2001-032-RES AWARDING LEASE TO JIMMY D SMYERS AS HIGHEST AND BEST BIDDER FOR LEASE OF HANGAR H AT COX FIELD AIRPORT
RESOLUTION NO. 2001-032
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS,
PARIS, TEXAS, AWARDING A LEASE TO JIMMY D. SMYERS AS THE
HIGHEST AND BEST BIDDER FOR THE LEASE OF HANGAR HAT COX
FIELD AIRPORT; MAKING OTHER FINDINGS AND PROVISIONS
RELATED TO THE SUBJECT; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City Council of the City of Paris did heretofore, on the 12th day of
February, 2001, in Resolution No. 2001-014, authorize the advertisement for bids for the lease of
Hangar H at the Cox Field Airport, which bids were received until 3:00 o'clock p.m. on Tuesday,
March 6, 2001; and,
WHEREAS, the City Council of the City of Paris did heretofore, on the 12th day of March,
2001, in Resolution No. 2001-023, designate that the best bid for such lease was made by Jimmy D.
Smyers of Powderly, Texas, in the amount of$875.00 per month for a term often (10) years; and,
WHEREAS, in accordance with the terms of the lease with J. B. Richey, such bid was
subsequently forwarded to Mr. Richey as the holder of a right-of-first-refusal for the lease of Hangar
H in order that he be given the opportunity to match such bid; and,
WHEREAS, J. B. Richey has declined to exercise his right-of-first-refusal for such lease,
therefore, it is deemed appropriate that the lease of Hangar H be awarded to Jimmy D. Smyers;
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS,
TEXAS:
Section 1. That the findings set out in the preamble to this resolution are hereby in all things
approved.
Section 2. That the lease of Hangar H be and the same is hereby awarded to Jimmy D.
Smyers of Powderly, Texas, for the amount of$875.00 per month for a period often (10) years, to
be effective May 1, 2001.
Section 3. That the form of the Lease Agreement with Jimmy D. Smyers, attached hereto
as Exhibit A, be and the same is hereby approved.
Section 4. That the City Manager be and he is hereby authorized and directed to execute, on
behalf of the City of Paris, the Lease Agreement with Jimmy D. Smyers, under the terms and
conditions and in the form shown in Exhibit A, attached hereto.
Section 5. That this resolution shall be effective from and after its date of passage.
PASSED AND APPROVED this 26th day of March, 2001.
M~y~~
ATTEST:
.
Mattie Cunningham, City Clerk
APPROVED AS TO FORM:
LEASE AGREEMENT
COUNTY OF LAMAR
)
)
)
KNOW ALL MEN BY THESE PRESENTS:
STATE OF TEXAS
TillS LEASE AGREEMENT is made this 26th day of March, 2001, by and between the
CITY OF PARIS, PARIS, TEXAS, a municipal corporation, acting by and through its City Manager,
Michael E. Malone, duly authorized, hereinafterreferred to as LESSOR, and JIMMY D. SMYERS,
P. O. Box 95, Powderly, Lamar County, Texas, hereinafter referred to as LESSEE.
WITNESSETH
For and in consideration of the payment of the monthly rental, due on or before the 1st day
of each month, to the LESSOR, and each month thereafter, as follows: $875.00 per month, plus
utilities, said LESSOR does lease, rent, and let unto LESSEE that portion of Cox Field property
known as Hangar H, described in Exhibit" An, attached hereto and made a part hereof for all legal
purposes, hereinafter referred to as the property or premise.
The term ofthis Lease is for TEN years, beginning on the 1st day of May, 2001, and ending
on the 30th day of April, 2011.
The rent established herein shall be subject to increase annually, in May of each year, in the
percentage amount of increase in the Consumer Price Index for All Urban Consumers (CPI-U United
States City Average [1982-84=100%]) above the rate for January 2000, which shall be determined
to equal 168.7.
In determining the annual rate increase, the LESSEE shall, by or before March 1 of each year,
provide written notice to the LESSOR of the amount of the CPI increase (including appropriate
documentation thereof) and the LESSEE's calculation of the new monthly rental based on said
Lease Ae:reement - Page 1
EXHIBIT A
mcrease. If LESSOR disagrees with LESSEE's determination of said adjustment, LESSOR shall,
by or before March 20 of each year, calculate the rate increase appropriately and notifY LESSEE, in
writing, of the appropriate monthly rental rate, as adjusted. If LESSOR does not object to LESSEE's
calculation of the rate adjustment as provided herein, then the rate adjustment provided by LESSEE
shall be deemed approved. In any event, beginning with the monthly payment due April 1 of each
year, LESSEE shall pay the adjusted monthly rate as determined herein. If, for any reason, the CPI
adjustment would result in a decrease in the monthly rental due, the previous year's rental shall
remain in effect. In no event shall the monthly rental rate be decreased.
It is further agreed by LESSOR and LESSEE that LESSOR shall have the option to renew
such Lease for two additional periods offive (5) years each, the initial monthly rental for the renewal
to be at the last rate of the original term, with a like payment due on or before the first day of each
month thereafter during the remainder of the term of the first option. The granting of said first
option shall be on substantially the same terms and conditions of this original Lease, including the
annual rental CPI adjustment. LESSOR shall send written notice to LESSEE sixty (60) days in
advance ofthe end of the original term or optional extended term notifying LESSEE or LESSOR's
intention to extend the Lease for an additional five (5) year period.
IN CONSIDERATION HEREOF, it is mutually agreed by and between LESSOR and
LESSEE:
I. That LESSEE pay to LESSOR, or order, at the City Hall in the City of Paris, the
agreed rental in advance, promptly and without neglect, default, and delay.
2. That this Lease is subject to all the terms, provisions, and conditions of the deed of
conveyance of such premises from the United States of America to the City of Paris, recorded in
Lease Aereement - Page 2
Book 308, Page 287, Deed Records of Lamar County, Texas to which reference is made for all
purposes.
3. That LESSEE, LESSEE's successors or assigns, agrees that, in the event facilities are
constructed, maintained, or otherwise operated on the said property described in this Lease for a
purpose for which a Department of Transportation program or activity is extended or for another
purpose involving the provision of similar services or benefits, the LESSEE shall maintain and
operate such facilities and services in compliance with all other requirements imposed pursuant to
Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may
be amended.
4. That LESSEE, LESSEE's successors and assigns, will complete a Federal Aviation
Administration (FAA) Form 7460-1, "Notice of Proposed Construction or Alteration," and receive
a favorable determination from the FAA prior to any construction on the property.
5. That LESSEE, LESSEE's successors or assigns, agrees that (i) no person, on the
grounds of race, color, creed, sex, age, national origin, or disability shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said
facilities; (ii) that, in the construction of any improvements on, over, or under such land and the
furnishing of services thereon, no person, on the grounds of race, color, creed, sex, age, national
origin, or disability shall be excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination; (iii) that the LESSEE shall use the premises in compliance with all other
requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of
Lease Aereement - Page 3
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 as said Regulations may be amended. In the event of breach of any of the preceding
nondiscrimination covenants, LESSOR shall have the right to terminate this Lease and any
aeronautical permits, and to re-enter and repossess said land and the facilities thereon, and hold the
same as if said Lease had never been made or issued.
6. That LESSEE shall comply with all conditions and requirements established in
Department of Transportation, Federal Aviation Administration, Grant Agreements No. 8-48-0169-
02 and No. 6-48-0169-03.
7. That LESSEE will abide by and comply with all rules, regulations, ordinances, and
laws pertaining to the use of the airport located at Cox Field, including but not limited to the City
of Paris Airport Manual and Federal Aviation Administration rules and regulations pertaining to Cox
Field, and in addition thereto will abide by and comply with all ordinances ofthe City of Paris and
all laws of the State of Texas governing citizens and property within the City of Paris.
8. That LESSEE will use such premises only for aeronautical activities for which
LESSEE holds a permit issued by the City of Paris in accordance with Article II of Chapter 6 of the
Code of Ordinances of the City of Paris. This Lease does not constitute the issuance of any such
permit.
9. That LESSEE will take good care ofthe leased premises and be responsible and make
good to LESSOR all injuries and damages to the same caused by LESSEE or those under him and
will deliver same to LESSOR at the expiration or termination ofthis Lease in as good condition as
when completed, usual wear and tear alone excepted; and LESSEE will, upon the expiration of this
Lease Aereement - Page 4
Lease, peaceably yield up to LESSOR all and singular the premises and all future erections,
additions, or repairs to or upon same, in good repair, including but not limited to the main hangar
building and permanent installation of equipment and fixtures.
10. That LESSEE shall payor cause to be paid all charges for water, heat, gas, electricity,
sewers, and all other utilities used on the premises throughout the term of this Lease, including any
connection fees.
11. That all improvements made upon the said premises by LESSEE, or at LESSEE's
instance or request, shall at once become the property of LESSOR and shall be surrendered to
LESSOR at the termination or expiration of this Lease; except wherein it is specifically provided for
ownership to remain in LESSEE.
12. That it shall be lawful for LESSOR's Airport Manager to enter upon and into the
leased premises, and every part thereof, at all times for the purpose of inspecting and examining the
condition thereof.
13. That it is understood and agreed that nothing herein contained shall be construed to
grant or authorize the granting of an exclusive right forbidden by Section 308(a) of the Federal
Aviation Act of 1958 or for aeronautical activities such as, but not limited to:
a) charter operations.
b) pilot training
c) aircraft rental
d) aerial photography
e) crop dusting
f) sale of aviation petroleum products
g) air carrier operations
h) aircraft sales and service incidental thereto
i) any other activity which, because of its direct relationship to the operation of
aircraft, can be regarded as an aeronautical activity.
Lease Aereement " Page 5
14. That, in the event any building or improvement constructed on the premises is
damaged or destroyed by fire or any other casualty, regardless of the extent of such damage or
destruction, LESSEE shall, within one (I) year from the date of such damage or destruction, begin
to repair, reconstruct, or replace the damaged or destroyed building or improvement and pursue the
repair, reconstruction, orreplacement with reasonable diligence so that the building shall be restored
to substantially the condition it was in prior to the happening ofthe casualty; provided, however, that
if commencement or completion of such repairs is delayed through no fault of LESSEE and is due
exclusively to a civil commotion, action of God, strikes, governmental restrictions or regulations,
or interferences, or any other reason beyond the control of the LESSEE, whether similar to any of
those enumerated or not, the time for commencement or completion, or both, of the restoration will
automatically be extended for the period of such delay.
15. That LESSEE will not assign this Lease or sublet the leased premises or any part
thereof without the written consent of LESSOR, in writing, first had and obtained.
16. That LESSEE shall not cause or permit any mechanics' liens or other liens to be filed
against the fee ofthe premises or against LESSEE's leasehold interest in the land or any buildings
or improvements on the leased premises by reason of any work, labor, services, or material supplied
or claimed to have been supplied to LESSEE or to anyone holding the premises or any part of it
through or under LESSEE. If such a mechanic's lien or materialman's lien is recorded against the
premises or any building or improvements on the premises, LESSEE shall either cause the same to
be removed or, if LESSEE, in good faith, desires to contest the lien, take timely action to do so, at
LESSEE's sole expense. If LESSEE contests the lien, LESSEE agrees to indemnifY LESSOR and
hold LESSOR harmless from all liability for damages occasioned by the lien or the lien contest and
Lease A~reement - Page 6
shall, in the event of a judgment or foreclosure on the lien, cause the lien to be discharged and
removed prior to execution of the judgment.
17. That, at all times during the term of the Lease, LESSEE shall keep all buildings and
other improvements located or being constructed on the premises insured against loss by damage by
fire, with extended coverage endorsement of its equivalent. This insurance shall be carried by
insurance companies authorized to transact business in Texas, selected by LESSEE and approved
by LESSOR whose approval shall not be unseasonably withheld. The insurance shall be paid for
my LESSEE and shall be in amounts not less than the full amount of the insurable value of the
buildings and other improvements. Such policy or policies of insurance shall name LESSOR and
LESSEE as named insured.
18. That LESSEE agrees to obtain and maintain construction liability insurance at all
times when demolition, excavation, or construction work is in progress on the premises. This
insurance shall be carried by insurance companies authorized to transact business in the state of
Texas, selected by LESSEE and approved by LESSOR, and shall be paid for my LESSEE. This
insurance shall have limits of not less than $100,000 for property damage and $250,000 for one
person and $500,000 for one accident for personal injury and shall protect LESSOR and LESSEE,
as well as any other person or person LESSEE may designate, against all liability for injury or
damage to any person or property in any way arising out of demolition, excavation, or construction
work on the premises.
19. That LESSEE agrees to indemnify, save, keep and hold harmless LESSOR from and
against any and all demands, debts, liabilities, suits, claims and causes of action of every kind and
character whatsoever for damage or injuries to persons and/or property occurring on the leased
Lease Ae:reement - Page 7
premises resulting from LESSEE's, LESSEE's invitees, agents, servants or employee's use, and
LESSOR shall not be liable to LESSEE, LESSEE's invitees, agents, servants, employees or visitors
due to the improvements located thereon, or hereafter constructed, or any other condition of the
premises being improperly constructed, maintained or being or becoming out of repair; LESSEE
hereby waives any defects therein and agree to hold and save LESSOR harmless from all claims for
any such damages or injuries, and LESSEE must, at all times during the term of this Lease, and any
extensions hereof, keep and maintain, in full force and effect, a policy or policies of insurance,
providing at least $500,000.00 per person and $500,000.00 for any single occurrence for bodily
injury or death and $500,000.00 for any single occurrence for injury to or destruction of property,
indemnifying all persons for any and all damages, personal injuries or property damages sustained
in or upon the premises of said leased property, or any part thereof, as the result of the negligence
of LESSEE, LESSEE's invitees, agents, servants or employees, and shall pay all premiums due
thereon when due.
20. With regard to all insurance required under this Lease, it is expressly provided that
such insurance policy or policies shall and must be written and issued by a reputable insurance
company or companies, with LESSOR as an additional insured, subject to approval by the City
Attorney of the City of Paris, and LESSEE or LESSEE's insurance carrier or carriers shall deliver
a copy of any such policies to the City Clerk of the City of Paris, 150 1st Street S.E., Paris, Texas
75460, or furnish to said City Clerk a current letter or certificate from such company or companies,
evidencing the fact that such insurance is in full force and effect at all times during this Lease, and
any extension hereof, and specifically noting thereon that LESSOR is an additional insured. All such
policies shall be written so that the LESSOR will be notified of cancellation or of any restrictive
Lease Ae:reement - Page 8
amendment of the policies at least thirty (30) days prior to the effective date of such cancellation or
amendment. Notice shall be by certified mail, return receipt requested, addressed to the LESSOR
at the following address: City Clerk, City of Paris, P. O. Box 9037, Paris, Texas 75461-9037. That
LESSEE agrees that if LESSEE does not keep all insurance required under this Lease in full force
and effect, LESSOR may declare this Lease, and all rights and interest created by it, to be terminated,
notwithstanding the provisions of paragraph 28 of this Lease.
21. LESSEE shall not rent the premises, or any part thereof, for aircraft storage unless
a permit under Article II, Chapter 6 of the Code of Ordinances of the City of Paris, has been issued
to LESSEE for that specific purpose.
22. That LESSEE shall not use, or permit the use of, said premises, or any part thereof,
for any purpose which would interfere with landing or taking off of aircraft at the airport, or which
is determined dangerous or hazardous to the airport operation by the Airport Manager. This includes
interference from such items as electrical or electronic equipment, creation of smoke or dust or
glaring or misleading lights.
23. That all runways and airport facilities shall be open to the general traveling public for
the landing and operating of aircraft therefrom without hindrance or interference on the part of
LESSEE.
24. That the LESSEE has the non-exclusive right to use, in common with others, all
public airport facilities and improvements of a public nature, including, but not limited to, landing,
taxiing, parking areas, and other common-use facilities.
25. That the LESSOR has the right to take any action it considers necessary to protect the
aerial approaches of the airport against obstruction, together with the right to prevent LESSEE from
Lease Aereement - Page 9
erecting, or permitting to be erected, any building or other structure on the airport which, in the
opinion of the LESSOR, would limit the usefulness of the airport or constitute a hazard to aircraft.
26. That LESSEE shall pay and discharge all taxes, general and special assessments, and
other charges of every description which are levied on or assessed against the leased premises and
all interests in the leased premises and all improvements and other property on the lease premises
during the term of this Lease, whether belonging to LESSOR or to LESSEE. LESSEE shall pay all
such taxes, charges, and assessments directly to the public officer charged with their collection not
less than fifteen (15) days before the same shall become delinquent, LESSEE shall have the right in
good faith at its own sole cost and expense to contest any such taxes, charges, and assessments, and
shall be obligated to pay the contested amount, plus any penalties and interest imposed, only if and
when finally determined to be due. At any time that the payment of any item of taxes, special
assessments, or governmental charges which LESSEE is obligated to pay under the provisions ofthis
paragraph remain unpaid and contested later than fifteen (15) days before the same shall become
delinquent, LESSOR may declare this LEASE, and all rights and interest created by it, to be
terminated, pursuant to the provisions of paragraph 28 hereof.
27. That the LESSEE shall provide duly licensed aircraft engme and accessory
maintenance at Cox Field throughout the term of this Lease, or any extension hereof, and this Lease
is specifically conditioned upon such service being provided by LESSEE; in the event that said
service terminates or is inadequate, then LESSEE shall be in material default of this Lease and
subject to all remedies available to LESSOR for such default.
28. Should LESSEE default in, or fail or refuse to keep any ofthe covenants, conditions,
stipulations and/or provisions herein contained, notice hereof shall be given in writing to LESSEE
Lease Aereement - Page 10
by LESSOR's Airport Manager, giving LESSEE thirty (30) days to correct such discrepancy, and,
in the event such default, failure or refusal is not corrected within said thirty (30) day period, a
second notice, in writing, by certified mail, affording a hearing before the Airport Advisory Board,
on a day certain, shall be given to LESSEE by LESSOR's Airport Manager. After affording LESSEE
such hearing, the Airport Advisory Board shall recommend to the City Council that the Lease
continue or be terminated, and thereafter the City Council shall take such action as it deems
necessary.
29. That the LESSOR has the right to temporarily close the airport or any of the facilities
thereon for maintenance, improvements, or for the safety of the public.
30. That the LESSOR may, at its option, terminate this Lease as to the entire hangar
building, or any part thereof, which may be necessary, in the event the LESSOR desires to use the
property, or any portion thereof, for necessary municipal functions, such as extension of runways or
erection of other airport facilities. In the event of either of the above contingencies, the LESSOR
shall give the LESSEE ninety (90) days notice, in writing, of its intention to so utilize the building,
or any portion thereof, for the above specified purposes. In the event this option is exercised by the
LESSOR, LESSEE shall be paid, as LESSEE's sole consideration, the fair market value of
improvements previously made by LESSEE to the premises and authorized by LESSOR, said fair
market value to be determined as of the time the LESSOR exercises the right of termination as
provided in this paragraph. In no event shall LESSOR be liable for a claim of lost profits, lost
benefit, or other similar claims as a result of termination under this paragraph.
31. During time of war or national emergency, LESSOR shall have the right to lease the
landing areas or any part thereof to the United States Government for military or naval use, and, if
Lease Aereement - Page 11
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.
32. That the waiver by LESSOR of any breach by LESSEE of the terms, covenants,
conditions, or provisions of this Lease shall not be deemed to be a waiver of any other breach of the
same or other term, covenant, condition, or provision of this Lease, regardless of when the breach
has occurred.
33. That, in the event of termination of this Lease by LESSOR, LESSOR shall be entitled
to the immediate possession of the premises. LESSEE agrees that it will not interfere with
LESSOR's possession ofthe premises in any way if LESSOR takes possession under this paragraph.
34. That, in case anyone or more of the provisions contained in this Lease shall, for any
reason, be held by a Court of competent jurisdiction to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the
Lease, and this Lease shall be construed as if the invalid, illegal, or unenforceable provision had
never been included in the agreement.
35. That this Lease constitutes the sole and only agreement ofthe parties to this Lease
and supercedes any prior understandings or written or oral agreements between the parties respecting
the subject matter of this Lease.
36. That no amendment, modification, or alteration of this terms of this Lease shall be
binding unless it is in writing, dated subsequent to the date of this Lease, and duly executed by the
parties of this Lease.
37. That the rights and remedies provided by the Lease are cumulative, and the use of any
one right or remedy by LESSOR shall not preclude or waive its right to use any or all other remedies.
Lease A2reement - Page 12
These rights and remedies are given in addition to any other rights the LESSOR may have by law,
statute, ordinance, or otherwise.
38. That if, as a result of a breach of this Lease by LESSEE, LESSOR employs an
attorney or attorneys to enforce its rights under this Lease, then LESSEE agrees to pay LESSOR's
reasonable attorney's fees and costs incurred to enforce the Lease.
39. All notices required under this Lease must be given by certified mail or registered
mail, addressed to the proper party, at the following addresses:
LESSOR
City Manager
City of Paris
P. O. Box 9037
Paris, TX 75461-9037
LESSEE
Jimmy D. Smyers
P. O. Box 95
Powderly, TX 75473
Either party may change the address to which notices are to be sent by giving the other party
notice of the new address in the manner provided in this paragraph.
40. That this Lease shall be binding upon, and inure to the benefit of, the respective heirs,
executors, administrators, legal representatives, successors, and assigns when permitted by this
Lease.
41. That this Lease shall be construed under, and in accordance with, the laws of the State
of Texas, and all obligations of the parties created by this Lease are performable in Lamar County,
Texas. Venue for State court actions arising under this Lease shall be exclusively in the courts of
Lamar County, Texas; venue for federal court actions arising under this Lease shall be exclusively
in the federal courts for the Eastern District of Texas.
Lease Aereement - Page 13
EXECUTED ON the dates shown in acknowledgments below.
CITY OF PARIS, LESSOR:
By:
Michael E. Malone, City Manager
ATTEST:
Mattie Cunningham, City Clerk
APPROVED AS TO FORM:
Larry W. Schenk, City Attorney
LESSEE
Jimmy D. Smyers
STATE OF TEXAS )
)
COUNTY OF LAMAR )
BEFORE ME, the undersigned authority, on this day personally appeared MICHAEL E.
MALONE, City Manager of the City of Paris, Paris, Texas, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same
for the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 26th day of March, 2001.
Notary Public, State of Texas
Lease Aereement - Page 14
STATE OF TEXAS )
)
COUNTY OF LAMAR )
BEFORE ME, the undersigned authority, on this day personally appeared JIMMY D.
SMYERS, known to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he/she executed the same for the purposes and consideration therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _ day of
,2001.
Notary Public, State of Texas
Lease Aereement - Page 15
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EXHIBIT A