HomeMy WebLinkAboutO-2002-2556
REQUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested:
Appropriation
Requested By: S. Gillett
Source of Funds:
Department:
Account Number:
Report:
Resolution:
Ordinance: XX
Amount Budgeted:
Exhibits:
Ordinance
Amount Requested:
Exhibits:
Tri-Pa A eement
Budgeted Item: YES NO
/'
Exhibits:
SUMMARY & RECOMMENDATION
The City of La Porte has a lease agreement with D.E. Aviation (Lessee), dated January 1, 1997,
and amended February 11,2002. The Amendment allows the construction of three (3) T-hangers
on the Designated Use Area in the northwest corner of the Airport.
The Lessee is financing the construction through 1 st Choice Bank of South Houston. In order to
protect the interests of the Lessee, the City and the bank, a Lease and Rental Agreement and
Security Agreement has been drafted. The Agreement protects the City, as well as 1 st Choice
Bank of South Houston, in the event ofa default on the part of the lessee. The Bank's remedy,
in the event of default, is to take over the lease, and reassign the lease to another operator
acceptable to the City.
~/;foR. .7k lt~d,0 fl/~eI ,4p-zflc
CJ~2'( /J-e.c~e u:;>e.- ~ w~ dH0
OP"- I'~"';' ,.&'" d) vi b..).{ ~;J/Ul'-CJ
AM ~tP~ rz/;1. :Z:r~Jj')~~
/J r f1p.>I?
Action Required bv Council: Approve an Ordinance authorizing the City Manager to execute a Lease
and Rental Agreement and Security Agreement between the City of La Porte, D.E. Aviation and 1st
Choice Bank of South Houston.
Approved for City Council A!!enda
Q~ I' \~
Robert T. Herrera, City Manager
s- ) c. . 0 <-
Date
J. L. JAY
ATrORNEY AT LAW
8121 Broadway, Suite 100
Houston, Texas 77061-1341
(713) 645-9595
May 14, 2002
Knox W. Askins
Attorney at Law
P. O. Box 1218
La Porte, Texas 77572-118
RE: Loan by 1st Choice Bank of South Houston, Texas
D. E. Aviation, Inc.
Dear Mr. Askins:
Enclosed are three (3) duplicate Originals executed by the Assignor and the
Assignee.
Sincerely,
~%;
J. .Jay \
Attorney at Law
JLJ/mr
Enclosure( s)
ORDINANCE NO. 2002- ~5S l,
AN ORDINANCE APPROVING AND AUTHORIZING THAT CERTAIN LEASE AND
RENTAL ASSIGNMENT AND SECURITY AGREEMENT, BY AND AMONG D. E.
AVIATION, INC., 1ST CHOICE BANK, SOUTH HOUSTON, TEXAS, AND THE CITY
OF LA PORTE, MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE
SUBJECT, FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW, AND
PROVIDING AN EFFECTIVE DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1. The City Council hereby approves and authorizes
the contract, agreement, or other undertaking described in the
title of this ordinance, in substantially the form as shown in the
document which is attached hereto and incorporated herein by this
reference. The City Manager is hereby authorized to execute such
document and all related documents on behalf of the City of La
Porte. The City Secretary is hereby authorized to attest to all
such signatures and to affix the seal of the City to all such
documents.
Section 2.
The City Council officially finds, determines,
recites, and declares that a sufficient written notice of the date,
hour, place and subject of this meeting of the City Council was
posted at a place convenient to the public at the City Hall of the
City for the time required by law preceding this meeting, as
required by the Open Meetings Law, Chapter 551, Texas Government
Code; and that this meeting has been open to the pUblic as required
by law at all times during which this ordinance and the subject
matter thereof has been discussed, considered and formally acted
upon.
The City Council further ratifies, approves and confirms
such written notice and the contents and posting thereof.
Section 3. This Ordinance shall be effective from and after
its passage and approval, and it is so ordered.
ORD INANCE NO. 2002 - a-S S'v
PASSED AND APPROVED, this l~day of ~,
ATTEST:
~1[4I1fL1'
City Secretary
"
CITY OF LA PORTE
By: .~;r ,~,,gLi!'T.11"'.
Norman L. Malone
Mayor
PAGE 2
2002.
LEASE AND RENTAL ASSIGNMENT
AND SECURITY AGREEMENT
STATE OF TEXAS *
* KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS *
That the D. E. AVIATION, INC., A TEXAS BUSINESS CORPORATION of
Harris County, Texas, herein called "Assignor" (whether one or more), for a valuable
consideration paid by 1 st Choice Bank, South Houston, 3100 South Shaver, South
Houston, Harris County, Texas, 77587, hereinafter called "Assignee", the receipt and
sufficiency of which is hereby acknowledged, and for the purpose of further securing
Assignee in the payment of that certain indebtedness evidenced by that one certain
promissory note in the original principal sum of $637,500.00 dated May , 2002,
executed by D. E. AVIATION, INC. and payable to the order of 1 st Choice Bank, South
Houston, Texas, covering improvements located on property located in the City of La
Porte, Harris County, Texas, described in the Lease Agreement attached and marked as
Exhibit "Lease", does hereby assign and transfer unto Assignee and grant to Assignee a
security interest in all leases and rental contracts which have been and may hereafter be
executed covering all or any part of said property, together with all rentals and income
accruing therefrom, and particularly the following described lease or leases which
constitute all the leases covering said property that are now in full force and effect, to wit:
The Lease Agreement Marked as Exhibit "Lease" and attached hereto.
Assignor warrants, represents and agrees that:
1. Said Lease is valid and in full force and effect according to its terms; that
no change, modification or amendment thereof has been made; that no prior assignment
thereof has been made and that no assignment of any of the rental and income from the
above described lease has been made; and that no financing statement covering said lease
or leases or the property described is on file in any public office.
2. Assignor shall not, without the prior written consent of Assignee, make or
agree to change, modification or amendment in or termination of the lease covering the
said property, shall not exercise any option if any be in said lease to take action to forfeit
the same.
3. Assignor shall (a) perform all of the obligations and duties of Lessee under
the lease covered hereby; (b) promptly inform Assignee in writing of notice received
from the Lessor with respect to any obligation under the lease or of any default or
claimed default by any party to the lease; and (c) keep accurate books, records and
accounts with respect to the lease and make them available to the Assignee at its request
for examination and inspection.
This Assignment of Lease is especially made SUBJECT to Article X of said
Lease Agreement. The City of La Porte by its consent to this Assignment of Lease for
financing purposes by Assignor, expressly reserves all its rights as Lessor, contained in
said Lease Agreement, and particularly Article X thereof, including, but not limited to,
the right of the City of La Porte to give prior written approval to any substitute lessee.
As often and whenever a default occurs in the payment of the above described
Promissory Note, or in the performance of any covenant contained in the Loan
Agreement between Assignor and Assignee and as long as any such default continues,
Assignee is hereby authorized to take possession of the premises covered by such Lease,
and may exercise by prior written consent of Lessor, all other rights of the Lessee under
the terms of such Lease Agreement. Assignee shall have the right at any time that such
default exists, to make and enter into agreements with Lessee's tenants, increasing or
reducing rentals or otherwise changing the terms of such sub-lease contracts, and under
such circumstances may enter into new sub-leases and rental contracts in the name of
Assignor or otherwise, on such terms and containing any covenants and agreements as
Assignee may deem advisable.
Assignor further agrees to inform Assignee promptly in writing of notice received
from the City of La Porte with respect to any obligation or default under said lease(s).
Assignor also agrees to perform all obligations binding on Lessee under its said lease(s)
with the City of La Porte.
The City of La Porte, acting herein by its duly authorized representatives, joins in
the execution hereof for the limited purpose of evidencing its consent to this Assignment
of Lease for finance purposes by Assignor to Assignee. Such consent by the City of La
Porte shall not be construed as a waiver of the performance of D. E. Aviation, Inc., as
Lessee under said Lease Agreement. The City of La Porte agrees, that in the event of
default by Assignor herein in its obligations under said lease agreement with the City of
La Porte, that Assignee shall have the right, with the prior express written consent of the
City of La Porte, to assign the lease agreement between the City of La Porte and
Assignor, to a qualified aircraft fixed base operator. In the event of such assignment, all
provisions of the Lease Agreement between the City of La Porte and Assignor, applicable
to the Lessee thereunder, shall be equally binding upon any party to which the activities,
uses, privileges and obligations authorized in said Lease Agreement, are assigned, by
Assignee hereunder. The City of La Porte will not be unnecessarily arbitrary in granting
said permission, but the City of La Porte shall be the sole judge as to the reliability,
capability, character, and desirability of the parties involved. The consent of the City of
La Porte evidenced hereby shall not be construed as a subordination or waiver and
relinquishment by the City of La Porte of its right of levy for rents and all liens, claims
and demands of every kind which it may have against all building and contents on the
lease premises, under the constitution and laws of the State of Texas, and under the terms
and provisions of its Lease Agreement with D. E. Aviation Inc., dated January 1, 1997 as
amended February 1,2002.
Assignee shall have the additional right and authority in the event of default as
aforesaid, but shall not be obligated to:
1. Make and enter into agreement with Lessor and other users of the
premises, including the specific right to assign the rights of Assignee herein to another.
2. Sue for the balance due on the Note hereby secured, for possession of the
premises, and all appropriate rights and remedies in connection therewith.
Assignor specifically agrees that the Note hereby secured may be from time to
time, renewed, extended, modified or rearranged, and this assignment shall not in any
manner be effected by such action.
This assignment shall be binding upon and shall inure to the benefit of the legal
representatives, heir, successors, and assigns, respectively, of the Assignor and Assignee;
and shall terminate and become null and void upon full and final payment of the Note
secured by this assignment and referred to herein.
EXECUTED this /1-M day of May 2002.
D. E. AVIATION, INC.
ATTEST:
secr~
1 ST CHOICE BANK, SOUTH HOUSTON,
TEXAS
By:
~
CITY OF LA PORTE
By: G?J~ T~ l~
ROBERT T. HERRERA, City Manager
ATTEST:
~,rLUb< a, f{wj
City ecretary
COUNTY OF HARRIS
s
s
s
THE STATE OF TEXAS
BEFORE ME, the undersigned authority on this day personally appeared
DEBORAH 1. RIHN-HARVEY, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that she executed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the JS]]: day of
f\"\ ~,' ' 2002.
....\\"~tI~!#,
\ /.R~~
.;~;t~..;j
,~,~;;,.!?~.,~~"""
MARY ANN HARRISON
MY COMMISSION EXPIRES
March 5, 2005
COUNTY OF HARRIS
s
s
s
THE STATE OF TEXAS
BEFORE ME, the undersigned authority on this day personally appeared GERRY
E. MONZINGO, President, 18t Choice Bank, known to me to be the person whose name
is subscribed to the foregoing instrument, and acknowledged to me that he executed the
same in the capacity therein stated, and for the purposes and considerations therein
expressed.
COUNTY OF HARRIS
s
s
s
THE STATE OF TEXAS
BEFORE ME, the undersigned authority on this day personally appeared
ROBERT T. HERRERA, City Manager of the City of La Porte, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he executed the same in the capacity therein stated, and for the purposes and
considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ~ day of
[V1a. \.1 , 2002.
{
AFTER RECORDING RETURN TO:
e
MELlSA LANCLOS
Notary Public. State of T eX3S
My Commission Expires
JAN 10.2005
1 ST CHOICE BANK
GERRY E. MONZINGO, PRESIDENT
3100 SOUTH SHAVER
SOUTH HOUSTON, TEXAS 77587
~%",:~'1::
ASKINS & ARMSTRONG, P. C.
ATTORNEYS AT LAW
702 W. FAIRMONT PARKWAY
P.O. BOX 121B
LA PORTE, TEXAS 77572-1218
KNOX W. ASKINS
..JOHN D. ARMSTRONG
TELEPHONE 281 471-1886
TELECOPIER 281 471-2047
CHARLES R. HUBER. ..JR.
BOARD CERTIFIED. CIVIL TRIAL LAW
TEXAS BOARD OF LEGAL SPECIALIZATION
CLARK T. ASKINS
May 13, 2002
RECEIVED
Mr. J. L. Jay .
Attorney ~tLaw
8121 B~dway, Suite 100
Hou~n, TX 77061-1341
v~ fax no. 713-645-1117
,.
MAY 14 2002
CITY SECRETARY'S
OFFICE
Re: Loan by 1st Choice Bank of South Houston, Texas
D.E. Aviation, Inc.
Dear Mr. Jay:
Thank you for your letter of May 13, 2002. I have one suggestion,
and that is that you add at the bottom of page 2, after "dated
January 1, 1997" the following: ", as amended February 1, 2002."
Please have several duplicate originals signed by the assignor and
the assignee, and I will move forward to have this matter placed on
the City Council agenda for Monday, May 20, 2002.
//t'/\
(~ox W. Askins
City Attorney
City of La Porte
_.~.,.
KWA: sw
Enclosure
cc: Mr. Steve Gillett
Airport Manager
City of La Porte
Ms. Martha Gillett
C,ity Secretary
VCity of La Porte
LEASE AND RENTAL ASSIGNMENT
AND SECURITY AGREEMENT
DRAFT
STATE OF TEXAS *
* KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS *
That the D. E. AVIATION, INC., A TEXAS BUSINESS CORPORATION of
Harris County. Texas, herein called "Assignor" (whether one or more), for a valuable
consideration paid by lit Choice Bank, South Houston, 3100 South Shaver, South
Houston, Hanis County, Texas, 77587, hereinafter called "Assignee". the receipt and
sufficiency of which is hereby acknowledged, and for the purpose of further securing
Assignee in the payment of that certain indebtedness evidenced by that one certain
promissory note in the original principal sum of $637,500.00 dated May ,2002,
executed by D. E. AVIATION, INC. and payable to the order of 1 st Choice Bank, South
Houston, Texas, covering improvements located on property located in the City of La
Porte, Harris County, Texas, described in the Lease Agreement attached and marked as
Exhibit "Lease", does hereby assign and transfer unto Assignee and grant to Assignee a
security interest in all leases and rental contracts which have been and may hereafter be
executed covering all or any part of said property, together with all rentals and income
accruing therefrom., and particularly the following described lease or leases which
constitute all the leases covering said property that are now in full force and effect, to wit:
The Lease Agreement Marked as Exhibit "Lease" and attached hereto.
Assignor warrants, represents and agrees that:
1. Said Lease is valid and in full force and effect according to its terms; that
no change, modification or amendment thereof has been. made; that no prior assignment
thereof has been made and that no assignment of any of the rental and income from the
above described lease has been made; and that no financing statement covering said lease
or leases or the property described is on file in any public office.
2. Assignor shall not, without the prior written consent of Assignee, make or
agree to change, modification or amendment in or teml.ination of the lease covering the
said property, shall not exercise any option if any be in said lease to take action to forfeit
the same.
3. Assignor shall (a) perform all of the obligations and duties of Lessee under
the lease covered hereby; (b) promptly inform Assignee in writing of notice received
from the Lessor with respect to any obligation under the lease or of any default or
claimed default by any party to the lease; and (c) keep accurate books, records and
accounts with respect to the lease and make them available to the Assignee at its request
for examination and inspection.
This Assignment of Lease is especially made SUBJECT to Article X of said
Lease 'Agreement. The City of La Porte by its consent to this Assignment of Lease for
financing purposes by Assignor, expressly reserves all its rights as Lessor, contained in
said Lease Agreement, and particularly Article X thereof, including, but not limited to,
the right of the City of La Porte to give prior written approval to any substitute lessee.
As often and whenever a default occurs in the payment of the above described
Promissory Note, or in the performance of any covenant contained in the Loan
Agreement between Assignor and Assignee and as long as any such default continues,
Assignee is hereby authorized to take possession of the premises covered by such Lease,
and may exercise by prior written consent of Lessor, all other rights of the Lessee under
the terms of such Lease Agreement. Assignee shall have the right at any time that such
default exists, to make and enter into agreements with Lessee's tenants, increasing or
reducing rentals or otherwise changing the terms of such sub-lease contracts, and under
such circumstances may enter into new sub-leases and rental contracts in the name of
Assignor or otherwise, on such terms and containing any covenants and agreements as
Assignee may deem advisable.
Assignor further agrees to inform Assignee promptly in writing of notice received
from the City of La Porte with respect to any obligation or default under said lease(s).
Assignor also agrees to perform all obligations binding on Lessee under its said lease(s)
with the City of La Porte.
The City of La Porte, acting herein by its duly authorized representatives, joins in
the execution hereof for the limited purpose of evidencing its consent to this Assignment
of Lease for finance purposes by Assignor to Assignee. Such consent by the CitY of La
Porte shall not be construed as a waiver of the performance of D. E. Aviation, Inc., as
Lessee under said Lease Agreement. The City of La Porte agrees, that in the event of
default by Assignor herein in its obligations under said lease agreement with the City of
La Porte, that Assignee shall have the right, with the prior express written consent of the
City of La Porte, to assign the lease agreement between the City of La Porte and
Assignor, to a qualified aircraft fixed base operator. In the event of such assignment, all
provisions of the Lease Agreement between the City of La Porte and Assignor, applicable
to the Lessee thereunder, shall be equally binding upon any party to which the activities,
uses, privileges and obligations authorized in sa.id Lease Agreement, are assigned, by
Assignee hereunder. The City of La Porte will not be lmnecessarily arbitrary in granting
said permission, but the City of La Porte shall be the sole judge as to the reliability,
capability, character, and desirability of the parties involved. The consent of the City of
La Porte evidenced hereby shall not be construed as a subordination or waiver and
relinquishment by the City of La Porte of its right of levy .for rents and all liens, claims
and demands of every kind which it may have against all building and contents on the
lease premises, under the constitution and laws of the State of Texas, and under the terms
and provisions of its Lease Agreement with D. E. Aviation Inc., dated January 1, 1997 ~ tt:;7-'
n f. ") il . !
. "J-~:{ '~!...v\YYW"M..r.. J 1 .7 &' D!l.. '
vl.t1'-"-"l ' J " ;- ..
J
Assignee shall have the additional right and authority in the event of default as
aforesaid, but shall not be obligated to:
1. Make and enter into agreement with Lessor and other users of the
premises, including the specific right to assign the rights of Assignee herein to another.
2. Sue for the balance due on the Note hereby secured, for possession of the
premises, and all appropriate rights and remedies in connection therewith.
Assignor specifically agrees that the Note hereby secured may be from time to
time, renewed, extended, modified or rearranged, and this assignment shall not in any
manner be effected by such action..
This assignment shall be binding upon and shall inure to the benefit of the legal
representatives, heir, successors, and assigns, respectively, of the Assignor and Assignee;
and shall terminate and become null and void upon full and fmal payment of the Note
secured by this assignment and referred to herein.
EXECUTED this
day of May 2002.
D. E. AVIATION, INC.
By:
DEBORAH J. RIHN-HARVEY
ATTEST:
Secretary
1ST CHOICE BANK, SOUTH HOUSTON,
TEXAS
By:
GERRY E. MONZINGO, Presiden.t
CITY OF LA PORTE
By:
ROBERT T. HERRERA., City Manager
ATTEST:
City Secretary
THE STATE OF TEXAS 9
~
COUNTY OF HARRIS ~
BEFORE ME, the undersigned authority on this day personally appeared
DEBORAH J. RIHN-HARVEY, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that she executed the same for the
purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the"_ day of
, 2002.
Notary Public, in and for the State of Texas
COUNTY OF HARRIS
S
9
~
THE ST ATE OF TEXAS
BEFORE ME, the undersigned authority on this day personally appeared GERRY
E. MONZINGO, President, 1 st Choice Bank. known to me to be the person whose name
is subscribed to the foregoing ins1:r\lnlent, and acknowledged to me that he executed the
same in the capacity therein stated, and for the purposes and considerations therein
expressed.
GIVEN UNDER MY HA1\TD AND SEAL OF OFFICE, this the
, 2002.
day of
Notary Public, in and for the State of Texas
COUNTY OF HARRIS
~
~
~
THE STATE OF TEXAS
BEFORE ME, the undersigned authority on this day personally appeared
ROBERT T. HERRERA, City Manager of the City of La Porte, known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he executed the same in the capacity therein stated, and for the purposes and
considerations therein expressed.
GNEN UNDER MY HAND AND SEAL OF OFFICE, this the
, 2002.
day of
Notary Public, in and for the State of Texas
AFTER RECORDING RETURN TO:
1 ST CHOICE BANK
GERRY E. MONZINGO, PRESIDENT
3100 SOUTH SHAVER
SOUTH HOUSTON, TEXAS 77587