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HomeMy WebLinkAbout16790 ORD - 12/30/1981, mb;9/4/81;lst AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE WITH RUST PROPERTIES IN ACCORDANCE WITH ARTICLE IX, SECTION 29, OF THE CITY CHARTER FOR THE LEASING OF CERTAIN AERIAL PREMISES, ALL AS MORE FULLY SET FORTH IN THE LEASE, A SUBSTANTIAL COPY OF WHICH IS ATTACHED HERETO AND MADE A PART HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager be authorized to lease with Rust Properties in accordance with Article IX, Section 29, of the City Charter for the leasing of certain aerial premises, all as more fully set forth in the lease, a substantial copy of which is attached hereto and made a part hereof. 16790 SEP 2 8.19_8,4�GOOBLMED. LEASE THE STATE OF TEXAS COUNTY OF NUECES This Lease is executed by and between the CITY OF CORPUS CHRISTI, TEXAS (hereinafter called "Lessor") and RUST PROPERTIES, a developing company located in Austin, Texas, acting by and through its duly authorized officer (hereinafter called "Lessee"), for the consideration and upon the agreements hereinafter set forth. ARTICLE I DEMISE OF LEASED PREMISES For and in consideration of the rents to be paid by Lessee and the agreements herein set forth, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, for the term hereinafter set forth the premises more particularly described in Exhibit D attached hereto (hereinafter called "Aerial Leased Premises") and the premises more particularly described in Exhibit E attached hereto (hereinafter called "Overhang Easement"). The Aerial Leased Premises and the Overhang Easement shall hereinafter be collectively referred to as the "Leased Premises". This Lease is made pursuant to the authority granted in, and in accordance with the provisions of, Article IX, Section 29 -of the Corpus Christi City Charter. ARTICLE II LEASE TERM . Section 2.01 - Length. This Lease shall be for a term of sixty (60) years beginning January 1, 1982, and ending at midnight on December 31, 2042, subject, however, to earlier termination as hereinafter provi ded. Section 2.02 - Holding Over by Lessee. In the event Lessee remains in possession of the Leased Premises after the expiration of this Lease, it shall be deemed to be occupying said premises as a tenant at sufference. NOTICE: PORTIONS OF THIS LEASE ARE SUBJECT TO ARBITRATION UNDER THE TEXAS GENERAL ARBITRATION ACT, TEX.REV.CIV.STAT.ANN., ARTICLE 224, ET. SEQ. (VERNON 1973) and any holding over shall constitute, at Lessor's option, a month-to- month lease subject to all of the agreements, covenants and obligations of this Lease insofar as same are applicable to a month-to-month tenancy. ARTICLE III RENT Section 3.01 - Rental for Aerial Leased'Premises. As rental for the Aerial Leased Premises, Lessee agrees to pay Lessor the total sum of Thirteen Thousand Seven Hundred Seventy and No/100 Dollars ($13,770.00), as rental for the full term, which rental shall be paid by Lessee to Lessor upon execution of this Lease. Section 3.02 - Rental for Overhang Easement. As rental for the Overhang Easement, Lessee agrees to pay Lessor the total sum of -" Six Hundred and No/100 Dollars ($600.00), as rental for the full term, which rental shall be paid by Lessee to Lessor upon execution of this Lease. Section 3.03 - Rent Not Refundable. No part of the rental paid by Lessee shall be refunded in the event that this Lease is terminated prior to its full term. ARTICLE IV THE AERIAL LEASED PREMISES _.__Section 4.01 - Use of Aerial Leased Premises. Lessor hereby grants Lessee the right to use the Aerial Leased Premises for, but only for, the construction, installation, maintenance, repair, removal and replacement within the Aerial Leased Premises of an enclosed structure (hereinafter referred to as "Structure"), which Structure will connect the Texas Commerce Plaza with the parking facilities to be constructed by Lessee on the East and West sides of the Aerial Leased Premises. Lessee may also use Aerial Leased Premises for the construction, maintenance, repair or removal of the building overhang, more fully described hereafter and on Exhibit B, attached hereto, on N. Tancahua Street between Antelope Street and Buffalo. -2- Lessee's actions in accomplishing the foregoing shall comply with applicable ordinances of the City of Corpus Christi. A detailed architectural plan of the Structure together with a drawing of the Structure's exterior is attached hereto and incorporated herein as Exhibit A. Lessee shall make no substantial change in the architec- tural plan or the exterior appearance of the Structure, as they appear in Exhibit A, without Lessor's consent. Section 4.02 - Use of Surrounding Premises. Lessor hereby grants Lessee the right to use so much of the premises below, above, and adjacent to the Aerial Leased Premises (hereinafter referred to as "Surrounding Premises") as may be reasonably necessary to construct, install, repair, remove, and replace the Structure; provided, however, that_lessee's use of the Surrounding Premises shall comply with applicable ordinances of the City of Corpus Christi. Section 4.03 - Use of Structure. The Structure shall be used for the movement of pedestrians and goods between Lessee's building and parking facilities adjacent to the Aerial Leased Premises, for the containment of electrical power lines, and for such other purposes as are consistent with the design and plan of the Structure; provided, however, that the Structure shall not be used for storage or occupancy, and further that the minimum live load to be used in the design of the structure shall be 125 pounds per square foot to be considered as uniformly distributed. Section 4.04 - Maintenance. Lessee shall safely maintain said Structure and regulate the use and occupancy thereof so that the Structure or the use thereof will not be a hazard or danger to the persons or property of the public using the street below said Structure. Section 4.05 - Minimum Elevation of Structure. Lessee agrees that no part of the Structure shall be lower than sixteen (16.0) above the crown of North Carancahua Street below the Structure, said elevation to be determined as of the date this Lease is executed and not to be affected by subsequent changes in the elevation of the crown of the street. -3- Section 4.06 - Lighting of Structure. Lessee shall install and maintain lighting on and underneath the Structure if Lessor determines such lighting to be necessary to eliminate any significant nighttime shadow areas caused by the Structure's interference with surrounding street lighting. Section 4.07 - Removal of Facilities. Lessee shall, upon demand by the Lessor, pay such charges as may he incurred• by the Lessor for the removal of any facilities, utilities or structures between the street lines and underneath the Structure which are made necessary by reason of the construction of the Structure. Section 4.08 - Signs. Lessee shall not maintain or allow any signs on or within the Structure in such a manner that the sign is visible from the outside of the Structure, except for such signs that may be required be law. Section 4.09 - Destruction of the Structure. In the event the Structure shall be totally or partially destroyed by fire, hurricane or other storm, explosion or any other casualty, and if Lessee does not within twelve (12) months from the date of such destruction commence recon- struction and thereafter carry it to completion with due diligence, this Lease shall terminate and end as to the Aerial Leased Premises as of the end of said twelve (12) month period or the cessation of reconstruction with due -diligence, whichever last occurs. This Lease, however, shall continue in full force and effect as to the Overhang Easement. Section 4.10 - Entry by Lessor. Lessor, by its officers, agents or employees, may at all reasonable times enter upon the Aerial Leased Premises to view the condition of the Structure. Section 4.11 - Discontinuance of Use of Structure. In the event Lessee shall discontinue use of the Structure for the purposes hereinbefore described for e period of Twelve (12) consecutive months for reasons other than destruction of the Structure, this Lease shall terminate and end as to the Aerial Leased Premises, but shall continue in full force and effect as to the Overhang Easement. -4- Section 4.12 - Removal of Structure. Within forty-five (45) days after the termination of the Lease with respect to the Aerial Leased Premises, Lessee shall remove the -Structure at its own expense, regardless of Lessor's failure to demand removal or to give any notice, other than a notice of termination that may be required by other provisions of this Lease. If Lessee fails to remove the Structure in accordance with this section, then Lessor may remove the Structure and require Lessee to pay the expense of removal within thirty (30) days therefrom. ARTICLE V OVERHAND EASEMENT Section 5.01 - Construction of Overhang and Flagpoles in the Overhang Easement. --Lessor hereby grants Lessee the right to use the Overhang Easement for, but only for, the construction, maintenance, installation, repair, replacement, and removal above and upon such easement of a building overhang and two flagpoles, plans for which are attached and incorporated herein as part of Exhibit 6. No sub- stantial change shall be made to the ground level clearance or pro- jection into the public right of way of the overhang or location of the flagpoles without the prior written consent to Lessor. Lessee's actions in accomplishing the foregoing and in its use of the surface of the right of way shall comply with applicable ordinances of the City of Corpus Christi. Section 5.02 - Maintenance of Overhang. Lessee shall safely maintain said overhang and regulate the use thereof so that the overhang or use thereof shall not be a hazard or danger to the persons or property of the public using the right of way below said overhang. Section 5.03 - Destruction of Overhang. In the event the overhang shall be partially or totally destroyed for any reason whatsoever, and, if Lessee does not within six (6) months from the date of destruction commence reconstruction and thereafter carry it to completion with due diligence, this Lease shall terminate and end as to the Overhang Easement as of the end of said six (6) month period or the cessation of reconstruction with due diligence, whichever last occurs. This Lease, however, shall continue in full force and effect as to the Aerial Leased Premises. _F_ Section 5.05 - Removal of Overhang and Flagpoles. Within forty-five (45) days after the termination of the Lease, Lessee shall remove the overhang and flagpoles at its own expense, regardless of Lessor's failure to demand removal or to give any notice, other than notice of termination that may be required by other provisions of this Lease. If Lessee fails to remove the overhang or flagpoles in accordance with this section, then Lessor inay remove the overhang and flagpoles and require Lessee to pay the expense of removal. ARTICLE VI INSURANCE AND INDEMNITY Section 6.01 - Insurance and Indemnity. Lessee shall maintain and keep in force during the term of this Lease legally binding policies of insurance for claims arising out of the construction, existence, use,operation, maintenance, alteration, repair or removal of the Structure or the overhang and flagpoles, and Lessee shall cause current certificates of such insurance to be filed in the Office of Lessor's City Secretary. Such policies of insurance shall be issued by a company or companies of sound and adequate financial responsibility either authorized to do business in the State of Texas or amenable to service of valid process therein. Such insurance shall be of the following types and, subject to Section 6.02 of this Lease, in the following minimum amounts: 1. Comprehensive General Public Liability Insurance: Bodily Injury $1,000,000.00 per person $1,000,000.00 per occurrence Property Damage $1,000,000.00 per occurrence 2. Worker's Compensation and Employers Liability Insurance in the amounts and form required by the Worker's Compensation Act and the insurance laws of the State of Texas. The Comprehensive General Public Liability Insurance shall include the City as a named insured. The naming of the City as an additional insured in such Comprehensive General Public Liability policies shall not thereby cause the City to be deemed a partner or joint -6- venturer with Lessee in its businesses or in connection with its construction of the Structure or the Waterlines. Said policies of insurance shall be performable in Nueces County, Texas, and shall be construed in accordance with the laws of the State of Texas. Furthermore, said policies of insurance shall not be subject to cancellation by insurers except after delivery of written notice by registered mail to Lessor's City Secretary at least fifteen (15) days prior to the effective date of such cancellation, provide Lessor with substitute certificates of insurance. Section 6.02 - Renegotiation of Insurance Amounts. Five (5) years from the date this Lease is executed, and at five (5) year intervals thereafter, either party may initiate renegotiation of the amounts of the insurance required by Section 6.01 of this Lease by notifying the other party within one month after the beginning of the new five (5) year period, of its desire to do so. In renegotiating the insurance amounts, the parties shall seek to agree on amounts which are commercially reasonable in light of all the circumstances, including changes in the cost of living and changes in the tort claims experience of businesses and governmental entities_generally. If the parties are unable to agree on the insurance amounts within two (2) months after the beginning of the new five (5) year period, any areas of disagreement shall be settled by binding arbitration, the arbitrator to be chosen in accordance with the rules of the American Arbitration Association. Section 6.03 - Indemnity. Lessee shall indemnify and hold Lessor free and harmless from any and all losses, damages, claims or causes of action incurred by or asserted against Lessor for personal injuries, or death, or property damage arising out of the construction, existence, use, operation, maintenance, alteration, repair or removal of the Structure or overhang and flagpoles. - ARTICLE VII DEFAULT Section 7.01 - Lessor's Remedy for Default. In the event default shall be made at any time by Lessee in payment of rent, or if default shall be made in any of the other terms and conditions to be kept, -7- observed and performed by Lessee, and any such default shall continue for thirty (30) days after written notice thereof by registered or certified mail to Lessee from Lessor, then Lessor may at any time thereafter, prior to the curing of such default by Lessee, declare the terms of this Lease ended and terminated by giving Lessee written notice of such termination. Section 7.02 - Waiver of Rights. The failure of Lessor or Lessee to insist on strict performance of any of the terms, covenants, or conditions of this Lease shall not be deemed a waiver of any right or remedy that Lessor or Lessee may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants and conditions of the Lease thereafter or a waiver of any remedy for the subsequent breach or default of any term, covenant or condition of the Lease. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.01 - Limitation of Leasehold. Lessor does not warrant its title to the Leased Premises and does not guarantee Lessee's quiet possession of them. This Lease and the rights and privileges granted Lessee in and to the Leased Premises are subject to all covenants, conditions, restrictions and exceptions of record or apparent. Nothing contained in this Lease shall be construed to imply the conveyance to Lessee of rights in the Leased Premises that exceed those owned by Lessor. Section 8.02 - Notices. All notices required hereunder shall be deemed properly served' when deposited in the United States Mail in a prepaid wrapper via registered or certified mail and addressed as follows: To Lessor at: City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78408 To Lessee at: Rust Properties Post Office Box 2026 Austin, Texas 78767 unless notice of change of address is properly given in writing, in accord ti•iith the provisions of this section. Notices sent to Lessor shall be addressed to the attention of its City Manager unless some other provision -8- of this Lease requires a particular notice to be sent to a different specified City officer, in which case the notice shall be addressed to the attention of that officer. Section 8.03 - Binding Agreement. It is further mutually understood and agreed that the covenants and agreements contained in the Lease, to be performed by the respective parties, shall be binding on the said'parties, and their respective successors and assigns. Section 8.04 - Other City Ordinances. This Lease and the ordinance under which it is executed shall not operate to repeal, rescind, modify or amend any ordinances or resolutions of the City of Corpus Christi relating to the use or obstruction of streets, the granting of permits and any regulations relating to the preservation of order and movement of traffic, or any other ordinances, resolutions or regulations not specifically set forth in the ordinance of which this Lease is a part. Executed this day of , 1981. ATTEST: City Secretary APPROVED: DAY OF DECEMBER, 1981 J. Bruce Aycock, C. y Attorney APPROVE x/t ' �b / s.fsta t Cit Manager ATTEST Secretary LESSOR: CITY OF CORPUS CHRISTI, TEXAS By: -9- Ernest M. Briones, Acting City Manager LESSEE: RUST PROPERTIES By: EXHIBIT D Being a tract of land out (above) of 60 foot wide North Carancahua Street right of way and further described as follows: Beginning at a point being the Northeast corner of Block 10, Bluff Portion, as recorded in Volume A, Page 3, map records, Nueces County, Texas. Thence South along the West right of way of said North Carancahua Street and the West boundary of said Block 10, 73.0 feet to the point of beginning of this tract; Thence S45°E across said right of way, 84.85 feet to a point on the East right of way line of North Carancahua, being _ a point on the West boundary of the Northwest corner; Thence South along said right of way 21.21 feet to a point; Thence N45°W 84.85 feet to a point on said West right of way line North Carancahua Street; Thence North along said right of way line 21.21 feet to the point of beginning and containing,1272.75 square feet, more or less. Texas Commerce Plaza Skyway EXHIBIT E REVOCABLE EASEMENT - NEW POST OFFICE CANOPY Beginning at a point being the Northwest intersection of Antelope Street and N. Tancahua Street right of •way lines. Thence in a northerly direction along the. East right of way line of said N. Tancahua Street 98.67 feet to the point of beginning of this tract; Thence in a westerly direction toward the centerline of said N. Tancahua Street 6.75 feet to a point; Thence in a northerly direction 6.75 feet from and parallel to the East right of way line of said N. Tancahua Street 116.00 feet to a point; Thence in an easterly direction 6.75 feet to a point on said East right of way; - Thence in a southerly direction along said right of nay line 116.00 feet to the point of beginning. _ Legal: West 1/2 Block 10, Bluff Portion That the foregoing ordinance was read for t first time and passed to its second reading on this the /6 day of , 19'4/ , by the following vote: Luther Jones Betty N. Turner Jack K. Dumphy Bob Gulley Herbert L. Hawkins, Jr. Dr. Charles W. Kennedy Cliff Zarsky That the foregoing ordinance was read for t thirdreadingon this the day of fol l owi ng. vote: __Luther Jones - Betty N. Turner Jack K. Dumphy Bob Gulley Herbert L. Hawkins, -Jr. -Dr. Charles W. Kennedy Cliff Zarsky second time and passed to its ina--mie.4 , 19 51/ • , by the . That the foregoinc ordinance w read f r the -third time and passed finally on this the .Sb day of 19/7 , by the following vote: -- Luther Jones- - Betty N. -Turner -- - Jack K. Dumphy - - Bob Gulley - Herbert L. Hawkins, Jr. Dr. Charles W. Kennedy Cliff-Zarsky 401 PASSED AND APPROVED, this the .30 day of •�a� �/ , 196/ ATTEST: City' ecretary APPROVED: ,3() DAY OF , 19fnn/: J. BRUCE AYCOCK, CITY ATTORNEY By Assistant City Attorney //Sew - MA IR CITY OF CORPUS CHRISTI, TEXAS 16790 I . L. STATE 'OF TEXAS, last :ounty of Nueces. J PUBLISHER'S AFFIDAVIT v. 343993 CITY OF C.C. 7Foi A Before me, the undersigned, a Notary Public, this day personally came BILLIE J. HENDERSON who being first duly sworn, according to law, says that he is the ACCOUNTZKa..QL.K of the Corpus Christi Caller and The Corpus Christi Times, Daily Newspapers published at Corpus Christi, Texas, in said County and State, and that the publication of NOTICE OF PASSAGE OF ORDINANCE ON DECOND READING.,-,-„,,, of which the annexed is a.true copy, was published in CORPUS CHRISTI CALLER -TIMES on the. 28th day of DECEMBER. 19 81 and once each consecutive day one Times. 27.06 Subscribed and sworn to before me this day BILLIE J. HENDERSON thereafter for one 7a,-7 (5eortag-- 5th day of JANDUAI 19 82._ NotaryP li Nueces County, Texas STATE OF TEXAS, to:County of Nueces. PUBLISHER'S AFFIDAVIT v. 343952 CITY OF C.C. ??b Before me, the undersigned, a Notary Public, this day personally came p, TTd,TF,,,d...13ENDERSDDi who being first duly sworn, according to law, says that he is the ACCOUNTING CLERK of the Corpus Christi Caller and The Corpus Christi Times, Daily Newspapers published at Corpus Christi, Texas, in said County and State, and that the publication of NOTICE OF PASSAGE OF ORDINANCE ON FIRST READING..... CORPUS CHRISTI CALLER -TIMES of which the annexed is a true copy, was published in on the.21 at day of MEMBER 19.81..„ and once each day thereafter for one consecutive one day 26.24 Times. ..BILLI.8. d_...HERDER, ON.- Subscribed and sworn to before me this 28th day of LOIS..JlINN. Notary Pub DECEMBER Xdi.z2dp, 19...81 ounty, Texas STATE OF TEXAS, County of Nueces. }ss: PUBLISHER'S, AFFIDAVIT v. 344590 CITY OF c.c. /6.770 Before me, the undersigned, a Notary Public, this day personally came HTI,LIE.J...HENDERSON. ., who being first duly sworn, according to law, says that he is the ACCOUNTING CLERK of the Corpus Christi Caller and The Corpus Christi Times, Daily Newspapers published at Corpus Christi, Texas, in said County and State, and that the publication of NOTICE OF PASSAGE ON DECEMBER 30, 1981 OF ORDINANCE N0. 16790......., of which the annexed is a true copy, was published in on the. 4th day of JANUARY 19 82 , and once each consecutive day CORPUS CHRISTI CALLER -TIMES one Times. 636.32 Subscribed and sworn to before me this day thereafter for BILLIE J. HENDERSON one 6th day of JANUARY 19 82 LOIS WINN j1��nJ Not u�lic, Nueces County, Texas .1.; KI-7!;s.'arriz.77.77;mxT.;1,.v.irrrtnifv.r4 0:44 -stte L OFOVERHANGAND :Tired' I» Section 6 01 of 1hi5 FLAGPOLES. Within forty. Lease by net,fying the other true (45) days alter the ter- party within one me alter urination of the Lease, Les- the begithing a nit live see shall remove the over- t5) year period, Of. its desire hang and flagpoles at its own to do so. In rene9o,ating the expense, regardless of Les- Insurance amSunts,7he par-, son's failure to demand re- (les sha)I seek to agree ons Other or to glue any notic amounts which are coin- other than notice of ermi• merolally reasonable in light nation that may be required iof all the circumstances, In• by other provisions of this IL"' d >I an9es`in the cost of Lease If Lessee fails to re- living and cha.n$:In the tor, move the overhang or flap• claims expene'-7iSS00 of Ws,y poles in accordance with this messes and governmental e section, then Lessor may re- t,ties generally, 11 the par - move the overhang and flag. 7 ties are unable to agree on Poles end require Lessee to she insurance amounts with - pay the expense of removal. In two (2) months after the ARTICLE VI beginning of the new five (5) with - INSURANCE AN 9 9 INDEMNITY year period, any arcasof dm - SECTION 6.01 • INSUR- agreement shall be settled ANCE ANO INDEMNITY, by binding arbitration, the Lessee shall maintain and arbitrator to be'CtNSEn in ac - keep in force during the term cordance with the rules of of this Lease legally binding the American Arbitration polices of insurance for Association 7 claims arising out of the con- SECTION 6.03 - (N- struction, existence, us-, •.- DEMNITY. Lessshall In• erat,on, maintenance, alter- , demmfy and holsor tree ation, repair or removal of and harmless Ir any and the Structure or the deer• all losses, dame es, claims hang and flagpoles, es- or causes of action incurred see shall cause curre cer- by or asserted against Les- tificates of such insurance to sor for personal Injuries, or be filed in the Office of Les- death, or property damage sor's City Secretary. -Such arising out of the construe - policies of insurance shall be tion, existence, use, oper- Issued by a company or com• anon, alteration, repair or ponies of sound and ade- removal of the Structure or quote financial responsi- overhang and flagpoles. bdity either authorized to do ARTICLE VII business In the State of •DEFAULT Texas or amenable to ser - Such 7 0l -t E SOR'S ice 0)o lid cit shall be of REMEDY FOR 'DEFAULT. Such insure nee shall be of In the event default shall be the following types and, sub- - made at any tim essee jest to Section 6.02 of ljus in Payment of r or f Lease, in the follow! min- default shalt be de in any imum amounts: of the other terms and condi- , 1. Comprehensive General Public Liabilitytions to be kept, observed 'Insurance• 'and performed by Lessee, Bodily Injury,�-sf/1( and any such default shall 51,W0,000.00 per persbnW continue for thirty (30) days . 51.000,000 00 per occur• after written notice thereof ranee Property 'Damage... by registered or certjhed mail to Lessee trom Lessor, S1,000,000 00 per occurrence then Lessor may at any time and Employers Liability In. 2. Worker's Compensation thereafter, prior to the cur- ing of such default by Les• surance in the amounts and . See, dee clare the he terms m f this erted form required by the Work- giving Lessees ritten 00 - Stateinsurance lawsan Act the lice of such nation. Sha int Texas of the StTte al Texas The Comprehensive Insur- ance Public Liability City as ance Shall include the City as a named insured. The -nam= Ing of the City as an addition- al insured in such Compre- hensive General Public Lability policies shall not thereby cause the Canto be deemed a partner op7o'nt venturer with Lessee in ds business or in connection with its construction of the Structure or the Waterlines Said policies of insurance shall be performable in 1Nueces County, Texas, and Ishall be construed in accord- ance with the layws of the State of Texas. Further- more, said policies of insur- ance shall not be subject to cancellation by insurers cept after delivery of • i en notice by registered mall to Lessor's City Secretary at least Idteen (15) days prior to the effective date of such cancellation, provide Lessor with substitute' certificates of insurance fV) { SECTION 6.04'1! RE- NEGOTIATION OF INSUR- ANCE AMOUNTS. Five (5) years from the date this Lease is executed, and -at• five (5).year intervals thele- efter, either party may 10,- ..0... date, renegotuatterLo N..fhe SECTION 702 - WAIVER OF RIGHTS The failure of Lessor or Less to insist on strict perfor ce of any of the terms, c enants, or con- ditions el this Lease shall not be deemed a waiver of any right or remedy that Lessor or Lessee may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants and condi- tions of the Lease thereafter or a waiver of any remedy for the subsequent breach or default of any term, cov enant or condition of the Lease. ARTIC VIII 1 MISCELLASNOEOS S PROVI- SECTION 8.01 - LIMIT', TION OF LEASEHOLD. Lessor does not warrant its title to the Le d Premises 11 and does n t rantee Les• see's quie osses5ion of them. This Lease and the rights and privileges granted Lessee in and 10 the Leased Premises are subject to all covenants, conditions, re• stricfjons and exceptions of record or apparent Nothing contained in this Lease shall be construed to imply the conveyance to Lessee of; rights in the Leased Prem- ises exceed -bible own m�or CE `Tis'Et1 °•Id- ra of way, PodnotiLN802•(006 ( p55:f int onnotice0 deeme ale[!'s40 lee to a Po nit hoershall bedeemed;'[•. 'g isy� of wayl nitysUplle when tleposi , ,tlOrtrCagancahua, ahe UnwteaPtetlr5 aareglsi point OCnatthae West boundary ered o wrap along steal ddr or centjf tl mall and ofThener15au2121 flet to a addressed as follows: right of w6Y TO LESSOR AT: City of Corpus Christi p° • Thence 045 degree,W 84.85 Past OfficC Box i,77Texas feet to a point on, North est Corpus Christi, right 0) way line 784°8 'r rancahua Strath along said 00 LESSEE ies- Thence Nor 1 Post Properties ht of way tine 21.21 act to Post Office Box 2026 the pont of beginning and Austin, Texas 78767 (272,78 square dries, notice of change a n feeanore or )eSS. dr writing, is, pracc� givenTexas Commerce P)a p OVIST S accord secith the EXHIBIT 0 pr Noti els sent to of this oresr hallr-SKYW6y ABLE EASEMENT be addressed tolhe a°ttentioln' RFILOC of its City Manager unless NEW POST OFFICE some other provision of this CANOPY neace to b to a tdiNer•' 809,00109 at b pointibl,g0 ens sp e b the North; t fltet eJ N. Tan - SECTION ant cheap ty officer, 11 Aatua e-Stre n t 0t way winch case 100 notice snail -Antelope Ye addressed to the attention Imes orthefly- d' - of that 8 Thence ine athe East right T - BINDtNG rection along Ten• ,AGREEMENT It is further of way line 0f said N. lagnend 11 understood and cahua Street 98.67 feet0+0 th i and ao that Inc Covenants Dint of 5001mm�9 '� 0 agree.ment5 contained in I tract, Inc Lease, to be Perlo tineas Thence in a westerly d,rec- the , respective Pa tion toward the centerline of Shall bet binding orelpe saitl •sold N. Tancahua Street 6 75 'parties, and their respective tees to 0 pomhi" successors and assignTHER Thence in a northerly di• 0 SECTION 8.09 rection of 6.15 feet iromht as CITY ORDINANCES. This araliel t0 the East 1'19 Lease and the ordinance un- way line of said N. Tancahua pot opch it is executeal shaell Street (16 W feet to a Point, Po operate tVAP- Thence in an easterly al- orli0cinda atemodifend any reckon 6 751@@t (00 point on ordinances or olutions of said East c,Ctp °1 way' RE - 'The City of Corpus Christi re • Thence t a saidh� 9h1 a°f hating to the use or he grbani n9 rection alo 9 t to the tion of streets, regu- way ('n! 1)6.00 feG of permits and any int of beg'noing- Block 10. talions relating tethe eraser• P°Ldgal: WesMtjart 'h vation of order teethe move- Bluff portion APS, RE- ent of trdltic, 0L afiy otherTE AS ExH6)E- Strec- Set fornces, resolutions or NE0000'TTO 'regulations not ospeed rdinance of2° C AR ON FIL Set forth 5 the ordinance of N ,T E OFFICE OF,'THS Which this Leasers a day of i Y e p Executed uric -- 1981. ATTEST: City Secretary VV eLESSOR. CITY OF CORPUS CHRISTI BY - _— Ernest M. Brione5 Acting City Manager APPROVED: t-08-1DAY OF DECEMBER, • Bruce Aycock, - City Attorney IAPPROVED:-s•Jamesnt10 Assistant City Manager TTEST: Secretary LESSEE: RUST'PROPERTIES By: -- EXHIBIT D Being a )ra0t of land out (above) ot»5 foot wide North Carancahua Street right of way and further described as follows; Beginning ata point of be- . Ing the Northeast corner of Block 10, Bluff Portion, as 'recorded in Volume A, Page ,3, map resorbs, Nueces County, Texas. .County, South along the West right of way of said iNorth Carancahua Street s�1 d Block 18.730 feet (o the nt of 609105 ag of Mr wra NO ,ICE O ASSAGE 1ON DECEMBER 30 1981 OF ORDINANCE// NO. 16790 (V� AUTHORIZING THE CIT MANAGER TO EXECUTE A LEASE WITH RUST PROPERTIES IN ACCORD. ANCE WITH ARTICLE IX, SECTION 29, OF THE CITY CHARTER FOR THE LEAS- ING OF CERTAIN AERIAL PREMISES, ALL AS MORE FULL SETA FORTH SUBSTANTIALCOPSE, COPY OF WHIC4i IS AT- TACHED HERE MADE A PART HEREOF, BE IT ORDAINED BY THE CITY COUNCIL OF :THE CITY OF CO CHRISTI TEXAS, SECTION 1 That th6 City Manager be authorized to lease with Rust Properties fin accordance with Article IX, Section 29, of the City Char- ter for the leasing of certain aerial premises, all as more fully set forth in the lease, a substantial copy of which is attached hereto and made a part hereof LEASE THE STATE OF TEXAS COUNTY OF NUECES This Lease Is ex and between the CITY OF CORPUS CHRISTI, TEXAS (hereinafter called "Les• sor") and RUST PROPER- TIES a developing company located in Austin, Texas, act• Ing by and through its duly aulhorized officer (here• inafter called "Lessee"), for the consideration and upon 1the agreements hereinafter set forth. - ARTICLE Ir?r DEMISE OF I.J LEASED PREMISES For and in consideration of the rents to be paid by Les- kee and the agreements herein set forth, Lessor here- by leases to Lesse see hereby leases Irom Les j[( sor, for the term hereinafter set forth the premises more particularly des m EXHIBIT D /Mao thereinafter call "Aerial Leased Premises") and th 'premises more partiCularl described in EXHIBIT E at1 tached hereto (hereinafter) called "Overhang Easel ment" ). The Aerial Lease tl Premises and the Overhang Easement shall hereinafter; be collectively referred to ass' the "Leased Premises"! This Lease is made pursuant to the authority granted in.) and in accordance with the provisions of, A Section 29 of the Corpus Christi City Charter. ARTICLE II LEASE TERM SECTION 2 01 • LENGTH. This Lease shall be for a term of sixty (60) years be- ginning January 1, 1982, and ending at midnight on De- cember 31, 2042, subject, however, 10 earlier term,' nation as hereinafter pro- vided, SECTION 2.02 - HOLDING OVER BY LESSEE In the event Lessee remains in pos- session of the Leased Prem- ises after the expiration of this Lease, it shall be deemed to be occupying premises as a tenant at suf- ference. NOTICE: PORTIONS THIS LEASE ARE SifB- )lute,at Leissar'C oplt cert. at Lessor option, a ► month•to•month 'lease 5ub- eeeee ovenants anll of d oblig obligations , this Lease insofar as same are applicable to a month -10 - month tenancy ARTRENTICLE _ SECTION 3.04- RENTAL FOR AERIAL LEASED PREMISES, As rental for e Aerial Leased Premises, Lessee agrees tq-,pay Lesser the total sum /if Thirteen Thousand Seven Hundred Seventy and No/100 Dollars (513,770.00), as rental for the full term, which rental shall be paid by Lessee to -Lessor upon execution of this Lease. SECTION 3,02 - RENTA FOR OVERHANG EASE] MENT As rental for th Overhang Easement, Lessee agrees to pay Lessor the to•' cal sum of Six Hundred and No/100 Dollars (s , as rental for the full term, which rental shall be paid by Lessee to Lessor upon execu- tion of this Lease, SECTION 3.03 ©RENT NOT REFUNDABLE. No part of the rental paid by Lessee shall be refunded In the event that this Lease is terminated prior to its full term ARTICLE IV THE AERIAL LEASED PREMISES SECTION 401 - USE OF AERIAL LEASED PREM•, 1SES. Lessor hereby grants Lessee the right to use the p.erial Leased Premises for, but only for, the rue• jtion, installation, main- tenance, repair, removal and replacement within the Aerial Leased Premises of an enclosed structure ere• inafter referred to ruc• ture"), which Stru will connect the Tex s Com- merce Plaza with the park- ing facilities tq be construct- ed by Lessee on the East and West sides of the Aerial Leased Premises. Lessee may also use the Aerial Leased Premises for the con- struction, maintenance, re- pair or removal of the build- ing overhang, more fully described hereafter and on EXHIBIT 8, attach to, on N. Tancahua Street be- tween Antelope Street and Buffalo. Lessee's actrons in accomplishing the foregoing shall comply w,th applic le ordinances of the CIt pus Christi, A detade kch1- tectural plan of the 5 r cture together with a drawing of the Structure's exterior is at- tached hereto and in- corporated herein as' EX- HIBIT A. Lessee shall make no substantial change in the architectural plan or the ex- terior appearance of the Structure, as they appear in Exhibit A, with Lessor's con. sent, SECTION 4'02 SURROUNDING PREM- ISES. Lessor hereby grants Lessee the right to use so much of the premiMpgelow, above and ad)acorfF-To the Aerial Leased `Premises (hereinafter referred to as "Surrounding Preihises' ) as may be reasonably neces- sary to construct, Install, re- pair, remove, and replace the Structure, provided, however, that Lessee's use of JECT TO ARBITRATION the SurroundingPremises UNDER THE TEXAS GEN-. shall comply wlttsapplicable CT finances of the C rt' of C r• NN, ARTICLE 224, ETA `sERAL'ARBITRATION ACT) • .� . „' kali91i.:; and . v EX, REV, CIV. STAT? ° P,ili<gc7s4r.+.,wr..A a.. ��44ECTIdN 403 - LS'� 5I STRUCTURE _St1 fuse shall movement of pedestrians and goods between Lessee's building and parking facil- ities adlacent t0 the Aerial Leased Premises, for the containment of electrical power Ines, and /or such oth- er purposes as are consistent with the desigIan of the Structure, i o teed, however, that t nature shall not be us or storage br occupancy, and further that the minimum live load to be used un the design of the structure shall be 125 pounds per square foot to be consid• erect as uniformly dis• tributed. - SECTION 404 Al N• TENANCE. Lessee 'shall safely maintain said Struc- ture and regulate theuse and occupancy thereof so that the Structure of the use thereof will not be a hazard or danger to the s or property 01 the pu I sing the street below s truc- ture • SECTION 4.05 - MIN- IMUM ELEVATION OF STRUCTURE Lessee agrees that no part of the Structure shall be lower than sixteen (160) above the crown oh North Cprancahua Street below the Structure, said elevation to be deters fined as of the date—mil lease is executed and not f0 be affected by ,subsequent 'changes in the elevation 01 the crown of the street SECTION 406 • LIGHT ING OF STRUCTURE Les see shall Install andmain!, talo lighting oynd underneath the Strut' a Iii Lessor determine such lighting to be necessary to eliminate any significant nighttime shadow areas caused by the Structure's in• terference with surrounding street lighting. - SECTION 4.07 - REMOV- AL OF FACILITIES. Lessee shall, upon demand by the Lessor, pay such ch as may be incurred by the Les• sor for the removal of any fa• citifies, utilities or structures between the street lines and underneath the Structure which are made necessary by reason of the constru ion of the Structure. • SECTION 4.08 - $fGNS Lessee shall not maintain or allow any signs cn wr within the Structure fin such a man- ner that the sign is visible from the outside of the Struc- ture, except for such signs that maybe required be law. SECTION 4.09 • DE- STRUCTION OF THE STRUCTURE. In the event the Structure shall or partially destroyed by fire, hurricane or other storm, explosion or any oth- er casualty, w,, and If e does not within ewe ,veL )- monthsfromthedafe such destruction comm' a re- construction and thereafter carry it to completion with due diligence, this Lease shall terminate and end as to' the Aerial Leased Premises as of the end of said twelve (12) month period or the ces- cation of reconstruction with due diligence, whichever last occurs. Thus Lease, however, shall continue In W�zst( fore ow effecra5 to the OV EaSesda f .. R 4LBSSOR. Lessof,'3y n iders,' agents or=employ ees, may et all reasonable times enter upon the Aerial Leased Premises to vie he condition of the S SECTION 4 1 - IS CONTINUANCE F USE OF STRUCTURE In the event Lessee shall 0is continue use of the Structure for the purposes here- inbefore described fora peri- od of Twelve (12) con- secutive months tor reasons Other than destruction Of the Structure, this Lease shall erminate and -end as to Aerial Leased Pre , but shall continue full force and effect as to the Overhang Easement. SECTION 4.12 - R AL OFSTRUCTU; forty-five (45) d,y4c termination of .li with respect to P e Aerial Leased Premises, Lessee shall remove the Structure at Its own expense, re- gardless of Lessor's failure to demand removal or to give notice, other than a no- tice of termination that may be required by other prow - mons of this Lease, If Lessee fails to remove the Structure in accordance with this sec• lion, then Lessor move the Structure and re- quire Lessee to pay the expense of removal within thirty (30) days there(, m. ' ARTICLE OVERHAND EAS ENT SECTION 5.01 - CON- STRUCTION OF OVER- HANG AND FLAGPOLES IN THE OVERHANG EASE- MENT Lessor hereby grants Lessee the right to use the Overhang Easement for, but only for, the con. struction maintenance, in- stallation, repair, re• placement, and removal above and upon such ease- ment of a building overhang and to flagpoles, , which are attached and in corporated herein as part of EXHIBIT B No substantial change shall be made to the ground level clearance or protection into the bile right a way f theang without location of th fl ttes without the prior rite's consent to Lessor, essee'e achons in accomplishing the foregoing and in its use of the surface of the right of way shall comply with app' 0cable o05 Christi of the City of Cor- pus Christi , ' SECTION 502 - MAIN- TENANCE OF OVER• HANG, Lessee shall safely maintain said o regulate the use thereof so that the overhapg or use thereof shall not be a hazard or danger to the .persons or property of the public using the right of way bet w said overhang, SECTION 5, DE• STRUCTION O OVER• HANG. In the event the over- hang shall be partially or totally destroyed for any zea- son whatsoever, and. If Les- see does not within six 161 months from the date of de- struction commence recon• struction and thereafter car- ry it to completion with due diligence, this Lease shaft terminate and end artg'Ohe Overhang Easement as of the end of said six (6) month period or the cessation of re• construction with due Ii- gence, whichever a c- • curs. This lease, h Bier, shall confsnule m, 1 fo(ce y4 and effert-as to the Aefial R- -Leased Pr.m,cec -• OV• ^4 ithin 7r r the Lease