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HomeMy WebLinkAboutRES 17-042RESOLUTION NO. 17-042 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT- THAT the City Manager be and he is hereby authorized to execute a one (1) year extension to the Fixed Base Operator (FBO) Lease Agreement with BMT Wings, LLC. The amendment is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 28th day of February, 2017. STATE OF TEXAS § COUNTY OF JEFFERSON § KNOW ALL MEN BY THESE PRESENTS: LEASE AGREEMENT THIS LEASE AGREEMENT is made this day of 20 , between the City of Beaumont, Texas, (hereinafter called "City" or "Lessor") and BMT Wings LLC., a Texas Limited Liability Company organized and existing under the laws of the State of Texas and authorized to do business in the State of Texas (hereinafter called "Lessee"). WHEREAS, the City of Beaumont and BMT Wings LLC., are involved in a contract which expires on or about March 31, 2017; and, WHEREAS, Lessor and Lessee wish to extend such contract; and, WHEREAS, the current agreement is contained in several documents which the parties wish to condense into one document; NOW, THEREFORE, in consideration of the mutual covenants and considerations herein contained, the Lessor and Lessee therefore agree to the following: 1.0. LEASED PREMISES. The term "Leased Premises," as used in this Agreement, shall include at Beaumont Municipal Airport, in Jefferson, County, only those properties as shown on the attached Exhibits "B," "C" and "D;" and further limited as follows: 1.1. Terminal Building Office Space (Exhibit "B") 1.2. North Hangar/Office Building (Exhibit "C"). 1.3. Fuel Storage Farm (Exhibit "C") 1 _f �0 EXHIBIT "A" 1.4. South Hangar Building (Exhibit "D"). 1.4.1. Facility to be leased on an "as is basis." 2.0. OBJECTIVES AND PURPOSE OF LEASE. 2.1. Use of Leased Premises. Lessee shall use the Leased Premises for the conduct of Lessee's business at the Airport and for no other purpose. Lessee shall comply with the Minimum Standards and Requirements for the Conduct of Commercial Aeronautical Services and Activities of the City (hereinafter called "Minimum Standards"), which are attached hereto as Exhibit "E," and made a part hereof, for FBO services, including, but not limited to those services stated below, in consideration of this lease agreement. 2.1.1. Aircraft Line Services; 2.1.2. Flight Instruction and Training; 2.1.3. Aircraft Airframe and Engine Repair, and Maintenance; 2.1.4. Ramp Parking and Tie -Down. Leased Premises may also be used in providing "Specialized Aviation Operations," in compliance with and defined by the City's Minimum Standards. 2.2. Prohibited Uses. The following activities are expressly prohibited.- 2.2.1. rohibited: 2.2.1. Automobiles and trucks are prohibited from parking on the ramp, except for fuel trucks. However, this shall not be interpreted to prohibit cars and trucks from being on the ramp for the purpose of loading and unloading aircraft. 2 of 32 2.2.2. Lessee shall not conduct any commercial activity on the Airport not defined in the Minimum Standards, without prior written consent from City. 2.2.3. Lessee shall not use Leased Premises for any illegal acts. 2.2.4. Lessee shall not, in any manner, restrict access or use of public facilities by improvements or operation of its Leased Premises. 2.2.5. It is agreed by the parties hereto that the sale of beer, wine and other liquors is prohibited on said premises. 3.0. ALTERATIONS OR REPAIRS TO LEASED PREMISES. Lessee shall not construct, install, remove, and/or modify any of the buildings or premises leased hereunder without prior written approval of the City. All improvements must be made in compliance with all City of Beaumont codes. In the event that Lessee makes improvements or alterations to or on the Leased Premises, the use thereof shall be enjoyed by Lessee during the term hereof without the additional rental therefore, but such additions, alterations or improvements shall become the property of the City upon the completion of the term. 4.0. TERM OF AGREEMENT. 4.1. The primary term of this agreement shall be one (1) year, subject to a reopener on rental, as set out herein, beginning . 2017. One (1) month prior to the end of the primary term, one (1) year agreement, the City will determine whether an extension of an additional one (1) year will be granted. Any 3 of 32 extension must be in writing and signed by both parties. Lessee further agrees that upon the expiration of the term or extension of this Agreement or sooner cancellation thereof, the Leased Premises will be delivered to City in good condition, reasonable wear and tear excepted. Reasonable wear and tear shall be determined at the sole discretion of City upon inspection of the Leased Premises from time to time. 5.0. RENTALS, FEES AND RECORDS. 5.1. Rentals for Leased Premises. During the term hereof, lessee shall pay rent to City in the amount of $1,000.00 (ONE THOUSAND DOLLARS) monthly. The foregoing rentals shall be payable in equal monthly installments in advance, on or before the tenth (10th) business day of each calendar month of the term, at the City. 5.2. Fuel Flowage Fee. During the term hereof, Lessee shall pay to City the herein provided fees per gallon of fuel delivered into aircraft. Payment shall be remitted to City on or before the tenth (10th) business day following the calendar month delivered. 5.2.1. $.02 per gallon for first 8,000 gallons each month. 5.2.2. $.03 per gallon for second 8,000 gallons each month. 5.2.3. $.05 per gallon for third 8,000 gallons each month and every gallon thereafter. 5.3. Audit and Financial Regulations. The City shall have the right through its agents and employees to audit and 4 of 32 examine at all reasonable times, the Lessee's books and financial and operational records which may be reasonably required by the City in order to enforce the terms of this agreement or to evaluate the Lessee's performance thereof. Financial records will be maintained with such adequacy so as to allow identification of the source of all revenue related to this agreement. 5.4. Delinquent Rentals and Fees. There shall be added to all sums due City and unpaid, as may be established by City, an interest charge of one and one-half percent (1%%) of the principal sum for each full calendar month of delinquency computed as simple interest. No interest shall be charged upon that portion of any debt which, in good faith, is in dispute. No interest shall be charged upon any account until payment is thirty (30) days overdue. 6.0. OBLIGATIONS OF LESSEE. 6.1. Contract Administration. It is understood that City presently has contracts for mowing and maintenance on portions of the Leased Premises. If requested by Lessor, Lessee agrees to oversee such contracts and assure compliance with the terms of such contracts. If Lessee is unable to obtain compliance, Lessee agrees to immediately notify City of such deficiency and coordinate with the City in obtaining compliance. 6.2. Maintenance and Operation (General). Lessee shall maintain the Leased Premises at all times in a safe, neat and attractive condition, and shall not permit the accumulation of any trash, paper, or 5of32 debris on the Airport premises. Lessee shall repair or reimburse City for all damages to the Leased Premises caused by its employees, patrons, or its operation thereon; shall be totally responsible for the maintenance and repair of any new building constructed by Lessee, unless otherwise specified in writing. Lessee shall be responsible for and perform maintenance to Leased Premises including, but not limited to. - 6.2.1. o: 6.2.1. For Leased Premises, Lessee shall provide janitorial services, supplies, window washing, interior painting and replacement of light bulbs. 6.2.2. Cleaning of stoppages in plumbing fixtures and drain lines. 6.2.3. Lessee shall perform all maintenance on Lessee -constructed structures, pavement, and equipment. 6.2.4. Lessee shall advise City and obtain City's consent in writing before making changes involving structural changes to Leased Premises, modifications or additions to plumbing, electrical or other utilities. 6.2.5. Lessee is responsible for maintaining electric loads within the designed capacity of the system. Prior to any change desired by Lessee in the electrical loading which would exceed such capacity, written consent shall be obtained from the City. 6.2.6. Lessee shall maintain pumps, meters, hoses and nozzles associated with the distribution of fuel into fuel truck or aircraft. City, at its discretion, shall be the sole judge of the quality of maintenance, as 6 of 32 specified in this agreement; and Lessee, upon written notice by City to Lessee, shall be required to perform the maintenance deemed necessary. If said maintenance is not undertaken by Lessee within thirty (30) days after receipt of written notice, City shall have the right to enter upon the Leased Premises and perform the necessary maintenance, the cost of which shall be borne by Lessee. No waste shall be committed or damage done to the property of the City. 6.3. Utilities. Lessee shall assume and pay for all costs or charges for utility service furnished to Lessee during the term hereof; provided, however, that Lessee shall have the right to connect to any and all storm and sanitary sewer and water and utility outlets at its own cost and expense; and Lessee shall pay for any and all service charges incurred therefore. Utility cost for the Terminal Building office space, excluding telephone service, shall be the responsibility of City. 6.4. Trash, Garbage, Etc. Lessee shall pick up and provide for a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage, and other refuse caused as a result of the operation of its business. Lessee shall provide and use suitable covered receptacles for all such garbage, trash, and other refuse. Piling of boxes, cartons, barrels, pallets, debris, or similar items in an unattractive or unsafe manner on or about the Leased Premises shall not be permitted. No oils, greases, detergents, or other insoluble substance shall be placed in the sewage or drainage systems or on the ground. All local, state, and federal laws, 7 of 32 regulations, and ordinances governing the disposal of waste materials shall be complied with by the Lessee. 6.5. Signs. Lessee shall not erect, maintain, or display upon the outside of Leased Premises any billboards, or advertising signs; provided, however, Lessee may maintain on the outside of said buildings, its own name(s), and services on signs, the size, location and design of which shall be subject to prior written approval by City. 6.6. Discrimination. The Lessee, in the operation to be conducted pursuant to the provisions of this Agreement and otherwise, shall not discriminate against any person or group of persons in any manner prohibited by Part 15 of the Federal Aviation Regulations or any amendments thereto. The Lessee, for himself, his heirs, personal representatives, successors, and assignees, does hereby covenant and agree to maintain and operate all facilities and services authorized hereunder in compliance with all the 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 6 of the Civil Rights Act of 1964, City of Beaumont Minority Business Enterprise Program as outlined in the Minority Business Utilization Commitment (Exhibit "F"), and as said regulations may be amended. In the event of breach of any of the above discrimination covenants, City shall have the right to terminate this Agreement and to re-enter and repossess said land and the facilities thereon, and to hold the same as if this Agreement had never 8 of 32 been made or issued. The Lessee, for himself, his personal representatives, successors in interest, and assignees does hereby covenant and agree that (1) no person, on the grounds of race, sex, color, or national origin, shall be excluded from participation, denied the benefits of or be otherwise subjected to discrimination in the use of said facilities; (2) that in the construction of any improvements on, over and under such land and the furnishing of services thereon, no person, on the grounds of race, sex, color, or national origin, shall be excluded from participation in or denied the benefits of such improvements or services, or otherwise be subjected to discrimination: and (3) that Lessee shall use the 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, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, effectuation of Title V of the Civil Rights Act of 1964, and as said regulations may be amended. In the event of breach of the above nondiscrimination covenants herein, City shall have the right to terminate this Agreement, and to re- enter and to repossess said premises and hold the same as if this Agreement had never been made or issued. The Lessee, in exercising any of the rights or privileges herein granted to it, shall not, on the grounds of race, color, or national origin, discriminate or permit discrimination against any person or group of persons in any manner prohibited by Part 21 of the Regulations of the Secretary of Transportation. The Lessee is hereby granted the right to take such action, anything to the contrary herein notwithstanding, as the United States may direct to enforce this nondiscrimination 9 of 32 covenant. With respect to the Leased Premises, Lessee agrees to furnish services on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit of service; provided, that the Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. 6.7. Affirmative Action. With respect to the Leased Premises, the Lessee assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or sex, be excluded from participating in any employment activities covered in 14 CFR, Part 152, Subpart E. The Lessee assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. The lessee assures that it will require that its covered sub -organizations provide assurances to the Lessee that they similarly will undertake affirmative action programs and that they will require assurances from their sub -organizations, as required by 14 CFR, Part 152, Subpart E, to the same effect. 7.0. OBLIGATIONS OF CITY. 7.1. Operations as a Public Airport. City covenants and agrees that it will operate and maintain the Airport facilities, as 10 of 32 defined herein above, as a public airport consistent with and pursuant to the Sponsor' Assurances given by the City to the United States Government under the Federal Airport Act. 7.2. Ingress and Egress. Upon paying the rental hereunder and performing the covenants of this Agreement, Lessee shall have the right of ingress to and egress from the Leased Premises for the Lessee, its officers, employees, agents, servants, customers, vendors, suppliers, patrons, and invitees over the roadways servicing the Leased Premises. 7.3. Maintenance of Leased Premises. 7.3.1. All maintenance, other than that described as Obligations of Lessee in 6.2 or in Section 12 hereof, shall be provided by City. 7.3.2. South Hangar Building is included in Leased Premises on an "as is basis." City shall make no claim as to when, if any, repairs or improvements will be made. City shall retain the right to determine need for and ability to provide repairs, maintenance or improvements. 7.4 Management of T -Hangars. 7.4.1 Management of T -Hangars shall be the responsibility of the City. 8.0. CITY'S RESERVATIONS. 8.1. Improvements, Relocation, or Removal of Structures. City, at its sole discretion, reserves the right to further develop or improve the 11 of 32 aircraft operation area and other portions of the Airport, including the right to remove or relocate any structure on the Airport, as it sees fit, and to take any action it considers necessary to protect the aerial approaches of the Airport against obstructions, together with the right to prevent Lessee from erecting or permitting to be erected, any buildings or other structure on the Airport which, in the opinion of City would limit the usefulness of the Airport or constitute a hazard to aircraft. 8.2. Inspection of Leased Premises. City, through its duly authorized agent, shall have, at any reasonable time, the full and unrestricted right to enter the Leased Premises for the purpose of periodic inspection for fire protection, maintenance and to investigate compliance with the terms of this Agreement. 8.3. Subordination to U.S. Government. This Agreement shall be subordinate to the provisions of any existing or future agreement(s) between the City and the United States, relative to the operation and maintenance of the Airport, the terms and execution of which have been or may be required as a condition precedent to the expenditure or reimbursement to City for federal funds for the development of the Airport. 8.4. War or National Emergency. During the time of war or national emergency, City shall have the right to lease the Airport or any part thereof to the United States government for military use, and, if any such lease is executed, the provisions of this Agreement, insofar as they are inconsistent with the lease to the Government, shall be suspended and, in that event, a just and proportionate part of the rent hereunder shall be abated. 12 of 32 9.0. INDEMNITY AND INSURANCE. 9.1. Indemnification. Lessee shall indemnify, defend, and hold harmless City, its officers, agents and employees from any and all liabilities, claims, demands, actions, losses, damages and costs, including all costs of defense thereof, caused by or arising out of, or in any way related to Lessee's use or occupancy of the Leased Premises or occurring on the Leased Premises during the term of the lease or any time of occupancy of the premises by inverse condemnation, and including claims, liabilities and actions based upon acts, omissions or negligence of the City, its officers, agents, and employees. Upon demand, Lessee shall, at its own expense, defend City, its officers, agents, and employees against any and all liabilities, claims, demands, actions, losses, damages and costs. 9.2. Insurance Coverages. Insurance coverage shall be provided and paid for by the Lessee in the following amounts with the City and all other personnel as additional insured. A Certificate of Insurance or a copy of the insurance policies involved will be furnished to the City and ten (10) days advance written notice of any change to any policy or cancellation of any policy shall be given to the City. The City shall retain the right to waive any insurance requirements or limits. 9.2.1. Aircraft Liability: Bodily Iniury (Each Accident) $250,000.00 each person 13 of 32 $500,000.00 more than one person Property Damage $100,000 each accident 9.2.2. Comprehensive Public Liability and Property Damage, Including Contractual Liability: Bodily Injury $300,000.00 each accident Property Damage $100,000.00 each accident Broad form liability endorsement form G222 shall be included. 9.2.3. Hangar Keeper's Liability: $250,000.00 each accident 9.2.4. Products and Completed Operations: $300,000 Bodily Injury $100,000 Property Damage 9.2.5. Student and Renter's Liability: $25,000 per accident excluding passengers 9.2.6. Motor Vehicle Liability: Bodily Injury (Each Accident) $250,000.00 each person $500,000 per occurrence Property damage $100,000.00 each accident 14 of 32 9.2.7. Worker's Compensation and Employer's Liability: Up to Statutory limit 9.2.8. Should any insurance required by this Agreement lapse, the Lessee shall immediately cease all operations at the Airport as of the time and date of such lapse, and shall not resume any operations until authorized in writing by the City. If the lapse period extends fifteen (15) days, the Agreement may be terminated and the Lessee shall be in breach of this Agreement. 9.2.9. Should the City receive notices of insurance cancellation three (3) or more times within a twenty-four (24) month period, the City may cancel this Agreement. 10.0. TERMINATION. 10.1. Termination by City. The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement upon fifteen (15) days written notice from the City to the Lessee of its election to do so and shall have the right of re-entry and may remove all persons and property from the premises and may store such property at a public warehouse or elsewhere at the expense of and for the account of the Lessee if the Lessee abandons the premises or breaches this Agreement, including the following: 10.1.1. By failing to pay insurance premiums, liens, claims, or other charges. 15 of 32 10.1.2. By failing to pay any payments due the City, State, or Federal Government from the Lessee or its principals, including, but not limited to, payments identified in this Agreement or any taxes, fees, assessments, or liens. 10.1.3. By assigning or subletting the Leased Premises without consent of the City. 10.1.4. On the institution of voluntary or involuntary bankruptcy proceeding against the Lessee. 10.1.5. By death of the Lessee, or dissolution of the Lessee's firm or business. 10.1.6. By violation of any provision of the Agreement identified as a covenant on the part of the Lessee. 10.1.7. By the abandonment of the premises or any portion thereof and discontinuance of the Lessee's operations, or any portion thereof. Should this occur, the City shall not be responsible for the custodial protection of merchandise, fixtures, or equipment abandoned, even though it is necessary for the City to remove the same from the Airport for storage or disposal. 10.1.8. In the event of the need for the Airport by the City for purposes of national defense. 10.1.9. In the event the Airport is no longer operated as an aeronautical facility. 10.2. Termination by Lessee. The Lessee, besides all other rights or remedies it may have, shall have the right to terminate this Agreement upon fifteen (15) days written notice of its election to do so if the City breaches this Agreement, including failure to pay the Lessee amounts due under terms of this Agreement after the expiration of a thirty (30) day period following notice of payment due is given by the Lessee. Lessee does not have the right to terminate this Agreement because of the City's failure to pay any amount which, in good faith, is in dispute. 10.3. Rights After Termination. In the event of termination for default for unsatisfactory performance by the Lessee, the City shall have the right (unless otherwise specified in the termination notice), at once and without further notice to the Lessee, to enter and take possession of vehicles, equipment, supplies, or any premises occupied by the Lessee, by force or otherwise, and expel, oust and remove any and all parties who occupy any portion of the premises of the Airport covered by this Agreement, and any and all goods and chattels belonging to the Lessee or his associates which may be found in or upon same without being liable for prosecution or to any claim for damages therefor. Upon such termination by the City, all rights, powers and privileges of the Lessee shall cease, and the Lessee shall immediately vacate any and all space occupied by the Lessee under this Agreement, and shall make no claim of any kind whatsoever against the City, its agents or representatives by reason of such termination or any act incident thereto. 11.0. ASSIGNMENT AND SUBLETTING. 17 of 32 11.1. Successors and Assignment. Lessee shall not assign this Agreement or any part thereof in any manner whatsoever or assign any of the privileges recited herein without the prior written consent of City. In the event of such assignment, Lessee shall remain liable to City for the remainder of the term of the Agreement to pay to City any portion of the rental and fees or damages, as provided for herein, upon failure of the assignee to pay the same when due. All covenants, stipulations and provisions in the Agreement to be entered into shall extend to and bind the legal representative, successors and assigns. Said assignee shall not assign said Agreement except with the prior written approval of the City and the Lessee herein, and any assignment by the Lessee shall contain a clause to this effect. 11.2. Subletting. The Lessee may rent or sublease the Leased Premises or portions thereof for the purpose of providing space to meet the required services as stated herein, but shall be required to obtain prior written permission from the City. Lessee shall not rent or sublease all or any part of such premises or the improvements located thereon for any non -airport aviation activity or other purpose without the prior written consent of the City. Subleases shall be subject to all of the conditions and provisions to which the Lessee is bound under terms of this Agreement. 12.0 PROVISIONS FOR AIRPORT GROUNDS/FACILITY MAINTENANCE: In addition to its general maintenance obligations contained in Section 6, Lessee further agrees as follows: 18 of 32 12.1. GRASS CUTTING: The Lessee shall maintain grass heights in airport areas as indicated in Exhibit "A." It shall be the responsibility of the Lessee to assure that grass heights do not exceed those indicated in Exhibit "A," and that grass is maintained on airport property to the edge of the Keith Road pavement, including all ditches on or surrounding airport property, except as provided for herein. 12.2. METHOD: The Lessee may not kill grass or any other plant life without specific written approval from the City Manager or his designee. It is not intended that the maximum grass heights be maintained through killing of plant life. Maximum grass heights may be maintained through mowing or in conjunction with chemical spraying as approved. 12.3. CULTIVATION: The Lessee shall only be required to cultivate plant growth in the indicated areas on Exhibit "A." Such cultivation shall be performed as necessary to maintain plant life and a pleasing appearance through watering. fertilizing, weeding, and other measures as necessary. All lawn areas, areas with a maximum grass height of two (2) inches, shall be mowed weekly from April1st through September 30th at 1 3/4" to 2" heights. All clippings from lawn areas shall be removed. Lawn perimeters along walks, curbs, parking lots and gutters are to be edged to maintain a crisp, clean appearance. Clean up will include removing grass clippings from walks, curbs and pavings. Grass around signs, fence lines, trees, poles and other obstacles shall be removed by monofilament trimming. The Lessor shall furnish necessary water for these areas. The Lessee shall be responsible for all other equipment, materials, and supplies for such cultivation. 111061ne 99% 12.4. CHEMICALS: Any chemicals to be used for the purpose of fertilization, killing, or reducing the growth of plants, or for insect or pest control may not be used without the specific written approval of the City Manager or his designee. Prior to any application of such substances, Lessee must submit to City each substances' Material Safety Data Sheet. It shall be the responsibility of the Lessee to use or apply all chemicals with due care and according to manufacturer's specifications and any applicable laws. 12.5. LANDSCAPING: Landscaped areas near the main terminal building of the airport shall be maintained in a neat and pleasant appearance. Shrub hedges, ground covers and vines shall be pruned according to recommended horticultural practices. Vines and ground cover shall be trimmed back away from building to eliminate growth through walls. Weed and grass control in beds shall Include hand pulling and cultivating to maintain a loose, aerated top layer. Bed edges are to be kept clean and well defined. Replacement of any landscaping shall be at the expense of the Lessee. The Lessor reserves the right to install additional landscaping at the airport at its own expense, with maintenance to be the responsibility of the Lessee. 12.6. SWEEPING: The Lessee shall provide sweeping to keep all paved areas reasonably free of debris. All walks shall be swept weekly and debris removed from the site. Paved areas inside hangars are not included. Particular attention shall be given to runways and taxiways due to the increased potential of property damage in such areas. All debris, rocks, mud and trash tracked in, thrown or dislodged onto runways taxiways or aprons while providing the services required in the performance of this agreement shall be removed immediately. Sweeping of entire runway, taxiways, and apron shall be provided at least once each six (6) months. 20 of 32 12.7. DEBRIS: It shall be the responsibility of the Lessee to keep the airport reasonably free of debris, including any necessary hauling to approved disposal sites, in accordance with all applicable laws. 12.8. LIGHTS: The Lessee shall remove all aggregate from around runway and taxiway lighting. Lessee shall prevent or limit vegetation growth within a one (1) foot radius around fixtures to two (2) Inches In height. The Lessee shall provide maintenance of the runway, taxiway, VASI, and Wind -T lighting systems as listed below. Because time is of the essence in replacing such fixtures, Lessee shall promptly make all repairs. 12.8.1. Replace light bulbs as required. 12.8.2. Replace fixture globes as required. 12.8.3. Insure proper fit of all fixture components. 12.8.4. Shall record and report to the City lights which required operational repairs. 12.8.5. Shall record, report and make issuance of NOTAM's to appropriate governmental agency and to City of conditions affecting the safety of airport operations. 12.8.6. Furnish labor and materials to ensure that the lights' concrete bases are kept level with the surrounding ground. Bulbs and globes for runway and taxiway lighting shall be furnished to the Lessee on an as needed basis by the Lessor. Any loss of material inventory shall be the responsibility of the Lessee and may be deducted from monthly payments. 12.9 CUSTODIAL SERVICE: The Lessee shall provide custodial services in the main terminal building including, but not limited to, cleaning floors, windows, glass structures, restrooms, walls, furnishings, and other facilities. Restrooms shall be cleaned on a daily basis as required by their usage. In 21 of 32 addition, disposal of debris and other custodial services shall be performed by the Contractor as necessary to maintain a safe and pleasing environment as defined by Lessee. Custodial service shall include providing cleaning and other supplies such as soap, toilet paper, hand towels, and dispensing units for such, all as necessary for efficient operation of the building. Custodial inspections and necessary services shall be performed by the Lessee seven (7) days per week. 12.10 FACILITY MAINTENANCE AND REPAIR: Lessee shall make adjustments to and the Lessor shall maintain and repair as necessary T -hangars, Wind - T, fences, and other operational, security, or safety features of the airport. Additionally, the Lessor shall maintain paved areas, such as runways, taxiways, aprons, parking areas, and driveways, sidewalks, and repair pavement markings. Lessee shall provide inspection of problems or hazards and report such findings to Lessor on a timely basis. 12.10.1. Maintenance replacement and providing of light bulbs for the exterior and interior of terminal building shall be the responsibility of the Lessee. 12.10.2. Lessee shall include in the maintenance of the turf runway proper painting and placement of turf runway markers. 12.11 INSPECTIONS: Lessee shall perform routine inspections of airport facilities as indicated on Exhibit "B," "Monthly Inspection and Maintenance Schedule." Lessee shall notify Lessor on a timely basis of any deficiencies or hazard incurred during inspection. A signed inspection report verifying the individual responsible for completion of such inspections shall be furnished to the Lessor on a monthly basis. 12.12 VENDING: The Lessee shall provide, through the Lessee's own company or outside vendors, coffee, soft drinks, and snacks. The Lessee shall 22 of 32 obtain any necessary permits and may retain any profits from vending. Vending shall be limited to the main terminal building snack area unless prior written approval is obtained from the City Manager or his designee. 12.13 FAA RULES AND REGULATIONS: All activities of the Lessee at the airport shall be in accordance with all applicable rules and regulations of the Federal Aviation Administration or other applicable agencies. 12.14 AREAS NOT INCLUDED: The Lessee shall not be responsible for maintenance or repair of any areas or facilities leased to other parties by the City of Beaumont. 12.15 PROMOTION: The Lessee shall promote the airport, the City of Beaumont, and aviation through courteous and positive interaction with all individuals, groups, organizations, agencies, and other parties using the airport facilities, or expressing an interest in the airport. This shall include an effort by the Lessee to schedule activities to maximize the value of the Beaumont Municipal Airport to the citizens of Beaumont. 12.16 HOURS: The Lessee shall not be required to provide maintenance personnel at the airport on a regular time schedule. However, the Contractor shall be available for service calls as necessary between the hours of 8:00 am. and 5:00 p.m., seven (7) days per week. 12.17 LIMITS ON FACILITY USE: The Lessee shall not use airport premises or facilities for activities, storage, etc., not specifically allowed herein without written approval of the City Manager or his designee. 12.18 RESPONSE TO REQUESTS: The Lessee shall respond to all requests for maintenance, repair, and investigation required by this agreement as soon as practical. In cases where the Lessee is required to perform services required by this agreement, such services shall be performed within twenty- four (24) hours following notice. For each working day or portion of a 23 of 32 working day in excess of the twenty-four hour completion requirement, the Lessor shall be subject to a penalty of twenty dollars ($20). Each request shall be subject to a separate penalty, and penalties may be deducted from any payments due to the Lessee from the Lessor. The City Manager or his designee may waive all or a portion of such penalties on a case-by-case basis as conditions merit. Failure of the Lessee to perform such services after seven (7) days notice or failure to pay such penalties after thirty (30) days notice may be considered a breach of contract by the Lessee at the option of the City Manager or his designee. 12.19 NOTICE OF HAZARDS: Should any hazard exist at the airport, regardless of the hazard source, the Lessee shall promptly notify the appropriate air flight service and the Lessor as soon as such hazard is noticed or brought to the attention of the Lessee. Notice of the City of Beaumont shall be to the City Manager or his designee or, in the City Manager's absence, to the Beaumont Fire or Police Department, as appropriate. All airport FBOs shall also be notified if open or, if not open, immediately upon opening for the FBO's next business day. Notices of any hazards shall also be placed on the airport bulletin board. 12.20 STORAGE AND OFFICE AREAS: The Lessee shall have access to the custodial storage area as identified in Exhibit "C" and hangar storage areas as identified in Exhibit "D" for purposes of conducting activities associated with this Agreement. The Lessee shall be responsible for maintenance of these areas. 12.20.1. The Contractor shall exercise due and prudent care in storage and use of any hazardous materials, fuels, herbicides, pesticides, etc., including security of such. Such materials must be stored in accordance with all applicable rules and regulations. 24 of 32 12.20.2. Maintenance and repair of equipment used by the Lessee in the performance of this contract shall be the responsibility of the Lessee. The Lessee shall avoid major maintenance and repair activities in public areas and, where practical, shall perform such activities in the identified storage areas or at locations not on the airport. 13.0. PROVISIONS FOR AGRICULTURAL ACTIVITIES. 13.1. AGRICULTURAL PURPOSE: The Lessor does hereby allow Lessee to establish and maintain a safe, effective, and efficient program for agricultural purposes at the airport. This program shall be restricted to grass, hay cutting, and for no other purpose without the written consent of the Lessor. 13.2. AGRICULTURAL AREA: Agricultural uses shall be restricted to areas described in Exhibit "A" as "Maximum Grass Heights -Thirty -Six Inches." Any dispute as to the boundary of said area shall be determined by the City Manager, whose decision shall be final. 13.3. OPERATIONAL REQUIREMENT: The Lessee shall take affirmative actions to provide safe operations for employees and airport users and visitors. The Contractor specifically covenants the following: 13.3.1. That it will never conduct any operation closer than three -hundred fifty (350) feet from runway centerline and three -hundred fifty (350) feet from runway ends or fifty (50) feet from taxiway centerlines. 13.3.2. To strictly abide by all restrictions on ingress and egress to its leased premises. 13.3.3. That it will never traverse a runway or taxiway without specific authority from the City Manager or his designee for that specific 25 of 32 crossing. 13.3.4. To allow no livestock on premises. 13.3.5. To raise or cultivate no crop that will lead to the infestation of birds. The opinion of the City Manager shall be final concerning whether a crop will lead to an infestation of birds. 13.3.6. To keep all farming equipment off and not to cross over paved service roads, runways, taxiways, and apron areas. 13.3.7. That it will not obstruct existing natural overland drainage or drainage ditches without specific, written permission from the City Manager or his designee. 13.3.8. The Lessee shall not be required to cultivate crops and may bale natural grasses or hay not requiring special farming operations such as irrigation. In the case of cultivated crops, the Contractor will keep fields clean at the end of the normal growing season and no crop shall be left in the field. 13.3.9. Crops or grasses shall not obstruct clear areas as required by Federal Aviation Administration rules or regulations. 13.4. LIEN: The Contractor hereby grants the City a security interest In the form of a landlord's lien to secure the payment of all rent that becomes due from the Contractor to the City under this agreement, including all crops grown on the airport and all proceeds from their sale. 13.5. FARMING ONLY: The Contractor shall use the premises for grass or hay cutting purposes only and for no other purpose without the written consent of the City Manager or his designee. 14.0. FACILITY DAMAGE: The Lessee shall be responsible for any damage to airport facilities, including, but not limited to, the runway and taxiway lighting; visual approach slope indicator lights; wind indicator, segmented circle, traffic pattern markers; and all other airport facilities. Because time is of the essence in 26 of 32 repairing such damaged facilities, the Contractor agrees and covenants that the Lessor may promptly repair or have repaired any such damaged facilities, and the Lessee shall promptly reimburse the Lessor for such repair. The necessity of such repairs, and the extent of such repairs, shall be determined by the City Manager, whose determination shall be final. At the option of the City Manager, the Lessee may be allowed to make such repairs to the satisfaction of Lessor. 15.0. MODIFICATIONS: Where changes to activities or areas included in this agreement are made, payments shall be adjusted in a pro rata manner. All modifications must be in writing. The City shall have the right to require modifications in scope of work. 16.0. LESSOR PROVISIONS OF LABOR, ETC.: Unless otherwise specifically indicated, the Lessor shall furnish all services supplies and equipment necessary to perform all activities and covenants of this Agreement. 17.0. MANAGEMENT RIGHTS OF LESSEE: The Lessee is authorized to notify and/or warn airport patrons who are violating the rules and regulations of the federal government, state or City of Beaumont regarding operations at the airport. Upon such notification of warning, Lessee shall notify the Lessor, as soon as practical, that such warning has been issued. The determination of the necessity of corrective action shall be solely that of the Lessor. Lessee shall take no active corrective action under this section without the written consent from the City Manager or his designee. 18.0. GENERAL PROVISIONS. 18.1. Co -Partnership Disclaimer. It is mutually understood and agreed that nothing in this Agreement is intended or 27 of 32 shall be construed as in any way creating or establishing the relationship of partners or co-partners between the parties hereto, or as constituting the Lessee as an agent or representative of the City for any purposes or in any manner whatsoever. 18.2. Non -Exclusive Rights. It is hereby specifically understood and agreed between the parties that nothing herein contained shall be construed as granting or authorizing the granting of exclusive rights to Lessee or others, as defined in Section 308 of the Federal Aviation Act of 1958, as amended. 18.3. Waivers. No waiver by either party of a breach by the other shall be construed or held to be a waiver by such party of any succeeding or preceding breach by the other party of the same or any covenant, condition, or restriction herein contained. 18.4. Modifications. Where changes to activities or areas included in this Agreement are made, such modifications must be in writing. The City shall have the right to require modifications in scope of work. 18.5. Lessee Inspection. The Lessee acknowledges its responsibility for inspecting of the Airport and the Leased Premises prior to signing of this Agreement and to inform itself regarding local conditions. 18.6. Lessee Provision of Labor, etc. Unless otherwise specifically indicated, the Lessee shall furnish all services, supplies, and equipment necessary to perform all activities and covenants of this Agreement. 18.7. Conditions Beyond Control. Neither the City nor the Lessee shall be required to perform any term, condition or 28 of 32 covenant of this Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, drought, floods, material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which, by the exercise of due diligence, the City or Lessee is unable or in party to prevent or overcome. 18.8. Sale of Interest. The Lessee may not sell or assign all or part interest in activities of the Airport to another party or parties without written approval of the City of such sale or assignment. The City may require any records or financial statements necessary in its opinion to insure such sale or assignment will be in the best interest of the City. 18.9. Service Levels. Lessee and sublessees agree to conduct said business in a proper and courteous manner and to furnish good, prompt and efficient commercial aeronautical services at all times, and in compliance with City's Minimum Standards. 18.10. Aircraft Service by Owner or Operator of Aircraft. It is clearly understood and agreed by the Lessee that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees, including, but not limited to, maintenance and repair that it may choose to perform. 18.11. Subordination. This Agreement shall be subordinate to the provisions of any existing or future agreement between City and the United States, relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. This subordination includes, but is not limited to, the right of the City, 29 of 32 during times of war or national emergency, to lease the landing area, or any part thereof, to the United States government for military or naval use and, if any such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the government, shall be suspended. 18.12. No -Sham Affidavit. All terms and conditions with respect to this lease are expressly contained herein, and the Lessee agrees that no representative or agent of the City has made any representation or promise with respect to this lease not expressly contained herein. 18.13. Compliance with Laws, etc. The Lessee shall at all times comply with the Airport Rules and Regulations, federal, state, and municipal laws, ordinances, codes, and other regulatory measures now in existence or as may be hereafter modified or amended, applicable to the specific type of operation contemplated by him. The Lessee shall procure and maintain during the term of the Agreement all licenses, permits, and other similar authorizations required for the conduct of his business operations. 18.14. Severability. If any term or provision of this lease shall, to any extent, be invalid or unenforceable, the remainder of this lease shall not be affected thereby and each other term and provision of this lease shall be valid and be enforced to the fullest extent permitted by law. 18.15. Binding Effect. This lease, including all of its covenants, terms, provisions, and conditions, shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. 18.16. Duty to be Reasonable. Wherever in this Agreement the City is to give its consent, approval or otherwise exercise discretion in judgment, such consent, approval or judgment shall not be 30 of 32 unreasonably exercised or unreasonably withheld. 18.17. Paragraph Headings. The paragraph headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 18.18. Notices. Whenever any notice or payment is required by this Agreement to be made, given or transmitted to the parties hereto, such notice or payment shall be enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail addressed to: Airport Management City of Beaumont P. O. Box 3827 Beaumont, Texas 77704; and notices, consents and approvals to Lessee addressed to: BMT Wings, LLC. 455 Keith Road Beaumont, Texas 77713; or such place as either party shall, by written directive, designate in the manner herein provided. Approvals and consents required herein may be given and executed by City Manager of City. 18.19. Exhibits. The Exhibits "A," "B," "C," "D," "E" and "F," attached hereto, are hereby made a part of this Agreement. 31 of 32 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of the date first above mentioned at Beaumont, Texas. CITY OF BEAUMONT, TEXAS Kyle Hayes City Manager ATTEST: City Clerk LESSEE BMT Wings, LLC. Joseph P. Arena Lessee LESSEE BMT Wings, LLC. Joseph A. Arena, Jr. Lessee 32 of 32 STATE OF TEXAS § COUNTY OF JEFFERSON § KNOW ALL MEN BY THESE PRESENTS: LEASE AGREEMENT THIS LEASE AGREEMENT is made this21-5f day of Ck , 20_jT, between the City of Beaumont, Texas, (hereinafter called "City" or "Lessor") and BMT Wings LLC., a Texas Limited Liability Company organized and existing under the laws of the State of Texas and authorized to do business in the State of Texas (hereinafter called "Lessee"). WHEREAS, the City of Beaumont and BMT Wings LLC., are involved in a contract which expires on or about March 31, 2017; and, WHEREAS, Lessor and -Lessee wish to extend such contract; and, WHEREAS, the current agreement is contained in several documents which the parties wish to condense into one document; NOW, THEREFORE, in consideration of the mutual covenants and considerations herein contained, the Lessor and Lessee therefore agree to the following: 1.0. LEASED PREMISES. The term "Leased Premises," as used in this Agreement, shall include at Beaumont Municipal Airport, in Jefferson, County, only those properties as shown on the attached Exhibits "B," "C" and "D;" and further limited as follows: 1.1. Terminal Building Office Space (Exhibit "B") 1.2. North Hangar/Office Building (Exhibit "C") 1.3. Fuel Storage Farm (Exhibit "C"). 1 of Q EXHIBIT "A" 1.4. South Hangar Building (Exhibit "D"). 1.4.1. Facility to be leased on an "as is basis." 2.0. OBJECTIVES AND PURPOSE OF LEASE. 2.1. Use of Leased Premises. Lessee shall use the Leased Premises for the conduct of Lessee's business at the Airport and for no other purpose. Lessee shall comply with the Minimum Standards and Requirements for the Conduct of Commercial Aeronautical Services and Activities of the City (hereinafter called "Minimum Standards"), which are attached hereto as Exhibit "E," and made a part hereof, for FBO services, including, but not limited to those services stated below, in consideration of this lease agreement. 2.1.1. Aircraft Line Services; 2.1.2. Flight Instruction and Training; 2.1.3. Aircraft Airframe and Engine Repair, and Maintenance; 2.1.4. Ramp Parking and Tie -Down. Leased Premises may also be used in providing "Specialized Aviation Operations," in compliance with and defined by the City's Minimum Standards. 2.2. Prohibited Uses. The following activities are expressly prohibited: 2.2.1. Automobiles and trucks are prohibited from parking on the ramp, except for fuel trucks. However, this shall not be interpreted to prohibit cars and trucks from being on the ramp for the purpose of loading and unloading aircraft. 2 of 32 2.2.2. Lessee shall not conduct any commercial activity on the Airport not defined in the Minimum Standards, without prior written consent from City. 2.2.3. Lessee shall not use Leased Premises for any illegal acts. 2.2.4. Lessee shall not, in any manner, restrict access or use of public facilities by improvements or operation of its Leased Premises. 2.2.5. It is agreed by the parties hereto that the sale of beer, wine and other liquors is prohibited on said premises. 3.0. ALTERATIONS OR REPAIRS TO LEASED PREMISES. Lessee shall not construct, install, remove, and/or modify any of the buildings or premises leased hereunder without prior written approval of the City. All improvements must be made in compliance with all City of Beaumont codes. In the event that Lessee makes improvements or alterations to or on the Leased Premises, the use thereof shall be enjoyed by Lessee during the term hereof without the additional rental therefore, but such additions, alterations or improvements shall become the property of the City upon the completion of the term. 4.0. TERM OF AGREEMENT. 4.1. The primary term of this agreement shall be one (1) year, subject to a reopener on rental, as set out herein, beginning , 2017. One (1) month prior to the end of the primary term, one (1) year agreement, the City will determine whether an extension of an additional one (1) year will be granted. Any 3of32 extension must be in writing and signed by both parties. Lessee further agrees that upon the expiration of the term or extension of this Agreement or sooner cancellation thereof, the Leased Premises will be delivered to City in good condition, reasonable wear and tear excepted. Reasonable wear and tear shall be determined at the sole discretion of City upon inspection of the Leased Premises from time to time. 5.0. RENTALS, FEES AND RECORDS. 5.1. Rentals for Leased Premises. During the term hereof, lessee shall pay rent to City in the amount of $1,000.00 (ONE THOUSAND DOLLARS) monthly. The foregoing rentals shall be payable in equal monthly installments in advance, on or before the tenth (10th) business day of each calendar month of the term, at the City. 5.2. Fuel Flowage Fee. During the term hereof, Lessee shall pay to City the herein provided fees per gallon of fuel delivered into aircraft. Payment shall be remitted to City on or before the tenth (10th) business day following the calendar month delivered. 5.2.1. $.02 per gallon for first 8,000 gallons each month. 5.2.2. $.03 per gallon for second 8,000 gallons each month. 5.2.3. $.05 per gallon for third 8,000 gallons each month and every gallon thereafter. 5.3. Audit and Financial Regulations. The City shall have the right through its agents and employees to audit and 4 of 32 examine at all reasonable times, the Lessee's books and financial and operational records which may be reasonably required by the City in order to enforce the terms of this agreement or to evaluate the Lessee's performance thereof. Financial records will be maintained with such adequacy so as to allow identification of the source of all revenue related to this agreement. 5.4. Delinquent Rentals and Fees. There shall be added to all sums due City and unpaid, as may be established by City, an interest charge of one and one-half percent (1'/2%) of the principal sum for each full calendar month of delinquency computed as simple interest. No interest shall be charged upon that portion of any debt which, in good faith, is in dispute. No interest shall be charged upon any account until payment is thirty (30) days overdue. 6.0. OBLIGATIONS OF LESSEE. 6.1. Contract Administration. It is understood that City presently has contracts for mowing and maintenance on portions of the Leased Premises. If requested by Lessor, Lessee agrees to oversee such contracts and assure compliance with the terms of such contracts. If Lessee is unable to obtain compliance, Lessee agrees to immediately notify City of such deficiency and coordinate with the City in obtaining compliance. 6.2. Maintenance and Operation (General). Lessee shall maintain the Leased Premises at all times in a safe, neat and attractive condition, and shall not permit the accumulation of any trash, paper, or 5of32 debris on the Airport premises. Lessee shall repair or reimburse City for all damages to the Leased Premises caused by its employees, patrons, or its operation thereon; shall be totally responsible for the maintenance and repair of any new building constructed by Lessee, unless otherwise specified in writing. Lessee shall be responsible for and perform maintenance to Leased Premises including, but not limited to: 6.2.1. For Leased Premises, Lessee shall provide janitorial services, supplies, window washing, interior painting and replacement of light bulbs. 6.2.2. Cleaning of stoppages in plumbing fixtures and drain lines. 6.2.3. Lessee shall perform all maintenance on Lessee -constructed structures, pavement, and equipment. 6.2.4. Lessee shall advise City and obtain City's consent in writing before making changes involving structural changes to Leased Premises, modifications or additions to plumbing, electrical or other utilities. 6.2.5. Lessee is responsible for maintaining electric loads within the designed capacity of the system. Prior to any change desired by Lessee in the electrical loading which would exceed such capacity, written consent shall be obtained from the City. 6.2.6. Lessee shall maintain pumps, meters, hoses and nozzles associated with the distribution of fuel into fuel truck or aircraft. City, at its discretion, shall be the sole judge of the quality of maintenance, as 6of32 specified in this agreement; and Lessee, upon written notice by City to Lessee, shall be required to perform the maintenance deemed necessary. If said maintenance is not undertaken by Lessee within thirty (30) days after receipt of written notice, City shall have the right to enter upon the Leased Premises and perform the necessary maintenance, the cost of which shall be borne by Lessee. No waste shall be committed or damage done to the property of the City. 6.3. Utilities. Lessee shall assume and pay for all costs or charges for utility service furnished to Lessee during the term hereof; provided, however, that Lessee shall have the right to connect to any and all storm and sanitary sewer and water and utility outlets at its own cost and expense; and Lessee shall pay for any and all service charges incurred therefore. Utility cost for the Terminal Building office space, excluding telephone service, shall be the responsibility of City. 6.4. Trash, Garbage, Etc. Lessee shall pick up and provide for a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage, and other refuse caused as a result of the operation of its business. Lessee shall provide and use suitable covered receptacles for all such garbage, trash, and other refuse. Piling of boxes, cartons, barrels, pallets, debris, or similar items in an unattractive or unsafe manner on or about the Leased Premises shall not be permitted. No oils, greases, detergents, or other insoluble substance shall be placed in the sewage or drainage systems or on the ground. All local, state, and federal laws, 7 of 32 regulations, and ordinances governing the disposal of waste materials shall be complied with by the Lessee. 6.5. Signs. Lessee shall not erect, maintain, or display upon the outside of Leased Premises any billboards, or advertising signs; provided, however, Lessee may maintain on the outside of said buildings, its own name(s), and services on signs, the size, location and design of which shall be subject to prior written approval by City. 6.6. Discrimination. The Lessee, in the operation to be conducted pursuant to the provisions of this Agreement and otherwise, shall not discriminate against any person or group of persons in any manner prohibited by Part 15 of the Federal Aviation Regulations or any amendments thereto. The Lessee, for himself, his heirs, personal representatives, successors, and assignees, does hereby covenant and agree to maintain and operate all facilities and services authorized hereunder in compliance with all the 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 6 of the Civil Rights Act of 1964, City of Beaumont Minority Business Enterprise Program as outlined in the Minority Business Utilization Commitment (Exhibit "F"), and as said regulations may be amended. In the event of breach of any of the above discrimination covenants, City shall have the right to terminate this Agreement and to re-enter and repossess said land and the facilities thereon, and to hold the same as if this Agreement had never 8 of 32 been made or issued. The Lessee, for himself, his personal representatives, successors in interest, and assignees does hereby covenant and agree that (1) no person, on the grounds of race, sex, color, or national origin, shall be excluded from participation, denied the benefits of or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over and under such land and the furnishing of services thereon, no person, on the grounds of race, sex, color, or national origin, shall be excluded from participation in or denied the benefits of such improvements or services, or otherwise be subjected to discrimination: and (3) that Lessee shall use the 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, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, effectuation of Title V of the Civil Rights Act of 1964, and as said regulations may be amended. In the event of breach of the above nondiscrimination covenants herein, City shall have the right to terminate this Agreement, and to re- enter and to repossess said premises and hold the same as if this Agreement had never been made or issued. The Lessee, in exercising any of the rights or privileges herein granted to it, shall not, on the grounds of race, color, or national origin, discriminate or permit discrimination against any person or group of persons in any manner prohibited by Part 21 of the Regulations of the Secretary of Transportation. The Lessee is hereby granted the right to take such action, anything to the contrary herein notwithstanding, as the United States may direct to enforce this nondiscrimination 9 of 32 covenant. With respect to the Leased Premises, Lessee agrees to furnish services on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit of service; provided, that the Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. 6.7. Affirmative Action. With respect to the Leased Premises, the Lessee assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or sex, be excluded from participating in any employment activities covered in 14 CFR, Part 152, Subpart E. The Lessee assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. The lessee assures that it will require that its covered sub -organizations provide assurances to the Lessee that they similarly will undertake affirmative action programs and that they will require assurances from their sub -organizations, as required by 14 CFR, Part 152, Subpart E, to the same effect. 7.0. OBLIGATIONS OF CITY. 7.1. Operations as a Public Airport. City covenants and agrees that it will operate and maintain the Airport facilities, as 10 of 32 defined herein above, as a public airport consistent with and pursuant to the Sponsor' Assurances given by the City to the United States Government under the Federal Airport Act. 7.2. Ingress and Egress. Upon paying the rental hereunder and performing the covenants of this Agreement, Lessee shall have the right of ingress to and egress from the Leased Premises for the Lessee, its officers, employees, agents, servants, customers, vendors, suppliers, patrons, and invitees over the roadways servicing the Leased Premises. 7.3. Maintenance of Leased Premises. 7.3.1. All maintenance, other than that described as Obligations of Lessee in 6.2 or in Section 12 hereof, shall be provided by City. 7.3.2. South Hangar Building is included in Leased Premises on an "as is basis." City shall make no claim as to when, if any, repairs or improvements will be made. City shall retain the right to determine need for and ability to provide repairs, maintenance or improvements. 7.4 Management of T-Hangars. 7.4.1 Management of T-Hangars shall be the responsibility of the City. 8.0. CITY'S RESERVATIONS, 8.1. Improvements, Relocation, or Removal of Structures. City, at its sole discretion, reserves the right to further develop or improve the 11 of 32 aircraft operation area and other portions of the Airport, including the right to remove or relocate any structure on the Airport, as it sees fit, and to take any action it considers necessary to protect the aerial approaches of the Airport against obstructions, together with the right to prevent Lessee from erecting or permitting to be erected, any buildings or other structure on the Airport which, in the opinion of City would limit the usefulness of the Airport or constitute a hazard to aircraft. 8.2. Inspection of Leased Premises. City, through its duly authorized agent, shall have, at any reasonable time, the full and unrestricted right to enter the Leased Premises for the purpose of periodic inspection for fire protection, maintenance and to investigate compliance with the terms of this Agreement. 8.3. Subordination to U.S. Government. This Agreement shall be subordinate to the provisions of any existing or future agreement(s) between the City and the United States, relative to the operation and maintenance of the Airport, the terms and execution of which have been or may be required as a condition precedent to the expenditure or reimbursement to City for federal funds for the development of the Airport. 8.4. War or National Emergency. During the time of war or national emergency, City shall have the right to lease the Airport or any part thereof to the United States government for military use, and, if any such lease is executed, the provisions of this Agreement, insofar as they are inconsistent with the lease to the Government, shall be suspended and, in that event, a just and proportionate part of the rent hereunder shall be abated. 12 of 32 9.0. INDEMNITY AND INSURANCE. 9.1. Indemnification. Lessee shall indemnify, defend, and hold harmless City, its officers, agents and employees from any and all liabilities, claims, demands, actions, losses, damages and costs, including all costs of defense thereof, caused by or arising out of, or in any way related to Lessee's use or occupancy of the Leased Premises or occurring on the Leased Premises during the term of the lease or any time of occupancy of the premises by inverse condemnation, and including claims, liabilities and actions based upon acts, omissions or negligence of the City, its officers, agents, and employees. Upon demand, Lessee shall, at its own expense, defend City, its officers, agents, and employees against any and all liabilities, claims, demands, actions, losses, damages and costs. 9.2. Insurance Coverages. Insurance coverage shall be provided and paid for by the Lessee in the following amounts with the City and all other personnel as additional insured. A Certificate of Insurance or a copy of the insurance policies involved will be furnished to the City and ten (10) days advance written notice of any change to any policy or cancellation of any policy shall be given to the City. The City shall retain the right to waive any insurance requirements or limits. 9.2.1. Aircraft Liability: Bodily Injury (Each Accident) $250,000.00 each person 13 of 32 $500,000.00 more than one person Property Damage $100,000 each accident 9.2.2. Comprehensive Public Liability and Property Damage, Including Contractual Liability: Bodily Injury $300,000.00 each accident Property Damage $100,000.00 each accident Broad form liability endorsement form G222 shall be included. 9.2.3. Hangar Keeper's Liability: $250,000.00 each accident 9.2.4. Products and Completed Operations: $300,000 Bodily Injury $100,000 Property Damage 9.2.5. Student and Renter's Liability: $25,000 per accident excluding passengers 9.2.6. Motor Vehicle Liability: Bodily Injury (Each Accident) $250,000.00 each person $500,000 per occurrence Property damage $100,000.00 each accident 14 of 32 9.2.7. Worker's Compensation and Employer's Liability: Up to Statutory limit 9.2.8. Should any insurance required by this Agreement lapse, the Lessee shall immediately cease all operations at the Airport as of the time and date of such lapse, and shall not resume any operations until authorized in writing by the City. If the lapse period extends fifteen (15) days, the Agreement may be terminated and the Lessee shall be in breach of this Agreement. 9.2.9. Should the City receive notices of insurance cancellation three (3) or more times within a twenty-four (24) month period, the City may cancel this Agreement. 10.0. TERMINATION. 10.1. Termination by City. The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement upon fifteen (15) days written notice from the City to the Lessee of its election to do so and shall have the right of re-entry and may remove all persons and property from the premises and may store such property at a public warehouse or elsewhere at the expense of and for the account of the Lessee if the Lessee abandons the premises or breaches this Agreement, including the following: 10.1.1. By failing to pay insurance premiums, liens, claims, or other charges. 15 of 32 10.1.2. By failing to pay any payments due the City, State, or Federal Government from the Lessee or its principals, including, but not limited to, payments identified in this Agreement or any taxes, fees, assessments, or liens. 10.1.3. By assigning or subletting the Leased Premises without consent of the City. 10.1.4. On the institution of voluntary or involuntary bankruptcy proceeding against the Lessee. 10.1.5. By death of the Lessee, or dissolution of the Lessee's firm or business. 10.1.6. By violation of any provision of the Agreement identified as a covenant on the part of the Lessee. 10.1.7. By the abandonment of the premises or any portion thereof and discontinuance of the Lessee's operations, or any portion thereof. Should this occur, the City shall not be responsible for the custodial protection of merchandise, fixtures, or equipment abandoned, even though it is necessary for the City .to remove the same from the Airport for storage or disposal. 10.1.8. In the event of the need for the Airport by the City for purposes of national defense. 10.1.9. In the event the Airport is no longer operated as an aeronautical facility. 10.2. Termination by Lessee. 16 of 32 The Lessee, besides all other rights or remedies it may have, shall have the right to terminate this Agreement upon fifteen (15) days written notice of its election to do so if the City breaches this Agreement, including failure to pay the Lessee amounts due under terms of this Agreement after the expiration of a thirty (30) day period following notice of payment due is given by the Lessee. Lessee does not have the right to terminate this Agreement because of the City's failure to pay any amount which, in good faith, is in dispute. 10.3. Rights After Termination. In the event of termination for default for unsatisfactory performance by the Lessee, the City shall have the right (unless otherwise specified in the termination notice), at once and without further notice to the Lessee, to enter and take possession of vehicles, equipment, supplies, or any premises occupied by the Lessee, by force or otherwise, and expel, oust and remove any and all parties who occupy any portion of the premises of the Airport covered by this Agreement, and any and all goods and chattels belonging to the Lessee or his associates which may be found in or upon same without being liable for prosecution or to any claim for damages therefor. Upon such termination by the City, all rights, powers and privileges of the Lessee shall cease, and the Lessee shall immediately vacate any and all space occupied by the Lessee under this Agreement, and shall make no claim of any kind whatsoever against the City, its agents or representatives by reason of such termination or any act incident thereto. 11.0. ASSIGNMENT AND SUBLETTING. 17 of 32 11.1. Successors and Assignment. Lessee shall not assign this Agreement or any part thereof in any manner whatsoever or assign any of the privileges recited herein without the prior written consent of City. In the event of such assignment, Lessee shall remain liable to City for the remainder of the term of the Agreement to pay to City any portion of the rental and fees or damages, as provided for herein, upon failure of the assignee to pay the same when due. All covenants, stipulations and provisions in the Agreement to be entered into shall extend to and bind the legal representative, successors and assigns. Said assignee shall not assign said Agreement except with the prior written approval of the City and the Lessee herein, and any assignment by the Lessee shall contain a clause to this effect. 11.2. Subletting. The Lessee may rent or sublease the Leased Premises or portions thereof for the purpose of providing space to meet the required services as stated herein, but shall be required to obtain prior written permission from the City. Lessee shall not rent or sublease all or any part of such premises or the improvements located thereon for any non -airport aviation activity or other purpose without the prior written consent of the City. Subleases shall be subject to all of the conditions and provisions to which the Lessee is bound under terms of this Agreement. 12.0 PROVISIONS FOR AIRPORT GROUNDS/FACILITY MAINTENANCE: In addition to its general maintenance obligations contained in Section 6, Lessee further agrees as follows: 18 of 32 12.1. GRASS CUTTING: The Lessee shall maintain grass heights in airport areas as indicated in Exhibit "A." It shall be the responsibility of the Lessee to assure that grass heights do not exceed those indicated in Exhibit "A," and that grass is maintained on airport property to the edge of the Keith Road pavement, including all ditches on or surrounding airport property, except as provided for herein. 12.2. METHOD: The Lessee may not kill grass or any other plant life without specific written approval from the City Manager or his designee. It is not intended that the maximum grass heights be maintained through killing of plant life. Maximum grass heights may be maintained through mowing or in conjunction with chemical spraying as approved. 12.3. CULTIVATION: The Lessee shall only be required to cultivate plant growth in the indicated areas on Exhibit "A." Such cultivation shall be performed as necessary to maintain plant life and a pleasing appearance through watering. fertilizing, weeding, and other measures as necessary. All lawn areas, areas with a maximum grass height of two (2) inches, shall be mowed weekly from April1st through September 30th at 1 3/4" to 2" heights. All clippings from lawn areas shall be removed. Lawn perimeters along walks, curbs, parking lots and gutters are to be edged to maintain a crisp, clean appearance. Clean up will include removing grass clippings from walks, curbs and pavings. Grass around signs, fence lines, trees, poles and other obstacles shall be removed by monofilament trimming. The Lessor shall furnish necessary water for these areas. The Lessee shall be responsible for all other equipment, materials, and supplies for such cultivation. 19 of 32 12.4. CHEMICALS: Any chemicals to be used for the purpose of fertilization, killing, or reducing the growth of plants, or for insect or pest control may not be used without the specific written approval of the City Manager or his designee. Prior to any application of such substances, Lessee must submit to City each substances' Material Safety Data Sheet. It shall be the responsibility of the Lessee to use or apply all chemicals with due care and according to manufacturer's specifications and any applicable laws. 12.5. LANDSCAPING: Landscaped areas near the main terminal building of the airport shall be maintained in a neat and pleasant appearance. Shrub hedges, ground covers and vines shall be pruned according to recommended horticultural practices. Vines and ground cover shall be trimmed back away from building to eliminate growth through walls. Weed and grass control in beds shall Include hand pulling and cultivating to maintain a loose, aerated top layer. Bed edges are to be kept clean and well defined. Replacement of any landscaping shall be at the expense of the Lessee. The Lessor reserves the right to install additional landscaping at the airport at its own expense, with maintenance to be the responsibility of the Lessee. 12.6. SWEEPING: The Lessee shall provide sweeping to keep all paved areas reasonably free of debris. All walks shall be swept weekly and debris removed from the site. Paved areas inside hangars are not included. Particular attention shall be given to runways and taxiways due to the increased potential of property damage in such areas. All debris, rocks, mud and trash tracked in, thrown or dislodged onto runways taxiways or aprons while providing the services required in the performance of this agreement shall be removed immediately. Sweeping of entire runway, taxiways, and apron shall be provided at least once each six (6) months. 20 of 32 12.7. DEBRIS: It shall be the responsibility of the Lessee to keep the airport reasonably free of debris, including any necessary hauling to approved disposal sites, in accordance with all applicable laws. 12.8. LIGHTS: The Lessee shall remove all aggregate from around runway and taxiway lighting. Lessee shall prevent or limit vegetation growth within a one (1) foot radius around fixtures to two (2) Inches In height. The Lessee shall provide maintenance of the runway, taxiway, VASI, and Wind-T lighting systems as listed below. Because time is of the essence in replacing such fixtures, Lessee shall promptly make all repairs. 12.8.1. Replace light bulbs as required. 12.8.2. Replace fixture globes as required. 12.8.3. Insure proper fit of all fixture components. 12.8.4. Shall record and report to the City lights which required operational repairs. 12.8.5. Shall record, report and make issuance of NOTAM's to appropriate governmental agency and to City of conditions affecting the safety of airport operations. 12.8.6. Furnish labor and materials to ensure that the lights' concrete bases are kept level with the surrounding ground. Bulbs and globes for runway and taxiway lighting shall be furnished to the Lessee on an as needed basis by the Lessor. Any loss of material inventory shall be the responsibility of the Lessee and may be deducted from monthly payments. 12.9 CUSTODIAL SERVICE: The Lessee shall provide custodial services in the main terminal building including, but not limited to, cleaning floors, windows, glass structures, restrooms, walls, furnishings, and other facilities. Restrooms shall be cleaned on a daily basis as required by their usage. In 21 of 32 addition, disposal of debris and other custodial services shall be performed by the Contractor as necessary to maintain a safe and pleasing environment as defined by Lessee. Custodial service shall include providing cleaning and other supplies such as soap, toilet paper, hand towels, and dispensing units for such, all as necessary for efficient operation of the building. Custodial inspections and necessary services shall be performed by the Lessee seven (7) days per week. 12.10 FACILITY MAINTENANCE AND REPAIR: Lessee shall make adjustments to and the Lessor shall maintain and repair as necessary T-hangars, Wind- T, fences, and other operational, security, or safety features of the airport. Additionally, the Lessor shall maintain paved areas, such as runways, taxiways, aprons, parking areas, and driveways, sidewalks, and repair pavement markings. Lessee shall provide inspection of problems or hazards and report such findings to Lessor on a timely basis. 12.10.1. Maintenance replacement and providing of light bulbs for the exterior and interior of terminal building shall be the responsibility of the Lessee. 12.10.2. Lessee shall include in the maintenance of the turf runway proper painting and placement of turf runway markers. 12.11 INSPECTIONS: Lessee shall perform routine inspections of airport facilities as indicated on Exhibit "B," "Monthly Inspection and Maintenance Schedule." Lessee shall notify Lessor on a timely basis of any deficiencies or hazard incurred during inspection. A signed inspection report verifying the individual responsible for completion of such inspections shall be furnished to the Lessor on a monthly basis. 12.12 VENDING: The Lessee shall provide, through the Lessee's own company or outside vendors, coffee, soft drinks, and snacks. The Lessee shall 22 of 32 obtain any necessary permits and may retain any profits from vending. Vending shall be limited to the main terminal building snack area unless prior written approval is obtained from the City Manager or his designee. 12.13 FAA RULES AND REGULATIONS: All activities of the Lessee at the airport shall be in accordance with all applicable rules and regulations of the Federal Aviation Administration or other applicable agencies. 12.14 AREAS NOT INCLUDED: The Lessee shall not be responsible for maintenance or repair of any areas or facilities leased to other parties by the City of Beaumont. 12.15 PROMOTION: The Lessee shall promote the airport, the City of Beaumont, and aviation through courteous and positive interaction with all individuals, groups, organizations, agencies, and other parties using the airport facilities, or expressing an interest in the airport. This shall include an effort by the Lessee to schedule activities to maximize the value of the Beaumont Municipal Airport to the citizens of Beaumont. 12.16 HOURS: The Lessee shall not be required to provide maintenance personnel at the airport on a regular time schedule. However, the Contractor shall be available for service calls as necessary between the hours of 8:00 am. and 5:00 p.m., seven (7) days per week. 12.17 LIMITS ON FACILITY USE: The Lessee shall not use airport premises or facilities for activities, storage, etc., not specifically allowed herein without written approval of the City Manager or his designee. 12.18 RESPONSE TO REQUESTS: The Lessee shall respond to all requests for maintenance, repair, and investigation required by this agreement as soon as practical. In cases where the Lessee is required to perform services required by this agreement, such services shall be performed within twenty- four (24) hours following notice. For each working day or portion of a 23 of 32 working day in excess of the twenty-four hour completion requirement, the Lessor shall be subject to a penalty of twenty dollars ($20). Each request shall be subject to a separate penalty, and penalties may be deducted from any payments due to the Lessee from the Lessor. The City Manager or his designee may waive all or a portion of such penalties on a case -by -case basis as conditions merit. Failure of the Lessee to perform such services after seven (7) days notice or failure to pay such penalties after thirty (30) days notice may be considered a breach of contract by the Lessee at the option of the City Manager or his designee. 12.19 NOTICE OF HAZARDS: Should any hazard exist at the airport, regardless of the hazard source, the Lessee shall promptly notify the appropriate air flight service and the Lessor as soon as such hazard is noticed or brought to the attention of the Lessee. Notice of the City of Beaumont shall be to the City Manager or his designee or, in the City Manager's absence, to the Beaumont Fire or Police Department, as appropriate. All airport FBOs shall also be notified if open or, if not open, immediately upon opening for the FBO's next business day. Notices of any hazards shall also be placed on the airport bulletin board. 12.20 STORAGE AND OFFICE AREAS: The Lessee shall have access to the custodial storage area as identified in Exhibit "C" and hangar storage areas as identified in Exhibit "D" for purposes of conducting activities associated with this Agreement. The Lessee shall be responsible for maintenance of these areas. 12.20.1. The Contractor shall exercise due and prudent care in storage and use of any hazardous materials, fuels, herbicides, pesticides, etc., including security of such. Such materials must be stored in accordance with all applicable rules and regulations. 24 of 32 12.20.2. Maintenance and repair of equipment used by the Lessee in the performance of this contract shall be the responsibility of the Lessee. The Lessee shall avoid major maintenance and repair activities in public areas and, where practical, shall perform such activities in the identified storage areas or at locations not on the airport. 13.0. PROVISIONS FOR AGRICULTURAL ACTIVITIES. 13.1. AGRICULTURAL PURPOSE: The Lessor does hereby allow Lessee to establish and maintain a safe, effective, and efficient program for agricultural purposes at the airport. This program shall be restricted to grass, hay cutting, and for no other purpose without the written consent of the Lessor. 13.2. AGRICULTURAL AREA: Agricultural uses shall be restricted to areas described in Exhibit "A" as "Maximum Grass Heights -Thirty -Six Inches." Any dispute as to the boundary of said area shall be determined by the City Manager, whose decision shall be final. 13.3. OPERATIONAL REQUIREMENT: The Lessee shall take affirmative actions to provide safe operations for employees and airport users and visitors. The Contractor specifically covenants the following: 13.3.1. That it will never conduct any operation closer than three -hundred fifty (350) feet from runway centerline and three -hundred fifty (350) feet from runway ends or fifty (50) feet from taxiway centerlines. 13.3.2. To strictly abide by all restrictions on ingress and egress to its leased premises. 13.3.3. That it will never traverse a runway or taxiway without specific authority from the City Manager or his designee for that specific 25 of 32 crossing. 13.3.4. To allow no livestock on premises. 13.3.5. To raise or cultivate no crop that will lead to the infestation of birds. The opinion of the City Manager shall be final concerning whether a crop will lead to an infestation of birds. 13.3.6. To keep all farming equipment off and not to cross over paved service roads, runways, taxiways, and apron areas. 13.3.7. That it will not obstruct existing natural overland drainage or drainage ditches without specific, written permission from the City Manager or his designee. 13.3.8. The Lessee shall not be required to cultivate crops and may bale natural grasses or hay not requiring special farming operations such as irrigation. In the case of cultivated crops, the Contractor will keep fields clean at the end of the normal growing season and no crop shall be left in the field. 13.3.9. Crops or grasses shall not obstruct clear areas as required by Federal Aviation Administration rules or regulations. 13.4. LIEN: The Contractor hereby grants the City a security interest In the form of a landlord's lien to secure the payment of all rent that becomes due from the Contractor to the City under this agreement, including all crops grown on the airport and all proceeds from their sale. 13.5. FARMING ONLY: The Contractor shall use the premises for grass or hay cutting purposes only and for no other purpose without the written consent of the City Manager or his designee. 14.0. FACILITY DAMAGE: The Lessee shall be responsible for any damage to airport facilities, including, but not limited to, the runway and taxiway lighting; visual approach slope indicator lights; wind indicator, segmented circle, traffic pattern markers; and all other airport facilities 26 of 32 Because time is of the essence in repairing such damaged facilities, the Contractor agrees and covenants that the Lessor may promptly repair or have repaired any such damaged facilities, and the Lessee shall promptly reimburse the Lessor for such repair. The necessity of such repairs, and the extent of such repairs, shall be determined by the City Manager, whose determination shall be final. At the option of the City Manager, the Lessee may be allowed to make such repairs to the satisfaction of Lessor. 15.0. MODIFICATIONS: Where changes to activities or areas included in this agreement are made, payments shall be adjusted in a pro rata manner. All modifications must be in writing. The City shall have the right to require modifications in scope of work. 16.0. LESSOR PROVISIONS OF LABOR ETC.: Unless otherwise specifically indicated, the Lessor shall furnish all services supplies and equipment necessary to perform all activities and covenants of this Agreement. 17.0. MANAGEMENT RIGHTS OF LESSEE: The Lessee is authorized to notify and/or warn airport patrons who are violating the rules and regulations of the federal government, state or City of Beaumont regarding operations at the airport. Upon such notification of warning, Lessee shall notify the Lessor, as soon as practical, that such warning has been issued. The determination of the necessity of corrective action shall be solely that of the Lessor. Lessee shall take no active corrective action under this section without the written consent from the City Manager or his designee. 18.0. GENERAL PROVISIONS. 18.1. Co -Partnership Disclaimer. It is mutually understood and agreed that nothing in this Agreement is intended or 27 of 32 shall be construed as in any way creating or establishing the relationship of partners or co-partners between the parties hereto, or as constituting the Lessee as an agent or representative of the City for any purposes or in any manner whatsoever. 18.2. Non -Exclusive Rights. It is hereby specifically understood and agreed between the parties that nothing herein contained shall be construed as granting or authorizing the granting of exclusive rights to Lessee or others, as defined in Section 308 of the Federal Aviation Act of 1958, as amended. 18.3. Waivers. No waiver by either party of a breach by the other shall be construed or held to be a waiver by such party of any succeeding or preceding breach by the other party of the same or any covenant, condition, or restriction herein contained. 18.4. Modifications. Where changes to activities or areas included in this Agreement are made, such modifications must be in writing. The City shall have the right to require modifications in scope of work. 18.5. Lessee Inspection. The Lessee acknowledges its responsibility for inspecting of the Airport and the Leased Premises prior to signing of this Agreement and to inform itself regarding local conditions. 18.6. Lessee Provision of Labor, etc. Unless otherwise specifically indicated, the Lessee shall furnish all services, supplies, and equipment necessary to perform all activities and covenants of this Agreement. 18.7. Conditions Beyond Control. Neither the City nor the Lessee shall be required to perform any term, condition or 28 of 32 covenant of this Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, drought, floods, material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which, by the exercise of due diligence, the City or Lessee is unable or in party to prevent or overcome. 18.8. Sale of Interest. The Lessee may not sell or assign all or part interest in activities of the Airport to another party or parties without written approval of the City of such sale or assignment. The City may require any records or financial statements necessary in its opinion to insure such sale or assignment will be in the best interest of the City. 18.9. Service Levels. Lessee and sublessees agree to conduct said business in a proper and courteous manner and to furnish good, prompt and efficient commercial aeronautical services at all times, and in compliance with City's Minimum Standards. 18.10. Aircraft Service by Owner or Operator of Aircraft. It is clearly understood and agreed by the Lessee that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees, including, but not limited to, maintenance and repair that it may choose to perform. 18.11. Subordination. This Agreement shall be subordinate to the provisions of any existing or future agreement between City and the United States, relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport. This subordination includes, but is not limited to, the right of the City, 29 of 32 during times of war or national emergency, to lease the landing area, or any part thereof, to the United States government for military or naval use and, if any such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the government, shall be suspended. 18.12. No -Sham Affidavit. All terms and conditions with respect to this lease are expressly contained herein, and the Lessee agrees that no representative or agent of the City has made any representation or promise with respect to this lease not expressly contained herein. 18.13. Compliance with Laws, etc. The Lessee shall at all times comply with the Airport Rules and Regulations, federal, state, and municipal laws, ordinances, codes, and other regulatory measures now in existence or as may be hereafter modified or amended, applicable to the specific type of operation contemplated by him. The Lessee shall procure and maintain during the term of the Agreement all licenses, permits, and other similar authorizations required for the conduct of his business operations. 18.14. Severability. If any term or provision of this lease shall, to any extent, be invalid or unenforceable, the remainder of this lease shall not be affected thereby and each other term and provision of this lease shall be valid and be enforced to the fullest extent permitted by law. 18.15. Binding Effect. This lease, including all of its covenants, terms, provisions, and conditions, shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns. 18.16. Duty to be Reasonable. Wherever in this Agreement the City is to give its consent, approval or otherwise exercise discretion in judgment, such consent, approval or judgment shall not be 30 of 32 unreasonably exercised or unreasonably withheld. 18.17. Paragraph Headings. The paragraph headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. 18.18. Notices. Whenever any notice or payment is required by this Agreement to be made, given or transmitted to the parties hereto, such notice or payment shall be enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail addressed to: Airport Management City of Beaumont P. O. Box 3827 Beaumont, Texas 77704; and notices, consents and approvals to Lessee addressed to: BMT Wings, LLC. 455 Keith Road Beaumont, Texas 77713; or such place as either party shall, by written directive, designate in the manner herein provided. Approvals and consents required herein may be given and executed by City Manager of City. 18.19. Exhibits. The Exhibits "A," "B," "C," "D," "E" and "F," attached hereto, are hereby made a part of this Agreement. 31 of 32 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of the date first above mentioned at Beaumont, Texas. CITY OF BEAUMONT, TEXAS LESSEE Z, Kyle Hayes BM)�Wings, LLC. City Manager Joseph P. Arena Lessee ATTEST: LESSEE I., a=Q's City Clerk MMYWings, LLC. Joseph A. Arena, Jr. Lessee 32 of 32