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2012-08RESOLUTION NO. 2012 - 8 COUNCIL MEMBER STEWART INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS, an Agreement between the City of Blair, Nebraska, and Dana College in Receivership, c/o Cordes & Company in its capacity as Receiver has been prepared and presented to the City Council providing for the terms of use in exchange for the mowing and general maintenance of the Dana College Baseball Field and Zimmerman Softball Field, a copy of which Agreement is attached hereto, marked Exhibit "A" and by this reference made a part hereof, and WHEREAS, the terms and conditions thereof are acceptable to the municipality. NOW, THEREFORE, BE IT RESOLVED that said Agreement referred to hereinabove is hereby adopted and accepted by the City of Blair and the Mayor and City Clerk are hereby authorized and directed to execute same on behalf of the municipality. COUNCIL MEMBER STEWART MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER HALL. UPON ROLL CALL, COUNCIL MEMBERS SHEPARD, STEWART, RYAN, KEPHART, HALL, CHRISTIANSEN, WOLFF AND JENSEN VOTING "AYE ", AND COUNCIL MEMBERS NONE VOTING "NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 27TH DAY OF MARCH, 2012. CITY OF BLAIR, NEBRASKA ATTEST: -t BRENDA WHEELER, City Clerk (SEAL) STATE OF NEBRASKA ) ) ss. COUNTY OF WASHINGTON ) 1 �7� t.A. --•-- JA REALPH, Mayor BRENDA WHEELER, hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed at a regular meeting of the Mayor and City Council of said City held on the 27th day of March, 2012. BRENDA WHEELER, City Clerk LEASE of PROPERTY THIS LEASE is entered into this day of , 2012 between Dana College in Receivership, c/o Cordes & Company in its capacity as Receiver and not individually, (the "Landlord "), and the City of Blair, Nebraska, (the "Tenant"). 1. PROPERTY. Landlord leases to Tenant the Property more fully described as: 1) Tax Lot 425 and Tax Lot 643 The Property, as described above is located at Dana College Campus, Blair, Nebraska (the Property is being leased by Landlord to Tenant under the following terms and conditions). 2. TERM. This Lease shall be for a term of one (1) year beginning on the 1St day of April, 2012, and ending on the 31St day of March, 2013, unless terminated earlier as provided in this Lease. 3. USE OF PROPERTY. The Property is leased to Tenant, and is to be used by Tenant, for the purposes of recreational activities including baseball and softball for youth and adults. Tenant agrees to use the Property in such a manner-as to not interfere with the rights of other tenants in the Dana Campus area, to comply with all applicable governmental laws, ordinances, and regulations in connection with its use of the Property, including without limitation all environmental laws, to keep the Property in a clean and sanitary condition, and to use all reasonable precaution to prevent waste, damage, or injury to the Property. 4. RENT. (a) Base Rent. In lieu of monetary rent for use of the above - described premises, the City of Blair shall for the period from April 1, 2012 to March 31, 2013; 1. Mowing of all grass on above- described premises including the infield and outfield grass of each field. 2. General maintenance of the grounds including garbage removal service and cleaning of all bathrooms located on the subject properties. (b) Operating Expenses. Tenant to pay the Operating Expenses. "Operating Expenses" shall mean all costs of maintaining and mowing the Property in accordance with the services provided in lieu of rent. Tenant shall pay all associated utilities or a pro -rata share if not separately metered. (c) Payment of Rent. Tenant agrees to provide the services listed above throughout the duration of this lease. In the event of non - performance under this Lease, Landlord shall have all the rights and remedies provided in this Lease or by law. 5. ASSIGNMENT OR SUBLEASE. Tenant shall not assign this Lease or sublet the whole or any part of the Property, transfer this Lease by operation of law or otherwise, or permit any other person except agents and employees of Tenant to occupy the Property, or any part thereof, without the prior written consent of Landlord. Landlord shall have the right to assign its interest under this Lease or the rent hereunder. 6. TENANT'S IMPROVEMENTS. Tenant shall not have the right to make improvements or other alterations to the Property without Landlord's consent. 7. CONDITION OF PROPERTY. Except as provided herein, Tenant agrees that no promises, representations, statements, or warranties have been made on behalf of Landlord to Tenant respecting the condition of the Property, or the manner of operating the Complex, or the making of any repairs to the Property. By taking possession of the Property, Tenant acknowledges that the Property were in good and satisfactory condition when possession was taken. Tenant shall, at the termination of this Lease, by lapse of time or otherwise, remove all of Tenant's property and surrender the Property to Landlord in as good condition as when Tenant took possession, normal wear excepted. 8. PERSONAL PROPERTY AT RISK OF TENANT. All personal property on the Property shall be at the risk of Tenant only. Landlord shall not be liable for any damage to any property of Tenant or its agents or employees in the Property caused by any reason whatsoever, including, without limitation, fire, theft, steam, electricity, sewage, gas or odors, or from water, rain, or snow which may leak into, issue or flow into the Property from any part of the Complex, or from any other place, or for any damage done to Tenant's property in moving same to or from the Complex or the Property. Tenant shall give Landlord, or its agents, prompt written notice of any damage to or defects in water pipes, gas or warming or cooling apparatus in the Property. 9. LANDLORD'S RESERVED RIGHTS. Without notice to Tenant, without liability to Tenant for damage or injury to property, person, or business, and without effecting an eviction of Tenant or a disturbance of Tenant's use or possession or giving rise to any claim for set off or abatement of rent, Landlord shall have the right to: (a) Change the name or street address of the Complex. (b) Install and maintain signs on the Complex. (c) Have access to all mail chutes according to the rules of the United States Post Office Department. (d) At reasonable times, to decorate, and to make, at its own expense, repairs, alterations, additions, and improvements, structural or otherwise, in or to the Property, the Complex, or part thereof, and any adjacent building, land, street, or alley, and during such operations to take into and through the Property or any part of the Complex all materials required, and to temporarily close or suspend operation of entrances, doors, corridors, elevators, or other facilities to do so. (e) Possess passkeys to the Property. (f) Show the Property to prospective purchasers at reasonable times. (g) Take any and all reasonable measures, including inspections or the making of repairs, alterations, and additions and improvements to the Property or to the Complex, which Landlord deems necessary or desirable for the safety, protection, operation or preservation of the Property or the Complex. (h) Approve all sources furnishing signs, painting, and/or lettering to the Property, and approve all signs on the Property prior to installation thereof. (i) Establish rules and regulations, currently defined in Exhibit B, for the safety, care, order, operation, appearance, and cleanliness of the Complex and to make modifications thereto. 10. INSURANCE. Tenant shall not use or occupy the Property or any part thereof in any manner which could invalidate any policies of insurance now or hereafter placed on the Complex or increase the risks covered by insurance on the Complex or necessitate additional insurance premiums or policies of insurance, even if such use may be in furtherance of Tenant's business purposes. In the event any policies of insurance are invalidated by acts or omissions of Tenant, Landlord shall have the right to terminate this Lease. Each party hereby waives all claims for recovery from the other for any loss or damage to any of its property insured under valid and collectible insurance policies to the extent of any recovery collectible under such policies; provided that this waiver shall apply only when permitted by the applicable policy of insurance. 11. INDEMNITY. Subject to the waiver of subrogation provision, Tenant shall indemnify, hold harmless, and defend Landlord from and against, and Landlord shall not be liable to Tenant on account of, any and all costs, expenses, liabilities, losses, damages, suits, actions, fines, penalties, demands, or claims of any kind, including reasonable attorney's fees, asserted by or on behalf of any person, entity, or governmental authority arising out of or in any way connected with either (a) a failure by Tenant to perform any of the agreements, terms, or conditions of this Lease required to be performed by Tenant; (b) a failure by Tenant to comply with any laws, statutes, ordinances, regulations, or orders of any governmental authority; or (c) any accident, death, or personal injury, or damage to, or loss or theft of property which shall occur on or about the Property, or the Real Estate, except as the same may be the result of the negligence of Landlord, its employees, or agents. Subject to the waiver of subrogation provision, Landlord shall indemnify, hold harmless, and defend Tenant from and against, and Tenant shall not be liable to Landlord on account of, any and all costs, expenses, liabilities, losses, damages, suits, actions, fines, penalties, demands, or claims of any kind, including reasonable attorney's fees, asserted by or on behalf of any person, entity, or governmental authority arising out of or in any way connected with either (a) a failure by Landlord to perform any of the agreements, terms, or conditions of this Lease required to be performed by Landlord; (b) a failure by Landlord to comply with any laws, statutes, ordinances, regulations, or orders of any governmental authority; (c) any accident, death, or personal injury, or damage to, or loss or theft of property which shall occur on or about the Property, Complex or the Real Estate, as the result of the negligence of Tenant, its employees, or agents; or (d) Landlord's management, operation or use of the Complex or Real Estate. The obligations under this section shall, notwithstanding any contrary provisions hereof, survive any termination or expiration of this Lease. 12. LIABILITY INSURANCE. Tenant agrees to procure and maintain continuously during the entire term of this Lease, a policy or policies of commercial general liability insurance from a company or companies acceptable to Landlord, at Tenant's own cost and expense, insuring Landlord and Tenant from all claims, demands or actions; such policy or policies shall in addition to insuring Tenant protect and name the Landlord and Landlord's managing agent as additional Insured's and shall provide coverage in a combined single limit per occurrence of at least $2,000,000.00 for claims, demands or actions for bodily injury, death or property damage made by or on behalf of any person or persons, firm or corporation arising from, related to, or connected with the conduct and operation of Tenant's business in the Property, or arising out of and connected with the use and occupancy of the Real Estate by the Tenant. All such insurance shall provide that Landlord shall be given a minimum of ten (10) days notice by the insurance company prior to cancellation, termination or change of such insurance. Tenant shall provide Landlord with copies of the policies or certificates evidencing that such insurance in full force and effect and stating the term and provisions thereof. If Tenant fails to comply with such requirements for insurance, Landlord may, but shall not be obligated to, obtain such insurance and keep the same in effect, and Tenant agrees to pay Landlord, upon demand, the premium cost thereof. 13. DAMAGE BY FIRE OR OTHER CASUALTY. If, during the term of this Lease, the Property shall be so damaged by fire or any other cause except Tenant's negligent or intentional act so as to render the Property untenantable, the rent shall be abated while the Property remain untenantable; and in the event of such damage, Landlord shall elect whether to repair the Property or to cancel this Lease, and shall notify Tenant in writing of its election within sixty (60) days after such damage. In the event Landlord elects to repair the Property, the work or repair shall begin promptly and shall be carried on without unnecessary delay. In the event Landlord elects not to repair the Property, the Lease shall be deemed canceled as of the date of the damage. Such damage shall not extend the Lease term. 14. CONDEMNATION. If the whole or any part of the Property shall be taken by public authority under the power of eminent domain, then the term of this Lease shall cease on that portion of the Property so taken, from the date of possession, and the rent shall be paid to that date, with a proportionate refund by Landlord to Tenant of such rent as may have been paid by Tenant in advance. If the portion of the Property taken is such that it prevents the practical use of the Property for Tenant's purposes, then Tenant shall have the right either (a) to terminate this Lease by giving written notice of such termination to Landlord not later than thirty (30) days after the taking, or (b) to continue in possession of the remainder of the Property, except that the rent shall be reduced in proportion to the area of the Property taken. In the event of any taking or condemnation of the Property, in whole or in part, the entire resulting award of damages shall be the exclusive property of Landlord, including all damages awarded as compensation for diminution in value to the leasehold, without any deduction for the value of any unexpired term of this Lease, or for any other estate or interest in the Property now or hereafter vested in Tenant. 15. DEFAULT OR BREACH. Each of the following events shall constitute a default or a breach of this Lease by Tenant: (a) If Tenant fails to provide mowing and maintenance services as described herein; (b) If Tenant vacates or abandons the Property; (c) If Tenant files a petition in bankruptcy or insolvency or for reorganization under any bankruptcy act, or voluntarily takes advantage of any such act by answer or otherwise, or makes an assignment for the benefit of creditors; (d) If involuntary proceedings under any bankruptcy or insolvency act shall be instituted against Tenant, or if a receiver or trustee shall be appointed of all or substantially all of the property of Tenant, and such proceedings shall not be dismissed or the receivership or trusteeship vacated within thirty (30) days after the institution or appointment; or (e) If Tenant fails to perform or comply with any other term or condition of this Lease, or any of the rules and regulations established by Landlord, and if such nonperformance shall continue for a period of ten (10) days after notice thereof by Landlord to Tenant, time being of the essence. 16. EFFECT OF DEFAULT. In the event of any default or breach hereunder, in addition to any other right or remedy available to Landlord, either at law or in equity, Landlord may exert any one or more of the following rights: (a) Landlord may re -enter the Property immediately and remove the property and personnel of Tenant, and shall have the right, but not the obligation, to store such property in a public warehouse or at a place selected by Landlord, at the risk and expense of Tenant. (b) Landlord may retake the Property and may terminate this Lease by giving written notice of termination to Tenant. Without such notice, Landlord's retaking will not terminate the Lease. On termination, Landlord may recover from Tenant all damages proximately resulting from the breach, including the cost of recovering the Property and the difference between the rent due for the balance of the Lease term as though the Lease had not been terminated and the fair market rental value of the Property for the balance of the Lease term as though the Lease had not been terminated which sum shall be immediately due Landlord from Tenant. (c) Landlord may relet the Property or any part thereof for any term without terminating this Lease, at such rent and on such terms as it may, choose. Landlord may make alterations and repairs to the Property. In addition to Tenant's liability to Landlord for breach of this Lease, Tenant shall be liable for all expenses of the reletting, for any alterations and repairs made, and for the rent due for the balance of the Lease term, which sum shall be immediately due Landlord from Tenant. The amount due Landlord will be reduced by the net rent received by Landlord during the remaining term of this Lease from reletting the Property or any part thereof. If during the remaining term of this Lease Landlord receives more than the amount due Landlord under this sub - paragraph, the Landlord shall pay such excess to Tenant, but only to the extent Tenant has actually made payment pursuant to this sub - paragraph. 17. SURRENDER - HOLDING OVER. Tenant shall, upon termination of this Lease, whether by lapse of time or otherwise, peaceably and promptly surrender the Property to Landlord. If Tenant remains in possession after the termination of this Lease, without a written lease duly executed by the parties, Tenant shall be deemed a trespasser. If Tenant provides mowing and maintenance services, and Landlord accepts said services after termination of this Lease, Tenant shall be deemed to be occupying the Property only as a tenant from month to month, subject to all the terms, conditions, and agreements of this Lease. 18. SUBORDINATION AND ATTORNMENT. Landlord reserves the right to place liens and encumbrances on the Property superior in lien and effect to this Lease. This Lease, and all rights of Tenant hereunder, shall, at the option of Landlord, be subject and subordinate to any liens and encumbrances now or hereafter imposed by Landlord upon the Property or the Complex or any part thereof, and Tenant agrees to execute, acknowledge, and deliver to Landlord, upon request, any and all instruments that may he necessary or proper to subordinate this Lease and all rights herein to any such lien or encumbrance as may be required by Landlord. In the event any proceedings are brought for the foreclosure of any mortgage on the Property, Tenant will attorn to the purchaser at the foreclosure sale and recognize such purchaser as the Landlord under this Lease. The purchaser, by virtue of such foreclosure, shall be deemed to have assumed, as substitute Landlord, the terms and conditions of this Lease until the resale or other disposition of its interest. Such assumption, however, shall not be deemed in acknowledgment by the purchaser of the validity of any then existing claims of Tenant against the prior Landlord. Tenant agrees to execute and deliver such further assurances and other documents, including a new lease upon the same terms and conditions contained herein, confirming the foregoing, as such purchaser may reasonably request. Tenant waives any right of election to terminate this Lease because of any such foreclosure proceedings. 19. NOTICES. Any notice or demands given hereunder shall be in writing and personally delivered or sent by first class mail postage prepaid to Landlord at c/o Cordes & Company 5299 DTC Blvd. Suite 815, Greenwood Village, CO 80111 and also to Tenant at 218 S. 16th St, Blair NE, 68008, or at such other address as either party may from time to time designate in writing. Each such notice shall be deemed to have been given at the time it shall be personally delivered to such address or deposited in the United States mail in the manner prescribed herein. 20. MISCELLANEOUS. (a) Binding on Assigns. All terms, conditions, and agreements of this Lease shall be binding upon, apply, and inure to the benefit of the parties hereto and their respective heirs, representatives, successors, and permitted assigns. (b) Recordation of Lease. Tenant and Landlord agree that, given the receivership and the fact that the Complex is currently for sale, the Lease will not be Recorded with the Washington County Clerk. (b) Amendment in Writing. This Lease contains the entire agreement between the parties and may be amended only by subsequent written agreement. (c) Waiver - None. The failure of Landlord to insist upon strict performance of any of the terms, conditions and agreements of this Lease shall not be deemed a waiver of any of its rights or remedies hereunder and shall not be deemed a waiver of any subsequent breach or default of any of such terms, conditions, and agreements. The doing of anything by Landlord which Landlord is not obligated to do hereunder shall not impose any future obligation on Landlord nor otherwise amend any provisions of this Lease. (d) No Surrender. No surrender of the Property by Tenant shall be affected by Landlord's acceptance of the keys to the Property or of the rent due hereunder, or by any other means whatsoever, without Landlord's written acknowledgment that such acceptance constitutes a surrender. (e) Captions. The captions of the various paragraphs in this Lease are for convenience only and do no define, limit, describe, or construe the contents of such paragraphs. (f) Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of Nebraska. (g) Partial Invalidity. If any provision of this Lease is invalid or unenforceable to any extent, then that provision and the remainder of this Lease shall continue in effect and be enforceable to the fullest extent permitted by law. 22. TERMINATION. Landlord shall have the right to cancel this Lease at any time with a thirty (30) day notice in writing to the Tenant. IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year first above written. LANDLORD Dana College in ' ership BY PRINT NAME: ITS: TENANT City of Blair, Nebraska B PRINT NAME: aG( Y&4, /,.a ITS: O EXHIBIT A RULES AND REGULATIONS A. The Landlord shall have the right to control ingress and egress to and from the Complex at all times. B. The Tenant, shall not place nor permit to be placed any signs, advertisements or notices in or upon any part of the Complex, and shall not place merchandise or show -cases in front of the Complex, without the Landlord's written consent. C. No person or persons shall be employed by the Tenant for the purpose of cleaning or of taking care of the Property without the written consent of the Landlord. D. The Landlord shall have the right to exclude or eject from the Complex, animals of every kind, except guide dogs, bicycles, or any other wheeled vehicle except wheelchairs, and all canvassers and other persons who conduct themselves in such a manner as to be, in the judgment of the Landlord, an annoyance to the tenants or a detriment to the Complex. E. No additional locks shall be placed upon any doors of the Property without first obtaining the written consent of the Landlord and the Tenant will not permit any duplicate keys to be made. If more than two keys for any door are desired, the additional number shall be paid for by the Tenant. Upon termination of this lease the Tenant shall surrender all keys of said Property and of the Complex. Landlord will help Tenant get pass cards or keys at Tenants expense. F. The Landlord shall have the right to make such other and further reasonable rules and regulations as, in the judgment of the Landlord, may from time to time be needed for the safety, care and cleanliness and general appearance of the Property and for the preservation of good order therein. G. Smoking is prohibited in all areas of the Complex, including the Property, except that Landlord may, in its sole discretion; designate one or more areas within the Complex where smoking may be permitted.