HomeMy WebLinkAboutORD 84-112 i
r.
ORDINANCE NO. --
ENTITLED AN ORDINANCE AUTHORIZING THE
EXECUTION OF A LEASE WITH KYLE TOWER, LTD.
FOR OFFICE AND PARKING SPACE; PROVIDING FOR
THE LEVYING AND COLLECTING OF A SUFFICIENT
TAX TO PAY THE INTEREST THEREON AND PROVIDE
A SINKING FUND; PROVIDING FOR SEVERABILITY
AND PROVIDING FOR REPEAL.
BE IT ORDAINED BY THE CITY OF BEAUMONT:
Section 1 .
That the City Manager be, and he is hereby , authorized
to execute a lease agreement with Kyle Plaza, Ltd. substantially in
the form attached hereto as Exhibit "A" .
Section 2.
During each year while there is any liability by
reason of the lease agreement authorized herein, including the
present fiscal year, the City Council of the City of Beaumont shall
compute and ascertain the rate and amount of ad valorem tax, based
on the latest approved tax roles of said city, with full allowance
being made for tax delinquencies and cost of tax collection, which
will be sufficient to raise and produce the money required to pay
any sums which may be or become due during any such year, in no
instance to be less than two percent ( 2% ) of such obligation,
together with all of the interest thereon, because of the
obligation herein assumed. Said rate and amount of ad valorem tax
is hereby ordered to be levied and is hereby levied against all
taxable property in said city for each year while any liability
exists by reason of the obligation undertaken by this subsection of
this ordinance, and said ad valorem tax shall be assessed and
collected each year until all of the obligations herein incurred
shall have been discharged and all liability herein discharged.
Section 3.
That if any section, subsection, sentence, clause or
phrase of this ordinance, or the application of same to a
particular set of persons or circumstances, should for any reason
be held to be invalid, such invalidity shall not affect the
remaining portions of this ordinance, and to such end the various
portions and provisions of this ordinance are declared to be
severable.
Section 4 .
That all ordinances or parts of ordinances in conflict
herewith are repealed to the extent of the conflict only.
PASSED BY THE CITY COUNCIL of the City of Beaumont
this the day of - 1984.
- Mayor -
2 -
LEASE AGREEMENT BETWEEN P,YLE PLAZA. LTD.
AND THE CITY OF BEAUMONT, TEXAS
TADLE Or CONTLHTS'
ARTICLE h'AGL
1. Definitions........................................................
2. Construction of Project, Premises Leased, Permitted Uses, and Term
of Lease...........................................................
3. Amount and Payment of Rentals......................................
4. Lease of Parking Spaces............................................ 9
5. Construction of Tenant Improvements................................ 10
6. Tenant's Option to Purchase Project and Landlord's Right to Priw-
Lease of the Premises to Other Tenants............................. 11
7. Landlord's Services and Utilities..................... ............. 13
8. Sublease and Assignment............................................. 1`1
9. Use of Leased P remises.............................................. 17
10. Condition........................................................... 18
li. Repairs.........................................................>... 19
12. Condemnation.............................I.....,..........,...,..... 20
13. Fire or Other Casualty and 1n5U1'ancE................................ 21
14, Default and Remedies.............«.................................. 24
15. Right of Entry.--.—.......................I...—... 27
16. Waivers............................................................. 28
17. Miscellaneous....................................................... 28
ATTACHED EXHIBITS AND SCHEDULES:
Exhibit A - Description of Leased Promises
Exhibit B - Estoppel Certificate
Exhibit C - Rules and Regulations
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STATE OF TEXAS
KYLE 'POWER LEASLi A6ItEE19Ek1T
COUNTY OF JEFFERSON C
THIS IS A LEASE AGREEMENT made and entered into effective as of
---------------------------------, hereinafter called the "Effective Date" by
and between Landlord and Tenant set forth beintu.
ARTICLE I
DEFINITIONS
Unless otherwise clearly indicated by the context; the following terms
shall have the meanings specified below when they are used herein:
1.01. "Agreement" shall mean this lease agreement incluaina all k:xhib is
attached hereto, and amendments glade hereto in aLCordance with the
terms and conditions hereof.
1.02. "Landlord" shall mean KYLE PLAZA, LTD., a Ter'.:a6 Limited
Partnership, acting by and through its duly authorized
representative.
1.03. "Tenant" shat1 mean the CITY OF BEAUMONT, TLXAL', an incorporated
municipality, acting by and through its dttly _Uth0r•ized
representative.
1.04. "Project" shall mean ail or part of the improvements presently
situated or to be corrstrUCted on a 'tract of land located in
Beaumont, Texas, to wit:
That certain parcel of land. located in the city ;_loci; bounded by
Orleans Street to the South, Liberty Avenue to the h'rst, Pearl
Street to the North, and Broadway Avenue 'to the West, in the City
of Beaumont, Jefferson County, Texas. consisting Of land out of
and a part of Block E, Nancy TeViS Survey situated. in the City of
Beaumont, Jefferson County, Texas, and being that certain tract of
land fronting one hundred eighty feet (180') on Liberty Avenue
from the Northeast corner of Liberty Avenue and Orleans 'street by
three hundred feet (300') alono the East side of Orleans :street.
(a) "Retail Facility" shall mean that part of the 'ro,;ect which
consists of the renovated structure which has historically
been known as the Kyle Building; notwithstanding the final
paragraph of this Article 1.04, all air conditionea common
areas or lobbies umich are physically lucated within the
Rental Facility shall be deemed -to be a part thereof;
(b) "Parking Facility" shall mean that part o'i the I•'ro,_ect which
consists entirely of new construction and which is utilized
primarily for the ingress, egress. and storage of vehicles
and for pedestrian access to and from such vehicles;
(c) "Office Facility" Shall mean that part of the Project which
consist=_ entirely of new construction and which i:- utilized
Primarily 'for commercial tease space and the common areas
and facilities used in connection therentitn� notwith�sanding
the final paragraph of this Article 1.04, all air
conditioned common areas or lobbies which are phvsicalIv
located within either the Parking Facility or the Office
Facility shall be deemed to be a part of The Office
Facility.
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The above definitions shall be construed to include any parts of
the Project which, although not physically located beneath.
within, or above, a particular aefined Facility, nevertheless
function primarily on behalf of, or as an integral part of, such
defined Facility; likewise, the above detin:itior1s shall be
construed to exclude any parts of the Project which, although
physically located beneath, within, or above, a particular defined
Facility, nevertheless function primarily on behalf of, or as an
integral part of, a Facility or Facilities other than the one
defined. Provided that the Retail Facility, the VarKinu Facility,
and the Office Facility shall always constitute -the entirety of
the Project, each of the Facility definitions shall be mutually
exclusive.
1.05. "Leased Premises" or -Premises" shall mean all of the Rentable
Area on the SECOND (2nd) and THIRD (3rd) floors of the Office
Facility, and being approximately 32,330 square feet of Rentable
Area in the aggregate, subject to decrease or relocation as
provided for in this Lease. The Office Facility is comprised of a
ground floor, eleven (11) floors of lease space each containing
approximately 16,128 square feet of Rentable Area, and two (2)
smaller penthouse floors. For purposes of this Lease Agreement,
the ground floor, the eleven large floors, and the two penthouse
floors are number 1, through 12, and 13 through 14,
respectively, in ascending order of elevation. Notwithstanding
the foregoing, Landlord shall have the right, at its option, to
number the floors of the Office Facility in any reasonable and
logical manner as it may choose; provided however, that in the
event Landlord elects to number the floors of the Office Facility
other than 1 through 14 as set out hereinabove, the numbering used
in this Agreement shall be construed to be relative rather than
absolute. The Lease Premises are depicted graphically on the
attached Exhibit A, which Exhibit A shall be ai,endL-d from time to
time to include all Rentable Area leased by Tenant pursuant to
this Agreement,
1.06. "Rentable Area" shall mean that portion of the Office Facility
available for use as general office space. as shown in Exhibit
A, which shall be measured as follows:
(a) In the case of a single tenancy floor, the Rentable Area
shall consist of all floor area on such floor in square feet
measured from the inside surface of the exterior wall of the
Office Facility to the inside surface Of the opposite
exterior wall of the Office Facility, excluding only the
areas within the space encompassed by the exterior walls
which are used for building stairs, fire towers, building
elevator shafts, mechanical rooms, janitor closets, flues,
vents, stacKst pipe shafts or vertical ducts ("service
areas"); but including any areas for such purposes which are
for the specific use of Tenant, such as special stairs,
elevators, or rest rooms.
(b) In the case of a multi-tenancy floor, the Rentable Area
shall consist of (i) all floor area measured in square feet
from the inside surface of the exterior walls of the Office
Facility enclosing the portion of the floor leased by Tenant
to the midpoint of the walls separating the area(s) leased
by Tenant from the area leased by or held for lease by other
persons or from areas devoted to service areati and other
similar facilities provided for use by all tenants ("common
areas"); and (ii) that proportionate part of the area
measured in square feet of the common areas on the floor
based upon the ratio which the Rentable Area in the space
occupied by Tenant on such floor bears to the total Rentable
Area on the floor (with such total Rentable Area to be
determined in accordance with Section 1.G!',(a) hereof),
(c) Subject to the final plans and sper_iiications, the total
Rentable Area in the Office Facility measured in accordance
with Section 1.06(x) above is agreed to be 185000 square
feet. Prior to or as soon as practicable after the
Commencement Date, as defined in Section i.09 hereof,
r Landlord shall furnish Tenant witn a certificate from the
Architect whereby the Architect correctly certifies to
Landlord and Tenant the exact amount of the actual Rentable
Area within the Office Facility. in the event of anv chance
in the plans and specifications which modifies the amount of
the total net Rentable Area in the Office Facility, or in
the event the Architect's Certificate indicates that there
are more or less than 185,000 square feet of Rentable Area
within the office Facility,prior to or as soon as
practicable after the Commencement Date, as defined in
Section 1.09 hereof, Landlord shall furnish Tenant with a
certificate from the Architect whereby the Architect
correctly certifies to Landlord and Tenant the exact amount
of the actual Rentable Area within the liffice Facility, the
parties agree promptly to execute a memorandum settinq forth
the amount of such total net Rentable Area in -the Office
Facility as revised or certified.
1.07. "Tenant's Usable Area" shall mean all that certain area within the
Office Facility which is occupied by Tenant to the exclusion of
other tenants in the Office Facility pursuant to the terms hereof.
1.08, "Project Architect" shall mean the architectural firm designated
by the Landlord to represent the Office Facility for anv operating
Year,
1.09. "Commencement Date" shall mean the EARLIER of (i) July i, i•+87. or
(ii) the date on which Tenant begins occupying all or any part of
the Leased Premises for its intended purpose as defined in Article
II; provided, however, that where Tenant begins occupying only a
portion of the Leased Premises prior 'to J9.9iy 1, 1987, the
Commencement Date shall occur on such prior date only with respect
to the portion of the Leased Premises so occupied, and the
Commencement Date shall rot occur with respect to the remainder of
the Leased Premises until July i, 1987 (or the date of its
occupancy, if earlier).
1.10. "Term" shall mean the period during which the lease shall be in
force and shall begin on the Commencement Date and end On the date
specified in Article II hereof; provided, however.. -that this
definition shall not preclude enforcement by either of th-, parties
of certain provisions of this Agreement which may apply to a
period of time which is prior or subsequent to the beginninq or
end of the Term of the lease.
1.11. "Tenant's Improvements" shall mean all construction and otner work
undertaKen within the Project by, at the direction of, or for the
Tenant for the purpose of preparing the Leased 'remises for
Tenant's occupancy.
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1.12. "Tenant Improvement Allowance" shall mean AnOUnt Of money, if
any which shall be payable to Tenant I:)y Landlord in accordance
with the provisions of Article V hereof DO aCCOUnt of Tenant's
Improvements.
1.13. "Base Rental" shall mean that portion of the total rent-m<_, payable
by Tenant to Landlord without regard to either, Operating Cots or
other costs which are specifically charged to 'recant under
provisions hereof other than Article 3.01(A).
1.14. "Operating Cost Increment" shall mean that portion of the total
rentals payable by Tenant to Landlord on account of the Operating
Costs of the Project.
1.15. "Operating Cost" shall mean all operating expense__ of the Pro.;ect
which shall be computed on the accrual basis and which shall
include all expenses, costs, and disbursements of every Kind and
nature which Landlord shall pav or become obligated to pay because
of or in connection with the ownership and operation of the
Project including, but not necessarily limited to, the following:
1. All taxes, impositions, assessments, and other governmental
charges, if any, which are levied, assessed, or imposed upon
or become due and payable in connection with, or constitute
a lien upon, the Project, or any part thereof, including
facilities used in connection therewith, or the operation of
the same, ex.cepting federal and/or state taxes on income,
but including taxes levied by future ta:;ina authorities and
all taxes of whatsoever nature that are imposed in
substitution for or in lieu of any of the taxes,
impositions, assessments, or other charges included in this
definition of taxes; excluding, however, any taxes that are
paid by tenants as a separate charge pursuant to Article V1
of this Agreement.
2. All wages and salaries of employees engaged in the operation
and maintenance of the Project, or any part thereof or any
facilities used in connection therewith, including payroll
taxes, insurance and benefits relating to the said wages and.
salaries.
3. All supplies and materials used in the uperation and
maintenance of the Project.
4. The cost of all water, .sewage, power, heating, lighting, air
conditioning, ventilation, and other utilities; turnished in
connection with the operation anti maintenance of the
Project, excluding, however, any such cost billed directly
to specific tenants.
5. The cost of all maintenance and service agreements on
equipment used in connection with the operation and
maintenance of the Project including, but not necessarily
limited to, security services. alarm services, .janitorial
services, window cleaning, and elevator maintenance.
6. The cost of all casualty, liability, and rental insurance
applicable to the Project and the Landlord's personal
property used in connection with the operation and
maintenance thereof.
7. The cost of all repairs and general maintenance of the
interior and exterior of the .Froject, e..c hiding, however,
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any such costs paid by the proceetis of insurance or by any
tenant or third party, and alterations attributable solely
to tenants of the Project other than Tenant.
8. All management fees not to exceed the sum of five percent
(5%) of the Base Rentals derived from the Pro.;ect.
9. All reasonable amortization or depreciation charges in
respect of any capital expenditures incurred to effect a
reduction in the Operating Costs of the Project.
Expressly excluded from the foregoing are:
1. Replacement of capital investment items,
2. Rental and similar commissions, other than those set forth
above, advertising. and legal expenses incurred in
connection with the negotiation of tenant leases.
3. Costs billed directly to and paid by specific tenants other
than Tenant, eAcepting, however, those Operating Losts
billed to tenants pursuant to Article 3.01(B>(2)(ai hereof.
4. Depreciation and amortization, other than as specified
above.
5. Principal, interest, and other cost_ directly related to
financing; provided, however, that int•eresT on fund
borrowed from time to time -for operations shall be included
in the definition of Operating Costs,
1.16. "Operating Year" shall mean any calendar year enning December 31
after the Commencement Date, including the calendar year in which
the Commencement Date falls,
1.17. "Operating Statement" shall mean that certain statement prepared
by Landlord setting forth the Operating Costs for any Operating
Year or Operating [Quarter.
1.18. "Normal Business Hours" shall mean the periods of time between
7:00 O'clock AM and 7:00 O'clock PM on Monday through Friday and
between 7:00 O'clocK AN and 12:00 O'clock NOUN on Saturdays except
Holidays,
1.19. "Holidays" shall mean those days designated as holidays from time
to time by Landlord; provided, however, that Landiord may only
designate those holidays which are holidays pursuant to lams of
the United States and the Friday preceding or the Monday following
any such national holiday, but in no event may Landlord designate
more than eight (8) days during any calendar year as constituting
holidays for the purposes hereof.
1.20. "Force Majeure" shall mean an act of God, or a strike. lorK-out,
shutdown, material or labor shortage or restriction by any
governmental authorityt riot; flood, washoU.t: ex.piosion,
earthquaKe, fire, storm. act of a public enemy, war, 1.11surrection.
or any other cause not reasonably within; the control of the
parties and which by the exercise of eiue ailiaence was not
preventable or able to be overcome, in whole or in part, by the
parties, or either of them.
"•as�saP.Yn"'eYYYIY'
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ARTICLE 11
CONSTRUCTIO14 OF PROJECT,
PREMISES LEASED, PERMITTED USE, AND TERM OF LLASE
2.01. In consideration of the mutual covenants and agreements set forth
herein, Landlord 'hereby leases to Tenant and Tenant hereby leases
from Landlord, for the rentals and on the terms and conditions
hereinafter set forth. 'Tenant shall have the right 1":0 Occupy and
use the Leased Premises only for the purpose of conducting its
lawful business insofar as the same can be construed as general
office usage which is, in the opinion of Landlord, compatible with
a first class office building in Beaumont, Texas; excluding,
however, any employee cafeteria or other eating facility involving
the regular preparation of foods by others than those r_onsuming
such foods; Tenant will not use or occupy, or permit 'the use or
occupancy of the Leased Premises, or any part thereof, for any
other purpose without the prior written consent of the Landlord.
The term of this lease shall end On June 30, 1997,
2.02. Landlord and Tenant acknowledge that, as of the Effective Date of
this Agreement, construction of the Project has not begun, Tenant
specifically acknowledges that this Agreement is being rcli_�d upon
by Landlord and is a material inducement to Landlord to construct
the Project. Tenant shall have no right to cancel this Agreement
in the event construction of the Project is delayed or pOStponed
except in strict compliance with the provisions of this Article
II. On or before December 31, 1984. Landlord shall notifv Tenant
either (i) that the Project has been cancelled in its entirety
whereupon this Agreement shall become null and void, .any sums paid
by either party to the other shall be refunded without interest,
and neither party shall have any further iiability to the other
arising out of this Agreement, or (ii) that the Project will lie
constructed whereupon all the terms and provisions of this
Agreement shall be fully enforceable in accordance with the
various terms hereof.
ARTICLE III
AMOUNT AND PAYMENT OF RENTAL':,'
3,01. Tenant hereby agrees to pay, without deduction Or Offset, the
various rentals set forth hereinafter. Such rentals shall be paid
in accordance with the procedures set ouc 'following the
description of each during each year of the Term hereof, all such
payments shall be paid to the Landlord in lawful money of the
United States of America -,it the address of the Landlords shown
herein in Jefferson County, Texas, or to such other party and/or
at such other place as Landlord may designate from time to time in
a written notice to Tenant, if the Commencement Date falls on any
day other than the first day Of a caiendar month, the rentals or
any other sums due monthly hereunder, but not any such sums due
other than monthly, shall be prorated for such fractional calendar
month. All past due installments of rentals or any other sums due
hereunder shall bear interest at the rate of Eighteen Percent
(18%) per annum, or such other rate as may then lie the maximum
lawful rate, from the date due until paid, provided, however, that
any payment actually received by Landlord not more than three (3)
calendar days after the due date shall be deemed to have been made
on the due date solely for purposes of computing any interest that
may be due thereon. The rentals due hereunder are as follows:
3.02. Tenant shall pay Base Rental monthly in advance in tna amount of
ONE AND NO/100'S DOLLARS (1,1.00) for each square foot of Rentable
Area in the Leased Premises during the entire Term of this Lease.
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3.03. In addition to all other rentals described heroine 'Tenant shall
pay an Operating Cost Increment in monthly payments which shall be
determined and paid in accordance with the following procedure:
A. Quarter Iy, during the Term of this Lease. the Operating
Costs of the Project shall be allocated to either tRe Office
Facility (hereinafter called "Operating Cost A-), tine Retail
Facility (hereinafter called "Operating Cost B")p or the
Parking Facility (hereinafter called "Operating Cost C").
All of the various Kinds of Operating Costs of the Pruject
shall be so allocated and in the event a particular
Operating Cost cannot reasonably he traced to one of the
foregoing categorieE,, such Operating Cost shall he allocated
Seventy Percent (70;:) to the Office Facility, Fifteen
Percent (15%) to the Retail Facility, and Fifteen Percent
(15%) to the ParKing Facility. Landlord shall use 'its best
efforts to have all u'tili'ty services metered and billed by
the supplying entity separately to the Office Facility, the
Retail Facility, and the Parking Facility. To the extent
Landlord is unable to do so, then Landlord shall be
obligated to install meters or other measuring devices to
the extent technically feasible to separately measure the
amount of each utility service to the Office Facility, the
Retail Facilityt and the Parking Facility.
B. Tenant's Operating Lost increment shail be computed only
with respect to Operating Co=t A and shall not include any
portion of Operating Costs B or C. 'Tenant shall bear the
same proportionate share of Operating Cost A a=_ T enant's
weighted average Rentable Area of its Leased Premises diming
the applicable Operating Quarter in the Office Facility
bears to the 'total Rentable Area (whether or not built-eut
or occupied) in the Office Facility during the applicable
Operating Quarter.
C. Within one hundred twenty (120) days after the end of each
Operating Quarters Landlord shall deliver to Tenant an
Operating Statement setting forth the Operating Costs for
such preceding Operating Quarter, Such Operating Statement
shall contain an allocation of the total Operating Costs as
between Tenant's proportionate share (i.e. 'Tenant's
Operating Cost Increment) and the remainder of the Project
which allocation shall be made by Landlord in accordance
with the provisions hereof.
D. Such Operating Statement setting forth the Operating Costs
for the preceding Operating Quarter snall also include
notice to Tenant of Tenant's Operating Cost increment for
such quarter, if any, which exceeded the estimated Dperating
Costs paid. If there were excess Operating Costs for sucn
quarter (i.e. Tenant's Operating Cost Increment for such
quarter was greater than the amount which Tenant had paid to
Landlord for credit against Operating Cosh for such
quarter) Tenant shall, within ten (10) day'_ after such
notice, pay its share of such excess Operating Costs to
Landlord as Operating Cost Increment. 'Thereafter, 'Tenant
shall pay an amount equal to one-third (ii3) of an amount
equal to the actual Tenant's Operating Cost increment for
such preceding Operating Quarters of the first day of each
calendar months until it receives the next Operating
Statement.
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E. Tenant shall be entitled to a credit against the next rental
payable wider this Lease with respect to the TInant'S
Operating Cost Increment for any Operating Quarter for which
an Operating Statement is delivered. which credit shall be
equal to the amount of Operating Cost Increment already paid
by Tenant to Landlord for such Operating Quarter pursuant to
the prior Operating Statement delivered if such payments
were in excess of the Operating Costs allocated to Tenant in
accordance with the provisions hereof. If there is no
rental thereafter payable under this Lease then -the amount
Of such credit shall be paid by Landlord to Tenant in cash
within ten (10) days after the delivery of such Operating
Statement. If an Operating Cost increment is payable by
Tenant only with respect to part of an Operating Quarter,
then the amount of Tenant's Operating Cost increment payable
as provided for above shall be reduced in proportion to that
portion of such Operating Quarter for which Tenant's
Operating Cost Increment is payable.
3.04. Anything to the contrary contained in this Agreement
notwithstanding, in no event shall the Ease Rental provided herein
ever be reduced. Within thirty (30) days after its receipt of the
Operating Statement. Tenant, at its sole cost and expense, shall
have the right to review. in Landlord's offices and during the
business hours thereof, Landlord's records supporting the
Operating Statement and the allocation of Operating Costs set
forth therein. If within such thirty (30) day period, Tenant does
not give written notice stating in reasonable detail any
objections to such allocations, Tenant shall be deemed to have
given approval of such allocations; provided, however. that
Tenant's providing objections to such allocations shall not
relieve it of the obligation to pay the Operating Cost Increment
during the pendency of the resolution of such objections.
3.05. The failure of Landlord to furnish a statement of actual Operating
Costs within the time herein provided for any Operating Quarter
shall not prejudice its right to furnish such statement for any
subsequent Operating Quarterp but in such event Tenant shall be
entitled to interest at the lower of (i) the highest lawful rater
or (ii) eighteen percent (187) per annum on the amount of any
refund of excess Operating Cost Increment which Tenant is entitled
to receive with respect to such Operating Quarter. Such interest
shall accrue for the period from the end of Stich Operating Quarter
to the date on which such refund is paid to Tenant,
3.06. If Landlord should fail to perform, or cause to be performed, or
to provide in any significant amount or to any significant extent,
any worK, maintenance, repair, or service which Landlord is
obligated to perform or provide under the provisions of this
Agreement, then Tenant has the right, at its election, to perform
or cause to be performed at Tenant's expense any worK,
maintenance, repair, or service (i) the cost of which would
normally constitute part of the Operating Costs provided in
Article 1.15, or (ii) which Landlord is obligated to provide to
Tenant or to perform or provide under any of the provisions of
this Lease after first notifying Landlord in writing of Tenant's
intent to do so and giving Landlord at least fifteen (15) business
days to rectify, Tenant shall be reimbursed my Landlord fur all of
the reasonable cost of such worK, service, or expenditure within
thirty (30) days after submission of account to Landlord. Any
worK, maintenances or repair which 'Tenant may do or cause to he
done under this provision shall be done in a good and worKmaililte
manner using only new and appropriate material and equipment
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comparable to that which is now a part of the Project, and shall
be performed only by contractors or other persons approved by
Landlord, in writing, which approval shall not be unreasonably
withheld or delayed. Provided further, however, that any such
work or service performed or provided by Tenant shall be performed
or provided only with union labor if Landlord is then performing
its janitorial or other services in the Project with union
personnel.
3.07. 'Tenant shall have the right, but not the obligation, to audit or
cause to be audited the booKs and records of Landlord pertaining
to the calculation by Landlord of Operating Costs or of any
special allocation of Operating Costs to Tenant as provided for in
Article 7.04, once annually at a time to be selected by Tenant,
during Landlord's regular office hours upon not less. than 'ten (10)
business days advance notice or at any MUtuaily agreed time. The
results of any audit will be delivered to Landlord and if the
computations of the Operating Costs resulting from such audit are
different from the computations prepared by Landlord., then within
thirty (30) days after Landlord's receipt of the results of such
audit, the parties will meet to review the audit and maKe a
reasonable attempt 'to agree upon the correct amount of the
Operating Costs for the year involved. Landlord shall promptly
pay Tenant any excess amount of Operating Cost Increment which
Tenant had paid with respect to the year involved, and 'tenant
shall promptly pay Landlord any deficiency in Operating Cost
Increment determined by such audit. The costs of the audit will
be paid by Tenant unless the amount of Landlord's Operating
Statement for the year involved was more than 'ten percent (10%) in
excess of the correct amount of Operating Costs for the year
involved, in which event Landlord will pay, as part of the
Operating Costs of the Project, the reasonable costs of the audit.
ARTICLE IV
LEASE OF PARKING SPACES
'It is acKnowledged by both Landlord and Tenant that the ordinances of
the City of Beaumont, Texas, do not require that any parking facilities be
provided in connection with the construction of either the Office Facility or
the Retail Facility and that therefore, Tenant's lease of parkina ,paces
described in this Article IV is a material inducement to Landlord to
construct the ParKing Facility. It Is. agreed that in consideration of
Tenant's obligations under this Article IV, Landlord will design the ParKing
Facility in such a way as to insure that the said F'arkina Facility will
accomodate no less than four hundred (400) vehicles.
4.01. Subject to the provisions of this Article IV relating to the
reduction in the number thereof. Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, for the rental.,, and on
the terms and conditions hereinafter set Forth, three hundred
(300) parKing spaces in the ParKing Facility. 'Tenant shall pay
rental monthly in advance in the amount of EIGHTY AND NO/100'S
DOLLARS (880.00) for each of the said 300 parKing spaces during
the entire Perm of this Lease.
4.02. Notwithstanding anything contained in this Agreement to the
contrary, if at any time subsequent to the Effective Date of this
Lease, Landlord shall lease any space in either the Office
Facility or the Retail Facility (including (i) any such space
leased to Tenant which is not a part of the Leased Premises
described herein, and, (ii) any space leased to any tenant
pursuant to a lease agreement with an effective date prior to the
Effective Date hereof which is leased to such tenant in addition
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to the leased premises leased to such tenant initially under such
lease agreement), Landlord shall, within thirty (30) days after
the execution of any such lease, notify Tenant of the amount of
Rentable Area comprising the leased premises under such lease
agreement. Tenant shall thereupon have the right, which shall be
exercisable for a period of ten (10) days after such notice by
Landlord, to cancel the parking spaces leased by Tenant under this
Agreement at the rate of one (1) parking space for each eighty
(80) square feet of Rentable Area contained in such lease. Unless
'tenant shall actually notify Landlord within the said ten (10) day
period that it does not wish to exercise its cancellation rights,
its parking spaces leased hereunder shall be cancelled at the said
ratio of one (1) parking space for each eighty (80) square feet of
Rentable Area.
4.03. At any time (and from time to time) durinq the Term hereof
Landlord shall have the right, but not the obligation, to sublease
all or any part of the parking spaces leased to Tenant under the
terms of this Agreement, at a monthly rental of NINETY AND
NO/100'S DOLLARS (`90.00) per parking space which shall be payable
by Landlord to Tenant not later than three (3) business days after
Landlord shall have receivers Tenant's rental payment described in
Article 4.01 above. in the event Landlord shall elect to exercise
its option to sublease all or any part of t'enant's parking spaces
as aforesaid, Landlord shall notify Tenant of such election and
the number of spaces to iuhich such election applies. Within
thirty (30) days after such notice Tenant shall surrender, the
number of spaces covered by such election to Landlord and shall be
entitled to receive the rentals described hereinabove. Landlord
shall likewise have the right to terminate any such sublease in
whole or in part at any time (and from time to time) by giving
Tenant at least thirty (30) days notice of its intention to do so
whereupon such sublease shall terminate as to the number of spaces
and as of the date set out in the said notice of termination.
ARTICLE V
CONSTRUCTION OF TENAN'T'S IPW OVEMENTu'
It is acKnowiedged and agreed by Landlord and Tenant that the Leased
Premises are to be delivered to Tenant in a ";hell" condition and that
various improvements to the Leased Premises will be required to be
constructed before the Leased Premises will be suitable for its intended use
by Tenant. Subject to the payment of the 'Tenant Improvement allowance, if
any, all Tenant improvements shall be made at the sole cost of 'Tenant in
accordance with the terms and conditions set forth below:
5.01. After Landlord has notified Tenant that the Leased Premises are
ready for Tenant to begin construction of Tenant's improvements
Tenant shall submit to Landlord detailed plans and specifications
prepared by a registered architect fully describinq the proposed
improvements to be made to the Leased Premises. Within fifteen
(15) days after the receipt of Tenant's plans and specifications,
the Landlord and the Project Architect shall review the same and
Landlord shall notify Tenant of his approval or disapproval
thereof. If the plans and specifications are found to be
unacceptable, the Tenant shall be notified in reasonable detail of
the reasons therefor within the said fifteen (i5) clays, in the
event of such notice of disapproval, Tenant shall submit revised
plans and specifications for approval, thereupon such revised
plans and specifications shall be reviewed within fifteen (15)
days. This review/revision process may continue as lung as is
necessary to obtain approved plans and specifications; provided,
however, that at any time after the disapproval of the initial
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plans and specifications, Landlord may notify 'Teranr that it 'no
Ionger wishes to review revisions of the plans:. and specifications
and this Agreement shall thereupon be null and void. it is
understood and agreed that Landlord shall have the right to
disapprove 'Tenants' plans ana specifications for any rcason or for
no reason.
5.02. After receipt of Landlord's approval of the plums and
specifications, Tenant shall suhmit to the Land.Iord for approval
the names of one or more contractors which ne proposes for the
construction of the improvements. Within ten (10) day_. thereafter
Landlord shall approve or disapprove all or any part of such
contractors and notify Tenant thereof. Unless Lancllord'-�; written
approval of a given proposed contractor is; obtained, suci proposed
contractor shall be -presumed to be disapproved. it i-_3 hereby
acknowledged that Landlord may disapprove any given contractor at
any time for any reason or for no reason.
5.03. Within thirty (30) days after the Commencement Date or within
thirty (30) days after completion of all of 'tenant's Improvements.
whichever shall he later, Landlord shall pay to Tenant the
'tenant's Improvement Allowance in the amount of FOU"'CfE£N AND
NO/100'S DOLLARS (`614.00) per square foot of Tenant Uszsble Area
within the Leased Premises; provided, however, that tine amount of
the Tenant's Improvement Allowance shall never ei.cceci the actual
cost incurred by Tenant in the construction of the Tenant's
Improvements.
ARTICLE VI
TENANT'S OPTION TO PURCHASE PROJECT AND
LANDLORD'S RIGHT TD PRIOR LEASE OF THE PREMISES 1'U U'1UR TENANTS
Tenant hereby acknowledges that Landlord has informed Tenant tnat the
Leased Premises are likely to be ready for the construction of the Tenant
Improvements at such time as would allow the Comniencem2nt Date to occur
substantially prior to the July 1, 1487 date provided for in this Agreement
and, as a result, the said July 1, 1487 Commencement Date providoui for herein
is likely to cause Landlord to suffer substantial economic detriment on
account of its being unable to lease the Premises prior to JuIV 1, 148.7. Cm
the other hand, Landlord acknowledges that Tenant is a municipality which is
executing 'this Lease Agreement in anticipation of certain future needs for
office space which future needs may, at present, be sosrewhat general as to
which of Tenant's various subdivisions will utilize the Leased Premises and
the actual allocation of the Leased Premises among the said subdivisions.
Therefore, in an attempt to accomodate the aforementioned interests of the
parties, it is agreed that Landlord shall have the right to lease ail or any
portion of the Leased Premises to other tenants willing to taKe such Leased
Premises prior to the date on which Tenant actually begins occupying the same
for its intended purpose or prior to the Commencment Date of this Lease, and
that, in the event Tenant shall actually pav rentals under tnis Agreement for
all or any portion of the Leased Premises or all or any portion of the
parking spaces described in Article IV withgut actually utilizing the same
for its intended purposes, 'Tenant shall receive an option to purchase the
Project, in its entirety, all of the foregoing to be carried out in strict
accordance with the procedures set out in this Article 'J1.
6.01. In the event, and only in the event, that subsequent to July 1.
11?87, 'Tenant pays rent in consideration of either (i) all or any
portion of the the Leased Premises, or (ii) all or any portion of
the parking spaces rented pursuant to the provisions et' Article IV
with respect to which Tenant has not been given the Opport'unity to
cancel this Lease, in accordance with Article 4.02, and Tenant has
not actually utilized such Leased Premises or parking spaces,
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Tenant shall have an option (hereinafter called "Trnalnt"s Option")
to purchase the Project in its entirety in accordance with the
following terms and conditions:
A. The purchase price of the Project to be paid by 'Tenant
pursuant to its exercise of the Tenant's Option iL equal to
the sum of (i) the outstandina balance (as of the date of
closing) including principal and accrued interest, o-" that
one certain promissory note dated as of December 1, 198J, in
the original principal amount of TEN MILLION DOLLARS
($10,000,000) made by Kyle Plaza, Ltd. and pavabie to the
order of the Beaumont Industrial Development Corporation
(such note is hereinafter called the "Solid Loan"), and (ii)
the outstanding balance (as of the date of the closing)
including principal and accrued interest, of that one
certain promissory note dated as of ------------- 1984, in
the original principal amount of FIVE MILLIOi' DULLARS
($5,000,000) made by Kyle Plaza, Ltd. and payable to the
City of Beaumont, Texas (such note is hereinafter called the
"UDAG Loan").
B. Tenant's Option shall be exercisable during the 'Terra of this
Lease subsequent to January 1, 1989 only when all of the
following conditions exist:
1. Tenant has paid to Landlord any rentals in
consideration of ail or any part of (i) the Leased
Premises, or (ii) the pal-King spaces leased by Tenant
pursuant to Article IV with respect to which parking
spaces 'Tenant has not been given the opportunity to
carrel this Lease as described in Article :.02, and
such Leased remises and/or parKing spaces have not
been utilized and with respect to which Tenant does
not then have a present intention to utilize, and
2. The rentals described in (1) above nave not been
repaid to 'Tenant by Landlord with interest computed at
the so-tailed "Prime Rate" set from time to time by
Allied Bank of Texas from the date of 'T'enant's payment
of such rentals until the date of Landlord's repayment
thereof.
C. In the event that, in accordance with the provisions of
Article 6.010) above, Tenant's Option shall be exercisable,
and Tenant shall desire to exercise its 'tenant's Uption,
Tenant shall so notify Landlord whereupon Tenant's purchase
of the Project shall be closed on a date specified by 'tenant
which shall not be more than ninety (90) nor less than sixty
(60) days after such 'Tenant's notice; provided, however,
that in the event that Landlord small, at any time prior to
the closing described above, tender to Tenant the amount
described in Article 6.01(B)(2) above, the said closing
shall not take place, and Tenant's Option shall not be
exercisable until the conditions describod in Article
6.01(B) once again exist.
6.02. At any time subsequent to (i) the Effective Date of this Lease,
and (ii) the date on which, pursuant to the provisions of Article
4.02, Tenant has been given the opportunity in accordance with the
provision of Article 4.02, to cancel this Agreement with respect
to all of the parking spaces leased Pursuant to the provisions of
Article IV, that Landlord leases space in the Office or Retail
Facility to any tenant (including any leases of $Paco to existing
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tenants under provisions of their leases relatin_g d
to so-cal
or First Refusal Eights), Landlord shall, within thirty
(30) days after the effective date of any such lease, notify
Tenant of such lease and the amount of Rentable Area covered
thereby. If such lease provides for a Commencement Date prior to
July 1, 1987, the aggregate amount of Rentable Area comprising the
Leased Premises shall be reduced by the amouuit of Rentable Area
leased pursuant to such other lease. if sUCn lease provides for a
Commencement Date of July It 1587 or subsequent thereto, 'tenant
shall have the option of either (i) reducing the aggregate amount
of Rentable Area comprising the Leased Premises by the amount of
Rentable Area contained in such lease agreeiient or (ii) declining
to so reduce the Rentable Area comprisinq the Leased Premises in
which case such Rentable Area shall thereafter be considered to be
utilized by Tenant (notwithstanding whether Tonant actually
occupies the same or not) for purposes of determining whether
Tenant's Option described in Article 6.01 is e..ercisable:
ARTICLE VII
LANDLORD'S SERVICES AND UTILITIES
7.01. Except as provided elsewhere in this Agreement, anti so long as
Tenant has not committed an uncured act of default, and is
occupying the Leased Premises, Landlord shall furnish to Tenant
during Normal Business Hours the following services in accordance
with the level of service customary in major first class office
buildings in Beaumont, Texas, except where additional services are
hereinafter specified, as follows:
A. Air conditioning, including heating and. cooling during
Normal Business flours. Landlord also agrees that it shall
at any time and as many times as necessary throughout the
term of this Lease furnish air-conditioning and central heat
during such additional hours or days as 'Tenant may from time
to time designate. All such requests for additional service
shall be in the form of a written request delivered to
Landlord at least four (4) hours durina the week, and at
least twenty-four (24) hours on weeKends and holidays, prior
to commencement of the time during which Tenant shall need
such air-conditioning or heating of the Leased Premises.
Such additional heating or air-conditioning service shall be
furnished by Landlord at any time so specified by Tenant at
Landlord's prevailing rate for such services.
B. Janitorial suppiies in the Leased Premises and public
portions of the Project for all days, except Saturdays,
Sundays and holidays, in accordance with a first class major
office building in Beaumont, Texas.
C. Water at those points of supply provided for drinKing,
Kitchen, and lavatory purposes.
D. Normal and customary maintenance for the public portions of
the Project.
E. Electric current as provided in Article % herein and
electric lighting service for all public portions of the
Project.
F. Reasonably periodic exterior window washing but not less
than two times during each twelve months.
G. Soap, toilet tissue, and paper towels for the public
restrooms in the Leased Premises, together with proper
receptacles for -the same.
7.02. Except as provided elsewhere in this Agreement, Landlord shall
provide all electric power. natural gas, water and sewer service,
and other utilities for the Pruject, including the public and/or
common areas thereof and the Leased Premises as are reasonably
required for the permitted uses, in accordance with, and as
limited by, the following;
A. Landlord shall not be required to provide natural or bottled
gas to the Leased -remises.
R. Landlord shall, at its option, have the right, but not the
obligation, to install, at its expense, separate metering
facilities to measure all or any part of 'tenant's
consumption of electrical energy or other utilities but
there shall not be any special allocation to Tenant for the
cost of such metered electricity or other utilities except
to the extent, if any, it exceeds the service v!hich Landlord
is obligated to provide hereunder.
C. Tenant shall provide for itself, and shall bear the full
cost of the operation and installation of all telephone and
other communications equipment.
D. Landlord shall have no obligation for any interruption of
telephone or other communication service to or from the
Leased Premises, or for the interruption of any other
utility service to the Leased Premises,
7.03. The electrical energy, fresh and waste water, and heating,
ventilaton, and air-conditioning ("IiVAC") to be provided to the
Leased Premises shall be sufficient for norna.l office purposes,
including the operation of telephone and reiated equipment,
photocoping machinery, normal small business computing and/or word
Processing machinery, central computing equipment and appliances
which are consistent with the size and permitted use of the Leased
Premises; provided, however, that the foregoing provision shall
not be construed to include in the definition of "normal office
purposes" (1) any requirement of electrical energy in excess of
120/208 volts, single phase, or any requirement of electrical
energy which is "cleaner" or otherwise more free from radio or
electrical interference, or fluctuations in voltage, or is
grounded in a manner superior to that of the standard electrical
energy made available to other tenants in the Office :Facility, or
(2) any requirement of HVAC service in excess of that which can be
provided by the standard HVAC equipment and distribution
facilities located in the Office Facility, with the dependability
inherent in such HVAC facilities. Tenant acknowledges that while
the electrical energy and standard HVAC facilities to be provided
may be in conformity with the various requirements of this
Agreement, such electrical energy may not be "clean" enough, and
such standard HVAC facilities may not be designed with enough
so-called "overKill" to satisfy the requirements of certain office
equipment; in such event Tenant may be required to provide
additional equipment (such as constant voltage transformers,
emergency generating equipment or uninterruptib)e power supplies,
circuits with isolated grounding, and/or local or supplemental or
emergency HVAC equipment), which excess equipment or, facilities
shall be installed or provided in accordance with the provisions
of this Article 7.
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7.04. In the event that Tenant shall require utility, HVAC, or other
services in excess of that described in this Article 71 Landlord
shall use its best efforts to promptly provide such excess service
and Tenant will pay to Landlord all its costs incurred in
connection therewith. Tenant's obligations to pay for such excess
services shall include, in addition, to the ongoing costs of the
usage thereof, all the costs of providing and measuring such
excess services including, but not necessarily limiteci to, the
purchase and installation of transformers, risers, wiring, pumps,
valves, piping, ductworK, and other HVAC equipment, metering
devices, and any structural or other modifications to the Project
required to accomodate the equipment requiring or provicing such
excess services. In all events, the installation of any
computers, office machines, appliances or other equipment not
specified in Article 7,03, requiring excess services shall be
subject to the prior written approval of Landlord, which approval
shall not be unreasonably withheld,
7.05. Landlord shall not be liable in any way to Tenant for any failure
or defect in the supply or character of electric energy or other
utlities or HVAC services furnished to the Leased Premises by
reason of any requirement, act, or omission of the public utility
or utilities serving the Project except as a result of Landlord's
failure to make payment or deposit or to comply wi-cil any valid
requirement of such utility, The obligation of Landlord to
furnish electricity or other utilities or services described in
this Article 7 shall be subject to the rules and regulations of
the supplier of the utilities and of any municioai or other
governmental authority regulating the business of providing
utility service.
7.06. Landlord does not warrant that any service provided will be free
from any slow-doom, interruption, or stoppage and further reserves
the right to voluntarily effect the interruption, slow down, or
stoppage of any service by voluntary agreement with any
governmental authority, in compliance witn any governmental order,
or during the maintenance, repair, replacement, renewal, or
improvement of the facilities supplying any service, At any time
and for whatever reason any service provided by Landlord in
accordance with this Agreement is interrupted, slows-down, or
stops, Landlord shall use its best efforts to restore the same
promptly; provided, however, that Landlord shall never be liable
in damages (unless such occurrences are attributable to Landlord's
gross negligence or deliberate action not otherwise excused
hereby) or otherwise on account of any such interruption,
slow-down, or stoppage, nor shall the same ever be construed as an
eviction of Tenant, work an abatement of any of the rentals,
effect a termination of this Lease, or relieve Tenant of any
obligation which it would otherwise have hereunder,
ARTICLE VIII
SUBLEASE AND ASSIGNMENT
8.01. Tenant shall not mortgage, pledge, or otherwise encumber, or
transfer or assign this lease or any interest of 'tenant in this
lease, or sublet the Leased Premises, in whole or in part, or
suffer any other person to occupy or use the Leased Premises, in
whole or in part, without 'the prior written consent of Landlord,
and any such mortgage, pledge, other encumbrance, transfer,
assignment, sublease, or sufferance without such consent shall be
void and, at the option of Landlord, be deemed a breach of this
Agreement. Any assignment, mortgage, pledge, other encumbrance,
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or transfer, or subletting approved by Landlord notwithstanding,
Tenant and each assignee shall at all times remain fully
responsible and liable for the payment of all rentals herein
specified, and for compliance with all of the 'tenant's other
covenants and obligations wider this Agreement, unless otherwise
specifically agreed in writing by Landlord. No consent to anv
assignment or mortgage of this lease or any subletting or the
Leased Premises shall constitute a waiver of the provisions of
this Section, except as to the specific instance covered
thereby.
8.02. Landlord shall have the unrestricted right to assign, transfer,
mortgage, pledge, or otherwise encumber, in whole or in part,
every feature of itc rights and obligations hereuntier to any
person, corporation, trust, partnership, or other legal entity.
If Landlord assigns or transfers its interest in this. Lease, or if
its interest herein is transferred by reason of the foreclosure or
other enforcement of any mortgage or pledge or other encumbrance
on the Project, the Leased Premises or this lease, Tenant shall be
bound to such assignee or transferee upon receipt of notice of
such assignment or transfer for the Perm hereof or any renewal
thereof just as if the assignee or transferee were Landlord. Upon
the assignment of this lease to an assignee who assumes the
obligations of Landlord hereunder arising after the date of
assignment, and notice of such assignment is given to Tenant,
Landlord shall be relieved of any further obligations 'to Tenant
hereunder and Tenant agrees to IooK solely to such assignee. Upon
assignment by Landlord to any holder of a deed of trust, mortgaget
or other instrument of security, Tenant agree_ that upon receipt
by it of notice of default by Landlord under any such deed of
trust, mortgage, or other instrument of security, Tenant sliall pay
rentals and other sums coming due wader this Agreement directly to
such holder of any deed of trust, mortgage, or holder of any other
instrument of security.
8.03. This Agreement and all rights of Tenant hereunder shall be
absolutely and unconditionally subordinate to any deeds of trust,
mortgages, or other instruments of security which do now or may
hereafter cover the Project, ar any interest of Landlord therein,
and to any and all advances made on the security thereof, and to
any and all increases, renewals, modifications, consolidations,
replacements, and extensions of any such deeds of trust,
mortgages, or instruments of security. Any such deed of trust
holder, mortgagee, or holder of other instruments of _>ecurity
shall have the right to require the Tenant to enter into an
attornment and non-disturbance agreement in form and substance
satisfactory to such deed of trust holder, mortgagee, or holder of
other instruments of security.
8.04. Tenant will, at any time and from time to time, upon not less than
twenty (20) days' prior written request by Landlord, execute,
acKnowledge, and deliver to Landlord a statement in the form and
substance (with appropriate insertions) of Exhibit C, with such
modifications and additions as Landlord may reasonably request, it
being intended that any such statement by Tenant may be relied
upon by any prospective purchaser or mortgagee of the Project, or
any part thereof, or of Landlord's interest in the Leased Premises
or this Agreement. In addition, at Landlord's request, Tenant
will execute in form and substance reasonably satisfactory to
Landlord's mortgagee, a three-party agreement among Landlord,,
Tenant, and said mortgagee certifying as to the facts described in
Exhibit R and agreeing to such notice provisions and other matters
as such mortgagee may reasonably require in connection with
Landlord's financing.
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ARTICLE iX
USE OF LEASED PREMISES
Subject to the provisions of Article Ii hereof. Tenant may use the
Leased Premises in accordance with the following terms and. conditions:
9.01. Tenant shall not use or occupy, nor permit the use or occupancy
of, the Leased Premises or any part thereof for a purpose which)
in the good faith judgment of Landlord, is in whole or in part,
directly or indirectly 'Forbidden by any governmental authority or
is disrespectful in any manner} or which is extra hazardous on
account of fire or other casualty; or for a purpose which may he
dangerous to life or property; or do or permit anything to tie done
which would increase the fire and casualty insurance rates on the
Project or its contents. In the event that, by reason of any act
or conduct of business of Tenant, there shall be an increase in
the rate of insurance on the Project or its contents, then Tenant
hereby agrees to pay to Landlord the amount of such increase on
demand.
9.02. Tenant shall conduct its business} and control its subtenants. in
such a manner as not to create any nuisance, interfere with,
annoy, or disturb any other tenant=_ or landlord in the management
of the Project. Tenant shall not permit the maintenance of any
Public or private nuisance within the Leased Premises, or Keep any
substance or carry on or permit any operation within the Leased
Premises which might emit offensive odors or conditions into other
portions of the Project; or, use any apparatus within the Leased
Premises which might maKe Undue noise ur cause vibrations within
the Project; or do or permit any other thing to be done within the
Leased Premises which may disturb the quiet enjoyment of any other
tenant.
9.03. No sign, symbol, or identifying warK of any Kind or nature F'hall
be put anywhere on or in the Project, or upon or within the Leased
Premises so as to be visible from the public areas or exterior of
the Project, without the prior written approval of the Landlord,
which approval will not be unreasonably withheld or delayed;
provided however, that all such signs or lettering shall conform
in all respects to the sign and/or lettering criteria established
by Landlord. Landlord shall furnish and install a suiable
building directory listing the tenants of the Project and shall
establish suite numbers to facilitate locating and identifying
various portions of the Leased Premises and other portions of the
Project.
9.04. Such reasonable rules and regulations applying to all tenants in
the Office Facility as may be hereafter adopted from time to time
by Landlord for the safety, care] and cleanliness of the Project
and the preservation of good order thereon, are hereby made a part
of this Agreement and Tenant agrees to comply with all such rules
and regulations as the same may be amended from time to time.
Landlord shall have the right at all times to change or amend such
rules and regulations in any reasonable manner as may be deemed
advisable by Landlords all of which changes and amencimE:nts. will be
sent by Landlord to Tenant. The initial rules and regulations are
attached hereto as Exhibit C.
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ARTICLE X
CONDITION
10.01. This is an "as-is" lease and 'Tenant accepts the Leased 11remises in
its condition as it exists upon the date on a;inich Landlord
notifies Tenant that the Leased Premises are ready for
construction of the Tenant's Improvements; provided, however, that
Landlord shall be responsible for providing the 'tenant Imrn^ovement
Allowance, if any, pursuant to the provisions therefor contained
herein. Landlord shall not be liable, es.cept in the event of
gross negligence or willful misconduct on its part, ro 'Tenant or
anyone claiming on account of any connection with Tenant, for any
injury or damage to person or property clue to the condition or
design of or any defect in the Leased Premises, or any of the
mechanical systems and equipment therein, which may exist or
occur, and Tenant, with respect to itself and anyone claiming on
account of any connection with Tenant, hereby ex.pressiy assumes
all risks of injury or damage to person or property, either
proximate or remote, by reason of the condition of the Leased
Premises.
10.02. Tenant agrees to keep and maintain the Leased Premises in good
repair and condition at its !sole cost and expense save and except
any damage caused by the negligence of Landlord, 'Tenant agrees
not to commit or allow any waste or damage to be committed on anv
portion of the Leased Premises, and at any termination of this
lease, to deliver up the Leased Premises to Landlord in the most
improved condition as they existed at any time during the Term
hereof, together with any of Tenant's improvements subsequently
installed on the Leased Premises, ordinary wear and tear and
damage by fire or other casualty excepted and. upon such
termination of this lease, Landlord shall have the right to
re-enter and resume possession of the Leased Premise_,. The cost
of repairs necessary to restore the condition of the Leased
Premises and the Tenant's Improvements thereon upon termination of
this lease for conditions other than ordinary wear and -tear and
damage by fire or other casualty shall be borne by 'Tenant, and if
Landlord undertakes to restore the Leased Premises, and the
Tenant's Improvements thereon with respect to such other
conditions, it shall have a right of reimbursement against Tenant,
which reimbursement shall be payable on demand and the obligation
for which reimbursement shall survive the termination hereof,
10.03. Tenant may reprove its trade fixtUres, office supplies and movable
furniture and equipment not attached to the Leased Premises
provided that (a) such removal is made prior to the termination of
the 'Term hereof; (b) Tenant is not in default of any arnligation or
covenant hereunder at the time of such removal; and (c) Tenant
promptly repairs all damage caused by such removal and restores
the Leased Premises to their original condition. A H other
property within the Leased Premises and any alterations or
additions to the Leased Premises (including wall-to-wall
carpeting, paneling or other wall covering) and any other article
attached or affixed to the floor, wall or ceiling of the Leased
Premises shall become the property of the Landlord and shall
remain upon and be surrendered with the Leased PremiseD as a part
thereof at any termination hereof, Tenant hereby waivinci all right
to any payment or compensation therefor. If, however, Landlord so
requests in writing, Tenant will, prior to termination of this
lease, at Tenant's sole cost and expense, remove any and all
alterations, additions, fixtures, equipment, and property placed
or installed by it in the Leased Premises and will repair any
damage caused by such removal.
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i
ARTICLE XI
REPAIRS
11.01, Unless otherwise expressly provided herein, Landlord ':hall not be
required to make any improvements, replacements, or repairs of any
kind or character upon the Leased Premises during the Term hereof,
The cost of any repairs, improvements, or replacements made by
Landlord, whether the same shall have been required hereunder or
not, shall constitute a part of the Operating Costs of the
Project. Landlord shall have no liability for its failure to make
any repairs required hereunder prior to the receipt of written
notice from Tenant of the necessity therefor and for a reasonable
time thereafter, nor shall Landlord be liable for any damage which
may occur on account of Landlord's failure to make such repairs
prior to the receipt of written notice of the necessity therefor
from Tenant and for a reasonable time thereafter, SUbJeCt to the
other provisions of this Agreement, Landlord shall be responsible
for the maintenance and repair of the Leased Premises and the
Office Facility in accordance with the following provisions.
A. Landlord shall repair and maintain the facilities and
equipment required to furnish the services which are to be
furnished by Landlord in accordance herewith.
H. Landlord shall repair and maintain the ceilings, floors, and
corridor walls of the service areas and common areas of the
Office Facility, and the facilities and equipment installed
in such service areas and common areas.
C. Landlord shall maintain and repair the roof and exterior
walls and windows of the Office Facility,
11.02. Tenant, at its our cost, shall repair or replace any uninsured
damage or injury to the Leased Premises or the Project, or any
part thereof, caused as a result of its use or occupancy of the
Leased Premises or caused by 'Tenant or anyone acting in respect of
a connection with Tenant; provided, however, that if 'Tenant fails
to promptly make such repairs or replacements, Landlord may crake
them and Tenant shall reimburse Landlord for the cost thereof.
The 'Foregoing provisions of this Section 1i.02 notwithstanding,
any repairs to the Leased Premises or the Project which are
necessitated because of any damage caused by fire or other
casualty shall be governed by the provisions of Article XIII
hereof.
11.03. Tenant will not permit any mechanic's liens to be placed upon the
Leased Premises or improvements thereon or the Project during the
Term hereof caused by or resulting from any work Performed,
materials furnished or obligation incurred by or at the request of
Tenant and nothing contained in this Agreement shall be deemed or
construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the
performance of any labor or the furnishing of any materials for
any specific improvement, alteration or repair of or to the Leased
Premises or any part thereof, nor as giving 'Tenant any right,
power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise
to the filing of any mechanic's or other lian•s against the
interest of Landlord in the Leased eremises.
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ARTICLE XI1
CONDEMNATION
12.01. Should the Leased Premises or the Retail Facility be taken or
condemned in whole for any public utie or purpose by right of
eminent domain, with or without litigation, or be transferred by
agreement in connection with or in lieu of or under threat
thereof, then the Term hereof and the leasehold estate created
hereby shall terminate as of the date title shall vest in the
condemnor or transferee.
If only a part of the Leased Premises or of the rigrjt to use up
have possession thereof is so taken, this Lease and -the estate
hereby granted shall, at the election of Landlord. either (i)
terminate as of the date of such tatting, and the base rent, and
any additional rent, shall be apportioned and paid in full to that
date and all prepaid and unearned rental shall forthwith be repaid
by Landlord to Tenant, and neither Landlord nor Tenant shall be
liable to the other for any base rent, additional rent, damage or
otherwise for or by reason of any matter or thing occurring
thereafter, or (ii) continue in full force and effect as to that
part of the Leased Premises not so taken and the base rent
provided for herein to be paid by 'tenant shall be reduced (as and
from and after the date of such taking) in the proportion that the
Rentable Area of the Leased Premises so taken bears to the total
Rentable Area contained in the Leased Premises, If Landlord
elects to continue the Lease, the rental and additional rental
shall be reduced in proportion to the area of the Leased Premises
so taken and Landlord shall promptly repair any damage to the
Project, including the Leased Premises, resulting from such taking
so as to restore the same to a first class office buildina status
and Leased Premises. Provided, however, that if as a result of
such partial taking, the Leased Premises, or the access to the
Leased Premises, is affected in a manner that renders the Leased
Premises or the Parking Facility (unsuitable for use in the
manner) and for the purposes intended hereunder, then Tenant shall
have the right to terminate this Lease by giving Landlord written
notice thereof within sixty (60) clays after Landlord has notified
Tenant that a taking of some part of or of some interest in the
Project has occurred. The Leased Premises will in any event be
deemed to be unsuitable for Tenant'u use if more than twenty
percent (20%) of the Retail Facility or twenty percent (207) of
the Leased Premises, or more than twenty percent (20%) of the use
or possession thereof, is taken in condemnation proceedings, or by
any right or the exercise of any right, or eminent domain, or for
any public or quasi-public use, which in the opinion of the
Tenant, which opinion shall not be unreasonably expressed, renders
the Leased Premises undesirable for its use as office space. (in
the giving of any such notice of termination to Landlord by Tenant
this Lease and the estate hereby granted shall terminate and
expire as of the date title vests in the taking authority, and the
further rights of the parties shall be as describer[ in Article
12.02 below.
If any part of the Project exceeding 50,000 square feet of
Rentable Area, other than the Leased Premises, be so taken,
Landlord shall have the right to terminate this Lease.
Landlord shall give written notice to Tenant of any termination of
this Lease by it pursuant to this Article X1I within thirty (30)
days after the date of such taking.
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Landlord will give Tenant written notice (i) within a reasonable
time after it learns of the institution or impending institution
of any condemnation proceedings regarding the Project and (ii)
within ten (10) days after any taKing of all or any part of the
Project or of any interest therein occurs.
12.02. Landlord shall be entitled to the whole of any and all -awards
which may be paid or made in connection with any such taking, and
Tenant shall not be entitled to any of such awards. hereby
expressly assigning to Landlord any and all right, title and
interest of Tenant now or hereatter arising in and to any such
awards. Provided however, 'tenant reserves and shall have its
right in and to and may recover for any claim for damages against
the condemning authority by reason of any amount separately
desiqnated for Tenant's moving expenses and for the -taking of its
trade fixtures.
12.03. If any right of temporary possession or occupancy of all or any
portion of the Leased Premises shall be taken, the foregoing
provisions of this Article XII shall be inapplicable thereto and
this lease shall continue in full -force and effect without
reduction, suspension, or abatement of rent, and Tenant shall be
entitled to make claim for and recover any award ur awards,
whether in the form of rentals or otherwise recoverable in
respect of such possession or ocCUpancy, and neither Landlord nor
any party claiming bye through, or wider Landlord shall have any
right or claim thereto. For the purposes of this Article XI1, the
taking of possession or occupancy shall be regarded as "temporary"
if it does not extend beyond the Term of this lease. Any other
taking which is for a period which does extend beyuncl the Term
hereof shall be regarded for purposes of this Agreement as a
taking which is not temporary and to which the luregoing
provisions of this Article XII shall be applicable.
ARTICLE XIII
FIRE OR OTHER CASUALTY AND INSURANCE
13.01. If the Leased Premises or any other portion of the Office
Facility or Parking Facility is damaged by fire or other Casualty,
the following provisions shall be applicable:
A. Should the Leased Premises be damaged by fire or other
casualty, Tenant shall give prompt notice thereof to
Landlord. Ifp in the reasonable judgment of Landlord,
substantial reconstruction of the said Facilities or the
Leased Premises would he required to place the Leased
Premises in the same condition as obtained prior to the
casualty, Landlord may terminate this lease or, any renewal
thereof upon notice in writing to Tenant, given within sixty
(60) days after the date of damage. if Landlord elects to
terminate this leases the rent shall be abated as of the
date of damages and any rentals prepaid which are
attributable to the period after such date of damage will be
refunded. If Landlord does not elect to terminate this
lease, it shall within seventy-five (75) days after the
date of damage, commence to repair the damage and shall
proceed with reasonable diligence to restore the Leased
Premises to their former condition. Lining the repair of
the said Facilities or the Leased Premires, Landlord shall
allow a fair diminution of rent proportionate to the
diminution of the ability of the Tenant to use 'the Leased
Premises for the purposes herein allowed.
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B. In the event that a portion of the said Facilities other
than the Leased.Premises Should be substantially damaged by
fire or other casualty, Landlord shall have the same options
as to termination or repair as provided in subsection A
above.
C. Insurance carried by either Landlord or Tenant insuring
against fire or other casualty shall be for the sole benefit
of the party carrying such insurance; provided, however,
that if any mortgagee of the Project or Landlord's interest
therein or in this lease should require all or any
substantial portion of the proceeds of an insurance policy
held by Landlord to be used to retire the mortgage debt
(which any such mortgagee may have the right to Flo), and the
amount of such insurance proceeds required to be so used
exceeds One Hundred Thousand Dollars (4100,000.00), Landlord
may elect to terminate this lease under this Section 1s.01.
13.02. Anything in this Agreement to the contrary notwithstanding,
Landlord and Tenant each hereby waives any and all rights of
recovery, claim, action or cause of action, against the other, its
agents, officers, directors, partners, or employees, for any loss
or damage that may occur to the Leased Premises hereby demised, or
any improvements thereto, or the Project or anv improvements
thereto, or any personal property of such party therein, by reason
of fire, the elements, or any other cauSte which could be insured
against under the terms of standard fire and e*Atended coverage
insurance policies, regardless of cause or origin, including
negligence of the other party hereto, its agents, officers,
directors, partners, or employees, and covenants that no insurer
shall hold any right of subrogation against such other party. To
the extent required by the terms of any insurance policy
maintained by either party hereto, such party shall be responsible
for obtaining and paying the cost of obtaining a certificate from
the company insuring such policy evidencing the waiver of any
rights of subrogation such issuing company may have wider such
policy.
13.03. Landlord, at its sole cost and expense (but as a part of the
Operating Costs of the Project) shall Keep the Project insured
throughout the Term hereof against loss or damage by fire or other
casualty, with extended coverage in an amount not less than eighty
percent (BOY.) of the insurable value of the Project, and shall
furnish Tenant with evidence of such insurance in form
satisfactory to Tenant.
13.04. Tenant, at its sole cost and expense, shall procure and maintain
throughout the Term hereof, a policy or policies of insurance
insuring Tenant against any and all liability for injury to or
death of a person or persons and for damage to or destruction of
property occasioned by or arising out of or in connection with the
use or occupancy of the Leased Premises or by the condition of the
Leased Premises (including the contractual liability of the Tc?nant
to indemnify Landlord contained herein), the limits of such policy
or policies to be in an amount at least equal to that customarily
maintained from time to time by tenants similarly situated but not
less than Five Hundred Thousand Dollars (4500,000,00) in respect
of bodily injuries in any one occurrence, including death at any
time resulting therefrom, and in an amount not les than One
Hundred Thousand Dollars ($100,000,00) in respect of property
damaged or destroyed in any one occurrence, or with such other
limits as may reasonably be required by Landlord, and shall
furnish evidence satisfactory to Landlord of the maintenance of
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such insurance. All such insurance policies shall be written by
an insurance company or companies satisfactory to Landlord acid
licensed to do business in the State of 'Texas with Landlord named
as an additional insured. Tenant shall obtain a written
obligation on the part of each insurance conpany to notify
Landlord at least thirty (30) days prior to cancellation of such
insurance. Such policies or duly executed certificates of
insurance relating thereto shall be promptly delivered to Landlord
and renewals thereof as required shall be delivered to Landlord at
least thirty (30) days prior to the expiration of the respective
policy. If Tenant fails to comply with the foregoing requirements
relating to insurance, Landlord may obtain such insurance and
Tenant shall pay to Landlord on demand any premium cost thereof
plus interest at the highest rate then allowed by law from the
date of payment by Landlord until repaid by Tenant.
13.05. Landlord shall procure and maintain, throughout the 'Perm hereof, a
policy or policies of insurance, at its sole cost and expense (but
as a part of the Operating Costs of the Project), insuring
Landlord and Tenant against any and all liability "'for injury to or
death of a person or persons and for damage to or destruction of
property occasioned by or arising out of or in connection with the
use or occupancy of the Project (except the Leased Premises), the
limits of such policy or policies to be in an amount at least
equal to that customarily maintained by landlords similarly
situated, but not less than Five Hundred Thousand Dollars
($500,000.00) in respect of bodily injuries in any one occurrence,
including death at any time resulting therefrom, and in aii amount
of not less than Line Hundred Thousand Dollars 0100,000.00) in
respect of property damaged or destroyed in any one occurrence and
shall furnish evidence satisfactory to Tenant of the maintenance
of each insurance.
13.06. Landlord shall not be liable to Tenant fur (a) any injury or
damage to person or property due to the Project, or any part
thereof, being out of repair, or by defect in or failure of pipes
or wiring, or by the bacKing up of drains or by the bursting or
leaKing of pipes, faucets and plumbing fixtures or by gas, water,
steam, electricity, or oil leaKing, escaping, or flowing into the
Leased Premises, whether or not caused by the negligence of
Landlord, or (b) any loss or damage that may be occasioned by or
through acts or omissions of other tenants in the Pruject or of
any other persons whatsoever, excepting only the willful
misconduct or gross negligence of duly authorized employees and
agents of Landlord, or (c) for any loss or damage to any propety
r
or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, insurrection, war, court order, requisition or
order of governmental authority, or any other matter beyond the
control of Landlord, Tenant agrees that all personal property
upon the Leased Premises shall be at the risK of Tenant only, and
that Landlord shall not be liable for any damage thereto or theft
thereof.
13.07. Tenant agrees that it will indemnify, defend, and mold harmless
Landlord from and against (a) all fines, suit_., loss, cost,
liability, claims, demands, actions, and judgments of every Kind
and character (includinq court costs and reasonable attorneys'
fees and expenses) incurred or !suffered by, recovered from or
asserted against Landlord by reason of any breach, violation or
non-performance of any term, provisions, covenant, agreement, or
condition of this Agreement on the part of Tenant hereunder and
(b) all claims, demands, actions, damages, loss, cost,
liabilities, expenses, and judgments (including court costs and
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reasonable attorneys' fees and expenses) incurreLi or• suffered by.
recovered from or asserted against Landlord on accni.int of injury
or damage to person or property to the extent that any such damage
or injury may be incident to, arise out of, or be cauaed, either
proximately or remotely, wholly or in part, by any art, omission,
negligence or misconduct on the part of Tenant, or any of its
subtenants, or any of their respective agent::, servants,
employees, contractors, patrons, guests, licensees, invitees,
visitors, or any other person entering upon the Leased 'Premises
under or with the express or implied invitation or permission of
Tenant or any of Tenant's subtenants, or when any such in,lury or
damage is the result, proximate or remote, of the violation by
Tenant, or any of its subtenants or any of their respective
agents, servants, employees, contractors, patrons, guests,
licensees, invitees, or visitors, of any law> ordinance, or
governmental order of any Kind, or of any provision hereof. Such
indemnification of Landlord by Tenant shall be effective without
regard to whether such damage or injury may result in part from
the negligence of Landlord or any of its agents, servants,
employees, contractors] patrons, guests, licensees, invitees,
visitors, or other- tenants. Tenant covenants and a4rees that, in
the event that Landlord shall be made a party to any litigation
commenced by or against Tenant or relating to this Agreement or to
the Leased Premises, and such litigation comes within the
foregoing obligation of Tenant to indemnify Landlord, then Tenant
shall pay all costs incurred by or imposed upon Landlord by Virtue
of any such litigation and the amount of all such cost_ shall be a
demand obligation owing by Tenant to Landlord 'nearing interest at
the highest rate then allowed by law from the date of payment by
Landlord until paid by Tenant.
ARTICLE XIV
DEFAULT AND REMEDILS
14.01. The following shall be deemed to be events of default by Tenant
under this Agreement;
A. Tenant shall fail to pay any rental, ur any hart thereof,
and such default shall continue for a period of ten (10)
days after written notice thereof to 'Tenant, thereupon
Landlord immediately may exercise remedies Linder this
Article XIV, or Tenant shall fail to comply with any other
term, covenant, or condition of this :Agreement, other than
the payment of rentals, or any part thereof, and such
default shall continue for a period of thirty (30) bays
after written notice thereof to Tenant, ur, in the case of a
default incapable of being cured within thirty (30) days,
fail to commence to cure such default within thirty (30)
days, or, having commenced, shall thereafter fail to
diligently pursue the curing of such default to completion;
K. Any petition is filed by or against 'Tenant wider any section
or chapter of the present federal Bankruptcy Act or under
any future bankruptcy act or, Linder any similar law or
statute of the United States or any state thereof, or Tenant
shall be adjudged bankrupt or insolvent in proceeding_ filed
Linder any section or chapter of the present federal
BanKruptcy Act or under any future federal bankruptcy act or
under any similar law or statute of the United State-, or any
state thereof;
C. Tenant becomes insolvent or makes a transfer in fraud of its
creditors;
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V 4 //�
D. Tenant maKes an assignment for the benefit of its creditors;
or
E. A receiver or trustee is appointed for Tenants or any of the
assets of Tenant and any such appointment is not vacated
within sixty (60) days.
F. Any other events of default by 'tenant as set forth
specifically in other Articles of this Agreement.
14.02. Upon the occurrence of any event of default, Landlord, shall have
- the option to do any one or more of the foIIUw:i.nct without any
notice or demand, in addition to, and not in limitation of, any
other remedy permitted by law or by this Agreement;
A. Terminate this lease, in which event Tenant shall
immediateiy surrender the Leasea Premises to Landlord, but
if Tenant shall fail to do so, Landlord nary, without notice
and without prejudice -to any other remedy Landlord may have,
enter upon and taKe possession of the Leased Premises and
expel or remove Tenant and its effects mithout being liable
to prosecution or any claim for damages on account thereof;
and Tenant agrees to indemnify Landlord for all loss and
damage which Landlord may suffer by reason of termination,
whether through inability to relet the Leased Premises or
otherwise, including loss of rental for the remainder of the
lease Term.
B. Declare 'the entire amount of the rentals which would have
become due and payable during the remainder of the Term
hereof to be due and payable immediately, in which event
Tenant agrees to pay the same to Landlord at once, it beino
agreed that such payment shall constitute payment in adviance
of the rentals stipulated for the remainder of the lease
Term. The acceptance by Landlord of the payment of such
rentals shall not constitute a waiver of any default then
existing or thereafter occuring hereunder.
C. Enter upon and take possession of the Leased Premises as the
agent of Tenant without terminating this Agreement and
without being liable to prosecution or any claim for damages
on account thereof, and Landlord may relet the Leased
Premises as the agent of Tenant and receive the rent
therefor, in which event Tenant shall pay to Landlord on
demand the cost of renovating, repairing and altering the
Leased Premises for a new tenant or tenants and any
deficiency that may arise by reason of such reletting;
provided, however, that Landlord shall have no duty to relet
the Leased Premises.
D. Do whatever Tenant is obligated to do by the provisions of
this Agreement and have the right to enter 'the Leased
Premises without being liable to prosecution or any claim
for damages an account thereof, in order to accomplish this
purpose. Tenant agrees to reimburse Landlord immediately
upon demand for any expenses which Landlord may incur in
thus effecting compliance with this Agreement on behalf of
Tenant, and Tenant further agrees that Landlord shall not be
liable fur any damages resulting to Tenant from such action,
whether caused by negligence of Landlord or otherwise.
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E. Pursuit of any of the foregoing remedies shall not preclude
pursuit Of any of the other remedies herein provided or any
other remedies provided by law.
14.03. All remedies given Landlord for default by Tenant, inLluaing those
not herein set forth but provided by law, shall be cumulative; and
the exercise of one or more of these remedies shall not preclude
the exercise of any other available remedy; provided, however,
that Landlord shall have the duty to taKe sucin steps as may be
reasonably necessary to mitigate its damages, to the extent
practicable, caused by any such default. No act or thing done by
Landlord or its agents during the Terra hereof shall be deemed an
acceptance of an attempted surrender of the Leased 1remises, and
no agreement to accept a surrender of the Leased Premises shall be
valid unless made in writing and signed by lancilord. No re-entry
or taxing possession of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this igreement,
unless a written notice of such intention be given to Tenant.
Notwithstanding any such reletting or re-entry or taking
possession, Landlord may, at any time thereafter elect to
terminate this lease for a previou!: continuing default.
Landlord's acceptance of rent following an evert Of default
hereunder shall not be construed as a waiver by Landlord of such
event of default, Ho waiver by Landlord of any violation or
breach of any of the terms, provisions, or conditions hereof shall
be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions, or conditions
hereof, Forbearance by Landlord to enforce one or more of the
remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of any Other violation
or default. The failure of Landlord to enforce the rules
described elsewhere herein against Tenant or any other tenant in
the Project shall not be deemed a waiver of any such rules or
regulations. No provision hereof shall be deemed to have been
waived by Landlord unless such waiver be in writing signed by
Landlord,
14.04. Landlord shall be in default if it:
A. Fails or refuses to pay any amount due and owing to Tenant
at the time payment of Such amount is due and payable and
such failure or refusal continues for ten (10) days after
Tenant maKes written demand therefor; or
R. Fails or refuses to comply with any covenant, term, or
provision hereof (other than the payment of money to Tenant)
with which Landlord is required to comply and such failure
or refusal continues for a period of thirty (30) clays after
written notice thereof by Tenant; provided, however, that if
the nature of the default is such that it cannot reasonably
be cured within such thirty (30) days, then 'Tenant shall not
declare such default if action to cure the same is commenced
by Landlord within such thirty (30) day period, and having
been commenced, is pursued with reasonable diligence and in
good faith,
14.05. In the event of Landlord's default in the 'payment of any amount of
money due 'Tenant hereunder, Tenant's sole remedy shall be the
institution of an action against Landlord for the collection of
such money. In the event of Landlord's default in the performance
of any other action required to be performed hereunder, Tenant may
either bring an action for damages or specific performance or
terminate this lease. It is expressly provided, huwever, that
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L
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Tenant shall give not less than thirty (30) days Written notice of
its intention to exercise its riq_ht to terminate this leaso for
Landlord's default or to institute an action against Landlord for
the collection of such money, damages, or for specific
performance, to 'the holder or holders of all liens of record or of
which Tenant has knowledge, encumbering tie Project or this lease,
who have given notice to Tenant of the address to which such
notices should be sent, and Tenant shall not be entitled to
terminate this lease if any of such lienholdera notifies 'tenant
within thirty (30) days after Tenant has given such notice that
such lienholder will perform the obligations of Landlord hereunder
and does actually perform such obligations of Landlord within a
reasonable period thereafter. The provisions of this Section
14.05 shall, in all events, be subject to tho provisions of
Section 14.06 below.
14.06. Anything to the contrary contained herein notwithstanding, it is
understood and agreed that (i) all obligations of LancIOrd
contained in this Agreement shall be binding upon Landlord and its
successors only with respect to breaches occurring during its and
their respective ownership of Landlord's interest ii i the Leased
Premises; and (ii) 'Tenant agrees to look solely to Landlord's
interest in the Project for the recovery of acv judgment r'r•om
Landlord; and (iii) Landlord shall never be nersonally liable for
any such judgment. The provisions contained in the foregoing
sentence are not intended to limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest; nor shall it relieve Landlord
from any personal liability to Tenant arising from the willful
misconduct or bad faith of Landlord.
ARTICLE XV
RIGHT OF ENTRY
15.01. Landlord shall have the right, at all reasonable hours, at any
time, to enter the Leased Premises for the following purposes:
A. To clean or make repairs;
B. To make necessary alterations or additions;
C. To determine the use to which the Leased Premises are being
put;
D. To determine if any event of default has occurreui;
E. To fulfill any requirement or do anything required herein;
F. To satisfy any mortgagee holding a lien encumbering the
Project, or this Agreement;
G. To show the same to any prospective mortgagee, purchaser, or
"master tenant"; or
H. For a period of riot more than six. (6) nunths prior to the
expiration of the 'Term hereof, to show the Leased Premises
to prospective new tenants, and, if the Leased Premises are
vacated, to prepare them for reoccupancy.
15.02. Landlord uh;.all have no liability of any kind as a result of its
exercise of the rights of entry granted in the manner herein
prescribed.
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F
ARTICLE XVI
WAIVERS
16.01. No waiver of any covenant or obligation or any right, 'power,
option, or remedy given by this Agreement, or by law shall be
effective unless made in writing signed by Landlord and 'Tenant and
made a part hereof.
16.02. Any failure of Landlord or Tenant to insist upon the strict
performance of any covenant or obligation required herein shall
not be or be construed as an implied waiver. Nor shall the
failure by Landlord or 'Tenant to assert or enforce any claim,
cause of action, remedy, right,, or power provided hereby or given
by law be or be construed as an implied waiver or relinquishment.
Receipt and acceptance by Landlord of any rentals with Knowledge
of a breach of any covenant or obligation contained herein shall
not be, or be construed as, a waiver of the breach of, the right to
demand that it be cured.
ARTICLE XVII
MISCELLANEOUS
17.01. No holding over by Tenant, whether with or without consent of
Landlord, shall operate to extend the Term hereof , except as
otherwise expressly provided herein. Should Tenant hold over at
the termination of this Agreement or any renewal thereof, the
holdover shall be as a tenant at will and all of the terms,
covenants, and obligations contained herein shall continue in full
force and effect; provided, however, that the rent ror any period
of holding over shall be an amount equal to two times the
aggregate amount of any rentals otherwise payable ilereundov. The
rent payable to Landlurd during the holdover period shall be
payable upon demand.
17.02. IN ORDER TO SECURE THE PAYMENT OF ALL RENTALS AND ANY OTHER
CHARGES DUE OR TO BECOME DUE HEREUNDER AND IN UNDER TO SECURE THE
FAITHFUL PERFORMANCE OF ALL COVENANTS AND OBLIGATIONS CONTAINED
HEREIN, TENANT DOES HEREBY GRANT TO LANDLORD AN EXPRESS
CONTRACTUAL LIEN AND SECURITY INTEREST ON AND IN ALL PROPERTY,
MERCHANDISE, OR CHATTELS OWNED BY TENANT THAT MAY DE PLACED IN OR
UPON THE LEASED PREMISES AND IN ALL RENTALS FAYABLE UNDER ANY
SUBLEASE OF ALL OR ANY PORTION OF THE LEASED s='REHISES. THIS
EXPRESS CONTRAC'T'UAL LIEN AND SECURITY INTEREST IS GIVEN IN
ADDITION TO ALL STATUTORY LIENS WHICH LANDLORD MAY POSSESS OR COi9E
TO POSSESS AND SHALL BE CUMULATIVE OF THEM. TENANT EXPRESSLY
WAIVES ANY AND ALL CLAIMS OF EXEMPTION, WHETHER OR NOT PROVIDED BY
STATUTE OR OTHER LAW. THE CONTRACTUAL LIEN AND SECURITY INTEREST
PROVIDED HEREIN MAY BE FORECLOSED WITH OR WITHOUT COURT
PROCEEDINGS, AND BY Ell-HER PUBLIC OR PRIVATE SALE, WITH OR WITHOUT
NOTICE. TENANT UPON REQUEST BY LANDLORD SHALL EXECUTE ALL
FINANCING STATEMENTS OR OTHER DOCUMENTS NECESSARY FOR TIME
PERFECTION OR PROTECTION OF THE CONTRACTUAL LIEN AND SECURITY
INTEREST PROVIDED HEREIN.
17.03. Landlord and Tenant mutually agree that neither shall be required
to perform any covenant or obligation in this lease or be liable
in damages for the non-performance of same, if the performance or
` non-performance of the act required or prohibited is delayed,
caused by, or prevented by Force Majeure.
17.04. In the event that either Landlord or Tenant fails or refuses to
perform any of the terms, covenants, or obligations of this
Agreement and the other party places the enforcement of nll or any
-28-
part hereof in the hands of an attorney, the defaulting party
agrees to pay the other party reasonable attorney_;' fees and
expenses and other costs and expenses, whether or not 6u:it is
filed or other judicial proceedings taKe place.
17.05. This Agreement is made and is to be performed in the City of
Beaumont, Jefferson County, 'Texas, and =hall ire construed
according to the laws of the State of Texas, if any clause,
provision, or term of this lease is or should become invalid,
illegal, or unenforceable, under any present or future law, the
parties hereto agree that the remainder of this Agreement shall
not be affected thereby and that all provisions not found to be
_ illegal, invalid, or unenforceable remain in full force and
effect.
17.06. This Agreement zind any attached addenda or exhibits signed by
Landlord. and Tenant constitute the entire agreement between them
with respect to the within subject matter. No prior written
agreements and no oral promises shall b. binding.
17.07. This Agreement shall not tie amended, changed, altered, modified,
or terminated except by written agreement signed by Landlord and
Tenant.
17.08. 'there shall be no merger of this lease or of the leasehold estate
hereby created with the fee estate in the Leased Premises, or any
part thereof, by reason of the fact that the same person may
acquire or hold, directly or indirectly, this lease or the
leasehold estate hereby created or any interest in this lease or
in such leasehold estate as well as the 'fee estate in the Leased
Premises, or any interest therein.
17.09, Neither Landlord's nor 'Tenant's agent_; have made any
representations or promises with respect to the Leased Premises or
the Project except as herein expressly set forth and no rights,
easements, or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provi>ions hereof.
17.10. Each party warrants to the other that it has not has dealings with
any real estate agent or broker in connection with thu negotiation
or execution of this; Agreement. Each party agrees to indemnify
the other party and hold the other party harmless from and against
any and all costs, expenses, or liability for commissions or other
compensation or charges which are based on any agreement or
understanding such party may have had with any broker or agent
with respect to this Agreement.
17.11. Whenever notice or demand i!, required or permitted to bu given to
either party, such notice or demand must be made in writing and
delivered personally or be sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to Landlord: Kyle Power, Ltd.
1000 United BanK Power
Austin, Texas 78701
If to Tenant: The City of Beaumont
` Attn: City ,Manager
--------------------
Beaumont, Texas
-29-
f
Notices of default hereunder shall also ue given by Tenant or
Landlord, as the case may bey to all lienholdups holding liens
encumbering the Project or this leaser of record ur of which the
party giving notice has actual Knowledge, at such address as may
from time to time be furnished to the parties by such lienholders.
(This is the end of the doniment.)
(The next page is the :signature Page.)
-30-
SIGNATURE PAGE
LANDLORD;
KYLE TOWER, LTD.
By'------------------------------------
Bruce F. RiecKT General Partner
TENANT;
City of Beaumont, Texas
By"------------------------------------
Karl Nollenburger, City Manager
��
112
EXIIiC+TT A
1'0
KYLE TOWER LEASE AGREEMENT
DESCRIPTION OF LEASED PREMISES
------------------------------
1 r_�ae
e
EXHIBIT b
TO
XYLE TOWER LEASE AGREEPIENT
(There i> no Exhibit B)
i
EXHIBIT C
TO
KYLE TOWER LEA!2 AGREEMENT
ESTOPPEL CERTIFICATE
--------------------
[NAME OF ADDRESSEE]
LSTREET ADDRESS]
[CITY, STATE, ZIP CODE]
Re: Lease dated [EFFECTIVE DATE OF LEASE AGREEMENT] between Kyle Tower,
Ltd., Landlords and [NAME OF TENANT], Tenant, on Leased Premise's located
in the Kyle Towers Beaumont, Texas.
Gentlemen:
The undersigned, as 'tenant, has been advised that the above--described
lease (the "Lease") will be or has been assigned to you as security for
[DESCRIPTION OF SECURED INSTRUMENT] with respect to the space covered by the
Lease. As an inducement for such instrument, the following is hereby
confirmed:
1. That it has accepted possession of the Leased Premises pursuant to
the terms of the Lease.
2. That the improvements and space required to be lurni!.hed according
to the Lease have been completed and are satisfactory in all
respects.
3. That the Lease is in full force and effect and has not been
amended except as set forth below, and that no 'FurthLr amendments
to the Lease will be effected without your written cunEent. The
Lease has been amended, if at all, only as follows:
[DESCRIPTION OF AMENDMENTS, 1F ANY.]
4. That there are no offsets or credits against rentals and that nu
rentals have been or will be prepaid.
5. That rentals commenced to accrue on [DATE RENTAL PAYMENTS BEGAN].
The Lease 'term expires on [TERMINATION DATE].
6. That there are no renewal options under the Lease except as
follows:
LDESCRIPTION OF ANY RENEWAL OPT1ONS.J
7. That it hereby waives any terms of the Lease with respect to the
application of insurance and condemnation proce-ods which are
inconsistent with the term of any lien instrument.; secured by the
Project or any part thereof.
8. That the Lease is and shall remain absolutely and completely
subordinate to your [DESCRIPTION OF SECURED INLiTRUI-IEN1'7.
9. That there are no purchase options under the Lease or other
agreements giving it any rights or options to pul^chase the real
property and/or improvements or any other part of the Project.
10. That -there are no defaults by the Landlord under the Lull5,e.
[DATE)
INAME OF 'TENANT]
`y"------------ _
—
LNAPE OF AUTHORIZED I?..'I'RESE4TATLVE7
r+ d r
EXHIBIT D
TO
KYLE PLAZA LEASE AGREEMENT
RULES AND REGULATIONS
---------------------
1. Tenants shall not change, alter, or replace the locks provided for doors
in the Project, except with the permission of the Landlord. Tt;nants
shall insure that the Landlord has a Key for every door in the Leased
Premises.
2. None of the entries, passages, doors, elevators, hallways, or, stairways
in the common areas of the Project shall be locked or obstructed, or any
rubbish, trash, litter, or material of any nature placed, emptied, or
thrown into these areas; nor may any of these areas be used at any time
except for ingress and egress to and from the Leased Premiser.• and for
going to and from one part of the Project to another.
3. Plumbing fixtures and appliances shall be used only for the purposes, for
which they were constructed and intended, and no sweepings, rubbish,
rags, or other unsuitable material shall be thrown or placed therein.
The cost of any stoppage or damage resulting from misuse by a tenant or
by the tenant's agents, employees, invitees, licensees, or visitors, of
these fixtures and appliances shall be paid by the tenant.
4. Tenants will refer all contractors, contractor's representatives and
installation technicians, rendering any servit_e on or to the Leased
Premises for tenants, to the Lcuidlord for approval, which will not be
unreasonably withheld, and supervision before performance of any
contractual service. This provision shall apply to all iuork performed
in the Project including installation of telephones, telegraph
equipment, electrical devices and attachments and installations of any
nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment, or any other physical portion of the Project.
5. No tenant shall at any time occupy any part of the i'roject as lodging
quarters.
E. Tenants shall not place, install, or operate on the Leased Premises or
in any part of the Project, any engine (except as an element of
facilities or equipment otherwise permitted under the Lease Agreement),
or industrial machinery thereon or therein, or place or use in or about
the Leased Premises any explosives, gasoline, kerosene, oil, acids,
caustics, or any inflammable, explosive, or hazardous material, other
than cleaning supplies, without the prior written consent of the
Landlord.
7. Landlord and sublessors will not be responsible for luRt or stolen
personal property, equipment, money, or jewelry from tenants areas or
public rooms regardless of whether such loss occurs when the area is
locked against entry or not.
B. No birds, fowl, or animals shall be brought into or Kept in or about the
Leased Premises or the Project.
Y. Project employees shall not receive or carry messages for or to any
tenant or any other person, nor contract with or rendor free or paid
services (except as provided in -the Lease Agreement) to any tenant or
tenant's agents, employees, or invitees.
10. Tenants shall not allow windows within the Leased Premises to be open at
any time during Normal Business Hours. Nothing shall be thrown out of
the windows of the Project, or down the stairways or other passages.
Landlord reserves the right to cause any and all winouws of the Project,
whether as a whole or in part, to be locked, !.ealed, closed, or
otherwise made inoperable, or to install permanent or temporary screens
thereon, at any time and from time 'to time.
ma�rawarY .
i
. � b
11. Movement into or out of the Project of furniture or office supplies and
equipment, or dispatch or receipt by a tenant of anv ioerchandise or
materials, which requires use of elevators or stairways, or movement
through the Project entrances or lubbies, shall be restricted to hOUP S
reasonably designated by the Landlord. All such movement shall be under
the supervision of the Landlord and carried out in the manner agreed
between the Landlord and the tenant by prearrangement before
performance. Such prearrangement will include determination by Landlord
of time, method, and routing of movement and limitations imposed by
safety or other reasonable concerns which may prohibit any article,
equipment, or any other item from being brought into the rroject or any
part thereof. Tenants assume, and _hall indemnify Landlord and
Sublessors against, all risks and claims of damages to peraons and
properties arising in connection with any said movement,
It is the desire of Landlord to maintain in the Project the highest
standard of dignity and good taste consistent with comfort and convenience
for the tenants. Any action or condition not meeting this high standard
should be reported directly to the Landlord. Cooperation by tenants will be
mutually beneficial and sincerely appreciated. Landlord ra_erves the right
to make such other and further reasonable rules and regulations as in it,-
judgment may from time to time lee needful, for the safety, care, anti
cleanliness of the Leased Premises and the Project, and for the pre+_ervation
of good order therein.
Landlord will maintain an agent in the Project at all times to r•epret.ent
it in these matters,