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HomeMy WebLinkAbout2006-10-24-9:00AM-REGULARMhON20 P12:50 BRAZOS COUNTY5' BRYAN, TEXAS i PUT NOTICE OF MEETING AND AGENDA BRAZOS COUNTY COMMISSIONERS COURT THE COMMISSIONERS COURT OF BRAZOS COUNTY WILL MEET IN REGULAR SESSION ON 24 OCTOBER 2006 AT 9:00 A.M. IN THE COMMISSIONERS COURTROOM OF THE BRAZOS COUNTY COURTHOUSE, 300 E. 26TH STREET, SUITE 115, BRYAN, TEXAS. 1. Invocation and Pledge of Allegiance - Judge Sims. 2. Call for citizen's input and/or concerns. Consider and take action on agenda items 3 - 28: 3. Budget Amendment 05/06-53.1 thru 05/06-53.5. 4. Budget Amendment 06/07-3.1 thru 06/07-3.3. 5. Reclassification of the following position in the Sheriff's Office as follows: from Class 1423, Position 6, Group 25, Step 2, Investigator - S.O. to Group 25, Step 2, Warrants Sergeant 6. Personnel Change of Status. 7. Payment of Claims. 8. Request from Ken (Earl) Havel for approval of the following variances to the Brazos County Subdivision and Development Regulations in the proposed Oakland Ridge Subdivision located in Precinct 1 (previously tabled) : a. lot size less than one acre;. b. lot width less than 70 feet; c. minimum road right-of-way width less than 70 feet.; d. side lot utility easement and setback reduced to 7.5 feet.; e. construction of 20 foot wide alley(s). Office of the County Judge • 300 East 26'n St. • SU@e 114 • Bryan, Texas 77803 • Fax: (979) 361-4503 VOLAPAGE__ - Commissioners Court Agenda 24 October 2006 Page 2 9. Proclamation 06-014 establishing November 2006 as Home Care Month in Texas. 10. Resolution 06-015 providing for the public sale of specific properties acquired by Brazos County from delinquent taxes. 11. Renewal of The Hartford Accidental Death and Dismemberment (ADD) policy with no change in rates, effective 1 September 2006. 12. Renewal of The Hartford Long Term Disability (LTD) policy with no change in rates, effective 1 November 2006. 13. Request from Purchasing for permission to fund an additional $200,040.00 to complete the remodeling of the Maxwell Center from Contingency. 14. Addendum One (1) to the BVCNet Collaborative Agreement for the purpose of ensuring compliance with the Texas Public Utilities Regulatory Act, and also to provide clarification on how a BVCNet member may withdraw from participation without incurring additional costs. 15. Sales agreement with Affiliated Communications, Inc. for purchase of telephone equipment for the Maxwell Center. 16. Maintenance agreement with Affiliated Communications, Inc. for service on telephone equipment and remote monitoring. 17. Lease agreement with Pinel, LP for the lease of storage space for voting equipment. Term of agreement is six months and month to month thereafter, and will be paid with HAVA grant funds. 18. Renewal of the contract with Texas A&M University Challenge Works Program as part of the Juvenile Services Community Coalition (JSCC), with no changes from last year. 19. Renewal of the following contracts with the Cameron County Juvenile Department / Amador R. Rodriguez Juvenile Boot Camp, with no changes from last year: a. Residential Services; b. Residential Services, 90-Day Short Term Program. 20. Tax Refund Applications for the following: a. Michell Caldwell b. Johnny Edward Bomnskie c. Jason E. & Kathryn A. Williams 21. Request from the Sheriffs Office for permission to assign a work crew to the Children's Museum of the Brazos Valley for clean up of the streets and parking lot including trash pick-up and disposal„ and organization of materials and storage in the Museum. VOLS9 PAGE a Commissioners Court Agenda 24 October 2006 Page 3 22. Requisition 00011426 to Dallas Dodge for the purchase of vehicles for the Sheriff's Office, Constable Precinct 1, Constable Precinct 2, Constable Precinct 4, and the County Attorney's Office. 23. Requisition 00011423 to Hunton Trane Services for installation of a cooling tower variable fan controller for the chillers in the Courthouse basement. 24. Copier Lease Agreement with Xerox through the State of Texas contract for the Magistrate's Office. 25. Award of Bid 2006-046, Purchase of Motor Graders, to Mustang Cat for the purchase of two, 12H Caterpillar Motor Graders. 26. Requisition 00011480 to Mustang Cat for the purchase of two Cat Motor Graders. 27. Final Plat of Burt Road Estates, 10.68 acres, John Williams League, A237, Brazos County, Texas. Site is located in Precinct 4. 28. Commissioners Court minutes for the following 2006 dates: a. 10-28 July Budget Workshop Meetings f. 8 August Regular Meeting b. 31 July - 4 Aug. Budget Workshop Meetings g. 8 August Public Hearing c. 7-11 August Budget Workshop Meetings h. 22 August Regular Meeting d. 1 August Regular Meeting i. 29 August Regular Meeting e. 1 August Workshop Session j. 29 August Workshop Session 29. Announcement of interest items and possible future agenda topics. 30. Call for citizen input and/or concerns. 31. Agency/ Board/ Committee reports by Court members. 32. Adjourn The Brazos County Courthouse is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made two business days before the meeting. To make arrangements, call (979) 361-4102. VOL 69 PAIGE -3 COMMISSIONERS' COURT REGULAR MEETING OCTOBER 24, 2006 A regular meeting of the Commissioners' Court of Brazos County, Texas was held in the Brazos County Commissioners Courtroom in the Courthouse in Bryan, Brazos County, Texas, beginning at 9:00 a.m. on Tuesday, October 24, 2006 with the following members of the Court present: Randy Sims, County Judge, Presiding; Lloyd Wassermann, Commissioner of Precinct 1; Duane Peters, Commissioner of Precinct 2; Kenny Mallard, Commissioner of Precinct 3; Carey Cauley, Jr., Commissioner of Precinct 4; Karen McQueen, County Clerk. The attached sheet contains the names of the citizens and officials that were in attendance. The County Judge gave the invocation and led the pledge of allegiance. There was no citizen input/and or concerns. The Court next considered Budget Amendment #05/06-53.1 through 53.5 that would adjust the budget for the CLEAR Team; transfer funds from Contingency to Environmental Protection, Court Support Costs; and reallocate funds for Constable, Precinct 3, 272"d District Court. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the budget amendment as submitted, a Vol 59 Page 1~ Commissioners Court meeting October 24, 2006 2 copy of which is attached hereto. The Court next considered Budget Amendment #06/07-3.1 through 3.3 that would transfer funds from Contingency to Capital Projects-Commissioners Court; rescind budget amendment No. 06/07-2.4 CLEAR Team and No. 06/07-2.5 Environmental Protection. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the budget amendment as submitted, a copy of which is attached hereto. The next matter before the Court was a request from the Sheriff's Office to reclassify the following position: From: Class 1423, Position 6, Group 25, Step 2, Investigator-S.O. To: Group 25, Step 2, Warrants Sergeant On motion by Commissioner Cauley, seconded by Commissioner Wassermann, the Court voted unanimously to approve the request. The Court proceeded to consider the change of status of employees as submitted on the attached Personnel Action Requests. On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the changes as submitted. The Court next considered the following Claims as submitted by the County Treasurer for payment: Vol ss - Page 5 Commissioners Court meeting October 24, 2006 3 7024575 through 7024851 On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the Claims as submitted. The next matter before the Court was consideration of request from Ken (Earl) Havel for approval of the following variances to the Brazos County Subdivision and Development Regulations in the proposed Oakland Ridge Subdivision in Precinct 1: 1) allow lot size to be less than 1 acre 2) allow lot width to be les than 70 feet 3) allow minimum road right-of-way width to be less than 70 feet. 4) Allow side lot utility easement and setback to be reduced to 7.5 feet 5) Allow construction of 200 feet wide alley(s) On motion by Commissioner Wassermann, seconded by Commissioner Peters, the Court voted unanimously to approve the request for variances. The County Judge read aloud Proclamation #06-014 designating the month of November, 2006 as "Home Care Month". The Court urges all citizens to learn more about home care options and to recognize the invaluable contributions of home care providers. On motion by the County Judge, seconded by Commissioner Peters the Court moved to proclaim the month of November, 2006 as "Home Care Month" throughout Brazos County. Vol gg Page Commissioners Court meeting October 24, 2006 4 The Court next considered adopting Resolution 06-015 providing for the public sale of specific properties acquired by Brazos County from delinquent taxes. On motion by the County Judge, seconded by Commissioner Peters, the Court voted unanimously to adopt Resolution #06-015 providing for the public sale of specific properties acquired by Brazos County from delinquent taxes. A list of the properties is attached. The next matter before the Court was the renewal of the Hartford Accidental Death and Dismemberment (ADD) policy. Commissioner Mallard asked the Court to table consideration to allow time to get three (3) quotes. It has been at least three years since this was bid out. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to table consideration. The Court next considered the renewal of the Hartford Long Term Disability (LTD), policy. Commissioner Mallard asked the Court to table consideration to allow time to get three (3) quotes. It has been at least three years since this was bid out. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to table consideration. The next matter before the Court was a request from the Purchasing Department for additional funding of $200,040.00 Vol n Page 7 Commissioners Court meeting October 24, 2006 5 from Contingency to complete the remodeling of the IT Building. The additional funds would cover the cost of the following: a. $200,000.00 for outside fiber from IT to the Courthouse and the other County buildings for connectivity. b. $4,863.00 for remodeling of restrooms. C. $15,177.00 for miscellaneous remodeling costs. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the expenditure of the additional $200,040.00 to complete the remodeling of the IT Building. Funding will come from Contingency funds. The Court next considered the Amendment to the BVCNet Collaborative Agreement. The BVCNet is a collaborative effort between Brazos County, Texas A&M University, the TAMU Health Science Center, College Station, Bryan, Blinn Community College, Bryan Independent School District, College Station Independent School District, Brazos Valley Council of Governments, the Research Valley Partnership, and St. Joseph Hospital to provide network access to individuals in the community, particularly the underserved by providing access at local centers. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the Amendment to the BVCNet Collaborative Agreement. A copy is attached. Vol os Page 3 Commissioners Court meeting October 24, 2006 6 The next matter before the Court was consideration of a Sales Agreement with Affiliated Communications, Inc.(ACI) for service on telephone equipment for the Maxwell Center. ACI will sell, deliver and install the telephone equipment. Cost to the County is $33,634.07. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the Sales Agreement. A copy is attached. The Court next considered a maintenance Agreement with Affiliated Communications, Inc. (ACI) for service on telephone equipment and remote monitoring of the Courthouse and Detention Center for a period of 12 months Cost to Brazos County is as follows: a. Brazos County Courthouse Option 61C $18,303.60 b. Brazos County Detention Center $2,284.20 c. Brazos County Juvenile Center $2,580.00 d. Brazos County Health Department $2,940.00 e. Brazos County Road and Bridge $2,100.00 f. Brazos Center $960.00 The amounts are annual prices. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the maintenance contract with ACI. A copy is attached. The Court next considered renewal of a lease agreement between Brazos County and Pinel, L.P. for lease of space in the building located at 4001 E. 29th, Suite 113, Bryan, Texas, to be used for storage space for voting equipment. Term of Vol 3 9- Page 9 Commissioners Court meeting October 24, 2006 7 the lease is for the period of six (6) months beginning October 25, 2006 and then month to month thereafter. The cost to Brazos County is one thousand eight hundred seventy dollars ($1,870.00) per month. On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to enter into a lease agreement with Pinel, LP. A copy of the Lease Agreement is attached. The next matter before the Court was consideration of the renewal of the contract with Texas A&M University Challenge Works Program as part of the Juvenile Services Community Coalition (JSCC). The Challenge Works Program will provide a minimum of seven (7), six hour workshops/one workshop for each phase, at a cost of $750.00 per workshop. On motion by Commissioner Mallard, seconded by Commissioner Peters, the Court voted unanimously to approve the contract. The Court next considered renewal of the following contracts with the Cameron County Juvenile Department/Amador R. Rodriguez Juvenile Boot Camp. a. Residential Services - $65 per day per child; contract commences September 1, 2006 and ends on August 31, 2007. b. Residential Services - 90 Day Short Term Program; $65 per day per child; contract commences September 1, 2006 and ends on August 31, 2007. Vol SS Page /a Commissioners Court meeting October 24, 2006 8 On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the two contracts. A copy of each is attached. The next matter for consideration was approval of tax refund applications from the following individuals and/or companies: a) Michell Caldwell, Over Payment $22.97 b) Johnny Edward Bomnskie, Over Payment $29.39 c) Jason E. & Kathryn A. Williams, Over Payment $40.00 On motion by Commissioner Wassermann, seconded by Commissioner Peters, the Court voted unanimously to approve the tax refund applications. The next matter for consideration was a request for Work Crew Assignment. The Children's Museum of the Brazos Valley requested a work crew. The Sheriff's office found that the type of labor and task requested are appropriate for the work crew assignment and asked that the Court consider approving the request. On motion by Commissioner Cauley, seconded by Commissioner Wassermann, the Court voted unanimously to approve the request for a Work Crew. The Court next considered approval of requisition 00011426 in the amount of $257,275.00 to purchase vehicles for the Sheriff's Office, Constable Precinct 1, Constable, Precinct 2, Constable Precinct 4 and the County Attorney's Vol 8 $ Page 0 Commissioners Court meeting October 24, 2006 9 Office. On motion by Commissioner Peters, seconded by Commissioner Wassermann, the Court voted unanimously to approve the requisition. The Court next considered approving requisition 00011423 in the amount of $12,250.00 to install a cooling tower variable fan controller for the chillers in the Courthouse basement. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the requisition. The next matter before the Court was consideration of a Copier Lease Agreement for the copier in the Magistrate's Office. The lease term is for 36 months with a base charge of $397.32 per month. On motion by Commissioner Peters, seconded by Commissioner Mallard, the Court voted unanimously to approve the Lease Agreement and authorized the County Judge to execute the document. The Court next considered awarding Bid No. 2006-046, Purchase of Motor Graders. Becky Stephens, Assistant Purchasing Agent, recommended acceptance of the bid submitted by Mustang Cat for the purchase of two, 12H Caterpillar Motor Graders with guaranteed buy back of $114,500.00 after 3 years, $103,300.00 after 4 years and $97,700.00 after 5 years. Mustang has agreed to pay $118,000.00 each on buy backs which Vol ffg Page / a Commissioners Court meeting October 24, 2006 10 is more than originally offered because the used equipment is in such good shape. On motion by Commissioner Wassermann, seconded by Commissioner Peters, the Court voted unanimously to accept the recommendation of the Purchasing Agent and award the contract to Mustang Cat. A copy of the bid tabulation is attached. The next matter before the Court was consideration of requisition 00011480 in the amount of $359,400.00 to Mustang Cat for the purchase of two Cat Motor Graders. On motion by Commissioner Mallard, seconded by Commissioner Cauley, the Court voted unanimously to approve the requisition. The Court next considered approval of the Final Plat of Burt Road Estates, 10.68 Acres, in Precinct 4. Richard Vance, County Engineer, stated that he had reviewed the plat and everything seemed to be in order. On motion by Commissioner Cauley, seconded by Commissioner Peters, the Court voted unanimously to approve the final plat of Burt Road Estates, 10.68 Acres as submitted. The Court next considered approval of the minutes of the Commissioners' Court meetings held in July and August 2006 on the following dates: Regular Meetings August - 1st 8th 22nd 29th Budget Workshops July - 10th through 28th, 31st Budget Workshops August - 1st through 4th , 7th through 11th Workshop August - 1st , 29th Vol ff- Page 13 Commissioners Court meeting October 24, 2006 11 Public Hearing - 8th On motion by Commissioner Peters, seconded by Commissioner Cauley, the Court voted unanimously to approve the minutes as submitted. There were no announcements of interest items and possible future agenda topics. There was no citizen input and/or concerns. Under Agency/Board/Committee reports by Court members, the following spoke: Commissioner Peters a) There will be an elected official's luncheon on November 13. The luncheon is sponsored by the Extension Service and will be held at the Briarcrest Country Club. b) The 4-H commercial Heifer sale will be this Saturday. Commissioner Mallard a) At the IGC meeting on Monday, they discussed a grant to get all radios combined. College Station and the Volunteer Fire Departments have analog systems. The County and Bryan have digital systems. With the grant we would only have to pay 200 of the cost. County Judge a) Asked the Sheriff's Chief Deputy about the new tower in the south end of the County. Deputy Mann stated that everything was moving along with no problems. Sheriff a) Informed the Court that the jail population Vol 88- Page 11f Commissioners Court meeting October 24, 2006 12 hit 540 last night. This is the first time in a rather long time that they are under capacity. There being no further business to come before the Court, the meeting was adjourned. Vol SS- Page 15 The foregoing minutes of the Commissioners Court meeting held October 24, 2006 have been examined and are approved in open Court this the 11- day of ~c~V~~lcr 2006, in Bryan, Brazos County, Texas. /i Randy Si s County,Judge abSCna- Duane Peters Commissioner, Precinct 2 C rey Cau y, Jr. Commissio er, Preci c 4 Attest: Karen McQueen County Clerk Lloyd W ssermann Commissioner, Precinct 1 c ).5en Kenny Mallard Commissioner, Precinct 3 Vol <-6 8' Page l BRAZOS COUNTY COMMISSIONERS COURT DAY OF , 20 C AT 9,60 0 AM/ Name Organization r iq-- 6 iOXA'44w,~? sins jp 4 ►5 &A C14 Lref 41-t / VOL 98 PAGE 17 BRAZOSCOUNTY COMMISSIONERS COURT JL -tk DAY O , 20 0(,,,) AT AM/*M Name Organization I S . i VOLJPAGE V g73 BRAZOS COUNTY, TEXAS BUDGET AMENDMENT(S) FOR THE 2005-2006 BUDGET YEAR NO. 05/06-53.1 thru 05/06-53.5 On this the 24`h day of October 2006 at a regular meeting of the Commissioners' Court, the following members were present: Randy Sims, County Judge, Presiding Lloyd Wassermann, Commissioner, Precinct 1 E. Duane Peters, Commissioner, Precinct 2 G. Kenny Mallard, Commissioner, Precinct 3 Carey Cauley, Jr., Commissioner, Precinct 4 Karen McQueen, County Clerk The following proceedings were held: THAT WHEREAS, on 24 October 2006 the Court heard and approved a budget amendment for the 2005-2006 budget year for Brazos County, Texas; and WHEREAS, an expenditure is necessary due to the necessity to meet unusual and unforeseen conditions which could not be reasonably included in the original budget adopted 20 September 2005, the following amendment(s) to the original budget are hereby authorized, as described on the attached page(s). ADOPTED AND APPROVED this the 24`h day of October 2006. THE COMMISSIONERS COURT OF BRAZOS COUNTY, TEXAS. Copies: County Auditor County Treasurer Commissioners' Court Minutes VOL 3 $ PAGE / cl Original: County Clerk's Office and attached to the original budget BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 - 53.1 . 10/24/2006 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 3201 282200 61400000 CR Insurance 1,416.00 3201 282200 71400000 CR Contractual - Services - PO 7,362.00 3201 282200 80310000 CR 800 M hz Communications 5,539.00 3201 282200 51610000 DR Hourly - Staff 500.00 3201 282200 51615000 DR Hourly - Law Enforcement 9,290.00 3201 282200 51810000 DR Longevity - Count 70.00 3201 282200 51991100 DR Grant Match 2,578.00 3201 282200 53100000 DR Social Security 200.00 3201 282200 53300000 DR Group Insurance 900.00 3201 282200 53800000 DR Worker's Comp. 150.00 3201 282200 53991100 DR Benefits Match 629.00 CLEAR TEAM - To ad just the budget for 05-06 to reflect amounts remainin after 05-06 ex enditures. VOL g$ PAGE acs BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 - 53.2 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 56005000 71015000 DR Citizen Collection Sites 10,830.00 10100 11001500 61130000 CR Contingency 10,830.00 Environmental Protection -To provide funds for the excess ex enditures for I -riunction 505 and BVSWMA. V®!86' PAGE -~21 BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 - 53.3 10/24/2006 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 30301100 61880000 DR Utilities 227.00 0100 30301100 59100000 1 _1 CR DDEA 227.00 Constable Pct. 3: 1 1 ~To move funds from DDEA for utilities costs. VOL'V PAGE a~ BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 - 53.4 10/24/2006 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 22100100 65200000 CR Copier Maintenance 40.00 0100 22100100 52500000 CR Contract Services 80.00 0100 22100100 61931000 DR Visitin Judges 40.00 0100 22100100 61900000 DR Visiting - Court Reporters 80.00 272nd District Court: To reallocate funds to cover the de artmentaI support costs. VOL r~g PACE BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 05/06 - 53.5 10/24/2006 VOL 96 PAGE c;'4- ~Z BRAZOS COUNTY, TEXAS BUDGET AMENDMENT(S) FOR THE 2006-2007 BUDGET YEAR NO. 06/07-3.1 thru 06/07-3.3 On this the 20 day of October 2006 at a regular meeting of the Commissioners' Court, the following members were present: Randy Sims, County Judge, Presiding Lloyd Wassermann, Commissioner, Precinct 1 E. Duane Peters, Commissioner, Precinct 2 G. Kenny Mallard, Commissioner, Precinct 3 Carey Cauley, Jr., Commissioner, Precinct 4 Karen McQueen, County Clerk The following proceedings were held: THAT WHEREAS, on 24 October 2006 the Court heard and approved a budget amendment for the 2005-2006 budget year for Brazos County, Texas; and WHEREAS, an expenditure is necessary due to the necessity to meet unusual and unforeseen conditions which could not be reasonably included in the original budget adopted 12 September 2006, the following amendment(s) to the original budget are hereby authorized, as described on the attached page(s). ADOPTED AND APPROVED this the 24th day of October 2006. THE COMMISSIONERS COURT OF BRAZOS COUNTY, TEXAS. By Original: County Clerk's Office and attached to the original budget Copies: County Auditor County Treasurer Commissioners' Court Minutes <29 e, e UL 00 PAut BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 06/07 - 3.1 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 11001500 61130000 CR Contingency 65,000.00 01001 1 91110000 DR Transfer to Capital Project Fund 65,000.00 45001 1 49028000 CR Transfers from General Fund 65,000.00 4500 6300050 80101000 DR Buildin Renovation 65,000.00 Capital Projects - Commissioners' Court: To transfer funds to allow for renlacinQ the chillers of the Church. Y4i Fnui BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 06/07 - 3.2 10/24/2006 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 3201 282200 61400000 DR Insurance 1,416.00 3201 282200 71400000 DR Contractual - Services - PO 7,362.00 3201 282200 80310000 DR 800 M hz Communications 5,539.00 3201 282200 51610000 CR Hourly - Staff 500.00 3201 282200 51615000 CR Hourl -Law Enforcement 9,290.00 3201 282200 51810000 CR Longevity - Count 70.00 3201 282200 51991100 CR Grant Match 2,578.00 3201 282200 53100000 CR Social Security 200.00 3201 282200 53300000 CR Group Insurance 900.00 3201 282200 53800000 CR Worker's Comp. 150.00 3201 282200 53991100 CR Benefits Match 629.00 CLEAR TEAM - To rescind budget amendment No. 06/07 - 2.4. It should have been a FY05-06 bud e~ amendment. BRAZOS COUNTY, TEXAS BUDGET AMENDMENTS No. 06/07 - 3.3 FD DIV ACCT PROJ DR/CR ACCOUNT NAME Increase Decrease 0100 56005000 71015000 CR Citizen Collection Sites 10,830.00 0100 11001500 61130000 DR Contin enc 10,830.00 Environmental Protection - To rescind budget amendment No. 06/07 - 2.5. It should have been a FY06 budget amendment. 4`L1~8 Fw~E a` PERSONNEL CHANGE OF STATUS REQUESTS Commissiu;:~Ir Court Date: October 24, 2006 Department Submitting Information: Human Resources Purpose of Submissions: Consider and Take Action on ~#76 Department Submitting Employee Request Action Requested Request(s) Applies To 361x` District Court Wager, Troy Transfer to Another Dept. Building Maintenance Wiley, Ozell New Hire Clear Team Lindsey, Shayla Budgetary Change County Attorney French, Stephanie New Hire Magee, William Resignation Juvenile Services Luna, Aida Budgetary Change Magistrate Vannest, Wayland Transfer to Another Dept. Road and Bridge Jacobs, Richard New Hire SO/Jail Lamb, Ryan Resignation Thornal, Pat Resignation Dayton, Lois Resignation Approved in Commissioners' Court: October County Judge's or Commissioner's Signature: (This Copy to be attached to minutes) r BRAZOS COUNTY COMMISSIONERS' COURT ACTION FORM DEPARTMENT Road and Bridge NUMBER 560010 DATE OF COURT MEETING: October 10. 2006 ITEM: Consider and take action on request from Ken (Earl) Havel for approval of the following variances to the Brazos County Subdivision and Development Regulations in the proposed Oakland Ridge Subdivision: (1) allow lot size to be less than 1 acre: (2) allow lot width to be less than 70': (3) allow minimum road right of way width to be less than 70': (4) allow side lot utility easement and setback to be reduced to 75: (5) allow construction of 20' wide alley(s). See attached letter of presentation and Master Plan. Site is located in Precinct 1. SOURCE OF FUNDS: N/A PRESENTATION: Brazos County does not maintain back of curb. SUBMITTED BY: har F. Vance, P.E. County Engineer 0006-075 This Request is Approved Date: ir~l~(lFr /l APPROVED BY: >VVZ0_7 Comm' sioner Lloyd Wassermann Precinct 1 by Commissioners' Court Judge I WL W F`-but 30 Technical Resources * Development 310 University Drive East College Station, Texas 77840 Telephone: (979) 574-0443 Fax: (979) G9G-3040 E-Mail: 'earlhavel@eaithlink.net" October 4, 2006 Gary Arnold Director of Planning t Transportation Brazos County Road t Bridge Department 2G 17 highway 21 West Bryan, Texas 77803 RE: Variance Requests Associated With Oakland Ridge Subdivision, Brazos County, Texas Dear Mr. Arnold, Please allow this letter and the documentation contained herein to serve as our formal submittal requesting the Brazos County Commissioners' Court to rewew, consider, and act upon variance request ltems I.a. though e. aesocoted with the preliminary and final plats for, and development of, Oakland Ridge 5ubdM51on. The variances to the Brazos County rural subdiwsion ordinance are tabulated as follows: Item /.a. Lot size less than / acre Item /b. Lot width less than 70 feet Item /c. ROW width less than 70 feet Item /d. Prowde /0 foot public utility easement for side lot Ines Item /e. Alley width and ROW Oakland Ridge Subdivision is located within the City of College Station E.T.J. and Brazos County, adjacent to and on the west side of the county road known as Jones-Butler Road. The subject property is situated approximately 300 feet northwest of the intersection of aforesaid Jones-Butler Road with Cain Road (See Attached Master Development Plan vicinity map). It can be seen from inspection of the vicinity map, the City of College Station city limits line runs north-south along the east right-of-way line of aforementioned Jones-Butler Road, therefore, the land located between Jones-Butler Road and Old Wellborn Road bounded to the south by Cain Road and to the north by Dowling Road lies within the College Station City Limits. 1'GL g~ P E l The City of College Station encourages contiguous development and by mspection of City of College Station future land use maps, the aforedescribed property as well as Oakland Ridge Sut,d!vision are anticipated to develop consistent with property in the immediate area lying to the east of Wellborn Road. The area to the east of Wellborn Road is comprised of medium density single family lots, higher density townhome lots, and high density multifamily apartment dwellings. County requirements for individual single family private septic systems mandate minimum lot sizes of one (1) acre. This one acre minimum is intended to provide reasonable application area for individual private septic systems and drain field lines, which in some cases based on the soil character, the one acre minimum is simply not enough area to adequately disperse the effluent. Once an adequate sanitary sewer collection system is incorporated into areas where sewer service was lacking or nonexistent the problem of minimum lot size and associated effluent application area is negated. Sanitary sewer effluent is collected via private individual service lines and tied to the main lines which convey said effluent from the service area and directs same to the main treatment facility. The College Station City Council, at its July 27, 2006 meetmg, granted the owner / developer of Oakland Ridge Subdivision permission to tie onto and extend "city" sanitary sewer infrastructure and service into the E.T.J. and Brazos County area which encompasses proposed Oakland Ridge Subdivision, Las Palomas Subdivision, Great Oaks Subdivision and several other properties located in the vicinity of same subdivisions. It is a speCific stipulation of the City of College Station that all sanitary sewer infrastructure extended into the E.T.J. must be designed and constructed in accordance with City of College Station Standard Details and Specifications as well as maintaining strict compliance with State of Texas rules and regulations. The owner / developer of Oakland Ridge Subdivision fully intends to construct sanitary sewer improvements, which will meet or exceed City of College Station and State requirements, to provide "City" sanitary sewer service to his subdivision as well as extending same proposed infrastructure to allow adjacent "upstream" properties the opportunity to also acquire "city" sanitary sewer service. Construction of the aforementioned "city" sanitary sewer system allows for higher land use densities while providing more healthful and superior sanitary sewer service, elimmating potential individual septic drain field problems. Variance ltems l.a. Lot size less than l acre and Lb. Lot width less than 70 feet pertain to elements of land measure assumed to be tied to the one acre minimum as a function of individual private sanitary sewer treatment and effluent dispersion. The incorporation of "city" sanitary sewer service directly effects lot area requirements (one acre minimum) and allows for lesser lot areas which would also allow for lot frontages less than 70 feet. 8 ~7 erka€ 3 Granting variances for Items I a. and I b. would allow smaller lots (less than one acre) which would be consistent with land development trends previously mentioned and allow for more efficient development of currently undeveloped properties within Oakland Ridge Subdivision a:: well as adjacent undeveloped areas. Variance /tems /.c. ROW widths less than 70 feet County roadway sections with ditches require right-of-way widths of at least 70 feet, however, Oakland Pidge Subdivision is to be constructed with urban roadway sections and geometry based on current "proven" City of College Station standard details and specifications. The proposed roads within Oakland Ridge Subdivision will incorporate G" raised concrete curbs t gutters, 1-1/2" thick asphalt pavement over G" of compacted crushed limestone base material, with G" thickness of compacted lime stabilized subgrade. 4' wide x 4" thick reinforced concrete sidewalks will be located along each side of every street located within same subdivision. Storm sewer inlets boxes and pipmg will be included as necessitated. The roadway as previously described will adequately "fit" within a 50 foot wide right-of- way. With no County maintained dramage ditches or infrastructure behind the curbs (between curb and right-of-way line) there is no apparent need for additional property (difference between 70 foot right-of-way and 50 foot right-of-way) as a result the County would actually benefit from not having to maintain the excess property and the owner/ developer would retain more "usable" space within his proposed subdivision. Variance ltems /.d. /O foot public utility easements for side lot Imes The requirement of ten (10') wide public utility easements along any and all side lot lines severally handicaps the development and the efficient use of the property located within the Oakland Ridge Subdivision. While the ten foot wide public utility easement is necessary within a rural area (Brazos County) where the County needs to maintain and possibly install future utilities or remedy unforeseen drainage problems, in an urban area such the "nature" of the proposed development within the bounds of Oakland Ridge Subdivision, all aspects of drainage, and utility design and placement will have been considered and engineered. The variance request related to this Item I d. does not entirely remove the 10 foot wide public utility easement from all side lot lines but rather considers the specific location and associated wide. For instance along all single family lots the side lot lines are proposed to have a decreased seven and one-half foot (7.5') wide easement on each side for a total of fifteen feet (15') wide public utility easement. This seven and one-half (7.5') wide PUF would also coincide with a seven and one-half foot (7.5') wide buildmg setback line makmg the total clearance between any two adjacent buildings fifteen feet (15'). These proposed clearances are typical of urban (City of College Station) setback requirements. Public utility easements to be located within the townhome lots will be omitted except on the lots that coincide with the ends of the buildings (a single building slab will facilitate more than one dwelling unit and therefore a common firewall will be constructed along lot VU -PwiE 33 lines "cro55mg" the proposed building slab. There would be no need for ; bhc utility easements to "pass through" dwelling units. Said public utdd:y easements anticipated to be located at the ends of the proposed townhome buildmgs are proposed to be seven and one-half feet (7.5') wide for a total of fifteen feet (15') wide which is also associated with a fifteen foot (15') wide building separation consistent with the abovementioned fifteen foot (1 5') wide buildmg setback relative to the single family lots. Variance ltems l . e. Alley width and ROW Brazos County does not have an ordinance governing the requirement and maintenance of alleys and associated rights-of-way. The owner / developer is requestmg that a variance be granted to allow the establishment of twenty-four foot (24') wide rights-of-way for the purpose of construction twenty foot (20') wide alleys where necessary to provide rear access to the proposed townhome lots. This rear access would remove the potential of unwanted automobile parking along the fronts of the townhome lots making for more safe vehicular navigation along the dedicated roadways. The Homeowners Association (HOP) would maintain the alleys until such time as the City of College Station annexes Oakland Ridge SUbdlvnslon and accepts the alley rights-of- ways and alleyways ownership and maintenance responsibilities. (rhe necessity of placing the proposed alleyways within dedicated rights-of-ways is prompted by the fact that the City of College Station will not assume ownership of the alleys and associated rights-of- way unless the alley are placed within rights-of-way. We hope this letter of variance request will suffice your needs as well as the needy of the Commissioners' Court to allow for adequate review, consideration, and subs(, juent granting of the variances as requested. Respectfully Submitted, n earl" Havel Technical Resources * Development VOL 60 P++uE 3 ~f W a5 ` pg.~ 5 n ` 'H 'a 7 b b 043.'3`c3 E ~.ggqg . 53 n C n n R L B ~ N 5 ~5~5'Pb n ^ cn C pp &n N 5• c b p a~ a5 aa 0 ~T s aaRS~,N'Oa^ b n o p .g. Q. r aq '70i s ~ ^ 5 ~ 01$ga~ D'b N T CL a. ~i b h N w. riaJ . N a o a g' o• n 5' -0 CO T ~ R o ng3 ~2:~ 5R 0o:b 9 4TT 6 Q ? Cd b I 0 o g "a 8 5 e a UJ, 5.. o ^ a 'P 5.9 zw N a 3-6 tv 8~+ ~,e a5S oAI E a pi; 8 a 5' a 6 F• d ~c5• ~oroR s o^ 5, 5 5`n~» z Fj ^ d w R A T~ ~ a g•o 5 5 II ~ " w 6 II: o a a ~ Q~- ~s'; oEes . 50g aR E 5 w 6 3g~~ a ~ QgB• •7~~n ,oCag ~-gan 5 ^ 96 .gip c zt C `G b1 a G a d n 0 At G~ aj5~•~b°~°•'~ u- ow ~~ry^ ^cwt~C~. o= « o' er: ;•ff ; 4 s A Sgs ~••~.s ~•Q ~ ~~'~a 11.4 6 a~~' = gala, o~=o Q ~ n b ']pp G.bdd ~i•O.Yri F0 01 Ri n Cb s~ a5' a « ~ o' o .°M. ~•~.o•B•~•~ ~ePgR g~.~ ° r~~o,~, ~ ~ ac5. wed g. 5'n c2 9Q5'o. ~n'~PiQ~.o.~b'Q'~w 2'O S 9 ~41 H ogg s Q~n T Opa w O ~ ~ M C b C ~ rp p 0 tJ~ A N Og o•~ = b s. y a o' ~s d ,N s 0ta)J EiSo~a w a O b ~y b 8 5' a 5' ~ a b w L 3~_ L H O A ~n r r 6' ss V3 2~ PA'N 32 0 00 x~ 10 b ''d R7 v 5.~ P Q vb7 V o O 2 ~ aH o O ~z _#/70 RESOLUTION PROVIDING FOR THE PUBLIC SALE OF PROPERTY ACQUIRED BY THE COUNTY OF BRAZOS FROM DELINQUENT TAXES WHEREAS, the following properties in Brazos County were offered for sale by the Sheriff of Brazos County, Texas at a public auction pursuant to a judgment of foreclosure for delinquent taxes by the District Court; Cause No. 48,096-85 Lot 10, Block 6, Hanus Addition, City of Bryan, Brazos County, Texas and a Mobile Account No. R95978 Home, Serial Number 0005968130, Label Number TEX0555878 Cause No. 49,449-85 Lot 6, McQueen Subdivision, City of Bryan, Brazos County, Texas being that Account No. R32548 property more particularly described in Volume 208, Page 235 of the Deed Records, Brazos County, Texas Cause No. 49,516-272 Lot 4, Figures Addition, City of Bryan, Brazos County, Texas Account No. R27299 Cause No. 49,606-85 .50 acres, more or less, Stephen F. Austin League No. 10, Abstract 63, City of Bryan, Account No. R39989 Brazos County, Texas, described by metes and bounds in Volume 108, Page 269, Deed Records, Brazos County, Texas Cause No. 49,772-272 Lots 14, 15, 16, Block 1, Austin Addition to the City of Bryan, Brazos County, Texas Account No. R17474 being that property more particularly described in Volume 394, Page 715 of the Deed Records, Brazos County, Texas Cause No. 51,102-85 Lot 33, Block D, Jones (SFA #9) Addition to the City of Bryan, Brazos County, Account No. R30318 Texas being that property more particularly described in Volume 544, Page 306 of the Deed Records, Brazos County, Texas Cause No. 52,456-272 Lot 13, Blocks 11 and 12, Bryan's 1" Addition to the City of Bryan, Brazos County, Account No. R20366/167000- Texas being that property more particularly described in Volume 359, Page 440 of the 0111-0130 Deed Records, Brazos County, Texas Cause No. 52,620-272 Lot 0, Block 50, Oak Grove Park Addition to the City of Bryan, Brazos County, Account No. R35135 Texas being that property more particularly described in Volume 745, Page 744 of the Official Records, Brazos County, Texas Cause No. 53,448-85 The North 45 feet of Lot 7, Block 145, City of Bryan, Brazos County, Texas Account No. R22672 & R83801 Cause No. 53,449-272 Lot 5 and the adjoining east one-half (E.'/2) of Lot 4, Block 233, City of Bryan, Account No. R23201 Brazos County, Texas Cause No. 03-002068-CV-272 Lots 5 and 6, R.B. Darling Subdivision, City of Bryan, Brazos County, Texas being Account No. R25507 that property more particularly described in Volume 206, Page 414 of the Deed Records of Brazos County, Texas Cause No. 05-000659-CV-85 .20 Acres out of Abstract 250 of the James Gray Survey being Tract 14, Brazos Account No. R16775 County, Texas being that property more particularly described in Volume 253, Page 657 of the Deed Records, Brazos County, Texas Page 1 of 2 V Resolution #06-015 ;tB $ Pti ~ ¢ 38 and WHEREAS, d use parcels of land did not receive a sufficient bid as set by law and were struck off to the County of Brazos, ibr the use and benefit of itself and the taxing units for which it collects property taxes, pursuant to Section 34.010) Property Tax Code; and WHEREAS, TEX. PROP. TAX CODE § 34.05 (c) and (d) provide that we may request that the Sheriff sell the property at a public sale for any sufficient bid. THEREFORE, BE IT HEREBY RESOLVED by the Commissioner's Court of the County of Brazos, Texas that the County of Brazos, Texas hereby directs the Sheriff of Brazos County, Texas to conduct a sale on the first Tuesday in December, 204 in the manner prescribed by the Texas Rules of Civil Procedure and § 34.05 (c) and (d) of the TEX. PROP. TAX CODE. PASSF", AIs PROYED AND,3DOJ?-TED this the ; ~ day of(2t.-h]bpr , 2006. County Judge Precinct No. 1 Commissioner, Precinct No. 2 Commissioner, P inct No. 3 Co Issione, recmctNo. G County Clerk o Page 2 of 2 Resolution #06-015 VOL 86 PACE 31 Addendum One (1) to COLLABORATIVE AGREEMENT BETWEEN TEXAS A&M UNIVERSITY TEXAS A&M UNIVERSITY SYSTEM HEALTH SCIENCE CENTER THE CITY OF COLLEGE STATION THE CITY OF BRYAN BRAZOS COUNTY BLINN COLLEGE BRYAN INDEPENDENT SCHOOL DISTRICT COLLEGE STATION INDEPENDENT SCHOOL DISTRICT BRAZOS VALLEY COUNCIL OF GOVERNMENTS THE RESEARCH VALLEY PARTNERSHIP ST. JOSEPH REGIONAL HEALTH CENTER for Brazos Valley Community Network ~,oject WHEREAS, the parties listed above have previously negotiated terms and conditions of a collaborative agreement for the continuation of the BVCNET project; and WHEREAS, the parries have agreed to amend and add paragraphs to the above referenced collaborative agreement; and NOW THEREFORE, the parties hereby agree that the Collaborative Agreement shall be amended as follows: A. The sixth WHEREAS paragraph in preamble will be deleted in its entirety and replaced with the following: B. A new Paragraph 1 - Preamble will be added as follows: 1. Preamble. The preamble to this Agreement is incorporated in this Agreement and the statements therein are found and determined to be true and correct. C The current Paragraph 1 - Governance will be deleted in its entirety and replaced with the following: D. E. 2~ BVCNET. BVCNET, is a project initiated by TAMMI through, its Academy for Advanced Telecommunications and Learning Technologies. The BVCNET s Governing Board ("Governing Board") Establishes direction and policies to provide guidance for the committees, officers and staff, to implement policies governing the operation and management, and to effectively manage the finances of BVCNET including soliciting funding to support its operations. The Project Director serves at the will of the Governance Process and Managerial Processes for the I are attached hereto as Attachment D. 1. BVCNET_ Goals. The parties through the Project Manager, will jointly operate the BVCNET, which will provide services and connectivity generally described as follows: • Be a forum for collaborative technology projects that address joint interests of organizations within the community. • Maintain high performance connectivity among the parties by linking and extending existing networks. • Provide network access to individuals in the community, particularly the underserved by providing access at local centers. • Maintain a web presence to organize local resources in a web portal. The current Paragraph 2 - Bylaws will be renumbered to Paragraph 4 - Bylaws. A new Paragraph 5 - Compliance with PURA will be added as follows: VOL Deleted: et Deleted: exec A&M Unlvers; Deleted: :1 1 a Delettl: tllel Deleted: at Deleted: y Deleted: 4 The Cities of College Station and Bryan believe the current usage of all the parties is not prohibited by PURA Section 54.2012. The Cities of College Station and Bryan reserve the right to immediately withdraw the usage of their fiber and equipment from any party who fails to cease prohibited activity as provided by PURA Section 54.202. F. The current Paragraph 3 - Funding will be deleted in its entirety and replaced with the following: Funding. Each party agrees to provide financial resources for the oekted: s J general operation, maintenance and planning of the BVCNET. The parties DeWW; 2s are responsible for yearly payments as follows: TAMU $13,000 Health Science Center 3,000 College Station $13,000 Bryan $13,000 Brazos 4,000 Blinn 3,000 BISD 3,000 CSISD 3,000 BVCOG 3,000 RVP 3,000 St. Joseph 31000 These payments are for the period from October 1 through September 3Q Daww:..a4st;i Each party will make a lump sum payment to TAMU for the f3VCNET, cekcea: ~g based on an October 1" fiscal vear. Subsecuent pavments shall be The funding request may be altered upon renewal of this Agreement and from time to time based on the operational needs of the BVCNET. G. The current Paragraph 4 - Staff Support will be renumbered as Paragraph 7 - Staff Support. H. The current Paragraph 5 - Operations will be renumbered as Paragraph 8 - Operations. The first line contains "The BVCNet will:" which will be deleted and replaced with "The Project Manager will:". Subparagraph f currently begins with "Fund accounting" which will be deleted and replaced with "undertake fund accounting". 1. A new Paragraph 9 - Additional Participants will be added as follows: 9, Additional Participants. Admission of additional participants in the BVCNET and to this Agreement will only be made by a majority vote of the Board of Directors. Additional participants will be required to execute a joinder to this Agreement in the form attached as Attachment C, and pay a sum to be determined for the general operation, maintenance, and support of the BVCNET. J. The current Paragraph 6 - Effective Date and Term will be renumbered as Paragraph 10 - Effective Date and Term. The ending of the paragraph contains 'as provided in Paragraphs 7 or 8" which will be deleted and replaced with "as provided in Paragraphs 11 or 120 . K. The current Paragraph 7 - Modification will be renumbered to Paragraph 11 - Modification. L. The current Paragraph 8 - Withdrawal from Participation will be renumbered as Paragraph 12 - Withdrawal from Participation. The last phrase of the current paragraph contains "with Paragraph 14 herein" which will be deleted and replaced with "with Paragraph 18 herein'. The following will be appended to the paragraph. M. The current Paragraph 9 - Failure to Pay will be renumbered as Paragraph 13 - Failure to Pay. The phrase "commencement of this Agreement" will be deleted and replaced with "due date thereof". N. The current Paragraph 10 - Termination will be deleted in its entirety and replaced with the following: 365 days, multiplied by amount of lump sum payment. Upon termination from participation, ownership of equipment purchased by the BVCNET Project that is located on premises of the withdrawing party shall revert to the BVCNET Project. Deleted: In the Wood Of terminaton of participation, BVCNET shall refund to TAMU, which shat in dun refund to the participant, a pro rate amount of the Whip sum received by BVCNET based Upon the product of the numbs, of days from termination to end date of the agreement divided by 385 days, multiplied by amount of lump sum payment. p 10 F111U 43 L Or netctative impacts have been mitigated to the satisfaction of the non- withdrawing parties. Such mitigation, however, shall be at no cost to the withdrawing party. O. The current Paragraph 11 - INDEMNIFICATION will be deleted in its entirety and replaced with the following: Deleted: 11 O. The current paragraphs as listed below will be renumbered as listed below: Currant Paragraph 12 - Consent to Suit Paragraph 13 - Severability Paragraph 14 - Written Notice Paragraph 15 - Entire Agreement Paragraph 16 -Amendment Paragraph 17 - Governing Law Paragraph 18 - Authority to Enter Contract Paragraph 19 -Waiver Paragraph 20 - Agreement Read Paragraph 21 - Assignment Paragraph 22 - Multiple Originals Rgnumbered as Paragraph 16 - Consent to Suit Paragraph 17 - Severability Paragraph 18 - Written Notice Paragraph 19 - Entire Agreement Paragraph 20 - Amendment Paragraph 21 - Governing Law Paragraph 22 - Authority to Enter Contract Paragraph 23 - Waiver Paragraph 24 - Agreement Read Paragraph 25 - Assignment Paragraph 26 - Multiple Originals VOL 0 ~`----x- 4 _ The current Paragraph 23 - Conflict of Interest to be renumbered to Paragraph 27 - Conflict of Interest. The first line of this paragraph contains "all members who are a party to this Agreement' which will be deleted and replaced with "all parties". Paragraph 24 - Paragraph 28 - Open Meetings and Records Open Meetings and Records Paragraph 25 - No Joint Venture Paragraph 29 - No Joint Venture R. Attachment F: Joinder Agreement is appended as that attachment in the form attached hereto. Attachment F: JOINDER AGREEMENT THIS JOINDER AGREEMENT (the " greement"), dated as of 2V U r, a1[YYs is executed by CNA-V ("Participant'), in connection with that certain Collaborative Agreement ntered into between Texas A&M University, Texas A&M University System Health Science Center, the City of College Station, the City of Bryan, Texas, Brazos County, Texas, Blinn College, Bryan Independent School District, College Station Independent School District, Brazos Valley Council of Governments, The Research Valley Partnership, and St. Joseph Regional Health Center, hereinafter referred to jointly as 'Parties." In accordance with Section 9 of the Collaborative Agreement, Participant executes this Joinder Agreement in order to become a party to the Collaborative Agreement and a participant in the BVCNET. Accordingly, Participant hereby agrees as follows with the Parties: 1. Participant hereby acknowledges, agrees, and confirms that, by its execution of this Joinder Agreement, Participant shall be deemed a party to the Collaborative Agreement, and shall have all of the obligations thereunder as if it had executed the Collaborative Agreement. Participant hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions, and conditions contained In the Collaborative Agreement applicable to it to the same effect as if it were an original party thereto. 2. Participant acknowledges and confirms that it has received a copy of the Collaborative Agreement and the exhibits thereto. 3. Participant's yearly payment for the operation, maintenance, and planning of the BVCNET is $ yrtiti~. [7~ payment of which is due upon execution of this Joinder Agreement. 4. This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original. 5. This Joinder Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Texas, and exclusive venue shall lie In Brazos County, Texas. IN WITNESS HEREO , Participant has caused this Agreement to be duly executed by its authorized officer as of the day and yggr indicat4below. Date Participant Fax: (Cr9n) '34.1 - q,Sn S Phone: (9q4] 36 - 410 2- Email: f"!~krv" 0 to, b-cxas.tx.Ljs SALES AGREEMENT This Sales Agreement ("Agreement") dated October 17, 2006 between Affiliated Communications, Inc., ("ACI") and Brazos County ("CUSTOMER") specifies the terms and conditions under which ACI will provide CUSTOMER with equipment and services. EQUIPMENT ACI agrees to sell, deliver, and install, and CUSTOMER agrees to purchase the telephone equipment outlined in Annex I, (the "EQUIPMENT") attached hereto and incorporated herein. 2. PAYMENT TERMS System Sales Price is $33,634.07 plus applicable tax. The total purchase price will be payable by CUSTOMER and is outlined in Annex II, attached hereto and incorporated herein. 3. TITLE ACI shall retain title to the EQUIPMENT until the CUSTOMER has paid the full amount of the purchase price. In the event CUSTOMER shall default in prompt payment of any installment on account, ACI shall have the right, in addition to and not exclusive of any other rights it may have under the Uniform Commercial Code, to enter upon the premises where the EQUIPMENT is located and retake possession thereof without notice, free from any claims of CUSTOMER. 4. WARRANTY ACI warrants the EQUIPMENT sold hereunder as follows: ACI warrants that the EQUIPMENT will be free from defects for a period of one (1) year from the date of cut-over. ACI further warrants the installation labor for a period of one (1) year from date of cut-over. ACT's obligation hereunder shall be limited to the repair or, at its option; replacement of the equipment containing such defects, where such equipment has been subject to normal use Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 750741 Ph: 972-852-4000 ♦ Fax: 972-852-4067 43 and service and is returned or otherwise made available to ACI within the said one (1) year period except as stated herein. Standard manufacturer warranty applies as related to firmware, software, and workmanship. Customer Provided Equipment is not covered under warranty. ACI HAS NOT AND DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE WITH RESPECT TO THE EQUIPMENT. ACI FURTHER DISCLAIMS ANY LIABILITY FOR SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR CONNECTED WITH THE USE OF THE EQUIPMENT BY CUSTOMER. 5. INSTALLATION The EQUIPMENT shall be installed at: Brazos County-Information Technology Buidling 205 East 27th Street Bryan, TX 77803 (the PREMISES") The proposed cut-over date shall be 11/29/2006. ACI shall utilize its best efforts to complete installation by the cut-over date, but shall not be liable for any damages resulting from delays or other failure to perform under this AGREEMENT due to acts of God or any other cause beyond its control. 6. CUSTOMER RESPONSIBILITIES CUSTOMER agrees to permit ACI such access to the PREMISES as ACI may require for installation of the EQUIPMENT. CUSTOMER will provide adequate space for the EQUIPMENT and insure that light and an adequate A/C power source for the same is available before installation. CUSTOMER has been advised by ACI that an air-conditioned environment is necessary for the proper functioning of the EQUIPMENT and CUSTOMER agrees to provide such air- conditioning if necessary. Furthermore CUSTOMER agrees to make every effort to work with ACI to complete the individual requirements of the EQUIPMENT, necessary to complete the installation, no later than 12/29/2006. Affiliated Conununications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: 972-852-4000 ♦ Fax: 972-8524067 ~k8 r„ -L 41 RISK The risk of loss for any damage to or destruction of the EQUIPMENT or any portion thereof occurring from and after delivery thereof to the PREMISES shall be the responsibility of the CUSTOMER. CUSTOMER agrees to provide an area on the PREMISES for safekeeping of the EQUIPMENT prior to and during the installation by ACI. 8. TAXES CUSTOMER shall pay all sales, use, excise or other taxes payable or required to be collected by ACI which are levied or based upon the sale of the EQUIPMENT herein, and will indemnify ACI against any such taxes. 9. CHANGES Changes, additions or modifications with respect to the EQUIPMENT herein shall be mutually agreed to in writing by the parties and this AGREEMENT shall be deemed amended to that extent. In the event of any such changes, the purchase price herein shall be adjusted accordingly. Notwithstanding anything to the contrary, deletions made to the EQUIPMENT shall not exceed 8% of the total purchase price as specified in section Two (2) herein, or CUSTOMER will be subject to pay a charge for restocking equal to 20% of the list price of that portion of the Equipment that has been deleted or returned. 10. ENTIRE AGREEMENT This AGREEMENT shall be subject to and governed by the laws of the State of Texas and constitutes the Entire AGREEMENT between the parties hereto. It shall not be changed or modified except in writing executed by other parties pursuant to Section 9 herein. ACI has made no representations or warranties extending beyond those set forth herein. A FILIF~.TED,UQMMUNICATIONS, T TL E. V DATE: 11 7 0 INC. Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 750741 Ph: 972-852-40001 Fax: 972-852-4067 D P,?; E 6 DATE: I ol, qlto( Annex I 1 NTJG72AA Local Single Mode 1-2 Loops 7,291.20 7,291.20 1 NTJG72BA Remote Single Mode 1-2 Loops 5,671.20 5,671.20 1 NTWB 15BA Cab AC Top Cap & Pedestal 3,436.80 3,436.80 1 NTWB 15DA M 1 IPE 4-SEG Module AC Package 5,892.00 5,892.00 I A0761993 FRMH Alarm Cable (32ft) 117.60 117.60 1 NT8D02HA Card 16-port XDLC 1,461.60 1,461.60 1 NT8D09CA Ext. Analogue MW Line Card 1,461.60 1,461.60 1 A0762506 AC/DC Power Converter 319.20 319.20 2 NTMN33GA70 M3903 Enhanced Charcoal 230.40 460.80 1 M8009 M8009 Telephone 62.40 62.40 1 NT8D46EH Cable Alarm SM J3-MDF 100ft 69.60 69.60 2 NT9D18AA Side Trim Assy./Die Cast 96.00 192.00 1 A0634496 Remote Fiber Multi-IPE Interface Cable (30 ft.) 206.40 206.40 1 NT8D21AB Ringing Generator AC - ACRG 919.20 919.20 1 NT8D92AB I/O Panel to XPEC Cable 20 Inch 42.00 42.00 1 201-50-PLEN 50Ft M161-8 1c JCS Cable Assembly 457.02 457.02 $ 28,060.62 Peripheral Equipment 1 SURT3000XLT APC Smart-UPS RT 3000VA - UPS (external) 2,034.00 2,034.00 1 SPURT192XLB APC BatteryPack - UPS battery lead acid 884.40 884.40 $ 2,918.40 Cabling Services 0.00 Installation/Implementation 5,174.89 Customer Discount -2,519.84 Affiliated Communications ♦ 730 Avenue F, Suite 210 1 Piano, TX 75074 ♦ Ph: 972-852-4000 ♦ Fax: 972-852-4067 Annex II PAYMENT SCHEDULE STRAIGHT PURCHASE OPTION: 25% DUE UPON ACCEPTANCE OF CONTRACT 50% DUE UPON DELIVERY OF EQUIPMENT 25% DUE UPON ACCEPTANCE OF SYSTEM Affiliated Communications ♦ 730 Avenue F, Suite 210 • Plano, TX 75074 ♦ Ph: 972-852-0000 ♦ Fax: 972-852-4067 PA U 5a \t'ti AFFILIATED c o m m u n i c a t i o n s MAINTENANCE AGREEMENT 1. This Maintenance Agreement, hereinafter, referred to as the "Agreement" between Affiliated Communications, Inc. (hereinafter "ACI") and Brazos County (hereinafter "Buyer") is entered into on Brazos County 300 East 26th Street, Suite 106 Bryan, TX 77803 (979)361-4104 System Types: County Courthouse-Option 61C Detention Center-Option 11C Juvenile Center-Norstar MICS Health Dept-Norstar MICS Road & Bridges-Norstar MICS Brazos Center-Norstar MICS 2. TERM ACI shall provide service (parts and labor) on the equipment (Appendix A) at the location (Appendix A) and Remote Monitoring (24x7) of the Courthouse Option 61C and Detention Center 11C for a period of 12 months, commencing November 1, 2006 and continuing through October 31, 2009 (the "Term"), and shall be for consecutive terms of one year, at Buyer's option. 3. EQUIPMENT AND CONTRACT DESCRIPTION Option C: M-F (8-5) Switch Telephones Year 1 2.25 per port (Option 61C/Option 11C) 2.50 per port (Norstar MICS locations) Year 2 4% increase per port Year 3 4% increase per port ® Monitoring $.10 per Port (Optional/Additional) Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 4. AGREEMENT It is agreed to and understood that this Agreement constitutes the entire Agreement between the parties, and supersedes and replaces all other prior understanding or agreements relating to equipment and services covered by this Agreement. This Agreement may not be changed, modified or varied except by the specific written and signed approval by authorized representatives of both parties. It is understood and agreed by and between the parties hereto, that if there is any conflict between this Agreement and client's purchase order, or any other document, this Agreement will govern. 5. SERVICE SCHEDULE A. Standard Service is Monday thru Friday, 8:OOA.M.to 5:00 P.M. shall be dispatched within eight hours (8) of call in time. B. Emergency Service is defined as 25% of the "Buyer's" system out-of- service, first trunks of the "Buyer's" main line out-of-service, a console out-of-service, or any particulars needed covered in Appendix A and will be dispatched within 2 hours of call-in time, 7 days by 24 hours. 6. EXCLUSIONS This Agreement does not include equipment lost, stolen, or damaged due to negligence, tampering, misuse, accident, or resulting from electrical storms, lightning due to violent weather, power outages or failure to maintain proper equipment environment nor the labor associated with the repair or replacement of these parts. Exclusions are also covered in Appendix A. 6a. A system audit will be performed within 30 days of signed agreement, at which time any equipment or repairs will be noted and it will be the customer's responsibility to replace or repair said item. If customer does not agree to replace or repair said item, this item may be excluded from coverage under the terms of this maintenance agreement 7. LIMITATIONS OF LIABILITY "ACP" will not be liable for any injury, damage, or claim to persons and properties that may arise through the operation or maintenance of the system or failures thereof. In no event will °ACP' be liable for any indirect, incidental, or consequential damages, including but not limited to loss of business, loss of use, Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 • Ph: (972) 852-4000 ♦ Fax: 972-852-4067 and loss of profits. "ACI" shall not be liable for failure to perform due to strikes, lockout, civil disturbances, or Acts of God beyond "ACI's" control. 8. TERMINATION In the event of a breach or failure to perform obligation under the contract, written notice shall be provided and the party responsible for the failure shall be given 30 days to cure the default. Failure to cure would provide the other party the right to terminate. In any case either party has the right to terminate with 30 days advance notification. 9. AUTHORIZED REPRESENTATIVES k&j ✓e est. CUSTO R CONTA A TITLE ,1311 6041e.(s l o Ted . CUSTOMER CONTACT B 'FULE cS l,, 5 CUSTO R CONTACT C TIT ACI will receive and dispatch from the following Buyer's representatives to verify that ACI has been requested by an acceptable Buyer's contact. 10. CUSTOMER SERVICE REPRESENTATIVES Darlene Hamm Courtney Battles Customer Service Representative Customer Service Representative The "Buyer" contact when calling in service problems can direct calls to any of these customer service representatives or the dispatch center 24/7 at 972-852- 4000. Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 SIGNING SECTION On this day, 11101 IQ W(47 , we The "Buyer" want the Vendor "(ACI)" to provide Telecormlyocation ~ ervice to our company. Name Title Agreed to by "ACT' Representative. e (ACI) Je Title Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 .:.._I/.. K APPENDIX A INITIAL TERM: 111112006 to 1013112009 SERVICE LOCATION(S): Company Name: Brazos County Courthouse (Option 61C) Address: 300 East 26th Street, Suite 106 City, State, Zip: Bryan, TX 77803 Service Contact: Bill Bowers Contact Number: (979)361-4464 Company Name: Brazos County Detention Center (Option 11 C) Address: 1835 Sandy Point Road City, State, Zip: Bryan, TX 77807 Service Contact: Bill Bowers Contact Number: (979)361-4464 Company Name: Brazos County-Health Dept (Norstar MILS) Address: 201 North Texas Avenue City, State, Zip: Bryan, TX 77803 Service Contact: Bill Bowers Contact Number: (979)361-4464 Company Name: Brazos County-Juvenile Center (Norstar MICS) Address: 1904 West SH 21 City, State, Zip: Bryan, TX 77803 Service Contact: Bill Bowers Contact Number: (979)361-4464 Company Name: Brazos County-Road & Bridge (Norstar MICS) Address: 2617 Hwy 21 West City, State, Zip: Brazos, TX 77803 Service Contact: Bill Bowers Contact Number: (979)361-4464 Company Name: Brazos County-Brazos Center (Norstar MICS) Address: 3232 Briar Crest Drive City, State, Zip: Brazos, TX 77802 Service Contact: Bill Bowers Contact Number: (979)361-4464 Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 P~a, S r7 BILLING 07 DIFFERENT): Company Name: Brazos County Courthouse Address: 300 East 26th Street, Suite 106 City, State, Zip: Bryan, TX 77803 Billing Contact: Candy Gallego Contact Number: (979)361-4104 TYPE OF CONTRACT: Option C: M-F (8-5) Switch Telephones SPECIFIC EXCLUSIONS: None ® Audit Performed ❑ Audit to be Performed (See 6a, Exclusions) SERVICE HOURS - M-F (8-5) LABOR RATE $ 90.00 (M-F/8-5) $120.00 (After Hours) All MAC service calls will be billed with an $80 trip charge. SPECIFIC INCLUSIONS - Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 CONTRACT PRICING SUMMARY Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 gr.-~ ~o Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 c ~ 1. Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 Y ,l Fp. E (0a Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-8524067 Y F," 63 Affiliated Communications ♦ 730 Avenue F, Suite 210 ♦ Plano, TX 75074 ♦ Ph: (972) 852-4000 ♦ Fax: 972-852-4067 8 " 6 4 Brazos Center-Norstar MICS min LEASE AGREEMENT BETWEEN PINEL. L.P. LANDLORD BRAZOS COUNT CLERK'S OFFICE TENANT CARTER CREEK CENTER LOCATION 4001 E. 29T". SUITE 118. BRYAN. TX 77802 ADDRESS INDEX TO STANDARD COMMERCIAL SHOPPING CENTER LEASE g$ (C'S Page 1 Page 2 Page 2 Page 2 Page 3 Page 3 Page 4 Page 5 Page 5 Page 5 Page 6 Page 6 Page 6 Page 7 Page 7 Page 7 Page g Page 9 Page 10 Page 12 Page 13 Page 13 Page 14 Page 14 Page 14 Page 14 Page 15 Page 17 q~ ~F 5. ARTICLE V. Sales Reports and Records 6. ARTICLE VI. Common Area STANDARD COMMERCIAL Shopping Center Lease STATE OF TEXAS COUNTY OF BRAZOS This lease, entered into this _day of , 2006, by and between the Landlord and the Tenant hereinafter named. ARTICLE I. Definitions and Certain Basic Provisions. 1.1 (a) (b) (c) (d) (e) (f) "Landlord": PINEL, Landlord's address: 321 N. C "Tenant": Tenant's mailing address: 300 E.. Tenant's trade name: N/A Tenant's address in Shopping Center: SUITE 113 (g) "Demised Premises": approximately 1870 square feet in Building "A" (computed from measurements to the exterior of outside walls of the building and to the center of interior walls), such premises being shown and outlined on the plan attached hereto as Exhibit A, and being part of the Shopping Center situated upon the property described in Exhibit B attached hereto. "Shopping Center" shall refer to the property described in Exhibit B, together with such additions and other changes as Landlord may from time to time designate as included within the Shopping Center. (h) Lease term: Commencing on the "Commencement Date" as hereinafter defined and ending SEE SPECIAL PROVISIONS ARTICLE 28 months thereafter except that in the event the Commencement Date is a date other than the first day of a calendar month, said term shall extend for said number of months in addition to the rema~ r of the calendar month following the Commencement dates f} 0) "Commencement Date": QGTQBER 4. 200 OCT .2 s , T a o b Y; 0) Minimum Guaranteed Rental: $ 1,870.00 per month, payable in advance. (k) Percentage Rental: N/A % of gross sales in excess of $ N/A per month during the calendar year, payable on or before the 10th day of each following month subject to Article IV, Section 4.3 below. (1) Initial Common Area Maintenance charge per month: $ N/A (m) Initial Insurance Escrow Payment per month: $ N/A (n) Initial Tax Escrow Payment: $ N/A (o) "Security Deposit": $ 1,870.00 , refundable upon expiration of term less any damages for unusual wear and tear of charges necessary to restore the Demised Premises to satisfactory condition. (p) Agent: THE PINNACLE PROPERTY COMPANY. INC. (q) Cooperating Agent: JOHN R. CLARK AND ASSOCIATES (r) Permitted use: OFFICE STORAGE AND REPAIR SPACE FOR VOTING MACHINES AND OTHER RELATED ACTIVITY 1.A The sum of Minimum Guaranteed Rental as set forth in Article I, Section 1.10); and $ 1,870.00 Initial Common Area Maintenance charge, as set forth in Article I, Section 1.1 (1); and $ N/A Initial Insurance Escrow Payment as set forth in Article I, Section 1.1 (m); and $ N/A Initial Tax Escrow Payment as set forth in Article I, Section 1.1 (n) $ N/A Monthly Payment Total $ 1,870.00 1.2 Each of the foregoing definitions and basic provisions shall be construed in conjunction with and limited by the references thereto in the other provisions of this lease. INITIALS LANDLORD TENANT 4 PAGE1 ru: Granting Clause ARTICLE II. 2.1 In consideration of the obligation of Tenant to pay rent as herein provided and in consideration of the other terms, covenants and conditions hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby takes from Landlord, the Demised Premises as described in Section 1.1 (g) TO HAVE AND TO HOLD said premises for the lease term specified in Section 1.1 (h) all upon the terms and conditions set forth in this lease. Landlord further agrees that if Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant. Tenant shall, subject to the terms of this lease, at all times during the continuance of this lease have peaceful and quiet possession of the Demised Premises. Construction and Acceptance of Premises Rent ARTICLE III. 3.1 By occupying the Demised Premises, Tenant shall be deemed to have accepted the same and to have acknowledged that the same comply fully with Landlord's covenants and obligations hereunder. 3.2 If this lease is executed before the Demised Premises becomes vacant, or if any present tenant or occupant of the premises holds over, and landlord cannot acquire possession of the Demised Premises prior to the Commencement Date of this lease, as above defined, Landlord shall not be deemed to be in default hereunder, and Tenant agrees to accept possession of the Demised Premises at such time as Landlord is able to render the same. Landlord hereby waives the payment of rent covering any period prior to tender of possession to Tenant hereunder. 3.3 Landlord and Tenant each agree that at the request of either they will execute and deliver a short form lease in recordable form containing the basic provisions of this agreement acknowledging that Tenant has accepted possession and reciting the exact Commencement Date and termination date of this lease. NOTE *If this lease provides for construction prior to occupancy, refer to the appropriate exhibits attached hereto in such case. Article II above shall be deemed modified to the extent consistent with such exhibits. ARTICLE IV. 4.1 Rental shall accrue hereunder from the Commencement Date, and shall be payable to Landlord (or in care of Agent) at the address specified in Section 1.1 (b) or 1.1 (f) above. 4.2 Tenant shall pay to Landlord minimum guaranteed rental in monthly installments in the amounts specified in Section 1.1 (i) above. The first such monthly installment shall be due and payable on or before the Commencement Date, and subsequent installments shall be due and payable on or before the first day of each succeeding calendar month during the hereby demised term, provided that if the Commencement Date is a date other than the first day of a calendar month, there shall be due and payable on or before such date as minimum guaranteed rental for the balance of such calendar month a sum equal to that proportion of the rent specified for the first full calendar month as herein provided, which the number of days from the Commencement Date to the end of the calendar month during which the Commencement Date shall fall bears to the total number of days in such month. 4.3 It is understood that the minimum guaranteed rental is payable on or before the first day of the month (in accordance with Section 4.2 above) and percentage rental, if any, is payable on or before the 10th of each calendar month, without offset or deduction of any nature. In the event any rental is not received within 10 days after its due date for any reason whatsoever, it is agreed that the amount thus due shall bear interest at the maximum contractual rate which could legally be charged in the event of a loan of such rental to Tenant in the state where the Demised Premises are located (but in no event to exceed 1 1/2% per month), such interest to accrue continuously on any unpaid balance due to Landlord by Tenant during the period commencing with the aforesaid due date and terminating with the date on which Tenant makes full payment of all amounts, owing to Landlord at the time of said payment. Any such increase shall be payable as additional rent hereunder, shall not be considered as a deduction from percentage rental, and shall be payable immediately on demand. INITIALS LANDLORD TET W P GE2 4.4 If Tenant fails in two consecutive months to make rental payments within ten days after due, Landlord in order to reduce its administrative costs, may require, by giving written notice to Tenant (and in addition to any interest acciuing pursuant to Section 4.3 above, as well as any other rights and remedies accruing pursuant to Article XIX or Article XX below, or any other term, provision or covenant of this lease), that minimum guaraniopd rentals are to be paid quaffff erly in advance instead of monthly and that all future rental payments are to be made on or before the due date by cash, cashier's check, or money order, and that the delivery of Tenant's personal or corporate check will no longer constitute a payment of rental as provided in this lease. Any acceptance of a monthly rental payment or of a personal or corporate check thereafter by Landlord shall not be construed as a subsequent waiver of said rights. Sales Reports ARTICLE V. 5.1 INTENTIONALLY DELETED Common Areas q114, ARTICLE VI. 6.1 The term "Common Area" is defined for all purposes of this lease as that part of the Shopping Center intended for the common use of all tenants, including among other facilities (as such may be applicable to the Shopping Center) parking area, private streets and alleys, landscaping, curbs, loading areas, sidewalks, malls, and promenades (enclosed or otherwise), lighting facilities, drinking fountains, meeting rooms, public toilets, and the like but excluding space in buildings (now or hereafter existing) designed for rental for commercial purposes, as the same may exist from time to time, and further excluding streets and alleys maintained by a public authority. Landlord reserves the right to change from time to time the dimensions and location of the Common Area, as well as the dimensions, identity and type of any buildings in the Shopping Center. Tenant, and its employees and customers, and when duly authorized pursuant to the provisions of this lease, its subtenants, licensees and concessionaires, shall have the non-exclusive right to use the Common Area as constituted from time to time, such use to be in common with Landlord, other tenants to the Shopping Center and other persons permitted by Landlord to use the same, and subject to such reasonable rules and regulations governing use as Landlord may from time to time prescribe, including the designation of specific areas within the Shopping Center or in reasonable proximity thereto in which automobiles owned by Tenant, its employees, subtenants, licensees and concessionaires shall be parked. In this regard Tenant shall furnish to Landlord upon request a complete list of license numbers of all automobiles operated by Tenant, its employees, subtenants, licensees or concessionaires, and Tenant agrees that if any automobile or other vehicles owned by Tenant or any of its employees, subtenants, licensees or concessionaires shall at any time be parked in any part of the Shopping Center other than the specified areas designated for employee parking, Tenant shall pay to Landlord as additional rent upon demand an amount equal to the daily rate or charge for such parking as established by Landlord from time to time for each day, or part thereof such automobile or other vehicle is so parked. Tenant shall not solicit business with the Common Area or take any action which would interfere with the rights of other persons to use the Common Area. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to make repairs or alterations or to prevent the public from obtaining prescriptive rights. 6.2 Landlord may from time to time substitute for any parking area other areas reasonably accessible to the tenants of the Shopping Center, which areas may be elevated, surface or underground. 6.3 Landlord shall be responsible for the operation, management, and maintenance of the Common Area, the manner of maintenance and the expenditures therefore to be in the sole discretion of Landlord. proportionate share-of_ a cost of operation and maintenance of the Common Area in ong other costs, those for managements ' hting, painting, cleaning, policin g, repairing and replacing, and in the event of an enclosed mall or promen enter, for heating and cooling) which may be incurred by Landlord in its discretion, i easona a for Landlord's overhead costs and for depreciation of maintena ent, and the cost of hazard insurance, excluding general real estat taxes, as , and depreciation of Landlord's original investment. The proportionate sftare to kte eid b 'sn INITIALS LANDLORD a E 3 66 ~ ~ 68 within the Shop trrg-Ga Section 1.1 (1) above. T than monthly. Landlord that, in no event shall such share be less charges based annual an maintenance of the Common Area payabiqe M , aftef4he-end of the-year-~asis~ual cost for suct_year Use and Care of Premises s not more upon the e ibiect to ad in ARTICLE VII. 7.1 The Demised Premises may be used only for the purpose or purposes specified in Section 1.1 (r) above, and for no other purposes without the prior written consent of Landlord. Tenant shall use in the transaction of business in the Demised Premises the trade name specified in Section 1.1 (e) above and no other trade name without the prior written consent of Landlord. Tenant shall not at any time leave the Demised Premises vacant, but shall in good faith continuously throughout the term of this lease conduct and carry on in the entire Demised Premises the type of business for which the Demised Premises are leased. Tenant shall operate its business in an efficient, high class and reputable manner so as to produce the maximum amount of sales from the premises, and shall, except during reasonable periods for repairing, cleaning and decorating, keep the premises open to the public for business with adequate personnel in attendance on all days and during all hours (including evenings) established by Landlord from time to time as store hours for the Shopping Center, and during any other hours when the Shopping Center generally is open to the public for business, except to the extent Tenant may be prohibited from being open for business by applicable law, ordinance or governmental regulation. 7.2 Tenant shall not without Landlord's prior written consent, keep anything within the premises or use the premises for any purpose which increases the insurance premium cost or invalidates any insurance policy carried on the Demised Premises or other parts of the Shopping Center. All property kept, stored or maintained within the premises by Tenant shall be a Tenant's sole risk. 7.3 Tenant shall not conduct within the Demised Premises any fire, auction, bankruptcy, "going-out-of- business", "lost-our-lease", or similar sales or operate within the Demised Premises a "wholesale" or "factory outlet" store, a cooperative store, a "second hand" store, a "surplus" store or a store commonly referred to as a "discount house". Tenant shall not advertise that it sells its products or services at "discount", "cut-price", or "cut- rate" prices. Tenant shall not permit any objectionable or unpleasant odors to emanate from the premises, nor place or permit any radio, television, loudspeaker or amplifier on the roof or outside the Demised Premises or where the same can be seen or heard from outside the building; nor place any antenna, awning or other projection on the exterior of the Demised Premises; nor take any other action which would constitute a nuisance or would disturb or endanger other tenants of the Shopping Center or unreasonably interfere with their use of their respective premises; nor do anything which would lend to injure the reputation of the Shopping Center. 7.4 Tenant shall take good care of the Demised Premises and keep the same free from waste at all times. Tenant shall keep the Demised Premises and sidewalks, service ways and loading areas adjacent to the premises neat, clean and free from dirt or rubbish at all times, and shall store all trash and garbage within the premises, arranging for the regular pick-up of such trash and garbage at Tenant's expense. Receiving and delivery of goods and merchandising and removal of garbage and trash shall be made only in the manner and areas prescribed by Landlord. Tenant shall not operate an incinerator or burn trash or garbage within the Shopping Center area. 7.5 Tenant shall maintain all display windows in a neat, attractive condition, and shall keep all display windows, exterior electric signs and exterior lighting under any canopy in front of the Demised Premises lighted from dusk until 11:00 PM every day, including Sundays and holidays. 7.6 Tenant shall include the address and identity of its business activities in the Demised Premises in all advertisements made by Tenant in which the address and identity of any similar local business activity of Tenant is mentioned. 7.7 Tenant shall procure at its sole expense any permits and licenses required for the transaction of business in the Demised Premises and otherwise comply with all applicable laws, ordinances, and governmental regulations. INITIALS LANDLORD TE T 8~ (Q7 Maintenance and Repair of Premises _~4f WR ARTICLE Vlll. 8.1 Landlord shall keep the foundation, the exterior walls (except plate glass; windows, doors, door closure devices and other exterior openings, window and door frames, molding, locks and hardware, special store fronts, lighting, heating, air conditioning, plumbing and other electrical, mechanical and electromotive installation, equipment and fixtures; signs, placards, decorations or advertising media of any type; and interior painting or other treatment of exterior walls) and roof of the Demised Premises in good repair. Landlord, however, shall not be required to make any repairs occasioned by the act or negligence of Tenant, its agents, employees, subtenants, licensees and concessionaires; and the provisions of the previous sentence are expressly recognized to be subject to the provisions of Article XV and Article XVI of this lease. In the event that the Demised Premises should become in need of repairs required to be made by Landlord hereunder. Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after receipt by Landlord of such written notice. an ense keep the premises free of insects, rodents, vermin and other pests and make all neede a and repla nts, including replacement of cracked or broken glass, except for repairs an acemei required to be m Landlord under the provisions of Section 8.1, Article XV and Articl . Without limiti the coverage of the pre sentence, it is understood that Tenant's responsibili erein include the rep and replacement of all lights , eating, air conditioning, plumbing an er electrical, mechanical a electromotive installation, equipment a lures and also include al repairs in ducts, conduits, pipes a wiring, and any sewer stoppage located in, u and above emised Premises. If any repairs required be made by Tenant hereunder are not made within after written notice delivered to Tenant by Landlo Landlord may at its option make such repairs w' iabili enant for any loss or damage which may re: to its stock or business by reason of suc airs; and Tenant sha to Landlord upon demand, as additioi rent hereunder, the cost of such irs plus interest at the maximum ctual rate which could legally charged in the event of a l such payment to Tenant in the state where the ised Premises are local (but in no event to e 1 1/2% per month), such interest to accrue continuously from ate of payment Landlord unt ayment by Tenant. At the expiration of this lease, Tenant shall surren a Demis Premi n good condition, excepting reasonable wear and tear and losses required to be restored by 11 Alterations ARTICLE IX. 9.1 Tenant shall not make any alterations, additions or improvements to the Demised Premises without the prior written consent of Landlord, except for the installation of unattached, movable trade fixtures which may be installed without drilling, cutting or otherwise defacing the premises. All alterations, additions, improvements and fixtures (other than Tenant's unattached, readily movable furniture and office equipment) which may be made or installed by either party upon the Demised Premises shall remain upon and be surrendered with the premises and become the property of Landlord at the termination of this lease, unless Landlord requests their removal in which event Tenant shall remove the same and restore the premises to their original condition at Tenants expense. 9.2 All construction work done by Tenant within the Demised Premises shall be performed in a good and workmanlike manner, in compliance with all governmental requirements, and in such manner as to cause a minimum of interference with other construction in progress and with the transaction of business in the Shopping Center. Tenant agrees to indemnify Landlord and hold Landlord harmless against any loss, liability or damage resulting from such work, and Tenant shall, if requested by Landlord, furnish bond or other security 4sal to Landlord against any such loss, liability or damage. Le Landlord's Right of Access: Use of Roof TC~+A^' J ARTICLE X. 10.1 Landlord shall have the right to enter upon the Demised Premises at any purpose of inspecting the same, or of making repairs to the Demised Premises, or of making repairs, alterations or additions to adjacent premises, or of showing the Demised Premises to prospective purchasers, lessees, and lenders. INITIALS LANDLORD TE , S Y „"r 70 10.2 Tenant will permit Landlord to place and maintain " For Rent" or " For Lease" signs on the Demised Premises during the last ninety days of the lease term, if being understood that such signs shall in no way affect Tenant's obligations pursuant to Section 7.3, Section 11.1 or any other provision of this lease. 10.3 Use of the roof above the Demised Premises is reserved to Landlord. Signs; Store Fronts ARTICLE XI. 11.1 Tenant shall not , without Landlord's prior written consent (a) make any changes to the store front or (b) install any exterior lighting, decorations, paintings, awnings, canopies or the like or (c) erect or install any signs, window or door lettering, placards, decorations or advertising media of any type which can be viewed from the exterior of the Demised Premises, excepting only dignified displays of customary type for its display windows. All signs, lettering, placards, decorations and advertising media shall conform in all respects to the sign criteria established by Landlord for the Shopping Center from time to time in the exercise of its sole discretion, and shall be subject to the prior written approval of Landlord as to construction, method of attachment, size, shape, height, lighting, color and general appearance. All signs shall be kept in good condition and in proper operating order at all times. Utilities ARTICLE XII. 12.1 Landlord agrees to cause to be provided and maintained the necessary mains, conduits and other facilities necessary to supply water, gas electricity, telephone service and sewerage service to the building. 12.2 Tenant shall promptly pay all charges for electricity, water, gas, telephone service, sewerage service and other utilities furnished to the Demised Premises. Landlord may, if it so elects, furnish one or more utility service(s) to Tenant, and in such event Tenant shall purchase the use of such services as are tendered by Landlord, and shall pay on demand as additional rental the rates established therefore by Landlord which shall not exceed the rates which would be charged for the same services if furnished directly by the local public utility companies. Landlord may at any time discontinue furnishing any such service without obligation to Tenant other than to connect the Demised Premises to the public utility, if any, furnishing such service. 12.3 Landlord shall not be liable for any interruption whatsoever in utility services not furnished by him, nor for interruptions in utility services furnished by him which are due to fir, accident, strike, acts of God or other causes beyond the control of Landlord or in order to make alterations, repairs or improvements. Indemnity and Public Liability Insurance ARTICLE XIII. 13.1 Landlord shall not be liable to Tenant or to Tenant's employees, agents, or visitors, or to any other person whomsoever, for any Injury on or damage to property on or about the Demised Premises or the Common Area caused by the negligence or misconduct of Tenant, Its employees, subtenants, licensees or concessionaires, or of any other person entering the Shopping Center under express or Implied invitation of Tenant, or arising out of the use of the premises by Tenant and the conduct of its business therein, or arising out of any breach or default by Tenant in the performance of its obligations hereunder; and Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from any loss, expense or claims arising out of such damage or injury. 13.2 Tenant shall procure and maintain throughout the term of this lease a policy or policies of insurance, at Its sole cost and expense, Insuring both Landlord and Tenant against all claims, demands or actions arising out of or in connection with Tenant's use or occupancy of the Demised Premises, or by the condition of the Demised Premises, the limits of such policy or policies to be in an amount not less than $500,000 in respect of Injuries to or death of any one person, and in an amount not less than $1,000,000 In respect of any one accident or disaster, and In an amount not less than $100,000 in respect of property damaged or destroyed, and to be written by Insurance companies satisfactory to Landlord. Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord at least ten days prior to cancellation of such Insurance. Such policies or duly executed certificates of insurance shall be promptly delivered to Landlord and renewals thereof as required shall be delivered to Landlord at least thirty days prior to the expiration of the respective INITIALS LANDLORD - TEN policy terms. If Tenant should fail to comply with the foregoing requirements relating to insurance, Landlord may obtain such insurance and Tenant shall pay to Landlord on demand as additional rent hereunder the premium cost thereof plus Interest at the maximum contractual rate (but In no event to exceed 1 1/2% per month) from the date of payment by Landlord until repaid by Tenant. Non-Liability for Certain Damages ARTICLE XIV. 14.1 Landlord and Landlord's agents and employees shall not be liable to Tenant for any injury to person or damage to property caused by the Demised Premises or other portions of the Shopping Center becoming out of repair or by defect or failure of any structural element of the Demised Premises or of any equipment, pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity or oil leaking, escaping or flowing into the Demised Premises (except where due to Landlord's willful failure to make repairs required to be made hereunder, after the expiration of a reasonable time after written notice to Landlord of the need for such repairs), nor shall Landlord be liable to Tenant for any loss or damage that may be occasioned by or through the acts of omissions of other tenants of the Shopping Center or of any other persons whomsoever, excepting only duly authorized employees and agents of Landlord. Damages by Casualty ARTICLE XV. 15.1 Tenant shall give immediate written notice to Landlord of any damage caused to the Demised Premises by fire or other casualty. 15.2 In the event that the Demised Premises shall be damaged or destroyed by fire or other casualty insurable under standard fire and extended coverage insurance and Landlord does not elect to terminate this lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Demised Premises. In the event (a) the building in which the Demised Premises are located shall be destroyed or substantially damaged by a casualty not covered by Landlord's Insurance or (b) such building shall be destroyed or rendered untenantable to an extent in excess of fifty percent of the first floor area by a casualty covered by Landlord's Insurance, or (c) the holder of a mortgage, deed of trust or other lien on the Demised Premises at the time of the casualty elects, pursuant to such mortgage, deed of trust or other lien, to require the use of all or parts of Landlord's insurance proceeds in satisfaction of all or part of the indebtedness secured by the mortgage, deed of trust or other lien, then Landlord may elect either to terminate this lease or to proceed to rebuild and repair the Demised Premises. Landlord shall give written notice to Tenant of such election within sixty days after the occurrence of such casualty and if it elects to rebuild and repair shall proceed to do so with reasonable diligence and at its sole cost and expense. 15.3 Landlord's obligation to rebuild and repair under this Article XV shall in any event be limited to restoring (a) the Demised Premises to substantially the condition in which the same existed prior to such casualty, exclusive of any alterations, additions, improvements, fixtures and equipment installed by Tenant, or (b) Landlord's Work, as described in Exhibit C, if any, to substantially the same condition in which the same existed prior to the casualty, as the case may be, Tenant agrees that promptly after completion of such work by Landlord, Tenant will proceed with reasonable diligence and at Tenant's sole cost and expense to restore, repair and replace all alterations, additions, improvements, fixtures, signs and equipment installed by Tenant or, if an Exhibit C is attached hereto, all items of Tenant's Work as described in Exhibit C, as the case may be. a < 15.4 Tenant agrees that during any period of reconstruction or repair of the Demised Premises it will continue the operation of its business within the Demised Premises to the extent practicable. During the period from the occurrence of the casualty until Landlord's repairs are completed, the minimum guaranteed rental shall be y reduced to such extent as may be fair and reasonable under the circumstances; however, there shall be no other ab~C5el=rofrNpNErrg~ "Of/4S P Ati'm15iFS R.a£pAMACaeO 9YFJRC oRareFtRµs°~` onAKf Eminent Domain OEe~£ rg+r lNfy A,c£ o.wsAAcF BlrffwA, - A,& Tf, ,+,w 'sr w,ehJBS .4, PRcPn'A-s / .j%t£ PAer4t Sf5 u skat Fstp_ fE~A~of's A~A'r°SEJ cA.+.o oT /Q1ATm.+A41r Bc`H/laEr P*YS TE,+,wf MAY FaEcr To 7gti.+✓argr -errs LCA-M ulr•+ 4+R, r+°TCE T° LA.+D~°RD• ARTICLE XVI. 16.1 If more than thirty (30) percent of the floor area of the Demised Premises should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, this lease shall terminate and the rent shall be abated during the unexpired portion of this lease, effective on the date physical possession is taken by the condemning authority. INITIALS LANDLORD TEN G 6(_ Ta- 16.2 If less than thirty (30) percent of the floor area of the Demised Premises should be taken as aforesaid, this lease shall not terminate. However, the minimum guaranteed rental (but not percentage rental) payable hereunder during the unexpired portion of this lease shall be reduced in proportion to the area taken, effective on the date physical possession is taken by the condemning authority. Following such partial taking, Landlord shall make all necessary repairs of alterations to the remaining premises or, if an Exhibit C is attached hereto, all necessary repairs or alterations within the scope of Landlord's Work as described in Exhibit C, as the case may be, required to make the remaining portions of the Demised Premises an architectural whole. 16.3 If any part of the Common Area should be taken as aforesaid, this lease shall not terminate, nor shall the rent payable hereunder be reduced, except that either Landlord or Tenant may terminate this lease if the area of the Common Area remaining following such taking plus any additional parking area provided by Landlord in reasonable proximity to the Shopping Center shall be less than seventy percent of the area of the Common Area immediately prior to the taking. Any election to terminate this lease in accordance with this provision shall be evidenced by written notice of termination delivered to the other party within thirty days after the date physical possession is taken by the condemning authority. 16.4 All compensation awarded for any taking (or the proceeds of private sale in lieu thereof the Demised Premises) of the Common Area shall be the property of Landlord, and Tenant hereby assigns its interest in any such award to Landlord provided, however, Landlord shall have no interest in any award made to Tenant for Tenant's moving and relocation expenses or for the loss of Tenant's fixtures and other tangible personal property if a separate award for such items are made to Tenant. Assignment and Subletting ARTICLE XVII. 17.1 Tenant shall not assign or in any manner transfer this lease or any estate or interest therein, or sublet the Demised Premises or any part thereof, or grant any license, concession or other right of occupancy of any portion of the Demised Premises without the prior written consent of Landlord. Consent by Landlord to one or more assignments or subletting shall not operate as a waiver of Landlord's rights as to any subsequent assignments and subletting. 17.2 If Tenant is a corporation and if at any time during the primary term of this lease or any renewal or extension thereof, the person or persons who own a majority of either the outstanding voting shares or all outstanding shares of capital stock of Tenant at the time of the execution of this lease cease to own a majority of such shares (except as the result of transfers by devise or descent), the loss of a majority of such shares shall be deemed as assignment of this lease by Tenant and therefore subject in all respects to the provisions of Section 17.1 above. The previous sentence shall not apply, however, if at the time of the execution of this lease the outstanding voting shares of capital stock of Tenant are listed on a recognized security exchange or over- the-counter market. 17.3 Notwithstanding any assignment or subletting, Tenant and any guarantor of Tenant's obligations under this lease shall at all times remain fully responsible and liable for the payment of the rent herein specified and for compliance with all of its other obligations under this lease (even if future assignments and subletting occur subsequent to the assignment of subletting by Tenant, and regardless of whether or not Tenant's approval has been obtained for such future assignments and subletting). Moreover, in the event that the rental due and payable by a sub lessee for a combination of the rental payable under such sublease plus any bonus or other consideration therefore or incident thereto exceeds the rental payable under this lease or if with respect to a permitted assignment, permitted license or other transfer by Tenant permitted by Landlord, the consideration payable to Tenant by the assignee, licensee or other transferee exceeds the rental payable under this lease, then Tenant shall be bound and obligated to pay Landlord all such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant from such sub lessee, assignee, licensee or other transferee, as the case may be. Finally, in any event of trust for Landlord, to be forwarded immediately to Landlord without offset or reduction of any kind; and upon election by Landlord such rentals shall be paid directly to Landlord as specified in Section 4.1 of this lease (to be applied as a credit and offset to Tenant's rental obligations). 17.4 Tenant shall not mortgage , pledge or otherwise encumber its interest in this lease or in the Demised Premises. INITIALS LANDLORD TE P -73 17.5 In the event of the transfer and assignment by Landlord of its interest in this lease and in the building containing the Demised Premises to a person expressly assuming Landlord's obligations under this lease, Landlord shall thereby be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of the Landlord for performance of such obligations. Any security given by Tenant to secure performance of Tenant's obligations hereunder may be assigned and transferred by landlord to such successor in interest, and Landlord shall thereby be discharged of any further obligation relating thereto. Property Taxes and Insurance tr a fixtures placed by Tenant in the Demised Premises. If any such taxes are levied against Land! 54 Lan rd's property and if Landlord elects to pay the same or if the assessed value of Landlord's pr e, increa d by inclusion of personal property and trade fixtures placed by Tenant in the Demised Pre Ises a Landlord ects to pay the taxes based on such increase, Tenant shall pay to Landlord upon dema that part such taxes r which Tenant is primarily liable hereunder. 18.2 Tenant Fees to pay its proportionate share of all taxes, assessments and governm tal charges of e ind and nature w tsoever (hereinafter collectively referred to as the "Taxes"), levied o ssessed against I hopping Center. ing each month of the term of this lease, Tenant shall make onthly escrow dept ith Landlord equal to 12 of its proportionate share of the Taxes on the Shopping C nter which will be due a i ~Tt ayable for that particula ear. Tenant authorizes Landlord to use the funds d osited by him with Landl( nder this Article XVIII, Se n 18.2 to pay the Taxes levied or assessed age' t the Shopping Center. Ea ax escrow Payment shall due and payable at the same time and in t same manner as the time a h anner of the payment of Mini m Guaranteed Rental as provided herei . The amount of the initial mdnt ax Escrow Payment will be that ount set out in Article I, Section (n) above. The initial monthly 1 scrow Payment is based upon Tena 's proportionate share of the a ated taxes on the Shopping Center he year in question, and the monthly Escrow Payment is subje to increase or decrease as determined andlord to reflect an accurate escrow of nant's estimated pro lonate share of the Taxes. The Tax Escr ayment account of Tenant shall be recon ' d annually. If t Tenant's total Tax Escrow Payments are le han Tenant's actual pro rata share of the Ta s on the S pping Center, Tenant shall pay to Landlord up emand the difference; if the total Tax Escrow ayment of Tenant are more than Tenant's actual pro n hare of the Taxes on the Shopping Center, Lan rd hall retain such excess and credit it to Tenant's 1 scrow Payment account. Tenant's proportionate sh of the Taxes on the Shopping Center shall be compul y multiplying the Taxes by a fraction, the numera o hich shall be the number of square feet of floor spa n the Demised Premises and the denominator which all be the number of square feet of all stores in hopping Center. 18.3 If Tenant should fail to pay any xes, assessments, or overnmental charges required to be paid Tenant hereunder, in addition to any er remedies provided he 'n, Landlord may, if it so elects, pay sr axes, assessments, and governme I charges. Any sums so paid b andlord shall be deemed to be so mr dditional rental owing by Tenan o Landlord and due and payable on demand as additional rental p r terest at the rate of ten perce 10%) per annum from the date of pa me by Landlord until repaid by Tenai 18.4 (a) If at any timed ng the term of this lease, the present method of lion shall be changed so that :u of the whole or any Kart of any taxes, assessments, levies or charges levied, ssessed or imposed on re state and the improv ,Onents thereon, there shall be levied, assessed or imposed Landlord a capital levy her tax directly o e rents received there from and/or a franchise tax, assessment, vy or charge measun i or based, in )Whole or in part, upon such rents or the present or any future builds or buildings on tl hopping Cen , then all such taxes, assessments, levies or charges, or the part thereof s measured or bas call be dee ed to be included within the term "Taxes" for the purposes thereof. (b) T ant may, alone or along with any other tenants of said building, at its or their sole costa expense, > or eir own name(s) dispute and contest any "Taxes" by appropriate proceedings diligently condu d in go i but only after Tenant and all other tenants, if any, joining with Tenant in such contest have depo ' ed w ndlord the amount so contested and unpaid, or their proportionate shares thereof as the case may be, hi ball he held by Landlord without obligation for interest until the termination of the proceedings, at which tim mount(s) deposited shall be app ie y an or o ntrofthe itnrrheld valid INITIALS LANDLORD TEN PAG jp• re of any excess shall be returned to Tenant. Tenant further agrees to pay to Landlord upon de d 'IN Te is share (as among all tenants who participated in the contest) of all court costs, interest penaws and ether ilities relating to such proceedings. Tenant hereby indemnifies and agrees f,- hold ha ess the Landlord m the against any cost, damage or expense (including attorneys' fees) in connection h any such proceedings. (c) Any payment be made pursuant to this Article XVIII with respect to the real esta tax year in which this lease commences or minates shall bear the same ratio to payment which would required to be made for the full tax year as that p of such tax year covered by the term of this lease bear o a full tax year. .,aT !k 18.5 Tenant agrees to pay h "Proportionate share of all Fire and Exten d Coverage Insurance charges of any kind and nature whatsoever reinafter collectively referred to as a "Insurance"), against the Shopping Center. During each month of the ter of this lease, Tenant shall m a monthly escrow deposit with Landlord equal to 1/12 of its proportionate share he Insurance on the S pping Center which will be due and payable for that particular year. Tenant authorizes dlord to use the rids deposited by him with Landlord under this Article XVIII, Section 18.5 to pay the Insuranc harged a ' at the Shopping Center. Each Insurance Escrow Payment shall be due and payable at the same e a 10 in the same manner at the time and manner of the payment of Minimum Guaranteed Rental as provi herein. The amount of the initial monthly Insurance Escrow Payment will be that amount set out in ' le , action 1.1 (m) above. The initial monthly Insurance Escrow Payment is based upon Tenant's pr ortionate re of the estimated Insurance on the Shopping Center for the year in question, and the mo ly Insurance E ow Payment is subject to increase or decrease as determined by Landlord to reflect a accurate escrow of ant's estimated proportionate share of the Insurance. The Insurance Escrow P ant account of Tenant shall reconciled annually. If the Tenant's total Insurance Escrow Payments are I than Tenant's actual pro rata shar f the Insurance on the Shopping Center, Tenant shall pay to L lord upon demand the difference; it the taI Insurance Escrow Payments of Tenant are more than fen s actual pro rata share of the Insurance on th hopping Center, Landlord shall retain such excess and c it it to Tenant's Insurance Escrow Payment account. nant's proportionate share of the Insurance on th hopping Center shall be computed by multiplying the I rance by a fraction, the numerator of whi shall be the number of square feet of floor space in the De i ad Premises and the denominator of ich shall be the number of square feet of all stores in the Shopping Cent 18.6 If nant should fail to pay any Fire and Extended Coverage Insurance charges require o be paid by Tena ereunder, in addition to any other remedies provided herein, Landlord may, if it so elects, p uch Fire an xtended Coverage Insurance. Any sums so paid by Landlord shall be deemed to be so much tional ntal owing by Tenant to Landlord and due and payable upon demand as additional rental plus interest e Default by Tenant and Remedies ARTICLE XIX. 19.1 The following events shall be deemed to be events of default by Tenant under this lease: (1) Tenant shall fail to pay any installments of rent or any other obligation hereunder involving the payment of money and such failure shall continue for a period of ten days after the date due. (2) Tenant shall fail to comply with any term, provision or covenant of this lease, other than as described in subsection (1) above, and shall not cure such failure within fifteen days after written notice thereof to Tenant. (3) Tenant or any guarantor of Tenant's obligation under this lease shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors. (4) Tenant or any guarantor of Tenant's obligations under this lease shall file a petition under any section or chapter of the National Bankruptcy Act as amended, or under any similar law or statute of the United States or any State thereof, or Tenant or any guarantor of Tenant's obligations under this lease shall be adjudged bankrupt or insolvent in proceedings filed against Tenant or any guarantor of Tenant's obligations under this lease hereunder. (5) A receiver or Trustee shall be appointed for the Demised Premises or for all or substantially all of the assets of Tenant or any guarantor of Tenant's obligation under this lease. (6) Tenant shall desert or attempt to remove, without the prior written consent of Landlord, all or a substantial value of Tenant's goods, wares, equipment, fixtures, furniture, or other personal property. (7) Tenant shall do or permit to be done anything which creates a lien upon the premises. (8) Tenant shall withhold rental as a demand factor against Landlord. INITIALS LANDLORD PA J~~/ g n -r Upon the occurrence of any such events of default, Landlord shall have the option to pursue either of the following alternative remedies: A. Without any notice or demand whatsoever, Landlord may take any one or more of the actions permissible at law to insure performance by Tenant of Tenant's covenants and obligations under this lease. In this regard, it is agreed that if Tenant deserts or vacates the Demised Premises, Landlord may enter upon and take possession of such premises in order to protect them from deterioration and continue to demand from Tenant the monthly rentals and other charges provided in this lease, without any obligation to relet, but that if Landlord does, at its sole discretion, elect to relet the Demised Premises, such action by Landlord shall not be deemed as an acceptance of Tenant's surrender of the Demised Premises unless Landlord expressly notifies Tenant of such acceptance in writing pursuant to subsection B of the Section 10.1, Tenant hereby acknowledging that Landlord shall otherwise be reletting as Tenant's agent and Tenant furthermore hereby agreeing to pay to Landlord on demand any deficiency that may arise between the monthly rentals and other charges provided in this lease and that actually collected by Landlord. It is further agreed in this regard that in the event of any default described in subsection (2) of the Section 19.1, Landlord shall have the right to enter upon the Demised Premises by force if necessary without being liable for prosecution or any claim for damages thereof, and do whatever tenant is obligated to do under the terms of this lease, and Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this lease, and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action. B. Landlord may terminate this lease by written notice to Tenant, in which event Tenant shall immediately surrender the Demised Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which Landlord may have for possession or arrearages in rent (including any interest which may have accrued pursuant to Section 4.6 of this lease), enter upon and take possession of the Demised Premises ~i71 and expel or remove Tenant and any other person who may be occupying said premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages therefore. T^,~ aAt-hem , I. N In addition, Tenant agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of any termination affected pursuant to this subsection B, said loss and damage to be determined by either of the following alternative measures of damages: (i) Until Landlord is able, through reasonable efforts, the nature of which efforts shall be at the sole discretion of Landlord, to relet the Demised Premises, Tenant shall pay to Landlord on or before the first day of each calendar month, the monthly rentals and other charges provided in this lease. After the Demised Premises have been relet by Landlord, Tenant shall pay to Landlord on the 20th day of each calendar month the difference between the monthly rentals and other charges provided in this lease for the preceding calendar month and that actually collected by Landlord for such month. If it is necessary for Landlord to bring suit in order to collect any deficiency, Landlord shall have a right to allow such deficiencies to accumulate and to bring an action on several or all of the accrued deficiencies at any one time. Any such suit shall not prejudice in any way the right of Landlord to bring a similar action for any subsequent deficiency or deficiencies. Any amount collected by Landlord from subsequent tenants for any calendar month, in excess of the monthly rentals and other charges provided in this lease, shall be credited to Tenant in reduction of Tenant's liability for any calendar month for which the amount collected by Landlord will be less than the monthly rentals and other charges provided in this lease; but Tenant shall have no right to such excess other than the above described credit. (ii) When Landlord desires, Landlord may demand a final settlement. Upon demand for a final settlement, Landlord shall have a right to, and Tenant hereby agrees to pay, the difference between the total of all monthly rentals and other charges provided in this lease for the remainder of the term and the reasonable rental value of the Demised Premises for such period, such difference to be discounted to present value at a rate equal to the rate of interest which is allowed by law, in the State designated by Section 27.10 of this lease, when the parties to a contract have not agreed on any particular rate of interest for, in the absence of such law, at the rate of ten percent per annum. INITIALS LANDLORD ;WT P If Landlord elects to exercise the remedy prescribed in subsection A above, this election shall in no way prejudice Landlord's right at any time thereafter to cancel said election in favor of the remedy prescribed in subsection B above, provided that at the time of such cancellation Tenant is still in default. Similarly, if Landlord elects to compute damages in the manner prescribed by subsection B (i) above, this election shall in no way prejudice Landlord's right at any time thereafter to demand a final settlement in accordance with subsection B (ii) above. Pursuit of any of the above remedies shall not preclude pursuit of any other remedies prescribed in other sections of this lease and any other remedies provided by law. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. (IT 14, as that term is used throughout subsections A and B of Section 19.1 above, there shall be added to the minims g nteed rental (as specified in Section 1.10) of this lease) a sum equal to the charges for maintenance of t Comm Area (as specified in Section 6.4 of this lease), the charges for taxes and insurance (as specified Article XV f this lease) because of gross sales during the two full calendar years immediately preceding t date Landlord i ' ' ted action pursuant to said subsections (or, if two full calendar years have not then el e to the correspondin action of all percentage rentals required to be paid because of gross sale ring t period commencing with a Commencement Date of this lease and concluding with the date o ich Landlc initiated such action). 19.3 It is further agreed that, in ad ' ' n to payments required pursuant to sub ions A and B of Section 19. above, Tenant shall compensate Landlo for all expenses incurred b dlord in repossession (including among other expenses, any increase in insu all expenses incurred by Landlord in rele replacements, advertisements and brokerage (including among other concessions, renewal e of Tenant's default including among other losse efforts, salaries and overhead attributable rights and remedies provided herein a nder we premiums caused a vacancy of the Demised Premises) ttin ncluding ng other expenses, repairs, remodeling fees), ssions granted to a new tenant upon reletting ptions os incurred by Landlord as a direct or indirect resul ~s adverse re 'on by Landlord's by Landlord's administrative otly or indirectly to Te is default) and Landlord's pursuing IN applicable law. 19.4 Landlord may restr " or enjoin any breach or threatened breach of any enant, duty or obligation Tenant herein contai without the necessity of proving the inadequacy of any le remedy or irreparal harm. The reme ' of Landlord hereunder shall be deemed cumulative and not exclusive ach other. 19.5 on account of any breach or default by Tenant in its obligations hereunder, Landlord sh mploy a ney to present, enforce or defend any of Landlord's rights or remedies hereunder, Tenant agrees to ay e 19.6 Landlord hereby acknowledges receipt from Tenant of the sum stated in Section 1.1 (j) above, to be applied to the first accruing installments of rent. Landlord further acknowledges receipt from Tenant of the sum stated in Section 1.1 (o) above to be held by Landlord without interest as security for the performance by Tenant of Tenant's covenants and obligations under this lease, it being expressly understood that such deposit may be co-mingled with Landlord's other funds and is not an advance payment of rental or a measure of Landlord's damages in case of default by Tenant. Upon the occurrence of any event of default by Tenant, Landlord may, from time to time without prejudice to any other remedy provided herein or provided by law, use such funds to the extent necessary to make good any arrears of rentals and other damage, injury, expense or liability caused to Landlord by such event of default, and Tenant shall pay to Landlord on demand the amount so applied in order to restore the security deposit to its original amount. If Tenant is not then in default hereunder, any remaining balance of such deposit shall be returned by Landlord to Tenant upon termination of this lease (subject to the provisions of Section 17.5 above). Landlord's Contractual Security Interest interest to secure secure oavment c INITIALS LANDLORD r-tl" may TEN T PA r. ~9.. Tenant, and Tenant of i mised Premises, and all proceeds there from, and such property shall not be removed without the copse La rd until all arrearages in rent as well as any and all other sums of money then due to Landl or become a to Landlord hereunder shah first have been paid and discharged and all the covenant greemen and conditio ereof have been fully complied with and performed by Tenant. Upon the occ ce of an eve of default by Ten Landlord may, in addition to any other remedies provided herein, e r upon the Demise Premises and take po ssion of any and all goods, wares, equipment, fixtures, furniture, improvements a ther personal property of Tenant situated on premises, without liability f trespass or conversion, and se a same at public or private sale, with ithout having such property at tt `NtTt sale, after giving Tenant reasonable ce of the time and place of a ublic sale or at the time after which ai private sale is to be made, at which sale t andlord or its assign ay purchase unless otherwise prohibited I law. Unless otherwise provided by law, and out inten ' to exclude any other manner of giving Tena reasonable notice, the requirement of reasonable shall be met if such notice is given in the manrn prescribed in this lease at least seven days before ti of sale. Any sale made pursuant to the provisions the paragraph shall be deemed to have bee public sale ducted in a commercially reasonable manner held in the above-described premises or ere the property is to d after the time, place and method of sa and a general description of the s of property to be sold hav een advertised in a daily newspap, published in the county in whic a property is located, for five consecu days before the date of the sal The proceeds from any s disposition, less any and all expenses connecte ith the taking of possessio holding and selling of property (including reasonable attorney's fees and legal ex e), shall be applied as credit against the ' ebtedness secured by the security interest granted in this paragrap . ny surplus shall t paid to Tena r as otherwise required by law; the Tenant shall pay any deficiencies forthwith. on request t Landlor enant agrees to execute and deliver to Landlord a financing statement in a form suffix to perfe the curity interest of Landlord in the aforementioned property and proceeds thereof under the provisi f tt niform Commercial Code (or corresponding state statute or states) in force in the State in which the prope Holding Over ARTICLE XXI. 21.1 In the event Tenant remains in possession of the Demised Premises after the expiration of this lease and without the execution of a new lease, it shall be deemed to be occupying said premises as a tenant from month to month at a rental equal to the rental (including any percentage rental) herein provided plus fifty percent of such amount and otherwise subject to all the conditions, provisions and obligations of this lease insofar as the same are applicable to a month to month tenancy. Holdover rental shall be 150% of minimum guaranteed rental. Subordination; Attornment ARTICLE XXII. 22.1 Tenant accepts this lease subject and subordinate to any mortgage, deed of trust or other lien presently existing or hereafter placed upon the Demised Premises or the Shopping Center as a whole, and to any renewals and extensions thereof. Tenant agrees that any such mortgagee shall have the right at any time to subordinate such mortgage, deed of trust or other lien to this lease; provided, however, notwithstanding that this lease may be (or made to be) superior to mortgage, deed of trust or other lien, the provisions of mortgage, deed of trust or other lien relative to the rights of the mortgagee with respect to proceeds arising from an eminent domain (including a voluntary conveyance by Landlord) and/or arising from insurance payable by reason of damage to or destruction of the Demised Premises shall be prior and superior to any contrary provisions contained in this instrument with respect to the payment or usage thereof Landlord is hereby irrevocably vested with full power and authority to subordinate this lease to any mortgage deed of trust or other lien hereafter placed upon the Demised Premises or the Shopping Center as a whole, and Tenant agrees upon demand to execute such further instruments subordinating this lease as Landlord may request; provided, however that upon Tenant's written request and notice to Landlord, Landlord shall use good faith efforts to obtain from any such mortgagee a written agreement that the rights of Tenant shall remain in full force and effect during the term of this lease so long as tenant shall continue to recognize and perform all of the covenants and conditions of this lease. INITIALS LANDLORD TEN NT k P ~atT1& 22.2 At any time when the holder of an outstanding mortgage, deed of trust or other lien covering Landlord's erest in the Demised Premises has given Tenant written notice of its interest in this lease, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or other lien shall have received written notice of such default and a reasonable _tif> time for curing such default shall thereafter have elapsed. ARTICLE XXII]723.-"R-t#~-evntttthat Landlord shall or ani rehanfs /Cssociation composed of ten in the Shopping Center, Tenant agreees XMt=it-M ' nd maintain membership in such association, will such dues and as Rts as ay be fixed and determines rrom tifn a by the association and cor»ptywi such other bylaws, rules and regulations as may be adopted from time to time lion cant's Energies ARTICLE XXIV. 24.1 Tenant acknowledges that Tenant's monetary contribution to Landlord (in the forte~ Tent s and Tenants general contribution to commerce within the shopping center (also imports nndlor determin to execute this lease with tenant) will be substantially reduced if durin athc rm of this lea: either tenant or a on, firm or corporation, directly or indirectly eontrollin olled by or under Comm control with tenant shall Ir r indirectly operate, manage, condu ve any interest in any establishm4 within commercial proximity of the s center. Accorrd'L~g , enant agrees that during the term of this lea neither tenant nor any person, firm or co , it ly or indirectly controlling, controlled by or unr common control with Tenant (and also ' event na is a corporation, if any officer or director thereof shareholder owning more than rcent (10%) of the outsta ' took thereof or parent subsidiary or relat or affiliated corpora' all directly or indirectly operate, manage uct or have any interest in a commercial ishment within three miles of the Shopping Center, exce t any such commerc e . ment existing at the date of this lease may continue to be operated, managed, co ed and owned the same manner as on the date of this lease, provided there is no change in the size or trade of su rnm -inl nefnhliehmen/ Notices ARTICLE XXV. 25.1 Wherever any notice is required or permitted hereunder such notice shall be in writing. Any notice or document required or permitted to be delivered hereunder shall be deemed to be delivered when actually received by the designated addressee or, if earlier and regardless of whether actually received or not, when deposited in the United States Mail, postage prepaid, Certified Mail, Return Receipt Requested, addressed to the parties hereto at the respective addresses set out in Section 1.1 above (or at Landlord's option, to Tenant at the Demised Premises), or at such other addresses as they have theretofore specified by written notice. 25.2 If and when included within the term "Landlord" as used in this instrument there are more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such notice specifying some individual at some specific address for the receipt of notices and payments to the Landlord; if and when included within the term "Tenant", as used in this instrument there are more than one person, firm or corporation, all shall jointly arrange among themselves for their joint execution of such a notice specifying some individual at some specific address for the receipt of notices and payments to Tenant. All parties included within the terms "Landlord" and "Tenant", respectively, shall be bound by notices and payments given in accordance with the provisions of this Article to the same effect as if each had received such notice or payment. INITIALS LANDLORD 7TENA~ ` /PPAGGEE 14 Regulations ARTICLE XXVI. 26.1 Landlord and Tenant acknowledge that there are in effect federal, state, county and. municipal laws, orders, rules, directives and regulations (collectively referred to hereinafter as the "Regulations") and that additional Regulations may hereafter be enacted or go into effect, relating to or affecting the Demised Premises or the Shopping Center, and concerning the impact on the environment of construction, land use, maintenance and operation of structures, and conduct of business. Subject to theexpress rights granted to Tenant under the terms of the lease, Tenant will not cause, or permit to be caused, any act or practice, by negligence, omission, or otherwise, that would adversely affect the environment, or do anything to permit anything to be done that would violate any of said laws, regulations, or guidelines. Moreover, Tenant shall have no claim against Landlord by reason of any changes Landlord may make in the Shopping Center or the Demised Premises pursuant to said Regulations or any charges imposed upon customers or other invitees pursuant to same. 26.2 If by reason of any federal, state, county or municipal law, order, rule, directive or regulation (collectively referred to hereinafter as the "Regulations"), the payment to, or collection by, Landlord of any rental or other charge (collectively referred to hereinafter as "Lease Payments") payable by Tenant to Landlord pursuant to the provisions of this lease is in excess of the amount (the "Maximum Charge") permitted therefore by the Regulations, then Tenant, during the period (the "Freeze Period") when the Regulations shall be in force and effect shall not be required to pay, nor shall Landlord be permitted to collect any sum in excess of the Maximum Charge. Upon the earlier of (i) the expiration of the Freeze Period, or (ii) the issuance of a final order or judgment of a court of competent jurisdiction declaring the Regulations to be invalid or not applicable to the provisions of this lease, Tenant, to the extent not then prescribed by law, and commencing with the first day of the month immediately following shall pay to Landlord as additional rental, in equal monthly installments during the balance of the term of this lease, a sum equal to the cumulative difference between the Maximum Charges and the Lease Payments during the Freeze Period. If any provisions of this section, or the application thereof, shall to any extent be declared to be invalid and unenforceable, the same shall not be deemed to affect any of the other provisions of this section or of this lease, all of which shall be deemed valid and enforceable to the fullest extent permitted by law. Miscellaneous ARTICLE XXVII. 27.1 Nothing herein contained shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant. 27.2 Tenant shall not for any reason withhold or reduce Tenant's required payments of rentals and other charges provided in this lease, it being agreed that the obligations of Landlord hereunder are independent of Tenant's obligations except as may be otherwise expressly provided. In this regard it is specifically understood and agreed that in the event Landlord commences any proceedings against Tenant for non-payment of rentals or any other sum due and payable by Tenant hereunder, Tenant will not interpose any count-claim or other claim against Landlord of whatever nature or description in any such proceedings and in the event that Tenant interposes any such counter-claim or other claim against Landlord in such proceedings, Landlord and Tenant stipulate and agree that, in addition to any other lawful remedy of Landlord, upon motion of Landlord, such count- claim or other claim asserted by Tenant shall be severed out of the proceedings instituted by Landlord and the proceedings instituted by Landlord may proceed to final judgment separately and apart from and without consolidation with or reference to the status of such count-claim or any other claim asserted by Tenant. 27.3 The liability of Landlord to Tenant for any default by Landlord under the terms of this lease be limited to the proceeds of sale on execution of the interest of Landlord in the Demised Premises; and Landlord shall not be personally liable for any deficiency, except that Landlord shall, subject to the provisions of Section 17.5 hereof, remain personally liable to account to Tenant for any security deposited hereunder. This clause shall not be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder, which do not involve the personal liability of Landlord. T INITIALS LANDLO XGf9)' 27.4 Except as may be otherwise herein provided, in all circumstances under this lease where prior consent or permission of one party ("first party"), whether it be Landlord or Tenant, is required before the other party ("second party") is authorized to take any particular type of action. the matter of whether to grant such consent or permission shall be within the sole and exclusive judgment and discretion of the first party, and it shall not constitute any nature of breach by the first party hereunder or any defense to the performance of any covenant, duty or obligation of the second party hereunder that the first party delayed or withheld the granting of such consent or permission, whether or not the delay or withholding of such consent or permission was, in the opinion of the second parry, prudent or reasonable or based on good cause. 27.5 One or more waivers of any covenant, term or condition of this lease by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. 27.6 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 strike, 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 the reasonable control of Landlord. 27.7 Tenant agrees that it will from time to time upon request by Landlord execute and deliver to Landlord a statement in recordable form certifying that this lease is unmodified and in full force and effect (if there have been modifications, that the same is in full force and effect as so modified). 27.8 If this lease is in fact a sublease, Tenant accepts this lease subject to all of the terms and conditions of the underlying lease under which Landlord holds the Shopping Center as lessee. Tenant covenants that it will do no act or thing which would constitute a violation by Landlord of his obligation under such underlying lease; provided, however, that Tenant's agreement in this regard is premised on Landlord's assurances to the effect that the terms of this lease do not violate such underlying lease. 27.9 The laws of the State in which the Demised Premises are located shall govern the interpretation, validity, performance and enforcement of this lease. If any provision of this lease should be held to be invalid or unenforceable the validity and enforceability of the remaining provisions of this lease shall not be affected thereby. Venue for any action under this lease shall be the county in which rentals are due pursuant to Section 4.1 and Section 1.1 of this lease. 27.10 The captions used herein are for convenience only and do not limit or amplify the provisions hereof. 27.11 Whenever herein the singular number is used, the same shall include the plural, and words of any gender shall include each other gender. 27.12 The terms, provisions and covenants contained in this lease shall apply to, inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors or assigns in interest and legal representatives except as otherwise herein expressly provided. 27.13 This lease contains the entire agreement between the parties, and no agreement shall be effective to change, modify or terminate this lease in whole or in part unless such is in writing and duly signed by the party against whom enforcement of such change, modification or termination is sought. Landlord and Tenant hereby acknowledge that they are not relying on any representation or promise of the other, or of the Agent or Cooperating Agent, except as may be expressly set forth in this lease or the EXHIBITS attached hereto. INITIALS LANDLORD TEN T P Special Conditions ARTICLE XXVIII 28.1 Special Conditions. A) This lease contains the following Exhibits attached hereto and made a part hereof: EXHIBITS "A, B, C, E, F" B) It is understood that this lease shall have an initial term of SIX MONTHS and then may continue on a month to month basis until terminated by either party with 30 days prior written notice. C) Landlord shall make any necessary repairs and maintenance to EXISTING lighting, electrical, plumbing, and HVAC during this Lease. D) Tenant shall pay for separately metered utilities and any janitorial services. EXECUTED as of the date hereinabove stated. ATTEST or WITNESS ATTEST or WITNESS AGENT: THE PINNACLE PROPERTY COMPANY. INC. BY: Z • `~`rt'~~ COOPERATING AGENT: LANDLORD LANDLORD: PINEL. L.P. BY: PFE. INC. T'S GENERAL PARTNER BY: NAME. KEITH W. FINLEY TITLE: PRESIDENT TENANT TENANT: BY: BY: - INITIALS LANDLORD T~ PAGE 17 BE i=i m 0 FR m z - ~w n~ EXHIBIT A ~ e a Q p~ i~ W M a x I I 4h w N 9z go $ NO C. ea o c c ' --f ~ jP~ fV~~LIQP~°5 4 x Ot ~ V 0 4 EXHIBIT "B" LEGAL DESCRIPTION Being all that certain tract or parcel of land lying and being situated in the Richard Carter League, A-B, Brazos County, Texas, and being all of that 12.232 acre tract of land called Lot Two (2), of OAK VILLAGE SUBDIVISION, PHASE FOUR, as recorded in Volume 648, page 237 of the Official Records of Brazos County, Texas, and more particularly described by metes and bounds as follows: BEGINNING at the intersection of the north right-of-way line of Carter Creek Parkway and the east right- of-way line of East 29th Street; THENCE N 16° 02' 00" W along the east right-of-way line of East 29 ° Street, same being the west line of the above mentioned 5.285 acre tract and the 12.232 acre tract for a distance of 1140.06 feet and comer, said corner also being in the southwest line of The Oaks, First Installment, as recorded in Volume 266, page 219; THENCE S 82° 52'02"E for a distance of 101.63 feet and corner; THENCE S 64° 27' 08" E for a distance of 799.01 feet and corner in the said southwest line of The Oaks Addition; THENCE S 25° 32' 52" W for a distance of 50.00 feet along the east side of the said 12.232 acre tract and comer; THENCE S 16° 02' 00" E for a distance of 319.96 feet and corner at the north corner of a 1.663 acre tract called Lot 1 of Oak Village Subdivision, Phase III; THENCE S 73° 58'00" W for a distance of 290.00 feet and corner; THENCE S 16° 02' 00" E for a distance of 237.42 feet and corner, said corner also being in the north right-of-way line of Carter Creek Parkway; THENCE S 73° 58' 00" W for a distance of 342.93 feet to the Point of Curvature of a curve to the right; THENCE 39.27 feet in a northwesterly direction along the are of a curve having a central angle of 901 00' 00", a radius of 25.00 feet, a tangent of 25.00 feet and a long chord bearing N 61° 02' 00" W for a distance of 35.36 feet to the POINT OF BEGINNING, and containing 12.232 acres of land, more or less. INITIAL LANDLORDdTENANT 8S g4 EXHIBIT "C" CONSRUCTION WORK TENANT ACCEPTS DEMISED PREMISES IN "AS IS" CONDITION. INITIALS LANDLORD&TENANT EXHIBIT "E" RULES AND REGULATIONS The Tenant agrees to abide by the following rules and regulations: 1. The sidewalks, roadways, and other public portions in the shopping center shall be used by the Tenant for the purpose solely of ingress and egress to and from the premises so demised to the Tenant. Tenant and its employees and representatives shall not park directly in front of any of the leasable areas in the shopping center, including their own leased premises. Landlord has the right to make changes in the parking procedures and guidelines from time to time, to benefit the shopping center, in Landlord's sole opinion. 2. All waste paper, refuse, and garbage shall be deposited by Tenant only in those containers provided by Landlord. 3. The Tenant shall keep the exterior and interior portions of the leased premises, to include all windows, doors, and all other glass, plate fixtures, and trim in a clean condition. The Tenant shall keep the display windows in the leased premises in a neat and professional arrangement. No signs or other materials are to be placed directly on the display windows, to include any type of security system or protective bars, without the approval of the Landlord. No improvements, additions, or materials of any kind are permitted to be placed on the outside of any of the leased premises by Tenant. 4. The Tenant shall not keep or permit to be kept on the premises any flammable or combustible fluid, chemical, or explosive material of any kind. 5. The Tenant shall not hold any auction, fire, or bankruptcy sale in the Demised Premises. 6. The Tenant shall conduct their business in an orderly manner in the best interests of the shopping center. The Tenant shall not permit noises from the use of any radios, televisions, loudspeakers, talking machines, phonographs, or other instruments to reach outside the premises, which will, in the judgment of the Landlord, interfere in any way with other Tenants in the shopping center. 7. The Tenant shall not burn any trash or garbage of any kind in or about the leased premises, or on the grounds of the shopping center. 8. The plumbing facilities shall be used for the purpose of which they have been construed, and no foreign substance of any kind shall be thrown therein. The expense of any breakage, stoppage, or damage resulting from a violation of this provision caused by any Tenant, its employees, agents, or invitees shall be borne by such Tenant. 9. The Landlord reserves the right to amend, rescind, or waive any of the rules and regulations listed above, and further to make such other reasonable rules and regulations as may from time to time seem necessary or desirable for the best interests of the Landlord and of the Tenant. Any such other and further rules and regulations shall be binding upon the Tenant with the same force and effect as if they had been set forth herein at the time of the execution of the within Lease Agreement. 10. The Landlord reserves further the right to control and operate the public portions of the shopping center in such manner as the Landlord deems necessary or desirable for the best interests of the shopping center and of the Tenants, and for the protection of the buildings and other property in the shopping center. The Landlord, however, shall not be liable to any Tenant for any damages arising out of such control and operation. INITIALS LANDLORD=b "'ANT iso btP EXHIBIT "F" SIGN CRITERIA These criteria have been established for the purpose of assuring an outstanding shopping center, and for the mutual benefit of all tenants. Conformance will be strictly enforced and any installed non-conforming or approved signs must be brought into conformance at expense of Tenant. All signs will comply with the following: l.Painted lettering will not be permitted. 2.Flashing, moving, or audible signs will not be permitted. All electrical signs will bear the UL label, and their installation must comply with all local building and electrical codes. 3.No exposed tubing or raceways will be permitted. 4.All cabinets, conduits, conductors, transformers, and other equipment will be concealed. 5.Electrical service to all signs will be on Tenant's meters. 6. Signs will be permitted only upon the graphic sign band as designed by the Shopping Center representative and as shown on the approved improvement plans. 7.All signs may be placed upon and within the graphic band and the letters thereon will be electrically lighted and will not extend more than four (4) inches in front of the face of such graphic sign band. 8. Wording will be limited to the trade name of the store and the maximum length of the lettering will not exceed seventy- five percent (751/6) of the horizontal storefront dimension. 9.All signs will be internally lighted, plastic face, metal trim cap, and pin mounted individual letters. IO.AII signs will use maximum illumination lamps. 1 l.All signs, cans, plastic faces, and trim caps are to be of a color and script approved by the Landlord. 12.Landlord will review and either approve or disapprove all sign shop drawings prior to construction and/or installation. INITIALS _~~LANDLORD _4 TENANT ~8 97 STATE OF TEXAS COUNTY OF BRAZOS Contract for Juvenile Services Community Coalition (JSCC) and TAMU Challenge Works Program The BRAZOS COUNTY JUVENILE SERVICES DEPARTMENT, hereinafter referred to as SERVICE AGENCY and TAMU Challenge Works Program, hereinafter called SERVICE PROVIDER, by this agreement and in consideration of the mutual promises set forth below, have agreed as follows: A. The SERVICE PROVIDER will provide the following services: Challenge Works Program • Provide a minimum of seven workshops/one workshop for each phase $750.00/ workshop • 6 hours for each workshop B. Payment will be made in the form of a check issued by the Brazos County Treasurer's Office no later than 30 days from receipt of original billing. Brazos County will not accept copies or faxed invoices. The original invoice is required for payment. No special payment exceptions will be made. Please do not call for status or payment unless past the 30 day time period. All billing invoices shall be addressed as follows: Brazos County Juvenile Services Department 1904 West Highway 21 Bryan, Texas 77803 C. Each billing shall contain the name of the client or clients for whom payment is being requested, a brief description of services provided, date services were rendered, and the rate at which services have been billed. D. The SERVICE PROVIDER shall comply with all applicable licensing and certification requirements. Failure to comply with this requirement will be treated as a default. Copies of all applicable licensing and certification requirements shall be provided to the SERVICE AGENCY. The SERVICE PROVIDER shall adhere to all applicable state and federal laws and regulations pertinent to the subcontractor's provision of services to the SERVICE AGENCY. E. The SERVICE PROVIDER shall disclose any pending or initiated criminal or governmental investigations related to SERVICE PROVIDER to the SERVICE AGENCY. F. The SERVICE PROVIDER shall be required to provide certification of eligibility to receive state funds as required by the Texas Family Code Section 231.006. The SERVICE AGENCY shall provide the SERVICE PROVIDER with the "Affidavit of Eligibility to Receive State Funds" form, which shall be completed by the SERVICE PROVIDER and mailed to the SERVICE AGENCY. G. The SERVICE AGENCY shall notify the SERVICE PROVIDER when state funds are used to pay for services. The SERVICE PROVIDER shall be required to account separately for the receipt and expenditure of state funds received from the SERVICE AGENCY. The SERVICE PROVIDER shall use Generally Accepted Accounting Principles in accounting for funds. 1. The SERVICE PROVIDER receiving whole or partial payment with any state grant funds received from the Commission shall retain all applicable records for a minimum of three years or until any pending audits and all questions arising therefrom have been resolved and shall make available for the Commission inspection, all contractual agreements with SERVICE PROVIDER subcontractors. J. The SERVICE PROVIDER contract funded in whole or in part with grant funds shall be subject to termination without penalty, either in whole or in part, if funds are not available or are not appropriated by the Texas Legislature. K. The SERVICE PROVIDER shall be monitored at least twice during the fiscal year for programmatic and financial compliance. The purpose of the monitoring is to ensure performance of and compliance with contractual provisions between the SERVICE AGENCY and SERVICE PROVIDER in accordance with the Private Service Provider Contract Requirements. Z L. In the event of a default of the SERVICE PROVIDER, the SERVICE AGENCY may cancel or suspend the agreement. M. The SERVICE AGENCY is responsible for monitoring the SERVICE PROVIDER and the exercise of reasonable care to enforce all terms and conditions of the agreement. N. No officer, member or employee of Brazos County Juvenile Services, and no member of its governing body, and no other public official of the governing body of the locality or localities in which the services is situated or being carried out who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this agreement shall participate in any decision relating to this agreement which affects his personal interest or have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. 0. Termination for cause shall be based upon contingencies as follows: (a) If the SERVICE PROVIDER fails to provide the services called for in this contract within the specified term herein or extension thereof; or (b) If the SERVICE PROVIDER fails to perform any other provisions of this contract, or so fails to perform the services as to endanger performance of this contract in accordance with its terms, and in either of these two circumstances does not correct such failure within a period of 10 days ( or such extensions as authorized by the SERVICE AGENCY in writing) after receiving notice of default. (c) This contact shall not be terminated for failure to perform the contract arising out of causes beyond the control and without fault or negligence of the SERVICE PROVIDER. (d) The decision of the termination of the SERVICE AGENCY shall be final and conclusive unless within 60 days from the date of receipt of a written copy of the decision the SERVICE PROVIDER mails or otherwise furnishes to the SERVICE AGENCY a written appeal addressed to the Brazos County Juvenile Board. The decision of the Juvenile Board shall be final and conclusive absent a showing of fraud, caprice, arbitrariness or gross error implying bad faith in which case suit may be brought in some court of competent jurisdiction. (e) Either party may terminate this agreement by giving thirty (30) days written notice to the other party hereto of the intention to terminate. (f) In the event of contract termination the SERVICE AGENCY shall pay to the SERVICE PROVIDER the amounts for completed services not yet paid for. P. In any legal action arising under this agreement, the laws of Texas shall apply and venue shall be in Brazos County. Q. The SERVICE AGENCY will not discriminate against any application for The Mentor Program because of race, color, religion, sex, or national origin. The SERVICE PROVIDER, by the same token, must ensure that program participants may not be refused acceptance therein, because of race, color, religion, sex, or national origin, unless professional evaluations indicate certain and explicit conditions exist for special programs. R. The agreement period shall be from October 1, 2006 through September 31, 2007. Randy Sims.,CountyTudge and Brazos C ntv Juvenile Chairman Juvenile Services Department 10bq L", Date Icy -f 146 Date 88 g? SERVICE PROVIDER TAMU Challenge Wo c Program Program Coordinator Printed name of Program Coordinator lo>>D Date J ~•F 3. "A h ,~-1)9(a) CONTRACT FOR RESIDENTIAL SERVICES /t BRAZOS COUNTY JUVENILE PROBATION DEPARTMENT FY 2007 THE STATE OF TEXAS COUNTY OF CAMERON CONTRACT FOR RESIDENTIAL SERVICES In accordance with the provisions set forth herein, this agreement is made this day between Cameron County Juvenile Department/Amador R. Rodriguez Juvenile Boot Camp (hereafter, "CCJD/ARRJBC"), and Brazos County Juvenile Probation Department (hereafter, CONTRACTOR), for the purpose of providing residential treatment services for adolescents, and to protect the well being of the child and enhance the child's functional abilities in a substitute care setting by providing the following services, as appropriate: WHEREAS, CCJD/ARRJBC operates and manages a RESIDENTIAL PLACEMENT CENTER which has been duly inspected and certified as being suitable for the detention of juveniles by the Cameron County Juvenile Board; WHEREAS, the Cameron County Juvenile Board has approved the program, policies and procedures under which CCJD/ARRJBC manages the facility; NOW, THEREFORE, the parties agree as follows: 1. To provide those juveniles housed in the RESIDENTIAL PLACEMENT CENTER operated by the CCJD/ARRJBC room, board, and 24 hour daily supervision and approved educational program, recreational facgft % and counseling. Such space and service shall be provided by CCJD/ARRJBC to CONTRACTOR on a space available basis. CCJD/ARRJBC and CONTRACTORagreethatexceptin emergency situations, CCJD/ARRJBC will give CONTRACTOR forty-eight (48) hours notice before terminating a juvenile. In an emergency situation, CCJD/ARRJBC will notify CONTRACTOR within twelve (12) hours of the juvenile's expected termination from the RESIDENTIAL PLACEMENT CENTER. 2. Medical: CONTRACTOR agrees to be responsiblefor payrnentfor medical care to the juveniles and to pay for emergency examinations, treatments, and hospitalization in the event the parent of the child and/or the child's medical insurance does not cover the cost. CCJD/ARRJBC shall notify CONTRACTOR of any medical emergency or condition requiring medical care within one (1) regular working day of its occurrence. 3. Fees: For services rendered under this Agreement CONTRACTOR shall pay the sum of SIXTY-FIVE DOLLARS ($65.00) per day per child for each day the CONTRACTOR has juveniles in the ARRJBC. Charges will include the day of admittance, regardless of hour of admittance; plus the number of days until released, including day of release, regardless of hour- 4. Payment: Payment shall be made monthly within thirty (30) days after receipt by CONTRACTOR of CCJD/ARRJBC monthly invoicing. Payment shall be made to Cameron Cowdy Juvenile Probation Departmeg, PO Barr 1690, San Benito, TK 78586 2 5. Conditions for placement When a juvenile is transported to the ARRJBC operated by CCJD, the officer effectuating the transfer should have the following with him: (1) One copy of the signed Dispositional Order with the conditions ordering the child into placement; and (2) Parents' notification of child's whereabouts. 6. Transportation: CCJD/ARRJBC shall provide transportation to and from CONTRACTOR's facility to ARRJBC. Times and dates will coordinated by both agencies. 7. Operation of the Program will be in compliance with all applicable standards for secure post adjudication as promulgated by the Texas Juvenile Probation Commission (TJPC). 8. No mechanical restraints will be used on a child placed by the CONTRACTOR, except with prior written authorization from a physician in life threatening situations and except when necessary and in accordance with applicable TJPC standards. 9. CONTRACTOR may examine and evaluate the services and the records maintained by CCJD/ARRJBC under this contract; and CCJD/ARRJBC will furnish such information relating to these services and records as may be requested by CONTRACTOR, including but not limited to all clinical and fiscal information and the results of any and all audits conducted by TJPC, relating to youth referred under this Contract. 10. Confidentiality and Indemnification In consideration of CCJD/ARRJBC and/or its representatives or agents agreeing to provide access to information or records pertaining to a juvenile placed in the BOOT CAMP by CONTRACTOR CONTRACTOR agrees to indemnify and hold harmless CCJD/ARRJBC for any damages and/or claims, including, butnot limited to attorney's fees incurred in the event that any breach of confidentiality occurs as a result of CCJD/ARRJBC providing the information or records to CONTRACTOR. 11. CCJD/ARRJBC accepts, as the application for admission, The State of Texas Common Application for Placement of Children in Residential care (form 2087) for placement of CONTRACTORS children. 12. CCJD/ARRJBC will provide all services in a manner which safeguards the health, welfare and safety of the children, to the maximum extent possible, and in the least restrictive setting possible. 13. CCJD/ARRJBC will submit to CONTRACTOR at the end of each month a bill for services, which includes the following information for each youth referred to and served that month under this contract the youth's name; the program to which the 3 00 00 , ~3 youth was admitted; dates that the youth was served; a description of the services provided; the amount of funds for which such youth is eligible from other funding sources (if applicable); and the amount of such funds collected by the Service Agency. 14. CCJD/ARRJBC shall identify goals and outputs and document measurable outcome which relate to program objectives. 15. Under Section 231.006, Family Code, the vendor or applicant certifies that the individual or business entity named in this contract bid, or application is not ineligible to receive the payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate. 16. CCJD/ARRJBC shall adhere to all applicable state and federal laws and regulations pertinent to the CONTRACTORS' provision of services. 17. CCJD/ARRJBC shall account separately for the receiptand expenditure of any and all funds received under this contract. 18. CCJD/ARRJBC shall maintain financial, programmatic, and supporting documents, statistical records, inventories of non-expendable property acquired and other records pertinent to claims submitted during the contract period for minimum of three years. If any litigation, claim, or audit involving these records begins before the three-year period expires, the Service Agency will keep the records and documents for no less than three years and 90 days and until all litigation, claims or audit findings are resolved. The case is considered resolved when a final order is issued in litigation, or a written agreement is entered in between the CONTRACTOR and CCJD/ARRJBC. 'Contractperiod" means the beginning date through the ending date specified in the original eon#ract. Contract extensions are considered to be separate contract periods. 19. If a youth makes an unauthorized departure from CCJD/ARRJBC, the CONTRACTOR shall be notified immediately. If the youth returns to ARRJBC within 10 days or prior to the last billing day of the month, whichever shall occur first, ARRJBC shall receive payment for those days the youth was absent from ARRJBC, but not to exceed ten days' payment 20. The term of this Contract shall commence on September 1, 2006 and shall end on August 31, 2007. 21. Either party may cancel this Contact for any reason, by providing written notice to the other party at least thirty (30) days prior to the cancellation date. 22. If CCJD/ARRJBC fails to provide wrvkm according to the provisions of this contract, the CONTRACTOR may, upon written notice ofdefault to CCJII/ARRJBC, terminate all or any part of the contract. Termination is not necessarily an exehrsive remedy, but will be in addition to any other rights and remedies provided by law or under this contract. ~D q4 23. This Contract may not be changed, modified or waived in whole or in part, except where done in writing signed by all parties hereto. 24. This Contract shall be construed under the laws of the State of Texas, and is performable in Cameron County Texas. 25. This Contract represents the entire agreement, and supersedes all previous agreements, whether written or oral, of the parties hereto regarding the subject matter here, and there are no promises, representations, terms, or other matters relating the subject matter of this Contract which are not included herein. 26. At the end of the contract term or other contract termination or cancellation, CCJD/ARRJBC shall in good faith and in reasonable cooperation with the CONTRACTOR, aid in transition to any new arrangement or provider of services. The respective accrued interests or obligations incurred to date of termination must also be equitably settled. NON APPROPRIATION OF FUNDS In the event no funds or insufficient funds are appropriated and budgeted for the placement of residential services and funds are otherwise unavailable, by any means whatsoever, in any fiscal period in which the services are due under this Contract then CONTRACTOR shall, not less than sixty (60) days prior to the end of such applicable fiscal period, in writing, notify the CCJD/ARRJBC of such occurrence. This Contract shall thereafter terminate and be tendered null and void on the last day of the fiscal period for which appropriations were made withoutpenalty, liability or expense to CONTRACTOR of any kind, except as to (1) the services herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available and (ii) CONTRACTOR'S other obligation and liabilities under this Contract relating to, accruing or arising prior to such termination. COMPLIANCE WITH THE REQUIRED REGULATIONS, POLICIES AND PROCEDURES Comply with all applicable federal and state regulations and with Texas Juvenile Probation Commission ('IZPC) policies and procedures regarding services delivered under this contract including, but not limited to: 1. EQUAL OPPORTUNITY-Services shall be provided by CCJD/ARRJBC in compliance with Title IV of the Civil Rights Act of 2484. CCJD/ARRJBC will not discriminate against any employee, applicant for employment of client because of race, religion, color, national origin, age, or handicapped condition. CCJD/ARRJBC will take affirmative action to ensure that applicants are employed and that the employees are treated during employment without regard to their race, religion, color, sex, national origin, age, or handicapped condition. 2. AMERICANS WITH DISABILrI ESACT- CCJD/ARRJBCexpaesslyrepresents and warrants to the CONTRACTOR that the premises, the building in which the services are rendered and all parking, sidewalks and other appurtenances pertaining to such buildings have been constructed, maintained and operated, and shall continue to be used, maintained and operated in compliance with the 5 q5 Americans with Disabilities Act of 1990, Pub. L. No. 89-670,104 Stat 327 (1990), and all rules, regulations, and guidelines promulgated thereunder, as the same may be amended from time to time (the American Disabilities Act). 3. Texas Health and Safety Code Section 85.113 (relating to workplace and confidentiality guidelines regarding AIDS and HIV). 4. Federal Immigration Reform and Control Act of 1986 regarding employment verification and retention of verification forms for any individuals who will perform any labor or services under this contract. 5. Establish a method to ensure the confidentiality of records and other information relating to clients according to applicable federal and state law, rules and regulations. This provision does not limit the CONTRACTOR`S right of access to client case records or other information relating to clients served under this contract The CONTRACTOR shall have an absolute right of access to, and copies of, such information. 6. Promptly report any suspected case of abuse or neglect to the appropriate Child Protective Services, offices as required by the Texas Family Code, Chapter 261. All reports must be made within 24 hours of the discovery of abuse or neglect Additionally, a report must be made to the Texas Juvenile Probation Commission (TJPC) within 24 hours. 7. Verify and disclose, or cause its employees and volunteers to verify and disclose criminal history and any current criminal history and any current criminal indictment involving an offense againstthe person, an offense against the family, or an offense involving public indecency under the Texas penal Code as amended, or an offense under Chapter 281 of the Texas Health and Safety code. This verification and disclosure will be required of all who have direct contact with clients. 8. Comply with state and federal licensing and certification requirements, health and safety standards, and regulations prescribed by the United States Department of Health and Human Services and the Texas Juvenile Probation Commission (TJPC). NOTICES All notices to the Brazos County Juvenile Probation Department shall be sent by certified or registered mail, addressed to: 1904 W. SH 21, Bryan, Texas 77803 to the Chief Juvenile Probation Officer, Douglas Vance. All notices to Cameron County Juvenile Department/Amador R. Rodriguez Juvenile Boot Camp and Educational Center, shall be sent certified or registered mail, addressed to the Chief Cameron County Juvenile Department, P.O. Box 1690, San Benito, Texas 78586, or at such an address as CCJD/ARRJBC may otherwise designate. EXECUTED IN DUPLICATE COPIES, EACH OF WHICH SHALL HAVE THE FULL 17ORCE AND EFFECT Oi; AN ORIGINAL, on the -11 day of r 2006. WEBB COUNTY JUVENILE PROBATION DEPARTMENT BY: V' 0- b DOUGLA VANCE Director/Chief Juvenile Probation Officer CAMER N COUNTY JUVENILE PROBATION DEPARTMENT BY: TOMMY RAMIRE JR. Chief Executive Officer BY: HON. BENJAMIN EURESTI Juvenile Board Chairperson VZ"1 00rr7~ q7 'lq(b) CONTRACT FOR RESIDENTIAL SERVICES 90 DAY SHORT TERM PROGRAM PAM (PRIDE- ATTITUDE- MOTIVATION) BRAZOS COUNTY JUVENILE PROBATION DEPARTMENT FY 2007 THE STATE OF TEXAS COUNTY OF CAMERON CONTRACT FOR RESIDENTIAL SERVICES In accordance with the provisions set forth herein, this agreement is made this day between Cameron County Juvenile Department/Amador R. Rodriguez Juvenile Boot Camp (hereafter, "CCJD/ARRJBC'), and Brazos County juvenile Probation Department (hereafter, CONTRACTOR), for the purpose of providing residential treatment services for adolescents, and to protect the well being of the child and enhance the child's functional abilities in a substitute care setting by providing the following services, as appropriate: WHEREAS, CCJD/ARRJBC operates and manages a RESIDENTIAL PLACEMENT CENTER which has been duly inspected and certified as being suitable for the detention of juveniles by the Cameron County Juvenile Board; WHEREAS, the Cameron County Juvenile Board has approved the program, policies and procedures under which CCJD/ARRJBC manages the facility; NOW, THEREFORE, the parties agree as follows: 1. To provide those juveniles housed in the RESIDENTIAL pI ACEMF.NT CENTER operated by the CCJD/ARRJBC room, board, and 24 hour daily supervision and approved educational program, recreational facilities, and counseling. Such space and service shall be provided by CCJD/ARRJBC to CONTRACTOR on a space available basis. CCJD/ARRJBC and CONTRACTOR agree that except in emergency situations, CCJD/ ARRJBC will give CONTRACTOR forty-eight(48) hours notice before terminating a juvenile. In an emergency situation, CCJD/ARRJBC will notify CONTRACTOR within twelve (12) hours of the juvenilers expected termination from the RESIDENTIAL PLACEMENT CENTER. 2. Medical: CONTRACTOR agrees to be responsible for payment for medical care to the juveniles and to pay for emergency examinations, treatments, and hospitalization in the event the parent of the child and/or the child's medical insurancedoes not cover the cost. CCJD/ARRJBC shall notify CONTRACTOR of any medical emergency or condition requiring medical care within one (1) regular working day of its occurrence. 3. Fees: For services rendered under this Agreement, CONTRACTOR shall pay the sum of SIXTY-FIVE DOLLARS ($65.00) per day per child for each day the CONTRACTOR has juveniles in the ARRJBC. Charges will include the day of admittance, regardless of hour of admittance; plus the number of days until released, including day of release, regardless of hour. 4. Payment Payment shall be made monthly within thirty (30) days after receipt by CONTRACTOR of CCJD/ARRJBC monthly invoicing. Payment shall be made to Cameron County Juvenile Probation Department, PO Bax 16M Son Benito, TX 78586 R9 Y 5. Length of stay would be a minimum of 90 day PAM (Pride- Attitude- Motivation) for short term placement. 6. Conditions for placement: When a juvenile is transported to the ARRJBC operated by CCJD, the officer effectuating the transfer should have the following with him: (1) Two copies of the signed Dispositional Order with the conditions ordering the child into placement; and (2) Parents' notification of child's whereabouts. 7. Transportation to placement: The CCJD/ARRJBC shallprovide transportation to and from placing CONTRACTOWs facility to ARRJBC. Times and dates will coordinated by both agencies. 8. Operation of the Program will be in compliance with all applicable standards for secure post adjudication as promulgated by the Texas Juvenile Probation Commission (IJPC). 9. No mechanical restraints will be used on a child placed by the CONTRACTOR, except with prior written authorization from a physician in life threatening situations and except when necessary and in accordance with applicable TJPC standards. 10. CONTRACTOR may examine and evaluate the services and the records maintained by CCJD/ARRJBC under this contract, and CCJD/ARRJBC will furnish such information relating to these services and records as may be requested by CONTRACTOR, including but not limited to all clinical and fiscal information and the results of any and all audits conducted by TJPC, relating to youth referred under this Contract. 11. Confidentiality and Indemnification: In consideration of CCJD/ARRJBC and/or its representatives or agents agreeing to provide access to information or records pertaining to a juvenile placed in the BOOT CAMP by CONTRACTOR, CONTRACTOR agrees. to indemnify and hold harmless CCJD/ARRJBC for any damages and/or claims, including, but not limited to attorney's fees incurred in the event that any breach of confidentiality occurs as a result of CCJD/ARRJBC providing the information or records to CONTRACTOR 12. CCJD/ARRJBC accepts, as the application for admission, The State of Texas Common Application for Placement of Children in Residential care (form 2087) for placement of CONTRACTORS children. 13. CCJD/ARRJBC will provide all services in a manner which safeguards the health, welfare and safety of the children, to the maximum extent possible, and in the least restrictive setting possible. 14. CCJD/ARRJBC will submit to CONTRACTOR at the end of each month a bill for services, which includes the following information for each youth referred to and served that month under this contract: the youth's name; the program to which the youth was admitted; dates VY loo which such youth is eligible from other funding sources (if applicable), and the amount of such funds collected by the Service Agency. 15. CCJD/ARRJBC shall identify goals and outputs and document measurable outcome which relate to program objectives. 16. Under Section 231.006, Family Code, the vendor or applicantcertifies that the individual or business entity named in this contract, bid, or application is not ineligible to receive the payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate. 17. CCJD/ARRJBC shall adhere to all applicable state and federal laws and regulations pertinent to the CONTRACTORS` provision of services. 18. CCJD/ARRJBC shall account separately for the receipt and expenditure of any and all funds received under this contract. 19. CCJD/ARRJBC shall maintain financial, programmat. and supporting documents, statistical records, inventories of non-expendable property acquired and other records pertinent to claims submitted during the contract period for minimum of three years. If any litigation, claim, or audit involving these records begins before the three-year period expires, the Service Agency will keep the records and documents for no less than three years and 90 days and until all litigation, claims or audit findings are resolved. The case is considered resolved when a final order is issued in litigation, or a written agreement is entered in between the CONTRACTOR andCCJD/ARRJBC "Cankactpenod"means the beginning date through the ending date specified in the original contract. Contract extensions are considered to be separate contract periods. 20. If a youth makes an unauthorized departure fr= CCJD/ARRJBC, the CONTRACTOR shall be notified immediately. If the youth returns to ARRJBC within 10 days or prior to the last billing day of the month, whichever shall occur fast, ARRJBC shall receive payment for those days the youth was absent from ARRJBC, but not to exceed ten days' payment. 21. The term of this Contract shall commence on September 1, 2006 and shall end onAugust 31, 2007. 22. Either party may cancel this Contact for any reason, by pnwW!ng written notice to the other party at least thirty (30) days prior to the cancellation date. 23. CCJD/ARRJBC fails to provide services according to the provisions of this contract, the CONTRACTOR may, upon written notice of default to CCJD/ARRJBC, terminate all or any part of the contract. Termination is not necessarily an exclusive remedy, but will be in addition to any other rights and remedies provided by law or under this contract. g~ ~o 24. This Contract may not be changed, modified or waived in whole or in part, except where done in writing signed by all parties hereto. 25. This Contract shall be construed under the laws of the State of Texas, and is performable in Cameron County Texas. 26. This Contract represents the entire agreement; and supersedes all previous agreements, whether written or oral, of the parties hereto regarding the subject matter here, and there are no promises, representations, terms, or other matters relating the subject matter of this Contract which are not included herein. 27. At the end of the contract term or other contract termination or cancellation, CCJD/ARRJBC shall in good faith and in reasonable cooperationwith the CONTRACTOR, aid in transition to any new arrangement or provider of services. The respective accrued interests or obligations incurred to date of termination must also be equitably settled. NON APPROPRIATION OF FUNDS In the event no funds or insufficient funds are appropriated and budgeted for the placement of residential services and funds are otherwise unavailable, by any means whatsoever, in any fiscal period in which the services are due under this Contract, then CONTRACTOR shall, not less than sixty (60) days prior to the end of such applicable fiscal period, in writing, notify the CCJD/ARRJBC of such occurrence. This Contract shall thereafter terminate and be tendered null and void on the last day of the fiscal period for which appropriations were made without penalty, liability or expense to CONTRACTOR of any kind, except as to(]) theservices herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available and (ii) CONTRACTOR'S other obligation and habddies under this Contract relating to, accruing or arising prior to such termination. COMPLIANCE WrITI THE REQUIRED REGULATIONS, POLKA AND PROCEDURES Comply with all applicable federal and state regulations and with Texas Juvenile Probation Commission (TJPC) policies and procedures regarding services delivered under this contract including, but not limited to: 1. EQUAL OPPORTUNITY-Services shall be provided by CCJD/ARRJBC in compliance with Title IV of the Civil Rights Act of 1984. CCJD/ARRJBC will not discriminate against any employee, applicant for employment, of chentbecause of race, religion, color, national origin, age, or handicapped condition. CCJD/ARRJBC will take affirmative action to ensure that applicants are employed and that the employees are treated during employment without regard to their race, religion, color, sex, national origin, age, or handicapped condition. 2. AMERICANS WITH DISABILITIES ACT--CCJD/ARRJBC expressly represents and warrants to the CONTRACTOR that the premises, the building in which the services are rendered and all parking, sidewalks and other appurtenances pertaining to such buildings 5 have been constructed, maintained and operated, and shall continue to be used, maintained and operated in compliance with the Americans with Disabilities Act of 1990, Pub. L. No. 89-670, 104 Stat 327 (1990), and all rules, regulations, and guidelines promulgated there under, as the same may be amended from time to time (the American Disabilities Act). 3. Texas Health and Safety Code Section 85.113 (relating to workplace and confidentiality guidelines regarding AIDS and HIV). 4. Federal Immigration Reform and Control Act of 1986 regarding employment verification and retention of verification forms for any individuals who will perform any labor or services under this contract. 5. Establish a method to ensure the confidentiality of records and other information relating to clients according to applicable federal and state law, rules and regulations. This provision does not limit the CONTRACTOR'S right of access to client case records or other information relating to clients served under this contract The CONTRACTOR shall have an absolute right of access to, and copies of, such information. 6. Promptly report any suspected case of abuse or neglect to the appropriate Child Protective Services, offices as required by the Texas Family Code, Chapter 261. All reports must be made within 24 hours of the discovery of abuse or neglect Additionally, a report must be made to the Texas Juvenile Probation Commission (FJPC) within 24 hours. 7. Verify and disclose, or cause its employees and volunteers to verify and disclose criminal history and any current criminal history and any current criminal indictmentinvolving an offense against the person, an offense against the family, or an offense involving public indecency under the Texas penal Code as amended, or an offense under Chapter 281 of the Texas Health and Safety code. This verification and disclosurewill be required of all who have direct contact with clients. 8. Comply with state and federal licensing and certification requirements, health and safety standards, and regulations prescribed by the United States Department of Health and Human Services and the Texas Juvenile Probation Commission (TJPC). NOTICES All notices to the Brazos County Juvenile Probation Department shall be sent by certified or registered mail, addressed to. 1904 W. Hwy 21, Bryan Texas 77803 to the Chief Juvenile Probation Officer, Douglas Vance All notices to Cameron County juvenile Department/Amador R. Rodriguez Juvenile Boot Camp and Educational Center, shall be sent certified or registered mail, addressed to the Chief, Cameron Count, juvenile Department, P. O. Box 1690, San Benito, Texas 78586, or at such an address as CCJD/ARRJBC may other wise designate. 6 I. 88 , io3 EXECUTED IN DUPLICATE COPIES, EACH OF WHICH SHALL HAVE THE FULL FORCE AND EFFECT OF AN ORIGINAL, on the a4+i- day of nc±L b 2006. BRAZOS COUNTY JUVENILE PROBATION DEPARTMENT BY: BY: DOUGLAS VANCE HON gNDYSIMS Director/Chief Juvenile Probation Officer Co ty Judge CAMEROI COUNTY JUVENILE PROBATION DEPARTMENT BY: BY: MIV// TOMMY RAMIREZ, JR. HON. BENJAhYiN EURESTI Chief Executive Officer Juvenile Board Chairperson 7 LEASE AGREEMENT Full Legal Name - Customer Name Bill to) COUNTY OF BRAZOS DBA/Name Overflow AUDITORS OFFICE Street Address 300 E 26TH ST Box#/Routing STE 314 City, State BRYAN, TX Zip Code 77803-5392 Tax ID# Customer Name (Install) COUNTY OF BRAZOS DBA/Name Overflow (if req'd) MAGISTRATE Installed at Street Address 300 E 26TH ST Floor/Room/Routing STE 203 City, State BRYAN, TX Zip Code 77803-5392 County Installed In Brazos CuctwnerRequested Install Date 10/1012OD6 Lease Payment Information Check all that apply ❑ AssocJCoop. Name XEROX. ©Negotiated Contract #:(171710902 ❑DSA Contract If ❑ Value Added Services: ❑ Attached Customer P.O. #s: Supplies: Lease: State or Local Government Customer Int. Rate: % Total Int Payable: $ LJ Replacement/Moditicsition of Prior Xerox Agreement Agreement covering Xerox Equipment Serial# (or 95#): is hereby ❑ modified ❑ replaced Effective Date: Comments: Lease Information Lease Term : 36months ©Supplies included in Base/Print Charges ❑ Refin. of Prior Agrmt.:❑ Xerox (95#): ❑ 3rd Party Eq. Amt Refire $ Int Rate: % Total hit Payable: $ Product _ (with serial number, if in place equipment) Purchase lion Down Payment Prev Install Fin'l Intent WCP2636 WORKCENIRE PRO C2636 FMV t 1FAXKIT 1 128MEM 1 SPCCNTRL 1 TNU Customer FA Analyst Services $ 397-32 : MINIMUM LEASE PAYMENT (excl. of appli, taxes) Price Information ❑ Adinatment Pneind (based on Meter 1 Print Charges) 5000 (based on Meter 1 Print Charges) Total Allowance Applied to: I []Trade-In Equip. Balance: $ []Price of Replcmnt Equip.: $ Agreement Presented By: Xerox Name; Judy Shelander Phone:(979)775-3377 FOR AUPHORIZED HQ INTERNAL USE ONLY: Accepted: Xerox Corporation By: (Signal.,, ofAmlhorrnd Signer) Title Date: Worksheet F37006 Unit: 1 10/10/2006 16:49:25 www.xerox.com Min, ease Payment Freu. (periodic. exckWiug ease meterfh.") ❑ Monthly ❑Quarterly ❑ Semi-Annual ❑Annual ❑ Other Min. Lease Payment Mode ❑Advance ❑ Arrears (based on Meter 1 Print Charges) ❑ K-16 Billing Additional Options (check all that apply) Suspension ❑ Run Length Plan ®Fixed Price Plan (check 1 as required) ❑ Per-Foot pricing months affmw ❑ Extended Service Hours: ❑ June only ❑ Description: / $ Onto. July only ❑ A ©Attached Addenda: 54105 17F ugust only ❑ June - July ❑ Other Addenda: ❑ July - Aueust Auth. Signer Name: Signature: : (o(~q" ignarw n tgner (sue t Auth. Signer Title: taeittg-tgem- Phone: (979)361-4294 E-Mail: 0Uhk ®Tax Exempt ('Must attach les Tax Ex tion rertirwa .1 Xerox Form# 51860 (052005) 10/10/2006 Page I of 7 g8 J L5S GENERAL TERMS: The following terms apply to all lease transactions: 1. PRODUCTS. The term "Products" shall refer collectively to all equipment (the "Equipment"), software, and supplies ordered under this Agreement. You represent that the Products are being ordered for your own business use (rather than resale) and that they will not be used for personal, household m family purposes. 2. NON-CANCELABLE LEASE. THIS AGREEMENT IS A LEASE AND If CANNOT BE CANCELED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND YOUR OBLIGATION TO MAKE ALL PAYMENTS DUE OR TO BECOME DUE SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL NOT BE SUBJECT TO ANY DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. ANY CLAIM AGAINST XEROX MAY BE ASSERTED SOLELY AGAINST XEROX IN A SEPARATE ACTION. 3. LEASE COMMENCEMENT, PAYMENT, TAXES & CREDIT HISTORY. A. The lease term for this Agreement shall commence upon installation of the Equipment; provided, however, for customer-installable Equipment, the lease term for this Agreement shall commence upon delivery of the Equipment B. Invoices are payable upon receipt and you agree to pay Xerox each Minimum Lease Payment, all Print Charges and all other sums due as follows: (i) if the invoice displays a due date, payment is due and most be received by Xerox on or before said due date, or (u) if the invoice does not display a due date, payment is due and must be received by Xerox no later than thirty (30) days after the invoice date. Restrictive covenants on instruments or documents submitted for or with payments you said to Xerox will not reduce your obligations. C. You shall be responsible for any and all applicable Taxes, which will be included in Xerox's invoice unless you provide proof of your tax exempt status. "Taxes" shall mean any tax, assessment or charge imposed or collected by any governmental entity or any political subdivision thereof, however designated or levied, imposed on this Agreement or the amounts payable to Xerox by you for the billing of Products, Print Charges, services and maintenance of any kind; Taxes include, but are not limited to, sales and use, rental, excise, gross receipts and occupational or privilege taxes, plus any interest and/or penalty thereon, but excluding any personal property taxes and taxes on Xerox's net income. I a taxing authority determines that Xerox did not collect all applicable Taxes, you shall remain liable to Xerox for such additional Taxes. D. You, to the extent required by applicable law, authorize Xerox (or its agent) to obtain credit reports, make such other credit inquiries as Xerox may deem necessary at any time, famish payment history information to credit reporting agencies, and release to prospective assignees of this Agreement or any rights hereunder credit- related information Xerox has about you and this Agreement 4. BASIC SERVICES. As a mandatory par of a lease, Xerox (or a designated servicer) will provide the following Basic Services under this Agreement (unless you are acquiring Equipment for which Xerox does not offer Basic Services; such Equipment to be designated as "NO Svc."): A. REPAIRS & PARTS. Xerox will make repairs and adjustments necessary to keep Equipment in good working order (including such repairs or adjustments required during initial installation). Parts required for repair may be new, reprocessed, or recovered. B. HOURS & EXCLUSIONS. Unless otherwise stated, Basic Services will be provided during Xerox's standard working hours (excluding Xerox-recognized holidays) in areas within the United States, its territories, and possessions open for repair service for the Equipment at issue. You agree to give Xerox reasonable access to the Equipment. Basic Services shall cover repairs and adjustments required as a result of normal wear and tear or defects in materials or workmanship (and shall exclude repairs or adjustments Xerox determines to relate to or be affected by the use of options, accessories, or other connected products not serviced by Xerox, as well as any non-Xerox alterations, relocation, service, supplies, or consumables). You agree to use Equipment in accordance with, and to perform all operator maintenance procedures for Equipment as set forth in, the applicable manuals provided by Xerox. C. INSTALLATION SITE & METER READINGS. The Equipment installation site must conform to Xerox's published requirements throughout the term of this Agreement. If applicable, you agree to provide meter readings in the manner prescribed by Xerox. If you do not provide Xerox with mete readings as required, Xerox may estimate them and bill you accordingly. D. EQUIPMENT REPLACEMENT. If Xerox is unable to maintain the Equipment as described above, Xerox will, as your exclusive remedy for Xerox's failure to provide Basic Services, replace the Equipment with an identical product or, at Xerox's option, soothe product of equal or greater capabilities. If a replacement product is provided pursuant to this Section, there will not be an additional charge for the replacement product and, except as set forth in the section of this Agreement titled "MAINTENANCE COMPONENT PRICE INCREASES", there will not be an additional charge for Basic Services during the then-current term during which Basic Services are being provided. E. CARTRIDGE PRODUCTS. If Xerox is providing Basic Services for Equipment utilizing cartridges designated by Xerox as customer replaceable units, including copy/print cartridges and xerographic modules or fuser modules ("Cartridges'), you agree to use only unmodified Cartridges purchased directly from Xerox or its authorized resellers in the United States and the failure to use such Cartridges shall void any warranty applicable to such Equipment. F. PCIWORKSTATION REQUIREMENTS. In order to receive Basic Services and/or Software Support for Equipment requiring connection to a PC or workstation, you must utilize a PC or workstation that either (1) has been provided by Xerox or (2) meets Xerox's published specifications. G. DELIVERY AND REMOVAL. Xerox will be responsible for all standard delivery and removal charges. You will be responsible for any non-standard delivery or removal charges incurred. 5. WARRANTY DISCLAIMER & WAIVERS. XEROX DISCLAIMS, AND YOU WAIVE, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. The parties intend this Agreement to be a "finance lease" under Article 2A of the Uniform Commercial Code. Except to the extent expressly provided, herein and to the extent permitted by applicable law, you waive all rights and remedies conferred upon a lessee by said Article. 6. INTELLECTUAL PROPERTY INDEMNITY. Xerox, at its expense, will defend you from, and pay any settlement agreed to by Xerox or any final judgment for, any claim that a Xerox-brand Product infringes a third party's U.S. intellectual property rights, provided you promptly notify Xerox of the alleged infringement and permit Xerox to direct the defense. Xerox is not responsible for any non-Xerox litigation expenses or settlements unless it preapproves them in writing. To avoid infringement, Xerox may modify or substitute an equivalent Xerox-brand Product, refund the price paid for the Xerox-brand Product (less the reasonable rental value for the period it was available to you), or obtain any necessary licenses. Xerox is not liable for any infringement-related liabilities outside the scope of this Section . including, but not limited to, infringement based upon a Xerox-brand Product being modified to your specifications or being used or sold with products not provided by Xerox. 7. LIMITATION OF LIABILITY. Xerox shall not be liable to you for any direct damages in excess of $10,000 or the amounts paid hereunder, whichever is greater, and neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether the claim alleges tortious conduct (including negligence) or any other legal theory. The above-stated limitation of liability shall not be applicable to any specific indemnification obligations set forth in this Agreement Any action you take against Xerox must be commenced within two (2) years after the event that caused it 8. ASSIGNMENT. A. If you wish to assign any rights or obligations under this Agreement, you shall provide a written notice to Xerox of such request for consent, with said notice including the name of the proposed assignee. Yom request to assign this Agreement will be granted by Xerox if: (1) you are not in default under this Agreement or any other agreement with Xerox; (2) the proposed assignee agrees to the section of this Agreement titled "LEASE COMMENCEMENT, PAYMEN'T', TAXES & CREDIT HISTORY" as applicable to it, for the purposes of the proposed assignment; (3) the proposed assignee meets Xerox's then current credit criteria for similar transactions as determined by Xerox in its sole discretion; and, (4) you and the proposed assignee execute a writing, in a form acceptable to Xerox, confirming said assignment Assignment by you requires the written consent of Xerox and may not be accomplished by operation of law. B. Xerox may assign this Agmement, in whole Orin pan, to a parent, subsidiary or affiliate of Xerox, or to a person or entity for the purposes of securitizing a pool of assets or as part of a third party financial transaction without prior notice to you; provided, however, any proposed assignment to a person or entity not identified previously in this sentence shall require your prior written consent In the event of an assignment permitted by the preceding sentence, Xerox, without notice to you, may release information it has about you related to this Agreement Each successive assignee of Xerox shall have all of the rights but none of the obligations of Xerox hereunder. You shall continue to look to Xerox for performance of Xerox's obligations, including the provision of Basic Services, and you hereby waive and release any assignees of Xerox from any such claim relating to or arising from the performance of Xerox's obligations hereunder. You shall not assert any defense, counterclaim or setoff that you may have or claim against Xerox against Xerox Form# 51860t&c (05/2005) 10/10/2006 Page 2 of 7 8 ~b~ MY assignees of Xerox, h: the event of an assignment by Xerox, you shall remit payments due in accordance with reorttance inset ctiom of the assignee. 9. MINIMUM LEASE PAYMENTS. Each Minimum Lease Payment (which may be billed on more than one invoice) includes a Periodic Base Charge, and may include a Periodic Minimum Number of Prints. The Minimum Lease Payments, along with any additional Print Charges for prints made in excess of the Minimum Number of Prints, cover your cost for the use of the Equipment and its maintenance (provided as Basic Services). TO. MAINTENANCE COMPONENT PRICE INCREASES. Xerox may annually increase that amount of the Minimum Lease Payment and Print Charges you are charged for maintenance of the Equipment (the 'Maintenance Component"), each such increase not to exceed 10%. (For state and local government customers, this adjustment shall take place at the commencement of each of your annual contract cycles.) 11. I=, RISK & RELOCATION. Tide to the Equipment shall remain with Xerox until you exercise your option to purchase it. Until you exercise your option to purchase the Equipment, you agree that: (a) it shall remain personal property; (b) you will not attach any of it as a fixture to any real estate; (c) you will not pledge, sub-lease or part with possession of it or file or permit to be filed any lien against it; and, (d) you will not make my permanent alterations to it The risk of loss due to your fault or negligence, as well as theft, fire or disappearance, shall pass to you upon shipment from a Xerox controlled facility. The risk of loss due to all other causes shall remain with Xerox unless and will you exercise your option to purchase the Equipment Until title passes to you, all Equipment relocations must be arranged (or approved in advance) by Xerox and shall be at your expense. While Equipment is being relocated, you are responsible for all payments required to Xerox under this Agreement Equipment cannot be relocated outside of the United States, its territories or possessions until you have exercised the Purchase Option indicated in this Agreement If you acquire title to the Equipment, you must comply with all applicable laws and regulations regarding the export of any commodity, technology and/or software. All parts/materials replaced, including as part of an upgrade, will become Xerox's property. 12. DEFAULT & REMEDIES; LATE CHARGES & COLLECTION COSTS. A. For my payment not received by Xerox within ten (10) days of the due date as set forth herein, Xerox may charge, and you agree to pay, a late charge equal to the higher of five percent (5%) of the amount due or $25 (not to exceed the maximum amount permitted by law) as reasonable collection costs. B. You will be in default under this Agreement if (1) Xerox does not receive my payment within fifteen (15) days after the date it is due r r (2) if you breach any other obligation hereunder. If you default, Xerox, in addition to its other remedies (including the cessation of Basic Services), may require immediate payment, as liquidated damages for loss of bargain and not as a penalty, of. (a) all amounts then due, plus interest on all amounts due from the due date will paid at the rate of one and one-half percent (1.5%) per month (not to exceed the maximum amount permitted by law); (b) the remaining Minimum Lease Payments in the Agreement's term less my unearned finance, maintenance, and supply charges (as reflected on the lessors books and records); (c) a reasonable disengagement fee calculated by Xerox that will mot exceed fifteen percent (15%) of the amount in (b) above (said amount is available from Xerox upon request); and (d) all applicable Taxes. You also shall either (1) make the Equipment available for removal by Xerox when requested to do so by Xerox and, at the time of removal, the Equipment shall be in the same condition as when delivered (reasonable wear and tear excepted), together with my related software, or (2) purchase the Equipment "AS IS, WHERE IS" and WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE by paying Xerox the Purchase Option and all applicable Taxes. Xerox's decision to waive or forgive a particular default shall not prevent Xerox from declaring my other default In addition, if you default under this Agreement, you agree to pay all of the costs Xerox incurs to enforce its rights against you, including reasonable attorneys' fees and actual costs. 13. CARTRIDGES. Cartridges packed with Equipment and replacement Cartridges may be new, remanufacmred or reprocessed. Remanufactured and reprocessed Cartridges meet Xerox's new Cartridge performance standards and contain new and/or reprocessed components. To enhance print quality, the Cartridge(s) for many models of Equipment have been designed to cease functioning at a predetermined point. In addition, many Equipment models are designed to function only with Cartridges that are newly manufactured original Xerox Cartridges or with Cartridges intended for use in the U.S. Equipment configuration that permits use of non-newly manufactured original Xerox Cartridges may be available from Xerox at an additional charge. Cartridges sold as Environmental Partnership (',PP) Cartridges remain the property of Xerox. You agree that you shall return all EP Cartridges and may return other Cartridges to Xerox, at Xerox's expense when using Xerox-supplied shipping labels, for remmufacturing once such Cartridges cease functioning. Xerox Forn# 51860t&c (0512005) 14. EQUIPMENT STATUS. Unless you are acquiring Freviously Installed Equipment, Equipment will he either (a) "Newly Manufactured", which may contain some recycled components that are reconditioned; (b) 'Factory Produced New Model", which is manufactured and newly serialized at a Xerox factory, adds functions and features to a product previously disassembled to a Xerox predetermined standard, and contains both new components and recycled components that are reconditioned; or, (c) "Remanufactured", which has been factory produced following disassembly to a Xerox predetermined standard and contains both new components and recycled components that are reconditioned. 15. LEASE OPTIONS. The following options are available for Equipment subject to this Agreement. A. PURCHASE OPTION. If not in default, you may purchase the Equipment, "AS IS, WHERE-IS" and WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE: (i) at the end of the lease term for the Purchase Option indicated on the face of this Agreement (i.e. either a set dollar amount or the Fair Market Value of the Equipment at the lease term's conclusion ["FMV"]), plus all applicable Taxes, or (ii) any time during the lease term by paying: (1) all amounts then due; (2) the remaining Minimum Lease Payments in the Agreement's term less any unearned finance, maintenance, and supply charges (as reflected on the lessor's books and records); (3) a reasonable disengagement fee calculated by Xerox that will not exceed fifteen percent (15%) of the amount in (2) above (said amount is available from Xerox upon request); (4) the applicable Purchase Option; and (5) all applicable Taxes. B. RENEWAL. Unless either party provides notice at least thirty (30) days before the end of the lease tens of its intention not to renew this Agreement, it will be renewed automatically on a month-to-month basis at the same price, terms and conditions and billing frequency as the original Agreement During this renewal period, either party may terminate this Agreement upon at least thirty (30) days notice. C. LEASE TERMINATION. Upon termination pursuant to B. above, and if you have not purchased the Equipment, you shall make the Equipment available for removal by Xerox when requested to do so by Xerox and, at the time of removal, the Equipment shall be in the same condition as when delivered (reasonable wear and tear excepted), together with my related software. 16. PROTECTION OF XEROX'S RIGHTS. You hereby authorize Xerox or its agents to file, by my permissible means, financing statements necessary to protect Xerox's rights as the Equipment Lessor. Xerox, on your behalf and at your expense, may take any action required to be taken by you under this Agreement that you fail to take. 17. REPRESENTATIONS, WARRANTIES & COVENANTS. Each party represents that, as of the date of this Agreement, it has the lawful power and authority to enter into this Agreement, the individuals signing this Agreement are duty authorized to do so on its behalf and, by entering this Agreement, it will not violate my law or other agreement to which it is a party. You are not aware of anything that will have a material negative effect en your ability to satisfy your payment obligations under this Agreement and all financial information you have provided, or will -provide, to Xerox is true and accurate and provides a good representation of your financial condition. Each party agrees that it will promptly notify the other party in writing of a change in ownership, if it relocates its principal place of business or changes the name of its business. 18. NOTICES. Notices must be in writing and will be deemed given five (5) days after mailing, or two (2) days after sending by nationally recognized overnight courier, to the other party's business address, or to such other address designated by either patty to the other by written notice given pursuant to this sentence. - The term "business address" shall mem, for you, the "Bill to" address listed on the first page of this Agreement and, for Xerox, our inquiry address set forth on the most recent invoice to you. 19. FORCE MAJEURE. Xerox shall not be liable to you during my period in which its performance is delayed or prevented, in whole or in pm, by a circumstance beyond its reasonable control, which circumstances include, but are not limited to, the following: act of God (e.g., flood, earthquake, wind); fire; war; act of a public enemy or terrorist; act of sabotage; strike or other labor dispute; riot, misadventure of the sea; inability to secure materials and / or transportation; or, a restriction imposed by legislation, an order or a rule or regulation of a governmental entity. If such a circumstance occurs, Xerox shall undertake reasonable action to notify you of the same. 20. MISCELLANEOUS. This Agreement constitutes the entire agreement m to its subject matter, supersedes all prior and contemporaneous oral and written agreements, and shall be construed under the laws of the State of New York (without regard to conflict-of-law principles). You agree to the jurisdiction and venue of the federal and state courts in Monroe County, New York. In any action to enforce this Agreement, the parties agree to waive their right to a jury trial. If a 10/10/2006 Page 3 of 7 court finds any term of this Agreement to be unenforceable, the remaining terms of this Agreement shall remain in effect Both parties may retain a reproduction (e.g., electronic image, photocopy, facsimile) of this Agreement which shall be admissible in any action to enforce it, but only the Agreement held by Xerox shall be considered an original. Xerox may weep[ this Agreement either by its authorized signature or by commencing performance (e.g., Equipment delivery, initiating Basic Services, etc.). All changes to this Agreement must be made in a writing signed by both parties; accordingly, any terms on your ordering documents shall be of no force or effect The following four sentences control over every other part of this Agreement and over all other documems now or later pertaining to this Agreement. We both intend to comply with applicable laws. In no event will Xerox charge or collect any amounts in excess of those allowed by applicable law. Any part of this Agreement that would, but for this Section, be read under any circumstances to allow for a charge higher than that allowed under any applicable legal limit, is limited and modified by this Section to limit the amounts chargeable under this Agreement to the maximum amount allowed under the legal limit If, in any circumstances, any amount in excess of that allowed by law is charged or received, any such charge will be deemed limited by the amount legally allowed and any amount received by Xerox in excess of that legally allowed will be applied by us to the payment of amounts legally owed under this Agreement, or refunded to you. SOFTWARE TERMS: The following additional terms apply only to transactions covering Application Software and/or Xerox-brand Equipment: 21. SOFTWARE LICENSE. The following terms apply to copyrighted software and the accompanying documentation, including, but not limited to, operating system software, provided with or within the Xerox-brand Equipment acquired hereunder ("Base Software") as well as software specifically set out as "Application Software" on the face of this Agreement This license does not apply to any Diagnostic Software or to any software / documentation accompanied by a clickwrap or shrinkwrap license agreement or otherwise made subject to a separate license agreement A. Xerox grants you a non-exclusive, non-transferable license to use the Base Software within the United States, its territories, and possessions (the "United States") only on or with the Equipment with which (or within which) it was delivered. For Application Software, Xerox grants you a non-exclusive, non- transferable license to use this software within the United States on any single unit of equipment for as long as you are current in the payment of any indicated software license fees (including any Annual Renewal Fees). You have no other rights to the Base or Application Software and, in particular, may not: (1) distribute, copy, modify, create derivatives of, decompile, or reverse engineer this software; (2) activate any software delivered with or within the Equipment in an inactivated state; m, (3) allow others to engage in same. Title to the Base and Application Software and all copyrights and other intellectual property rights in it shall at all times reside solely with Xerox and/or its licensors (who shall be considered third-party beneficiaries of this Agreement's software and limitation of liability provisions). Base and Application Software may contain, or be modified to contain, computer code capable of automatically disabling proper operation or functioning of the Equipment Such disabling code may be activated if. (a) Xerox is denied reasonable access to the Base or Application Software to periodically reset such code; (b) you are notified of a default under any term of this Agreement; or, (c) your license is terminated or expires. B. Xerox may terminate your license for any Base Software (1) immediately if you no longer use or possess the Equipment or are a lessor of the Equipment and your first lessee no longer uses or possesses it, or (2) upon the termination of any agreement under which you have rented or leased the Equipment C. If you transfer possession of the Equipment after you obtain title to it, Xerox will offer the transferee a license to use the Base Software within the United States on or with it, subject to Xerox's then-applicable terms and license fees, if any, and provided the transfer is not in violation of Xerox's rights. D. Xerox warrants that the Base and Application Software will perform in material conformity with its user documentation for a ninety (90) day period from the date it is delivered or, for software installed by Xerox, the date of software installation. Neither Xerox nor its licensors warrant that the Base or Application Software will be free from errors or that its operation will be uninterrupted. 22. SOFTWARE SUPPORT. During the period that Xerox (or a designated servicer) provides Basic Services for the Equipment but in no event longer than five (5) years after Xerox stops taking orders from customers for their acquisition of the subject model of Equipment, Xerox (or a designated servicer) will also provide software support for the Base Software under the following terms. For Application Software licensed pursuant to this Agreement, Xerox will provide software support under the following terms provided you are current in the payment of all initial License and Annual Renewal Fees (or, for programs not requiring Annual Renewal Fees, the Payment of the Initial License Fee and the annual "Support Only" Fees). A. Xerox will assure that Base and Application Software performs in material conformity with its user documentation and will maintain a toii--free hotline during standard business hours to answer related questions. B. Xerox may make available new releases of the Base or Application software that primarily incorporate coding error fixes and are designated as "Maintenance Releases". Maintenance Releases are provided at no charge and must be implemented within six (6) months after being made available to you. Each new Maintenance Release shall be considered Base or Application Software governed by these Software Tema. New releases of the Base or Application Software that are not Maintenance Releases, if any, may be subject to additional license fees at Xerox's then-current pricing and shall be considered Base or Application Software governed by these Software Terms (unless otherwise noted). Xerox will not be in breach of its software support obligations hereunder if, in order to implement, in whole or in part, a new release of Base or Application Software provided or made available to you by Xerox, you must procure, at your expense, additional hardware and/or software from Xerox or any other entity. You agree to return or destroy all prior releases. C. Xerox will use reasonable efforts, either directly and/or with its vendors, to resolve coding errors or provide workarounds or patches, provided you report problems as specified by Xerox. D. Xerox shall not be obligated (1) to support any Base or Application Software that is two or more releases older than Xerox's most current release or (2) to remedy coding errors if you have modified the Base or Application Software. E. For Application Software, Xerox may annually increase the Annual Renewal and Support-Only Fees, each such increase not to exceed 10%. (For state and local- government Customers, this adjustment shall take place at the commencement of each of your annual contract cycles.) 23. DIAGNOSTIC SOFTWARE. Software used to maintain the Equipment and/or diagnose its failures "substandard performance (collectively "Diagnostic Software") is embedded in, resides on, or may be loaded onto the Equipment. The Diagnostic Software and method of entry or access to it constitute valuable trade secrets of Xerox Title to the Diagnostic Software shall at all times remain solely with Xerox and/or Xerox's licensors. You agree that (a) your acquisition of the Equipment does not grant you a license or right to use the Diagnostic Software in any manner, and (b) that unless separately licensed by Xerox to do so, you will not use, reproduce, distribute, or disclose the Diagnostic Software for any purpose (or allow third parties to do so). You agree at all times (including subsequent to the expiration of this Agreement) to allow Xerox to access, monitor, and otherwise take steps to prevent unauthorized use or reproduction of the Diagnostic Software. t',rJ LAMENT CUSTOMER TERMS: The following additional terms apply only to lease transactions with state and local government customers: 24. REPRESENTATIONS & WARRANTIES, FUNDING, TAX TREATMENT & PAYMENT. A. REPRESENTATIONS & WARRANTIES. You hereby represent and warrant, as of the date of this Agreement, that: (1) you are a State or a fully constituted political subdivision or agency of the State in which you are located and are authorized to enter into, and carry out, your obligations under this Agreement and any other documents required to be delivered in connection with the Agreement (collectively, the "Docirmems"); (2) the Documents have been duly authorized, executed and delivered by you in accordance with all applicable laws, riles, ordinances and regulations (including, but not limited to, all applicable laws governing open meetings, public bidding and appropriations required in connection with this Agreement and the acquisition of the Equipment) and are valid, legal, binding agreements, enforceable in accordance with their terms and the person(s) signing the Documents have the authority to do so, am acting with the full authorization of your governing body and hold the offices indicated below their signatures, each of which are genuine; (3) the Equipment is essential to the immediate performance of a governmental or proprietary function by you within the scope of your authority and shall be used during the lease term only by you and only to perform such function; and, (4) your obligations to remit payments under this Agreement constitute a current expense and not a debt under applicable state law and no provision of this Agreement constitutes a pledge of your tax or general revenues and any provision that is so construed by a court of competent jurisdiction is void from the inception of this Agreement. B. FUNDING. You represent and warrant that all payments due and to become due during your current fiscal year are within the fiscal budget of such year and are included within an unrestricted and unencumbered appropriation currently available for the leasetpurclime of the Equipment, and that it is your intent to use the Equipment for the entire lease term and to make all payments required under this Agreement. In the event that (1) through no action initiated by you your legislative body does not appropriate funds for the continuation of this Agreement for any fiscal year after the first fiscal year and has no funds to do so from other sources, and (2) you have made a reasonable but unsuccessful effort to find a creditworthy Xerox Form# 51860t&c (052005) 10/102006 Page 4 of 7 log assignee acceptable to Xerox in its sole discretion within your general organization who can connote this Agreement, this Agreement may be temunated. To effect this termination, you shall; thirty (30) days prior to the beginning of the fiscal year for which your legislative body does not appropriate funds for such upcoming fiscal year, send Xerox written notice _stating that your legislative body failed to appropriate funds and that you have made the required effort to find an assignee. Your notice must be accompanied by payment of all sums then owed through the current year to Xerox under this Agreement and must certify that the canceled Equipment is not being replaced by equipment performing similar functions during the ensuing fiscal year. In addition, you agree at you expense to term the Equipment in good condition to a location designated by Xerox and that, when returned, the Equipment will be free of all liens and encumbrances. You will then be released from your obligations to make any further payments to Xerox beyond those due for the current fiscal year (with Xerox retaining all sums paid to date). C. TAX TREATMENT. This Agreement has been accepted on the basis of your representation that Xerox may claim any interest paid by you as exempt from federal income tax under Section 103(c) of the Code. You agree to comply with the information reporting requirements of Section 149(e) of the Code. Such compliance shall include, but not be limited to, the execution of 8038-G or 8038-GC Information Returns. You hereby appoint Xerox as your agent to maintain, and Xerox agrees to maintain, or cause to be maintained, a complete and accurate record of all assignments of this Agreement in form sufficient to comply with the book entry requirements of Section 149(a) of the Code and the regulations prescribed thereunder from time to time. Should Xerox lose the benefit of this exemption as a result of your failure to comply with or be covered by Section 103(c) or its regulations, then, subject to the availability of funds and upon demand by Xerox, you shall pay Xerox an amount equal to its loss in this regard. At the time of execution of this Agreement, you shall provide Xerox with a properly prepared and executed copy of US Treasury Form 8038 u 8038-GC. D. PAYMENT. You payment is due within thirty (30) days of our invoice date. ADDITIONAL TERMS: The following additional terms apply only to the extent that you have agreed to one or more of the options described below: 25. CONSUMABLE SUPPLIES INCLUDED IN BASE/PRINT CHARGES. If this option has been selected, Xerox (or a designated servicer) will provide you with black toner (excluding highlight color toner), black developer, copy Cartridges, and, if applicable, fuser ("Consumable Supplies") throughout the tens of this Agreement. For full-color Equipment, Consumable Supplies shall also include, as applicable, color toner and developer. You agree that the Consumable Supplies are Xerox's property until used by you, that you will use them only with the Equipment, that you will return all Cartridges to Xerox for remanufaeturing once they have been nm to their cease-function point (at Xerox's expense when using Xerox- supplied shipping labels), and that at the end of the term of this Agreement either (a) you will return any unused Consumable Supplies to Xerox (at Xerox's expense when using Xerox-supplied shipping labels)or (b) destroy them in a manner permitted by applicable law. Should you use of Consumable Supplies exceed Xerox's published yields for these items by more than 10'%, you agree that Xerox shall have the right to charge you for any such excess usage. When requested by Xerox, you agree to provide meter readings and inventory of Consumable Supplies in your possession. 26. REPLACEMENT / MODIFICATION OF PRIOR XEROX AGREEMEN'T'. If this option has been selected, this Agreement will replace or modify a prior agreement between you and Xerox covering the specified equipment. If it is a replacement agreement, the prior agreement shall be null and void. If it is a modification, the prior agreement shall remain in effect except that any terms presented in this modification agreement that conflict with, or are additive to, any of the terms in the prior agreement shall take precedence over the terns in the prior agreement for the balance of the Agreement In addition, modifications requiring a reamortization of your payments may include a one-time administrativelprocessing charge that will appear on your first bill under this revised arrangement. 27. XEROX AS FINANCIAL INTERMEDIARY. If this option has been selected, you are leasing specifically identified products that were selected by you and that are not sold by Xerox in the normal course of its business. If you have signed a purchase contract for such products, by signing this Agreement you assign your rights but none of your obligations under such purchase contract to Xerox. With regard to these products, you agree that Xerox is leasing them to you "AS IS, WHERE IS" and that XEROX HAS NOT MADE, AND YOU HEREBY WAIVE, ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRAN'T'IES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMIENT, and (b) ANY REPRESENTATION OR WARRANTY REGARDING THE PRODUCTS' SUITABILITY, DESIGN, CONDITION, DURABILITY, OPERATION, QUALITY OF MATERIALS OR WORKMANSHIP, OR COMPLIANCE WITH SPECIFICATIONS OR APPLICABLE LAW. Xerox assigns to you, to the extent assignable, any warranty Xerox Form# 5I860t&c (052005) 10/10/2 rights it has to these products (which rights shall revert to Xerox if you breach this Agreement). You agree (1) that these products are not covered by Xerox's obligation to provide Basic Services; (2) to maintain a-service agreement for these products with a service provider acceptable to Xerox throughout this Agreement's term; (3) to pay all personal property taxes related to these products; and (4) to assign to Xerox any rights you have to these products until tide passes from Xerox to you (which, subject to any software licenses surrounding the acquisition of these products, shall occur when you obtain title to all Xerox-brand Equipment covered by this Agreement). 28. FINANCED SOFTWARE TOTAL. If this option has been selected, the initial license fees for any Application Software set forth in this Agreement shall be paid for through your Minimum Lease Payments. If you breach this license or any of your obligations regarding the Equipment, the full amount of the initial license fees shall be immediately due and payable. 29. FINANCED SUPPLIES TOTAL. If this option has been selected, the cost of any supplies you have purchased under this Agreement shall be paid for through your Minimum Lease Payments. If you breach any of you obligations regarding the Equipment, the full amount of the supply costs shall become immediately due and payable. 30. REFINANCE OF PRIOR AGREEMENT. If this option has been selected, the balance of your prior indicated agreement with Xerox or a third party shall be paid for through your Minimum Lease Payments. If you prior agreement is with a third party, you hereby acknowledge that you have the right to terminate the agreement and agree to provide a statement from the third-Party identifying the equipment at issue and the amount to be paid off (as well as a statement from you identifying the payee and mailing address for your payoff check). If your prior agreement was with Xerox, the use of this refinance option shall render your prior agreement null and void. If you breach this Agreement, the full amount of your prior agreement balance shall be immediately due and payable. 31. ADJUSTMENT PERIOD. If this option has been selected, your Minimum Lease Payment and/or Print Charges shall be adjusted in accordance with the information contained in the Adjustment Period portion of this Agreement; as a result, your initial payment(s) shall be different from those payable during the balance of this Agreement. 32. K-16 BILLING SUSPENSION. If this option has been selected, the Maintenance Component of your Minimum Lease Payment and Print Charges will be suspended each year during the months indicated. During these months, you agree that you will not use the Equipment and that Xerox shall not be responsible for providing Basic Services on iL If Xerox provides Basic Services during the K- 16 Billing Suspension period, you will be billed at Xerox's then-current Time and Materials ('T&M") rates for such Basic Services. 33. TRADE-IN EQUIPMENT. If this option has been selected, you are providing equipment to Xerox as part of this Agreement ('Trade-In Equipment") and the following shall apply: A. TITLE TRANSFER. You warrant that you have the right to transfer tide to the Trade-In Equipment and that it has been installed and performing its intended function. Title and risk of loss to the Trade-In Equipment shall pass to Xerox when Xerox removes it from your premises. B. CONDITION. You warrant that the Trade-In Equipment is in good working order, has not been modified from its original configuration (other than by Xerox), and has a UL label attached. You agree to maintain the Trade-In Equipment at its present site and in substantially its present condition until removed by Xerox. C. ACCRUED CHARGES. You agree to pay all accred charges for the Trade-In ]equipment (up to and including payment of the Final Principal Payment Number) and to pay all maintenance, administrative, supply and finance charges for this equipment through the date fide passes to Xerox. 34. RUN LENGTH PLAN. If this option has been selected, the first ten prints of each original (per ton) are recorded and billed on both meters with all subsequent prints recorded and billed on Meter A only. 35. FIXED PRICE PLAN. If this option has been selected, Xerox will forego its right to increase the Maintenance Component throughout the initial term of this Agreement. 36. PER-FOOT PRICING. If this option has been selected, all Print Charges will be billed on a per-foot basis, with each linear or square foot, as applicable, equal to one print. 37. EXTENDED SERVICE HOURS. If this option has been selected, Xerox will provide Basic Services during the hours indicated, with the first number establishing the number of eight-hour shifts covered and the second establishing the days of the week (e.g., 2 x 6 would provide service from 8:00 A.M. to 11:59 P.M., Monday through Saturday). The cost of this enhanced service coverage will be 006 Page 5 of 7 billed separately and, as such, is not included in your Minimum Lease Payment or Print Charges. 38. ATTACHED ADDENDA. If this option has been selected, you acknowledge that one or more specit-led addenda (as indicated) have been provided to you. These addenda, which provide additional terms relevant to the transactions covered hereunder, are hereby fully integrated into this Agreement. 39. NEGOTIATED CONTRACT. If this option has been selected, the Products identified in this Agreement are subject solely to the terms contained in (a) either (1) the identified Negotiated Contract for a lease transaction or (2) if there are no such terns in the Negotiated Contract, the terms set forth in this Agreement, and, if applicable and notwithstanding anything to the contrary set forth in the Negotiated Contract, (b) the "Additional Terms" portion of this Agreement for the selected option or options to the extent the subject matter of any such selected option is not addressed in the Negotiated Contract. 40. USA CONTRACT NUMBER. If a USA Contract Number has been inserted, the Equipment and/or software identified in this Agreement are associated with the Services being provided under the referenced Document Services Agreement ("DSA"), but such Equipment and/or software are subject solely to the terms contained in this Agreement For customer support tools to manage your account online, visit your Account Management link @ www.xerox.com Xerox Fornti 518601&c (052005) 10/10/2006 Page 6 of 7 AGREEMENT ADDENDUM XEROX. (TEXAS GOVERNMENTAL. ENTITY AS LESSEE) This ADDENDUM ("Addendum") amends the agreement between you and Xerox to which it is attached (the "Agreement'). The parties agree to the following terms: 1. Under the heading of the Agreement titled "GOVERNMENT CUSTOMER TERMS", the Section titled "FUNDING" is deleted in its entirety and the following is inserted in its place: FUNDING. You represent and warrant that all payments due and to become due during your current fiscal year are within the fiscal budget of such year and are included within an unrestricted and unencumbered appropriation currently available for the lease/purchase of the Equipment, and that it is your intent to use the Equipment for the entire term of this Agreement and to make all payments required under this Agreement. In the event that your legislative body does not appropriate funds for the continuation of this Agreement for any fiscal year after the fast fiscal year and has no funds to do so from other sources, this Agreement may be terminated. To effect this termination, you shall, thirty (30) days prior to the beginning of the fiscal year for which your legislative body does not appropriate funds for such upcoming fiscal year, send Xerox written notice stating that your legislative body failed to appropriate funds. Your notice must be accompanied by payment of all sums then owed through the current fiscal year to Xerox under this Agreement In addition, you agree at your expense to return the Equipment in good condition to a location designated by Xerox and that, when returned, the Equipment will be free of all liens and encumbrances. You will then be released from your obligations to make any further payments to Xerox beyond those due for the current fiscal year (with Xerox retaining all sums paid to date). Except as specifically amended by this Addendum, all of the other terms set forth in the Agreement shall remain in full force and effect. 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