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.
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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:
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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
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'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.
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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
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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
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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.
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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
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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.
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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:
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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
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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
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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.
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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
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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.
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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.
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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
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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.
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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
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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
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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
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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:
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