2009-129
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RevokedandterminatedbyOrdinanceNo.201300901/15/13JR
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\ordinanccs\09\arg lease ordinance-2009.doc
PASSED AND APPROVED this 0~ day of QM& 12009.
Of da p
A. B ZI~OL
G S, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPR ED AS LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
'EXH I BIT "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".
WITNIESSETH:
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 'W. attached hereto and made a part hereof for "all
purposes C`Tenant-s Prope.rty'*); and
tVHEREAS'. Tenant has requested that it be allowed to lease a portion of the land
owned b}'Landlord adjacent to Tenant- s Propemr in order to construct, occupy and maintain
a patio area in.conj unction 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:
1. LEASED PRENOSES
Landlord, for and-in consideration of the covenants and agreements herein contained,
to be kept by Tenants 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: L1}IPROVEytE\=TS PROVIDED BY 'LA'`°DLORD. \O\NE: There will be no
improvements provided by Landlord:
C. IMPROVEMENTS 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 shall be commenced no later than
August 1; 20.1:1.. 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
certif cafe of occupancy for the Improvements (the "Construction Deadline'
;otivithstanding anything contained in this Lease :agreement to the contrary, a
failure to meet the Commencement Deadline or the Construction Deadline may, at the
sole option and discretion ofthe Landlord, result in the immediate termination and
cancellation of this Lease Agreement- upon 30 days -written notice of cancellation to*
Tenant: In such ease, Tenant's rights under the Lease 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
mav. do- 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 herebyF 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 Real Property Records,
Denton Countyi,~Texas-against t`enant's Property to evidence the lien.
D. APPROVAL. OF CONSTRUCTION PLAINS. Prior to commencing
construction of the Improvements. Tenant: shall submit to Landlord construction plans for
reyiext► and,. approval. to'make certain that, the construction plans are in conformity with the
._.-'Site Plan.- -This review-is-in 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
acti'ities shall. commence prior to approval: of the construction plans by Landlord.
D. SAFETY NIEASURES DUR!"NG CONSTRUCTION. Tenant shall be
responsible for -proViding all safety measures during construction, such as barricades, to
insure.,-that 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. Nothine contained 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 T.E\ANIT IN ITS PRESENT COti'DITIOi i AS IS.` ' '`~~jHERE IS'' AND
"VITH. ALL FAULTS". TENANT STIPULATES THAT IT HAS THOROUGHLY
INSPECTED THE:LEA:SED PREMISES AIND FONDS THAT THE LEASED PREMISES
I=S' CURRENTLY SUITABLE FOR THE .USES PEMMITTED BY THIS LEASE
AGREE
ME- N
T. LANDLORD MAKES \;O REPRESENTATION' OR WARRANITIES
OF AW KL~€D OR NATLJRE CO\CERI\IING THE LEASED PREMISES, INCLUDI\G
PagCA 2.
WITHOUT . LIMI.TATION,- ~VARRANI TI:E~S. OF 1 ABITAWLITY* OR FITNESS FOR
PARTICULAR : PURPOSE OF - USE.. TENANT HEREBY -STIPULATES TO
I A'`rDL ORD;THATs 'DUE, TO IT,
L~tSPECTIO\~ OF THE LEASED PREvfISES, IT LS
AWARE OF TNE: CON[DITIONN OF-THE-LEASED PREMISES.
11. TERM
The. term of this Lease Agreement shall be for a period of 30 }rears; commencing on
the]' day of Auwst, 2009 and continuing through. the.-3 i" day of July, 2039; unless earlier
terminated under the Provisions of the Lease Agreement (the ' Lease 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 .REDNTAL.:Rent shall lie due and payable in the sum of S 1.00 per-square
foot.per'~ear or 51,437 per }ear (the `°Onginal'Rent"), payable annually in advance,-~~►rith 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`S lrT. PENALTY. ADJUSTNZE`=TS. All payments due Landlord from
Tehiinr shall -be made to"Landlord' afthe-offices of the Director of _Economic. Development
as provided ri Article XD. belo%V.* unless 'other%vise. designated in %Arri by the. Landlord.
Ifa 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. be. due. 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 payment is not made within 15 days of, notice to Tenant; this Lease is terminated
without the hecessit of any further action by Landlord. In that event. Tenant shall pro* mptly
remove any and all improvements made to t_he: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 Labor Statistics. Thereafter, -the .Ori ginal :Rent shall be readjusted in the
;fears 20:15.2018; 2021; 2024. 2027. 2030, 2033, and 2036.
The adjustments in the annual rent shall be determined by multiplying the Original
:Rent by a'-. 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 Tenant. shall. 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 twenty 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-
Foa 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 fnanciai
authority selected by Landlord.
= Should -any fares be -levied against the. Leased 'Premises or the lmprovements,
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 lau, to be charged to the person, partnership, firm, corporation, or other legal
entity primarily obligated. to 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..rmrved, 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. construction; 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 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 Manager, 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 subtenant's 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, tales, permit fees,
license. ees 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.
S. 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.. Indemnit y: Tenant shall indemnify; hold harmless and defend and hereby
releases the Landlord. its officers, agents. elected officials and employees,
from and- aeainst 'liability, of any kind; type or natures 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, Iicensees; customers. visitors, employees; 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, employees,
agents, 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. whether real or alleged; which ma1r 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 R~iLESS AND DEFE~~D- THE LANDLORD. ITS OFFICERS.
AGENTS. ELECTED OFFICIALS AND EMPLOYEES AND TENANT
HEREBY RELEASES LANDLORD. Al\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
CAUSE.:I\ WHOLE OR rN PART. OF THE MIJURY. DEATH. OR
DAMAGE.
THE - f\NDEtKNITY CONTAINED I\ THIS PARAGR:4PH (A) IS
INMEPENDENT OF TENANT'S INSURANCE, (B) WILL NOT BE
LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR
DAMAGES PAID UNDER THE WORKERS~ COMPENSATION ACT
OR. SIMILAR EMPLOYEE BENEFIT ACTS, (C) WILL SURVIVE THE
END OF THE TERM. AND (D) WILL APPLY EVEN IF AN INJURY IS
.CAUSED [N' WHOLE OR f\ N PART BY THE NEGLIGENCE OR
STRICT LIABILITY OF LANDLORD, BUT WILL *NOT'APPLY TO THE
EXTENT AN INJURY IS CAUSED BY THE L-ANDLORD-"S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD.
C. SIGNS.. No signs. posters, or other similar devices Sianage") 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 benerality of article IV.B.9., above,
Tenant shall pay to Landlord any -and all damages. injuries, or repairs resulting from the
installation.; maintenance or repair of any such Signagz. Any Signage placed on the Leased
Premises shalt be maintained at all times in a safe, neat. sightly and good physical condition.
.A.ll Signage 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
Sighage- 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. NTothing in this section shall
imp Iy 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 ENJOYNIE\T. 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.
\1I. ASSIG\TiENT OF LEASE.
- Tenant shall not assign or sublet this Lease Agreement; in whole or in part; without
the ,t=ritten 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.
VIr. INSURANCE
A. REQUIRED MDRANCE. Tenant shall maintain continuously in effect at all
times during the -Lease Term; at Tenant's sole expense. the followin, 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 I ;000;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 IV.B.9., above, under
no circumstances shall the Landlord be liable for any damages to fixtures,
merchandise or other personal property of the Tenant or its tenants. including the
Improvements.
B. COVER.~kGE REQU-IREVIEN17S. 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. During 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; equity,
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. CONVENIENCE. 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/RESTORATIOi\'. 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 LC. 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 AGREE`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. .9I1NMI\G 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. S£VERABII:ITI'. If a provision hereof shall be finally declared void or illegal
by an}J:court'or 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 follows:
Pace 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. 940 349.8596
If to Tenant: addressed to:
ARG 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 number(s) provided above.
E: HE DIGS. The .headings used in this Lease Aereement are intended for
'convenience': of -reference only and do not define or limit the scope or .meaning of any
provision of this Agreement.
F. GOVER_IN'G LA`N' AND VENWE. 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 W. IVER. No waiver by Landlord or Tenant of any default or breach of
covenant or. term of this.Lease Agreement 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 SUR«VAL•. 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 deliver= of
the'Memorandum of Release shall not be unreasonably withheld by either party.
L\ NV1I1'ESS'W'HER:EOF, the parties have executed this Lease Agreement as of the
Effective Date first above written.
LANTDLORD:
CITY OF DE\TTO\, TEXAS
BY:
GEORGE C. CAMPBELL,
CITY MANAGER
:ATTEST:
JENNIFER WALTERS. CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
A?~T1TA.BURGESS, CITY ATTORNrEY
BY:
Page 12
TENANT:
A:RG East.Hickory Partners, LLC,
a Texas limited liability company
By: ' ERI Hickory Industrial; L.P.,
a Texas limited partnership = \4ember
By: ELK RIVER.MWESTNIENITS,1NC.,
a Texas corporation - General Partner
By:
Title:
ACKN0WLEDGNTENTS
THE STATE OF TEXAS 5
COLJNTY 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 DENI TONT-
This instrument %vas acknowledeed before me on the day of , ?009
: by . of ELK RIVER 11TVESTM:E\rTS,
fNrC., a Texas corporation. the General Partner of ERI - Hickory Industrial, L.P., a Texas
limited _partnership, a.Member. of ARG Hickory` Partners, LLC, a Texas limited liability
company, for and on behalf of the said ARG East Hickory:Partners, LLC.
NOTARY PUBLIC, STATE OF TEXAS
Page 1.3
Upon Recording, Please Return To:
The City of Denton
901-A Texas Street
Denton, TX 76209
Attn: Paul Williamson
Paee 14
ATTACHMENT '.A.*
"36783 .
: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
. ~ FOLLOVdB;.. "
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
BEING ON THE.WEST LINE OF INDUSTRIAL STREET-
THENCE NORTH 89_DEGREIRS 41 MgVUTES.04 SECONDS WEST•WITH THE-SOUTH LINE-OF SAID ADAMS TRACT AND THE NOR1Ti LIN60F SAID GAY
TRACT„A DISTANCE-OF 80:00 FEET 70 A 1R INCH'IRON PIN FOUND AT THE SOUTHWEST CORNER OF SAID ADAMS.TRACTAND THE NORTHWEST
CORNER OF SAID.GAY TRACT, SAID PIN.ALSO BEING ON THE E4ST 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 00 DEGREES-00 MINUTES 04 SECONDS EAST WITH THE WEST LINE OFSAID ADAMS TRACT AND THE EAST LINE OF SAID GTY 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 ON"THE SOUTH LINE OF HICKORY STREET:
THENCE SOUTH. 89 DEGREES 34MINUTES 30 SECONDS EAST WITH THE NORTH LINE OF SAID ADAMS TRACT-AND THE SOUTH LINE OF. HICKORY
-STREET, A DISTANCE OF.80.OO.FEEr 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 0.1? ACRES OF LAND:
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VOLUME 4. PACE 53 OR
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• 1 STORY BRICK BUILDING
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• ? VOLUME 4. PAGE 53 OR
NOTES:. .
."EASEMENTS.SHOVVN HEREON AREAS LISTED-IN, THE TITLE RESOURCES GUARANTY COMPANY S
TITLE COMMITMENT GF No. 281076, 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 APRIL 2, 1997. NO SURVEYING WAS PERFORMED
TO DETERMINE THIS FLOOD ZONE.
SURVEYORS CERTIFICATE
I, BRAD G. SHELTON, DO HEREBY CERTIFY THATA SURVEY WAS MADEONTHE GROUND THIS 28th
-DAY OF FEBRUARY, 2008 OF-THE PROPERTY DESCRIBED HEREON AND THERE ARE NO (VISIBLE) '
HERR~OPROOR AVER RING OF7MPROVEMENTS, EXCEPT AS SHOWN
GIF No. 281076
DWN. JRH SCALE
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CKD. DATE. .
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sow g t~l r1/~y~ g Inc. : REV. JOB NO...'
940387-05 6 223.W: HICKORY, DENTON T XA .76201 InfoC~ exsurvev(rl .corn :357:83...;.
ATTACHMENT "B"
ATTACHMENT "C"
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