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HomeMy WebLinkAbout09-28-89-1.19 - Resolution - 09/28/1989RESOLUTION 09-28-89-1.19 STATE OF TEXAS ) ) COUNTY OF BRAZOS ) TO THE STATE PURCHASING AND GENERAL SERVICES COMMISSION WHEREAS, the City Council of College Station, Texas, pursuant to the authority granted by Sections 271.081- 271.083 Local Government Code, V.T.C.A., as amended, desires to participate in described purchasing programs of the State Purchasing and General Services Commission, and WHEREAS, the City Council is in the opinion that participation in these programs will be highly beneficial to the taxpayers of this city, through the anticipated savings to be realized; NOW, THEREFORE, BE IT RESOLVED, that the City Council of College Station does request that the State Purchasing and General Services Commission to include its stated need for Contract Class No. 340 on the Commission's annual contracts for those items, whereby Virginia McCartney, Purchasing Agent, is authorized and directed to sign and deliver all necessary requests and other documents in connection therewith for and on behalf of the City of College Station. I certify that the foregoing is a true and correct copy of the resolution duly adopted by the City Council of the City of College Station, Texas, on the 28th day of September, 1989, and that the same now appears of records in my office. In witness thereof, I have hereunto set my hand and affixed my official seal this 29th day of September, 1989. (Name & Title of Official) Dian.g<fne~, City Secretary Cus~ of Record SUPPLEMENTAL DEVELOPMENT AGREEMENT WHEREAS, SNEAKERS in the City of College Station entered into an agreement on the 30th day of August, 1989, which allowed Sneakers to open up under a temporary certificate of occupancy pending repair and completion of the work in the Wolf Pen Creek area under the City of College Station drainage plan; WHEREAS, on the 28th day of September, 1989, Ricky Miller requested of the City of College Station City Council an extension time to make the drainage improvements required under the development agreement; WHEREAS, the City Council approved such extension of time until November 15, 1989, subject to Ricky Miller providing a bond effective until November 30, 1989; NOW THEREFORE, Ricky Miller has provided the bond in the amount of Thirty Thousand Dollars ($30.000) effective until November 30, 1989. Ricky Miller shall have until November 15, 1989, to complete the work on the project. IN WIT_N~ESS WHEREOF~ the parties have executed this agreement on the ~ day of ~)~tf/~7~F- , 1989. ! Ricky Miller, Inc. Richard A. Miller Rafter B Ventur~~/f,//,~ MJE. (Red) C'ashiofi, -Partner ATTEST: Dian Jon~f City Secret y City of Colle e Station BY .~ 007470 LEASE THE STATE OF TEXAS * * COUNTY OF BRAZOS * THIS LEASE AGREEMENT is made on this /~% day of O~.-~.. , ]989, by and between the CITY OF COLLEGE STATION, a Texas Municipal Corporation (hereinafter referred to as LESSEE), and HOMESTEAD SAVINGS ASSOCIATION OF TEXAS, a Texas Savings and Loan Association, owner of a shopping center known as Shiloh Place (hereinafter referred to as LESSOR), as to the Lease of the premises depicted in the attached Exhibit "C". This Lease is given for and in consideration of the conditions, covenants, and restrictions hereinafter contained and made a part hereof: SECTION 1 DEFINITION OF TERMS "Demised Premises" The LESSOR hereby leases to the LESSEE and the LESSEE hereby leases from the LESSOR the demised premises consisting of five thousand seventy (5,070) square feet of space of building area as denoted on Lease Exhibit "A" attached hereto and made a part hereof, which premises consist of the three thousand three hundred twenty (3,320) square feet originally leased by LESSEE and the one thousand seven hundred fifty (1,750) square feet added to that original area under this lease agreement, whereon said demised premises is designated "branch library". The said demised premises is to be a part of a total shopping center development known as Shiloh Place, designated on Exhibit "A". A metes and bounds description of the land comprising the shopping center is hereto annexed and made a part hereof as Ex- hibit "B". A. "Parking Areas and Common Areas" In addition to the de- mised premises heretofore described, this Lease includes the non- exclusive right to LESSEE, its agents, servants, successors and assigns, licensees, invitees, customers, suppliers, and patrons, to use and enjoy throughout the term of this Lease the "Common Areas" of the shopping center, to-wit: the driveways, entrances, 007471 exits, roadways, parking areas, sidewalks, malls and other fea- tures and facilities provided for the general use and purposes of the shopping center as denoted on Exhibit "A" hereof. B. The Lessor may designate appropriate portions of the parking area as areas for the parking of vehicles of employees of LESSEE and other occupants of the shopping center. Such desig- nated areas shall be so located as not to unduly interfere with the parking of customers' vehicles in the immediate vicinity of LESSEE's premises. In the event LESSOR so designates employee parking areas, LESSEE will require its employees to comply with such designations. The common areas shall be subject to the ex- clusive control and management of LESSOR, and LESSOR shall have the right to establish, modify, change, and enforce uniform and non-discriminatory rules and regulations with respect to the com- mon areas, and LESSEE agrees to abide by and conform with such rules and regulations. LESSOR shall have the right to close any part of the common areas for such time as may, in the opinion of LESSOR's legal counsel, be necessary to prevent a dedication thereof, or the accrual of any rights in any person or persons and to close any part of the parking area for such time as LESSOR deems necessary for the benefit of the shopping center as long as any such closing does not unreasonably interfere with LESSEE's business. C. LESSOR agrees that it will cause all of the common areas to be maintained in good repair and in a clean, safe condition. SECTION 2 LEASE TERM The term of this lease shall be for a period of six (6) years. This lease shall commence on November 1, 1989, or the first day of the first month after the new area is completed, whichever occurs first, and shall expire on October 31, 1995, or six (6) years from the date of occupancy of the new area. The parties agree that after August 31, 1992, LESSEE can terminate this lease agreement, without penalty or subsequent rental charge, upon sixty (60) days notice of its intent to terminate. - 2 - 007472 SECTION 3 RENT LESSEE shall pay to LESSOR as fixed annual rent for said premises for the primary term the sum of FORTY-EIGHT THOUSAND SIX HUNDRED SEVENTY-TWO DOLLARS ($48,672.00) payable in equal monthly installments of FOUR THOUSAND FIFTY-SIX DOLLARS ($4,056.00), payable in one installment each on the 10th day of every calendar month of the current month, i.e., each month's rent payable in advance to and performance of same to be at LESSOR's address as stated herein; provided however, that subse- quent to August 31, 1992, LESSEE's notice of cancellation shall terminate the lease and all subsequent rental charges. SECTION 4 FINISH OUT OF PREMISES LESSOR shall finish out the adjacent premises containing one thousand seven hundred fifty (1,750) square feet for the expan- sion of the library. Pursuant to Section 3, rent has been pro- rated on a per square foot basis and determined using the per square foot cost of the current lease to premises. LESSOR shall finish out the lease premises in compliance with City of College Station building and fire codes, including but not limited to a sealed entrance. LESSOR shall finish out the new area per Exhibit "D" of this Lease. LESSOR shall demolish the existing interior of the new additional lease space, including the removal of the existing wall between the two lease spaces. LESSOR shall install insula- tion, six mil polyethylene film, and sheet rock which shall be added from the floor to roof decking to create a vapor and sound barrier. LESSOR shall also construct a wall which shall begin at the end of the column, as depicted in Exhibit "D", which shall be constructed of sheet rock from the floor to a point thirty-six inches (36") up from the floor and of glass panes from a point thirty-six inches (36") from the floor to eighteen inches (18") from the ceiling. - 3 - 007475 Additionally, LESSOR shall review and bring to code all elec- trical wiring. LESSOR shall install a ceiling and lighting which shall match the ceiling and lighting in the original lease space. The lighting fixtures shall be 2 x 4 four bulb fluorescent fix- tures with an eight foot (8') space between end-to-end fixtures and a four foot (4') space between side-to-side fixtures. LESSOR shall add "Exit" lights where appropriate. The thermostat shall be relocated by LESSOR to the west side of the column at the end wall constructed by LESSOR pursuant to the preceding paragraph herein. LESSOR shall provide for the service of all electricity for the premises through one meter. LESSOR shall construct a workroom/office with vinyl floor- ing. LESSOR shall place on the workroom/office door a sign that reads: "Staff Only". LESSOR shall finish out the new area, including the new con- struction, and paint it to match the existing area. LESSOR shall install institutional carpet which shall match the existing carpet. Such carpet shall be the same in all re- spects to the original, when new, in quality, color and mate- rial. LESSOR shall furnish the additional lease space with proper- ly sized HVAC air conditioning equipment. LESSOR shall inspect the HVAC equipment to assure that it is operational and shall guarantee operation for thirty (30) days after the commencement of the lease of the adjacent premises. SECTION 5 DELINQUENT TAXES In the event that there are any delinquent ad valorem taxes due to the City of College Station on the property (Shiloh Place) designated on Exhibit "A", said rental payment shall be applied by LESSEE to the payment of those delinquent taxes. LES- SEE shall give LESSOR two (2) weeks written notice prior to making the application of rental payments to the delinquent taxes. LESSEE shall provide LESSOR with a receipt showing pay- ment. In the event that the monthly rental payment is not suffi- - 4 - 007474 cient to pay the entire delinquent tax bill as required by Sec- tion 33.02 of the Tax Code (Tex. Rev. Civ. Stat.), interest shall continue to accumulate as provided by Section 33.01 of the Tax Code. If during the term of the Lease the taxes owed to LESSEE exceed the rental to be paid during the remainder of the initial term of the Lease, LESSEE shall have the right to pursue delin- quent tax proceedings, including foreclosure and sale, in accor- dance with the law. Any rental due during the initial term of the Lease shall be applied to the tax bill and credited against the delinquency. SECTION 6 COMPLIANCE WITH LAWS LESSEE shall comply with all Federal, State, County, and City laws, ordinances, rules, and regulations of any duly constituted authorities presently affecting or representing the demised pre- mises in making any alterations or constructing additional im- provements to the demised premises. Provided however, this pro- vision shall not be construed as to authorizing LESSEE to make such alterations or additional improvements without the written approval of LESSOR. LESSOR shall at all times keep and maintain the common areas free from trash and litter. LESSOR shall keep the common areas in a clean and healthy condition according to the applicable statutes, City ordinances, and the directions or regulations of the proper authorities. LESSOR shall comply with all Federal, State, County, and City laws and ordinances and all rules and regulations of any duly constituted authorities, present and future, affecting or re- specting the use or occupancy of the demised premises by LESSEE, or the business at any time thereon transacted by LESSEE or any assignee or sublessee after the commencement of the term of this Lease. - 5 - 007475 SECTION ? USE OF THE PREMISES It is understood and agreed that the demised premises shall not be used during the term hereof for any purposes or uses other than for a public library or administrative offices unless LESSEE first obtains the written consent of LESSOR. SECTION 8 COVENANT OF TITLE AND QUIET ENJOYMENT LESSOR covenants that LESSOR is well seized of and has good title to Lease the premises, and, so long as LESSEE is not in default, LESSOR does warrant and will defend the title thereto, and will indemnify LESSEE against any damage and expenses which LESSEE may suffer by reason of any defect in the title which affect the use and occupancy of the demised premises by LESSEE. SECTION 9 INSURANCE LESSOR shall keep the building, together with any additions, alterations, and improvements made thereto by LESSOR, insured against loss or damage by fire with the usual extended coverage endorsements in amounts not less than the full insurable value thereof with an eighty percent (80%) co-insurance clause. LESSEE shall not acquire any right to participate in the settlement of any loss recoverable under said policies, nor shall it partici- pate in the proceeds of any such insurance recovered or recover- able under said policies. Further, LESSOR reserves the right to name any person, firm or corporation as an assured in said poli- cies of insurance. The insurance and extended coverage policies obtained by LESSOR shall contain a clause waiving any rights of subrogation on the part of the insuring company against LESSEE, its employees and agent the City of Bryan. LESSOR shall not be responsible for any damage or destruction of contents in LESSEE's rental space. 007476 -- 6 -- LESSEE agrees to indemnify and save harmless LESSOR from and against all claims of whatever nature arising from ~ny negligent act, omission or negligence of LESSEE, or LESSEE's contractors, licensees, agents, servants, or employees, or arising from any accident, injury, or damage whatsoever caused to any person, or to the property of any person, occurring during the term hereof in LESSEE's demised premises, or arising from any accident, in- jury, or damage occurring outside of the demised premises but within the shopping center development of which the demised prem- ises are a part, where such accident, damage, or injury results or is shown to have resulted from a negligent act or omission on the part of LESSEE or LESSEE's contractors, licensees, or employ- ees. This indemnity and hold harmless agreement shall include indemnity against all reasonable costs, expenses, and liabilities relating to or in connection with any such claim or proceeding brought thereon and the defense thereof, including attorney's fees and court costs incurred by LESSOR. LESSOR agrees to indemnify and save harmless LESSEE from and against all claims of whatever nature arising from any negligent act, omission or negligence of LESSOR, or LESSOR's contractors, licensees, agents, servants, or employees, or arising from any accident, injury, or damage whatsoever caused to any person, or to the property of any person, occurring during the term hereof in LESSOR's demised premises, or arising from any accident, in- jury, or damage occurring outside of the demised premises but within the shopping center development of which the demised prem- ises are a part, where such accident, damage, or injury results or is shown to have resulted from a negligent act or omission on the part of LESSOR or LESSOR's contractors, licensees, or employ- ees. This indemnity and hold harmless agreement shall include indemnity against all reasonable costs, expenses, and liabilities relating to or in connection with any such claim or proceeding brought thereon and the defense thereof including attorney's fees and court costs incurred by LESSEE. - 7 - 007477 LESSEE covenants and agrees that it will not do or permit anything to be done in or upon the demised premises or bring in anything or keep anything therein which shall be extra hazardous and in itself increase the rate of insurance on the demised prem- ises or common areas above the standard rate on the demised prem- ises and common areas occupied as permitted by the use clause hereof, and LESSEE further agrees that it will in the event of violation of this paragraph promptly pay the LESSOR on demand any such increase in insurance costs resulting therefrom, which said payment shall be due and payable as additional rental hereunder. LESSOR shall not be liable for any damage to property of LES- SEE or others located on the premises not the fault of LESSOR, nor will LESSOR be liable for the loss of or damage to any prop- erty of LESSEE or of others by thefts or other intentional acts not the fault of LESSOR. LESSEE shall give immediate notice to LESSOR in case of fire, other casualty, or accidents in the leased premises or in the building which the premises are a part of or defects therein or in any fixtures or equipment. LESSOR covenants and agrees that the insurance required to be carried hereunder shall be placed with a top rated insurance com- pany and certificates of said policies shall be furnished to LES- SEE. SECTION 10 TAX AND INSURANCE ESCALATION See Rider I attached. SECTION 1] REPAIRS LESSOR shall maintain the premises in good structural condi- tion and repair and shall make all structural repairs and re- placements necessitated by and caused other than by LESSEE, its assigns or employees, its sub-lessees, or any of their agents. "Structural" as herein used includes the framework, exterior 007478 - 8 - walls, roof, and structural flooring of the demised premises, parking areas, parking entrances, approaches, curbs, retaining walls, and all utility lines, pipes, and conduits to the demised premises to a point where they first penetrate the outside of the wall or floor slab area of the demised premises. Should LESSOR fail to maintain, repair, or replace items for which it has con- tracted, the LESSEE may do so at LESSOR's expense as provided for in Section ]4 hereof. LESSEE shall make all other necessary repairs and replace- ments including, but not limited to: air conditioning, heating, plumbing, plate glass, doors, the mechanical openers and closers of said doors, windows, maintenance, and replacements, LESSEE's signs, loading docks and ramps, the total interior of the demised premises, and in general, all other maintenance, repairs, and re- placements not called for specifically on the part of the LESSOR. The LESSEE shall at all times keep the leased premises (including maintenance of exterior and/or mall entrances, all glass and show window moldings) and all partitions, doors, fixtures, equipment, and appurtenances thereof (including lighting, any escalators, and any elevators) in good order, condition, and repair by proper maintenance and replacement when necessary. Where the LESSEE's demised premises have exterior sidewalk frontage, LESSEE shall be responsible for sweeping and cleaning (to LESSOR's satisfaction) the sidewalk and curb (to the point of asphalt connection to the curb) for the entire sidewalk frontage of LESSEE's demised premises. LESSEE shall be responsible for keeping the area adjacent to the rear and front of LESSEE's prem- ises free from trash and debris and shall make certain that any trash or debris is placed in the trash dumpster provided for the shopping center. Further, such adjacent area shall not be used by LESSEE for storage of equipment, furniture, or any items of whatsoever nature. - 9 - 007479 SECTION ]2 UTILITY CHARGES Utility Connections. LESSOR shall provide the necessary mains, conduits, and facilities in order that utilities may be connected with the leased premises. In addition, LESSOR shall make such repairs to the facilities to which the utilities in the leased premises are connected as may be necessary so that they will satisfactorily serve the purposes for which intended. LESSEE's Responsibility for Utilities Consumed. LESSEE shall be solely responsible for and shall promptly pay all charges for electricity or any other utilities used or consumed in the leased premises or exterior canopy attached thereto, including payment to LESSOR on a monthly basis (in addition to any rental payments hereof) its pro rata share of the cost of lamping and lighting the parking lot, trash removal, sewer and water furnished to all tenants of the shopping center through a single meter by LESSOR. SECTION 13 ALTERATIONS~ ADDITIONS~ IMPROVEMENTS~ AND FIXTURES It is further agreed that LESSEE or any sub-lessee may make alterations or additions to LESSOR's improvement only with the prior written consent of LESSOR, which said consent shall not be unreasonably withheld, and after a full set of plans and specifi- cations have been submitted to LESSOR for LESSOR's written ap- proval. SECTION 14 LESSEE'S AND LESSOR'S RIGHT TO CURE DEFAULTS As to items which are required by the terms hereof to be maintained by the LESSOR, in the event said normal repairs and maintenance are not completed by the LESSOR as herein required, the LESSEE may, at its option, upon the expiration of thirty (30) days from the date of written notice, request same to be commenced by LESSOR. In such event, the LESSEE shall have the right to collect the cost of same from LESSOR who shall pay said cost within ninety (90) days after written demand for payment. 007480 -10- As to repairs, maintenance and/or replacement required to be done by the LESSEE pursuant to the terms hereof, LESSOR may de- mand that the LESSEE make same forthwith and if LESSEE refuses or neglects to consummate same to completion within thirty (30) days after written demand by LESSOR, LESSOR may make or cause same to be made with due care, and if LESSOR makes or causes same to be made, LESSEE agrees that it will forthwith, on written demand, pay to the LESSOR the cost thereof, with interest, and if LESSEE shall default in such payment, LESSOR shall have the remedies provided for in Section 18 hereof. SECTION 15 EMERGENCY REPAIRS In the event that LESSEE finds that property or persons are in imminent peril of damage or injury as a result of a defect in the premises, which defect is the responsibility of LESSOR, LES- SEE shall immediately notify LESSOR who shall promptly repair the defect. SECTION 16 DAMAGE OR DESTRUCTION OF IMPROVEMENTS If the demised premises shall be damaged or rendered unten- antable by fire or other casualty, the LESSOR shall, within four (4) months from the date of said damage or destruction, repair or replace said demised premises so that LESSEE may continue in oc- cupancy. It is further agreed, however, that the rent herein re- quired to be paid shall abate during said period of untenant- ability or shall partially abate in proportion to the percent of the demised premises rendered untenantable if LESSEE elects to continue business. If said building cannot be replaced or re- paired in four (4) months due to the inability of the LESSOR to obtain material and labor needed therefor, any strikes or acts of God, or governmental restrictions that would prohibit, limit, or delay said construction, then the time for completion of such repairs or replacement shall be extended accordingly; provided -11 - 007481 however, that, in any event, if the repairs or replacement of the building have not been completed within a period of eight (8) months from the date of said damage or destruction, LESSEE may, at its option, terminate this Lease. It is further understood and agreed during the term of this Lease, to the extent that twenty percent (20%) or more of the insurable value of the de- mised premises is damaged or destroyed, LESSOR and LESSEE shall each have the separate option to elect to terminate this Lease as of the date of damage or destruction. The exercise of said op- tion shall be given in writing within thirty (30) days after the occurrence of such damage or destruction. In the event of either party electing to terminate this Lease, there shall be no damages due to or liability to the other party hereto. SECTION 17 ASSIGNMENT AND SUB-LETTING LESSEE may not assign its interest in the Lease or sublet the premises without LESSOR's express written consent. SECTION 18 DEFAULT OF THE LESSEE A. Acts of Default. The LESSEE shall be deemed to be in de- fault under this Lease should any one or any combination of the following occurrences transpire: (1) Except as provided for termination of the lease after August 31, 1992, LESSEE's failure to pay any rentals due hereunder within ten (10) days after the same shall be due; (2) LESSEE'S failure to perform any other of the terms, conditions, or covenants of this Lease to be observed or perform- ed by LESSEE for more than thirty (30) days after written notice of such default shall have been mailed to LESSEE; (3) LESSEE's violating any of the provisions of Article 9, Pages 6 and 7, hereof, for more than thirty (30) days after written notice of such default shall have been mailed to LESSEE; - 12 - 007482 (4) LESSEE's becoming bankrupt or insolvent shall simul- taneously be deemed a default~ (5) LESSEE's filing any debtor proceeding shall simulta- neously be deemed a default~ (6) LESSEE's taking or having taken in any court, pur- suant to any statute either of the United States or of any state, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of LESSEE's property shall simultaneously be deemed a default~ (?) LESSEE's making an assignment for the benefit of creditors shall simultaneously be deemed a default; (8) LESSEE's petitioning for or entering into an ar- rangement of creditors shall simultaneously be deemed a default~ (9) LESSEE's abandoning of said premises or suffering this Lease to be taken under any writ of execution shall simul- taneously be deemed a default~ (10) LESSEE's doing or permitting to be done anything which creates a lien upon the leased premises or contents thereof shall simultaneously be deemed a default. B. Ripht to Re-Enter. In the event of any failure of LESSEE to pay any rental due hereunder within ten (10) days after writ- ten notice, the same shall be past due, or any failure to perform any other of the terms, conditions, or covenants of this Lease to be observed or performed by LESSEE for more than thirty (30) days or such other reasonable time after written notice of such de- fault shall have been given to LESSEE, or if LESSEE or any guar- antor of this Lease shall become bankrupt or insolvent or file any debtor proceedings or take or have taken against LESSEE or any guarantor of this Lease in any court pursuant to any statute either of the United States or of any State a petition in bank- ruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of LESSEE's or any such guarantor's property, or if LESSEE or any such guarantor makes an assignment for the benefit of creditors, or petitions -13- 007483 for or enters into an arrangement, or if LESSEE shall abandon said premises, or suffer this Lease to be taken under any writ of execution, then LESSOR, besides other rights or remedies it may have, shall so notify LESSEE and have the immediate right to re- enter and may remove all persons and property from the demised premises. Said property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of, LESSEE, all without resort to legal process and without LESSOR being deemed guilty of trespass or becoming liable for any unin- tentional loss or damage which may be occasioned thereby. C. Right to Relet. Should LESSOR elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time without terminating this Lease, make such decorations and repairs as may be necessary in order to relet the premises, or any part thereof, for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as LESSOR in its sole discretion may deem advisable; upon each such reletting, all rentals re- ceived by the LESSOR from such reletting shall be applied, first, to the payment of any indebtedness other than rent due hereunder from LESSEE to LESSOR; second, to the payment of any reasonable costs and expenses of such reletting, including brokerage fees and attorney's fees, and of costs of such alterations and re- pairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by LESSOR and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during that month by LES- SEE hereunder, LESSEE shall pay any such deficiency to LESSOR. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of said premises by LESSOR shall be construed as an election on his part to terminate this Lease un- - 14- 007484 less the termination thereof be decreed by a court of competent jurisdiction. In determining the rent which would be payable by LESSEE hereunder, subsequent to default, the annual rent for each year of the unexpired term shall be equal to the annual rental required hereunder plus any additional tax, insurance and mainte- nance charges paid by LESSEE from the commencement of the term to the time of default. Notwithstanding any such reletting without termination, LES- SOR may at any time thereafter elect to terminate this Lease for such previous breach. D. Legal Expenses. In case suit shall be brought for re- covery or possession of the demised premises, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of LESSEE to be kept or performed, and a breach shall be established which has not been cured within the time allowed herein, LESSEE shall pay to LESSOR all reasonable expenses incur- red therefor, including a reasonable attorney's fee. E. LESSEE Improvements to the Demised Premises. Upon LES- SEE's termination or in the event LESSEE should default under any of the terms and conditions so as to constitute an act of de- fault, LESSOR may at LESSOR's option retain any and all of LES- SEE's improvements to the demised premises. At the time LESSEE or sub-lessee vacates the premises, for whatever reason, all per- manent fixtures will be left in functioning and good order. SECTION 19 ACCESS BY OWNER A. Right of Entry. LESSOR or LESSOR's agents shall have the right to enter the demised premises at all reasonable times dur- ing normal business hours (except in case of emergencies, in which event entry may be made at any time) to examine the same, and to show them to prospective purchasers or LESSEES of the building, and to make such repairs, alterations, improvements, or additions as LESSOR may deem necessary or reasonably desirable, - 15- 007485 and LESSOR shall be allowed to take all material into and upon said premises that may be required for immediate use therefor without the same constituting an eviction of LESSEE in whole or in part, and the rent required shall in no way abate while said repairs, alterations, improvements, or additions are being made unless same should unreasonably interfere with the conduct of LESSEE's business. During the six (6) months prior to the ex- piration of the term of this Lease or any renewal term, LESSOR may exhibit the premises to prospective LESSEES or purchasers. If LESSEE shall not be personally present to open and permit an entry into said premises, at any time, when for any reason entry therein shall be necessary or permissable, LESSOR or LESSOR's agents may enter the same by a master key, or may in an emergency forcibly enter the same; however, such will not abrogate the lia- bility on the part of LESSOR for negligent or intentional acts. B. Excavation. If an excavation shall be made upon land ad- jacent to the demised premises, or shall be authorized to be made, LESSEE shall afford to the person causing or authorized to cause such excavation, a license to enter upon the demised prem- ises for the purpose of doing such work as LESSOR shall deem nec- essary to preserve the wall or the building of which the demised premises form a part of from injury or damage and damages or in- demnification against LESSOR or diminution or abatement of rent, unless such should unreasonably interfere with the conduct of LESSEE's business. SECTION 20 HOLDING OVER Any holding over of the expiration of the initial term shall be on a month-to-month basis. SECTION 21 SURRENDER OF PREMISES LESSEE shall, after the last day of the term or any extension thereof, or upon the sooner termination of such term, surrender -16 - 007486 and yield up to LESSOR the demised premises in good order, condi- tion, and state of repair with reasonable wear and damage or de- struction by fire or other casualty excepted. At LESSOR's op- tion, LESSEE shall restore the demised premises to the condition as originally delivered to LESSEE, reasonable wear and tear ex- cepted, or LESSOR may accept the demised premises as improved by LESSEE and all such LESSEE improvements shall belong to LESSOR without cost to LESSOR upon surrender and vacation of the demised premises by LESSEE. In either event, LESSEE shall leave the de- mised premises in a "broom clean" condition. SECTION 22 EMINENT DOMAIN AND CONDEMNATION A. If the demised premises, or such portion thereof as to render the balance unsuitable for the purposes of LESSEE, shall be taken by condemnation or the right of eminent domain, either party, upon written notice to the other, shall be entitled to terminate this Lease provided that such notice is given within thirty (30) days after LESSEE has been deprived of possession by such taking. Rental shall be adjusted to the date LESSEE is de- prived of possession of the premises. Should any part of the de- mised premises be so taken or condemned, and should this Lease not be terminated in accordance with the foregoing provision, LESSOR covenants and agrees promptly after such taking or condem- nation to expend so much as may be necessary of the net amount which may be awarded to him in such condemnation proceedings in restoring the demised premises to an architectural unit as nearly like its condition prior to such taking as shall be practicable. Should the net amount so awarded to LESSOR be insufficient to cover the cost of restoring said building as estimated by LES- SOR's architect, LESSOR may, but shall not be obligated to, sup- ply the amount of such insufficiency and restore said premises as above provided with all reasonable diligence or terminate this - 17- 007487 Lease. Where LESSEE has not already exercised any right of ter- mination according to it under the foregoing portion of this Sec- tion, LESSOR shall notify LESSEE of LESSOR's election within ninety (90) days after the final determination of the amount of the award. B. If twenty-five percent (25%) or more of the total of the parking spaces in the shopping center shall have been condemned, either with or independent of the condemnation of the demised premises leased by LESSEE, and if LESSOR is unable to substitute for the parking spaces so condemned an equal number of parking spaces in a location reasonably accessible to the demised pre- mises, acceptable to LESSEE, then LESSEE, upon ninety (90) days written notice to LESSOR and designees, shall have the option to terminate this Lease; and if, prior to the effective date set forth in said notice, said substitute parking spaces shall not have been provided for, this Lease shall terminate and come to an end and rent shall be adjusted to the date of such termination. C. Out of any award for any taking of the demised premises in condemnation proceedings or by right of eminent domain, LESSOR shall be entitled to receive or retain the amounts awarded for such demised premises, except that LESSEE shall be entitled to receive and retain only any amounts which may be specifically awarded to it in any such condemnation proceedings because of the taking of its trade, furniture, or fixtures and its loss of busi- ness, but not otherwise. It is understood in the event of the termination of this Lease as aforesaid, LESSEE shall have no claim against LESSOR for the value of any unexpired term of its Lease. LESSOR shall have no claim against LESSEE for any rental payments for the unexpired term of the Lease in the event of the taking of the demised premises and termination of the Lease as provided above by LESSEE or LESSOR. Rental shall be adjusted to the date LESSEE is deprived of possession of the premises. LES- SOR shall be entitled to receive and retain the amounts awarded - ,, - 007488 for such demised premises, except that LESSEE shall be entitled to receive and retain any amounts which may be specifically awarded to LESSEE in any such condemnation proceeding, including moving expenses, taking trade, fixtures or furniture, loss of business, and other damages not directly =elated to the demised premises. D. In the event of any such taking of the demised premises, the minimum rental, LESSEE'S organization dues, and public area expenses, if any, or a fair and just proportion thereof, accord- ing to the nature and extent to the damage sustained, shall be suspended or abated. SECTION 23 WAIVER The nonenforcement by either party of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition of this Lease. No covenant, term, or condition of this Lease shall be deemed to have been waived by either party unless such waiver be in writing. SECTION 24 ACCORD AND SATISFACTION Unless otherwise provided herein, no payment by LESSEE or receipt by LESSOR of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earlier stipulated rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and LESSOR may accept such check or payment without prejudice to LESSOR's right to re- cover the balance of such rent or pursue any remedy in this Lease provided. SECTION 25 LESSOR'S SUCCESSORS-IN-INTEREST Upon giving of notice to LESSEE, LESSOR may during the term of this Lease, assign its interest in the Lease agreement. Upon _ 007489 assignment, LESSOR shall remain responsible for any of its sponsibilities under the Lease agreement. SECTION 26 NO PARTNERSHIP LESSOR shall not, in any way or for any purpose, be consid- ered a partner of LESSEE in the conduct of its business or other- wise, or a joint venturer or a member of a joint enterprise with LESSEE. SECTION 27 NOTICE Any rental payment, notice, demand request, or other instru- ment which may be or is required to be given under this Lease shall be delivered in person and accepted by written receipt or sent by United States certified mail, postage prepaid, return re- ceipt requested, and shall be addressed: (a) if to LESSOR, to Shiloh Place, c/o Alexander Properties, P. O. Box 5445, Bryan, Texas 77805, or at such other addresses as LESSOR may designate by written notice; and (b) if to LESSEE, to "Attention: Energy Manager, City of College Station, P. O. Box 9960, College Station, Texas 77842" or at such other addresses as LESSEE may designate by written notice. SECTION 28 CAPTIONS AND SECTION NUMBERS The captions, section numbers, and other such designations appearing in this Lease are inserted only as a matter of conve- nience and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease or in any way affect this Lease. SECTION 29 PARTIAL INVALIDITY If any term, covenant, or condition of this Lease or the ap- plication thereof to any person or circumstance shall to any ex- tent be invalid or unenforceable, the remainder of this Lease, or - 20 - 007490 the application of such term, covenant, or condition to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby and each term, cove- nant, or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. SECTION 30 NO OPTION The submission of this Lease for examination does not con- stitute a reservation of or option for the demised premises and this Lease becomes effective as a Lease only upon acceptance and execution and delivery thereof by LESSOR and LESSEE. SECTION 31 RECORDING It is understood by the parties that this document is a pub- lic record open to review by the public under Article 6252-17a, Texas Revised Civil Statutes. This Lease, or a memorandum there- of, shall be recorded in the County Clerk's office in Brazos County, Texas. SECTION 32 LESSEE'S SUBORDINATION Without further action required on the part of LESSEE, this Lease is subordinate to the lien of any mortgage or deed of trust that may hereafter be placed upon the parcel of land described by metes and bounds in Exhibit "B" hereof and the demised premises as depicted in Exhibit "A" hereof; provided that in the event of any foreclosure or any other suit, sale, or proceedings there- under, the LESSEE's right to possession and all terms and condi- tions hereunder shall not be disturbed or interfered with as long as the LESSEE is not in default under the terms of this Lease. At LESSOR's option this Lease shall be superior in priority to the Mortgagee's lien or liens and, in the event LESSOR so elects, the LESSEE hereunder agrees to attorn to the Mortgagee holding the title to the real property as described in Exhibit "B" hereof 007491 - 21 by operation of law, foreclosure deed, or deed in lieu of fore- closure. SECTION 33 BINDING ON SUCCESSORS AND ASSIGNS The terms, conditions, and covenants of the Lease shall be binding upon and shall inure to the benefit of each of the par- ties hereto, their heirs, personal representatives, executors, administrators, successors, or assigns, and shall run with the land; and where more than one party shall be LESSOR under this Lease, the word "LESSOR" whenever used in this Lease shall be deemed to include all parties LESSOR, jointly and severally. Likewise, the word "LESSEE" whenever used in this Lease shall be deemed to include all parties LESSEE, jointly and severally. SECTION 34 VENUE This Lease shall be governed exclusively by the laws of the State of Texas wherein the demised premises is situated, as the laws of the said State of Texas may from time to time exist. SECTION 35 COST OF COLLECTION If either party at any time shall be compelled to pay or elects to pay any sum of money due, or perform any act which re- quires the payment of any sum of money by reason of the failure by the other party to comply with any provision of this Lease, or if either party incurs any expenses, including reasonable attor- ney's fees, in prosecuting or defending any action or proceeding by reason of any default by the other party under this Lease, the sum so paid by such party with legal interest, costs, and dam- ages, shall be due from and be paid by the other party to such party upon establishment of the party at default. All payments so payable shall, as the case may be, be either added to or de- ducted from the rentals payable under this Lease. - 22 - 007492 SECTION 36 SIGNS PLACED UPON THE DEMISED PREMISES It is understood and agreed herein that LESSEE shall not place, cons%ruct or erect any sign or signs upon the demised premises or the common area or parking areas without first having written approval from the LESSOR as to its size, dimensions, color, and the location where such sign shall be erected or con- structed, which such approval shall not be unreasonably withheld. SECTION 37 FORCE MAJEURE In the event that either party hereto shall be delayed or hindered ia or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, in- ability to procure materials, failure of power, restrictive gov- ernmental laws or regulations, riots, insurrection, war, or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the pe- riod of delay and the period for the performance of any such act. The provisions of this section shall not operate to excuse LESSEE from prompt payment of rent and other charges required by this Lease or any modifications thereof. SECTION 38 PAYMENT UNDER PROTEST It is agreed that if at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other under the provisions hereof, the party against whom the obliga- tion to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said party to institute suit for the recovery of such sum; and if it shall be adjudged that there was no legal obligation on the part of said party to pay such sum or any part thereof, said par- ty shall be entitled to recover such sum or so much thereof as it - 23 - 007493 was not legally required to pay under the provisions of this Lease. If at any time a dispute shall arise between the parties hereto as to any work to be performed by either of them under the provisions hereof, the party against whom the obligation to per- form the work is asserted may perform such work and pay the cost thereof "under protest", and the performance of such work shall in no event be regarded as voluatary performance, and there shall survive the right on the part of said party to institute suit for the recovery of the cost of such work. If it shall be adjudged that there was no legal obligation on the part of said party to perform the same or any part thereof, said party shall be en- titled to recover the cost of such work or the cost of so much thereof as said party was not legally required to perform under the provisions of this Lease. SECTION 39 NEW BUILDINGS AND ADDITIONS Subject to the prior written consent of LESSEE, LESSOR may make additions to or construct additional stories on the build- ings comprising the shopping center as shown on Exhibit "A" here- of. Said future expansion of buildings and future construction of new buildings shall not unreasonably interfere with the con- templated views of the herein demised premises by the LESSEE, its agents, employees, customers, and business invitees. SECTION 40 CONSENT OF LESSOR AND LESSEE Wherever in this Lease the LESSOR or LESSEE is required to give its consent or approval to any action on the part of the other, such consent or approval shall not be unreasonably with- held. Provided, however, this provision shall not apply to the consent of LESSOR required under Section 7 and Section 17. In the event of failure to give any such consent, the other party shall be entitled to specific performance at law and shall have such other remedies as are reserved to it under this Lease, - 24 - 007494 but in no event shall LESSOR or LESSEE be responsible in monetary damages for such failure to give consent unless said failure is withheld maliciously or in bad faith. SECTION 41 COMMON AREA MAINTENANCE CHARGE In addition to the minimum rental and percentage rental here- tofore specified, the LESSEE agrees to pay in equal monthly in- stallments to the LESSOR a common area maintenance charge equal to One Hundred Fifty-two Dollars and Ten Cents ($152.10) per month. In the event that the cost for ordinary repair, replace- ment and maintenance of the entire shopping center common areas (which are all areas within the metes and bounds area defined in Exhibit "B" hereof, less the gross leasable square footage of all shopping center demised premises) should exceed the aggregate sum obtained by multiplying the entire shopping center gross leasable area square footage times Thirty-six Cents ($.36) for each square foot annually of gross leasable area, then the LESSEE hereunder shall contribute its pro rata portion of common area repair, re- placement and maintenance excess (i.e., the product obtained by multiplying the total gross leasable square footage area of the shopping center times the excess factor per square foot annual- ly). The LESSEE's pro rata portion of any excess common area re- pair, replacement, and maintenance cost shall be arrived at on an annual basis and the LESSEE'S pro rata portion of such excess cost shall be obtained by multiplying such excess by a fraction, the numerator of which shall be the square foot area of the LESSEE's demised premises and the denominator of which shall be the gross leasable square foot area of the entire shopping center. SECTION 42 AUTHORITY TO ACT The parties to this Lease agreement shall provide proof of authorization to execute this document. 0074 5 - 25 - SECTION 43 TAX ON RENTALS In the event that any federal, state, local, or other govern- mental authority shall impose or assess any tax or levy any other charge on or against all or part of the rentals paid or to be paid by LESSEE as a governmental entity under the terms of this Lease and LESSOR is thereby required to collect from LESSEE and/ or pay such tax, levy or charge to such authority, LESSEE cove- nants and agrees within ten (10) days from written demand thereof to pay to or reimburse LESSOR as the case may be. No such char- ges may be imposed or assessed by LESSOR in the event that LES- SEE, a governmental entity, is exempted from such tax, levy, or charge imposed. SECTION 44 PENALTY FOR LATE RENTAL PAYMENT In addition to any other payments due under other clauses of this Lease, the LESSEE shall pay to LESSOR a penalty of Ten Dol- lars ($10.00) per day in the event that LESSEE's rental check is not received by LESSOR on or before the tenth (]0th) day of the month in which said payment is due. By acceptance of such penalty amount, the LESSOR waives his remedies and rights to said remedies only for that specific act of default of late rental payment by LESSEE. LESSOR's acceptance of a late rental payment and the penalty therefor shall in no way waive any other act or acts of default LESSEE may have committed under Section 18, paragraph A, of the Lease agreement or any of LESSOR's remedies for LESSEE's default. In each and every instance of a tendered late rental payment and the penalty therefor, the election as to whether to accept said payments shall rest within the sole discretion of LESSOR and it may elect to either accept same or reject same and by electing the latter, utilize any and all remedies herein contained for the LESSOR to pursue in the event of an act of default by LESSEE. - 26 - 007496 Each and every instance of tendered late rental payment and pen- alty therefor shall be adjudged a separate instance of default by the LESSEE as is contemplated in Section 18, paragraph A hereof, and the acceptance by LESSOR of the tendered late rental payment and penalty therefor in any one specific instance shall in no way be constituted a waiver by LESSOR to declare any subsequently tendered late rental payment or payments by LESSEE and/or penalty therefor as a separate act of default as contemplated in Section 18, paragraph A. SECTION 45 INCLUSION OF ALL INDUCEMENTS, REPRESENTATIONS AND CONSIDERATIONS Neither party hereto has made any statements, representa- tions, inducements to Lease, or paid any considerations to the other party except for those herein contained. SECTION 46 CONTINUOUS OCCUPANCY Nothing contained herein shall be held to act as a guarantee of continuous occupancy or operation on the part of any tenant by landlord, SECTION 47 ENTIRE AGREEMENT This Lease, Exhibit "A", Exhibit "B", Exhibit "C", Exhibit "D", and Rider I attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions, and understandings between LESSOR and LESSEE concerning the demised premises, and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than what are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon LESSOR or LESSEE unless reduced to writing and signed by them. - 27 - 007497 SECTION 48 RULES AND REGULATIONS LESSEE agrees that it shall make every effort to assure that the conduct of itself, its employees, agents, guests, and cus- tomers shall be lawful and shall not unreasonably disturb the rights, comforts, and conveniences of other persons in the shopping center, sidewalks, steps, entrances, halls, walkways, stairways, planted or green areas. LESSEE shall pursue its available legal remedies to assure that said rights of other persons are not unreasonbly disturbed. IN WITNESS WHEREOF, the parties hereto have signed and sealed this Lease as of the day and year first above written. LESSOR: HOMESTEAD SAVINGS ASSOCIATION LESSIE: ~ ~ CITY OF COLLEGE STATION City Sec~ APPROVED AS TO AVAILABLE FUNDS; Director of Fiscal and ~{uman Resources Group APPR Ep AS TO Cath~ Locke, ~/ity Attorney - 28 - 007498 STATE OF TEXAS * · CORPORATE ACKNOWLEDGMENT COUNTY OF BRAZOS * This instrument was acknowledged before me on the ~ day of City of College Station, a Texas Municipal Corporation, on behalf of said corporation. CONNIE HOOKS MY COMMISStOh EXPIRES 2/18/90 BRAZOS COUNT~/, 7Y NOTARY P[~BLIC IN AND FOR THE STATE OF T~XAS .~ z,. Printed Name: f'~,;~//~ ~6~,~ My Comm. Exp.~ ~-/~ - .~F). STATE OF TEXAS * , COUNTY OF BRAZOS * INDIVIDUAL ACKNOWLEDGMENT This instrument was acknowledged before me on the 17th day of October , 1989, by WILLIAm! F. PHILLIPS. JR. as P~esident of Homestead Savings Association, a Texas Savings and Loan Corporation, on behalf of said corpora- tlOn. i RIS V, NEWTON TATE OF TEXAS NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS Printed Name: Doris V. Newton My Comm. Exp.: - 2, - 00749 '