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HomeMy WebLinkAbout2009-129►Q FILE REFERENCE FORM Additional File Exists 2009-129 Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Revoked and terminated by Ordinance No. 2013-009 01/15/13 jR s:Aour documents\ordinancesV09Aarg lease ordinance-2009.doc ORDINANCE NO. 2009- 129 AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND ARG EAST HICKORY PARTNERS, LLC FOR THE LEASE OF A PORTION OF LAND LOCATED AT THE SOUTHWEST CORNER OF EAST HICKORY AND INDUSTRIAL STREETS, BEING SITUATED WITHIN THE H. SISCO SURVEY, ABSTRACT NUMBER 1184 AND BEING DESCRIBED AS A PART OF LOT 3, BLOCK 20 OF THE ORIGINAL TOWN OF DENTON, FOR THE CONSTRUCTION, OCCUPANCY AND MAINTENANCE OF AN OUTDOOR PATIO; AND PROVIDING AN EFFECTIVE DATE WHEREAS, ARG East Hickory Partners, LLC,(the "Owner") is the owner of a tract of land located at the southwest corner of East Hickory and Industrial Streets, being situated within the H. Sisco Survey, Abstract Number 1184 and being described as a part of Lot 3, Block 20 of the Original Town of Denton (the "Owner's Property"); and WHEREAS, the Owner has requested the lease of certain City owned real property, approximately 1,437 square feet in size, located adjacent to the Owner's Property, as described in Attachment "C" of the Agreement, as defined below, for the purpose of constructing, occupying and maintaining a outdoor patio area in conjunction with a business on the Owner's Property; and WHEREAS, the City Council has been presented with a proposed lease agreement between the City of Denton and Owner, substantially in the form attached hereto and made a part hereof as Exhibit "A" (the "Agreement"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Lease Agreement by and between the City of Denton, Texas, as Landlord and ARG East Hickory Partners, LLC, as Tenant, and any other documents necessary for the lease of an approximate 1,437 square foot tract of land, as described above, substantially in the form attached hereto and made a part hereof as Exhibit "A". SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. s:\our documents\ordinances\09\arg lease ordinance-2009.doc PASSED AND APPROVED this 0� day of QM&12009. Of da "- p NARk A. B O G S, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPR ED AS LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: 'EXHIBIT "A" LEASE OF CITY PROPERTY This Lease Agreement is made and executed to be effective this day of 2009 (the "Effective Date') at Denton, Texas, by and between the City of Denton. Texas. a Texas home rule municipal corporation, hereinafter referred to as "Landlord" or "City', and ARG East Hickory Partners, LLC, a Texas limited .liability company, hereinafter -referred to as "Tenant". WITNIESSE'TH: WHEREAS, Tenant is the owner of certain real property located at the southwest comer of Industrial Street and East Hickory Street in the City of Denton, Denton County. Texas, being; part. of Lot. 3..Block 20 of the Original Town :of Denton and being more particularly -described .in Attachment ` . attached hereto and made a part hereof for "all purposes C`Tenant-s Property'*); and WHEREAS'.. Tenant has requested that it be allowed to lease a portion of the land owned b}'Landlord adjacent to Tenant- s Property in order to construct, occupy and maintain a patio area in.conjunction with the operation. of a -restaurant on Tenanrs Property; and NOWZ THEREFORE, for and in consideration of the promises and the mutual covenants contained in this Aeement, the parties agree as follows: I. LEASED PRENOSES Landlord, for and -in consideration of the covenants and agreements herein contained, :'to be kept by Tenant, does hereby demise and lease, without. warranty of title, .unto Tenant; and. -Tenant does hereby lease. from Landlord, for the- lease term described in Article. 11. the following described. land situated in Denton Count}, Texas: A. LA�'`°D. A .tract of land; being approximately 1,437 square feet, drawn and outlined on the site plan (the.`'Site Plan'') described on Attachment `'B" attached hereto and made. a part. hereof for all purposes and being more particularly described by the survey and. metes and bounds. description on Attachment "C", attached hereto and made a part hereof for all purposes (the ".Leased :Premises"). B. L IPROVEyfE\=TS PROVIDED BY 'LAINDLORD. \O\�E: There will be no improvements provided by Landlord: C.IMPROVEMENTS PtiTS PROVIDED BY TE\A_N1 T. On the Leased Premises. Tenant. - shall construct a patio, and . other improvements C`Improvements").. The Improvements are illustrated on attachment "137 attached hereto and made a part hereof for all -'purposes. The construction of the Improvements shad be commenced no later than August 1; 2011. 'as evidenced. b , the issuance 'of a building permit (the "Commencement Deadline') and completed no later than Jule 31.. 2012, as evidenced by the issuance of a certificate of occupancy for the Improvements (the "Construction Deadline" ;otivithstanding anything contained in this .Lease :agreement to the contra., a failure to -meet the Commencement Deadline or the Construction Deadline may, at the sole option and discretion of the Landlord, result in the immediate termination and cancellation of this .Lease Agreement- upon 30 days -written notice of cancellation to* Tenant: In such case, Tenant's rights under the L-ease_Agreement will immediately= cease and be forfeited; -and any Improvements -established shall be. removed from the Leased -Premises and the Leased Premises restored to its -condition prior to the date of this.Lease Agreement at -the sole duty) and sole expense of Tenant. If Tenant fails to remove the -Improvements within 90 days after termination notice, then the. Landlord mavdo- so at the expense of the Tenant. Tenant shalt pay Landlord such costs of -removal and restoration within 30 days after receipt of an invoice from the Landlord. 'If the invoice. is -not paid within said time period a lien is herebygranted by Tenant and'is established- against Tenant's Property) to- secure payment. In such case -Landlord is_ authorized by Tenant to file an affidavit -in the Real Property Records, Denton Counhi,Texas- against T enant's Property to evidence the lien. D. APPROVAL. OF CONSTRUCTION PLAti`S. Prior to commencing construction of the -Improvements, Tenant. shall submit io .Landlord construction plans for reyiexr and,. approval. to'make certain that, the construction plans are in conformity with the .:.-'Site Plan.- -This review-is4n addition to any review required by the Building Official and the Director. of Economic -Development of the. City of Denton for issuance of a building permit _and to insure compliance :with City, Codes. No later than 60 days after the completion. of the Improvements.- Tenant shall deliver to Landlord as -built construction plans of the Improvements in a form acceptable to 'Landlord (the. "As -Built Plans'). No construction activ' ities shall. commence prior to approval: of the construction plans by Landlord. D. SAFETY NIEASURES DURVN'G CONSTRUCTION. Tenant shall be responsible for -providing all safety measures during construction, such as barricades, to insurethan motorists and pedestrians -are, adequately protected from the construction activities. . F.. LEASEHOLD CONNECTED TO TENANT' PROPERTY. This leasehold shall not be severable ftom the ownership interests -of Tenant's Property and the covenants, terms and conditions under this Agreement shall be binding upon and inure to the benefit of the owners and subsequent o«mers of Tenant's Property-. 'Nothing contairied herein shall be construed to allow assignment or sublease of this Lease Agreement without the consent of Landlord as prescribed in Article Vl. G:. LEASEH0LD CONDITION. THE,- LEASED PREMISES IS - LEASED TO TENANT I1 .ITS PRESENT COtirDITtO\� `'AS LS."' '`��jHER>✓ IS" AND "VITH. ALL FAULTS". TENANT STIPULATES THAT .IT HAS THOROUGHLY INSPECTED THE:LEA:SED PREMISES AIND FUNDS THAT THE LEASED PREMISES I'SCURRENTLY SUITABLE FOR THE .USES PEMMITTED BY THIS LEASE AGREEME LAl\rDi:ORD MAKESNO REPRESS\iTATIOi\j OR WARRA\rT'lES OF AW KL�rD OR NATLJRE CO\CERI\IING THE LEASED PREMISES, Ii1CLUDI\G PagCA 2. WITHOUT . LIMI.TATION,- �VARR NI FFIES. OF 1 AWTA.BILITY- OR FIT��ESS FOR PARTICULAR :.PURPOSE OF - USE:. TENANT HEREBY -STIPULATES TO LA'`rDLORD;THATs DUE TO ITS L�tSPECTIO\J OF THE LEASED PREvfISES, IT IS AWARE OF TNE: CON[DITIONN OF -THE -LEASED PREMISES. II. TERM The. term -of this Lease -Agreement shall -be for a period of 30 }rears; commencing on the-]' day of August; 2009 and continuing through. the_ 3 i" day of July, 2039, unless earlier terminated under the provisions of the .Lease Agreement (the ' L.ease Term' }. I'll. PAYMENTS_ RENTALS AND FEES :Tenant covenants and agrees to pay -Landlord, as consideration for this Lease Agreement,, the following payments, rentals and :fees: A.. -'I AND .RENTAL.:Rent shall be due and payable in the sum of S 1.00 per -square foot.per 'year or 51,437 per year (the `°Onginal'Rent"), payable annually in advance,with the firsr.-pa}anent on the Effective Date and each subsequent payment on the same day- of each year during the term of this Lease Agreement. The first payment is based on the estimated square footage of the Leased :Premises shown on Attachment "C". which is stipulated by -Tenant to be accurate 'for- the purposes of the payment -of rent. B. PAY`EEt'T. PENALTY. ADJUSTNIE`=TS. All payments due Landlord from Tenant Shall -be, made to"Landlordafthe-offices of the Director of_Economic. Development as provided in Article X D. below,: unless:othenwisedesignated in %Amting by the. Landlord. l.f a payment is not received on. or before the 13' day after the due date, a five percent(50/0) penalty %vilF be due as of the: 16"h day. An- additional penalty of one percent (I%) of the unpaid rental amou.nt will. bedue. for each 30 day period thereafter that the payment is. delinquent until the unpaid. rental payment is made: 'Notwithstanding the foregoing. if Tenant fails_ to male its annual lease payment within 90 days of the contract due date, :Landlord shall noti_l� Tenant of such. failure to make annual lease payment and if the annual lease paynient is not made within 15 days of, notice to Tenant, this Lease is terminated without the 'necessit}� of any further action by Landlord. In that event. Tenant shall prompily remove any and all improvements made to the:Leased Premises and shall restore the Leased Premises to the condition found prior to possession pursuant to the terms stipulated in Article- I C..:The Original Rent for the Leased Premises shall be readjusted. every three (3) years during the Lease Term. beginning August 1, 2012 on the basis of the then current United States Consumer Price Index for, all urban consumers (CPI-U) for the Dallas -Fort Worth :Bureau of Tabor Statistics. Thereafter, -the. Ori oinal .Rent shall be readjusted in the �ears.20.15. 20.1.8; 202I.; 2024. 2027. 2030, 2033, and 2036. The adjustments in the annual rent shall be determined by multiplying the Original :Rent bya'-. fraction, the numerator of which is the index number for the last_month prior to the,- adjustment, and the denominator -of x.vhich is the index number applicable at -the Pace 3 execution of this*Lease Agreement. If the product of this multiplication is greater than the Original Rent, Tenant shall pay this greater amount as the annual rent until the time of the next rental adjustment as called for in this section. If the product of this multiplication is less than. the Original Rent there shall be no adjustment in the annual rent at that time, and Tenantshall. pay the previous years annual rent until the time of the nest :rental .adjustment as called for in this section. In. no event shall any rental adjustment called for in this section result in an annual rent less than the previous year's annual rent. The adjustment shall be limited so that the annual rental payment determined for any given t-wo-year period shall not exceed the annual rental payment calculated for the previous CPI adjustment by more than txventy percent (20%) percent. If the. consumer price index for all urban consumers (CPI-U) for the 'Dallas -Fort Worth ,geographical .region, as compiled by the U.S. Department of Labor; Bureau of .Labor Statistics, is .discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the formula set forth above, but by substituting the index numbers for the Consumer Price Index -Seasonally Adjusted U.S. City Average For. All` Items- For All Urban Consumers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas -Fort Worth geographical region. If both the CPI-U for the Dallas - Fort: Worth geographical region and the U.S. City Average are discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the United States Department of Labor that are mostnearly comparable to the CPI-U applicable to the Dallas -Fort Worth geographical region. If the Bureau of Labor Statistics of the United States Department of -Labor ceases to exist or ceases to publish statistics concerning the purchasing power of the consumer dollar during the Lease Term. the remaining rental adjustments called for in this section -shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Landlord. = Should -any tares be. -levied against the. Leased 'Premises or Ithe Improvements, paymentof such taxes shall be the sole responsibility of the Tenant. Any provision herein, or any other document executed or delivered in connection here -with, or in any other agreement or commitment, whether written or oral; expressed or implied, to the contrary notwithstanding. Landlord shall not in any event be entitled to receive or collect; nor shalt any amounts received hereunder be credited, so that Landlord shall be paid, as interest if any, a sum greater than the maximum amount. permitted by applicable laNv to be charged to the person, partnership, firm, corporation, or other legal entity primarily obligatedto make payments under this Lease Agreement. if any construction of this Lease Agreement indicates a different right given to Landlord to ask for, demand or receive any larger sum as interest; if any, such is a mistake in calculation or wording which this clause shall override and control; it being the intention of the parties that this Lease Agreement shall in all things strictly comply and conform with applicable la-%v. In the event -that the aggregate of all consideration which constitutes interest under applicable law That is taken, .resenPed; contracted for, charged or received under this Lease Agreement, 'if any; and- any other documents executed in connection herewith shall ever exceed the maximum 'non usurious .rate under applicable law; any sum in excess thereof shall be applied to the accrued -and -unpaid rent due under this Lease Agreement and if such Page 4. accrued and unpaid rent 'is paid in full. the remaining excess. if any, shall be paid to the Tenant: IV. RIGHTS AND OBLIGATION'S OF TENANT A -USE OF LEASED PREMISES. Tenant's use of the Leased :Premises is limited solely to -the maintenance and use.of the Improvements shown on the Site Plan and As -Built .Plans -in conjunction with Tenants Property as-, or connected with; the operations of a restaurant business business related to Tenant's property, unless Landlord. gives its advance written approval. to the contrary.. B. STAND A"S. Tenant shall meet or exceed the following standards: I. Address. Tenant shall file with the City �yianager, or his designee,and keep current. its mailing addresses, telephone numbers and contacts where it can be reached in an emergency. 2. List. Tenant shall file with the City Manager. or his designee and. keep current - a list of its permitted tenants and subtenants. i..Conduct. -Tenant -shall contractually require its employees and permitted subtenants (and subtenants invitees) to abide by the terms of this Lease Agreement. - Tenant shall promptly enforce its contractual rights in the event -of a. default of such covenants. 4. Utilities. Taxes and Fees. Tenant shall meet. all expenses and payments in connection with -the use of the -Leased Premises and the rights and privileges -herein granted; including the timely payment of, utilities, taxes, permit fees, license .fees and assessments lawfully levied or assessed. 5. Laws. Tenant shall comply with all current and fixture .federal, state and local laws; rules, ordinances and regulations which may apply to the conduct of business contemplated on the Leased Premises; including without limitation; rules, regulations and ordinances promulgated by Landlord; and Tenant shall keep in effect and post in a prominent place all necessary and/or required licenses or permits. 6. 'Maintenance of Leased Premises. Tenant shall be responsible for the `maintenance, repair and upkeep of the Improvements, and the mowing and maintenance of Brass. other vegetation and landscaping on the Leased Premises, and shalt keep the Leased Premises neat, clean and in respectable condition. as determined by Landlord, free from any objectionable matter or thing, including trash or debris. T Unauthorized use of Leased Premises. Tenant may not use any of the. Leased Premises for any use not.authorized herein unless Landlord gives Tenant prior Page 3 «rritten approval -of such additional or different use. $. Quit Possession: Tenant shall quit possession of the. Leased Premises at the end of the Lease Term, or- upon cancellation or termination of the Lease !agreement; and deliver up the. Leased Premises to Landlord in the condition originally leased to Tenant, with the Improvements being removed as provided in Article I.C.. above. y 9.. Indemnity: Tenant shall indemnify; hold harmless and .defend and herebv releases the Landlord. its officers, agents; elected officials and employees; from and- aeainst 'liability, of any kind, type or nature, for or related to any and all' claims, liens, suits. demands, losses and/or actions- for damages, injuries to persons (including death), property damage. (including loss of use), and expenses. including court costs; attorneys' fees and other reasonable costs; occasioned by, related 'to or incidental to the Tenant's, Tenant's invitees, licensees; customers. visitors, emplo}Tees, agents. and any other - persons occupancy or use of the "Leased Premises or activities conducted in connection -with .or incidental. to this Lease Agreement, including without limitation; :all such claims, liens, suits, demands, losses and/or actions based on common, constitutional or statutory law. or based in whole or in part upon the negligent or intentional acts or omissions of Tenant, its officers, agents, employees. invitees. licensees; customers. visitors or any other persons. Jenant; shall .at all times exercise reasonable precautions on behalf of; and be, solely responsible for;: the safety of its officers. employees.. agents, customers, visitors, invitees.. licensees and other- persons. as well as their- property and theLeased Premises; while in, on,. or involved in, any way with the use of the %Leased Premises. The Landlord is not liable or.responsible for the negligence or intentional, acts or omissions of the Tenant. its officers, agents, emplo}°ees, age nts..customers., licensees, invitees.. visitors and other persons and Tenant hereby releases Landlord, its officers, agents, elected -officials; and employees from same. The Landlord, shall assume no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects. wh 'ther real or alleged; which ma}r now exist or which may - hereafter arise upon the Leased_Premises. responsibility for all such defects. being expressly. assumed by the Tenant. Without limiting the general nature of the foregoina, the Tenant agrees that this indemnity provision applies to. among all matters as prescribed herein, all claims, suits, demands, and actions arising from all premise defects or conditions. THE LANDLORD.AND THE TE\;ANIT EXPRESSLY INTEND. THIS 'rNDEMNITY AMID ':RELEASE PROVISION' TO :REQUIRE TENTANT Al\ID HEREBY DOES REQUIRE TENTANT TO I\DEMNI FY. HOLD HARMLESS AN DEFEND- THE LA- IDLORD. ITS OFFICERS. AGENTS. ELECTED OFFICIALS AND EMPLOYEES AND TENANT HEREBY RELEASES LANDLORD. Ai\D LANDLORDS OFFICERS. AGENTS. ELECTED OFFICIALS AND EMPLOYEES FROM THE -CONSEQUENCES. OF THE LANDLORD'S OWN NEGLIGENCE. OF Page 6 - ANY KfND. TYPE OR DEGREE. WHERE THAT \NEGLIGENCE IS A CAUSEAN WHOLE OR IN PART. OF THE MIJURY. DEATH. OR DAMAGE. THE - fINDEM-LAITY CONTAINED I\ THIS PARAGRAPH (A) IS INMEPENDENT OF TENANT'S INSURANCE, (B) WILL NOT BE LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES PAID UNIDER THE WORICERS� COMPENSATION ACT OR. SIMILAR EMPLOYEE BENEFIT ACTS, (C) WILL SURVIVE THE END OF THE TERM. AND (D) WILL APPLY EVEN IF ANI INJURY IS GAUSE.D [I WHOLE OR IN PART BY THE NEGLIGENCE OR STRICTLIABILITY OF LANTDLORD, BUT WILL *NOT'APPLY TO THE EXTENT AN INJURY IS CAUSED BY THE L-ANDLORD-"S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANIDLORD. C. SIGNS.. No signs, posters, or other similar devices C Signage") shall be placed on. the- exterior of the Improvements or on any portion of the Leased Premises without the -prior written approval of Landlord and shall be in conformance with the Denton City Code. `Tenant; at its sole expense,_ shall be responsible for the creation, installation and maintenance of all: such Signage. Without limiting the generality of article IV.13.9., above., Tenant shall pay to Landlord any -and all damages, injuries, or repairs resulting from the installation; maintenance or repair of any such Signage. Any Signage. placed on the Leased Premises shalt be maintained at all times in a safe; neat, sightly and food physical condition. .A.II Signave shall --be removed from the Leased Premises by Tenant immediately upon receipt of instructions for removal of same from Landlord, including without limitation, upon expiration or termination of this Lease Agreement. If Tenant fails to remove the Sigriage- within 90 days after termination or upon instruction by .Landlord, as the case may be, then the Landlord -may -do so at the sole cost and expense of the Tenant. Tenant shall pays .Landlord such costs. of .removal within 30 days after receipt of an invoice from the Landlord. If the invoice _is -not paid within said time. period a lien is hereby granted by. Tenant: and is established against Tenant's Property to secure payment. In such case Landlord is authorized by Tenant to file an affidavit in the Denton County Real Property Records against Tenant's Property to evidence the lien. D. E\'TRY. Landlord and its designees shall have the right to enter the Leased Premises upon reasonable advance, notice (written or oral) and at any reasonable times for the- purposes of. 'inspecting the Leased Premises, and performing any work which Landlord elects to perform under this Lease Agreement. Nothing in this section shall impIw any duty upon Landlord to do any work, which under any other provision of this Lease Agreement Tenant is required to perform, and any performance by Landlord shall not constitute a waiver of. Tenant's default. I.n. the event of an emergency, as determined 'by Landlord, Tenant, by and through the City of Denton Fire Department, City of Denton .Police Department:, or other department or agent of the Landlord, as applicable, may enter the Leased Premises without the notice prescribed herein. Pape 7 V. COVENIA\rTS BY LANDLORD Landlord hereby agrees as follows: PEACEFUL ENJOYMENT. Upon payment of all rent, fees; and performance- of the covenants and agreements on the part of Tenant to be performed hereunder; and subject. to the terms Of this Lease. Agreement: Tenant shall peaceably hold and enjoy the .Leased Premises and all rights and privileges herein granted. Nlot%vithstanding the foregoing, the parties understand and stipulate that the Leased Premises constitutes city propemt. In that regard. Landlord shall not be liable to Tenant in the event a court of competent jurisdiction enjoins :Tenant from using the Leased Premises under this Lease Agreement for any reason. In such case, Tenant's sole and exclusive remedy will be termination of the Lease Agreement. \11. ASSIG\TiENT OF LEASE. - Tenant shall not assign or sublet this Lease Agreement, in whole or in part; without the �vntten consent of .Landlord; which consent ��rill not be unreasonably withheld. Any attempted assignment or sublease of this Lease Agreement without the written consent of Landlord shall be void. VII. INSURANCE A. REQUIRED f SU NCE. Tenant shall maintain continuously in effect at all `times during the -Lease Term; at Tenant's sole expense. the following minimum insurance coy=erages:� 1. Comprehensive Commercial (Public) General Liability covering the Tenant and its company, its employees. agents, tenants; customers. invitees and independent contractors. Coverage shall be in an amount not less than S l ;Oa0;000 per occurrence, and provide coverage for premises/operations; products/completed operations and.contractual liability. 2. All risk property insurance: on a replacement cost basis covering loss or damage to the Improvements Without limiting the generality of Article I1J.B.9.; above, under no circumstances shall the Landlord be liable for any damages to f�-tures. merchandise or other personal property of the Tenant or its tenants, including the Improvements. B. COVER.�kGE REQU-IREME_N17S. All insurance coverages shall comply with the following requirements: I . All liability policies shall name the, Cite of Denton, and its officers and employees as additional named .insureds and provide for a minimum of 30 days written notice Page 8 to the City of any, cancellation or material change to the policy. 2. All insurance required by this Lease Agreement must be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas. All policies are subject to the examination and approval of the Cites office of Risk Management for their adequacy as to content, form of protection and -providing company. 3. Required- insurance naming the City as an additional insured must be- primary insurance and not contributing with any other insurance available to the City whether from a third party liability policy or other. Said limits of insurance shall in no way limit the liability of the Tenant hereunder. 4, The Landlord shall be provided with a copy of all such policies and renewal certificates: Failure of Tenant to comply with the minimum specified amounts or types of insurance as required by Landlord shall constitute Tenant's default of this :Lease Agreement. 5. Durin2 the Lease Term; or any extension thereof. Landlord herein reserves the right to adjust or increase the liability insurance amounts required of the Tenant, and to require any additional rider; provisions; or certificates of insurance, and Tenant hereby agrees to provide any such insurance requirements as may be required. by Landlord. VIII.." DEFAULT OF TE\ANIVREMEDIES OF LANDLORD A.. DEFAULT. an -the event. that Tenant shall file a voluntary petition in bankruptcy or proceedings in bankru tcy shall be instituted against it and Tenant thereafter is adjudicated bankrupt pursuant to such proceedings; or any court shall take jurisdiction of Tenant and its assets pursuant to proceedings brought under the -provisions of any Federal reorganization act; or -Tenant shall .apply for or consent to -the appointment of a receiver; ,.trustee; or liquidator of itself -or all or a substantial, part of its assets; or Tenant shall be divested of its estate herein by other operation of law; or Tenant shall fail to perform, keep and. observe any of the terms, cotenants. or conditions herein contained.. or on its part to be performed; Tenant shall be in default under this Lease Agreement. and the Landlord may give Tenant written notice to correct. such. condition or cure such default and. if any condition. or. default shall be continuing thirty (30) days after the receipt of such notice by Tenant, then Landlord may exercise any right or remedy available to it by law, equitp; contract or otherwise, including without limitation, termination of this.Lease Agreement. I.X. CANCELLATION AND REMEDIES OF TENANT A..IUDICUL ACTION. Tenant. may cancel this Lease Agreement and terminate its obligations hereunder by thirty (30) days written notice to Landlord: upon or after the issuance by any court of competent jurisdiction of a permanent injunction preventing or Page 9 restraining its use of the Leased Premises or any part thereof for purposes and uses authorized by this Lease Agreement. B. CO WENIENCE. Tenant may cancel this Lease Agreement and terminate its obligations hereunder anytime after July 31, 2012, by thirty (30) days written notice to Landlord. C. RENT PAY1'IE\TS/RESTO.RATIOi\'. In the event of the cancellation of this Lease_ Agreement pursuant to the terms of Article IX.A. or Article IX.B., above; Tenant shall promptly remove any and all improvements made to the Leased Premises and shall restore the Leased Premises to the condition found prior to possession pursuant to the. terms stipulated in Article I:C. Landlord shall be entitled to retain the balance of any and all rent payments and the parties shall have no further obligations to each other, except for Tenant restoration of the Leased Premises as set. forth herein. D. DEFAULT. In the event of a material breach by Landlord of any of the covenants or agreements contained herein and the failure of Landlord to remedy such breach after ninety (90) days of receipt of w6tten notice of the existence of such breach provided by Tenant to .Landlord, .then the Tenant; as its sole and exclusive remedy for such breach by Landlord may terminate this Lease Agreement- X. MISCELLANTEOUS PROVISIOMS A. ENTIRE AGRE, E`JIENTT. This Lease Agreement constitutes the entire understanding between the parties and as of its Effective Date supersedes all prior or independent agreements between the parties covering the subject matter hereof. Any change or modification -hereof shall `be in writing signed by both parties. The Recitals of this Lease Agreement are represented by- the parties hereto to be accurate, and constitute a part of the substantive agreement. B. .911NMING EFFECT. All covenants, stipulations and agreements herein shall extend to, bind and inure to the benefit of the legal representatives, successors and permitted assigns of.the respective parties .hereto. C. SEVERABYLITY. If a provision hereof shall be finally declared void or illegal by any:courtor administrative agency having jurisdiction; the entire Lease Agreement shall not be void; but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. D. NOTICE. Any notice given by one party to the other in connection with this Lease Agreement shall be in writing, and' shall be sent by certified mail, return receipt requested, with postage fees prepaid, or via facsimile as follo.vs: Page 10 1 If to Landlord, addressed to: City Manager 215 E. McKinney Denton, Texas 76201 Fax No.-, 940.349:859b xv/copy to: Director of Economic Development City of Denton 215 East McKinney Street Denton. Texas 7620.1 Fat.'io. 940349.8596 ?. If to Tenant: addressed to: A:RG East Hickory Partners L-LC c/o Elk River Real Estate » 11 N 1-35, Suite 1.40 Denton, TX 76207 `Fax No. 940.381.4906 Notice- shall be. deemed received for all purposes .when placed in the 'United States mail: as set forth herein, or when delivered by telephonic facsimile to the other party at the facsimile numbers) provided above. E: HEDI;\GS. The .headings used in this Lease Aereemenf are intended for convenience':of reference only and do not define or limn the scope or .meaning of any provision of this Agreement. F. GOVER_IN�'G L NNI AND VE\ZTE. This Lease Agreement is to be construed - in accordance with the laws of the State of Texas and is fully performable in Denton Count}'. Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease. Agreement shall be a court of competent jurisdiction in Denton County Texas. G. NO IVER. No waiver by Landlord or Tenant of an}� default or breach of W. covenant orterm of this. Lease Acgreement may be treated as a waiver of any subsequent default or breach. of the same- or any other covenant or term of this Lease Agreement. H. - NO'AGENCY. During all times that. this .Lease Agreement is in effect: the parties agree that Tenant is and shall not be deemed an agent or employee of the Landlord. Nothing. contained herein shall be construed to create a joint venture, partnership or joint .enterprise. L - SURVIVAL•. The terms and provisions of Articles :I.C.; 111.B.; IV.B. and IV.C., shall survive the termination of this Lease Agreement. Page l 1 J. 'DELEGATION. Any action that is to be or could be taken by the Landlord hereunder is hereby delegated by the City Council of the City of Denton to the City Manager or his designee. K. RECORDATION. This Lease Agreement shall be recorded in the Real Property Records of Denton County, Texas. Upon termination of this Lease Agreement as provided herein, either party may request. the execution and delivery of a Memorandum of Release (herein so called) to be :recorded in the Real Property Records: Denton County, Texas, as constructive' notice of termination of this Lease Agreement_ The execution and delivery of the'Memorandum of'Release shall not be unreasonably withheld by either party. L\ NV1I1'ESS 'W'HEREOF, the parties have executed this Lease Agreement as of the Effective Date first above written. LANTDLORD: CITY OF DE\TTO\; TEXAS BY: GEORGE C. CANIPBELL, CITY MANAGER ATTEST: 1ENIN.IFER WALTERS. CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: A?�T1TA.BURGESS, CITY ATTORNrEY BY: Page 12 TENANT: ARG East.Hickory Partners, LLC, a Texas limited liability company By: ' ERI Hickory Industrial; L.P., a Texas limited partnership = \Member By: ELK RIVER.MWESTNIENITS,1NC., a Texas corporation — General Partner By: Title: ACKN0WLEDGNTENTS THE STATE OF TEXAS 5 COUNTY OF DE\TON 5 'This instrumentwas acknowledged before me on the day of .2009 by George C. Campbell, City Manager of the City of 'Denton, Texas, on behalf of said municipality. NOTARY_PUBLIC, STATE OF TEXAS THE STATE OF TEXAS 5 COUNTY OF DENTON This instrument %xas aclmowledeed before me on the day of , ?009 : by . of ELK RIVER 11TVESTME\rTS, fNrC., a Texas corporation. the General Partner of ERI — Hickory Industrial, L.P., a Texas timited _partnership, a .Member. of ARG HickoryPartners, LLC, a Texas limited liability company, for and on behalf of the said ARG East Hickory:Partners, LLC. Upon Recording, Please Return To: The City of Denton 901-A Texas Street Denton, TX 76209 Attu: Paul Williamson Paee 14 ATTACHMENT '.A.* :21021:4 E. HICKORY- STREET ALL THAT CERTAIN TRACT OR"PARCEL OF LAND LYING AND BEING SITUATED IN THE H. SiSCO SURVEY, ABSTRACT NUMBER 1184, DENTON COUNTY, TEXAS, AND BEING PART OF LOT 3, BLOCK 20, ORIGINAL TOWN OF DENTON, AN ADDITION TO DENTON COUNTY, TEXAS, RECORDED IN VOLUME 4, PAGE 53, DEED RECORDS, DENTON COUNTY, TEXAS AND ALL OF A TRACT DESCRIBED IN A DEED TO THE ADAMS TRUST: RECORDED UNDER DEED.NUMBER 2007-132305, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS BEGINNING AT A 1/2 INCH IRON PIN FOUND AT THE SOUTHEAST CORNER OF SAID ADAMS TRACT -AND THE NORTHEAST CORNER OFA TRACT DESCRIBED IN A DEED -TO @EULAH COOK GAY, RECORDED"IN VOLUME 739, PAGE.708, DEED RECORDS, DENTON COUNTY, TEXAS, SAID PIN ALSO BEINO ON THE.WEST LINE OF INDUSTRIAL STREET - .THENCE NORTH 89"DEGREgS 41 MWUTES.04 SECONDS WEST•WITH THE"SOUTH LINE OF SAID ADAMS TRACT AND THE NORTH *LIN60F SAID GAY TRACT„A OISTANCEOF 80:00 FEET TO A 1R INCH'IRON PIN FOUND AT THE SOUTHWEST CORNER OF SAID ADAMS.TRACTAND THE NORTHWEST CORNER OF SAI6.6AY TRACT, SAID PIN.ALSO BEING ON THE EAST LINE OF A TRACT DESCRIBED IN"A DEED TO THE CITY OF DENTON, TEXAS, ' : RECORDED IN VOLUME 175, PAGE 464. DEED RECORDS, DENTON COUNTY, TEXAS; THENCE NORTH QO DEGREES OO MINUTES 04 SECONDS EAST WITH THE WEST LINE OF•SAID ADAMS TRACT AND THE EAST LINE OF SAID CITY OF DENTON TRACT, A DISTANCE,OF 92.16 FEET TO.A BRICK BUILDING -CORNER AT THE NORTHWEST CORNER OF SAID ADAMS TRACT AND THE NORTHEAST CORNER OF SAID CITY OF DENTON TRACT;'SAID BRICK BUILDING CORNER ALSO BEING ONTHE SOUTH LINE OF HICKORY STREET: THENCE SOUTH. 89 DEGREES 34.MINUTES 30 SECONDS EAST WITH "THE NORTH LINE OF SAID ADAMS TRACT -AND THE SOUTH LINE OF. HICKORY STREET, A DISTANCE OF.80.00.FEET TO A BRICK BUILDING CORNER AT THE NORTHEAST CORNER OF SAID ADAMS TRACT AT THEINTER$ECTION :OF THE.SOUTH LINE OF HICKORY STREET AND THE WEST LINE. OF INDUSTRIAL STREET, SAID CORNER' BEING THE NORTHEAST CORNER OF.SAID LOTS, BLOCK 20; - THENCE SOUTH WITH THE EAST LINE OF SAID ADAMS TRACT AND THE WEST:LINE OF INDUSTRIAL STREET, N DISTANCE OF.92.01 FEET TO THE ; POINT OF$EGINNING AND'CONTAININR IN ALL 0.1i ACRES OF LAND: :. WROM WARMIR MR, ll WE ?Boff PK flLe: BUDG. CORVFW COA •• �'; NER. R S� S4 H Sls�p ? NO:.11' . GN1 vI.O 3, BLOCK 20. �,: , •,_� . ORIOWL TOWN O w OF '6ENroN - :� VOLUME 4. PACE 53 OR 0.17 ACRES $ 210-214 E. HICKORY ST. • 1 STORY BRICK BUILDING ' ''• " �' �� b THE ADAMS TRVST ON -2007-132305 Q CIiY.OF l75.' )i :TE�lhY: RPR RE CE 4[i VOLUME 1 O Pjdi£•+64. 1 ; j Z M TELEPHONE COrtetO,' BOX r. . ••pF DEgngp:: ` .... •• VOLUME.4;'At� $ • PC1U ND Ur .N 89'41'04 W 80.00: '� ' .•.�•JRON PW BEULAH COOK:CAY VOLUME 739, PAGE 708 �• - '.•:.•, OR POINT OF BEGINNING . • • "'a•' LOT 3: BLOCK 20 ORSOK&L' TOWN • OF DENTON • ? VOLUME 4. PAGE 53 OR NOTES:. . .'EASEMENTS.SHOWN HEREON AREAS LISTED -IN, THE TITLE RESOURCES GUARANTY COMPANY S TITLE COMMITMENT GF No. 281676, EFFECTIVE DATE JANUARY 16, 2008. NONE LISTED. BEARING OF -SOUTH IS BASED ON THE EAST LINE OF THE TRACT DESCRIBED IN A DEED TO THE ADAMS-TRUST,•RECORDED UNDER DEED NUM' BER.2007-132305, REAL PROPERTY RECORDS. DENTON COUNTY, TEXAS. BY GRAPHIC PLOTTING ONLY, THIS PROPERTY IS WITHIN ZONE'X', AREAS:DETERMINED TO BE OUTSIDE OF A`DESIGNATED 100 YEAR OR.500 YEAR FLOODPLAIN AS SHOWN BY FIRM MAP •.'COMMUNITY -PANEL NUMBER 48121C0360 E, DATED AP RIL 2, 1997. NO SURVEYING WAS PERFORMED TO DETERMINE THIS FLOOD ZONE. SURVEYORS CERTIFICATE I, BRAD G. SHELTON, DO HEREBY CERTIFY THAT SURVEY WAS MADEONTHE GROUND THIS 28M -DAY OF FEBRUARY, 2008 OF -THE PROPERTY DESCRIBED HEREON AND THERE ARE NO (VISIBLE) ' HERR�0IPRO'/%% OR C±VER RING OF7MPROVEMENTS, EXCEPT AS SHOWN GIF No. 281076 DWN. JRH 'SCALE ...-m-etroplex.- cxD, DATE.. M:RK 02/28l08 . sow n C ■ : REV. JOB NO...' •. 'i) ma-05 6-M.W:-H1 KORY DENTON T XA ex9urvelrirl .corn ATTACHMENT "B" ATTACHMENT "C"