HomeMy WebLinkAboutResolution - 2014-R0182 - Lease Termination Agreement - South Plains Plaza - Kimco Lubbock LP - 05/22/2014RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF TI II CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby attthoria_ed and directed to
execute fur and oil behalf' of the City of Lubbock, a Lease Termination Agreement in
connection with the property located in a shopping, center known as South Plains Placa ill
1,ubbock, "Texas, by and between the City of Lubbock and KIMCO LUBBOCK L. P., and
related documents. Said Agreement is attached hereto and incorporated in this resolution
as if'fully set forth herein and shall be included ill the minutes of'tlic City Council.
Passed by the City Council on May 22 2014.
ER"TSCN, MAYOR
ATTEST:
I Cbe'ca Qarza, City secretary
APPROVED AS `Td CONTENT:
uincy Whi6tDeputy City Manager
APPROVED AS TO FORM-
f
it jell a terwhite, ssistant City Attorney _
li S.Agreement-Lease'rennination KIMCQ LUBBOCK LP
7.9.1 4
Revised April 28, 2014
Revised May 6, 2014
Revised May 19, 2014
LEASE TERMINATION AGREEMENT
Project ID: STXL06781 Lease ID: LCITYL000 Tenant ID: TCITYL000
AGREEMENT dated as of , 2014, by and between KIMCO LUBBOCK
L.P., having an address at 3333 New Hyde Park Road, P. O. Box 5020, New Hyde Park, New York
11042-0020 (hereinafter called "Landlord") and CITY OF LUBBOCK, having an address at 1625 13TH
Street, Lubbock, TX 79457 (hereinafter called "Tenant'), which terms "Landlord" and "Tenant' shall
include the successors and assigns of the respective parties.
WITNESSETH:
WHEREAS, by Lease Agreement dated October 27, 2009, Landlord leased to Tenant
(collectively, the "Parties") certain premises (the "Leased Premises") in a shopping center known as South
Plains Plaza (the "Shopping Center"), located in Lubbock, TX (said Lease Agreement, as heretofore
amended, modified and/or supplemented, being hereinafter called the "Lease"); and
WHEREAS, the Parties hereto have agreed to cancel and terminate the Lease as provided in
this Lease Termination Agreement (the "Agreement").
NOW, THEREFORE, in consideration of the mutual covenants herein contained and the sum
of One ($1.00) Dollar and other good and valuable considerations, paid by each party hereto to the other,
the receipt and sufficiency of which are hereby mutually acknowledged, the Parties hereto hereby agree
as follows:
1. Lease Cancellation and Termination. Effective as of the Lease Termination Date (as such
term is hereinafter defined), the Lease and all other documents, agreements and instruments creating any
rights in favor of Tenant or Landlord in connection with the Leased Premises (the "Lease Documents")
are, and shall be, cancelled, terminated and extinguished and shall be of no further force and effect. The
"Lease Termination Date" shall be June 29, 2014.
2. Consideration For Cancellation and Termination. Landlord agrees to cancel and terminate
the Lease Documents in consideration for Tenant's agreement to relinquish all rights that Tenant may
have with respect to the Leased Premises. On the Lease Termination Date, Tenant shall tender to
Landlord any amount due and owing to Landlord under the Lease.
3. Certified Checks. All payments required to be made by Tenant to Landlord under this
Agreement shall be made by bank check or certified check.
4. Occupancy of Leased Premises. Tenant shall occupy the Leased Premises until the
Lease Termination Date in accordance with all of the terms and conditions of the Lease including the
payment of all rent and charges through and including the Lease Termination Date except that any right of
renewals or extensions of the Lease are deleted.
5. Delivery of Leased Premises. On the Lease Termination Date, Tenant shall deliver
exclusive possession of the Leased Premises to Landlord: (i) vacant and free of all tenants, licensees or
other occupants and free of all other persons claiming rights by, through or under Tenant; (ii) clear of all
personal property and fixtures of Tenant, including, without limitation, Tenant's merchandise, inventory,
furniture, equipment, shelves, counters, carpeting, trade fixtures and signs; provided, however, that the
interior lighting fixtures, interior partitions, the heating, ventilating and air conditioning units and systems
which service the Leased Premises and other utility systems which service the Leased Premises whether
located inside or outside the Leased Premises shall remain as Landlord's sole property undisturbed; and
(iii) broom clean and in good condition and with all mechanical, plumbing, HVAC, and electrical systems in
good working order. Tenant's removal of its property shall be done in a good and workmanlike manner so
as not to interfere with the occupancy or business operations of other tenants in the Shopping Center and
shall thereupon surrender all remaining right, title and interest which Tenant may have in the Leased
Premises. On the Lease Termination Date, Landlord shall have the right to conduct an inspection of the
Leased Premises to ensure that the Leased Premises have been delivered as provided for herein. If any
of Tenant's property shall remain after the Lease Termination Date, it shall be deemed abandoned and
become the property of the Landlord but Tenant nevertheless shall be liable for costs of removal and
disposal.
6. Tenants Payment and Other Obligations. Tenant agrees that Tenant will remain liable to
Landlord for all payment obligations (including, without limitation, rent, additional rent, and tax, common
area maintenance and insurance reimbursement, if any) and all other obligations under the Lease
accrued through (and including) the later of (i) the Lease Termination Date or (ii) the date Tenant has
delivered the Leased Premises to Landlord in the condition required by this Agreement (the later of the
foregoing dates being called the "Surrender Date"), the foregoing amounts to be prorated on a per diem
basis for any partial month in the event the Surrender Date occurs on a day other than the last day of a
calendar month, and Tenant shall be liable for all costs and expenses incurred by Landlord in repairing
City of Lubbock Termination Site 678 Deal A2809 1 5120114 me
any damage to the Leased Premises resulting from Tenant's removal from the Leased Premises. To the
extent permitted by law, Tenant shall defend, indemnify and save Landlord harmless from any third party
charges, such as (without limitation) utility charges, incurred during the period up to and including the
Lease Termination Date. Tenant acknowledges that Landlord is not holding a security deposit or other
security under the Lease or otherwise.
7. Pylon Signs. Tenant hereby acknowledges it does not have any ownership rights to or
right to remove any pylon signs located at the Shopping Center, except that Tenant has the right to
remove its sign panels, if any, from Shopping Center pylons. Tenant shall coordinate with Landlord so
that Landlord can insert a blank panel in Tenant's former pylon sign location.
8. Entry. Following the date hereof and prior to the Lease Termination Date, Landlord and its
agents and designees shall have the right to enter the Leased Premises for the purpose of inspections,
measurements, etc., to show the Leased Premises to prospective tenants, and for the purpose of placing
and maintaining "for rent" signs on the front or any other part of the exterior of the Leased Premises. Any
such entry by Landlord or its agents or designees shall not be deemed to constitute a repossession of the
space.
9. Warranties. Effective as of the Lease Termination Date, Tenant hereby assigns to
Landlord any assignable warranties or guaranties in Tenant's favor or for Tenant's benefit regarding the
roof, HVAC or other systems or portions of the Leased Premises. Until the Lease Termination Date,
Tenant shall retain all of said warranties and guaranties. Tenant agrees that on the Lease Termination
Date (or thereafter) Tenant shall execute and deliver any other documents or instruments as Landlord
may request to evidence or effectuate such assignment; and that Tenant shall fully cooperate with
Landlord to enforce any such warranties and guaranties for the benefit of Landlord and/or any tenant of
the space, whether or not such warranties or guaranties are assignable.
10. Authority. Tenant represents as follows: Tenant is either the same corporation or the
successor to the party which entered into the Lease Documents, Tenant is authorized to enter into this
Agreement and no consent or authorization from any other party, person or entity is required for the
execution of this Agreement by Tenant; Tenant has not assigned, transferred or conveyed any of its
interest under the Lease Documents; Tenant has not granted any other person, party or entity any right to
occupy or possess the Leased Premises; and Tenant has not granted a security interest in, or otherwise
encumbered, its interest in the Lease Documents, the Leased Premises, or any furniture, fixtures, or
equipment, therein (or, if granted, such security interest or encumbrance has expired).
11. Remedies. If Tenant fails to vacate the Leased Premises on the Lease Termination Date,
Landlord shall be entitled to liquidated damages and not as rental income (and not as a penalty, actual
damages being impractical or impossible to determine) in the amount of $1,135.00 from Tenant for each
day after the Lease Termination Date that Tenant remains in possession of the Leased Premises.
12. Governing Law. This Agreement shall be governed by the Laws of Texas.
13. No Broker. Landlord and Tenant represent and warrant to each other that they have not
dealt with any broker in connection with this Agreement and Landlord and Tenant, to the extent permitted
by law, do hereby agree to defend, indemnify and hold each other harmless of and from any claim of or
liability to any broker, finder, or like agent with whom such party may have dealt by reason of the execution
and delivery of this Agreement, and all expenses related thereto, including, without limitation, reasonable
attorneys' fees and disbursements, based on alleged dealings with the indemnifying party.
14. Miscellaneous. This Agreement contains the entire understanding of the parties with respect
to its subject matter hereof and supersedes all prior written agreements of the parties with respect to the
subject matter hereof. This Agreement may only be amended by a writing signed by both of the parties
hereto. Effective as of the Lease Termination Date, Tenant hereby releases Landlord from all duties,
liabilities and/or obligations which have arisen, or would arise, out of or under the Lease Documents,
whether accrued, known, unknown, contingent, or otherwise. Tenant hereby acknowledges and agrees
that as of the date of this Agreement: (i) Landlord has fully and completely discharged its obligations under
the Lease which have arisen or accrued prior to the date of this Agreement; and (ii) Tenant hereby waives
and releases any and all claims under the Lease for any credit or refund of any excess payment made by
Tenant to Landlord under the Lease or for any other payment due from Landlord under the Lease (the
"Excess Payment"), and Landlord will either retain the Excess Payment, if any, for its own account, or will
apply the Excess Payment to any amounts due and owing Landlord under the Lease. Furthermore,
nothing contained in this Agreement shall be construed or interpreted to release Tenant from its obligation
to perform this Agreement or, to the extent permitted by law, to indemnify, defend, and hold Landlord
harmless from any claims by third parties for claims arising at the Leased Premises during Tenant's
occupancy of same. The submission of this Agreement to Tenant does not create any rights in Tenant
unless and until this Agreement is executed by both Landlord and Tenant. The Lease Termination Date is
a date which is "time of the essence." All covenants, agreements and indemnities contained herein shall
survive the Lease Termination Date. All capitalized terms used herein shall have the meaning ascribed
thereto in the Lease unless otherwise defined herein. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns. This Agreement shall not be recorded. Tenant agrees to
execute such documents as Landlord shall reasonably request sufficient to remove of record any notice or
memorandum of the Lease.
City of Lubbock Termination Site 678 Deal A2809 2 5120/14 me
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day
and year first above written.
LANDLORD: KIMCO LUBBOCK L.P.
By: Kimco Lubbock 678, Inc., its general partner
WITNESSES:
By:
Name:
Title:
Date:
TENANT: CITY OF LUBBOC WITNESSES:
By:
Name c on
Title Mayor
Date: May 22, 2014
Attest:
RE ECCA GAZA, City Secret
Approved as to Content:
UINCY WHER, Deputy City Manager
,-Mr,
ACKNOWLEDGMENT FOR+*NOtORD:
State ofiPOLD )
4)ss.:
County of - )
On the day of the year,2014 before me, the undersigned,
a Notary Public in and for said State, person -ally appeared ko . . lY�(n,�srn�, personally known to
me to be the individual whose name is subscribed to the within instrument and acknowledged to me that
he/she '(�me in his rapacity, and that by his/her signature on the instrument, the individual or
the p`@Y3f,�A 4 bf which the individual acted, executed the instrument.
iO6
E' ?tea_ _ Notary Public
2...1 ACKNOWLEDGMENT FOR TER70PT:
State of ����""""""" )
)ss.:
County of )
On the day of in the year 2014 before me, the undersigned,
a Notary Public in and for said State, personally appeared , personally known to
me to be the individual whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his capacity, and that by his/her signature on the instrument, the individual or
the person upon behalf of which the individual acted, executed the instrument.
Notary Public
CiN or Lubbock Termination Site 678 Deal X4899 3 510114 me