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HomeMy WebLinkAboutResolution - 5830 - Ground Lease - WTMPA - LP&L Plant #2 - 04_23_1998RESOLUTION NO. 5830 Item #29 April 23, 1998 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 Ground Lease, attached herewith, by and between the City of Lubbock and West Texas Municipal Power Agency, and any associated documents, which Lease 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 23rd day of April , 1998. WINDY TON,, MAYOR ATTEST: 1("�' "V -- Kay Darnell, City Secrets APPROVED AS TO CONTENT: Paul Thompson, Managing Director of Electric Utilities APPROVED AS TO FORM: Richard K , Natural Resources Attorney da/ccdocs11ease-wtmpa. res Aprd 15, 1998 RESOLUTION NO. 5830 Item # 29 April 23, 1998 GROUND LEASE This Lease is entered into on the 23' day of April, 1998 between the City of Lubbock ("Landlord"'), a Texas municipal corporation, and West Texas Municipal Power Agency, ("Tenant"'), a Texas municipal corporation and political subdivision of the State of Texas. ARTICLE 1. DEMISE OF LEASED PREMISES In consideration of the mutual covenants and agreements of this lease, and other good and valuable consideration, Landlord demises and leases to Tenant, and Tenant leases from Landlord, the premises situated at Lubbock Power & Light, Plant No. 2 , in the city of Lubbock, Lubbock County, Texas, legally described on Exhibit A attached to this lease, and made a part of this lease for all purposes (collectively referred to as "the premises" or "the leased premises" in this lease). Tenant is to have and to hold the premises, together with all rights, privileges, easements, appurtenances, and immunities belonging to or in any way appertaining to them, including but not limited to any easements, rights, title, and privileges of Landlord, existing now or at any time during the lease term, in, to, or under adjacent streets, side- walks, alleys, party walls, and property contiguous to the premises and reversions that may later accrue to Landlord as owner of the premises by reason of the closing of any street, sidewalk, or alley. ARTICLE 2. LEASE TERM 2.01. Fixed Beginning and Termination Date. The term of this Lease shall be of equal duration with any outstanding "West Texas Municipal Power Agency Revenue Bonds, Series 1998" (the "Bonds") and shall continue thereafter unless either Tenant or Landlord gives one (1) year's advance notice of termination. 2.02. Right to Extend. Tenant may extend this lease for 10 additional years by giving Landlord written notice of Tenant's intention to do so within the last 2 years before the lease term expires but no later than 6 months before it expires, under all the terms of this lease. 2.03. Termination. This lease will terminate without further notice when the term specified in 2.01 expires, and any holding over by Tenant after that term expires, other than as provided in 2.02, will not constitute a renewal of the lease or give Tenant any rights under the lease in or to the premises. 2.04. Holdover. If Tenant holds over and continues in possession of the prem- ises after the lease term (or any extension) expires, other than as provided in 2.02, Tenant will be considered to be occupying the premises on an at will tenancy, subject to all the terms of this lease. ARTICLE 3. RENT 3.01. Minimum Yearly Rent. Tenant will pay Landlord $120 as good and valu- able consideration, per year, during the first 20 years of this Lease as annual rent for us- ing and occupying the premises. This amount is the "minimum yearly rent." 3.02. Automatic Rental Adjustments. After the lease term specified in 2.01, and during the 10 year extension period of the Lease, the yearly rent will continue to be $120 per year. 3.03. Time and Manner of Payment. Tenant will pay all rent due under this arti- cle on an annual basis. Such annual rent is due on or before January 15th of each year. Payments must be in lawful money of the United States to designated representative of Landlord in Lubbock, Texas. 3.04. Interest on Delinquent Pam. Rent installments unpaid for 30 days will bear interest at the rate of 10% annually, beginning on the day after each such in- stallment was due and continuing until the installment is paid as provided in 3.03, above. ARTICLE 4. TAXES 4.01. Payment by Tenant. In addition to the rent specified in Article 3, Tenant will pay and discharge all taxes, general and special assessments, and other charges of any kind levied on or assessed against the premises and all interests in the premises and all improvements and other property on them during the lease term, whether belonging to Landlord or to Tenant. Tenant will pay all the taxes, charges, and assessments directly to the public officer charged with their collection not fewer than 15 days before they be- come delinquent, and Tenant will indemnify Landlord and hold it harmless from all such taxes, charges, and assessments. Tenant may, in good faith at its own expense (in its own name or in that of Landlord, or both, as Tenant may determine appropriate), contest any such taxes, charges, and assessments and must pay the contested amount, plus any penal- ties and interest imposed, if and when finally determined to be due. 4.02. Payment by Landlord. At any time that the payment of any item of taxes, special assessments, or governmental charges that Tenant must pay under 4.01 remains unpaid and uncontested later than 15 days before it becomes delinquent, Landlord may give written notice to Tenant of its default under 4.01, specifying the default. If Tenant continues to fail to pay the taxes, special assessments, or governmental charges, or to contest them in good faith within 10 days after the written notice, Landlord may pay the items specified in the notice, and Tenant will, on demand, reimburse Landlord any amount paid or expended by Landlord for this purpose, with interest on the amount at the rate of 10% annually from the date of Landlord's payment until reimbursement by Ten- ant. ARTICLE 5. UTILITIES Tenant will pay or cause to be paid all charges for water, heat, gas, electricity, sewers, and all other utilities used on the premises throughout the lease term, including any connection fees. ARTICLE 6. USE OF PREMISES 6.01. Permitted and Prohibited Use of Premises. a. Tenant may use the prem- ises for the purpose of constructing and operating a combined cycle generation plant as well as the appurtenances and equipment necessary to operate said generation plant and for no other purpose without the written consent of Landlord. Landlord will not unrea- sonably withhold consent to a change of use. b. Subject to the terms hereof, during the term of this lease Tenant will not use or cause to be used in the business operated on the premises any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the premises. Landlord may consent, in the event that it deems that it is necessary in the ex- ercise of Good Utility Practice, as defined in that certain Operation Management Agree- ment, of even date herewith, by and between Landlord and Tenant, to utilize and/or store hazardous or toxic substances upon the leased premises. 6.02. Illegal Use Not Permitted. Tenant may not use all or any part of the premises or any building situated on them for any use or purpose that violates any valid and applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Lubbock, the City of Lubbock, or other lawful authority with jurisdiction over the premises. ARTICLE 7. CONSTRUCTION BY TENANT 7.01. General Conditions. Tenant may, at any time and from time to time dur- ing the lease term, erect, maintain, alter, remodel, reconstruct, rebuild, replace, and re- move buildings and other improvements on the premises, and correct and change the contour of the premises, subject to the following: a. Tenant bears the cost of any such work. b. The premises must at all times be kept free of mechanics' and ma- terialmen's liens. C. Landlord must be notified of the time for beginning and the general nature of any such work, other than routine maintenance of existing buildings or improvements, at the time the work begins. 3 d. The conditions of 7.04 concerning Landlord's approving plans must be followed. 7.02. Easements, Dedications, Zoning, and Restrictions. Landlord will cooper- ate, to the extent it deems feasible, with Tenant concerning easements, dedications, zon- ing, and restrictions of the premises as follows: a. Easements and Dedications. To provide for the more orderly de- velopment of the premises, it may be necessary, desirable, or required that street, water, sewer, drainage, gas, power lines, and other easements and dedications and similar rights be granted or dedicated over or within portions of the premises. Landlord may, in its sole discretion, on Tenant's request, join with Tenant in exe- cuting and delivering the documents, from time to time, and throughout the lease term, as may be appropriate, necessary, or required by the several governmental agencies, public utilities, and companies for the purpose of granting the easements and dedications. b. Zoning. If Tenant considers it necessary or appropriate to obtain use, zoning, or subdivision and precise plan approval and permits for the premises or any part of them, Landlord may, in its sole discretion, execute the documents, petitions, applications, and authorizations as are appropriate or required to submit the premises, or any part of them, for the purposes of obtaining conditional use permits, zoning and rezoning, tentative and final tract approval, precise plan ap- proval, and further, for the purposes of annexation to or the creation of districts and governmental subdivisions. C. Restrictions. At Tenant's request, Landlord may, in its sole discre- tion, from time to time, execute and deliver or join in the execution and delivery of the documents that are appropriate, necessary, or required to impose on the premises covenants, conditions, and restrictions providing for the granting of ex- clusive uses of the premises, or any part of them; the establishment of common and parking areas; the establishment of party walls; provisions for enlarging the common and parking areas by establishing mutual and reciprocal parking rights and the rights of ingress and egress; and other like matters, all of which are for the purpose of orderly development of the premises as a commercial unit. d. Expenses. Tenant exclusively bears the cost and expense of any action requested of Landlord under subparagraphs a through c, above. 7.03. Beginning Construction. Tenant expects to begin construction of a com- bined cycle generation plant within 120 days after possession is delivered to Tenant or after all necessary permits and other authorizations are issued, whichever is later. 4 7.04. Landlord's Approval of Plans. The following rules govern Landlord's ap- proving construction. additions, and alterations of buildings or other improvements on the premises: a. Written Approval Required. No building or other improvement may be constructed on the premises unless the plans, specifications, and proposed location of the building or other improvement has received Landlord's written ap- proval and the building or other improvement complies with the approved plans, specifications. and proposed location. No material addition to or alteration of any building or structure erected on the premises may be begun until plans and speci- fications covering the exterior of the proposed addition or alteration have been first submitted to and approved by Landlord. b. Submission of Plans. Tenant must, at its own expense, engage a licensed architect or engineer to prepare plans and specifications for constructing a combined cycle generation plant or for constructing any other buildings or im- provements or additions or alterations to any buildings or improvements that re- quire Landlord's approval under subparagraph a above. Tenant must submit 2 copies of detailed working drawings, plans, and specifications for constructing a combined cycle generation plant for Landlord's approval within 60 days after this lease is executed. If Tenant wishes to construct any other buildings or improve- ments or make any additions or alterations to buildings or improvements for which Landlord's approval is required under Subsection (a) above, Tenant must submit 2 copies of detailed working drawings, plans, and specifications for any such projects for Landlord's approval before the project begins. C. Landlord's Approval. Landlord will promptly review and approve all plans submitted under subparagraph b above or note in writing any required changes or corrections that must be made to the plans. Any required changes or corrections must be made, and the plans resubmitted to Landlord, within 30 busi- ness days after the corrections or changes have been noted. Landlord's failure to object to the resubmitted plans and specifications within 10 business days consti- tutes its approval of the changes. Minor changes in work or materials not affecting the general character of the building project may be made at any time without Landlord's approval, but a copy of the altered plans and specifications must be furnished to Landlord. d. Exception to Landlord's Approval. The following items do not re- quire submission to, and approval by, Landlord: i. Minor repairs and alterations necessary to maintain existing structures and improvements in a useful state of repair and operation. F1 ii. Changes and alterations required by an authorized public offi- cial with authority or jurisdiction over the buildings or improvements, to comply with legal requirements. e. Effect of Approval. Landlord's approval of any plans and specifi- cations applies only to the conformity of the plans and specifications to the gen- eral architectural plan for the premises, and Landlord may not unreasonably with- hold approval. Landlord's approval does not constitute approval of the architec- tural or engineering design, and Landlord, by approving the plans and specifica- tions, assumes no liability or responsibility for the architectural or engineering de- sign or for any defect in any building or improvement constructed from the plans or specifications. 7.05. Ownership of Buildings, Improvements, and Fixtures. Any buildings, im- provements, additions, alterations, and fixtures (except furniture and trade fixtures) con- structed, placed, or maintained on any part of the leased premises during the lease term are considered part of the real property of the premises and must remain on the premises and become Landlord's property when the lease terminates. 7.06. Right to Remove Improvements. Tenant may, at any time while it occu- pies the premises, or within a reasonable time thereafter, remove any furniture, machin- ery, equipment, including, but not limited to the power generators or other trade fixtures owned or placed by Tenant, its subtenants or licensees, in, under, or on the premises, or acquired by Tenant, whether before or during the lease term. Before the lease terminates, Tenant must repair any damage to ;any buildings or improvements on the premises re- sulting from the removal. Any such items not removed by the lease termination date will become Landlord's property on that date. ARTICLE 8. ENCUMBRANCE OF LEASEHOLD ESTATE 8.01. Tenant's Right to Encumber. Tenant may, at any time and from time to time, encumber the leasehold interest, by deed of trust, mortgage, or other security in- strument, without obtaining Landlord's consent, but no such encumbrance constitutes a lien on Landlord's fee title. The indebtedness secured by the encumbrance will at all times be and remain inferior and subordinate to all the conditions, covenants, and obligations of this lease and to all Landlord's rights under this lease. References in this lease to "Lender"' refer to any person or entity to whom Tenant has encumbered its leasehold in- terest. 8.02. Notices to Lender. At any time after execution and recordation in Lubbock County, Texas, of any mortgage or deed of trust encumbering Tenant's lease- hold interest, Lender may notify Landlord in writing that the mortgage or deed of trust has been given and executed by Tenant and furnish Landlord with the address to which it wants copies of notices to be mailed, or designate some person or corporation in the City of Lubbock, Texas, as its agent and representative for the purpose of receiving copies of 0 notices. Landlord must mail to Lender and to any agent or representative designated by Lender, at the addresses given, duplicate copies of all written notices that Landlord gives or serves on Tenant under the terms of this lease after receiving such a notice from Lender. 8.03. Lender's Consent Required for Modification. Landlord and Tenant will neither modify nor terminate this lease by mutual consent without Lender's written con- sent. 8.04. Lender's Right to Prevent Forfeiture. Lender may do any act required of Tenant to prevent forfeiture of Tenant's leasehold interest; all such acts are as effective to prevent a forfeiture of Tenant's rights under this lease as if done by Tenant. 8.05. Lender's Right to Foreclose. Lender may realize on the security afforded by the leasehold estate by exercising foreclosure proceedings or power of sale or other remedy afforded in law or equity or by the security documents and may transfer, convey, or assign Tenant's title to the leasehold estate created by this lease to any purchaser at any such foreclosure sale. Lender also may acquire and succeed to Tenant's interest under this lease by virtue of any such foreclosure sale. Any purchaser of the property at a foreclo- sure sale becomes obligated to Lender as the Tenant under the lease. ARTICLE 9. REPAIRS, MAINTENANCE, AND RESTORATION 9.01. Tenant's Duty to Maintain and Repair. At all times during the lease term, Tenant will keep and maintain, or cause to be kept and maintained, all buildings and im- provements erected on the premises in a good state of appearance and repair (except for reasonable wear and tear) at Tenant's own expense. 9.02. Damage or Destruction. If any building or improvement constructed on the premises is damaged or destroyed by fire or any other casualty, regardless of the ex- tent of the damage or destruction, Tenant must, within one year from the date of the dam- age or destruction, begin to repair, reconstruct, or replace the damaged or destroyed building or improvement and pursue the repair, reconstruction, or replacement with rea- sonable diligence so as to restore the building to substantially the condition it was in be- fore the casualty. But if beginning or completing this restoration is prevented or delayed by war, civil commotion, acts of God, strikes, governmental restrictions or regulations, or interferences, fire or other casualty, the time for beginning or completing the restoration (or both) will automatically be extended for the period of each such delay. ARTICLE 10. MECHANICS' LIENS Tenant will not cause or permit any mechanics' liens or other liens to be filed against the fee of the premises or against Tenant's leasehold interest (excluding any leasehold mortgage) in the land or any buildings or improvements on the premises by reason of any work, labor, services, or materials supplied or claimed to have been sup- 7 plied to Tenant or anyone holding the premises or any part of them through or tinder Ten- ant. If such a mechanic's lien or materialman's lien is recorded against the premises or any buildings or improvements on them, Tenant must either cause it to be removed or, if Ten- ant in good faith wishes to contest the lien, take timely action to do so, at Tenant's sole expense. If Tenant contests the lien, Tenant will indemnify Landlord and hold it harmless from all liability for damages occasioned by the lien or the lien contest and will, in the event of a judgment of foreclosure on the lien, cause the lien to be discharged and re- moved before the judgment is executed. ARTICLE 11. CONDEMNATION 11.01. Parties' Interests. If the premises or any part of them are taken for public or quasi -public purposes by condemnation as a result of any action or proceeding in emi- nent domain, or are transferred in lieu of condemnation to any authority entitled to exer- cise the power of eminent domain, this article governs Landlord's and Tenant's interests in the award or consideration for the transfer and the effect of the taking or transfer on this lease. 11.02. Total Taking --Termination. If the entire premises are taken or so trans- ferred as described in 11.01, this lease and all of the rights, titles, and interests under it will cease on the date that title to the premises or part of them vests in the condemning authority, and the proceeds of the condemnation shall be allocated by the condemning authority to (i) the real property and (ii) the buildings and permanent improvements. The proceeds allocated to the real property shall be the property of the Landlord and the pro- ceeds allocated to the buildings and permanent improvements shall be the property of Tenant. In the event the condemning authority shall not make such allocation, Landlord and Tenant shall jointly agree to such allocation. 11.03. Partial Taking --Termination. If only part of the premises is taken or trans- ferred as described in 11.01, this lease will terminate if, in the opinion of Landlord and Tenant, the remainder of the premises is in such a location, or is in such form, shape, or reduced size, that Tenant's business cannot be effectively and practicably operated on the remaining premises. In that event, this lease and all rights, title, and interest under it will cease on the date that title to the portion of the premises taken or transferred vests in the condemning authority. The proceeds of the condemnation shall be allocated as described in Section 11.02. 11.04. Partial Taking --Continuation With Rent Abatement. If part of the prem- ises is taken or transferred as described in 11.01 and, in the opinion of Landlord and Tenant, the remainder of the premises is in such a location and in such form, shape, or size that Tenant's business can be effectively and practicably operated on the remaining premises, this lease will terminate with respect to the portion of the premises taken or transferred as of the date title to such portion vests in the condemning authority but will continue in full force with respect to the portion of the premises not taken or transferred. The proceeds of the condemnation shall be allocated as described in Section 11.02. 8 11.05. Voluntary Conveyance. Nothing in this article prohibits Landlord from voluntarily conveying all or part of the premises to a public utility, agency, or authority under threat of a taking under the power of eminent domain. Any such voluntary convey- ance will be treated as a taking within the meaning of this article. ARTICLE 12. INDEMNIFICATION AND INSURANCE 12.01. Indemnification of Landlord. Landlord is not liable for any loss, damage, or injury of any kind to any person or property arising from any use of the premises (or any part of them), or caused by any defect in any building, structure, improvement, equipment, or facility on the premises or arising from activities contemplated hereby, or by or from any accident, fire, or other casualty on the leased premises. TENANT SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE LANDLORD, AND LANDLORD'S RESPECTIVE OFFICERS, EM- PLOYEES, 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 CONTEMPLATED HEREUNDER, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES AND/OR CAUSED OR CONTRIBUTED TO, IN ANY WAY, MANNER OR FORM, BY THE NEGLIGENCE OR FAULT OF ANY DEGREE, OF LANDLORD, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AND TEN- ANT FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR AD- MINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE LANDLORD AND/OR THE LANDLORD'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFI- CIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM. IN ADDITION, TENANT SHALL PAY TO THE LANDLORD, THE LANDLORD'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLI- CABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORC- ING TENANT'S INDEMNITY IN THIS SECTION. 12.02. Insurance. Tenant shall procure and carry, at its sole cost and expense through the life of this lease, insurance protection as hereinafter specified, in form and substance satisfactory to the Landlord, carried with an insurance company authorized to transact business in the State of Texas, covering all foreseeable aspects and operations in connection with this lease, including, but not limited to, all aspects, operations and/or oc- currences to which Tenant has indemnified the Landlord, as provided in Section 12.01, above. A Certificate of Insurance specifying each and all coverages shall be submitted to the Landlord no later than thirty (30) days after the execution of this lease by the Land- lord, except as it relates to the required Building Risk Insurance, of which said Certificate shall be submitted no later than fifteen (15) days prior to the commencement of construc- w tion activities. Tenant shall provide to the Landlord proof of the below -described insur- ance on or before fourteen (14) days prior to the expiration date of each expiring policy. Tenant shall cause each required policy to require the insurer to (i) give notice to the City, as specified herein, of termination of any such policy sixty (60) days before such termi- nation is to be effective; and (ii) contain a waiver of any and all of the insurer's rights to subrogation that any such insurer or insurers may acquire by virtue of payment of any loss under such insurance. A. Comprehensive General Liability Insurance. Tenant shall have comprehensive general liability insurance, with limits of $1,000,000 combined single limit in the aggregate and per occur- rence. The Landlord shall be named as an additional insured in such policy. B. Owner's Protective or Contingent Public Liability Insurance and Property Damage Liability Insurance. Tenant shall obtain an Owner's Protective or Contingent Public Liability Insurance policy naming Landlord as insured, in the amount of, for bodily injuries, including accidental death and/or property damage, $1,000,000 combined single limit. This insurance coverage shall include cov- erage against casualty or damage, including, but not limited to, damage caused by fire and/or vandalism, to any and all buildings and/or improvements located on the leased premises, and shall name the Landlord as an additional insured. C. Worker's Compensation Insurance. All contractors, other than the Landlord, hired by Tenant to perform work at any site on the leased premises shall maintain throughout the course of the job worker's compensation insurance coverage in accordance with the statutory requirements of the State of Texas. D. Builder's Risk Insurance. Tenant, or its construction contractor(s), if applicable, shall have Builder's Risk Insurance in the amount of one hundred percent (100%) of the prices of each contract relating to the construction activities contemplated hereby, and shall name the Landlord as an additional insured. ARTICLE 13. ASSIGNMENT AND SUBLEASE 13.01. Tenant Assignment. Tenant may sell or assign its leasehold estate in its entirety or any portion of it, or may sublet the premises or any portion of them or any portion of any building or other improvement erected on the premises, at any time and from time to time, and the rights of Tenant or its successor or assignee, may pass by op- 10 eration of law. But each such transfer, assignment, or sale is subject to Tenant's obliga- tions to Landlord under this lease and will not release Tenant from its obligations under this lease. It shall be a condition precedent to any assignment or sublease that the As- signee or Sublessee of this lease express, in writing, the assumption of all obligations hereunder. ARTICLE 14. DEFAULT AND REMEDIES 14.01. Termination on Default. If Tenant defaults in performing any covenant or term of this lease and does not correct the default within 10 days after receipt of written notice from Landlord to Tenant and any lender as required by 8.02, Landlord may de- clare this lease, and all rights and interests created by it, terminated. If Landlord elects to terminate, this lease will cease as if the day of Landlord's election were the day originally fixed in the lease for its expiration. Landlord or its agent or attorney may resume posses- sion of the premises and relet them for the remainder of the term at the best rent obtain- able for the account of Tenant, who must make good any deficiency. Tenant and Landlord agree that, for the purpose of posting the notice required by Property Code Section 93.002(f) , the "front door"' of the lease premises will be deter- mined after construction of the improvements. Upon completion, Tenant will give Landlord notice of location of "front door." 14.02. Other Remedies. Any termination of this lease as provided in this article will not relieve Tenant from paying any sum or sums due and payable to Landlord under the lease at the time of termination, or any claim for damages then or previously accruing against Tenant under this lease. Any such termination will not prevent Landlord from en- forcing the payment of any such sum or sums or claim for damages by any remedy pro- vided for by law, or from recovering damages from Tenant for any default under the lease. All Landlord's rights, options, and remedies under this lease will be construed to be cumulative, and no one of them is exclusive of the other. Landlord may pursue any or all such remedies or any other remedy or relief provided by law; whether or not stated in this lease. No waiver by Landlord of a breach of any of the covenants or conditions of this lease may be construed a waiver of any succeeding or preceding breach of the same or any other covenant or condition of this lease. 14.03. Subleases Not Affected. Landlord's exercising any remedy, other than termination of this lease, does not affect the existence of subleases that were entered into with Tenant according to this lease and that cover any portion of the premises. ARTICLE 15. LANDLORD'S WARRANTIES AND COVENANTS 15.01. Warranty of Title. Landlord warrants that it is the owner of indefeasible title to the premises, subject only to the covenants, conditions, easements, and other mat- ters of record. 11 15.02. Warranty of Quiet Enjoyment. Landlord covenants that as long as Tenant pays the rent and other charges under this lease and observes the covenants and terms of this lease, Tenant will lawfully and quietly hold, occupy, and enjoy the premises during the lease term without being disturbed by Landlord or any person claiming under Land- lord, except for any portion of the premises that is taken under the power of eminent do- main. ARTICLE 16. GENERAL PROTECTIVE PROVISIONS 16.01. Right of Entry and Inspection. Tenant must permit Landlord or its agents, representatives, or employees to enter the premises for the purposes of inspection; deter- mining whether Tenant is complying with this lease; maintaining, repairing, or altering the premises; or showing the premises to prospective tenants, purchasers, mortgagees, or beneficiaries under trust deeds. 16.02. No Partnership or Joint Venture. The relationship between Landlord and Tenant is at all times solely that of landlord and tenant and may not be deemed a partner- ship or a joint venture. 16.03. Force Majeure. If constructing the building as provided in 7.03 or curing any default (other than failure to pay rent, insurance premiums, or ad valorem taxes) or performing any other covenant or term is delayed by reason of war, civil commotion, act of God, governmental restrictions, regulations, or interference, fire or other casualty, each party so delayed is excused from performance during the delay period. 16.04. No Termination on Bankruptcy. Bankruptcy, insolvency, assignment for the benefit of creditors, or the appointment of a receiver will not affect this lease as long as Tenant and Landlord or their respective successors or legal representatives continue to perform all covenants of this lease. 16.05. No Waiver. No waiver by either party of any default or breach of any covenant or term of this lease may be treated as a waiver of any subsequent default or breach of the same or any other covenant or term of this lease. 16.06. Transfer by Landlord. Landlord may dispose or abandon the leased prem- ises and/or substantially all of its electric generating facilities, and in such event, this lease will be transferred and/or assigned to the purchaser of such facilities as of the effec- tive date of such disposal or abandonment, without the consent of Tenant. Upon such transfer and/or assignment, if the Bonds have been paid, or provision for their payment has been made, pursuant to the terms of the Resolution authorizing the issuance of the Bonds, Landlord shall be released and relieved of all of its obligations and liabilities un- der this Lease, occurring or accruing from and after the effective date of such disposal or abandonment. 12 16.07. Release of Landlord. If Landlord sells or transfers all of the lease prem- ises, or sells or transfers a part of the premises and as a part of the transaction assigns its interest as Landlord in this lease, then as of the effective date of the sale, assignment, or transfer, if the Bonds have been paid, or provision for their payment has been made, pur- suant to the terms of the Resolution authorizing the issuance of the Bonds, Landlord will have no further liability under this lease to Tenant. 16.08. Joint and Several Liability. If this lease names more, or is assigned or sublet to more, than one Tenant or Landlord, the obligation of all such Tenants or Land- lords is joint and several. ARTICLE 17. MISCELLANEOUS 17.01. Delivery of Rents and Notices. All rents or other sums, notices, demands, or requests from one party to another may be personally delivered or sent by mail, certi- fied or registered, postage prepaid, to the addresses stated in this section and are consid- ered to have been given at the time of personal delivery or of mailing. All payments, notices, demands, or requests from Tenant to Landlord should be mailed to Landlord at Director of Electric Utilities, P. O. Box 2000, Lubbock, Texas 79457 or faxed to Landlord at (806) 775-3112, or at such other address or fax number as Landlord requests in writing. All payments, notices, demands, or requests from Landlord to Tenant should be mailed to Tenant at WTMPA, P. O. Box 2000, Lubbock, Texas 79457 or faxed to Tenant at (806) 775-3112, or at such other address or fax number as Tenant requests in writing. 17.02. Parties Bound. This agreement binds, and inures to the benefit of, the parties to the lease and their respective heirs, executors, administrators, legal representa- tives, successors, and assigns. 17.03. Texas Law to Apply. 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. 17.04. Legal Construction. If any one or more of the provisions contained in this agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision of the lease, which will be construed as if it had not included the invalid, illegal, or unenforce- able provision. 17.05. Prior Agreements Superseded. This agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter. 13 17.06. 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. 17.07. Rights and Remedies Cumulative. The rights and remedies provided by this lease agreement are cumulative. and either party's using any right or remedy will not preclude or waive its right to use any other remedy. The rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. 17.08. Attorney's Fees and Costs. If, as a result of either party's breaching this agreement, the other party employs an attorney to enforce its rights under this lease, then the breaching or defaulting party will pay the other party the reasonable attorney's fees and costs incurred to enforce the lease. 17.09. Time of Essence. Time is of the essence of this agreement. 17.10. Further Documents. Landlord will from time to time and at any reason- able time execute and deliver to Tenant, when Tenant reasonably requests, other instru- ments and assurances approving, ratifying, and confirming this lease and the leasehold estate created by it and certifying that the lease is in full force and that no default under the lease on Tenant's part exists. But if any default on Tenant's part does exist, Landlord must specify in any such instrument each such default. 17.11. Subordination of Landlord's Lien. Landlord hereby expressly subordi- nates its statutory landlord's lien as set out in §54.021 of the Texas Property Code to that lien in favor of created by that certain Trust Indenture dated , to , Trustee for 17.12. Consent by Landlord. Whenever in this Lease Landlord's consent, per- mission or approval (collectively "Consent") is required such Consent, will not be unrea- sonably withheld, delayed or conditioned, and if Landlord does not Consent or deny Con- sent within 30 business days the Landlord's Consent, will be deemed to be given as of the 31 st business day. 14 THIS LEASE has been executed by the parties on the date and year first above written. CITY OF LUBBOCK: WEST TEXAS MUNICIPAL POWER AGENCY: LANDLORD TENANT v BY: WINDY SI O , MAYOR ATTEST: ATTEST: /PIIf Kaythi�Darnell, City Secretary '*--�ecretarV APPROVED AS TO CONTENT: Paul Thompson, Managing Director of Electric Utilities APPROVED AS TO FORM: Richard K. Casne , atural Resources Attorney final2-groundtease-wtmpa.doc April 22, 1998 PLAT OF SURVEY ON A 0.55 ACRE TRACT OF LAND OUT OF TRACT "A", MUNICIPAL HILL ADDITION TO THE CITY OF LUBBOCK, LUBBOCK COUNTY, TEXAS CITY FILE No. 1221.0 FROM THIS POINT THE N.E. CORNER O� OF TRACT "A", MUNICIPAL HILL ADD-N. BEARS N 02°24'44" E. 71.77' do 9S� N 66°59'35" E. 1779.74' A �v 40 4 DESCRIPTION BEGINNING at a 1/2" iron rod with cop, set for the Northwest and beginning corner of this tract, whence the Northeast corner of Tract "A", Municipal Hill Addition to the City of Lubbock, Lubbock County, Texas bears North 02°24'44" East, 71.77 feet and North 66°59'35", 1779.74 feet; THENCE South 87*35' 16" East, 2131.00 feet to a 1/2" iron rod with cap set for the Northeast corner of this tract; THENCE South 02124' 44" West, 86.00 feet to a 1/2" iron rod with cop set for the Southeast corner of this tract; THENCE North 87135' 16" West, 281.00 feet to a 1/2" iron rod with cop set for the Southwest corner of this tract; THENCE North 02°24'44" East, 86.00 feet to the Point of Beginning; CONTAINING 0.55 acres of land. ACCORDING TO THE FLOOD INSURANCE RATE MAP. COMMUNITY PANEL No. 480452-0030-8 PUBLISHED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY. WITH EFFECTIVE DATE OF 09-02-82, THIS PROPERTY LIES WITHIN A ZONE DESIGNATION OF "C". SCALE: 1 " = 40' APRIL 3, 1998 = SET 1/2" ROD AND CAP BEARINGS BASED ON PLAT OF TRACT "A", MUNICIPAL HILL ADDITION CITY FILE No. 1221.0 This survey and all information hereon is for the exclusive use of --------------CITY OF LUBBOCK----------------- and shall not be copied or used except for the purpose for whL64 �7"P it is expressly furnished. This drawing and all copies (partioJ.."R�;4� complete) shall be returned to the owrle up demand- y�GARY D. WILSON90 11,ZA+.. --# *A*239 RegFstered P o essiona! Land Surveyor '�ijy ;Fss�a:�y0� •' WILS ON SURVEYING C o .R Registered Professional Land Surveyors Global Positioning System Surveyors FB. 398, P. 47-49 3330 70th ST. SUITE 201 * LUBBOCK, TX. 79413 (806) 792-4731 * FAX (806) 792-1646 C. 32,925