMING, IN CONSIDERATION OF A RENTAL FEE OF $80.00 PER ACRE; AND DECLARING AN EMERGENCY. WHEREAS, the City advertised for bids to lease approximately 244.12 acres of land at the Corpus Christi International Airport, with a minimum bid of $50.00 per acre; and WHEREAS, James Charles Bernsen submitted the highest bid that was received at bid opening NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager, or his designee, is authorized to execute a short term lease agreement, which will terminate on December 31, 2007, with James Charles Bernsen. for approximately 244 12 acres of land at the Corpus Christi International Airport, to be used for crop farming, in consideration of a rental fee of $80.00 per acre. The Lease Agreement shall be in substantially the same format and content as attached in Exhibit "A ". SECTION 2. That upon written request of the Mayor or five Council members, copy attached, the City Council (1) finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and (2) suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is passed and takes effect upon first reading as an emergency measure this the (� day of L C411.10ay , 2006. ATTEST: TH ITY OF COR US CHRISTI Armando Chapa H n City Secretary Mayor APPROVED AS TO FORM: December 4, 2006 Wendy E. Olen - Assistant City Attorney For City Attorney Corpus Christi, Texas 12- day of betimber 2006 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: I /we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Council Members Respectfully, H -nry Garrett Mayor The above ordinance was passed by the following vote: Henry Garrett Brent Chesney John E. Marez Melody Cooper Jerry Garcia Bill Kelly Rex A. Kinnison Jesse Noyola Mark Scott fl27fF3 Ground Lease at Corpus Christi International Airport Between City of Corpus Christi and James Charles Bernsen WHEREAS, the City of Corpus Christi ( "City ") owns the Corpus Christi International Airport ( "Airport "). located in Nueces County, State of Texas; WHEREAS, James Charles Bernsen, ( "Lessee ") desires to lease a certain parcel of land at the Airport for crop farming purposes; WHEREAS, the parties wish to enter into a written lease for land ( "Lease ") which includes approximately 244.12 acres of land for the purpose of crop farming; NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: Lease: 1. Premises City leases to Lessee the land located on the northwest side of the Airport property as more particularly described in the attached and incorporated Exhibit A ( "Premises "). The Premises includes approximately 244.12 acres of land, excluding a ten (10) foot easement along the perimeter fence. 2. Term Subject to the remaining terms and conditions hereof, the term ( "Term ") this L ase be er City Council approval and on the date of execution which is Erb ¶ , 2006 ( "Effective Date "), and terminates on December 31, 2007 ("Termination Date") 3. Ground Rent A. Calculation. Lessee agrees to pay City Eighty Dollars and Zero Cents ($80.00) per acre and is payable in full no later than 5:00 p.m. Central Time on the Wednesday immediately subsequent to the date this Lease is approved by the Corpus Christi City Council ( "Council ") as full rental payment for the term of the Lease. Lessee's rent shall be calculated on 244.12 acres. B. Paying Rent. City will invoice Lessee at the rental rate provided above. Said rent is due and payable in full in the form of a certified or cashier's check, no later than 5:00 p.m. Central Time on the Wednesday immediately subsequent to the date this Lease is approved by Council. Said rent shall be delivered to the following address: Corpus Christi International Airport 1000 International Drive Corpus Christi Texas 78406 C. Agent. The City Manager appoints the Aviation Director, or designee ( "Aviation Director "), as agent to receive all rentals, notices and reports under this Lease. 4. Use of Premises. Lessee must use the Premises for the purposes of crop farming and for no other purpose without the express written consent of City Manager. Lessee must supply 1 services on a fair, equal and nondiscriminatory basis to all users thereof Lessee shall not construct any improvements on the Premises. Lessee shall not use the Premises for storage of equipment or supplies and shall remove equipment and supplies on the Premises that have not been in use for a period of thirty (30) days. 5. Acceptance. By Lessee's execution of this Lease, Lessee acknowledges that Lessee has read this lease and understands that this Lease is not binding on the City until properly authorized by the City Council and executed by the City Manager of the City of Corpus Christi, Texas. Lessee also acknowledges that Lessee has inspected the Premises and accepts the Premises in its present physical condition 6. Assignment and Sublease. Lessee may not at any time assign, transfer, convey, sublet, mortgage, pledge. or encumber its interest under this Lease, or any part of the Lessee's Leased Premises, to any party without the prior written approval of the CITY, which approval will not he unreasonably withheld. In the event that Lessee shall, directly or indirectly, assign, sell, hypothecate or otherwise transfer this Lease, or any portion of Lessee's Leased Premises, without the prior written consent of the CITY except as allowed for above, the CITY, in its sole discretion may terminate this Lease 7. Right to Amend or Cancel Lease. If the Federal Aviation Administration or its successor ( "FAA "), requires modifications or changes in this Lease as a condition precedent to granting funds for Airport improvements, Lessee agrees to consent to the amendments, modifications, or changes of this Lease as may be reasonably required to obtain the funds provided: however, that Lessee will not be required to pay increased rent or change the use of the Premises or accept a relocation or reduction in size of the Premises until Lessee and City have fully executed an amendment to this Lease that is mutually satisfactory to all parties for any terms or conditions of this Lease affected by said actions. City reserves the rights to sell, use, or lease for a use different from the present use, all or any of the Premises at anytime during the term of this Lease. If the Premises are used, or leased before the expiration date hereof and the purchaser or lessee is not willing to take the same subject to this Lease and demands immediate possession, then LESSEE agrees to vacate and give possession at anytime within fifteen (15) days after receipt of notice to vacate. If it becomes necessary for LESSEE to vacate in case of a sale or lease, then the City shall pay LESSEE for the land or portion thereof so vacated the following amounts, to -wit: If the land has been plowed and prepared for a new crop, but before the crop has been planted, the actual expense of working the acreage vacated, plus $10.00 per acre. If there is Vowing crop, then the average return on an acreage basis that like crops bring on other land Covered by this Lease, or if no other land covered by this Lease, then on similar land in the immediate vicinity. Any payments so made shall be in proportion to the LESSEE's share of the crop under this Lease, less harvesting costs. 8. Subordination to L.S. /FAA Requirements. This Lease is subordinate to the provisions of any existing or future agreement between City and the United States relating to the operation or maintenance of the Airport, where the execution of said agreement(s) is _ required as a condition to the expenditure of federal funds for the development of the Airport. If the effect of said agreement(s) with the United States, either under this Section 8 or under Section 7 above, is to take any of the Premises under this Lease out from the control of City, then City shall at City's expense make every effort to provide Lessee with land substantially similar to the Premises used by Lessee for the remainder of the Original Term if like premises are available for the type of use 2 granted within this Lease, 9. Repair, Maintenance, and Utilities. Lessee, at its own expense, shall take good care of the Premises, and, except during the growing season prior to harvest, shall keep the Premises mowed at a height not to exceed 12 inches. Upon expiration of the Lease, Lessee shall return the Premises in the same condition as existed at initiation of the Lease, natural wear and tear and damage from elements only excepted. Lessee will pay for any and all damages to any utility lines or equipment located on the Premises which may be incurred by Lessee's farming or agricultural operations or to replace all such lines injured or destroyed as a result of Lease's agricultural operations. Lessee, at its own expense, shall repair any and all damage caused to the Premises as a result of the willful or negligent acts or omissions of Lessee, its employees or agents. Lessee shall pay for all utilities it uses at the Premises Aviation Director shall have the right to inspect the Premises during City's normal business hours without prior notice. The City shall have the right at any and all times of ingress, egress, and regress on and over the Premises for the purposes of conducting and carrying on any business incident to activities of the City 10. Security Badges. Each of Lessee's employees needing access to a restricted area (including the AOA, see Section 11) must wear a security identification badge. Lessee will pay a fee for each badge and a replacement fee for each lost badge. Aviation Director may also require the payment of a reasonable deposit fee for each security badge issued consistent with fees charged to other tenants at the Airport. Lessee must notify Aviation Director immediately after an employee is terminated or loses a badge. Lessee and all Lessee personnel must comply with all City and Federal security regulations and requirements. 11. Access to the Aircraft Operating Area ( "AOA "). Lessee and its respective contractors, suppliers of materials and furnishers of services, employees, agents, and business invitees, must comply with all present and future laws, rules, regulations, or ordinances promulgated by the City, the Airport, the TSA or the FAA, or other governmental agencies to protect the security and integrity of the Aircraft Operating Area ( "AOA "), as defined by the Airport and the FAA and shown on Exhibit C, and to protect against access to the AOA by unauthorized persons. Subject to the approval of Aviation Director, Lessee must adopt procedures to control and limit access to the AOA by Lessee and its respective contractors, suppliers of materials and furnishers of services, employees, and business invitees in accordance with all present and future Airport, TSA and FAA laws. rules, regulations, and ordinances. Lessee further agrees to indemnify, hold harmless, defend and insure the City, its officers, agents, and employees against the risk of legal liability for death, injury, or damage to persons or property, direct or consequential, arising from entry of persons into the AOA where permitted, allowed or otherwise made possible by Lessee, its assignees and their respective contractors, suppliers of materials and furnishers of services, employees, business invitees, agents, or any person under the direction of Lessee in violation of City, Airport, TSA, and FAA laws, rules, regulations, or ordinances or Lessee's approved procedures for controlling access to the AOA. 3 Lessee must obtain employee identification badges for all personnel authorized by Lessee to have access to the AOA in accordance with the provisions of Federal Aviation Regulations, 49CFR Part 1542, and other laws, rules, regulations and ordinances. Lessee must pay ali FAA and TSA fines associated with security breaches /infractions by Lessee's agents, officers, business invitees, and employees in the AOA, regardless of whether the fine is assessed to City_ Airport, or Lessee or its assignees, and its or their respective agents, officers, business invitees, or employees as set out in the City Code of Ordinances, Sec. 9 -31. A. Movement into Aircraft Operations Area ( "AOA "). Lessee will have access to the Airport, subject to compliance with all applicable FAA, TSA, and Airport security procedures. Movement of all persons in the AOA/Premises must be cleared in accordance with Airport, TSA, and FAA rules and regulations. Lessee is primarily responsible for opening and closing any security gates and doors permitting access between the Premises and the AOA. B. Vehicles in AOA. No vehicles owned or operated by Lessee may operate within the Movement or Non - Movement Areas of the AOA except those in compliance with TSA, FAA, and Airport regulations. See site plan illustrating said AOA, attached and incorporated as Exhibit C C. Airport Certification. Lessee must comply with rules that are applicable to its operations on the Airport under the Airport Certification Rules of the Federal Aviation Regulations ( "FAR "), Part 139, as amended [ 14 CFR Part 139, as amended]. Copies of the FAR are available in the office of Aviation Director. D. Airport Security. Lessee. its officers, employees, invitees, agents, contractors, and guests must comply with all federal and local Airport Security Regulations adopted by City pursuant to 14 CFR Part 1542, as the same may be amended. Lessee covenants to indemnify and hold harmless City, its officers and employees from any charges, fines, or penalties that may be assessed or levied by the FAA or TSA by reason of the negligent or intentional failure of Lessee, its officers. employees, invitees, agents, contractors, or guests to comply with Airport Security Regulations, regardless of whether Lessee, City, or Airport has said fine, charge, or penalty levied against it. E. 14 CFR Part 77 Requirements. Lessee covenants to comply with the notification and review requirements set out in Part 77 of the Federal Aviation Regulations [14 CFR Part 77], as amended, if Lessee plans to use equipment in their operations that requires notification as outlined in this regulation. Copies of the FAR are available in the office of Aviation Director. F. Control of Structures /Equipment. Lessee shall not operate any equipment which has its highest point above a mean sea level elevation established by FAA and City as a height limitation on said structure. antenna. building, or object/equipment. City may enter the Premises and remove any such structure, antenna, building, or object at Lessee's expense plus 20% )verhead. G. Aerial Approaches. City Manager may take any action necessary to protect the Airport's aerial approaches against obstruction, including the right to prevent Lessee from operating any object or equipment on or adjacent to the Airport, which in Aviation Director's opinion, would limit the usefulness of the Airport or constitute a hazard to aircraft. Lessee and its successors and assigns, will not make or permit any use of the Premises which would interfere with landing or taking off of aircraft at the Airport, or otherwise constitute an airport hazard, 4 including but not limited to electrical or electronic interference with communications, electrical, or electronic equipment, creation of smoke or dust or glaring or misleading lights. H. Right to Overflight. City hereby reserves, for the use and benefit of the public, a right of flight for the passage of aircraft above the surface of the Premises together with the right to cause in the airspace, noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation thereof or flight in the air, using the airspace for landing at, or taking off from, or operating on. the Airport. 12. Hazardous Substances. Lessee covenants to comply with all environmental laws, rules, regulations, orders and permits applicable to Lessee's operations on or in the vicinity of the Airport, including but not limited to, required National Pollutant Discharge Elimination System Permits and all applicable laws relating to the use, storage, generation, treatment, transportation, or disposal of hazardous or regulated substances. Except for the Hazardous Substances governed by and transported in full compliance with the transportation laws of the state or federal government. Lessee must not use, store, generate, treat, transport, or dispose of any hazardous or regulated substances or waste on or near the Airport without Aviation Director's prior written approval and without first obtaining all required permits and approvals from all authorities having jurisdiction over Lessee's operations on or near the Airport. If Lessee determines that a threat to the environment, including but not limited to a release, discharge, spill or deposit of a hazardous or regulated substance, has occurred or is occurring which affects or threatens to affect the Airport, or the persons, structures, equipment, or other property thereon, Lessee must notify immediately by verbal report in person or by telephone. to be promptly confirmed in writing, (1) the Director, (2) the Airport's Public Safety Office, and (3) Emergency response centers and environmental or regulatory agencies, as required by law or regulation, and must follow such verbal report with written report as required by law. Lessee agrees to cooperate fully with the Airport in promptly responding to, reporting, and remedying a threat to the environment, including, without limitation, a release or threat of release of hazardous or regulated substance into the drainage systems, soils, ground water, waters, or atmosphere, in accordance with applicable law or as authorized or approved by any federal, state, or local agency having authority over environmental matters. Lessee must keep a readily accessible file of Materials Safety Data Sheets for each Hazardous Substance on site or transported to the Premises, in accordance with federal and state transportation laws, which file must be posted and immediately available to any Airport or City employee who responds to the scene (Premises) in the event of a discharge of a Hazardous Substance. Lessee's employees must try to determine which hazardous substance was discharged and have that MSDS sheet available for the first responders to the scene. Lessee must promptly undertake all required remediation and pay all costs associated with Lessee's action or inaction that directly or indirectly prevents the Airport from materially conforming to all then applicable environmental laws, rules, regulations, orders, or permits. The rights and obligations set forth this Section survive termination of this Lease. 5 13. Nondiscrimination /Affirmative Action. A. Nondiscrimination — general. Lessee for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, covenants that: (1) no person on the grounds of race, creed, color, religion, sex, age, national origin, handicap, or political belief or affiliation will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of the Premises; (2) Lessee will use the Premises in compliance with all other requirements imposed by or pursuant to 14 CFR Part 152, Subpart E Non Discrimination in Airport Aid Program and Title VI of the Civil Rights Act of 1964 and 49 CFR. Subtitle A, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Title and Regulations may be amended, and with other applicable state or federal laws or regulations, as amended. B. Nondiscrimination - Business Owner. This Lease is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23. Lessee agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award of performance or any concession agreement, management contract or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 73 C. Remedy for Breach. If Lessee breaches a non - discrimination covenant, City may immediately reenter the Premises; and the Premises and all Lessee's interest therein reverts to City and its assigns, This provision is not effective until the procedures of Title 49, Code of Federal Regulations Part 21 are completed, including exercise or expiration of appeal rights. D. Affirmative Action. Lessee assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person on the grounds of race, creed. color, religion, sex, age, national origin, handicap, or political belief or affiliation is excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. Lessee assures that no person will be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by that Subpart. Lessee further agrees to require its covered sub - organizations to provide similar assurances to Lessee to undertake affirmative action programs and to require assurances from their sub - organizations, as required by 14 CFR Part 152, Subpart E Lessee at its expense will comply with any applicable requirements of the Americans with Disabilities (ADA) as it may be amended. 14. Compliance with Laws. A. General. Lessee must promptly observe, comply with, and execute the provisions of any and all present and future governmental laws, ordinances, rules, regulations, requirements, orders and directions applicable to Lessee's use and occupancy of the Premises. Failure to observe or comply with the aforementioned laws will subject this Lease to cancellation by City under Section 17 of the Lease. B. Federal. Lessee covenants to comply with all applicable Federal laws, rules, and regulations. including without limitation the Drug Free Workplace Act, the Violence in the 6 Workplace Act, the Americans with Disabilities Act, and any other acts that the U.S. Congress passes that apply to any entity that operates at the Airport. C. State. Lessee covenants to comply with all applicable state laws, rules, and regulations. D. Local. Lessee covenants to comply with all applicable City ordinances, and rules and regulations promulgated by Aviation Director. 15. Cancellation — Termination. A. Cancellation by Lessee. Without limiting any other rights and remedies to which Lessee may be entitled by common law, statutory law, or as elsewhere provided in this Lease, this Lease may be canceled by Lessee at any time after the happening, and during the existence, of one of more of the following events: 1. The permanent abandonment of the Airport; 2. The lawful assumption by the United States Government, or any authorized agency thereof, of the operation. control, or use of the Airport, or any substantial part or parts thereof, that substantially restricts Lessee from operating for at least 150 days; the issuance by any court of competent jurisdiction of an injunction that prevents or restrains the use of the Airport. that continues for at least 150 days; or 4. The default by the Airport in the performance of any covenant and the failure of the Airport to remedy the default for 60 days after receipt from Lessee of written notice to remedy the same. B. Termination by City. Without limiting any other rights and remedies to which City may be entitled at common law, statutory law, or as elsewhere provided in this Lease, this Lease may be terminated by City if Lessee; Is in arrears in paying a part of the rent, fees, or charge for ten (10) business days ( "business" days are Monday through Friday), or other time as may be provided herein. Makes a general assignment for the benefit of creditors; Abandons the Premises or any part thereof; 4. Otherwise defaults in the performance of any of Lessee's covenants, and continues the default for 30 days, or other time as may be provided herein, after receipt of written notice from Aviation Director of the default. If the default cannot reasonably be cured within 30 days or within any other time set out in the notice of default, Lessee shall submit a plan to remedy the default to the Director for approval within 7 thirty (30) days from receipt of the notice. The Director shall have sole discretion of the approval of the plan C. City's Right to Entry Upon Termination. If City terminates this Lease or if Lessee abandons the Premises, City may enter upon the Premises. In the event of termination by City, Lessee hereby irrevocably appoints City Manager its agent to remove any and all persons or property from the Premises and place any property in storage for the account of and at the expense of Lessee. All property on the Premises is hereby subjected to a contractual landlord's lien to secure payment of delinquent rent and other sums due and unpaid under this Lease, any and all exemption laws are hereby expressly waived in favor of said landlord's lien; and it is agreed that said landlord's lien is not a waiver of any statutory or other lien given or which may be given to City but is in addition thereto. Lessee agrees, that in the case of a default, if Lessee fails to remove any property on the Premises within thirty days following the default, City Manager may sell Lessee's property found on the Premises at a public or private sale with proceeds of the sale applied first to the cost of the sale. then to the cost of storage of the property, if any, and then to the indebtedness of Lessee, with the surplus, if any, to be mailed to Lessee at the address herein designated. If City terminates and reenters the Premises, City may relet the Premises and if a sufficient sum is not realized, after paying expenses of the reletting, to pay the rent and other sums agreed to be paid by Lessee, Lessee agrees to pay any deficiency within 30 days of Aviation Director's written demand therefor. Lessee further agrees to hold harmless from, and indemnify City including its officers, agents, and employees against, any loss or damage or claim arising out of City's action in collecting monies owed to it under this paragraph, except for any loss, damage, or claim caused by the negligence or willful misconduct of City or its employees. D. Notice of Termination. If in the event default occurs, and after due notice identifying the default, the defaulting party has failed to cure, the complaining party may at any time after the expiration of any cure period terminate this Lease by providing written notice of termination. The Lease will be terminated on the date specified in the notice but not sooner than five (5) business days after the postmarked date of the notice. Rental payments are payable only to the date of termination. This Subsection is subject to the requirements set out in Subsection B of this Sec tion. 16. Property Rights upon Expiration or Termination. A. Removal of Equipment. upon termination or expiration of this Lease, Lessee may remove all equipment on the Premises so long as Lessee removes same within 30 calendar days after termination or expiration of the Lease. Any damage to the Premises caused by Lessee's removal of its property must be repaired by Lessee within 15 business days after termination or expiration of the Lease, at Lessee's expense, and to the satisfaction of Aviation Director. Notwithstanding the foregoing, if Lessee fails to remove equipment within 30 days from the date of termination or expiration of this Lease, then City Manager, may at his or her option, 8 take title to the said personalty and sell, lease or salvage the same, as permitted by law. Any net expense City Manager incurs on behalf of City in disposing of the personalty must be paid by Lessee within 10 days of City Manager's written demand thereof. City Manager will provide Lessee with a written itemized breakdown of the costs recaptured, if any, by the sale, lease or salvage of the property, and the balance due, which must be paid by Lessee upon receipt of said itemized breakdown. B. Holdover. Any holding over by Lessee of the Premises after the expiration or other termination of this Lease will be on a month -to -month tenancy at sufferance, at the then current monthly rental rate, and Lessee agrees to surrender the Premises upon 30 days written notice. Failure to timely surrender Premises following notice subjects Lessee to a monthly holdover fee of the then current monthly rental rate for each month of delay, in addition to payment of rent. 17. Re- delivery of Premises. Upon expiration or termination of this Lease, Lessee must deliver the Premises to City peaceably, quietly and in as good condition as the same now are or may be hereafter improved by Lessee or City, normal use and wear thereof excepted. In addition to a landlord's lien provided by the law of the State of Texas, the Airport has a contractual lien on all property of Lessee on the Premises as security for nonpayment of rent. 18. Lessee's Maintenance Obligations. A. Premise. Lessee must maintain the Premises in good appearance and repair, and in a safe condition at its expense. Lessee must, as much as practicable, ensure that the Premises are maintained free of foreign object debris (FOD) and shall control soil erosion on the Premises. B. Quality of Maintenance. Aviation Director is the sole judge of the quality of Lessee's maintenance, which must be reasonable and consistent with other Airport properties. Aviation Director may at any time, during City's normal business hours, without prior notice, enter upon the Premises to determine if Lessee is fulfilling the maintenance requirements of this Lease. Aviation Director must notify Lessee in writing of any default. If the required maintenance in Aviation Director's notice to Lessee is not commenced by Lessee within 15 business days after receipt of written notice, or is not diligently prosecuted to completion, Aviation Director may enter upon the Premises and perform the subject maintenance, and Lessee agrees to reimburse the Airport for its cost plus 20% overhead within 30 days after Aviation Director's written demand therefor, together w ith copies of all bids for the repairs and maintenance. C. Correct Hazards. Lessee must immediately correct any hazardous or potentially hazardous condition on the Premises upon knowledge thereof, or after receipt of notice from Aviation Director, whichever occurs sooner. At Aviation Director's discretion, Lessee must close the Premises, or affected portion, until the hazardous or potentially hazardous condition is removed or corrected. 9 19. City Obligations. To operate Corpus Christi International Airport as a public airport during this Lease subject to the assurances given by City to the United States Government under the Federal Airport Act. 20. Indemnification. A. GENERAL - Lessee must indemnify, hold harmless, defend and insure the City of Corpus Christi, its officers, agents, and employees from and against any and all claims and causes of action, administrative proceedings, judgments, penalties, fines, damages, losses, demands, liabilities, or expenses whatsoever (including reasonable attorney's fees and costs of litigation, mediation and/or administrative proceedings) which may be brought, alleged, or imposed against the City, its officers, agents, or employees arising directly or indirectly from or in any way connected with (i) any property damaged or loss, personal injury, including death, or adverse effect on the environment arising out of Lessee's action or inaction with regard to the operations of Lessee hereunder, including the use or occupancy of the Premises, or in providing access to secured areas of the Airport as set out herein, excepting only that liability as may result from the gross negligence or the willful misconduct of the City, including its officers, agents, and employees: (ii) the failure of Lessee. its agents or employees, to comply with the terms and conditions of this Lease, or to comply with any applicable federal, state, or local laws, rules, regulations, or orders including, but not limited to, any and all applicable federal, state, or local environmental laws, rules. regulations, or orders: or (iii) release of any hazardous or regulated substances or waste onto, into, or from the Premises or other Airport property, connected in any way with Lessee's operations or the action or inaction of Lessee, its agents or employees, regardless of whether the act, omission, event, or circumstance constituted a violation of applicable law at the time of the occurrence. The rights and obligations set forth in this Paragraph shall survive the termination of this Lease. B. SPECIAL CLAIMS - Lessee agrees to defend, at its own cost, and to protect, indemnify, and otherwise hold harmless, the City, including its officers, agents, and employees (including but not restricted to the posting of bond and release of attachment) from and against any and all claims in any way arising out of or in connection with the repair or maintenance work undertaken hereunder by, through or on behalf of Lessee, including but not restricted to attachments, liens or levies. and whether or not the claim is meritorious, made, failed or asserted by any party other than Lessee against the City, including its officers, agents, and employees or the Premises thereon or part thereof. or monies owing to the Airport. C. NOTICE - Notwithstanding the above identifications, Lessee must give Aviation Director notice of any matter covered hereby and forward to Aviation Director copies of every demand, notice, summons, or other process received in any claim or legal proceeding covered hereby within 10 working days of Lessee's receipt of said notice, demand, summons, or other process. D. INDEMNITY WAIVER - Lessee, if a charitable association, corporation, entity, or individual enterprise having or claiming an immunity or exemption (statutory or otherwise) from 10 and against liability for damage or injury to property or persons, hereby expressly waives its right to plead defensively the immunity or exemption as against City, including its officers, agents, or employees, as the case may be, 21. Insurance. Lessee must provide insurance in the amounts and types of coverages required by the City's Risk Manager ( "Risk Manager "), a copy of which is attached and incorporated as Exhibit B. Lessee's insurance company must provide Aviation Director and Risk Manager certificate(s) of insurance 30 days prior to the annual anniversary date of the Effective Date of the Lease, which shows the level and type of insurance. Lessee's insurance company must provide Aviation Director 30 days written notice, by certified mail, prior to cancellation, non - renewal, or material change in the insurance policy(ies). Risk Manager will annually assess the level and types of insurance required by the Lease. Risk Manager can increase or decrease the level or types of insurance by giving Lessee notice no less than 60 days prior to the annual anniversary date of the Effective Date of the Lease. Lessee has 30 days to procure the changed insurance and provide written proof of insurance to Aviation Director. All insurance required by this Lease must be primary insurance and not in excess of or contributing with other insurance which Lessee may carry. All policies must name City as an additional insured or loss payee. Lessee's insurance policies, as required by this Lease, must apply separately to City as if separate policies had been issued to Lessee and City. The amounts of all required insurance policies must not be deemed a limitation of Lessee's covenant to indemnify City, and if Lessee or City becomes liable in an amount in excess of the amount(s) of said policies, then Lessee must indemnify City from the whole thereof, except in the event of grossly negligent or willful misconduct on the part of City, its officers, or employees. 22. Notice. Notices are sufficient if in writing and sent by certified mail, return receipt requested. postage prepaid, or by overnight delivery service as addressed below: If to City: Aviation Director Corpus Christi International Airport 1000 International Drive Corpus Christi, Texas 78406 If to Lessee: James Charles Bernsen 4512 FM 1889 Robstown, Texas 78380 Or to any other address that may be designated in writing from time to time. 23. GENERAL PROVISION. A. Mineral Rights. City -- expressly reserves all water, gas, oil and mineral rights in and under the soil beneath the Premises. 11 B. No Waiver of Forfeiture. Any failure or neglect of City Manager or Lessee at any time tc declare a forfeiture of this Lease for any breach or default whatsoever hereunder does not waive City's or Lessee's right thereafter to declare a forfeiture for like or other or succeeding breach or default. C Force Majeure. Neither City nor Lessee will be deemed to be in breach of this Lease if either is prevented from performing any of its obligations hereunder by reason of Force Majeure. Force Majeure means any prevention. delay, or stoppage due to strikes, lockouts, labor disputes, acts of God, including inclement weather and /or periods of rain or snow, inability to obtain labor or materials, or reasonable substitutes therefore, governmental restrictions or requirements, governmental regulations. governmental controls, inability to timely obtain governmental approvals, enemy or hostile governmental action, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform. All of the foregoing events excuse the performance by either party for a period equal to any prevention, delay, or stoppage, including the obligations imposed with regard to commencement or payment of rental and other charges to be paid by Lessee pursuant to this Lease and the obligation of City to deliver the Premises. D. Quiet Enjoyment. City covenants that it has the authority to execute this Lease, that at commencement of the Lease, City has good title to the Premises and that throughout the term hereof, Lessee will have peaceful and uninterrupted possession of the Premises subject to its payment of rentals and other charges and to its performance of the covenants of this Lease. City agrees to remedy any violation of quiet enjoyment caused by City or one of the other Airport tenants. E. Rules and Regulations. Aviation Director may adopt and enforce rules and regulations to be uniformly applied to similar uses and users of similar space, which Lessee agrees to observe and obey with respect to the use of the Premises and the Airport, and the health, safety and welfare of those using the Premises and the Airport. F. Headings. The titles and headings in this Lease are used only for reference, and in no way define or limit the scope or intent of a provision of the Lease. G. Venue. Venue of any action brought under this Lease lies in Nueces County, Texas, exclusively. where the Lease was executed and will be performed. H. Successors and Assigns. Subject to the limitations upon assignment and transfer herein contained, this Lease binds and inures to the benefit of the parties hereto, their respective heirs, successors, and assigns. 1. No Third Party Benefit. No provision of this Lease creates a third party claim against the City of Corpus Christi. the Airport, or Lessee, beyond that which may legally exist in the absence of any such provision. J. Taxes and Licenses. Lessee must pay all taxes of whatever character, including ad valorem and intangible taxes, that may be levied or charged upon the Premises or operations 12 hereunder and upon Lessee's rights to use the Premises, whether the taxes are assessed against Lessee or City, prior to the past due date. Lessee must pay any and all sales taxes arising in connection with its occupancy or use of the Premises whether the taxes are assessed against Lessee or City. Lessee must obtain and pay for all licenses or permits necessary or required by laic for the installation of equipment, and any other licenses necessary for the conduct of its operations hereunder. If Lessee wishes to contest any tax or charge, that contest will not be a default under the Lease so long as Lessee diligently prosecutes the contest to conclusion and promptly pays whatever tax is ultimately owed. Further, Lessee must pay any taxes not being contested prior to the past due date K. Trash and Refuse. Lessee must arrange for the collection and lawful disposal of all trash and other refuse resulting from its operation on the Premises. Lessee must provide and use suitable sealed fireproof receptacles approved by Aviation Director for all trash and other refuse generated by Lessee's use of the Premises within Lessee's leased area. Piling of boxes, barrels or other similar items in or within view from a public area is not permitted. Lessee must comply with all applicable laws and regulations relative to trash disposal and Lessee must pay the costs associated with trash removal and disposal. L. Estoppel. Both parties agree that at any time and from time to time at reasonable intervals, within fifteen (15) days after written request by the other party, said party will execute, acknowledge and deliver to the party designated by the other party, a certificate in a form as may from time to time be provided, certifying the following, as well as any other provision reasonably requested by the other party: (a) that Lessee has entered into occupancy of the Premises and the date of said entry if requested; (b) that this Lease is in full force and effect, and has not been assigned, modified, supplemented or amended in any way (or if there has been any assignment, modification, supplement or amendment, identifying the same); (c) that this Lease represents the entire agreement between City and Lessee as to the subject matter hereof (or if there has been any assignment, modification, supplement or amendment, identifying the same); d) the date of commencement and expiration of the term; (e) that all conditions under this Lease to be performed by City. if any, have been satisfied (and if not, what conditions remain unperformed); (0 that to the knowledge of the signor of said writing, no default exists in the performance or observance of any covenant or condition in this Lease and there are no then existing defense or offsets against the enforcement of this Lease by City, or instead specifying each default, defense or offset of which the signor may have knowledge; and (g) the amount of rent or other rental, if any, that has been paid in advance and the amount of security, if any, that has been deposited with City, M. Publication Costs. All costs for publication of notice of this Lease required by the City Charter must be paid by Lessee. 13 EXECUTED IN DUPLICATE ORIGINALS this'* day of 2006, by the authonzed representative of the parties. Attest: 1 Armandi Chapa City Secretary City of Corpus Christi Gegfige . Noe City Manager Approved as to Legal Form on \ k.0 \2 -QiY- 9 , 2006 By Wendy E. 0 Assistant City Attorney For City Attorney LESSEE: By: - C J ,f� es Charles Bernsen Owner AUTHOlillAs CT tCOICll. PLIPIPO CFrzrTdav PIL 14 EXHIBIT A PREMISES S!« 2: ESw»US SdwS ' ) F i j C : S L M R\ AIV N AL y RI COfPUg CER £, f XA 2\E 15 EXHIBIT B INSURANCE REQUIREMENTS Lessee Liability Insurance Lessee must not commence work under this agreement until all insurance required herein is obtained and such insurance approved by the City. Lessee must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. Lessee must furnish to the City's Risk Manager, two (2) copies of Certificates of Insurance, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. The City must be named as an additional insured for the General Liability policy and a blanket waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -day written notice of cancellation, termination, non - renewal or material change is required on all certificates Bodily Injury and Property Damage Per occurrence aggregate Commercial General Liability or Farm Liability coverage including: Commercial Broad Form 2. Premises — Operations 1, . Products/ Completed Operations Hazard 4. Contractual Liability 5. Independent Contractor 6. Broad Form Property Damage 7. Personal Injury 8. Herbicide/ Pesticide Liability $1,000,000 Combined Single Limit Farm Auto Liability or Automobile Liability - - -- $1,000,000 Combined Single Limit owned, non -owned or rented Workers' Compensation or Farm/ Ranch Owners Liability Employers Liability Applicable if employs any one other than himself/ herself Which complies with the Texas Workers Compensation Act $500,000 in the event of accidents of any kind, Lessee must furnish the Risk Manager with copies of all reports within (10) ten days of any accident. 2006 Airport Farm land tease ins. req 10 -17 -06 ep Risk Mgmt 16 1I. ADDITIONAL REQUIREMENTS Lessee must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and with endorsements approved by the Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred by the Successful Bidder will be promptly met. Certificate of Insurance The City of Corpus Christi must be named as an additional insured on the General Liability coverage and a blanket waiver of subrogation is required on all applicable policies. If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must be amended by adding the wording "changed or" between "be" and "canceled ", and deleting the words. "endeavor to ", and deleting the wording after "left ". In lieu of modification of the ACORD form, separate policy endorsements addressing the same substantive requirements are mandatory. The name of the project must he listed under "Description of Operations" At a minimum. a 30 -day written notice of cancellation, material change, non - renewal, termination is required. If the Certificate of Insurance on its face does not show the existence of the coverage required by items 1.B (1) -(8), an authorized representative of the insurance company must include a letter specifically stating whether items 1.B (1) -(8) are included or excluded. 2006 Airport Farm land lease ins. req. 10-17 -06 ep Risk Mgmt 17 EXHIBIT C AIRCRAFT OPERATION AREAS SITE PLAN X. 1.IR C T \. w 0 100 400' GRAPHIC SCALE SPECiaLNY wwoew v rENANCE Et= . p.cOMp' roew irHY W4 Gaq fO iERwCE Rp IRONRTWt RyONI ilAP01T ,51YW1 SW[OIIO;., MNMT_SfdROE MOVEMENT AREA 40N-MOVEMENT AREA CTIVE AREA 1.00ATi.Jf. •1 AIRPORT MOVEMENT/NON OVEMENT AREAS CORPUS CHRISTI INTERNATIONAL AIRPORT CORPUS 'CHRISTI. TEXAS 18