LEASE AGREEMENT FOR PLACING ATM AT MUNICIPAL COURT OF RECORD IN THE CITY OF BAYTOWN, TEXAS AND RONALD D. MCLEMORE POLICE SUBSTATION

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1 Exhibit "A" LEASE AGREEMENT FOR PLACING ATM AT MUNICIPAL COURT OF RECORD IN THE CITY OF BAYTOWN, TEXAS AND RONALD D. MCLEMORE POLICE SUBSTATION This Agreement, made and entered into by and between the City of Baytown, a home-rule municipal corporation located at 2401 Market Street, Baytown, Texas 77520, hereinafter referred to as the City and Amegy Bank, N.A. a Texas state financial institution, located at 4400 Post Oak Parkway, Houston, TX 77027, hereinafter referred to as the Lessee. ATM Lease Agreement, Page 1 WITNESSETH WHEREAS, the City is the owner of the following property Municipal Court of Record in the City of Baytown, Texas 3200 N. Main Baytown, TX and Ronald D. McLemore Police Substation 3530 Market Street Baytown, TX (hereinafter collectively referred to as Premises ); and WHEREAS, Lessee owns remotely controlled devices that automatically perform certain services normally performed by bank tellers better known as automatic teller machines (hereinafter referred to as ATMs ) and wishes to install one on the Premises; and WHEREAS, ATMs have been located on the Premises in the past as a convenience to the public using the Premises and the area needed for the installation of the ATMs is not needed for any other municipal purpose during the lease term set forth herein; and WHEREAS, the City is willing to lease this portion of the Premises subject to the terms and conditions stated herein; NOW THEREFORE, the parties hereby agree and bind themselves as follows: 1. Premises. For the sole purpose of installing and operating a stand-alone ATM at a location designated by the City Manager on the Premises to allow convenient access to customers, City does hereby lease to Lessee a portion of the Premises, the exact location of which shall be determined by the City. This Agreement provides Lessee a nonexclusive right to maintain and operate an ATM on the Premises. By this Agreement, the City does not grant any interest in Premises to Lessee

2 besides a mere license for the express purpose of installing and operating a stand-alone ATM thereon. 2. DISCLAIMER OF WARRANTIES. THE CITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY NATURE, KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND LESSEE ACCEPTS SUCH PREMISES IN AN AS IS CONDITION, WITH ALL FAULTS. LESSEE, BY ITS ACCEPTANCE OF THIS AGREEMENT EXPRESSLY WAIVES ANY RIGHT OR CLAIM AGAINST THE CITY FOR DAMAGES, RESCISSION OR OTHER REMEDY AT LAW OR IN EQUITY WITH RESPECT TO OR RESULTING FROM THE PHYSICAL CONDITION OF THE PREMISES AND THE IMPROVEMENTS THEREON. THE WAIVER AND EXCULPATION PROVIDED ABOVE SHALL BE BINDING ON ALL SUCCESSORS AND ASSIGNS OF LESSEE. 3. Term. The term of the Lease shall be for five (5) years, commencing on the date this Agreement is signed by the City Manager. This Agreement shall automatically be renewed for an additional five-year period upon expiration unless terminated by either party by giving the other party written notice of intent not to renew at least ninety (90) days prior to the expiration date of the original term or any renewal thereof. Any holding over by Lessee after termination or expiration of this Agreement shall not constitute a renewal or extension or give Lessee any rights in or to the Premises. Should Lessee hold over, Lessee shall pay, as liquidated damages, the then current fair market rental value of the affected portion of the Premises and the improvements thereon, as determined by the City, calculated on a per diem basis, multiplied by two (2) for the period during which Lessee possesses the affected portion of the Premises beyond the termination hereof. Such amount is reasonable in the light of the anticipated or actual harm to the City caused by Lessee s holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an adequate remedy. 4. Rent. Lessee shall pay City annual rent of TWENTY-FOUR THOUSAND AND NO/100 DOLLARS ($24,000.00) payable in monthly installments of TWO THOUSAND AND NO/100 DOLLARS ($2,000.00). Said rent is due in full and in advance on or before the first day of each month and shall be made by check payable to the City of Baytown and sent to Accounts Receivable at City Hall, 2401 Market Street, Baytown, Texas Lessee s right to possession and all of the City s obligations hereunder are expressly contingent upon the prompt payment of rent, and the use of the Premises by Lessee is obtained only on the condition that rent is paid on time. Payment of rent shall be independent covenants and all monies received by the City shall be applied first to non-rent obligations of Lessee under this Agreement, if any, and then to rent regardless of any notation on the check. Failure to pay any rent as and when required will not only be considered a breach of this Agreement but also result in interest at the rate of twelve percent (12%) per annum being charged on the delinquent rental payments commencing on the date the payment first becomes overdue and continuing until the delinquent payment is paid in full. ATM Lease Agreement, Page 2

3 5. Signage. Lessee, at its option and expense, shall have the right to place on the ATM, all appropriate and required information and promotional signage mandated by federal and state law and regulation in compliance with all applicable laws and regulations of the City. With the prior written consent of the City Manager, Lessee may install, at its expense, other signage on the Premises identifying the ATM. The size, content and placement of all such signage shall be subject to the approval of City Manager. 6. Covenants of Lessee. Lessee does hereby covenant and agree with said City that it will: (a) Obtain any ATM and related equipment needed for installation on the Premises; (b) Within ten (30) days of issuance of a notice to proceed from the City, erect and install the ATM and related improvements on the Premises. All improvements, trade fixtures and equipment kept or installed upon the Premises are now, and hereafter shall continue to be and remain the personal property of Lessee, and same are not and shall not become attached to or be or become part of the realty; (c) Pay said rent at the times, place, and in accordance with Section 7; (d) Pay all taxes, if any, arising out of or in connection with the installation, operation or use of the ATM on the Premises; (e) On a daily basis, maintain the ATM in a safe, neat and orderly condition and perform regular custodial service, including cleaning the exterior of the ATM; (f) Be responsible for security to and protection of the ATM, including the contents thereof; (g) Be responsible for and pay all charges for upkeep of the ATM and related equipment and supplies and make, at its own expense, any and all repairs and supply and pay for any condition and all materials needed to maintain the ATM and related equipment in proper condition and good working order; (h) Ensure the ATM to be in good working order and maintain enough cash to allow continued customer usage. In the event that the ATM becomes inoperable, Lessee must restore the ATM to good working condition within 48 hours of being notified such condition exists. In the case that the necessary repairs or replacement of ATM equipment is expected to take longer than 48 hours, Lessee must notify the City of status and expected date equipment will be in good working order, within 48 hours from being notified of the problem. In this event Lessee shall ensure that the ATM be in good working order no more than 14 days after being notified that ATM has become inoperable for any reason; (i) Not commit any waste therein; (j) Not use or occupy the Premises for any unlawful purpose or any purpose other than specified hereinabove; (k) Make no alterations or additions, subsequent to the installation, on or to said Premises without the prior written consent of the City Manager; (l) Unless provided for otherwise herein, leave the Premises at the expiration or prior termination of this Agreement, or any renewal or extension thereof, in as good or better condition as received except for normal wear and tear; 7. Covenants of City. City does hereby covenant and agree with Lessee that it will: (a) Permit Lessee, its agents, servants and employees access to said ATM and/or related City property during hours of operation, for the purposes of installation, maintenance, and servicing of the ATMs, or at such designated pre-opening or post-closing hours as mutually agreed; ATM Lease Agreement, Page 3

4 (b) (c) (d) (e) Provide Lessee a non-exclusive right to use parking spaces at the Premises for parking vehicles from time to time for the purposes of servicing the ATM; Provide normal cleaning around the ATM; Maintain the area around each ATM in orderly fashion so that customers have convenient and safe access to the ATM; and Permit such inspections of the Premises as are necessary, including, but not limited to, fire and electrical hazards by authorized personnel. 8. Mutual Covenants. It is mutually agreed by and between the City and Lessee that: (a) Lessee will furnish, at its sole expense, separate electrical power to said ATM and all costs of electricity used to operate the ATM shall be paid by Lessee; (b) Lessee will furnish at its sole expense, separate phone/internet connections as necessary to operate the ATM and all costs associated therewith shall be paid by Lessee; (c) All fixtures and/or equipment of whatsoever nature shall have been installed by Lessee on the Premises of the City, whether permanently affixed thereto or otherwise, shall continue to be the property of Lessee and shall be removed by Lessee upon expiration of this Agreement or within thirty (30) days after any prior termination thereof; (d) If the property of Lessee is not removed and/or any damage and/or injury to the Premises caused by the removal of said property is not repaired within thirty (30) days after the expiration or prior termination of this Agreement, the City may, at its option, perform or cause to be performed the necessary removal and/or repairs, and shall be reimbursed by Lessee for the costs thereof; (e) If Lessee shall pay the rent as herein provided, and shall keep, observe, and perform all other covenants of this Agreement by it to be kept, performed, and observed, Lessee shall and may, peaceably and quietly, have, hold and enjoy the Premises for the term aforesaid; (f) Neither party shall be liable for any loss or damage to property, including, but not limited to, monies, machines, automobiles or contents thereof belonging to Lessee, its agents, employees or customers. It is further understood and agreed that the City assumes no responsibility for the aforementioned property of Lessee whether or not such loss or damage is occasioned by theft or vandalism by whomsoever, or fire labor disputes; (g) If the ATM Premises shall be partially damaged or partially destroyed by fire or other casualty, the rent payable under this Agreement shall, to the extent that the ATM Premises shall have been rendered unfit for use for Lessee s business purposes, be abated for the period from the date of such damage or destruction to the date that such damage or destruction shall be repaired or damaged. 9. No Liens. Lessee agrees that no claim or lien may be filed against the City s property for work, labor, materials or supplies provided or supplied to Lessee, concerning the installation, construction, operation, maintenance or use of the Premises or the improvements thereon. Should such claim or lien be filed, Lessee, upon the written request of the City, shall cause such claim or lien covering the City s property to be discharged or bonded within thirty (30) days following such request to the satisfaction of the City Manager. 10. Termination. The City will have the right to terminate this Agreement for any reason and without any penalty or liability at any time after the expiration of the initial term of this Agreement by giving Lessee written notice at least thirty (30) days prior to such termination. Additionally, the City shall have the right to terminate this Agreement should Lessee fail to pay any installment of rent or make any other payment of money due to the City under this Agreement within seven (7) days after ATM Lease Agreement, Page 4

5 written notice of the failure or defaults in the performance of any other obligation imposed upon Lessee by this Agreement and does not cure the default within thirty (30) days after written notice of the default. Similarly Lessee shall have the right to terminate this Agreement should the City default in the performance of any obligation imposed upon the City by this Agreement and does not cure the default within 30 days after written notice of the default. 11. Effects of Termination. In the event of termination Lessee shall bear costs of removal and transportation of the ATM and restoration of any City facilities. 12. INDEMNIFICATION LESSEE AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITIES OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND REASONABLE ATTORNEY S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE LICENSE GRANTED AND THE WORK CONTEMPLATED HEREIN, TO THE EXTENT ANY SUCH INJURY, DEATH OR DAMAGE IS CAUSED (I) IN WHOLE OR IN PART BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSEE OR ANY OF ITS EMPLOYEES, AGENTS, INVITEES, REPRESENTATIVES, SUCCESSORS AND/OR ASSIGNS OR (II) IN PART BY THE NEGLIGENCE OF THE CITY OR ANY OF ITS EMPLOYEES, AGENTS, INVITEES, REPRESENTATIVES, SUCCESSORS AND/OR ASSIGNS. WITHOUT LIMITATION OF THE FOREGOING, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE EXTENT THAT ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT OR LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR HEREIN IS AN INDEMNITY BY LESSEE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM ANY INJURIES, DEATH OR DAMAGES RESULTING, IN WHOLE OR IN PART, FROM THE CONCURRENT NEGLIGENCE OF THE CITY, ITS OFFICERS, AGENTS OR EMPLOYEES AND/OR THE SOLE OR JOINT NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSEE OR ANY OF ITS EMPLOYEES, AGENTS, INVITEES, REPRESENTATIVES, SUCCESSORS AND/OR ASSIGNS. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE PROVISIONS CONTAINED IN THIS PARAGRAPH, LESSEE FURTHER ATM Lease Agreement, Page 5

6 AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO LESSEE, SUCH ACCEPTANCE NOT TO BE UNREASONABLY WITHHELD. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE EXPIRATION OF THIS AGREEMENT. 13. No Consent to Litigation. By this Agreement, the City does not consent to litigation or suit, and Lessee hereby expressly revokes any consent to litigation that it may have granted by the terms of this Agreement or any other contract or agreement, any charter, or applicable state law. Nothing contained in this Agreement shall be deemed to limit or waive the sovereign immunity of the City. 14. Release. Lessee assumes full responsibility for any work and/or services that it or its officers, contractors, agents or volunteers perform on the Premises as well as for the use of the Premises and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with this Agreement. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 15. No Right of Arbitration. Notwithstanding anything to the contrary or apparent contrary contained in this Agreement, Lessee and the City agree that no claims or disputes between Lessee and the City arising out of or relating to this Agreement to any of the work shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. 1-14) or any applicable state arbitration statute, including, but not limited to, the Texas General Arbitration Act, Texas Revised Civil Statutes, Title 10, articles 224 through , provided that in the event that the City is subject to an arbitration proceeding notwithstanding this provision, Lessee consents to be joined in the arbitration proceeding if Lessee s presence is required or requested by the City for complete relief to be recorded in the arbitration proceeding. 16. Insurance. Throughout the term of this Agreement, Lessee at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from Lessees operations and/or performance under this Agreement, whether such operations and/or performance be by Lessee, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Lessee s insurance coverage shall be primary insurance with respect to the City, its officers, agents and employees. Any insurance or self-insurance maintained by the City, its officials, agents and employees shall be considered in excess of Lessee s insurance and shall not contribute to it. Further, Lessee shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each ATM Lease Agreement, Page 6

7 subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Workers Compensation Policy Statutory amounts required by Texas law. Employer s Liability: $500,000 Commercial General Liability Policy General aggregate of $1,000,000 Owners and Contractors Protective Liability of $500,000 Products and Completed Operations of $1,000,000 Personal and Advertising Injury of $1,000,000 Minimum of $500,000 per occurrence Coverage shall be at least as broad as ISO CG No coverage exclusions shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. Automobile Liability Policy Combined single limits of $1,000,000 Coverage for Any Auto. Prior to or upon the execution of this Agreement and before commencing any of the work, Lessee shall file with the City valid certificates of insurance and endorsements acceptable to the City. Such certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the City via certified mail, return receipt requested. Prior to the end of each coverage period during the term of this Agreement, new Certificates of Insurance must be filed with the City evidencing continuation of coverage. Lessee shall also file with the City valid certificates of insurance covering all Subcontractors. The following are general requirements which are applicable to all policies: All insurance coverage required herein, except for Workers Compensation Insurance, shall be written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best Key Rating Guide. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. Liability policies will be on occurrence form. Claims-made policies will not be accepted. The City, its officials and employees are to be added as Additional Insureds to liability policies. The coverage shall contain no special limitation on the scope of protection afforded to the City, its officials and employees. A waiver of subrogation in favor of LESSEE with respect to Workers Compensation Insurance must be included. Upon request of and without cost to the City, certified copies of all insurance policies and/or certificates of insurance shall be furnished to the City. Certificates of insurance showing evidence of insurance coverage shall be provided to City prior to execution of this Agreement. ATM Lease Agreement, Page 7

8 17. Excuse from Performance. In the event of any judicial or other governmental determination that ATMs may not be operated in one or more mutually agreed locations covered by this Agreement, this Agreement shall be terminated with respect to such ATM with no further liability to Lessee, and Lessee shall be entitled to a pro rata refund of rent paid for that month. 18. Notices. All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: LESSEE Amegy Bank, N.A. Attn: Susan Boykin 4400 Post Oak Parkway Houston, TX Fax: (713) CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX Fax: (281) Entire Agreement. It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. No oral understandings, statements, or promises shall be binding on the parties hereto, unless the same are reduced to writing and validly executed by both parties. No verbal agreement or conversation with any officer, agent, or employee of Lessee, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 20. Severability. In the event that any provision of this Agreement is found to be invalid or unenforceable, the validity and enforceability of the remainder of this Agreement shall not be affected thereby, and each other term of this Agreement shall be valid and enforced to the fullest extent permitted by law. 21. Binding Effect. This Agreement and all obligations, rights, liberties, privileges, licenses and authorizations granted herein, as well as all representations, warranties, and obligations shall be binding upon and run to the benefit of Lessee, the City, and their respective successors and assigns. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the City and Lessee only. ATM Lease Agreement, Page 8

9 22. Assignment. Lessee shall not assign, sell or otherwise transfer any of its rights of obligations under this Agreement, in whole or in part, without the written consent of the City. 23. Choice of Law and Venue. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas, regardless of the place of execution or performance. The place of making and the place of performance for all purposes shall be deemed to be Baytown, Harris County, Texas. 24. Compliance with All Applicable Laws. Lessee shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. 25. Independent Contractor. It is expressly agreed and understood by all parties hereto that Lessee is an independent contractor in its relationship to the City. Nothing herein contained at any time or in any manner shall be construed to effect a contract of partnership or joint venture or render any party hereto the employer or master of any other party and/or its employees, agents or representatives. 26. Non-Waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. 27. Headings. The paragraph headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. 28. Authority. The individuals executing this Agreement warrant and represent that they are duly authorized to execute this Agreement on behalf of Lessee and the City as binding act and agreement of Lessee and the City, respectively. 29. Agreement Read. The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 30. Ambiguities. In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 31. Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. ATM Lease Agreement, Page 9

10 IN WITNESS WHEREOF, the undersigns have executed this Agreement as of this the day of, LESSEE: AMEGY BANK, N.A. By: Signature Printed Name Title CITY: CITY OF BAYTOWN, TEXAS ATTEST: By: ROBERT D. LEIPER, City Manager LETICIA BRYSCH, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney ATM Lease Agreement, Page 10

11 STATE OF TEXAS COUNTY OF HARRIS Before me,, the undersigned notary public, on this day personally appeared, in his/her capacity as of AMEGY BANK, N.A., on behalf of such Texas state financial institution, known to me; proved to me on the oath of ; or proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person} (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of, Notary Public in and for the State of Texas My commission expires: \\Cobfs01\legal\Karen\Files\Contracts\ATM Lease\LEASE AGREEMENT with Amegy.docx ATM Lease Agreement, Page 11