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HomeMy WebLinkAboutResolution - 2007-R0128 - Execute Lease - Bego Enterprises LLC - 03_26_2007Resolution No. 2007-RO128 March 26, 2007 Item No. 1.1 "WWWWW 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, as Lessor, and BeGo Enterprises, L.L.C. dba South Beach, as Lessee, covering Lots 17-24, inclusive, Block 231, Original Town of Lubbock, Lubbock County, Texas, according to the snap, plat or dedication deed recorded in Volume 5, Page 386, Deed Records, Lubbock County, Texas, and all related documents. Said Lease is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 26th day of ATTEST: D-0-i f--lr 0- �-L Re ecca Garza -,-City Secretary APPROVED AS TOCONTENT: Rob Allison—"j Assistant City Manager/Devclopment Services - &24� Dave Boozer, Right -of -Way Agent APPROVED AS T ORM: Richard K. Casner First Assistant City Attorney gs/ccdocs/Agrmnt-Betio Enterprises -South Beach.res 3/23/2007 March 2007. DAVID A. MILLER, MAYOR Resolution No. 2007-RO128 March 26, 2007 Item No. 1.1 Lease Basic Terms Effective Date: This Lease shall be effective as of the date of the conveyance of the Premises to Landlord, but in no event later than June 1, 2007. In the event the Landlord shall not have been conveyed the Premises on or before June 1, 2007, this Lease shall be null and void and of no force and effect. Landlord: City of Lubbock Landlord's Address: P.O. Box 2000, Lubbock, Texas 79457 Tenant: Betio Enterprises, L.L.C_ dba South Beach Tenant's Address: 5414 35`h Street, Lubbock, Texas 79407 Premises - Lots 17-24, inclusive, Block 231, Original Town of Lubbock. Lubbock County, Texas, according to the map, plat or dedication deed recorded in Volume 5, Page 386, Deed Records, Lubbock County, Texas Term: One hundred twenty (120) calendar days Commencement Date: The Effective Date Termination Date: One hundred twenty (120) calendar days after the Effective Date, or upon surrender of the Premises by Tenant to Landlord, whichever is the earlier to occur. Rent: The consideration for this Lease is the execution and delivery to Landlord of a release and quitclaim of the Premises, including any rights obtained by Tenant under that certain Lease dated on or about January 30, 2004, between Tenant and Chayn Mousa Pennitted Use: Operation as a night club Tenant's Insurance: As required by Insurance Addendurn, attached hereto as Exhibit "A" Landlord's Insurance: None Tenant's Rebuilding Obligations: If the Premises are damaged by fire or other clements, this lease shall terminate, unless Landlord shall elect to restore the Premises, in accordance with Section E., 4. Lease - BeGo Enterprises L.L.C. Page 1 of 10 Definitions "Injury" means (a) harm to or impairment or loss of property or its use, (b) harm to or death of a person, or (c) "personal and advertising injury" as defined in the form of liability insurance Tenant is required to maintain. "Landlord" means Landlord and its elected officials, agents, employees, invitees, licensees, or visitors. "Tenant" means Tenant and its agents, contractors, employees, invitees, licensees, or visitors. "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos -containing material, petroleum products and raw materials that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et seq.), as amended by the Hazardous and Solid Waste Amendments of 1984, and state superlien and environmental clean- up statutes and all rules and regulations presently or hereafter promulgated under said statutes as amended. Clauses and Covenants A. Tenant agrees to -- I , Lease the Premises for the entire Term beginning on the Commencement Date and ending on the earlier to occur of (i) Termination Date; or (ii) upon surrender of the Premises by Tenant to Landlord prior to the Termination Date. 2. ACCEPT THE PREMISES IN THEIR PRESENT CONDITION "AS IS," "WHERE IS" AND "WITH ALL FAULTS". TENANT STIPULATES THAT IT HAS THOROUGHLY INSPECTED THE PREMISES AND FINDS THAT THE PREMISES IS CURRENTLY SUITABLE FOR THE PERMITTED USE. LANDLORD MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND OR NATURE CONCERNING THE PREMISES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF HABITABILITY OR FITNESS FOR PARTICULAR PURPOSE OF USE. TENANT STIPULATES TO LANDLORD THAT IT HAS PREVIOUSLY OCCUPIED THE PREMISES AND IS AWARE OR FITNESS FOR PARTICULAR PURPOSE OF USE. TENANT STIPULATES TO LANDLORD THAT IT HAS PREVIOUSLY OCCUPIED THE PREMISES AND IS AWARE OF THE CONDITION OF THE PROPERTY. TENANT REPRESENTS AND WARRANTS TO LANDLORD THAT THERE ARE NO HAZARDOUS SUBSTANCES CONTAINED OR STORED IN OR ON THE PREMISES. 3. Obey (a) all applicable laws relating to the use, condition, and occupancy of the Premises and (b) any requirements imposed by utility companies serving or insurance companies covering the Premises. 4. Obtain and pay for all utility services used by Tenant. 5. Pay all costs related to the utilities, of any kind or nature, related to the Premises. G. Allow Landlord to enter the Premises to perform Landlord's obligations, if any, inspect the Premises, and show the Premises to third parties as it may deem appropriate or desirable. 7. Maintain the Premises in a good state of condition, normal wear and tear excepted. Notwithstanding the obligation to maintain the Premises, if so desired by Tenant, Tenant shall repair and replace any and all parts of the Premises, in its entirety. In the event Tenant does not desire to repair or replace the Premises, it shall be under no obligation to do so but shall immediately surrender the Premises to Landlord upon such election. Tenant hereby expressly stipulates that Landlord is not obligated to repair, replace, or maintain, any part or parcel of the Premises, including without limitation, the roof, HVAC systems, the walls, foundation, windows, and doors. 8. Vacate, in its entirety, the Premises on or before the last day of the Term. It is expressly stipulated that the below described equipment is the property of Tenant and may be removed by Tenant prior to the expiration of the Term or surrender of the Premises, whichever is the earlier to occur. The Premises shall not be damaged by Tenant in its removal of such Property, and in the event the Premises is so damaged, Tenant shall perform all repairs necessary to restore the conditions of the Premises to its condition prior to such removal. The property of Tenant is as follows: (i) Current sound system (ii) Current light system (iii) Neon signage on Premise (iv) I heater located in the northwest part of the building (v) 2 A/C units (vi) Tables and chairs (vii) Office equipment Lease — BeGo Enterprises L.L.C. Page 3 of 10 (viii) TV sets (ix) Schunt Trip breaker system (x) Walk in cooler unit located on the east side of the building 9. INDEMNIFY, DEFEND, AND HOLD LANDLORD HARMLESS FROM ANY INJURY (AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE, INCLUDING ATTORNEY'S FEES AND OTHER FEES AND COURT AND OTHER COSTS) OCCURRING IN OR RELATED TO ANY PORTION OF THE PREMISES. THE INDEMNITY CONTAINED IN THIS PARAGRAPH (A) IS INDEPENDENT OF TENANT'S INSURANCE, (B) WILL NOT BE LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES PAID UNDER THE WORKERS' COMPENSATION ACT OR SIMILAR EMPLOYEE BENEFIT ACTS, (C) WILL SURVIVE THE END OF THE TERM, AND (D) WILL APPLY EVEN IF AN INJURY IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF LANDLORD, BUT WILL NOT APPLY TO THE EXTENT AN INJURY IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD. 10. During the term of this Lease, Tenant will not locate, store or dispose in or on, or release or discharge from (including groundwater contamination) the Premises, any Hazardous Substances. 11. Tenant shall, at no cost or expense to Landlord, take all actions necessary to comply with all Environmental Laws affecting the Premises as a result of Tenant's use of the Premises, and Tenant shall indemnify Landlord from and against any and all costs, claims, expenses, damages, liens, losses and judgments arising out of the release of Hazardous Substances by Tenant or Tenant's failure to comply with the Environmental Laws. B. Tenant agrees not to — Use the Premises for any purpose other than the Permitted Use. 2. Create a nuisance. 3. Permit any waste. 4. Use the Premises in any way that would increase insurance premiums or void insurance on the Premises. 5. Change Landlord's lock system. 6. Alter the Premises. Lease — BeGo Enterprises L.L.C. Page 4 of 10 7. Allow a lien to be placed on the Premises. 8. Assign this lease or sublease any portion of the Premises. C. Landlord agrees to- 1. Lease to Tenant the Premises for the entire Term beginning on the Commencement Date and ending on the earlier to occur of (1) Termination Date; or (ii) upon surrender of the Premises by Tenant to Landlord prior to the Termination Date. D. Landlord agrees not to Interfere with Tenant's possession of the Premises as long as Tenant is not in default. E. Landlord and Tenant agree to the following: 1. Alterations. Any physical additions or improvements to the Premises made by Tenant must be consented to by Landlord, in its sole and absolute discretion. If such consent is obtained, said additions or improvements will become the property of Landlord. Notwithstanding such ownership, Landlord may require that Tenant, on or before the Termination Date, and at Tenant's expense, remove any physical additions and improvements, repair any alterations, and restore the Premises to the condition existing at the Commencement Date. 2. Insurance. Tenant will maintain the insurance coverages described in the attached Insurance Addendum. 3. Release of Claims/Subrogation. TENANT RELEASES LANDLORD FROM ALL CLAIMS OR LIABILITIES FOR DAMAGE TO THE PREMISES, DAMAGE TO OR LOSS OF PERSONAL PROPERTY WITHIN THE PREMISES, AND LOSS OF BUSINESS OR REVENUES ARISING FROM OR RELATED TO TENANT'S OCCUPATION OF THE PREMISES. THE RELEASE IN THIS PARAGRAPH WILL APPLY EVEN IF THE DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR STRICT LIABILITY OF THE LANDLORD BUT WILL NOT APPLY TO THE EXTENT THE DAMAGE OR LOSS IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LANDLORD. 4. Casualty/Total or Partial Destruction. If the Premises are damaged by casualty, Landlord has the option, but no duty of any kind or nature, to restore the Premises. If Landlord chooses not to restore, this lease will terminate without liability of any kind to Landlord. Lease — BeGo Enterprises L.L.C. Page 5 of 10 5. Condemnation/Substantial or Partial Taking a. If the Premises cannot be used for the purposes contemplated by this lease because of condemnation or purchase in lieu of condemnation, this lease will terminate. b. Tenant will have no claim to the condemnation award or proceeds in lieu of condemnation. 6. Default by Landlord/Events. Defaults by Landlord are failing to comply with any provision of this lease within thirty days after written notice. 7. Default by Landlord/Tenant's Remedies. Tenant's remedies for Landlord's default are solely to either (i) enforce the terms of this Lease by specific performance; or (ii) terminate this Lease. THE REMEDIES OF TENANT AS SET FORTH HEREIN ARE SOLE AND EXCLUSIVE AND TENANT WAIVES ANY OTHER RIGHT OR REMEDY THAT MIGHT BE AVAILABLE. 8. Default by Tenant/Events. Defaults by Tenant are (a) Tenant abandoning or vacating a substantial portion of the Premises without surrendering the Premises to Landlord, (b) Tenant failing to comply within ten days after written notice with any provision of this lease other than the default set forth in (a) above; (c) Tenant shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors; (d) a receiver or trustee shall be appointed for all or substantially all of the assets of Tenant; (e) Tenant shall file a voluntary petition in bankruptcy or admit in writing that it is unable to pay its debts as they become due; (f) Tenant shall apply for or consent to the appointment of a receiver, trustee, custodian, intervener or liquidator of itself or of all or substantial part of its assets; and (g) Tenant shall file an answer admitting the material allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency proceeding. 9. Default by Tenant/Landlord's Remedies. Landlord's remedies for Tenant's default are to (a) enter and take possession of the Premises, after which Landlord may relet the Premises on behalf of Tenant and receive the rent directly by reason of the reletting, and Tenant agrees to reimburse Landlord for any expenditures made in order to relet; (b) enter the Premises and perform Tenant's obligations; and (c) terminate this lease by written notice and sue for damages. Landlord may enter and take possession of the Premises by self-help, by picking or changing locks if necessary, and may lock out Tenant or any other person who may be occupying the Premises, until the default is cured, without being liable for damages. 10. Default/Waiver/Mitigation. It is not a waiver of default if the nondefaulting party fails to declare immediately a default or delays in taking any action. Except as to the sole and Lease --- BeGo Enterprises L.L.C. Page 6 of 10 exclusive remedies of Tenant, pursuit of any remedies set forth in this lease does not preclude pursuit of other remedies in this lease or provided by applicable law. Landlord and Tenant have a duty to mitigate damages. 11. Holdover. If Tenant does not vacate the Premises following termination of this lease, Tenant will become a tenant at will and must vacate the Premises on receipt of notice from Landlord. No holding over by Tenant, whether with or without the consent of Landlord, will extend the Term. 12. Attorney's Fees. If either party retains an attorney to enforce this lease, the party prevailing in litigation is entitled to recover reasonable attorney's fees and other fees and court and other costs. 13. Venue. Exclusive venue is in the county in which the Premises are located. 14. Entire Agreement. This lease, together with the attached exhibits and riders, is the entire agreement of the parties, and there are no oral representations, warranties, agreements, or promises pertaining to this lease or to any expressly mentioned exhibits and riders not incorporated in writing in this lease. 15. Amendment of Lease. This lease may be amended only by an instrument in writing signed by Landlord and Tenant. 16. Limitation of Warranties. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY STATED IN THIS LEASE, 17. Notices. Any notice required or permitted under this lease must be in writing. Any notice required by this lease will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this lease. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. 18. Abandoned Property. Landlord may retain, destroy, or dispose of any property left on the Premises at the Termination Date. 19. No Broker. Tenant represents and warrants Landlord that it has not contracted with or otherwise retained any broker or any other third party related to this lease to whom any commission or other fee may be payable. Lease — BeGo Enterprises L.L.C. Page 7 of 10 20. Authority, of Tenant. Tenant represents and warrants to Landlord that it has taken all actions necessary to authorize the party executing this lease to bind, in all respects, Tenant to all terms and provisions of this Lease, and that such person possesses the authority to execute this Lease and bind Tenant hereto. Betio Enterprises, L.L.C., dba South Beach Angela males, formerl known as Angela R. Beberniss, Member -President Chris Goov nzales, Member -Vice President STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on this �day of ` c _4 , 2007, by ANGELA GONZALES, formerly known as ANGELA R. BEBERNISS, Member -President of Betio Enterprises, L.L.C., dba South Beach. s DAVY M. BOOHER Notary Public, State of Texas My Commission Expires 12-16-2010 STATE OF TEXAS COUNTY OF Notary Pub tc, State of Texas My commission expires: This instrument was acknowledged before me on this Q71( day of / "C—1 , 2007, by CHRIS GONZALES, Member -Vice President of BeGo Enterprises, L.L.C., dba South Beach. Ya DAVY M. 80OHER &6--1 IV &21a, Notary Public, Slate of Texas Notary Public, State of Texas My Commission Expires My commission expires: 12.16-2010 .4. L Lease — BeGo Enterprises L.L.C. Page 8 of 10 City of Lubbock DAVID A. MILLER ATTEST: Rcbe ca Garza. City Secretary APPROVED AS TO CONTENT: (. � l Rob All�sa Assistant City Manager Development Services APPROVED AS TO FORM; Richard Casner First Assistant City Attorney STATE OF TEXAS COUNTY OF Ct.,,bbpck This instrument was acknowledged before me on this _ zno day of 14Pr: , 2007, by DAVID A. MILLER, Mayor of the City of Lubbock. CBLIA WEBB Notary lic, State of Texas NOWY PUNC, State OfTWS My commission expires: 6341- a010 � 'Idly Conynission EVW OMI-2010 mVKichard/Betio Leak March 15, 2007 Lease — BeGo Enterprises L.L.C. Page 9 of 10 Exhibit "A" Insurance Addendum Tenant shall procure and carry, at its sole cost and expense during the term of this lease, insurance protection as hereinafter specified, in form and substance satisfactory to Landlord, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this lease, including without limitation, the indemnity obligations set forth herein. Tenant shall obtain and maintain in full force and effect during the term of this lease, commercial general liability coverage, to include liquor liability, with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A- VII or better. The policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability: Combined Single Limit: $1,000,000 The Landlord shall be listed as a primary additional insured with respect to the Commercial General Liability and shall be granted a waiver of subrogation under the policy. Tenant will provide a Certificate of Insurance to the Landlord as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the certificate. Lease — BeGo Enterprises L.L.C. Page 10 of 10