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HomeMy WebLinkAboutResolution - 2004-R0262 - Agricultural Lease Agreement - Lubbock International Airport - 06/09/2004I ! i ! RESOLUTION Resolution No. 2004-R0262 June 9, 2004 Item No. 28 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 an Agricultural Lease Agreement with Nadia V. Soliz at Lubbock International Airport, and all related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. ATTEST: ~~-« ~= ~ cca Garza, City secretafi<0 VED AS TO CONTENT: APPROVED AS TO FORM: .i+--.,,,.(<~·~~L~--e Linda L. Chamales, Supervising Attorney Office Practice Section Sh/cityatt/Linda&ccdocs/Res-Ag Lease-Thiel May 13, 2004 AL, MAYOR ...____ THE STATE OF TEXAS § Resolution No. 2004-R0262 June 9, 2004 Item No. 28 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § AIRPORT AGRICULTURE LEASE AGREEMENT This LEASE AGREEMENT, hereinafter referred to as the "Agreement" or "Lease," is entered into at Lubbock, Texas, by and between the CITY OF LUBBOCK (referred to herein as Lessor) and NADIA V. SOLIZ, (referred to herein as Lessee). WITNESS TH: WHEREAS, Lessor owns, controls and· operates the Lubbock International Airport (referred to herein as Airport), situated at Route 3, Lubbock, Lubbock County, Texas, and has the authority to grant certain rights and privileges with respect thereto, including those hereinafter set forth: and WHEREAS, Lessor owns the following described tracts of land comprising a part of the Lubbock International Airport property, and has determined that said land should be put to a productive use; and WHEREAS, Lessor reserves the ,right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent the Lessee herein and all other persons from erecting, or permitting to be erected, any building or other structure on Airport property which, in the opinion of the Lessor, would limit the usefulness of the Airport or constitute a hazard to aircraft, and WHEREAS, Lessor deems it advantageous to itself and to its operation of the Airport to lease unto Lessee the premises described herein, together with certain privileges, rights, uses and interests therein, as hereinafter set forth; and NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms and conditions, both general and special, as hereinafter set forth, Lessor hereby grants to Lessee the rights and privileges hereinafter described; Lessee agrees to accept the duties, responsibilities and obligations as hereinafter set forth; and the parties hereto, for themselves, their successors and assigns, agree as follows: ARTICLE ONE DEMISE OF LEASED PREMISES LEASED PREMISES. Lessor does hereby lease unto Lessee the premises described and being: Farm #714-Approximately 145 acres The acreage and location of land covered by this Lease can be changed as needed due to future land acquisition and development by an amendment including the changes signed by the Director of Aviation and the Lessee. Such amendments shall be kept on file at the office of the Director of Aviation. PURPOSE AND PRIVILEGES. Lessee shall use the leased premises solely for the purpos~ of planting, cultivating and harvesting.crops of such diversification and acreage as may be agreed upon by the Director of Aviation and the Lessee prior to each planting season, or at such times during the year as may be necessary to determine what crops shall be planted. Such agreement shall be obtained before cultivation is commenced. Nothing in this Agreement shall be construed as granting to Lessee any right to operate any other business or concession on the Airport premises except as enumerated herein. ARTICLE TWO TERM TERM. The term of this Agreement shall be for a one (1) year period, commencing on the I st day of June, 2004, and ending on the last day of May, 2005. ARTICLE THREE RENTALS AND FEES RENTAL. In consideration of the rights and privileges herein granted, Lessee shall pay to the Lessor in accordance with the following schedule: A. One-third (1/3) of all grain produced. B. One-fourth (1/4) of all cotton produced. Nadia V. Soliz 2 C. One-third (1/3) of all Government payments for grain acreage diverted in accordance with Government conservation programs or other Government Programs. D. One-fourth (1/4) of all Government payments for cotton acreage diverted in accordance with Government conservation programs or other Government Programs. E. Cash rent on other crops as may be negotiated from time to time with the Director of Aviation, committed to writing and signed by both Lessee and the Director of Aviation. Lessee shall deliver to the Lessor at the cotton gin, free of any charges, one-fourth (1/4) of all lint cotton in the bale, together with the seed therefrom, and shall deliver to the said Lessor at the Lessor-designated elevator one-third (1/3) of all grain, feed-stuff or other crop grown on said land; provided, however, that if cotton is sold as ginned, settlement for cotton and cotton seed shall be promptly made at the Airport on the same day as the same is sold, or as soon as practicable thereafter. CROP FERTILIZATION COSTS. The parties hereto mutually agree that fertilization of farm land is and will be mutually beneficial and should be undertaken as warranted. The Lessor agrees to pay one-fourth (1/4) of any agreed fertilizing program costs on cotton crops and one-third (1/3) of any agreed fertilizing program costs on: all other crops. The parties agree that a letter agreement outlining the fertilizing program and its maximum monetary limitations shall be executed annually by Lessee and the Director of Aviation prior to commencing any fertilizing operations. The parties further agree that the Lessor's share of agreed fertilization program costs shall be deducted from rentals owed by Lessee to the Lessor in each and every year throughout the term of this Lease. ARTICLE FOUR RIGHTS RESERVED TO LESSOR AIRPORT SAFETY. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from constructing or permitting construction of any building or other Nadia V. Soliz 3 structure on or off the Airport which, in the opinion of Lessor, would limit the usefulness of the Airport or constitute a hazard to aircraft. TIME OF EMERGENCY. In the event of a war or national emergency, the Lessor shall have the right to lease the landing area and any other portion of the Airport to the United States for governmental use and, if such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the United States, shall be suspended. DEVELOPMENT OF AIRPORT. All rights, privileges or interests acquired herein by the Lessee or other persons, at the option of the· Lessor, following written notice of thirty (30) days, may be suspended or terminated, if such suspension or termination is found by the Lessor, acting in good faith, to be necessary for the development of the Airport, or for the development or promotion of aeronautical operations. LESSOR'S RIGHT TO PREMISES. Lessor reserves the right to go upon said premises at any time and to survey, lay off contour lines, build terraces and drill wells, . construct and maintain water and other utility lines, and to make any improvements it chooses, and should Lessee fail or refuse to properly tend, cultivate and harvest the crops on said land, Lessor shall have the right to enter upon said land and hire sufficient labor for that purpose, the cost of which shall be repaid to Lessor out of the portion of the crops belonging to Lessee. It is understood that this Lease is made subject to all existing easements and all rights under mineral deeds and leases heretofore granted or assigned and recorded in the Real Property Records of Lubbock County, Texas, and subject to the right of Lessor to develop and explore for oil and gas and other minerals on said land; and such rights and the right of ingress and egress over and upon said lands are herein expressly reserved to Lessor, its agents, successors and assigns. Nadia V. Soliz 4 ARTICLE FIVE RIGHTS & LIMITATIONS OF LESSEE ACCESS. Lessee is herein granted the right of ingress to and egress from the leased premises over and across common or public .roadways serving the Airport. Such right of ingress and egress, however, shall be subject to all laws, ordinances, rules and regulations now existing or hereafter promulgated by the City of Lubbock or other lawful authority. LAND WORK. Lessee agrees to faithfully and promptly in a prudent farmer-like manner, at the seasonable time therefore, break, prepare and plant the cultivated land upon such premises and shall, during the growing season, cultivate and work the crops so planted at all times when necessary, hiring all necessary labor and supplying all necessary materials to keep all the growing ~rops free from damage from weeds and grass, and to chop all cotton planted on said land, and shall gather, harvest and market said crops. Lessee agrees to provide and pay all costs of insecticides, desiccants and defoliation. Lessee agrees that none of the tillable land will be allowed to lie out or be taken out of production without the written consent ·of the Director of Aviation. Lessee agrees that if he, for any reason, fails to plant any crop or crops, in due time and season, or if planted or replanted and the crop be destroyed by the elements, or he otherwise fails to develop a stand which could be reasonable expected to mature into a profitable crop, such acreage shall revert to Lessor absolutely, unless Lessee notifies the Director of Aviation in writing as soon as such condition reasonable and be determined, and obtains his written consent to plant such acreage in such crops as may be mutually agreed upon. Lessee agrees that during the time this Agreement is in force, they will at all times and in all seasons so cultivate all of said land, whether planted or not, so as to minimize the blowing of top soil, sand and dust from said lands on to the landing strip areas and taxiways of the Airport. WATER WELLS. Lessee shall have and is hereby given the right to use the one (I) existing Lessor-owned irrigation water well on the premises, but Lessee shall provide the pump and motor for the operation of said well. Lessee may driU additional water wells Nadia V. Soliz 5 on the land for the limited purpose of irrigating crops grown thereon, and it is strictly understood that said wells shall be drilled at locations designated by the Director of Aviation and without cost to the Lessor, and that all wells drilled on said land shall be the property of the Lessor. All motors and pumps owned by Lessee may be removed by Lessee at the expiration of the agreement. Lessee shall cap the wells if the motors and pumps are removed. If the motors and pumps are left on the premises thirty (30) days from the date of termination of this agreement, they shall be deemed abandoned and will become the property of the Lessor. WEEDS AND GRASS. Lessee agrees to keep down all noxious weeds and grasses and prevent their seeding and spreading with the same precaution that any prudent farmer would exercise in the care of his own field, and to allow no volunteer crop of any kind to mature on said land. LIVESTOCK. Lessee agrees that no livestock will be on the leased premises. LAST YEAR OF LEASE. Lessee agrees that as the crops are gathered from any of said land during the last year of this Lease, Lessee Will surrender possession of such portions thereof, so that Lessor or any future tenant may enter upon said land and prepare it for cultivation for the following year; and that no crops which would not ordinarily be harvested before the termination of the last year of this Lease shall be planted without the written consent of the Director of Aviation, and any crops growing on said premises in violation of this provision shall revert to Lessor as its absolute property, together with any plowing or work done by Lessee without such written consent. IMPROVEMENTS ON PREMISES. Lessee agrees to keep all fences, buildings and other improvements in as good condition as they are in at the time of entry onto the leased premises, the usual wear and tear and injury or damage by fire not the result of the negligence of Lessee or agents and the elements or acts of God excepted. If the buildings or other improvements on the land and premises herein leased are destroyed or so damaged that they cannot be repaired except by substantially rebuilding them, Lessor shall be under no obligation to rebuild or repair said buildings or improvements. No alterations in the buildings or improvements shall be made and no substantial improvements shall be placed on the premises by Lessee without the written consent of the Director of Aviation, and both parties herein agree that any improvements placed Nadia V. Soliz 6 thereon contrary hereto shall become the property of the Lessor and shall not be removed by Lessee, in whole or in part. RECORDS. Lessee agrees to keep adequate records and books of account, to be open at all reasonable times for inspection by the Director of Aviation and all other duly authorized agents of the Lessor, and to annually render to the Lessor a satisfactory written account showing the total number of bales of cotton produced from said land and/or the total number of applicable units of other crops produced therefrom, and the sales price thereof. ARTICLE SIX INSURANCE Lessee shall carry and maintain insurance at all times that this Lease is in effect, at Lessee's sole expense with an insurance underwriter authorized to do business in the State of Texas and acceptable to the Lessor, against claims of general liability and automobile liability resulting from Lessee's business activities at the Airport. Lessor may review and adjust the insurance limits in order to reflect reasonable coverage as necessary. Farm General Liability Insurance -Lessee shall have Farm General Liability Insurance with limits of $300,000 combined single limit in the aggregate and per occurrence. Comprehensive Automobile Liability Insurance -The Lessee shall have Comprehensive Automobile Liability Insurance, with limits of not less than bodily injury/property damage $300,000 ·combined single limit, to include all owned and nonowned vehicies, including employer's nonownership liability hired and nonowned vehicles. The above-mentioned liability policies shall all include a waiver of subrogation and name Lessor as an additional insured. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the Lessor's Director of Aviation prior to entry upon the Premises by the Lessee. The insurer shali notify the Director of Aviation of any alteration, renewal or cancellation, and remain in full force and effect until at least thirty Nadia V. Soliz 7 (30) days after such notice of alteration, renewal or cancellation is received by the Director of Aviation. INDEMNIFICATION. The Lessee shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the Lessor shall in no way be responsible therefore. Lessee shall indemnify and hold harmless, to the fullest extent permitted by law, Lessor, and Lessor's respected officers, employees, elected officials and agents, from and against any and all losses, damages, claims or liabilities, of any kind or nature, which arise directly or indirectly, or are related to, in any way, manner or form, the activities of Lessee contemplated hereunder, or the omission of the Lessee's activities contemplated hereunder. Lessee further covenants and agrees to defend any suits or administrative proceedings brought against Lessor and/or Lessor's respective officers, employees, elected· officials and/or agents on account of any claim for which it is obligated to indemnify Lessor, and to pay or discharge the full amount or obligation of any such claim incurred by, accruing to, or imposed on Lessor, or Lessor's respective officers, employees, elected officials and/or agents, as applicable, resulting from any such suits, claims, and/or administrative proceedings or any matters resulting from the settlement or resolution of said suits, claims, and or administrative proceedings. In addition, Lessee shall pay to Lessor, Lessor's respective officers, employees, elected officials and/or agents, as applicable, all attorneys' fees incurred by such parties in enforcing Lessee's indemnity in this section. Indemnification -Environmental Harm. Without limiting any provisions of this Agreement, Lessee shall also defend, indemnify and hold Lessor and its respective officers, employees, elected officials and agents harmless from and against all suits, actions, claims, demands penalties, fines liabilities, settlements, damages, costs and expenses (including but not limited to reasonable attorney's and consultant's fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, brought against Lessor arising out of or in any way related to: 1. Any actual, threatened or alleged contamination by hazardous substances of the Premises or contamination by hazardous substances of the Airport by Lessee or its agents; Nadia V. Soliz 8 2. The presence, disposal, release or threatened release of hazardous substances by Lessee or its agents at the Airport that is on, from or affects the soil, air, water, vegetation, buildings, personal property, persons, animals or otherwise; 3. Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to hazardous substances by Lessee at the Airport; or 4. Any violation by Lessee of any Environmental Laws th~t affects the Airport. ARTICLE SEVEN GENERAL CONDITIONS This Lease is granted subject to the following provisions and conditions. Failure of the Lessee to comply with any requirement of Article Six shall be cause for immediate termination of this Agreement by Lessor. RULES AND REGULATIONS. Lessor reserves the right to issue through its Director of Aviation such reasonable rules, regulations and procedures for activities and operations conducted on the Airport as deemed necessary to protect and preserve the safety, security and welfare of the Airport and all persons, property and facilities located thereon. The Lessee's officers, agents, employees and servants will obey all rules and regulations which may be promulgated from time to time by the Lessor or its authorized agents at the Airport, or by other lawful authority, to ensure the safe and orderly conduct of operations and traffic on the Airport. The taxiways, runways and adjacent safety areas of the Airport shall not be used by the Lessee or any agent, servant or employee of the Lessee as a passage or roadway for any· tractor, plow, implement or other vehicle of any character, and Lessee shall not otherwise enter in or upon these areas or park any equipment or vehicle upon said areas. No irrigation ditch shall be placed in such close proximity to a taxiway, runway or safety area on the Airport so that the foundations thereof or surface may be flooded or weakened by water seepage, and no irrigation ditch shall be constructed at any location unless expressly approved by the Director of Aviation. Nadia V. Soliz 9 NON-DISCRIMINATION PRACTICES. Lessee, its agents and employees will not discriminate against any person or class of persons by reason of age, sex, race, color, handicap, religion or national origin in providing any services or in the use of any of its facilities provided for the public, in any manner prohibited by Federal Aviation Administration Regulations. · Lessee further agrees to comply with such enforcement procedures as the United States Government might demand that the Lessor talce in order to comply with the Sponsor's Assurances. Lessee agrees not to illegally discriminate against any employee or applicant for employment because of age, sex, race, color, handicap, religion or national origin. FEES, TAXES, AND PERMITS. Lessee shall pay for all licenses, permits, clearances, rights-of-way and other matters necessary to conduct business. Lessee shall pay promptly when due all fees, taxes and charges assessed under State, local or Federal statutes or ordinances insofar as they are applicable. Delinquency in payment of such obligations after any protest has been settled shall, at the option of the Lessor, be cause for immediate termination of this lease. ADDITIONS, IMPROVEMENTS OR ALTERATIONS. Lessee shall not make, permit or suffer any additions, improvements or alterations to the leased premises which constitute any major structural change or changes without first submitting plans and specifications for such additions, improvements or alterations to the Director of Aviation and· securing prior written consent from the Director of Aviation. Any such additions, improvements or alterations made with the consent of the Director of Aviation shall solely at the expense of the Lessee and, unless such consent provides specifically that title to the additions or improvements so made shall vest in the Lessee, title thereto shall at all times remains in Lessor, and such additions or improvements shall be subject to all terms and conditions of this Agreement, provided however, that any trade fixtures installed by Lessee may be removed by Lessee at its expense. The Lessee agrees to hold Lessor harmless from all Mechanic's and Materialman's Liens arising from any construction, additions, improvements, repairs or alterations effected by the Lessee. Any property installed or added by Lessee which becomes permanently attached to the Leased Premises shall become the property of Lessor upon termination of this Agreement, Nadia V. Soliz 10 provided however, that any trade fixtures installed by Lessee may be removed by Lessee at its expense. TRASH, GARBAGE, REFUSE, ETC. Lessee shall provide a complete and proper arrangement for the adequate sanitary handling and disposal, away from the Airport, of all trash, garbage and other refuse produced as a result of Lessee's business operations on the leased premises. BUSINESS SOLICITATIONS. All of Lessee's business operations and solicitations will be confined to the leased premises or such other premises at the Airport that have been leased to Lessee. NO ASSIGNMENT OR SUBLETTING. Lessee will not directly or indirectly assign, sublet, sell, hypothecate or otherwise transfer this Lease or any portion of the leased premises without the prior written consent of Director of Aviation. No such assignment or subletting shall affect Lessee's obligations to make all required rental payments hereunder. ABANDONMENT. Should Lessee abandon said premises, or sell or attempt to sell any part of the crops before they are matured or harvested, all of Lessee's interest in all said crops shall be immediately forfeited to Lessor, and Lessor shall have the right to enter upon and take possession of said premises. EXCLUSIVITY. Lessee's right to conduct business at the Airport shall be nonexclusive. WAIVER. The failure of Lessor to insist in any one or more instance upon performance of any of the terms, covenants or conditions of this Lease shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions, and Lessee's obligation with respect to such future performance shall continue to be in full force and effect. Furthermore, the acceptance of rentals or fees by Lessor after Lessee's failure to perform, keep or observe any of the terms, covenants or conditions of the Lease shall not be deemed a waiver by Lessor to cancel this Agreement for such failure. TITLE TO LEASED PREMISES. Lessee agrees that it does not acquire any equity or title to the leased premises as a result of this Agreement and that the property herein Nadia V. Soliz 11 leased shall remain the sole property of Lessor. Lessor grants Lessee a leasehold interest by and through this Agreement. STORED CONTENTS. Lessee agrees to limit the outside storage of any and all materials, components, assemblies and repaired and manufactured products to the area on the leased premises and to control the growth of vegetation and weeds on the leased premises. ARTICLE EIGHT TERMINATION This Agreement will terminate without further notice when the lease term (or any extension thereof) expires, and if the Lessee holds over after the term expires such hold over will not constitute a renewal of the Agreement or give Lessee any rights under this Agreement in or to the premises. Lessee agrees to give peaceful possession of said property at the termination of this Lease in as good condition as reasonable use and wear will permit, it being the absolute intention of the parties hereto that this Lease shall expire upon the date above determined. This Agreement is subject to termination for the reason set forth below, provided that thirty (30) days written notice is given to the Lessee. In the event Lessee fails or refuses to keep and perform any covenant or condition of this Lease in the time and manner herein stated, the Director of Aviation shall have the right, to declare this Agreement null and void and enter and take possession of said premises without being deemed guilty of trespass and without prejudice to any other remedy the Lessor may have for the collection of rents or the enforcement of this Lease. In case of Lessor's sale of said premises during the tenancy by Lessee thereof to a purchaser who desires possession, Lessee agrees to surrender the same at once upon receipt by him of the actual present value of the growing crops, and the refund of the pro- rata part of the cash payment for grass land, if any, according to the calendar year that has passed, such value to be determined by Lessee and the Director of Aviation, if they cannot agree, by three disinterested parties, one to be selected by the Director of Nadia V. Soliz 12 Aviation, one by Lessee and the two to choose a third, and their decision as to value shall be binding. ARTICLE NINE MISCELLANEOUS PROVISIONS NOTICES. Notices to the Lessor required or appropriate under this Lease shall be deemed sufficient if in writing and mailed by registered mail with postage prepaid to the Director of Aviation, Lubbock International Airport, Route 3, Box 389, Lubbock, Texas 79403. Notices to the Lessee required or appropriate under this Lease shall be deemed sufficient if in writing and mailed by registered mail with postage prepaid to Nadia V. Soliz, 201 A venue D, Abernathy, Texas 79311. PARTIES BOUND. This Agreement binds, and inures to the benefit of, the parties to the Lease and their respective heirs, executors, administrators, legal representative, successors, and assigns. APPLICABLE LAW. This Agreement is to be construed under Texas law, and all obligations of the parties created by this Lease are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. ATTORNEY'S FEES. Should Lessor institute legal action to collect rent due under this Agreement or damages for default of any covenant made herein, a reasonable sum shall be added to the amount of recovery for attorney's fees together with all costs of court. PRIOR AGREEMENTS. Both parties hereby agree that this instrument constitutes the final Agreement to the parties and that all other previous agreements,· leases and contracts between the parties which pertain to the property described herein are hereby declared null and void. AMENDMENT. No amendment, modification, or alteration of this Lease is binding unless in writing, dated subsequent to the date of this Lease, and duly executed by the parties. Nadia V. Soliz 13 EXECUTED this 9th day of ___ J_un_e ___ , 2004. LESSOR: ATTEST: ~~.~~ APPROVED AS TO FORM: ~.~~~£~~·· Linda Chamales, Supervising Attorney-Office Practice Nadia V. Soliz 14 EXHIBIT A Resolution No. 2004-R0262 CHOUSE NORTH APPROX. 30 ACRES ADDED TO CULTIVATION ORIGINAL AREA OF FARM LEASE APPROX. 115 ACRES LAKE AREA ' .. - FM 1294