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2012-046 RES APPROVING NEW LEASE AGREEMENT BETWEEN COP AND CAREY EATHERLY FOR 698.9 ACRES OF LAND AT COX FIELD AIRPORTRESOLUTION NO. 2012-046 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, APPROVING A NEW LEASE AGREEMENT BETWEEN THE CITY OF PARIS, TEXAS AND CAREY EATHERLY FOR 698.9 ACRES OF LAND AT COX FIELD AIRPORT IN THE CITY OF PARIS, LAMAR COUNTY TEXAS; AUTHORIZING THE MAYOR TO NEGOTIATE AND EXECUTE ALL NECESSARY DOCUMENTS; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Carey Eatherly an individual desires to enter into a new Lease Agreement with the City of Paris for 698.9 acres of land at Cox Field Airport in the City of Paris, Lamar County Texas; and, WHEREAS, the City Council of the City of Paris hereby finds that it is in the best interest of the City of Paris and its citizens to enter into a new Lease Agreement and does hereby authorize the Mayor to execute all documents necessary to effectuate the Lease Agreement with Carey Eatherly, for the 698.9 acres of land identified in the Lease Agreement attached hereto and incorporated herein as Exhibit "A"; and, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, THAT: Section 1. The findings set out in the preamble to this resolution are hereby in all things approved. Section 2. The new Lease Agreement between the City of Paris and Carey Eatherly, a copy of which is attached hereto as Exhibit "A," be, and the same is hereby approved. Section 3. The Mayor of the City of Paris be, and is hereby authorized to execute said lease agreement and any and all other documents necessary to effectuate the lease agreement. Section 4. This resolution shall be effective immediately upon passage. DULY PASSED AND APPROVED this 23rd ATTEST: , , Toon a ice Ellis, City Clerk APPROVED AS TO FORM: W. Kent McI yar, City ttorney LEASE AGREEMENT STATE OF TEXAS § § COUNTY OF LAMAR § This Lease Agreement is made and entered into by and between the City of Paris, Texas, a home-rule municipal corporation (hereinafter "LESSOR") and Carey Eatherly and Ryan Eatherly 1825 N. Collegiate Drive, Paris, Texas 75462, (hereinafter collectively "LESSEE"). RECITALS WHEREAS, LESSOR is the owner of approximately 1552 acres of land in the southeast quadrant of the City of Paris near US 271 and FM 1508, Paris, Lamar County, Texas (hereinafter the "Airport Property") WHEREAS, LESSEE has leased a 698.9 acre tract out of the Airport Property from the City of Paris far livestock grazing for the last 20 years ("Leased Property"); and WHEREAS, The renewal options under the original lease agreement between LESSOR and LESSEE have expired and the Parties mutually desire to enter into a new lease agreement. NOW, THEREFORE, in consideration of the rents to be paid in accordance with this agreement, the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged the LESSOR and LESSEE agree as follows: 1. DEFINITIONS Sec. 1.1. Airport Property. Approximately 1552.97 acres located in the southeast quadrant of the City of Paris, Lamar County, Texas which was conveyed to the City by the United States of America following World War II. Page 1 of 11 t~'' 611 ~ ' 1 i ^ i 1"~ Sec. 1.2. Leased Property. Approximately 698.9 acres of land out of the Airport Property in the City of Paris, Lamar County, Texas as further depicted in the Aerial Map of the Airport Property Exhibit "A" attached hereto and incorporated herein by reference. Sec. 1.3. LESSOR. The City of Paris, Texas a home-rule municipal corporation and body politic incorporated under the laws of the State of Texas. Sec. 1.4. LESSEE Carey Eatherly and Ryan Eatherly, 1825 N. Collegiate Drive, Paris, Texas 75462. Sec. 1.5. Premises. Approximately 698.9 acres of land out of the Airport Property in the City of Paris, Lamar County, Texas as further depicted in the Aerial Map of the Airport Property Exhibit "A" attached hereto and incorporated herein by reference. 2. LEASE Sec. 2.1. In consideration of the annual rental payment hereinafter provided in Section 4.1, and other good and valuable consideration provided herein, LESSOR does hereby agree to lease demise and let unto LESSEE the Premises described in Exhibit "A" attached hereto for livestock grazmg. 3. TERM Sec. 3.1 The initial term of this Lease shall be for a period of twenty (20) years beginning on May 15, 2012 and ending on May 14, 2032. Within twelve (12) months prior to the expiration of the initial term of this Lease, the parties to this agreement may mutually agree to renew and extend this Lease for an additional ten (10) year term. 4. RENT Sec. 41 LESSEE agrees to pay LESSOR as rent for the premises described in this Lease Agreement TEN THOUSAND FOUR HUNDRED EIGHTY THREE DOLLARS AND Page 2 of 11 501100 DOLLARS ($10,483.50) per year with the first rental payment being due on or before May 15, 2012 and subsequent rental payrnents being due and payable on the anniversary date of the lease agreement each year during the term of this agreement or any extensions thereof. Lease payments shall be made timely to the City of Paris Finance Department, 135 1 s` St. SE, Paris, Texas 75460. Sec. 4.2 As further consideration for this Lease Agreement, LESSEE shall expend no less than $3,494.00 each year toward replacement of the existing perimeter fence surrounding the Leased Property. LESSEE will remove and properly dispose of old fence and replace it with new 5-wire all metal barbed wire fencing and posts. LESSEE shall provide annual reports to LESSOR on or before the anniversary date of this Lease Agreement detailing the section of perimeter fence that has been replaced and providing a summary of improvements made and receipts for materials used. LESSEE shall obtain necessary permits for fence repair from the City Building Official prior to commencing work on this project. Sec. 4.3 Upon completion of the perimeter fence replacement, the rent due under this Lease Agreement shall automatically increase from $15.00 dollars per acre to $20.00 per acre for the Leased Premises for the remainder of the lease term. 5. TERMINATION FOR CONVENIENCE Sec. 51. LESSOR may at its option terminate this lease as to the entire Premises, or any part thereof, which may be necessary, in the event LESSOR desires to use the Premises, or any portion thereof, far airport expansion, such as an extension of runways or taxiways or the development of other airport facilities. LESSOR may also terminate this lease, at its option, or any part thereof should LESSOR decide to develop or sell any or part of the Leased Premises for residential, commercial, ore residential development In the event of either of the above contingencies the Page 3 of 11 City shall give LESSEE ninety (90) days notice in writing of its intention to terminate the Lease and to utilize the Premises, or any portion thereof, for the above specified purposes. In the event LESSOR terminates the Lease Agreement as to the entire Premises, the unearned portion of that year's rental payment shall be refunded to LESSEE. Should Lessar terminate the Lease Agreement only as to a portion of the Leased Premises, that year's annual rental shall be reduced on a pro rata basis at the rate of $15.00 per acre. 6. DEFAULT AND TERMINATION FOR CAUSE Sec. 61. Should LESSEE fail to comply with any of the covenants, conditions, stipulations and/or provisions of this Lease, LESSOR shall give LESSEE written notice of default and LESSEE shall have thirty (30) days to correct the default or LESSOR may terminate this Lease Agreement for cause. 7. RESERVATION OF AIR SPACE Sec. 71. LESSOR, its successors and assigns hereby reserves for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Premises herein described. This public right of flight shall include the right to cause in said airspace any noise inherent in the operation of aircraft, now known or hereafter used for navigation or flight through the said airspace or landing at, taking off from or operation on the Cox Field Airport. Sec.7.2. LESSEE expressly agrees for itself, its successors and assigns to prohibit the erection of structures or allow the growth of natural objects that would constitute an obstruction to air navigation, unless review by TxDOT and FAA determines an exception. Sec. 7.3 LESSEE expressly agrees for itself, its successors and assigns to prevent any use of or activity on the real property herein described ("Premises") that would interfere with or be a hazard Page 4 of 11 to the flight of aircraft over the land to and from the airport, operation of aircraft on the airport, or interfere with air navigation communication facilities serving the airport. 8. OTHER TERMS AND COVENANTS Sec. 8.1. This Lease Agreement is subject to all terms, provisions and conditions of the Deed of Conveyance covering the Airport Property from the United States of America to the City of Paris, Texas recorded in Book 308, Page 287, Deed Records of Lamar County, Texas, to which reference is made for all purposes. Sec. 8.2. LESSEE shall abide and comply with all rules, regulations, ordinances and laws pertaining to the use of the airport property located at Cox Air Field, Paris, Texas, including but not limited to the 2011 Cox Field Airport Master Plan, Federal Aviation Administration rules and regulations and other applicable Federal, State and local laws and regulations. Sec. 8.3 LESSEE may use the Premises for livestock grazing and for cutting and bailing hay. Sec.8.4 LESSEE shall manage the Leased Premises for livestock grazing purposes in accordance with the terms of this Agreement and in compliance with applicable federal, state and local laws and regulations. LESSEE shall maintain the premises so that there is no interference or conflict with City Airport operations. Sec. 8.5. LESSEE shall keep the Premises free of debris, trash and litter and LESSEE shall not store equipment or construct or install barns, sheds or other structures within the runway protection zones as designated in the Airport Master Plan. Sec. 8.6. If during the term of this Lease Agreement, LESSEE desires to build at its own expense a barn, shed or other structure on the Premises, LESSEE must first file the requisite plats, plans or diagrams for the proposed structure with LESSOR for review and/or approval by the Director of Page 5 of 11 Engineering, Planning and Community Development, the Airport Advisory Board, and by the Paris City Council as required by City ordinance. Sec. 8.7. LESSEE shall be responsible for maintaining, repairing and/or replacing all fences, gates and other structures located on the Premises throughout the term of the Lease and any extensions thereof. Sec. 8.8 LESSEE will take good care of the Premises and be responsible and make good to LESSOR for all injuries and damages to the same caused by LESSEE or those under it and will return same to LESSOR at the expiration or termination of this Lease in as good condition as when received, usual wear and tear alone excepted; and the LESSEE will at the termination or expiration of this lease, peaceably yield up to LESSOR all and singular the Premises and all improvements, additions or repairs to or upon same in good repair, including but not limited to structures, equipment and fences owned by the City of Paris and fences acquired or erected by LESSEE during the Lease term. Sec. 8.9. All additions or improvements made to the said Premises by LESSEE, or at its 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 that in those instances wherein it is specifically provided for ownership to remain with LESSEE. Sec 810. LESSOR reserves the right of all concessions and the right to park aircraft along the taxiways and runways on the Premises in the event of an air show or fly-in sponsored by the City of Paris, the Lamar County Chamber of Commerce, Paris Economic Development Corporation, Visitors & Conventions Council or such other agency or affiliate of LESSOR. Sec 8.1 L LESSEE, its successors and/or assigns, agree that in the event facilities are constructed, maintained or otherwise operated on the Premises for a purpose for which a Department of Page 6 of 11 Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, that 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. Sec. 8.12. LESSEE, its successors or assigns, agrees that (1) no person on the grounds of race, color, disability, gender or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, disability, gender, or national origin shall be excluded from participation or denied the benefits of, or otherwise be subjected to discrimination, (3) that LESSEE shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. Sec. 8.13. Throughout the term of this Lease and any extensions thereof, LESSOR, its designated agents or employees, may enter upon and into the Leased Premises and every part thereof for the purpose of inspecting and eXamining the condition thereof. Sec. 8.14. LESSEE shall not assign this Lease or sublet the Leased Premises or any part thereof without first obtaining prior written consent from the City Manager of the City of Paris, Texas authorized by lawful Resolution of the Paris City Council. Page 7 of 11 Sec. 8.15. LESSEE agrees to release, defend, indemnify, and hold LESSOR, its selected officials, officers and employees harmless 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 Premises resulting from LESSEE, its invitees, agents, servants or employees' use, and LESSOR shall not be liable to LESSEE, its 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 waiving any defects in the Premises and agrees 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 agreement, and any extensions thereof, keep and maintain in full force and effect a policy or policies of insurance, providing at least $250,000.00 per occurrence and $500,000.00 aggregate for any single occurrence of bodily injury or death and any single occurrence for injury to or destruction of property, indemnifying LESSOR, it's elected officials, officers and employees for any and all damages, personal injuries or property damages sustained in or upon the Premises, or any part thereof, as the result of the negligence of LESSEE, its invitees, agents, servants or employees, and LESSEE shall pay all insurance premiums when due. It is expressly provided that such insurance policy ar policies shall and must be written and insured by a reputable insurance company or companies, licensed to write insurance policies in the State of Texas, and LESSEE or its insurance carrier or carriers shall deliver a copy of any such policies to the City Clerk of the City of Paris, 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 thereof. Page8of11 Sec. 8.16. Notice. Any written notice required or permitted under the terms of this Lease Agreement shall be given and be deemed to have been duly served if either (1) delivered in person, or (2) deposited certified mail, return receipt requested, postage prepaid in the United States mail, addressed to the designated representative of the respective parties which are designated as follows: LESSOR: City Manager P.O. Box 9037 Paris, Texas 75461-9037 LESSEE: Carey Eatherly and Ryan Eatherly 1825 N. Collegiate Drive Paris, Texas 75462 WITH A COPY TO: City Attorney City of Paris P.O. Box 9037 Paris, TX 75461 Sec. 817. Sole Agreement. That this Lease constitutes the sole and only agreement of the parties to this Lease and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this Lease. Sec. 8.18. Amendmerzts. That no amendment, modification, or alteration of the 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 to this Lease. Sec. 8.19. Non-Waiver. No waiver of the either party's rights under this Lease shall be deemed to have been made unless expressed in writing and signed by an authorized representative of that P arty. Sec. 8.20. Governing Law. That this Lease Agreement 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 Agreement are performable in Lamar County, Texas. Venue for State court actions arising under this Agreement shall be exclusively in the courts of Lamar County, Texas; venue for federal court actions arising under this Agreement shall be exclusively in the Federal courts for the Eastern District of Texas. Sec. 8.21. Successors. This Lease Agreement shall be binding upon the successors and assigns of the parties hereto. Page 9 of 11 EXECUTED on the dates shown in acknowledgments below. ATTEST: Janice Ellis, City C1erk APPROVED AS TO FORM: W. Kent McIlyar, City Attorney LESSOR: The City of Paris, Texas By: LESSEE: John Godwin, City Manager BY: Carey Eatherly BY: Ryan Eatherly Page 10 of 11 ACKNOWLEDGEMENTS STATE OF TEXAS § § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, on this day personally appeared John Godwin, City Manager of the City of 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. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2012. Notary Public, State of Texas STATE OF TEXAS § § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, on this day personally appeared known to ine to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2012. Notary Public, State of Texas STATE OF TEXAS § § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2012. Notary Public, State of Texas Page 11 of 11