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029251 RES - 10/18/2011
Page 1 of 2 Resolution authorizing the City Manager to execute GLO surface lease No. SL20110014 (TXDOT lease No. L16-178-356) and the related memorandum of GLO surface lease for an approximate 2.2 acre tract in the right-of-way of Park Road 22 (Clem's & Billings boat ramps parking lot). Now, therefore, be it resolved by the City Council of the City of Corpus Christi, Texas: Section 1. The City Manager is authorized to execute GLO surface lease No. SL20110014 (TXDOT lease No. L16-178-356) and the related memorandum of GLO surface lease for an approximate 2.2 acre tract in the right-of-way of Park Road 22 (Clem's & Billings boat ramps parking lot), copies of which are attached to and incorporated into this resolution as Exhibits A and B. Attest: City of Corpus Christi 004/A04.40W Armando Chapa Joe Mame City Secretary Mayor Approved 16th day of September, 2011. R. Ja ei ng Firs Assi tant City Attorney For City Attorney Billing's-Clem's parking lot lease resolution 09162011.doc INDEXED Corpus Christi, Texas of O C`o6‘ef , 2011 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Larry R. Elizondo, Sr. Kevin Kieschnick Priscilla Leal David Loeb John E. Marez Nelda Martinez Mark Scott acie ajt cufe- cue' Billing's-Clem's parking lot lease resolution 09162011.doc 029251 Page 2 of 2 The State of Texas GLO SURFACE LEASE NO. S ZO1.10014 (TXDOT Lease No. L.16-178-356) STATE OF TEXAS KNOW ALL BY THESE. PRESENTS: COUNTYOF NUECES THIS LEASE' AGREE/VIEW No. SL2011001' (the `Lease",) is made and entered into by and between. the STATE OF TEXAS, by. and. through Jerry E. Patterson, Commissioncr'of the 'Texas General Land Office (the "GLO") and the Texas Department of Transportation (the "Department"), the :GLO and the Department hereinafter collectively referred to as 'lessors", and The City of Corpus.Christi, referred to a5 "a:,essee'.' WHEREAS, the Tas.Land Commissioner has authority to lease Permanent School Fund (the "PSI') lands pursuant to..Chapter 51,. TEX. NAT. RES. CODE, as amended from time to time;; and W H :REAS, the Department has authority to lease highway right-of-way property pursuant to Chapter 202, Subchapter C, Section. 202.052, TEX. TRANS. CODE, as amended from time to time, and pursuant to Title 43, Sections 2.1,600 - 21,606 of the Texas Administrative Code, as amended from dine .;to:time; and WHEREAS, Lessee. has applied to lease the hereia described PSF land and highway right-of-way in Nneces County, Texas, and NOW THEREFORE, for and inconsideration of the foregoing premises, the terms, conditions, .covenants and-perfonnaneess;;contained herein, and other valuable consideration the retie pt and sufficiency of which are hereby acknowledged, Lessors and Lessee agree as follows::. ARTICLE I. Premises 1.01, In consideration Of the::mutual covenants and agreetnents;sct fol li herein, -and for tither goad and valuable` consideration, the . receipt and sufficiency of which are hereby acknowledged, Lessors.liereby grant to Lessee, the right. to usc'the surface estate of certain coastal public lands defined herein forthe purposes identified in Article V below:.' The said coastal public lands that Lessco°inay use: are described as ;follows .:being:an approximately 2.2 -acre tract ofland in;Nueces County, said tract being bacate i in the Right -OP Way ofPark Road 22, and being part ofSubanerged Stale Tract 61, Laguna Madre, Nueces Courity, Texas, as more particularly described in Exhibits "A", "8", and "C", attached hereto.and incorporated herein by reference Ole ".Premises"). 'Thee Lessors acrd Lessee.aeltnuvrledge and,agreetin t Lessee's right to usc;the Premises is exclusive as'to any ini rovements located or to be located thereon, and nonexclusive as to the remainder 1';03. Lessee ackuowledges.and agrees that when any authors ed iri'rprovernents are placed'on the Pre • ises the location of such improvements: shall thereby become fixed at such location and shall not .be changed except by written:ainendirnet t to this Agreernent.;:. SL2011001 d i3llewgley EXHIBIT A Kennedy Cause 'Boat Ranip Lease ARTICLE II. Consideration x;(01. As inducetnent for the "City of Corpus lliisti to:be the 10ca1 sponsor for a TPWD boot ramp ittproveinentgia4 and aonsideralion ofthe City's eorntnitmeat to:tnaintain such i provenielits, rent is entirely offset and no payments shall be dile. ARTICLE la. Term 3.01; This Lease is fora telm eornmLnc.irlg ori .September i, 201`7 and: terminating on, August 3:I= 2036 nless sooner terminated as. herein provided. 3.02. In the event the Dept/Merit determines in its -"sole discretion that::the Pren ises, or any portion thereof, is; needed for exercising any of its lawfulfunctions other than leasing aright -of -way .nOt needed for highway purposes,' the Dspartnient may terminate. this. Lease in :its entirety .or tenninate with respect to. any 'portion of the Premises," and if the terrriinatlon is .only as: to a portion ,of :the Premises then: the terms of this :Lease shall be niadified by written`amendtnent to reflect stleh termination; . The:effective date of any; such terthination shall be rto i alter than twelve (12) tnoittlas frtitii the notice date of sock t;ermxhifinlo °sent 10.41M. Lessee by:lite terrrtinatireg party. 3.03.; 'tithe event that`iLessors"decide to Offer the Premises .for lease after the,e),piration-of this Lease, provided all payments due are Orient, and provided that thcrc have been no unresolved events .of default or other violations :.of the contract ternis and conditions; Lessee shall have a right of first offer to renew this Lease on terms and'vonditions; to be'rletennlined'"by Lessors at the time of renewal: Approval of:such,terms arid conditions :shall be at:.the sole discretion of Lessors: ARTICLE IV:" Acceptance of Prernises/Disciairner 4.01. LESSEE ACKNOWLEDGES THAT IT IS "LEASING. THE PREMISES "AS IS" WITH,ALL FAULTS, INCLUDING BUT NOT LIMFI'ED-TO ANY AND ALL POLLUTANTS, -ASBESTOS,; UNDERGROUND:STORAGE TANKS AND/OR ANY OTHER "HAZARDOUS MATERIALS" (AS SUCH TERM IS DEFINED` IN SECTION 5'.09`HEREOF),.AN;I) THAT NEITHERLESSORS, NOR ANY -EMPLOYEE OR AGENT OF LESSORS; HAVE MADEANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION OF SUCH PREMISES. _ LESSEE HEREBY WAIVES ANY .AND ALL CAUSES OF ACTION; CLAIMS, .DEMANDS, DAMAGES" -AND LIENS BASED ON ANY WARRANTY, EXPRESS OR IMPLIED,: INCLUDING BUT NOT LIMITED, TO ANY IMPLIED WARRANTY OF SUITABILITY FOR A:,. PARTICULAR PURPOSE," ANY AND. ALL WARRANTIES OF HABITABILITY,. AND ANY OTHER IMPLIED WARRANTIES 'NOT EXPRESSLY SET FORTH -IN TIIIS LEASE. LESSEE ACKNOWLEDGES:AND AGREES THATLESSEI~ HAS BEEN PROVIDED, TO ITS. SATISFACTION, THE OPPORTUNITY TO INSPECT THE PREMISES FOR ANY DEFECTS AS TO THE SUITABILITY 'OE SUCH PROPERTY FOR THE PURPOSE TO WHICH LESSEE INTENDS TO PUT THE PREMISES, AND IS RELYING ON ITS :OWN.INSPECTION. THIS. LEASE ,ANI) ANY USES AUTHORIZED HEREIN ARE SUBJECT TO ALL COVEN' ANTS, EASEMENTS, RESERVATIONS, RESTRICTIONS, AND OTHER. MATTERS. 7F RECORD AND NOT OF RECORD APPLICABLE TO THE PREMISES, :INCLUDING BUT NOTLIMITEI TO AN'Y, RIGHTS OF THE UNITED. STATES Or AMERICA UNDER THAT CERTAIN SPOIL DISPOSAL AND RIGHT-OF- WAY EASEMENT'DEEI) DATED AUGUST:21, 1947 AND RECORDED AT VOL 382;; PAGE 307, REAL PROPERTY RECORDS OF NUECES COUNTY, TEXAS. LESSEE IS HEREBY PUT ON NOTICE 'THAT- ANY PRIOR GRANT AND/OR ENCUMBRANCE MAY OE RECORD, AND LESSEE` IS ADVISED. TO EXAMINE THE RECORDS IN THT ARCHIVES- :AND RECORDS DIVISION- OF THE TEXAS -GENERAL LAND OFFICE, 1700 NORTH CONGRESS AVENUE, AUSTIN, TEXAS,':78701, AND ALL OTHER LAND TTTLE: RECORDS OF THE".taOUNI Y )1N- WHICH THE PREMISES. ARE LOCATED, BUT IN. ANY EVENT LESSEE IS LEASING THE PREMISES'sup,ix+CT TO ALL PRIOR RIGHTS AND ENCUMBRANCES, WHETHER OF RECORD OR NOT., 4:132. LESSEE ACKNOWLEDGES THAT ANY AND ALL.: STRUCTURES- AND::IMPROVEMENTS EXISTING ON THE PREMISES ON: THE.COMMENCEMENT DATE,IF ANY;:.:ARE ACCEPTED"AS IS," WITH ANY'AND ALL LATENT AND PATENT DEFECTS.ANI) THAT THERE ARE NO WARRANTIES, EXPRESS OR IMPLWD,, BY; LESSORS WITIf RESPECT THERETO. "LESSEE. ACKNOWLEDGES THAT IT 1$ NOT RELYING UPON ANY REPRESENTATION STATEMENT OR OTHER ASSERTION. BY LESSORS:WITH RESPECT TQ ANY EXISTING STRUCTURES 01, IMPROVEMENTS BUT IS. RELYING ON;1TS EXAM1NATION THEREOF. 4.03. TIDE PROVISIONS OlF THIS ARTICLE IV"SHALL,SURVIVE THE EXPIRATION °a EARLIER TERMINATION OF TIIIS.LE1 Ea SL20I10014' B311ew tIcyt Kennedy Causeway Boat Ramp Lease ARTICLE v. Use • of: Premises 5:01. Lessee shall have::the:right to. use and -occupy the Prernises for construction, Operation, and -maintenance ofptrblic boat. ramps and,publie palking. Overnight<use.".of such parking .areas for camping shall be lirnited to twe-rec;reationa"l vehicles fora' period- not to exceed f3ve consecutive days. Netwithstandine anything hereinabove: to the contrary; overnrghtwise of such parking'. areas for any other use ,is prohibited except for Lessee's subtcriantsguests and invitees." "Lessee shall enforce. -this prohibition against overnight "use of°such parking areas.. Lessee may manage the; parking -areas by providing for reasonable:parking rules and' regulations, and designation of parking .spaces. Any proposed change:.:in the use or additional trees of .the Prernises not perm rtted- herein are subject to the prior written approval of Lessors, Lessee.shall not engage in any use' on the Premises not expressly set forth in this "Section 5.01 "without the prior Written 'consent: af. Lessers. Where regriired by iav , approval of "Lessors is' subjeet: to: the concurrence" of the Federal Highway Administration (the "FHWA") rncli:Wing, but net'."hiriited to; approval of the placement an.d.use-:of any :fuel storage tanks or dispensing facilliies on the,Premises. 5: :i essee acknowiedges and agrees that residential uses of the Prernises and'sales>of alcoholic beverages on`"the""Premises rare expresslyprehibited, Violation of this provision shall constitute an event of default; 15,03,,A :Lessee's use::of:the Premises is subject to and contingent upon compliance with the f llownigcovenants and -obligations: 1. Lessee may rebuild rind/or repair 'the exi'sting.structures.:authorized rn this Lease: Not later than thirty (3.0) days following: • cornpletion of any repair or reconstruction of the Existing Improvements and any tither improvements. authorized"pursuant to this Lease, Lessee shall remove arty and all building materiais (including,,::;withouil timitati n, t rtt bei, PVC pipe, :insulation, plumbing supplies; etc.) from the:Prerniscs, Lessee shall at':all tunes during the term ofthiS:Lease maintain the:structures authorized herein in:good repairand:'.safe:cotiditioi ; 2. Lessee: shall, al::alt tier►es: during the Least Term and any holdover period, maintain all piers, structures, .starry steps,: walkways,, vehicle "parking; area .and. other iinproveinents` used, or potentially used, by the public in good:: repair -and safe ctinditioir Any rip rap" located on the Premises shall consist of concrete block; interlocking brick, sack Crete, rock large enc gh not to be displaced by storms, and/or concrete rubble which is free of protruding::rebar. Lessee hereby acknowledges and agrees that the use of tires, vehicle parts, appliances, trash, debris, asphalt, vegetation, or other material not authorized herein is strictly prohibited. Propwasl ing is considered a'fonn of dredging and, as such, is. specifically prohibited as a method of'creatirig or maintaining areas of increased water depth. Impacts to seagrasses, emergent marsh: and/or oyster reefs; are to be strictly avoided. essee-'s:use ofthe :Premises is subject:.to and contingent upon compliance with t:he following Special Conditions, Lessee acknowledges and agrees that any inoperable boat, vehicle or equipment which is located on the Premises for, more than :thirty (30) consecutive days is a derelict item and mustb:e immediately removed' from the Premises. Lessee shall prevent the: accumulation, storage or abandonment on 'theupland and submerged portions of.:the Premises of any derelict vehicles, "boats, trailers, equipment; parts, .appliances, .glass, tires, building materials (including, without limitation, foundation footing, piers, concrete ruble and watis), trash or other debns and keep the Premises in a" neat, clean condition, in "keeping with the nature of::the Premises And similarneighboring tracts, Lessee shalt "maintain regular garbage collection services, using either theservices of the. City of Corpus Christi Sanitation Division and/or the service of a solid waste contractor holding a City of Corpus Christi Solid Waste permit, and shall, upon request by Lessors, produce evidence of such garbage collection ;services in the: form of a current contract, sequentially paid bilis, ,or the Iike C: Prior to.:4 y coristructiari, installation pr 'other actrvities'on the Premises, Lessee shall provide written notice of all Special COnditibti$VE.arty cogtractor and/or agent involved in such activities; Lessee shall send: copyof such notice to Lessors 5.04. Lessors and :Lessee-ackneWiedge and agree that Lessee's right tocontrol the use of the submerged portion of the Premises is exclusive as to the iittprovementss located by Lessee or to be located by'Lessce on the, submerged', portion of the Premises' and non- exclusive as to any other:subtnerged land contained 'within the Prennses SL20110014 3 :Kennedy Causeway Boat /tamp Lcnse: B1-lewgl ey 5.05. Lessee may not trse or oeeupy, permit the Premises to be used or occupied, nor "do pr petit rt anything to be done "in or on the Premises in a rrianncr that"would itr anv-wayrm ake void or voidable any insurance "then in force::with rtrspeet itheretp, or that would nlake:it.impossiblc.to obtarn the insuranee required to hertirniShed`by Lessee iieretinder.: 5.06: Lessee, at its oWni c'pense, will comply With all federal, State, tnunicipal and other laws, cedes,. ordinances, roles and regulations applicable to the Premises, will install "and'rntintaiii lighting: -on the" I'ternises:.t ddequate to comply with U S Coast ward and" .other "applicable regulations; Will install, remove and alter such equipment and faeilities u, and make such alterations .ta, the Premises as .May "be necessary:so to comply; will comply with such Eregtdations tis Lessors may promulgate regarding: sanitation, cleanliness and'Other lieailth and/or. environrrtental matters, ineluding, without lir'nrtationremoval of garbage,trash end'ot1ter` waste; and will use the hrghest:degree of care: and all proper safegtairds to prevent pollution of air, soil and Waterin; on and around. the. Pternises. Lessee will not make:"any unlawful use of the Premises or;perrrni any`unlawfUl ase thereof: and will not'conititit, or.pertnit anyone else to commit, any act whrch is -a nuisance: or antonoyance Lessors or adjacent property owners or tenants, or which might, in Lessors' exclusive judgment, ,appreciabiy damage Lessors' goodwill or reputation, or: tend to injure" or depreciate the value of the Premises•:and/or any improvements located thereon. hi:addition to the.foregotng; Lessee at Lessee's expense, shall comply with ail laws, rules, orders, ordinances, drreetions, regirlattons, and requirements of federal, state; county, and tnuntcipai authori"tie"s now force oe ich rosy hereafter be in force that impose any:t City. upon Lessors or Lessee witltrespect: ``to the rise, oceupatron;; or alteration of the Premises, including but net limited to the Atner cans with Disabilities Act (ADA),. (Public Law 101 33'6, July 2o, 1990), Chapter 1.21,.:TEX HUM; RES: CODE; and Chapter 469 TEX GOV't CODE In addition to the. foregoing. Lessee shall fantish to Lessors,withut:live: (5) .days of receipt by Lessee, copies of iiit and all notices. and/or correspondence directed to ]lessee 'by any governmental entity or other entity or :person indreatrng violation or possible violation of any laws or other regulations, including without liinitakiort:any lather Other regulation regarding" I azatLdous Material (as defined below). 5;07: 'LESSEE 1S HEREBY :EXPRESSLY NOTIFIE Old THE :NATIONAL HISTORIC`PRES.EI VATION ACT OF 1966 (P 9=66, 80 STAT, '9.15, .I.6 U S C.A SECTION 4* ET SEQ:) AND TFIE TEXAS ANTIQ1MTIES "CODE (TITLE 9i CHAPTEIR'I9I, T1 X..:.NAT..RES. CODE':ANN. IVERNON:200I & SUPP. 2004]). IN CONFORMANCE WITH THESE:: LAWS; IN THE EVENT THAT ANY 'SITE, FOUNDATION, `BUILDING, STRUCTURE; LOCATION; OfJECT,, ARTIFACT, ITEM OR OTHER. FEATUREOF`ARCHAEOLOGICAL, SCIENTIFIC, EDUCATIONAL, CVLTURAL.OR HISTORIC INTEREST"`IS ENCOUNTERED DURING THE ACTIVITIES A1TTHOR1ZED BY THIS ;];.EASE; LESSEE SHALL IMMEDIATELY' CEASE ANY :AND ALL" ACTIVITIES,. AND NOTIFY :'LESSORS AND THE TEXAS HISTORICAL COMMISSION, R.O.: BOX 12276, AUSTIN; TEXAS=78711 SO THAT APPROPRIATE ACTION MAY BE TAKEN. 5.09. Except as .expressly and specifically provided for in this Lease, Lessee may not used knowingly peril* the use of any:part of the Premises. fbr'themanufeettae„of tlamrniable, explosi re or Hazardous Materials, or fat any occupation that would bee deertied by Lessors or FHWA to be 1iwryardous to either.the highway fir nota -highway user. Lessee shall not bring onto, or'dispose of on.r r: aroundthe Premises any Harnrdoits Material without the prior written consent of Lessors; Which consent shall be condttioited:on esse :s'contplying with: all applicable federal, State, county and mplicipal roles and regulations governing such HazardonsMaterial :and anyyother requiretnen s of Lessors ("Conditional Consent"); For the"purposes Ofihis Lease, the term "Hazardous:Material" shall :specifically exclude fuel for motor vehicles or vessels stored in internal tanks of a motor vehicle, vessel, or outboard engine orportable` :foe] tanks. with a capacity of Icss;than ten gallons;";motor ail for motor vehicles or vessel engines; including moor oil in containers; sized for retail sales to consumers cleaning solvents in contamers,:sized for retail sales to consumers; and batteries for motor vehicles or vessels, but shall include, mean and:refer to one'or more of the following: A. Asbestos; 13. Any substance, material or waste defined as a "hazardous waste" pursuant to Section 1004 of the Resource :Conser anon and. Recovery Act (42 U.S.C. Section' 6901, et, seq.); C. Any substance, material or waste defined as a "hazardous substance” pursuant to Section 101 .of the: Comprehensive Environmental. Response, Compensation and Liability Act (42 I1.S C Section 960I, et..,seq.); 1), Any substance, material or waste defined as a "regulated substance" pursuant to Subchapter IX of'the Solid Waste Disposal Act. (42 U.S.C. Section 6991, et, seq.); Any substance, material; or waste whichis reasonably considered by Lessors to pose an actual or potential threat;to persons and/or property in, around or on the Premises. 5.10. ln:the event of Lessee's violation of the prohibition set forth in Section 5.09, or ofLessee's violation ol'::any conditions applicable, to Lessors' Conditional Consent, Lessors shalt have the right, at Lessors' option, to (i) charge Lessee the sum of One Thousand and SL,2011001'4 I3l]ew ,'ley Kennedy Causeway l3oat Ratnp.l,.ease .Nof lOf; Dollars (51,000;1)4per day i .r each such.violation within ten (10) -days of the date of Lessors` written notice of such charge to Lessee,and deposit such sum(s) in the Sttrfitce Damage Account created by'1 EX. NAT, RES GOBI' ANN:, §52 X9'7 (Vernon 2001 Supp "2004), ttndfor (ii):remedy :any hazardous situation then existing as a result of Lessee's violation -and invoice Lessee for the cost associated with same, and/or (iii) ;irrespective of the provisions of Article `XIV hereof declare Lessee in default urider"the terms of this Lease.: Notwithstanding anything hereinabove to the contrary, in .the: event of Lessee's violation, Lessors may, in addition to 'fining: Lessee for such violation tnd/or declaring; Lessee in dcrank under this Lease, require Lessee to takeremedial action iii order to remedy any hazardous situation, and Lessee hereby agrees that Lessors shall be entitled to enforce this right by bringing an action for specific performance in a court of competent jurisdiction. If required 10 take remedial action,, Lessee shall, within ten (10) days;:of Lessors' make, at its sole cost and expense, commence action as specified by Lessors -to :remove all hazardous v1at trial'from :the Premises: andloi any other public --and private property impaetcd'by Lessee's release or discharge :of;any. flazardous Material, and Lessee shall conduct such work in accordance with all applicable federal State, county and rot ticipal laws,.ordinancasand regulations governing. such work': 5,1.1: IN THE EVENT LESSEE, LESSEE'S EMPLOYEES,. AGENTS; OR REPRESENTATIVES; BRINGS OR KNOWINGLY PERMITS THE BRINGING OF ANY HAZARDOUS MATERIAL ONTO THE 'PREMISES, OR DISPOSES OR KNOWINGLY PERMITS THE DISPOSAL OKRETENTION OF ANY HAZARDOUS MATERIAL IN OR ON THE PREMISES IN ANY MANNER OR IN VIOLATION OF THE PROVISIONS OF THIS ARTICLE V., LESSEE, TO THE EXTENT AUTHORIZED BY LAW, AGREES TO INDEMNIFY LESSORS FROM AND AGAINST ANY AND ALL CLAIMS`i(INCLU13LNG STRICT LIABILITY CLAIMS), SUITS, COSTS, CAUS1$ OF ACTION, LOSSES AND ALL OTHER DAMAGES: AND EXPENSES (INCLUDING THE COST 011.DEFENDING AGAINST ALL OF THE AFORESAID) ON ACCOUNT OF CLEANUP ABATEMENT AND/OR DISPOSAL COSTS, FINES AND/2R •PENALTIES` INCURRED OR CILA:RGED:DUE TO THE PRESENCE OF.SUCDI HAZARDOUS MATERIALS . Pit.C1FERrTY DAMAGE AND/O t PERSONAL: SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED BY ANY PERSON QR PERSONS, AND TIE: COST OF REMOVINGANY U.EN PLACED ON: THE PREMISES$ :LESSEE'S INUEMNrrv. i IEREUNDLR INCLUDES, BIJT IS NOT :LIMITED TO,.ANY NEGLIGENT ACT OR OMISSION OF LESSEE, LESSEE'S EMPLOYEES, AGENTS -AND/OR REPRESENTATLVES, OR ANY OTHER. PERSON OCCUPYING TIIE PREMISES, OR Ai Y i'ORTION THEREOF, B' , THROt1GH, (. t MINDER LESSEE. LESSEE'S INDEMNITY HEREUNDER'.:S1I.ALU SURVIVE: TERMINATION'' OF THIS LEASE WHETHER BY. EXPIRATION OP THE LEASE TERMOR OTHERWISE.;. ARTICLE VI. Impositions, Utilities, Net Lease 6.01.. Impositions Defined. The tern "impositions" means all taitcs,.assessments, use and occupancytaxes, rates and vents,::excises; levies, license, franchise and permit fees, personal properly taxes, ad valorem taxes: and other charges by any public authority, general, and special, .ordinary andextraordinary, foreseen and Unforeseen, of any kind and/or nature. whatsoever,:`that ' are assessed, :levied, charged, cotiftmed or imposed during, the Lease Term by any public authority .upon or that beceoirie a lien on (i):the Premises :or any part thereof, including improvementsnowor hereafter comprising a part thereof, (ii) the'appurteitances thereto or the sidewalks or streetsadjacent thereto; or (iii) the rent: and incoirre received by or for the bccount=of•Lessee.from any sublessees or<irk ::any use :Of occupation ofthe Premises, 6,02 .Lessee's Obligation: During the:Lease. Term, Lesseewill pay all Impositions as and when they become dile:.. Lessee will, if `so requested, promptly deliver to Lessors evidence of payment. At its sole expense, Lessee may contest the 'validity 'or amount of Zany Imposition, in which event payment may be deferred only as permitted by law; however, in no event May Lessee defer payment in a. manner that would allow.a hen to be placed upon the Premises or any part thereof Lessors shall havethe right to require additional security for any deferred payrrients, au icient to cover the impositions,.interest and penalties. 6,03, Utilities, Lessee will pay all charges for gas, electricity, light, heat, :air conditioning,:power, telephoneand ail other titilttses and similar services,rendered or supplied to the Premises, and .Also all water rents, sewer service charges or other similar charges, including, but not Iunited:to connection fees, transfer:fees'apd` deposits levied or charged: against or in connection with the Premises. IN NO. EVENT WILL LESSORS BE LIABLE FOR ANY INTERRUPTION OR FAILURE IN THE SUPPLYING OF ANY UTILITIES TO THE PREMISES 6,04, Net Lease, Lessors will not be: required to n ake; any expenditure, incur any obligation, or incur;; any liability of any,kind whatsoever in connection with this Lease:or the financing, ownership, construction, maintenance, operation or repair of the:.Prainises.. Except as otherwise provided for in this Lease, Lessee may notallow :encumbrances : or liens of any Sort to be placed upon the Premises; or any part thereof SL2OI 10.014 W 1ewl ley Kennedy Causeway Boat:Ramp Lea e ARTICLE"VII Maintenance 701. LESSORS SHALL, HAVE NO DUTY TO. REPAIR OR MAINTAINTHE PREMISES OR. ANY MPRO'LEMEN`t'S TI IEREON. LESSORS SHALL HA.VF'NO DUTY' TO MAKE ANY REPLACEMENT OF. ANY IMPROVEMENT.. Lessee:shall maintain in gQrtd, safe repair and condition, including the aesthetic value, at its sole. expense and risk, allof the iinprovenients and equipment located or to: be located on the Prezi ises, free: from waste and nttisance provided, however, that •Lessee's abhgation in this regard shall extend to the "Highway Facility° (as herernaf er defined) only to, the extent that the Highway Facility is damaged as a result Of Lessees use of the Highway Facility or as ::a :result of business operations conducted pursuant to this:' Lease. andlor any sublease. Any iireh maintenance, 'repair and/or replaceitierit shall not interfere With ,-or reduce the level of service Of the Highway Facility as.detemirned by the Depai'hiient In its sale diseretian: The term. "Highway Facility" when used throughout this Lease means any present or future physieal roadway .iniproveinents within the -right -of -Way, including, ludung, but net limited;to, bridges, embankments; drainage areas, traffic sigrials,.signs, and roadway surfaces' and"suibsurfaces.. 702. Lessee' shall, at the'exphetion or terznirration of"this Lease deliver tip`the Premises, aid all irnproveinents thereon, clean and. free of triish:and in good repair.arid condition (reasonable wearand tear excepted). 7:03. At';"al times" uring the term alibis Lease, Lessee will provide trash containers in suitable xrtiniber so that eustorners and invitees do not litter the;Premises. Lessee shall, be responsible"for the regular. disposal of all (rash and/or sewage associated with its :operations at the Premises (whether or not such trash or sewage is generated by Lessee or its customers arid invitees). Lessee agues to pay Lessors, on demand, any sums expended by Lessors in the nature of cleaning; sweeping, or sewage and/or hash removal costs associated with: the:Premises and agrees` to indemnify and hold Lessors harmless: with respect to any such costs Meowed by any other person which Lessors:inay be obligated to pay. .7.04., If the Department>or the GLO" deterrnines'that Lessee has failed 'to maintain or.make repairs or replacements; as required herein,. either may notify lessee in' writing of said failure. Should Lessee fail .M. correctthe;sittiation within the time provided fain the notice,.. either the Department or the GLO may make the necessary correction at Lessee's sole liability; and Lessee shall pay the cost thereof',: including; but. not :limited to; the cost af'labor, materials; equipinent,'plans and adtninistrati'on, within ten (I0) days of receipt .cif a statement: of said cost. Lessors'rt'iay, at Lessors' option, choose other remedies available;here'iri;:avaa'ilable"at law, lir available>in etqurty, 7.05, At: any`tirne during the,Lease Term, and upon notice to.Lessee'that'is reasonable under the circumstances; the Department may require Lessee to cease:operations on any portion of thePreinises'located between the setback line as, shi wn on the'ekhibit(s) attached hereto and the John F. Kennedy Causeway (includingunder the:Causeway bridge) for asrlong as is reasonably necessary, in order to perform: rnainteenanceand/or "repairs as may be neeessary:as rdaterniitied by'the. Department in its sole-diseretion, ARTICLE VIII. Construction of Improvements 8.01. Lessee 'hereby represents that the structures and improvements on the Premises (the "Existing.'Iitrproveir ents"),are Within ,the Premises. Lessee shall not construct "additional improvements upon the Prarnises without the prior "written approval Of Lessors, Where required by law, "Approval of Lessors is subject to the caneurrence of the FIJWA. Ariy-additional iniproventerits:: must substanntially comply With.the latest plaits: and specifications approved" by Lessors:and/or'FHWA. L02. :ANY APPROVALS BY LESSORS UNDER THIS ARTICLE; INCLUDING BUT NOT LIMITED. TO APPROVALS OF:PLANS AND SPECIFICATIONS; INSPECTION OF WORK, DESIGN "AND/OR CONSTRUCTION, ARE:NOT TO BE" CONSTRUED AS A REPRESENTATION, WARRANTY OR STATEMENT AS TO TILE QUALITY; SOUNDNESS AND/OR SAFETY":OF THE DESIGN ANI) CONSTRUCTION OF ANY OF THE IMPROVEMENTS (INCLUDING, WITHOUT LIMITATION, THE EXISTING` IMPROVEMENTS) OR FACILITIES :RELATED '1 `H.ERETO. I1.03, Lessee. will furnish to Lessors two. ;(2) sets of complete plans :and specifications for grading ,and all.. additional 'improvements proposed to be:placed or constructed on':the"Premises, and no work will be done wEthout prior written approval of such plans by Lessors. Where' required by law, approval of Lessors is"subject"to the concurrence of the FHWA. Plaits must be prepared by a --professional architect or engineer registered In; Texas, ;and his or her signature and .seal must be' imminently displayed on the title sheets. 1 he plans and :specifications are to be submitted to the "District Engineer" (as defined in Section.: 17.07 below) and to the GLO for approval. During thecourse of the work, any changes or alterations musi also be submitted to the District Engineer and the GLO for approval Where required by law, said approval is subject to the concurrence of the FIIWA. All construction work is to be done in conformity with the plans and specifrcations,as approved: The Lessors, their employees and/or representatives have the right to inspect work on the Premises at any 'time 'during the progress of work and to make a final inspection upon completion. Lessors may take .any act:ion.. necessary; including directing that work be temporarily stopped, at 'Lessers expense, or require that- additional work be. done, et Lessee's expense, to ensure",. compliance With the plans SL20110014. ll iowgiey, Kennedy Causeway Boat Ramp !~ease inidlor specifications, protection of all parts and elements of the Highway Facility, and compliance with 'Lessors',:construction. and safety--star°dards. Any improvements (including, without. ltnnitation, the Existing Improveinents) are to be designed and constructed to permit access to the HighWay Facility, for the purpose of 'inspection, maintenance and construction: when, necessary or -desirable asdeterminedby the Department at itssole discretion:,. 8.04,- 'Lessee, at itS own expense, shall provide for detours barricades, warning signs, flares, flashing: light signals,: flagmen and any other safety Measures as :are deeined necessary or desirable by the Department to °direct and protect vehicular and pedestrian. traffic while construction maintenance repaii' work -andlor other related activities:. on any improvements (including, without' Itmttation, the Lxisting Improvements), is :in. progress Details and deseript'ions of these traffic -handling Measures must be included rn the plans and specifications when -submitted for approval. lf, during any construction, maintenance, `repair work or related activity, it becomes necessary or desirable to modify such traffic control `measures, prior written approval must be abtained froth the District Ei gineer; '8.05. A. Within sixty (60) .days following the expiration or earlier termination of this Lease; Lessee shall remove c r any portion of the'Exixting;itr provenients, additions, alterations and/or fixtures -then resisting on the Premises, remove all debris resulting from 'suelh removal and l•eave the grou•nd theretofore occupied by such improvements in a safe, clean • condition, all such Work to be done; as promptly and expeditiu sly as is reasonably possible (but an :no event to exceed :sixty days). Prior to commenting removal activities, Lessee must submit plaits for.sueh removal<activities to the District Engineer and to the CLO, Such plans are subject to the Written approval of Lessors prior to the comimencennent of the:` removal of any improvements; 13 If Le Seo Fails. to comply with'Section 5;05.A. bereinabove,`Lessors -shall have the option to: 1. Demolish anti remove any and all improvements tineluding, without ihnitation, the Existin :-Improvements)`. at Lessee's expense, andLessee shall pay all costs thereof :(including, but not limited to;: the. cost•of Tabor, materials, equipment, plans and administration, and any amounts incurred by Lessors in -attempting to effect collection thereof) within ten (10) days of receipt of a statement of said eosts from Lessors; 2. :Assume ,possession, ownership' and control :of the Premises and the imprtivetnents (including; without` limitation, the Existing Improvements) thereon. 8,0t .:.Notwithstanding any provision of this Lease Which.perriiits Lessee to dernolisii; alter, reniodel or renovate the Existing~ Intprovetnents on the: -:Premises, .Lessee shall not. "redevelop'' (as hereinafter defined) the Premises without the prior .written :consent of 1:essers,:.Which consentmaybe granted or Withheld in Lessors' sole discretion. Where required by:`law, said approval is subject to the concurrence of the ;FHWA; 13y way of exanpl.e and not by *ay. of lintitation, as a Condition' to permitting redevelopment of the Premises; Lessors may require. (1) revisions to'the: rent terms of this Lease, (2) recottstruetion:and operation of the Freiniises within a limited -period of.tiirie, and (3) reriegotiatlon. of part or all -of the -terms c f this Lease. As used in this provision, "red'evelo 'i p means the alteration of the Existing lriipravennen#a•upon the Premises :Or any other impr©vernetits'. °authorized purstaant to this Lease) "which'cliangc the nature of those imprevetinents from :the irse or uses specifically set forth in :Section 5,01. Lessee may, vi#lttii.tt -:engaging itis: redevelopinent, remodel, rebuild, rehabilitate' or renovate the Existing lrnprovetnents (or any` other inipraveinents_authorized pursuant to this Lease) so long, as- the iiiiprovements are permitted by .Section 5.01 of this Lease and so long as -Stich remodeling, ,reconstruction, rehabilitation or renovation shall net -result in a violation of Lessee's obligation to.operate the Premises as set forth in Article'V of t is.:L ase. 1.07. lf Lessee re ceives,prior-Written'.approval.:from Lessors to redevelop the Premises, all plans; construction documents'und; ;speeifications.lbr redevelopment Must he furnished to the District Engineer and to the Ow for prior written aataraval. Where, ;regi ir'ed by lax,, said approval is subject to the,ceneutrence;pf"the. F.HW.A. Such;redevelopment;tnust comply with ail other terms, conditions, covenants and performances:eontained in this, Lease. 8.t1$, Lessee: eiivenants'tliat any improventettis constructed on the ,Premises (including, without limitation, the Existing Improvements) will not at any time during: or.:after construction damage, threaten to damage, interfere with, reduce, the level of service of or otherwise adversely. affectany. pari or elernent ofthe Highway Facility orthe operation thereof as determined by the Department in its sole,diseretan. S12011001,1 BHewgley Kennedy Causeway;l3oat lamp Lease 8.09. Construetiotn 'Standards:: Any and "all:improvements (including, Without Iiinitation,. he Existing irnproyeni'ents) shall be constructed, and any and all :alterations, renovations, repairs, refurbishment or other work With regard thereto shall be performed in acctirdance'With the`folloiving "Contraction Standards" (herein so: referenced): A. All such "construction::ar :Work shall be performed in a good, worktriarilike manner in ateordance:.with good industry practices for the type ofwork hi question; B. All aitch"construction" or work shall be done in conrpliance'with all applicable' building Codes, ordinances and other taws, rules and/or regulations of governtnental"authorities having jurisdiction; C. Lessee [must :obtain all required " governmental Itemises, perinits and authorizations prior to beginning any `such construction er Work, ll' To the extent allowed by la* prior to comnie.ncetrrent :of construction", Lessee:Shalt have' obtained (and Lessee shall thereafter maintain) in force and effect during all construction; insurance coverage in: the amounts set faithhereinVith respect to the type -of construction or Work in question :and .furnish•:evidence ofsuch insurance to"Lessors; :E. After cornnmenecanent of :cotistritctioim, Lessee .covenants and <.agrees;'that:such construction ci• work will be proscGuted 'With due diligence tb its completion;. and Lessee 'is solely responsible for...inceting and adhering to the abt v:e nstbi tion standards, notwithstanding:Lessors' approval of construction documents `G': No Iniprovetnents, other than paving,:curbing"and other incidental opert air parking lot related imnproventents may be constructed or .maintained between the Building Line and the southernmostlease tract line as shownon the attached Exhibit "C". ARTICLE IX Liens 9.O1. It expressly acknowledged and understood that Lessors do not consent to, wind kava not by the execution and delivery of this Lease consented to the imposition of any liens upon. the Premises by .any party whomsoever. Lessee shall not suffer orpermit any mechanic's liens or other "liens. to be filed against.the fee: of the Premises .or any portion thereof, against Lessee's leasehold interest in the Premises, or against any of the Itnprovements; on the Premises by reason of any "work, labor, services or Materials :supplied or claiined to have; been supplied.to:Lessee or to anyone holding the Premises or any part thereof through" pr "under Lessee. 9,01, in the as of the filing 'grimy such lien, Lessee shall "immediately thereupon discharge the same by payment„ bonding or otherwise, but in all everts prior o: the'foreclosure thereof. If default in payment thereof shall continue beyond the expiration of ten (10) days aftei :Lcssee's.rccelpt ofa notice"thereof, Lessors shall have. the right, but not the at Lessors' option, to discharge such lien at Lessee's sole; cost and expense, and in such event, Lessee: shall reimburse Lessors for such costs within ten (IQ) days of receipt.ofa statement of said costs from Lessors. 9,03, In addition to the foregoing; Lessee shall furnish .to. Lessors within five (5) days of receipt by Lessee copies of any and alt notices ;and/or corresporidencei directed to Lessee by any person.: or entity alleging the right to, or notifying Lessee of the filing of,. any nechanic's,,rnateriaiman's or other lien against the fee of the Premises Lessee further covenants and agrees, to the extent allowed by law, to protect, -indemnify, defend and hold haririless Lessors from andagainstall bills and claims, liens and rights to liens for labor and materials; and architect's, engineers, contractor's:: and subcontractor's claims, and all fees, .;claims and expenses incident to the, construction and completion of any Improvements, including without limitation any reasonable attorneys' fees which may be incurred by Lessors in connection therewith,. 9..04. Lessee Shall furnish to Lessors, upon .request, receipts and releases, which: are acceptable to Lessors, from all materialmen front whom any material is obtained by Lessee .or by anyone holding through • or under Lessee, for use in the Improvements authorized. by this tease and -from all contractors and subcontractors, to the end that no liens or any character may be affixed against the Lessee's leasehold estate created in this Lease, except those. provided hereafter. ARTICLE X ' Bonds 10;01. Prior to commencement .of a construction project that Costs in excess of nifty Thousand and No/lila Dollars ($50,000.00); Lessee, at its sole cost: and expense, shall deliver to Lessors a performance bond ar other security acceptable to Lessors fora sura to be determined by'Lessors ;based on the cost of completion or removal of proposed. improvements. The performance bond must be issued SL20110014 Bliewgley Kennedy Causeway Boat Ramp Lease :by a coriipany licensed by the Texts Departriient.O .inSitrartt,e::and in a feint acceptableto Lessors, naming'the T essnrs .as. Obligee. Said perfortuaiice bond°shall be for the purpose<of guaranteeing full Arid prompt"performance of all construetininn ork and:full and prcitnpt paytnent and per ermance of all elan/tants: Supplying labor:and/Or materials irt"the perforinauce of ;the constructivri work ARTICLE XL Sim 11.01., All.sigris,;displays.or"devices placed on`the Premises by Lessee shall have prior Written approval :by the Cityof Corpus Christi, the District Engineer and the GLO, and shall be restricted to Those indicating ownership. and :type of activities authorized to be. -conducted:on the=Premises, including inane noniron .Any such signs, displays or devices that do'not eonforin to this may removed.aiid disposed of by Lessors at Lessee's expense: ARTICLE XII, Insurance and Indemnification 12.01. 'Contractor's: Insurance. Lessee agrees to require" giants contractors carry at all times while engaged in the construction,. alteration, ieconstniction, repair or Maintenance of the :Itn.proveii tints daring the Lease Tenn, the following mininni n insurance with companies authorized to do business in the State of Texas,. protecting Lessee and :Lessors,:as an additional insured, Against any and all claims for injuries t� persons or damage' toproperty, as it result of, or arising out of such construction, alteration, zeconstruction,.repair or maintenance of the. Irnprovements by.Lessee's .eontraetors: A " Worker's eompensation`as required by Texas law with the policy endorsed, where reasonably available,.. to provide a waiver of subrogation as to Lessee acid l.,essors, and employer's liability insurance of tun ;less than One Million and No/ 00 Dollars'' ($1,000,000.00) (or the statutorily required minimum if higher) for each accident; B Carrrmercial ;;geiieril liability :insurance including independent contractor's liability.; "completed operations and contractual liability, adequately insuring .each contractor's, liability for bodily injnry,extended to include personal injury liability coverage, and for damage to property of thin! parties, With insurance limns of not:less than One Million and Noft00 Dollars: 01,600;000.00> With respect to bodily injury, .or death to any number of:persons .in any "accident or: occurrence" and not. less than Quie Million and No/100 Dollars'($1,00000000) with respect to preperty'damage in any one: accident or occurrence;, C. Comprehensive`:'ttutoinobile and truckliability insurance, covering: owned, hiredand non owned vehic1os, with minimum limits of Two: -Hundred. Fifty Thousand and :No/100 Dollars (S250,000.00), ei cb person and .:Five `Hundred Thousimd and N0/100 Dollars ($500000.00),:eaeb occurrence, for bodily injury and Oiie Hundred Thousand) and No/IDO Dollars ($10(,000,00), each occurrence,; for property damage, such insurance to include coverage.for loading.and unloading hazards;:: and 0; During construction of: the Improvements and during major alterations thereof, Lessee's contractors shalt;,obtrarn "umbrella" excess liability coverage "insuring the ;contractor for an amount " of not less than One Million and No/Its rollers ($1,000 000.00) combined single limit bodily injury and property damage liability, including death, in, -addition io the"prltnaiy coverage required hereinabove: Lessee or Lessee's contractors must also .obtain, at no cost.. to Lessors, „all-risk' builder's risk insnrance, insuring againstlosses resulting from lire, extended coverage, vandalism and malicious mise) let in an amount equal ;.to tine hundred percent (100%) of the insurable; value of the ;construction work, completed value form including; materials delivered and labor performed for work Such policy must name 'Lessee, Lessors, the contractor, subcontractors and sub -subcontractors as lass .payee$ as their interests may appear 1 he liability insurance policies required herein must name;Lessee and Lessors as an additional insured and must include waiver of subrogation endorsements in favor of Lessee and Lessors. 12:012. General Provisions. A. Lessee may provide any insurance; required by Ibis Lease in the form of a bian1etpolicy, provided that Lessee complies in all respects with the insurance provisions et this Lease and fanner provided such, blanket policy is first approved by Lessors as. adequate to rneot the. insurance _requirements senrortit herein. 13, Lessors hereby release Lessee, and Lessee hereby releases Lessors and their respective officers, -agents, employees and servants, from:any and all claims or demands :for damages, loss expense or injury tn the Premises, to the Improvements, or to any other property of either Lessors or Lessee, as the case may be, that are 'caused by or result from perils, events or happenings that are" the subject of insurance: carried by the respective parties and in force at the time of any such loss;. provided, however, that such waiver is effective only id the extent permitter) by the insurance covering.such loss and to the extent such insurance is not prejudiced thereby or the expense of such insurance is not thereby increased.; SL20`110014 Bile !g eye 9 Kennedy Causeway Boat Ramp Lease 12.03., LESSEE'S INDEMNITY; EXCEPT:Fi R THE: SOLE::NEG1,IG,+NC OrLESSORS FUR' WATCH LESSORS ARE LEGALLY LIABLE, LESSEE SHALL TO THE'EXTENT ALLO'WEI) BY LAW, INDEMNIFY ANDHOLD HARMLESS LESSORS, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND TI-TEIR RESPECTIVE AGENTS, REPRESENTATIVES,. MEMBERS OF THE TEXAS TRANSPORTATION. COMMISSION, THE TEXAS LAND COMMISSIONER, THE FI I3ERAL HIGHWAY ADMINISTRATION AND ITS REPRESENT.ATIV1,S,,CONTRACTOR AND EMPLOYEES (COLLECTIVELY, "INDEMNIFIED) PARTIES"') FOR, FROM AND AGAINST` ANY. AND ALL PROCEEDINGS, SUITS, ACTIONS,s CLAIMS, DAMAGES, JUDGMENTS, LIABILITIES, LIENS, FINES, PENALTIES, AWARDS ANI) EXPENSES WHATSOEVER; INCLUDING, WITHOUT LIMITATION; STRICT LIABILITY. CLAIMS (COLLECTIVELY, ":CLAIMS"), WHETHER SUCH CLAIMS ARE :MADE BY • LESSEE, •LESSEE'S EMPLOYEES; AGENTS, REPRESENTATIVES OR BY'THIRD PARTIES, WITHOUT LIMIT AND WITHOUT:REGARI Ta. THE CAUSE OR CAUSES:THEREOF OR THE :NEGLIGENCE OF ANY PARTY 0 PARTIES .AND REGARDLESS -OF WHETHER "SUCH CLAIMS ARE CAUSED DIRECTLY: OR INDIRECTLY BY THE, NEGLIGENCE OF LESSORS; THAT MAY RE BROUGHT OR INSTITUTED ON ACCOUNT OF OR GROWING OUT OF ANY AND ALL INJURIES 0L DAMAGES, INCLUDING DEATH,. TO PERSONS OR PROPERTY. RELATING DIRECTLY -OR .JNDIRECTLY TO (I) TN.IS LEASE; (T1) THE CONDITION OF THE PREMISES, (111) ANY OCCURRENC :IN, UPON, .AT OR FROM THE PREMISES OR ANY `PART'THEREOF; (IY) THE CJSE OR OCCUPANCY` OF THE PREMISES: OR ANY PART THEREOF; AND/OR tvy ANY CONSTRUCTION AND RELATED ACTIVITIES BY LESSEE, ANDJOR LESSEE'S LICENSEES, INVITEES, AGENTS; CONTRACTORS, REPRESENTATIVES.AND EMPLOYEES; TOGETHER'WITH ANY ANI) ALL LOSSES THERETO; INCLUDING,BUT NOT LIMITED;TO, ALL. COSTS OF DEFENDING AGAINST; INVESTIGATING ANI) SETTLING THE CLAIMS. IT.IS THE EXPRESSED INTENTION OF THE PARTIES, HERETO BOTH:'LESSORS ANI) LESSEE,3:I AT THE INDEMNITY PROVIDED FOR:IN THIS :SECTION 12.03113 INTENDED BY LESSEE T() INDEMNIFY AID PROTECT LESSORS.' FROM THE' .CONSEQUENCES OF LESSORS' -OWN NEGLIGENCE WHERE THAT. NEGLIGENCE IS` A CONCURRING CAUSE OF THE cLAfM, AND ALSO THAT THE INDEMNITY 'SHALL PROTECT LESSORS AGAINST CLAIIYIS OF STRICT' LIABILITY FURTHERMORE, THE INDEMNITY .PROVIDED) FOR IN THIS SECTION 12,03 SHALL': HAVE.. NO APPLICATION TO ANY CLAIM WHERE THE CLAIM RESULTS FROM THE` SOLE NEGLIGENCE OF LESSORS. LESSEE SHALL ASSUME ON BEHALF OF !THE:: INDEMNIFIED PARTIES ANI) CONDUCT WITH DUE. DILIGENCE. AND: THE DEFENSE WITH COUNSEL SATISFACTORY' TO LESSORS, :OF ANY AND ALL CLAIMS AGAINST ANY OF THE INDEMNIFIED PARTIES; PROV.ID:EI), I-IOWEVER,'LESSORS MAY,, BUT HAVE NO OBLIGATION 10, ELECT TO CAUSETHE ATTORNEY GENERAL OFTRE STATE OF'TEXAS TaINTERVENE OR ASSUME THE'DEFENSE FOR LESSORS H AT THE SOLE EXPENSE OF LESSEE. MAINTENANCE OF ANY: INSURANCE INCLUDING HUT .NOT LIMITED TO THE INSURANCE REFERRED TO IN; THIS ARTICLE XII OR BENEFITS PAYABLE UNDER WORKERS CO]VIPENSATION .ACTS, DISABILITY BENEFIT ACTS OR OTHER EMPLOYEE BENEFIT ACTS DOES NOT AFFECT LESSEE'S OBLIGATIONS OF INDEMNITY. LESSEE. WILL HAVE THE RIGHT T:O::CONTEST THE VALIDITY OF ANY CLAIMS, IN' THE NAME OF LESSORS OR LESSEE,:AS LESSEE MAY' DEEM APPROPRIATE.; PROVIDED THAT THEN' EXPENSES THEREOF. ARE PAID .BY LESSEE, :OR.:LESSEE CAUSES THE. SAME. T() BE. ,PAID BY ITS INSURER. 'NOTWITHSTANDING' .ANYTHING HEREIN TO THE CONTRARY; LESSEE'S OBLIGATION'OF INDEMNITY AS'SET`FORTH HEREIN WILL CONTINUE BEYOND THE' TERM OF TUIS:'LEASE IN THE EVENT LESSEE REMAINS IN POSSESSION OF: THE PREMISk ' FOR ANY REASON, OR IN THE EVENT LESSEE: HAS. ANY FURTHER OBLIGATIONS UNDER THIS LEASE; INCLUDING,:BUT NOT'LIMITED TO, ANY REMOVAL REQUIRED BY LESSORS. IN THE EVENT LESSORS. EXERCISE LESSORS' RIGHT:. TO REQUIRE LESSEE TO REMOVE'.AL.L OR PART OF`THE IMPROVEMENTS, OR IN THE EVENT LESS+'E>:REMOV.ES THE IMPROVEMENTS, LESSEE'S INDEMNITY WILL CONTINUE UNTIL'LESSORS:'DEEM SUCH ::REMOVAL TO BE COMPLETE LESSEE, AS MATERIAL PART OF THE !C.ONSIDERATION TO LESSORS, HEREBY ASSUMES. ALL. :RISK OF DAMAGETO PROPERTY OR INJURY TO: OR DEATH 01" PERSONS WETH1N THE PREMISES, EXCEPT":: THAT CAUSED BY LESSORS' SOLE NEC,LIGENCE;.AND:<LESSEE HEREBY WAIVES ALL.;CLAIMS°IN RESPECT THEREOF :AGAINST' LESSORS, EXCEPT FOR CLAIMS ARISING :;OUT 'OF LESSORS'.:SOLE ,NEGLIGENCE. EXCEPT FOR INJURY OR 'DAMAGE, IF ANY,. CAUSED BY LESSORS' SOLE NEGLIGENCE; LESSEE HEREBY COVENANTS THE INDEMNIFIED ;PARTIES SHALL NOT -BE LIABLE, OR RESPONSIBLE FOR ANY LOSS OR. DAMAGE WHICH MAY EE;.SUSTAINEDBY THE GOODS, WARES, MERCHANDISE OR PROPERTY OF:LESSEE, AND/OR LESSEE'S LICENSEES, INVITEES, AGENTS, CONTRACTORS, REPRESENTATIVES AND EMPLOYEES: OR DEATH OR INJURY OP ANY PERSON CAUSED. BY OR RESULTING FROM THEFT, FIRE, ACT OE :C0D, PUBLIC ENEMY, I.NJUNCTIOI ,: RIOT, STRIKE, INSURRECTION 011' ANY -OTHER ACTION OF ANY GOVERNMENTAL B01)Y Olt AUTHORITY, OR ANY OTHER:MATTER, OR::FOR ANY INJURY OR DAMAGE OR INCONVENIENCE WHICH MAY ;ARISE THROUGH :THE REPAIR OR :ALTERATION OF ANY PART .0E THE PREMISES, OR FROM ANY CAUSE WHATSOEVER, INCLUI)ING BUT NOT LIMITED TO, .C:ONSEQUENTIAL. LOSS OR DAMAGE FROM ANY CAUSE WHATSOEVER BY REASON OF THE CONSTRUCTION, USE,,; ,(OCCUPANCY OR ENJOYMENT. OF THE PREMISES BY LESSEE OR ANY PERSON THEREIN .OR HOLDING UNDER LESSEE. SL20I 10:014 10 Kennedy Causeway Boat Rare p Lease BElew qy 12;04. Casualty Ltiss. 'Unless expressly provided otherwise inthis Lease, rib `damage to the I'reniises"or damage to or destructinn,of any improvements erected or "placed at the Premises shall:in any, way alter,;:afteet or modify Lessee's obligations hereundet, including,. specifically (but not liriiited ta) Lessees obligations to payrent, Innposrtiokts and other financial obligations hereunder. theevent of any damage .to the Premises, Lessee shall(i) give immediate written notice of the damage or destruction to Lessors,which notice shall -include a description of the damage. and,. as far as known to Lessee,. the cause of the damage, and (ii) take such iaCtionies.,may be required under applicable municipal ordinances and other laws, rules"and regulations with respect to any such damage or destruction; Lessee shall- also -be obligated. to promptly remove all debris resulting from siteh damage or destnictibn'and "tak0 sue h actinic as:is necessary :"to place. the Pi emises in a neat, safe condition. IfLessee fails to remove all such debris or take such action as is necessary, to place the Premises in a safe condition within sixty (60) :days following such damage or destruction, Lessors shall have the right (but not the obligation) to do So, whereupon Lessee.shall be :liable to pay Lessors, upon demand, the Bost and expense incun•ed by Lessors in accomplishing such action, Any failure lay Lessee.tb ake:Such. payment. to Lessors may be treated by Lessors as a:default .in the pays : ent'of rent due.and owing by Lesseehereunder 1105, In, theevent any Improvements:.constructed on the Premises is damaged.'or destroyed by:fire or other casualty; all insurance proceeds. shall be "paid to Lessee .and Lessee shall, within ten (10) 'days following such damage or destructiori., notify Lessors of Lessee's: intent to either: (1) repair and restore' the improvements(s), or (ii) tetmt inate this Lease and'femove any and ail.lmprovereents .andior:debris: resulting ft•orn such damage or destruction,.leaving:thePrem ises in a dean, safe condition. In the event LLessee elects to repair and reconstruct the' lmproveinents(s), Lessee shall commence reconstruction: and repair work prorinptly and carry" forward such dark :diligently Cantil completion in accordance with and subject'tif the terms and provisions of ,Artiele. VIII with respect to sueli xie tiv.rtte$. :12'06., Iii the'evenitLessee e1et 'to terrnr inate this Lease.pursuantito Section 12.05 hereof,?alI insurance proceeds shall be the'prrtperty 1 Lessee: provided, however,: Lessee shall use' such proceeds; as necessary, to perform -its ditties and satisfy the requiremente set forth itt Section 12,07 tif'this Lease. in.the event that Lessee fails to :give Lessors"noticeaf:its':intent to terminate"this Lease" puursuant to Secti©ti .12.05 hereof`, thea Lessee: shall be'.beuttd.and obligated to:i epair'andIteditstructth.e Prernises as set forth allover, If this Lease iS teritnitaterillaS a result of a :casualty; Lessee Must: rernove:all ..Iniprovernents and restore the Premises in accordance; with the requirerrtent. heniin, at Lessees: expense, within ninety (90) days of the tennitiation of the Lease. The requirements of this Section 12,10 shall.: apply .notwithstanding:Lessee'S `receipt` of any or all proceeds from any; rrsurfatiee policy. Lessors will not be liable.. to Lessee for Any expense'due:'to the desiruction :and/ir reconsiructicin ofthe Prertitses,:the°Irnprovements thereon, or any persainal property kteated thereon resulting:11PM fire; flood, accident or other events: 12.08. If the Premises or any itnprovernents thereon (including,: without .limitation, the.; Existing Imprtrvetnents) are .destroyed, either in Whole or in substantial port, by fire, storm or other casualty, and as .a result, in the sole opinion: of Cite Department, a threat to the safety of the "traveling public exists, Lessee agrees to support and': cooperate in any action the Department deems necess;aly to ren ovesuch.a.threat. If"{'ire flood, aCufdent or other event damages the Highway'Faei hty, :Lessee' Will; if necessary, temporarily stop using the Preinises,and/or "any iinprovetnents thereon,(ineluding; without limitation,; the Extstrng Improvements). The Department will use.:.all:reasonable means under its; control to prOvide for°rapid and timely repairs or reconstriiction'to' the Fiighwayi~acility: or portion thereof that bus been dama;ed. Lessors will not be liable to Lessee for:Pay curtailiitent:or interference wall Lessee's use of the Premises :arid/or ::any rrriproverrreints thereon (inchidfng, without limitation, the Existing Improvements) because td fire, flood, :accident or othor events, :or:from the raaki g of any necessary repairs or recortatructiart to any Highway Facility ARTICLE XIII. Transfer of Interests 13,Q1, Lessee shalt not assign this Lease or sublease the Premises or aoy:part thereof or mortgage, pledge or,hypotecate its leasehold interest or grant any concession orlicense within: tie Premises or sublease any operating: department therein:.wttliont the express prior written consent of Lessors;(said consent may be granted or denied in.Lessors' sole discretion; however,' in the case of.,a'proposed sublease; said consent shall not be unreasonably withheld, delayed, nor conditioned, and if said consent,: if any, is not delivered to Lessee pursuant to Section 17.01 within 10 working days of receipt by Lessor, said consent ::shall.bedeemed ' granted)4and any attempt to do any of the foregoing shall be void and of no efleci. In the event of any such attempted assignment or uttenmpted sublease or should Lessee, an any other nature of permit or attempt to permit anyone to occupy "-the-rentises.(or any portion thereof), Lessors shall thereupon have the:.right. and: option (but notthe obligation) to cancel, and terminate this Lease effective upon :fifteen 05) days notice to Lessee given by Lessors at. any time thereafter either as to the entire Premises or as to only the "portion thereof which Lessee shall have r'attempted to assign or.sublease or otherwise permitted .some other party's oceupaney, and if Lessors elect to cancel; and tern nate this Lease as to the aforesaid portion of the Premises, then the Rent (but no other charges) as to remainder of the. Premises shall thereafter' be reduced as detctt'ninc.drby Lessors. This prohibition agoinst.assigning or subletting shall be construed to. include a', prohibition against any assignment or subletting by operation of law. SL20110014 13flewgleyy 11. Kennedy Causeway oat Ramp Lease 13 02 For the purposes of this' Lease, the phrase "Permitted Sublease" shall mean and refer to the sublease of any portion of the Premises not exceeding Ten Percent (10%) elle total square footage -of the Premises to any third party,provided, however,- that no such sublease by. Lessee shall be a Permitted Sublease hereunder unless (i) the previsions of the sublease are subject to this Lease and are not in any inconsistent "With this Lease,: and (ii) Lessee remains liable to Lessors for all of Lessee's obligations under this Lease; The foregoing, shall not be canstrued as an expansion of the ase clause or of the .prohibition against subletting set forth in Section 13.01 hereof 13.01 If this Lease is assigned or rfthePremises are subleased (whether in whole or 'ripen) or in the eventofthe. rnortgage,.pledge or hypothecation of the leasehold interest or grant of any concession or license within the Premises; ori if the Premises are occupied in whale'or in -pint by anyone other than Lessee, Lessors may nevertheless collect rental from the sublessee, mortgagee," pledgee, party to, whein the "leasehold interest was hypothecated, eoncessionee or licensee or other occupant and apply the net amount collected to the rent payable hereunder, but no such transaction or collection of rent or application thereof by Lessors shalt be deemed a waiver ;of these:provisioi s'er.a release of Lessee from "the -further performance by Lessee of its covenants, dudes and obligations hereunder. 13,04. In any case Where Lessors'eonsent to, a sublease of the leasehold, Lessee -:will re rharn liable "for the "performance cif all of the:, covenants, duties and obligations hereunder, including,: without limitation, the obligation to pay any Burris herein provided to be paid: and any indeinnity provisions" provided'hcrein, and Lessors will have the fright to enforce the provisions of this Lease .against Lessee and/or any sublcssee:withtrnt demand upon or proceedingin any against any other person or entity; provided, however, I essot-s: May waive the provisions ofthis Section 13.04 in writing and iii Lessors' sole discretion:; 13:05. Except for a Permitted Sublease, in the event of any sublease hy Lessee hereunder the sublessee Will' by such sublease. :automatically, 1) assume all obligations, liabilities, covenants and agreements contained herein without further action, or evidence of such assumption and, 2) allow Lessors to enforce the : oblhrgati ns; lrabilttaes, eoivenants:.and agreements' contained herein" directly against= said' sublessee: lay agreeing to tiny sublease, the sublessee waives nny defenses te.direct enforcement by Lessors, including any defense:: based on :privity of:'contract. Except in the event of a-Perinitted Stablease, Lessee must give a copy of this Lease to all sublessees ofthisLease: Lessee's failure to provide a sublessee with a copy of this will constitute a defaultlaei under. ARTICLE' XIV. Default and Remedies 14.0.1. In the event Lessee defaults in the perfornnatace,of.any monetary or insurance obligation: covenant, Condition or agreement in this Lease, and such -default is not corrected within ten (10) days after receipt of written notice from Lessors to Lessee, the GLO;or'the :. Department may terminate this: Lease. 14.02. In the event Lessee defaults in the performanceof any"obligation? covenant,::condition or agreement in this Lease (other than as expressly identified in Section 14,01 above), and such; default is not corrected within thirty (30) days after receipt of written notice from Lessors :to Lessee, .the- "CLO or the`DepartMent may =terminate this Lease; 1403. Abandonment, If in the sole opinion of Lessors, the "Premises<"cease to:be used or are abandoned,, Lessors shall give Lessee. thirty (30) days written -notice to 'reoccupy the Premises.; It Lessee" fads to reoccupy within: said' thirty (30) days, this Lease shall terminate and Lessors niay at their sole option .either (I) require Lessee to remove .all.or.part of the Improvernents, (ii) demolish andfor remove the lmprovernents at Lessee's expense if Lessee' refuses to' do so, or (iii)'twssiirne possession, ownership and control of the Premises and the Improvements thereon, If Lessors require the rentovel"of the improvements by Lessee, Lessee shall have sixty (60) days from the expiration :of the.thirty (30) days notice period as herein provided to cninplete such process. 14,04. Teiiidnation. Any termination • Of this Lease as herein provided will not relieve.Lessee from the payment of any sum or sums that are;then due and payable: to Lessors hereunder, or any clam for damages then.or thereafter accruing against Lessee hereunder, and any such termination will not prevent Lessors from enforcing the payment of any such sum or sums or claim for damages from for any default hereunder., Ali money due under the terms of this :Lease will bear `interest at the rate often percent <(1:0%)`per annum from the date when due until actually paid, or lathe highest rate allowed under applicable usury laws' and; regulations,whichever is lower.. All rights, options: and remedies of Lessors contained in this Lease are to be construed and held to be eninulative, and no one of them is. exclusive of the others. Lessors will also have the right.to mince -any other remedy or relief that may be provided by law or equity, whether or not stated in this Lease, 14.05. if on account of any breach or default by Lessee of its obligations under this Lease, Lessors enforce or defend any of Lessors' rights or remedies hereunder, and should Lessors;- prevail, Lessors will be entitled to receive' from 1,essee reimbursement for any and all oasts, including, but not limited to attorneys' fees, incurred:: in such connection. 5120110014 BHewgley 12 Kennedy Causeway Boat Ramp: Lease 14.06. Subleases and Assignments The: expiration or sooner termination of this Lease as provided herein autamaticaliy and without Anther action terriimates all assignments and subleases of this Lease; ARTICLE XV. Representations; 15 01 Quiet Enjoyment Subject to the provisions ofthis'Lease, so long, as the I essecpays:the rrnt'and performs all ofits,obligatt ns. in this. L. ease,., Lessee`s•possession �f the Piiuises will not be disturbed by Lessors, then respective successors or assigns. Nadi Mg. contained in this Section `15.01 sl ap ba,construed as .any limitation -ofthe pirovisin t5. ref Article IV♦ 1,502 Na Partnership. Ther:elationship bcetween .Lessors and Lessee is acid shalt at all times remain• solely that of Lessors'atid Lessee and Will not..be deetned,an agency,.a partnership:Or joint: venture: ARTICLE XVI. General Protective;Provisions: 16.01. Right tif'Eritiy and Inspection: I.essee:;vrill permit Lessors: attdlor Lessors` agents; representatives and/or :ernployees and/or FHWA`represeinatives.to enteron. the Premises :for'the purpose.of inspection,.to'determine whether Lessee is in cos pliance withthe • terms Ofthis Lease and/Or for the perpose:of showing the Premises to prospective lessees id/Qr;purchasers. I fi:02. Lessee..Will it eittployees°arid nti 'ori7e representatives .of the Departrnent•:andlor FHWA representatives'to enter`thc Preiriises for the..purpose.of inspection, inainteriaiice of reconstruction of file Highway Facility'when and :is necessary as determined by the'13epai tntent•iir els: stile discretion::, 16.03: Force Majeure; :Whenevei a period oftitiie is•Ltereun preserib.ed4br.the:taking of any iidotion by Lessors.or Lessee tinder..this •Lease, such party .shallnht lie.liable'orresponsible.for; and •there-Sliall • be excluded from:the con piitationiof'such:period of time, -any delays due to sulk s,. riots; wtcts of God, or war; provided;.:however; the foregoing shall in no manner releiise,::relieve or af%tt the inndependent obligatioi Lessee to pay rent. 16:04.:Events ofTerminatiotiand Bankruptcy: A. To the eXtent permitted ,by law,;this Lease 'She terrninate upon the:oci; irience of (i) the-fiIing:or•executioh or occurrenee;of an involuntary or voluntary petition .in,bankruptcy or other insolvency proceeding by or against :Lessee, or petition or answer seeking:; relief under any provision of the Bankruptcy Code as may be .amended, or .(ii) 'arty assignment: bt. the .benef t of creditors:or coriiposition `ora petition or::other proceeding by otagainst' Lessee: for the appdhitinent of a ti tee,. receiver .or lrguidatian of Lessee or any of Lessee's property; or (iii) a proceeding y any,governinental authority Or by Lessee for,the. • dissalutidn:.or liquidation .of Lessee. R In Clic: euent Iyessee shall become a Debtor tinder the Bankruptcy Code vhether':by. involuntary or'voluniitry petition, he Trustee ;nr•Lessee as Debtor and as. De ?tor In -Possession., may not :elect: to assume this Lease artless; at;the tune of stieh assutitptiori, the: Trustee'or Le"ssee,has cured or provided Lessors'"Adequate •a ssurance" (its de£iited below).Th t; (0.within 10 days from the date of such: assumption the Trustee: or Lessee w:r1l eure all monetary defaults under this Lease and compensate: Lessors for any actual pet uniay loss resulting.from Any:eXiSting default, (ii) witltin:30 days from the date of such;assuntption the Trustee or Lessee will cure all non-.nionetaly'dafaults::undcr this Lease, and :04 tb0 assumption will be subject to all tett': `provisions of -this lease. Tor purposes. of;this Section; Lessors and Lessee acknowledge that,. in the: context or abanktuptcy proceeding of Lessee; a$ .a minis inn "Adequate.;. Assurance" shat! meant (i) the Trustee or essee has and will Cotitinueto • have sufficient unencumbered assets after the payment of all • secured obligations and 'adnttntstrativo expenses to assure Lessers that the "frustee or•Lessee'wil.lhave suff.cient funds to fulfill tete~ obligations of'L,essee under•this ;i ease, and (ti} th1 l3ankruptcy Coria sltalI have.cntered an Order segregating suflicient:.cash payable to • Lessors and/or the Trustee ;oi Lesser; shall have granted a valid a0.pertected first hen and security interest •andier.inortgage in propeily of Trustee or Lessee acceptable 4ts to value tiOct kind :to 1 essors;. to :secure to.Lessors:thc obligation of the;1 rustee or Lessee to •cure the monetary and/or non -monetary, defaults under this • Lease.. with in:tlte;tntae.periQds set forth :above,; and (iii) the trustee of l;.essee at a minimum shall deposit a,sum equal to one. tlianth's lett; to be lecke by'1 essors10 sect.ire Lessee's future perforrnance.under. the Lease. 16.05.. RELEASE OF LESSORS. Ir LESSORS SELL OR TRANSFER .THE :PREMISES OR THE LEASEHOLD ESTATE OR ANY PART THEREOF AND AS.A PART Of SUCH TRANSACTION, ASSIGN THEIR INTEREST AS LESSORS IN AND TO THIS LEASE, THEN FROM AND :AFTER THF EFFECTIVE DATE OF SALE OR TRANSFER, LESSORS WILL HAVE NO FUR'T'HER LIABILITY UNDER.` THIS LEASE TO LESSEE, IT BEING INTENDED THAT THF COVENANTS AND OBLIGATIONS CONTAINED IN THIS LEASE ON THE PART OF LESSORS WILL 13E BINDING ON LESSORS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS ONLY DURING AND IN -RESPECT OF THEIR SUCCESSIVE PERIODS OF OWNERSHIP OF THE FEE, 51..20110014. 13 I{.enriedy CausewayBoat Rarnp .Lease i31 l ewgley 16 06 Warver.of Defhult, No waiver by.the parties hereto of'any default or breach of any term, condition or covenant of this Lease may be deemed to be a waiver Of any subsequent default or breach of the sameor any other teen, Condition or Covenant:contained herein. 165 07, Exhibits. All; exhibits referredto herein are to be considered a part hereof for all purposes with the sante force and effect as if copied at full length herein. 16.0$.. Successors. The terrns, condrtions.,.and covenants contained in this Lease shall apply to, and inure to the benefit of; successors m interest and legal representatives except as otherwise herein expressly provided, All rights, powers, privileges, iinntunities and duties of: Lessors under tilts Lease; including,•butnot limited to, any notices required or permilted 10 be delivered by Lessors totessee hereunder may, at Lessors' option, be exercised ar.perfornted by Lessors' agent or attorney. 16,09. Lessee may not use the Premises in any way that is inconsistent` with the continued operation, maintenance and surety of the 1°lighway Facility, or that will unduly expose highway.or non -highway users to hazardous conditions because c `highway location, design, maintenance and/or "operation. 1:6.10. Cessee'v.ill not weld any metal object to anymetal member of any metal structure, nor drill or rivet -into any pier .or beam on :airy concrete, metal, or wood structure onto a Highway "Facility without the Departments speccific written approval of detailed drawings for such welding, riveting or drilling. 16,11 Subject to the prig written ".approval of the Department, Lessee shall at Lessee's own expense make any provisions Lessee deems necessary to protect users of the Prornises from any hazards resulting from use and operation of the Highway Facility; 16.12. Holdover; If -Lessee holds over and continuos in possession of the Premisesafter expiration of the term of this Lease,. Lessee wilt be deemed to be occupying the Premises On the basis of month-to-month tenancy :subject to all "of the terms and conditions of this Lease. 16.13. The above-described: tenancy from month-to-nnonth may be terminated by either party upon thirty (30) days written; notice to the other: 16.11. In any'cir..cumstantes where are permitted to otter upon the Premises during the Lease. Term, whether for the. purpose' of inspecfon of. the :Premises, .maintenance and/or repair -of the. Highway Facility, curing any default of Lessee, repairing damage resulting from Fir or -other casualty or an "eminent domain taking"or is otherwise permitted hereunder or by taw to.go upon the Premises, no ::such entry shall constrtute::an eviction or disturbance o1' Lessee's use and possession of the Premises or breach by Lr ssors.of any of Lessors' obligations hereunder or render I essors:liable for damages for loss of business or otherwise or entitle Lessee to be relieved from any 'of its obligations hereunder .or.giant Lessee any right of Off -set or recoupment or other remedy, and in: connection with any such entry incident to performance of repairs; replacements, maintenance nr. construction,all of the aforesaid provisions shall be applicable notwithstanding,that Lessors may elect to: take building materials in; to or upon the Premises. that may be required or utilized in'Connection -with suchentry 'by .Lessors. 16.15. Under no circurnstanees "whatsoever shall: Lessors ever be liable hereunder for consequential damages or special damages. NOTWITHSTANDING THSTANDING> ANY PROVISION TO THE CONTRARY HEREIN, LESSORS' GOVERNMENTAL, :OR.. SOVEREIGN=JMMUNITY IS NOT WAIVED BY ANY PROVISION OF THIS LEASE. The term "Lessors" as used in this Section 16,15,,shall mean only:. the State of Texas; including the Texas General Land Office the Texas Department .of Transportation,. as owners of the Premises forthe time of their ownershipof the Premises,, and in the event of the transfer by either or both owners.;of' their" respective'interests in the Premises, such -owner shall thereupon be released.and discharged from all covenants and obligations such Lessors thereafler::accruing, but such covenants" and obligations shall be binding during the Lease Term upon each new.owner :for • theduration of Such owner's ownership. 16.16. Under no circumstances whatsoever shall Lessee ever be liable hereunder for consequential damages or special darnnges. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, LESSEE'S 'GOVERNMENTAL OR SOVEREIGN IMMUNITY IS NOT WAIVED BY ANY PROVISION OF THIS LEASE. 16.17. "Termination Fees. I f on account of any breach or def=ault by Lessee of its obligations under this Lease, Lessors enforce or: defend any of Lessors' rights or remedies hereunder and should Lessors prevail., Lessors will be entitled to receive Froin Lessee i-eimburscmentfor anyand all costs, including, but :not limited to attorneys' connection ' g,fobs, incurred in such SL20110014 14 Kennedy Causeway: Boat Ramp Lease Bliewgley ARTICLL'XV II. Miscellaneous, 17.01. Notices. Any notice. provided . for or permitted to..be given hereunder: must be given at the address or addresses: designated' below -by (i) depositing same in the United States Mail, postage prepaid, registered or certified, return receipt requested, (ii)'personally: delivering the same to the party to be notified, or (iii) delivery by overnight express courier such as Federal :express. Such notice shalt be effective upon receipt„ as evidenced by the executed postal receipt or other receipt for delivery: If to :Lessee: Ifto Lessors: City of Corpus Christi` Ann: City Manager P.O. Box 9277 Corpus ,Christi, Texas 78469-9277 Texas General Land Office Atm Deputy Commissioner Pct`essional Services Division Stephen T. Austin Tittilding,'R n. 111 1700 North Congress Avenue Austin, Texas 78701 And to Texas Department of Transportation 1701 South Padre island Drive Corpus Christi, Texas 78469-9907 Attn District Engineer The parties.rnay change their respective notiee.addressestto anY Other:loeation vsdtltizt.the`United Staies,by.giving a:notrce;of.the change accordatt"ee;with this Section: 1.7,02, Texas Law to Apply. his Lease .is to be construed udder an'd. in .accordance. with the laws of the. State of Texas" and all. obligations of.theparties treated:hereunder, iitcluding:Lessee s cibligationtO rent, ate.perfotnnable itr Travis"County,. Texas, unless otherwise provided herein:. 17.03. 'Legal, Coiitstruetioii. 'ease:AO:tine or more of the provisions contained'in this Lease are for any reason held to be invalid, illt gal. of "unenforceable:'iii any :respect, such invalidity, illegality or unenforceability will not affect any other provision hcrcof and dile:: Lease Will be coristrtied as -if sued iiivand,::illegal or unenforceable provision had never been contained herein. 17,04. Aniendnierit, No amendment; modification, or alteration of the tea t s. hereof will be binding unless the same be in writing, dated subsequent"to the date hereof, and.duly executed by the parties hereto. 17,05. Headings. The article:and section captions contained in this Lease are for eonuenience'only"and do not in way limit :or: amplify any or provision hereof.: 1'7;06. Definition of Lessors The :term "Lessors" as used herein 'includes 1:.essors, their respective successors and assigns,;nnd;-their respectiv&atuthori .ed agent, representatives and employees andlor contractors. 17,07; Definition of District Engineer. Any reference :in this Lease to the District Engineer Means the District Engineer, Texas Department of Transportation, Corpus Christi;. Texas, and his Ecr her,;snccessor in title or responsibility. When written .approval o:t` Lessors is necessary. under this:Lease said approval is.to.be obtained from the District Enf ineeer and the GLO, 17:08,. Rights and Remedies Cumulative. The rights and remedies provided by this Lease are cumulative, and the use of any right Or remedy by either parry will not preclude or waive its right to useany 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. 17.09.:Non-diserinninatiop, Lessee, for itself, its successors, and assigns, as a part of the: consideration hereof, does hereby:. covenant and agree, as a covenant running with the land, that no person, on the grounds of race, color; creed, national origin, marital .status, age, sex or the presence of any sensory, mental or physical handicap will be excluded from participation in, be denied the benefits of, or be otherwise unlawfully' subjected to discrimination in the use of the facility now or, hereafter on the Premises, that in..connection with the construction .of any Improvements on the Premises and the :furnishing of services thereon, no such discrimination will be practiced in SL20110014 15 Keedy" Causeway Boat Ramp Lease l3l-Iewgiey the selection of employees or contractors, or by contractors 'in the selection :.anal retest en o' their subcontractors,: and that :such discrimination- will not be practiced against the` public in their ..access tri and:`use of t1ie facility and services °prcividetfar public aceriininodatioii constructed or Operated on the Premises. Lessee:shall: usi the PPreinises:in teinpliariee ti th all ether req tirettierits iippcseid'by or'ptirsuant to Title>49, Code of.Federal Regulations; Department;.ofTranspcirtation; Subtitle A, O:ffiee of the Secretary; Pert 21,:Non-Disc riminat en in. Fedderaliy-assisted programs of the"Departttiet►t ofTransporhatiorn' 1~:ffecttiation OfTitle Vi 6f the Civil Rights Act of I964,:and as saktRegtiiations maybe amended.. The breach �tatty`ofthe above noridiscrri ination covenants will :be act of default entitling the Lessors to:terminate.this Lease in accordance'iviththe proeadures'set forth herein. Thtte of'Essence: Time is ofthe esssence.ofthisLease as to performance 61 611 of:L sec's covenants and obligations 17.11.. Menaoi andun Of understanding. This. Lease• iS:subjetttitiAliat certain Mentethittlain sof tlriderstandipg dated OGtober.12, .1989, agreed to by the GL0 the Department, .and the.:Schoch- atad :B:aard, which Momoranduiti of Understanding attached hereto 'and. incorporated herein by referens e as Exhibit D, establishes:. the general conditions and procedures>for the leasing of State land in :the right-of--way.for. the ,loin 1.1Cerineciy CAitseway in`'Nueces' Cciunty; Texas: 17.12. Prior. Agreente ts. Superseded This Leak eotistittites. the; sole and 'Only agreetnent: of.tl e.parties hereto and supersedes:.any: prior understandings or vrrttett; Or oral agreements between: the :parties respecting the subject matter within except for the' Memorandum of Understrtndrirg:dreferreto to .Parat raplt 17,1:1. There are no promises,: presentations or indueentertts .except those expressed heroin and in said Metnorandurn of Understanding. `Thesubtnission of this Lease for exantination. by :Leese :and/or execution thereof by Lessee does.:.uot coiistitute"a reservation of di - Option for the Premises arid this Lease'shall become efectiVe only upon executioitofail parties herete. and delivery of.a billy executed>:cq in terparfhereof hy.Lessors to Lessee: 17.13. ,Access :.lt is`agreed and.aclmu ledged:tliat :essee's.ac:cess to:and from the Hij hway Facility shall be riorx-exclusive and shall be lirnited'to antl:in ace rdanceWitlt the .locatiens prescribed by the.Departrn.ent; 17,14. Solo and. Absolute discretion Or:: OpiniOn, Notwithstanding anything herein to the contrary; whenever n party to:tbis Lease is entitled to:exercise tts''stile and;absolttte'diseretion"'br "sole and absolute opinion' stich discretion or opinion may:beexercised by:that patty. for'any reason odor no reason, whether or: not such discretion tri opiiiicrn is arbitrary, uncontrolled or tinteasonable. Any parties' exercise of its "sole and absolute.:discretion" or "sole and .absolute opinion" shall, befinal and shall not be subject. to appeal or be subject'to adjudication b a,etant Of law, arbitration, mediation er;otherrwise 1.7 . Approval of Lessors, It is agreed an:d acknowledged that .a regiiireirient.under the terms. of this Lease for "approval ofiby Lessors" she I, Where required by federal law; be subject "to. the further concurrence and approval of the ".Federal Highway Adti i istration (FF WA), 17.16. Lessee acknowledgesand agrees not to: remove, alter, or disturb in any way, a survey benchmark associated with the Texas Coastal Oceanic Observation Network Tide Gauge Station; 005: PacIery Channel (the "Benchrriark"), TheTlenchmarkis a survey disk encased in a 5 -inch PVC pipe ant is recessed 0`.1 in (0:3: fi) below the ground .surface. The coordinates at the 1Benehmatk.are 27 deg 38' 01,3" N, 097 deg 14' 12.8" W. ARTICLE XVIII. Recordation 18.01. Upon -execution by all parties, Lessors may require that ;Lessee record a memorandum of this Lease, ini form provided by Lessors; in the Real Property Records oldie Office of the County'Clerk, `Nueces County, Texas. Lessee shall provide Lessors with a copy cif:such recorded:memorandum of Lease. ARTICLE XIX. Reservations and Common Carrier Rights I9 01, Lessee covenants not to .interfere with the rights of any public utility company or other common carrier to locate, operate and: maintain their facilities within Lessors' right -Of -way, Lessee understands and agrees that its use of the Premises and the improvements under this Lease; is subject to the statutory right of public utilities and common carriers and that, such use by Lessee and the relocation: or removal of the Improvements :subjcct to: this Lease shall' be accomphslred at Lessee's sole expense at Lessors' request if required to. accommodate the location, operation :or maintenance o#'tacilities;pursuant :to those statutory rights: 19,02, Lessors reserve unto themselves, their successors, and assigns (i) all. rights, interests .and appurtenances of fee title ownership of whatever nature;not expressly conveyed by this Lease, and the i ight'to exercise the same, including; but not. limited to, the right -of --way over and through the Premises and across all existing and future streets, roads, and walkways for the purpose of public access and utility services to Lessors' adjoining property, and .(ii) to the extent not previously conveyed, Lessors reserve unto themselves;, their respective successors and assigns the right to grant rights of way on, over, under, and:across the Premises, provided such rights of way SL20110014 BlHewgey 16 Kennedy Causeway Boat Ramp do not Unreasonablyinterfere with Lessee's use :thereof Any such future rights of way ':grantod by Lessors roust; conform with the oirstruction plaits duly submitted by Lessee and approved by Lessors. ARTICLE XX Conde►nnation` 20.01. In the event that any authority having power 'Of em iient.domain exercises said authority as to all or any portion Ofithe. Pre►n►ses, the State.shall .consult -with Lessee concerning, such request: l'he. State and Lessee may agree to an allocation of aiiy award made in 'connection with such taking. ,In the absence of an *mei-tient.regard►rig•allocation°af the:award, the other provistaizs:. hereof concern ing allocation of the award shall be .applied. .20.02, if there :shall be::a taking during the term'cifthis` Lease of the entirety rif the Premises. by;•any authority having ti .power of tin int r t• dirmain then and :tri thateverit the terms ot'this Lease:sFiail ccase..and •terniinate, and the:date of such•term nation shall be,'at either party's election, the earlier<.of the date upon which possession sha11 be tendered to Such authority by Lessee or .the;:date...uport whichpossession is.taken:by. such.:aiithhoriiy 20:03; If less thaw the !entirety, of tire, Premises should be Sta taken, but the aniotrnt taken shall exceed either (1) 10%: of the land 'area of the Pretnises, or (ii) 10% of the area of the:.buildings located on the Premises, then Lessee shall°'have the right to terrnitiate. this Lease In `order to exercise the aforesaid right of termination; Lessee shall give the State notiee withiir:;thirty (30) days ;after suets tithe as the condennirtg.:au hority takes,possession'of,the.portion of the :Pren rises taken: 20:04: Not withstanding the provisions; of Section 20:03 iibove,'in the event of'a partial taking; of 10% • or less: Ofthe area of the Premises, :at. 10%© er Iess of'the, area of buildin s ::located on. the Premises, Lessee ►rtay'tegtrest that the State agree to a termination of"this Lease In making such request; •Lessee agrees._to: furnish the Mate. with information demonstrating that such partial: taking: has..had; or Is likely to have, .an effect :So :detriiuenta.I to Lessee's overall business at the Pre►nises :as• to preclude: Lessee's ability 'to.physically Operate.. Lessee's business at the Premises and/or to achieve a. reasonable return :on Lessee':s. iiivesti sera. Tha state Shall not unreasonably. withhold or delay its:agreernent to or:"denial. of •stuchtermination request: 2.0,05. In the event of:apartiat'taking ofthe Premises in whiehLessee:does:nit:bave°ordoes not exercise the:Option to;tenninate. 'as• set out in Section 20:03 above;: and. if iio agreement to terminate has been reached by ;the parties under Section: 20,04.'aboove,•the n this Lease shall remain iii full bite: acid:efffect as to the premises •not:take i bythe condemning authority: 20 06, The court or governmental agetncy:in such condernnation proceeding shall, rf iiet prohibited bylaw, be requested to i'nalce separate iaWarato the State and Lessee acid the State.'.and Lessee agree to request such action by• the court'or governmental'ageney. =20'07. In the event of a partial taking and.: in the event that 'Lessee :has not...elected'th terminate this Lease, pursuanf tn.any applicable: option to do<so er-does not have: an option .tir do so„or rf the:State and Lessee have not agreed to terminate this Lease;: •tittdr:r Section 20:.04 above, .then Lc ssce'shall restore the rerrmaining portion of the Premises as. may :he re4sonnbly possible 'otter :unto taking Any such t'estoratio.n work shall be carried forward :until completion ►n accotdance w th;and subject to the provisions of this Lease.dealing with construction and renovation. The restoration work, tf any, by Lessee with respect.to the :Premises `slrali not constitute an eviction:er disturbance of"Lessee's use: and pgssession.of the Premises or a breach by.:he State of any its obligations hereunder<or render the State liable for damages or entitleiessee to be relieved front any -tits: obligations hereunder (with. the :exception of the aforesaid proportionate red -potion 'in rent} or grant Lessee any right of Setofforrecoupment, 20.08, In the oentof a:taking resulting:in thetermination ofthis Lease pursuant to the provisions hereof, the patties hereto agree tri cooperate tri appplytng:.far and prosccuting any claim for an award orawards;in gonna tion with such taking and•further.agree that:: the aggregate net award;sbal l be paid ands distributed as i`olloWs .All 'sums. awarded or agreed upon between the State and the condemning authority fbrthetal ing of the ff.sitnple.interest, excluding any and•nIl trnprnvements thereon; ("lee Simple Loss"); whether as:damages_ or• as corrtpensation, will be the proppr;ty ofthc State, subject toany provisionhereof; B. -AI! suria:s awarded or agreed upon between Lessee and the.Condentning authority for the- taking of Lessee's ititerest in the leasehold to the:Prertiises.("Leasehold Loss") will be the:property.ofLessees C. upon 'request :Of the Stater. Lessee agrees te immediately execute such instrument, or instruments, as the::,State: may reasonably request as evidence of the Lessee's cessationin interest in sticlt portion ofthe Premises that'is Condemned by :such authority and that this Lease continues to be;effecti:ve as 10.-.tlte"balance of the Pretriises not condemned. 20.09. Lessee may grant tothe State the authorltyto negotiate:with sueh conderrining'authority cin beY alfof lessee; or Lessee: may represent its own interests in such negotiati©ns SL201 10014` 17. Kennedy Cause .vvay;Boat Ramp Lease 13l 1ewgley 20.10, if Oph *Mg -IS a parts taking which does not result in the`territination 60111s Lease, the award with respect to sttch. taking (or conveyance thtxeof) shall 'be'made as follows. A. lfiere.:Shall be' allocated and ;paid .to Lessen the amount thereof reatisonably: required to make repairs Id the'buildings and lihproVements.ort`the Premises Which Lessee i5 required to:rtiake.: In .addition; there .Shall be paid to lessee :any portion of the award spe ificully ihade;for'nitiViirg expenses; 1ciss arbitsiness, or other expenses ofthe Lessee,;and 13The balance of tJie award-shall'be divided by the State:. and Lessee' in.accardance with the percentagethatt the "Lease cold Loss" bears to the "Fee Simple Loss", That portion of the,:awaritattributable to the Leasehold Loss..:: shall'. be.1 essee's' share'of the award and the.xemnainder:of the award after dedut:t ng Lessee's aforesaid portion thereof shall be the SUMO'S, Such respective ainounts'shall be paid,'directly to theparty er title i thereto The Leasehold, Loss and the Fee :Si nple Loss. shall be deterrn fined ,as of the time of:condemnatiOn AlTlCral~ Entire Agreement 21:{}1. This instrtunent;.constttutes the cribra a'eementbetween:Lessors and Lessee, no prior written or prior or;contempot•aneeus oral. promises or repr sentations.shall be binding.: The submission of,this Lease for examination by Lessee andiior execution thereof by lessee does not::Constitute a reservation of or option for the Premises and this Lease shall become effective: only upon execution ;of all' parties hereto and delivery of a fully. executed counterpart hereof by Lessors to Lessee:. This. Lease. Shull be amended changed.or, extended: only by. written instrument signed by both parties: hereto ARTICLE J XIL No Option 22.01 The submission of this Leaseforexamination by Lessee and/or execution thereof by Lessee does riot constitute a reservation of or option for the Premises and this Lease shall become effective against any party only upon execution of all parties heretoand delivery :ofa:fully executed counterpart ;hereof by Lessors [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT u:GANN SL20110014 BHewgley 18 Kennedy Canseway'1364t .Ra p ease. IN TESTIMONY WHEREOF EOF w Gess the; signature of the Texas Land Commissioner an the seal of the Texas "General Land Office as well as the signature Of the Departmenes authorized representative. LESSOR . LESSEE STATE OP TEXAS City of Corpus Christi 13y Jerry E. ?after on, Commissioner Texas General Land Office: Printed Name & Title Date: _ Date: APPROVE Content 71616 Legal Deputy Executive LESSOR STATE .OF TEXAS Approved as to form: R. :, - 11 r19 Fi t Assistant City ' ttomey For City Attorney j- xecuted•and,approved.for'theTexas TrariSpertatioti Coir mission fur the purpose and effect cit'uctivating at dfor-carryingout the oiders.establisled polteieS'or work programs heretofore approved 'and autliorized"by the TexasTratisporlation Conirnission By: John;?: Campbell, P,E:: Director, Ri it -of Way'biitision ate. ACK NOWL LE)`GMENT STATE. OF; COUNTY OF §: This Surface Lease No, SL20110014 was acknowledged before' me, en the day of by (Name.: of Lessee) Notary Public, State of My commission expires: SLZO 110.019 BHewsley 19 Kennedy Causeway Boat Ramp Lease, Title: City of Corpus Christi SL20110014 Date of Inspection; 12-1.10 Company: General Land Of ice Creator:. Rene. Garcia Scale: 1 in. = 60,000 ft Exhibit A Title City of Corpus Christi SL2O11110:14 Company: General Land Office. Scale: 1. in. = 3,000 ft. Date of Inspection: 12_1_1,0. Creator:. Rene Garcia Exhibit .B ti m X D- 0, 0 • 11 N 0 The State of Texas Austin; Texas' MEMORANDUM OF GLO SURFACE LEASE NO. SL 20110014 (TxDOT Lease No L16-178-356) STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF NUECES This •Memorandum .of Surface Lease .is made to record the Leaseheretofore entered into • by the State of Texas, actingby and through the Cornet ssioner of the General Land Office (the "GLOW) on behalf of the Permanent School Fund, and the Texas Department of Transportation (the "Department") (the "Lessors"), and the City of Corpus Christi (the "Lessee"), which affects certain lands in Nueces County, Texas. WITNESSETH That for and iti consideration of the mutual promises and undertakings recited in the Lease, Lessors and Lessee have executed Surface Lease No. SL 201100.14 (the "Lease"), an original of which is recorded in the archives of the GLO. Under the terms of the. Lease, Lessors have leased to Lessee certain lands located in Nueces County, described as: Being an approximately 2:2 -acre tract of land located in the Right -of -Way of Park Road 22, and being part of Submerged State Tract 61, Laguna Madre, Nueces County, Texas, as more particularly described in exhibits to the Lease: (the "Premises") The Lease commenced on September 1, 2011 and shall terminate o August. 31, 2036, unless earlier terininated as authorized in the Lease.. The Lessee °shall have the right to use thesurface of the Leased Premises for the limited purpose of construction, operation, and maintenance of public boat ramps and public parking, the scope of the grant being more particularly described in the Lease. Lessee may not assign the Lease or sublease the Premises 'without the prior written consent of the Lessor. Use of state property without the requisite consent may subject the user to the assessment and enforcement of civil penalties of. up to $1,000.00 per day as provided in Chapter. 51 of the Natural ;Resources Code. EXHIBIT B IN TESTIMONY WI-IEREOF,,w tness ray hand and the•'Seal of Office, LESSOR: THE STATE '.0"TEXAS LESSEN. City of Corpus Christi By: JERRY E.PA`1`TERSON Commissioner General Land Office Chairman, School Land Board Date: Approved:. Contents Legal Deputy Executive LESSOR STATE. OF TEXAS By: Date: Executed and: approved for the Texas Transportation Commission for the purpose and effect of activating and/er catrymg out the 'orders, established policies or work programs. heretofore approved :and authorized by the Texas Transportation Commission. By: John P. Campbell, P.E. Director, Right -of -Way Division Date: STATE OF COUNTY OF. § (Primed Name) (isle) Approved as to form: R. r ' in ng F t Astant C Attorney For City Attorney ACKNOWLEDGMENT This instrument was acknowledged before ane on the by (Lessee repri7senfi t(n a signipg Iib'Otar r i is c/ocunettt) day of (Notary ligL aFure.t) Notary Public, State of My commission expires: