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HomeMy WebLinkAboutResolution - 2012-R0007 - Lease - JS Broadbent Properties LLC - Land And Warehouse Space - 01/12/2012Resolution No. 2012-R0007 January 12, 2012 Item No. 5.8 RESOLUTION IT RESOLVED BY THE CITY COUNCIL OF THE CITY 01' LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to ;xecute for and on behalf of the City of Lubbock, a Lease for land and additional warehouse space at Building 3C, 2511 Avenue C, Lubbock, Texas, by and between the �ity of Lubbock and J.S. Broadbent Properties, LLC, and related documents. Said Lease s attached hereto and incorporated in this resolution as if fully set forth herein and shall ie included in the minutes of the City Council. ?assed by the City Council on January 12, 2012 TOM MARTIN, MAYOR ATTEST: APPROVED.AS TO CONTENT: Agent AS TO FORM: Weaver, Assistant City Attorney 'RES.Lease-Broadbent Properties 27, 2011 Resolution No. 2012—R0007 Contract # 10589 LEASE This Lease is made by and between J.S.Broadbent Properties, LLC, a Utah limited liability company ("Landlord") and The City of Lubbock, Texas ("Tenant") this January 12 , 2012. I. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the land and additional warehouse space of 28,831 sq ft (the `Building") situated thereon know as Building 3C at 2511 Avenue C, Lubbock, Texas 79404 (the "Leased Premises"). 2. TERM AND OPTION TO EXTEND. The primary term of this Lease shall be three (3) years beginning on the date this agreement is entered into and shall be automatically renewable at the end of the primary term for five (5) consecutive one-year terms upon the same conditions and covenants contained herein, excepting a 3% cumulative increase in base rent for each of the one-year terms, unless either parry shall give written notice of a desire to terminate the lease at least thirty (30) days prior to the expiration of the primary term or any subsequent renewal period, 3. RENTAL. (a) Tenant shall pay rent and other charges due under this Lease to Landlord in lawful money of the United States, without offset or deduction, in advance on or before the first day of each month during the term of this Lease. Rent and all other rent and charges for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of the calendar month involved. Payment of rent and other charges shall be made to Landlord at the following address or to such other persons or at such other addresses as Landlord may from time to time designate in writing to Tenant: J.S.Broadbent Properties, LLC PO Box 58627 Salt Lake City, Utah 84158 (b) Tenant shall pay Landlord the following base rental amount of $3,964 per month due upon first day of the month. For each year beyond the primary term of three years the rent shall be as follows: Year 4 $4083 Year 5 $4202 Yearii $4321 Year 7 $4440 Year 8 $4559 (c) Tenant shall pay all utilities relating to all of building 3C including water, sewer, gas, electricity or other services it may elect to use, and billing for such services shall be changed into Tenant's name. 4. POSSESSION. If Landlord, for any reason whatsoever, is delayed in delivering possession ofthe Leased Premises to Tenant at the commencement ofthe Initial Tenn hereof, this Lease shall not be void or voidable, Landlord shall not be liable to Tenant forany loss or damage resulting therefrom, and the expiration date of the above Initial Term shall not be extended, but in that event all rent shall be abated during the period between the commencement of the Initial Tenn and the time when Tenanttakes possession. 5. HANDLING OF MATERIALS. Tenant is responsible for the handling and storing of all materials at this location. 6. USE. Tenant shall use the Leased Premises for warehouse and administrative office purposes only and shall not use or permit the Leased Premises to be used for any other purpose without the prior written consent of landlord. Tenant shall not do or permit anything to be done in or about the Leased Premises and not bring or keep anything therein which will in any way increase the existing rate ofor adversely affect any liability, extended coverage or other insurance upon the Leased Premises or any part thereof or any of its contents, or cause cancellation of any insurance policy covering the Leased Premises or any part thereof or any of its contents. Tenant shall not allow the Leased Premises to be used for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant muse, maintain or permit any nuisance or waste in, on or about the Leased Premises. 7. COMPLIANCE WITH LAW. (a) Tenant shall not use the Lensed Premises or permit anything to be done in or about the Leased Premises which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinance and governmental rules, regulations or requirements now in force or which may hereafter be in force, and with the requirements of any fire insurance underwriters or other similar bodies now or hereafter constituted, related to or affecting the condition, use or occupancy of the Leased Premises, excluding structural changes not related to or affected by Tenant's improvements or acts. If tenant is not in compliance with any regulatory rule or regulation it shall be required to promptly pay such costs, or make such efforts as needed to comply. Tenant will also indemnify and hold Landlord harmless from any administrative, zoning, or municipal fine (or fee) arising from any failure to comply with any regulatory requirement. (b) Tenant covenants that no Hazardous Materials shall contaminate or be stored, released or disposed of on the Leased Premises. Tenant agrees to indemnify and hold Landlord harmless from and against any and all claims, demands, damages, liens, liabilities and expenses (including without limitation, reasonable attorneys fees), arising directly or indirectly from or in any way connected with the breach of the foregoing covenant. The term "Hazardous Materials" shall mean any substance or material defined or designated as hazardous or toxic waste, material or substance, or other similar term, by any federal, state or local environmental statute, regulation or ordinance presently in effect or that may be promulgated in the future. ALTERATIONS AND ADDITIONS. (a) Tenant shall make no alterations to the Leased Premises without the prior written consent of Landlord. Any such alterations permitted by Landlord shall be made in a good and workmanlikemanner. Any alterations, additions or improvements to the Leased Premises by Tenant shall be made at Tenant's sole cost and expense. Except for the shelving units to be installed by Tenant, any alterations, additions or improvements to or of the Leased Premises shall become a part of the realty and belong to Landlord and shall be surrendered with the Leased Premises on the termination of this Lease, provided that upon the expiration or sooner termination of the Lease Term hereof, Tenant shall, at Tenant's sole cost and expense, upon written demand by Landlord given in Landlord's sole discretion, forthwith remove any alterations, additions, or improvements made by Tenant and restore the Leased Premises with the exception of the shelving units and any other alterations or trade fixtures for which Landlord approval has been given. Tenant shall keep the Leased Premises and the property in which the Leased Premises are situated free from any liens arising out of any work performed, materials famished or obligations incurred by Tenant. 6.a (b) Landlord hereby agrees that upon signing of contract the following improvements to the Lensed Premises will commence including painting of offices, new carpet within the office area and the removal of temporary wall that has divided warehouse 3C from the space the City of Lubbock currently leases under another lease contract from the Landlord.. These improvements shall be completed within forty-five (45) days ofthe signing of the contract. This work shall be performed concurrently with the lease term and possession by the Tenant. 9. REPAIRS. (a) Tenant acknowledges and agrees that Tenant is taking possession of the Leased Premises "AS IS" and "WITH ALL FAULTS" and Landlord has not agreed, and will not be required, to make any improvements or alterations to the Leased Premises except as specifically set forth in Section 8(a) herein with regard to improvements to be made by Landlord,. Tenant shall, at Tenant's sole cost and expense, keep the Lensed Premises and every part thereof in good condition, ordinary wear and tear excepted. Tenant agrees to keep the interior ofthe Leased Premises and the improvements located therein in good condition and repair and to be responsible for maintenance of the interior walls, interior decorating, replacement of light globes and tubes and any glass breakage. Tenant agrees to repair or pay for the repair of any damage to the Leased Premises resulting form the acts of Tenant or Tenant's employees or agents. Except as otherwise specifically provided in this Lease, Landlord shall have no obligation whatsoever to alter, remodel, improve, repair, or paint the Leased Premises or any part thereof. The parties affirm that Landlord has made no representations to Tenant respecting the condition of the Leased Premises except as specifically herein set forth. (b) Landlord shall maintain the structural portions of the building, includingthe roof, exterior walls and doors, foundations, HVAC systems, electrical systems famished by Landlord and plumbing systems outside of the Building unless such maintenance and repairs are caused by the act, neglect, fault or omission of any duty by Tenant, its agents, servants, employees or invitees, in which case Tenant shall pay to Landlord the reasonable cost of such maintenance and repairs and Landlord shall be responsible for such repairs. Landlord shall not be liable for any failure to make any such repairs or to perform maintenance unless such failure materially and adversely affects Tenant's possession and enjoyment of the Leased Premises and continues for an unreasonable time after written notice of the need of such repairs or maintenance is given to Landlord by Tenant. Except as provided in Section 19 hereof, there shall be no abatement of rent and Landlord shall have no liability by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Leased Premises or in or to fixtures, appurtenances and equipment therein. 10. SELL, ASSIGN, MORTGAGE, SUBLET. (a) Landlord may sell, lease, pledge or otherwise encumber all or any portion of the Leased Premises and/or may pledge or assign Landlord's interest in the Lease at any time. From and after the conveyance of the Leased Premises and the assignment of Landlord's interest under this Lease (other than a conveyance or assignment for security purposes) Landlord shall have no further liability hereunder and the recipient of the conveyance and assignment shall assume the rights and be subject to the liabilities of Landlord as stated in this Lease. (b) Tenant shall not transfer, assign, sublet, or encumber this Lease or the Tenants interest in and to the Leased Premises or any portion thereof, or permit the occupancy or use of any part thereof by another (any of which is herein refereed to as a "Transfer"), without the prior written consent of Landlord. Tenant's agreement to store property of another under a mere contractual arrangement shall not be deemed to be a Transfer. Any transfer, either voluntary or involuntary, by operation of law or otherwise, without the prior consent of Landlord first had and obtained, shall be void and shall, at Landlord's option -3- terminate this Lease. In the event of any Transfer by Tenant, Tenant shall remain liable and guarantee the performance of the obligations herein of any successor -in -interest. Tenant agrees to reimburse Landlord for Landlord's reasonable attorney fees and other costs incurred in conjunction with processing and documenting any such requested Transfer. IL HOLD HARMLESS. (a) To the extent allowed by law, Tenant shall defend, indemnify and hold Landlord free and harmless from and against any and all claims arising from Tenanfs use of the Leased Premises for the conduct of its business or from any activity, work, or other thing done, permitted or suffered by Tenant in or about the Leased Premises or the Leased Premises, and shall further defend, indemnify and hold Landlord free and harmless from and against any and all claims arising from any breach or default in the performance of any obligations ofTenant under this Lease, or arising from any act or negligence ofthe Tenant, or any officer, agent, employee, guest or invitee of Tenant, and from and against all costs, attorney fees, expenses and liabilities incurred as a consequence of such claims. In any case, action or proceeding brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall defend the same at Tenant's sole expense by counsel reasonably satisfactory to Landlord or Landlord shall have the right to retain its own counsel to defend any action at the cost of Tenant. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to its property and property of other persons and injury to persons in, upon or about the Leased Premises from any cause and Tenant hereby waives all claims in respect thereof against landlord, it being understood that the risk of any such matters shall be covered by insurance to be obtained by Tenant. (b) Neither Landlord nor its agents or employees shall be liable to Tenant or Tenant's clients and customers for any damage to property of Tenant or Tenant's customers upon the Leased Premises, nor for loss or damage to any property resulting from fire, explosion, steam, gas, electricity, water or any other cause whatsoever, it being understood that the risk of any such matters shall be covered by insurance to be obtained by Tenant. Neither Landlord nor its agents shall be liable for loss of business by Tenant nor shall Landlord be liable for any latent defect in the Leased Premises or the Leased Premises. Tenantshall give prompt notice to Landlord of fire or accidents in the Leased Premises or the Leased Premises or any defects therein, including the fixtures and equipment. (c) Any insurance proceeds received by either party as a result ofany damage or injury covered by this Section shall be applied toward or credited against, as appropriate, the obligations of any indemnifying party under this Section. 12. SUBROGATION. Landlord and Tenant waive any and all right of recovery against the other, or against the officers, employees, agents, and representatives of the other, for loss or damage to such waiving party, its property, or the property of others under its control, arising from any risk generally covered by "Special Form -Risks of Direct Physical Loss" policies of insurance. Landlord and Tenant, each on behalf of the insurance company or companies insuring them and their property against any such Ions, waives any right of subrogation that it may have against the other. All insurance policies maintained pursuant to this Lease shall contain a "Waiver of Subrogation" endorsement or clause. 13. LIABILITY INSURANCE. (a) Tenant shall, at Tenant's expense, obtain and keep in force during the Lease Term a policy of commercial general liability insurance insuring Landlord and Tenant against any liability arising out ofthe ownership, use, occupancy or maintenance of the Leased Premises and all areas appurtenant thereto. Such insurance shall be within the limits of current policies held by the City of Lubbock. Tenantshall -4- I'pU V �"l' name Landlord an "additional insured" and provide a certificate of insurance to Landlord at the address listed for all notifications. 14. OTHER INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in force during the Lease Tenn insurance protecting: (1) Tenant's fixtures, equipment, and any items of personal properly located upon the Leased Premises and/or within the Leased Premises and (2) the glass of the Leased Premises. Tenant shall further provide, at Tenants sole expense, insurance to protect the interests of Tenant from those risks outlined in Section 1 I above for which Tenant is indemnifying and/or holding harmless Landlord and its agents. I5. SERVICES AND UTILITIES. (a) Tenant shall pay all charges for power, heat, water, and sewer, ifany. Tenant shall be responsible for trash removal, and shall be responsible for the normal maintenance and upkeep of the Leased Premises and for all janitorial services to the Leased Premises and shall keep the Leased Premises in a good, clean, safe, sanitary condition during the Lease Term. (b) Landlord shall be responsible for any maintenance required, in the Landlord's reasonable discretion, on any of the following items located in or on the Leased Premises: roof, exterior walls, interior walls, structural repair, fire suppression system, HVAC systems and electrical equipment. 16. HOLDING OVER. If Tenant remains in possession of the Leased Premises or any part thereof after the expiration of the Lease Term, with or without the express written consent of Landlord, such occupancy shall be a tenancy from month to month at a rental in the amount of 1.0 times the last monthly rental, plus all other charges as payable hereunder, and upon all the terms hereof applicable to a month to month tenancy. 17. ENTRY BY LANDLORD. Ninety (90) days prior to the expiration of the Lease Term, Landlord may post suitable notice on the Leased Premises that the same are "for rent or lease" and may show the Leased Premises to prospective tenants at reasonable times. Landlord also reserves the right to enter the Leased Premises, inspect the same, supply and service to he provided by Landlord to Tenant hereunder, to show the Leased Premises to prospective purchasers or tenants, and to alter, improve or repair the Leased Premises and any portion of the Leased Premises that Landlord may deem necessary or desirable, without abatement of rent, provided further that Landlord shall not unreasonably interfere with Tenants use and possession of the Leased Premises so long as Tenant is present. Except form emergency, Landlord shall not enter the leased Premises for any purpose without the Tenant being present to accompany Landlord. Tenant hereby waives any claim for damages or for any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or quiet enjoyment of the Leased Premises, and any other loss occasioned thereby. Landlord shall have the right to use any and all means which Landlord may reasonably deem proper to open said doors and obtain entry to the Leased Premises in an emergency without liability to Tenant, provided that thereafter landlord shall promptly take reasonable measures to re -secure Leased Premises. Any entry to the Leased Premises obtained by Landlord by said means or otherwise shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or a detainer of the Leased Premises or an eviction of Tenant from the Leased Premises or any portion thereof. is. RECONSTRUCTION. (a) In the event the Building is damaged by fire or other cause covered by extended coverage insurance, and the Landlord receives sufficient proceeds to cover the cost of replacing the damage, then the Landlord agrees forthwith (within 30 days unless circumstances beyond Landlord's reasonable control prevent such commencement) to commence to repair the same and thereafter proceed -5- diligently to complete said repair, and this Lease shall remain in full force and effect, except that Tenant shall be entitled to a proportionate reduction of the rent while such repairs are being made, such proportionate reduction to be based upon the extent to which the making of such repairs shall materially interfere with the business carried on by Tenant in the Leased Premises. Notwithstanding the foregoing, if the damage is due to the fault or neglect of Tenant or its employees, there shall he no abatement of rent. (b) Notwithstanding anything to the contrary contained in this Section 21, Landlord shall not have any obligation to repair, reconstruct or restore the Leased Premises when the damage resulting from any casualty covered under this Section occurs during the last twelve (12) months of the Lease Term. (c) Should Landlord not receive sufficient proceeds to effect necessary repairs, as provided in subparagraph a. above, or should Landlord elect not to effect such repairs, as provided in subparagraph b. above, then this Lease shall terminate and Tenant shall no longer be obligated to pay rent as provided herein. 19. DEFAULT BY TENANT. The occurrence of any one or more of the following events shall constitute a default and breach of this Lease by Tenant. (a) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder within ten (10) days after the same is due and payable; (b) The failure by Tenant to maintain the insurance to be provided by Tenant under this Lease; (c) The failure by Tenant to observe or perform any of the covenants or conditions of this Lease to be observed or performed by Tenant, other than described in subparagraph (a) or (b) above, where such failure shall continue for a period of 15 days after written notice thereof has been provided to Tenant by Landlord; provided, however, that if the nature of Tenant's default is such that more than 15 days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such curewithin said 15 -day period and thereafter diligently prosecutes such cure to completion, provided such additional time does not result in an additional risk to Landlord. (d) The making by Tenant of any general assignment to, or general arrangement for, the benefit ofcreditors; the filing by or against Tenant of a petition to have Tenant adjudged bankrupt, ora petition for reorganization or arrangement under any law relating to bankmptcy (unless in the case ofa petition filed against Tenant, the same is dismissed within sixty (60) days after filing); the appointment ofa trustee ora receiver to take possession of substantially all of Tenant's assets located at the leased Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or the attachment, execution or other j udicial seizure of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days. (e) The failure of Tenant to keep the property free ofliensarising from my work or materials furnished at Tenant's request. 20. REMEDIES IN DEFAULT. (a) In the event of any such default by Tenant, the landlord besides other rights or remedies it may have, shall have the immediate right to re-enter the Leased Premises by summary legal proceedings and remove all persons and property from the Leased Premises and store such property in a public -6- warehouse or elsewhere at the cost of, and for the account of Tenant, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. (b) In the event of Tenanfs default, should Landlord elect to take possession pursuant to legal proceedings as provided for by law, it may either terminate this Lease or it may from time to time without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Leased Premises and relet said Leased Premises or any part thereof for such other terns and conditions as Landlord in its sole discretion may deem advisable; upon each such reletting all rentals received by the Landlord from such retelling shall be applied, first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such retelling, including brokerage fees and attorneys' fees and costs of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of said Leased Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Leased Premises, reasonable attorneys' fees, and including the worth at the time of such termination of the excess, if my, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the Lease Term over the then reasonable rental value of the Leased Premises for the remainder of the Lease Term, all of which amounts shall be immediately due and payable from Tenant to Landlord. (c) Tenant agrees to hold Landlord free and harmless from any claim of any character by any person arising out of or in any way connected with the entry and the taking possession of the Leased Premises and/or said personal property by the Landlord, receiver or trustee, as the case may be. (d) The rights and remedies herein set forth and granted to landlord shall be cumulative and in addition to any and all other rights and remedies provided and given to Landlord under the laws of the state where the Leased Premises are located. The use of any one or more of the rights and remedies here enumerated, as otherwise provided for hereunder, shall not constitute an election of remedies; nor, in such event, shall Landlord be barred or estopped from using or asserting any other or different or concurrent or cumulative right or remedy at the same or any other of different time or place. 21. DEFAULT BY LANDLORD. If landlord shall fail to perform any ofthe covenants or provisions contained in this lease on its part to be performed or observed within 15 days afterwritten notice of default (with respect to defaults which by their nature are reasonably susceptible of cure within 15 days) or, with respect to defaults which by their nature are not reasonably susceptible ofeure within 15 days, if Landlord within 15 days after written notice of default shall fail to commence to cure such default and thereafter diligently pursue efforts to effect a cure, then in either of such events, (a) Landlord shall be responsible to Tenant for any and all direct, and not consequential, damages sustained by Tenant as a result of Landlord's breach, unless such damages are or would be covered by insurance provided or required to be provided by Tenant; in which case Tenant shall look only to such insurance. 22. EMINENTDOMAIN. (a) In the event all or any substantial part of the Leased Premises is taken or condemned by any competent authority for any public or quasi public use or purpose, this Lease shall terminate -7- as of the date of the taking of possession by the condemning authority and all Rent due hereunder shall be apportioned as of such date. (b) In the event less than a substantial part of the Leased Premises is taken or condemned for any public or quasi public use or purpose, or if any adjacent property or street is condemned or improved in such manner as to require the use of any part of the Leased Premises or of the Building, and the result of such taking materially and adversely affects Tenant's ability to operate its business therein as then operated, then Tenant may, in its sole discretion, terminate this Lease with written notice to Landlord within sixty (60) days of the date of such taking, condemnation or improvement, said termination to be effective as of the date of such taking, condemnation or improvement. (c) Landlord shall be entitled to receive the entire award from any taking or condemnation without any payment to Tenant, provided, however, Tenant may pursue a separate award for the cost of Tenant's moving or relocation expenses and trade fixtures. 23. ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to time upon not less than ten (10) days prior to written notice from Landlord execute, acknowledge and deliver to Landlord a statement in writing, (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modifications and certifying that this Lease as so modified is in full force and effect), and the date to which the rental and other charges are paid in advance, if any, and (b) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any such statement may be relied upon by a prospective purchaser or encumbrancer or assignee of the same of all or any portion of the real property of which the Leased Premises are a part. 24. AUTHORITY OF PARTIES. Each individual executing this Lease on behalfofmid limited liability company represents and warrants that he/she is duly authorized to execute and deliver this Lease on behalf of said limited liability company, and that this Lease is binding upon said limited liability company in accordance with its terms. 25. ERECTION AND REMOVAL OF SIGNS. Tenant may place suitable signs on the Leased Premises for the purpose of indicating the nature of the business carried on by Tenant; provided, however, that such signs and their locations shall be in keeping with all applicable governmental laws, ordinances and regulations and with other signs in the vicinity of the Leased Premises, and shall be subject to the prior written approval of Landlord, which approval shall not be unreasonably withheld. Tenant shall repair any damage to the Leased Premises caused by the removal of such signs. 26. WAIVER. The waiving of any of the conditions or covenants of this Lease by either party shall be limited to the particular instance and shall not be deemed a waiver of any other breaches of such covenant, condition, or any provision herein contained. 27. NOTICES. Any notice required or permitted to be given hereunder shall be deemed sufficient if given by communication in writing, by United States mail, postage prepaid, and addressed as follows: If to Landlord, at the following address: J.S.Broadbent Properties, LLC Attention: David Darley 376 East 400 South, Ste 309 Salt Lake City, Utah 84111 -8- and to David K. Broadbent, Esq. Holland & Hart LLP 222 South Main St, Ste. 2200 Salt Lake City, Utah 84101 If to Tenant, at the following address: Dave Bucher Right -of -Way Agent P O Box 2000 Lubbock Texas 79457 or to such other address as either party may subsequently designate in writing. Any notice provided as aforesaid shall be deemed to have been received on the second business day following having been placed in the United States mails. A notice shall also be deemed to be received when personally delivered to the recipient or one business day after having been delivered to UPS, Federal Express, DHL, United State Express Mail, or other nationally recognized overnight delivery service, addressed as set forth above. 28. SURRENDER OF PREMISES. Tenant shall, upon expiration ofthe Lease Term, or any earlier termination of this Lease for any cause: (a) Surrender to Landlord the Leased Premises, including, without limitation, all building apparatus and equipment then upon the Leased Premises and all alterations, improvements, and other additions thereto that may have been made or installed by either party. If Tenant shall not then be in default, Tenant may remove its trade futures, signs and other personal property, not including ceilings, light fixtures, air conditioning equipment and duct work, floor and wall coverings, doors, windows, window coverings, including blinds, and partitions, which items shall remain in the Leased Premises and become the property of Landlord without any payment therefor. (b) If Tenant shall then be in default, Tenant shall not have the right to remove any of said trade fixtures, signs and other personal property and the same shall remain and become the property of Landlord. landlord shall have a Landlord's lien against Tenant's remaining property until said default is remedied. (c) Except as provided in Sections 8 and 28(a) hereof, the Leased Premises and all said property (other than the trade fixtures, signs and other personal property which Tenant has the right to remove) shall be surrendered to Landlord by Tenant without any damage, injury, or disturbance thereto, or payment therefor, reasonable wear and tear excepted. Tenant, at its expense, shall immediately repair any damage to the Leased Premises caused by his vacating the same or by Tenant's removal of trade Postures, signs and other personal property, and shall leave the premises in a nem and clean condition, free of debris. (d) Tenant's obligations to observe and perform any of the provisions of this Section 28 and Landlord's rights hereunder shall survive the expiration of the Lease Term hereof or earlier termination of this Lease. 29. ATTORNEYS' FEES. Should either Landlord or Tenant institute any action or proceeding against the other relating to this Lease or any default hereunder or should either party intervene in any action or proceeding wherein the other parry is a party in order to enforce or protect the first party's interests or rights under this Lease, the successful party in such action or proceeding shall be entitled to an -9- 'Anyl�\p award of its reasonable costs and expenses of such action, including reasonable attorneys' fees, against the unsuccessful party. 30. PAST DUE SUMS. If Tenant fails to pay, within 10 days after the due date, any rent or other sum required to be paid by Tenant hereunder, Tenant shall pay a late charge of three percent (3%) of such amount, and interest shall accrue on all amounts past due at the rate of one and one-half percent (I -M%) per month or portion thereof, both before and afterjudgment. 31. GOVERNING LAW. The laws of the State of Texas shall govern the validity, performance and enforcement of any obligation contained herein. 32. ATTORNMENT. Tenant shall, in the event any proceedings are brought for the foreclosure of, or in the event of exercise of the power of sale under any mortgage or deed of trust made by Landlord covering the Leased Premises, or in the event of any deed or transfer in lieu of foreclosure, attom to the new owner of Landlord's interest in the Leased Premises and recognize such new owner as Landlord under this Lease. 33. SUBORDINATION. This Lease is, and shall be and remain, subject and subordinate to any present or future lien of any or all mortgages, deeds of trust or security instruments, and to any and all utility easement agreements covering all or any part of Landlord's interest in the Leased Premises and to the rights and powers of the holder of any such mortgage, deed of trust, security instrument or utility easement, regardless of whether such mortgage, deed of trust, security instrument or utility easement now exists or hereafter may be created, and to any and all advances to be made pursuant to any such mortgage, deed of trust or security instrument and to any interest thereunder, and to all modifications, consolidations, renewals, replacements and extensions of any of the aforementioned instruments; provided, however, that so long as Tenant continues to perform all of its obligations under this lease, this Lease shall remain in full force and effect notwithstanding such subordination or Landlord's default in connection with the mortgage, deed of trust, or security instrument concerned or any resulting foreclosure or sale, or transfer in lieu of such proceedings. Notwithstanding the foregoing, Tenant agrees that any mortgagee, trustee or holder of a security interest may elect to have this Lease be superior to any lien of its mortgage, deed of trust or security instrument, and in the event of such election and upon notification by such mortgagee, trustee or holder of a security interest to Tenant to that effect, this Lease shall be deemed prior in lien to the said mortgage, deed of trust or security instrument, as the new case may be, whether this Lease is dated prior to or subsequent to the date of said mortgage, deed of trust or security instrument. Upon the request of Landlord, Tenant shall execute such further documents as may be reasonably requested by Landlord or its lenderto evidencing the subordination of this lease to such mortgage, deed of trust or security instrument. 34. PARTIAL INVALIDITY. If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term, covenant or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 35. CAPTIONS. The captions and Section and paragraph numbers appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such Sections and paragraphs of this Lease or in any way affect this Lease. 36. TIME. Time is of the essence in all provisions of this Lease. 37. TOTAL AGREEMENT. This Lease contains the entire agreement between the parties and cannot be changed or altered except by a subsequent written instrument executed by the parties. This Lease sets forth all the covenants, promises, agreements, conditions and understandings between Landlord -10- and Tenant conceming the Leased Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than are herein set forth. No subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writingand signed by them. No party shall be deemed the drafterof this Agreement, and this Agreementshall not be construed against any party as the drafter of this Agreement Executed as of the day and year riot set forth above. CITY OF LUBBOCK J.S. BROADBENT PROPERTIES, LLC a Utah Limited Liability Company TO MARTIN, MAYOR I TITLE: ATTEST: Rebe ca Gaza, CityAtto-m-14, APPROVED AS TO CONTENT: ' J" eel� Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: �fI4 4t6=s Chad Weaver, Assistant City Attomey v :CiryAa/Ched/ ..n ,. .db [I.a'c-Fin.1 Dh I,cr 20, 2011