HomeMy WebLinkAboutPR 21538: AUTHORIZING A LEASE AGREEMENT WITH AURORA CAPITAL HOLDINGS, LLC P.R. No. 21538
09/02/2020 gt/vrt
Updated vrt
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A
LEASE WITH AURORA CAPITAL HOLDINGS LLC, A DELAWARE
LIMITED LIABILITY CORPORATION FOR THE PROPERTY LOCATED
AT 449 AUSTIN AVENUE, PORT ARTHUR TEXAS FOR A PERIOD OF
EIGHTEEN (18) MONTHS
WHEREAS, pursuant to Ordinance No. 20-79, the City Council authorized the City
Manager, or his designee, to sell the property located at 449 Austin Avenue to Aurora
Capital Holdings LLC, a Delaware Limited Liability Corporation; and
WHEREAS, pursuant to the Sales and Purchase Agreement, Seller and Purchaser
agree to finalize a lease agreement (the "Lease") contemporaneous with the Sales and
Purchase Agreement and other accompanying sales documents, which will allow the City of
Port Arthur to continue the operations of its Health Department and designated parking
area for a period of eighteen (18) months to facilitate the relocation of the City's Health
Department to a new location; and
WHEREAS, commencing on the effective date of the lease and continuing
thereafter throughout the 18 (eighteen) month term, the City shall pay to the new property
owner, Aurora, a monthly base rent of Twelve Thousand Dollars ($12,000.00); provided,
however, so long as the City is not in default under this Lease, the Rent shall be abated for
the stated Term of this Lease (not including any holdover period).
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That pursuant to Ordinance No. 20-79, the City Manager is authorized
to execute a Special Warranty deed for the sale of the property at the time of closing and
further authorizes the City Manager to enter into a Lease Agreement with Aurora Capital
Holdings LLC for the property located at 449 Austin Avenue for a period of eighteen (18)
months to facilitate the relocation of the City's Health Department to a new location in
substantially the same form as attached hereto as Exhibits "A and B".
Section 3. That a copy of the caption of this Resolution shall be spread upon the
Minutes of the City Council.
READ, ADOPTED, AND APPROVED, this day of , 2020 AD,
at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following
vote: AYES:
Mayor: ,
Councilmembers: ,
,
NOES: .
Thurman Bill Bartle, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED AS TO FORM:
(keValecia R. Tizeno, Ili Attorney
APPROVED FOR ADMINISTRATION:
tettOr
Ronald Burton, City ": ager
EXHIBIT "A"
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING
INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER,
OR YOUR DRIVER'S LICENSE NUMBER.
SPECIAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF JEFFERSON §
That CITY OF PORT ARTHUR,TEXAS("Grantor"),for and in consideration of the sum of Ten and
No/100 Dollars ($10.00) cash and other good and valuable consideration paid by AURORA CAPITAL
HOLDINGS LLC, a Delaware limited liability company with a mailing address of One Allen Center, 500
Dallas St.,Houston,TX 77002,Attn: Jay Hall("Grantee"),the receipt and sufficiency of which are hereby
acknowledged and confessed, has GRANTED, BARGAINED, and CONVEYED and by these presents
does GRANT, BARGAIN, and CONVEY unto Grantee the tracts of land situated in Jefferson County,
Texas described on Exhibit"A"attached hereto(collectively,the"Land"),together with all improvements
thereon and all rights and appurtenances appertaining thereto, including, but not limited to, any right,title
and interest of Grantors in and to all subsurface water rights and rights of utility availability (including
water, sanitary sewer and drainage)granted or to be granted by any utility, municipal utility district or any
other governmental or quasi-governmental authority relating to the Land (herein collectively called the
"Premises").
This Special Warranty Deed is executed by Grantor and accepted by Grantee subject to the validly
existing and enforceable rights, interests and estates, if any do in fact exist, and only to the extent that the
same do in fact exist, of third parties in connection with those items listed on Exhibit"B"attached hereto
(herein collectively called the"Encumbrances").
This Special Warranty Deed is also subject to the following use restrictions(collectively,the"Use
Restrictions"): None of the Land may be used: (i) for manufactured housing (as such term is defined in
Sec. 58-31 of the City Code [herein defined]); (ii)as a recreational vehicle park(RV park)(as such term is
defined in Sec. 58-121 of the City Code); (iii)as a game room (as such term is defined in Sec. 22-601 of
the City Code) that is open to the public on a for-profit basis; (iv) for any sexually oriented business (as
such term is defined in Sec. 22-321 of the City Code); or (v) as a multiple-family dwelling (within the
context such term is used in Appendix A, Section 12 of the City Code). As used herein, the term "City
Code" shall mean the Code of Ordinances, City of Port Arthur, Texas, as in effect as of January 8, 2019.
The Use Restrictions are enforceable and terminable by Grantor.
TO HAVE AND TO HOLD the Premises unto Grantee and its heirs, legal representatives,
successors and assigns forever; and Grantor does hereby bind itself and its heirs, legal representatives,
successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Premises, subject
to the Use Restrictions hereunder and subject to the validly existing and enforceable rights, if any,of third
parties in connection with the Encumbrances, unto Grantee and its heirs, legal representatives, successors
and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof,
by,through or under Grantor, but not otherwise.
5149857 2
EXECUTED as of , 20 .
GRANTOR:
CITY OF PORT ARTHUR,TEXAS
By:
Name:
Title:
ATTEST:
City Secretary
(SEAL)
APPROVED AS TO FORM
City Attorney
STATE OF TEXAS §
§
COUNTY OF JEFFERSON §
This instrument was acknowledged before me on this day of ,
20 , by_ , of the CITY OF
PORT ARTHUR,TEXAS.
Notary Public, State of Texas
-2-
EXHIBIT "A"
Land
TRACT I—Health Department Building (449 Austin Avenue, Port Arthur, TX 77640):
Lots 1 through 12, Block 132 of the City of Port Arthur, Jefferson County, Texas, as the same
appears upon the map 7or plat thereof recorded in Volume 1, Page 50, Map Records of Jefferson
County, Texas.
TRACT II—Adjacent Parking Tracts:
Tract 10-A and Tract 13-A of a replat of all of Lots 10-18, Block 109 of the City of Port Arthur,
Jefferson County, Texas, as the same appears upon the map or plat thereof recorded in County
Clerk's File No. 2019012118, Official Public Records of Jefferson County, Texas.
EXHIBIT "B"
Encumbrances
[subject to revision based on title commitment]
TEXAS
�Q1:Health and Human Texas Health and Human Services Commission
` Services Cecile Erwin Young
Executive Commissioner
September 30, 2020
Mr. Ronald Burton
City Manager
City of Port Arthur
444 4th Street
Port Arthur, TX 77640
RE: Proposed Sale of Health Department Building and adjoining lot, City of Port
Arthur, TX
Mr. Burton,
This letter is to confirm Texas Health and Human Services Commission's (HHSC)
receipt of the attached disposition letter from the Administration for Children and
Families (ACF), dated September 22, 2020.
Upon sale of the above referenced property, ACF has requested that the City of Port
Arthur refund the federal portion, in the amount of $922,700, to HHSC. HHSC will
then refund this amount to ACF. This federal portion is based on the appraised
value of the property and not the sale price. Should the property sell for less than
the appraised value, the amount of $922,700 must still be returned to HHSC to
refund ACF.
If you have any questions or concerns I can be reached by email at
racheal,kane@hhsc.state.tx.us or by phone at (512) 565-5420.
Thanks,
ti
Racheal Kane, Federal Funds Director
Attachment
cc: Floyd Batiste
Shanna Burke
P.O. Box 13247 • Austin,Texas 78711-3247 • 512-424-6500 • hhs.texas.gov
Sincerely,
owh www�..s.Me„s
tw nur.wtcww.�.waa.wn...Mr.
Diane S.Bragdon-S -..�..:,»u.�m,�,.->W:.�,,.
�.+om.,nwru ORO
Diane Bragdon
Grants Management Officer
Community Strengthening Grants Division
Administration for Children and Families
U.S. Department of Health and Human Services
Office: 202-401-0933
Cell: 202-770-5152
Administration for Children and Families www.acf.hhs.gov
EXHIBIT "B"
LEASE AGREEMENT
[Health Department Premises —449 Austin Avenue, Port Arthur, Texas 77640]
This Lease Agreement ("Lease") is entered into effective as of , 20
(the "Effective Date"), by and between AURORA CAPITAL HOLDINGS, LLC, a Delaware
limited liability company ("Landlord"), and CITY OF PORT ARTHUR, TEXAS ("Tenant").
RECITALS:
A. On or about the Effective Date, Landlord acquired the Property (herein defined)
from Tenant.
B. On or about the Effective Date, Tenant acquired the Relocation Property (herein
defined). Tenant intends to relocate from the Premises (herein defined) to the Relocation
Property prior to the expiration of the term of this Lease.
C. Landlord is willing to lease to Tenant, and Tenant is willing to lease from
Landlord, the Premises, for the purposes set forth herein, all in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the Recitals (which are
incorporated herein by reference), the mutual benefits to be derived from this Lease and the
representations, warranties, covenants and conditions herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Unless otherwise defined herein or unless the context otherwise
requires, capitalized terms used in this Lease shall have the following meanings:
"Building" means the building located on the Property.
"Designated Parking Area" means the parking area located on the Property, as more
particularly depicted on Exhibit B.
"Encumbrances" means all mortgages, deeds of trust, liens, security interests, pledges,
conditional sale contracts, claims, rights of first refusal, options, charges, liabilities, obligations,
easements, rights-of-way, limitations, reservations, restrictions and other encumbrances of any
kind.
"Environmental Contamination" means the presence of one or more Hazardous Materials
in or on the Property or otherwise in the ground, air, water or other parts of the environment that is
not allowed by Environmental Laws or which is not in compliance with Environmental Laws or this
Lease.
5076051.6
"Environmental Laws" means any statute, law, rule, regulation, ordinance, code, policy or
rule of common law of any Governmental Entity now in effect and in each case as amended to
date and any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree, or judgment, relating to the environment, human health or
Hazardous Materials, including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq.; The Hazardous
Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq.; the Resource Conservation
and Recovery Act of 1976, as amended, 42 U.S.C. § 6901, et seq.; the Federal Water Pollution
Control Act, as amended, 33 U.S.C. § 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.
§ 2601, et seq.; the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Safe Drinking Water Act, 42
U.S.C. § 3808, et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136, et
seq. and any other similar federal, state or local laws.
"Environmental Liabilities" means any and all administrative, regulatory, or judicial actions,
suits, allegations, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations, liabilities, losses, costs (including remedial, investigative and/or monitoring costs),
settlements, assessments, penalties, interest, legal, accounting and consultant fees and costs of
court relating in any way to any Hazardous Materials or Environmental Laws incurred by or
asserted against Landlord based on or caused by acts or omissions of Tenant or its agents,
employees, directors, officers, shareholders, contractors, invitees, licensees, representatives,
successors or assigns, including without limitation: (a) any and all claims by any Governmental
Entity for enforcement, cleanup, removal, response, remedial, or other actions or damages
pursuant to any applicable Environmental Laws, and (b) any and all claims, brought under
common law or statute, by any party seeking damages, contribution, indemnification, cost
recovery, compensation, or injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat of injury to health, property, safety, or the environment.
"Event of Default" shall have the meaning set forth in Section 9.1 of this Lease.
"Governmental Entity" means any court or any federal, state, or local legislative body or
governmental municipality, department, commission, board, bureau, agency or authority.
"Hazardous Materials" means (a) any petroleum or petroleum products, radioactive
materials, asbestos, urea formaldehyde foam insulation, transformers or other equipment that
contains dielectric fluid containing levels of polychlorinated biphenyls (PCBs), and radon gas; (b)
any chemicals, materials, or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," "contaminants," or
"pollutants," or words of similar import, under any applicable Environmental Laws; and (c) any
other chemical, material or substance which is in any way regulated by any Governmental Entity.
"Landlord Parties" means Landlord, its parents, affiliates and subsidiaries, together with
their respective shareholders, members, partners, officers, directors, employees, agents and
invitees.
"Person" means an individual, partnership, joint venture, limited liability company,
corporation, bank, trust, unincorporated organization or a Governmental Entity.
"Premises" means the approximately 30,000 square feet of space within the Building, as
more particularly depicted on Exhibit A. For avoidance of all doubt, the "Premises" expressly
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5076051.6
exclude the area identified as "Former Bank Area" on Exhibit A and any other portions of the
Property.
"Property" means the real property commonly known as 449 Austin Avenue, Port Arthur,
Texas 77640 and more particularly described as follows: Lots 1 through 12, in Block 132 of the
CITY OF PORT ARTHUR, Jefferson County, Texas, as the same appears upon the map or plat
thereof recorded in Volume 1, Page 50, Map Records of Jefferson County, Texas.
"Relocation Property" means real property commonly known as 5860 9th Avenue, Port
Arthur, Texas 77642 and more particularly described as an approximately 3.513 acre tract out
of Lot 5, Block 9, Range "H" of Port Arthur Land Company Subdivision, a plat recorded in
Volume 1, Page 22 of the Jefferson County Map Records.
ARTICLE II
PROPERTY
2.1 Lease. Landlord, in consideration of the rents, covenants, agreements, and
conditions herein set forth which Tenant hereby agrees shall be paid, kept, and performed,
does hereby lease unto Tenant, and Tenant does hereby rent and lease from Landlord, the
Premises subject to all applicable legal requirements and to any Encumbrances now affecting
the Property or hereafter placed upon the Property by Landlord. Notwithstanding the foregoing,
Tenant shall have the non-exclusive right to use any elevators, shared hallways, exits and other
similar areas reasonably identified by Landlord from time to time to be shared in common with
other occupants of the Building, including, without limitation, such shared areas located within
the Premises.
ARTICLE III
TERM
3.1 Term. Subject to and upon the terms and conditions set forth in this Lease, the
term of this Lease (the "Term") shall commence on the Effective Date and shall expire on the .
date (the "Termination Date") that is the earlier to occur of (i) eighteen (18) months after the
Effective Date or (ii) the date that is thirty (30) days following the date on which the Relocation
Property opens to the public for Tenant's use. By way of illustration, if the Effective Date was
December 1, 2020 and the Relocation Property opened to the public for Tenant's use on
October 26, 2021, then the Termination Date would be November 25, 2021.
3.2 Extension of Term Due to Disaster Declaration. Notwithstanding the
provisions of Section 3.1 above, the Term shall be deemed automatically extended to the extent
that a Disaster Declaration (herein defined) reasonably prevents Tenant from completing its
renovations to the Relocation Property or from completing its move from the Premises to the
Relocation Property. The extent to which the Term shall be deemed extended shall be
reasonably determined by Landlord, taking into account (a) any period of time prior to or after
the pendency of the Disaster Declaration that Tenant had to complete its renovations and move
to the Relocation Property and (b) any work in connection with such renovations and move that
could reasonably be achieved during the pendency of the Disaster Declaration. As used herein,
"Disaster Declaration" means any stay-at-home order, shutdown or other closure of either the
Premises or the Relocation Property mandated by the federal or state government or by the
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5076051.6
Jefferson County Judge due to the issuance of a declaration of disaster (such as those relating
to a hurricane or the COVID-19 pandemic).
ARTICLE IV
RENT
4.1 Rent. Commencing on the Effective Date and continuing thereafter throughout
the Term, Tenant shall pay to Landlord monthly base rent of Twelve Thousand Dollars
($12,000.00) (the "Rent"), without offset, counterclaim or deduction; provided, however, so long
as Tenant is not in default under this Lease, the Rent shall be abated for the stated Term of this
Lease (not including any holdover period). The Rent (so long as it is not abated) shall be due
and payable beginning on the Effective Date and continuing on the first day of each month
during the Term. Tenant expressly acknowledges that the Rent amount set forth herein (prior
to any abatements thereof) represents an amount equal to or less than the fair market rental
value of the Premises based on an appraisal conducted by Tenant.
4.2 Holding Over. If Tenant does not surrender possession of the Premises at the
end of the Term (as may be extended pursuant to Section 3.2 above), (i) Tenant shall be a
tenant at sufferance, (ii) during such time of occupancy Tenant shall pay to Landlord the Rent,
without abatement, offset, counterclaim or deduction, and (iii) for each month of such holdover,
Tenant shall also pay to Landlord, as damages, an amount equal to one month's worth of
previously abated Rent. Such amounts shall be payable without further notice from Landlord.
By way of illustration, during each month of Tenant's holdover hereunder, Tenant shall pay to
Landlord the sum of $24,000.00, representing the sum of the Rent ($12,000.00) plus one
month's worth of previously abated Rent ($12,000.00).
ARTICLE V
ALTERATIONS AND ADDITIONS
5.1 Alterations and Additions. Tenant may not make any alterations in or
additions to the Premises without Landlord's prior written consent, which consent may be
withheld in Landlord's sole and absolute discretion. Any alterations or additions by Tenant shall
be at Tenant's sole cost and expense. All alterations and additions to the Premises (other than
Tenant's trade fixtures which are capable of being removed without damage to the Premises),
shall become the property of Landlord at the end of the Term and shall be surrendered to
Landlord upon termination of this Lease, whether by lapse of time or otherwise; provided,
however, that Landlord shall have the right to require Tenant (a) to remove all alterations and
additions to the Premises at the termination of this Lease and (b) to return the Premises to their
condition as of the Effective Date, reasonable wear and tear excepted.
5.2 Condition of Premises; Compliance. Tenant accepts the Premises in their
current condition, AS IS, WITH ALL FAULTS. Tenant expressly acknowledges that it was the
owner of the Property (including the Building and the Premises) immediately prior to the
Effective Date and is familiar with the condition of the Premises and the Building. Tenant shall
be responsible for all cost and expense of any alterations, improvements and changes
necessary to ensure the compliance of the Premises with the Americans with Disabilities Act,
life safety provisions of any applicable building code(s) and any similar state or local laws.
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5076051.6
ARTICLE VI
COVENANTS
6.1 Use. Tenant may use the Premises for the purpose of operating the Health
Department of the City of Port Arthur, Texas and no other purpose. Tenant shall at all times
operate the Premises in compliance with all applicable legal requirements.
6.2 Parking. During the Term, Tenant's employees, agents, customers or invitees
shall have the non-exclusive right to park their vehicles within the Designated Parking Area. If
at any time there is insufficient parking available within the Designated Parking Area for
Tenant's employees, agents, customers or invitees, all such persons must park in available
parking areas located off of the Property. Without waiving any other rights or remedies under
this Lease, at law or in equity, Landlord reserves the right to charge Tenant fees for any parking
on the Property by Tenant's employees, agents, customers or invitees in such amounts as
Landlord may reasonably determine from time to time.
6.3 Utilities. All utilities at the Premises shall be maintained in Tenant's name.
Tenant shall pay directly to the relevant utility all charges for water, sewer, gas, electricity, light,
heat, air conditioning, power, telephone and other communication services, and all other utilities
and similar services rendered or supplied to the Premises, and all water rents, sewer service
charges, or other similar charges levied or charged against, or in connection with, the Premises
during the Term. Landlord will not be responsible for providing utility connections to the
Premises. Notwithstanding the foregoing, to the extent that any utilities to the Property are not
separately metered as to the Premises, Landlord reserves the right to equitably allocate to
Tenant any charges for such utilities, which shall be promptly paid by Tenant to Landlord upon
demand.
6.4 Insurance.
(a) Tenant shall, at Tenant's sole cost and expense obtain and keep in force during
the Term of this Lease a policy of Commercial General Liability Insurance, or equivalent, in an
amount of not less than $2,000,000 per occurrence of bodily injury and property damage
combined. This policy shall name Landlord as an additional insured and shall be primary over
any insurance that may be carried by Landlord.
(b) Tenant, at Tenant's sole cost and expense, shall obtain and keep in force during
the Term of this Lease a full replacement cost policy or policies of fire and extended coverage
insurance covering loss or damage to any tenant improvements or personal property of Tenant
contained in the Premises or elsewhere on the Property. Tenant's insurance shall be primary
over any insurance carried by Landlord and shall name Landlord as a loss payee.
(c) Landlord, at Landlord's sole cost and expense, shall obtain and keep in force
during the Term of this Lease a full replacement cost policy or policies of fire and extended
coverage insurance covering loss or damage to the Building (except for any tenant
improvements or personal property of Tenant contained in the Premises or elsewhere on the
Property). Landlord shall have the option to self-insure as to any of its insurance obligations
described in this Lease.
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5076051.6
(d) Anything to the contrary in this Lease notwithstanding, none of the Landlord
Parties shall be liable to Tenant or to any insurance company (by way of subrogation or otherwise)
insuring Tenant for any loss or damage to any property, when such loss is caused by any of the
perils that are or could be insured against under any insurance policy actually held by Tenant or
that is required to be obtained by Tenant under this Lease, or losses under workers'
compensation laws and benefits (including, without limitation, consequential damages, business
interruption or loss of profits in connection therewith), even though such loss or damage might
have been occasioned by the negligence of any Landlord Parties. If necessary, all such
insurance policies required of Tenant under this Lease shall be endorsed to so provide. THIS
PARAGRAPH IS INTENDED TO RELEASE LANDLORD FROM LIABILITY FOR ITS OWN
NEGLIGENCE, TO THE EXTENT SUCH NEGLIGENCE IS COVERED BY INSURANCE.
6.5 Taxes. Landlord shall be responsible for paying all real property taxes on the
Property. Tenant shall pay all taxes, if any, on its equipment, inventory and other personal
property on the Property before the same become delinquent.
6.6 Repairs.
(a) Landlord, at Landlord's sole cost and expense, shall make all necessary repairs
to the roof, exterior walls, and foundation of the Building and those portions of the Building's
plumbing, electrical and HVAC systems.
(b) Tenant, at its sole cost and expense, shall make or cause to be made all repairs
to the remainder of the Premises, including, but not limited to, windows, glass doors, interior
walls, floors and floor coverings. Tenant shall further be responsible for all general maintenance
of the interior of the Premises.
(c) Landlord shall make or cause to be made, all repairs to the exterior and common
areas relating to the Property, including, without limitation, repairs to common areas such as
exterior walkways, parking areas, fences, lighting and other fixtures. Landlord shall further be
responsible for all general maintenance of the exterior and common areas relating to the
Property, including, without limitation, landscaping, landscape maintenance and snow removal
(if applicable).
(d) Notwithstanding the foregoing, with respect to any repairs made by Landlord
under this Section, Tenant shall pay for (i) any and all repairs to those portions of the Building's
plumbing, electrical and HVAC systems devoted exclusively to the Premises; (ii) the first
$10,000.00 of any other Landlord repairs during the stated Term; and (iii) if Tenant holds over
beyond the stated Term, any and all Landlord repairs occurring during such holdover.
6.7 Environmental Law Compliance and Indemnity.
(a) Tenant shall not create, collect, store, treat, dispose of or cause to be released or
otherwise discharged any Hazardous Materials on the Property except in such minute quantities
as are found in everyday cleaning supplies in compliance with Environmental Laws and shall
notify Landlord within twenty-four (24) hours after discovering or being informed of the presence
of any Hazardous Materials on the Property either in violation of Environmental Laws or in greater
than minute quantities.
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5076051.6
(b) Except to the extent caused by Landlord, prior to vacating the Premises, Tenant
shall clean up any Environmental Contamination occurring on the Premises during the Term and
located on, under, or adjacent to the Premises, wherever located, in accordance with the
requirements of all Environmental Laws and to Landlord's reasonable satisfaction; and the
Premises shall remain in its cleaned-up condition through the time Tenant vacates the Premises.
Should Tenant not fulfill its obligations under this Section 6.7, Tenant shall reimburse Landlord for
all such clean-up costs.
(c) Notwithstanding any other provision of this Lease, Tenant agrees to and does
hereby release the Landlord Parties from and against any and all Environmental Liabilities
(including strict liability), which may now or in the future (whether during or after the Term) be
paid, incurred or suffered by or asserted against Tenant by any person or entity or Governmental
Entity.
(d) The covenants contained in this Section 6.7 shall survive the expiration or other
termination of this Lease.
6.8 Security. Tenant shall (i) lock the doors to the Premises and take other
reasonable steps to secure the Premises and the personal property of Tenant or its employees,
agents, contractors, customers or invitees located at the Property, from unlawful intrusion, theft,
fire and other hazards; (ii) keep and maintain in good working order all security and safety
devices installed in the Premises by or for the benefit of Tenant (such as locks, smoke
detectors and burglar alarms); and (iii) cooperate with Landlord on Building safety matters.
Tenant acknowledges that any access control or safety measures employed by Landlord are for
the protection of Landlord's own interests; that Landlord is not a guarantor of the security or
safety of Tenant or its employees, agents, contractors, customers or invitees or their property;
and that such security and safety matters are the responsibility of Tenant and the local law
enforcement authorities.
6.9 Release. To the extent it may lawfully do so, Tenant hereby releases Landlord
and Landlord's agents, directors, managers, officers, employees, invitees, and contractors, from
all claims, demands, liabilities, losses, costs, damages, or expenses (including but not limited to
attorneys' fees) resulting or arising from any and all injuries to, including death of, any person or
damage to any property caused by any other accident or injury on or relating to the Premises, the
Property and any sidewalk, street or other area adjacent thereto.
ARTICLE VII
CASUALTY; CONDEMNATION
7.1 Damage or Destruction. If the Building is damaged or destroyed, in whole or in
part, by fire or other casualty at any time during the Term and if, after such damage or
destruction, Tenant is not able to use the portion of the Premises not damaged or destroyed to
substantially the same extent and for substantially the same purposes as Tenant used the
Premises prior thereto, Tenant shall immediately notify Landlord and Landlord shall, within thirty
(30) days thereafter, notify Tenant whether Landlord desires to terminate this Lease or to
rebuild the Premises. If Landlord elects to rebuild the Premises and the time to complete such
reconstruction is in excess of ninety (90) days, Tenant shall have the right to terminate this
Lease by so notifying Landlord within thirty (30) days following receipt of such notice from
Landlord.
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7.2 Condemnation. If any improved portion of the Premises in excess of twenty-five
percent (25%) of the original area thereof, or any other portion of the Property reasonably
necessary for Tenant to conduct its business at the Premises, shall be taken as a result of the
power of eminent domain, this Lease shall terminate at Tenant's election, made within thirty
(30) days after taking (or at any time after Tenant's receipt of written notice of such taking) if
the Premises are no longer suitable for Tenant's use. If this Lease is not so terminated, the
Rent shall be equitably adjusted by Landlord to take into account such taking. Tenant hereby
waives any and all right to any condemnation award given in connection with the Premises.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 Restrictions. Tenant may not assign this Lease or sublease the Premises
without Landlord's prior written consent, which consent may be withheld in Landlord's sole and
absolute discretion. Any assignment without consent shall be void and an Event of Default
under this Lease. In no event shall Tenant be released from liability hereunder upon any
assignment, and any assignee must assume in writing all obligations under this Lease.
ARTICLE IX
DEFAULT AND REMEDIES
9.1 Default by Tenant. Each of the following shall be deemed an "Event of Default"
by Tenant hereunder and a material breach of this Lease:
(a) Tenant shall fail to pay any installment of Rent or any other sums owed Landlord
within ten (10) days after Tenant has been given a written notice specifying the same;
(b) Tenant shall fail to materially keep, perform, or observe any of the covenants,
agreements, terms, or provisions contained in this Lease that are to be kept or performed by
Tenant other than with respect to payment of Rent, and Tenant shall fail to commence and take
such steps as are necessary to remedy the same within thirty (30) days after Tenant has been
given a written notice specifying the same, or having so commenced, shall thereafter fail to
proceed diligently and with continuity to remedy the same; or
(c) Tenant or any other party shall file a petition naming Tenant as debtor in any
bankruptcy or other insolvency proceeding or shall file for the appointment of a liquidator or
receiver for all or substantially all of Tenant's property or for Tenant's interest in this Lease or
Tenant shall admit in writing its inability to meet its obligations as they become due or make an
assignment for the benefit of its creditors.
9.2 Landlord's Remedies.
(a) If an Event of Default occurs under this Lease, Landlord shall be entitled to any
and all rights and remedies available to it, at law, in equity or under this Lease.
(b) Following an Event of Default, Tenant shall be liable to Landlord for: (i) all legal
fees of Landlord in enforcing its rights hereunder; (ii) all reasonable costs of reletting the
Premises (including, without limitation, all repairs and necessary improvements); (iii) all costs of
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removing and storing Tenant's property; (iv) all other amounts of any kind owed by Tenant
under this Lease; and (v) interest at the rate of ten percent (10%) per annum on all amounts
owed to Landlord computed from the date such amounts were due.
(c) All agreements and provisions to be performed by Tenant under any of the terms
of this Lease shall be at Tenant's sole cost and expense and without any abatement of rent. If
Tenant shall fail to pay any sum of money, other than Rent, required to be paid by it hereunder or
shall fail to cure any Event of Default, then Landlord may, but shall not be obligated to, and
without waiving or releasing Tenant from any obligations, make any such payment or perform any
such act on Tenant's part. All sums so paid by Landlord and all costs incurred by Landlord in
taking such action shall be deemed additional Rent hereunder and shall be paid to Landlord on
demand, and Landlord shall have (in addition to all other rights and remedies of Landlord) the
same rights and remedies in the event of the non-payment thereof by Tenant as in the case of an
Event of Default by Tenant in the payment of Rent.
(d) Notwithstanding anything to the contrary contained in this Lease, Landlord shall
have a duty to mitigate its damages to the extent reasonably practicable.
9.3 Default by Landlord; Tenant Remedies. It shall be deemed a default by
Landlord hereunder and a material breach of this Lease if Landlord shall fail to materially keep,
perform, or observe any of the covenants, agreements, terms, or provisions contained in this
Lease that are to be kept or performed by Landlord, and Landlord shall fail to commence and
take such steps as are reasonably necessary to remedy the same within thirty (30) days after
Landlord shall have been given a written notice specifying the same, or having so commenced,
shall thereafter fail to proceed diligently and with continuity to remedy the same. In the event of
any default by Landlord under this Lease, Tenant shall have any and all rights and remedies
available to it, at law, in equity or under this Lease.
9.4 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER OR ANY OF THEIR RESPECTIVE AGENTS, REPRESENTATIVES, OR
EMPLOYEES FOR ANY LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY,
RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF
SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER
UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
OR OTHERWISE.
ARTICLE X
MISCELLANEOUS
10.1 Waivers and Amendments. Any waiver of any term or condition of this Lease,
or any amendment or modification of this Lease, shall be effective only if set forth in a written
document executed by a duly authorized officer of the party(ies) against which such waiver,
amendment or modification is asserted.
10.2 Notices. Any notice provided or permitted to be given under this Lease must be
in writing and shall be served (a) by depositing same in the United States mail, addressed to
the party to be notified, postage prepaid and registered or certified with return receipt
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5076051.6
requested; (b) by delivering the same in person to such party; (c) by any recognized expedited
courier service (such as Federal Express) which requires the receiver of such notice to
acknowledge receipt in writing; or (d) by email (provided that any notice of default hereunder
must also be sent by another method of notice provided for in this Section). Notice shall be
effective only upon receipt at the address of the addressee or refusal by the addressee to
accept delivery thereof. For purposes of notice, the addresses of the parties shall be as
follows:
If to Landlord, to: Aurora Capital Holdings LLC
500 Dallas Street
Houston, Texas 77002
Attention: Jay Hall
Telephone: 713-427-3313
E-mail: jay.hall@motiva.com
with a copy to: David J. Weiner
Liskow& Lewis
1001 Fannin, Suite 1800
Houston, Texas 77002
Telephone: 713-651-2944
Email: dweiner@liskow.com
If to Tenant, to: City of Port Arthur, Texas
P.O. Box 1089
Port Arthur, Texas 77641
Attn: Ron Burton, City Manager
Telephone: 409-983-8101
Email: ron.burton@portarthurtx.gov
with a copy to: City of Port Arthur, Texas
444 4th Street
Port Arthur, Texas 77640
Attn: Valecia Tizeno, City Attorney
Telephone: 409-983-8129
Email: val.tizeno@portarthurtx.gov
Either party may change its address(es) for the purpose of giving notice hereunder by giving
the other party notice thereof in accordance with the provisions of this Section.
10.3 Entire Agreement. This Lease and the Exhibits hereto constitute the entire
agreement between the parties pertaining to the subject matter hereof and supersede all other
prior and contemporaneous agreements and understandings, both oral and written, of the
parties in connection therewith. No covenant or condition not expressed in this Lease shall
affect or be effective to interpret, change or restrict this Lease.
10.4 Severability. If any term, provision, covenant or condition of this Lease is held
by any court of competent jurisdiction to be invalid, void or unenforceable in any respect, the
remainder of such term, provision, covenant or condition in every other respect and the
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5076051.6
remainder of the terms, provisions, covenants or conditions of this Lease shall continue in full
force and effect and shall in no way be affected, impaired or invalidated.
10.5 Quiet Enjoyment. Landlord covenants that Tenant, on paying the Rent and
performing and observing all of the covenants and agreements herein contained and provided
to be performed by Tenant, shall and may peaceably and quietly have, hold, occupy, use, and
enjoy the Premises during the Term, and may exercise all of its rights hereunder, subject only
to the provisions of this Lease and all applicable legal requirements.
10.6 Governing Law. THIS AGREEMENT HAS BEEN EXECUTED IN THE STATE
OF TEXAS AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF TEXAS.
10.7 Intentionally Omitted.
10.8 Signage. Tenant shall have the right to continue to display its existing signage
on the Premises. Tenant shall not display any other signage visible from the exterior of the
Premises without the prior written consent of Landlord, which consent shall be in Landlord's
sole and absolute discretion.
10.9 Limitation of Landlord's Liability. Tenant specifically agrees to look solely to
Landlord's interest in the Premises for the recovery of any judgment against Landlord, it being
agreed that Landlord, its officers, directors and employees shall never be personally liable for any
such judgment.
10.10 Waiver of Lien by Tenant. Tenant shall have no right, and Tenant hereby waives
and relinquishes all rights which Tenant might otherwise have, to claim any nature of lien against
the Building or to withhold, deduct from or offset against any Rent or other sums to be paid to
Landlord by Tenant (including, without limitation, any and all rights under Texas Property Code
section 91.004), and Tenant further acknowledges that it shall have no right or ability to grant any
lien in connection with any work performed on the Premises.
10.11 Abandoned Property. Any personal property of Tenant left in the Premises
subsequent to the Termination Date shall be deemed to have been abandoned by Tenant.
Landlord shall give Tenant thirty (30) days notice to remove such abandoned property from the
Premises. If Tenant fails to remove such property prior to the end of said thirty (30) day period,
Landlord shall have the right to remove such property from the Premises and either store, sell
or otherwise dispose of the same with no liability to Tenant. The terms of this Section shall
survive the expiration or other termination of this Lease.
[Signature Page Follows]
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5076051.6
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease effective as
of the Effective Date.
LANDLORD:
AURORA CAPITAL HOLDINGS LLC,
a Delaware limited liability company
By:
Name:
Title:
TENANT:
CITY OF PORT ARTHUR, TEXAS
By:
Name:
Title:
ATTEST:
City Secretary
(SEAL)
APPROVED AS TO FORM
City Attorney
[Signature Page to Lease Agreement]
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