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HomeMy WebLinkAboutContract 22478 } 1 LEASE AGREEMENT STATE OF'TEXAS § COUNTY OF'I ARRANT; § LEASE NO. L02.220-141 THIS LEASE AGREEIvTI:N F ("Lease") is made and entered into by and between the STATE OF TEXAS, by and throug:3 it Texas Department of Transportation ("Lessor" or the "Department f and the CITY OF FORT WORTH, A MUNICIPAL CORPO,RA.TION ("Lessee"); i WHEREAS, the Department has authority to lease highway right of dray pursuant to Chapter 202, Subchapter C, Section 202:052, Texas Transportation Code, as amended from time to time, anEl pursuant to Title 43, Sections 21.600-21.606 of the i exas Administrative Code as amended from. ' time to time; and WHEREAS, Lessee has submitted a request to lease the property more particularly described or Exhibit"A" attached hereto and incorporated herein for all purposes and the improvements thereon and is hereinafter referred to as "Premises":E NOW THEREFORE, for and in consideration of the foregoing premises, terms, conditions, covenants and performances contained herein, Lessor does hereby lease to Lessee, and Lessee hereby leases from Lessor, Lessor's rights in the Premises. TO HAVE AND TO HOLD the Premises, together with all rights, privilege, ind appurtenances thereunto unto Lessee, subject to the covenants, agreements, terms, provisions and limitati-:)Ais contained herein. ! �WIM RECORD � My CRETARY ft WORTH, ra ARTICLE I TERM OF LEASE 1.01 This Lease is for a term of twe:r ty (20) years commencing on December 1 ,_t996 _ and terminating on Nnveinber 30, 2016 __ ("Lease Term"), unless sooner ter6nated as herein provided. Notwithstand^ng any provision herein to the contrary, either party hereto may cancel this Lease upon twenty-four(24)months written notice to the other party, A1R:TIC�JX'J N CONS.4-DEI ATIO 2.01 Lessee agrees to pay Lessor as rental for the use and occupancy of the Premises under this Lease the sum of twenty-one thousand nine-hundred twenty dollars x;$21,920.00) per year, without demand, set off or deduction. All installments of rent shall be due and payable in advance of the commencerrent of the Lease Term and annually in advance to Lessor, at its District office in Fort Worth, Tarrant County, Texas, or at seen other place as Lessor may from time to time direct by notice delivered to Lessee. Rental payments shall be nonrefundable in the event of default by I.,essee in the performance of any covenant, condition or agreement in this Lease. 102 Late Charge. If rentals are tendered to Lessor more than fifteen(-15)days past the due date, Lessee shall pay an administrative late charge of five percent (5%) on the total amount due Lessor. 2.03 Rent Adjustnient. Arent adjustment may be made by Lessor during the fifth year from the effective date o this Lease and every five years thereafter. The rent adjustment shall reflect changes in the fair market rental value and shall be made in the following,manner: A. The Lessor shall give written notice to Lessee that a rent adjustment is being made based on Lessor's appraisal of the current fair market rental rate. This notice shall include the amount of the adjusted rental rate and the date the new rate is to become effective. B. In the event Lessee does not agree with the appraisal a, provided by Lessor, then Lessee, aL: Lessee's e7-ppnse, shall be entitled to have an appraisal trade by a qualified appv-%- , who shall be a member of A.R.A., S.R.E.A. or M.A.I. Lessee's chosen appraiser shall be instf- -hat in determining the fair market rental rate, he/she shall insider the use to which the Pr€. - ire being put and shall not consider the highest and best use for the Premises without reg: vie restrictiors on use of the Premises contained in the Lease. Such appraisal by Lessee shalt and subriti.tted to Lessor within thh-ty (30) days from the date Lessee shall have received th- from Lessor of the appraised value and the proposed adjustmer*, in rental. If Lessee fails t. ;J� . an appraisal within the time provided, then the determination of the fair market rental rate for Premises as determined by Lessor's appraisai shall be birdir,g on Lessor and Lessee. If the appra.ial obtained by Lessee is unacceptable to Lessor, the-n Lessor's appraiser and Lessee's appraiser shall 2 within ten(i0)days of Lessor's receipt of Lessees appraisal, select a third appraiser to appraise the fair market rental of the Premises, aced the determination of the fair market rental rate for the Premises by the third appraise., as documented in his/her signed wt{tten report submitted to the parties, shall be binding on Lessor and Lessee. The expense and fees of such third appraiser shall be paid in full by Lessee. Notwithstanding a�.; provision herein to the contrary in no event shall the rent be adjusted to be less than the current rental rate previous to the rental adjustment. ARTICLE 3 ACCEPTANCE OF PREMISESIDISCLAI•MER 3.01; LESSEE ACKNOWLEDGES THAT IT IS LEASING I HE PREMISES "AS IS" WITH ALL FAULTS, INCLUDING BUT NOT LIMITED TO ANY AND ALL POLLU'T'ANTS, ASBESTOS, UNDERGROUND S'T'ORAGE TANKS AND/OR ANA' OTHER HA?ARDO'_J MATERIALS AND THAT LESSOR HAS NOT MADE ANY REPRESENTATIONS OIL WARRANTIES AS TO THE CONDI'T'ION 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 HAIBITABILITY, AND ANY OTHER r IMPLIED WARRAN'T'IES NOT EXPRESSLY SET FORTH IN THIS LEASE. LESSEE ACKNOWLEDGES AND ,GRE ES THAT LESSEE HAS FULLY EXERCISED THE RIGHT TO INSPECT THE PREMISES FOR ANY DEFECTS AS TO THE SUITABILITY OF SUCH PROPERTY FOR TIRE PURPOSE TO WHICH LESSEE INTENDS TO PVT TIM PREMISES. THIS LEASE IS SUBJECT TO ALL COVENANTS, EASEMENTS, RESERVATIONS,RESTRICTIONS AND OTHER MATTERS OF RECORD APPLICABLE TO THE PREMISES AR'T'ICLE 4 USE 01' PREMISES r 4.01 Permitted Ilse. Subject to the terms and provisiois hereof, Lessee shall continuously use and occupy the Premises solely for the purpose of parking and vehicle maintenance. Any proposed change in the use is subject to written approval of the Lessor and the concurrence of the Federal Highway Administration ('THWA"). i 4.02 Void Insurance. Lei Tay not use or occupy, permit the Premises to be used or occupied, nor do or pen-nit anything to be done in or on the Premises in a manner that would in any way make > void or voidable any insurance then in farce with respect thereto, or ihat would make it impossible to obtain the insurance required to be furnished by Lessee hereunder. i 3 4.03 Compliance with Laws. Lessee, at its )wn expense, wi!l (1) comply with all €e�-,W, Sta'W, municipal and other laws, codes, ordinances, rules and regulations applicable to the Premises whether same aretr existence on the execution date of this Lease of become effective during the term of this Lease; and (ii) comply with such regulations as Lessor may p orz ulgate regarding saoitation, cleanliness and other health and/or environmental matters, includin without limitation, removal of garbage, trash and other waste; and (iii) install, remove and alter such equipment and facilities in, and make such alterations to, the Premises as may be necessary so to comply with the foregoing (I) and (ii); and (iv)use the hi=zest degree ofcare and all proper safeguards to prevent pollution of air, soil and water=n, on and around the Premises. Lessee will not permit any unlawful use of the Premises and wilt not commit or permit anyone else to commit an ac: which might in the exclusive judgment of Lessor;appreciably damage Lessor's goodwill or reputatiun, or tend to injure x or depreciate the value of the Premises and/or any Improvements located thereon. In addition to the forgoing, Lessee, at Lessee's expense, shall comply with all laws, rules, oreers, ordinances, directions, regulations and requirements cf federal, State, county and municipal authorities now in force or which may hereafter be in force, which shall impose any duty upon Lessor or I -ssee with respect to the use, occupation or alteration of the Premiss s, including but not limited to the Americans with Disabilities Act (ADA), '(?ublic Law 101-336, July 26; 1990) and the Texas Architecturai Iroarrier Act (TAIGA), (Articl 9102, Texas Revised Civil Statutes). In addition to the foregoing, Lessee shall furnish to Lessor,within five (5) days of receipt by Lessee, copies of any and all notices and/or correspondence directed to Lessee by any governmental entity or other entity or person indicat;ng violation or possible violation of any laws or other regulations. 4:04 Prevention of Pollution. Lessee will prevent pollution of air, soil and water in, on, under and ,.round the Premises.-Lessee, at its sole cost and expense, sh,il! take,any and all corrective anion deemed necessary or desirable by the Department, and as rec aired by any apj�licabe federal, State, municipal and other laws, codes, ordinances,rules and regulations to cleanup, remove and abate any and all soil contamination, groundwater contamination or any other contamination of the Premises caused directly or indirectly by any release or discharge of any hazardous, toxic or otherwise harm- substances in, on, under and around the Premises by Lessee and/or Lessee's employees, agents,representatives,contractors, permittees, invitees or any other persons occupying the Premises or anyportion thereof by, through or under Lessee. In the event Lessee, Lessee's employees, agents, representatives, contractors, permittees, invitees or any other pe:son oczupying the Premises or any portion thereof by, through or under Lessee, brings or disposes of any hazardous, toxic or otherwise harm,ul substances onto or within the Premises,LESSEE AGREES TO INDEMNIFY LESSOR FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, COSTS, CAUSES OF ACTION, LOSSES AND ALL OTHER DAM,f IGE AND EXPENSE(INCLUDING THE COST OF DEFENDING AGAINST ALL OF THE AFORESAID) WHETHER THE AFORESAID ARE MADE BV LESSEE, LESSEE'S EMPLOYEES, AGENTS, REPRESENTATIVES OR BY THIRD PARTIES, WITwIA T LIMIT AND WITHOUT REGARD TO THE CAUSE ,)R CAUSES THEREOF OR LHE NEGLIGENCE OF ANY WARTY OR PARTIES. ANL, REGARDLESS OF WHETHER SUCH_!CLAIMS ARE CAUSED WRECTLY OR INDIRECTLY BY THE NEGLIGENCE OF LESSOR• ON ACCOUNT OF CLEANUP ABATEMENT AND/OR DISPOSAL, COSTS, 4 FINES AND/OR PENALTIES INCURRED OR "-Ht,RGED DUE TO THE PRESENCE OF SUCH HAZARDOUS,TOXIC OR OTHERWISE HARMFUL SUBSTANCES, PROFERTY DANT,!%G-E ANWOR PERSONAL INJURY SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED 13Y ANY PERSON OR PERSONS AND THE COST OF REMOVING ANY LIEN PLACED ON THE PREMISES. LESSEE'S INDEMN]rY HEREUNDFR IN'—LUDES, BUT IS NOT LIMITED TO, AMY NEGLIGENT ACT OR ONIISSIOIN OF LESSEE, LESSEE'S EMPLOYEES, AGENTS AND/OR REPRESENTATIVES, OR ANY OTHER PERSON OCCUPYING THE PREMISES,OR ANY PORTION THEREOF,BY,THROUGH OR UNDER LESSEE, LESSEE'S INDEMNITY HEREUNDER SHALL SURVIVE ANY TEP-MINATION OF THIS LEASE,WHETHER BY ExPIRA'rm OF THE LEASE TE,Rill OR OTHERWISE. ARTICLE 5 IMPOSITIONS, UTILITIES, NET LEASE 5.01 Impositions Defined. The term "Imposition .s" means all ta,'es, assessments, use aiid occupancy taxes, water and sewer charges, rates end fell"s, charg for public.utilities, excises, �,Cs f levies, license, franchise and permit fees, personal property taxes, ad valorem taxes and other charges by any public authority, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind and/or nature whatsoever, that are assessed, levied, charged confirmed or imposed during the Lease Term by any.public authority upon or accrue on the Premises and/or any improvements,or other property thereon wherther belonging to Lessor or Lessee, or accrue on the rent and income-eceived by or for the account of Lessee from any sublessee or for any use or occupation of the Premises. The term "Impositions' shall also include .411 penalties, interest and other charges payable by reason of any delay or failure or refusal of Lessee to make timely payments as required hereinafter: 5-02 Lessee Obligation for Impositions. During the Lease Term, Lessee will pay all Impositions as and when they become due. Lessee will, if so requested, promptly deliver to Lessor evidence of payment. At its sole expense, Lessee may contest the validity or amount of any Imposition, in which e-,ent payment may be deferred only as permitted by law; howevor, in lo event may Lessee defer payment in a manner that would allow a lien to be placed upon the Premises or any part thereof. 5.03 Utilities. Lessee will pay all charg--s for gas, electricity, light, heat, air conditioning, power, telephone and all other utilities and similar --ei-vices rendered or supplied to the Premises, and also all water rents, sewer service charges or othei similar charges, including, but not limited to connection fees, transfer fees rnd deposits levied or charged against or in connection with the Premises. IN NO EVENT WILL LESSOR BE i,:ABLE FJR ANY INTERRUPTION OR FAILURE IN THE SUPPLYING OF ANY UTILITIES TO THE ?REMISES. 5.04 Lessor not Obligated. LESSOR"AIILL NOT HAVE TO MAKE ANY EXPENDITURE, INCUR ANY OBLIGATION, OR INCUR ANY LIABILITY GF ANY KIND WHATSOEVER IN CONNECTION WITH n EVS LEASE OR :HE FINANCING, OWNERSHIP, CONSTRUCTION, MAIN i ENAN vE, OPERATION OR REPAIR OF THE PREMISES. ANY ATTEMPT PV LESSEE TO BIND LESSOR'" FOR ANY OF THE ABOVE OBLIGATIONS SHALL BE NULL AND VOID ANIiD LESSOR EXPRESSLY DISCLA MS ANY SUCH LIABILITY. ARTICLE 6 MAiNIFENANCE 0.01 i'[aintenance Requirements'. LESSOR SHALL HAVE NO DUTt" TO REPAIR OR MAINTAIN THE PREMISES OR ANY IMPROVEMENTS AS DEFINED HEl[dEINBELOW LESSOR SHALL HAVE NO DITr' TO MAKE:- ANY REPLACEMENT OF ANY IMPROVEMENT.Lessee shall maintain in good, safe repair and condition, including the aesthetic value, at its so'.e expense and risk, all of the Improvements and equipment located or to be located on the Premises; and at the expiration or termination of this Lease deliver up the Premises in good repair and condition (reasonable wear and tear. excepted). All maintenance, repairs -and/or,,, replacement will be accon olished, in the sole and absolute opinion of Lessor, in a manner so as to' cause no reduction in the level of sery;ce of the Highway Facility, as defined hereinbelow, and no interference with the construction, maintenance and/or operation of the Highway Facility and related improvements thereto ne-)r restrict the use, construction, maintenance and/or operation of the, remainder of any of Lessor's property. The term "Highway Facility when used throughout this Lease means any present or future physical roadway improvements within existing or future right ofway, including, but not limited to, brieges,embankments, drainage areas, traffic signals, signs ar ch roadway surfaces and subsurfaces except for Improvements constructed or,placed on the Premises by Lessee. 6.02 Lessor'; Rights. In the event the District Engineer determines that there is a condition or, ornission with respect to the Improvements, or any extension thereof located outside of the Premises,, which is a hazard to the safety of the traveling public then the District Engineer shall notify Lessee of the condition, and shall specify a reasonable time in which such curative action shall be completed; proided however, in the event such condition or omission creates an emergency, as determined by the District Engineer in his/her sole and absolute discretion,Lessor may but is not obligated to enter upon the Premises and Lessee's adjacent property, if any, for the purpose of mitigating such condition in any manner deemed necessary or desirable by Lessor. Should Lessee' fail to correct the situation within the time provided for in the notice, Lessor may, but is not obligated to, er.`er upon the Premises and Lessee's prc ierty and make the necessary correction at Lessee's sole liability, and Lessee shall pay the cost thereof, including but not limited to, the cost of labor, materials; equipment, plans and administration, within ten (10) days of receipt of a statement of said cost. LESSEE EXPRESSLY WAIVES AND RELEASES LESSOR FROM ALL DAMAGES AND CLAIMS THAT MAY RESULT FROM SUCH ENTRY BY LESSOR INCLUDING BUT NOT LIMITED T© ANY DAMAGES AND CLAIMS CAUSED_ DIRECTLY OR INDIRECTLY BY THE NEGL GENCE OF LESSOR. ARTICLE 7 ADA and 7.01 Changes to Improvements Lessee covenants and agrees not to make or allow to be made any alterations or physical additions or improvements upon the Premises without the prior written approval of Lessor. Lessor's app.oval is subject to the concurrence of the FVWA. 7.02 Cornpliance with ADA and TABA. Lessee shall be .wholly, responsible for any accommodations or alterations which need to be made to the Premises, whether before or after the execution date of this Lease,to accommodate Lessee's employees or customers. No provision in this Lease should be c-)ns*.rued in a►ry manner as permitting, consenting to or authorizing Lessee F!) Violate requirements under the'`ADA or the T.ABA and any prcvision of this Lease which would arguably be construed as authorizing a violatiot. of either statute shall be interpret:d in a manner which permits ccrnpiianee witf# such statutes and this Lease is hereby amender',_to p ern°`:* such compliance. ARTICLE 8 LIENS AND FINANCING 8.0; Mechanics Liens.,,It is expressly acknoryvled,ed and understood that Lessor does not consent to, ..rid has not by the execution and delivery of this Lease consented to tiie imposition of arty liens upon'the Premises°by any party whomsoever, excepting such subordinate mortgage lien or f eA a6 are expressly approved in writing by Lesson Said approval shall be contingent upon the amendinent of this Lease to add provisions regarding conditions of the imposition of any liens and obligatio'ns of any prjposed mortgagee. Lessee covenants and agrees that Lessee shall not.suffer or permit any, mechanic's liens or other liens to be filed against the fee of the Premises or any portion thereof, nor against Lessee's leasehold interest in the property r_,r any of the Improvements on the Premises by reason of any work,labor, services or materials supplied or claimed_to have been supplied to Lessee or to anyone holding the,Premises or any part thereof through or under Lessee. In the case of the filling of any such lien, Lessee shall immediately thereupon discharge the same by payinei.t, bonding or otherwise, but in all events prior to the foreclosure thereof. If default in payment thereof shall continue beyond thf,expiration cf ten(10)days after Lessee's receipt o► a notice thereof, Lessor Shall have the right but not the obligation,at Lessor's option, to discharge such lien at Lessee's pole cost and expense, and in such event, Lessee shall reimburse Lessor for such costs within ten (10) days of receipt of a staten-.ent of said costs from Lessor. In addition to the foregoing, Lessee shall furnish to Lessor within five (5) days of receipt by Lessee copies of any and all notices and/or correspondence directed to Lessee by any person or entity ailcging the right to, or notifying Lessee of the filing of any mechanic's, materialman's'or other lien against the fee of the Premises. LESSEE FURTHER COVENANTS AND AGREES TO PROTECT, INDEMNIFY, DEFEND AND 7 r- h-kC;1,U FlARWES") LE 03SOR FROM AND AGAINST AI. BILLS AN" CLA74M_� , MEN5 AND RIGETS TO LIENS !4'OR LABOR AND ?1ATERIALS AN11 ARCHITECT"0' '. ENGINEER'S,CONTRAC70%S A NO SkIBCONTRAt-7(.',t`'S ANFALIj FEE S1 CiAIMS ANC ' .XPENSLE'S INCIDENT TO THE CONSTR(JCTION kklol COM?LETION OF ANY 11M PROVEMENTS, INC'LUDING WITHOUI-LIMITA I A` TV I,Z,ASONAfiLE ATTORNEYS' FEES WHICIR, MAY HE INCUi_'RFD BY LESSOR "N CONN-VCTION THEREWITH. 8.0;, Pre irises not Mortgaged. Thy; Premises shall not be deeryted it, any v"ay piC,J,,,e collateralized or mortgaged by this Lease, nor by any other agreement executed in connection wi4ll. this Lease, and the State of Texas, by execution of this Lease, shall not in any rn,,-.nner lend its credit to any private corporation, associaiion, partnership or other person in coartuction with the execution of this Leu:se. 8.03 Lessor not Sound. Lessor, by approval of this Lease, does not bind itself or its successors or assigns to accept or 2 issurne any liability or obligation with respect to any indebtedness which may exist now or arise ir, the fixture with respect to ,),.)y action of Lessee roqui-ed by this Lease, or by a leasehold mortgagee or contractor 8.04 No Liens Upon Term'Wation. Lessee and its 6,ucci-,ssors hereunder warrant and covenaw, that at the expiration of this Lease there will be no statutory, contractual or otherlien existing as to the improvements constructed -)n the Premises by Lessee, and that at! alterations, additions and - , improvements made on the Premises will be delive,ed to Lessor free and clear of arty debt or encumbrances. Lessee will, prior to or upon tender of the Premises to Lesso,--apo.n termination of this Lc, -,,e, provide Lessor with documentation SUffiCient to evidence Lessor's,ownership of all such alterations, additions and improvements. ARTICLE 9 SIGNS 9.01 On Premises Signs. All of Lessee's on-premise signs, -'isplays or devices must have prior written approval by the District Entrii-, ,A and shall be restricted to those indicating owner hip and type of on-Premises activities, including traffic zontrcli. Any such signs, displays or-'elvices that do not conform to this paragraph may be removed and disposed of by Lessor at Lessee's expense. ARTICLE 10 INSURANCE AND INDEMT41FICATION 10.01 Indemnity. EXCEPT FOR THE SOLE NEGLIGENCE OF LESSOR FOR WHICH LESSOR IS LEGALLI' LLA-41,L, UESSEE SHALL INDEMNIFY AND HOLD HARMLESS LESSON, O's Sw.iCCE.SSOF� AND AS'r-��NS iiND !Fl, RYSP-lC-vl-%>E AGLN V;S, REPRESENTAITIE;: MEN OF THE :E'AS TI-ALNll5?c -1 .ATIoN COMMISSION,CONTRA TORS AND FMPLOYEES("INDEMNIFIED PARTIES') I OR, FROM �,Nl) AGAINST ANY AND ALI, LRCCEE'a-INC;S, SUTi': ACTIONS, CLAIMS, DAMAGES, JUD(-,!l TENTS, MAWL;PIES, LIENS. FINES, PENA LliES,AWARDS AND EXPENSES t HATSOEVF;'Z("CL.AINIS"), Y HETFIEP SU(.d lf_'LAIRS ARE MADE RY LESSEE, LESSEE'S i..MPLOYIr.I+S, AGENY'S, REFRESEP�'lzATIVES OR BY TH,,,elD PARTIES WITHOUT LIMIT AND WITHOUT REGARD_;T TilU,.,(7,A— sE OR CAU ES THEREOF OR THE NEGLIGENr'E OF AiiY ?,AR,r- OR P-AI TIE6S A:N;f) MG6.Rl'�k.ESS OF WHET HER SUCkl !CLAI�!'IS AIIE AUSED I TRI CT'LY QR INDIItEC`ICL.Y BY THE NEvEI FENCE OF LESSOR, THAT' MAY BE BROUGFi I' OR INSTITUTED ON ACCOUNT OF OR GROWING OUT OF ANY AND ALL INJURIES OR DAMAGES. INCLUDING IDEATH, TO PERSONS OR PROPERTY' RELATING DIRECTLY OR INDIRECTLY TO(1)THIS i.EASE; (11)THE CONDITION OF THE PREMISES; (111)ANY OCCURRENCE IN, L7NPON,AT CAR FROM THE PREMISES OR ANY FART THEREOFI AND/OR ANY OF LESSOR'S PROPERTY USED AS SET FORTH IN SECTION 7.06 HEREINABOVE; (P.)THE USE OR OCCUPANCY OFD THE PREMISES OR ANY T'AR'P ThAZ,RE0F AND/OR ANY ?ORTION OF LESSOR'S PROPERTY USED AS SET FORTH iN SECTION 7,06 HEREINA80" iE; AND/OR(V)ANY CONSTRUCTION AND R LATED ACTIVITIES BV LFS4SEE, ANWOR LESSEE'S LICENSEES., INVITEES, AGENTS, CONTRACTORS, REPRESENTATFVES AND EMPLOYEES; TOGETHER WITH ANY AND ALL LOSSES THERETO, INCLUDING PUT NOT LJMITED TO, ALL COSTS OF DEFENDING AGAINST, INVESTIGATING AND SE'T'TLING THE CLAIMS, IT I ' THE EXPRESSED WTENTION OF THE PARTIES HERETO,_B(�TTI LESSOR AND L��EE THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION 10.01 IS INDEMNITY BY LESSEE TC?_JNlf)fFMNIFV AND PROTECT LESSOR FIlOfi d TIDE CONSE 'UENCES OF LESSON'S OWN NEGLIG,EN(M WHERE THAT NEGLIGENCE ISyA.iCk)N+1 7 RIIIIN E O THE CLAIM. FURTHERMORE TIIE-lNDEMNi.TY PROVIDED FOR IN THIS SECTION 10,01 SHILL HAVE NO APPLICATION TO ANY CLAIM WHERE THE CLAIM RESULTS FROIV1__1'HE SOLE N 1~!_GLIG NCF; OF LESSOR. LESSEE SHALL ASSUME ON !4FHALF OF'"1 HE INDEMNIFIED PARTIES AND CONDUCT WITH DUE DIf.I sENCE AND IN GOOD FAITH THE DEFENSE '6W'IT11 COUNSEL SATISFACTORY, TO LESSOR, OF ANY AND ALL CLAIMS ALAINS'T .kNY OF THE INDEMNIFIED PARTIES; PROVIDED, IIO':v"EVER, LESSOR MAY, BI;T hAS NO OBLIGATION TO, ELECT TO CAUSE THE ATTORNEY GENERAL Ofi THE STATE OF TEXAS TO IN'T'ERVENE OR ASSUME THE DEFENSE FOR LESSOR AT THE SOLE EXPENSE OF LESSEE. MAINTENANCE OF ANY INSURANCE INS:LUDIlkif. BUT NOT LIMITED TO THE INSURANCE REFERRED TO IN THIS ARTICLE iC OR BENEFITS PAYABLE UNDER WORKERS COMPEL SATION ACTS,D SABILiTY BiENFFIT ACTS OR OTI.`ER EMPLOYEE BENEFIT ACTS DOES NOT AFFECT LESSEE'S OBLIGA'T'IONS OF INDEMNI'T'Y. LESSEE WILL. NAVE THE RIGioT" TO CONTEST THE VALIDITY OF ANY CLAIMS, IN THE ,";AMU. OF LESSOR OR LESSEE, AS LESSEE MAY DEEM APPROPRIATE, PROVIDED THAT THE EXPENSES THEREOF ARE PAID BY LESSEE, OR I,E�"FE CAUSE;THE SAME TO BE PAIL BY ITS INSURER. NOTWITHSTANDING 9 ANYTHINC, I'LREIN TO THE CON'!itARY, LES,;LE'S )DLI4 A7-10N OF INDENIN""Y AS SET FORTH 11EAEIN WILL CON'lli&'i' 1E-tOND THE TERM OF THIS LEASE NN TIT, EVENT LESSEE RENTATN4 i IN POSSESSION 017 THE PREMISES FOR ANY RE'ASON, OR ANV FURTHER 0177,Y"ATIONS UNDF1 THIS LEASE, INCLUDING, BUT NOT LIM`FVDTO, vA!-, REQUIRED BY LESSOR. IN THE EVENT LESSOR E7x •RC1SFS LESSOR'S RIGHT TO REQUIRE LESSEE,TO RE,MOVE V:-.;L OR PART OF THE IMPROVERIIENTS,, OR 11-1 THE EVENT LESSERE', REMOVES THE IMPROVEMENTS, LrLSSE E'SINDE MNITY WILL CONTINUE UNTIL LESSOR DEEMS SUCH REMDVAL 7:70 BE COMPLETE. LESSEE, AS A MATFRIAL PART OF THE CONSIDERATION' TO LESSOR, HEREBY ASSUMES ALL RISK OF DAMAGE TO PROPERTY OR INJURY TO OR PFA7 R OF PERSONS WITHtN THE PREMISES, EXCEPT THAT CAUSED BIT LE ,SORT SOLE NEGLIGENCE, AND LESSEE HEREBY WAIVES ALL CLALMS IN RESPECT THEREOF AGAINST LESSOR, EXCEPT FOR CLAIMS ARISiNIG OUT OF LESSOR'S SOLE NEGLiGENCE. EXCEPT FOR INJURY OR DAMAGE, IF ANY, CAUSED BY 1,ESSOR'S SOLE NEGLIGENCE, LESSEE HEREBY COVENANTS THE INDEMNWIE DPARTrES SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGE WPICH MAY BE SUSTAINED BY THE GOODS, WARES, ME,RCHANDISE OR PROPERTY, OF LESSEE, AND/OR LESSEES LICENSEES, INVITEES, AGENTS, CONTRACTORS, REPRESENTATIVES AND EMPLOYEES GR DEATH OR INJUP.76,L' OF ANY PERSON CAUSED BY OR RESULTING FROM THEFT, FIRE, ACT OF GOD, PUBLIC ENEMY, INJUNCTION, RIOT,STRIKE,INSURRECTION OR AT1Y OTHER ACTION Or ANY GOVERNMENTAL BODY OR AUTHORITY, OR ANY OTHER MATTER, OR FOR ANY INJURY OR DAMAGE OR INCGNVENIENCE WHICH MAY ARISE THROUGH THE REPAIR OR ALTERATION OF ANY 'PART I OF >THE PREMISES, Olt FROM ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, CONSEQUENTIAL LOSS OR DAMAGF FROM ANY CAUSE WHATSOEVER BY REASON OF 'HE CONSTRUCTION, USE, (,-,kCCtJPANCY OR ENJOYNU,'i�Irr OF T14E PREMISES BY LESSEE OR ANY PL-R5k;'N THEREIN OR HOLDING UNDER LESSEE. 10.02 LiabIgity Insurance. At all times during the Lease Term, Lessee, at its solo cost and expense, sh-A t;arry commercial general liability insurance coverage in a minimum a-1.1ount of $1,000,000 each occurrei. ,, - $2,000,000 general aggregate, which policy shall insure against bodily injury, death and proper damage and shad include (i) coverage for premises and cper;,+;ons- (ii) coverage for Lessor's concurring negligence.; and (iii) contractual liability coverage insuring the obligations of Lessee under the terms of this Lease, inci-iding but not limited to the indemnity obligations herein. Said insurance limit is subject to reviev� and esc?!a4 i Non as deemed necessary by Lessor once ever I 'I its expiration or sooner y two /2) .ea,s from the commencement date of this Lease Linn termination. 10.03 Insurance Certificates and Endorsements. All liability insurance policies required herein ,;hall be with companies licensed by the Texas Depart-lent of Insurance and shall (i) be cridorsed to iT1C:L1dC Lessor as an additional lnw-ed" (i1) conta n cross-liability and :-,everability of interest endnrse,.. nts. (iii) state that this ii-isurance is pi-irnaiv insurance as regards other insurance carried I() b� z4ny lademnifiied party and shall be endorsed to state that such insurance will not. be cancelled, r±ateially changed or subject to non-renewal without thirty (30) days prior written notice bo Lessor; and (iv) shall include waiver of subrogation endorsements in a forni acceptable to Lessor. Lesser; shall'also include waiver of subrogation endorsements in favor of Lessor on any insurance coverages Lessee may carry in addition to that required herein for the °,-vmises or activities conducted thereon, including but not limited to workers compensation insurance. Lessee shall furnish Lessor with certify ices of all coverage required herein and with copies of the required endorsements rior to .he commencement of this Lease, and annually thereafter for each renewal polwy not less than thirty (30)days prior to the expiration of said policies. Certif caa,,s of insurance shall specify the additional insured status mentioned above as well as the waiver ef- subrogation and shall contain any other endorsements required herein. Lessee shall provide to Lessor a certified copy of any and all applicable insurance policies upon request of Lessor. Lessee's obligation to carry and pay for the insurance described in this Lease will continue beyond the terra of this Lease in the event Lessee .remains in possession of the Premises for any reason, or in the event Lessee is obligated to remove the Improvements, in which-cage, Lessee will continue to carry such insurance sea long as Lessee remains in possession or until Lessor deems such removal to be compict,. If Lessee fails to have a certificate of anyrequired policy of insurance on deposit wit's Lessor at any time durivig the Lease Term or subsequent thereto in the event of any continued possession of the premises, or in the event the certificate fails to comply with the insurance company 7uality or coverage;requirements`he,eof such faibare may treated by Lessor as a default by Lessee. in the event of such default, in Aditi,)n to any otl;er remedy under this Lease, i,essor shall have the right (beat not the obligation) to purchase and maintain such policy for the account of Lessee, and if Lessor does so and gives notice thereof to Lessee, then Lessee shall be obligated to nay Lessor the amount o the premium applir;able to such pOic•- withers ten (10) days following any such notic° from Lessor. Any failure of Lessee. to make such payment to Lessor, may be treated by Lessor as a default by Lessee in the payment of monetary obligations to be paid by Le^see hereunder. The obligation of Lessee to provide any insurance required herein is a monetary obligation under this Lease. 10.04 Contractor's Insurance. Lessee agrees to require its contractors to carry at all times while engaged in the construction,'alteration_ repair, recom-truction or r;aintenance of the Improvements during the Lease Term, the following minimum insurance with companies authoriued to do business in the State of Texas, naming Lessor, as an additional insured, against claims of injuries to persons or damages to property, as a result of, or arising out of such construction, alteration, repair, reconstruction or maintenance of the Improvements by Lessee's contractors: A. Worker's compensation as required by Texas law with the policy endorsed, where _zsonably available, to provide a waiver of subrogation as to Lessee and Lessor, and employer's liability insurance of not less than $100,000 (or the statutorily required minimum if higher)for each accident-, B. Comaiercial general liability insurance in minimum of$1,000,000 each occurrence; $2,00,000 general aggregate, which policy shall insure agains5 bod;iy injury, death and property darr.age acid shall in�iude (1) coverage for p-emises and om-rations; and (ii) contractual liability coverage. 11 C. Comprehensive automobile liability insurance, covering owned, hired anti non-owned vehicles, with minimum limits of $500,000 combined single limit, such insurance to ins lode coverage for leading and unloading hazards; and 10.05 Release of Claims. Lessor hereby releases Lessee and Lessee hereby releases the members of the Transportation Commission, Lessor and Lessor's employees and contractors from any and all claims or demands for damages, loss expense or injury to the Premises,to the Improvements, or to any other property of either Lessor or Lessee, as the case may be, which is 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 to the extent permitted 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. ARTICLE 11 TRANSFER OF INTERESTS 11.01 No Assignment. Except as otherwise provided herein, Lessee shall not assign this Lease or sublease the Premises or any part thereof or mortgage, pledge or hypothecate its leasehold interest without the prior written approval of Lessor, subject to the concurrence of the FHWA; and any attempt to do any of the foregoing shall be void and of no effect. 1 1.02 Collection of Rent from Assignee. If this Lease is assigned or if the Premises are subleased (whether in whole or in part) or in the event of the mortgage, ,pledge or hypothecation of the leasehold interest, except as otherwise provided herein,'Lessor may nevertheless, but is not obligated to, collect rental from the assignee, sublessee; mortgagee, pledgee or party to whom the leasehold interest was hypothecated and apply the net amount`collected to the rental payable hereunder, but collection of rent or application thereof by Lessor shall not be deemed a waiver of Section 11.01 or a release of Lessee from the further performance by Lessee of its covenants hereunder. 11.03 Lessee Remains Diable. In any case where Lessor consents to an assignment or sublease of the leasehold, or if Lessee mortgages Lessees interest herein, Lessee will remain liable for the performance of all of the covenants,duties and obligations (hereunder, including, without limitation, the obligation to pay any sums herein provided to be paid and any indemnity provisions provided herein, and Lessor will have the right to enforce the provisions of this Lease against Lessee and/or any assignee or sublessee without den►and upon or proceeding in any way against any other person or entity. Notwithstanding the foregoing, Lessor is under m-) obligation to consent to any assignment -.)r sublease. 11.04 Assignee Assumption. In the event of any assignment or sublease by Lessee hereunder, the permitted assignee or sublessee will by such assignment :3r sublease automatically asstime all c+�ligations.. liabilities, covenants and agreements contained herein without further action or evidence ,ri such a:�sunipnon a;nd the assignee or sublessee is su�;ect to compliance with the additional l� requirements of the ADA and TABA. Lessee must give a copy of this Lease to all assignees and sublessees of this Lease. Lessee's failure to provide an assignee or sublessee with a copy of this Lease will constitute a default hereunder. 11.05 Effect of Termination of Lease. The expiration or sooner termination of this Lease as provided herein automatically and without further action cancels all assignments and ;subleases of this Lease. ARTICLE 12 DEFAULT AND REMEDIES 12.01 h-efault. The Lessor may declare this Lease, and a1 rights arcs interest created by it, to be terminated when in th , sole and absolute,opinion of the Lessor, (i) Lessee defaults in the performance of any monetary covenant, condition or agreemPrit hereunder,including but not limited to insurance premiums for insurance required herein, and has not paid such monetary sum within ten (10) days of the date due, and/or (ii) Lessee defaults in the perfor*,tan r.e of any nonmonetary covenant, condition or agreement in this Lease, except as otherwise prov;det' in Section 13.05 hereinbelow, and such nonmonetary default is not correco�d within W- i'0) e,,.-vs , tier receipt of written notice from Lessor'to Lessee. 12.02 Abandonment. If in the sole and absolute opinic,t of the ,Sg" th ?reirases y,,ase to be used or are abandoned, Lessor shall give Lessee thirty 30) dal, r.lace to reoccupy the Premises. If Lessee fails to reoccupy within said thirty (30) days Shall terri iiiate. 12.03 Lessee Remains Liable. Any termination of this Lease as herein .,ided will not relieve Lessee from the payment of any sum or sums then due and payable to Lessor hereunder, or any claim for damages then or thereafter accruing against Lessee hereunder, and any such termination will not prevent Lessor fi-om enforcing the payment of any such sum or sums or claim for damages from Lessee for any default hereunder. All money due under the terms of this Lease will bear interest at the rate of tcn percent (10%) per annun,from the date when due until actually paid, or at the highest rate allowed under applicable usury laws and regulations, whichever is lower. 12.04 All Rights Cumulative. All rights, options and remedies in this Lease ale cumulative, and the use of any one right or remedy by either party will not preclude or waive its right to use any and all other remedies. Said rights and remedies are Given in addition to other rights the parties may have by law, statute, ordinance or othenvise. 13 ARTICLE 13 GENERAL PROVISIONS 13.01 Casualty. If the Premises shall be destroyed, either in whole or in substantial part, by fire or other casualty, this lease shall terminate. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY EXPENSE DUE TO THE<DESTRUCTION AND/OR. RECONSTRUCTION OF THE IMPROVEMENTS, NOR ANY PERSONAL PROPERTY LOCATED THEREON RESULTING FROM FIRE, FLOOD, ACCIDENT OR OTHER EVENTS. Lessee shall immediately notify Lessor of substaritial,destruction or damage to the Premises. In no event shall Lessor be responsible or liable for any damage or loss of property of Lessee: 13.02 Threat to Traveling Public. If the Improvements are des,royed,,either in whole or in substantial part, or if any other emergency situation exists, and as a;esult, in the sole and absolute opinion of Lessor, a threat to the safety of the traveling public exists, Lessee agrees to cooperate I n any action Lessor deems necessary to remove such a condition and Lessor may,but is not obligated to enter upon the Premises and Lessee's adjacent property, if any, for the purpose of mitigating such condition in ar�y manner deemed necessary or desirable by Lessor. Use of the Premises may by necessity be temporarily curtailed in the event of damage to the Highway Facility caused by Ire, flood, accident or other events. 'Lessor will use all reasonable means to provide for rapid and timely repairs to the Highway Facility under its control. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY CURTAILMENT OR INTERFERENCE WITH LESSEE'S USE OF THE PREMISES BECAUSE OF FIRE, FLOOD,ACCIDENT OR OTHER EVENTS OR FROM THE MAKING OF ANY SUCH REPAIRS TO THE HIGHWAY FACILITY. 13.03 Damage to Premises not to Affect Obligations. No damage to the Premises or any portion thereof, or damage to or destruction of any Improvements shall in any way alter, affect or acidify Lessee's obligations hereunder, including, but not limited to, Lessee's obligations to pay rental, Impositions and other financial obligations hereunder. 13.04 Lessor's Right to Enter. Lessor has the right and Lessee shall permit Lessor and/or Lessor's agents, representatives and/or employees and/or FHWA representative: to (i) enter on the Premises and Lessee's property for the ;purpose of inspection of the Premises and the improvements, to deter mine whether Lessee is in compliance with the terms of this Lease; and(ii) enter the Premises for the purpose of inspection, maintenance or reconstruction of the Highway Facility when and as necessary as determined by Lessor in its sole and absolute discretion. In any circumstances where Lessor is permitted to enter upon the Premises in accordance with this Lease or otherwise, whether for the purpose of curing any default of Lessee, repairing damage resulting from fire or other casualty or is otherwise permitted hereunder or by law to go upon the Premises, no such entry shall constitute an eviction or disturbance of Lessee's use and possession of the Premises or a breach by Lessor of any of Lessor's obligations hereunder or otherwise or entitle Lessee to be relieved from any of its obligations hereunder or grant Lessee any right of off-set or recoupment or other remedy; and in connection with any such entry all of the aforesaid provisions shall be applicable 14 notwithstanding that Lessor may elect to take building materials arid equipment in, to or upon the Premises that may be equired or utilized iri connection with such entry by Lessor. 13.05 Force Majeure. If the curing of any default (other than failure to pay any sums due, including, but not limited to, insurance premiums or Impositions) or the performance of any other covenant, agreement, obligation or undertaking herein contained is delayed (after the party obligated or permitted ur.-'er the terms hereof to do or perform the same has made a good-faizbt effort to avoid delay)by reason of tvar,governrrmeo or government iq ierserences(not im uw:lg the right of the Lessor to -exercise Lessor's'ris,ils hrTounder), fire or Utter vasualty or ar,y ci, -.Anistances reasonably beyond ,each party's control red. rd'ess of whether any such circumstance i ,,o +,, ; J 4r of those enumerated .)r not, each party -o�;�l b,e °xcused from doing of- performing &e &ring such period of delay. 13.06 Bankruptcy. Yiis Lease shall termit.ate upon the occurrence J the filing os, execution or occurrence of an involwitary or voluntary petition'in bankruptcy 01 other insolvency t =.. ceding by or against Lessee, or petition or answer seeking; relief under any provision of the B,..,.,r,uptcy Act as may be amended, or any assignment for the b amefit of creditors or composition or a p Aitior or other proceeding by or against Lessee for the appointment of a trustee, receiver or hquio,atior. of Lessee or any of Lessee's property, or a proceeding by any governmental authority or by : ,.ass e for the dissolution or liquidation of Lessee. 13.07 Transfer by Lessor. IF LESSOR SELLS OR TRANSFERS THE PREMISES Z)R.TTIE, LEASEHOLD ESTATE OR ANY PART WHEREOF AND AS A PARS SWH TRANSACTION,ASSIGNS ITS INTEREST AS LESSOR IN AND TO THIS LEASE,THEN FROM AND AFTER TITE?-FFECTfVE DATE OF SALE,ASSIGNMENT OR TIB�INSFFik,, LESSOR WILL HAS' NO FURTHER LIAiBILITY UNDER THIS LEASE TO LES.FEY: IT BEING INTENDED THAT THE COVENANTS AND OBLIGATIONS CONTAINED IN THIS LEASE ON THE PART OF LESSOR WILL BE WN'DING ON LESSOR AND ITS SUCCESSORS AND ASSIGNS ONLY DURING AND IN RESPECT OF ITS PERIODS OF OWNERSHIP OF THE FEE. 13.08 Waiver. No waiver of any default or breach of any term,condition or covenant of this Lease nay be deemed to be a waiver of any subsequent default or breach of the same or any other term, condition or covenant contained herein. 13.09 Exhibits. All exhibits referred to herein are to be considered a part hereof for ail pa.qdoses with the same force and effeci as if copic a at full length herein. 13.10 Successors. The terms, conditions and covenants contained in this Lease shall apply= and inure to the benefit of, successors in interest and legal representatives except as otherwise herein expressly provided. No rights, however shall inure to the benefit of any assignee of Lessee :mless the assignment to such assignee has been approved by Lessor in writing as provided in Articl° 11. 15 13. 11 Attorneys' Fees. If, on account of any breach or default by Lessee of its obligations under this Lease, Lessor enforces or defends any of Lessor's rights or remedies hereunder, and should Lessor prevail, Lessor shall be entitled to receive from Lessee reimbursement for any and all costs, including, but not limited to attorneys' fees, incurred in such connection. 13.12 Holdover. If Lessee holds over and continues in possession of the Premises after expirationi of the term of this Lease, Lessee will be deemed to be occupying the Premises on the basis of a month-to-month tenancy subject to all of the terms and conditions of this Lease, except that as liquidated damages by reason of such holding over, the amounts payable by Lessee under this Lease shall be increased such that the annual rental shall equal one hundred twenty-fine percent (125%) of the amount paid lessor pursuant to Article 2 during the year immediately preceding the expiration date of this Lease and Lessee shall continue to pay all Impositions as required herein. The above- described tenancy from month-to-month may be terminated by either party upon thirty (30) days written notice to the other. Any rental due after such notice has been given is to be calculated on a pro rata basis. If upon notice of termination by Lessor, Lessee tenders rental in excess of the amount due and payable and Lesser accepts such payment, the acceptance of such payment will not operate as a wn:ver by Lessor of the notice of termination unless such waiver is in writing and sign,d by Lessor. Any such excess amounts tendered and accepted shall be promptly refunded by Lessor after deducting therefrom any amounts owed Lessor. 13.13 Consequential or Special Damages. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL LESSOR EVER BE LIABLE HEREUNDER FOR CONSEQUENTIAL DAMAGES OR SPECIAL DAMAGES. NOTWITHSTAINDING ANY PROVISION HEREIN TO THE CONTRARY, LESSOR'S GOVERNMENTAL OR SOVEREIGN IMMUNITY IS NOT WAIVED BY ANY PROVISION HEREIN. 13.14 Flammable, Explosive or Hazardous Materials. Notwithstanding anything herein to the contrary,no part of the Premises will be used for the manufacture or storage of flammable,explosive or hazardous materials or for any occupation which would be deemed by Lessor or the F14WA to be hazardous to either`the'aighway or nonhighway user. ARTICLE 14 MISCELLANEOUS 14.01 Notices. Any notice provided for or permitted to be given hereunder must be in writing and must be given at the address or addresses designated below by (I) depositing some in the united States Mail, postage prepaid, registered or certified, return receipt requested; (ii) personally delivering the same to the party to be nc-tified; or (iii) sending a prepaid telex or telegram. Such notice shall be effective ,.pon receipt, as evidenced by the executed postal receipt or other receipt for deliver}: 16 If to Lo..- ee: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: City Manager If to Lessor: Texas Department of Transportation P.O. Box 6868 Fort Worth, Texas 76115 Attention: District Engineer The parties may change their respective notice addresses to any other location within the United States by giving a notice of the change in accordance with this Section. 14.02 Governing Law. This Lease is to be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Tarrant County, Texas, unless otherwise provided herein.. 14,03 Relationship.,Between Lessor and Lessee. The relationship between Lessor and Lessee is and shall at all times remain solely that of Lessor and.Lessee`and will not be deemed an agency, a partnership or joint venture. 14.04 Severability. In case any one or more of the provisions contained in this Lease are for;any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality. or unenforceability will not affect any other provision hereof, and this Lease will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 14.05 Amendments. The amendment, modification or alteration of the terms hereof will not be binding unless the sat-no be in writing, dated subsequent to the date hereof, and duly executed by the parties hereto_ 14.06 Headings.The article and section captions contained in this Lease are for convenience only and do not in any way limit or amplify any term or prov�sion hereof. 14.07 Lessor. Unless specifically stated otherwise herein, the term "Lessor" as used herein includes Lessor, its successors and assigns, and its authorized agents, representatives, employees and/or contractors. 14.08 District Engineer. Any reference in this Lease to the District Engineer means the District Engineer, Texas Department of Transportation, Fort Worth, Texas, and his/her successor in title or responsibility. When written approval of Lessor is necessary under this Lease said approval is to be obtained from the District Engineer except as otherwise provided herein or otherwise by law. 17 14.09 Traffic Control Plans. The term "Traffic Control Plans" as used hc;rein shall mean all documents pertaining; to regulating, warning and/cr guiding traffic and the public through construction and/or maintenance work zones on highways under the ultimate jurisdiction and control of Lessor. Such documents shall include, but not be limited to, plan sheets, general notes, specifications, special specifications, special provisions and quantities. 14. 10 Non-Discrimination. 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 lard, 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 the selection of employees or contractors, or by contractors in the selection and retention of their subcontractors, and that such discrimination will not be practiced agaist the public in their access to and use of the facility and services provided for public accommodation constructed or operated on the Premises. Lessee shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A Office of the Secretary, Part 21, Non-Discrimination in Federally-assisted programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. The breach of any of the above nondiscrimination covenants will be an act of default entitling Lessor to terminate this Lease in accordance with the procedures set forth herein: 14.11 Time is of the essence of this Lease: 14.12 Sole and Absolute Discretion or Opinion. Notwithstanding anything herein to the contrary, whenever a party to this Lease is entitled to exercise its "sole and absolute discretion" or- "sole and absolute opinion" such discretion or opinion may be exercised by that party for any reason or for no reason, whether or not such discretion or opinion is arbitrary, uncontrolled or unreasonable. Any parties'exercise ofits "sole and absolute discretion" or "sole and absolute opinion" shall be final and shall not be subject to appeal or be subject to adjudication by a court of law, arbitration, mediation or otherwise. ARTICLE 15 RECORDATION 15.01 Memorandum of Lease. At Lessoi-'s request, Lessee will execute a memorandum of this Lease in recordable form setting forth such provisions of this Lease as Lessor deems desirable and Lessor may record such memorandum in the Real Property Records of the Office of the County Clerk, Tarrant County, Texas. 18 r AIITICLE 16 PUBLIC UTILITY AND COMMON CARRIER RIGHTS 16.01 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 Lessor's 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 subject to this Lease shall be accomplished at Lessee's sole expense at Lessor's request if required to accommodate the location, operation or maintenance of facilities pursuant to those statutory rights: ARTICLE 17 O OPTION 17.01 The submission of this Lease for examination by Lessee and/or execution thereof by Lessee does not constitute a reservation of or option for the Premises and this Lease shall become effective against any party only upon execution of all parties' hereto and delivery of a fully executed counterpart hereof by Lessor to Lessee. 19 To become effective on the date last executed. LESSOR LESSEE TEXAS DEPARTMENT OF CITY OF PORT WORTH, A MUNICIPAL TRANSPORTATION C'ORPORA.TION Certified as being:executed By. A", &�Ufw for the purpose and effect of activating and/or carrying Name: Charles R. Boswell out the orders, established policies or work programs Title: Assistant city Manager heretofore approved and — authorized by the Texas Late: A Transportation Commission under the authority of Minute Order 10 002. A3'PI D 17.S TO A�OPH AD �GALzTYE: r �v'�%�r.tr� r�YJ„rte` By: As..ista111- C.ty Loge;; Ga e eth�, P.E. D' ector oa Ri'ght of Way Late: A .1 �! 1 20 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Charles R, Boswell, Assistant City Manager of the City of Fort Worth, Texas, a municipal corporation, known to me to be the person and Assistant City Manager whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Fort Worth, Texas, that he executed the same for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of , '1997. z �=� n 0 �f otar Public in d or the a State of as cP��PE Of N`a^'e t e A rse' ACKNOWLEDGMENT THE STATE_ OF TEXAS § COUNTY OF TRAVIS § BEFORE IME, the undersigned authority, on this day personally appeared Cary Bernethy, P.E., Director of Right of Way, 'Texas Department of Transportation, a Department of the State of Texas, known to me to be the person and Director whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said 'Texas Department of'Transportation, that he executed the same for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN JWER 'My HA..ND AND SEAL OF OFFICE, this • day of kYPU CONNiE VAN RYSINYIt x NOTARY PUBLIC q State of Texas Not b 'c i r the ` Comm. Exp.04 0699 t Of Te F F Tract 1--92 , Part 1 Page 1 of 4 12-20-91 EXHIBIT A Being 17, 500 square feet of land, more or less, out of Block 3, Nance' s Addition to the City of For'C Worth, Tarrant County,.�, sex:is, and being a portior of Parcel 170A, Part` 1 conveyed to the Star of Texas i-y deed dat-- "lly 2, 1985 and recorded in Volume 8277 , ParTe 906 of the Deed - - of Tarrant County, Texas, which 17, 500 square 'feet of qc-e or less, are more particularly de. cribed as follows: BEGINNING at a -of-way monument at the intersection of the south line of yet and the north right-of-way line of Interstate 30 a- L,4corded< in Volum^ 8277, Page 906 of the Deed Records of Tarrant County, said point being South 890 53 ' 32" West (South 890 54 ' West) a distance of 61 . 44 feet from the northeast corner of Block 3, Nance' s Addition, said point also being 342.29' feet northerly of and radially opposite station 233+74. 22 on the abandoned centerline alignment: of .Interstate 30; THENCE along, said north right-of-way line of Interstate 30 the following courses and distances: ( 1) South 69° 18 ' 20" East (South 690 18 ' East) , a distance of 36. 93 feet to a set right'-of-way onument; ( 2 ) South 74° 34 ' 26" East ( South 740 34' East) , a distance of r 37 .25 feet to a set right-of-way monument in the cast line of r Said Bl eck 3; r THENCE along the Easterly line_ of said Block 3, the following t courses and distances: i ( 3 ) South. 250 23 ' 14" West (South 25° 23' West) , a distance of 58. 95 feet to a see P.K. Nail; ( 41 South 590 37 ' 41" West ( South 590 38 ' West) , a distance of 28 . 13 feet to a "Y" cut in concrete in the Southerly line of said Block 3 ; ( 5) THENCE in a westerly direction along the Southerly line of said Block 3, along the arc of a circular curve to the left having a .radius of 73i .'i8 feet and through a central angle of I3 003 ' 19 ' a distance of 166 .74 feet to a "Y" cut in concrete in said curve whose center nears Soutar 09° 09 ` -40" East; Tract 1-92 , Part 1 , Page 2 of 4 12-20-91 EXHIBIT A (,6) THENCE North 001 16 ' 32" East (North 00° ' 17 ' East) , along a line lying 10 .00 feet easterly of and parallel to the West line of said E,lock ,3, a distance of 97 .79 feet to a set P.K. Nail in the South lira: of said 13th .Street; ( 7 ) THENCE North 89° 53 ' 32" East (North 896 54 ' East) , along the South line of said 13th; Street a distance of 144. 83 feet to the POINT OF BEGINNING. Tract 1-92 , Part 2 Page 3 of 4 12-20-91 EXHIBIT A Being 8,834 square feet of land, more or less, out of Block 2, Nance' s Addition to the City of Fort Worth, Tarrant County, Texas; and being all of Parcel 170A, Part 2 conveyed to the 'State of Texas by deed dated July 2, 1985, and recorded in volume 8277 , Page 906 of the Deed Records, Tarrant County, Texas, which 8 ,831 square feet of land-, more of less, are more particularly described as follows: BEGINNING at 60d- nail at tie southwest corner of said Block 2, Nance' s Addition said corner being the intersection of the East line of Cherry Street and the North line of 1.3th Street; (1) THENCE North 000 1°6 ' 32" East (North 001 17 ' East') , along the East line of said Cherry Street, a distance of 240. 09 feet to a point under a wall in the Northerly right-of-way line of Interstate Highway 30, said point being 639. 82 feet northerly of and radially opposite survey station '232+94 . 92' on the abandoned centerline of Interstate Highway 30; THENCE along said northerly right-of-way line of Interstate- Highway 30 the following courses and distances: ( 2 ) South 051 55 ' 22" East ( South 05, 55`" East) a distance of 38. 26 feet to a "Y" cut in concrete; ( 3 ) South 13a 42' 42" East ( South 130 43 ' East) `a distance of 53 . 31 feet to a' Point under a wall; ( 4) South 240 24 ' 53" East ( South 240 25 ' East) a distance of 87 . 57 feet to a "Y" cut in concrete; ( 5) THENCE in a Southeasterly direction. continuing along said northerly right-of-way line of Interstate Highway 30, along the arc of a circular curve to the left having a radius of 214. 00 feet and through a central angle of 231 _7 ' 24" a distance of 88 . 86 feet to a "Y" cut in concrete in said curve chose center bears North 400 56 ' 01" East, said point also being in the South line of said Block 2 , said point also being in the North line of said 13th Street, said point also being South 891 53 ' 32" west( South 89, 54 ' West) a distance of 125 .:6 feet from the southeast corner of said Block 2 ; 0 Tract 1-92, Part 2 Page 4 of 4 12-20-91 EXHIBIT A ( 6) THENCE South 890 531 32" West ( South 890 54:' West) along the north line of said 13th Street, a' distance of 107 . 24 feet to the POINT OF BEGINNING. Note Bearings shown in parenthesis relate to the State' s right-of-way project number 9002-6-15. Grantee' s use of and access to the adjacent highway facility, of which the above described tracts were a part,; shall be and ;forever remain subject to the same regulation by legally constituted authority as applied to the public ' s use thereof; and, that access will be denied to and from the right-of-way of Interstate Highway 30 as follows: Part 1 : Between the beginning of the sixth call and the end of the sixth call of the foregoing Metes and hounds description of Part-1; Part 2 : Between the beginning of the first call and the end of the first call of the foregoing metes and bounds description of Part 2 . OF W. L.Mob RL `! w«