CM-11-04-078City of Round Rock, Landlord
Nyle Maxwell Pontiac -GMC, LLC, Tenant
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into between the Landlord and Tenant named
herein. Landlord is the City of Round Rock, Texas, a home -rule municipal corporation with offices located at 221
East Main Street, Round Rock, Texas 78664. Tenant is Nyle Maxwell Pontiac -GMC, LLC, 300 North IH 35,
Round Rock, Texas 78664. The Premises are described as a vehicle parking lot located at 2400 Chisholm Trail,
Round Rock, Texas 78664, described further as Lot 1, Replat of Calcasieu Lumber Addition, a subdivision in
Williamson County, Texas, according to the map or plat thereof, recorded in Cabinet P, Slide 16 of the Plat Records
of Williamson, County, Texas.
1. DEFINITIONS. The definitions listed in this Paragraph 1 shall have the meanings as set forth below:
(a) "Rent" means Base Rent plus any other amounts of money due to Landlord from Tenant.
(b) "Landlord" means City of Round Rock, Texas, a home -rule municipality, and its agents, employees,
invitees, licensees, or visitors.
(c) "Tenant" means Nyle Maxwell.
2. LEASE GRANT. In consideration of the mutual obligations of Landlord and Tenant set forth herein, Landlord
leases to Tenant, and Tenant takes "as is" from Landlord, the Premises, beginning on April 25, 2011, the
"Commencement Date" and ending on the last day of the Term, unless otherwise terminated as provided herein.
This term of this lease is for ninety (90) days and the Expiration Date will be August 25, 2011.
3. IMPROVEMENT OF PREMISES. No specific maintenance or construction obligations of Landlord are set
forth in this Lease. Tenant expressly acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty of any kind whatsoever with respect to the premises, or with respect to the safety of same
or the suitability of same for the purposes intended by Tenant. By executing this lease, Tenant shall be deemed to
have accepted the premises "as is" and suitable for the purposes intended by Tenant, and to have acknowledged that
same fully satisfy all of Landlord's obligations. By executing this lease, Tenant has acknowledged that it has been
advised to and has had sufficient opportunity to conduct its own independent inspection of the premises in order to
determine current condition and suitability for Tenant's purposes. If Tenant and its employees, agents, contractors
and suppliers enter the Premises before the Commencement Date, any such entry shall be under all of the terms of
this Lease (except the obligation to pay the Term Payment) and at Tenant's sole risk. Landlord shall not be liable in
any way for personal injury, death or property damage (including damage to any personal property which Tenant
may bring into, or any work which Tenant may perform in, the premises) which may occur in or about the property
to Tenant or such other person or firm as a result of any such entry, including without limitation damage resulting
from, or alleged to result from, Landlord's negligence.
4. BASE RENT. For the entire Term, Tenant shall owe Landlord, in advance, without demand, deduction or set
off, the total Base Rent of One Thousand Five Hundred Dollars ($1,500). The full Base Rent payment is due and
payable on or before the Effective Date of this Lease.
5. LANDLORD HAS NO OBLIGATION FOR REPAIR AND MAINTENANCE. By executing this lease,
Tenant shall be deemed to have accepted the premises, "as is" and suitable for the purposes intended by Tenant, and
to have acknowledged that same fully satisfy all of Landlord's obligations.
Tenant hereby expressly acknowledges its complete understanding and acceptance of the fact that Landlord shall
have no obligation whatsoever to maintain the parking lot, paving, fence, light poles, or any other improvement
located on the Premises. Landlord shall have no obligation whatsoever to effect repairs or cure defects.
6. TENANT'S OBLIGATIONS. Tenant, at its own cost and expense, shall keep the Premises free of trash and
debris from Tenant's use.
7. ALTERATIONS. Tenant shall not make any alterations, additions or improvements to the Premises without
Landlord's prior written consent.
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8. SIGNS. Tenant shall not place any sign on the Premises without the express prior written consent of Landlord.
9. UTILITIES. Landlord shall not be liable to install or pay for any water, wastewater, electricity, utilities, or
telecommunications services to the Premises..
10. INSURANCE. Tenant shall maintain a policy or policies of comprehensive general liability insurance
pertaining to its use and occupancy of the Premises, such insurance to afford minimum protection of not less than
One Million and No/100 Dollars ($1,000,000.00) combined single limit coverage for bodily injury, death to any one
person or property damage in any one occurrence. The liability policies shall name Landlord as an additional
insured party
11. LIABILITY AND INDEMNIFICATION. Landlord shall not be liable or responsible to Tenant for any loss
or damage to any property or person occasioned by theft, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or order of governmental body or authority or any similar matter.
Landlord shall not be liable to Tenant, or to Tenant's agents, servants, employees, customers or invitees, and Tenant
shall indemnify, defend and hold Landlord harmless from and against any and all fines, suits, claims, demands,
losses, liabilities, actions and costs (including court costs and attorney's fees) arising from (a) any injury to person or
damage to property caused by any act, omission or neglect of Tenant, Tenant's agents, servants, employees,
customers, contractors, or invitees, (b) Tenant's use of the Premises or the conduct of Tenant's business or
profession, (c) any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises or the
Property or (d) any breach or default in the performance of any obligation on Tenant's part to be performed under
the terms of this Lease. This indemnity shall apply regardless of whether the loss in question arises or is alleged to
arise in part from any negligent act or omission or gross negligence of Landlord or Landlord's agents or employees,
or from strict liability of any such persons, or from any breach or default in the performance of any obligation on
Landlord's part to be performed under the terms of this lease, or otherwise. Landlord advises Tenant to obtain
additional insurance in excess of the amounts required herein to protect against the above occurrences if Tenant
desires additional coverage for such risks. Tenant shall notify Landlord promptly of any significant accidents
involving injury to persons or property. Tenant acknowledges that Landlord has advised that Landlord does not
provide or maintain security systems and services for the premises. Tenant shall give Landlord prompt notice of any
criminal or suspicious conduct within or about the Premises, the Building or the Property and/or any personal injury
or property damage caused thereby. Tenant acknowledges that Landlord has advised that Landlord does not provide
or maintain lighting in parking areas. Tenant acknowledges the adequacy of current conditions and agrees that
Landlord shall not be responsible for any lighting or any security measures on or for the property.
Landlord shall not be liable to Tenant for incidental, special, consequential, or punitive damages.
12. USE. The Premises shall be used only for a vehicle storage yard for up to 60 vehicles, and for no other use
whatsoever without the prior written consent of Landlord. Tenant shall comply with all governmental laws,
ordinances and regulations applicable to the use of the Premises, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement of nuisances in, upon or connected
with the Premises, all at Tenant's sole expense.
13. HAZARDOUS MATERIALS. "Hazardous Materials" shall mean pollutants, contaminants, toxic or
hazardous wastes, or any other substances, the use and/or removal of which is required on the use of which is
restricted, prohibited or penalized by any environmental law, which term shall mean any federal, state or local
statute, ordinance, regulation or other law of a governmental or quasi -governmental authority relating to pollution or
protection of the environment or the regulation of the storage of handling of Hazardous Materials. Tenant agrees that
it will not permit any Hazardous Materials whatsoever to be brought onto or placed on the Premises.
14. INSPECTION. Landlord may enter upon the Premises during normal business hours for any reasonable
purpose, including without limitation, inspecting same. Tenant shall notify Landlord in writing at least ten (10) days
before vacating the Premises and shall arrange to meet with Landlord for a joint inspection of the Premises before
vacating. If Tenant does not give such notice or arrange for such inspection, then Landlord's inspection of the
Premises shall be deemed correct for the purpose of
15. HOLDING OVER. At the termination of this Lease by its expiration or otherwise, Tenant shall immediately
deliver possession of the Premises to Landlord with all repairs and maintenance required herein to be performed by
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Tenant completed. If, for any reason, Tenant retains possession of the Premises after the expiration or termination
of this Lease, unless the parties hereto otherwise agree in writing, such possession shall be deemed to be a tenancy at
will only, and the rent shall be deemed to be $100 per day during such holdover period. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this Paragraph 19 shall not be construed as consent for Tenant to retain
possession of the Premises in the absence of written consent thereto by Landlord.
16. QUIET ENJOYMENT. Landlord represents that it has the authority to enter into this Lease and that, so long
as Tenant pays all amounts due hereunder and performs all other covenants and agreements herein set forth, Tenant
shall peaceably and quietly have, hold and enjoy the Premises for the Term without hindrance or molestation from
Landlord, subject to the terms and provisions of this Lease.
17. EVENTS OF DEFAULT. The following events (herein individually referred to as an "Event of Default") each
shall be deemed to be a default in or breach of Tenant's obligations under this Lease:
(a) Tenant shall fail to pay any installment of the rent herein reserved when due, or any other payment or
reimbursement to Landlord required herein when due, and such failure shall continue for a period of five
(5) days after the date such payment was due.
(b) Tenant shall default in the performance of any of its obligations under any other lease to Tenant from
Landlord, or from any person or entity affiliated with or related to Landlord, and same shall remain uncured
after the lapsing of any applicable cure periods provided for under such other lease.
(c) Tenant shall fail to comply with any term, provision or covenant of this Lease (other than those listed in
this Paragraph), and shall not cure such failure within ten (10) days after written notice thereof to Tenant;
provided, however, that if the failure to cure is of such a nature that it cannot reasonably be cured within
said ten-day period, Tenant shall not be deemed in default so long as Tenant commences curing such
failure within said ten-day period, and diligently prosecutes same to completion.
If Landlord is required to notify Tenant of any default under the provisions of this Lease, such obligation shall
terminate following the second notice of default delivered to Tenant during the Term.
18. REMEDIES. Upon each occurrence of an Event of Default, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand:
(a) Terminate this Lease;
(b) Through judicial proceedings, enter upon and take possession of the Premises without terminating this
Lease;
(c) The provisions of this Lease are intended to supersede Section 93.002 of the Texas Property Code and
Tenant hereby expressly waives any and all rights and remedies Tenant may have under Paragraph (g) of such
Section 93.002.
19. LANDLORD DEFAULT. If Landlord fails to perform any of its obligations hereunder within thirty (30) days
after written notice from Tenant specifying such failure, Tenant's exclusive remedy shall be an action for damages.
Unless and until Landlord fails to so cure any default after such notice, Tenant shall not have any remedy or cause of
action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; and
all such obligations will be binding upon Landlord only during the period of its ownership of the Property and not
thereafter. The term "Landlord" shall mean only the owner, for the time being, of the Property and, in the event of
the transfer by such owner of its interest in the Property, such owner shall thereupon be released and discharged
from all covenants and obligations of the Landlord thereafter accruing, provided that such covenants and obligations
shall be binding during the Term upon each new owner for the duration of such owner's ownership.
Notwithstanding any other provision of this Lease, Landlord shall not have any personal liability hereunder. In the
event of any breach or default by Landlord in any term or provision of this Lease, Tenant agrees to look solely to the
equity or interest then owned by Landlord in the Property; and in no event shall any deficiency judgment or any
money judgment of any kind be sought or obtained against any Landlord. The liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease shall be limited to the interest of Landlord in the Premises or
the Building, it being intended that nether Landlord nor its officers, directors and employees shall be personally
liable for any judgment or deficiency.
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20. NO RECORDATION. Tenant shall not record this Lease or any memorandum thereof without the prior
written consent of Landlord.
21. MECHANIC'S LIENS. Tenant will not permit any mechanic's lien or liens to be placed upon the Premises or
Property, or any portion thereof, caused by or resulting from any work performed, materials furnished or obligation
incurred by or at the request of Tenant. If any such lien is filed, Tenant will immediately pay, obtain the release of,
or bond around same (such bond to be in the form and amount prescribed by the Texas Property Code). If any lien
is not removed (or bonded around) within thirty (30) days, Landlord may pay the debt secured by same or any
portion thereof without inquiry as to the validity thereof, and any amounts so paid, including expenses and interest,
shall be so much additional rent hereunder due from Tenant to Landlord and shall be repaid to Landlord (together
with interest at the Past Due Rate from the date paid by Landlord until the date Landlord is reimbursed by Tenant)
within fifteen (15) days after Tenant's receipt of a statement from Landlord therefor.
22. MISCELLANEOUS.
(a) Interpretation. The captions inserted in this Lease are for convenience only and in no way define, limit or
otherwise describe the scope or intent of this Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
(b) Binding Effect. Except as otherwise herein expressly provided, the terms, provisions and covenants and
conditions in this Lease shall apply to, inure to the benefit of and be binding upon the parties hereto and
upon their respective heirs, executors, personal representatives, legal representatives, successors and
permitted assigns.
(c) Transfer. Upon fifteen (15) days advance written notice to Tenant, Landlord may transfer and assign, in
whole or in part, its rights and obligations in the Premises, the Building and this Lease. Any such sale,
transfer or assignment shall operate to release Landlord from any and all liabilities arising out of any act,
occurrence or omission relating to the Premises, the Building or this Lease arising after the date of such
sale, assignment or transfer
(d) Evidence of Authority. Tenant agrees to furnish to Landlord, promptly upon demand, a corporate
resolution, proof of due authorization by partners, or other appropriate documentation evidencing the due
authorization of Tenant to enter into this Lease.
(e) Force Majeure. Whenever a period of time is herein prescribed for action to be taken by Landlord,
Landlord shall not be liable or responsible for, and there shall be excluded from the computation of any
such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other causes of any kind whatsoever which are
beyond Landlord's reasonable control.
Payments Constitute Rent. Notwithstanding anything in this Lease to the contrary, all amounts payable by
Tenant to or on behalf of Landlord under this Lease, whether or not expressly denominated as rent, shall
constitute rent.
(f)
(g)
Estoppel Certificates. Tenant agrees, from time to time, within ten (10) days after request of Landlord, to
deliver to Landlord, or Landlord's designee, an estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired Term, any defaults existing under this Lease (or
the absence thereof) and such other factual matters pertaining to this Lease as may be requested by
Landlord. It is understood and agreed that Tenant's obligation to furnish such estoppel certificates in a
timely fashion is a material inducement for Landlord's execution of this Lease. In the event Tenant fails to
deliver such certificate to Landlord, Tenant irrevocably appoints Landlord as Tenant's attorney-in-fact to
execute same.
(h) Entire Agreement; No Landlord Warranties or Representations. This Lease constitutes the entire
understanding and agreement of Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect thereto. To the fullest
extent permitted by law, Tenant hereby waives any and all warranties, express or implied, with respect to
the premises which may exist by operation of law or in equity, including, without limitation, any warranties
of habitability, suitability or fitness for a particular purpose. Under no circumstances shall Landlord or
Tenant be considered an agent of the other. Tenant agrees that Tenant is waiving Tenant's rights under the
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(i)
deceptive trade practices -consumer protection act, section 17.41 et seq. Business & commerce code, a law
that gives consumers special rights and protections. Tenant hereby represents and warrants to Landlord
that (i) Tenant is not in a significantly disparate bargaining position in relation to Landlord, (ii) Tenant has
the opportunity to be represented by legal counsel of Tenant's own choice and designation in connection
with this Lease, and (iii) Tenant is not leasing the Premises for use as a residence.
Survival of Obligations. All obligations of Tenant hereunder not fully performed as of the expiration or
earlier termination of the Term shall survive such expiration or earlier termination.
(j) Severability of Terms. If any clause or provision of this Lease is illegal, invalid or unenforceable under
present or future laws effective during the Term, then, in such event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to
this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there
be added, as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and enforceable.
(k) Brokers' Commission. Tenant represents and warrants that it has dealt with and will deal with no broker,
agent or other person in connection with this transaction or future related transactions and that no broker,
agent or other person brought about this transaction, and Tenant agrees to indemnify and hold Landlord
harmless from and against any claims by any broker, agent or other person claiming a commission or other
form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction.
Ambiguity. Landlord and Tenant hereby agree and acknowledge that this Lease has been fully reviewed
and negotiated by both Landlord and Tenant, and that Landlord and Tenant have each had the opportunity
to have this Lease reviewed by their respective legal counsel, and, accordingly, in the event of any
ambiguity herein, Tenant does hereby waive the rule of construction that such ambiguity shall be resolved
against the party who prepared this Lease.
Joint and Several Liability. If there be more than one Tenant, the obligations hereunder imposed upon
Tenant shall be joint and several. If there be a guarantor of Tenant's obligations hereunder, the obligations
hereunder imposed upon Tenant shall be joint and several obligations of Tenant and such guarantor, and
Landlord need not first proceed against Tenant before proceeding against such guarantor, nor shall any
such guarantor be released from its guaranty for any reason whatsoever, including, without limitation, in
case of any amendments hereto, waivers hereof or failure to give such guarantor any notices hereunder.
(n) Third Party Rights. Nothing herein expressed or implied is intended, or shall be construed, to confer upon
or give to any person or entity, other than the parties hereto, any right or remedy under or by reason of this
Lease.
(1)
(m)
(o) Applicable Law. This Lease has been executed in the State of Texas and shall be governed in all respects
by the laws of the State of Texas.
(p) Jurisdiction and Venue. All causes of action in connection herewith shall be maintained in proceedings
filed in Williamson County, Texas.
23. NOTICES. Each provision of this instrument or of any applicable governmental laws, ordinances, regulations
and other requirements with reference to the sending, mailing or delivering of notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivering of any notice or the making of any
payment by Tenant to Landlord shall be deemed to be complied with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to Landlord hereunder shall be payable to
Landlord at Landlord's Address herein or at such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's obligation to pay rent and any other amounts
to Landlord under the terms of this Lease shall not be deemed satisfied until such rent and other amounts
have been actually received by Landlord.
(b) All notices required to be made by Landlord to Tenant hereunder shall be made to Tenant at Tenant's
Address herein, or at such other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
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(c) Except as expressly provided herein, any written notice, document or payment required or permitted to be
delivered hereunder shall be deemed to be delivered when received or, whether actually received or not,
when deposited in the United States Mail, postage prepaid, Certified or Registered Mail, addressed to the
parties hereto at their respective addresses specified herein, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith.
EXECUTED BY THE PARTIES on this the 2456day of the month of \4 1 2011.
CITY OF ROUND ROCK, TEXAS
Steve Norwood, City Manager
Date Signed:
ATTEST: /`
By: <617/171A/t,---• �\�
k• 2-0
Sara L. White, City Secretary
PPROVED ATO FORM:
. Sheets, City Attorney
NYLE MAXWELL PONTIAC-GMC, LLC
TENANT
By: Y3r, , )-
Printed
Printed Name: Tom Gammon, eneral Manager
Date Signed:
20,0
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