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R-13-08-08-G15 - 8/8/2013RESOLUTION NO. R -13-08-08-G15 WHEREAS, the City desires to purchase approximately three acres of land located at 115 Bagdad, and WHEREAS, N.I.R. Investments, LTD, the owner of the Property, has agreed to sell said Property to the City, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Real Estate Contract with N.I.R. Investments, LTD, for the purchase of the above described Property, a copy of said Real Estate Contract being attached hereto as Exhibit "A" and incorporated herein for all purposes, and a lease bakagreement which is attached to said Real Estate Contract. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 8th day of August, 2013. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: 9v144/1 - SARA L. WHITE, City Clerk 0112.1304;00279441 REAL ESTATE CONTRACT EXHIBIT A„ 1. PARTIES: The parties to this contract are N.I..R Investments, LTD (Seller) and The City of Round Rock, Iexas (Buyer). Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the Property defined below 2. PROPERTY: BEING 2.13.5.5 acres of land out of the Wiley Harris Survey, Abstract No. 298, in the City of Round Rock, Williamson County, Texas, described in Deed to William P Vince, Trustee, recorded under Document No. 9620827, Official Records of Williamson County, and being all that certain tract of land called 2 132 acres described in Deed from The Missouri Pacific Railroad to Cecil L Slayton recorded in Volume 758, Page 427, Deed Records of Williamson County, and being more particularly described in Exhibit A, attached hereto and made a par t thereof And BEING 0 8791 of an acre of land out the Wiley Harris Survey, Abstract No 298, in the City of Round Rock, Williamson County, Texas, and being a part of that certain tract or parcel of land described in a Deed to the International and Great Northern Railroad Company recorded in Volume 22, Page 441, Deed Records of Williamson County, and being more particularly described in Exhibit B, attached hereto and made a part thereof 3. SALES PRICE: A.. Cash Sales Price payable by Buyer at closing 4. DUE DILLIGENCE: $ 2,100,000 00 On or before the date that is five (5) days after the Effective Date (the "Document Delivery Date"), Seller shall, at Seller's sole cost and expense, provide to Buyer true, correct, and complete copies of all of the following documents within Seller's possession or control (collectively, the "Property Materials"), or written notice as to the non- existence of any such Property Materials within Seller's possession or control: (a) All existing surveys of the Property; (b) All existing environmental reports for the Property 5. INSPECTION PERIOD: Buyer may terminate this Agreement for any reason for a period of thirty (30) days after the effective date (the "Inspection Period") by providing written notice of termination to Seller and the Iitle Company. In the event this Agreement is terminated in accordance with this 115 Bagdad - Contract FINAL docx Real Estate Contract; Page 2 section, then the Earnest Money shall be immediately returned to Buyer 6. EARNEST MONEY: Within three (3) days of the execution of this contract by all parties, Buyer shall deposit $35,000.00 as earnest money with Georgetown Iitle Co , Inc., as escrow agent, at 1717 N. Mays Street, Round Rock, Texas 78681. IfBuyer fails to deposit the earnest money as required by this contract, Buyer will be in default. 7. TITLE POLICY AND SURVEY: A. IIILE POLICY: Seller shall furnish to Buyer at Seller's expense an owner policy of title insurance (Title Policy) issued by Georgetown Title Company (Title Company) in the amount of the Sales Price, dated at or after closing, insuring Buyer against loss under the provisions of the Title Policy, subject to the promulgated exclusions (including existing building and zoning ordinances) and the following exceptions: the standard printed exception for standby fees, taxes and assessments. Reservations or exceptions otherwise permitted by this contract or as may be approved by Buyer in writing the standard printed exception as to marital rights. The standard printed exception as to waters, tidelands, beaches, streams and related matters the standard printed exception as to discrepancies, conflicts, shortages in area or boundary lines, encroachments or protrusions, or overlapping improvements. Buyer, at Buyer's expense, may have the exception amended to read, "shortages in area" B COMMITMENT: Within 10 days after the Iitle Company receives a copy of this contract, Seller shall furnish to Buyer a commitment for title insurance (Commitment) and, at Buyer's expense, legible copies of restrictive covenants and documents evidencing exceptions in the Commitment (Exception Documents) other than the standard printed exceptions. Seller authorizes the Title Company to deliver the Commitment and Exception Documents to Buyer at Buyer's address shown in Paragraph 21 If the Commitment and Exception Documents are not delivered to Buyer within the specified time, the time for delivery will be automatically extended up to 15 days or the Closing Date, whichever is earlier If, due to factors beyond Seller's control, the Commitment and Exception Documents are not delivered within the time required, Buyet may terminate this contract and the earnest money will be refunded to Buyer. Initialed for identification by Buyer _ and Seller Real Estate Contract; Page 3 SURVEY: If a survey is desired by Buyer, within 30 days after the effective date, Buyer shall obtain a new survey at Buyer's expense Buyer is deemed to receive the suxvey on the date of actual receipt or the date five days after the end of the Inspection Period, whichever is earlier. OBJECIIONS: Within five (5) days after receives the title commitment, copies of the documents evidencing the title exceptions and any desired survey, Buyer may object in writing to matters disclosed in the items if (a) the matter disclosed are a restriction upon the Property or constitute a defect or encumbrance to title other than those permitted by this contract or liens that Sellet will satisfy at closing; or (b) the items show that any part of the Property lies in a special flood hazard area (an "A" of "V" zone as defined by FEMA). Buyer's failure to object within the time allowed will constitute a waiver of Buyer's right to object; except that the requirements in Schedule C of the Commitment are not waived by Buyer. Seller may, but is not obligated to cure the timely objections of Buyer within 15 days after Seller receives the objections and the Closing Date will be extended as necessary. If objections are not cured within such 15 day period, Buyer may terminate this contract by providing written notice to Seller within five (5) days after the time by which Seller must cure the objections. If Buyer terminates, the earnest money will be refunded to Buyer unless Buyer waives the objections.. E. IIILE NOTICES: (1) ABSTRACT OR TITLE POLICY: Buyer is advised to have an abstract of title covering the Property examined by an attorney of Buyer's selection, or Buyet should be furnished with or obtain a Iitle Policy If a Iitle Policy is furnished, the Commitment should be promptly reviewed by an attorney of Buyer's choice due to the time limitations on Buyer's right to object 8. PROPERTY CONDITION: A ACCESS, INSPECIIONS AND UIILITIES: Seller shall permit Buyer and Buyer's agents access to the Property at reasonable times. Buyer may have the Property inspected by inspectors selected by Buyer and licensed by IREC or otherwise permitted by law to make inspections. Seller at Seller's expense shall immediately cause existing utilities to be turned on and shall keep the utilities on during the time this contract is in effect. NOTICE: Buyer should determine the availability of utilities to the Property suitable to satisfy Buyer's Needs. Initialed for identification by Buyer and Seller Real Estate Contract; Page 4 B. SELLER'S DISCLOSURE NOTICE PURSUANI TO SECTION 5.008, TEXAS PROPERIY CODE (Notice): the Iexas Property Code does not require this Seller to furnish the Notice. C. SELLER'S DISCLOSURE OF LEAD-BASED PAINT AND LEAD-BASED PAINT HAZARDS is required by Federal Law for a residential dwelling constructed prior to 1978 D. ACCEPTANCE OF PROPERTY CONDITION: As a material part of the consideration for this contract, Seller and Buyer agree that Buyer will accept the Property "AS IS" with any and all defects, including, but not limited to, latent defects, and that there is no warranty by Seller that the property is fit for a particular purpose Buyer acknowledges that Buyer is not relying on any representation, statement or other assertion with respect to the Property condition, but is relying on Buyer's examination of the Property.. Buyer takes the property with the express understanding that Seller has made and will make no warranties, expressed or implied, regarding the property, other than the warranties of title contained in the deed conveying the Property to Buyer Ihese provisions shall survive closing. Buyer and Seller agree that this Contract is in lieu of condemnation initiated by Buyer E.. ENVIRONMENTAL MATTERS: Buyer is advised that the presence of wetlands, toxic substances, including asbestos and wastes or other environmental hazards, or the presence of a threatened or endangered species or its habitat may affect Buyer's intended use of the Property. If Buyer is concerned about these mattets, an addendum either promulgated by TREC or required by the patties should be used. SELLER'S DISCLOSURES: Except as otherwise disclosed in this contract, Seller has no current actual knowledge of the following and no duty to make any further inquiry into these matters: (1) any flooding of the Property which has had a material adverse effect on the use of the Property; (2) SAVE AND EXCEPI the Buyer, any pending or threatened litigation, condemnation, or special assessment affecting the Property; (3) any environmental hazards or conditions materially affecting the Property; (4) any dumpsite, landfill, or underground tanks or containers now or previously located on the Property; Initialed for identification by Buyer — and Seller Real Estate Contract; Page 5 (5) (6) any wetlands, as defined by federal or state law or regulation, affecting the Property; or any threatened or endangered species or their habitat affecting the Property 9. CLOSING: A The closing of the sale will be on or before August 21, 2013 If either party fails to close the sale by the Closing Date, the non -defaulting party may exercise the remedies contained in Paragraph 15. B At closing: (1) Seller shall execute and deliver a special warranty deed conveying title to the Property to Buyer and showing no additional exceptions to those permitted in Paragraph 7, and furnish tax statements or certificates showing no delinquent taxes on the Property (2) Buyer shall pay the Sales Price in good funds acceptable to the escrow agent (3) Seller and Buyer shall execute and deliver any notices, statements, certificates, affidavits, releases, loan documents and other documents reasonably required for the closing of the sale and the issuance of the Iitle Policy. (4) Ihere will be no liens, assessments, or security interests against the Property which will not be satisfied out of the sales proceeds unless securing the payment of any loans assumed by Buyer and assumed loans will not be in default. 10. POSSESSION: Seller shall deliver to Buyer possession of the Property in its present or required condition, ordinary wear and tear excepted: upon closing and funding Any possession by Buyer prior to closing or by Seller after closing which is not authorized by a written lease will establish a tenancy at sufferance relationship between the parties 11. SETTLEMENT AND OTHER EXPENSES: A The following expenses must be paid at or prior to closing: (1) Expenses payable by Seller (Seller's Expenses): Releases of existing liens, including prepayment penalties and recording fees; release of Seller's loan liability; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses payable by Seller under this contract. (2) Expenses payable by Buyer (Buyer's Expenses): Appraisal fees; loan application fres; adjusted origination charges; credit reports; preparation of loan documents; interest on the notes from the date of disbursement to one month prior to dates of first monthly payments; recording fees; copies of easements and restrictions; loan title policy with endorsements required Initialed for identification by Buyer and Seller Real Estate Conti act; Page 6 by lender; loan -related inspection fees; photos, amortization schedules, one-half of escrow fee; all prepaid items, including required premiums for flood and hazard insurance, reserve deposits for insurance, ad valorem taxes and special governmental assessments; final compliance inspection; courier fee; repair inspection; underwriting fee; wire transfer fee; expenses incident to any loan; Private Mortgage Insurance Premium (PMI), VA Loan Funding Fee, or FHA Mortgage Insurance Premium (MIP) as required by the lender; and other expenses payable by Buyer under this contract. B If any expense exceeds an amount expressly stated in this contract fot such expense to be paid by a party, that party may terminate this contract unless the other party agrees to pay such excess.. 12. PRORATIONS AND ROLLBACK TAXES: A. PRORATIONS: Iaxes for the current year, interest, maintenance fees, assessments, dues and rents will be prorated through the Closing Date the tax proration may be calculated taking into consideration any change in exemptions that will affect the current year's taxes, If taxes fot the current year vary from the amount prorated at closing, the parties shall adjust the prorations when tax statements fot the current year are available. Iftaxes are not paid at or prior to closing, Buyer shall pay taxes fot the current year. Rentals which ate unknown at time of closing will be prorated between Buyer and Seller when they become known. B ROLLBACK IAXES: If this sale of Buyer's use of the Property after closing results in the assessment of additional taxes, penalties or interest (Assessments) for periods prior to closing, the Assessments will be the obligation of Buyer. If Seller's change in use of the Property prior to closing or denial of a special use valuation on the Property claimed by Seller results in Assessments for periods prior to closing, the Assessments will be the obligation of Seller Obligations imposed by this paragraph will survive closing 13. CASUALTY LOSS: If any part of the Property is damaged or destroyed by fire or other casualty after the effective date of this contract, Seller shall restore the Property to its previous condition as soon as reasonably possible, but in any event by the Closing Date. If Seller fails to do so due to factors beyond Seller's control, Buyer may (a) terminate this contract and the earnest money will be refunded to Buyer (b) extend the time for performance up to 15 days and the Closing Date will be extended as necessary or (c) accept the Property in its damaged condition and accept an assignment of insurance proceeds and receive credit from Seller at closing in the amount of the deductible under the insurance policy. Seller's obligations under this paragraph are independent of any obligations of Seller under this contract. Initialed f'or identification by Buyer and Seller Real Estate Contract; Page 7 14. DEFAULT: If Buyer fails to comply with this contract, Buyer will be in default, and Seller may (a) enforce specific performance, (b) terminate this contract and receive the earnest money as liquidated damages, thereby releasing both patties from this contract If Seller fails to comply with this contract for any other reason, Seller will be in default and Buyer may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money, thereby releasing both parties from this contract 15. MEDIATION: It is the policy of the State of Texas to encourage resolution of disputes through alternative dispute resolution procedures such as mediation Any dispute between Seller and Buyer related to this contract which is not resolved through informal discussion will be submitted to a mutually acceptable mediation service or providerthe patties to the mediation shall bear the mediation costs equally. This paragraph does not preclude a party from seeking equitable relief from a court of competent jurisdiction. 16. ATTORNEY'S FEES: A Buyer, Seller, Listing Broker, Othet Broker, or escrow agent who prevails in any legal proceeding related to this contract is entitled to recover reasonable attorney's fees and all costs of such proceeding 17. ESCROW: A ESCROW: The escrow agent is not (i) a party to this contract and does not have liability for the performance or nonperformance of any party to this contract, (ii) liable for interest on the earnest money and (iii) liable for the loss of any earnest money caused by the failure of any financial institution in which the earnest money has been deposited unless the financial institution is acting as escrow agent. B EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buyer's Expenses and any excess refunded to Buyer. If no closing occurs, esciow agent may (i) require a wiitten release of liability of the escrow agent from all parties, (ii) require payment of unpaid expenses incurred on behalf of a party, and (iii) only deduct from the earnest money the amount of unpaid expenses incurred on behalf of the party receiving the earnest money. C DEMAND: Upon termination of this contract, either party or the escrow agent may send a release of earnest money to each party and the parties shall execute counterparts of the release and deliver same to the escrow agent. Ifeither party fails to execute the release, either party may make a written demand to the esciow agent for the earnest money. If only one party makes written demand for the earnest money, esciow agent shall promptly provide a copy of the demand to the other party. If escrow agent does not receive wiitten objection to the demand from the other party within 15 days, escrow agent may disburse the earnest money to the party making demand reduced by the amount of unpaid expenses incurred on behalf of the patty receiving the earnest money and escrow agent may pay the Initialed for identification by Buyer and Seller Real Estate Contract; Page 8 same to the creditors If escrow agent complies with the provisions of this paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of the earnest money. D DAMAGES: Any party who wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7 days of receipt of the request will be liable to the other party for liquidated damages in an amount equal to the sum of (i) three times the amount of the earnest money; (ii) the earnest money; (iii) reasonable attorney's fees; and (iv) all costs of suit E NOIICES: Escrow agent's notices will be effective when sent in compliance with Paragraph 21. Notice of objection to the demand will be deemed effective upon receipt by escrow agent 18.. REPRESENTATIONS: All covenants, representations and warranties in this contract survive closing If any representation of Seller in this contract is untrue on the Closing Date, Seller will be in default. Unless expressly prohibited by written agreement, Seller may continue to show the Property and receive, negotiate and accept back up offers. 19. FEDERAL TAX REQUIREMENTS: If Seller is a "foreign person", as defined by applicable law, or if Seller fails to deliver an affidavit to Buyer that. Seller is not a "foreign person", then Buyer shall withhold from the sales proceeds an amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue Service together with appropriate tax forms Internal Revenue Service regulations require filing written reports if currency in excess of specified amounts is received in the transaction 20. NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand -delivered at, or transmitted by facsimile or electronic transmission as follows: To Seller at: Russell E Pae N I R. Investments, LTD 2525 McAllister Road Houston, Texas 77092 713-681-7773 phone To Buyer at: Steve Norwood City of Round Rock 221 E Main Street Round Rock, Iexas 78664 Initialed for identification by Buyer and Seller, Real Estate Contract; Page 9 512-218-5402 phone 21. AGREEMENT OF PARTIES: This contract contains the entire agreement of the parties and cannot be changed except by their written agreement Addenda which are a part of this contract ale: None.. 22. TERMINATION OPTION: None 23. LEASE BACK: At Closing, Buyer and Seller will agree to enter into a Lease Agreement (Lease Back) for the property As additional consideration for the Seller selling the Property to the Buyer, the Buyer agrees to a lease rate of $1.00 per month in the form attached hereto as Exhibit%.G. . 24. CONSULT AN ATTORNEY: IREC rules prohibit real estate licensees from giving legal advice READ THIS CONTRACI CAREFULLY If you do not understand the effect of this contract, consult an attorney BEFORE signing Buyer's Attorney is: Steve Sheets Sheets & Crossfield, P.0 309 E. Main Street Round Rock, Iexas 78664 512-255-8877 phone 512-255-8986 fax Seller's Attorney is: R. Mask Dietz Dietz & Ianard P..C.. 106 Fannin Avenue East Round Rock, Iexas 78664 512-244-9314 phone 512-244-3766 fax Initialed for identification by Buyer _ and Seller _ Real Estate Contract; Page 10 EXECUIED the _ day of , 2013_(EFFECIIVE DATE) (ATTORNEY: FILL IN IHE DATE OF FINAL ACCEPTANCE.) BUYER - City of Round Rock Steve Norwood, City Manager SELLER - N.I.R Investments, LTD Rigo Flores, Managing Partner CONTRACT AND EARNEST MONEY RECEIPT Receipt of [ ] Contract and [ ] $35,000.00 Earnest money in the form of is acknowledged. Escrow Agent: Georgetown Title Co , Inc. By: Initialed for identification by Buyer _ and Seller Date: , 2013 FIELD NOTES BEING 2.1355 ACRES OP LAND OUT or THE WILEY NARRIs SURVEY, ABSTRACT N0. 298, IN TUE CITY Or ROUND ROCn, WILLIAMSON COUNTY, TEEM, DESCRIBED IN A DEED TO WILLIAM P. VINCE, TRUSTEE, RECORDED UNDER DOCUMENT NO. 9620827r OFFICIAL RECORDS of WILLIAMSON COUNTY, AND BEING ALL OP THAT CERTAIN TRACT OF LAND CALLED 2.132 ACRES DESCRIBED IN A DEED PROM THE MISSOURI PACIFIC RAILROAD TO CECIL L. SLAYToN RECO$DED IN VOLUME 758, PAGE 427, DEED RECORDS OF WILLIAMSON COUNTY, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, TO FfIT: BEGINNING at a concrete right-of-way monument found at the most westerly northwest corner hereof, said monument being at the intersection of the southerly line Of E. Bagdad Avenue and the easterly line of South Maya Street, (U.. B. Highway 81 and LH - 35 Business Route)/ THENCE with the southerly line of said E. Bagdad Avenue, the following described two (2) courses and distances: 1) 1 28; 34' 45" 2 a distance of 104.12 feet to an iron rod found, and: 2) N 124 35' 20" E a distance of 435.10 feet to an iron rod found at the northeast oorner hereof; THENCE 5 174 24' 17" E a distance of 122.82 feet to en iron rod found at the southeast corner hereof in the nazth line of the Union Pacific Railroads; THENCE along and with the north line of said railroad, the following described three (3) courses and distances: 1) An arc distance of 329.06 feet with a curve to the left, said ourve being 50 feet north of and parallel with the centerline of said 'railroad, and having a central angle of 64 58' 38", a radius of 2708.78 feet, a, chord distance of 329.66 feet, and a chord bearing of 9 59e 23' 51" W, to a point: 2) 5 348 05' 28" E a dietance of 10.00 feet along a line radial to Said curve to an iron rod found, and: 3) An ard diet'snce of 203.44 feet with a curve to the left, said curve being 40 fent north of and parallel with the centerline of said railroad, and having a central angle of 48 19' 08", a radius of 2698.78 feet; a chord distance of 203 39 feat, and a chord bearing of S 538 44' 90" W, to an iron rod found at the southwest corner hereof at the.intersection of the north line of said railroad and the east line of South Mays street, and from which concrete right-of-way monuments found beat 8 178 14' 16" S a dietanoe of 4 40 feet and N 171 14' 16" W a distance df 134.08 feet; THENCE N 17'" 14' 16" W a distance of 200.98 feet with the east line of South Maya street to the Place of Beginning, containing 2.1355 acres of land, subaeot to easements, conditions or reetrictions of record, if any. Q G �L Docit 9645628 N Pages: a Date : 08-29-1996 Time : 03:58:45 P. M. Filed R Recorded in Official Records of ELAINELBIZZELLCountyr IX COUNTY CLERK Rec. $ 13.00 ork,a P e rra`; of ,t:a�:ndtiro k'ilk • 2022.1. UNION PACIFIC RAILROAD COMPANY Round Rock. Williams County, Texas BEING 0.8791 OE AN ACRE OF LAND OUT OF THE WILEY BARRIS SURVEY, ABSNACT N. 298, 3N THE CITY OF ROUND ROCK, WILLIAMSCN COUNTY, TEXAS, AND BEING A PART 0E THAT CERTAIN TRACT OR PARCEL OF LAND DESCRIBED ip1 A DEED TO THE TNDWATIONAL AND GREAT NORTBERN RAILROAD COMPANY RECORDED 1N VOLUME 22, PAGE 441, DEED RECORDS OF WTIdIA2SCtt CCtRP1.S:, AND BEING NDRE PARTTCUTARL.Y DESCRIBED BY METES AND FOUNDS AS FOLIT7hSS, TOWN: BEGINNING at an iron cod found at the northwest corner hereof in the south line of East Bagdad Avenue, said Sion rat also being the northeast corner of that certain 2.1355 acre tract of land described in a deed to N I R Investments, Ltd., recorded under County Clerk's Document No. 9645628 in the Official Records of Williamson County, Texas; THENCE 21 72' 35' 20' E a distance of 350.00 feet with the south line of said East Bagdad Avenue to a bolt set at the northeast corner hereof; THENCE S 11" 24' 40" E a distance of 94..87 feet to an iron rad set at the southeast corner hereof; THENCE parallel with and 42.00 feet north of the centerline of the maze track of the Union Pacific Railroad, an arc distance of 352.19 feet with a curve to the left, said curve having a central angle of 7' 28' 25", a radius of 2700..08 feet, a chord distance of 351.94 feet and.a chord bearing of S 66' 35'.29" W to an Iron rod set at the southwest corner hereof; tttE2KE 21 17' 24' 17' W, at 8.83 feet pass an iron rod found at the southeast corner of said 2.1355 acre tract, continuing an additional 122.82 feet with the east line of said tract, IN ALL a distance of 131.65 feet to the Place of Beginning, containing 0.8791 of an acre of land, subject to easements, conditions and restrictions of record, if. any. Office of Real Estate Omaha, Nebraska September 3, 1998 Written by: 7CO 1652-54 TEXAS ASSOCIATION OF REALTORS® COMMERCIAL LEASE USE OF THIS FORM BY PERSONS VINO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS®15 NOT AUTHORIZED ®Texas Association of REALTORSI, Inc. 2010 Table of Contents No. Paragraph Description .Poc .. 1. Parties 2. Leased Premises 3. Term A. Term B Delay of Occupancy 4 Rent and Expenses A. Base Monthly Rent B. First Full Month's Rent C Prorated Rent D Additional Rent E. Place of Payment F Method of Payment G. Late Charges H Returned Checks 5. Security Deposit 6. Taxes 7. Utilities 8. Insurance 9. Use and Hours 10 Legal Compliance 11. Signs 12 Access By Landlord 13 Move -In Condition 14 Move -Out Condition 15 Maintenance and Repairs A. Cleaning B Conditions Caused by a Party C. Repair & Maintenance Responsibility D. Repair Persons E HVAC Service Contract F. Common Areas G Notice of Repairs H. Failure to Repair 16 Alterations 17 Liens 18. Liability 19. Indemnity 20 Default 21 Abandonment, Interruption of Utilities, Removal of Property & Lockout 2 2 2 3 4 4 4 5 6 6 7 7 7 7 8 9 9 10 10 10 10 (TAR -2101) 1-26-10 Initialed for Identification by Landlord: No. Paragraph Description Pg: 22 Holdover 23 Landlord's Lien & Security Interest 24 Assignment and Subletting 25 Relocation 26 Subordination 27 Estoppel Certificates & Financial Info. 28 Casualty Loss 29. Condemnation 30 Attorney's Fees 31 Representations 32. Brokers 33. Addenda 34. Notices 35. Special Provisions 36. Agreement of the Parties 10 11 11 11 11 11 12 12 12 12 13 13 13 14 14 ADDENDA & EXHIBITS (check all that apply) ❑ Exhibit ❑ Exhibit ❑ Commercial Lease Addendum for Broker's Fee (TAR -2102) ❑ Commercial Lease Addendum for Expense Reimbursement (TAR -2103) ❑ Commercial Lease Addendum for Extension Option (TAR -2104) ❑ Commercial Lease Addendum for Percentage Rent (TAR -2106) ❑ Commercial Lease Addendum for Parking (TAR -2107) ❑ Commercial Landlord's Rules and Regulations (TAR -2108) ❑ Commercial Lease Guaranty (TAR -2109) ❑ Commercial Lease Addendum for Right of First Refusal (TAR -2105) ❑ Commercial Lease Addendum for Optional Space (TAR -2110) ❑ Commercial Lease Addendum for Construction (TAR -2111) or (TAR -2112) ❑ Commercial Lease Addendum for Contingencies (TAR -2119) ❑ Information About Brokerage Services and Tenant: Page 1 of 15 Summit Commercial 20 Chisholm f rail Round Rock. TX 78681 Phone: (512)244-9707 Fax: Russ Boles Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road, Fraser Michigan 48026 www zipLooix corn EXHIBIT c„ CORR NIR TEXAS ASSOCIATION OF REALIORS® COMMERCIAL LEASE USE OF THIS FORM BY PERSONS ,AHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED ©Texas Association of REALTORS», Inc. 2010 1. PARTIES: The parties to this lease are: Landlord: City of Round Rock ; and NIR Investments, LTD. Tenant: 2. LEASED PREMISES: A. Landlord leases to Tenant the following described real property, known as the 'leased premises," along with all its improvements (Check only one box) : ❑ (1) Multiple -Tenant Property: Suite or Unit Number containing approximately square feet of rentable area in (project name) at (address) in (city), (county), Texas, which is legally described on attached Exhibit or as follows: ID (2) Single -Tenant Property: The real property at: 115 Bagdad Road (address) in Round Rock (city), Williamson (county), Texas, which is legally described on attached Exhibit or as follows: B. If Paragraph 2A(1) applies: (1) "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks; and (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable area within the leased premises and may include an allocation of common areas in the Property The rentable area ❑ will a will not be adjusted if re -measured. 3. TERM: A. Term: The term of this lease is 9 months and 5 days, commencing on: August 26, 2013 (Commencement Date) and ending on May 31, 2014 (Expiration Date) (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 2 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zipLooix com CORR NIR 115 Bagdad Road Commercial Lease conceming: Round Rock, TX 78664 B. Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the teased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Landlord will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains unchanged. If Tenant is unable to occupy the leased premises after the 90th day after the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body 4. RENT AND EXPENSES: A. Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay Landlord base monthly rent as described on attached Exhibit or as follows: Dates Rate per rentable scuare foot (optional) Base Monthly , Rent $ From To $ Monthly Rate $ Annual Rate 08/26/2013 05/31/2014 1.00 / rsf / month / rsf l year 1.00 / rsf / month / rsf / month / rsf / year / rsf / year / rsf / month / rsf / year / rsf / month,. / rsf / year B. Additional Rent: In addition to the base monthly rent, Tenant will pay Landlord all other amounts, as provided by the attached (Check all that apply.) : ❑ (1) Commercial Lease Addendum for Expense Reimbursement (TAR -2103) ❑ (2) Commercial Lease Addend um for Percentage Rent (TAR -2106) ❑ (3) Commercial Lease Addendum for Parking (TAR -2107) ❑ (4) All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this lease C. First Full Month's Rent: The first full monthly rent is due on or before August 26, 2013 D. Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences. The prorated rent is due on or before the Commencement Date. E Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate in writing: Name: City of Round Rock Address:221 East Main Street, Round Rock, TX 78664 (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 3 of 15 Produced with ZipForme by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLooix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 F. Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any check of Tenant is returned to Landlord by the institution on which it was drawn, Landlord after providing written notice to Tenant may require Tenant to pay subsequent amounts that become due under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds. G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due, Tenant will pay Landlord a late charge equal to 10% of the amount due In this paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost associated with the collection of rent and Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies under Paragraph 20. H. Returned Checks: Tenant will pay $ 25.00 for each check Tenant tenders to Landlord which is returned by the institution on which it is drawn for any reason, plus any late charges until Landlord receives payment. 5. SECURITY DEPOSIT: A. Upon execution of this lease, Tenant will pay $ 1.00 to Landlord as a security deposit.. B. Landlord may apply the security deposit to any amounts owed by Tenant under this lease If Landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit to the amount stated.. C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of Tenant's forwarding address, Landlord will refund the security deposit Tess any amounts applied toward amounts owed by Tenant or other charges authorized by this lease. 6. TAXES: Unless otherwise agreed by the parties, Landlord will pay all real property ad valorem taxes assessed against the leased premises 7. UTILITIES: A. The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities. (Check all that apply.) N/A Landlord Tenant (1) Water I] 0 ❑ (2) Sewer 0 0 ❑ (3) Electric ❑ 0 ❑ (4) Gas ❑ 0 I J (5) Telephone ❑ ❑ ❑ (6) Internet 0 0 d (7) Cable 0 0 x (8) Trash 0 0 Q (9) ❑ 0 0 (10) All other utilities 0 0 ❑ B. The party responsible for the charges under Paragraph 7A will pay the charges directly to the utility service provider. The responsible party may select the utility service provider except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse Landlord such amount. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 4 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zipLooix.com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 C Notice: Tenant should determine if all necessary utilities are available to the leased premises and are adequate for Tenant's intended use. D. After -Hours HVAC Charges: "HVAC services" means heating, ventilating, and air conditioning of the leased premises. (Check one box only) ❑ (1) Landlord is obligated to provide the HVAC services to the leased premises only during the Property's operating hours specified under Paragraph 9C D (2) Landlord will provide the HVAC services to the leased premises during the operating hours specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge of $ per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice. Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour.. Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph. Q (3) Tenant will pay for the HVAC services under this lease 8. INSURANCE: A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an insurer authorized to operate in Texas: (1) public liability insurance naming Landlord as an additional insured with policy limits on an occurrence basis in a minimum amount of: (check only (a) or (b) below) ID (a) $1,000,000; or ❑ (b) $2,000,000. If neither box is checked the minimum amount will be $1,000,000. (2) personal property damage insurance for the business operations being conducted in the leased premises and contents in the leased premises in an amount sufficient to replace such contents after a casualty loss; and ❑ (3) business interruption insurance sufficient to pay 12 months of rent payments; B. Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage If the insurance coverage is renewed or changes in any manner or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or change, provide Landlord a copy of an insurance certificate evidencing the renewal or change. C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in effect, Landlord may: (1) purchase insurance that will provide Landlord the same coverage as the required insurance and Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20. D RCC for: (1) fire nts of enable and extended coverage -in -an- am arid-apprepiate- E If there is an increase in Landlord's insurance premiums for the leased premises or Property or its contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately after Landlord notifies Tenant of the increase Any charge to Tenant under this Paragraph 8E will be equal to the actual amount of the increase in Landlord's insurance premium (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 5 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zipLogix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 9. USE AND HOURS: A. Tenant may use the leased premises for the following purpose and no other: sale and distribution of construction materials. B. Unless otherwise specified in this lease, Tenant will operate and conduct its business in the leased premises during business hours that are typical of the industry in which Tenant represents it operates. C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of weekends and holidays) . 24 hours a day, seven days a week. 10. LEGAL COMPLIANCE: A. Tenant may not use or permit any part of the leased premises or the Property to be used for: (1) any activity which is a nuisance or is offensive, noisy, or dangerous; (2) any activity that interferes with any other tenant's normal business operations or Landlord's management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, Landlord's rules or regulations, or this lease; (4) any hazardous activity that would require any insurance. premium on the Property or leased premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; (6) the permanent or temporary storage of any hazardous material; or (7) B. "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted. C. Landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio requirements, and other matters that may relate to Tenant's intended use. Tenant must satisfy itself that the leased premises may be used as Tenant intends by independently investigating all matters related to the use of the leased premises or Property. Tenant agrees that it is not relying on any warranty or representation made by Landlord, Landlord's agent. or any broker concerning the use of the leased premises or Property. 11. SIGNS: A. Tenant may not post or paint any signs or place any decoration outside the leased premises or on the Property without Landlord's written consent. Landlord may remove any unauthorized sign or decorations, and Tenant will promptly reimburse Landlord for its cost to remove any unauthorized sign or decorations. B. Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental order relating to signs on the leased premises or Property. Landlord may temporarily remove any authorized sign to complete repairs or alterations to the leased premises or the Property. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 6 of 15 Produced with ZipFarm5 by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLogix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 C. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move -out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant Any signs that Landlord does not require Tenant to remove and that are fixtures, become the property of the Landlord and must be surrendered to Landlord at the time this lease ends 12. ACCESS BY LANDLORD: A During Tenant's normal business hours Landlord may enter the leased premises for any reasonable purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the leased premises to prospective tenants or purchasers. Landlord may access the leased premises after Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business operations when accessing the leased premises B. During the last 60 days of this lease, Landlord may place a "For Lease" or similarly worded sign in the leased premises. 13. MOVE -IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as -is) condition unless expressly noted otherwise in this lease or in an addendum. Landlord and any agent have made no express or implied warranties as to the condition or permitted use of the leased premises or Property. 14. MOVE -OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPERTY: A At the time this lease ends, Tenant will surrender the leased premises in the same condition as when received, except for normal wear and tear. Tenant will leave the leased premises in a clean condition free of all trash, debris, personal property, hazardous materials, and environmental contaminants B. If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal property by providing written notice to Tenant; or (2) retain such personal property as forfeited property to Landlord C. "Surrender" means vacating the leased premises and returning all keys and access devices to Landlord. "Normal wear and tear" means deterioration that occurs without negligence, carelessness, accident, or abuse. D. By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move -out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all fixtures that were placed on the Property or leased premises by or at the request of Tenant Any fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must be surrendered to Landlord at the time this lease ends 15. MAINTENANCE AND REPAIRS: A. Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all garbage in appropriate receptacles. ❑ Landlord lj Tenant will provide, at its expense, janitorial services to the leased premises that are customary and ordinary for the property type. Tenant will maintain any grease trap on the Property which Tenant uses, including but not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comply with any applicable law. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 7 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioloaix corn CORR NIR 115 Bagdad Road Commercial Lease conceming: Round Rock . TX 78664 B. Repairs of Conditions Caused by a Party.: Each party must promptly repair a condition in need of repair that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees, contractors or permitted subtenants. C. Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party designated below, at its expense, is responsible to maintain and repair the following specified items in the leased premises (if any) The specified items must be maintained in clean and good operable condition If a governmental regulation or order requires a modification to any of the specified items, the party designated to maintain the item must complete and pay the expense of the modification. The specified items include and relate only to real property in the leased premises Tenant is responsible for the repair and maintenance of its personal property. (Check all that apply) N/A Landlord Tenant (1) Foundation, exterior walls, roof, and other structural components . 0 ❑ a (2) Glass and windows ❑ ❑ a (3) Fire protection equipment and fire sprinkler systems ... ............... ❑ ❑ d (4) Exterior & overhead doors, including closure devices, molding, locks, and hardware ❑ 0 a (5) Grounds maintenance, including landscaping and irrigation systems 0 ❑ d (6) Interior doors, including closure devices, frames, molding, locks, and hardware 0 ❑ a (7) Parking areas and walks ................... •........ 0 ❑ d (8) Plumbing systems, drainage systems and sump pumps ...... • . ❑ ❑ a (9) Electrical systems, mechanical systems 0 ❑ d (10) Ballast and lamp replacement ... •...... ... .... ❑ 0 d (11) Heating, Ventilation and Air Condition ing (HVAC) systems . ❑ 0 0 (12) Signs and lighting: (a) Pylon ❑ ❑ d (b) Facia ❑ ❑ Ci (c) Monument ❑ ❑ ❑ (d) Door/Suite . . C3 0 (e) Other: ❑ ❑ 1] (13) Extermination and pest control, excluding wood-destroying insects E a (14) Fences and Gates x (15) Storage yards and storage buildings ................ ❑ ❑ d (16) Wood-destroying insect treatment and repairs 0 ❑ d (17) Cranes and related systems ......... ❑ 0 0 (19) ❑ ❑ (19) ❑ d (20) All other items and systems. D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons. E. HVAC Service Contract: If Tenant maintains the HVAC system under Paragraph 15C(11), Tenant ❑ is LI is not required to maintain, at its expense, a regularly scheduled maintenance and service contract for the HVAC system The maintenance and service contract must be purchased from a HVAC maintenance company that regularly provides such contracts to similar properties. If Tenant fails to maintain a required HVAC maintenance and service contract in effect at all times during this lease, Landlord may do so and Tenant will reimburse Landlord for the expense of such maintenance and service contract or Landlord may exercise Landlord's remedies under Paragraph 20 7 (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 8 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mlle Road Fraser Michigan 48026 www zieLoaix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock . TX 78664 F Gammon Areas: Landle determines to be -in the best interest of the Pro dlerd- en of---any—carmen areas, e-leascd premises. perse ' ay-efiler- Pii� G. Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing H. Failure to Repair: - - - - - - -+ - - : _ - - - - _ - - - - - - enable -- period of time afte - - - - - - - - If Tenant fails to repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain; or (2) exercise Landlord's rem edies under Paragraph 20. 16.. ALTERATIONS: A Tenant may not alter (including making any penetrations to the roof, exterior walls or foundation), improve, or add to the Property or the leased premises without Landlord's written consent Landlord will not unreasonably withhold consent for the Tenant to make . reasonable non-structural alterations, modifications, or improvements to the leased premises B. Tenant may not alter any locks or any security devices on the Property or the leased premises without Landlord's consent. If Landlord authorizes the changing, addition, or rekeying of any locks or other security devices, Tenant must immediately deliver the new keys and access devices to Landlord C. If a governmental order requires alteration or modification to the leased premises, the party obligated to maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17 D Any alterations, improvements, fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing 17. LIENS: Tenant may not do anything that will cause the title of the Property or leased premises to be encumbered in any way. If Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or (2) take action to discharge the lien. Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph 18. LIABILITY: To the extent permitted by law. Landlord is NOT responsible to Tenant or Tenant's employees, patrons, guests. or invitees for any damages, injuries, or losses to person or property caused by: A an act, omission. or neglect of: Tenant: Tenant's anent: Tenant's guest: Tenant's employees: Tenant's patrons; Tenant's invitees; or any other tenant on the Property: B. fire flood. water leaks ice snow hail winds explosion, smoke riot strike interruption of utilities. theft burglary, robbery, assault vandalism, other persons, environmental contaminants, or other occurrences or casualty losses. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 9 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 w.vw ziaLoaix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock , TX 78664 19. INDEMNITY: Each party will indemnify and hold the other party harmless from any property damage. personal injury. suits. actions. liabilitiesdamages, cost of repairs or service to the leased premises or Property. or any other Toss caused negligently or otherwise, by that party or that party's employees, patrons, guests, or invitees. 20. DEFAULT: A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law If, however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30 -day period and is diligently pursued. B If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default. C If Tenant is in default, Landlord may, with at least 3 days written notice to Tenant: (i) terminate this lease, or (ii) terminate Tenant's right to occupy the leased premises without terminating this lease and may accelerate all rents which are payable during the remainder of this lease or any renewal period. Landlord will attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable means. If Tenant is in default, Tenant will be liable for: (1) any lost rent; (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear; (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and prejudgment interest; (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased premises or Property; (8) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or Property; (9) any other recovery to which Landlord may be entitled under this lease or under law 21. ABANDONMENT, INTERRUPTION OF UTILITIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) "lock -out" of Tenant 22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become a tenant -at -will and must vacate the leased premises immediately upon receipt of demand from Landlord. No holding over by Tenant, with or without the consent of Landlord, will extend this lease Tenant will indemnify Landlord and any prospective tenants for any and all damages caused by the holdover. Rent for any holdover period will be- basis- and will be immediately due and payable daily without notice or deman•. $10,000.00 per 30 days (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 10 of 15 Produced with ZlpForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zl0Looix corn CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenants performance under this lease, Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal propert'L that is in the leased premises or on the Property. This lease is a security agreement for the purposes of the Uniform Commercial Code Landlord may file a financing statement to perfect Landlord's security interest under the Uniform Commercial Code. 24., ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the Property Tenant may not assign this lease or sublet any part of the leased premises without Landlord's written consent An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or sublease is made with or without the consent of Landlord. 25.. RELOCATION: D A By providing Tenant with not less than 90 days advanced written notice, Landlord may require Tenant to relocate to another location in the Property, provided that the other location is equal in size or larger than the leased premises then occupied by Tenant and contains similar leasehold improvements Landlord will pay Tenant's reasonable out-of-pocket moving expenses for moving to the other location "Moving expenses" means reasonable expenses payable to professional movers, utility companies for connection and disconnection fees, wiring companies for connecting and disconnecting Tenants office equipment required by the relocation, and printing companies for reprinting Tenant's stationary and business cards. A relocation of Tenant will not change or affect any other provision of this lease that is then in effect, iricluding rent and reimbursement amounts, except that the description ofthe suite or unit number will automatically be amended. B Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior consent. 26. SUBORDINATION: A This lease and Tenant's leasehold interest are and will be subject, subordinate, and inferior to: (1) any lien, encumbrance, or ground lease now or hereafter placed on the leased premises or the Property that Landlord authorizes; (2) all advances made under any such lien, encumbrance, or ground lease; (3) the interest payable on any such lien or encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; (5) any restrictive covenant affecting the leased premises or the Property; and (6) the rights of any owners' association affecting the leased premises or Property B Tenant must, on demand, execute a subordination, attornment, and non -disturbance agreement that Landlord may request that Tenant execute, provided that such agreement is made on the condition that this lease and Tenant's rights under this lease are recognized by the lien -holder 27. ESTOPPEL CERTIFICATES & FINANCIAL INFORMATION: A Within 10 days after receipt of a written request from Landlord, Tenant will execute and deliver to Landlord an estoppel certificate that identifies the terms and conditions of this lease. B. Within 30 days after receipt of a written request from Landlord, Tenant will provide to Landlord Tenant's current financial information (balance sheet and income statement). Landlord may request the financial information no more frequently than once every 12 months. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 11 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLooix com CORR NIR 115 Bagdad Road Commercial Lease conceming: Round Rock, TX 78664 28. CASUALTY LOSS: (See paragraph 35) A. lord can substantially restore thc leased recto -o within `he-t+roe-reguired, Tenant may terminate this Icasc. r4lerd fails to substantially - milord of the casualty, Landlord may: (1) terminate on as befere- he- t substantially restore the leased premiss -within - D. die - - - - - - - - - - •+1,•„_120 days after Tenant notifies Landlord of thc casualty loss, Landlord may: (1) cheese -Rot to restore and- - •• _ - - _ - -etify Tenant of thc estimated time to resters, and give oss to the date the leased premises are substantially restored by an -,MIs 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property 30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the nonprevailing party. 31. REPRESENTATIONS: A. Tenant's statements in this lease and any application for rental are material representations relied upon by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a binding contract and is authorized to sign the lease. If Tenant makes any misrepresentation in this lease or in any application for rental, Tenant is in default B. Landlord is not aware of any material defect on the Property that would affect the health and safety of an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 12 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www ziologix corn CORR NMR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 C Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation and who suffers any claim, damage, Toss, liability or expense as a result of this representation 32.. BROKERS: A. The brokers to this lease are: Principal Broker License No Cooperating Broker License No Agent Agent Address Address Phone Fax Phone E -Mail Fax License No E -Mail Principal Broker: (Check only one box) ❑ represents Landlord only ❑ representsTenant on ly. O is an intermediary between Landlord and Tenant. Cooperating Broker represents Tenant. License No B. Fees: ❑ (1) Principal Broker's fee will be paid according to: (Check only one box). O (a) a separate written commission agreement between Principal Broker and: ❑ Landlord 0 Tenant. ❑ (b) the attached Addendum for Broker's Fee. O (2) Cooperating Broker's fee will be paid according to: (Check only one box). ❑ (a) a separate written commission agreement between Cooperating Broker and: ❑ Principal Broker ❑ Landlord ❑ Tenant ❑ (b) the attached Addendum for Broker's Fee 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents If Landlord's Rules and Regulations are made part of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, amend from time to time 34. NOTICES: All notices under this lease must be in writing and are effective when hand -delivered, sent by mail, or sent by facsimile transmission to: Landlord at: Steve Norwood - City of Round Rock, City Manager Address: 221 E. Main Street, Round Rock, TX 78664 Phone: (512)218-5402 Fax: and a copy to: Steve Sheets - City of Round Rock, City Attorney Address: 309 E. Main Street, Round Rock, TX 78664 Phone: (512)255-8877 Fax: ❑ Landlord also consents to receive notices by e-mail at: (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: _ Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www.zipLogix com Page 13 of 15 CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 Tenant at the leased premises, and a copy to: Russell Pae - NIR Address:2525 McCallister, Houston, Texas 77092 Phone:(713)201-3112 Fax:. 0 Tenant also consents to receive notices by e-mail at: 35. SPECIAL PROVISIONS: A. Landlord acknowledges and permits the Tenant to sub -lease the premises to the current occupant, BGS Acquisitions Corp.. B. If there is a casualty loss, Landlord shall have no obligation to repair or restore the leased premises. If Landlord chooses not to repair or restore the leased premises, Tenant may (1) undertake the repair or restoration of the leased premises and bear all costs, or (2) terminate this lease. C. Tenant accepts the leased premises "AS -IS" with any and all defects, including latent defects, and that there is no warranty by Landlord that the leased premises is fit for any particular purpose. 36. AGREEMENT OF PARTIES: A. Entire Agreement:This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement B. Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective heirs, executors, administrators, successors, and permitted assigns. C. Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or notice to, or refund to, or signature of, any one or more of the Tenants regarding any term of this lease, its renewal, or its termination is binding on all Tenants. D. Controlling Law: The laws of the State of Texas govern the interpretation, performance, and enforcement of this lease. E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable. F. Waiver: Landlord's delay, waiver, or non -enforcement of acceleration, contractual or statutory lien, rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material interference (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 14 of 15 Produced with ZipForme by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www.ziOLonix cam CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 H. Force Majeure: if Landlord's performance of a term in this lease is delayed by strike, lock -out, shortage of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for Landlord's performance will be abated until after the delay. I Time: Time is of the essence. The parties require strict compliance with the times for performance Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, environmental assessments, tax advice, or compliance inspections. The parties should seek experts to render such services. READ THIS LEASE CAREFULLY. If you do not understand the effect of this Lease, consult your attorney BEFORE signing.. Landlord: City of Round Rock Tenant: NIR Investments , LTD. By: By: By (signature): By (signature): Printed Name: Printed Name: Title: Title: By: By: By (signature): By (signature): Printed Name: Printed Name: Title: Title: (TAR -2101) 1-26-10 Page 15 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLoaix com CORR NIR ROUND ROCK. 1D(AS PURPOSE PASSION PROSPERITY City of Round Rock Agenda Item Summary Agenda Number: G.15 Title: Consider a resolution authorizing the Mayor to execute a Real Estate Contract to purchase approximately 3 acres of land at 115 Bagdad from NIR Investment, Ltd., and a lease back agreement. Type: Resolution Governing Body: City Council Agenda Date: 8/8/2013 Dept Director: Cost: Indexes: Attachments: Resolution, Exhibit A Text of Legislative File 13-618 City of Round Rock Page 1 Printed on 8/5/2013 EXECUTED ORIGINAL DOCUMENT FOLLOW REAL ESTATE CONTRACT 1. PARTIES: the parties to this contract are N..I..R. Investments, LTD (Seller) and The City of Round Rock, Texas (Buyer). Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the Property defined below 2. PROPERTY: BEING 2.13.5.5 acres of land out of the Wiley Harris Survey, Abstract No. 298, in the City of Round Rock, Williamson County, Texas, described in Deed to William P Vince, Trustee, recorded under Document No. 9620827, Official Records of Williamson County, and being all that certain tract of land called 2 132 acres described in Deed from The Missouri Pacific Railroad to Cecil L Slayton recorded in Volume 758, Page 427, Deed Records of Williamson County, and being more particularly described in Exhibit A, attached hereto and made a part thereof' And BEING 0 8791 of an acre of land out the Wiley Harris Survey, Abstract No 298, in the City of Round Rock, Williamson County, Texas, and being a part of that certain tract or parcel of land described in a Deed to the International and Great Northern Railroad Company recorded in Volume 22, Page 441, Deed Records of Williamson County, and being more particularly described in Exhibit B, attached hereto and made a part thereof 3. SALES PRICE: A., Cash Sales Price payable by Buyer at closing 4. DUE DILLIGENCE: $ 2,100,000 00 On or before the date that is five (5) days after the Effective Date (the "Document Delivery Date"), Seller shall, at Seller's sole cost and expense, provide to Buyer true, correct, and complete copies of all of the following documents within Seller's possession or control (collectively, the "Property Materials"), or written notice as to the non- existence of any such Property Materials within Seller's possession oz control: (a) All existing surveys of the Property; (b) All existing environmental reports for the Property 5. INSPECTION PERIOD: Buyer may terminate this Agreement for any reason for a period of thirty (30) days after the effective date (the "Inspection Period") by providing written notice of termination to Seller and the Iitle Company. In the event this Agreement is terminated in accordance with this 115 Bagdad - Contract FINAL docx -�3-0ci— O -GI' Real Estate Contract; Page 2 section, then the Earnest Money shall be immediately returned to Buyer 6. EARNEST MONEY: Within three (3) days of the execution of this contract by all parties, Buyer shall deposit $35,000.00 as earnest money with Georgetown Iitle Co , Inc., as escrow agent, at 1717 N. Mays Street, Round Rock, Iexas 78681. If Buyer fails to deposit the earnest money as required by this contract, Buyer will be in default. 7. TITLE POLICY AND SURVEY: A. IIILE POLICY: Seller shall furnish to Buyer at Seller's expense an owner policy of title insurance (Iitle Policy) issued by Georgetown Title Company (Iitle Company) in the amount of the Sales Price, dated at or after closing, insuring Buyer against loss under the provisions of the Iitle Policy, subject to the promulgated exclusions (including existing building and zoning ordinances) and the following exceptions: The standard printed exception for standby fees, taxes and assessments. Reservations or exceptions otherwise permitted by this contr act or as may be approved by Buyer in writing the standard printed exception as to marital rights.. The standard printed exception as to waters, tidelands, beaches, streams and related matter s The standard printed exception as to discrepancies, conflicts, shortages in area or boundary lines, encroachments or protrusions, or overlapping improvements. Buyer, at Buyer's expense, may have the exception amended to read, "shortages in area" B.. COMMITMENT: Within 10 days after the Title Company receives a copy of this contract, Seller shall furnish to Buyer a commitment for title insurance (Commitment) and, at Buyer's expense, legible copies of restrictive covenants and documents evidencing exceptions in the Commitment (Exception Documents) other than the standard printed exceptions. Seller authorizes the Iitle Company to deliver the Commitment and Exception Documents to Buyer at Buyer's address shown in Paragraph 21 If the Commitment and Exception Documents are not delivered to Buyer within the specified time, the time for delivery will be automatically extended up to 15 days or the Closing Date, whichever is earlier If, due to factors beyond Seller's control, the Commitment and Exception Documents are not delivered within the time required, Buyer may terminate this contract and the earnest money will be refunded to Buyer. Initialed for identification by Buyer and Seller Real Estate Contract; Page 3 SURVEY: If a survey is desired by Buyer, within 30 days after the effective date, Buyer shall obtain a new survey at Buyer's expense. Buyer is deemed to receive the survey on the date of actual receipt or the date five days aftet the end of the Inspection Period, whichever is earlier. OBJECIIONS: Within five (5) days after receives the title commitment, copies of the documents evidencing the title exceptions and any desired survey, Buyer may object in writing to matters disclosed in the items if (a) the matter disclosed are a restriction upon the Property or constitute a defect or encumbrance to title other than those permitted by this contract or Liens that Seller will satisfy at closing; or (b) the items show that any part of the Property lies in a special flood hazard area (an "A" of "V" zone as defined by FEMA). Buyer's failure to object within the time allowed will constitute a waiver of Buyer's right to object; except that the requirements in Schedule C of the Commitment ate not waived by Buyet , Seller may, but is not obligated to cure the timely objections of Buyer within 15 days after Seller receives the objections and the Closing Date will be extended as necessary. If objections ate not cured within such 15 day period, Buyer may terminate this contract by providing written notice to Seller within five (5) days after the time by which Seller must cure the objections. If Buyer terminates, the earnest money will be tefunded to Buyer unless Buyer waives the objections.. E. IIILE NOTICES: (1) ABSIRACT OR IITLE POLICY: Buyer is advised to have an abstract of title covering the Property examined by an attorney of Buyer's selection, or Buyer should be furnished with or obtain a Iitle Policy If a Iitle Policy is furnished, the Commitment should be promptly reviewed by an attorney of Buyer's choice due to the time limitations on Buyer's right to object 8. PROPERTY CONDITION: A ACCESS, INSPECIIONS AND UTILITIES: Seller shall permit Buyer and Buyer's agents access to the Property at reasonable times. Buyer may have the Property inspected by inspectors selected by Buyer and licensed by TREC or otherwise permitted by law to make inspections.. Seller at Seller's expense shall immediately cause existing utilities to be turned on and shall keep the utilities on during the time this contract is in effect, NOTICE: Buyer should determine the availability of utilities to the Property suitable to satisfy Buyer's Needs. Initialed for identification by Buyer _ and Seller _ Real Estate Contract; Page 4 B. SELLER'S DISCLOSURE NOTICE PURSUANT IO SECTION 5.008, IEXAS PROPERIY CODE (Notice): The Texas Property Code does not requite this Seller to furnish the Notice. C, SELLER'S DISCLOSURE OF LEAD-BASED PAINT AND LEAD-BASED PAINT HAZARDS is required by Federal Law for a residential dwelling constructed prior to 1978 D. ACCEPIANCE OF PROPERTY CONDITION: As a material part of the consideration for this contract, Seller and Buyer agree that Buyer will accept the Property "AS IS" with any and all defects, including, but not limited to, latent defects, and that there is no warranty by Seller that the property is fit for a particular purpose. Buyer acknowledges that Buyer is not relying on any representation, statement or other assertion with respect to the Property condition, but is relying on Buyer's examination of the Property. Buyei takes the property with the express understanding that Seller has made and will make no warranties, expressed or implied, regarding the property, other than the warranties of title contained in the deed conveying the Property to Buyer These provisions shall survive closing, Buyer and Seller agree that this Contract is in lieu of condemnation initiated by Buyer E.. ENVIRONMENIAL MATTERS: Buyer is advised that the presence of wetlands, toxic substances, including asbestos and wastes or other environmental hazatds, or the presence of a threatened or endangered species or its habitat may affect Buyer's intended use of the Property. If Buyer is concerned about these matters, an addendum either promulgated by IREC or required by the parties should be used, SELLER'S DISCLOSURES: Except as otherwise disclosed in this contract, Seller has no current actual knowledge of the following and no duty to make any further inquiry into these matters: (1) any flooding of the Property which has had a material adverse effect on the use of the Property; (2) SAVE AND EXCEPI the Buyer, any pending or threatened litigation, condemnation, or special assessment affecting the Property; (3) any environmental hazards or conditions materially affecting the Property; (4) any dumpsite, landfill, or underground tanks or containers now or previously located on the Property; Initialed for identification by Buyer and Seller _ Real Estate Contract; Page 5 (5) (6) any wetlands, as defined by federal or state law or regulation, affecting the Property; or any threatened or endangered species or their habitat affecting the Property 9. CLOSING: A The closing of the sale will be on or before August 21, 2013 If either party fails to close the sale by the Closing Date, the non -defaulting party may exercise the remedies contained in Paragraph 15. B At closing: (1) Seller shall execute and deliver a special warranty deed conveying title to the Property to Buyer and showing no additional exceptions to those permitted in Paragraph 7, and furnish tax statements or certificates showing no delinquent taxes on the Property. (2) Buyer shall pay the Sales Price in good funds acceptable to the escrow agent (3) Seller and Buyer shall execute and deliver any notices, statements, certificates, affidavits, releases, loan documents and other documents reasonably required for the closing of the sale and the issuance of the Iitle Policy. (4) Iher'e will be no liens, assessments, or security interests against the Property which will not be satisfied out of the sales proceeds unless securing the payment of any loans assumed by Buyer and assumed loans will not be in default, 10. POSSESSION: Seller shall deliver to Buyer possession of the Property in its present or required condition, ordinary wear and tear excepted: upon closing and funding Any possession by Buyer prior to closing or by Seller after closing which is not authorized by a written lease will establish a tenancy at sufferance relationship between the parties 11. SETTLEMENT AND OTHER EXPENSES: A the following expenses must be paid at or prior to closing: (1) Expenses payable by Seller (Seller's Expenses): Releases of existing liens, including prepayment penalties and recording fees; release of Seller's loan liability; tax statements or certificates; preparation of deed; one-half of escrow fee; and other expenses payable by Seller under this contract. (2) Expenses payable by Buyer (Buyer's Expenses): Appraisal fees; loan application fees; adjusted origination charges; credit reports; preparation of loan documents; interest on the notes from the date of disbursement to one month prior to dates of first monthly payments; recording fees; copies of easements and restrictions; loan title policy with endorsements required Initialed for identification by Buyer ! and Seller Real Estate Contract; Page 6 by lender; loan -related inspection fees; photos, amortization schedules, one-half of escrow fee; all prepaid items, including required premiums for flood and hazard insurance, reserve deposits for insurance, ad valorem taxes and special governmental assessments; final compliance inspection; courier fee; repair inspection; underwriting fee; wire transfer fee; expenses incident to any loan; Private Mortgage Insurance Premium (PMI), VA Loan Funding Fee, or FHA Mortgage Insurance Premium (MIP) as required by the lender; and other expenses payable by Buyer under this contract. B If any expense exceeds an amount expressly stated in this contract for such expense to be paid by a party, that party may terminate this contract unless the other party agrees to pay such excess.. 12. PRORATIONS AND ROLLBACK TAXES: A. PRORATIONS: Iaxes for the current year, interest, maintenance fees, assessments, dues and rents will be prorated through the Closing Date.. The tax proration may be calculated taking into consideration any change in exemptions that will affect the current year's taxes. If taxes for the current year vary from the amount prorated at closing, the parties shall adjust the potations when tax statements for the current year are available. If taxes are not paid at or prior to closing, Buyer shall pay taxes for the current year. Rentals which are unknown at time of closing will be prorated between Buyer and Seller when they become known.. B ROLLBACK IAXES: If this sale or Buyer's use of the Property after closing results in the assessment of additional taxes, penalties or interest (Assessments) for periods prior to closing, the Assessments will be the obligation of Buyer, If Seller's change in use of the Property prior to closing or denial of a special use valuation on the Property claimed by Seller results in Assessments for periods prior to closing, the Assessments will be the obligation of Seller.. Obligations imposed by this paragraph will survive closing 13. CASUALTY LOSS: If any part of the Property is damaged or destroyed by fire or other casualty after the effective date of' this contract, Seller shall restore the Property to its previous condition as soon as reasonably possible, but in any event by the Closing Date. If Seller fails to do so due to factors beyond Seller's control, Buyer may (a) terminate this contract and the earnest money will be refunded to Buyer (b) extend the time for performance up to 15 days and the Closing Date will be extended as necessary or (c) accept the Property in its damaged condition and accept an assignment of insurance proceeds and receive credit from Seller at closing in the amount of the deductible under the insurance policy.. Seller's obligations under this paragraph are independent of any obligations of Seller under this contract. Initialed for identification by Buyer — and Seller _ Real Estate Contract; Page 7 14. DEFAULT: If Buyer fails to comply with this contract, Buyer will be in default, and Seller may (a) enforce specific performance, (b) terminate this contract and receive the earnest money as liquidated damages, thereby releasing both parties from this contract. If Seller fails to comply with this contract for any other reason, Seller will be in default and Buyer may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money, thereby releasing both parties from this contract 15. MEDIATION: It is the policy of the State of Iexas to encourage resolution of disputes through alternative dispute resolution procedures such as mediation. Any dispute between Seller and Buyer related to this contract which is not resolved through informal discussion will be submitted to a mutually acceptable mediation service or provider. The parties to the mediation shall bear the mediation costs equally. Ihis paragraph does not preclude a party from seeking equitable relief from a court of competent jurisdiction. 16. ATTORNEY'S FEES: A Buyer, Seller, Listing Broker, Other Broker, or escrow agent who prevails in any legal proceeding related to this contract is entitled to recover reasonable attorney's fees and all costs of such proceeding 17. ESCROW: A. ESCROW: The escrow agent is not (i) a party to this contract and does not have liability for the performance or nonperformance of any party to this contract, (ii) liable for interest on the earnest money and (iii) liable for the loss of any earnest money caused by the failure of any financial institution in which the earnest money has been deposited unless the financial institution is acting as escrow agent. B EXPENSES: At closing, the earnest money must be applied first to any cash down payment, then to Buyer's Expenses and any excess refunded to Buyer. If no closing occurs, escrow agent may (i) require a written release of liability of the escrow agent from all parties, (ii) require payment of unpaid expenses incurred on behalf of a party, and (iii) only deduct from the earnest money the amount of unpaid expenses incurred on behalf of the party receiving the earnest money. C DEMAND: Upon termination of this contract, either party or the escrow agent may send a release of earnest money to each party and the parties shall execute counterparts of the release and deliver same to the escrow agent.. Ifeither party fails to execute the release, either party may make a written demand to the escrow agent for the earnest money.. If only one party makes written demand for the earnest money, escrow agent shall promptly provide a copy of the demand to the other party. If escrow agent does not receive written objection to the demand from the other party within 15 days, escrow agent may disburse the earnest money to the party making demand reduced by the amount of unpaid expenses incurred on behalf of the party receiving the earnest money and escrow agent may pay the Initialed for identification by Buyer and Seller _ Real Estate Contract; Page 8 same to the creditors. If escrow agent complies with the provisions of this paragraph, each party hereby releases escrow agent from all adverse claims related to the disbursal of' the earnest money.. D DAMAGES: Any party who wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7 days of receipt of the request will be liable to the other party for liquidated damages in an amount equal to the sum of (i) three times the amount of the earnest money; (ii) the earnest money; (iii) reasonable attorney's fees; and (iv) all costs of suit E NOTICES: Escrow agent's notices will be effective when sent in compliance with Paragraph 21. Notice of objection to the demand will be deemed effective upon receipt by escrow agent 18.. REPRESENTATIONS: All covenants, representations and warranties in this contract survive closing. If any representation of Seller in this contract is untrue on the Closing Date, Seller will be in default. Unless expressly prohibited by written agreement, Seller may continue to show the Property and receive, negotiate and accept back up offers. 19. FEDERAL TAX REQUIREMENTS: If Seller is a "foreign person", as defined by applicable law, or if Seller fails to deliver an affidavit to Buyer that Seller is not a "foreign person", then Buyer shall withhold from the sales proceeds an amount sufficient to comply with applicable tax law and deliver the same to the Internal Revenue Service together with appropriate tax forms Internal Revenue Service regulations require filing written reports if currency in excess of specified amounts is received in the transaction 20. NOTICES: All notices from one party to the other must be in writing and are effective when mailed to, hand -delivered at, or transmitted by facsimile or electronic transmission as follows: To Seller at: Russell E Pae N.I R. Investments, LTD 2525 McAllister Road Houston, Iexas 77092 713-681-7773 phone To Buyerat: Steve Norwood City of Round Rock 221 E Main Street Round Rock, Iexas 78664 Initialed for identification by Buyer — and Seller Real Estate Contract; Page 9 512-218-5402 phone 21. AGREEMENT OF PARTIES: This contract contains the entire agreement of the parties and cannot be changed except by their written agreement Addenda which are a part of this contract are: None.. 22., TERMINATION OPTION: None 23. LEASE BACK: At Closing, Buyer and Seller will agree to enter into a Lease Agreement (Lease Back) for the property. As additional consideration for the Seller selling the Property to the Buyer, the Buyer agrees to a lease tate of $1.00 per month in the form attached hereto as Exhibit+r- • 24. CONSULT AN ATTORNEY: IREC tules prohibit real estate licensees from giving legal advice READ THIS CONIRACI CAREFULLY If you do not understand the effect of this contract, consult an attorney BEFORE signing. Buyer's Attorney is: Steve Sheets Sheets & Crossfield, P 309 E Main Street Round Rock, Texas 78664 512-255-8877 phone 512-255-8986 fax Seller's Attorney is: R. Mark Dietz Dietz & Jarrard P.C. 106 Fannin Avenue East Round Rock, Iexas 78664 512-244-9314 phone 512-244-3766 fax Initialed for identification by Buyer _ and Seller _ Real Estate Contract; Page 10 EXECUTED the4)tay of ►! 014 / , 2013_(EFFECTIVE DATE) (ATTORNEY: FILL IN THE DAIE OF FINAL ACCEPTANCE.) BUY j, - City of$.ound Rock )MEL SELLER - N I.R. Investments, LID 1 /7;Le,,t_ lores, Managing Pattnei CONTRACT AND EARNEST MONEY RECEIPT Receipt of [ ] Contact and [ ] $35,000.00 Earnest money in the form of is acknowledged.. Escrow Agent: Georgetown Title Co., Inc. By: Initialed for identification by Buyer — and Seller _ Date: , 2013 FIELD NOTE$ 98IN0 2.1355 ACRES OF LAND OUT OF TRE WILEY HARRIS SURVEY, AesTRACT NO. 298, IN THE CITY OF ROUND ROCK, WILLIAMSON COUNTY, =GAS, DESCRIBED IN A DEED TO WILLIAM P. VINCE, TRUSTEE, RECORDED UNDER DOCUMENT N0. 96208270 OFBICTAL RECORDS OF WILLIAMSON COUNTY, AND BRING ALL OP THAT CERTAIN TRACT OF LAND CALLED 2.132 ACRES DESCRIBED IN A DEED FROM THE MISSOURI PACIFIC RAILROAD TO CECIL L. SLAYTON RECO8DED IN VOLUME 758, PAGE 427, DEED RECORDS OF WILLIAMSON COUNTY, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND SOUNDS AS FOLLOWS, TO WIT: BEGINNING at a concrete right-of-way monument found at the most westerly northwest cornet hereof, said monument being at the intersection of the southerly line of E. Bagdad Avenue and the easterly line of South Mays Street, (U., S.. Highway 81 and 11- 35 business Routs); THENCE with ^the southerly line of said E. Bagdad Avenue, the following described two (2) courses and distances; 1) N 289 34' 45" E a distance of 104,12 feet to an iron rod found, and; 2) R 721 35' 20" E a distanve of 435.10 feet to an iron rod found at the northeast corner hereof; THENCE S 17' 24' 17" E a distance of 122.82 fest to an iron zod found at the southeast corner hereof in the north line of the Union Pacific Railroad;; THENCE along and with the north line of said railroad, the following described three (3) courses and distances: 1) An arc distance of 329.86 feat with a curve to the left, said ourve being 50 feet north of and parallel with the centerline of said railroad, and having a ventral angle of 61 56' 38", a radius of 2708.78 feet, a chord distance of 329.66 feet, and a chord bearing of 9 501 23' 51" W, to a point; 2) S 341 05' 20" E a distance of 10.00 feet along a line radial to said curve Eo an iron rad found, and' 3) An and distance of 203.44 feet with a curve to ;tie left, said curve being 40 fast north of and parallel with the centerline of said railroad, and having a central angle of 4t 19' 08", a radius of 2698.78 feet; a chard distance of 203 39 feat, and a chord bearing of S 531 44' 58" W, to an iron rod found at the southwest corner hereof at the.interaection of the north line of said railroad and the east line of South Mays Street, and from which concrete right-of-way monuments found beat S 17' 14' 16° E e distance of 4 40 feet and N 17'1 14' 16" W a distance df 134.08 feet; THENCE N 17t 14' 16' W a distance of 200.98 feet with the east line of South Maya Street to the Placa of Beginning, containing 2.1355 acres of land, subject to easements, conditions or reetriotions of record, if any. Docs 9645628 N Pages: 3 Date : 08-29--1996 Time 03;58:45P.M i . Filed R Recorded o Official Records of ELAINELBZZELLCountY, IX COUNTY CLERK Rec. f 13.00 unmi O 3�F C see: ci ...... _'Nb: Oa.! and tllt0 a EXHIBIT UNION PACIFIC RAILROAD COMPANY Round Rock Williams County, Texas BEING 0.8791 OF AN ACRE OF LAND ODI OF THE WILEY 8?RRIS SURVEY, ABSIRACT NO. 298, IN THE CITY OF ROUND ROCK, WILL/.:SON COUNTY, TEXAS, AND BEING A PART OF THAI CERTAIN TRACY OR PARCEL Of LAND DESCRIBED IN A DEED IC THE fl 1ERNATI05 L AND GREAT NORTHERN RAILROAD COMPANY RECORDED IN VOLUME 22, PAGE 442, DEED RECORDS OF WILLIA.M9a1 COUNTY, AND BEING NYRE PARTICULARLY DESCRIBED BY HETES AND B0U5 DS AS FOILNS, TO WIT: BEGINNING at an iron rod found at the northwest corner hereof in the south line of East Bagdad Avenue, said iron rod aso being the northeast corner of that certain 2.1355 acre tract of Land described in a deed to N I R Investments, ltd., recorded under County Clerk's Document. No. 9645628 in the Officio: Records of williamson O'unty, Dexas; Ti1ENCE N 72" 35' 20' E a distance of 350.00 feet with the south line of said East Bagdad Avenue to a boltset at the northeast comer hereof; THENCE S 17" 24' 40" E a distance of 94..87 feet to an .iron rod set at the southeast corner hereof; Ii8;T10E parallel with and 42.00 feet oort,.h of the centerline of the main track of the Union Pacific Railroad, an arc distance of 352.19 feet with a Hove to the left, said curve Laving a centrad angle of 7" 28' 25", a radius of 2700.08 feet, a chard distance of 351.94 feet and.a chord bearing of S 66. 35'.29" W to an iron rod set at the southwest corner hereof; THENCE N L7• 24' 17' w, at 8.83 feet pass an axon rod found at the southeast corner of said 2.1355 acre tract, continuing an additional. 122.82 feet with the east line of said tract, IN ALL a distance of 131.65 feet to the Place of Beginning, containing 0.8791 of an acre of Land, subject to easements, conditions and restrictions of record, if any. Of icc of Real Estate Omaha, Nebraslca September 3, 1998 Written by: JCO 1652-54 EXHIBIT s TEXAS ASSOCIATION OF REALTORS® COMMERCIAL LEASE USE OF THIS FORM BY PERSONS VU1O ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED ®Texas Association of REALTORS®, Inc. 2010 Table of Contents No. Paragraph Description 1 Parties 2 Leased Premises 3 Term A Term B Delay of Occupancy 4 Rent and Expenses A. Base Monthly Rent B. First Full Month's Rent C Prorated Rent D Additional Rent E. Place of Payment F Method of Payment G. Late Charges H Returned Checks 5 Security Deposit 6. Taxes 7 Utilities 8. Insurance 9. Use and Hours 10 Legal Compliance 11. Signs 12 Access By Landlord 13 Move -In Condition 14 Move -Out Condition 15 Maintenance and Repairs A Cleaning B Conditions Caused by a Party C. Repair & Maintenance Responsibility D Repair Person s E HVAC Service Contract F Common Areas G Notice of Repairs H. Failure to Repair 16 Alterations 17 Liens 18. Liability 19. Indemnity 20 Default 21 Abandonment, Interruption of Utilities, Removal of Property & Lockout 2 2 2 3 4 4 4 5 6 6 7 7 7 7 8 9 9 10 10 10 10 (TAR -2101) 1-26-10 Initialed for Identification by Landlord: No. Paragraph Description Pq_ 22 Holdover 23 Landlord's Lien & Security Interest 24 Assignment and Subletting 25 Relocation 26 Subordination 27 Estoppel Certificates & Financial Info 28 Casualty Loss 29 Condemnation 30 Attorney's Fees 31 Representations 32. Brokers 33 Addenda 34 Notices 35. Special Provisions 36 Agreement of the Parties 10 11 11 11 11 11 12 12 12 12 13 13 13 14 14 ADDENDA & EXHIBITS (check all that apply) ❑ Exhibit ❑ Exhibit ❑ Commercial Lease Addendum for Broker's Fee (TAR -2102) ❑ Commercial Lease Addendum for Expense Reimbursement (TAR -2103) ❑ Commercial Lease Addendum for Extension Option (TAR -2104) ❑ Commercial Lease Addendum for Percentage Rent (TAR -2106) ❑ Commercial Lease Adden dum for Parking (TAR -2107) ❑ Commercial Landlord's Rules and Regulations (TAR -2108) O Commercial Lease Guaranty (TAR -2109) O Commercial Lease Addendum for Right of First Refusal (TAR -2105) ❑ Commercial Lease Addendum for Optional Space (TAR -2110) ❑ Commercial Lease Addendum for Construction (TAR -2111) or (TAR -2112) ❑ Commercial Lease Addendum for Contingencies (TAR -2119) 0 ❑ Information About Brokerage Services and Tenant: Page 1 of 15 Summit Commercial 20 Chisholm Irail Round Rock TX 78681 Phone: (512)244-9707 Fax: Russ Boles Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road, Fraser Michigan 48026 www zioLooix com EXHIBIT „c„ CORR N1R TEXAS ASSOCIAIION OF REALIORS® COMMERCIAL LEASE USE OF THIS FORM BY PERSONS NAiO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REALTORS® IS NOT AUTHORIZED OTexas Association of REALTORS', Inc. 2010 1. PARTIES: The parties to this lease are: Landlord: City of Round Rock ; and Tenant: NIR Investments, LTD. 2, LEASED PREMISES: A. Landlord leases to Tenant the following described real property, known as the "leased premises," along with all its improvements (Check only one box) : 0 (1) Multiple -Tenant Property: Suite or Unit Number containing approximately square feet of rentable area in (project name) at (address) in (city), (county), Texas, which is legally described on attached Exhibit or as follows: (2) Single -Tenant Property: The real property at: 115 Bagdad Road (address) in Round Rock (city), Williamson (county), Texas, which is legally described on attached Exhibit or as follows: B If Paragraph 2A(1) applies: (1) "Property" means the building or complex in which the leased premises are located, inclusive of any common areas, drives, parking areas, and walks; and (2) the parties agree that the rentable area of the leased premises may not equal the actual or useable area within the leased premises and may include an allocation of common areas in the Property The rentable area ❑ will d will not be adjusted if re -measured 3. TERM: A Term: The term of this lease is 9 months and 5 days, commencing on: august 26, 2013 (Commencement Date) and ending on May 31, 2014 (Expiration Date) (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , , and Tenant: Page 2 of 15 Produced with ZipForme by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLogix corn CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 B Delay of Occupancy: If Tenant is unable to occupy the leased premises on the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Landlord will not be liable to Tenant for such delay and this lease will remain enforceable. In the event of such a delay, the Commencement Date will automatically be extended to the date Tenant is able to occupy the Property and the Expiration Date will also be extended by a like number of days, so that the length of this lease remains unchanged. If Tenant is unable to occupy the leased premises after the 90th day after the Commencement Date because of construction on the leased premises to be completed by Landlord that is not substantially complete or a prior tenant's holding over of the leased premises, Tenant may terminate this lease by giving written notice to Landlord before the leased premises become available to be occupied by Tenant and Landlord will refund to Tenant any amounts paid to Landlord by Tenant. This Paragraph 3B does not apply to any delay in occupancy caused by cleaning or repairs C. Unless the parties agree otherwise, Tenant is responsible for obtaining a certificate of occupancy for the leased premises if required by a governmental body 4. RENT AND EXPENSES: A Base Monthly Rent: On or before the first day of each month during this lease, Tenant will pay Landlord base monthly rent as described on attached Exhibit or as follows: Dates Rate per rentable scuare foot (optional) Base Monthly Rent $ From To $ Monthly Rate $ Annual Rate 08/26/2013 05/31/2014 1.00 /rsf/multh /rsf /year 1.00 / rsf / month / rsf / year / rsf / month / rsf / year / rsf / month / rsf / year / rsf / month / rsf / year B. Additional Rent: In addition to the base monthly rent, Tenant will pay Landlord all other amounts, as provided by the attached (Check all fhaf apply) : ❑ (1) Commercial Lease Addendum for Expense Reimbursement (TAR -2103) ❑ (2) Commercial Lease Addend um for Percentage Rent (TAR -2106) ❑ (3) Commercial Lease Addendum for Parking (TAR -2107) O (4) All amounts payable under the applicable addenda are deemed to be "rent" for the purposes of this lease C. First Full Month's Rent: The first full monthly rent is due on or before August 26. 2013 D Prorated Rent: If the Commencement Date is on a day other than the first day of a month, Tenant will pay Landlord as prorated rent, an amount equal to the base monthly rent multiplied by the following fraction: the number of days from the Commencement Date to the first day of the following month divided by the number of days in the month in which this lease commences The prorated rent is due on or before the Commencement Date E Place of Payment: Tenant will remit all amounts due Landlord under this lease to the following person at the place stated or to such other person or place as Landlord may later designate in writing: Name: City of Round Rock Address: 221 East Main Street, Round Rock. TX 78664 (TAR -2101) 1-26-10 Initialed for identification by Landlord: and Tenant: Page 3 of 15 Produced with ZipFonne by zipLogix 16070 Fifteen Mile Road Fraser Michigan 48026 www zipLogix corn CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 F Method of Payment: Tenant must pay all rent timely without demand, deduction, or offset, except as permitted by law or this lease. If Tenant fails to timely pay any amounts due under this lease or if any check of Tenant is retumed to Landlord by the institution on which it was drawn, Landlord after providing written notice to Tenant may require Tenant to pay subsequent amounts that become due under this lease in certified funds. This paragraph does not limit Landlord from seeking other remedies under this lease for Tenant's failure to make timely payments with good funds. G. Late Charges: If Landlord does not actually receive a rent payment at the designated place of payment within 5 days after the date it is due, Tenant will pay Landlord a late charge equal to 10% of the amount due In this paragraph, the mailbox is not the agent for receipt for Landlord. The late charge is a cost associated with the collection of rent and Landlord's acceptance of a late charge does not waive Landlord's right to exercise remedies under Paragraph 20. H Returned Checks: Tenant will pay $ 25.00 for each check Tenant tenders to Landlord which is retumed by the institution on which it is drawn for any reason, plus any late charges until Landlord receives payment. 5. SECURITY DEPOSIT: A. Upon execution of this lease, Tenant will pay $ 1.00 to Landlord as a security deposit. B Landlord may apply the security deposit to any amounts owed by Tenant under this lease If Landlord applies any part of the security deposit during any time this lease is in effect to amounts owed by Tenant, Tenant must, within 10 days after receipt of notice from Landlord, restore the security deposit to the amount stated C. Within 60 days after Tenant surrenders the leased premises and provides Landlord written notice of Tenant's forwarding address, Landlord will refund the security deposit less any amounts applied toward amounts owed by Tenant or other charges authorized by this lease 6. TAXES: Unless otherwise agreed by the parties, Landlord will pay all real property ad valorem taxes assessed against the leased premises 7. UTILITIES: A The party designated below will pay for the following utility charges to the leased premises and any connection charges for the utilities (Check all that apply) N/A Landlord Tenant (1) Water U 0 ❑ (2) Sewer 0 0 ❑ (3) Electric 0 0 Q (4) Gas 0 0 Q (5) Telephone 0 0 O (6) Internet 0 0 ❑ (7) Cable ❑ 0 O (8) Trash 0 0 " 11 (9) 0 ❑ 0 (10) All other utilities 0 ❑ x B The party responsible for the charges under Paragraph 7A will pay the charges directly to the utility service provider. The responsible party may select the utility service provider except that if Tenant selects the provider, any access or alterations to the Property or leased premises necessary for the utilities may be made only with Landlord's prior consent, which Landlord will not unreasonably withhold. If Landlord incurs any liability for utility or connection charges for which Tenant is responsible to pay and Landlord pays such amount, Tenant will immediately upon written notice from Landlord reimburse Landlord such amount. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 4 of 15 Produced with L3pForme by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zI Lochx.com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock , TX 78 664 C Notice: Tenant should determine if all necessary utilities are available to the leased premises and are adequate for Tenant's intended use. D. After -Hours HVAC Charges: "HVAC services" means heating, ventilating, and air conditioning of the leased premises (Check one box only) [� (1) Landlord is obligated to provide the HVAC services to the leased premises only during the Property's operating hours specified under Paragraph 9C d (2) Landlord will provide the HVAC services to the leased premises during the operating hours specified under Paragraph 9C for no additional charge and will, at Tenant's request, provide HVAC services to the leased premises during other hours for an additional charge of $ per hour. Tenant will pay Landlord the charges under this paragraph immediately upon receipt of Landlord's invoice Hourly charges are charged on a half-hour basis. Any partial hour will be rounded up to the next half hour Tenant will comply with Landlord's procedures to make a request to provide the additional HVAC services under this paragraph. a (3) Tenant will pay for the HVAC services under this lease 8. INSURANCE: A. During all times this lease is in effect, Tenant must, at Tenant's expense, maintain in full force and effect from an insurer authorized to operate in Texas: (1) public liability insurance naming Landlord as an additional insured with policy limits on an occurrence basis in a minimum amount of: (check only (a) or (b) below) a (a) $1,000,000; or d (b) $2,000,000. If neither box is checked the minimum amount will be $1,000,000. (2) personal property damage insurance for the business operations being conducted in the leased premises and contents in the leased premises in an amount sufficient to replace such contents after a casualty loss; and ID (3) business interruption insurance sufficient to pay 12 months of rent payments; B Before the Commencement Date, Tenant must provide Landlord with a copy of insurance certificates evidencing the required coverage If the insurance coverage is renewed or changes in any manner or degree at any time this lease is in effect, Tenant must, not later than 10 days after the renewal or change, provide Landlord a copy of an insurance certificate evidencing the renewal or change. C. If Tenant fails to maintain the required insurance in full force and effect at all times this lease is in effect, Landlord may: (1) purchase insurance that will provide Landlord the same coverage as the required insurance and Tenant must immediately reimburse Landlord for such expense; or (2) exercise Landlord's remedies under Paragraph 20. D l-appr-epciate- E If there is an increase in Landlord's insurance premiums for the leased premises or Property or its contents that is caused by Tenant, Tenant's use of the leased premises, or any improvements made by or for Tenant, Tenant will, for each year this lease is in effect, pay Landlord the increase immediately after Landlord notifies Tenant of the increase Any charge to Tenant under this Paragraph 8E will be equal to the actual amount of the increase in Landlord's insurance premium (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 5 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 WWW zinLogix COM CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 9. USE AND HOURS: A Tenant may use the leased premises for the following purpose and no other: Sale and distribution of construction materials. B. Unless otherwise specified in this lease, Tenant will operate and conduct its business in the leased premises during business hours that are typical of the industry in which Tenant represents it operates C. The Property maintains operating hours of (specify hours, days of week, and if inclusive or exclusive of weekends and holidays) 24 hours a day, seven days a week. 10. LEGAL COMPLIANCE: A Tenant may not use or permit any part of the leased premises or the Property to be used for: (1) any activity which is a nuisance or is offensive, noisy, or dangerous; (2) any activity that interferes with any other tenant's normal business operations or Landlord's management of the Property; (3) any activity that violates any applicable law, regulation, zoning ordinance, restrictive covenant, governmental order, owners' association rules, tenants' association rules, Landlord's rules or regulations, or this lease; (4) any hazardous activity that would require any insurancepremium on the Property or leased premises to increase or that would void any such insurance; (5) any activity that violates any applicable federal, state, or local law, including but not limited to those laws related to air quality, water quality, hazardous materials, wastewater, waste disposal, air emissions, or other environmental matters; (6) the permanent or temporary storage of any hazardous material; or (7) B "Hazardous material" means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, solvent, or oil as defined by any federal, state, or local environmental law, regulation, ordinance, or rule existing as of the date of this lease or later enacted. C Landlord does not represent or warrant that the leased premises or Property conform to applicable restrictions, zoning ordinances, setback lines, parking requirements, impervious ground cover ratio requirements, and other matters that may relate to Tenant's intended use Tenant must satisfy itself that the leased premises may be used as Tenant intends by independently investigating all matters related to the use of the leased pre_mises or Property. Tenant agree that it is not relying on _any. warranty or representation made IA Landlord, Landlord's agent. or any broker concerning the use of the leased premises or Property. 11. SIGNS: A Tenant may not post or paint any signs or place any decoration outside the leased premises or on the Property without Landlord's written consent. Landlord may remove any unauthorized sign or decorations, and Tenant will promptly reimburse Landlord for its cost to remove any unauthorized sign or decorations. B Any authorized sign must comply with all laws, restrictions, zoning ordinances, and any governmental order relating to signs on the leased premises or Property. Landlord may temporarily remove any authorized sign to complete repairs or alterations to the leased premises or the Property (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 6 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLogix corn CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 C By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move -out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all signs that were placed on the Property or leased premises by or at the request of Tenant Any signs that Landlord does not require Tenant to remove and that are fixtures, become the property of the Landlord and must be surrendered to Landlord at the time this lease ends 12. ACCESS BY LANDLORD: A During Tenant's normal business hours Landlord may enter the leased premises for any reasonable purpose, including but not limited to purposes for repairs, maintenance, alterations, and showing the leased premises to prospective tenants or purchasers. Landlord may access the leased premises after Tenant's normal business hours if: (1) entry is made with Tenant's permission; or (2) entry is necessary to complete emergency repairs. Landlord will not unreasonably interfere with Tenant's business operations when accessing the leased premises B. During the last 60 days of this lease, Landlord may place a "For Lease" or similarly worded sign in the leased premises. 13. MOVE -IN CONDITION: Tenant has inspected the leased premises and accepts it in its present (as -is) condition unless expressly noted otherwise in this lease or in an addendum. Landlord and any agent have made no express or implied warranties as to the condition or permitted use of the leased premises or Property. 14. MOVE -OUT CONDITION AND FORFEITURE OF TENANT'S PERSONAL PROPERTY: A At the time this lease ends, Tenant will surrender the leased premises in the same condition as when received, except for normal wear and tear Tenant will leave the leased premises in a clean condition free of all trash, debris, personal property, hazardous materials, and environmental contaminants B If Tenant leaves any personal property in the leased premises after Tenant surrenders possession of the leased premises, Landlord may: (1) require Tenant, at Tenant's expense, to remove the personal property by providing written notice to Tenant; or (2) retain such personal property as forfeited property to Landlord C "Surrender" means vacating the leased premises and returning all keys and access devices to Landlord. "Normal wear and tear" means deterioration that occurs without negligence, carelessness, accident, or abuse, D By providing written notice to Tenant before this lease ends, Landlord may require Tenant, upon move -out and at Tenant's expense, to remove, without damage to the Property or leased premises, any or all fixtures that were placed on the Property or leased premises by or at the request of Tenant Any fixtures that Landlord does not require Tenant to remove become the property of the Landlord and must be surrendered to Landlord at the time this lease ends 15. MAINTENANCE AND REPAIRS: A Cleaning: Tenant must keep the leased premises clean and sanitary and promptly dispose of all garbage in appropriate receptacles. ❑ Landlord l] Tenant will provide, at its expense, janitorial services to the leased premises that are customary and ordinary for the property type. Tenant will maintain any grease trap on the Property which Tenant uses, including but not limited to periodic emptying and cleaning, as well as making any modification to the grease trap that may be necessary to comply with any applicable law (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 7 of 15 Produced with ZipFcrm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLogix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock. TX 78664 B Repairs of Conditions Caused by a Party: Each party must promptly repair a condition in need of repair that is caused, either intentionally or negligently, by that party or that party's guests, patrons, invitees, contractors or permitted subtenants C Repair and Maintenance Responsibility: Except as otherwise provided by this Paragraph 15, the party designated below, at its expense, is responsible to maintain and repair the following specified items in the leased premises (if any) The specified items must be maintained in clean and good operable condition If a governmental regulation or order requires a modification to any of the specified items, the party designated to maintain the item must complete and pay the expense of the modification. The specified items include and relate only to real property in the leased premises Tenant is responsible for the repair and maintenance of its personal property (Check all that apply) N/A Landlord Tenant (1) Foundation, exterior walls, roof, and other structural components 0 0 ❑ (2) Glass and windows 0 0 ❑ (3) Firprotectionequipment and fire sprinkler systems 0 0 0 (4)including molding, locks, hardware doors, closure devices, mo ❑ 0 ❑ (5) Grounds maintenance, including landscaping and irrigation systems................... ... _ ... ................. .. , ... ❑ (6) Interior doors, including closure devices, frames, molding, locks, and hardware ❑ (7) Parking areas and walks ❑ (8) Plumbing systems, drainage systems and sump pumps 0 (9) Electr%al systems, mechanical systems 0 (10) Ballast and lamp replacement ❑ (11) Heating, Ventilation and Air Condition ing (HVAC) systems 0 (12) Signs and lighting: (a) Pylon 0 x 11 (b) Facia ....... .... 0 ❑ 0 (c) Monument 0 ❑ 0 (d) Door/Suite (e) Other: ❑❑ 0 (13) Extermination and pest control, excluding wood -destroying insects 0 ❑ d (14) Fences and Gates ... .. ., 0 ❑ d (15) Storage yards and storage buildings . ❑ ❑ 0 (16) Wood -destroying insect treatment and repairs ❑ ❑ 0 (17) Cranes and related systems ❑ 0 C3 (18) ❑ 00 (19) (20) All other items and systems ....... ❑ d D. Repair Persons: Repairs must be completed by trained, qualified, and insured repair persons. E HVAC Service Contract: If Tenant maintains the HVAC system under Paragraph 15C(11), Tenant 0 is DI is not required to maintain, at its expense, a regularly scheduled maintenance and service contract for the HVAC system The maintenance and service contract must be purchased from a HVAC maintenance company that regularly provides such contracts to similar properties. If Tenant fails to maintain a required HVAC maintenance and service contract in effect at all times during this lease, Landlord may do so and Tenant will reimburse Landlord for the expense of such maintenance and service contract or Landlord may exercise Landlord's remedies under Paragraph 20 7 (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 8 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLooix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock . TX 7/3&64 F the common area. Landlord may change the cizc, dimension, and location of any commen areas, G Notice of Repairs: Tenant must promptly notify Landlord of any item that is in need of repair and that is Landlord's responsibility to repair. All requests for repairs to Landlord must be in writing H , Failure to Repair: enable - If Tenant fails to repair or maintain an item for which Tenant is responsible within 10 days after Landlord provides Tenant written notice of the needed repair or maintenance, Landlord may: (1) repair or maintain the item, without liability for any damage or loss to Tenant, and Tenant must immediately reimburse Landlord for the cost to repair or maintain; or (2) exercise Landlord's rem edies under Paragraph 20 16.. ALTERATIONS: A Tenant may not alter (including making any penetrations to the roof, exterior walls or foundation), improve, or add to the Property or the leased premises without Landlord's written consent Landlord will not unreasonably withhold consent for the Tenant to make . reasonable non-structural alterations, modifications, or improvements to the leased premises B. Tenant may not alter any locks or any security devices on the Property or the leased premises without Landlord's consent If Landlord authorizes the changing, addition, or rekeying of any locks or other security devices, Tenant must immediately deliver the new keys and access devices to Landlord C. If a governmental order requires alteration or modification to the leased premises, the party obligated to maintain and repair the item to be modified or altered as designated in Paragraph 15 will, at its expense, modify or alter the item in compliance with the order and in compliance with Paragraphs 16A and 17 D Any alterations, improvements, fixtures or additions to the Property or leased premises installed by either party during the term of this lease will become Landlord's property and must be surrendered to Landlord at the time this lease ends, except for those fixtures Landlord requires Tenant to remove under Paragraph 11 or 14 or if the parties agree otherwise in writing 17. LIENS: Tenant may not do anything that will cause the title of the Property or leased premises to be encumbered in any way If Tenant causes a lien to be filed against the Property or leased premises, Tenant will within 20 days after receipt of Landlord's demand: (1) pay the lien and have the lien released of record; or (2) take action to discharge the lien Tenant will provide Landlord a copy of any release Tenant obtains pursuant to this paragraph 18. LIABILITY: To the extent permitted by law. Landlord is NOT responsible to Tenant or Tenant's employees, patrons, guests, or invitees for anv damages, injuries or losses to person or property caused by: A an act. omission. or neglect of: Tenant; Tenant's agent; Tenant's guest; Tenant's employees; Tenant's patrons: Tenant's invitees: or any other tenant on the Property; B. fire flood, water leaks ice, snow hail winds explosion, smoke riot strike interruption of utilities. theft burglary. robbery. assault vandalism. other persons, environmental contaminants, or other occurrences or casualty losses. (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 9 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zieLogix corn CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 19. INDEMNITY: Each party will indemnify and hold the other party harmless from any property damage. personal injury,. suits. actions. liabilities, damages cost of repairs or service to the leased premises Property, or any other Toss caused, nealigently or otherwise, by that party or that party's employees, patrons, guests, or invitees. 20, DEFAULT: A. If Landlord fails to comply with this lease within 30 days after Tenant notifies Landlord of Landlord's failure to comply, Landlord will be in default and Tenant may seek any remedy provided by law If, however, Landlord's non-compliance reasonably requires more than 30 days to cure, Landlord will not be in default if the cure is commenced within the 30 -day period and is diligently pursued. B If Landlord does not actually receive at the place designated for payment any rent due under this lease within 5 days after it is due, Tenant will be in default. If Tenant fails to comply with this lease for any other reason within 10 days after Landlord notifies Tenant of its failure to comply, Tenant will be in default C If Tenant is in default, Landlord may, with at least 3 days written notice to Tenant: (1) terminate this lease, or (ii) terminate Tenant's right to occupy the leased premises without terminating this lease and may accelerate all rents which are payable during the remainder of this lease or any renewal period Landlord will attempt to mitigate any damage or loss caused by Tenant's breach by using commercially reasonable means. If Tenant is in default, Tenant will be liable for: (1) any lost rent; (2) Landlord's cost of reletting the leased premises, including brokerage fees, advertising fees, and other fees necessary to relet the leased premises; (3) repairs to the leased premises for use beyond normal wear and tear; (4) all Landlord's costs associated with eviction of Tenant, such as attorney's fees, court costs, and prejudgment interest; (5) all Landlord's costs associated with collection of rent such as collection fees, late charges, and returned check charges; (6) cost of removing any of Tenant's equipment or fixtures left on the leased premises or Property; (7) cost to remove any trash, debris, personal property, hazardous materials, or environmental contaminants left by Tenant or Tenant's employees, patrons, guests, or invitees in the leased premises or Property; (8) cost to replace any unreturned keys or access devices to the leased premises, parking areas, or Property; (9) any other recovery to which Landlord may be entitled under this lease or under law 21. ABANDONMENT, INTERRUPTION OF UTILITIES, REMOVAL OF PROPERTY, AND LOCKOUT: Chapter 93 of the Texas Property Code governs the rights and obligations of the parties with regard to: (a) abandonment of the leased premises; (b) interruption of utilities; (c) removal of Tenant's property; and (d) "lock -out" of Tenant 22. HOLDOVER: If Tenant fails to vacate the leased premises at the time this lease ends, Tenant will become a tenant -at -will and must vacate the leased premises immediately upon receipt of demand from Landlord. No holding over by Tenant, with or without the consent of Landlord, will extend this lease Tenant will indemnify Landlord and any prospective tenants for any and all damages caused by the holdover Rent for any holdover period will be 'O • _ = • - - -'•• - - easie and will be immediately due and payable daily without notice or deman•. $10,000.00 per 30 days (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , , and Tenant: Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLoaix corn Page 10 of 15 CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 23. LANDLORD'S LIEN AND SECURITY INTEREST: To secure Tenant's performance under this lease, Tenant grants to Landlord a lien and security interest against all of Tenant's nonexempt personal property that is in the leased premises or on the Property. This lease is a security agreement for the purposes of the Uniform Commercial Code Landlord may file a financing statement to perfect Landlord's security interest under the Uniform Commercial Code. 24.. ASSIGNMENT AND SUBLETTING: Landlord may assign this lease to any subsequent owner of the Property Tenant may not assign this lease or sublet any part of the leased premises without Landlord's written consent An assignment of this lease or subletting of the leased premises without Landlord's written consent is voidable by Landlord. If Tenant assigns this lease or sublets any part of the leased premises, Tenant will remain liable for all of Tenant's obligations under this lease regardless if the assignment or sublease is made with or without the consent of Landlord. 25.. RELOCATION: El A By providing Tenant with not less than 90 days advanced written notice, Landlord may require Tenant to relocate to another location in the Property, provided that the other location is equal in size or larger than the leased premises then occupied by Tenant and contains similar leasehold improvements Landlord will pay Tenant's reasonable out-of-pocket moving expenses for moving to the other location "Moving expenses" means reasonable expenses payable to professional movers, utility companies for connection and disconnection fees, wiring companies for connecting and disconnecting Tenant's office equipment required by the relocation, and printing companies for reprinting Tenant's stationary and business cards. A relocation of Tenant will not change or affect any other provision of this lease that is then in effect, including rent and reimbursement amounts, except that the description of the suite or unit number will automatically be amended. B Landlord may not require Tenant to relocate to another location in the Property without Tenant's prior consent 26. SUBORDINATION: A This lease and Tenant's leasehold interest are and will be subject, subordinate, and inferior to: (1) any lien, encumbrance, or ground lease now or hereafter placed on the leased premises or the Property that Landlord authorizes; (2) all advances made under any such lien, encumbrance, or ground lease; (3) the interest payable on any such lien or encumbrance; (4) any and all renewals and extensions of any such lien, encumbrance, or ground lease; (5) any restrictive covenant affecting the leased premises or the Property; and (6) the rights of any owners' association affecting the leased premises or Property B Tenant must, on demand, execute a subordination, attornment, and non -disturbance agreement that Landlord may request that Tenant execute, provided that such agreement is made on the condition that this lease and Tenant's rights under this lease are recognized by the lien -holder 27.. ESTOPPEL CERTIFICATES & FINANCIAL INFORMATION: A Within 10 days after receipt of a written request from Landlord, Tenant will execute and deliver to Landlord an estoppel certificate that identifies the terms and conditions of this lease. B. Within 30 days after receipt of a written request from Landlord, Tenant will provide to Landlord Tenant's current financial information (balance sheet and income statement) Landlord may request the financial information no more frequently than once every 12 months (TAR -2101) 1-26-10 Initialed for identification by Landlord: , and Tenant Page 11 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLogix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock , TX 78664 28. CASUALTY LOSS: (See paragraph 35) A. erd fails to substantially- ord may: (1) terminate e - es -within - c to restore, and give 29. CONDEMNATION: If after a condemnation or purchase in lieu of condemnation the leased premises are totally unusable for the purposes stated in this lease, this lease will terminate. If after a condemnation or purchase in lieu of condemnation the leased premises or Property are partially unusable for the purposes of this lease, this lease will continue and rent will be reduced in an amount proportionate to the extent the leased premises are unusable. Any condemnation award or proceeds in lieu of condemnation are the property of Landlord and Tenant has no claim to such proceeds or award. Tenant may seek compensation from the condemning authority for its moving expenses and damages to Tenant's personal property 30. ATTORNEY'S FEES: Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, reasonable attorney's fees, and all other costs of litigation from the nonprevailing party. 31. REPRESENTATIONS: A Tenant's statements in this lease and any application for rental are material representations relied upon by Landlord. Each party signing this lease represents that he or she is of legal age to enter into a binding contract and is authorized to sign the lease, If Tenant makes any misrepresentation in this lease or in any application for rental, Tenant is in default B Landlord is not aware of any material defect on the Property that would affect the health and safety of an ordinary person or any environmental hazard on or affecting the Property that would affect the health or safety of an ordinary person, except: (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 12 of 15 Produced with ZipForrn® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www ziDLoaix com CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 C Each party and each signatory to this lease represents that: (1) it is not a person named as a Specially Designated National and Blocked Person as defined in Presidential Executive Order 13224; (2) it is not acting, directly or indirectly, for or on behalf of a Specially Designated and Blocked Person; and (3) is not arranging or facilitating this lease or any transaction related to this lease for a Specially Designated and Blocked Person. Any party or any signatory to this lease who is a Specially Designated and Blocked person will indemnify and hold harmless any other person who relies on this representation and who suffers any claim, damage, loss, liability or expense as a result of this representation 32.. BROKERS: A. The brokers to this lease are: Principal Broker License No Cooperating Broker License No Agent Agent Address Phone E -Mail Address Fax Phone Fax License No E -Mail Principal Broker: (Check only one box) ❑ represents Landlord only ❑ representsTenant on ly ❑ is an intermediary between Landlord and Tenant. Cooperating Broker represents Tenant. License No B Fees: ❑ (1) Principal Broker's fee will be paid according to: (Check only one box). ❑ (a) a separate written commission agreement between Principal Broker and: ❑ Landlord 0 Tenant. d (b) the attached Addendum for Broker's Fee. ❑ (2) Cooperating Broker's fee will be paid according to: (Check only one box). ❑ (a) a separate written commission agreement between Cooperating Broker and: ❑ Principal Broker ❑ Landlord ❑ Tenant ❑ (b) the attached Addendum for Broker's Fee 33. ADDENDA: Incorporated into this lease are the addenda, exhibits and other information marked in the Addenda and Exhibit section of the Table of Contents If Landlord's Rules and Regulations are made part of this lease, Tenant agrees to comply with the Rules and Regulations as Landlord may, at its discretion, amend from time to time 34. NOTICES: All notices under this lease must be in writing and are effective when hand -delivered, sent by mail, or sent by facsimile transmission to: Landlord at: Steve Norwood - City of Round Rock, City Manager Address: 221 E. Main Street, Round Rock, TX 78664 Phone: (512)218-5402 Fax: and a copy to: Steve Sheets - City of Round Rock, City Attorney Address: 309 E. Main Street, Round Rock, TX 78664 Phone: (512)255-8877 Fax: ❑ Landlord also consents to receive notices by e-mail at: (TAR -2101) 1-26-10 Initialed for Identification by Landlord: , and Tenant: Page 13 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www.zioLoaix com CORR N1R 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 Tenant at the leased premises, and a copy to: Russell Pae - NIR Address:2525 McCallister, Houston, Texas 77092 Phone: (713)201-3112 Fax:. ❑ Tenant also consents to receive notices by e-mail at: 35,. SPECIAL PROVISIONS: A. Landlord acknowledges and permits the Tenant to sub -lease the premises to the current occupant, BGS Acquisitions Corp B. If there is a casualty loss, Landlord shall have no obligation to repair or restore the leased premises If Landlord chooses not to repair or restore the leased premises, Tenant may (1) undertake the repair or restoration of the leased premises and bear all costs, or (2) terminate this lease. C Tenant accepts the leased premises "AS -IS" with any and all defects, including latent defects, and that there is no warranty by Landlord that the leased premises is fit for any particular purpose. 36, AGREEMENT OF PARTIES: A. Entire Actreement:This lease contains the entire agreement between Landlord and Tenant and may not be changed except by written agreement B Binding Effect: This lease is binding upon and inures to the benefit of the parties and their respective heirs, executors, administrators, successors, and permitted assigns. C Joint and Several: All Tenants are jointly and severally liable for all provisions of this lease. Any act or notice to, or refund to, or signature of, any one or more of the Tenants regarding any term of this lease, its renewal, or its termination is binding on all Tenants. D Controlling Law: The laws of the State of Texas govern the interpretation, performance, and enforcement of this lease. E. Severable Clauses: If any clause in this lease is found invalid or unenforceable by a court of law, the remainder of this lease will not be affected and all other provisions of this lease will remain valid and enforceable. F Waiver: Landlord's delay, waiver, or non -enforcement of acceleration, contractual or statutory lien, rental due date, or any other right will not be deemed a waiver of any other or subsequent breach by Tenant or any other term in this lease G. Quiet Enjoyment: Provided that Tenant is not in default of this lease, Landlord covenants that Tenant will enjoy possession and use of the leased premises free from material interference (TAR -2101) 1-26-10 Initialed for Identification by Landlord: and Tenant: Page 14 of 15 Produced with ZipForm®by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www.zipLoaix cam CORR NIR 115 Bagdad Road Commercial Lease concerning: Round Rock, TX 78664 H. Force Majeure: If Landlord's performance of a term in this lease is delayed by strike, Tock -out, shortage of material, governmental restriction, riot, flood, or any cause outside Landlord's control, the time for Landlord's performance will be abated until after the delay. I Time: Time is of the essence. The parties require strict compliance with the times for performance Brokers are not qualified to render legal advice, property inspections, surveys, engineering studies, environmental assessments, tax advice, or compliance inspections. The parties should seek experts to render such services. READ THIS LEASE CAREFULLY„ If you do not understand the effect of this Lease, consult your attorney BEFORE signing. Landlord:City of Round Rock Tenant: NIR Investments, LTD. By: By: By (signature): By (signature): Printed Name: Printed Name: Title: Title: By: By: By (signature): By (signature): Printed Name: Printed Name: Title: Title: (TAR -2101) 1-26-10 Page 15 of 15 Produced with ZipForm® by zipLogix 18070 Fifteen Mile Road Fraser Michigan 48026 www zioLouix com CORR NIR