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Res 07-13 Authorizing the First Amendment to a Lease Agreement with Maguire Partners at SolanaTOWN OF WESTLAKE RESOLUTION NO. 07-13 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE FIRST AMENDMENT TO A FIVE YEAR LEASE AGREEMENT WITH MAGUIRE PARTNERS AT SOLANA FOR ALL TOWN OFFICE SPACE. WHEREAS, the first amendment to the 5 year lease agreement will now provide 3,963 square feet with the addition of 5,459 square feet of lease space in Solana to house the Town Hall, Municipal Court, Town Secretary, and Texas Student Housing Authority offices in order to accommodate the expansion of Westlake Academy on the Westlake Civic Campus; and WHEREAS, the Board of Aldermen finds and agrees with the proposed first amendment lease to agreement, attached hereto as Exhibit "A", with Maguire Partners to provide lease space in Solana for a five year term and including a turnkey construction for office remodeling; and WHEREAS, the Board of Aldermen and all Town and Academy Staff, remain committed to providing a safe and productive environment to conduct business for all customers, staff and citizens and finds the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: The above findings are hereby found to be true and correct and are incorporated herein in the entirety. SECTION 2: The Board of Aldermen of the Town of Westlake, Texas, hereby approves the agreement with Maguire Partners relating to the first amendment to a five year lease agreement, attached hereto as Exhibit "A", and further authorizes the Town Manager to execute the agreement on behalf of the Town of Westlake, Texas. SECTION 3: The cost of this agreement has been included in the 2007-08 adopted Budget. PASSED AND APPROVED ON THIS 26`h DAY OF FEBRUARY 2007. ATTEST: 1 MIA 6 kill1� Thi Sutter, Town Secretary Trent O. Petty, own M er APPROVED AS TO FORM: MaguirePartners March 9, 2007 Via Hand Delivery Mr. Troy Meyer Town of Westlake 2650 J.T. Ottinger Road Westlake, Texas 76262 XZ4". 01-4.5 - oz -1p -G-01 SOLANA 9 VILLAEE MRCLE SUITE 50❑ WESTLAKE, TX 7&252 Re: First Amendment to Lease By and Between Maguire Partners — Solana Limited Partnership ("Landlord") and the Town of Westlake ("Tenant") Dear Troy, Thank you for all of your help in getting this amendment completed. Everyone at Maguire is excited about the Town Offices being back at Solana. Please find enclosed one (1) fully executed original of the above referenced amendment for your file. Thank you again for your assistance and please feel free to contact me if you have any questions. Sincerely, MAGUIRE PARTNERS �. �t:,z9SsiC�- R. Michael Silliman Vice President - Leasing cc: Mr. Tom Allen Maguire Partners FIRST AMENDMENT TO LEASE THIS FIRST AMENDMENT TO LEASE (this "Amendmenf') is entered into as of the day of February, 2007, by and between MAGUiRE PARTNERS-SOLANA LIMITED PARTNERSHIP, a Texas limited partnership ("Landlord") and TOWN OF WESTLAKE ("Tenant"). Any capitalized terms used, but not defined herein shall have the meaning assigned to them in the Lease (hereinafter defined). RF.C"'IT AI .0 A. Landlord and Tenant have entered into that certain Village Retail Center Lease dated as of April 21, 2006 (the "Lease"), by which Landlord leased to Tenant that certain space commonly known as Suite 207 containing approximately 3,963 square feet of rentable area (the "Current Premises") in the building located at Three Village Circle, Westlake, Texas 76262 (the "Building"), as more particularly described therein. B. Tenant desires to lease from Landlord an additional 5,459 square feet of rentable area in the Building shown on Exhibit A attached hereto (the "Expansion Space"). C. The Lease Term currently expires on May 31, 2011 (the "Prior Expiration Date") and Tenant desires to extend the Lease Term to expire on the last day of the calendar month that is sixty (60) months after the Expansion Space Commencement Date (hereinafter defined). D. Subject to the terms and conditions set forth below, Landlord has agreed to lease the Expansion Space to Tenant and extend the Lease Term as described herein. E. Landlord and Tenant desire to amend the Lease to reflect their agreements as to the terms and conditions governing Tenant's lease of the Expansion Space and extension of the Lease Term. NOW, THEREFORE, in consideration of the mutual premises, the covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: I . Lease Term. The Lease Term is hereby extended to expire on the last day of the calendar month that is sixty (60) months after the Expansion Space Commencement Date (such date, the "Expiration Date"). All references to the "Lease Term" and "Expiration Date" contained in the Lease are hereby amended to reflect such extension. 2. Minimum Annual Rental. (a) Tenant shall continue to pay Minimum Annual Rental with respect to the Current Premises in the amount of $39,630.00, payable in monthly installments of $3,302.50 through the Prior Expiration Date. Effective June 1, 2011 and continuing through the remainder of the Lease Term, as extended hereby, Tenant shall pay Minimum Annual Rental with respect to the Current 1 050405 000048 FTWORTH 138575.1 Premises in the amount of $47,556.00, payable in monthly installments of $3,963.00. All such Minimum Annual Rental shall be payable in accordance with the terms of the Lease. (b) Effective on the Expansion Space Commencement Date and continuing through the remainder of the Lease Term, as extended hereby, in addition to the Minimum Annual Rental payable with respect to the Current Premises, Tenant shall pay Minimum Annual Rental with respect to the Expansion Space in the amount of $65,508.00, payable in monthly installments of $5,459.00. All such Minimum Annual Rental shall be payable in accordance with the terms of the Lease The Minimum Annual Rental payable by Tenant hereunder is exclusive of all other charges, including, Common Area Maintenance Charges and Operating Expenses. The current 2007 estimate for the Common Area Maintenance Charges and Operating Expenses with respect to the Expansion Space is $4,599.21 per month. 3. Tenant's Proportionate Share. Effective on the Expansion Space Commencement Date, Tenant's Proportionate Share set forth in Section 19 of the Fundamental Lease Provisions of the Lease shall be amended in its entirety to read as follows: 19 Tenant's Proportionate Share: 21.57%. (See Section 8.1) 4. Premises. (a) Effective as of the Expansion Space Commencement Date, Landlord shall lease the Expansion Space to Tenant and Tenant shall lease the Expansion Space from Landlord. Accordingly, effective as of the Expansion Space Commencement Date, the Lease shall be amended as follows: (i) Section 1.14 of the Fundamental Lease Provisions of the Lease shall be amended in its entirety to read as follows: 1.14 Premises: 3 Village Circle Suite 207 and Suite 202 Westlake, TX 76262 (See Section 2.1) (ii) Section 1.15 of the Fundamental Lease Provisions of the Lease shall be amended in its entirety to read as follows: 1.15 Rentable Area of the Premises: 9,422 square feet. (b) As used herein, the term "Expansion Space Commencement Date" shall mean the earlier to occur of (i) the date the Landlord's Work (as defined in the Work Letter attached hereto as Exhibit B) is substantially complete, subject to adjustment for any Tenant Delays (as defined in the Work Letter), which is estimated to be on or about April 15, 2007, or (ii) the date Tenant occupies any portion of the Expansion Space for the conduct of its business. 2 050405 000048 PTWORTH 138576.1 5. Amendment of Exhibit. Effective on the Expansion Space Commencement Date, Exhibit B attached to the Lease shall be amended by adding Exhibit A attached hereto and incorporating Exhibit A attached hereto into Exhibit B to the Lease. b. Delivery of Expansion Space. TENANT ACKNOWLEDGES THAT IT CURRENTLY OCCUPIES THE CURRENT PREMISES AND, SUBJECT TO LANDLORD'S OBLIGATIONS UNDER THE WORK LETTER ATTACHED HERETO AS EXHIBIT B, TENANT HEREBY ACCEPTS THE CURRENT PREMISES, EXPANSION SPACE, THE BUILDING AND THE COMPLEX (INCLUDING THE SUITABILITY OF THE EXPANSION SPACE FOR THE PERMITTED USE) IN "AS IS" CONDITION WITH ANY AND ALL FAULTS AND LATENT OR PATENT DEFECTS AND WITHOUT RELYING UPON ANY REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) OF LANDLORD OR ANY REPRESENTATIVE OF LANDLORD. LANDLORD HAS NOT MADE AND DOES NOT HEREBY MAKE AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPLEX (INCLUDING THE CURRENT PREMISES AND EXPANSION SPACE), ITS CONDITION (INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY REGARDING QUALITY OF CONSTRUCTION, STATE OF REPAIR, WORKMANSHIP, MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE). 7. Acceptance of Expansion Space. Upon substantial completion of the Landlord's Work, Landlord and Tenant shall execute an Acceptance of Premises Memorandum in substantially the form of the Acceptance of Premises Memorandum attached to the Lease as Exhibit D. 8. Operating Expenses. Notwithstanding anything to the contrary set forth in the Lease, Operating Expenses shall include all sales, use, franchise or other tax now or hereafter imposed by any governmental authority upon rent received by Landlord or on the revenue of Landlord from the Complex, excluding state and federal income taxes. 9. Renewal Option. Tenant shall have the option to renew the Lease Term, as extended hereby, in accordance with the terms of Exhibit C attached hereto. 10. Right of First Offer. Tenant shall have the Right of First Offer set forth in Exhibit D attached hereto. 11. Solana Club Memberships. During the initial Lease Term, as extended hereby, Landlord shall make available to Tenant up to seven (7) Solana Club memberships, subject to payment of standard registration fees together with dues of (i) twenty dollars ($20.00) per month per membership, plus applicable taxes during the initial twelve (12) months of the Lease Term following the Expansion Space Commencement Date, and (ii) Landlord's then -current market rate after the initial twelve (12) months following the Expansion Space Commencement Date. 12. Signage. Landlord shall modify the existing directional signage installed in connection with Tenant's lease of the Current Premises to include a reference to the Town of Westlake. 3 050405 000048 FTWORTH 138576.1 13. Pte. Landlord agrees to designate three (3) parking spaces located adjacent to the reserved parking spaces currently used by Tenant as "2 -Hour Parking"; provided however, Landlord shall have no responsibility for enforcing such use of such parking spaces or liability for any violations thereof. The use of such spaces by Tenant and its visitors and invitees shall be subject to the terms of the Lease. 14. No Brokers. Tenant warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Amendment, and that it knows of no real estate brokers or agents who are or might be entitled to a commission in connection with this Amendment. Tenant agrees to indemnify and hold harmless Landlord from and against any liability or claim arising in respect to any brokers or agents claiming a commission in connection with this Amendment by, through or under Tenant. 15. Authority. Tenant and each person signing this Amendment on behalf of Tenant represents to Landlord as follows: (i) Tenant has and is qualified to do business in Texas, (ii) Tenant has the full right and authority to enter into this Amendment, and (iii) each person signing on behalf of Tenant was and continues to be authorized to do so. 16. Ratification of Lease. Except as amended hereby, the Lease shall remain in full force and effect in accordance with its terms and is hereby ratified. In the event of a conflict between the Lease and this Amendment, this Amendment shall control. 17. Exhibits. Each Exhibit attached hereto is made a part hereof for all purposes. 18. No Representations. Landlord and Landlord's agents have made no representations or promises, express or implied, in connection with the Expansion Space or this Amendment except as expressly set forth herein. 19. Entire Agreement. This Amendment, together with the Lease, contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Amendment or the Lease, and no prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. 20. Severability. A determination that any provision of this Amendment is unenforceable or invalid shall not affect the enforceability or validity of any other provision hereof and any determination that the application of any provision of this Amendment to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances. 21. Governing Law. This Amendment shall be governed by the laws of the State of Texas. 22. Section Headings. The section headings contained in this Amendment are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several sections hereof. 4 050405 000048 FTWORTH 138576.1 23. Successors and Assigns. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 24. Submission of Amendment Not Offer. The submission by Landlord to Tenant of this Amendment for Tenant's consideration shall have no binding force or effect, shall not constitute an option, and shall not confer any rights upon Tenant or impose any obligations upon Landlord irrespective of any reliance thereon, change of position or partial performance. This Amendment is effective and binding on Landlord only upon the execution and delivery of this Amendment by Landlord and Tenant. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written. LANDLORD: MAGUIRE PARTNERS — SOLANA LIMITED PARTNERSHIP, a Texas limited partnership By: Maguire Partners -Solana GP Limited Liability Company, its General Partner VName. en Title: Vice President 5 050405 000048 FTWORTH 138576.1 TENANT: TOWN OF WESTLAKE By: Name: Title: EXHIBIT A EXPANSION SPACE TAMARA VAUGHAN MYERS VAUGHAN MYERS DESIGN, INC. 2M? SIR SEDIVERE LANE LEMSVILLE'TEXAS 755 PHONE: 972.@85,0922 FAX: ,.S8S.265..0?52 Tamara(MVMDasSgnInc.c Town of Westlake Expansion 2nd Floor 3 Village A-1 050405 000048 FTWQRTH 138576.1 Ma� I*•rre ums not to scale Partners Da'' 2'110' Solana .-=- SP -H EXHIBIT B WORK LETTER I. This Work Letter shall set forth the obligations of Landlord and Tenant with respect to the preparation of the Expansion Space for Tenant's occupancy. All improvements described in this Work Letter to be constructed in and upon the Expansion Space by Landlord are hereinafter referred to as the "Landlord's Work." It is agreed that construction of the Landlord's Work is intended to be "turnkey" and will be completed at Landlord's sole cost and expense (subject to the terms of Section 4 below) using Building standard methods, materials and finishes. In addition to the work to be performed in the Expansion Space, the Landlord's Work shall include the installation of one electrical outlet in the court room in the Current Premises in the .location identified by Tenant and approved by Landlord, whether or not such work is reflected in the Plans (hereinafter defined). Landlord shall enter into a direct contract for the Landlord's Work with a general contractor selected by Landlord. In addition, Landlord shall have the right to select and/or approve of any subcontractors used in connection with the Landlord's Work. Notwithstanding anything to the contrary set forth herein, in no event shall Landlord be required to perform any of the Landlord's Work during any period an uncured default by Tenant exists under the Lease, as amended hereby. 2. Landlord and Tenant have approved the scope of the Landlord's Work as generally set forth in the space plan prepared by Vaughan Myers Design, Inc. dated February 1, 2007 (together with any related architectural and mechanical drawings, the "Plans"). 3. If Tenant shall request any revisions to the Plans, Landlord shall have such revisions prepared at Tenant's sole cost and expense and Tenant shall reimburse Landlord for the cost of preparing any such revisions to the Plans, plus any applicable state sales or use tax thereon, upon demand. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost in the Landlord's Work, if any, resulting from such revisions to the Pians. Tenant, within one (1) business day, shall notify Landlord in writing whether it desires to proceed with such revisions. In the absence of such written authorization, Landlord shall have the option to continue work on the Expansion Space disregarding the requested revision, or Landlord may elect to discontinue work on the Expansion Space until it receives notice of Tenant's decision, in which event Tenant shall be responsible for any Tenant Delay in completion of Landlord's Work resulting therefrom. If such revisions result in an increase in the cost of Landlord's Work, such increased costs, plus any applicable state sales or use tax thereon together with a construction management fee of 5% of such increase, shall be payable by Tenant upon demand. Notwithstanding anything herein to the contrary, all revisions to the Plans shall be subject to the approval of Landlord. 4. If Landlord shall be delayed in substantially completing the Landlord's Work as a result of the occurrence of any of the following (a "Tenant Delay"): (a) Tenant's failure to furnish information in accordance with the Work Letter or to respond to any request by Landlord for any approval or information within any B-1 050405 000048 FTWORTH 138576.1 time period prescribed, or if no time period is prescribed, then within two (2) business days of such request; or (b) Tenant's request for materials, finishes or installations that have long lead times after having first been informed by Landlord that such materials, finishes or installations will cause a Tenant Delay; or (c) Changes in any plans and specifications requested by Tenant; or (d) The performance or nonperformance by a person or entity employed by on or behalf of Tenant in the completion of any work in the Expansion Space (all such work and such persons or entities being subject to prior approval of Landlord); or (e) Any request by Tenant that Landlord delay the completion of any component of the Landlord's Work; or (f) Any breach or default by Tenant in the performance of Tenant's obligations under the Lease, as amended hereby; or (g) Tenant's failure to pay any amounts as and when due under this Work Letter; or (h) Any delay resulting from Tenant's having taken possession of the Expansion Space for any reason prior to substantial completion of the Landlord's Work; or (i) Any other delay chargeable to Tenant, its agents, employees or independent contractors; then, for purposes of determining the Expansion Space Commencement Date, the date of substantial completion shall be deemed to be the day that Landlord's Work would have been substantially completed absent any such Tenant Delay. Landlord's Work shall be deemed to be substantially completed on the date that Landlord's Work has been performed (or would have been performed absent any Tenant Delay), other than any details of construction, mechanical adjustment or any other matter, the non -completion of which does not materially interfere with Tenant's use of the Expansion Space. 5. This Work Letter shall not be deemed applicable to any additional space added to the Current Premises and Expansion Space at any time or from time to time, whether by any options under the Lease, as amended hereby, or otherwise, or to any portion of the Current Premises or Expansion Space or any additions to the Current Premises or Expansion Space in the event of a renewal or extension of the Lease Term, as amended hereby, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease. All capitalized terms used in this Work Letter but not defined herein shall have the same meanings ascribed to such terms in the Lease, as amended hereby. B-2 050,405 000048 FTWORTH 138576.1 EXHIBIT C RENEWAL OPTION 1. Grant and Term of Renewal Option. Subject to satisfaction of the Conditions Precedent (hereinafter defined), Tenant shall have the right to extend the Lease Term, as extended hereby, as to the entire Premises, as amended hereby (the "Renewal Option") for one (1) period of five (5) years (the "Renewal Term"), commencing on the day after the expiration of the Lease Term, as extended hereby. 2. Conditions Precedent. "Conditions Precedent" shall mean that (i) Tenant shall not be in default under the Lease, as amended hereby (after the expiration of all applicable notice and cure periods) at the time the Election to Renew (hereinafter defined) is received by Landlord, and (ii) the Lease, as amended hereby, shall be in full force and effect at the time Tenant delivers to Landlord the Election to Renew. 3. Exercise of Renewal Option. Tenant may exercise the Renewal Option for the Renewal Term for all, but not less than all of the space then constituting the Premises, provided all Conditions Precedent are then satisfied. If Tenant elects to exercise the Renewal Option, Tenant must deliver written notice thereof (which notice, subject to Section 6 below if the parties do not agree upon Landlord's determination of proposed Fair Market Rate for the Renewal Term, shall be irrevocable) not earlier than eighteen (18) months and not later than twelve (12) months preceding the expiration of the Lease Term, as extended hereby, and at the time of the exercise, all Conditions Precedent must be satisfied (such written notice to exercise the Renewal Option is herein referred to as the "Election to Renew"). 4. Condition of Premises . If Tenant exercises the Renewal Option, then, subject to Section 5 below, Tenant shall accept the Premises at the commencement of such Renewal Term in its then existing condition "AS IS" condition; provided that Tenant shall be entitled to the finish allowance and all other market concessions which are part of the Fair Market Rate (hereinafter defined). 5. Rent and Additional Rent. The Renewal Term shall be upon the same terms and conditions set forth in the Lease, as amended hereby, except that (i) Minimum Annual Rental for the Renewal Term shall be the Fair Market Rate, (ii) the finish allowance shall be the finish allowance included in the Fair Market Rate, (iii) the rental rate for parking permits shall be the rates for parking, if any, included in the Fair Market Rate, and (iv) Tenant shall not be entitled to any concessions provided to Tenant during the initial Lease Term, as extended hereby, provided that Tenant shall be entitled to 100% of the market concessions used in determining the Fair Market Rate. 6. Landlord's Determination of Fair Market Rate . Within thirty (30) days after Landlord receives Tenant's Election to Renew, Landlord shall undertake a determination of the Fair Market Rate for (i) the Minimum Annual Rental of the Premises, (ii) the finish allowances and concessions in respect of the Premises for the Renewal Term, and (iii) the rent, if any, for parking permits for the Renewal Term. The "Fair Market Rate" shall mean the Minimum Annual Rental, allowances, concessions and parking rentals then being charged by Landlord C-1 050405 000048 FTWORTH 138576.1 under renewal leases and amendments entered into on or about the date on which the Fair Market Rate is being determined hereunder for space comparable to the Premises in the Building and the Complex. Landlord shall advise Tenant of the proposed Fair Market Rate within thirty (30) days after Landlord's receipt of the Election to Renew. Tenant shall then have thirty (30) days after receipt of Landlord's determination of the Fair Market Rate ("Tenant's 30 -Day Period") to notify Landlord of its acceptance or rejection of the Landlord's proposed Fair Market Rate. If Tenant fails to so notify Landlord within Tenant's 30 -Day Period, Tenant shall be deemed to have accepted the Fair Market Rate proposed by Landlord and in such event, the term of the Lease shall be renewed at such Fair Market Rate quoted by Landlord. If Tenant rejects Landlord's determination of the proposed Fair Market Rate for the Renewal Term, Tenant may rescind its exercise of the Renewal Option by written notice to Landlord given within Tenant's 30 -Day Period, and in such case this Lease shall expire as of the end of the initial Lease Term, as extended hereby. 7. Renewal Amendment. If Tenant is entitled to and properly exercises the Renewal Option, upon determination of the Minimum Annual Rental payable during such Renewal Term, Landlord and Tenant shall execute an amendment (the "Renewal Amendment") to reflect changes in the Minimum Annual Rental, Lease Term, Expiration Date and other appropriate terms; provided that an otherwise valid exercise of the Renewal Option shall be fully effective whether or not the Renewal Amendment is executed. 8. Time of Essence. Time is of the essence by the parties hereto in the exercise of the Renewal Option, and the failure to timely and properly exercise the Renewal Option would result in hardship and damage to Landlord. Therefore, once Tenant fails to exercise the Renewal Option or the Lease terminates for any reason, the Renewal Option shall terminate absolutely without further action by any party. C-2 050405 000048 FTWORTH 138576.1 EXHIBIT D RIGHT OF FIRST OFFER (a) Tenant shall have a one-time right of first offer (the "Right of First Offer") with respect to approximately 4,188 square feet of space known as suite 208 located on the second (2nd) floor of the Building shown on Exhibit D-1 attached hereto (the "Offer Space"). Tenant's Right of First Offer shall be exercised as follows: at any time after Landlord has determined that the existing tenant in the Offer Space will not extend or renew the term of its lease for the Offer Space (but prior to leasing such Offer Space to a party other than the existing tenant), Landlord shall provide written notice to Tenant (the "Notice") of the terms under which Landlord is prepared to lease the Offer Space to Tenant, which terms shall reflect the Prevailing Market Rate (as defined below) for such Offer Space as reasonably determined by Landlord. Tenant may lease such Offer Space in its entirety only, under such terms, by providing Landlord with written notice of exercise (the "Notice of Exercise") within five (S) days after the date of the Notice, except that Tenant shall have no such Right of First Offer and Landlord need not provide Tenant with a Notice, if: (i) Tenant is in default under the Lease, as amended hereby, beyond any applicable cure periods at the time that Landlord would otherwise deliver the Notice; or (ii) the Premises, or any portion thereof, is sublet at the time Landlord would otherwise deliver the Notice; or (iii) the Lease has been assigned prior to the date Landlord would otherwise deliver the Notice; or (iv) the Tenant is not occupying the Premises on the date Landlord would otherwise deliver the Notice; or (v) the existing tenant in the Offer Space is interested in extending or renewing its lease for the Offer Space or entering into a new lease for such Offer Space. (b) Terms for Offer Space: (i) The term for the Offer Space shall commence upon the commencement date stated in the Notice and thereupon such Offer Space shall be considered a part of the Premises, provided that all of the terms stated in the Notice, including the termination date set forth in the Notice, shall govern Tenant's leasing of the Offer Space and only to the extent that they do not conflict with the Notice, the terms and conditions of the Lease shall apply to the Offer Space. (ii) Tenant shall pay Minimum Annual Rental and Additional Rent for the Offer Space in accordance with the terms and conditions of the Notice, which terms and conditions shall reflect the Prevailing Market Rate for the Offer Space as determined in Landlord's reasonable judgment. D-1 050405 000049 FTWORTH 138576.1 (iii) The Offer Space leased by Tenant hereunder shall be accepted by Tenant in its AS -IS condition existing on the earlier of the date Tenant takes possession of the Offer Space or the date the term for such Offer Space commences, unless the Notice specifies work to be performed by Landlord in the Offer Space, in which case Landlord shall perform such work in the Offer Space. If Landlord is delayed delivering possession of the Offer Space due to the holdover or unlawful possession of such space by any party, Landlord shall use reasonable efforts to obtain possession of the space, and the commencement of the term for the Offer Space shall be postponed until the date Landlord delivers possession of the Offer Space to Tenant free from occupancy by any party. (c) The rights of Tenant hereunder with respect to the Offer Space shall terminate on the earlier to occur of (i) the expiration of the Lease Term, as amended hereby; (ii) Tenant's failure to exercise its Right of First Offer within the five (S) day period provided in section (a) above; and (iii) the date Landlord would have provided Tenant a Notice if Tenant had not been in violation of one or more of the conditions set forth in section (a) above. (d) If Tenant exercises its Right of First Offer, Landlord and Tenant shall enter into an amendment (the "Offer Amendment") adding the Offer Space to the Premises on the terms set forth in the Notice and reflecting the changes in the Minimum Annual Rental, Tenant's Proportionate Share, Rentable Area of the Premises, and other appropriate terms; provided that an otherwise valid exercise of the Right of First Offer shall be fully effective whether or not the Offer Amendment is executed. (e) The "Prevailing Market Rate" shall mean the Minimum Annual Rental then being charged by Landlord under new and renewal leases and amendments entered into on or about the date on which the Prevailing Market Rate is being determined hereunder for space comparable to the Offer Space in the Building and the Complex. The determination of the Prevailing Market Rate shall take into account any material economic differences between the terms of the Lease, as amended hereby, and any comparison lease, such as allowances, concessions, parking rentals and the manner, if any, in which the Landlord under any such lease is reimbursed for operating expenses and taxes. (f) Notwithstanding anything herein to the contrary, Tenant's Right of First Offer is subject and subordinate to (i) the renewal and/or expansion rights of any tenant leasing all or any portion of the Offer Space existing on the date hereof, and (ii) the expansion rights (whether such rights are designated as a right of first offer, right of first refusal, expansion option or otherwise) of any tenant of the Complex existing on the date hereof. D-2 050405 000048 FT'WORTH 138576.1 EXHIBIT D-1 OFFER SPACE TAMARA VAUGHAN MYERS YAUGk MYERS OESPGN INC. 2T - SIR BECIVE LANE LEWISVILLE, TE 7505E PHONE: 972.899.0922 FAX: 7.888.288.0292 Tammra0V M Oe&lgn Inc. can 050405 000048 FTWORTH 138576.1 Exhibit Magua � a 9not to scale 7.nd Floor Partners Doe 2J1 W07 3 Village Solana =-- Exhibit D-1-1 EXHIBIT B ACCEPTANCE OF PREMISES MEMORANDUM This Exhibit B is attached to and made a part of that certain Office Lease Agreement dated by and between MAGUIREPARTNERS — SOLANA LIMITED PARTNERSHIP, a Texas limited partnership ("Landlord") and the TOWN OF WESTLAKE ("Tenant"), (such Office Lease Agreement, as amended by the First Amendment, is herein referred to as the ("Lease")). All capitalized terms used but not defined herein shall have the meaning assigned to them in other portions of the Lease. Landlord and Tenant hereby agree as follows: 1. The Premises (Suite 202) are tenantable, the Landlord has no further obligations for construction (except as specified above), and tenant acknowledges that both the Building and the Premises are satisfactory in all respects. 2. All Tenant Work and Landlord Work have been completed to the satisfaction of Tenant. 3. Notwithstanding anything to the contrary expressed or implied herein, Tenant acknowledges that Landlord makes no warranties (express or implied) regarding the Premises or such work except as specifically provided in the Lease and Tenant hereby expressly disclaims the implied warranty that the Premises are suitable for their intended commercial purpose. Tenant has had a full and fair opportunity to inspect the Premises and such work and finds that the Premises and such work suit Tenant's purposes. Tenant has knowledge of the Premises and such work and, with this knowledge, voluntarily disclaims the implied warrant of suitability 4. The Commencement Date of the Lease is May 1, 2007 and the Expiration Date is April 30, 2012. All other terms and conditions of the Lease are hereby ratified and acknowledged to be unchanged. IN WITNESS WHEREOF, Landlord and Tenant have executed this memorandum as of the date set forth in the first paragraph above. LANDLORD: MAGUIR.E PARTNERS - SOLANA LIMITED PARTNERSHIP, a Texas limited partnership By: Maguire Partners -Solana GP Limited Liability Company and its General Partner By: Name;om Allen Title: Vice President TENANT: TOWN OF WESTLAKE By: IZRK%Vwd� Name: 'TLtz-v►,tQ-s Its: Date: `�-{9-og MaguirePartners September 15, 2008 Mr. Tom Brymer TOWN OF WESTLAKE 3 Village Circle, Suite 202 Westlake, TX 76262 Re: ACCEPTANCE OF PREMISES MEMORANDUM Dear Tom: MEMORANDUM SO ANA S VILLAGE CIRCLE SUITE SSD WESTLAKE, TX 76865 In reviewing our lease files, it has been determined that the above referenced document for the Town of Westlake's expansion space at 3 Village Circle (Suite 202) was not executed at the time of occupancy, ePlease confirm that the information included in the attached is correct. If 0lso, please sign all three copies, return two to our office, and retain one gplfor your files. Please do not hesitate to call should you have any questions. Respectfully, MaguirePartners 4 Kristi Layton Property Manager KLlar