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Ordinance No. 11,329ORDINANCE NO. 113 )29 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A LEASE AGREEMENT WITH BENITO FOODS INC., FOR TI IE CONSTRUCTION AND MAINTENANCE OF A PARKING LOT FOR THE USE OF PERSONS VISITING THE RESTAURANT FACILITY AND /OR THE CITY PARK: AND PROVIDING FOR TI-IE EFFECTIVE DATE THEREOF. 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 Benito Foods Inc., for the construction and maintenance of a parking lot for the use of persons visiting the restaurant facility and/or the City park. 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 ®� this the 25th day of March, 2010. A.. ti 91HE" � A ;T A.. ALISHA BRINISFIELD, Deputy City Clerk APPROVED AS TO FORM: NACIO RAMIREZ, SR. C ty Attorney R :%Karen\FilesiCity Council''0rdinances\2010\ %larch 25Tarking-otLease.doc of the City Council of the . DONCARLOS, Mayor Exhibit "A" 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 Benito Foods Inc., 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 non - exclusive right to use and occupy the following described property located in Baytown, Harris County Texas: Lot 4A, Abstract 840, H. Whiting Survey, Baytown, Harris County, Texas, hereinafter referred to in this Lease as the "Premises." The Premises is more particularly depicted in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. 1. TERM 1.01 CONTINGENCY. This Lease and the Lessor's and the Lessee's obligations herein are expressly contingent upon Lessee commencing construction of the parking lot contemplated herein on or before May 1, 2010, and completing the same and obtaining the Lessor's approval thereof ninety (90) days after the date of the permit for construction. 1.02 TERM. a. The term of this Lease is for 10 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. b. The Term of this Lease may be extended upon agreement of both parties for up to two additional ten -year periods; provided that the Lessee is in full compliance with the terms and conditions of this Lease and Lessee agrees to make the necessary repairs and maintenance to the Premises throughout any renewal term. Any request for an extension must be made in writing and tendered to the other party to this Lease at least six months before the expiration of the then - current 'berm. Should both parties desire to extend the lease, the parties shall execute a renewal on the same terms and conditions as stated herein. The parties agree that in no instance shall the Lease extend beyond thirty (30) years. Lease Agreement, Page I 1.03 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 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. 1.04 DAMAGE OR DESTRUCTION OF PREMISES BY FIRE OR OTHER CASUALTY. 1.04.01 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, Lessee must immediately give Lessor written notice of the damage or destruction. 1.04.02 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. 1.04.03 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 1.04.02 and as determined by Lessor, Lessee may, at Lessor's sole option, proceed immediately to rebuild or repair the Premises to substantially the condition it was in before the damage. If the Lessor determines that the parking lot should not be rebuilt or repaired, the Lessor may terminate this Lease. 1.05 CONDEMNATION BY EMINENT DOMAIN. l .05.01 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, Lease Agreement. Page 2 ordinance, or regulation, or by right of eminent domain, or are sold to the condemning authority under threat of condemnation, this Lease will terminate effective as of the date the condemning authority takes possession of the Premises. 1.05.02 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 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 use of the Premises will be adjusted equitably as determined in the sole discretion of the Lessor during the unexpired portion of this Lease. Il. RENTAL PAYMENTS 2.01 BASIC RENT. Lessee promises and agrees as compensation for using and occupying the Premises it shall construct and maintain in accordance with this Lease a concrete parking lot with at least twelve (12) spaces for Lessee's use as well as for use of the general public to access Lessor's park. The parking lot shall be designed and constructed in accordance with plans and specifications approved by Lessor's Director of Engineering. 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 the obligations specified in Section 2.01 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 the obligations are satisfied, as determined at the sole discretion of the Lessor, and all fees required herein are paid on time. Performance of obligations 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. Lease Agreement, Page 3 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 continence 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 property. This additional rent will be in the amount stated in a written notice sent by Lessor to Lessee and will be due within fifteen (15) days of receipt of the notice. 2.05 UTILITIES. 2.05.01 ELECTRICITY, NATURAL GAS AND WATER TO BE PAID BY LESSEE. Lessee shall pay for the electricity, natural gas and water /sewer and all other utility charges applicable to the Premises. III. USES 3.01 USE OF PREMISES. The Premises will be used as a parking facility for both Lessor and Lessee. Lessee shall not be able to reserve any of the parking spaces for its exclusive use without the express prior written approval of Lessor's City Manager. Lessee shall not be allowed to use the Premises for any other purpose without the express written approval of Lessor's City Manager. Lessor's use shall be for public parking in connection with the adjacent City park and other municipal uses. Neither party shall not use the Premises as a vehicle storage facility. 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: 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; 1-ease Agreement, Page 4 iii. Place or maintain or permit the placing or maintaining of any sign or advertising device of any kind on the Premises; and V. Permit any objectionable odors to emanate from the Premises; permit 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 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 Lease Agreement, Page 5 maintain and keep the Premises in compliance with all applicable regulations of Lessor. 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. If at any time, the Lessor's Director of Engineering determines that the Premises is not being maintained in accordance with this section or is otherwise in need of repair, the Lessee shall have the obligation: (i) to repair the same and to obtain Lessor's Director of Engineering's acceptance of the repairs within thirty (30) days of notice from Lessor's Director of Engineering or (ii) to commence repairs, if repairs cannot be completed within thirty (30) days, as determined in the sole discretion of Lessor's Director of Engineering, and to faithfully prosecute the work to completion and acceptance by the City Engineering within the time period specified in the notice to repair or maintain sent to the Lessee. Failure to timely repair, as determined in the sole discretion of Lessor's Director of Engineering shall be an event of default for which Lessor may terminate this Lease. 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 the time period specified in Section 4.02, Lessor may enter the Premises and make the repairs or replacements or perfom► the maintenance or Lessor may have the repairs or replacements made or maintenance performed by another. In either 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 Premises to the same or better conditions it was in prior to any such addition, improvement or fixture; however, Lessee shall not be required to remove a constructed parking lot, which has been approved by the Lessor. 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. Lease Agreement, Page 6 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 of ten (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 thirty (30) days after written notice of the failure is given by Lessor to Lessee. 5.02 LESSOR'S 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 afforded Lessor by law, without further notice or demand and without prejudice to any other remedy: 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 obligations 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. 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 provided, however, Lessee may not exercise its right to terminate if Lessee has undertaken construction activities on the Premises which have yet to be completed and accepted by the Lessor. Upon exercising this right to terminate, Lessee shall return the Premises to the City in the same or better condition as when this Lease was signed. Lease Agreement, Page 7 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. Vl. 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. The Lessee's insurance coverage shall be primary insurance with respect to the Lessor and its 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. Lease Agreement, Page 8 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. During construction of the parking lot, Lessee shall also tender to Lessor the following: Business Automobile Policy • Combined Single Limits: $500,000 • Coverage for "Any Auto" Payment and Performance Bonds ■ The Lessee shall furnish separate performance and payment bonds, each in the sum of one hundred percent (100 %) of the total cost of the parking lot construction, in such forms as the Lessor may approve and with sureties as the Lessor may approve, for this purpose, guaranteeing faithful performance of the contract, faithful performance of work during the warranty period and faithful payment to all persons supplying labor and materials or furnishing any equipment in the execution of the Agreement. The cost of such bonds shall be borne by Lessee. Lease Agreement Page 9 ■ All performance and payment bonds required herein shall remain in effect throughout the term of this Agreement and for a period of one (1) year after the completion of the work and shall be extended for any warranty work to cover the warranty period. ■ If at any time during the execution of this Agreement or in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Lessee shall promptly supply within ten (10) days such other bond or bonds, which bond or bonds shall assure performance or payment as required. Such replacement bond(s) shall be issued by a surety acceptable to the Lessor. ■ The Lessee shall make such changes and alterations as the Lessor may see fit in the work herein contemplated, or any part thereof without affecting the validity of this Agreement and any work accompanying bond. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for any claim for damages or anticipated profits on the work that may be dispensed with. In case that the Lessor makes changes or alterations as shall make useless any work already done or material already used in said work, then the Lessor shall recompense the Lessee for any material or labor so used and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 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 a valid 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 Agreement, Pap 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 I 1 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 (5'h) anniversary date of this Lease and each fifth (5h) 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 2010 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 ATTORNEYS' 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 and shall be incorporated into all construction/maintenance contracts for work on the Premises.. 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: 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's 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 Benito Foods Inc. Attn: Benito Martinez 1907 Decker Drive Baytown, TX 77521 LESSOR City of Baytown Attn: City Manager P.O. Box 424 Lease Agreement. Page 15 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 modifications and/or repairs to any part of the Premises. Lessor may, in connection with such modifications and/or repairs, erect fences and similar structures, post relevant notices, and place movable equipment on the Premises without any obligation to Lessee and without incurring liability to Lessee for disturbance of quiet enjoyment of the Premises or loss of occupation thereof. Lessor shall at all times have access, use and enjoyment of the Premises. 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. Lease Agreement. Page ) 6 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, permittees 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 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. Lease Aareement, Page 17 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 WHEREOF, 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 , 2010, the date of execution by the City Manager of the City of Baytown. DS INC. � Z6�� BENITO ARTINEZ. President CITY OF BAYTOWN GARRISON C. BRUMBACK, City Manager ATTEST: LETICIA GARZA, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ_, SR,, City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared Benito Martinez, in his capacity as the President of B nito Foods Inc., a Texas corporation known to me; Lease Agreement, Page 18 proved to me on the oath of ; or proved to me through his 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 executed that instrument for the purposes and consideration there' expressed. Given under my hand and seal of office this day of \ , 2010. n 1EAME YOUM9 • ma" P" ho offew ComaWW @pU= kL Z, 2 12 1BI�A ' :M Z exas My commission expires: I RAKarenlFiles\Conuacls \The Original Taqucria Parking Lot Leasc\ icnitoFoodLcase.doc Lease Agreement, Page 19 of r j • � � F s r • po IW kl s� At* "lot t1 p