Ordinance No. 12,521ORDINANCE NO. 12,521
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A LEASE AGREEMENT WITH ANGEL
BROTHERS ENTERPRISES, LTD, CONCERNING THE PROPERTY LOCATED AT
3300 N. MAIN STREET, BAYTOWN, HARRIS COUNTY, TEXAS, UPON CLOSING
ON SUCH PROPERTY; MAKING OTHER PROVISIONS RELATED THERETO;
AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to a Lease Agreement with Angel
Brothers Enterprises, Ltd, concerning property located at 3300 N. Main Street, Baytown, Harris County,
Texas, upon the City's closing on such property. A copy of the lease agreement is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative
Baytown this the I Oth day of April, 2014. ,
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LETICIA BRYSCH, Ci erk O _
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ACIO RAMIREZ, SR., C'En Attoiney
and after its passage by the
of the City Council of the City of
DONCARLOS,
RAKaren\Files\City Councill0rdinances\20MApril 10\AuthorizeLeaseAgreementwithAngelBrothersEnterprises.doc
Exhibit "A"
LEASE
STATE OF TEXAS
COUNTY OF HARRIS
THIS LEASE (this "Lease") is made and entered into as of the _ day of
, 2014, by and between The City of Baytown, Texas ("Landlord"), and
Angel Brothers Enterprises, Ltd. ("Tenant").
1. Premises. Subject to the terms hereof, and in consideration of the covenants
contained herein, Landlord does hereby lease to Tenant and Tenant does hereby lease from
Landlord, the parcels of land depicted on Exhibit A attached hereto (the "Premises"). TO HAVE
AND TO HOLD the Premises, and all and singular the rights, easements, privileges and
appurtenances thereunto attaching or in anywise belonging unto Tenant, and its successors and
assigns, subject to the terms, covenants and conditions set forth herein.
Tenant hereby acknowledges that it has inspected the Premises, and Tenant hereby
accepts the Premises in its present condition, "AS IS, WHERE IS" and with all faults. To the
maximum extent permitted by applicable law, (i) Landlord hereby disclaims all express or
implied warranties with respect to the Premises (including, without limitation, any implied
warranty of suitability) and (ii) Tenant waives any and all claims for any breach or alleged
breach of any implied warranties that may exist.
2. Term.
(a) Unless sooner terminated under the provisions hereof, the initial term of
this Lease ("Term") shall commence on the date this Lease is executed ("Commencement Date")
and shall continue in full force and effect through and until the day immediately preceding the
thirtieth (30th) month following the Commencement Date. Thereafter, the lease may be extended
for up to an additional twelve months on a month-to-month basis, which shall be terminable by
either Landlord or Tenant during such additional twelve (12) month period on thirty (30) days'
written notice to the other party. If Landlord delivers a termination notice during such twelve
(12) month period and Tenant fails to vacate the Premises within thirty (30) days after receipt of
such notice or if Tenant fails to vacate the Premises prior to the expiration of the Term or any
extension permitted herein, Tenant shall be holding over and the following subparagraph (b)
shall be applicable.
(b) Any holding over by Tenant after expiration or termination of this Lease
shall not constitute a renewal or extension or give Tenant any rights in or to the Property.
Should Tenant hold over, Tenant shall pay, as liquidated damages, the then current fair market
rental value of the affected portion of the Property and the improvements thereon, as determined
by the Landlord, calculated on a per diem basis, multiplied by two (2) for the period during
which Tenant possesses the affected portion of the Property beyond the expiration or termination
hereof. Such amount is reasonable in the light of the anticipated or actual harm to the Landlord
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caused by Tenant's holding over, the difficulties of proof of loss, and the inconvenience of
otherwise obtaining an adequate remedy.
3. Rent.
(a) Tenant shall pay Landlord from and after the Commencement Date as the
annual base rental ("Base Rental") for the lease and use of the Premises $192,420 per year during
the Term. Landlord and Tenant acknowledge that the Base Rental for the first year of the Term
has been prepaid on the date of execution of this Lease.
Base Rental for the second (2nd) year of the Term shall be payable in one annual
installment of $192,420 due prior to the end of the twelfth (12t) month (the "Due Date") in
lawful money of the United States of America, by mailing or delivering Tenant's check to
Landlord at its address for notices, or at such address as Landlord may designate from time to
time in writing at least ten (10) days in advance of the applicable Due Date, which payment shall
be deemed timely made when received by the Landlord on or before the Due Date thereof. Base
Rental for the twenty-fifth (25t) through the thirtieth (30th) months of the Term shall be payable
in one installment of $96,210 due prior to the end of the twenty-fourth (24t) month, which shall
be the Due Date for such installment. For any portion of the Term after the thirtieth (30th)
month, Base Rental shall be payable in monthly installments of $16,035 due before the first day
of the applicable month. Landlord shall have no obligation to invoice Tenant for any Base
Rental.
(b) Tenant agrees to pay all rent and other sums of money as shall become due
from and payable by Tenant to Landlord under this Lease (collectively, the "Rent") at the times
and in the manner provided in this Lease, without abatement, notice, demand, set-off or
counterclaim. All Rent in addition to Base Rental shall constitute additional rental under this
Lease and Landlord shall be entitled to exercise the same rights and remedies provided for in this
Lease for the nonpayment of any Rent. All Rent shall be paid in lawful money of the United
States to the Director of Finance of the City of Baytown or his/her designee at the City Hall of
the City of Baytown.
(c) Tenant's right to possession and all of the Landlord's obligations
hereunder are expressly contingent upon the prompt payment of Rent, and the use of the
Premises by Tenant is obtained only on the condition that Rent is paid on time. Payment of Rent
shall be an independent covenant and all monies received by the Landlord shall be applied first
to non -rent obligations of Tenant under this Agreement, if any, and then to Rent regardless of
any notation on the check. At any time after the Landlord's receipt of a check from Tenant for
Rent, such check is not honored by the drawing financial institution due to insufficient funds or
is otherwise dishonored twice for any reason, the Landlord may at any time thereafter, at the
Landlord's sole option, require that all Rent and other sums due from Tenant hereunder be paid
either by cashier's check or money order. Failure to pay any Rent as and when required will not
only be considered a breach of this Agreement but also result in interest at the rate specified in
subsection d of this section being charged on the delinquent rental payments commencing on the
date the payment first becomes overdue.
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(d) Delinquent payments of Rent shall bear interest at the rate of the lesser of
fifteen percent (15%) per annum or the maximum lawful rate. Such interest shall commence on
the date the payment first becomes overdue and continue until the delinquent payment is paid in
full.
4. Impositions.
Tenant shall not be responsible to pay any real property ad valorem taxes,
assessments, excises, levies, impositions and other charges by any public or private authority
which may be imposed on fee simple title to the Premises or any part thereof. Landlord shall be
responsible for any such real property ad valorem taxes payable with respect to the Premises.
Tenant understands and agrees that it is responsible to pay all ad valorem taxes, assessments,
excises, levies, impositions and other charges by any public or private authority which may be
imposed on personal property owned by Tenant located on the Premises.
5. Utilities. Commencing on the Commencement Date and continuing thereafter
throughout the Term, Tenant shall pay all charges directly to the provider of services for all
utilities and other services used by Tenant. Landlord shall not be liable in damages or otherwise
for any failure or interruption of any gas, heat, lights, power, telephone, water, sewer or any
other utility service to the Premises.
6. Use.
(a) Tenant shall not use the Premises for any disorderly or unlawful purpose
in violation of any valid and applicable law, regulation or ordinance of the United States, the
State of Texas or the City of Baytown or other lawful authority having jurisdiction over the
Premises, but rather shall conform to all such laws, regulations and ordinances. Tenant shall not
cause or knowingly permit or suffer any waste, damages or injury to any portion of the Premises.
(b) Tenant shall be permitted to use the Premises for commercial heavy
equipment/truck wash, fueling and repair business. Should Tenant desire to change the use or
intensify the use of the Premises from the use existing on the Effective Date, Tenant must obtain
the Landlord's prior written consent. Any use not in conformity with this section shall be
deemed a breach of this Lease for which the City may terminate the Lease.
(c) The decision of the City Manager as to whether a proposed use is
disorderly, unlawful or is a change or more intensive use shall be made by the City Manager and
shall be final and binding on Tenant. Landlord hereby acknowledges and agrees that the use of
the Premises to service the truck fleet owned by Tenant and Tenant's affiliated entities shall in
no event be construed as intensifying the current use. For purposes of this Lease, "Tenant's
affiliated entities" shall include an entity that controls, is controlled by, or is under common
control with the Tenant.
7. Improvements. (a) Tenant shall have the right to construct, maintain, alter, remodel,
rebuild and/or replace any improvements Tenant desires to construct on the Premises from time
to time ("Improvements") at Tenant's sole cost, risk and expense only upon Landlord's prior
written approval. Any future Improvements shall be constructed in a good and workmanlike
manner, and in compliance with all laws, statutes, ordinances, orders, rules, regulations or
Active 15143668.4
requirements of the United States, the state, county, city and political subdivision in which the
Premises are located and the applicable agencies of any such governments, which are applicable
to Tenant, the Premises or the Improvements (collectively, the "Laws").
(b) In the event any lien is placed on the Premises due to the acts or omissions
of Tenant, Tenant shall promptly remove such lien by bonding or otherwise. If Tenant fails to
remove any such lien within fifteen (15) days after notice of such liens, Landlord may remove or
bond around such lien, and Tenant shall reimburse Landlord for the costs incurred to remove or
bond around such lien, plus interest on such amount at the lesser of fifteen percent (15%) per
annum or the maximum lawful rate commencing on the date such payment was made by
Landlord.
(c) Landlord shall fully cooperate with Tenant concerning easements,
dedications, and zoning of the Premises, and in obtaining any approvals from governmental
agencies or entities to permit Tenant to utilize the Premises as permitted herein. Nothing herein
shall be construed to bind the City Council to approve any easement, dedication, zoning, or any
other request concerning the Premises and/or the Improvements.
8. Ownership of Improvements. All Improvements shall be the property of Landlord
throughout the Term.
9. Maintenance of Improvements. Throughout the Term, at Tenant's own cost and
expense, Tenant shall maintain the Premises and Improvements in a clean and good condition,
ordinary wear and tear excepted, and in full compliance with all codes, rules and regulations of
the City as well as all other governmental entities having jurisdiction over the Premises and
Improvements. Upon expiration or termination of this Lease, Tenant shall return the Premises to
Landlord in a clean and good condition, ordinary wear and tear excepted. Tenant shall comply,
at its expense, with all code provisions and/or requests for corrections of violations issued by all
municipalities having jurisdiction over the Premises during the Term related to Tenant's use of
the Premises.
10. Assignment or Sublease. (a) Tenant may not assign, transfer or mortgage this
Lease, or any interest therein, or sublease the Premises, or any space in the Improvements
without Landlord's prior written consent, which shall not be unreasonably withheld or delayed.
Upon any such assignment or transfer of Tenant's entire interest in the Lease (other than a
mortgage), Tenant shall be released from all obligations hereunder arising from and after date of
such assignment or transfer.
(b) Landlord may freely assign, transfer, or mortgage Landlord's interest
under this Lease, without Tenant's prior written consent, provided any such assignment, transfer,
or mortgage shall be subject and subordinate in all respects to this Lease, any new lease granted
pursuant to the terms hereof and any sublease or lease of space in any of the Improvements.
Upon any such assignment or transfer of Landlord's entire interest in the Lease (other than a
mortgage), Landlord shall be released from this Lease only as to events accruing after the date of
such assignment or transfer.
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11. Casualty. Should the Improvements during the Term be wholly or partially
destroyed or damaged by fire, or any other casualty whatsoever, Tenant shall promptly give the
Landlord written notice of the damage or destruction.
(a) If such fire, tornado, or other casualty or occurrence not caused in whole
or in part by the gross negligence, or intentional tort of Tenant or Tenant's affiliate entities or
any officers, employees, agents or contractors of Tenant or Tenant's affiliate entities, Landlord,
in its sole discretion, shall do one of the following, in connection with such damage or
destruction, all at its cost and expense: (a) repair, replace, restore or reconstruct the same; (b)
demolish the ruins and construct new improvements (which then shall be the Improvements
under this Lease); or (c) demolish and remove the ruins and grade the Premises to the level of
any adjoining sidewalk, and not construct new improvements. Landlord must notify Tenant in
writing of its election pursuant to the foregoing sentence on or before sixty (60) days after
receiving notice of the occurrence of any such casualty from Tenant. In the event Landlord
elects subparagraph (c), this Lease shall terminate as of the date of Landlord's receipt of notice
of such casualty from the Tenant. Furthermore, in the event Landlord does not elect
subparagraph (c), but Landlord estimates that the restoration of the Improvements will take
longer than ninety (90) days from commencement of the restoration activities and provides
notice thereof to Tenant, Tenant shall have the right to terminate this Lease upon Landlord's
receipt of Tenant's written notice to Landlord. In the event of any such casualty not caused in
whole or in part by the gross negligence or intentional tort of Tenant or Tenant's affiliate entities
or any officer, employee, agent or contractor of Tenant or Tenant's affiliated entities, the rental
and other payments herein provided for shall be abated as to the portion of the Improvements on
the Premises which are not usable as determined by Landlord until such Improvements on the
Premises are completely restored and the happening of any such casualty shall not cause the
termination of this Lease except to the extent described in subparagraph (c) above or in the
immediately preceding sentence. Any prepaid Base Rental with respect to any period of
abatement described in the preceding sentence, shall be refunded to Tenant promptly following
the restoration of such Improvements. All payments made by an insurance company for losses
due to casualty shall be made solely to Landlord, and Tenant shall have no claim thereto.
(b) If the fire or other casualty was caused in whole or in part by the gross
negligence or intentional tort of Tenant or any officer, employee, agent or contractor of Tenant
or Tenant's affiliated entities, Tenant shall:
(i) proceed immediately to rebuild or repair the Improvements to
specifications approved by the Landlord in writing to the same or better condition in
which the Improvements were prior to the fire or other casualty; and Tenant shall
complete the same within ninety (90) days or such longer period as may be approved by
the Landlord in writing;
(ii) cause all construction and/or repair work to be done in a
workmanlike manner, leaving the Premises free of liens for labor and materials;
(iii) have the obligation to prosecute diligently such work and complete
the same within a reasonable period of time as determined by the Landlord;
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(iv) obtain or cause its contractors to obtain insurance in the coverages
and amounts required by the Landlord, which coverages may include, but not be limited
to, builders' risk insurance as well as those specified in Exhibit "B"; and
(v) tender, on forms acceptable to the Landlord, either (i) performance
and payment bonds in the full amount of the cost of construction or repair if the cost of
the repair or reconstruction equals or exceeds $25,000 or (ii) if such cost is less than
$25,000, a bond for the sum of one hundred percent (100%) of the total lien amount of
any lien filed against the Premises for work performed by Tenant or Tenant's contractors
or their subcontractors.
If Tenant does not rebuild or repair the Improvements as required under this Paragraph I I(b) or
fails to timely do so, the Landlord may do so at Tenant's sole cost and expense upon giving
Tenant not less than 10 days' prior written notice. The rental and other payments herein
provided for shall not be abated during the time that Tenant is required to rebuild or repair the
Improvements.
12. Environmental. Tenant shall cause the Improvements to be operated and
maintained in an environmentally sound manner that complies with all applicable federal, state
and local environmental and related Laws and permits. Without limiting any rights of Landlord,
Tenant will promptly correct or satisfy any non-compliance with the terms of this Section upon
written notice of the same from Landlord or any governmental authority or agency having
jurisdiction with respect to the Premises. Tenant further agrees that:
(a) except for fuels, lubricants and other materials commonly used in
connection with the operation of drying and screening plants, no hazardous substances as defined
under the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. 6901 shall be used,
discharged, or stored on the Premises without the express written consent of Landlord and in the
event of such consent, in conformity with any reasonable restrictions or requirements imposed by
Landlord as a condition to such consent;
(b) no underground tanks shall be installed. All fuel and other tanks required
by Tenant shall be above ground, in good condition, with adequate spill and leak protection
safeguards, including secondary containment and spill prevention control plans, to secure against
the release of fuels and other substances into the ground. Tenant shall have ninety (90) days
from the Commencement Date to construct the containment structures on the Premises necessary
to comply with this Section;
(c) all maintenance and repair work on the Premises of vehicles and
equipment, including oil changes and degreasing operations, shall utilize sound environmental
practices to prevent leaks and spills and to contain all such substances. Tenant will construct and
maintain a containment area for any truck washout that may be needed, and no washout will
occur with respect to trucks operating on its behalf except in the containment area. Tenant shall
use diligent good faith efforts to ensure that no washout discharge reaches any surface or ground
water; and
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(d) in the event of any act, occurrence, or omission by Tenant that requires
notice to any local, state or federal governmental authority or agency relating to an
environmental or any other matter, Tenant shall timely make such notice and provide Landlord a
copy of such notice at the same time Tenant tenders it to such regulatory authority or agency.
Tenant will likewise provide Landlord with copies of any notices of violation which Tenant
receives from any governmental authority or agency with respect to any of its activities on the
Premises within ten (10) days after Tenant receives such a notice from the governmental
authority or agency. Landlord may, at its option, terminate this Lease based upon violations of
environmental laws or regulations.
13. Force Majeure. Delays in the performance by either party of the obligations
contemplated under this Lease due to fire, flood, earthquake, unusual weather conditions which
impair a party's ability to perform construction or business activities, unavailability of materials,
equipment or fuel which impair a party's ability to perform construction or business activities,
war, declaration of hostilities, revolt, civil commotion, strike, labor dispute, or epidemic, or
because of any acts of God or for any other cause beyond the reasonable control of the party
shall be deemed events of force majeure ("Force Majeure Events") and such delays shall be
excused only during the period which the party is prevented from performing its obligations
hereunder.
14. Condemnation. As used herein, "Condemnation" or "Condemned" means a taking
by the government of the United States, State of Texas, City of Baytown, or any government or
power whatsoever, or by any corporation under the right of eminent domain, or a condemnation
by any court, city, state, county or governmental authority or office, department or bureau of the
city, county, state or United States.
If only Landlord's interest in the Premises or the Improvements (but not the
leasehold estate of Tenant under this Lease) is Condemned in whole or in part, then this Lease
shall not be affected thereby and all proceeds of such Condemnation shall be paid to Landlord.
If only Tenant's leasehold estate under this Lease shall be Condemned (but not
Landlord's interest in the Premises and Improvements) in whole or in part, then this Lease shall
not be affected thereby and all proceeds of such Condemnation shall be paid to Tenant.
If both Landlord's interest in the Premises and Improvements, on the one hand,
and Tenant's leasehold interest under this Lease, on the other hand, shall be Condemned in whole
or in part, then this Lease shall not be affected thereby and all proceeds of such Condemnation
shall be awarded to Landlord and Tenant pro rata based upon the relative value of their
respective interests in the Premises and Improvements; however, the parties agree that Tenant
shall not receive any proceeds from such condemnation award and the same shall be paid to
Landlord if Tenant is not current on all Rent due under this Lease at the time of the award.
If the Condemnation, in Landlord's and Tenant's reasonable discretion, renders
the Premises unusable, then this Lease may be terminated upon notice by Tenant to Landlord
within thirty (30) days of such Condemnation with the award distributed as provided above. If
this Lease is not so terminated by Tenant, the Base Rental thereafter to be paid by Tenant shall
be reduced in the proportion that the number of square feet of the Improvements on the Premises
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so Condemned bears to the total square feet contained in the Improvements on the Premises prior
to such Condemnation.
15. Right to Inspect. The Landlord has the right to inspect the Premises and the
improvements thereon at all reasonable times during the period of this Lease to ensure
compliance with the terms and conditions of this Lease.
16. Disclaimer. Tenant takes the Premises subject to the following disclaimer of the
Landlord:
THE CITY EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY NATURE, KIND OR
CHARACTER WHATSOEVER, EXPRESS OR IMPLIED,
REGARDING THE PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PREMISES,
INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND TENANT ACCEPTS
SUCH PREMISES IN AN "AS IS" CONDITION, WITH
ALL FAULTS.
TENANT, BY ITS EXECUTION OF THIS AGREEMENT,
EXPRESSLY WAIVES ANY RIGHT OR CLAIM
AGAINST THE CITY FOR DAMAGES, RESCISSION OR
OTHER REMEDY AT LAW OR IN EQUITY WITH
RESPECT TO OR RESULTING FROM THE PHYSICAL
CONDITION OF THE PROPERTY AND THE
IMPROVEMENTS, IF ANY THEREON, INCLUDING,
WITHOUT LIMITATION, THE ENVIRONMENTAL
CONDITION OF THE PROPERTY AND THE FACT
THAT PORTIONS OF THE PROPERTY MAY BE
LOCATED WITHIN THE 100 YEAR FLOOD PLAIN.
THE WAIVER AND EXCULPATION PROVIDED
ABOVE SHALL BE BINDING ON ALL SUCCESSORS
AND ASSIGNS OF TENANT AND ALL SUBTENANTS
OF AND INVITEES ON THE PROPERTY.
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17. Indemnification.
TENANT HEREBY AGREES TO INDEMNIFY, HOLD
HARMLESS, PROTECT AND DEFEND LANDLORD, ITS
OFFICERS, AGENTS, AND EMPLOYEES (THE "LANDLORD
PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS AND ATTORNEY'S FEES, FOR
ANY INJURY TO OR DEATH OF ANY PERSON OR DAMAGE
TO ANY PROPERTY INCURRED IN CONNECTION WITH ALL
CLAIMS, INCLUDING ANY ACTION OR PROCEEDINGS
BROUGHT, THEREON ARISING FROM, AS A RESULT OF, OR
IN ANY WAY RELATED TO TENANT'S AND ITS
SUBTENANTS', ASSIGNEES', OFFICERS', AGENTS',
EMPLOYEES', AND/OR CONTRACTORS', INCLUDING THOSE
OF TENANT'S AFFILIATED ENTITIES (THE "TENANT
PARTIES") USE OR OCCUPANCY OF THE PROPERTY AND/OR
PROJECT OR ANY OF THE ACTIVITIES OF ANY SUCH
TENANT PARTIES IN OR ON THE PREMISES, OR THE DESIGN
OR CONSTRUCTION OF THE PROPERTY IMPROVEMENTS,
WHERE SUCH INJURIES, DEATH, OR DAMAGES ARE
CAUSED BY THE JOINT NEGLIGENCE OF THE LANDLORD
PARTIES AND THE TENANT PARTIES AND/OR BY THE JOINT
OR SOLE NEGLIGENCE OF THE TENANT PARTIES. IT IS THE
EXPRESS INTENTION OF BOTH LANDLORD AND TENANT
THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY,
HOLD HARMLESS, PROTECT, AND DEFEND THE LANDLORD
PARTIES FROM (I) THE CONSEQUENCES OF THE
NEGLIGENCE OF THE LANDLORD PARTIES, WHERE THAT
NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF A
TENANT PARTY OF ANY SUCH INJURY, DEATH OR DAMAGE,
AND/OR (II) THE TENANT PARTIES' SOLE AND/OR
CONCURRENT NEGLIGENCE. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL
HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE,
CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE
INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE
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NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
LANDLORD.
IN THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE LANDLORD BY REASON OF ANY OF
THE ABOVE, TENANT FURTHER AGREES AND COVENANTS TO
DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE LANDLORD.
Notwithstanding anything to the contrary contained in this Agreement, the
indemnity provided in this Paragraph 17 shall not terminate upon the termination
or expiration of this Agreement, but shall continue in full force and effect.
18. Insurance.
(a) During the Term, Landlord agrees to and shall (at its own cost and
expense) maintain "all risk" insurance (in one or more companies which are authorized to do
business in Texas) covering the Improvements in an amount not less than full replacement cost
(above the foundation) ("Casualty Insurance").
(b) During the Term, Tenant shall obtain and maintain the types and amounts
of insurance coverage set forth on Exhibit B with insurance companies licensed to transact
business in Texas, and Tenant will comply with all of the other applicable provisions set forth on
Exhibit B.
19. Waiver of Subrogation. ANYTHING IN THIS LEASE TO THE CONTRARY
NOTWITHSTANDING, TENANT HEREBY WAIVES ANY AND ALL RIGHTS OF
RECOVERY, CLAIM, ACTION OR CAUSE -OF -ACTION, AGAINST THE- LANDLORD ITS
AGENTS, OFFICERS, DIRECTORS, CUSTOMERS, INVITEES OR EMPLOYEES, FOR
ANY LOSS OR DAMAGE THAT MAY OCCUR TO THE PREMISES, OR ANY
IMPROVEMENTS THERETO, OR ANY PERSONAL PROPERTY OF SUCH PARTY
THEREIN, BY REASON OF FIRE, THE ELEMENTS OR ANY OTHER CAUSE WHICH IS
INSURABLE UNDER A STANDARD FIRE AND EXTENDED COVERAGE INSURANCE
POLICY OR IS OTHERWISE INSURED, REGARDLESS OF CAUSE OR ORIGIN,
INCLUDING NEGLIGENCE OF THE LANDLORD HERETO, ITS AGENTS, OFFICERS,
DIRECTORS, CUSTOMERS, INVITEES OR EMPLOYEES, AND COVENANTS THAT NO
INSURER SHALL HOLD ANY RIGHT OF SUBROGATION AGAINST THE LANDLORD.
THE TENANT SHALL ADVISE ITS INSURERS OF THE FOREGOING WAIVER AND
SUCH WAIVER SHALL BE A PART OF EACH POLICY MAINTAINED BY THE TENANT
WITH RESPECT TO THE PREMISES.
20. Default by Tenant. Landlord shall have the right to declare Tenant in default if
Tenant:
(a) fails to pay any installment of Base Rental or other money herein
stipulated to be paid by Tenant, and if such default shall continue for a period of seven (7) days
Active 15143668.4 10
after written notice of such default and request for compliance have been given to Tenant by
Landlord; or
(b) defaults in the performance or observance of any of the terms, covenants,
conditions, agreements and provisions of this Lease other than those stated in subparagraph (a)
above, and if such default shall continue for a period of thirty (30) days after written notice of
such default and request for compliance have been given to Tenant by Landlord, or any
authorized representative of Landlord; provided, however, if such default cannot be corrected
within said thirty (30) day period, then said period for correction may be extended at the sole
discretion of the Landlord.
Upon termination, Landlord, its agent or representative, shall have the right:
1. without further demand or notice, to re-enter and take possession of the Premises
and all buildings and improvements thereon, with or without process of law, and
remove all persons and property from the Premises without being deemed guilty
of any manner of trespass or becoming liable for any loss or damage which may
be occasioned thereby; and
to take further action necessary to collect amounts due and owing by Tenant
under this Agreement.
IF TENANT FAILS TO SURRENDER THE PROPERTY AS
REQUIRED HEREIN, TENANT SHALL DEFEND AND
INDEMNIFY IN ACCORDANCE WITH SECTION 17, LANDLORD,
ITS OFFICERS, AGENTS, AND EMPLOYEES, FROM ALL
LIABILITY AND EXPENSE RESULTING FROM THE DELAY OR
FAILURE TO SURRENDER INCLUDING, WITHOUT
LIMITATION, CLAIMS MADE BY ANY SUCCEEDING LESSEE
FOUNDED ON OR RESULTING FROM TENANT'S FAILURE TO
SURRENDER.
Should this Lease be terminated in part based upon Tenant's default during Term, (i) Tenant
shall not be entitled to any proration or rebate of any advance rental payments made, (ii) Tenant
shall be required to pay within thirty (30) days of termination all rent and other payments due for
the initial thirty (30) month term of the Lease if termination occurs prior to the thirtieth (30th)
month; and (iii) all Tenant's rights under this Agreement shall be terminated.
No waiver of any breach of any covenant of this Lease shall be construed to be a waiver of any
other or subsequent breach of the same or of any other covenant or provisions, and the
acceptance of Rent after an event of default shall not be a waiver of the right to demand payment
of any subsequent installment of Rent on the day it becomes due. In the event that Landlord
elects to declare this Lease canceled and terminated as herein provided, all Improvements shall
be and become the absolute and unconditional property of Landlord, subject to the provisions of
Paragraph 8.
Active 151436684 11
21. Surrender of Premises. Upon expiration or termination of the Lease, Tenant shall
surrender the Premises to Landlord in a good condition subject to ordinary wear and tear as
determined by the City Manager. Tenant shall be responsible for all damage to the Property
occasioned by such removal of personal property. All property that Tenant is required to
surrender, which shall include all improvements, fixtures and all other non -personal property
pertaining to the Premises and its improvements, shall become the City's property upon the
termination. All personal property that Tenant fails to remove within thirty (30) days of the date
of termination shall be deemed abandoned, and the City, at its election, has the right to take
possession of such personal property or charge Tenant for the removal of the same.
22. No Arbitration. Notwithstanding anything to the contrary contained in this
Agreement, the Landlord and Tenant hereby agree that no claim or dispute between the Landlord
and the Tenant arising out of or relating to this Agreement shall be decided by any arbitration
proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9
U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to,
the Texas General Arbitration Act, provided that in the event that the Landlord is subjected to an
arbitration proceeding notwithstanding this provision, Tenant consents to be joined in the
arbitration proceeding if the Tenant's presence is required or requested by the Landlord for
complete relief to be recorded in the arbitration proceeding.
23. Estoppel Certificates. Landlord and Tenant shall, without additional
consideration, execute and deliver to each other or to any person whom the requesting party may
designate estoppel certificates as appropriate and reasonably requested by Landlord, Tenant or
any such other authorized person, within ten (10) days of request therefor.
24. Notice. Any notice, communication, request, reply or advice or duplicate thereof
(hereinafter severally and collectively, for convenience called "notice") in this Lease provided or
permitted to be given, made or accepted by either party to any person must be in writing and
may, unless otherwise in this Lease expressly provided, be given or be served by facsimile copy,
or by depositing the same in the United States mail, postpaid and certified and addressed to the
party to be notified, with return receipt requested, by delivering the same by reliable overnight
courier service, or by delivering the same in person to such party. Notice deposited in the mail in
the manner hereinabove described shall be effective, unless otherwise stated in this Lease, from
and after the expiration of three (3) days (exclusive of Saturdays, Sundays and postal holidays)
after it is so deposited, regardless of whether or when same is actually received by the addressee.
Notice in any other manner shall be effective only if and when received by the party to be
notified, or upon the refusal of receipt by the addressee. For purposes of notice, the addresses of
the parties shall, until changed as hereinafter provided, be as follows:
To Tenant: Angel Brothers Enterprises, Ltd.
P. O. Box 570
Baytown, Texas 77522
Attn: Gary Angel
Active 15143668.4 12
To Landlord: The City of Baytown, Texas
P.O. Box 424
Baytown, TX 77522
Attn: City Manager
With copy to:
City of Baytown
Attn: City Attorney
2401 Market Street
Baytown, Texas 77520
However, the parties hereto shall have the right from time to time to change their respective
addresses upon at least fifteen (15) days' written notice to the other party.
25. Counterparts. This Lease may be executed by Landlord and Tenant by facsimile
signature and in counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same instrument.
26. Brokers. Landlord and Tenant represent that they have not dealt with any real
estate broker or salesman in connection with this Lease. This paragraph shall survive the
termination, or sooner expiration, of this Lease.
27. Entire Agreement. This Lease contains the entire agreement between the parties.
All prior negotiations, discussions, correspondence, and preliminary understandings between the
parties and others relating hereto are superseded by this Agreement. This Agreement may only
be amended, altered or revoked by written instrument signed by the Landlord and Tenant.
28. Interpretation. Each of the parties has been represented by counsel of their choosing
in the negotiation and preparation of this Lease. Regardless of which party prepared the initial
draft of this Lease, this Lease shall, in the event of any dispute regarding its meaning or
application, be interpreted fairly and reasonably and neither more strongly for, nor against any
party.
29. Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several paragraphs.
30. No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
31. Miscellaneous. No variations, modifications, or changes herein or hereof shall be
binding upon any party hereto unless executed by such party. No waiver of any default by either
party of any term or obligation hereunder shall be deemed a waiver thereof, nor shall any such
waiver be deemed or construed to be a waiver of subsequent defaults of any kind, under any
circumstance. This Lease shall be binding upon and shall inure to the benefit of Landlord and
Active 15143668 4 13
Tenant and their respective heirs, successors, assigns, and legal representatives. This Lease shall
be construed and enforced in accordance with the laws of the State of Texas and venue shall lie
in the State courts of Harris County, Texas. Any provision of this Lease which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Nothing contained in this Lease shall be construed
to create a partnership, joint venture, association, trust or other entity, nor to constitute either
party the agent of the other. This Lease does not and shall not be construed to confer any rights,
privileges or causes of action upon any third party.
[End of Page]
Active 15143668.4 14
IN WITNESS WHEREOF, this Lease is made and entered into in multiple
original counterparts, on the day and year first above written.
THE CITY OF BAYTOWN, TEXAS
By:
Name:
Title:
TENANT:
ANGEL BROTHERS ENTERPRISES, LTD.
By: Angel Brothers Management, Inc.,
its general partner
By:
Name:
Title:
Active 15143668.4 15
EXHIBIT A
PREMISES
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Active 151436684 A-1
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EXHIBIT B
INSURANCE REQUIREMENTS
Workers' Compensation and Employers' Liability
Statutory coverage for state Workers' Compensation Act
$1,000,000 Employers' Liability
Automobile Liability
Limits: $1,000,000 CSL per occurrence
Coverage: Applies to all owned, non -owned, leased & hired vehicles including tankers &
trailers.
Commercial General Liability
Limits: $1,000,000 each occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed operations Aggregate
$1,000,000 Personal & Advertising Injury
Coverage: ISO Commercial General Liability (occurrence) form including
Contractual Liability coverage.
Other Requirements:
Tenant's insurer will provide thirty (30) days prior notice of cancellation, non -renewal or
material change.
A duly executed certificate of insurance displaying the above -required coverages and a copy of
the endorsements adding Landlord as an additional insured on the liability policies shall be sent
to Landlord. Landlord will be an additional insured for covered claims and liabilities, but only to
the extent that Tenant assumed duties of defense and indemnity under the Lease, regardless of
whether so stated in the Certificate of Insurance or any endorsement to the relevant policies.
Active 15143668.8 B -I