HomeMy WebLinkAboutResolution - 2021-R0398 - Temporary Lease Agreement with BayCal for testing and vaccination clinic 10.12.21Resolution No. 2021-R0398
Item No. 7.11
October 12, 2021
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the act of the Mayor in executing, on behalf of the City of Lubbock, a Temporary Lease
Agreement by and between the City of Lubbock and the BayCal Lubbock Partners, LLC and
MBABAB, LLC as TIC c/o NetCo Investment, Inc., and all related documents, is hereby ratified
in full. Said Temporary Lease Agreement is attached hereto and incorporated in this resolution as
if fully set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council on
ATTEST:
Rebec a Garza, City Secre ry
APPROVED AS TO CONTENT:
October 12, 2021
— te�—
DANIEL M. POPE, MAYOR
0—
Bill Ho on, Deputy Cityt��
ag
APPROVED AS TO FORM:
Ry Br ke, Assistant City Attorney
RES.Temp. Lease Agreement Ratification COLHD
10.4.21
Resolution No. 2021-R0398
TEMPORARY LEASE AGREEMENT
This Temporary Lease Agreement (the "Lease") is made and entered into this 29th day of
September, 2021 (the "Effective Date"), by and between BAYCAL LUBBOCK PARTNERS,
LLC AND MBABAB, LLC AS TENANTS IN COMMON (collectively, "Landlord"), and
CITY OF LUBBOCK ("Tenant").
1. Premises. In consideration of the mutual covenants, conditions and agreements in this
Lease, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the following
described premises ("Premises"): 2717 & 2721 50th St Lubbock TX 79413, consisting of
approximately 9,376 square feet (as more particularly identified in the attached Exhibit A).
Condition Of Premises: Tenant agrees to accept the Premises in "as is" condition, provided
however, that the plumbing, electrical, and HVAC systems shall be operational, and the below
items completed.
• all interior public area walls repainted a neutral color.
• the interior floor is either covered in carpet or cleaned of all glue and debris
• all missing ceiling tiles be replaced.
• the passageway between the two areas be included
• all renovations comply with local Building codes and current ADA requirements.
2. Term.
a. The term of this Lease ("Term") shall commence on October 1, 2021
("Commencement Date") and shall expire on January 6, 2022 ("Expiration Date"). Landlord
shall deliver possession of the Premises to Tenant for preparation, cleaning, and general setup on
or before the Commencement Date ("Delivery Date"). Upon the expiration or earlier termination
of this Lease, Tenant shall quit and surrender to Landlord the Premises in the same condition as
delivered to Tenant on the Commencement Date, casualty, condemnation and ordinary wear and
tear excepted.
b. Tenant shall not hold over in the Premises after the expiration or sooner termination
of the Lease Term without the express prior written consent of Landlord. Tenant shall be liable
for any Landlord costs arising out of or in connection with any delay by Tenant in surrendering
and vacating the Premises, including without limitation any claims made by any succeeding tenant
based on any delay, and any liabilities arising out of or in connection with such claims. If
possession of the Premises is not surrendered to Landlord on the expiration or sooner termination
of the Lease Term, in addition to any other rights and remedies of Landlord hereunder, at law or
in equity, Tenant shall pay to Landlord for each month or portion thereof following the expiration
or sooner termination of the Lease Term during which Tenant retains possession of the Premises
a sum equal to one hundred fifty percent (150%) of the then -current Base Rent calculated on a
monthly basis (based on a 30-day calendar month), in addition to all other Rent payable under this
Lease. Landlord's acceptance of any such payment shall not constitute Landlord's consent to any
holding over (which consent may only be granted expressly in writing) nor Landlord's waiver of
any of its rights or remedies. If any tenancy is created by Tenant's possession of the Premises
following the expiration or sooner termination of the Lease Term, the tenancy shall be on all of
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the terms and conditions of this Lease, except that Rent shall be increased as set forth above and
the tenancy shall be a month -to -month tenancy, and not a renewal hereof or an extension for any
further term. Nothing in this Lease shall be deemed to permit Tenant to retain possession of the
Premises after the expiration or sooner termination of the Lease Term.
3. Rent. Total rent ("Rent") for the Term is $40,000.00 due and payable to Landlord due
upon execution of this agreement. All Rent provided for in this Lease shall be paid to Landlord
by company check and remitted to the following address: BayCal Lubbock Partners, LLC &
MBABAB, LLC c/o 1 S` Commercial 2009 Porterfield Way, Suite P
Upland, CA 91786. Landlord agrees to provide to Tenant a form W-9, Request for Taxpayer
Identification Number and Certification, upon Landlord's execution of this Lease. Landlord
acknowledges and agrees that other than Rent and utilities (including trash removal), the Rent
provided herein is a "gross rent" and Tenant shall not be required to pay operating costs,
insurance, taxes, or any other fees or charges, however denominated or stated.
4. Personal Property. Tenant shall famish at its sole cost and expense all personal property
to be used by Tenant on the Premises.
5. Permitted Use. Tenant shall use the Premises only for COVID-19 testing and vaccination
center. Landlord acknowledges and agrees that Tenant shall be permitted to provide drive through
testing on the parking lot of the shopping center in a location mutually agreed by Landlord and
Tenant.
6. Utilities. Landlord shall provide the following utilities to the Premises during the Term:
electricity, gas, water and sewer (if applicable). Tenant agrees to place all utility accounts in its
name from lease commencement to expiration, with payment made directly by Tenant to the utility
provider.
7. Trash. During the Term, Tenant shall arrange and pay for all costs related to the removal
from the Premises of all trash and cartons resulting from the operation of Tenant's business at the
Premises. If Tenant is required to use Landlord's vendor, then any such cost shall be reasonable
and competitive (and in no event greater than had Tenant contracted independently for such
service) and reimbursable to Landlord, if applicable, immediately upon written invoice and request
from Landlord to Tenant.
8. Assi2nment/Sublettin2. Tenant shall not assign or sublet the whole or any part of the
Premises without first obtaining the prior written consent of Landlord, such consent to be in
Lessor's sole and absolute discretion.
9. Maintenance and Repairs. Landlord shall at all times at its sole cost and expense keep
and maintain the Premises in good condition, order and repair, including the parking lot,
landscaping, roof, foundation and structural portions of the Premises, as well as the mechanical,
electrical, fire protection, HVAC and other utility systems servicing the Premises, unless such
repairs are necessitated by the gross negligence or willful misconduct of Tenant. During the Term,
Tenant agrees to keep and maintain the interior of the Premises, and any area of the parking lot or
common area used by Tenant in accordance with the Permitted Use, in a clean and orderly
condition.
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10. Liens. Tenant shall not permit any liens to be filed against the Premises on account of the
furnishing of any labor, material or supplies, or for any other cause or reason. In the event liens
are filed, then Tenant shall promptly cause the same to be released, bonded or satisfied in full
within ten (10) days of the date of such filing.
11. Indemnification. Tenant shall indemnify and hold Landlord harmless from and against
any and all claims, actions, damages, liability and expenses in connection with loss of life or
personal injury arising from or out of Tenant's occupancy or use of the Premises or any part
thereof, resulting from the gross negligence or willful misconduct of Tenant, its agents, contractors
or employees. Notwithstanding the foregoing, Tenant shall have no obligation to indemnify or
hold Landlord harmless against claims for loss of life or personal injury arising in whole or in part
out of or by reason of any act, negligence, or fault of Landlord or of its agents, servants, or
employees. The parties expressly acknowledge that the Tenant's (City's) authority to indemnify
and/or hold harmless any third party is governed by Article XI, Section 7 of the Texas Constitution
and any provision which purports to require indemnification by the Tenant (City) is invalid.
12. Tenant's Insurance. Tenant shall carry, at its own expense, (i) commercial general
liability insurance in an amount of not less than $1,000,000 per occurrence, with a $2,000,000
general aggregate for bodily injury and property damage, and (ii) all risk property insurance
covering Tenant's trade fixtures, inventory and other personal property for the full replacement
cost thereof. Coverage may be provided by any combination of primary and umbrella or excess
policies provided that such umbrella or excess policies shall be no less broad than the underlying
policies and shall have the same inception and expirations dates as the underlying coverage.
Landlord shall be named as an additional insured on the aforesaid liability insurance and shall be
provided with evidence confirming such coverage.
13. Landlord's Insurance. Landlord shall carry commercial property insurance, including
special form perils endorsement, insuring the building of which the Premises is a part, in an
amount not less than the full replacement cost. In addition, Landlord shall carry commercial
general liability insurance for the property of which the Premises is a part, in at least the same
amounts required of Tenant.
14. Hazardous Materials. Tenant agrees not to maintain, keep, store or permit the
maintenance or storage of any dangerous, flammable or hazardous material on the Premises (other
than reasonable and customary amounts as permitted under existing fire and safety rules and
regulations) and further agrees to comply with all fire and safety rules and regulations affecting
the Premises, provided such compliance does not require Tenant to install or modify any fire
protection, fire detection or fire alarm systems in the Premises. Any such installations or
modifications shall be the sole responsibility of the Landlord, unless any such installation or
modification is required as a result of any particular use of the Premises by Tenant.
15. Casualty,. If all or any part of the Premises shall be damaged or destroyed by fire,
earthquake, flood or other casualty so as to render the Premises untenantable in Tenant's sole
opinion, then this Lease shall terminate, at the written option of Landlord or Tenant, from the date
of such casualty, and upon such notice Tenant shall at once surrender the Premises and all interest
therein to the Landlord, and shall not be liable for any further payments of Rent as of the date of
such casualty. Any portion of the Rent applicable to the time period after the date of such casualty
shall be refunded to Tenant.
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16. Quiet Enioyment. Landlord represents and warrants that Landlord has the right, power
and lawful authority to enter into this Lease for the full Term hereof. Tenant, upon paying the Rent
required under this Lease, shall peaceably and quietly hold and enjoy the Premises during the full
Term hereof.
17. Signage. Tenant shall have the right to place its typical exterior signage on the Premises
as of the later of the Effective Date of this Lease, or if applicable, the passing of the Early
Termination Date set forth in section 2, subject to local sign code permitting requirements. Tenant
shall use reasonable efforts to coordinate the aforementioned marketing efforts with Landlord and
agrees to comply with all applicable code requirements. Upon the removal of the signs at the end
of the Term, Tenant will make all necessary repairs to return the building and monuments to their
original conditions prior to the installation of signs, reasonable wear and tear excepted. At no
additional cost to Landlord, Landlord agrees to assist and cooperate with Tenant in obtaining any
necessary signage approvals or permits, including execution of the authorization letter set forth in
Exhibit `B" attached hereto.
Upon Landlord's written request, Tenant agrees to display a single "For Lease" or
"For Sale" sign, not to exceed 24" x 24" (such sign to be provided by Landlord). Any such sign
shall not unreasonably interfere with Tenant's operation or the visibility of the Premises.
18. Zoning. Landlord represents and warrants that the Premises are zoned for retail. In the
event Tenant is unable to operate its business at the Premises because of zoning issues, this Lease
shall be considered null and void and Landlord shall refund to Tenant all Rent and deposits (if any)
paid to Landlord on a pro rata basis, based on the number of days Tenant occupied the Premises.
19. Access to Premises. Landlord shall have access to the Premises at all reasonable times
during Tenant's normal business hours and upon not less than 24 hours prior notice (except in the
event of emergency), to enable Landlord (i) to examine the same and to make such repairs,
additions and alterations as Landlord may be permitted to make hereunder; or (ii) to show the
Premises to prospective tenants, mortgagees and purchasers. Landlord agrees to schedule such
entry with Tenant in advance (unless an emergency) and, upon such entry, agrees to minimize
interference with and disruption of Tenant's business.
20. Default. In the event Tenant shall be in default in the payment of any installment of Rent
herein reserved more than five (5) days following written notice from Landlord, or in the event
Tenant shall be in default in the performance of any other of the terms, covenants, conditions or
provisions herein contained binding upon Tenant after Landlord has given Tenant fifteen (15) days
prior written notice of such non-performance, Landlord shall have the right (in addition to all other
rights and remedies provided by law) to terminate this Lease, to re-enter and take possession of
the Premises, peaceably or by force, and to remove any property therein, without liability for
damage to, and without obligation to store, such property. In the event Landlord shall be in default
in the performance of any of the terms, covenants, conditions or provisions herein contained
binding upon Landlord after Tenant has given Landlord fifteen (15) days prior written notice of
such non-performance, Tenant shall have the right (in addition to all other rights and remedies
provided by law) to terminate this Lease.
21. Notices. Except as otherwise specifically provided herein, any notice required or permitted
under this Lease shall be in writing and shall be deemed to have been duly given and delivered (a)
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one (1) business day after the date on which the same has been delivered prepaid to a national
courier service guaranteeing next day service, or (b) three (3) days after deposit in the United States
mail, registered or certified, return receipt requested, postage prepaid, in each case addressed to
the party to whom such notice is given at the address set forth below:
To Tenant: City of Lubbock
Bill Howerton
1314 Avenue K
Lubbock, Texas 79401
To Landlord: BayCal Lubbock Partners, LLC & MBABAB, LLC as TIC
c/o NetCo Investments, Inc.
1800 Preston Park Blvd., Suite 104
Plano, Texas 75093
22. Attorneys' Fees. If either Landlord or Tenant institutes any action or proceeding against
the other to enforce any provision of this Lease, the non -prevailing party shall reimburse the
prevailing party for all reasonable costs and expenses incurred by the prevailing party, including
court costs, expenses and reasonable attorneys' fees.
23. Brokerage Commissions. Each of the parties hereto represents and warrants to the other
that it has not dealt with any broker or finder in connection with this Lease. Landlord and Tenant
agree to indemnify and defend (with counsel reasonably acceptable to the other) the other party
and to hold the other party harmless from and against any liability for claims for commissions or
fees by any other broker or finder based on the acts of the indemnifying party.
24. Entire Agreement. This Lease contains the entire agreement of the parties, all prior
understanding and agreements are being merged herein. There are no oral or written agreements
or representations between Landlord and Tenant except as expressly set forth in this Lease. No
modifications of this Lease will be binding upon Landlord or Tenant unless made in writing and
signed by each party. The terms, covenants and conditions contained herein shall inure to the
benefit of, and be binding upon, Landlord and Tenant, and their respective heirs, successors and
assigns.
25. Severability. If any term or provision of this Lease or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease or
the application of such term or provision to persons or circumstances, other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by law.
26. Governing Law. This Lease shall be construed in accordance with the laws of the state in
which the Premises is located.
27. Force Maieure. Neither the Landlord nor the Tenant shall be liable for failure to timely
perform any obligation under this Lease in the event it is prevented from so performing by strike,
lockout, breakdown, communicable disease outbreak or epidemic (including without limitation
COVID-19 or the coronavirus), accident, act of terrorism, order or regulation of or by any
governmental authority or failure to supply or inability by the exercise of reasonable diligence to
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obtain supplies, parts or employees necessary to furnish such services or because of war or other
emergency or for any other cause beyond its reasonable control (collectively, "Force Majeure").
In addition, if Tenant determines, in its reasonable judgment, that it is unable to operate its store
as contemplated herein because of Force Majeure, then Tenant may terminate this Lease at any
time upon notice to Landlord. Upon Landlord's receipt of Tenant's termination notice, this Lease
shall terminate, and Landlord shall refund to Tenant all prepaid rent and deposits (if any) paid to
Landlord (prorated based on the number of days Tenant physically occupied the Premises, if any)
within ten (10) days following the effective date of such termination.
28. Counterparts and Electronic Signatures. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument. A signed copy of this Lease transmitted by facsimile, email or other
means of electronic transmission shall be deemed to have the same legal effect as delivery of an
original executed copy of this Lease for all purposes.
29. Time of the Essence. Time is of the essence with respect to the performance of each,
every, and all of the terms, conditions, promises and provisions of this Lease.
(Remainder of page left intentionally blank - Signature page follows.)
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
LANDLORD:
BAYCAL LUBBOCK PARTNERS, LLC
A Delaware limited liability company
By: NetCo Investments, Inc. a
its Manager 14
By:
MBABAB, LLC
A Delaware limited liability company
By: Double A Asset Mana
A Texas limited liabili
its Manager ,
By:
TENA
CITY
By: _
Name:
Date: UVobEt-_ 5
Tenant's Federal Tax ID#: IS -
ATTEST:
Ric a Garza, City Secretary
LAi`
AS TO CONTENT:
BillDeputy City Mang%
APPROVED AS TO
City Attorney
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