Ordinance No. 10,950ORDINANCE NO. 10,950
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS AUTHORIZING A LEASE AGREEMENT WITH THE ART LEAGUE OF
BAYTOWN INCORPORATED. FOR THE PROPERTY LOCATED AT 110 W.
TEXAS AVENUE FOR USE AS AN ART GALLERY; 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 the
City Manager to execute and the City Clerk to attest to a lease agreement with the Art League of
Baytown, Incorporated, for the property located at 110 W. Texas Avenue for an art gallery. A copy
of said 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 from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 28th day of August, 2008.
ATTEST:
DARNELL. City Clerk
STEPHEN H. DONCARLOS, Mayor
1 >* ■
APPROVED AS TO FORM:
ACIO RAMIREZ, Sr., CityfAjtomey
,?■■
28\ArtUagueLeaseOrditwnee.doc
Exhibit "A1
LEASE AGREEMENT
STATE OF TEXAS §
§
COUNTY OF HARRIS §
This Lease Agreement (this "Agreement" or "Lease") is made and entered into between
the City of Baytown, Texas, a municipal corporation, hereinafter referred to as "Lessor," and the
Art League of Baytown, Incorporated, a Texas non-profit corporation, hereinafter referred to as
"Lessee." In consideration of the mutual covenants and agreements of this Agreement, Lessor
leases to Lessee and Lessee leases from Lessor the right to use and occupy the following
described property located at 110 W. Texas Avenue, Baytown, Harris County Texas:
Lots 4, 5, 20 and 21, Block 19, Goose Creek Townsite, Baytown, Harris County,
Texas,
hereinafter referred to in this Lease as the "Premises."
I.
TERM
1.01 TERM.
The term of this Lease is for 25 years, beginning on the date this Agreement is signed by
the Lessor's City Manager (the "Term"), unless terminated sooner or extended as
provided in this Lease.
1.02 HOLDING OVER.
If Lessee holds over and continues in possession of the Premises after the Term or any
extension of it expires, the holding over may be considered by the Lessor and at the
Lessor's option a month-to-month tenancy binding Lessee to all terms and conditions as
set forth in this Lease with the following exceptions: The rental payments due Lessor
shall be $1,000.00 per month as adjusted each year by the same percentage during the
holding over as the Consumer Price Index, All Urban Consumers for the Houston-
Galveston-Brazoria Area, Base Period 1982-84 =100 (published by the United States
Bureau of Labor Statistics, Consumer Price Index) (the "CPI-U") shall have increased
during the preceding twelve months based upon the such index sixty-four (64) days prior
to the effective date of the change. Such amount shall be payable on the first day of each
month thereafter until the tenancy is terminated in a manner provided by law or as a
remedy elected by Lessor under the terms of this Lease.
1.03 DAMAGE OR DESTRUCTION OF PREMISES BY FIRE OR OTHER CASUALTY.
1.03.01 NOTICE TO LESSOR.
If the Premises or any structures or improvements on them are damaged or
destroyed by fire, tornado, or other casualty, regardless of its cause,
Lease Agreement. Page 1
Lessee must immediately give Lessor written notice of the damage or
destruction.
1.03.02 TOTAL DESTRUCTION.
If a fire, tornado, or other casualty or occurrence not caused in whole or in
part by the negligence, gross negligence, or intentional tort of Lessee or
any person in or about the Premises with Lessee's express or implied
consent totally destroys the Premises or so damages the Premises that
rebuilding or repairs are determined by the Lessor not in its best interest,
this Lease upon written notice from Lessor will terminate.
1.03.03 PARTIAL DESTRUCTION.
If the Premises are damaged by fire, tornado, or other casualty or
occurrence not caused in whole or in part by the negligence, gross
negligence, or intentional tort of Lessee or any person in or about the
Premises with Lessee's express or implied consent, and the damage does
not amount to a total destruction as set out in Section 1.03.02 and as
determined by Lessor, Lessor may, at its sole option, proceed immediately
to rebuild or repair the Premises to substantially the condition they were in
before the damage. If the damage renders the Premises untenantable in
whole or in part as determined by the Lessor, the services to be performed
as consideration for the use of the premises during the period in which the
Premises are untenantable may be curtailed to the extent authorized by the
Lessor. If the Lessor determines not to rebuild or repair the Premises, the
Lessor may terminate this Lease.
1.04 CONDEMNATION BY EMINENT DOMAIN.
1.04.01 TOTAL TAKING.
If, during the Term or any extension or renewal of the Lease, all of the
Premises are taken as determined by the Lessor for a public or quasi-
public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or arc sold to the condemning authority under
threat of condemnation, this Lease will terminate and the services to be
performed will be terminated for the unexpired portion of this Lease,
effective as of the date the condemning authority takes possession of the
Premises.
1.04.02 PARTIAL TAKING.
If less than all but more than fifty percent (50%) of the Premises is taken
as determined by the Lessor for any public or quasi-public use under any
governmental law, ordinance, or regulation or by right of eminent domain,
or is sold to the condemning authority under threat of condemnation,
Lessor may terminate the Lease by giving written notice to the other
within thirty (30) days after the entity exercising the power of
condemnation takes possession of the condemned portion. If the Premises
Lease Agreement. Page 2
are partially taken and Lessor elects not to terminate this Lease, or if less
than fifty percent (50%) of the Premises is condemned as determined by
the Lessor, this Lease will not terminate, but Lessee's services will be
adjusted equitably as determined in the sole discretion of the Lessor
during the unexpired portion of this Lease.
11.
RENTAL PAYMENTS
2.01 BASIC RENT.
Lessee promises and agrees as compensation for using and occupying the Premises it
shall provide services which promote tourism and the convention and hotel industry in
the City of Baytown under the terms specified herein. Such services shall be limited to
the encouragement, promotion, improvement, and application of the arts, including
instrumental and vocal music, dance, drama, folk art, creative writing, architecture,
design and allied fields, painting, sculpture, photography, graphic and craft arts, motion
pictures, radio, television, tape and sound recording, and other arts related to the
presentation, performance, execution, and exhibition of these major art forms.
2.02 PERFORMANCE OF SERVICES AND PROMPT PAYMENT OF REQUIRED FEES.
Lessee's right to possession and all of Lessor's obligations hereunder are expressly
contingent upon Lessee's performance of services required herein as well as the prompt
payment of monies required to be paid by Lessee herein, and the use of the Premises by
Lessee is obtained only on the condition that services are rendered and all fees required
herein are paid on time. Performance of services and payment fees required herein shall
be independent covenants. At any time after Lessor's receipt of a check from Lessee for
other fees, such check is not honored by the drawing financial institution due to
insufficient funds or is otherwise dishonored twice for any reason, Lessor may at any
time thereafter, at Lessor's sole option, require that all fees and other sums due from
Lessee hereunder be paid either by cashier's check or money order. Failure to pay any
fees required herein as and when required will not only be considered a breach of this
Lease but also result in interest, as specified in Section 2.03, being charged on the
delinquent payment commencing on the date the payment first becomes overdue.
2.03 INTEREST ON DELINQUENT PAYMENTS.
Delinquent payments shall bear interest at the rate specified in Section 2251.025 of the
Texas Government Code, and as amended. Such interest shall commence on the date the
payment first becomes overdue and continuing until the delinquent payment is paid in
full.
2.04 PROPERTY TAXES.
In addition to the basic rent specified above, Lessee will pay to Lessor all property taxes,
special assessments, and governmental charges of any kind, if any, imposed on the
Premises and/or personal property thereon during the term, including any special
assessments imposed on or against the Premises for constructing or improving public
Lease Agreement. Page 3
works. This additional rent will be in the amount stated in a written notice sent by Lessor
to Lessee and will be due within fifteen (IS) days of receipt of the notice.
2.05 UTILITIES.
2.05.01 TELEPHONE, CABLE, AND INTERNET.
Lessee agrees to pay for telephone, cable and internet services, if any,
furnished on the Premise for the Term of the Lease.
2.05.02 ELECTRICITY, NATURAL GAS AND WATER TO BE PAID BY
LESSEE.
Lessee shall pay for the electric, natural gas and water/sewer and all other
utility charges.
III.
USES
3.01 USE OF PREMISES.
3.01.01 ART GALLERY.
The Premises will be used for the encouragement, promotion,
improvement and application of the arts, including instrumental and vocal
music, dance, drama, folk art, creative writing, architecture, design and
allied fields, painting, sculpture, photography, graphic and craft arts,
motion pictures, radio, television, tape and sound recording, and other arts
related to the presentation performance, execution and exhibition of these
major art forms.
3.01.01.01 HOURS OF OPERATION.
Lessee covenants and agrees that it will keep the gallery open to
the public for a minimum average of twenty (20) hours a week and
on such other occasions as public demand may justify.
3.01.01.02 NO FEE TO PUBLIC.
The Lessee shall operate the gallery free of charge to the public.
This provision, however, shall not be construed to prohibit the
Lessee from:
> charging for supplies or lessons received at the gallery;
> soliciting donations, dues or other funds from any person or
from any sponsoring fundraising events. All money
collected by the Lessee from donations, dues and
fundraising, or revenues derived from the operation of the
Lease Agreement Page 4
gallery shall be set aside to be used by the Lessee solely in
such a manner as to develop, operate and maintain the
gallery and its artistic and educational programs, including,
but not limited to the awarding of scholarships;
> charging the artist display fees for items displayed in the
gallery for sale to the public, collecting sales tax and
charging the artist a sales fee for the item sold;
> operate a gift shop selling item that are artistic and novel
that support and compliment the mission of the Lessee,
including items that support tourism; or
> charging other fees if such fees are approved in writing by
the City Manager prior to any assessment of any such fee.
3.01.01.03 STANDARD OF CARE.
The Lessee agrees it shall exercise appropriate care, prudence and
diligence in the selection of its members and the election of
directors for the purpose of assuring broad representation of the
community interest and to act always in accordance with
community goals and in the highest public interest. Lessee hereby
expressly agrees to supply the names of those persons selected as
Directors for filing as a public record. Such directors shall
faithfully and diligently exercise its authority in conformity with
the provisions of this Agreement. The Board of Directors of the
Lessee shall conform in principle and, where applicable, with the
procedures adopted by the Lessor's City Council in the conduct of
its meetings and the Directors shall adopt appropriate and
reasonable regulations to this end where such regulations do not
conflict with the corporate charter, mission, and bylaws of the
Lessee.
3.02 LIMITATIONS ON USE.
Notwithstanding the foregoing Section 3.01 describing Lessee's permissible use of the
Premises, Lessee, without having first obtained Lessor's written consent, shall not:
i. Display, stock, offer to sell, or sell, or permit the displaying, stocking, offering for
sale, or sale of any alcoholic beverages, including beer and wine, in, on, or from
the Premises.
ii. Allow any livestock, pets, or other live animal of any kind in or on the Premises
except for service animals.
Lease Agreement. Page 5
Hi. Place or maintain or permit the placing or maintaining of any sign or advertising
device of any kind on the exterior walls or roof of the Premises, without obtaining
the prior written consent of the Lessor.
iv. Commit or permit any act or acts in or on the Premises or use them or suffer them
to be used in any manner that will increase the existing fire, liability, and other
insurance rates on the Premises and its contents or that will cause a cancellation of
any insurance policy covering the improvements on the Premises. Lessee shall
not keep, hold, store, use, or sell in or on the Premises any product or article
prohibited by the standard fire insurance policy, as it now exists or may later
provide, covering the improvements on the property or permit or suffer any such
product or article to be kept, held, stored, used, or sold in or on the Premises.
Lessee will, at its sole expense, comply with all requirements of Lessor's
insurance carriers necessary for the continued maintenance of reasonable fire and
liability insurance covering the Premises.
v. Permit any objectionable odors to emanate from the Premises; permit smoking,
illegal drugs, alcohol, or concealed weapons on any portion of the Premises; place
or permit any loud speaker or amplifier or otherwise allow any objectionable
noises or vibrations to emanate from the Premises; or take or permit any other
conduct that in the exclusive judgment of Lessor would constitute a nuisance or
would disturb or endanger other tenants or neighbors or unreasonably interfere
with their use of their respective premises.
3.03 DISCLAIMER OF WARRANTIES.
LESSOR 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 LESSEE ACCEPTS SUCH PREMISES IN AN "AS
IS" CONDITION, WITH ALL FAULTS.
LESSEE, BY ITS ACCEPTANCE OF THIS LEASE EXPRESSLY
WAIVES ANY RIGHT OR CLAIM AGAINST LESSOR FOR
DAMAGES, RESCISSION OR OTHER REMEDY AT LAW OR IN
EQUITY WITH RESPECT TO OR RESULTING FROM THE
PHYSICAL CONDITION OF THE PREMISES AND THE
IMPROVEMENTS, IF ANY THEREON, INCLUDING, WITHOUT
LIMITATION, THE ENVIRONMENTAL CONDITION OF THE
PREMISES AND THE FACT THAT PORTIONS OF THE PREMISES
MAY BE LOCATED WITHIN THE 100 YEAR FLOOD PLAIN. THE
Lease Aprcemept. Page 6
WAIVER AND EXCULPATION PROVIDED ABOVE SHALL BE
BINDING ON ALL SUCCESSORS AND ASSIGNS OF LESSEE AND
ALL OPERATORS OF THE PREMISES.
IV.
REPAIRS AND MAINTENANCE
4.01 LESSEE'S OBLIGATION FOR REPAIRS AND MAINTENANCE.
Lessee will, throughout the term of this Lease, at its own expense and risk, maintain the
Premises and all improvements on the Premises in good order, appearance, and condition,
including, but not limited to, making all repairs and replacements necessary to keep the
Premises and improvements in that condition. Specifically, Lessee, at its expense, shall
maintain and keep the Premises, including without limitation, windows, doors, skylights,
storefront, interior walls, building roof and exterior walls in good repair. Lessee shall
maintain any lawn and shrubbery on the Premises. The Lessee shall be responsible for
ensuring that all fire fighting systems and equipment are regularly inspected and remain
in the highest degree of readiness. Lessee shall also comply with all applicable statutes,
ordinances and regulations affecting access by persons with disabilities. All maintenance,
repairs, and replacements required by this section must be performed promptly when
required as determined by either the Lessee or the Lessor. If repairs are requested by the
Lessor, such repairs must be made within the time period specified in the notice to repair
or maintain sent to the Lessee.
4.02 LESSEE'S FAILURE TO REPAIR OR MAINTAIN.
If Lessee fails to perform its obligation to repair, replace, or maintain, as set forth above,
within a reasonable time after notice from Lessor of the need for the repair, replacement,
or maintenance, Lessor may enter the Premises and make the repairs or replacements or
perform the maintenance or Lessor may have the repairs or replacements made or
maintenance performed by another. In cither event, Lessor will thereafter inform Lessee
of the cost of any such maintenance, repairs, or replacements and Lessee shall reimburse
Lessor for that amount, plus interest as provided in Section 2.03 from the date of Lessor's
outlay until paid.
4.03 NO ALTERATIONS, IMPROVEMENTS, OR ADDITION OF FIXTURES WITHOUT
CONSENT.
Lessee will not alter or improve the Premises or install or affix any machinery,
equipment, appliance, or other fixture without submitting to Lessor detailed plans and
designs for such alteration, improvement, or installation and obtaining Lessor's written
consent to perform all acts necessary to so alter, improve, or install. When this Lease
expires or sooner terminates, all such alterations, additions, improvements, and fixtures
made or placed in or on the Premises at Lessee's expense and with Lessor's consent shall
belong to Lessor without compensation to Lessee; provided, however, Lessor has the
option, exercisable when the Lease expires or sooner terminates, to require Lessee to
remove any such addition, improvements, or fixture at Lessee's cost and to restore the
Lease Agreement. Page 7
Premises to the same or better conditions it was in prior to any such addition,
improvement or fixture.
4.04 SURRENDER OF PREMISES.
The Lessee shall surrender the Premises to the Lessor at the end of the Term in the same
or better condition as when it took possession under this Lease, allowing for reasonable
wear and tear as determined by the Lessor.
V.
DEFAULT AND TERMINATION
5.01 ACTS OR OMISSIONS CONSTITUTING DEFAULT; GRACE PERIOD.
The following events shall be deemed to be events of default by Lessee under this Lease:
i. Lessee's failure to make any required payment when due and when that failure
continues for a period often (10) days after written notice of the failure is given
by Lessor to Lessee.
ii. Lessee's failure to perform or comply with any other term, provision, covenant, or
other obligation imposed by this Lease or implied in law and fails to cure or
remedy that failure within fifteen (15) days after written notice of the failure is
given by Lessor to Lessee.
5.02 LESSORS REMEDIES FOR DEFAULT.
In the event of default by Lessee as set out in the preceding section, Lessor shall have the
option to pursue any one or more of the remedies provided in this Lease or afTorded
Lessor by law, without further notice or demand and without prejudice to any other
remedy:
i. Lessor may enter into and upon the Premises and retake possession, by legal
proceedings or otherwise, expel Lessee and anyone claiming through or under
Lessee, remove Lessee's or a claimant's goods and effects, forcibly, if necessary,
and store the goods in the name and at the expense of Lessee.
ii. After retaking possession as set out above, or upon abandonment of the Premises
by Lessee, Lessor may at Lessor's option relet the Premises or any part of the
Premises, in the name of Lessor or otherwise, for a term or terms that may be less
than or exceed the period that would otherwise constitute the balance of the term
of this Lease. The Lessee shall be liable to the Lessor for the value of the services
which should have been performed along other charges due under this Lease for
the balance of its term. Nothing contained herein shall, however, require Lessor
to relet or otherwise mitigate its damages.
Lease Agreement. Page 8
5.03 LESSEE'S RIGHT TO TERMINATE.
Lessee shall have the right to terminate this Agreement with or without cause upon ninety
(90) days* written notice from the Lessee to Lessor of the Lessee's election to do so.
5.04 NO WAIVER.
Failure of Lessor to declare any default upon its occurrence as provided in this article
defining default, or delay action in connection with a matter that may constitute a default,
shall not waive the default or breach. Rather, Lessor shall have the right to declare a
default as a result of a breach or failure to perform on Lessee's part at any time and take
such action in response as may be lawful or authorized under this lease. Moreover,
Lessor's conduct with regard to a lapse, breach, or default by Lessee at one time or in one
respect shall not be construed as a waiver of any subsequent or other lapse, breach, or
default of any term, condition or covenant of this lease.
VI.
RELEASE; INSURANCE; INDEMNIFICATION
6.01 RELEASE.
By this Agreement, the Lessor does not consent to litigation and expressly revokes any
consent to litigation that it may have granted by the terms of this Agreement, any charter,
or applicable state law. The Lessee releases, relinquishes, and discharges the Lessor, its
officers, agents and employees from all claims, demands and causes of action of every
kind and character for any death, damage or loss to persons or property (whether to third
persons, the Lessee, or employees of either of the parties) sustained in connection with or
incidental to this Lease, even if the injury, death or damage or loss is caused by the
Lessor's sole or concurrent negligence and/or the Lessor's strict products liability or strict
statutory liability. This release includes the cost of defense of any claim and any loss of
or damage to property (whether property of the parties or of third parties) that is caused
by or alleged to be caused by, arising out of, or in connection with this Lease whether or
not said claims, demands, and causes of action are covered in whole or in part by
insurance.
6.02 INSURANCE.
6.02.01 GENERAL.
Throughout the term of this Agreement, the Lessee at its own expense
shall purchase, maintain and keep in force and effect insurance against
claims for injuries to or death of persons or damages to property which
may arise out of or result from the Lessee's operations and/or performance
of the work under this Agreement, whether such operations and/or
performance be by the Lessee, its agents, representatives, volunteers,
employees or subcontractors or by anyone directly or indirectly employed
by any of them, or by anyone for whose acts any of them may be liable.
Lease Agreement. Page 9
The Lessee's insurance coverage shall be primary insurance with
respect to the Lessor and his volunteers and agents. Any insurance
or self-insurance maintained by the Lessor, its officials, employees
or volunteers shall be considered in excess of the Lessee's
insurance and shall not contribute to it.
6.02.02 COVERAGES AND MINIMUM LIMITS,
The following is the insurance required under this Lease along
with its minimum coverage amounts required in this Lease:
Commercial General Liability Policy
■General aggregate of $1,000,000
■Owners' and Contractors' Protective Liability of
$500,000
■Products and Completed Operations of $1,000,000
■Personal and Advertising Injury of $1,000,000
■Minimum of $500,000 per occurrence
■Coverage shall be at least as broad as
ISO CG 00 01 10 93.
■No coverage exclusions shall be deleted from standard
policy without notification of individual exclusions
being attached for review and acceptance.
Workers' Compensation Policy
■Statutory amounts required by Texas law.
■Employer's Liability of $500,000.
■Should Lessee have no employees, Lessee shall sign an
affidavit to such effect and shall indemnify, protect, and
defend the Lessor from any claim arising from a person
claiming to be an employee of Lessee.
6.02.03 CERTIFICATES OF INSURANCE FILED.
Prior to or upon the execution of this Agreement and before
commencing any of the work, Lessee shall file with the LESSOR
valid a Certificate of Insurance and endorsements acceptable to the
Lessor. Such certificate shall contain a provision that coverages
afforded under the policies will not be canceled, suspended,
voided, or reduced until at least thirty (30) days' prior written
notice has been given to the Lessor via certified mail, return receipt
requested. Prior to the end of each coverage period during the
Term of this Lease, new Certificates of Insurance must be filed
with the Lessor evidencing continuation of coverage.
Lease Apreement. Page 10
6.02.04 ADDITIONAL REQUIREMENTS.
6.02.04.01 General Liability insurance shall be written by a
carrier with an A.M. Best Rating of A or higher in
accordance with the current Best Key Rating Guide.
6.02.04.02 Only Insurance Carriers licensed and admitted to do
business in the State of Texas will be accepted.
6.02.04.03 Deductibles shall be listed on the Certificate of
Insurance and are acceptable only on a per
occurrence basis.
6.02.04.04 Claims-made policies will not be accepted.
6.02.04.05 The Lessor, its officials, employees and agents, are
to be added as "Additional Insureds" to all liability
policies. The coverage shall contain no special
limitation on the scope of protection afforded to the
Lessor, its officials, employees or volunteers.
6.02.04.06 A waiver of subrogation in favor of the Lessor with
respect to Workers* Compensation Insurance must be
included should Workers' Compensation be required
pursuant to Section 6.02.02.
6.02.04.07 Upon request, certified copies of the insurance
policy and/or certificate of insurance shall be
furnished to the Lessor at no cost to the Lessor.
6.02.04.08. Upon request of and without cost to the Lessor, loss
runs (claims listing) of the insurance coverage shall
be furnished to Lessor.
6.02.04.09 Certificates of Insurance shall be prepared and
executed by the insurance company or its
authorized agent, and shall contain the following
provisions and warranties:
1. All endorsements and insurance coverages
according to requirements and instructions
contained herein;
2. The form of the notice of cancellation,
termination or change in coverage
provisions to the Lessor; and
Lease Agreement. Page 11
3. Original endorsements affecting coverage
required by this Section 6.02 shall be
furnished with the certificates of insurance.
6.02.04.08 The amounts of all required insurance shall be
reviewed by the Lessor on the fifth (5th) anniversary
date of this Lease and each fifth (5th) year thereafter
and shall be increased, if necessary, so that the
amount of such coverage is at all times generally
equal to the limits described herein measured in
year 2008 dollars.
6.03 INDEMNIFICATION.
6.03.01 LESSEE'S INDEMNIFICATION.
THE LESSEE AGREES TO AND SHALL
INDEMNIFY, HOLD HARMLESS AND DEFEND,
THE LESSOR, ITS OFFICERS, AGENTS AND
EMPLOYEES (HEREINAFTER IN THIS
SECTION 6.03 AND ALL SECTIONS
HEREUNDER COLLECTIVELY REFERRED TO
AS "LESSOR"), 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
ATTORNEYS1 FEES FOR INJURY TO OR
DEATH OF ANY PERSON, OR FOR DAMAGE
TO ANY PROPERTY, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT,
WHERE SUCH INJURIES, DEATH OR
DAMAGES ARE CAUSED BY THE SOLE OR
JOINT NEGLIGENCE OF THE LESSEE OR THE
JOINT NEGLIGENCE OF THE LESSOR AND
ANY OTHER PERSON OR ENTITY. IT IS THE
EXPRESSED INTENTION OF THE PARTIES
HERETO, BOTH THE LESSEE AND THE
LESSOR, THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS AN INDEMNITY
BY THE LESSEE TO INDEMNIFY, PROTECT
AND DEFEND THE LESSOR FROM THE
CONSEQUENCES OF THE LESSOR'S OWN
Lease Agreement. Page 12
NEGLIGENCE, WHERE THAT NEGLIGENCE IS
A CONCURRING CAUSE OF THE INJURY,
DEATH OR DAMAGE AND FROM THE
CONSEQUENCES OF THE LESSEE'S OWN
NEGLIGENCE, WHERE THAT NEGLIGENCE IS
THE SOLE OR CONCURRING CAUSE OF THE
INJURY, DEATH, OR DAMAGE.
FURTHERMORE, THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH SHALL HAVE NO
APPLICATION TO THE LESSOR FOR ANY
CLAIM, LOSS, DAMAGE, CAUSE OF ACTION,
SUIT AND LIABILITY WHERE THE INJURY,
DEATH OR DAMAGE RESULTS FROM THE
SOLE NEGLIGENCE OF THE LESSOR,
UNMIXED WITH THE FAULT OF ANY OTHER
PERSON OR ENTITY. FURTHERMORE, THE
INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL HAVE NO APPLICATION
TO THE LESSOR FOR ANY CLAIM, LOSS,
DAMAGE, CAUSE OF ACTION, SUIT AND
LIABILITY WHERE THE INJURY, DEATH OR
DAMAGE RESULTS FROM THE SOLE
NEGLIGENCE OF THE LESSOR, UNMIXED
WITH THE FAULT OF ANY OTHER PERSON
OR ENTITY.
6.03.02 DEFENSE.
IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE
LESSOR BY REASON OF ANY OF THE
INDEMNITIES PROVIDED FOR HEREIN,
INCLUDING, BUT NOT LIMITED TO, THOSE
INCLUDED ELSEWHERE IN THIS LEASE, THE
LESSEE FURTHER AGREES AND COVENANTS
TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE
LESSOR.
Lease Agreement. Page 13
6.03.03 SURVIVAL.
The indemnities provided for herein, including, but not limited to,
those elsewhere in this Lease, will survive the expiration or
termination of this Lease.
VII.
MISCELLANEOUS
7.01 INDEPENDENT CONTRACTOR.
Lessee shall perform its obligations under this Lease as an independent contractor and not
as an employee of the Lessor.
7.02 FORCE MAJEURE.
7.02.01 GENERAL.
Timely performance by both parties is essential to this Lease. However,
neither party is liable for reasonable delay in performing its obligations
under this Lease to the extent the delay is caused by Force Majeure that
directly impacts the Lessor or Lessee. The event of Force Majeure may
permit a reasonable delay in performance but does not excuse a party's
obligations to complete performance under this Lease.
7.02.02 APPLICABILITY.
This relief is not applicable unless the affected party does the following:
1. uses due diligence to remove the effects of the Force Majeure as
quickly as possible and to continue performance notwithstanding
the Force Majeure; and
2. provides the other party with prompt written notice of the cause
and its anticipated effect.
7.02.03 PROCESS.
7.02.03.01 The Lessor will review claims that a Force Majeure that
directly impacts the Lessor or Lessee has occurred and
render a written decision within fourteen (14) days unless a
longer period of time is necessary due to a disaster
declaration by any governmental entity. The decision of
the Lessor is final.
7.02.03.02 The Lessor may perform contract functions itself or
contract them out during periods of Force Majeure. Such
Lease Agreement Page 14
performance is not a default or breach of this Lease by the
Lessor or Lessee.
7.03 SEVERABILITY.
If any part of this Lease is for any reason found to be unenforceable, all other parts
remain enforceable unless the result materially prejudices either party.
7.04 ENTIRE AGREEMENT.
This Lease merges the prior negotiations and understandings of the Parties and embodies
the entire agreement of the Parties. No other agreements, assurances, conditions,
covenants (express or implied), or other terms of any kind, exist between the Parties
regarding this Lease.
7.05 WRITTEN AMENDMENT.
Unless otherwise specified elsewhere in this Lease, this Lease may be amended only by
written instrument executed on behalf of the Lessor (by authority of an ordinance adopted
by the Lessor's Council) and Lessee. The Lessor is only authorized to perform the
functions specifically delegated to it in this Lease.
7.06 APPLICABLE LAWS.
This Lease is interpreted with and subject to the laws of the State of Texas, the Lessor
Charter and ordinances, the laws of the federal government of the United States and all
rules and regulations of any regulatory body or officer having jurisdiction.
7.07 VENUE.
Venue for any litigation relating to this Lease is Baytown, Harris County, Texas.
7.08 COMPLIANCE WITH LAWS.
Lessee shall comply with applicable state and federal laws and regulations and the
Lessor's Charter and the Code of Ordinances.
7.09 NOTICES.
All notices required to be given hereunder shall be given in writing by telecopier, courier,
overnight, or facsimile transmission, certified or registered mail at the respective
addresses of the parties set forth herein or at such other address as may be designated in
writing by either party. Notice given by mail shall be deemed given three (3) days after
the date of mailing thereof to the following addresses:
LESSEE
Art League of Baytown, Incorporated
Attn: President
110 W.Texas Avenue
Baytown, TX 77520
Lease Agreement. Page 1S
LESSOR
CityofBaytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
7.10 CAPTIONS.
Captions contained in this Lease are for reference only, and therefore, have no effect in
construing this Lease. The captions are not restrictive of the subject matter of any section
in this Lease.
7.11 NON-WAIVER.
7.11.01 PERFORMANCE.
If either party fails to require the other party to perform a term of this
Lease, that failure does not prevent the party from later enforcing that term
and all other terms. If either party waives the other's breach of a term,
that waiver does not waive a later breach of this Lease. An approval by
the Lessor or by any other employee or agent of the Lessor or any part of
the Lessee's performance does not waive compliance with this Lease or
establish as standard of performance other than that required by this Lease
and by law. The Lessor is not authorized to vary the terms of this Lease.
7.11.02 SOVEREIGN IMMUNITY.
Nothing contained in this Lease shall be deemed to limit or waive
the sovereign immunity of the Lessor.
7.12 AUDITS. Lessor has the right to perform, or have performed audits of the Lessee's books and
records, related to this Lease. Lessee shall keep its books and records available for this
purpose for at least three years after this Lease terminates. This provision does not affect
the applicable statute of limitations. Inspections may be performed
7.13 INSPECTIONS.
Lessor has the right to perform, or have performed inspections of the Premises at any
time. Additionally, Lessor, may make additions or alterations to any part of the Premises
and Lessee agrees to permit Lessor to do so. Lessor may, in connection with such
alterations, additions or repairs, erect scaffolding, fences and similar structures, post
relevant notices, and place movable equipment without any obligation to Lessee and
without incurring liability to Lessee for disturbance of quiet enjoyment of the Premises of
loss of occupation thereof. Lessee will provide Lessor with access to the Premises. Such
access may be provided by tendering the Lessor with the names, addresses and telephone
numbers of persons possessing a key to the Premise and available to respond to Lessor's
request for entry.
Lease Agreement. Page 16
7.14 ENFORCEMENT.
The Lessor may enforce all legal rights and obligations under this Lease without further
authorization. Lessee shall provide to the Lessor all documents and records that the
Lessor requests to assist in determining Lessee's compliance with this Lease, with the
exception of those documents made confidential by federal or state law or regulation.
7.15 AMBIGUITIES.
If any term of this Lease is ambiguous, it shall not be construed for or against any party
on the basis that the party did or did not write it.
7.16 SURVIVAL.
Lessee shall remain obligated to the Lessor under all clauses of this Lease that expressly
or by their nature extend beyond the expiration or termination of this Lease, including,
but not limited to, the indemnity provisions.
7.17 PARTIES IN INTEREST.
This Lease does not bestow any rights upon any third party, but binds and benefits the
Lessor and Lessee only.
7.18 SUCCEESSORS AND ASSIGNS.
This Lease binds and benefits the Parties and their legal successors, permitees and
assigns; however, this provision does not alter the restrictions on assignment and disposal
of assets set out in the following paragraph. This Lease does not create any personal
liability on the part of any officer or agent of the Lessor.
7.19 ASSIGMENTS.
Lessee shall not assign this Lease without the Lessor's prior written consent. Lessee
shall not delegate any portion of any of its performance under this Lease without the
Lessor's prior written consent.
7.20 REMEDIES CUMULATIVE.
Unless otherwise specified elsewhere in this Lease, the rights and remedies contained in
this Lease are not exclusive but are cumulative of all rights and remedies, which exist
now or in the future. Neither party may terminate its duties under this Lease except in
accordance with its provisions.
7.21 GENDER AND NUMBER.
Words of any gender used in this Lease shall be held and construed to include any other
gender, and words in the singular number shall be held to include the plural, and vice
versa, unless context requires otherwise.
7.22 AUTHORITY TO ENTER CONTRACT.
Each party has the full power and authority to enter into and perform this Lease, and the
person signing this Lease on behalf of each party has been properly authorized and
empowered to enter into this Lease. The persons executing this Lease hereby represent
Lease Agreement. Page 17
that they have authorization to sign on behalf of their respective corporations and/or
business entities.
7.23 AGREEMENT READ.
The parties acknowledge that they have read, understand and intend to be bound by the
terms and conditions of this Lease.
7.24 MULTIPLE ORIGINALS.
It is understood and agreed that this Lease may be executed in a number of identical
counterparts each of which shall be deemed an original for all purposes.
IN WITNESS WMEREOF, the parties hereto have executed this Lease in multiple copies,
each of which shall be deemed to be an original, but all of which shall constitute but one and the
same Lease on the day of _, 2008, the date of execution by the
City Manager of the City of Bay town.
ART LEAGUE OF BAYTOWN,
ATTEST:
KAYTHIE DARNELL, City Clerk
INCORPORATED
/) 07-<^yy
/(Signature)
(Printed Name)
(Title)
CITY OF BAYTOWN
GARRISON C. BRUMBACK, City Manager
Lease Agreement. Page 18
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
STATE OF TEXAS §
§
COUNTY OF HARRIS §
Before me on this day personally appeared Vj(\r|flQtrn I). vjQfAfl-KA . in
his/her capacity asyj Co wjorvA-of Art League of Baytown, Incorporated, on
behalf of such non-profit corporation,
\S known to me;
proved to me on the oath of ; or
proved to me through his/her current
{description of identification
card or other document issued by the federal government or any state government
that contains the photograph and signature of the acknowledging person}
(check one)
to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed that instrument for the purposes and consideration therein expressed.
2008.
Given under my hand and seal of office thisSl day of vJlVX.Cfr
J? Oirvg n&Qs LxftUj a.
Public in and for the^ate of J
sxas
My commission expires:
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