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HomeMy WebLinkAbout123-00 RESOLUTION• RESOLUTION NO. 123-00 MICROFILMED A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT WITH WINGS AIR, INC., FOR AN ABOVE -GROUND FACILITY LOCATED SOUTH OF THE TERMINAL BUILDING RAMP WITH AN INITIAL ANNUAL COMPENSATION RATE OF $384, AND FLOWAGE FEES AS SET FORTH BY §91.16 OF THE CODE OF FAYETTEVILLE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council hereby authorizes the Mayor and City Clerk to execute a lease agreem nt with Wings Air, Inc. for an above -ground facility located south of the terminal building ramp as more fully set forth in to the agreement attached hereto marked Exhibit "A" and made a part hereof. Initial annual compensation rate will be $384, and flowage fees as set forth by §91.16 of the Code of Fayetteville. Section 2. following: Approval of said contract set forth in Sectionl. shall be contingent upon the Large Scale Development approval, and License being granted by Air British Petroleum. D AND APPROVED this 5th day of September , 2000. ATTEST: By: e%t/Iiii to � Heather oodruff, City lerk APPROVED. By: Fr d Hanna, Mayor NAME OF FILE: CROSS REFERENCE: "�,-4 /2S DD Date Contents of File Initials c& --&O ',aA- &to-ic /Z3-c2o Smat /XA'rSr T „ ( iiov g -X- at ..7ne C71CZy. stALKAzt .et_f_ k*,02-4 , tam A/fie/4i/ ��ce J 4:zele Ze) Zed al./2-c; dl; �,�% / n� l0. , - �m/ia�� - /.� p -3 -DD S /6 n/��a� {�� f �/2 A '//r/ ll /4 (i /1j��,027.4/ia,J l% -n --.%422 J%GGe-A 4deri-z-� daLL,Jo_ c lam,:�/ 47 ig/.h- OG I / ,/ f1le-i-e_,i.\ �� ,e -,L • EXHIBIT A a� LEASE AGREEMENT Above Ground Fueling Facility This Agreement made and entered into at Fayetteville, Arkansas, the 0534 day of ""P11=111Pc0 , 2000, by and between the City of Fayetteville, Arkansas, 113 W. Mountain, Fayetteville, Arkansas, 72701, hereinafter referred to as the "Lessor," and Wings Air, Inc. Attn.: RM. Schossow, P.O. Box 064, Lowell, Arkansas, 72745, hereinafter referred to as "Lessee," WITNESSETH: 1. Leased Premises. For and in consideration of the rents, covenants and agreements herein entered into and agreed upon by the Lessee as obligations to the Lessor, the Lessor lets, leases and demises unto Lessee, subject to the terms and conditions contained herein, the following described property situated in Washington County, Arkansas: A certain tract of land 108.7 feet by 130 feet located at the Fayetteville Municipal Airport/Drake Field and more particularly set forth and shown on Exhibit "A" attached hereto and made a part hereof. Lessor reserves the right to take such action as may be necessary to protect the aerial approaches of the Fayetteville Municipal Airport/Drake Field, hereinafter referred to as "Airport", against obstruction in accordance with the applicable standards and/or requirements. Lessor also reserves for itself and its hcensees, an Avigation easement in, over and across the airspace above the Leased Premises and the unrestricted right to subject the leased Premises to such Airport noise and vibration as may result from the ffight of aircraft, warm up of engines, testing of motors and other aviation related activities. Lessee, its representatives, agents, invitees and licensees, shall have the right of ingress and egress to and from the leased Premises. Lessor reserves the right to close any means of ingress and egress, so long as other reasonable means of ingress and egress to the Leased Premises are available to Lessee. 2. Use. Lessee shall have use of the Leased Premises as follows. A. Lessee shall be entitled only to use the Leased Premises for lawful purposes related to the activities of a fueling facility. - Aviation Fuel shall not be sold for non -aeronautical purposes. B. Subject to Federal Aviation Administration, hereinafter referred to as "FAA" and Airport Security and Airport Operational Rules, Airport Minimum Standards, Regulations m and Procedures, Lessee shall be entitled to use, on a nonexclusive basis, public areas of the Airport and runways, taxiways, aprons, lighting navigation aids, and other facilities necessary for = 00 1- • • the operation of aircraft and activities related to Lessee's business as a fueling facility. C. Lessee shall require all of its agents, employees, contractors and invitees entenng the Leased Premises to comply with the Airport Rules and Regulations established by the Airport and the FAA as they currently exist, and as may be amended. D. Lessee shall conduct its operations in an orderly and proper manner so as not to annoy, disturb, or be offensive to others at or surrounding the Airport. E. Lessee shall take all reasonable measures to keep the sound level of its operations as low as reasonably possible. F. Lessee shall not permit the accumulation of any rubbish, trash or other waste material on the Lease premises. G. Except in tanks and in the manner approved by appropriate governmental authonties, Lessee shall not store any gasoline or other material hkely to give off fumes or gases or any material likely to constitute a fire, safety or security hazard on the Leased Premises. H. Lessee shall not cause or permit any hazardous material or hazardous substance to be disposed of on the Leased Premises by Lessee, Lessee's agents, employees, contractors or invitees. 3. Tenn of Agreement. The term of this Agreement shall be: A. Initial Term. A period of one year commencing on the date of this Agreement, and expiring at midnight on SES T. 5 , 7Od unless otherwise terminated, canceled or extended as set forth herein below. B. Option to Extend. Lessee shall have the option to extend the Lease Term for three (3) consecutive three (3) year terms, under the same terms and conditions of this Agreement, provided: (1) Lessee has complied with and performed all conditions, covenants, and terms of this Agreement without any uncorrected defaults if known to Lessee, or any defaults that are not otherwise in the process of being resolved in the manner provided in this Agreement. (2) Notice of Lessee's intent to renew has been made in writing to Lessor at least one hundred twenty (120) days prior to the expiration of the term. (3) A recommendation of renewal has been made by the Airport Board after completion of a performance review made in accordance with the Performance standards set forth in Paragraph 5 of this Agreement. 4. Rental Charges, Fees and Utilities. The following rentals charges and utilities shall be • • paid by Lessor: A. Rental Charges. Lessee shall pay an annual rental charge in the sum of three hundred eighty-four dollars ($384). Such sum may be paid monthly on or before the first day of each month at the rate of thirty-two dollars ($32), with the first payment due upon taking possession. Rental charges shall increase each anniversary year in the amount of three and one- half percent (3 1 /2%), until expiration or termmation of this Agreement. A delinquency charge will be imposed on all payments not received by the close of business on the tenth day after the due date. Such delinquency charge shall be the maximum amount allowable under Arkansas law. All payments shall be delivered to: Fayetteville Municipal Airport, 4500 S. School Ave., Fayetteville, AR 72701. B. Fees. Lessee shall pay flowage fees as set forth in Section 9L16, of the Code of Fayetteville, and as may from time to time hereafter be amended. C. Utihties. Lessee shall be responsible for the installation, relocation, modification and maintenance of all utility services to or on the Leased Premises. This shall include any janitor services, power, gas, telephone, electricity, heating, water, sewer, storm water and all other utility services not enumerated specifically. Lessee shall pay as the same become due, all utility and other charges incurred in the operation, maintenance, use, occupancy, repair and upkeep of the Leased Premises and the improvements located thereon. 5. Performance Standards. Lessee shall meet the following performance standards: A. Minimum Standards. Minimum Standards pursuant to Section 91.15, of the Code of Fayetteville made a part hereof as if set forth word for word herein. B. Emergency Number Posted. Post a toll-free phone number at the fueling site for 24 hour emergency service for the facility. C. Response Time. Provide assistance within one hour of receiving a call. D. Customer Service Training. Provide instruction and training to employees in generally accepted courtesy and proactive customer response methods. E. Customer Service. Employees shall treat customers with generally accepted courtesy and proactive customer response methods. 6. Grievance Committee/Complaints A. A three-person committee is established to hear customer complaints. This committee meets on an as needed basis. Complaints will be considered by this committee and every effort will be made to resolve the problem. If a resolution cannot be found, then the complaint will be forwarded to the Airport Board, and then to the Fayetteville City Council if necessary. -3- • B Lessee will keep a record of all complaints from customers concerning any aspect of the fuel facility. If a complaint is received by the Airport, the Airport will notify the Lessee in writing and provide a copy of the notice to the Chairman of the Grievance Committee. On a monthly basis the lessee will submit a report to the Airport that will include records of any complaints, and what action was taken to mitigate the problem 7. Signage. All signage shall require prior written approval from Lessor. 8. Improvements. All improvements to the Leased Premises, whether by addition or by removal, shall require prior written approval from Lessor. 9. Inspection. Lessor shall have the right to inspect the Leased Premises during all reasonable hours. 10. Maintenance. Lessee at all times shall keep in a clean and orderly condition and appearance all of the Leased Premises and any improvements. Such maintenance shall include but not be limited to mowing and nuisance abatement. 11. Fuel Ledgers and Audits. A. Ledger. A fuel ledger will be submitted on a monthly basis. This ledger will include the date fuel was delivered, the fueling agent, the total gallons delivered and a copy of the bill of lading or other documentation which confirms the total gallons delivered. B. Audit. Lessee agrees to furnish Airport, annually, certified statements which show the total fuel delivered to the Leased Premises for the preceding calendar year. Should the Lessee fail to furnish the Airport with the certified statements within three (3) months, Lessee agrees to pay the Airport the sum of $100 per day until the certified statements are received. 12. Surrender of Possession: Holding Over. At the expiration or termination of this Agreement, Lessee agrees to surrender possession of the Leased Premises peacefully and promptly to the Lessor in as good condition as existed at the effective date of this Agreement, normal wear and tear excepted. Lessee shall, at its own expense, remove all pumps, tanks, equipment or other property installed by Lessee. If Lessee shall hold over after the termination of this Agreement, the Lessor may allow Lessee to remain on the premises as a month-to-month tenant at will. During such tenancy, Lessee shall pay to the Lessor the rentals, fees and charges set by the Airport, or such amount as the parties may otherwise agree to in writing, and Lessee shall be bound by all of the additional provisions of the Agreement insofar as they may be pertinent. 13. Indemnity. Lessee shall mdemnify, protect, defend and hold completely harmless, the City, the Airport, and its trustees, councilors, officers, agents and employees from and against all liability, losses, suits, claims, judgements, fines or demands arising from injury or death of any -4- • • person or damage to any property, including all reasonable costs for investigation and defense thereof (including attorney fees, court costs, and expert fees), of any nature whatsoever arising out of or incident to this Agreement, including but not limited to hazardous substances, Lessee's use or occupancy of the Airport premises, the rights, licenses, or privileges granted Lessee herein, or the acts of omissions of lessee's officer, agents, employees, contractors, subcontractors or licensees, regardless of where the injury, death or damage may occur. The Lessor shall give notice to Lessee of any such hability, loss, suit, claim or demand, and Lessee shall defend same using counsel reasonably acceptable to the Lessor. No word, sentence, paragraph or phrase shall be construed to waive that tort immunity as set for under Arkansas Law. The provisions of this section shall survive the expiration or early termination of this Agreement. 14. Insurance. Lessee shall maintain in force during the Term and any extended term public liability and property damage insurance in comprehensive form as reasonably may be required by the Lessor and outlined in the Airport Minimum Standards. The insurance shall be issued by an insurer licensed to do business in the State of Arkansas. Proof of insurance shall be provided to the Airport. Further, no change or cancellation of the insurance shall be made without 30 days notice to the Airport 15. Governmental Requirements A. Governmental Requirements - General. Lessee shall comply with all Governmental Requirements applicable to Lessee's use and operation of the Leased Premises. Without limiting the generality of the foregoing, Lessee shall at all times use and occupy the Airport in strict accordance with all laws, rules, regulations, minimum standards, and security plans that may be imposed by the FAA, the Airport, the state, federal or city government with respect to the Airport and operations thereof, including but not limited to procuring all licenses, franchises, certificates permits, and authorizations necessary to conduct business. B. No Liability for Exercise of Powers. The Lessor shall not be liable to Lessee for any diminution or deprivation of its rights which may result from the proper exercise of any power reserved to the Lessor in this Agreement or by reason of governmental requirements; Lessee shall not be entitled to terminate this Agreement by reason thereof, unless the exercise of such power shall interfere with Lessee's rights hereunder so as to constitute a termination of this Agreement by operation of law. C. Nondiscrimination. Lessee, and its successors in interest, and assignees, as part of the consideration hereof, hereby do covenant and agree, as a covenant running with the land, that in the event facilities are constructed, maintained or otherwise operated on property described in this Agreement for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provisions of similar services or benefits, Lessee shall remain and operate such facilities and service in compliance with all other requirements imposed pursuant to Title 49 CFR Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, as said regulations may be amended. -5- • • Lessee, and its successors in interest, and assignees, as a part of the consideration hereof, do covenant and agree hereby, as a covenant running with the land, that: (1) no person shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of said facilities on the grounds of race, color, creed, national origin, sex or disability; (2) in the construction of any improvements on, over or under such land, and the furnishings of services thereon, no person shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of said facilities on the grounds of race, color, creed, national origin, sex or disability; (3) Lessee shall be responsible for maintaining the Leased Premises and services in a manner which complies with the parties' respective obligations under 14 CFR Part 382, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN AIR TRAVEL, under the Uniform Federal Accessibility Standards (UFAS), or substantially equivalent standards; under 49 CFR part 27, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITTING FROM FEDERAL FINANCIAL ASSISTANCE; and under 42 U.S.C.S. §§ 12101, et seq., THE AMERICANS WITH DISABILITIES ACT of 1990, or a substantially equivalent standard; and (4) Lessee will be responsible for any alterations and/or construction made during the initial lease period or any extensions or renewal within the demised space, the subject of this Lease, which may be mandated by or necessary to meet the requirements of the statutes and regulations cited above and other relevant Federal, State or local laws, statutes and regulations cited above and other relevant Federal, State or local laws, statutes and ordinances that relate to disabled accessibility standards. To the extent applicable, Lessee assures that it will undertake an Affirmative Action Program as required by 14 CFR Part 152, Subpart E to ensure that, on the grounds of race, color, creed, national origin or sex, no person shall be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. Lessee assures that it will require that its covered suborganizations provide assurances to the Airport that they similarly will undertake Affirmative Action Programs and that they will require assurances from their suborganizations as required by 14 CFR Part 152, Subpart E to this same effect. 16. Assigning, Subletting and Encumbering. Lessee shall not assign this Agreement in whole or in part, nor sublease all or any part of the Leased Premises, nor permit other persons to occupy said Leased Premises or any part thereof, nor grant any license or concession for all or any part of said Leased Premises, without the prior written consent of the Lessor, which consent shall not be unreasonably withheld. 17. Independent Contractor.. This Agreement shall not be deemed or construed to create any relationship or joint venture or partnership between the parties, to give the Lessor any interest in the business of Lessee, or to grant to Lessee any powers as an agent or representative or the City or Airport for any purpose or to bind the City or the Airport. Lessee shall be an independent contractor owning and operating its business as herein described. 18. Termination for Airport Purposes. Lessee agrees and understands that, by reason of the broad public interest in the efficient maintenance, operation and development of the Airport, the lessor hereby expressly reserves the right to modify or to terminate this Agreement upon a —6- • • determination by the Airport that the Leased Premises are needed for Airport construction of development. In the event the Lessor elects to modify or terminate the Agreement, Lessee shall surrender the Leased Premises, or any portion thereof designated, to the Lessor within ninety (90) days from receipt of notice. The Lessor shall use its best efforts to provide Lessee with comparable replacement premises at the Airport and at a comparable rate not to exceed those rates set forth in this Agreement All other terms and conditions of this Agreement shall apply to the replacement premises. Lessor shall pay the reasonable expenses incurred by Lessee in relocating and/or removal of equipment and slab and foundation improvements upon modification or temrination for airport purposes as set forth herein above. Reasonable expenses are those expenses that are necessary to physically move and relocate the Lessee to a new location on the Airport. 19. Miscellaneous A. Severability. In the event any provisions of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof, unless such holding shall materially affect the rights of either party as set forth herein. B. Entire Agreement; Modification. This Agreement expresses the entire understanding of the Lessor and Lessee concerning the Leased Premises. Neither the Lessor nor Lessee has made or shall be bound by any agreement or any representation to the other concerning the Leased Premises or the subject matter hereof which is not set forth expressly in this Agreement. This Agreement may be modified only by a written agreement of subsequent date hereto signed by the Lessor and Lessee. C. Non -Waiver. Neither the waiver nor any forbearance of remedy by the Lessor of any breach of Lessee of any provision hereof shall operate as a waiver for any other breach by Lessee. D. Execution of Counterparts. This Agreement simultaneously may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. E. Choice of Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Arkansas. F. Force Majeure. Neither the Lessor nor Lessee shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reason of embargoes, shortages of material, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellions, sabotage, or any other circumstances for which it is not responsible or which are not within its control, and the time for -7- • • • • performance automatically shall be extended by the period the party is prevented from performing its obligations hereunder. G. Binding Effect. This Agreement shall be to the benefit of and shall be binding upon the Lessor, Lessee and their respective successors and assignees, if such assignment shall have been made in conformity with the provisions of this Agreement. IN WITNESS WHEREOF, the Lessor and Lessee have executed this Agreement on the Sfl day of SeKeY113EC , 2000. ATTEST: City of Fayette e By Fred H eat er Woodruff, City C . k ATTEST By: Title. a, Mayor Wings Air, Inc. By (-- X D \msama Title: 9e. &&Cs Suceenay -8- • • • • LEASE AGREEMENT Above Ground Fueling Facility This Agreement made and entered into at Fayetteville, Arkansas, the day of 2000, by and between the City of Fayetteville, Arkancac,113 W. Mountain, Fayetteville, Arkansas, 72701, hereinafter referred to as the "Lessor," and Wings Air, Inc. Attn.: R.M. Schossow, P.O. Box 064, Lowell, Arkansas, 72745, hereinafter referred to as "Lessee," WITNESSETH: 1. Leased Premises. For and in consideration of the rents, covenants and agreements herein entered into and agreed upon by the Lessee as obligations to the Lessor, the Lessor lets, leases and demises unto Lessee, subject to the terms and conditions contained herein, the following described property situated in Washington County, Arkansas: A certain tract of land 108.7 *et by 130 feet located at the Fayetteville Municipal Airport/Drake Field and more particularly set forth and shown on Exhibit "A" attached hereto and made a part hereof. Lessor reserves the right to take such action as may be necessary to protect the aenal approaches of the Fayetteville Municipal Airport/Drake Field, hereinafter referred to as "Anport", against obstruction in accordance with the applicable standards and/or requirements. Lessor also reserves for itself and its licensees, an Avigation easement in, over and across the airspace above the Leased Premises and the unrestricted right to subject the leased Premises to such Airport noise and vibration as may result from the flight of aircraft, warm up of engines, testing of motors and other aviation related activities. Lessee, its representatives, agents, invitees and licensees, shall have the right of ingress and egress to and from the leased Premises. Lessor reserves the right to close any means of ingress and egress, so long as other reasonable means of ingress and egress to the Leased Premises are available to Lessee 2. Use. Lessee shall have use of the Leased Premises as follows: A. Lessee shall be entitled only to use the Leased Premises for Lawful purposes related to the activities of a fueling facility. - Aviation Fuel shall not be sold for non -aeronautical purposes. B. Subject to Federal Aviation Administration, hereinafter referred to as "FAA" and Airport Security and Airport Operational Rules, Airport Minimum Standards, Regulations and Procedures, Lessee shall be entitled to use, on a nonexclusive basis, public areas of the Airport and runways, taxiways, aprons, hghtmg navigation aids, and other facilities necessary for -1- • • the operation of aircraft and activities related to Lessee's business as a fueling facility. C. Lessee shall require all of its agents, employees, contractors and invitees entering the Leased Premises to comply with the Airport Rules and Regulations established by the Airport and the FAA as they currently exist, and as may be amended. D. Lessee shall conduct its operations in an orderly and proper manner so as not to annoy, disturb, or be offensive to others at or surrounding the Airport. E Lessee shall take all reasonable measures to keep the sound level of its operations as low as reasonably possible. F. Lessee shall not permit the accumulation of any rubbish, trash or other waste material on the Lease premises. G. Except in tanks and in the manner approved by appropriate governmental authorities, Lessee shall not store any gasoline or other material likely to give off fumes or gases or any material likely to constitute a fire, safety or security hazard on the Leased Premises. H. Lessee shall not cause or permit any hazardous material or hazardous substance to be disposed of on the Leased Premises by Lessee, Lessee's agents, employees, contractors or invitees. 3. Term of Agreement. The term of this Agreement shall be: A. Initial Term A period of one year commencing on the date of this Agreement, and expiring at midnight on unless otherwise terminated, canceled or extended as set forth herein below. B. Option to Extend. Lessee shall have the option to extend the Lease Term for three (3) consecutive three (3) year terms, under the same terms and conditions of this Agreement, provided: (1) Lessee has complied with and performed all conditions, covenants, and terms of this Agreement without any uncorrected defaults if known to Lessee, or any defaults that are not otherwise in the process of being resolved in the manner provided in this Agreement. (2) Notice of Lessee's intent to renew has been made in writing to Lessor at least one hundred twenty (120) days prior to the expiration of the term. (3) A recommendation of renewal has been made by the Airport Board after completion of a performance review made in accordance with the Performance standards set forth in Paragraph 5 of this Agreement. 4. Rental Charges, Fees and Utilities. The following rentals charges and utilities shall be -2- • paid by Lessor: A. Rental Charges. Lessee shall pay an annual rental charge in the sum of three hundred eighty-four dollars ($384). Such sum may be paid monthly on or before the first day of each month at the rate of thirty-two dollars ($32), with the first payment due upon taking possession. Rental charges shall increase each anniversary year in the amount of three and one- half percent (3 1/2%), until expiration or termination of this Agreement. A dehnquency charge will be imposed on all payments not received by the close of business on the tenth day after the due date. Such delinquency charge shall be the maximum amount allowable under Arkansas law. All payments shall be delivered to: Fayetteville Municipal Airport, 4500 S. School Ave., Fayetteville, AR 72701. B. Fees. Lessee shall pay flowage fres as set forth in Section 91.16, of the Code of Fayetteville, and as may from time to time hereafter be amended. C. Utilities. Lessee shall be responsible for the installation, relocation, modification and maintenance of all utility services to or on the Leased Premises. This shall include any janitor services, power, gas, telephone, electricity, heating, water, sewer, storm water and all other utihty services not enumerated specifically. Lessee shall pay as the same become due, all utility and other charges incurred in the operation, maintenance, use, occupancy, repair and upkeep of the Leased Premises and the improvements located thereon. 5. Performance Standards. Lessee shall meet the following performance standards: A. Minimum Standards. Minimum Standards pursuant to Section 91.15, of the Code of Fayetteville made a part hereof as if set forth word for word herein. B. Emergency Number Posted. Post a toll-free phone number at the fueling site for 24 hour emergency service for the facility. C. Response Time. Provide assistance within one hour of receiving a call. D. Customer Service Training. Provide instruction and training to employees in generally accepted courtesy and proactive customer response methods. E. Customer Service. Employees shall treat customers with generally accepted courtesy and proactive customer response methods. 6. Grievance Committee/Complaints A. A three-person conitnittee is established to hear customer complaints This committee meets on an as needed basis. Complaints will be considered by this committee and every effort will be made to resolve the problem. If a resolution cannot be found, then the -3- • • • complaint will be forwarded to the Airport Board, and then to the Fayetteville City Council if necessary. B Lessee will keep a record of all complaints from customers concerning any aspect of the fuel facility. If a complaint is received by the Airport, the Airport will notify the Lessee in writing and provide a copy of the notice to the Chairman of the Crrievance Committee. On a monthly basis the lessee will submit a report to the Airport that will include records of any complaints, and what action was taken to mitigate the problem. 7. Signage. All signage shall require prior written approval from Lessor. 8. Improvements. All improvements to the Leased Premises, whether by addition or by removal, shall require prior written approval from Lessor. 9. Inspection. Lessor shall have the right to inspect the Leased Premises during all reasonable hours. 10. Maintenance. Lessee at all times shall keep in a clean and orderly condition and appearance all of the Leased Premises and any improvements. Such maintenance shall include but not be limited to mowing and nuisance abatement. 11. Fuel Ledgers and Audits. A. Ledger A fuel ledger will be submitted on a monthly basis. This ledger will include the date fuel was delivered, the fueling agent, the total gallons delivered and a copy of the bill of lading or other documentation which confirms the total gallons dehvered B. Audit. Lessee agrees to furnish Airport, annually, certified statements which show the total fuel dehvered to the Leased Premises for the precedmg calendar year. Should the Lessee fail to furnish the Airport with the certified statements within three (3) months, Lessee agrees to pay the Airport the sum of $ 100 per day until the certified statements are received. 12. Surrender of Possession: Holdinp Over. At the expiration or termination of this Agreement, Lessee agrees to surrender possession of the Leased Premises peacefully and promptly to the Lessor in as good condition as existed at the effective date of this Agreement, normal wear and tear excepted. Lessee shall, at it's own expense, remove all pumps, tanks, equipment or other property installed by Lessee. If Lessee shall hold over after the termination of this Agreement, the Lessor may allow Lessee to remain on the premises as a month-to-month tenant at will. During such tenancy, Lessee shall pay to the Lessor the rentals, fees and charges set by the Airport, or such amount as the parties may otherwise agree to in writing, and Lessee shall be bound by all of the additional • • • provisions of the Agreement insofar as they may be pertinent. 13. Indemnity. Lessee shall indemnify, protect, defend and hold completely harmless, the City, the Airport, and its trustees, councilors, officers, agents and employees from and against all liability, losses, suits, claims, judgements, fines or demands arising from injury or death of any person or damage to any property, including all reasonable costs for investigation and defense thereof (including attorney fees, court costs, and expert fees), of any nature whatsoever arising out of or incident to this Agreement, including but not limited to hazardous substances, Lessee's use or occupancy of the Airport premises, the rights, licenses, or privileges granted Lessee herein, or the acts of omissions of lessee's officer, agents, employees, contractors, subcontractors or licensees, regardless of where the injury, death or damage may occur. The Lessor shall give notice to Lessee of any such liability, loss, suit, claim or demand, and Lessee shall defend same using counsel reasonably acceptable to the Lessor. No word, sentence, paragraph or phrase shall be construed to waive that tort immunity as set for under Arkansas Law. The provisions of this section shall survive the expiration or early termination of this Agreement. 14. Insurance. Lessee shall maintain in force during the Term and any extended term public liability and property damage insurance in comprehensive form as reasonably may be required by the Lessor and outlined in the Airport Minimum Standards. The insurance shall be issued by an insurer licensed to do business in the State of Arkansas. Proof of insurance shall be provided to the Airport. Further, no change or cancellation of the insurance shall be made without 30 days notice to the Airport 15. Governmental Requirements A. Governmental Requirements - General Lessee shall comply with all Governmental Requirements applicable to Lessee's use and operation of the Leased Premises. Without limiting the generality of the foregoing, Lessee shall at all times use and occupy the Airport in strict accordance with all laws, rules, regulations, minimum standards, and security plans that may be imposed by the FAA, the Airport, the state, federal or city government with icapa t to the Airport and operations thereof, including but not limited to procuring all licenses, franchises, certificates, permits, and authorizations necessary to conduct business. B. No Liability for Exercise of Powers. The Lessor shall not be liable to Lessee for any diminution or deprivation of its rights which may result from the proper exercise of any power reserved to the Lessor in this Agreement or by reason of governmental requirements; Lessee shall not be entitled to terminate this Agreement by reason thereof, unless the exercise of such power shall interfere with Lessee's rights hereunder so as to constitute a tennination of this Agreement by operation of law. C. Nondiscrimination. Lessee, and its successors in interest, and assignees, as part of the consideration hereof hereby do covenant and agree, as a covenant running with the land, that in the event facilities are constructed, maintained or otherwise operated on property -5- • • described in this Agreement for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provisions of similar services or benefits, Lessee shall remain and operate such facilities and service in compliance with all other requirements imposed pursuant to Title 49 CFR Part 21, Nondiscrimination in Federally -Assisted Programs of the Dwau burnt of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, as said regulations may be amended. Lessee, and its successors in interest, and assignees, as a part of the consideration hereof, do covenant and agree hereby, as a covenant running with the land, that: (1) no person shall be excluded from participation in, demed the benefits of, or otherwise be subjected to discrimination in the use of said facilities on the grounds of race, color, creed, national origin, sex or disability; (2) in the construction of any improvements on, over or under such land, and the furnishings of services thereon, no person shall be excluded from participation in, demed the benefits of, or otherwise be subjected to discrimination in the use of said facilities on the grounds of nice, color, creed, national origin, sex or disability; (3) Lessee shall be responsible for maintaining the Leased Premises and services in a manner which complies with the parties' respective obligations under 14 CFR Part 382, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN AIR TRAVEL, under the Uniform Federal Accessibility Standards (UFAS), or substantially equivalent standards; under 49 CFR part 27, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITTING FROM FEDERAL FINANCIAL ASSISTANCE; and under 42 U.S.C.S. §§ 12101, et seq., THE AMERICANS WITH DISABILITIES ACT of 1990, or a substantially equivalent standard, and (4) Lessee will be responsible for any alterations and/or construction made during the initial lease period or any extensions or renewal within the demised space, the subject of this Lease, which may be mandated by or necessary to meet the requirements of the statutes and regulations cited above and other relevant Federal, State or local laws, statutes and regulations cited above and other relevant Federal, State or local laws, statutes and ordinances that relate to disabled accessibility standards. To the extent applicable, Lessee assures that it will undertake an Affirmative Action Program as required by 14 CFR Part 152, Subpart E to ensure that, on the grounds of race, color, creed, national origin or sex, no person shall be excluded from participatmg in any employment activities covered in 14 CFR Part 152, Subpart E Lessee assures that it will require that its covered suborganizations provide assurances to the Airport that they similarly will undertake Affirmative Action Programs and that they will require assurances from their suborganizations as required by 14 CFR Part 152, Subpart E to this same effect. 16. Assigning, Subletting and Encumbering. Lessee shall not assign this Agreement in whole or in part, nor sublease all or any part of the Leased Premises, nor permit other persons to occupy said Leased Premises or any part thereof, nor grant any license or concession for all or any part of said Leased Premises, without the prior written consent of the Lessor, which consent shall not be unreasonably withheld. 17. Independent Contractor.. This Agreement shall not be deemed or construed to create -6- • • • • any relationship or joint venture or partnership between the parties, to give the Lessor any interest in the business of Lessee, or to grant to Lessee any powers as an agent or representative or the City or Airport for any purpose or to bind the City or the Airport. Lessee shall be an independent contractor owning and operating its business as herein described. 18. Termination for Airport Purposes. Lessee agrees and understands that, by reason of the broad public interest in the efficient maintenance, operation and development of the Airport, the lessor hereby expressly reserves the right to modify or to terminate this Agreement upon a determination by the Airport that the Leased Premises are needed for Airport construction of development. In the event the Lessor elects to modify or terminate the Agreement, Lessee shall surrender the Leased Premises, or any portion thereof designated, to the Lessor within ninety (90) days from receipt of notice. The Lessor shall use its best efforts to provide Lessee with comparable replacement premises at the Airport and at a comparable rate not to exceed those rates set forth in this Agreement. All other tenns and conditions of this Agreement shall apply to the replacement premises. Lessor shall pay the reasonable expenses incurred by Lessee in relocating and/or removal of equipment and slab and foundation improvements upon modification or temrination for airport purposes as set forth herem above. Reasonable expenses are those expenses that are nernary to physically move and relocate the Lessee to a new location on the Airport. 19. Miscellaneous A. Severability. In the event any provisions of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision bereot, unless such holding shall materially affect the rights of either party as set forth herein B. Entire Agreement; Modification. This Agreement expresses the entire understanding of the Lessor and Lessee concerning the Leased Premises. Neither the Lessor nor Lessee has made or shall be bound by any agreement or any representation to the other concerning the Leased Premises or the subject matter hereof which is not set forth expressly in this Agreement. This Agreement may be modified only by a written agreement of subsequent date hereto signed by the Lessor and Lessee. C. Non -Waiver. Neither the waiver nor any forbearance of remedy by the Lessor of any breach of IEcsee of any provision hereof shall operate as a waiver for any other breach by Lessee, D. Execution of Counterparts This Agreement simultaneously may be executed in -7- • • • several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. E. Choice of Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Arkansas. F. Force Majeure. Neither the Lessor nor Lessee shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations hereunder by reason of embargoes, shortages of material, acts of God, acts of the pubhc enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellions, sabotage, or any other ¢ircrmistances for which it is not responsible or which are not within its control, and the time for performance automatically shall be extended by the penod the party is prevented from performing its obligations hereunder. G. Binding Effect. This Agreement shall be to the benefit of and shall be binding upon the Lessor, Lessee and their respective successors and assignees, if such assignment shall have been made in conformity with the provisions of this Agreement. IN WITNESS WHEREOF, the Lessor and Lessee have executed this Agreement on the day of 2000. City of Fayetteville By Fred Hanna, Mayor ATTEST: Heather Woodruf City Clerk ATTEST By: Wings Air, Inc. By Title: -8- 1• I•.. ; �: 11.y efir r 1 iii 41:•:‘,.,•:,;1, ,:.•:,.‘"•::`\f‘•::::\A ...":":;%•:;::"%‘ 'mp`IN 'h''`