HomeMy WebLinkAboutRes 2023-09-1552 CARDS Dallas 1 Yr Lease Agreement RenewalCITY OF ANNA, TEXAS
RESOLUTION NO.
A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A LEASE AGREEMENT RENEWAL FOR THE, USE OF CITY
FACILITIES BY AND BETWEEN THE CITY OF ANNA TEXAS AND CARDS DALLAS,
INCORPORATED; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Anna is responsible for providing the community with solid waste
services; and,
WHEREAS, the City of Anna entered into a Solid Waste and Disposal Contract with
CARDS Dallas, Incorporated on July 14, 2020 in Resolution No 2020-7-759; and,
WHEREAS, The City of Anna and CARDS entered into a lease agreement on March 9,
2021 in Resolution 2021-03-877; and,
WHEREAS, the City of Anna and CARDS Dallas, Inc. renewed the lease as approved in
Resolution 2023-01-1350; and,
WHEREAS, the lease agreement allows for a reduced cost for Anna neighbors on their
solid waste services in the amount of $0.50 per single family residence; and,
WHEREAS, CARDS Dallas, Incorporated is continuing to work with the City of Anna to
identify a permanent facility for their operations in the City of Anna; and,
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals above are incorporated herein as if set forth in full for all purposes.
Section 2. Authorization of Agreement.
That the City Manager is hereby authorized to notify CARDS Dallas, In, in
writing that the lease agreement attached hereto as Exhibit "A" has been extended to
September 30, 2024.
That this agreement shall go into effect immediately upon passage.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this
day of September 2023.
ATTEST:
City Secretary, Carrie L. Smith
M13
APPROVED: `/14
(see attached lease agreement)
, Nate Pike
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is entered into by and between the
City of Anna, Texas, a home -rule municipality ("Landlord") and CARDS Dallas Inc. a
Texas corporation ("Tenant"). For valuable consideration the parties as follows:
1. Definitions. The following terms have the meanings set forth below:
(a) Effective Date. The effective date of this Lease is the 1st day of
October, 2023.
(b) Landlord. The City of Anna, Texas.
(b) Leased Space. Landlord owns approximately 14.97 acres of real
property located at 3223 North Powell Parkway, Anna, Texas 75409 (the
"Premises"). Landlord owns all of the structures and other improvements on the
Premises. An Industrial/office building of approximately 11,000 square jfeet (the
"Public Works Building") is located on the Public Works Site. The space leased to
tenant under this Lease (the "Leased Space") consists of certain portions of indoor
and outdoor areas within the Premises, including solely the following: (1) 240
square feet of indoor office space within the Public Works Building as shown on the
attached Exhibit A along with nonexclusive license for access and normal use the
three restroom areas shown on said exhibit; (2) 20,000 SF of outdoor uncovered
polycart and dumpster storage as shown on Exhibit B; (3) 15,000 square feet of
commercial vehicle parking as shown on Exhibit B; (4) 3,500 square feet of
uncovered employee parking as shown on Exhibit B; and (5) 1,200 square feet of
covered vehicle maintenance area as shown on Exhibit B. The Leased Space may be
increased in size and location during the Term of the Lease with written approval of
the City Manager.
(c) Lease Period. Commencing on the first day of the month following the
Effective Date and expiring on October 1, 2024 subject to a one-year renewal under
mutually agreeable terms stated herein if agreed to in writing by Landlord and
Tenant.
(d) Permitees. All partners, officers, directors, employees, agents,
contractors, customers, visitors and invitees of Tenant at the Leased Space for the
purposes set forth in paragraph 2(a), below.
(e) City Council. The City Council of the City of Anna, Texas.
(f) Tenant. CARDS Dallas Inc.
2. Demise, Term.
(a) Demise and Grant of Leased Space. Landlord hereby leases to Tenant
and Tenant accepts from Landlord under the terms, provisions and conditions of
LEASE AGREEMENT PAGE 1 OF 13
this Lease the Leased Space commencing on the Effective Date hereof and
continuing until the expiration or earlier termination of the Term as hereinafter
provided and solely for the purpose of using the Leased Space to conduct the
business operations necessary to fulfill Tenant's obligations under the City of Anna
Solid Waste Collection and Disposal Contract effective August 23, 2022, and
entered into by the City of Anna on August 23t' 2022 in Resolution No. 2022-08-
977 (the "Solid Waste Contract").
(b) Term. The primary term ("Primary Term") of this Lease shall
commence as of the Effective Date hereof and shall expire at midnight; on October
11 2024, subject to earlier termination as provided elsewhere in this Lease. The
Primary Term and any Renewal Term or extension thereof pursuant toparagraph
2(c) below is referred to in this Agreement as the "Term".
(c) Renewal. This Lease shall expire October 1, 2024 (the "Expiration
Date") and shall not automatically renew; provided, however, that this Lease may
be extended for a period of one year if the City Council approves such a renewal
and a written extension is duly executed by Landlord and Tenant.
(d) Quiet Enjoyment. Upon Tenant's payment of all Rent required
hereunder as same becomes due and observance and performance of all of the
covenants, terms and conditions to be observed and performed by Tenant pursuant
to this Lease, Tenant shall have throughout the Term, peaceful, quiet and
undisturbed use and possession of the Leased Space and all rights and privileges
appertaining thereto, subject to the terms, conditions and provisions of this Lease.
(e) Landlord's Title, Subordination. Landlord covenants, represents and
warrants to Tenant as follows:
(1) Title. Landlord hereby represents and warrants that it owns good
and indefeasible fee simple title in and to the Premises, subject only to permitted
exceptions in any applicable title policy and has full right and authority to make this
Lease. This Lease shall not be recorded.
(2) No Actions. There are no actions, suits or proceedings pending or
to the best of Landlord's knowledge, threatened against Landlord and affecting any
portion of the Premises, at law or in equity, or before any federal, state, municipal
or other governmental court, department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(3) Authority. The execution and consummation of this Lease by
Landlord has been duly authorized and does not result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, agreement,
instrument or obligation to which Landlord is a party or by which the Premises or
any portion thereof is bound. However, notwithstanding the foregoing or any term
or provision of this Lease, and all rights and obligations of Landlord and Tenant
LEASE AGREEMENT PAGE 2 OF 13
hereunder are subject to and shall not be effective unless and until there has been
formal approval by the City Council of this Lease at a duly noticed public meeting.
(f) Condition of Leased Space. TENANT ACKNOWLEDGES THAT TENANT
HAS INSPECTED THE LEASED SPACE AND ACCEPTS THE LEASED SPACE AS STATED
IN THE CERTIFICATION ATTACHED HERETO AS EXHIBIT C AND DELIVERED BY
TENANT TO LANDLORD. FURTHER, IF AT ANY TIME THIS LEASE SHALL BE FOUND
OR DECLARED NULL, VOID, ILLEGAL OR OTHERWISE INVALID FOR ANY REASON
BY A COMPETENT COURT OR TRIBUNAL WITH PROPER JURISDICTION, TENANT
EXPRESSLY COVENANTS AND WARRANTS THAT IT SHALL CEASE ALL OPERATIONS
AND VACATE AND SURRENDER THE LEASED SPACE FORTHWITH IN ACCORDANCE
WITH THE SURRENDER REQUIREMENTS UNDER PARAGRAPH 1AND OTHER
APPLICABLE PROVISIONS OF THIS LEASE AND AGREES THAT LANDLORD SHALL
NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR
OTHER DAMAGES CAUSED BY ANY SUCH FINDING OR DECLARATION OF NULLITY,
VOIDNESS, ILLEGALITY OR INVALIDITY.
3. Rent. Tenant shall pay Landlord the following amounts:
Rent. During the Term of this Lease, Tenant shall reduce the imonthly
invoice to the City of Anna for residential solid waste and recycling services from
$23.20 to $22.70. Upon the termination of this lease agreement, the residential
solid waste and recycling service rate shall increase to the full price of :collection
and disposal services as stated in the most current Solid Waste Contract, plus
disposal fees. At the conclusion of the lease agreement the Residential Solid Waste
Rate charged by CARDS to the City of Anna will increase to $23.20. This increase
does not include annual price changes for collection and disposal as allowed per the
contract.
4. Improvements, Additions and Repairs.
(a) Delivery of Leased Space. Landlord shall deliver exclusive possession of
the Leased Space to Tenant upon the Effective Date (except that use of the
restrooms in the Public Works Building shall be nonexclusive), suitable for industrial
outdoor and office indoor use (with the indoor use being empty, broom clean, and
with working HVAC, subject only to the provisions and terms of this Lease).
(b) Alterations and Improvements. Tenant may construct, alter, change,
and/or demolish any Improvements now or hereafter situated on the Premises with
written approval of the City Manager and an approved building permit from the City
of Anna. If any such construction by Tenant is at any time approved:
(1) All such work shall be performed in a good and workmanlike
manner, in accordance with accepted standards of engineering and architecture, if
applicable, and in accordance with local, state and federal law, including but not
limited to the Americans with Disabilities Act; and
LEASE AGREEMENT PAGE 3 OF 13
(2) Such construction, alteration, additions, changes or
demolishment shall be in compliance with all applicable building codes, zoning,
rules, regulations and ordinances affecting construction of such alterations,
additions, and changes and shall be commenced only after Tenant has been duly
granted all applicable permits for same.
(c) No Mechanic's Liens. Tenant shall not permit any mechanic's or
materialman's liens to be filed against Landlord's interest in the Premises arising
out of any Tenant improvements, and Tenant shall indemnify, defend (using
counsel acceptable to Landlord in its reasonable discretion), and hold harmless
Landlord from and against any costs, liability or expense, including attorney's fees
and related expenses, attributable to any such liens. Tenant's obligations under this
paragraph 4(c) shall expressly survive the expiration or earlier termination of this
Lease.
(d) Environmental. Tenant will conduct its business in a lawful manner and
will not make or permit any unlawful use of the Leased Space. Tenant will, at its
own expense, promptly comply with all laws, regulations, and ordinances affecting
the Leased Space and the cleanliness, safety, occupancy, and use thereof. TENANT
SHALL INDEMNIFY, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS
REASONABLE DISCRETION) AND HOLD HARMLESS LANDLORD FROM AND AGAINST
ANY COST, LIABILITY OR EXPENSE ARISING OUT OF OR ATTRIBUTABLE TO ANY
CLAIMS, DEMANDS, CAUSES OF ACTION, FINES, PENALTIES, LIABILITY OR
EXPENSES (INCLUDING ATTORNEY FEES AND RELATED EXPENSES AND COURT
COSTS) ARISING OUT OF OR RELATED TO THE EXISTENCE, REMOVAL OR
DISPOSAL OF ANY TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS WITHIN
OR UPON THE LEASED SPACE CAUSED BY TENANT, ITS EMPLOYEES, AGENTS OR
REPRESENTATIVES DURING THE TERM OF THIS LEASE FOLLOWING THE EFFECTIVE
DATE. FOR PURPOSES HEREOF, THE PHRASE "TOXIC OR HAZARDOUS
SUBSTANCES OR MATERIALS" SHALL INCLUDE ITEMS COVERED BY THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY
ACT OF 1980, 42 U.S.C. §§9601-75(1986), AS AMENDED BY THE SUPERFUND
AMENDMENT AND REAUTHORIZATION ACT, PUB. L. NO. 99-499, 100 STAT. 1613
(1986) ("CERCLA"), THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C. §2601 ET
SEQ., THE CLEAN WATER ACT, 33 U.S.C. §1251 ET SEQ., THE SAFE DRINKING
WATER ACT, 42 U.S.C. §§300(f)-300(j), AND OTHER FEDERAL, STATE AND LOCAL
LAWS NOW OR HEREAFTER IN EFFECT GOVERNING THE EXISTENCE, REMOVAL OR
DISPOSAL OF TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS. Tenant's
obligations under this paragraph 4(d) shall expressly survive the expiration or
earlier termination of this Lease.
(e) Repairs. Landlord shall, at its sole cost and expense, perform all repairs
and preventative maintenance necessary to maintain the indoor and exterior
grounds and parking areas comprising the Leased Space in good condition and
repair, all to be repaired and maintained in a condition suitable for commercial
office use and industrial use, as applicable, and keep the Leased Space in
compliance with applicable law throughout the Term. Tenant is otherwise
LEASE AGREEMENT PAGE 4 OF 13
responsible for maintaining the indoor portions of the Leased Space in good
condition, reasonable wear and tear excepted. The foregoing shall not in any way
impair or limit Tenant's right to make alterations or additions to the Leased Space
as set forth in paragraph 4(b) above. Landlord may charge Tenant for reasonable
third -party charges for repair of damage to the Leased Space, other than ordinary
wear and tear, caused by Tenant's negligence, willful misconduct or breach of this
Lease Agreement.
(f) Tenant's Fixtures. Tenant may install in or upon the Leased Space such
trade fixtures and equipment as Tenant deems desirable, provided that Tenant does
so in accordance with a written plan approved by Landlord in writing. Said plan
shall demonstrate the size and configuration of such fixtures and equipment upon
the Leased Space, with said written plan having been approved in advance by
Landlord in writing, said approval not to be unreasonably withheld. All of said items
shall remain Tenant's property whether or not affixed or attached to the Leased
Space. Tenant may remove such items from the Leased Space at any time during
the Term and shall repair, at Tenant's sole cost, any damage caused by such
removal.
(g) Platting, Site Plans, Approvals. Landlord and Tenant acknowledge that
it may be necessary, from time -to -time, for Landlord or Tenant to seek
governmental approvals with respect to platting, zoning, site plans, permitting
and/or obtaining other permits in connection with its use and occupancy of the
Leased Space for the uses permitted hereby (collectively, "Approvals"). Landlord
agrees to reasonably cooperate with Tenant with respect to its obtaining the
Approvals and to execute such documents as may be required of the owner of fee
title to the Leased Space in order for Tenant to obtain the Approvals, provided that
Landlord shall not incur any costs or liabilities In connection therewith, and Landlord
does not guarantee or make any representations with regard to Tenant's ability to
actually obtain the Approvals. Tenant expressly understands and agrees that
approval by the City Council of this Lease does not constitute the City Council's
granting of an Approval and does not bind the City Council to grant or approve any
other Approvals.
S. Utilities. Landlord shall at its own expense arrange with the appropriate
utility suppliers for services to the Premises, pay all connection, meter and service
charges required to connect utilities to the Premises, and pay such utility suppliers
directly for such services.
6. Use, Transfers,, or Assignments.
(a) Tenant's Use. Tenant may use the Leased Space solely for the
purposes set forth in Paragraph 2(a), above.
(b) Assignment, Subletting. Tenant shall not assign all or any part of this
Lease or sublet all or any part of the Leased Space without Landlord's written
consent, which may be withheld in Landlord's sole discretion. In the case of any
LEASE AGREEMENT PAGE 5 OF 13
assignment or sublease permitted by Landlord, Tenant shall not be released from
liability under this Lease. All assignments and subleases must be in writing and
must be binding on Tenant and the assignee or subtenant. No assignment or
sublease may become effective before Landlord has approved in writing the terms
of such written assignment or sublease.
(c) If, at any time during the Term of this Lease, Landlord sells a portion
or the entirety of the Premises to Tenant, Landlord shall be granted the option for a
leaseback of a portion of the Premises, with rent and conditions to be determined
and agreed upon at the time of closing.
7. Indemnification, Insurance.
(a) Indemnification. IN ADDITION TO ANY OTHER PROVISIONS OF THIS
LEASE, TENANT SHALL INDEMNIFY, HOLD HARMLESS, AND, AT LANDLORD'S
OPTION, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS
REASONABLE DISCRETION) LANDLORD AND ITS OFFICERS, OFFICIALS
DIRECTORS, AGENTS, REPRESENTATIVES AND EMPLOYEES (COLLECTIVELY, THE
"INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LIABILITY, LIENS,
CLAIMS, DEMANDS, DAMAGES, EXPENSES, FEES, COSTS, REASONABLE ATTORNEY
FEES AND RELATED EXPENSES, FINES, PENALTIES, SUITS, PROCEEDINGS,
ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY KIND AND NATURE
ARISING OUT OF TENANT'S USE, OCCUPANCY, CONSTRUCTION, MANAGEMENT OR
CONTROL OF THE LEASED SPACE, IMPROVEMENTS OR TENANT'S OPERATIONS,
CONDUCT OR ACTIVITIES, UNLESS AND TO THE EXTENT THE SAME IS DUE TO THE
GROSS NEGLIGENCE OR INTENTIONAL ACTS OR OMISSIONS OF LANDLORD, ITS
AGENTS, EMPLOYEES OR CONTRACTORS. TENANT'S OBLIGATIONS UNDER THIS
PARAGRAPH 7(al SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF
THE LEASE TERM. THE FOREGOING INDEMNIFICATIONS ARE EXPRESSLY
(b) Tenant's Insurance. Tenant shall, at its expense, obtain comprehensive
general liability insurance against all claims on account of bodily injury,: personal
injury or property damage, for which Tenant may, as a result of its business
operations or other use of the Leased Space, become liable, with limits !of not less
than (1) $1,000,000.00 for bodily injury to or death of any one person,
(2) $2,000,000.00 for any one occurrence for bodily injury to or death of one or
more persons arising out of any one occurrence, and (3) $1,000,000.00 per
occurrence with respect to any property damage; with a $5,000,000.00 umbrella
policy in addition to the foregoing policies. All polices of insurance to be maintained
by Tenant hereunder may be maintained by way of "blanket policies" insuring the
Leased Space and other premises and/or property owned or operated by Tenant or
its Affiliates, and shall be subject to such self -insured retention as may be included
in Tenant's policies, all in accordance with Texas law.
LEASE AGREEMENT PAGE 6 OF 13
(c) Workers Compensation. Tenant shall maintain workers compensation or
similar insurance affording not less than Texas statutory coverage minimums and
providing not less than statutory limits or benefits for all employees of Tenant
employed at the Leased Space.
(d) Scope. Each insurance or risk policy to be provided by Tenant
hereunder shall name Landlord or its designee as additional insured and shall also
contain a provision whereby the insurer agrees that such policy shall not be
cancelled except after 30 days' written notice to Landlord or its designee. The
insurance policies or duly executed certificates thereof, together with satisfactory
evidence that the premium has been paid, shall be provided to Landlord on or
before the Effective Date of this Lease; and, thereafter, evidence of continuing
insurance and premium payment shall be delivered to Landlord not less than
30 days prior to the expiration of each policy required to be in force hereunder. If
Tenant fails to maintain the required insurance or to deliver evidence of same,
Landlord may, but shall not be obligated to, obtain such insurance and be
reimbursed by Tenant upon demand.
(e) Waiver of Subrogation. Landlord shall not be liable by way of
subrogation or otherwise to Tenant or to any insurance company insuring Tenant
for any loss or damage to any of the property of the Landlord or Tenant covered by
insurance even though such loss or damage might have been occasioned by the
negligence of: (1) Landlord or its officers, directors, employees, agents,
contractors, customers, or visitors and invitees of Landlord at the Premises; or (2)
Tenant or its Permittees. This waiver shall be in effect only so long as the applicable
insurance policies shall contain a clause or endorsement to the effect that the
waiver shall not affect the right of the insured to recover under such policies.
Tenant shall use its best efforts, including payment of any additional premium, to
have its insurance policies contain the standard waiver of subrogation clause. In the
event Tenant's insurance carrier declines to include in such carrier's policies a
standard waiver of subrogation clause, Tenant shall promptly notify Landlord.
8. Destruction, Condemnation.
(a) Destruction.
(1) Cancellation. If any portion of the Improvements situated on the
Leased Space shall be damaged or destroyed to the extent that Tenant!can no
longer peaceably enjoy the Leased Space after Landlord has had at least 30 days
after written notice from Tenant to cure any such damage or destruction , then this
Lease shall terminate at Tenant's sole option and discretion indicated by written
notice from Tenant within 30 days following such damage or destruction.
(2) Restoration. In the event of damage or destruction not caused by
Tenant's or Landlord's intentional misconduct or breach of this Agreement, and in
the event Tenant has elected not to terminate the lease, Landlord shall,; at its sole
discretion: (1) remove any debris and cause the Leased Space to be repaired or
LEASE AGREEMENT PAGE 7 OF 13
restored as Tenant may deem necessary or desirable, but in any .event the Leased
Space shall be repaired or restored by Landlord to a safe and sightly condition in
compliance with all applicable laws; or (2) terminate this Lease as indicated by
written notice from Landlord within 30 days following such damage or destruction.
(b) Condemnation.
(1) Taking of Parking or Access. In the event of a taking by the
power of eminent domain or conveyance in lieu thereof ("Taking") of the whole or
any part of the Leased Space, this Lease shall terminate at Tenant's sole option and
discretion indicated by written notice from Tenant within 30 days' following such
Taking. If Tenant continues under this Lease, the rental amount shall not be
adjusted therefore, except by mutual agreement of the parties. However, neither
this provision nor any other provision in this Lease shall be interpreted to restrict in
any manner the Landlord's right to grant, convey, or dedicate easements on any
part of the Leased Space to any person or entity allowing any type of use so long as
such use does not degrade Tenant's ability to operate its business.
(2) Awards. All compensation awarded for any Taking of the Leased
Space (other than a Taking initiated or consummated by the City of Anna, Texas),
including any interest of Landlord or Tenant therein, shall be the property of
Landlord, and Tenant hereby assigns to Landlord all of Tenant's rights, title and
interest in and to any and all such compensation.
9. Default.
(a) Events of Default. The following are events of default ("Events of
Default"):
(1) Obligations. Either party ("Defaulting Party") fails to perform any
obligation, covenant or condition or to comply with any provisions of the Lease and
such failure continues for 30 days after written notice from the other party ("Non -
Defaulting Party"), unless said default requires more than 30 days to cure and the
Defaulting Party commences a cure within 30 days after written notice and
thereafter maintains a diligent effort to complete the cure.
(2) Bankruptcy. Either party files in any court pursuant to any statute
a petition in bankruptcy or insolvency or for reorganization or arrangement or
makes an assignment for the benefit of creditors or any such petition is filed
against a party and a receiver or trustee of all or any portion of that party's
property is appointed and such proceeding is not dismissed or the trusteeship
discontinued within 90 days after such appointment.
(b) Remedies. Upon the occurrence of an Event of Default by either party,
the Non -Defaulting Party shall have the right to terminate this Lease due to the
other's default and has the additional right to pursue a cause of action at law or in
equity. In the event of early termination as a remedy to default, Tenant shall be
liable to Landlord for a prorated portion of the rent and any utility amounts that
LEASE AGREEMENT PAGE 8 OF 13
would normally be due up and until the date that Tenant surrenders the Leased
Space in accordance with this Lease, subject to offset for any damages at law or in
equity.
10. General Provisions.
(a) Notice. "Notice" shall mean any notice, notification, consent, approval,
request, designation, submission, specification, election or other communication
required or permitted under this Lease. All Notices shall be in writing and shall be
deemed to have been given and received the earlier of (1) the date the Notice is
delivered by one party to the other party personally or delivered to the party's
address by a party or by a delivery service which records delivery dates, or
(2) three days after the Notice is placed in the mail addressed to the other party at
the party's address, properly stamped, certified or registered mail, return receipt
requested. A party"s address shall be as follows or as set forth in a written Notice to
the other party:
Landlord: City Manager
City of Anna, Texas
111 N. Powell Parkway
Anna, Texas 75409
Fax: 972-924-2620
and to: Clark McCoy
Wolfe, Tidwell & McCoy, LLP
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
Fax: 972-712-3540
Tenant: Dan Christensen
CARDS Dallas, Incorporated
3020 Sargent Road
Dallas, Texas 75203
(b) Entire Agreement. This Lease embodies the entire agreement and
understanding between the parties as to the lease of the Leased Space', by Tenant
and supersedes all prior negotiations, agreements and understandings pertaining to
such lease. Any provision of this Lease may be modified, waived or discharged only
by an instrument in writing signed by the party against which enforcement of such
modification, waiver or discharge is sought. This Lease is not intended to be nor
shall it be construed as a service contract or contract for the sale of goods by
Tenant to Landlord. Landlord does not by entering into this Lease waive any
immunities it may have under common law or statute.
LEASE AGREEMENT PAGE 9 OF 13
(c) Commission. Tenant and Landlord hereby represent to each other that
neither has entered into any agreement or understanding that would give rise to a
real estate commission being owed in connection with this Lease, and each of
Landlord and Tenant shall indemnify and hold the other harmless against any
commission, payment, interest or participation claimed on account of this Lease
with any party under any alleged agreement or understanding entered' into on that
party's behalf with the person or entity claiming the commission, payment, interest
or participation.
(d) Force Majeure. Each party shall be excused from performing an
obligation or undertaking provided for in this Lease for so long as such performance
is prevented, delayed, retarded or hindered by an Act of God, fire, earthquake,
flood, explosion, action of the elements, war, invasion, insurrection, riot, mob
violence, sabotage, strike, lockout, epidemic, pandemic, action of labor unions,
requisitions, laws, or orders of government or civil or military authorities.
(e) Surrender. Upon the expiration of the Term or earlier termination of
this Lease.. Tenant shall surrender the Leased Space to Landlord. Tenant shall
remove all Personal Property, which are not fixtures (other than fixtures installed by
Tenant pursuant to Section 4(f) above, which Tenant may remove at Tenant's
expense), and shall return any area altered by Tenant for use into its previous
condition, subject to Landlord's election to allow any specific items to remain "as
is," which election Tenant may secure only in writing from Landlord. All other
installations or improvements, including all infrastructure, structures, buildings,
HVAC equipment, paneling, decorating, partitions, railings, mezzanine floors, and
galleries made by either party shall be and become upon installation, the property
of Landlord and shall be surrendered with the Leased Space at the expiration or
termination of this Lease unless Landlord notifies Tenant to the contrary in writing,
in which event Tenant may remove such property at its expense. Any property not
promptly removed by Tenant under the provisions of this subparagraph may, at
Landlord's option, be deemed to have been abandoned by Tenant and may be
retained by Landlord without any claim by Tenant. Tenant shall in any event repair
any damage to the Leased Space caused by Tenant's removal of any property.
(f) Applicable Law, Construction. The laws of the State of Texas shall
govern the validity, performance and enforcement of this Lease. Any dispute arising
under this Lease resulting in litigation shall be adjudicated solely in a court of
competent jurisdiction in Collin County, Texas. The invalidity or unenforceability of
any provision of this Lease shall not affect or impair any other provision. If any
provision of this Lease is capable of two constructions, one of which would render
the provision invalid and the other of which would make the provision valid, the
provision shall have the meaning which renders it valid. The submission of this
document for examination does not constitute an offer to lease, this document
being effective only upon the conditions stated herein.
(g) Time of the Essence. Time is of the essence with respect to each
provision, term and covenant of this Lease.
LEASE AGREEMENT PAGE 10 OF 13
(h) Captions. The captions are for convenience and do not limit or define
the provisions of this Lease.
(i) Gender, Number. Whenever the sense of this Lease requires it, the use
of (1) singular number shall be deemed to include the plural, (2) the masculine
gender shall be deemed to include the feminine or neuter gender, and ,(3) the
neuter gender shall be deemed to include the masculine and feminine gender.
(j) Counterparts. This Lease may be executed in multiple counterparts,
each of which shall be an original, but all of which shall constitute one instrument.
(k) Contract Interpretation. This Lease is the result of negotiation between
the parties, and shall, in the event of any dispute over the meaning or application
of any portion thereof, be interpreted fairly and reasonably, and not to be more
strictly construed against one party than another, regardless of which party
originally drafted the language in dispute.
(1) No Joint Venture. It is acknowledged and agreed by the parties that the
terms hereof are not intended to and shall not be deemed to create a partnership
or joint venture among the parties.
(m) Binding Effect. All provisions of this Lease shall be binding, upon and
inure to the benefit of the parties and their respective successors and permitted
assigns.
SIGNATURE PAGES TO FOLLOW
LEASE AGREEMENT PAGE 11 OF 13
LANDLORD:
CITY OF ANNA, TEXAS
By:
Name: R n Henderson
Title: I terim City Manager
STATE OF TEXAS §
COUNTY OF COLLIN §
{h
This instrument was acknowledged before me on the 2& day of Se.V ens b2r ,
2023, by Ryan Henderson, Interim City Manager of the City of Anna, Texas, a
home -rule municipality on behalf of said municipality.
JEOVANNA RUBIO
Notary Public, State of Texas
Notary Public/State of Texas
' :'• "� Comm. Expires 10-03-2026
Notary ID 133995676
LEASE AGREEMENT PAGE 12 OF 13
TENANT:
CARDS Dallas Inc.,
a Texas corporation
By.
Name:
Title:
STATE OF TEXAS §
COUNTY OF COLLIN §
This instrument was acknowledged before me on the
2023, by , its
corporation.
day of ,
on behalf of said
Notary Public/State of Texas
LEASE AGREEMENT PAGE 13 OF 13
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EXHIBIT C
TENANT'S CERTIFICATE AND AGREEMENT
THIS TENANT'S AS -IS CERTIFICATE AND AGREEMENT (this
"Agreement"), is made as of February 16, 2023 by the City of Anna.. Texas, a
home -rule municipality ("Landlord") and CARDS Dallas Inc. ("Tenant"),
RECITALS
WHEREAS, pursuant to the terms of that certain Lease, effective as of February
1, 2021, by and between Landlord and Tenant (as the same may have been
amended or modified, the "Lease"), Landlord agreed to lease to Tenant, inter alia,
that certain Leased Space as defined in the Lease and certain rights appurtenant
thereto, all as more particularly described in the Lease. Initially capitalized terms
not otherwise defined herein shall have the respective meanings ascribed to such
terms in the Lease; and
WHEREAS, the Lease requires, inter alia, that, as a condition precedent to
Landlord's obligations under the Lease, Tenant shall execute and deliver this
Agreement to Landlord at commencement of the Term.
NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Tenant hereby certifies and agrees as follows:
1. For purposes of this Agreement, the following terms shall have the following
meanings:
"Assumed Liabilities" shall mean any and all Liabilities attributable to the
physical condition of the Leased Space including, without limitation, (a) all
Liabilities with respect to the condition of the Leased Space for which Tenant is to
be responsible for repairs or maintenance under this Lease; (b) all Liabilities
relating to the release of or the presence, discovery or removal of any Hazardous
Materials caused by Tenant in, at, about, near, or under the Leased Space, or for,
connected with or arising out of any and all claims or causes of action based upon
CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. §§9601 et seq., as amended by SARA (Superfund Amendment
and Reauthorization Act of 1986) and as may be further amended from time to
time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901 et
seq., or any related claims or causes of action or any other Federal, State or
municipal -based statutory or regulatory causes of action for environmental
contamination at, in, about, near, or under the Leased Space to the extent that any
of the foregoing causes of actions or claims arise from or relate to any
environmental contamination or violation of Environmental Laws caused or
committed by Tenant during Tenant's occupancy of the Leased Space; and (c) any
tort claims made or brought with respect to the Leased Space arising out of the use
or operation thereof by Tenant or its invitees and not arising from Landlord's breach
TENANTS AS -IS CERTIFICATE AND AGREEMENT PAGE 1 OF 7
of its obligations under this Lease or with respect to the Leased Space.
Notwithstanding the foregoing, however, "Assumed Liabilities" shall not include any
Liabilities arising out of or in connection with:
(i) any claims made or causes of action brought by any governmental authority
as a result of any violations of any applicable laws that were caused by
Landlord or by persons other than Tenant, or its invitees during the Lease
term, during the time that Landlord owned title to the Premises (except for
claims made or causes of action brought by Landlord, arising under, in
connection with, growing out of or otherwise related to the Lease or this
Agreement); and/or
(ii) any and all Liabilities relating to the release of or the presence, discovery or
removal of any Hazardous Materials introduced or installed by Landlord or by
persons other than Tenant, or its invitees during the Lease term, during or
prior to Landlord's period of ownership of the Premises to, in, at, about,
near, or under the Leased Space, or for, connected with or arising out of any
and all claims or causes of action based upon CERCLA (Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
§§9601 et seq., as amended by SARA (Superfund Amendment and
Reauthorization Act of 1986) and as may be further amended from time to
time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
§§6901 et seq., or any related claims or causes of action or any other
Federal, State or municipal -based statutory or regulatory causes of action for
environmental contamination (collectively "Environmental Laws") at, in,
about, near, or under the Leased Space to the extent that any of the
foregoing causes of actions or claims arise from or relate to any
environmental contamination or violation of Environmental Laws caused by
Landlord, or any person other than Tenant or its invitees, during or prior to
Landlord's period of ownership of the Premises.
(iii)any and all Liabilities relating to, arising from or based upon latent defects,
or conditions giving rise to work required to be done by Landlord under the
Lease.
The items listed in clauses (i)-(iii) above are referred to collectively !as the
"Excluded Liabilities".
"Tenant's Representatives" shall mean Tenant and any officers, directors and
senior employees of Tenant involved with the negotiation of the Lease.
"deemed to know" (or words of similar import) shall have the following
meaning:
(a) Tenant shall be "deemed to know" of the existence of a fact or circumstance
to the extent that:
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 2 OF 7
(i) any Tenant's Representative has actual knowledge of such fact or
circumstance, or
(ii) such fact or circumstance is disclosed by the Lease, or any other
Document' delivered to any of Tenant's Representatives.
(b) Tenant shall be "deemed to know" that any of Landlord's warranties or
representations is untrue, inaccurate or incorrect to the extent that:
(i) any Tenant's Representative has actual knowledge of information which
is inconsistent with any of Landlord's Warranties, or
(ii) the Lease or any Document contains information, which is inconsistent
with any of Landlord's warranties or representations.
"Documents" shall mean the documents and instruments applicable to the
Leased Space or any portion thereof that any of the Landlord Parties deliver or
make available to any Tenant's Representative prior to the date hereof or which are
otherwise obtained by any Tenant's Representative prior to the date hereof,
including, but not limited to, the Title Commitment, the Survey, the Title
Documents, and the Leased Space Documents.
"Due Diligence" shall mean examinations, inspections, investigations, tests,
studies, analyses, appraisals, evaluations and/or investigations with respect to the
Premises or Leased Space, the Documents, and other information and documents
regarding the Premises or Leased Space, including, without limitation the physical
condition of the Premises or Leased Space.
"Hazardous Materials" shall mean any substance, chemical, waste or material
that is or becomes regulated by any Federal, State or local governmental authority
because of its toxicity, infectiousness, radioactivity, explosiveness, ignitability,
corrosiveness or reactivity, including, without limitation, asbestos or any substance
containing more than 0.1 percent asbestos, the group of compounds known as
polychlorinated biphenyls, flammable explosives, oil, petroleum or any refined
petroleum product.
"Leased Space Documents" shall mean, collectively, any documents or
instruments which constitute, evidence or create or relate to any portion of the
Leased Space.
"Liabilities" shall mean, collectively, any and all losses, costs, damages, claims,
liabilities, expenses, demands or obligations of any kind or nature whatsoever.
1 Tenant is deemed to have knowledge if any fact or circumstance is disclosed by any
Documents (a broadly defined term) delivered or made available to Tenant, whether or not
Tenant has actual conscious awareness of a particular fact.
TENANT'S As -Is CERTIFICATE AND AGREEMENT PAGE 3 OF 7
"Landlord Parties" shall mean and include, collectively, (a) Landlord; (b) its
legal counsel; and (c) any third -party consultants engaged by Landlord to evaluate
the feasibility of the Lease.
2. Tenant acknowledges and agrees that, prior to the date hereof:, (a) Landlord
has made available to Tenant, or otherwise allowed Tenant access to, the Leased
Space; (b) Tenant has conducted (or has waived its right to conduct) all Due
Diligence as Tenant considered necessary or appropriate; (c) Tenant has reviewed,
examined, evaluated and verified the results of its Due Diligence to the extent it
deems necessary or appropriate with the assistance of such experts as Tenant
deemed appropriate; and (d) except for, and only to the extent of, Landlord's
warranties and representations contained in the Lease, is acquiring the Leased
Space based exclusively upon its own Due Diligence.
3. Tenant acknowledges and agrees that, except for, and only to the extent of,
Landlord's warranties and representations under the Lease:
(a) The Leased Space is being demised, and Tenant is accepting possession of
the Leased Space on the date hereof, "AS IS, WHERE IS, WITH ALL FAULTS",
with no right of setoff or reduction in any payment of Rent or Additional Rent
which may become due under the Lease, excepting any Excluded Liabilities.
(b) Except as stated in this Lease, none of the Landlord Parties have or shall be
deemed to have made any verbal or written representations, warranties,
promises or guarantees (whether express, implied, statutory or otherwise) to
Tenant with respect to the physical condition of the Leased Space, any
matter set forth, contained or addressed in the Documents (including, but
not limited to, the accuracy and completeness thereof) or the results of
Tenant's Due Diligence.
(c) Tenant has confirmed independently all information that it considers material
to its acceptance of the Leased Space.
(d) Tenant is not relying on (and Landlord and each of the other Landlord Parties
does hereby disclaim and renounce) any representations or warranties of any
kind or nature whatsoever, whether oral or written, express, implied,
statutory or otherwise, from any of the Landlord Parties, as to:
(i) the operation or performance of the Leased Space, the income potential,
economic status, uses, or the merchantability, habitability or'fitness of
any portion of the Leased Space for a particular purpose other than for
commercial office use;
(ii) the physical condition of the Leased Space or the condition or safety of
the Leased Space or any component thereof, including, but not limited
to, plumbing, sewer, heating, ventilating and electrical systems, roofing,
air conditioning, foundations, soils and geology, including Hazardous
TENANT'S As -Is CERTIFICATE AND AGREEMENT PAGE 4 OF 7
Materials, lot size, or suitability of the Leased Space or any component
thereof for a particular purpose other than for commercial office use;
(iii) the presence or absence, location or scope of any Hazardous Materials
in, at, about, near, or under the Leased Space;
(v) whether the improvements are structurally sound, in good condition, or
in compliance with applicable Laws, other than that the Leased Space
have been delivered by the Landlord empty and broom clean, that the
HVAC system is in working order at the time of delivery, and that the
Leased Space are suitable for commercial office use;
(vi) the dimensions of the Leased Space or the accuracy of square footage,
sketches, or revenue or expense projections related to the Leased
Space;
(vii)the locale of the Leased Space, the leasing market for the Leased Space,
or the market assumptions Tenant utilized in its analysis of the Leased
Space and determination of the Rent amount; and
(viii)whether the Leased Space is or would likely constitute a target of
terrorist activity or other acts of war.
(e) Except as otherwise set forth in the Lease, Landlord is under no duty to
make any affirmative disclosures or inquiry regarding any matter, which may
or may not be known to any of Landlord Parties regarding the physical
condition of the Leased Space, and Tenant, for itself and for its successors
and assigns, hereby specifically waives and releases each of the Landlord
Parties from any such duty that otherwise might exist.
4. Except as may be provided in the Lease regarding any repairs agreed to be
done by Landlord, any repairs or work required by Tenant are the sole responsibility
of Tenant, and Tenant agrees that there is no other obligation on the part of
Landlord to make any changes, alterations or repairs to the Leased Space,
including, without limitation, to cure any violations of Law, comply with the
requirements of any insurer or otherwise. Except as may be provided in ;the Lease,
Landlord is solely responsible for obtaining any certificate of occupancy or any other
approval or permit necessary for the transfer or occupancy of the Leased Space;
provided further, Landlord is responsible for any repairs or alterations necessary to
obtain the same, at Landlord's sole cost and expense.
5. Tenant (i) having inspected the Leased Space as described above, (ii) having
conducted, reviewed, examined, evaluated and verified the results of all Due
Diligence to the extent Tenant deems appropriate as described above, (iii) having
notified Landlord of any changes, alterations or repairs required to be made to the
Leased Space that Tenant has discovered as a result of such Due Diligence at the
time of the signing of this Lease, and (iv) having determined that Tenant shall
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 5 OF 7
accept the Leased Space based exclusively upon its own Due Diligence (except for,
and only to the extent of, Landlord's warranties and representations under the
Lease), then, accordingly,. Tenant agrees with Landlord that Tenant is in fact
accepting the Leased Space based exclusively upon its own Due Diligence, except
for, and only to the extent of, Landlord's warranties and representations under the
Lease, and to evidence the foregoing, Tenant agrees to release Landlord as set
forth below. Accordingly, except as expressly provided hereinbelow in this
Section 5, Tenant, for Tenant and Tenant's successors and assigns, hereby releases
each of the Landlord Parties from, and waives any and all Assumed Liabilities
against each of the Landlord Parties for or attributable to or in connection with the
Leased Space, whether arising or accruing before, on or after the date hereof and
whether attributable to events or circumstances, which have heretofore or may
hereafter occur.
Notwithstanding the foregoing, the release and waiver set forth in this Section 5 is
not intended and shall not be construed as (i) affecting or impairing any rights or
remedies that Tenant may have against Landlord as a result of a breach of any of
Landlord's warranties and representations under the Lease, or (ii) shifting to Tenant
any obligation, responsibility or liability for any Liability that does not constitute an
Assumed Liability. Landlord hereby confirms it takes responsibility and liability for
the Excluded Liabilities.
6. Tenant hereby assumes and takes responsibility and liability for all Assumed
Liabilities. Notwithstanding the foregoing, nothing in this Section 6 shall, be
construed to affect or limit Tenant's rights or remedies against Landlord as a result
of Landlord's breach of Landlord's warranties and representations under'- the Lease.
7. Tenant expressly understands and acknowledges that it is possible that
unknown Assumed Liabilities may exist with respect to the Leased Space and that
Tenant explicitly took that possibility into account in determining and agreeing to
accept the Leased Space, and that a portion of such consideration, having been
bargained for between parties with the knowledge of the possibility of such
unknown Assumed Liabilities has been given in exchange for a full accord and
satisfaction and discharge of all such Assumed Liabilities, except for Assumed
Liabilities arising as a result of Landlord's breach of Landlord's warranties and
representations under the Lease.
8. Tenant acknowledges and agrees that the provisions of this Agreement were
a material factor in Landlord's agreement to lease the Leased Space to Tenant and,
while Landlord has provided the Documents and cooperated with Tenant, Landlord
is unwilling to lease the Leased Space unless the Landlord Parties are expressly
released as set forth in Section 5 and Tenant assumes the obligations specified in
Section 6.
9. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 6 OF 7
10. If any term or provision of this Agreement or the application thereof to any
persons or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby, and each term and provision of this Agreement shall
be valid and enforced to the fullest extent permitted by law.
TENANT:
CARDS Dallas Inc.,
a Texas corporation
By.
Name:
Title:
STATE OF TEXAS §
COUNTY OF COLLIN §
This instrument was acknowledged before me on the day of ,
2023, by , its on behalf of said
corporation.
Notary Public/State of Texas
TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 7 OF 7