City Council

The City of Morgantown 389 Spruce Street Morgantown, West Virginia 26505 (304) 284-7439 Fax: (304) 284-7525 www.morgantownwv.gov Office of the City Clerk AGENDA MORGANTOWN CITY COUNCIL COMMITTEE OF THE WHOLE Tuesday, May 25, 2021 7:00 p.m. To protect health during the COVID-19 pandemic, personal attendance at the meeting is not permitted. This meeting will take place via WebEx at https://cityofmorgantown.my.webex.com/meet/cityofmorgantown using the meeting number 793 734 477. The meeting will be broadcast live on Morgantown 15 and live-streamed via the City of Morgantown website at https://morgantownwv.gov.viebit.com/. The public can also listen live by calling 415-655-0001 and using the access code 793 734 477. If members of the public wish to comment on a particular issue or public hearing, they should fill out the public comment sign-up form on our website, prior to the start of the meeting which can be found at: http://bit.ly/COW052021. Additionally, the public can submit written comments via email to the City Clerk at cwade@morgantownwv.gov. NOTE: Committee of the Whole Meetings of the Morgantown City Council are intended to provide an opportunity for the Council to receive information, ask questions, and identify policy options in an informal setting. No official action is taken at these meetings. At this Committee of the Whole Meeting the following matters are scheduled. PRESENTATIONS: PUBLIC PORTION: ITEMS FOR DISCUSSION: 1. Ordinance authorizing a lease agreement with Paul Koontz as Xerox Sales Representative Consultant at the Airport 2. Ordinance adopting Personnel Rules 3. Resolution supporting the passage of the “For the People Act” H.R. 1, S.1 ADJOURNMENT: Page 1 of 29  Ordinance No. 2021-____ AN ORDINANCE AUTHORIZING A LEASE AGREEMENT WITH PAUL KOONTZ AS XEROX SALES REPRESENTATIVE CONSULTANT AT THE AIRPORT The City of Morgantown hereby ordains that the City Manager is authorized to execute the attached lease agreement with Paul Koontz, as Xerox Sales Representative Consultant, and such additional documents as necessary to effectuate the lease. This ordinance is effective upon adoption. FIRST READING: _______________________ ________________________ Mayor SECOND READING: ____________________ ________________________ ADOPTED: ____________________________ City Clerk FILED: ________________________________ {01598992.DOCX } Page 2 of 29  City of Morgantown AND Paul Koontz Xerox Sales Representative Consultant Office Lease Agreement Page 3 of 29 Table of Contents ARTICLE 1 PREMISES ..............................................................................................................................2 Section 1.01 Demised Premises .........................................................................................................2 Section 1.02 Acceptance of Demised Premises .................................................................................2 Section 1.03 Use of Demised Premises..............................................................................................2 Section 1.04 Prohibited Uses ..............................................................................................................3 ARTICLE 2 GENERAL REQUIREMENTS..................................................................................................3 Section 2.01 Conduct of Operations on Demised Premises ...............................................................3 ARTICLE 3 TERM AND COMPENSATION ................................................................................................4 Section 3.01 Initial Term......................................................................................................................4 Section 3.02 Options to Renew ...........................................................................................................4 Section 3.03 Termination ....................................................................................................................4 Section 3.04 Rent ................................................................................................................................4 Section 3.05 Future Adjustments of Rents and Fees .........................................................................4 Section 3.06 Late Charges ..................................................................................................................5 Section 3.07 Surrender of Possession ................................................................................................5 Section 3.08 Holding Over ..................................................................................................................5 Section 3.09 Chronic Late Payment ....................................................................................................5 Section 3.10 Dishonored Checks ........................................................................................................5 Section 3.11 Application of Payment ..................................................................................................5 ARTICLE 4 TENANT'S FUTURE CONSTRUCTION REQUIREMENTS ...................................................5 Section 4.01 Requirements for Improvements on Demised Premises ...............................................5 Section 4.02 Future Construction Dates .............................................................................................6 Section 4.03 Approvals of Future Construction Plans ........................................................................6 Section 4.04 Future Extension of Utilities or Special Facilities ...........................................................6 Section 4.05 Alterations or Repairs to Premises ................................................................................6 Section 4.06 Lien Indemnification .......................................................................................................6 Section 4.07 Cost of Construction and Alterations .............................................................................6 Section 4.08 As-built Drawings ...........................................................................................................7 Section 4.09 Security Interest on Leasehold Improvements for Construction ....................................7 Section 4.10 Ownership of Improvements ..........................................................................................7 Section 4.11 Performance Bonds .......................................................................................................7 ARTICLE 5 OBLIGATION OF TENANT .....................................................................................................7 Section 5.01 Net Lease .......................................................................................................................7 Section 5.02 Maintenance and Operation ...........................................................................................7 Section 5.03 Utilities ............................................................................................................................8 Section 5.04 Signs ..............................................................................................................................8 Section 5.05 Nondiscrimination ...........................................................................................................8 Section 5.06 Observance of Statutes and Regulations ......................................................................8 Section 5.07 Airport Security ...............................................................................................................8 ARTICLE 6 OBLIGATIONS OF THE CITY .................................................................................................8 Section 6.01 Operation as a Public Airport .........................................................................................8 Section 6.02 Ingress and Egress ........................................................................................................8 ARTICLE 7 CITY'S RESERVATIONS ........................................................................................................9 Section 7.01 Improvement, Relocation or Removal of Structure ........................................................9 Section 7.02 Inspection of Demised Premises....................................................................................9 ARTICLE 8 INDEMNITY AND INSURANCE ..............................................................................................9 Section 8.01 Indemnification ...............................................................................................................9 Section 8.02 Insurance........................................................................................................................9 ii Page 4 of 29  Section 8.03 Environmental Impairment ...........................................................................................10 Section 8.04 Fire and Extended Coverage Insurance ......................................................................10 Section 8.05 Application of Insurance Proceeds ..............................................................................10 Section 8.06 Performance Bonds .....................................................................................................10 Section 8.07 Destruction of Premises (Uninsured Cause)................................................................10 ARTICLE 9 CANCELLATION BY THE CITY ............................................................................................10 Section 9.01 Events of Default by Tenants .......................................................................................10 Section 9.02 Remedies for Tenants' Default .....................................................................................11 ARTICLE 10 CANCELLATION BY TENANT FOR EVENTS OF DEFAULT BY CITY ............................12 Section 10.01 Event of Default by City ..............................................................................................12 Section 10.02 Remedies for City's Defaults ......................................................................................13 ARTICLE 11 RIGHTS UNDER TERMINATION........................................................................................13 Section 11.01 Fixed Improvements ...................................................................................................13 Section 11.02 Personal Property ......................................................................................................13 ARTICLE 12 ASSIGNMENT AND SUBLETTING .....................................................................................13 ARTICLE 13 QUIET ENJOYMENT ...........................................................................................................13 ARTICLE 14 GENERAL PROVISIONS ....................................................................................................14 Section 14.01 Non-Interference with Operations of Airport ..............................................................14 Section 14.02 Attorney's Fees ..........................................................................................................14 Section 14.03 Taxes and Special Assessments ...............................................................................14 Section 14.04 Right to Contest .........................................................................................................14 Section 14.05 License Fees and Permits..........................................................................................14 Section 14.06 Non Exclusive Rights .................................................................................................14 Section 14.07 Paragraph Headings ..................................................................................................14 Section 14.08 Interpretations ............................................................................................................14 Section 14.09 Non-Waiver ................................................................................................................14 Section 14.10 Severability .................................................................................................................15 Section 14.11 Binding Effect .............................................................................................................15 Section 14.12 No Partnership ...........................................................................................................15 Section 14.13 Duty to be Reasonable...............................................................................................15 Section 14.14 Notices .......................................................................................................................15 Section 14.15 Entire Agreement .......................................................................................................15 Section 14.16 No Construction Against Drafting Party .....................................................................16 Section 14.17 Third Party Beneficiaries ............................................................................................16 Section 14.18 Authorization and Execution ......................................................................................16 iii Page 5 of 29  City of Morgantown and Paul Koontz Xerox Company Office Lease Summary TYPE OF AGREEMENT Office Space TENANT Paul Koontz, Xerox Sales Representative Consultant REPRESENTATIVE(S) Paul Koontz 714 Venture Drive #134 NOTICE ADDRESS Morgantown, WV 26508 Paul.Koontz@xerox.com COMMENCEMENT DATE June 1, 2021 TERM Three (3) years RENEWAL OPTIONS Two (2) – One (1) year options TERMINATION DATE May 31, 2024 LEASEHOLD/ASSIGNED Office Space, South end of Terminal (See Exhibit A) PREMISES INITIAL RENTAL RATE $2,580 annually or $215 monthly for 172ft2 @ $15/ft2 RENTAL ADJUSTMENT CPI-U OTHER FEES, RATES None AND CHARGES AUTHORIZED USE(S) Office Equipment Sales/Leasing Services Note: This summary is presented as a reference of the agreement information at the time of execution. If there is a discrepancy between the information contained in this summary and the requirements contained in the remainder of the Lease, the requirements as stated in the remainder of the Lease will prevail. iv Page 6 of 29  City of Morgantown Morgantown Municipal Airport AND Paul Koontz Xerox Sales Representative Office Space Lease Agreement THIS LEASE AGREEMENT for office space (hereinafter referred to as the “Lease”, is entered into this 1st day of June , A.D., 2021 , by and between the CITY OF MORGANTOWN, c/o Morgantown Municipal Airport, Morgantown, West Virginia (hereinafter referred to as the “City”), and Paul Koontz (hereinafter referred to as the “Tenant”). WITNESSETH: In consideration of the lease of certain real property and the covenants and agreements contained herein, the parties agree as follows: ARTICLE 1 PREMISES The City hereby leases to Tenant, for its exclusive use as specifically authorized herein, and for no other use except as agreed to, and authorized herein, that space in the building commonly known as the Morgantown Municipal Airport Terminal Building [hereinafter the “Terminal”], described below and as shown on Exhibit A attached hereto and incorporated herein by reference [hereinafter the "demised premises"]. Section 1.01 Demised Premises 1. Office Space: Office Space of Approximately 172 square feet of space. Section 1.02 Acceptance of Demised Premises Tenant accepts the office space “AS IS” in its present condition. Tenant has had the right to inspect the space for suitability for the purposes it intends. Tenant acknowledges that neither the City nor its agents have made any representation or warranty as to the condition and/or suitability of the premises. Section 1.03 Use of Demised Premises 1. The Tenant’s use of the demised premises, is limited to the general operation of a professional insurance firm. Any future expansion, or change in use, of the demised premises will require the prior written approval of the City. 2. The Tenant, in addition to the use of the demised premises, shall be entitled to the general use, in common with others, of all non-aviation airport facilities made available for use to the general public except as otherwise hereinafter provided. 3. For the purpose of this Agreement, "airport facilities" available to the Tenant and its employees shall include automobile parking areas, roadways, sidewalks, or other areas of the Airport, that have been constructed at City expense for the benefit of Airport tenants and the general public. 4. The use of the above-mentioned airport facilities by Tenant shall be subject to their full compliance with such rules and regulations as now exist or may hereafter be enacted by the City. Approved uses of airport facilities are also subject to the payment of such fees and charges, as may be non- discriminatorily established from time to time by the City for the maintenance, operation or replacement of these facilities. 2 Page 7 of 29 Section 1.04 Prohibited Uses The following activities are expressly prohibited. 1. The Tenant may not use any part of the demised premises for any activity or purpose, other than as expressly set forth and authorized in Section 1.03, unless such use is approved, in writing, by the City. 2. The Tenant, and its employees, is prohibited access to, or use of, areas and facilities in the Air Operations Areas of the Airport. 3. Tenant is prohibited from using or permitting the demised premises to be used for the sale to its employees, or to the public, of any goods or services not directly related to those activities authorized in this Agreement. ARTICLE 2 GENERAL REQUIREMENTS Section 2.01 Conduct of Operations on Demised Premises In its exercise and carrying out of the rights, privileges, duties, and obligations granted herein, and in its use of the demised premises, Tenant hereby obligates itself, and agrees to obligate all of its sub-lessees and/or occupants, to the following requirements and regulations: 1. Tenant shall not consent to any unlawful use of the demised premises, nor permit any such unlawful use thereof. 2. Tenant agrees that all local, federal, and state ordinances and laws will be observed in its use and occupancy of the demised premises, including the rules and regulations of the federal and state aeronautical authorities and the local governing authorities. 3. Tenant shall comply with all City rules, regulations, and ordinances as they now exist or may hereafter be amended or adopted. 4. The operations of Tenant, its sub-lessees, employees, invitees, and those doing business with it, shall conduct all activities in an orderly and proper manner so as not to annoy, disturb or to be offensive to others at the Morgantown Municipal Airport. The City shall have the right to complain to Tenant as to the demeanor, conduct and appearance of Tenant’s employees, sub-lessees, invitees and those doing business with it, and as to its and/or their failure to utilize said facilities at times, and in the manner, and according to the standards, mandated by the City, whereupon Tenant will take all steps reasonably necessary to remove the cause of the complaint and bring the operations and services into compliance with such standards. 5. The Tenant shall comply with all rules and regulations of the State Fire Marshall in the conduct of its operations on the demised premises. 6. Tenant shall not cause or permit the use, generation, storage, or disposal in or about the demised premises or elsewhere at the Airport of any Hazardous Materials except in strict compliance with State and Federal environmental laws and regulations. 7. Tenant agrees to return the demised premises to the City at the expiration of this Agreement in the same condition as when taken, reasonable wear and tear excepted unless other arrangements are made with the City. The City reserves the right to further develop its building structures and to lease the same for any lawful purpose whatsoever or to provide any services it deems necessary or desirable in its sole and absolute discretion, for the public, regardless of the desires or views of Tenant, and without interference or hindrance. 3 Page 8 of 29  ARTICLE 3 TERM AND COMPENSATION Section 3.01 Initial Term The initial term of this Agreement shall be for a three-year period, commencing June 1, 2021, A.D,(Commencement Date) and terminating on May 31, 2024 A.D. Section 3.02 Options to Renew At the end of the initial three year term of this Lease, the Tenant shall have the first option to renew this Agreement for the Premises, referred to in Article 1; Provided, that Tenant is not then in default. 1. Tenant shall have the option to renew this Agreement for two (2) additional one (1) year periods. 2. Prior to the conclusion of the initial and all renewal terms, The Tenant and City may initiate discussions regarding a new lease. The Tenant may declare its intention to begin negotiations on a new lease Agreement, in writing, on or before, the 180th day prior to the expiration of this Agreement. Such 180-day period shall expire at midnight of the last day of the Agreement. 3. During said 180-day period, all of the terms and conditions including the amount of rent and other fees to be paid under a new Agreement shall be negotiated in good faith by both parties and reduced to writing and executed. If a written lease Agreement is not executed by the Tenant prior to the end of this negotiation period, this Agreement shall terminate in accordance with Article 11. Section 3.03 Termination This agreement shall be considered terminated by the Tenant on the terminating of the agreement unless the Tenant provides the City written notice of Tenant’s intent to renew the lease one hundred eighty (180) days prior to the expiration of the then current term. Section 3.04 Rent 1. Office Rent. The Tenant shall pay an annual office rent of $2,580.00, which is equal to $15.00 per square foot for 172 square feet of office space. Said agreed rent shall be paid in advance monthly in twelve (12) equal installments of $215.00 due in advance the first day of each month. 2. Payments: All payments are to be made at the administrative office of the Morgantown Municipal Airport, 100 Hart Field Road, Morgantown, West Virginia 26505. 3. Security Deposit: N/A 4. Lease Guarantee: In the absence of a good business credit history of at least five (5) years prior to the commencement of this Agreement, Operator agrees to arrange for a Lease Guaranty (personal or established business) that shall remain in full force and effect until all monthly installments of rent and charges due during the first 60 months of the Term of the Agreement have been paid, without regard to the security deposit noted above, construction bonds or other collateral held by or for the City for the performance of the terms or conditions of the Agreement, or the receipt, disposition, application, or release of any security deposit, construction bonds or other collateral, now or hereafter held by or for the City. Section 3.05 Future Adjustments of Rents and Fees The City reserves the right to adjust, or modify existing Airport fees and charges, or to establish additional fees and charges as necessary to maintain the financial integrity of the Airport through cost recovery and to make the Airport as self-sustaining as possible. Except for CPI adjustment of the annual ground site rent as noted below, all fees, rents and charges are subject to adjustment as a part of the City’s annual budget approval process. Airport Tenants and the general public are provided the opportunity to comment on proposed fees, rents and charges changes during the budget approval process. Commencing on the first anniversary date of this agreement, and for each one (1) year period thereafter, the annual rental payment shall be adjusted by dividing the initial rental rate by the U.S. City Average of the 4 Page 9 of 29 Consumer Price Index for All Urban Consumers (CPI-U) published immediately preceding the Effective Date of this Lease, June 1, 2021, and multiplying the quotient thereof by the last Index (CPI-U) published 𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖 𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 immediately preceding each such one (1) year lease period �� � × (𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐𝑐 𝐶𝐶𝐶𝐶𝐶𝐶 − 𝑈𝑈) = 𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖𝑖 𝐶𝐶𝐶𝐶𝐶𝐶−𝑈𝑈 𝑛𝑛𝑛𝑛𝑛𝑛 𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟 𝑟𝑟𝑟𝑟𝑟𝑟𝑟𝑟�. At no time, however, shall said rental be less than the rental paid during the previous year period of this Agreement. For purposes of this Agreement, the Consumers Price Index means the Index for "All Goods and Services" for Urban areas for the U.S. City Average as determined by the United States Department of Labor, Bureau of Statistics. Should the United States Government revise its price index at any time, the parties hereto will follow such suggestions as the Government may issue for making an arithmetical changeover from one Index to another. Should the price index be wholly discontinued, then its successor or the most nearly comparable successor index thereof, adjusted back to the anniversary date, shall be used. Section 3.06 Late Charges The Tenant shall pay to the City a late charge equal to 1.5% per month on all rent and fee charges which are 30 days past due. Said late charge shall commence on the past due amount from the date said payment was due and shall be computed to the date the past due amount is paid. This shall be in addition to, and in no way alters, any other rights reserved to the City, or existing in the City by virtue of the laws of the State of West Virginia, or by the terms of the Agreement. Section 3.07 Surrender of Possession At the expiration of the term of this Agreement, including any renewal term(s), whether by lapse of time or otherwise, Tenant shall promptly and peacefully surrender the demised premises to the City. Section 3.08 Holding Over If Tenant shall, with the written consent of the City, hold over after the expiration of the term of this Agreement, including any renewal term(s), tenancy shall be on a month-to-month basis, which may be terminated as provided for by the laws of the State of West Virginia. Section 3.09 Chronic Late Payment City may also terminate this Agreement for the reason that Tenant is chronically late with rental payments. Chronic late payments are defined as making a rental payment more than five (5) days after the due date on three (3) or more occasions during any consecutive 12-month period during the term of this Agreement. Section 3.10 Returned/Dishonored Checks If Tenant makes a payment due under this Agreement with a check that has been returned/dishonored by the bank, pursuant to West Virginia law, Tenant shall pay a $25.00 service fee in addition to the amount of the returned/dishonored check, payable within ten (10) days of receipt of City’s written demand for such payment. If not paid in full within ten (10) days, it will be sent to Magistrate Court for collection. This amount is in addition to the late fee incurred. Section 3.11 Application of Payment Money paid by Tenant to City for late fees and/or litigation settlements shall be applied first to interest, second to Court Costs legally chargeable to Tenant, third to attorney fees chargeable to Tenant, fourth to outstanding repair bills that are the responsibility of the Tenant, and fifth toward rent. ARTICLE 4 TENANT'S FUTURE CONSTRUCTION REQUIREMENTS Section 4.01 Requirements for Improvements on Demised Premises The Tenant shall, at its sole expense, construct on the demised premises, as provided in Sections of this Article 4, additions, and improvements as necessary in furtherance of the purposes set forth in Article 2, and the Tenant shall install herein and thereon such equipment and facilities as the Tenant or the City may deem necessary or desirable. Provided, however, that no improvement of any nature shall be made or installed by the Tenant without the prior written consent of the City as herein provided. The Tenant may also be required to provide the City with proof that funds necessary to complete construction of the 5 Page 10 of 29 improvements have been irrevocably dedicated to such construction. All improvements constructed under this Agreement shall be in accordance with the Airport’s Tenant Improvement Manual as well as all other applicable laws, rules, regulations and ordinance. Section 4.02 Future Construction Dates 1. Additional Construction: The construction of any additional improvement, occurring during the remaining term of this agreement, shall be substantially completed within 12 months of the date of the City’s written approval of the Plans therefore in accordance with the construction schedule approved by the City. In the event of a failure to complete the additional construction within the 12 month period, the City shall have the right to terminate this Agreement pursuant to Article 9 hereof, and make appropriate claims against required performance bonds to complete construction, unless it is determined at sole discretion of the City that there were delays beyond the control of the Tenant. 2. Construction Period Extensions: The Tenant may request an extension of the construction period for causes or conditions of delay that are beyond the control of the Tenant (hereinafter referred to as "Force Majeure"). Such conditions of delay may be, by way of example, but not limited to, strikes, acts of God, inability to obtain labor or materials, governmental restrictions, enemy action, civil commotion, fire or other casualty, or failure of the City to carry out its obligations. Accordingly, at the sole discretion of the City, the period for completion of construction shall be extended by the number of days of delay resulting from the Force Majeure. Section 4.03 Approvals of Future Construction Plans The Tenant covenants and agrees that prior to the preparation of detailed construction plans, specifications and architectural renderings of any such addition or improvement, it shall first submit plans showing the general site plan, design and character of improvements and their locations, to the City for approval. The City agrees to review such plans within 30 days of receipt from the Tenant. The Tenant covenants and agrees that prior to the installation or construction of any present and future addition or improvement on the demised premises, it shall first submit to the City for approval, final detailed construction plans and specifications and architectural renderings prepared by registered architects and engineers, and that all construction will be in accordance with such plans and specifications and the Tenant Improvement Manual and all other applicable rules, regulations, laws and ordinances. Section 4.04 Future Extension of Utilities or Special Facilities The Tenant shall contract, and extend, at its sole expense, all necessary utility, electrical, communication lines needed to service any improvements constructed in the future by the Tenant on the demised premises. All utility extensions and other construction shall be in accordance with all applicable Codes, ordinances and the Tenant Improvement Manual. Section 4.05 Alterations or Repairs to Premises The Tenant shall not construct, install, remove and/or modify internal, external or structural portions of the buildings constructed upon the demised premises without the prior written approval of the City. The Tenant shall submit for approval by the City, its plans and specifications for any proposed project as well as complying with all applicable code requirements and such other conditions considered by the City to be necessary. Section 4.06 Lien Indemnification Tenant shall keep the premises free from liens arising out of any work performed and/or materials ordered, or from any obligations incurred by Tenant. In the event any person or corporation shall, as a result of construction work being performed by or for the Tenant, attempt to assess a lien against the demised premises, the Tenant shall hold the City harmless from such claim, including the cost of defense. Section 4.07 Cost of Construction and Alterations Within thirty (30) days of completion of the construction or alterations, the Tenant shall present to the City for examination and approval a sworn statement of the construction and/or alteration costs. Construction and/or alteration costs for the purpose of this Section are hereby defined as all money paid by the Tenant for actual site preparation, construction or alteration, including architectural and engineering costs plus pertinent fees in connection therewith. In the event that the Tenant makes further improvements or alterations on the demised premises, the use thereof shall be enjoyed by the Tenant during the term hereof without the additional rental therefore. 6 Page 11 of 29 Section 4.08 As-built Drawings Within ninety (90) days following completion of any future construction by the Tenant and any subsequent additions, alterations or improvements, the Tenant shall present to the City a complete set of "as-built" drawings including, but not limited to, architectural renderings, specifications, plumbing, and electrical plans. Section 4.09 Security Interest on Leasehold Improvements for Construction Tenant shall have no right to place a security interest, or “mortgage", upon demised premises, for improvements financed by the Tenant. Section 4.10 Ownership of Improvements The building and associated site improvements constructed and paid for by the City, as well as any approved improvements to demised premises, constructed during the term of this agreement, whether paid for by the Tenant or the City, excluding Tenant’s personal property, shall remain the property of the City. Section 4.11 Performance Bonds Tenant shall cause a surety bond to be issued in the amount of 100% of the building(s) and site development construction costs, prior to the beginning of any construction financed by Tenant, or another form of security acceptable to the City that assures that the funds to cover the cost of the project are irrevocably set aside and available to the City to complete the improvement to City owned property should the Tenant fail to do so. ARTICLE 5 OBLIGATION OF TENANT Section 5.01 Net Lease The use and occupancy of the demised premises by the Tenant will be without cost or expense to the City. It shall be the sole responsibility of the Tenant to maintain, repair and operate the entirety of the demised premises, and any approved improvements and facilities constructed thereon, at the Tenant's sole cost and expense. Section 5.02 Maintenance and Operation The Tenant shall maintain the demised premises at all times in a safe, neat and clean condition free of weeds, rubbish, or any unsightly accumulations of any nature whatsoever. The Tenant shall repair all damage to the demised premises caused by its employees, patrons, or its operation thereon. 1. The City remains responsible for the structural integrity of the building structure. 2. Upon occupancy, the Tenant shall be responsible for and perform all maintenance, including but not limited to: a. Janitorial services, providing janitorial supplies, window washing, rubbish, and trash removal. b. Supply and replacement of light bulbs and replacement of all glass in building, including plate glass. c. Replacement of floor coverings. d. Building interior maintenance, including painting, repairing and replacement. e. Repair or replacement of equipment and utilities to include electrical, mechanical and plumbing. All repairs to electrical and mechanical equipment are to be made by licensed personnel. Other repairs are to be made by craftsmen skilled in work done and performing such work regularly as trade. f. The Tenant shall advise the City and obtain City's consent in writing before making changes involving structural changes to the premises, modifications or additions to plumbing, electrical or other utilities g. The Tenant is responsible for maintaining electric loads within the designed capacity of the system. Prior to any change desired by the Tenant in the electrical loading which would exceed such capacity, written consent shall be obtained from the City. h. The Tenant shall provide and maintain hand fire extinguishers for the demised premises in accordance with applicable fire and safety codes. 7 Page 12 of 29  3. The City's Airport Director, at his discretion, shall be the sole judge of the quality of maintenance; and the Tenant, upon written notice by the City to the Tenant, shall be required to perform whatever maintenance the City deems necessary. If said maintenance is not undertaken by the Tenant within fifteen (15) days after receipt of written notice, the City shall have the right to enter upon the demised premises and improvements constructed thereon, and perform the necessary maintenance, the cost of which shall be borne by the Tenant as additional rent which shall be paid by the Tenant to the City in full within ten (10) days after the same has been billed. Section 5.03 Utilities The Tenant shall assume and pay for all costs or charges for utility services, including electrical, gas, telephone, and other such utilities furnished to the Tenant during the term hereof. Section 5.04 Signs The Tenant shall not erect, maintain, or display upon the outside of any improvements on the demised premises any billboards or advertising signs without prior written approval by the City. Section 5.05 Nondiscrimination The Tenant, for itself, its personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that (A) no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of the demised premises; (B) that in the construction of any improvements on, over, or under such land and the furnishing of services thereof no persons the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of or otherwise be subjected to discrimination; (C) that the Tenant shall use the demised premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and Transportation, and said Regulations may be amended, to the extent that said requirements are applicable, as a matter of law, to the Tenant. With respect to the demised premises, the Tenant 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 or service; PROVIDED, that the Tenant may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. Section 5.06 Observance of Statutes and Regulations The granting of this Agreement and its acceptance by the Tenant is conditioned upon the right to use the Airport facilities in common with others authorized to do so, provided however, that the Tenant shall observe and comply with any and all requirements of the constituted public authorities and with all federal, state, or local statutes, ordinances, regulations and standards applicable to the Tenant for its use of the demised premises, including but not limited to, rules and regulations or standards promulgated from time to time by the City for the administration of the Airport. Section 5.07 Airport Security The Tenant recognizes the City's required compliance with Federal Aviation Regulations concerning airport security and agrees to comply with the Airport's Security Plan as it relates to its use of the demised premises and the Airport's public facilities. ARTICLE 6 OBLIGATIONS OF THE CITY Section 6.01 Operation as a Public Airport The City covenants and agrees that at all times it will operate and maintain the Airport facilities, as a public airport consistent with, and pursuant to, the "Sponsor's Assurances" given by the City to the United States Government under Federal Airport Act. Section 6.02 Ingress and Egress Upon paying the rental prescribed herein, and performing the covenants of this Agreement, the Tenant shall have the right of ingress to, and egress from, the demised premises for the Tenant, its officers, 8 Page 13 of 29 employees, agents, servants, customers, vendors, suppliers, patrons, and invitee over the roadway serving the area of the demised premises. Airport roadways shall be used jointly with other tenants of the Airport, and the Tenant shall not interfere with the rights and privileges of other persons or firms using said facilities and shall be subject to such weight and type use restrictions as the City deems necessary. ARTICLE 7 CITY'S RESERVATIONS Section 7.01 Improvement, Relocation, or Removal of Structure In the event the City requires the demised premises for expansion, improvements, development of the airport, the City reserves the right, on a twelve (12) month notice, at no cost to the Tenant, to relocate or replace the Tenant's improvements, in substantially similar form at another generally comparable location on the Airport. All other Agreement terms shall remain in full force and effect. In the event of such relocation or replacement, the City agrees to suspend rental during any period such improvements are unusable. Section 7.02 Inspection of Demised Premises The City, through its duly authorized agent, shall have at any reasonable time with prior notice, the full and unrestricted right to enter the demised premises for the purpose of periodic inspection for fire protection, maintenance and to investigate compliance with the terms of this Agreement. ARTICLE 8 INDEMNITY AND INSURANCE Section 8.01 Indemnification 1. The Tenant agrees to indemnify, save, hold harmless and defend the City, its agents and employees, its successors and assigns, individually or collectively, from and against all liability for any claims and actions and all reasonable expenses incidental to the investigation and defense thereof, in any way arising out of or resulting from any acts, omissions or negligence of the Tenant, its agents, employees, licensees, successors and assigns, or those under its control; in, on or about demised premises or upon demised premises; or in connection with its use and occupancy of demised premises or use of Airport; PROVIDED, HOWEVER, that the Tenant shall not be liable for any injury, damage, or loss to the extent occasioned by the negligence or willful misconduct of the City, its agents or employees. When knowledge of any action becomes known by the Tenant or the City, they shall give prompt written notice to the other party. 2. The Tenant shall indemnify, save, hold harmless, and defend the City, its agents and employees, its successors and assigns, individually or collectively, from and against all liability for any claims and actions and all expenses or fines incidental to the investigation and defense thereof, in any way arising from or based upon the violation of any federal, state, or municipal laws, statutes, ordinances or regulations by the Tenant’s agents, employees, licensees, successors and assigns, or those under its control. The Tenant shall not be liable for any claims, actions and expenses or fines, incidental to the investigation and defense thereof, in any way arising from or based upon violation of any federal, state, or municipal laws, statutes, ordinances, or regulations by the City, its agents, employees, licensees, successors and assigns, or those under its control. Section 8.02 Insurance 1. Without limiting the Tenant's obligation to indemnify the City, the Tenant shall provide, pay for, and maintain in force at all times during the term of this Agreement a policy of comprehensive general liability insurance to protect against bodily injury liability and property damage in an aggregate amount of not less than $1,000,000.00 per occurrence; a policy of comprehensive automobile liability insurance in a combined single limit of not less than $1,000,000.00; and statutory Workman's Compensation insurance. The Tenant shall furnish the City, as evidence that such insurance is in force, a certified copy of the insurance Certificate including the City as an additional insured within thirty (30) days after the policy(s) is issued. Said policies shall be in a form and content satisfactory to the City and shall provide for thirty (30) days written notice to the City prior to the cancellation of or any material change in such policies. 9 Page 14 of 29  2. Neither the City nor its agents shall be responsible for the theft of or damage to any personal property of Tenant or its guests or invitees, for damage, loss, or destruction of personal property of Tenant or of Tenant’s guests or invitees because of fire, water, acts, or omissions of third parties or any cause whatsoever unless caused by the negligent acts of City of its agents. Tenant shall procure and maintain, at its own expense, insurance covering Tenant’s personal property and to the fullest extent possible without violating any such insurance coverage, Tenant waives all claims and subrogation rights against City arising out of any loss of or damage to any personal property owned by or in the possession or control of Tenant. Each party also releases the other party from any other liability for loss, damage or injury caused by fire or other casualty for which insurance is carried by the insured party to the extent of any recovery by the insured policy under such insurance policy, other than as set forth in Section 8.04 and 8.05 below. Section 8.03 Environmental Impairment The Tenant will comply with any environmental regulations affecting its operations throughout the term of this Agreement. Section 8.04 Fire and Extended Coverage Insurance The Tenant shall, at its expense, procure and keep in force at all times during the term of this Agreement with a company suitable to the City, insurance on the demised property, including all improvements, against loss and damage by fire, and extended coverage perils. The Tenant shall furnish evidence of insurance. Insurance shall name the City as an additional insured. Section 8.05 Application of Insurance Proceeds If the demised premises shall be partially or totally destroyed or damaged, the Tenant and the City, within thirty (30) days of the damage shall decide whether or not to proceed with restoration. If the City and the Tenant elect not to restore the same to their previous condition, the proceeds of insurance payable by reason of such loss the City shall be entitled to receive and apply the entire proceeds of any insurance covering such loss to the cleanup of the leased site, except those proceeds identified to cover the loss of Tenants personal property contained within demised premises. The Agreement shall then be canceled. If the damage results from an insurable cause and if the City elects to have the Tenant restore demised premises with reasonable promptness, the Tenant shall be entitled to receive and apply the entire proceeds of any insurance covering such loss to said restoration, including applicable site clean-up, in which event this Agreement shall be appropriately amended as necessary and continue in full force and effect. Section 8.06 Performance Bonds The Tenant shall cause a surety bond to be issued in the amount of 100% of the demised premises restoration costs, prior to the beginning of any construction financed by the Tenant or for the restoration of demised premises that is over and above insurance proceeds, in accordance with Section 8.05 above, or another form of security acceptable to the City that assures that the funds to cover the cost of the project are irrevocably set aside and available to the City to complete the improvement to City owned property should the Tenant fail to do so. Section 8.07 Destruction of Premises (Uninsured Cause) In the event of damage to or destruction of the demised property by an uninsured cause, Tenant and the City shall decide, within thirty (30) days of the event, whether it will repair, restore, or rebuild the demised premises. Within sixty (60) days of the event, Tenant shall initiate restoration or raising activities and complete those activities within one hundred twenty (120) days of the event unless otherwise agreed by the City. In the event Tenant fails to take action as noted above, City shall have the right to restore the premises to its original condition. Tenant shall be liable for reimbursing the City for all costs incurred. ARTICLE 9 CANCELLATION BY THE CITY Section 9.01 Events of Default by Tenants Each of the following events shall constitute an "Event of Default by Tenant": 1. Tenant fails to pay rentals, fees, and charges when due, and such default continues for a period of ten (10) days after receipt of written notice from the City that such non-payment constitutes an event of default. 10 Page 15 of 29  2. Tenant fails after receipt of written notice from the City to keep, perform or observe any term, covenant or condition of this Agreement, other than as set forth in paragraph 1 (above) and such failure continues for thirty (30) days after such receipt, or if by its nature such event of default by Tenants cannot be cured within such thirty (30) day period, Tenant fails to commence to cure or remove such event of default by the Tenant within said thirty (30) days and to cure or remove same as promptly as reasonably practicable. 3. Tenant abandons the premises. Tenant's intent not to re-occupy the premises may be presumed upon expiration of ten (10) days after receipt of written notice from the City that it believes in good faith that Tenant has abandoned the premises. 4. Tenant shall become insolvent, shall take the benefit of any present or future insolvency statute, shall make a general assignment for the benefit of creditors, shall file a voluntary petition in bankruptcy or a petition or answer seeking a reorganization or the readjustment of its indebtedness under the federal bankruptcy laws or under and other law or statute of the United States or of any state thereof, or shall consent to the appointment of a receiver, trustee, or liquidation of all or substantially all of its property. 5. An Order for Relief shall be entered at the request of Tenant or any of its creditors under the federal bankruptcy or reorganization laws or under any law or statute of the United States or any state thereof. 6. A petition under any part of the federal bankruptcy laws or an action under any present or future insolvency law or statute shall be filed against the Tenant and shall not be dismissed within thirty (30) days after the filing thereof. Tenant shall pay to the City all reasonable costs and fees, including attorney and accounting fees and expenses, incurred by the City in the exercise of any remedy in the event of any default by the Tenant. 7. By or pursuant to, or under, any legislative act, resolution or rule, or any order of decree of any court or governmental board or agency, an officer, receiver, trustee, or liquidator shall take possession or control of all or substantially all of the property of Tenant and such possession or control shall continue in effect for a period of fifteen (15) days. 8. Tenant shall become a corporation in dissolution, or voluntarily or involuntarily forfeit their corporate charter, other than through merger with a successor corporation. 9. The rights of the Tenant hereunder shall be transferred to, pass to, or devolve upon, by operation of law or otherwise, any other person, firm, corporation or other entity, as a result of any bankruptcy, insolvency, trusteeship, liquidation or other proceedings or occurrence described in Paragraphs 3 through 7 above. Section 9.02 Remedies for Tenants' Default 1. Upon the occurrence of an "Event of Default by the Tenant", Tenant shall remain liable to the City for all arrearages of rentals, fees or charges payable hereunder and for all preceding breach (es) of any covenant herein contained. The City, in addition to the right of termination, and to any other rights or remedies it may have at law or in equity, shall have the right of re-entry and may remove all Tenant’s persons and property from the demised premises. Upon any such removal, Tenant’s property may be stored in a public warehouse or elsewhere at the cost of, and for the account of, the Tenant. Should the City elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided by law, it may, at any time subsequent to an "Event of Default by the Tenant”, either terminate this Agreement or re-let the demised premises and any improvements thereon, or any part thereof, for such term or terms (which may be for a term extending beyond the term of this Agreement) at such rentals, fees and charges, and upon such other terms and conditions, as the City, in its sole discretion, may deem advisable, with the right to make alterations repairs or improvements on said demised premises. No re-entry or re-letting of the demised premises by the City shall be construed as an election on the City's part to terminate this Agreement, unless a written notice of such intention is given to the Tenant. In re-letting the demised premises, the City shall make a good faith effort to obtain terms 11 Page 16 of 29  and conditions no less favorable to itself than those contained herein and otherwise seek to mitigate any damage it may suffer as a result of the "Event of Default by the Tenant". 2. Unless the City elects to terminate this Agreement, the Tenant shall remain liable for and promptly pay all rentals, fees and charges accruing hereunder until termination of this Agreement at the expiration date set forth herein. 3. In the event that the City re-lets the demised premises, rentals, fees and charges received by the City from such re-letting shall be applied: first, to the payment of any indebtedness other than rentals, fees and charges due hereunder from the Tenant to the City; second, to the payment of any cost of such re-letting; third, to the payment of rentals, fees and charges due and unpaid hereunder; and, the residue, if any, shall be held by the City and applied in payment of future rentals, fees and charges as the same may become due and payable hereunder. Should that portion of such rentals, fees and charges received from such re-letting applied to the payment of rentals, fees and charges due hereunder be less than the rentals, fees and charges payable during the applicable period, Tenant shall pay such deficiency to the City. The Tenant shall also pay to the City, as soon as ascertained, any costs and expenses incurred by such re-letting not covered by the rentals, fees and charges received from such re-letting. 4. Notwithstanding anything to the contrary in this Agreement, if a dispute arises between the City and Tenant with respect to any obligation or alleged obligation of the Tenant to make payment(s) to the City, the payment(s) under protest by the Tenant of the amount claimed by the Tenant to be due shall not waive any of the Tenants' rights, and if any court or other body having jurisdiction determines all, or any part, of the protested payment was not due, then the City shall as promptly as reasonably practicable reimburse the Tenant any amount determined as not due plus interest on such amount at the highest rate allowable under West Virginia law. 5. Tenant shall pay to the City all reasonable costs, fees (including attorneys and accountants) and expenses incurred by the City in the exercise of any remedy upon an event of default by the Tenant. ARTICLE 10 CANCELLATION BY TENANT FOR EVENTS OF DEFAULT BY CITY Section 10.01 Event of Default by City Each of the following events shall constitute an "Event of Default by City": 1. The City fails, after receipt of written notice from Tenant, to keep, perform or observe any term, covenant or condition herein contained to be kept, performed or observed by the City and such failure continues for thirty (30) days; or, if, by its nature, such "Event of Default by City" cannot be cured within such thirty (30) day period, the City fails to commence to cure or remove such "Event of Default by City" within said thirty (30) days and to cure or remove the same as promptly as reasonably practicable. 2. The City closes the Airport to flights in general or to the flights of the Tenant, for reasons other than weather, acts of God or other reasons beyond its control, and fails to reopen the Airport to such flights within sixty (60) days of such closure, and such closure negatively affects the Tenant’s use of demised premises. 3. The Airport is permanently closed by act of any federal, state or local government agency having competent jurisdiction. 4. The City is unable to use the Airport for a period of at least sixty (60) days due to any law or any order, rule or regulation of any appropriate governmental authority having jurisdiction over the operations of the airport, or any court of competent jurisdiction issues an injunction in any way preventing or restraining the use of the Airport, or any part thereof, for airport purposes, and such injunction remains in force for a period of at least sixty (60) days and such situation negatively affects the Tenant’s use of demised premises. 5. The United States Government or any authorized agency of the same (by executive order or otherwise) assumes the operation, control or use of the Airport and its facilities in such a manner 12 Page 17 of 29  as to substantially restrict Tenant from conducting its operations, and such restrictions shall continue for a period of at least sixty (60) days. Section 10.02 Remedies for City's Defaults Upon the occurrence of an "Event of Default by City", the Tenant shall have the right to suspend or terminate this Agreement and all rentals, fees and charges payable by Tenant under this Agreement shall abate during a period of suspension or shall terminate, as the case may be. In the event that Tenant’s operations at Airport should be substantially restricted by action of any governmental agency having jurisdiction thereof, then Tenant shall, in addition to the rights of termination herein granted, have the right to a suspension of this Agreement, or part thereof, and abatement of an equitable proportion of the payments due hereunder, from the time of giving written notice of such election until such restrictions shall have been remedied and normal operations restored. In addition to its remedy of termination, the Tenant shall be entitled to all other remedies available to it by law or equity. ARTICLE 11 RIGHTS UNDER TERMINATION Section 11.01 Fixed Improvements It is the intent of this Agreement that the leasehold improvements, alterations and items affixed thereto shall be and remain the property of the City during the entire term of this Agreement. Upon termination of this Agreement, the Tenant shall have no further rights under this Agreement nor shall it have any interest in the demised premises, buildings or improvements, constructed thereon. Section 11.02 Personal Property Upon termination of this Agreement, the Tenant shall remove all personal property, and items not affixed, from the demised premises within sixty (60) days after said termination and restore the demised premises to its original condition. If the Tenant fails to remove said personal property, said property shall revert to City ownership and may thereafter be removed by the City at Tenant's expense. ARTICLE 12 ASSIGNMENT AND SUBLETTING The Tenant shall not assign this Agreement or sublease, or any part hereof, in any manner whatsoever, or assign any of the privileges recited herein without the prior written consent of the City. Provided however: 1. Tenant may assign privileges of this agreement, and/or sublease space, in the Demised Premises directly to a parent, subsidiary or affiliate of Tenant, in the furtherance of its approved use of City / Airport facilities as detailed in 2.01, without City approval. However, Tenant remains obligated to notify City in writing of such assignment or sublease. Under such assignment or sublease, the Tenant remains fully responsible for the payment of all rents, fees and charges in accordance with the Agreement. 2. Any assignment of the privileges in this agreement, or sublease of Demised Premises, wherein the assignee/sub-lessee is responsible for the payment of rents, fees and charges directly to the City, must receive the prior approval of the City. In such assignment or sublease, Tenant shall remain liable to the City for the remainder of the term of this Agreement to pay to the City any portion of the rental and fees provided for herein upon failure of the assignee or sub-lessee to pay the same when due. 3. Said assignee or sub-lessee in either case above, shall not further assign or sublease said Agreement or leased space except with the prior written approval of the City and the Tenant herein, and any assignment or sublease agreement initiated by the Tenant to any third party shall contain a clause to this effect. ARTICLE 13 QUIET ENJOYMENT The City covenants that the Tenant, upon payment of the rentals reserved herein and the performance of each and every one of the covenants, agreements and conditions on the part of the Tenant to be observed and performed, shall and may, peaceably and quietly, have, hold and enjoy the demised premises for the term of this Agreement, free from molestation, or disturbance. 13 Page 18 of 29  ARTICLE 14 GENERAL PROVISIONS Section 14.01 Non-Interference with Operations of Airport The Tenant, by accepting this Agreement, expressly agrees for itself, its successors and assigns, that it will not make use of the demised premises in any manner which might interfere with the operations of the Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the City reserves the right to enter upon the premises hereby leased and cause the abatement of such interference at the expense of the Tenant. Section 14.02 Attorney's Fees In any action brought by either party for the enforcement of the obligations of the other party, the prevailing party shall be entitled to recover interest and its reasonable attorney's fees. Section 14.03 Taxes and Special Assessments The Tenant shall pay any and all leasehold interest tax assessed on said demised premises and all personal property taxes which may be assessed against equipment, merchandise, or other personal property belonging to the Tenant located on the demised premises, or other permitted portions of the Airport. The Tenant shall pay all real estate taxes attributed to the Tenant's leasehold interest and all other real estate taxes which may be levied and assessed which are attributed to the Tenant's leasehold interest in the demised premises. The Tenant shall pay all sales or use taxes and assessments, license fees or other charges of any kind or nature, without exception, levied or assessed, arising out of the activities conducted on, and/or the occupancy of, the demised premises. Section 14.04 Right to Contest The Tenant shall have the right to contest the validity or amount of any tax, assessment or charge, lien or claim of any kind in with respect to the demised premises. Tenant shall, if the City requires the same in writing and if the taxes or other assessments have not been paid under protest or otherwise escrowed or provided for, furnish reasonable security for the payment of all liability, costs and expenses at the end of the litigation, and Tenant, so long as the matter shall remain undetermined by final judgment, shall not be considered in default hereunder by the nonpayment thereof; provided however, that Tenant shall not, under these provisions, permit the premises or any buildings or improvements situated thereon, to be sold or forfeited, and failure by the Tenant to do what is necessary to prevent any such sale or forfeiture within ten (10) days from the publication or receipt of notice for sale or forfeiture, shall be deemed to be a default hereunder, and the City may, at its option, pay any such sum as may be required to avoid the sale or forfeiture and seek reimbursement for its cost from the Tenant or ownership of the buildings or improvements involved. Section 14.05 License Fees and Permits The Tenant shall obtain and pay for all licenses, permits, fees or other authorization or charges as required under federal, state or local laws and regulations insofar as they are necessary to comply with the requirements of this Agreement and the privileges extended hereunder. Section 14.06 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 the Tenant or others, as defined in Section 308 of the Federal Aviation Act of 1958, as amended. Section 14.07 Paragraph Headings The Section paragraph headings contained herein are for convenience in reference only and are not intended to define or limit the scope of any of the provision of this Agreement. Section 14.08 Interpretations This Agreement shall be interpreted in accordance with the laws of the State of West Virginia. Section 14.09 Non-Waiver No waiver by City of any agreement, condition or provision contained in this Agreement will be valid or binding unless expressed in writing and signed by the City. The waiver by City of any agreement, condition or provision contained in this Agreement will not be deemed to be a waiver of any subsequent breach of 14 Page 19 of 29 the same or any other agreement, condition or provision contained in this Agreement, nor will any custom or practice that may grow up between the parties in the administration of the terms of this Agreement be construed to waive or to lessen the right of City to insist upon the performance by Tenant in strict accordance with the terms of this Agreement. The subsequent acceptance of rent by City will not be needed to be a waiver of any preceding breach by Tenant of any agreement, condition or provision of this Agreement, other than the failure of Tenant to pay the particular rent so accepted, regardless of City’s knowledge of such preceding breach at the time of acceptance of such rent. Section 14.10 Severability If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each other term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. Section 14.11 Binding Effect This Agreement, 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. Section 14.12 No Partnership Nothing contained in this Agreement shall be deemed to create the relationship of principal and agent or of a partnership or joint venture or any relationship between the City and Tenant other than the relationship of the City and Tenant. Section 14.13 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 discretion shall not be unreasonably exercised or unreasonably withheld. When the City is called upon to give its consent or approval, or otherwise exercise its discretion and judgment as to financial matters which affect the City and the continuing operations of the Airport, the exercise of its judgment as to any such matters shall be solely and completely within the discretion of the City. Section 14.14 Notices Whenever any notice or payment is required by this Agreement to be made, given or transmitted to the parties hereto, such notices or payments shall be enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail, addressed to: Airport Director City of Morgantown Morgantown Municipal Airport 100 Hart Field Road Morgantown, West Virginia 26505 And notices, consents and approvals to the Tenant addressed to: Paul Koontz Xerox Sales Representative Consultant 714 Venture Drive #134 Morgantown, WV 26508 Or such other place as either party shall, by written directive, designate in the manner herein provided. Section 14.15 Entire Agreement This Office Lease Agreement constitutes the entire agreement between the parties. There are no verbal or written agreements between the parties that are to be considered a part of this Agreement unless they have been specifically enumerated herein and this Agreement supersedes all prior or other agreements, understandings, and representations. This Agreement may be amended solely by a written instrument, signed by all parties. 15 Page 20 of 29 Section 14.16 No Construction Against Drafting Party City and Tenant acknowledge that each of them and their counsel have had an opportunity to review this Agreement and that this Agreement will not be construed against City merely because City has prepared it. Section 14.17 Third Party Beneficiaries It is specifically understood and agreed that no person shall be a third party beneficiary hereunder, and that none of the provisions of this Agreement shall be for the benefit of, or be enforceable by, anyone other than the parties hereto, and that only the parties hereto and their permitted assignees shall have rights hereunder. Section 14.18 Authorization and Execution By its execution hereof, Tenant and the City warrant that all necessary corporate action has been taken with regard to the authorization and execution of this Agreement and that the individual(s) executing this Lease Agreement on behalf of Tenant is/are duly authorized to do so. Whoever signs this Agreement on behalf of Tenant and the City hereby confirms that they have the appropriate authority and have been so authorized to execute this Agreement on behalf of Tenant and City, respectively. IN WITNESS WHEREOF, the parties have caused this Office Lease Agreement to be executed on their behalf by their duly authorized officers. CITY OF MORGANTOWN PAUL KOONTZ By: __________________________________ By: ______________________________ A. Kim Haws Paul Koontz City Manager Xerox Sales Representative Consultant Date:_________________________________ Date:_____________________________ Witness: Witness: By: __________________________________ By: _______________________________ Name, Title Name, Title Date: ________________________________ Date: ______________________________ 16 Page 21 of 29  Exhibit A Morgantown Municipal Airport SECOND LEVEL 172 sq ft. Page 22 of 29  Ordinance No. 2021-___ AN ORDINANCE ADOPTING PERSONNEL RULES The City of Morgantown hereby ordains, consistent with Section 4.05 of the Charter of The City of Morgantown, West Virginia, that the following Personnel Rules are adopted: Section 1: Purpose and Scope. The purpose of these Personnel Rules is to establish a comprehensive Personnel System for The City of Morgantown, its officers, and employees, in accordance with the City Charter. The Personnel System, these Personnel Rules, and the employee handbooks, personnel policies, guidelines, and rules authorized by these rules will provide for: (1) The management of employee relations, personnel data systems, personnel records, employee classification, evaluation of performance and in-service training programs; (2) The formulation of plans, advice and action to conform to applicable State and federal employment laws; (3) The provision of a pay plan and guidelines for appointment, promotion, age of retirement and pension for City employees; (4) Policies and procedures regulating reduction in force and removal of employees; (5) The hours of work, attendance, regulations and provisions for sick and vacation leave; (6) Policies and procedures governing relationships with employee organizations; (7) Grievance procedures, including procedures for the hearing of grievances by the Personnel Board, which may render advisory opinions based on its findings to the City Manager with a copy to the employee; (8) Advice and guidance to all City officials, department heads and supervisors as necessary for the administration of the City Personnel System. Section 2: Administration. The Personnel Rules recognize and reflect the duty of the City Manager to implement a sound Personnel System for the City (Charter § 4.05(a)) as a part of the City Manager’s duties as the chief administrative officer for the City with the duty to appoint, suspend, and remove employees (Charter § 3.04(1)); to direct and supervise the administration of the departments, offices and agencies of the City (Charter § 3.04(1)); and to see that the laws, ordinances, and provisions of the City Charter and other acts of the City Council are faithfully executed and enforced (Charter § 3.04(4)). The City Manager shall establish a system of classification and compensation designed to fairly and adequately compensate employees within the budget amounts adopted by the City Council from time to time. The City Manager will adopt and maintain an Employee Handbook that specifies the duties and responsibilities of the City and its employees with respect to the conditions of employment and provides clear procedures to ensure the City and its employees comply with those duties and responsibilities. In addition to the Employee Handbook, the City Manager may adopt and maintain additional policies, rules, and procedures, necessary and convenient to the administration of the Personnel System, within the authority granted by these Personnel Rules and other laws. Page 23 of 29 Section 3: Rules adopted by City Council. In addition to the Employee Handbook, personnel policies, guidance, and other materials adopted and published by the City Manager consistent with the administration duties imposed by the City Charter and by these Personnel Rules, the City Council may, from time to time, adopt such other or additional rules as it deems expedient for the interests of the City, provided that, if the rule under consideration by City Council would amend or modify any existing policies or procedures adopted by the administrative authority under the Personnel Rules, the rule will specify its impact on the policies or procedures affected. Should City Council elect to adopt rules under this Section 3, it will do so by ordinance. The City Council recognizes that the administration of employees is committed to the City Manager, and that in order to effectively administer the Personnel System the City Manager must be able to respond promptly and effectively as issues arise with respect to the conditions of employment with the City, which will promote the attraction and retention of high quality employees necessary to serve the public interest, ensure prompt action is taken to correct any conditions adverse to City operations, and maintain a positive working environment that fosters a diverse, inclusive workforce able to proactively and effectively serve the community. In accordance with these principles, the City Council desires to set forth certain basic guidelines and conditions as Personnel Rules that will provide established policies upon which the City Manager may rely when administering the Personnel System, and accordingly the following rules are adopted: Establishment of Employee Positions and Compensation The City Council is responsible for establishing departments within the City administration, and the City Manager is responsible for establishing all employee positions, classification of those employees, and establishment of the employees’ wages and compensation and pay ranges for certain positions. The City Manager will set employee positions, wages or salaries, pay ranges for positions, and any other pay for all employees on a Pay Plan, which will be updated no less than yearly as of July 1 each year. The Pay Plan shall at all times be designed to provide compensation in a total amount that does not exceed the amount of funds budgeted for such purposes by City Council. Grievances The City Council recognizes that in support of equality in employment conditions, it can be helpful to provide an established grievance process that includes, in certain instances, review and recommendation on employment actions by an independent Personnel Board. Employees may submit grievances regarding allegations of unlawful discriminatory practices; promotions or transfers; suspension without pay; and demotion, in accordance with such procedures as are established in the Employee Handbook, and the Personnel Board will hear grievances regarding these employment actions, and make recommendations for the disposition of such grievances to the City Manager. The Employee Handbook, and other administrative personnel policies, rules, Page 24 of 29 and procedures, may offer additional avenues to address grievances or complaints regarding the conditions of employment with the City. Diversity, Equity, and Inclusion In accordance with its commitment to act as an equal opportunity employer and in pursuit of the goals established by City Council in Resolution No. 2020-05 adopting diversity, equity, and inclusion strategies recommended by the Morgantown Human Rights Commission, the City adopts the following policies: Equal Pay: The City Council prohibits pay discrimination on the basis of sex. Employees in the same work location who perform substantially equal work will be paid at the same rate regardless of their sex, except where differences in pay are based on: - A seniority, merit, or incentive system. - Any factor other than an employee's sex. This policy covers jobs that require substantially equal skill, effort, and responsibility and are performed under similar working conditions. Outreach for posted vacant employment positions: The City Council recognizes that using online and printed media to conduct outreach to inform neighborhood and special interest populations on externally posted city employment vacancies promotes a diverse and inclusive workforce. While the City Council recognizes that administrative needs may not allow all positions to be filled only after outreach, it is the intention of City Council to promote use of such outreach when reasonably possible to fill employment vacancies. Examples of outreach recipient organizations for personnel recruitment and annual reporting will include neighborhood associations and the Neighborhood Coordinating Council; minority liaison organizations; social justice and minority advocacy organizations; and interested service, education and religious organizations wishing to receive regular distribution of information. The Human Resources Director will establish and maintain a list of outreach recipient organizations and individuals who have expressed interest in receiving outreach notices. Individuals may request access to distributed information by submitting requests in writing to the Human Resources Director. The list for employment outreach will be reviewed annually by the Human Rights Commission and the City Manager’s Office. Outreach and applications for authority, board, and commission appointments: The City Council recognizes that using online and printed media to conduct outreach to inform neighborhood and special interest populations on externally posted city employment vacancies promotes a diverse and inclusive workforce. The City Clerk in coordination with the Communications department shall be responsible for conducting online and media outreach to City residents relating to city volunteer vacancies on authorities, boards, and commissions, to neighborhood associations as well as to other organizations representing or advocating for diversity interests in the community. Examples of outreach recipient organizations for personnel recruitment and annual reporting will include neighborhood associations and the Neighborhood Coordinating Council; minority liaison organizations; social justice and minority advocacy Page 25 of 29 organizations; and interested service, education and religious organizations wishing to receive regular distribution of information. The Human Resources Director will establish and maintain a list of outreach recipient organizations and individuals who have expressed interest in receiving outreach notices. Individuals may request access to distributed information by submitting requests in writing to the Human Resources Director. The list for outreach will be reviewed annually by the Human Rights Commission and the City Manager’s Office. In addition to these outreach efforts, the City Council may, in conjunction with the City Clerk and members of authorities, boards, and commissions, conduct outreach to neighborhoods and other interested entities to provide information and discussion for members of the general public who may be interested in learning more about City volunteer advisory opportunities, and such outreach may be by means of a workshop open to the public or by other methods designed to provide opportunities for public participation. To confirm and record interest in specific volunteer positions within the city governance in appointed positions to authorities, boards, and commissions, the City Clerk will administer a system for applications allowing each candidate to submit an application online, by postal delivery, or in person to the City Clerk, who will impartially administer interviews for such positions and record the selection outcomes. Applications will be considered active for 12 months, after which interested candidates must renew their applications. Review of Outreach communication and representation: The Human Rights Commission will conduct periodic reviews, no less than annually, of the communication with outreach organizations established by these rules to evaluate their efficacy and the preferences of outreach organizations receiving the communications. The Human Rights Commission will provide reports of its reviews to the City Council. In connection with these efforts, during the first quarter of each fiscal year, the Human Rights Commission shall work with the Mayor, Deputy Mayor and City Clerk to review the diversity status in volunteer representation, to make recommendations, and to reinforce efforts to have City authorities, boards, and commissions represent a diversity of Morgantown residents. The Human Rights Commission shall review, and report to City Council, the length of service of members of authorities, boards, and commissions reapplying for reappointment and encourage the involvement of new members when deemed practicable. The City Council recognizes that new membership has the potential of increasing community involvement in City government. Appointments Not Biased by Race, Age, Gender or Gender Identity nor Other Human Rights Ordinance Classifications: In appointing members to authorities, boards, and commissions, the City Council shall not discriminate. Neither shall there be discrimination on the basis of age, race, color, culture, abilities/disabilities, sexual orientation, family or veteran status as well as the technical needs specific to an authority, board, or commission. Annual Workforce Demographic Reports: The City’s Diversity, Equity, and Inclusion Plan (the “DEI Plan”) focuses on the generation of annual reports at the end of the fiscal year under the direction of the City Manager to identify, profile, and track diversity in both City employment and in volunteer participation on authorities, boards, and commissions. These reports will key on data from each City Department and each authority, board, and commission pertaining to race, gender, age, and disability and the subcategories provided in the DEI Plan. Where practicable, Page 26 of 29 this data will be compared with the Census Data percentages for the City of Morgantown to determine comparative proportionality. The reports shall be transmitted to the Human Rights Commission for review, comment, and recommendations which will be submitted to the City Manager and then to the City Council for public review. It is important that successes in achieving diversity be acknowledged publicly to encourage other organizations in the city to adopt standards of equity. It must be noted, that in accordance with guidelines of the federal Office of Management and Budget, race and gender data collected by the Census Bureau and through the American Community Survey is based on self-identification. Accordingly, all employees are free to self- identify personal data or not to participate in the disclosure of personal information on age, gender, sexual orientation, disabilities, or any other classification. It is notable, however, that the purpose of the DEI Plan and its collective annual disclosure is to strengthen acceptance of representative diversity both within the City government and in the community as a whole. These Personnel Rules supersede and replace any existing or previously adopted Personnel Rules and any and all other rules, policies, or actions respecting the subject matter hereof, including any separately adopted ordinances of the City Council establishing employees’ wages or rates of pay, but excluding, to the extent these could be construed to embrace the subject matter of the ordinance, ordinances or resolutions establishing pension or retirement benefits for the City of Morgantown, as of the effective date of this ordinance. This ordinance is effective as of June 30, 2021. Adopted this ___ day of _________, 2021 FIRST READING: ________________________ ________________________ Mayor SECOND READING: _____________________ ________________________ ADOPTED: ______________________________ City Clerk FILED: _________________________________ Page 27 of 29  A RESOLUTION SUPPORTING THE PASSAGE OF THE “FOR THE PEOPLE ACT” H.R. 1, S.1 WHEREAS, government of, by, and for the people has long been a cherished American value, and We The People’s fundamental and inalienable right to self-govern, and thereby secure rights to life, liberty, property, and the pursuit of happiness is guaranteed in the US Constitution and the Declaration of Independence, and; WHEREAS, free and fair elections are essential to democracy and effective self-governance, and; WHEREAS, voter suppression rooted in racist and white nationalist ideology is pervasive, and; WHEREAS, the authoritarian movement, driven in large degree by racial motives, is alive and well and extends beyond the violent fringe of overt hate groups, and; WHEREAS, this is a watershed moment in American history in which federal action is required to ensure free and fair elections in which all eligible citizens can participate, and; WHEREAS, the following provisions in H.R. 1/S. 1 are essential to the protection and security of our constitutional right to participate in fair elections and democracy: Expansion and protection of voter registration; Secure and guaranteed early voting and absentee voting; Protection and expansion of voting accessibility; Restoration of civil rights to people with felony convictions; Ending of partisan gerrymandering. NOW, THEREFORE, BE IT RESOLVED that the City of Morgantown, West Virginia hereby calls on our federal legislators to join the citizens, grassroots organizations and local governments across our city, our state and our country to support and vote in favor of H.R 1 / S. 1, the “For the People Act,” as a step toward a more perfect union in which each citizen is afforded the unabridged right to participate in our democracy. Page 28 of 29 BE IT FURTHER RESOLVED, that the City of Morgantown, West Virginia calls on other communities and jurisdictions to join with us in this action by passing similar Resolutions to encourage our representatives to support free and fair access to elections and representation by urging passage of H.R.1 / S.1 DATE: ___________ Page 29 of 29