HomeMy WebLinkAbout2005-06-02 - Agendas - Final AGENDA FOR SPECIAL CALLED AIRPORT BOARD MEETING
1 :30 pm, June 2, 2005
Airport Conference Room
4500 S. School Avenue
1. Welcome and agenda review. Chairman Nickle
• 2. Fixed Base Operator (FBO) Contract
Action Requested: Approval to forward contract to the City Council.
3. Adjourn.
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AIRPORT USE AND LEASE AGREEMENT
FOR
FIXED BASE OPERATIONS
By and Between
FAYETTEVILLE MUNICIPAL AIRPORT, DRAKE FIELD
• THE CITY OF FAYETTEVILLE, ARKANSAS
and
WOOLSEY AVIATION, INC., INC.,
d.b.a. MILLION AIR OF FAYETTEVILLE
Dated as of August 1, 2005
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• TABLE OF CONTENTS
Section Caption/Heading Pa e
l Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 4
2 Demised Premised. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Rental. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6 Minimum Annual Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7 Lease Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Improvements and Alterations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
9 Transfer of Woolsey Aviation, Inc., Title and Interest
to the Airport. . . . . . . . . . . . . . . . . . . . . .... . . . . . . . . . . . ... . . . . . 15
10 FAA Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. IS
11 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12 Security Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
13 Hazardous Waste/Substances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14 Utilities — Installation and Service Charges. . . . . . . . . . . . . . . . 19
15 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
16 Indemnification and Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
17 Maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
18 Advertising. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
19 Fixtures and Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 22
20 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
• 21 Disadvantaged Business Enterprise (DBE) Assurances. . . 23
22 Non-Discrimination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
23 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
24 Right to Terminate not Exclusive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
25 Termination by Woolsey Aviation, Inc. . . . . . . . . . . . . . . . . . . . . . 26
26 Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 26
27 Protection from Violation — Moral Purposes. . . . . . . . . . . . . . . .. 26
28 Rules and Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
29 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
30 Estoppel Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28
31 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
32 . Invalidity of Particular Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 .
33 General Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
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• TABLE OF CONTENTS (continues)
Caption/Heading Page
Exhibit A Survey of Demised Premises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 40
Exhibit B Airport Layout Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Exhibit C Final Site Development Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
Exhibit D Equipment List. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Attachments Pages
Attachment # Airport Owned Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Attachment # Formula for Rental Increases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...
Attachment # "The Minimum Standards
for Fayetteville Municipal Airport Drake Field... . . . . . . . . .
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• AIRPORT USE AND LEASE AGREEMENT
FOR FUEL AND LINE SERVICES FIXED BASE OPERATIONS
between
FAYETTEVILLE MUNICIPAL AIRPORT, DRAKE FIELD
and
WOOLSEY AVIATION, INC., INC., dba MILLION AIR OF FAYETTEVILLE
THIS AIRPORT USE AND LEASE AGREEMENT, (the "Lease") made and
entered into as of this day of 2005 (the "Effective Date") by and
between the City of Fayetteville, represented by the Fayetteville Municipal Airport,
Drake Field, a body politic and corporate organized and existing under and by virtue of
the laws of the State of Arkansas and Woolsey Aviation, Inc., Inc., a Texas Corporation,
doing business as Million Air of Fayetteville.
WITNESSETH:
WHEREAS, the City of Fayetteville owns and operates the Fayetteville
Municipal Airport, Drake Field located in Washington County, Arkansas, hereinafter
called the "Airport", and
WHEREAS, the City of Fayetteville Mayor and City Council, along with the
Airport Administration in consultation with the Airport Advisory Board desire to contract
with Woolsey Aviation, Inc., for fuel and line services, and
WHEREAS, Woolsey Aviation, Inc., desires to lease from the Airport certain
premises for the purpose of operating a fuel and line service Fixed Base Operation, and
• WHEREAS, Woolsey Aviation, Inc. desires to obtain from the Airport certain
rights, licenses, and privileges for the establishment and operation of a Fixed Base
Operation, hereinafter the "FBO" and
WHEREAS, the Airport represents that it has the right to lease the premises
together with all the facilities, rights, licenses, services and privileges in the manner and
to the extent hereinafter set forth:
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter continued, the parties agree for themselves, their successors, legal
representatives and assignees, as follows:
1 . Consideration. That each of the aforesaid parties acknowledges the receipt of a
valuable consideration from the other and that they and each of them act herein in
further consideration of the engagements, of the other as herein stated.
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• 2. Demised Premised. The Airport warrants and represents that it is the owner in
fee simple of all of that certain land, the Airport, situated in Washington County,
Arkansas.
The Airport, for and in consideration of the rents to be paid and the obligations to
be performed by Woolsey Aviation, Inc., as hereinafter provided, does hereby
demise and lease unto Woolsey Aviation, Inc., subject to the conditions
hereinafter expressed, the premises described as the Demised Premises and
identified as FBO in said Exhibit "A", as described as follows.
2. 1 The Premises described as 2000 square feet, plus or minus, of the Airport
Terminal Building plus non-exclusive use of areas in common with other
tenants to include imaging and signage as approved by the Airport.
2.2 The FBO Hangar, an 18,750 square foot heated aircraft storage hangar
located on the Executive Aircraft Parking Ramp south of the Terminal
Building.
2.3 The premises described as the FBO ramp containing 150,000 square feet,
plus or minus, in a space approximately 600 feet by 250 feet adjacent to
the Airport Terminal Building. Additionally, the Parties acknowledge and
agree that Woolsey Aviation, Inc.'s operations may require the use of
certain ramp and/or apron area contiguous and adjacent to the FBO ramp.
The Airport hereby grants to Woolsey Aviation, Inc. the right of
preferential use of the ramp and/or apron area as hereinafter described
provided; however, Woolsey Aviation, Inc. shall at all times and without
hindrance or obstruction, provide for the ingress and egress of aircraft to
• Airport taxiways, runways, ramps and /or aprons.
2.4 The area designated the Fuel Farm. Woolsey Aviation, Inc., shall have
exclusive right to operate and store aviation fuels in the Fuel Storage tanks
located on the West side of the airport near the FAA Facilities
Maintenance facility.
2.5 Woolsey Aviation, Inc. shall also have and is hereby granted the right to
traverse all public taxiways, runways and ramps on property owned by the
Airport, and roads at the Airport. Such rights shall be subject to the
requirements of this lease Agreement, the provisions of similar subsequent
agreements and Federal Aviation Administration ("FAA") regulations.
3. Use. Woolsey Aviation, Inc. shall use the Demised Premises for the operation of
the flight line and fuel service FBO to include the storing, alteration, additions,
modification, cleaning, repairing, maintaining and servicing aircraft, aircraft
components and subcomponents in conducting its business operations, and the
provision of FBO services to the traveling public. Subject to the prior written
approval of the Airport, Woolsey Aviation, Inc. shall also have the right to use the
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• Demised premises for other purposes ancillary or related to its FBO business.
Woolsey Aviation, Inc. and its successors and assigns, including any successor
holding by or through any mortgagee of Woolsey Aviation, Inc.'s interest shall
have the right to use the Demised Premises for other purposes than those
previously specified, but only with the prior written consent of the Airport.
Woolsey Aviation, Inc. shall at all times use the Demised Premises in full
compliance with all rules, regulations and requirements of the FAA and the
Airport, all terms and conditions of this Lease Agreement and such other
agreements as may be entered into by and between the Airport and Woolsey
Aviation, Inc. will not attempt to modify the terms and conditions of any
agreements hereunder without the prior written consent of the Airport. Nothing
contained herein shall be construed to grant or authorize the granting of an
exclusive right within the meaning of Section 308 of the Federal Aviation Act of
1958 (Title 49 USC 40103 and 47107), as amended. It is understood that
Woolsey Aviation, Inc., shall refer business to established airport based
businesses whenever possible, including but not limited to avionics repair,
aircraft maintenance and charter businesses.
4. Term. TO HAVE AND TO HOLD the Demised Premises unto Woolsey
Aviation, Inc., its successors and assigns, for the term hereinafter set forth:
4. 1 Commencing on the date hereof and continuing for a period of five (5)
years (hereinafter the "Term"), beginning the 1 " day of August, 2005 (the
"Commencement Date"). Woolsey shall have the right to extend this
agreement for three (3) five (5) year option periods. All rental terms shall
be negotiated and agreed upon prior to 90 days before the end of the then
current term and the negotiated terms shall then be presented to the
• Airport Board and the City Council for approval of the terms and the
renewal of this agreement.
5. Rental.
5. 1 Terminal Rent: The rent for Terminal space, ± 2000 square feet, shall be
in accordance with the following schedule:
Year 1 @ $ 1 ,000.00 per month August 1 , 2005-July 31 , 2006
Year 2 @ $1 ,750.00 per month August 1 , 2006-July 31 , 2007
Year 3 @ $2, 100.00 per month August 1 , 2007-July 31 , 2008
Year 4 @ $2,400.00 per month August 1 , 2008-July 31 , 2009
Year 5 @ $2,700.00 per month August 1 , 2009-July 31 , 2010
The rent shall include utility services connected with water, sewer, HVAC
and solid waste removal. The rent shall not include cable, WSI, Data and
telephone which shall be the responsibility of the tenant.
5.2 FBO Hangar Rent: The FBO Hangar is an 18,750 Square foot Heated
Hangar building and will be managed by Woolsey Aviation, Inc. The rent
for the FBO Hangar shall be in accordance with the following schedule:
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• Year 1 @ $2,000.00 per month August 1 , 2005-July 31 , 2006
Year 2 @ $2,250.00 per month August 1 , 2006-July 31 , 2007
Year 3 @ $2,500.00 per month August 1 , 2007-July 31 , 2008
Year 4 @ $2,750.00 per month August 1 , 2008-July 31 , 2009
Year 5 @ $3,000.00 per month August 1 , 2009-July 31 , 2010
The tenant shall provide utilities to the building including water, sewer,
electric and gas service. The Airport shall provide solid waste removal.
5.3 FBO Ramp Rent: The FBO Ramp is approximately 150,000 square feet
of aircraft parking ramp and will be managed by Woolsey Aviation, Inc..
The rent for the FBO ramp is free in return for normal pavement
maintenance.
5.4 Parking Lot Rent: Woolsey Aviation, Inc. shall have the right to utilize
as much of the Airport parking lot as necessary to conduct its FBO
business. The use of such parking area shall be in cooperation with other
tenants of the airport and the Airport Terminal Building. Designated
parking areas shall be negotiated should it be required in the future and
signage for such shall be approved through the City of Fayetteville and by
the Airport Administration.
5.5 FBO Equipment Rent: Airport owned equipment is listed at Attachment
#fid contains the approximate fair market value- each item. The_ _ Deleted: _
parties agree that Woolsey Aviation, Inc. shall maintain exclusive control
of any and all of the listed equipment that Woolsey Aviation, Inc. requires
in the conduct of Woolsey Aviation, Inc.'s business. For this exclusive
control the rent for the selected equipment shall be negotiated. Should
• Woolsey Aviation, Inc. and the Airport not be able to reach terms
agreeable to both parties, the Airport may elect to store or dispose of such
equipment IAW the City of Fayetteville disposal process.
5.6 Rental Payments. Said rental payments, and any other payments due to
the Airport under this lease, shall be made payable to the City of
Fayetteville. All rent shall be paid in lawful money of the United States of
America, and the burden of proof of payment of the rent in case of
controversy shall be upon Woolsey Aviation, Inc., Inc.
5.7 Rental Payment Reduction. Should any portion of the Demised
Premises be taken or rendered unsuitable, as defined herein, for the use
intended, then the rental payments shall be reduced in proportion to which
the area so taken or unsuitable bears to the total area of the Demised
Premises.
5.8 Rental Payment Increases: Rental payments shall increase in
accordance with the schedule in sections 5.2 and 5.3 through year 5 of this
agreement. Beginning with the first renewal option of this agreement,
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• barring other renewal agreements, the rent payments shall increase at a
rate of the increase in the CPI (All Urban Consumers, All Items, U. S.
Average) plus 1%, every 2 years and with renewal. The formula for such
increases is located at Attachment #2 oekted: —
5.9 Payment of Revenues Collected for the Airport. During the Tenn of
this Lease, Woolsey Aviation, Inc. covenants and agrees to remit to the
Airport, no later than the tenth (10 ) day of the month following the
month of receipt, any and all revenue collected by Woolsey Aviation, Inc.
from aircraft users and others on behalf of the Airport: including, but not
limited to, (a) fuel flowage fees and aviation fuel taxes as set forth in
Section 7.3(a) hereof-, and (b) landing fees and other fees as set forth in
Section 7. 13 hereof. The burden of proof of payment of such fees and
other revenue shall be upon Woolsey Aviation, Inc.
5. 10 Monthly Late Charge. If any monthly rental payment, or any other
payment due under this Lease, is not received by the fifteenth ( 15'") day of
the month when such payments are due, the Lessee shall be liable for a
monthly late charge of Five Hundred and 00/100 Dollars ($500.00). Prior
unpaid late charges will be included in the total unpaid balance for the
purpose of calculating subsequent monthly charges. The late charges are
due one month from the date late charges are calculated. It is understood
and agreed that this or any other late charge is not a waiver of any other
rights the Airport has in this Lease.
6. Minimum Annual Fees.
• 6. 1 Provision of Financial Statements. Woolsey Aviation, Inc. shall provide
to the Airport within 90 days following the close of Woolsey Aviation,
Inc.'s fiscal year, a copy of Woolsey Aviation, Inc.'s statements of
Financial Condition. Said statements, as prepared and attested to by
Woolsey Aviation, Inc.'s Certified Public Accountant, shall include a
schedule of Woolsey Aviation, Inc.'s Gross Revenue and a Reconciliation
of such revenue to the minimum annual fees payable under this Section 6.
In the event the auditor's report reveals an understatement of Gross
Revenues reported to the Airport of more than five percent (5.0%),
Woolsey Aviation, Inc. shall be liable for and pay to the Airport the
contract percentage of gross revenue stated under this Section 6 plus a
Late Charge equal to twenty percent (20.0%) of the understated payment
due to the Airport.
7. Lease Requirements. Consistent with the requirements of Title 49 USC
40103(e) and 47107, the Airport may grant, without unjust discrimination and on
reasonable conditions, non-exclusive rights, licenses, permits and privileges to
provide Fixed Base Operation (FBO) services to the public. Each Fixed Base
Operator similarly using the Airport shall be subject to the same charges and
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• certain and specific minimum standards for FBO services to the public; including,
but not limited to, the provision of such facilities and equipment as are required to
provide for and perform a consistently high level of service, use and the provision
of products to the traveling public and the aviation industry on a twenty-four (24)
hour, 365 day per year basis. The Airport hereby covenants that the minimum
standards for FBO services at the Airport shall be no less than those minimum
service requirements set forth in Sections 7. 1 and 7.2 of this Lease. In
consideration of the right, license, permit and privilege granted hereunder by the
Airport to Woolsey Aviation, Inc. for the establishment and operation of the FBO,
Woolsey Aviation, Inc. agrees and covenants that it shall develop implement,
maintain, and do all things necessary to provide and comply with said minimum
FBO standards and requirements. Each FBO using the Airport shall assume
obligations substantially similar to those already imposed on Woolsey Aviation,
Inc. hereunder.
7. 1 Facilities. In consideration for the Tenn provided in the Lease, Woolsey
Aviation, Inc. shall invest approximately $ 150,000.00 for the design,
construction, and equipping of FBO facilities; including, but not limited
to:
(a) Contribute to the design, construction, furnishing and equipping of
the General Aviation facility in the Terminal Building for Woolsey
Aviation, Inc. 's FBO operations. As a minimum requirement, . .
Woolsey Aviation, Inc. demised premises shall contain sufficient
space and equipment for the provision of the following services or
functions: customer lounge, customer service reception area, line
service ready room and offices, pilot's lounge and sleep rooms,
• weather briefing area, conference room, and vending areas
sufficiently equipped to meet the needs of the traveling public.
(b) Acquire sufficient aircraft handling equipment for Woolsey
Aviation, Inc.'s FBO, use. Woolsey Aviation, Inc. shall expend a
sufficient capital investment to equip the 18,750 square foot hangar
building for its use.
7.2 Eauioment. Woolsey Aviation, Inc. shall provide such refueling and
ground support equipment as is required and necessary to the proper
conduct of Woolsey Aviation, Inc.'s FBO business: including, but not
limited to, the listing of capital equipment set forth as Exhibit "D';
provided, however, that Woolsey Aviation, Inc. may, with the Airport's
prior written consent, increase or decrease the amount and type of
equipment in accordance with Woolsey Aviation, Inc.'s operational .
requirements. The Airport's consent under this Section 7.2 shall not be
unreasonably withheld; provided, however, that Woolsey Aviation, Inc.
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• shall at all times provide such equipment as is required for Woolsey
Aviation, Inc. to comply with the requirements of this Lease.
7.3 Fuel Farm. Woolsey Aviation, Inc. shall operate and maintain the fuel
farm IAW the following provisions for the storage of fuels:
(a) License to Dispense Fuels. The parties agree that Woolsey
Aviation, Inc. is granted an exclusive license to dispense aviation_ - - - Deleted: shall be c«axd
fuels under permit, subject to Woolsey Aviation, Inc.'s collection
and remittance, for and on behalf of the Airport, a fuel flowage and
storage fee in the initial amount of $. 10 (ten cents) per gallon, or
such an amount as may hereafter be established by the Airport on
all fuel delivered to and offloaded into the existing Fuel Farm.
(b) Woolsey Aviation, Inc. Fuel Farm Requirements. In
consideration of the license to Dispense Fuels granted under
Section 7.3 (a), Woolsey Aviation, Inc., at its sole expense, shall
at all times during the Term maintain, preserve and keep in good
repair the .above ground Fuel Farm and any facilities related
thereto. Before accepting this responsibility, by signature here on,
the parties shall agree, after sufficient inspection, that the fuel farm_ _ - ceieted: sY
is in good repair and up to standard as required for the operation
and maintenance of such facilities. Woolsey Aviation, Inc. shall
develop a Fuel Storage and Handling Procedures Manual which
meets all requirements of statute, rule or regulation for the storage
and handling of fuels. Woolsey Aviation, Inc. shall at all times
provide employees trained in fuel handling, fuel storage facilities
• and fire safety, and provide the Airport with documented evidence
of such training. Woolsey Aviation, Inc. shall conduct daily
operational checks of all fuel storage facilities and fueling vehicles
to ensure protection of fuel quality and readiness of facilities and
equipment, and the detection of water or other contamination,
system leakage and/or spills. Woolsey Aviation, Inc. shall
implement and maintain stringent procedures for the control and
monitoring of all fuel and de-icing inventory levels. Such
inventories shall be managed in strict compliance with the
standards and proceduies of air carriers, fuel suppliers, and the
Airport. Woolsey Aviation, Inc. shall implement and maintain
procedures which monitor and report fuel receipts into storage,
delivery out of storage, and delivery of product into aircraft and/or
ground service vehicles. Consistent with the availability of
adequate measuring devices, Woolsey Aviation, Inc. shall
account for all inventory to a minimum standard of tolerance
within a range of plus/minus one-half of one percent.
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• 7.4 Minimum Service Requirements. Woolsey Aviation, Inc. shall, as a
minimum requirement and at its expense, provide Line Services, as more
fully defined in this Section 7.4, and the operation and maintenance of the
Fuel Farm, as set forth in Section 7.3(b). Line Services shall include the
following services:
(a) The sale and dispensing of aviation fuels and lubricants, and the
provision of refueling services to owners of commercial passenger,
cargo carrier, general aviation and military aircraft.
(b) The sale and dispensing of aircraft de-icing fluids and the
provision of de-icing services to aviation operators and their
aircraft.
(c) Ground handing and aircraft support services; including, but not
limited to, the provision of auxiliary ground power and air systems,
passenger handling, baggage handling, towing, lavatory servicing,
potable water servicing, and other common ground support
services.
(d) The provision of other services to general aviation and military
aircraft passengers; including, but not limited to, hotel and
transportation accommodations, in-flight catering, shuttle
transportation, and other common passenger services.
(e) The provision of aircraft arrival, parking, tie-down, aircraft
storage, and aircraft hargaring services.
• (f) The provision of aircraft towing and disabled aircraft removal for
aircraft up to and including narrow body air carrier aircraft.
(g) The provision of passenger security screening as required by
applicable regulations at the request of charter services serving the
airport.
7.5 Permitted Services. Woolsey Aviation, Inc. may, at its sole expense and
discretion, provide the following services:
(a) Cargo handling services to include the loading and unloading of
commercial cargo aircraft.
(b) Aircraft charter, air taxi, aircraft rental services and automobile
rental services.
(c) Such other services and uses as are consistent with the business of
a full service FBO, subject to the written prior consent of the
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Airport. Businesses which are already located on the airport will
• receive preferential treatment if possible when requesting consent
of the Airport to provide such other additional services.
7.6 Refueling Operations. Woolsey Aviation, Inc. shall develop, implement
and maintain operational procedures for the refueling operation of the
FBO and the Fuel Farm; including, but not limited to, operational and
safety procedures and regulations, fuel spill and emergency response
requirements; and demonstrated compliance with all requirements of
appropriate sections of the National Fire Protection Association (NFPA)
Code 407, ATA 103, FAR Part d139, and 14 CFR Part 139.
7.7 Ground Handling. Woolsey Aviation, Inc. shall develop, implement and
maintain operational procedures for receiving, marshaling, shut-down,
parking, servicing, securing, start-up and dispatching aircraft from
Woolsey Aviation, Inc. 's flight line. The procedures shall include, but not
be limited to, flight line safety, driving safety, the provision of lead-in
vehicles, the use of hand signals, and the movement, coordination and
control of personnel, ground equipment and vehicles in FAR Part 107 and
AOA movement areas.
7.8. TowinetClearine Disabled Aircraft. Woolsey Aviation, Inc. shall
provide and make available on a 24-hour, seven-day a week basis
adequate towing equipment and trained personnel to tow and/or clear all
categories of aircraft normally and routinely expected to be handled by the
FBO, including aircraft to and including Gulfstream V and narrow body
air carrier aircraft. Woolsey Aviation, Inc. shall maintain and implement
• an emergency plan to remove any disabled general aviation aircraft from
the runway, taxiway and aprons of the Airport, including but not limited
to, the provision of tow tractors, tow bars, air gags, jacks, straps, and
access to heavy lift equipment (forklifts and cranes) as may be required to
execute the emergency plan, in cooperation with Airport maintenance
personnel.
7.9 Communications. Woolsey Aviation, Inc. shall develop, implement and
maintain FCC approved two-way radio communications procedures and
an operational plan which insures the provision of internal operational
communications having a minimum range of five (5) miles, and air-to-
ground communications between the FBO and arriving/departing aircraft
having a minimum range of 75 miles.
7. 10 Safety. Woolsey Aviation, Inc. shall develop, implement and maintain
safety programs and procedures, including inspections, checklists and
tests, to ensure the operational safety of the FBO, the documentation and
reporting to the Airport of any potential safety hazards, and the training
and certification of all service personnel.
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• 7. 11 Emereencv Plan. Woolsey Aviation, Inc. shall develop, implement and
maintain an operational plan to respond to general aviation emergencies,
including aircraft incident handling, recall procedures for aircraft salvage
requirement, and foul weather contingency plans including snow, high
winds and power outages. The Emergency Plan shall be in coordination
with Airport Administration and shall include coordination with the
airport maintenance staff, the City of Fayetteville Fire Department, and the
City of Fayetteville Police Department.
7. 12 Staffing. Woolsey Aviation, Inc. shall develop, implement and maintain
an organizational structure and staffing plan which provides continuous
service for 24-hours per day, 365 days per year. On call services may be
used to service customers at times when the FBO is unmanned.
7. 13 Revenue Management. Woolsey Aviation, Inc. shall develop, implement
and maintain a system for the collection and remittance of landing fees,
fuel flowage fees and taxes, and other fees for the benefit of the Airport.
Woolsey Aviation, Inc. shall implement and maintain audit and reporting
procedures for such collections and remittances; provided, however, that
such procedures shall be subject to the prior written approval of the
Airport and further subject to such future modifications and/or changes as
may be reasonably required by the Airport to ensure accuracy of reporting
and audit and collection control.
7. 14 Maintenance. Woolsey Aviation, Inc. shall develop, implement and
maintain adequate maintenance of its equipment and facilities to ensure
• that at all times the FBO provides a high level of quality service and
cleanliness to the traveling public.
7. 15 Pricin . Woolsey Aviation, Inc. shall establish and maintain a pricing
policy and structure which ensures fair and clearly stated pricing which is
consistent with local, regional and national markets and based on fair and
reasonable return to the FBO and reviewed by the Airport. Current
pricing agreements for based customers will be honored to the greatest
extent possible.
7. 16 Self Service Fueling Station. The Airport plans to keep the self service
fueling station for 100LL Aviation Fuel and Automobile Fuel, located on
the east side of the airport and to purchase aviation fuel from the fuel and
line service FBO. As a provision of this agreement, the parties agree that
the Airport shall purchase aviation fuel from the FBO and that the FBO
will cause the fuel to be delivered to the fueling station. It is also agreed
that the Airport shall pay for the fuel at cost plus a delivery fee not to
exceed $. 15 per gallon. Sale to the Airport for resale shall not include
sales tax as the sales tax will be paid at the time of sale into the aircraft.
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• Self Serve pricing shall be in accordance with the approved airport pricing
formula.
8. Improvements and Alterations.
8. 1 Plans. Specifications and Permits. Plans or specifications for the
alteration of all structures shall be subject to prior written approval of the
Airport, said approval not to be unreasonably withheld. It is understood
and agreed that Woolsey Aviation, Inc. shall at all times and in every
instance comply with the requirements of the Airport, including, but not
limited to, compliance with design criteria and standards, and Federal and
state governmental requirements for the protection of the environment in
the construction of the improvements and alternations, contemplated
hereunder, including, but not limited to, a the securing of such permits as
may be required by the appropriate regulatory agencies or entities of
government. It is further understood and agreed that construction of any
such structures are also subject to the prior written approval of the FAA in
accordance with the provisions of Part 77 of the FAA regulations. The
Airport hereby agrees that it will use its best efforts to assist Woolsey
Aviation, Inc. in obtaining such approval.
8.2 Activity on Demised Premises. Woolsey Aviation, Inc. agrees. not to
conduct or permit to be conducted any activity on the Demised Premises
which would interfere with or be a hazard to flight of aircraft either to or
from the Airport, or interfere with the ground movement of aircraft at the
Airport, or interfere with air navigation and communication facilities
serving the Airport. Woolsey Aviation, Inc. agrees that no structure will
. be erected or natural objects created on the Demised Premises which
would constitute a hazard to air navigation.
8.3 Alterations. Woolsey Aviation, Inc. may make interior alterations
(structural or otherwise), minor exterior alterations and changes,
decorations and minor additions with prior approval of the Airport as long
as it does not materially change previously approved structural
improvements, violate the terms and conditions of the Lease Agreement or
violate FAA regulations. The Airport acknowledees, however. that
Woolsey Aviation. Inc. will modify the appearance and decor of all
common areas, restrooms and main lobby area to ensure that the
appearance of such areas are consistent with Million Air system
requirements as described in the Million Air Confidential Operatine
Manual.
8.4 Approvals. It is understood and agreed that this Lease is subject to the
reasonable approval by the Airport and the FAA. The Airport shall review
and conceptually approve or reject with comments such Plans within ten
( 10) days of receipt of the Plans. If the Airport would reject such Plans,
14
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• the Airport comments shall be in sufficient detail so as to allow Woolsey
Aviation, Inc. to revise and resubmit such Plans, incorporating the
Airport's comments thereto. Upon resubmission of the revised Plans by
Woolsey Aviation, Inc. to the Airport, the Airport shall review and
conceptually approve or reject with comments such Plans within ten (10)
days of receipt of the revised Plans. The foregoing process shall continue
until the Plans have been approved by the Airport; provided, however, in
the event approval of the Plans is not obtained, Woolsey Aviation, Inc., at .
its election, may terminate this Lease without further obligation to the
Airport as provided herein.
8.5 Expansion and Modification. During the Term, Woolsey Aviation, Inc.
shall have the right, subject to the reasonable approval of the Airport and
the FAA and in compliance with the terms and conditions of this Lease to
expand or modify Woolsey Aviation, Inc.'s FBO premises and ancillary
facilities thereto, and other related facilities on the Demised Premises.
9. Transfer of Woolsey Aviation, Inc. Title and Interest to the Airport. It is
covenanted and agreed that all of Woolsey Aviation, Inc.'s right, title and interest
in any buildings and improvements remaining on the Demised Premises at the
expiration of the Term of this Lease or termination of this Lease, as set forth
herein, shall at such time be and become the property of the Airport, subject only
to the rights of removal of trade equipment, trade dress, signage, and trade
fixtures from time to time installed on the Demised Premises as provided in
Section 22. Until such expiration or termination of this Lease, all right, title and
interest in any buildings and improvements on the Demised Premises shall reside
in Woolsey Aviation, Inc.; provided, however, that during the Term of this lease,
• Woolsey Aviation, Inc. shall grant to the Airport an undivided residual interest in
the fair market value of any buildings and improvements on the Demised
Premises equal to three point thirty three percent (3.33%) per annum of said fair
market value during each year of the Term.
10. FAA Approvals. The Airport and Woolsey Aviation, Inc. agree that this Lease is
made subject to, and is wholly contingent upon Woolsey Aviation, Inc.
compliance with all rules and requirements of the FAA as are or may be required
for the Airport to make and enter into this Lease.
11 . Force Maieure. If the substantial completion and occupancy of the initial
improvements to be constructed by Woolsey Aviation, Inc. upon the Demised
Premises shall be delayed or prevented by reason of strikes, lockouts, labor
troubles, without fault and beyond the reasonable control of the party obligated,
performance of such acts shall be excused for the period of delay and the period
for the performance of any such act shall be extended for a period equivalent to
the period of such delay.
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• 12. Security Control. Woolsey Aviation, Inc. agrees to control all persons and
vehicles entering any airport restricted area (including aircraft movement area)
through its leased space in accordance with the Fayetteville Municipal Airport
Drake Field Security Program and in compliance with Federal Aviation
Regulations, Part 107, as these now exist or may exist in the future.
_ - Deleted:
13. Hazardous Waste/Substances.
13. 1 Definitions. The tern "Hazardous Substances," as used in the Lease,
shall mean:
(a) Any hazardous or toxic substances, materials or wastes, including,
but not limited to, those substances, materials, and wastes listed in
the United States Department of Transportation Hazardous
Materials Table (49 CFR § 172. 101) or by the Environmental
Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto;
(b) Designed as a "Hazardous Substance" pursuant to Section 311 of
the Clean Water Act, 33 U.S. C. § 1251 et seq. (33 U.S.C. § 1321 ),
or listed pursuant to Section 307 of the Clean Water Act (33
U.S.C. § 1317);
(c) Defined as a "Hazardous Substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 6901, et seq. (42 U.S.C. § 6903); or
• (d) Defined as "Hazardous Substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 , it seq. (42 U.S.C. § 9601) or any
other substances, (including, without limitation, asbestos and raw
materials which include Hazardous constituents), the general,
discharge or removal of which or the use of which is restricted,
prohibited or penalized by any "Environmental Law", which term
shall mean any Federal, state or local law, regulation or ordinance
relating to pollution or protection of the environment.
13.2 Inspection. The Airport and Woolsey Aviation, Inc. agents and
representatives shall have the right, in the company of Woolsey Aviation,
Inc. and/or its employees or agents, to enter into or upon the Demised
Premises, or any part thereof, during normal business hours and after
reasonable notice to Woolsey Aviation, Inc., for the purpose of examining
same, including but not limited to, the right to test for Hazardous
Substances thereon and the adequacy of security to restricted areas.
Woolsey Aviation, Inc. shall have the right, but not the obligation, to
receive split samples of any sampling matter to be tested by Woolsey
16
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• Aviation, Inc. which split samples will be analyzed by Woolsey Aviation,
Inc. at Woolsey Aviation, Inc.'s expense.
13.3 Notification. If the Airport or Woolsey Aviation, Inc. discovers any
Hazardous Substances on the Demised Premises, it will promptly notify
the other party of the details of such Hazardous Substances.
13.4 Permitted Activities. Woolsey Aviation, Inc. hereby agrees that:
(a) No activity will be conducted on the Demised Premises by
Woolsey Aviation, Inc., its agents, employees, subleases, invitees
or any other party entering the Demised Premises during the term
hereof that will produce any Hazardous Substance, except for such
activities that are part of the ordinary course of Woolsey Aviation,
Inc.'s business activities (the "Permitted Activities"), provided said
Permitted Activities are conducted in accordance with all
Environmental Laws and have been approved in advance in
writing by the Airport.
(b) The Demised Premises will not be used by Woolsey Aviation,
Inc., its agents, employees, sublessees, invitees or any other party
entering the Demised Premises during the term hereof in any
manner for the storage of any Hazardous Substances except for the
temporary storage of such materials that are used in the ordinary
course of Woolsey Aviation, Inc.'s business (the "Permitted
Materials") provided such Permitted Materials are properly stored
in a manner and location in compliance with all Environmental
• Laws;
(c) No portion of the Demised Premises will be used by Woolsey
Aviation, Inc., its agents, employees, sublessees, invitees or any
other party entering the Demised Premises during the term hereof
as a landfill or dump;
(d) Woolsey Aviation, Inc. will not during the term allow any surface
or subsurface condition to exist or to come into existence that
constitutes, or with the passage of time may constitute, a public or
private nuisance; and
(e) Woolsey Aviation, Inc. will not during the Tern permit any
Hazardous Substances to be brought onto, stored, processed,
disposed of or, released, discharged from (including ground water
contamination) or otherwise handled on the Demised Premises, .
except for the Permitted Materials described above, and if so
brought or found located thereon, the same shall be immediately
removed, with proper disposal in compliance with all
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• Environmental Laws and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws.
13.5 Environmental Compliance Proeram. Woolsey Aviation, Inc. further
agrees to develop and implement an environmental compliance program
for its operations at the Demised Premises, but only to the extent required
by Federal, state or local rules, regulations, or statutes, as such may now
exist or exist in the future. Further, Woolsey Aviation, Inc. will provide a
copy of its Storm Water Pollution Prevention Plan (SWPPP), and Spill
Prevention Control and Countermeasure Plan (SPCC) to Airport
Administration, and coordinate with the Airport on implementation and
SWPPP/SPCC updates.
13.6 Indemnification. Woolsey Aviation, Inc. agrees to indemnify and defend
(with counsel reasonably approved by the Airport) and hold the Airport
and its employees and agents harmless from and against and to reimburse
said parties for any claims (including, without limitation, third party
claims whether for personal injury or real or personal property damage or
otherwise, actions, administrative proceedings (including informal
proceedings), judgments, damages, punitive damages, penalties, fines,
costs, liabilities (including sums paid in settlement of claims; provided,
however, that the Airport shall not settle any claims without the prior
written consent of Woolsey Aviation, Inc.), interest or losses, including
reasonable attorney's fees and expenses (including such fees and expenses
incurred in enforcing this Section 13.6), reasonable consultant fees, and
reasonable expert fees, together with other costs and expenses of any kind
or nature that arise from or in connection with the presence, suspected
• presence, release or suspected release of any Hazardous Substances into
the air, soil, ground water or surface water at, on, about , under or within
the Demised Premises, or any portion thereof, or elsewhere in connection
with the transportation of Hazardous Substances to or from the Demised
Premises provided that such presence, suspected presence, release or
suspected release is the result of the activities of Woolsey Aviation, Inc.,
its agents, and employees,during the term of the Lease. Deleted: , sublessees. mvitm m my
- -
- - - - - - - - - - - - - - - - - - - - - other party entering the Demised
Premises with the coo for knowledge
(a) The indemnification provided in this paragraph shall of Woolsey Aviation, Inc.
specifically apply to and include claims or actions brought
by or on behalf of employees of Woolsey Aviation, Inc.
against the Airport. The indemnification provided herein
shall specifically cover costs, including capital, operating
and maintenance cost, incurred in connection with any
investigation or monitoring of site conditions, any cleanup,
containment, remediation, removal or restoration work
required or performed by any federal, state or local
governmental agency or political subdivision or performed
by any nongovernmental entity or person in response to any
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• order or other requirement by such governmental agency,
but this indemnification is subject to the express limitation
that:
(i) any presence, suspected presence, release or
suspected release of any Hazardous Substances into
the air, soil, ground water or surface water at, on,
about, under or within the Demised Premises, or
any portion thereof, or elsewhere in connection with
the transportation of Hazardous Substances to or
from the Demised Premises, is the result of the
activities of Woolsey Aviation, Inc., its agents, and
employeesduring the term—of—the L_ e_a_se;_a_n_d_ _ _ _ _ _ _ _ - ate: . in s, m.ac: or soy
od1Q pNy entering the DcmlSCd
Premises with the consent M knowledge
(ii) the further limitation that any investigation, of woohey Aviation, Inc
remediation, etc. of Hazardous Substances is
required by applicable law and the governmental
agency having jurisdiction thereof.
13.7 _Removal and Disposition. Upon the expiration of the Term, Woolsey
Aviation, Inc., at its own expense, hereby agrees to properly remove and
dispose of all storage tanks placed on the Demised Premises by Woolsey
Aviation, Inc. in compliance with all applicable Environmental Laws and
all required cleanup procedures shall be diligently undertaken in
compliance with the governmental agency having jurisdiction thereof.
13.8 Information Available. The Airport hereby represents and warrants that
• the Airport has made available to Woolsey Aviation, Inc. copies of the
Airport Environmental Impact Statement, the Airport Master Plan and all
environmental studies of the airport property and all other information
known to the Airport concerning the environmental condition of the
Demised Premises and any real property adjacent to the Demised Premises
that would adversely affect the Demised Premises.
13.9 Spill Prevention and Storm Water Discharge.
14. Utilities — Installation and Service Charges.
14. 1 Woolsey Aviation, Inc. Requirements: Woolsey Aviation, Inc. shall
install or cause to be installed, telephone, cable, broad band and flight
following, weather and flight planning services for its use and for use of
customers.
14.2 Airport Requirements: The Airport shall, at its expense, make available
to Woolsey Aviation, Inc. no later than the Commencement Date
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• permanent electric, heat, water, and sewerage utilities for the Terminal
Building. The Airport shall provide dumpsters for use by all tenants.
15. Taxes.
15. 1 Payment Responsibility. Woolsey Aviation, Inc. shall pay or shall cause
to be paid, prior to their becoming delinquent, unless being contested, any
and all taxes which are lawfully levied, assessed or imposed at any time
during the Term upon any improvements erected by Woolsey Aviation,
Inc. or those holding by, through or under Woolsey Aviation, Inc. thereon,
and all applicable personal property taxes. The Airport is responsible for
all real estate taxes of any nature that apply to any period of time prior to
the beginning of the term hereof.
16. Indemnification and Insurance.
16. 1 Indemnification by Woolsey Aviation, Inc.. Woolsey Aviation, Inc.
agrees to indemnify and hold harmless the Airport and the City of
Fayetteville from and against any and all claims by or on behalf of any
person or persons, firm or firms, corporation or corporations, arising from
the negligent or wrongful use, occupancy, conduct and management of, or
from any negligent or wrongful work or thing whatsoever done in or about
the Demised Premises by Woolsey Aviation, Inc., or any representative_ - _ - peietea: .
employeev of Woolsey Aviation, Inc. during the Term._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pek0ed: ,
16.2 Indemnification of Airport. The Airport agrees to indemnify and hold
harmless Woolsey Aviation, Inc. from and against any and all claims by or
on behalf of any person or persons, firm or firms, corporation or
• corporations, arising fiom:
(a) The ownership by Airport of the Demised Premises;
(b) Any wrongful conduct of the Airport or any representative,
employee, invitee or permitee of the Airport in connection with the
exercise of the Airport's rights and the performance of the
Airport's obligations under this Lease, or otherwise with respect to
the Demised Premises; and
(c) Any default in the performance by the Airport, or any
representative of the Airport, of the Airport's obligations under this
Lease.
16.3 Woolsey Aviation, Inc. Insurance.
(a) Minimum Liability Insurance. Woolsey Aviation, Inc. shall
maintain or cause to be maintained for the benefit of the Airport
and Woolsey Aviation, Inc.: (i) general public airport liability
20
•
• insurance against claims for bodily injury, death or property
damage occurring in or about the Demised Premises and
improvements thereon, such insurance to afford protection in an
amount equal to minimum limits of liability of Five Million
Dollars ($5,000,000) combined single limit for injury (or death)
and for damage to property, (ii) comprehensive public liability and
property damage insurance in an amount equal to minimum limits
of Fifty Million Dollars ($50,000,000) combined single limit for
all fueling operations; and (iii) aircraft liability insurance in an
amount equal to minimum limits of Five Million Dollars
($5,000,000) combined single limit. A memorandum copy of each
such policy of insurance (which shall name the Airport as an
additional insured), or Certificate of Insurance, shall be deposited
with the Airport and shall provide for at least sixty (60) days notice
to the Airport prior to cancellation and/or change in any insurance.
(b) Adjustment of Minimum Liability Insurance. In the event the
Airport should, at any time after the first five years of the term
hereof, determine in its reasonable judgment that Woolsey
Aviation, Inc. should provide liability insurance protection. in
excess of the limits it is then carrying, the Airport shall notify
Woolsey Aviation, Inc. of its determination in writing, stating the
limits it requests and the reasons therefore. If the Airport or
Woolsey Aviation, Inc. shall thereupon determine that they are
unable to agree upon the minimum limits to be carried, each party
shall within fifteen (15) days from said determination appoint a
person with at least five (5) years of experience in the sale of
• liability insurance and the underwriting of liability insurance risks
to decide reasonable minimum limits to be carried, and their joint
decision shall control. If these two persons are unable to mutually
agree upon such minimum limits, they will appoint a third person
so experienced, and the decision of the majority shall control.
Each party shall pay the cost of the person it appoints and share
equally the cost of the third person appointed. In the event such
decision requires an increase in coverage, Woolsey Aviation, Inc.
shall provide the increased coverage within thirty (30) days from
and after such decision. In making the determinations hereunder,
all material factors shall be considered, including the general
availability and terms of liability insurance at a reasonable cost at
the time.
(c) Fire and Extended Coverage Insurance. Woolsey Aviation, Inc. .
agrees that it will, at all times during the terra of this Lease, keep
insured any improvements it hereafter erects upon the Demised
Premises under what is commonly know as a fire and extended
coverage policy (which shall name the Airport as an Additional
21
•
• Insured) and shall furnish the Airport a Certificate of such
Insurance. Said insurance shall be in an amount equal to not less
than ninety percent (90%) of the insurable value of said
improvements, and may contain appropriate deductibles at the .
reasonable discretion of Woolsey Aviation, Inc.
(d) Use of Insurance Proceeds. In the event of damage or destruction
to the Demised Premises or improvements thereon by fire or other
insured casualty or otherwise, proceeds from such insurance,
subject to the prior rights of mortgagees and/or other security
holders, if any, shall be used toward restoring the Demised
Premises and improvements thereto.
16.4 Airport Insurance. The Airport shall maintain or cause to be maintained
general public airport liability insurance against claims for bodily injury,
death or property damage occurring in or about the Airport, such insurance
to afford protection in an amount equal to minimum limits of liability of
Five Million Dollars ($5,000,000) combined
si_ngle limit for injury_ (or_ , DeleWd: .
death) and for damage to property.
17. Maintenance. Woolsey Aviation, Inc. agrees to keep the Demised Premises and
the improvements thereon in good order, maintenance and repair, ordinary wear
and tear and casualty losses excepted, and upon the termination or expiration of
this Lease to surrender up the Demised Premises and improvements thereon to the
Airport in such condition.
18. Advertising. No outside walls, roofs or other portion of the Demised Premises or
• of any improvements thereon shall be leased for or used for any advertising
purposes. Reasonable business identification signs will be permitted subject to
the approval of the Airport and upon receipt of a valid permit by the City of
Fayetteville.
19. Fixtures and Improvements. It is expressly understood and agreed that any and
all trade machinery, equipment fixtures and improvements of whatsoever nature
(excluding real property) at any time placed, installed or maintained upon any
portion of the Demised Premises by Woolsey Aviation, Inc. shall be and remain
the property of Woolsey Aviation, Inc. Woolsey Aviation, Inc. shall have the right
to install and remove at any time during Woolsey Aviation, Inc.'s occupation of
the Demised Premises or within sixty (60) days after this Lease may be
terminated or have expired, to remove any and all trade machinery and equipment
owned or placed by Woolsey Aviation, Inc., upon the Demised Premises whether
before or during the Term, but shall not be obligated to do so. In the event of
removal Woolsey Aviation, Inc. shall repair any and all damage to the leasehold
improvement caused by said removal.
22
•
• 20. Assienment. Woolsey Aviation, Inc. shall not at any time assign this Lease or
any part thereof, or sublet all or any portion of the Demised Premises herein
without having first secured written approval of the Airport.
21 . Disadvantaeed Business Enterprise (DBE) Assurances. Woolsey Aviation,
Inc. acknowledges that the provision of 49 CFR, Part 26, Disadvantaged Business
Enterprises (DBE), as said regulations may be amended, and such other similar
regulations may be enacted, may be applicable to the activities of Woolsey
Aviation, Inc. under the terms of this lease, unless exempted by said regulations,
and Woolsey Aviation, Inc. hereby agrees to comply with the FAA and the U.S.
Department of Transportation, in reference thereto. These requirements may
include, but not be limited to, compliance with DBE participation goals, the
keeping of certain records of good faith compliance efforts, which would be
subject to review by the various agencies, the submission of various reports and,
if so directed by the various governmental agencies, the contacting of specified
percentages of goods and services contracts to Disadvantaged Business
Enterprises.
22. Non-Discrimination. Woolsey Aviation, Inc. for itself and its successors in
interest and assigns hereby covenants and agrees as a covenant running with the
land that in the event facilities are constructed, maintained or otherwise operated
on the Demised Premises for a purpose for which a Department of Transportation
program or activity is extended or for another purpose involving the provision of
similar services or benefits, Woolsey Aviation, Inc. shall maintain and operate
such facilities and services in compliance with all other requirements imposed
pursuant to Title 49, Code of Federal Regulations, Department of Transportation,
Subtitle A, Office of the Secretary, Part 21, Nondiscrimination of Federally-
assisted programs of the Department of transportation-Effectuation of Title VI of
the Civil Rights Act of 1964, and as said Regulations may be amended. Woolsey
Aviation, Inc. for itself and its successors in interest and assigns also hereby
covenants and agrees as a covenant running with the land that(a) no person on the
grounds of race, color, creed, sex, handicap or national origin shall be excluded
from participation in, denied the benefits of, or otherwise subjected to
discrimination in the use of said facilities, (b) that in the construction of any
improvements on, over or under such land and the furnishing of services thereon,
no person on the grounds of race, color, creed, sex handicap or national origin
shall be excluded from participation in, denied the benefits of, or otherwise be
subject to discrimination, (c) that Woolsey Aviation, Inc. shall use the Demised
Premises in compliance with all other requirements imposed by or pursuant to
Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A.
Office of the Secretary, Part 21 , Non-discrimination in Federally-assisted
programs of the department of transportation-Effectuation of Title VI of the Civil
Rights Act of 1964, and (d) as said Regulations may be amended.
23. Default. All covenants and agreements herein made and obligations assumed are
to be construed also as conditions and these presents are upon the express
23
•
V
• condition that if Woolsey Aviation, Inc. should fail to pay when due any one of
the aforesaid installments of rent, or should fail to perform or observe any of the
covenants, agreements or obligations herein made or assumed by said Woolsey
Aviation, Inc., then and thence forth in any of said events, after allowing for the
grace period for curing defaults set out below, this Lease may be forfeited, except
as otherwise provided herein with respect to any mortgagees in Section 20 or in
this Section 23, and thereby become null and void at the option of the Airport, and
said Airport may, with or without process of law, in a lawful manner re-enter said
premises and improvements or any part thereof and repossess and have the same
as of Woolsey Aviation, Inc.'s former estate and remove there from all goods and
chattels not thereto properly belonging, and expel said Woolsey Aviation, Inc. and
all other person or persons who may be in possession of the said premises and
improvements; and in such case Woolsey Aviation, Inc. covenants that it will
immediately and peaceably deliver up the same to the Airport, its agents or
attorneys; and if Woolsey Aviation, Inc., its tenants agents or attorney's shall hold
for a day beyond the time when they should have surrendered the Demised
Premises or improvements thereon, or any part thereof required hereby to be
surrendered, according to the provisions hereof or according to law, they shall be
subject to an action for forcible detainer under the statutes of the State of
Arkansas and be subject to eviction and removal from the Demised premises.
23. 1 Notice. The Airport shall give written notice of default simultaneously to
Woolsey Aviation, Inc., any assignee or guarantor of this Lease, and to
any mortgagee or beneficiary of Woolsey Aviation, Inc.'s leasehold
interest in the Demised Premises and improvements thereon who shall
have the rights set forth in Section 20 and who are known to the Airport.
• 23.2 Cure of Default. No default shall be deemed to exist unless Woolsey
Aviation, Inc. fails to cure said default within thirty (30) days after receipt
of written notice thereof, provided, however, that if Woolsey Aviation,
Inc. fails to cure same within said thirty (30) days, the mortgagee or
guarantor of Woolsey Aviation, Inc.'s said leasehold interest shall have an
additional twenty (20) days after the end of said thirty (30) day period
within which to cure same. As to any curing of a default (other than
payment of rent) which would reasonably require a greater period of time
for curing than is provided for above, if Woolsey Aviation, Inc. shall,
within the time stipulated, commence such curing and diligently pursue
same, then, the above time period shall be extended to allow Woolsey
Aviation, Inc. reasonable opportunity to do so; provided, however, in the
event Woolsey Aviation, Inc.'s failure to perform or observe any of the
covenants, agreement or obligation herein shall create and /or cause a
hazard to safety, of whatsoever nature of kind, the period of the curing of
such default shall be no greater than five (5) days after receipt of written
notice thereof.
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•
V
• 23.3 Richt to Contest. Woolsey Aviation, Inc. shall have the right to contest,
in good faith, the existence of any default alleged to have occurred or
alleged to exist, and in the event Woolsey Aviation, Inc. so elects, the time
period for curing any such allege default shall be extended until thirty days
after a final judgment has been entered in a court having jurisdiction over
such contest.
23.4 Notice of Forfeiture and Termination. The Airport may not exercise its
right to declare this Lease forfeited, terminated, or null and void without
first having given written notice to any mortgagee or beneficiary of a deed
of trust of Airport's intent to do so on a date specified in such notice,
which date shall be at least thirty (30) days after receipt by such
mortgagee or beneficiary of such written notice, which notice will specify
the default on account of which Airport seeks to exercise its rights of
forfeiture or termination.
23.5 _Rights Upon Receipt of Notice. Upon receipt of any such notice of
forfeiture and termination, such mortgagee or beneficiary shall have the
right prior to the date specified for termination to cure the default specified
in such notice, or to initiate proceedings to contest the existence of such
default, or to initiate proceedings to compel Woolsey Aviation, Inc. or any
other person or entity to cure such default, thereby preventing or delaying
forfeiture or termination of this Lease. In the event such mortgagee or
beneficiary cures such default or proceeds to cure such default prior to the
date specified for termination by instituting proceedings to compel
Woolsey Aviation, Inc. or any other party causing such default to cure
such default, or institutes proceedings, in good faith, contesting the
• existence of such default, the Airport's right to terminate this Lease shall
be suspended until thirty days after the entry of a final judgment of a
court having jurisdiction over any such action or contest determining that
the default identified in such notice exists under this Lease and must be
cured to prevent forfeiture hereunder. As to the curing of any default
(other than the payment of rent) which would reasonably require a greater
period of time for curing than is provided above, if the mortgagee or
beneficiary shall, within the time otherwise provided herein, commence
the curing of such default or commence an action to compel such default
to be cured, and shall diligently pursue same, then the time provided for
herein for the curing of such default shall be extended to allow such
mortgagee or beneficiary a reasonable opportunity to cure such default or
force the curing of such default by any other person or entity who may be
obligated to cure such default or may have the ability to cure such default.
24. Right to Terminate Not Exclusive. The right of the Airport to terminate this
Lease as herein set forth is in addition to and not in exhaustion of such other
rights that the Airport has or causes of action that may accrue to the Airport
because of the Woolsey Aviation, Inc.'s failure to fulfill, perform or observe the
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• obligations, agreements or covenants of this Lease, and the exercise or pursuit by
the Airport of any of the rights or causes of action accruing hereunder, shall not
be an exhaustion of such other rights or causes of action that the Airport might
otherwise have. However, in the event of any default by Woolsey Aviation, Inc.,
the Airport agrees to utilize reasonable efforts to mitigate its damages.
Notwithstanding any default or failure of performance by Woolsey Aviation, Inc.
hereunder, the Airport may not distain upon, or otherwise proceed against, by
legal process or otherwise, Woolsey Aviation, Inc.'s delivery vehicles or
airplanes, Woolsey Aviation, Inc.'s proprietary property or any of the goods or
property of third parties in the possession of Woolsey Aviation, Inc. All things
equal, both parties have the right to give notice of termination of this agreement
for the good of the parties with a minimum of 60 days notice to terminate. Upon
receipt of such notice, the parties are required to work together to effect a smooth
transition of services to the public.
25. Termination by Woolsey Aviation, Inc. Woolsey Aviation, Inc. may, at its
option, terminate this Lease without liability by giving the Airport sixty (60) days
advance written notice if the commencement of the initial improvements
contemplated by Section 8 hereof shall be prevented by Woolsey Aviation, Inc.'s
inability to secure financing.
26. Attorney Fees. Woolsey Aviation, Inc. agrees to pay all cost of collection,
including reasonable attorney fees, if all or any part of the rent reserved herein is
collected after maturity with the aid of an attorney; also to pay reasonable
attorney tees in the event it becomes necessary for the Airport to employ an
attorney to force Woolsey Aviation, Inc. to comply with any of the covenants,
obligations or conditions imposed by this Lease. Likewise, the Airport agrees to
• pay reasonable attorney fees in the event it becomes necessary for Woolsey
Aviation, Inc. to employ an attorney to force the Airport to comply with any of
the covenants, obligations or conditions imposed by this Lease.
27. Protection from Violation — Unlawful Purposes. Excluding any environmental
issues, matters or things arising at any time as a result of an occurrence, matter or
thing origination or existing prior to the taking of possession of the Demised
Premises by Woolsey Aviation, Inc., Woolsey Aviation, Inc., during the tern, will
keep and hold harmless the Airport from any penalty or damages or charges
imposed for any violation of any Federal, state or municipal laws and ordinances
occasioned by acts or omissions of Woolsey Aviation, Inc. and Woolsey Aviation,
Inc. agrees that the Demised Premises and improvements thereon shall, during the .
term of this Lease, be used only for proper and lawful purposes and as authorized
herein, and that Woolsey Aviation, Inc. will not use the same or any portion
thereof for any purpose or use which may be in violation of the laws of the United
States or of the State of Arkansas, or of the ordinances and regulations of the
County of Washington, and the City of Fayetteville, Arkansas, or for any
unlawful purpose or use whatsoever. Woolsey Aviation, Inc. also agrees that it
will not create or allow any nuisance to exist on the demised Premises and that it
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. will promptly abate all such as may arise, and will not commit or suffer to be
committed any waste thereon.
28. Rules and Regulations. Woolsey Aviation, Inc. agrees to observe and obey any
and all reasonable uniformly applied rules and regulations adopted by the Airport
with respect to use of the Airport, and all applicable federal, state and local
governmental rules and regulations. "The Minimum Standards for Fayetteville
Municipal Airport Drake Field" herein referred to as Airport Minimum Standards
at Fayetteville Municipal Airport are attached as Attachment #3_ - - - - - - - - - - - - - - - - - oekted: _.
29. Ouiet Eniovmen[. The Airport hereby affirmatively covenants and warrants .that
so long as Woolsey Aviation, Inc. pays the rent and other sums and charges
reserved and agreed to be paid by Woolsey Aviation, Inc. under the terms of this
Lease, and faithfully observes the covenants, conditions and agreements herein
contained and to be observed by Woolsey Aviation, Inc. or which can be
performed by mortgagee or beneficiary, Woolsey Aviation, Inc. shall freely,
peaceably and quietly have and enjoy the Demised Premises and every-part
thereof and all of its other rights under this Lease during the entire term of this
leases.
29. 1 Fee Simple. The City of Fayetteville hereby covenants and warrants that
it is well seized of the Demised Premises, has fee simple absolute title
thereto and has the legal right and authority to lease the same in the
manner and form herein provided; and that said Demised Premises and
every part thereof are free and clear of any easements, encumbrances;
reservations, restriction or reversionary rights whatsoever, except as
specified in the Airport Layout Plan set forth as Exhibit `B", and will
• remain so during the term and any extensions unless otherwise agreed to
by Woolsey Aviation, Inc. and will defend such title on behalf of Woolsey
Aviation, Inc. or mortgagee or beneficiary, as the case may be, during the
Term and any extensions.
29.2 Events of Breach. In the event of the breach of the foregoing covenant
and warranty, which the parties hereby agree shall include, but not be
limited to:
(a) The existence of any unpaid real estate taxes relating to any time
period prior to the beginning of the Lease; or
(b) The existence of any easement, right-of—way, covenant,
encumbrance, reservation, restriction, right-of-fust refusal;
reversionary interest, lien, mortgage, title defect, etc. (collectively .
hereinafter, "Title Defect"), that would materially affect or impair
Woolsey Aviation, Inc.'s proposed development or use of the
Demised Premises;
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• The Airport shall immediately pay such real estate taxes or cause same to
be paid, and the Airport shall cure such Title Defect within (90) after
receipt of notice from Woolsey Aviation, Inc. of the existence of same, or
such longer period if such cure cannot be completed within ninety (90)
days, so long as the Airport has commenced its cure within the initial
ninety (90) day cure period and is diligently proceeding to complete same
immediately thereafter.
29.3 Failure to Perform. If the Airport defaults in the performance of any of
the foregoing and the Title Defect is of such nature as to materially
interfere with or preclude Woolsey Aviation, Inc.'s construction of
Woolsey Aviation, Inc.'s improvements, or to unreasonably interfere with
or preclude the issuance of permits or site plan approval of such
construction, then Woolsey Aviation, Inc. shall have the following
election:
(a) Woolsey Aviation, Inc. shall have the right to cancel this lease
effective upon the Airport's receipt of notice of such cancellation;
or
(b) Woolsey Aviation, Inc. shall have the right to pay such unpaid real
estate taxes, cure the Title Defect or otherwise correct such breach
of covenant and warranty, as the case may be, and deduct the
reasonable cost thereof, including reasonable attorney's fees and
expenses, from the rents due hereunder. If Woolsey Aviation, Inc.
elects election (b), then the Airport shall reasonably cooperate with
Woolsey Aviation, Inc. in order that Woolsey Aviation, Inc. may
• cure the Title Defect or otherwise correct such breach of covenant
and warranty.
30. Est000el Certificate. Either parry shall at any time and from time to time upon
not less than twenty (20) business days prior written request by the other party,
execute, acknowledge and deliver to such party a statement in writing certifying
that his Lease is unmodified and in full force and effect (or if there has been any
modification thereof that the same is in full force and effect as modified and
stating the modification or modifications and that there are no defaults existing, or
if there is any claimed default stating the nature and extent thereof); and stating
the dates to which the rent and other charges have been paid in advance. It is
expressly understood and agreed that any such statement delivered pursuant to
this section by be relied up by either party or by any third party.
31 . Notices. Whenever by the terms of this lease, notice shall or may be given either
to the Airport or to Woolsey Aviation, Inc., such notice shall be in writing and
shall be sent by Unites States registered or certified mail, return receipt requested,
with adequate prepaid postage. If intended for the Airport, addressed to:
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. Ray M. Boudreaux, Director
Aviation and Economic Development
City of Fayetteville
4500 S. School Avenue, Suite F
Fayetteville, AR 72701
With copy to:
Kit Williams, City Attorney
City of Fayetteville
113 West Mountain Street
Fayetteville, AR 72701
If intended for Woolsey Aviation, Inc., address to:
Roger Woolsey, President/CEO
Woolsey Aviation, Inc.
8501 Telephone Road
Houston, Texas 77061
Or, to such address or addresses as may from time to time hereafter be designated
by like notice form either party to the other. The time of giving of such notice
when sent by U.S. mail shall be deemed to be the time when the same is received
or delivery refused as shown by the return receipt.
32. Invalidity of Particular Provisions. If any term or provision of this lease or the
application thereof to any person or circumstances shall to any extent be invalid
• or unenforceable, the remainder of this lease, or the application of such term or
provisions to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and revision of this
Lease shall not be affected thereby, and each term and provision of this Lease
shall valid and shall be enforceable to the fullest extent permitted by law.
33. General Terms.
33. 1 General Terms. Whenever the term the Airport is used herein it shall be
construed to include the successors and assigns of the Airport and
whenever the term Woolsey Aviation, Inc. is used herein, it shall be
construed to include the successors and assigns of Woolsey Aviation, Inc.;
and the words "Airport" and "Woolsey Aviation, Inc." shall include single
and plural, individual and corporate, masculine, feminine or neuter, as the
same may be or hereafter become applicable. Whenever approvals or
consents of the Airport are required hereunder or in any attachments
hereto, such approvals or consents shall not be unreasonably withheld,
conditioned or delayed. This Lease shall be binding upon and inure to the
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