Loading...
HomeMy WebLinkAbout022126 ORD - 01/10/1995AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF CORPUS CHRISTI LEASE AGREEMENT WITH THE PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS, WHEREBY THE CITY LEASES FROM THE PORT AUTHORITY .48 ACRES OF LAND, MORE OR LESS NEAR THE CORPUS CHRISTI MUSEUM OF SCIENCE AND HISTORY, PERMITTING SUBLEASING OF THE PREMISES TO THE LAS CARABELAS COLUMBUS FLEET ASSOCIATION FOR MUSEUM DISPLAY OF THE COLUMBUS SHIP REPLICAS, A SUBSTANTIAL COPY OF WHICH IS ATTACHED AS EXHIBIT A; PROVIDING FOR SEVERABILITY; AND DECLARING AN EMERGENCY. NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager is hereby authorized to execute a Lease Agreement with the Port of Corpus Christi Authority ofNueces County, Texas, a substantial copy of which is attached hereto as Exhibit A, and made part hereof, and is authorized to terminate the prior lease on the same property, authorized by Ordinance No. 10435. SECTION 2. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision hereof be given full force and effect for its purpose. SECTION 3. That upon written request of the Mayor or five Council members, copy attached, to find and declare an emergency due to the need for immediate action necessary for the efficient utilization of physical resources in the City and for the efficient and effective administration of City affairs, such finding of an emergency is made and declared requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings so that this ordinance is passed and shall take effect upon first reading as an emergency measure this the /D day of , 1995. URB\ORD\010.jrb(aar) i 4' ATTEST: CitySecretary THE CITY OF CORPUS CHRISTI MAYO THE CITY OF - APPROVED THIS THE 5TH DAY OF JANUARY, 1995. JAMES R. BRAY, CITY ATTORNEY By: VRB\ORD \010.jrb(aar) 1 A" Corpus Christi, Texas D day of >4 '/f� ,( 1995. TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: Uwe, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, Council Members MAYO THE CITY OF CORPUS CHRISTI The above ordinance was passed by the following vote: Mary Rhodes Dr. Jack Best Melody Cooper Cezar Galindo Betty Jean Longoria Edward A. Martin Dr. David McNichols David Noyola Clif Moss VRB\ORD \010.jrb(aar) T 0 '22126 LEASE AGREEMENT STATE OF TEXAS § COUNTY OF NUECES § This LEASE AGREEMENT is made this day of , 1995, by and between PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS, pursuant to authorization by its Port Commissioners (hereinafter called "Authority"), and the CITY OF CORPUS CHRISTI TEXAS, whose principal address is 1201 Leopard Street, Corpus Christi, Texas, 78401, (hereinafter called "Lessee"). ARTICLE I LEASE OF PREMISES Section 1.01. Description of Premises and Term Authority, in consideration of the terms, covenants, and conditions hereinafter set forth, hereby leases to Lessee real property situated in Nueces County, Texas, which is described as follows: Being a parcel of land out of Block 105 of the Beach Subdivision of the City of Corpus Christi, Texas, and more particularly described as follows: Beginning at a point on the northwest corner of Lot 8, Block 105 and the East R.O.W. line of Water Street. Thence along said East R.O.W. line N. 100 37' W. a distance of 187.9' to the NW corner of this tract. Thence S. 630 13' E. a distance of 232.0' to the most northerly corner of the Corps of Engineers Reservation. Thence S. 250 32' W. a distance of 58.2' to the NE corner of Lot 8, Block 105. Thence along the North line of said Lot 8 S. 790 23' W. a distance of 150.0' to the place of beginning and containing in all 0.48 acres, more or less. T TO HAVE AND TO HOLD the Leased Premises for a term beginning on the 10th day of January, 1995, and (subject to earlier termination as herein provided) ending at midnight, Central Time, the 31st day of July, 2015. Section 1.02. Holding Over If Lessee holds over beyond the primary term or any option term of this lease agreement without the written consent of Authority, Lessee is deemed to be occupying the Leased Premises as a tenant at sufferance. ARTICLE II INSPECTION OF LEASED PREMISES LESSEE HAS INSPECTED THE LEASED PREMISES AND HAS CONDUCTED ANY ENVIRONMENTAL ASSESSMENT SURVEY IT DESIRED AND ON THE DATE OF THIS LEASE AGREEMENT ACCEPTS THE LEASED PREMISES IN THE CONDITION IT EXISTED ON THAT DATE AS REASONABLY SUITED AND FIT FOR LESSEE'S INTENDED USES OF THE LEASED PREMISES. ARTICLE III RENT Section 3.01. Rent The Leased Premises is adjacent to real property owned by the Lessee; it is of benefit to Authority and the public in Nueces County, Texas, that the Leased Premises be developed for public use as set out herein. Therefore, in consideration of the premises and Ten Dollars ($10.00) paid by Lessee, receipt of which is acknowledged, Authority accepts the same as rental for the primary term of this lease. Section 3.02. Utilities and Taxes In addition to the rent described hereinabove, Lessee agrees to pay when due all charges for water, gas, electricity, and other utilities used by it on the Leased Premises. During the term of the lease agreement, Lessee must pay or cause to be paid as and when the same shall become due all taxes, fees or charges imposed on the Leased Premises by virtue of Lessee's tenancy or upon Lessee's property on, or Lessee's interest in, the Leased Premises. Any of said taxes, fees or charges that are payable by Lessee for the tax year in which this lease agreement commences, as well as during the year in which this lease agreement terminates, shall be apportioned so that Lessee shall pay its proportionate share of the taxes, fees or charges for such periods of time. Lessee may pay such taxes, fees or charges in installments as and Port/Lease-City/Park - 65433 -2- B. Commit or permit to remain any waste to the Leased •Premises, except for dredging approved pursuant to Section 5.04; or C. Commit, or permit to be committed, any action or circumstance on or about the Leased Premises which, directly or indirectly, would or might justify any insurance carrier in canceling the insurance policies maintained by Lessee or Authority on the Leased Premises and improvements thereon. Section 4.02. Environmental Representations and Restrictions Lessee hereby represents and warrants to Authority: A. That Lessee's construction, occupancy, operation or use of the Leased Premises will not violate any applicable law, statute, ordinance, rule, regulation, order or determination of any governmental authority or any board of fire underwriters (or other body exercising similar functions), or any restrictive covenant or deed restriction (recorded or otherwise) affecting the Leased Premises, including but not limited to all applicable zoning ordinances and building codes, flood disaster laws and health and environmental laws and regulations (hereinafter sometimes collectively called "Applicable Laws"); B. That, without limitation of A above, in its use of the Leased Premises, Lessee will not violate any Applicable Laws pertaining to health or the environment (hereinafter sometimes collectively called "Applicable Environmental Laws"), including, but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Section 9601 et sec ; the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Section 6901 et sec ; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et gq; Authority's Tariffs, Rules and Regulations; the Texas Water Code, and the Texas Solid Waste Disposal Act, article 4477-7, V.A.T.S.; C. That the use which Lessee intends to make of the Leased Premises will not result in the disposal or other release of any hazardous substance or solid waste on or to the Leased Premise --the terms "hazardous substance" and "release" have the meanings specified in CERCLA, and the terms "solid waste" and "disposal" (or "disposed") have the meanings specified in RCRA--and, in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning will apply to such terms used in this lease agreement subsequent to the effective date of such amendment and, further, to the extent the laws of the state of Texas establish a meaning for "hazardous substance," "release," "solid Port/Lease-City/Park - 55433 -4- waste," or "disposal" which is broader than that specified in either CERCLA or RCRA, such broader meaning will apply to such terms used in this lease agreement, and in either of said instances Lessee must immediately cease activities prohibited or regulated by Applicable Laws or Applicable Environmental Laws upon the Leased Premises and notify Authority in writing of same within five (5) days of doing so. All of the foregoing representations and warranties made by Lessee are continuing and must be true and correct for the entire term of this lease agreement, including any extensions hereof, and all of such representations and warranties will survive expiration or termination of this lease agreement. Section 4.03. Underground Storage Tanks Lessee may not construct, install, maintain, use or otherwise operate on the Leased Premises any petroleum or chemical underground storage tank. ARTICLE V IMPROVEMENTS OR ALTERATIONS Section 5.01. Permanent Improvements All improvements made, placed, or constructed on the Leased Premises after the date of this lease agreement will be made at the sole cost and expense of Lessee. Lessee must construct and install Lessee's improvements in a good and workmanlike manner. Improvements by Lessee may not be located on Authority property adjacent to the Leased Premises not leased by Lessee unless Authority consents to same in writing. At the expiration of the lease term or any renewals or extensions thereof, Lessee will surrender the premises in good order and repair except for reasonable wear and tear since the last necessary repair, replacement, restoration or renewal made by Lessee pursuant to its obligations under this lease. Section 5.02. Storm Sewers Lessee agrees to construct or to pay for the construction of any storm sewers required by Authority to drain the Leased Premises. Section 5.03. Appearance of Premises Lessee must, at its expense, maintain all improvements situated on the Leased Premises in good condition and will keep the Leased Premises clean and free from all rubbish and trash. Lessee must comply with all rules and regulations, as amended, of Authority applicable to the Leased Premises. Port/Lease-City/Park - 55433 -5- Section 5.04. Alterations and Improvements All plans for proposed buildings, drainage or improvements of any kind, or any alterations or additions thereto, will be submitted to and approved in writing by the Director of Engineering Services of Authority prior to the commencement of work. No approval of designs, site plans, plans, specifications or other matters may ever be construed as representing or implying that such designs, site plans, plans, specifications or other matters will, if followed, result in a properly -designed building or other improvements constructed on the Leased Premises. Such approvals shall in no event be construed as representing or guaranteeing that any improvements will be built in a workmanlike manner, nor shall such approvals relieve Lessee of its obligation to construct the building in a workmanlike manner. TO THE EXTENT PERMITTED BY LAW, LESSEE WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS AUTHORITY FROM AND AGAINST ANY SUITS, ACTIONS OR CAUSES OF ACTION ARISING OUT OF AUTHORITY'S APPROVAL OF ANY DESIGNS, SITE PLANS, PLANS, SPECIFICATIONS OR OTHER MATTERS RELATING TO THE LEASED PREMISES. Section 5.05. Building Code All improvements on the Leased Premises by Lessee must comply with Port of Corpus Christi Authority Design and Construction Guidelines set forth in the Authority's Real Estate Manual and will comply with the Code of the National Board of Fire Underwriters covering the location and type of structure to be constructed by Lessee on the Leased Premises. Section 5.06. Permits Lessee must obtain and maintain in effect at all times during the term of this lease agreement all permits, licenses and consents required or necessary for the construction, installation, maintenance, use and operation of Lessee's improvements and Lessee's use and occupancy of, and operations at, the Leased Premises. Section 5.07. Ownership or Removal of Improvements by Lessee At the expiration or earlier termination of this lease agreement, all improvements upon the Leased Premises made by Lessee, including all buildings, paneling, decorations, partitions, heating, ventilating and air-conditioning machinery and equipment, lighting fixtures, plumbing equipment, sprinkler system, and the like, shall, absent any agreement between Authority and Lessee to the contrary at the time of installation, or unless Authority otherwise elects, which election shall be made by giving a notice in writing (a) not less than fifteen (15) days prior to the expiration of this lease agreement, or (b) not more than fifteen (15) days following any termination of this lease agreement other than by expiration, become the property of Authority and shall remain upon and be surrendered with the Leased Premises as a part thereof at the end of the lease term. In the event Authority Port/Lease-City/Park - 55433 -6- notifies Lessee to remove any or all of the improvements made by Lessee, Lessee must do so and must repair any damage caused by such removal, all within thirty (30) days after the date of termination of this lease agreement. Trade fixtures, furnishings and equipment, except for those referred to above, which are installed by Lessee, at its expense, may be removed by Lessee provided Lessee removes the same and repairs any damage caused by such removal within thirty (30) days after the date of termination of this lease agreement. Section 5.08. Laborers and Mechanics LESSEE WILL PAY ALL VALID CLAIMS FOR LABOR AND SERVICES PERFORMED FOR, MATERIALS USED BY, OR FURNISHED TO, ANY CONTRACTOR EMPLOYED BY LESSEE WITH RESPECT TO THE LEASED PREMISES AND, TO THE EXTENT PERMITTED BY LAW, HOLD AUTHORITY AND THE LEASED PREMISES HARMLESS AND FREE FROM ANY LIENS, CLAIMS, ENCUMBRANCES OR JUDGMENTS CREATED OR SUFFERED BY LES- SEE. If Lessee elects to post a payment or performance bond or is required to post an improvement bond with a public agency in connection with the above, Lessee agrees to include Authority as an additional obligee thereunder. Section 5.09. Floodplain Lessee acknowledges that Lessee has been advised by Authority that the land is in the FEMA floodplain and that all construction of improvements must conform to the requirements for construction of improvements in a floodplain. ARTICLE VI SERVICES Security for the Leased Premises and servicing of the Leased Premises with water, gas, electricity, telephone, sewage treatment and drainage, and any other utilities or similar services used in or on the Leased Premises will be at Lessee's option and sole expense. LESSEE IS RESPONSIBLE FOR ALL COSTS AND CHARGES IN CONNECTION WITH SUCH SERVICES AND AGREES TO PAY THE SAME PROMPTLY AS SUCH CHARGES ACCRUE, AND, TO THE EXTENT PERMITTED BY LAW, TO PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS AUTHORITY FROM AND AGAINST ANY AND ALL LIABILITY FOR ANY SUCH COSTS OR CHARGES. If Authority provides any such services to the Leased Premises or pays the cost for any such services, Lessee will pay to Authority the cost of such services as rent hereunder upon receiving an invoice therefor, payment to be made pursuant to the terms of said invoice. Port/Lease-City/Park - 55433 -7- ARTICLE VII USE BY AUTHORITY Authority reserves the right to use any streets or roadways constructed by Lessee on the Leased Premises. Authority further reserves the right to use as much of the Leased Premises as is necessary to lay mains for gas, water or sewers on the Leased Premises, to place poles and necessary wires and attachments for electricity or for telephone and telegraph lines over and across any part of the Leased Premises, and to lay, or grant easements or rights of way for the laying of, pipelines for oil, petroleum, petroleum products and any other products over, under and upon the Leased Premises; provided, however, that the same shall not interfere with Lessee's buildings, improvements or Lessee's use of the Leased Premises. Authority has the right to use third parties for the performance of the rights reserved to Authority in this Article, and Authority has the right to grant easements or rights of way reserved to Authority in this Article to other parties. ARTICLE VIII SUBLETTING OR TRANSFER Section 8.01. Sublease or Transfer Lessee may not assign this lease agreement in whole or in part nor any interest therein nor sublet the Leased Premises nor any part thereof nor grant any license, concession or other right of occupancy of any portion of the Leased Premises nor permit the transfer of this lease by operation of law or otherwise without the prior written consent of Authority. Consent of Authority to one or more assignments or subletting does not operate as a waiver of Authority's rights concerning any subsequent assignments or subletting. If this lease agreement is assigned, or if any of the Leased Premises, or any part thereof, is sublet or occupied by anyone other than the Lessee, then Authority may, after default by the Lessee, collect rent from the assignee, subtenant or occupant and apply the net amount collected, less any costs of collection, attorneys' fees or other costs incurred by Authority, to the rent provided for in this lease. No assignment, subletting, occupancy or collection waives the obligations of Lessee under this lease agreement upon acceptance of same by Authority. Authority hereby consents to the sublease of the Leased Premises to Las Carabelas Columbus Fleet Association and to the Association subleasing or leasing portions of the Leased Premises to concessionaires in conformity with the permitted use of the Leased Premises. Section 8.02. Conditions The following conditions automatically apply to each sublease, assignment or transfer without the necessity of same being stated in or referred to in Authority's written consent: Port/Lease-City/Park - 55433 -8- A. Lessee must execute, have acknowledged and deliver to Authority and cause the sublessee, assignee or other transferee ("Transferee") of any portion of Lessee's interest in this lease agreement, the leasehold estate created hereby or the Leased Premises to execute, have acknowledged and deliver to Authority, an instrument in form and substance acceptable to Authority in which: 1. The Transferee adopts this lease agreement and assumes and agrees to perform, jointly and severally with Lessee, all of the obligations of Lessee hereunder, as to the space transferred to it; 2. The Transferee agrees to use and occupy the transferred space solely for the purposes permitted under article IV and otherwise in strict accordance with this lease agreement; and 3. Lessee acknowledges and agrees in writing that, notwithstanding the transfer, Lessee remains directly and primarily liable for the performance of all the obligations of Lessee hereunder, and Authority shall be permitted to enforce this lease agreement against Lessee or the Transferee, or both of them, without prior demand upon or proceeding in any way against any other persons. B. Lessee must deliver to Authority a counterpart of all instruments relative to the sublease, assignment or other transfer executed by all parties to such transaction (except Authority). Section 8.03. No Liens Unless otherwise agreed, Lessee may not grant, place or suffer, or permit to be granted, placed or suffered, against all or any part of the Leased Premises or Lessee's leasehold estate created hereby, any lien, security interest, pledge, conditional sale contract, claim, charge or encumbrance (whether constitutional, contractual or otherwise) and if any of the aforesaid does arise or is asserted, Lessee will, promptly upon demand by Authority and at Lessee's expense, cause same to be released. ARTICLE IX DEFAULT Section 9.01. Rights and Remedies of Authority If for thirty (30) days after service by mail or otherwise to Lessee by Authority of written notice of a breach by Lessee of any of the covenants contained in this instrument which are to be performed on its part, the Lessee does not or shall neglect or fail to perform any of such covenants or is not proceeding with due diligence to Port/Lease-City/Park - 55433 -9- cure any such breach, or if any proceedings concerning Lessee or the Leased Premises be had in bankruptcy, reorganization, arrangement or receivership, or if any assignment shall be attempted to be made of this lease agreement for the benefit of creditors, then in any of said cases, Authority shall have the rights and remedies that may be provided in law or in equity or Authority may terminate this lease agreement. In such event, Authority may recover from Lessee on terminating the lease for Lessee's default all damages proximately resulting from the default and the cost of recovering the Leased Premises and attorneys' fees, which sums shall be immediately due and payable to Authority from Lessee. Section 9.02. No Waiver Any assent, expressed or implied, by the Authority to any breach of any agreement, covenant or obligation herein contained shall operate as such only in the specific instance and shall not be construed as an assent or a wavier to any such agreement, covenant or obligation generally or of any subsequent breach thereof. The various rights, powers, elections and remedies of the Authority contained in this lease agreement shall be construed as cumulative, and no one of them as exclusive of the other or exclusive of any rights or priorities allowed by law, and no rights shall be exhausted by being exercised on one or more occasions. The remedies provided herein or at law or equity shall not be mutually exclusive. ARTICLE X INDEMNITY AND INSURANCE Section 10.01. Indemnity TO THE EXTENT PERMITTED BY LAW, LESSEE HEREBY RELEASES AND DISCHARGES AUTHORITY FROM LIABILITY FOR, AND ASSUMES THE RISK OF LOSS OR DAMAGE TO, THE PROPERTY OF LESSEE, AND THE PERSONAL INJURY OR DEATH OF ANY PERSON EMPLOYED BY LESSEE, AND LESSEE EXPRESSLY AGREES TO DEFEND, INDEMNIFY, REIMBURSE AND HOLD HARMLESS AUTHORITY, ITS AGENTS, SERVANTS, EMPLOYEES AND COMMISSIONERS, FROM ALL CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES AND LIABILITIES OF ANY KIND OR CHARACTER, INCLUDING BUT NOT LIMITED TO CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES AND LIABILITIES IN ANY MATTER RESULTING FROM, ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY LESSEE'S FAULT OF ANY KIND, INCLUDING BUT NOT LIMITED TO WILLFUL MISCONDUCT, NEGLIGENCE, GROSS NEGLIGENCE, DELIBERATE ACTS, STRICT LIABILITY IN TORT, BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR BREACH OF ANY TERM OR CONDITION OF THIS LEASE AGREEMENT, INCLUDING THAT CAUSED BY ANY OF THE LESSEE'S AGENTS', CONTRACTORS', EMPLOYEES', INVITEES' OR LICENSEES' ACTIVITIES DIRECTLY OR INDIRECTLY RELATED TO THIS LEASE AGREEMENT OCCURRING IN, DURING OR AFTER THE TERM OF THIS Port/Lease-City/Park - 55433 -10- LEASE AGREEMENT, SAVE AND EXCEPT SUCH DAMAGES AS MAY 13E CAUSED BY THE NEGLIGENCE OF THE AUTHORITY, ITS AGENTS, CONTRACTORS, EMPLOYEES, INVITEES OR LICENSEES, IT BEING INTENDED THAT LESSEE WILL INDEMNIFY AUTHORITY FOR LESSEE'S PROPORTIONATE FAULT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, WHICH CAUSES SUCH DAMAGES. IT IS EXPRESSLY AGREED THAT SHOULD LESSEE FAIL OR REFUSE AFTER WRITTEN NOTICE TO PARTICIPATE IN THE SETTLEMENT OF A CLAIM FOR DAMAGES, THEN AUTHORITY MAY SETTLE WITH THE CLAIMANT WITHOUT PREJUDICE TO AUTHORITY'S INDEMNITY RIGHTS SET FORTH HEREIN, IT BEING EXPRESSLY RECOGNIZED THAT A SETTLEMENT AFTER NOTICE TO LESSEE WILL CONSTITUTE A SETTLEMENT OF THE PROPORTIONATE FAULT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE OF BOTH LESSEE AND AUTHORITY, WHICH SETTLEMENT MAY LATER BE APPORTIONED BETWEEN AUTHORITY AND LESSEE. EXCEPT AS OTHERWISE EXPRESSLY LIMITED HEREIN, IT IS THE INTENT OF THE PARTIES HERETO THAT ALL INDEMNITY OBLIGATIONS AND LIABILITIES ASSUMED UNDER THE TERMS OF THIS LEASE AGREEMENT BE WITHOUT MONETARY LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF (INCLUDING PRE-EXISTING CONDITIONS). THE INDEMNITY CONTAINED IN THIS ARTICLE APPLIES, WITHOUT LIMITATION, TO ANY VIOLATION OF ANY APPLICABLE ENVIRONMENTAL LAW IN EFFECT DURING THE TERM OF THIS LEASE AGREEMENT, INCLUDING ANY EXTENSIONS, AND ANY AND ALL MATTERS ARISING OUT OF ANY ACT, OMISSION, EVENT OR CIRCUMSTANCE EXISTING OR OCCURRING DURING THE TERM OF THIS LEASE AGREEMENT, INCLUDING ANY EXTENSIONS (INCLUDING WITHOUT LIMITATION THE PRESENCE ON THE LEASED PREMISES OR RELEASE FROM THE LEASED PREMISES OF HAZARDOUS SUBSTANCES OR SOLID WASTE DISPOSED OF OR OTHERWISE RELEASED PRIOR TO THE RELEASE DATE), REGARDLESS OF WHETHER THE ACT, OMISSION, EVENT OR CIRCUMSTANCE CONSTITUTED A VIOLATION OF ANY APPLICABLE ENVIRONMENTAL LAW AT THE TIME OF ITS EXISTENCE OR OCCURRENCE. THE TERMS "HAZARDOUS SUBSTANCE" AND "RELEASE" SHALL HAVE THE MEANINGS SPECIFIED IN CERCLA, AND THE TERMS "SOLID WASTE" AND "DISPOSED" SHALL HAVE THE MEANINGS SPECIFIED IN RCRA; PROVIDED, IN THE EVENT EITHER CERCLA OR RCRA IS AMENDED SO AS TO BROADEN THE MEANING OF ANY TERM DEFINED THEREBY, SUCH BROADER MEANING SHALL APPLY SUBSEQUENT TO THE EFFECTIVE DATE OF SUCH AMENDMENT AND PROVIDED FURTHER, TO THE EXTENT THAT THE LAWS OF THE STATE OF TEXAS ESTABLISH A MEANING FOR "HAZARDOUS SUBSTANCE," "RELEASE," "SOLID WASTE," OR "DISPOSAL" WHICH IS BROADER THAN THAT SPECIFIED IN EITHER CERCLA OR RCRA, SUCH BROADER MEANING SHALL APPLY. Port/Lease-City/Park - 55433 -11- Section 10.02. Insurance Without limiting the indemnity obligation or liabilities of Lessee, or its insurers, set forth in this lease, Lessee agrees: (a) that it will require its sublessee, Las Carabelas Columbus Fleet Association, to (i) maintain in force the insurance required in the lease agreement entered into between Lessee and Las Carabelas Columbus Fleet Association for the purpose of display of Las Carabelas and (ii) have all policies of such insurance name (except for workers' compensation insurance) Authority as an additional insured and provide that such policy will not be cancelled nor reduced in amount of coverage without thirty (30) days prior written notice to Authority, Attention: Risk Manager; ensure performance of the indemnities contained in this lease, and be primary coverage so that any insurance coverage obtained by Authority will be excess insurance thereto and (b) that it will during the term of this lease include any improvements situated on the Leased Premises in its normal program of insurance and that its normal insurance program will include liability insurance, which in either case may be self insurance. Lessee will provide Authority certificates of the insurance coverages required herein at the inception of this lease and thereafter when the insurance is renewed or changed. Section 11.03. Waiver of Subrogation Authority and Lessee each waive every claim which arises or may arise in its favor and against the other party hereto during the term of this lease agreement or any renewal or extension thereof for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the Leased Premises, which loss or damage is covered by valid and collectible fire and extended coverage insurance policies, to the extent that such loss or damage is recoverable under said insurance policies. Said mutual waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this lease agreement with respect to any loss of or damage to property of the parties hereto. Each party agrees to immediately give to each insurance company, which has issued to it policies of fire and extended coverage insurance, written notice of the terms of said mutual waivers, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waivers. ARTICLE XI PROPERTY LOSS Section 11.01. Obligation to Restore If all or any part of the improvements located on (or constituting a part of) the Leased Premises are destroyed or damaged by any casualty during the term of this lease agreement, Lessee will promptly commence and thereafter prosecute diligently to Port,/Lease-City/Park - 55433 -12- completion the restoration of the same to the condition in which the destroyed .or damaged portion existed prior to the casualty. Lessee will perform such restoration with at least as good workmanship and quality as the improvements being restored and in compliance with the provisions of Article V hereof. Notwithstanding the foregoing provisions of this paragraph to the contrary, if all of such improvements are wholly destroyed by any casualty or are so damaged or destroyed that, in Lessee's good faith judgment reasonably exercised, it would be uneconomic to cause the same to be restored (and Lessee shall give written notice of such determination to Authority within ninety (90) days after the date casualty occurred), then Lessee shall not be obligated to restore such improvements and this lease agreement shall terminate as of the date of the casualty. Section 11.03. Notice of Damage Lessee shall immediately notify Authority of any destruction of or damage to the Leased Premises. ARTICLE XII CONDEMNATION Section 12.01. Total Taking If a total taking of the Leased Premises by condemnation occurs, then this lease agreement shall terminate as of the date the condemning authority takes lawful possession of the Leased Premises, and Authority is entitled to receive and retain the award for the taking of the Leased Premises. Section 12.02. Partial Taking If a partial taking of the Leased Premises by condemnation occurs, (a) this lease agreement will continue in effect as to the portion of the Leased Premises not taken, and (b) Lessee must promptly commence and thereafter prosecute diligently to completion the restoration of the remainder of Lessee's improvements located on (or constituting a part of) the Leased Premises to an economically viable unit with at least as good workmanship and quality as existed prior to the taking. In the event of a partial taking of the Leased Premises, Authority is entitled to receive and retain the award for the portion of the Leased Premises taken. Section 12.03. Notice of Proposed Taking Lessee and Authority shall immediately notify the other of any proposed taking by condemnation of the Leased Premises. Port/Lease-City/Park - 55433 i r -13- ARTICLE XIII QUIET ENJOYMENT Lessee, on paying the rent and all other sums called for herein and performing all of Lessee's other obligations contained herein, shall and may peaceably and quietly have, hold, occupy, use and enjoy the Leased Premises during the term of this lease agreement, subject to the provisions of this lease agreement. Authority agrees to warrant and forever defend Lessee's right to occupancy of the Leased Premises against the claims of any and all persons whomsoever lawfully claiming the same or any part thereof, by, through or under Authority (but not otherwise) subject to the provisions of this lease agreement, to the lawful use of the Leased Premises by any mineral owner of part or all of the Leased Premises or a lessee in an oil, gas or mineral lease granted by any mineral owner of all or part of the Leased Premises, all matters of record in Nueces County, Texas, and any unrecorded easements or licenses executed by Authority to the extent the foregoing are validly existing and applicable to the Leased Premises. ARTICLE XIV ARBITRATION In the event of a dispute, controversy or claim hereunder (the "Dispute") arising between the Parties to this lease agreement, same shall be submitted to and settled by arbitration in the City of Corpus Christi, Texas, pursuant to the rules then in effect of the American Arbitration Association (or at any other place or under any other form of arbitration mutually acceptable to the parties so involved). Any award rendered shall be final and conclusive upon the parties, and the judgment thereon may be entered in the highest court of the forum (state or federal) having jurisdiction over the issues addressed in the arbitration. The expense of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the cost of its own experts, evidence and counsel fees, except that, in the discretion of the arbitrator, any award may include the cost of a party's counsel and/or its share of the expense of arbitration, if the arbitrator expressly determines that an award of such costs is appropriate to a party who prevails in such arbitration. To submit a matter to arbitration, the party seeking redress ("plaintiff') shall notify in writing the other party ("defendant") and the other party's attorney describe the nature of such claim, the provision of this lease agreement which has been violated by the defendant and the material facts surrounding such claim. Upon receipt of the request for arbitration, the Authority's attorney, or his designee, ("contact attorney") will contact the American Arbitration Association ("AAA") and request a list of seven (7) qualified neutrals who are members of the National Academy of Arbitrators ("arbitrator list"). AAA will mail or fax the arbitrator list to the contact attorney, (512) 889-8686, the Authority's Executive Director, (512) 882- 7110, and to Lessee's Attorney, (512) 880-3239. Port/Lease-City/Park - 55433 -14- The plaintiff and defendant may mutually agree upon one of the arbitrators from the arbitrator list. If they do not so agree within 15 working days after the list is mailed or faxed by AAA to the contact attorney, the plaintiff and defendant will mail or fax to the contact attorney a copy of the arbitrator list indicating the order in which they wish to strike names. On the 15th day, the contact attorney shall alternately strike the names in the order requested. For the first arbitrator, and for every odd numbered arbitrator thereafter, the plaintiff receives the first strike. For the second arbitrator, and for every even numbered arbitrator thereafter, the defendant receives the first strike. If either party's next alternate strike has already been stricken, that party's following strike shall be stricken instead. The last remaining name on the arbitrator list shall be the arbitrator. After selecting the arbitrator by alternate striking, the contact attorney shall send a copy of the strike order and each party's preferential list to the plaintiff and the defendant. If either plaintiff or defendant fails to deliver their preferential strike order of the arbitrator list to the contact attorney prior to the 15th day after the arbitrator list was mailed or faxed to the contact attorney, the other party's seventh numbered strike shall be the arbitrator. If both plaintiff and defendant fail to send their preferential strike order to the contact attorney prior to the 15th day, the contact attorney will choose the arbitrator at random from the arbitrator list. Once the arbitrator has been selected, the contact attorney will arrange a date for the arbitration hearing. If the hearing cannot be scheduled within sixty (60) days after the arbitrator is chosen, a new arbitrator may be chosen using the method set out above or plaintiff and defendant may agree to an arbitration hearing date more than sixty (60) days after the date the arbitrator was chosen. Unless expressly prohibited by the rules for the American Arbitration Association, at such arbitration hearing the Texas Rules of Evidence shall control the admissibility of evidence. Within thirty (30) days of the conclusion of such arbitration hearing, the arbitrator shall render a written decision. The decision of the arbitrator shall be binding upon the plaintiff and defendant; and after the completion of such arbitration, the plaintiff may institute litigation for the sole purpose of enforcing the determination of the arbitration hearing. ARTICLE XV GENERAL PROVISIONS Section 15.01. Inspection Lessee will permit Authority and Authority's agents, representatives or employees to enter on the Leased Premises for the purpose of inspection to determine whether Lessee is in compliance with the terms of this lease agreement, for purposes of Port/Lease-City/Park - 66433 T -15- maintaining, repairing or altering the premises, or for the purposes of showing the Leased Premises to prospective lessees, purchasers, mortgagees or beneficiaries under deeds of trust. In an emergency, Authority, its agents, servants and employees, may use any means to open any gate or door into or in the Leased Premises without any liability therefor. Entry into the Leased Premises by Authority for any purpose permitted herein shall not constitute a trespass or an eviction (constructive or otherwise), or entitle Lessee to any abatement or reduction of rent, or constitute grounds for any claim (and Lessee hereby waives any claim) for damages for any injury to or interference with Lessee's business, for loss of occupancy or quiet enjoyment or for consequential damages. Section 15.02. No Partnership The relationship between Authority and Lessee at all times shall remain solely that of landlord and tenant and not be deemed a partnership or joint venture. Section 15.03. No Waiver The waiver of any breach of any term or condition of this lease does not waive any other breach of that term or condition nor of any other term or condition. ARTICLE XVI MISCELLANEOUS Section 16.01. Payments and Notices All payments, notices, demands or requests from Lessee to Authority shall be given to Authority, Attention: Executive Director, P.O. Box 1541, Corpus Christi, Texas 78403, or at such other address as Authority shall request in writing. All payments, notices, demands or requests from Authority to Lessee shall be given to Lessee, City of Corpus Christi, Attention: City Manager, at 1201 Leopard Street, Corpus Christi, Texas, 78401, or at such other address as Lessee shall request in writing. Section 16.02. Parties Bound This agreement binds and inures to the benefit of the parties and their respective legal representatives, heirs, distributees, successors and assigns where assignment is permitted by this lease agreement. Port/Lease-City/Park - 55433 7 r -16- Section 16.03. Applicable Law This agreement must be construed and its performance enforced under Texas law. Venue of any action arising out of this lease agreement will be in Nueces County, Texas. Section 16.04. Severability If any part of this lease agreement is for any reason found to be unenforceable, all other portions nevertheless remain enforceable. Section 16.05. Time of Essence Time is of the essence with respect to each date or time specified in this lease agreement by which an event is to occur. Section 16.06. Rights and Remedies Cumulative The rights and remedies provided by this lease agreement are cumulative, and the use of any one right or remedy by either party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. Section 16.07. Attorneys' Fees In the event Authority or Lessee breach any of the terms of this lease agreement and the party not in default employs attorneys to protect or enforce its rights hereunder and prevails, then the defaulting party agrees to pay the reasonable attorneys' fees incurred by the prevailing party. Section 16.08. Captions All captions in this lease agreement are for reference and convenience only and shall not modify or affect the provisions of this lease agreement in any manner. Section 16.09. Public Disclosure Authority is a governmental authority subject to the requirements of the Texas Open Meetings Act and the Texas Open Records Act (Texas Government Code, chapters 551 and 552), and as such Authority is required to disclose to the public (upon request) this lease agreement and certain other information and documents relating to the consummation of the transactions contemplated hereby. In this regard, Lessee agrees that the disclosure of this lease agreement or any other information or materials related to the consummation of the transactions contemplated hereby to the public by Authority as required by the Texas Open Meetings Act, Texas Open Records Act Port/Lease-City/Park - 55433 t r -17- or any other law will not expose Authority (or any party acting by, through or under Authority) to any claim, liability or action by Lessee. Section 16.10. Brokers Lessee hereby warrants and represents unto Authority that it has not incurred or authorized any brokerage commission, finder's fees or similar payments in connection with this lease agreement, and agrees to defend, indemnify and hold harmless Authority from and against any claim for brokerage commission, finder's fees or similar payment arising by virtue of authorization by, through or under Lessee in connection with this lease agreement. Section 16.11. Authority The person executing this lease agreement on behalf of the Lessee personally war- rants and represents unto Authority that (a) (if applicable) Lessee is a duly organized and existing legal entity, in good standing in the state of Texas, (b) Lessee has full right and authority to execute, deliver and perform this lease agreement, (c) the person executing this lease agreement on behalf of Lessee was authorized to do so, and (d) upon request of Authority, such person will deliver to Authority satisfactory evidence of his or her authority to execute this lease agreement on behalf of Lessee. Section 16.12. Recording Neither this lease agreement (including any exhibit hereto) nor any memorandum shall be recorded without the prior written consent of Authority. Section 16.13. Interpretation Both Authority and Lessee and their respective legal counsel have reviewed and have participated in the preparation of this lease agreement. Accordingly, no presumption will apply in favor of either Authority or Lessee in the interpretation of this lease agreement or in the resolution of the ambiguity of any provision hereof. Section 16.14. No Third -Party Beneficiary This lease agreement is only for the benefit of the parties to it or any sub -lessee or assignee to whom Authority consents, and it is not intended to benefit any other person or entity. Section 16.15. Entire Agreement This lease agreement, including any exhibits, constitutes the parties' final and mutual agreement. There are no written or oral representations or understandings that are not fully expressed in this lease agreement. No change, waiver or discharge Port/Lease-City/Park - 55433 -18- is valid unless in writing that is signed by the party against whom it is sought to be enforced. IN TESTIMONY WHEREOF, this lease agreement is executed in duplicate originals, either of which shall be deemed to be an original, at Corpus Christi, Texas, on the date first above mentioned. PORT OF CORPUS CHRISTI AUTHORITY OF NUECES COUNTY, TEXAS By: John P. LaRue Executive Director "Authority" CITY OF CORPUS CHRISTI, TEXAS By: Juan Garza City Manager "Lessee" ATTEST: City Secretary APPROVED: James R. Bray, Jr., City Attorney Port/Lease-City/Park - 55433 -19- STATE OF TEXAS § § COUNTY OF NUECES § This instrument was acknowledged before me on the 10th day of January, 1995, by JOHN P. LARUE, Executive Director of the Port of Corpus Christi Authority of Nueces County, Texas, on behalf of said Authority. NOTARY PUBLIC, STATE OF TEXAS My commission expires: STATE OF TEXAS § § COUNTY OF § This instrument was acknowledged before me on the day of 1995, by JUAN GARZA, City Manager of City of Corpus Christi, Texas, on behalf of said City of Corpus Christi, Texas. PorUL.eaee-City/Park - 55433 NOTARY PUBLIC, STATE OF TEXAS My commission expires: -20- 1 721 2