No. 00-00000
XXXXX XXXX XXXXXXXXXX
XXXXX XX XXXXXXX
COMMERCIAL LEASE
THIS INDENTURE, made and entered into this 11th day of June, 1986 by and
between the State of Arizona, herein called the lessor, and XXXXXX'X
INCORPORATED, A NEW MEXICO CORPORATION of Albuquerque, State of New Mexico,
herein called the lessee:
WITNESSETH, that the State Land Commissioner, by virtue of the authority
vested in him by law, and in consideration of the application heretofore made,
and the covenants and agreements of this lease, hereinafter set forth, has this
day leased to the said lessee the State Land, as hereinafter described, subject
to any and all indebtedness that may, be know, to be due or that may be proven
to be due hereafter.
TO HAVE, AND TO HOLD the same for the period ending the. 10th day of June,
1996, and subject to the conditions and reservations elsewhere set forth herein.
The lessee agrees to pay as rental therefore an amount to be determined by the
State Land Commissioner each year by an appraisal made by him, or his duly
authorized agent, as provided by law. The rental so fixed by the State land
Commissioner will be due and payable annually in advance.
That it is further under-stood and agreed that this lease is issued for the
purpose of: Restaurant, retai1, fuel sale, and other related commercial
purposes.
IT IS HEREBY COVENANTED AND AGREED by both parties hereto that this lease is
issued subject to all the provisions and requirements thereto, which are found
in the various Acts of the Legislature of the State of Arizona, the same as
though they were fully set forth herein.
IT IS HEREBY FURTHER COVENANTED AND AGREED that all of the covenants,
conditions and agreements, included in this lease, shall be, become and are a
part of the lease, the same as though set forth in full over the signatures of
the contracting parties hereto.
NOTICE TO ANYONE DEALING WITH THIS DOCUMENT This document
merely authorizes pursuit of its stated purposes; its
existence does not constitute a rending by the and
Department that those purposes may be pursued profitable.
1
IN WITNESS WHEREOF, the Arizona State Land Commissioner, by virtue of the
powers vested in him by law, has caused these presents to be executed by said
lessor, at Phoenix, Arizona, on the day and year first above written and the
said lessee has hereunto affixed his signature at the place and on the day and
year as set forth herein.
STATE OF ARIZONA, LESSOR
By /s/ Xxx X. Xxxx
-------------------------------------
For the State Land Commissioner
(SEAL)
Signed in the County of MARICOPA, State of Arizona, on the 29th day of December,
1986.
(Sign Here) Xxxxxx'x Incorporated by:
/s/ Signature Illegible E.V.P.
-------------------------------
Lessee
(Sign Here)
-------------------------------
Lessee
This lease is
issued in duplicate
2
SUPPLEMENTAL CONDITIONS
(A) The lessee will not sublet or assign the land herein described or this
lease without the written consent of the State Land Commissioner, first
obtained, and will, upon the expiration of the lease, surrender peaceable
possession of the said land.
(B) The lessee will not permit any loss, nor commit or cause any waste in,
to or upon said land; nor cut or remove nor allow to be cut or removed any
timber or standing trees that may be upon said land, save and except only such
as may, be necessary for the improvement of said land, (and then only with the
written consent of the State Land Commissioner) or for fuel for the domestic use
of said lessee; provided that nothing herein shall be construed to permit the
cutting of saw timber for any purpose.
(C) That the lessor excepts and reserves out of the grant hereby made, all
oils, gases, coal, ores, limestone, minerals, fossils, and fertilizers of every
name and description that may be found in or upon the land herein described, or
any part thereof.
(D) The lands herein described are subject to the execution by lessor of
drilling permits and leases for the purpose of prospecting for, and the
extraction of, oil and/or gases.
(E) That the Lessor also reserves the right, as provided by law, to grant
to the United States rights-of-way and easements over across or upon the lands
embraced in this lease for canals, reservoirs, dams, power or irrigating plants
or works, railroads, tramways, transmission lines or other purposes, for
irrigation works in connection with any government reclamation project.
(F) That if at any time after the execution of this lease, it is shown to
the satisfaction of the State Land Commissioner, that there has been fraud or
collusion upon the part of the lessee to obtain or hold this lease at a less
rental than its value. or through such fraud and collusion a former lessee of
said land has been allowed to escape payment of the rental due for the use of
said land by the former lessee, this lease shall be null and void, at the option
of the State Land Commissioner. insofar as it relates to the land affected by
said fraud or collusion.
(G) That if at any time after the execution of this lease it is shown to
the satisfaction of the State Land Commissioner that the lessee herein has
misrepresented, by implication or otherwise, the value of the improvements
placed upon the land herein embraced by a former lessee, or any other person or
persons and the lessee herein not being the owner of said improvements at the
time of the execution of this lease, this lease shall be null and void, at the
option of the State Land Commissioner, insofar as it relates to the land upon
which said improvements are situated.
(H) If the lessee should fail to pay the agreed rental when due, or fail to
keep the covenants and agreements herein set forth, the State Land Commissioner,
at his option, may cancel said lease or declare the same forfeited in the manner
provided by law.
(I) That the State of Arizona shall be forever wholly absolved from any
liability for damages which might result to the lessee herein on account of this
lease having been forfeited for nonpayment of rentals due thereunder prior to
the expiration of the full time for which it is issued.
(J) It is understood by the lessee that the establishment of any water
fight, or rights, shall be by and for the State of Arizona, and that no claim
thereto shall be made by said lessee; such rights shall attach to and become
appurtenant to the said land.
(K) If the lessee desires to place improvement on the land described herein
the approval of the State Land Commissioner must first be obtained. That the
lessee will, on or before the first day of July of each year during the term
herein specified, file with lessor a sworn statement setting forth therein the
character of improvements constructed 'd demised premises and the actual cash
value thereof.
(L) That said lessee shall have the right to remove from said demised
premises, at the end of the term herein specified or upon the earlier
termination thereof, all buildings, structures or improvements of whatever
nature placed by it said premises. Such right to be exercised within thirty (30)
days from the date of the end of such term or earlier on termination thereof.
(M) That said lessee shall give lessor thirty (30) days notice in writing
in advance of the abandonment of said premises or termination of these presents.
(Continued)
3
SUPPLEMENTAL CONDITIONS
(cont.)
(N) The terms, conditions and covenants of this lease are subject to
present laws relating to state lands and the rights of both lessor and lessee
hereunder are each and all subject to such modifications as may be consistent
with such amendments, revisions or repeals of existing laws as may hereafter be
made and no provisions of this lease shall create any vested right in the lessee
herein.
(0) Any improvements placed on this commercial lease must conform to
existing Laws and Ordinances relative to commercial construction and maintenance
in the area where this land is located. Approval granted by regulatory
authorities will accompany application to place improvements when riled with the
State Land Department.
(P) That the lessor also reserves the right to grant rights-of-way and
easements over, across, or upon the lands embraced in this lease for public
highways, railroads, tramways, telephone, telegraph, transmission lines, pipe
lines, irrigation works, flood control, drainage works, logging and other
purposes, and this lease is issued subject to all existing rights-of-ways.
(Q) Lessee shall notify (he Lessor in writing of the number of any license
issued by the State Tax Commission of Arizona to Lessee, any Sub-lessee,
Concessionaire or Assignee, and the name in which issued; Lessee, any
Sub-Lessee, Concessionaire or Assignee does hereby consent to the examination of
any such returns filed with the State Tax Commission by Lessee, any Sub-Lessee,
Concessionaire or Assignee.
(R) Lessee and each Sub-Tenant, Concessionaire or Assignee shall at all
times keep and maintain an accounting system and books of accounts and records
satisfactory to Lessor Lessee shall, at all times during business hours, have
access to such records at the place where the same are kept, for the purpose of
inspecting and auditing the same.
(S) Within 60 days after request is made by Lessor, Lessee shall file with
Lessor a statement of the total gross sales made for the period therein
specified; unless otherwise directed by Lessor, this report may be made by
filing with the Lessor the requested information on the form used by the State
Tax Commission of Arizona (Form ST-1. (1-68) at present) "Combined
Transaction-Privilege (sales) Tax, Education Excise Tax, and Special Excise Tax
for Education Return."
(T) Improvements made on or to the site, without the written consent of the
Lessor as required by Arizona Revised Statutes, Section 37-321, shall constitute
a breach of this lease and subject this lease to cancellation by Lessor.
(U) All buildings and structures shall be of new construction, and no
buildings or structures shall be moved from any other location onto the leased
premises without the prior written approval of Lessor.
(V) Gas, electric, power, telephone, water, sewer, cable television and
other utility or service lines of every nature whatsoever shall be placed and
kept underground (except to the extent, if any, such underground placement may
be prohibited by law) unless Lessor otherwise approves in writing.
(W) Prior to the approval of any application to place improvements on the
leased premises, the Lessee shall file with lessor plans and specifications
(including but not limited to grading and landscape plans) showing the nature,
location, approximate costs, quality of proposed materials, size, area, height,
color, shape and design of the proposed improvements, the Lessor may also
require a perimeter survey of the leased premises, upon which shall be shown the
location of the completed improvements.
If the removal of plants protected under the Arizona Native plant law is
necessary to enjoy the privilege of this document, the permittee hereunder must
previously acquire the written permission of the Arizona State Land Department
and Arizona Commission of Agriculture and Horticulture to remove those plants.
The lease may be amended from time to time by mutual agreement of the parties
hereto, provided that the lessor deems such amendment to be in the best
interests of the State of Arizona.
The lessee acknowledges that lessee has not been induced to enter into this
lease agreement by any promises from the State Land Department or any of its
personnel that the premises being leased herein will be offered for sale at any
time.
(Continued)
4
missing--
expressly prohibited.
In any action arising out of this lease, the prevailing party is entitled to
recover reasonable attorneys' fees in addition to the amount of any judgment,
costs and other expenses as determined by the court. In the case of the lessor,
reasonable attorneys' fees shall be calculated at the reasonable market value
for such services when rendered by private counsel notwithstanding that it is
represented by the Arizona Attorney General's Office or other salaried counsel.
The Lessee agrees to indemnify, hold and save Lessor harmless against all loss,
damage, liability, expense, costs and charges incident to or resulting in any
way from any injuries to person or damage to property caused by or resulting
from the use, condition or occupation of the land.
CONDEMNATION
If at any time during the duration of this lease the whole or any part of the
leased premises shall be taken by direct sale, lease, institutional taking or
acquisition in any manner though condemnation proceedings or otherwise, for any
quasi-public or public purpose by any person, private or public corporation, or
any governmental agency having authority to exercise the power of eminent domain
or condemnation proceedings pursuant to any law, general, special or otherwise.
this lease shall expire on the date when the leased property shall be so taken
or acquired except that in the event of a partial taking the lease may, continue
in full force and effect for those lands not taken, however, the lessee shall
have no compensable right or interest in the real property being condemned and
shall have no compensable right or interest in severance damages which may
accrue to the remaining lease property not acquired by condemnation proceedings.
Rent paid or to be paid by lessee shall be apportioned as of the date of such
taking and rent for any remaining land under the lease after the taking shall be
reduced proportionately to the acreage remaining under the lease to the lessee.
The State Land Department shall be entitled to and shall receive any and all
awards, including severance damage to remaining State Lands, that may be made
for any eminent domain or condemnation proceedings concerning the land which is
the subject of this lease, except that lessee shall have the right to receive
any and all awards or payments made for any buildings or other improvements
lawfully placed on the subject property by the lessee with the approval of the
State Land Department.
Notice of State Authority to Cancel this Contract:
A. The State may cancel any contract, without penalty or further obligation,
made after September 4, 1978, by the State or any, of its departments or
agencies if any person significantly involved in initiating, negotiating,
securing, drafting or creating the contract on behalf of the State or any of its
departments or agencies is, at any time while the contract or any, extension of
the contract is in effect, an employee of any other party to the contract in any
capacity or a consultant to any other party of the contract with respect to the
subject matter of the contract.
B. The cancellation shall be effective when written notice from the Governor is
received by all other parties to the contract useless the notice specifies a
later time.
5
MADE A PART HEREOF
STATE OF ARIZONA
LAND DEPARTMENT
BOWLINS INCORPORATED
11-12-86 000 XXXXXXXXX X X XXXXX XX. 0000000 00
XXXXXXXXXXX XX 00000
---------------------------------------------------------------------------------------------------
Locations Description Acres Beginning cc Fund
===================================================================================================
11 11 09.0S 09.0E PART SWLY BETWEEN 10.40 B1 053 04
---------------------------------------------------------------------------------------------------
11 11 09.0S 09.0E SR 84 AND I-10 AND 0.00 B1 053 04
---------------------------------------------------------------------------------------------------
11 11 09.0S 09.0E NWLY PICACHO TI 0.00 B1 053 04
---------------------------------------------------------------------------------------------------
TOTAL ACRES 10.40
-Xxxxxx'x Incorporated by Date: 12/29/86
/s/ Signature Illegible EVP
/s/ Xxx Xxxx for SLC Date: 12/30/86
(signature)
OTHER TERMS FOR COMMERCIAL LEASE 03-88518
-----------------------------------------
1. Site Development Plans and county approved as built construction plans
shall be submitted to the State Land Department by the lessee. Site
Development Plans shall be submitted for Department approval prior to
construction.
2. Lessee shall make application to place improvements on the leased
premises and have Department approval- of such application prior to any
construction activities.
3. Lessee shall adhere to all rules, regulations, ordinances, and building
codes as promulgated by local jurisdictions and any applicable State
agencies.
4. "CPI" shal.1 mean the Consumer Price Index, U.S. City Average for all
Urban Consumers--All Items (1967 equals 100) for the pertinent month,
issued by the Bureau of Labor Statistics of the U.S. Department of
Labor. If the CPI shall hereafter be converted to a different standard
reference base or otherwise revised, adjustments of rent based upon the
CPI shall be made with the use of such conversion factor, formula or
table for converting the CPI as may be published by the Bureau of Labor
Statistics, or if said Bureau shall not publish the same, then with the
use of such conversion factor, formula or table as may be published by
any nationally recognized publisher of similar statistical information.
If the CPI shall cease to be published, there shall be substituted
therefor such index as Lessor selects as a reasonable substitute.
5. Lessee shall pay rent to lessor for the use an d occupancy of the
premises during the term of this lease without offset or deduction
except as provided hereafter and, without notice or demand, at the
times and in the amounts as follows:
The annual rent shall be due on the anniversary of the commencement
date as follows:
5.1 The base rent for year one (1) shall be $1,200 which is based on
appraised land value of $12,229 per acre times 1% land value per year
for 10.4 acres. The base rent for years two (2) and three (3) shall
also be 1% of appraised land value, as that value is adjusted pursuant
to paragraph 6 below. Upon development of the leased land, but not
later than the fourth lease year, the base rent shall be 8% of
appraised land value as adjusted.
5.2 In addition the lessee agrees to pay as rental two and oneself
percent (2 1/2%) of all gross receipts except fuel sales. "Gross
Receipts" as used in this lease shall include all receipts and all cash
and credit revenue or any other consideration of lessee or any persons,
firms or corporations claiming through or under lessee as sublessees,
concessionaire, licensee or otherwise, at, in or upon the premises as a
result of operations permitted under this lease including all revenues
whether in cash or on a charge basis whether collected or uncollected
by lessee including but not limited to vending machines and coin
operated games.
5.3 As additional rental lessee agrees to pay 1/4 of one cent per
gallon of fuel sales.
6. The appraised land value shall be adjusted each lease year by the
Consumer Price Index but shall never be less than the amount for the
previous lease year.
7. Lessor shall adjust the land value by reappraisal at the end of the
fifth year for rental rate charges in order to reflect changes in
general- economic conditions.
8. Lessee agrees to pay $2,275 for reimbursement of the previous lessee's
improvements. The total amount of reimbursement is $6,950. A payment of
$4,675 was received by the Department of 9/13/85 leaving a balance of
$2,275. This payment must accompany the accepted lease offer.
9. Insurance and Indemnity:
9.1 Lessor shall not be liable at any time for any loss, damage or
injury to the property or person of any person at any time, occasioned
by or arising out of (i) any act, activity or omission of lessee, its
agents, servants, employees, sublessees, concessionaires, or of anyone
holding under lessee; and (ii) the occupancy or use of the leased
premises or any part thereof by or under lessee.
9.2 Notwithstanding anything to the contrary contained herein and
irrespective of any insurance carried by lessee for the benefit of
lessor under the provisions of this Article, lessee expressly agrees to
protect and does hereby indemnify and hold lessor and the premises
harmless from any and all damages or liabilities at any time occasioned
by or arising out of (i) any act, activity or omission of lessee, its
agents, servants, employees, sublessees, concessionaires, or of anyone
holding under lessee; (ii) the occupancy or use of the premises or any
part thereof by or under lessee; and (iii) any wrongful or negligent
act, activity or omission of lessor, its agents, servants or employees,
it being the specific intent of the parties to indemnify the State of
Arizona for any and all losses, claims, judgments and attorney's fees
arising out of the contract even if they result from lessor's own
negligence or wrongdoing.
9.3 Lessee, at its expense, shall at all times during the term and any
extension maintain in full force a policy or policies of comprehensive
liability insurance, including property damage, written by one or more
responsible insurance companies licensed to do business in the State of
Arizona, which insure lessee and lessor against liability for injury to
persons and property and death of any person or persons occurring in,
on or about the premises, or arising out of lessee's maintenance, use
and occupancy thereof. All public liability and personal property
damage policies shall contain a provision that lessor, named as an
additional shall be entitled to recovery under the policies for any
employees.
3-88518
03-88518
--------
this is an amendment to the terms of lease 03-88518 effective July 31, 1987. The
lease shall be amended according to this mutual agreement between the lessee and
the lessor as follows:
Term 9.2 shall be amended to read as follows:
9.2 Notwithstanding anything to the contrary contained herein and irrespective
of any insurance carried by lessee for the benefit of lessor under the
provisions of this Article, lessee expressly agrees to protect and does hereby
indemnify and hold lessor and the premises harmless from any and all damages or
liabilities at any time occasioned by or arising out of (i) any act, activity or
omission of lessee, its agents, servants, employees, sublessees,
concessionaires, or of anyone holding under lessee; (ii) the occupancy or use of
the premises or any part thereof by under lessee.
Attached to and made a part of Commercial Lease 03-88518, issued by the State
Land Commissioner of the State of Arizona to XXXXXX'X INCORPORATED, this 2nd day
of September, 1987.
Xxxxxx'x Incorporated
/s/ Xxxxxxxx Xxxx /s/ by Xxxxxxx Xxxxx V.P.
----------------------------- ------------------------------
State land Commissioner Lessee
Arizona State Land Department
Lessor
September 16, 1987 9/2/87
------------------ ------
Date Date
-missing
reason of the negligence or wrongdoing of lessee, its servants, agents,
employees, sublessees, concessionaires. Further, the policies shall provide that
their coverage is primary over any other insurance coverage available to the
lessor, its servants, agents and employees. All policies of insurance delivered
to lessor must contain a provision that the company writing the policy shall
give to lessor thirty (30) days notice in writing in advance of any cancellation
or lapse, or the effective date of any reduction in the amounts of insurance.
9.4 The insurance shall afford protection to the limit of not less than Five
Hundred Thousand Dollars ($500,000.00) in respect to injury to or death of one
person; One Million Dollars ($1,000,000.00) in respect of any one occurrence;
And One Hundred Thousand Dollars ($100,000.00) with respect to property damage.
9.5 Notwithstanding anything to the contrary in this Article, lessee's
obligations to carry the insurance provided for herein may be brought within the
coverage of a so-called blanket policy or policies of insurance maintained by
lessee, provided, however, that the coverage afforded lessor will not be reduced
by reason of the use of such blanket policy of insurance.
9.6 copies of all the executed policies of insurance or certificates thereof
shall be delivered to lessor prior to lessee's occupancy of the premises.
This is an amendment to the terms of lease 03-88518 effective May 15, 1987. The
lease shall be amended according to this mutual agreement between the lessee and
the lessor as follows:
5. Lessee shall pay rent to lessor for the use and occupancy of the premises
during the term of this lease without offset or deduction except as
provided hereafter and, without notice or demand, at the times and in the
amounts as follows:
The annual rent shall be due on the anniversary of the commencement date as
follows:
5.1. The base rent for year one (1) shall be $1,200 which is based on
appraised land value of $12,229 per acre times 1% land value per year for
10.4 acres. The base rent for years two (2) and three (3) shall also be 1%
of appraised land value, as that value is adjusted pursuant to paragraph 6
below. Upon development of the leased land, but not later than the fourth
lease year, the base rent shall be 10% of appraised land value as adjusted.
5.2 Lessee agrees to pay as annual rental 2% of all gross receipts except
fuel sales. Lessee agrees to pay 1/4 of one cent per gallon of fuel sales.
"Gross Receipts" as used in this lease shall include all receipts and all
cash and credit revenue or any other consideration of lessee or any
persons, firms or corporations claiming through or under lessee as
sublessee, concessionaire, licensee or otherwise, at, in or upon the
premises as a result of operations permitted under this lease including all
revenues whether in cash or on a charge basis whether collected or
uncollected by lessee including but not limited to vending machines and
coin operated games.
5.3 The lessee shall pay the base rental as defined in 5.1 or the
percentage as defined in 5.2, whichever is greater.
5.4 The lessee shall pay, annually in advance, the base rent as defined in
this agreement. At the end of each lease year, the annual rental amounts,
as defined in item 5.2, for the lease year just ended shall be calculated.
If such calculated annual rental exceeds the base rental paid for that
year, such shall be paid to lessor sixty (60) days after the pertinent
lease year end.
6. The land value shall be adjusted each lease year by the Consumer Price
Index, but such adjusted value shall never be less than the value
established for the previous lease year, except when valuations are made
pursuant to item 7 below.
Term 9.2 shall be amended to read as follows :
9.2 Notwithstanding anything to the contrary contained herein and
irrespective of any insurance carried by lessee for the benefit of lessor
under the provisions of this Article, lessee expressly agrees to protect
and does hereby indemnify and hold lessor and the premises harmless from
any and all damages or liabilities at any time occasioned by or arising out
of (i) any act, activity or omission of lessee, its agents, servants,
employees, sublessees, concessionaires, or of anyone holding under lessee;
(ii) the occupancy or use of the premises or any part thereof by under
lessee; and (iii) any wrongful or negligent act, activity or omission of
lessor, its agents, servants or employees, it being the specific intent of
the parties to indemnify tile State of Arizona for any and all losses,
claims, judgments and attorney's fees arising out of the contract.
Attached to and made a part of Commercial Lease 03 88518, issued by The State
Land Commissioner of the State of Arizona to Xxxxxx'x Inc. this 14th day of
August, 1987.
Xxxxxx'x Incorporated by:
/s/ Xxxxxxxx Xxxx /s/ Xxxxxxx Xxxxx, V.P.
----------------------------- ---------------------------
State Land Commissioner Lessee
Arizona State land Department
Lessor
May 8, 1987
---------------------------
Date:
