HomeMy WebLinkAboutResolution - 002 - Lease Agreement - Abernathy Properties - Waterwell, 405 N Quirt Ave - 01/11/1979][L.GB:hw
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BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
RESO-2
1/11/7
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a waterwell Lease
Agreement with Abernathy Properties, attached herewith which shall be spread
upon the minutes of the Council and as spread upon the minutes of this Council
shall constitute and be a part of this Resolution as if fully copied herein in
detail.
Passed by the City Council this lith day of January 1979.
ATTEST*
•
E, lyn Gaffga, City Secr to yeasurer
APPROVED AS TO FORM:
Leon G. ean, Assistant City Attorney
APP V D:
VICKI 'FOSTER
Community Development Coordinator
DIRK WEST, MAYOR
LEASE AGREEMENT
THE STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LUBBOCK
This Agreement of Lease, made and entered into, this the
11th day of January A.D., 1979, by and between
the City o Lubbock, Texas, a Home Rule Municipality duly incor-
porated under the Conztitution and laws of the State of Texas, here-
inafter referred to as Lessor, and Abernathy Properties, a partner-
ship composed of Elizabeth J. Vickers, Louise Roberts, Mary Anderson
and Helen Humpries hereinafter referred to as Lessee, (the terms
"Lessor" and "Lessee" to be construed in the singular or plural
number according as they respectively represent one or more than
one person, partnership, corporation or other organization);
WITNESSETH:
That Lessor does by these presents Lease and Demise unto Lessee
the following described property, lying and being situated in the
City of Lubbock, County of Lubbock, State of Texas, and being more
particularly described as follows: a water well and well casing
located at 405 North Quirt Avenue, the remainder of said property
presently being used as the site for the Guadalupe -Parkway Neigh-
borhood Center, for a term of one year beginning on the 1st day of
January A.D., 1979, and ending on the 31st day of December, A.D.,1979,
to be occupied for the purpose of operating and maintaining said
well only (and said demised premises are to be used in no other
manner and for no other purposes whatsoever without the prior written
consent of Lessor), yielding and paying therefor the sum of FIVE
HUNDRED DOLLARS ($500.00), payable upon execution of this lease
upon the following terms, conditions and covenants:
1st: --Lessee shall pay the rent at the office of the Community
Development Coordinator for the City of Lubbock, Texas, yearly in
advance as aforesaid, as the same shall fall due.
2nd: --Lessee shall, at its own cost and expense, throughout
the term of this lease, and so long as he shall remain in possession
of the demised premises, keep and maintain in good repair.said
well, its fixtures and appurtenances, to the satisfaction of the
municipal, police and any other governmental authority,,during the
term of this lease. Lessee shall also, at its own cost and expense,
throughout the term of this lease, and so long as he shall remain
in possession of the demised premises, construct and maintain a
chain link fence wholly enclosing such well and related equipment
for the protection of the children from the Guadalupe -Parkway
Neighborhood Center. However, it is distinctly understood and
agreed that the preceding sentences do not require maintenance of
said well and fixtures, equipment, appurtenances and machinery
in perfect condition or a condition equal to new, but Lessee
shall at all times keep and maintain the same in such condition
as to minimize, so far as is practicable, by usual care and
repairs, the effects of use, decay, injury and destruction of
said property, Lessor recognizing that certain depreciation by
reason of increasing age and use is unavoidable. Lessee, so long
as he shall remain in possession of the demised premises, shall
keep and maintain all portions of the premises, the improvements
thereon, the appurtenances, machinery, equipment, and fixtures
therein, in such condition as to prevent any loss, damage or
injury to the persons, property, businesses, business or occupations
of any other persons permitted by Lessee to be in or about the
leased premises, owners, occupants and invitees of adjoining premises,
and persons upon the adjacent portions of the street in front and
the alley in rear of the demised premises. At the termination of
this lease, Lessee shall deliver up the demised premises in as good
condition as at the beginning of the term, natural deterioration,
depreciation and damage by fire and the elements only excepted.
3rd: --Lessee agrees to accept possession of the demised premises
in their present condition, and to allow for changes in such con-
dition which may occur by reasonable deterioration. between the
date hereof, and the date that Lessee actually occupies said premises.
4th: --All property of every kind which may be on said demised
premises during the term hereof, shall be at the sole risk of
Lessee or those claiming under him and the Lessor shall not be
liable to Lessee, or to any other person whatsoever, for any in-
jury, loss or damage to any person or property in or upon said
demised premises. Lessee hereby covenants and agrees to assume
all liability for or on account of any injury, loss or damage
above described, and to save Lessor harmless therefrom. Further-
more, Lessor shall not be liable to Lessee or to Lessee's patrons,
employees, licensees, permittees, or visitors, for any damage
to person or property caused by the act or negligence of any other
tenant of said demised premises, or due to the well on said premises
or any appurtenances thereof being improperly constructed, or
being or becoming out of repair, nor for any damages from any de-
fects or want of repairof any part of the well of which the demised
premises form a part, but Lessee accepts said premises as wholly
suitable for the purposes for which same are leased and accepts
the well and each and every appurtenance thereof and waives
defects therein, and further agrees to hold Lessor harmless from
all claims for any such damage. It is further especially under-
stood and agreed that Lessor shall not be liable for any failure
of water supply, gas supply, or electric current, or for injury or
damage which may be sustained to person or property by Lessee or
any other person, caused by or resulting form steam, electricity,
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gas, water, rain, ice or by snow or other liquid which may leak or
flow from or into any part of said well, whether the said damage or
injury shall be caused by or be due to the negligence of Lessor,
Lessor's agent, servant, employee or not, nor shall Lessor be liable
for interference with'.light or other incorporeal hereditaments, pro-
vided such interference is caused by any one other than the landlord,
nor shall Lessor be liable for such interference from operations
by or for governmental agencies in construction of any public or
quasi -public work.
5th: --Lessee agrees that he promptly will execute and fulfill
all ordinances and regulations of the state; county, city and other
governmental agencies applicable to said demised premises, and all
ordinances imposed by the Board of Health, Sanitary and Police
Departments for the correction, prevention and abatement of nuisances
in or upon or connected with said demised premises during the term
of this lease, at Lessee's sole expense and cost.
6th: --Lessee shall not assign this Agreement, nor underlet the
whole or any part of the demised premises, or make any alteration
in or to the well without the consent of Lessor first obtained in
writing, and shall not occupy or permit or suffer the same to be
used in any manner deemed extrahazardous on account of fire; and
it shall be lawful for Lessor at all reasonable times and hours
to enter into and upon said demised premises to examine the condition
thereof.
7th: --Lessee shall not place, paint or otherwise affix any
signs at, on or about the premises, or any part thereof, except as
and where first approved in writing by Lessor.
8th: --In the event of a breach or threatened breach by Lessee
of any of the agreements, conditions, covenants or terms hereof,
Lessor shall have the right of injunction to restrain the same,
and the right to invoke any remedy allowed by law or in equity, as if
specific remedies, indemnity or reimbursements were not herein pro-
vided for. Furthermore, the rights and remedies given to Lessor
in this lease are distinct, separate and cumulative rights and
remedies and no one of them, whether or not exercised by Lessor
shall be deemed to be in exclusion of any of the others.
9th: --The agreements, conditions, covenants and terms herein
contained, shall in every case, apply to, be binding upon and inure
to the benefit of the: -respective parties hereto, their heirs, ex-
ecutors, administrators, successors and assigns, with the same
force and effect, as if specifically mentioned in each instance
where a party hereto is named, provided, however, that no assign-
ment or under -letting by Lessee in violation of the provisions of
this lease, shall vest in any such assignee or under -tenant any
right or title in or to the leasehold estate hereby created:
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10th: --No assent, express or implied, by Lessor to any breach
of any of Lessee's covenants, agreements, conditions or terms hereof,
shall be deemed or taken to be a waiver of any succeeding breach of
any covenant, agreement, condition or term hereof.
11th: --It is especially understood and agreed that engines,
machinery, and fixtures and all personal property placed on the
demised premises by the Lessee may be removed by Lessee at the termi-
nation of this lease, provided Lessee shall not then be in default
of the performance of any of its agreements, conditions, covenants
or terms hereof, and provided further, that.the well shall be left
by Lessee, substantially as well equipped as it is at the beginning
of the term, and provided further, that no such property shall be
removed by Lessee if such removal should permanently injure, and
provided further that the removal of any such property shall be
effected within five (5) days after the expiration of the said
term, and all damage caused to said premises by such removal shall
be repaired by Lessee at his own cost and expense.
12th: --Lessee shall not make alterations,-.additions.or..improve-
ments to the demised premises or the well thereon, without the prior
written consent of Lessor, and after such consent has been given,
unless otherwise agreed upon in writing, all alterations, improve-
ments and additions made by Lessee -!upon the demised premises, al-
though at his own cost and expense, shall, at the option of Lessor,
remain upon the premises at the expiration of this lease and become
the property of Lessor in fee simple, without other action or process
of law.
13th:-=.In:the event Lessee shall make default in the perfor-
mance of any of the agreements, condition, covenant or term herein
contained, Lessor, immediately, or at any time thereafter (no ob-
ligation, however, being imposed upon Lessor, to do so) may perform
the same for the account of Lessee, and any amount paid or any
expense or liability incurred by Lessor in the performance of the
same, shall be deemed to be additional rent payable by Lessee for
the demised premises, together with six percent (6%) interest there-
on from the date of payment by the Lessor to the date of repayment
and the same, at the option of Lessor, may be added to any fixed
rent then due or thereafter falling due hereunder; and Lessor shall
have the right to enter the said demised premises for the purpose
of correcting or remedying said default and to remain therein until
the same shall have been corrected or remedied.
14th: --Lessor shall have a statutory landlord's lien and in
addition, he hereby is given an express landlord's lien as security
for the fixed rent herein reserved, as well as any of the other
charges or expenses elsewhere hereinabove or hereinafter designated
as "additional rent" upon all of the goods, wares, chattels, imple-
ments, fixtures, furniture, tools, machinery and other personal
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property which Lessee now or at any time hereafter placed in.,or
upon the demised premises, all exemptions of said property or any
part of it, being hereby waived.
15th: --Lessee hereby especially covenants and agrees that --this
lease shall be subject and subordinate to any mortgage or mortgages
now on the demised premises.
16th; --Lessor hereby covenants and agrees that Lessee shall and
will, upon payment of all of the rents and all other sums of money
herein provided to be paid by Lessee, upon fully observing and per-
forming the covenants and agreements herein provided to be observed
and performed by Lessee, quietly and peaceably possess and enjoy
said above demised premises, unless said lease be sooner terminated
under and in accordance with any of the provisions herein elsewhere
contained providing for such termination.
17th: --If any of the fixed rent herein reserved or any of the
other charges or expenses hereinabove designated as "additional
rent", or any of the taxes, assessments, charges, or other sums of
money to be paid by Lessee shall not be paid as and when the same
become due and payable, or if Lessee shall default in the performance
of any of the other agreements, conditions, covenants or terms herein
contained, or if Lessee shall abandon the demised premises for a
period of five days or more, or if a petition or answer for reorgan-
ization of Lessee or the then owner of Lessee's interest hereunder,
shall be approved by any court or judge thereof, or if Lessee, or the
then owner of Lessee's interest hereunder, shall be adjudicated
insolvent or bankrupt, or if Lessee, or the then owner of Lessee's
interest hereunder shall make a general assignment for the benefit
of creditors, or shall take any benefit under any insolvency or
bankruptcy act, or have a receiver or trustee or other fiduciary
appointed for its property, or if Lessee's leasehold interest shall
be taken on execution or other process of law, or if this lease, or
the estate of Lessee hereunder, shall be transferred or pass to or
devolve upon any other person, firm, association or corporation,
except in the manner provided hereunder, then and in any of said
events, Lessor, or those claiming under him, may, immediately, or at
any time thereafter, have the right to terminate and end this lease,
and the term hereby granted, as well as all of the right, title
and interest of Lessee hereunder, by giving Lessee ten(10) days
notice in writing; and it is agreed that upon:the expiration of the
term fixed in such notice, if the said non-payment, default or
other cause of termination specified in such notice shall:.not have
been made good or removed, this lease and the..term hereby granted
and created, as well as all of the right, title and interest of
Lessee hereunder, shall, at the option of Lessor, or those claiming
under him, wholly cease and expire, in the same manner and with the
same force and effect as if the expiration of time in such notice
were the end of the term herein originally demised; and Lessor,
or those claiming under him, may immediately, or at any time there-
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after, and without further notice or demand, enter into and upon
the same premises or any part thereof, in the name of the whole,
and repossess the same as of his first and former estate, and
expel the Lessee and those claiming under him, and remove its or
their effects (forcibly, if necessary) without being taken or
deemed guilty of any manner of trespass, and without prejudice to
any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant, and that upon entry as aforesaid,
said lease shall be determined; and Lessee agrees that, notwithstanding
the termination of this lease and possession regained by Lessor,
he will indemnify Lessor against all loss of rent which may
accrue to him, by reason of such termination, during the remainder
of the term aforesaid.
In the event Lessor does not exercise the rights hereinabove
given him, he may accept rent from the receiver, trustee or other
officer in possession thereof for the term of such occupancy
without impairing or affecting in any way the rights of Lessor
against Lessee hereunder. Any neglect or failure to enforce the
right of forfeiture of this lease or re-entry upon breach of any
of the conditions, covenants, terms and agreements herein contained,
shall not be deemed a waiver of such right upon any subsequent
breach of any such or any other condition, covenant, term and/or
agreement herein contained.
18th: --It is especially understood and agreed by and between
Lessor and Lessee that intheevent the demised premises are
condemned for public use by any governmental agency, county,
State or Federal this Lease shall cease and terminate and be of
no further effect, and Lessee shall have no claim or demand of
any kind or character in and to any award made to Lessor by
reason of such condemnation.
19th: --Itis expressly understood and agreed by and between
Lessor and Lessee that in the event that Lessor herein shall not
be the owner of the premises herein demised, but shall hold a
lease of the property of which the demised premises are a part,
then the resulting sub -Lease is and shall remain subject to all
of the terms and conditions of such existing lease to Lessor, so
far as they may be applicable to the premises herein demised.
20th: --At all times during the term of this lease, Lessor
shall have the right, by himself, his agents and employees, to
enter into and upon the demised premises during reasonable bus-
iness hours for the purpose of examining and inspecting the same
and determining whether Lessee shall have complied with all of
its obligations hereunder in respect to the care and maintenance
of the premises, the repair and rebuilding of the improvements
thereon when necessary and all other terms and conditions hereof.
21st: --Lessee especially covenants and agrees to pay and
discharge all reasonable costs, attorneys' fees, and expenses
that may be incurred by Lessor in enforcing the covenants, agree-
ments, conditions and terms hereof, and all of the same shall be
payable to Lessor in Lubbock, Lubbock County, Texas.
22nd: --Lessee shall have no power to do any act or to make
any contract that may create or be the foundation for any lien
upon the present or other estate of the leasehold and demised
premises, or upon any of the buildings or improvements thereon,
except as herein elsewhere specifically provided; and should any
such lien be created or filed., Lessee, at his own cost and expense,
shall liquidate and discharge the same in full within ten (10)
days next after the filing thereof, and should Lessee fail to
discharge the same, that shall constitute a breach of Lessee's
covenant herein.
23rd: --Lessee agrees that in taking this lease, he is governed
by his own inspection of the premises and his own judgment of
their desirability for its purposes, and has not been governed or
influenced by any representation of Lessor as to the condition
and character of the well,,or as to the water production capacity
thereof; that no agreements, stipulations, reservations, exceptions,
or conditions whatsoever have been made or entered into in regard
to said premises or this lease, which will in any way vary,
contradict or impair the validity of this lease or of any of its
terms and conditions, and that no modification of this lease
shall be binding unless it be in writing and executed and acknowledged
in due form for recording by all of the parties hereto. Furthermore,
Lessee takes this lease and the demised premises subject to all
recorded easements and restrictions affecting the occupation and
use thereof, and subject to all statutes, ordinances and regulations
of competent governmental authority affecting the occupancy and
use thereof, the construction and maintenance of improvements
thereon, and the businesses and occupations to be engaged in by
Lessee, in force now and subsequently during the term of this
lease.
24th: --Any word, group of words, phrase, sentence, paragraph
or provision herein prohibited by law, or decision by a court of
final jurisdiction shall be ineffective to the extent of such
prohibition withoutinvalidating the remaining provisions hereof.
25th: --Whenever any payment is to be made under this lease,
at or within a time stated, and whenever any act is to be done
under this lease, by either party, at, or within a stated time,
time shall be of the essence of this agreement.
26th: --Any notice from Lessor to Lessee relating to the
demised premises, or to the occupancy thereof, shall be duly
served if addressed to Lessee by United States Certified Mail,
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Return Receipt Requested, to Hope E. Conroe, Manager, Abernathy
Properties. Any notice from Lessee to Lessor, shall be sent by
United States Certified Mail, Return Receipt Requested, to the
City Secretary.
27th: --It is distinctly understood and agreed by and between
the Lessor and the Lessee that any holding over by Lessee of the
herein demised premises after the expiration of this Lease shall
operate and be construed only as a tenancy from month to month,
terminable at the will of Lessor, at a monthly rental of $45.00.
28th: --It shall be lawful for Lessor, or his agents, at any
time within sixty days before the expiration of the term of this
lease, to enter upon the demised premises and to affix upon any
suitable part thereof a notice or notices for the leasing of
same, and the Lessee agrees not to remove any such notice or
notices or permit any of his employees, licensees or permittees
to remove the same.
29th: --Provided Lessee has not defaulted in any of the terms
conditions and provisions hereof, Lessee shall have the privilege
of renewing and extending the term hereof for a'period of one
year, beginning on the 1st day of January A.D., 1980, and ter-
minating on the 31st day of December, A.D., 1980, upon the same
terms, conditions, and provisions hereof, save and except for the
consideration which shall be subject to negotiation; Provided,
However, that in order to exercise this option, Lessee shall and
musggive Lessor written notice by United States Certified Mail,
Return Receipt Requested, of his intention to exercise said
option no later than the lst day of November, A.D., 1979.
In Testimony Whereof, the Parties to this Agreement have
hereunto set their hands to duplicate originals, the day and year
first above -written, after having first noted and approved all
erasures., interlineations, insertions, strik6-outs and strike -
overs.
WITNESS our signatures hereto and in execution thereof, this
11th day of January , 1979.
ABERNATHY PROPERTIES
BY:
-A "3,
Mat derson
Y 4
ff
-el-en H prs.es
CITY OF LUBBOCK
BY:
ayor
APPROVED:
64i �V*
Vicki Foster
Community Development Coordinator
APPROVED AS TO FORM:
Leon G. Bean, Asst. City Attorney