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HomeMy WebLinkAbout15-3618 ordORDINANCE 15-3618 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS LEASING THE REAL PROPERTY AT AB 500 BLK JK -2, N40 100x140 CORNER LOT, SAME BEING 501 DENVER, PLAINVIEW, TEXAS; AUTHORIZING THE MAYOR TO SIGN SAID LEASE; AND DECLARING THAT THE POLICY SERVES A PUBLIC PURPOSE. WHEREAS, the City of Plainview, Texas owns real property located at AB 500 BLK, JK -2, N40, 100x140 Corner lot, same being 501 Denver, located within the boundaries of the corporate city limits of the City of Plainview, Texas; and WHEREAS, McGavock, Inc. desires to lease such real property to provide parking and automobile preparations for their business operation selling vehicles within the City of Plainview, Texas; and WHEREAS, the City Council agrees such lease in real property under the terms herein incorporated and attached as Exhibit "A" will provide economic development and growth within the City benefiting the citizens of the City; and WHEREAS, a public purpose and benefit does exist in leasing such real property for the economic development and growth of the City as well as their maintaining, upkeeping, operating, and repairing such real property for the City of Plainview; and WHEREAS, the City Council designates Mayor Wendell Dunlap as the City's authorized official to sign such contract; and WHEREAS, the City Council finds that the City's entering into the herein incorporated and attached Exhibit "A" Lease Agreement is in the best interest of the City and its citizens. NOW, THEREFORE, the City of Plainview hereby ordains, that: SECTION I The City Council hereby approves the lease of City of Plainview real property located at AB 500 BLK, JK -2, N40, 100x140 Corner lot, same being 501 Denver, located within the corporate city limits of the City of Plainview, Texas according to the terms of the Lease Agreement herein incorporated and attached as Exhibit "A." Ordinance 15-3618 McGavock, Inc. Lease Page 1 of 3 277 278 SECTION II The public purpose for leasing the above-described City of Plainview real property is to promote economic development and growth of the City as well as the Lessee provide maintenaneee, upkeep, operations, and repairs of such property for the City of Plainview. SECTION III The Mayor is hereby authorized and directed to execute on behalf of the City of Plainview the LEASE AGREEMENT, herein incorporated and attached as Exhibit "A." SECTION IV All ordinances or parts of ordinances inconsistent with any provisions of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters regulated herein. SECTION V Severability is intended throughout and within this Article. If any provision, including any section, paragraph, sentence, clause, phrase or word or the application hereof to any person or circumstance is held invalid, unconstitutional, or unenforceable shall not be construed to affect any other valid portion of this Ordinance. A Constitutional construction hereof is intended and shall be given. There is not intent herein to violate either of the Texas Constitution or the Constitution of the United States. SECTION VI Provisions of this Ordinance are cumulative and nothing herein shall prevent, alter, or diminish the applicability or enforcement of other ordinances restricting, regulating, or governing the subject matter herein. SECTION VII All ordinances or portions of any ordinance of the City of Plainview, Texas, in conflict herewith, are hereby amended to conform with the provisions hereof. SECTION Vlll This ordinance shall be of full force and effect upon its passage and publication as required by law. PASSED AND APPROVED on first reading this 22nd day of January, 2015. Ordinance 15-3618 McGavock, Inc. Lease Page 2 of 3 PASSED AND APPROVED on second reading this 27th day of January, 2015. ATTEST: Belinda Hinojosa, City Sec APPROVED AS TO CONTENT: Jeffrey Snyder, City Manager APPROVED AS TO FORM: Leslie Spear Schmidt, City Attorney endell Dunia Mayor Ordinance 15-3618 McGavock, Inc. Lease Page 3 of 3 279 280 STATE OF TEXAS COUNTY OF HALE § § § Exhibit "A" KNOW ALL MEN BY THESE PRESENTS: LEASE AGREEMENT THIS LEASE AGREEMENT (this "Lease" or this "Agreement") entered into by the City of Plainview (referred to herein as City), a Home Rule Municipality of Hale County, Texas, and McGavock, Inc., a Texas corporation (referred to herein as "Lessee"). WITNESSETH: WHEREAS, City owns and controls a corner lot located in the City of Plainview, County of Hale, State of Texas, (hereinafter referred to as the "Property"); and WHEREAS, Lessee desires to lease a portion of the Property for the purpose of providing parking and automobile preparations for the operation of their business to sell cars within the City of Plainview, Texas for a five (5) year term, and establish a rental amount for said lease; WHEREAS, the City desires to enter into this lease for the purpose of promoting economic development in our community as well as providing for the maintenance, upkeep, and repair of such Property for the City. NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms and conditions, both general and special, as hereinafter set forth, City hereby grants to Lessee the rights and privileges hereinafter described; Lessee agrees to accept the duties, responsibilities and obligations as hereinafter set forth; and the parties hereto, for themselves, their successors and assigns, agree as follows: 281 ARTICLE ONE LEASE OF DESCRIBED PREMISES City, upon mutual execution of this Agreement, does lease and demise to Lessee, upon the terms and conditions contained herein, the following portion of Property (the "Leased Premises"): Real property is located at 501 Denver, Plainview, Texas, more particularly described as AB 500 Blk JK -2, N40 100x140 comer lot as is described and illustrated in Exhibit "A", which is attached hereto and made part hereof for all purposes. ARTICLE TWO TERM The term of this Lease shall be for five (5) years and shall begin on February 1, 2015, and terminate on (5) years from the signature date of this document. Upon written application of Lessee, delivered to the office of the City Manager ninety (90) days prior to the expiration of the initial term of this Lease, the City of Plainview may extend this Lease for up to three (3) subsequent five (5) year terms upon the same terms and conditions contained herein, provided, however, that the annual rent shall increase on the first day of the renewal term by twenty percent (20%) of the annualized annual rent in effect immediately proceeding the increase. Any extension of this Lease granted pursuant to this Article shall be in writing and signed by the Lessee and the City Of Plainview. Lease Agreement - City aPlainviewlMcGavock, Inc. 282 ARTICLE THREE USE OF PROPERTY The Lessee is granted for the stated term and for no other purpose except for the parking, maintaining, and automobile preparation for vehicles to be used in the Lessee's business of selling vehicles within the City of Plainview, Texas. ARTICLE FOUR RENTALS, RECO' 1 S, AUDIT AND PLACE OF PAYMENT A. RENTAL The Lessee shall pay to the City as rental the total of Five Hundred and Noi100 Dollars ($500.00) annually on March 1, 2015 for the Lessee to conduct business operations on the Property as stated within this Agreement. B. PAYMENT All payments that become due and payable by the Lessee under this Agreement shall be made to the City of Plainview, attention Accounting, at the Office of the Finance, 121 W. 7th, Plainview, Texas. Lessee shall pay City a late payment charge of five percent (5%) of the total amount of rentals payable if payment of such rentals is not made when due. ARTICLE FIVE OBLIGATIONS OF THE CITY The City covenants and agrees that upon execution of this Lease City is well seized of the leased Property and has good title, free and clear of all liens and encumbrances having priority over this Lease; and that the City has full right and authority to lease the Property described in this Agreement. Lease Agreement - City of Plainview/McGavock, Inc, ARTICLE SIX OBLIGATION OF LESSEE A. LESSEE'S AUTHORITY City warrants that it has full authority to enter into and perform this Agreement. B. NET LEASE This Lease shall be without cost to the City and the sole responsibility of the Lessee to keep, maintain, repair and operate the Property. Lessee shall perform all repairs necessary or appropriate to keep Property or Property located on any appurtenant rights-of-way or access to the Property in good and tenantable condition. Damage resulting from the acts or omissions of Lessee shall be repaired by Lessee, at Lessee's cost and expense unless otherwise provided herein. C. NON-EXCLUSIVE EASEMENT Owner also hereby grants Tenant a non-exclusive easement for ingress and egress over the real property as long as the premises is maintained and repaired to support the operations of the Business. D. UTILITIES The Lessee shall assume and pay for all costs or charges for metered utility services provided to Lessee during the initial term hereof, and any subsequent extension. Lessee agrees not to install any equipment on the Property or change the frequency, power, or type of its existing equipment on the Property without first submitting to City a written proposal regarding the proposed configuration and obtaining the written consent of City. 4 Lease Agreement - Cit} of Plainview iMeGavock, Inc. 283 284 E. EXPIRATION OR TE " INATION OF AGREEMENT. At the expiration or termination of this Agreement for any reason, Lessee shall surrender to City the Property, remove all personal property belonging to the business operations, and shall restore the Property to substantially the same condition existing on the Commencement Date, except for ordinary wear and tear. Personal property for Lessee's business operations left on the Property after sixty (60) days from the expiration or termination of the Agreement shall be deemed abandoned and shall be subject to removal and disposal by City. F. PAYMENT OF TAXES, FEES The Lessee shall pay all federal, state and local government taxes, license fees and occupation taxes levied on either the Leased Premises or on the business conducted on the Leased Premises or on any of Lessee's property used in connection therewith. The Lessee shall render for taxation purposes all automobiles and other property used in connection with Lessee's business operations, and all such property shall have its situs and domicile in Plainview, Hale County, Texas. Taxation may be subject to legal protest in accordance with the provisions of the taxing authority whose levy is questioned. Any protest is at the sole expense of Lessee. Delinquency in payment of such obligations after any protest has been settled shall, at the option of the City, be cause for immediate termination of this Lease. G. REGULATIONS The Lessee's officers, agents, employees and servants will obey all rules and regulations which may be promulgated by the City or its authorized agents, or by other lawful authority, to ensure the safe and orderly conduct of City's and Lessee's operations on the Leased Premises. Lease Agreement - Citi of Plainview ^McGavocI . Inc. H. PROHIBITION OF SUBLEASES AND ASSIGNMENTS Except as to parent, subsidiary or any affiliate, the Lessee will not directly or indirectly assign, sublet, sell, hypothecate or otherwise transfer this Iease or any portion of the leased premises without the prior written consent of City Manager. I. INDEMNIFICATION AND INSURANCE The City, its officers, agents and employees shall stand indemnified by the Lessee as provided by this Agreement. The Lessee shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the City shall in no way be responsible therefor. In the exercise of the obligations and in the enjoyment of the privileges granted by this Agreement, the Lessee shall indemnify and save harmless the City, its elected officials, officers, agents and employees from any and all losses that result from any fault or negligence on the part of the Lessee, its agents, employees or invitees, and shall indemnify the City, its elected officials, officers, agents, and employees against any and all claims, demands, suits, judgments and losses whatsoever, except to the extent such losses, claims, demands or liability are attributable to or caused by the negligence or willful misconduct of City, its elected officials, officers, agents and employees. The Lessee shall maintain insurance at all times that this Lease is in effect, at Lessee's sok expense and with an underwriter authorized to do business in the State of Texas and acceptable to the City, against claims of general liability, automobile liability and worker's compensation resulting from Lessee's business activities on the Premises. General Liability: 6 Lease Agreement - Cit}of Mainvicn.-''McGavOct, Inc. 285 286 Lessee's insurance shall contain broad form contractual liability with a combined single limit of a minimum of $500,000 each occurrence and in the aggregate and shall include the following: • Bodily Injury and Property Damage • Broad Form Contractual Liability • Personal Injury and Advertising Injury Fire Legal Liability Products and completed operations Business Automobile Liability: Lessee's insurance shall contain a combined single limit of at least $500,000 per occurrence, and include coverage for but not limited to the following: • Bodily Injury and Property Damage • Any and all vehicles owned, used or hired Workers' Compensation and Employers Liability Insurance: Lessee shall obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Contractor shall maintain said coverage throughout the term of this Lease and shall comply with all provision of Title 5 of the Texas Labor Code to ensure that the Contractor maintains said coverage. Any termination of workers' compensation insurance coverage by Contractor or any cancellation or non -renewal of workerscompensation insurance coverage for the Contractor shall be a material breach of this contract. The contractor may maintain Occupational Accident and Disability Insurance in lieu of Workers' Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the City of Plainview. Lease Agreement - City of Plainview'McGavock, Inc 7 Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease policy limit, and $500,000 by disease each employee shall also be obtained and maintained throughout the term of this Lease. Other Insurance Requirements: Lessee agrees to waive its right of recovery against City of Plainview for all claims and suits against City of Plainview, which are or may be covered by the above-described insurance coverages. In addition, its insurers, through policy endorsement, waive their right of subrogation against City of Plainview for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Lessee further waives its right of recovery, and its insurers also waive their right of subrogation against City of Plainview for loss of its owned or leased property or property under its care, custody, or control. Lessee's insurance policies through policy endorsement must include wording, which states that the policy shall be primary and non-contributory with respect to any insurance carried by City of Plainview. The certificate of insurance described below must reflect that the above wording is included in evidenced policies. All policies required above (excluding WorkersCompensation) shall include a severability of interest endorsement and shall name the City of Plainview as an additional insured with respect to work performed under this Lease. Severability of interest naming City of Plainview as an additional insured shall be indicated on the certificate of insurance described below. Lessee shall provide a Certificate of Insurance to the City of Plainview as evidence of the required insurance coverage. The Certificate will provide for 30 days' notice of cancellation. A copy of the required endorsements and waivers of subrogation shall be included in the certificate. 8 Lease Agreement - City of PlainviewiMcGavock, Inc. 287 288 ARTICLE SEVEN TERMINATION, CANCELLATION A. TERMINATION This Lease shall terminate at the end of the full term hereof and Lessee shall have no further right or interest in any of the Leased Premises. B. CANCELLATION Either party shall be in default under this Agreement if the party fails to perform any material duty or obligations under this Agreement and does not cure or remedy such failure to perform within thirty (30) days after receipt of written notice with respect thereto, provided, however, that if such failure to perform shall necessitate longer to cure than thirty (30) days, then such cure period shall be extended for such time as is reasonably necessary to cure such failure to perform, but only so long as such efforts to cure are commenced within fifteen (15) days after receipt of written notice from the other party and thereafter proceed diligently and in good faith. Notwithstanding the foregoing, in no event shall the time within which a party may cure a failure in the payment of money exceed a single, ten (10) day period, without extension. Upon the occurrence of a default, the non -defaulting party may pursue any and all remedies available under applicable law and any one or more of the following remedies, separately or concurrently or in any combination, without further notice or demand whatsoever: (i) Termination of this Agreement by giving the defaulting party written notice of such termination, in which event this Agreement shall be terminated at the time designated in the notice; or Lease Agreement - Cite of Plainview/McGavock, Inc. 9 (ii) The recovery from the defaulting party of all costs and expenses incurred by the non -defaulting party in enforcing its rights and remedies under this Agreement, including reasonable attorneys' fees and expenses. No termination hereof shall release Lessee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination. Said Property shall be restored to its original condition as hereinabove required. It is agreed that failure to declare this Lease terminated upon default for any of the reasons set forth above shall not be construed as a waiver of any of the City's rights hereunder or otherwise bar or preclude City from declaring this Lease cancelled as a result of any subsequent violation of any of the terms or conditions of this Lease. Lessee shall have the right to terminate this Lease Agreement at any time upon one (1) year prior written notice to City without further obligation hereunder. ARTICLE EIGHT GENERAL A. CLEANLINESS OF PREMISES Lessee shall, at its sole expense, dispose of all trash, garbage, and other refuse resulting from its business operations authorized by this Agreement. 13. RIGHT OF INSPECTION The City reserves the right to conduct inspections of the Leased Premises at reasonable times to ensure that fire and safety and other provisions contained in this Lease are being adhered to by the Lessee. 0 Lease Agreement - City of Plainiew"McGav ock. Inc, 289 290 C. TE INATION OF LEASE, SU' 'ENDER OF LEASED PREMISES AND OWNERSHIP OF IMPROVEMENTS The Lessee covenants and agrees that at the expiration of the initial term of this Lease, or any extension which has been granted, or upon earlier termination as provided elsewhere in this Agreement, Lessee will quit and surrender the Leased Premises in good state and condition, reasonable wear and tear expected, and the City shall have the right to take possession of the Leased Premises with or without process of law. D. HEADINGS The paragraph headings contained herein are for convenience in reference and are not intended to define, extend or limit the scope of any provisions in this Agreement. E. NOTICES General. Whenever notice from Lessee to City or City to Lessee is required or permitted by this Contract and no other method of notice is provided, such notice shall be given (1) by a nationally recognized overnight courier (in which case such notice shall be effective upon delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. Lessee's Address and numbers for the purposes of notice are: McGavock, Inc. Attn: Steve McGavock Re: Lease located at 501 Denver, Plainview, Texas 6312 Milwaukee Lubbock, Texas 79424 Telephone: (806) 783-8484 Facsimile: (806) 783-8686 Lease Agreement - City of Plainview McGavock. Inc City's address and numbers for the purposes of notice are: City of Plainview Attn: City Manager 901 Broadway Plainview, Texas 79072 Telephone: (806) 296-1106 Facsimile: (806) 296-1125 Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 151" day after such notice is effective. F. ENTIRE AGREEMENT This Lease constitutes the entire agreement between the City and Lessee, and shall be binding upon and shall inure to the benefit of City and Lessee, their respective successors and assigns, and any other written or parole agreement with the City is expressly waived by Lessee. G. QUIET ENJOYMENT City does hereby represent, covenant and warrant that Lessee, upon paying rent and observing and performing all the terms, covenants and conditions on Lessee's part to be observed and performed, shall peaceably and quietly enjoy the Property. H. GOVERNANCE This Lease Agreement shall be construed under and governed by and in accordance with the laws of the State of Texas. 1. DISPUTES The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process 112 Lease Agreement - City of PlainviewfMcGavock, Inc, 291 292 prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. J. VENUE The obligations of the parties created by this Agreement will be performed in Hale County, Texas. Venue for any action brought pursuant to this Agreement, or activity contemplated hereby, shall exclusively be in Hale County, Texas. K. SEVERABILITY If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary to render it valid and enforceable as long as said modification is reasonable within the intent the parties as originally expressed. In the event such provision may not be so modified, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in force and effect as if such provision had not been included in this Agreement. EXECUTED this day of ............................................ 2415. THE CITY OF PLAINVIEW Lessee: BY: Wendell Dunlap, Mayor BY: Steve McGavock, Business Owner Date: Date: Lease Agreement - Cit of Plainvicw^McGavock, Inc. STATE OF TEXAS COUNTY OF HALE SWORN TO and subscribed before me by Wendell Dunlap, Mayor of the City of Plainview, Texas, on this day ofJanuary, 2015. Notary Public, State of Texas STATE OF TEXAS COUNTY OF HALE SWORN TO and subscribed before me by Steve McGavock on this day ofJanuary, 2015. Notary Public, State of Texas 14 Lease Agreement - Cii) ofPIainicwMcGavock. Inc 293 294