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HomeMy WebLinkAboutResolution - 4740 - Lease - Koch Materials Company - Lot 2, Tratct 3 Marnels Industrial Addition - 02_09_1995Resolution No. 4740 February 9, 1995 Item #32 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: 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 Lease between the City of Lubbock and Koch Materials Company, 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 ATTEST: &A-, & 0'�� Betty M. Wohfison, Ci Secretary APPROVED AS TO CONTENT: Ed Bucy, Right-of-WaYJAgent 9th day of February 1995. APPROVED AS TO FORM: Je sell, Assistant City Attorney dp\ccdocsWocklRes January 25, 1994 Resolution No. 4740 February 9, 1995 Item #32 LEASE AGREEMENT 9th February This Lease Agreement ("Agreement") entered into this 27A day oMM , 1995, by and between the CITY OF LUBBOCK, a Texas Home Rule Municipal Corporation, LESSOR, and KOCH MATERIALS COMPANY, a Delaware corporation, LESSEE in consideration of the mutual agreements contained herein to be kept and performed by the parties hereto do hereby contract and agree as follows: I. LESSOR hereby leases unto LESSEE for a term of five (5) years beginning January 27, 1995, and ending January 27, 2000, unless terminated earlier as provided in this Agreement, the following described tract of land: Lot 2, Tract 3, Mamels Industrial Addition to the City of Lubbock, Lubbock County, Texas, as shown by the official plat thereof, recorded in Volume 1072, Page 560, of the Lubbock County Deed Records; containing 4.58 acres, more or less, including all equipment on property (the "Leased Premises"). II. LESSEE shall pay the sum of THREE HUNDRED AND NO/100 DOLLARS ($300.00) per month by check or money order to the CITY OF LUBBOCK, P.O. Box 2000, Lubbock, Texas 79457, ATTENTION: Ed Bucy, payable by LESSEE in advance by the fifteenth (15th) day of each month as rental for the lease of the land herein concerned during the first year term of this Agreement, the first payment being due, contemporaneously with the execution of this Agreement, thereafter the rental amount shall be adjusted annually to conform to changes in the Consumer Price Index from the previous year. Such adjustment shall be made on or before the anniversary of this Agreement each year and said adjustments shall be effective for one year. LESSEE shall pay the rent in advance as aforesaid, as the same shall become due. Rent unpaid after the due date (the fifteenth day of each month) is delinquent and will constitute a default by LESSEE. If all rent is not paid on or before the twentieth (20th) day of the month (the late charge date), LESSEE agrees to pay an initial late charge of Ten and No/100 Dollars ($10.00), plus a late charge of One and No/100 Dollars ($1.00) per day thereafter until all delinquent rent and late charges are paid in full. Daily late charges shall not exceed Twenty -Five and No/100 Dollars ($25.00) for any single month's rent. IV. The purpose for which the land is to be used is for Koch Materials plant expansion and associated asphalt activities. LESSEE will not make or permit any use of the Leased Premises, or do or permit any act, including the keeping of anything, in or about the Leased Premises, which, directly or indirectly, will violate any law, ordinance, or regulation. LESSEE must pay promptly as they become due all charges for the furnishing of water, electricity, garbage service, and other public utilities to the Leased Premises during the term of this Agreement, if any. V. LESSEE shall permit LESSOR and LESSOR's agents to enter the Leased Premises at all reasonable times for the purpose of inspecting the same. LESSOR reserves the right to enter the Leased Premises at all reasonable hours (and if, in the opinion of LESSOR, an emergency exists requiring immediate action, at any time) to make replacements, repairs, and restorations and to carry out any work activities in connection with the improvement, safety, protection, or preservation of the Leased Premises. VI. LESSEE shall hold LESSOR harmless and indemnify and defend LESSOR against any and all claims, lawsuits, damages, or penalties arising out of or in any manner connected with the operation and use of the Leased Premises and equipment by LESSEE, its agents, servants, representatives, customers, or invitees, including any claims, lawsuits, damages, or penalties arising out of any violation or alleged violation of any Federal, State, or local statute or regulation. LESSEE shall defend and hold harmless LESSOR against any and all claims, lawsuits, damages or penalties arising from or associated with any environmental contamination caused by LESSEE at or on the Leased Premises. However, LESSEE shall not have to hold LESSOR harmless and indemnify and defend LESSOR against any and all claims, lawsuits, damages or penalties arising from or associated with any environmental contamination at or on the Leased Premises, which existed on or before execution of this Agreement, including but not limited to any existing nitrate contamination, or any environmental contamination not caused by LESSEE. LESSOR shall not sue or seek indemnity or contribution from LESSEE for any environmental contamination existing on or before execution of this Agreement or any environmental contamination not caused by LESSEE. 2 VII. All improvements or alterations shall be at the sole expense of LESSEE, and LESSEE agrees to indemnify and hold LESSOR harmless from all liabilities in any way connected with them. Upon the expiration, cancellation or termination of this Agreement, LESSEE shall quit and surrender to LESSOR the Leased Premises in as good a condition and order as existed on the date this Agreement was entered into, reasonable wear and tear excepted. LESSEE shall have within 120 days after expiration, cancellation or termination of the Agreement, the right to remove any and all fixtures, improvements, alterations and personalty installed on the Leased Premises by LESSEE. To the extent reasonably required by LESSOR, all remaining improvements and the like that were installed by LESSEE but not removed, shall be removed by LESSEE at LESSEE's expense within the same 120 days. LESSEE's obligations under this paragraph shall survive the expiration or termination of this Agreement. VIII. LESSOR shall not be liable, and LESSEE waives all claims, for injury to or death of persons or damage to or loss of property sustained by LESSEE or LESSEE's invitees or guests resulting from the Leased Premises or any of its equipment or appurtenances being out of repair, or resulting directly or indirectly from any act or neglect of any tenant or occupant of the Leased Premises or of any other person, or from any other cause whatsoever except the gross negligence of LESSOR. LESSEE shall be responsible for all damages caused by its negligence or by the negligence of its agents, invitees or guests. M This Agreement cannot be assigned in whole or in part by LESSEE, except upon the express written permission to such assignment by LESSOR. X. This Agreement may be canceled and terminated by LESSOR for nonpayment of rent or failure of LESSEE to keep and perform any of its agreements herein contained, such termination to be in the form of thirty (30) days written notice by LESSOR delivered or mailed to last known address of LESSEE. XI. LESSOR does not warrant any of the equipment on the Leased Premises. LESSOR does grant LESSEE the RIGHT OF OPERATION, INSPECTION, MAINTENANCE, REPAIR, AND REPLACEMENT AT LESSEE'S sole cost and responsibility of any of the existing equipment. LESSEE ACCEPTS THE EXISTING EQUIPMENT "AS IS" ON THE LEASED PREMISES. NONE OF LESSOR'S EQUIPMENT IS TO BE REMOVED FROM THE LEASED PREMISES, EXCEPT FOR REPAIRS, TESTING, OR REPLACEMENT PURPOSES without the permission of LESSOR. XII. If LESSEE remains in possession of the Leased Premises after the expiration or other termination of this Agreement, then, LESSEE shall be deemed a tenant of the Leased Premises from month to month and subject to all of the terms and provisions of this Agreement. XIII. Upon completion of the term of this Agreement, LESSOR will grant LESSEE the option to renew this Lease Agreement for an additional five (5) year term. On the completion of the second five (5) year term LESSOR will grant LESSEE the option to renew this Lease Agreement for an additional five (5) year term. XIV. LESSEE will keep the Leased Property free from excess weed, plant, and grass growth through routine maintenance. LESSEE will keep the Leased Property locked and secured at all times, except when LESSEE is on the property. X V. All rights and remedies of LESSOR enumerated in this Agreement shall be cumulative, and none shall exclude any other right or remedy allowed by law or provided in any other section of this Agreement. XVI. If LESSEE defaults in the payment of rent or in the prompt and full performance of any provision of this Agreement, or if the leasehold interest of LESSEE be levied on or attached by process of law, or if LESSEE makes an assignment for the benefit of creditors, or if a receiver is appointed for any property of LESSEE, or if LESSEE abandons the Leased Premises, then, and in any such event, LESSOR may, if it so elects, but not otherwise, with or without notice, either forthwith terminate this Agreement or, without terminating this Agreement, forthwith terminate LESSEE's right to possession of the Leased Premises. If, in any such case, LESSOR terminates this Agreement, LESSOR shall be entitled to recover from LESSEE an amount equal to the rent currently in effect under this Agreement for the balance of the stated term of the Agreement, less the then fair rental value of the Leased Premises for the balance of the term. 4 XVII. On any termination of this Agreement, or on any termination of LESSEE's right to possession without termination of the Agreement, LESSOR may enter and repossess the Leased Premises, and remove any and all property from the Leased Premises, without being deemed guilty of trespass, eviction, forcible entry, or detainer. XIX. LESSEE shall pay on demand all of LESSOR'S expenses, including attorney's fees, incurred in enforcing LESSEE's obligations under this Agreement. XX. A waiver by LESSOR of any default or breach of any term, condition, or covenant of this Agreement by LESSEE shall not be deemed to be a waiver of any other breach of LESSEE of the same or any other term, condition, or covenant contained in this Agreement. XXI. All amounts (other than rent) owed by LESSEE to LESSOR under this Agreement shall be paid within ten (10) days from the date LESSOR renders statements of account to LESSEE and shall bear interest at the rate of ten percent per annum after that date until paid. XXII. This Agreement shall be binding upon and inure to the benefit of the parties to the Agreement and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Agreement. XXIII. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created under this Agreement are performable in Lubbock County, Texas. XXIV. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or enforceability shall not affect any other provision, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. XXV. This Agreement constitutes the sole and only Agreement between the parties to this Agreement and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter of this Agreement. XX VI. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same be in writing, dated subsequent to the date of this Agreement, and duly executed by the parties to this Agreement. XXVII. The rights and remedies provided by this Lease Agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive that party's right to use any or all other remedies. These rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed into on the day and year first above written I OW LUB CK LESSEE: KOCH MATERIALS COMP ` BY: 5n1 R. Langst Mayor Ro Witte, Vice President ATTEST: &-�, AA c-��Oj Betty 14. Johnson, S retary Approved as to content: Ed Bucy Approved as to Form: J(dff ffirtsell, Assistant City Attorney s:\msn\1ubbock1.doc:1-13-95 ti Scott Nichols, Assistant Secretary 31