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R-85-786 - 12/23/1985
786 R December 10, 1985 The Round Rock City Council met in special session Tuesday, December 10, 1985, at 8:30 a.m. in the Council Chamber. ROLL CALL: Those members present were Mayor Mike Robinson, Mayor Pro -tem Mike Heiligenstein, Councilman Graham Howell, Councilman Ronnie Jean, Councilman Charles Culpepper and Councilwoman Trudy L. Lee. Councilman'Pete Correa was absent. Also present were City Manager Jack Harzke, Assistant City Manager Sam Huey, City Attorney Don Wolf, and City Secretary Joanne Land. 3A. Consider a resolution authorizing the Mayor to texectue any and all documents necessary to consumate the land trades and enter into agreements on City Hall Complex Project. Mayor Robinson read the following resolution. 78 6 WHEREAS, the City Council of the City of Round Rock has expressed a desire for a new City Hall Complex; and WHEREAS, the City Hall Complex Project has been in negotiations for several months; and WHEREAS, the Round Rock City Council is desirous of executing any and all documents necessary to complete the project; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ROUND ROCK, TEXAS That the Mayor is hereby authorized and directed to execute any all documents necessary to provide funding for the City Hall Complex, complete the land exchange and enter into Ground Lease and Office Lease Agreements; said authority shall extend to making changes to the documents attached necessary to conform the documents to the intent of the parties and to meet legal requirements as may arise in the orderly closing of said transaction. RESOLVED this 10th day of December, 1985. ATTEST: JOANNE LAND, City Secretary RESOLUTION NO. MIKE ROBINSON, Mayor Jack Harzke said all documents were in order and the sub- committee felt "good about the project ". Councilmembers discussed the project at length. Councilmembers were told that the real estate transactions needed to be accomplished in order to complete the bond portion of the project. MOTION: Councilman Howell moved to adopt the resolution authorizing the Mayor to execute any necessary documents on the advice of the City Manager, City Attorney and Finance Director. Councilman Jean seconded the motion. VOTE: Ayes: Councilman Heiligenstein Councilman Howell Councilman Jean z11! L12 December 10, 1985 ACTION: The motion carried. 4A. Consider an ordinance rescheduling the second regular meeting of the Round Rock City Council for the month of December, 1985. Mayor Robinson read the caption of the ordinance. ORDINANCE NO. AN ORDINANCE RESCHEDULING THE SECOND REGULAR MEETING OF THE ROUND ROCK CITY COUNCIL FOR THE MONTH OF DECEMBER, 1985; REPEALING CONFLICING ORDINANCES OR RESOLUION AND PROVIDING A SAVINGS CLAUSE. 7e MOTION: Councilwoman Lee moved to adopt the ordinance and Councilman Howell seconded the motion. VOTE: Ayes: Councilman Heiligenstein Councilman Howell Councilman Jean Councilman Culpepper Councilwoman Lee Mayor Robinson Noes: None ACTION: The motion carried. MOTION: Councilman Heiligenstein moved to dispense with the second reading of the ordinance with the unanimous consent of all Councilmembers present. Councilman Jean seconded the motion. VOTE: Ayes: Councilman Heiligenstein Councilman Howell Councilman Jean Councilman Culpepper Councilwoman Lee Mayor Robinson Noes: None a.m. ACTION: The motion carried. Councilman Culpepper Councilwoman Lee Mayor Robinson Noes: None There being no further business, the meeting adjourned at 9:05 Respectfully submitted, Joanne Land, City Secretary ,Pup/ e &fie Da Glt O q' r�5\ �ocww —¢,x F; 1 e" �oCc.wa, 5 v-Lorrolc , ze -3t r/Ja/ era ii��a Yrl@ 1 -k THE STATE OF TEXAS COUNTY OF WILLIAMSON WHEREAS, City of Round Rock, a municipal corporation, ( "City ") of Williamson County, Texas, is the owner in fee simple absolute of the following described real property, to -wit: Lots Seventeen (17), Eighteen (18) and Nineteen (19), Block "10 ", CITY OF ROUND ROCK,` Williamson County, Texas, according to the map or plat thereof of record in Volume 25, Page 314, Deed Records, Williamson County, Texas. WHEREAS, Round Rock Partners, a Colorado general partnership, ( "Partners "), is the owner in fee simple absolute of the following described real property, to -wit: Lots One (1), Two (2), Three (3), Four (4), and Five (5), Block "10 ", CITY OF ROUND ROCK, Williamson County, Texas, according to the map or plat thereof of record in Volume 25, Page 314, Deed Records and in (Cabinet A, Slide 190), Plat Records, Williamson County, Texas. WHEREAS, for Partners desire to hereafter own Lots (4), and Five (5) Lots Seventeen (17) EXCHANGE DEED 161113 OFFICIAL paudr`rDtr""•e' KNOW ALL MEN BY THESE PRESENTS 85rtola8 - ola? .0I 1289,: , 913 4671.5 mutually beneficial purposes, City and exchange such parcels so that City will Lots One (1) , Two (2) , Three (3) , Four and Partners will hereafter own Lots , Eighteen'(18) and Nineteen (19); NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS: For and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and the further consideration of the premises and the conveyances herein made and to effect such exchange, the parties hereto do hereby exchange such properties as follows: Partners has GRANTED, EXCHANGED, AND CONVEYED, and by these presents, does GRANT, EXCHANGE AND CONVEY unto City all of Lots Lots One (1), Two (2), Three (3), Four (4), and Five (5), as described above. ' TO HAVE AND TO HOLD Lots Lots One Two (2), Three (3), Four (4), and Five (5), together with all and singular the rights and appurtenances thereto in anywise belonging unto the said City, their heirs and assigns forever, and Partners does hereby bind themselves, their heirs, executors and administrators to WARRANT AND FOREVER DEFEND, all and singular, the said premises unto the said City, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. This grant and conveyance is expressly made and accepted subject to the liens securing payment of ad valorem taxes for the current and all subsequent years, as well as to all easements reservations, covenants, conditions and restrictions which are applicable to the Property and of record in Williamson County, Texas. 1 -k Vni 1289W'•91 CITY has GRANTED, EXCHANGED AND CONVEYED, and by these presents does GRANT, EXCHANGE AND CONVEY unto PARTNERS all of Lots Lots Seventeen (17), Eighteen (18) and Nineteen (19), described above. TO HAVE AND TO HOLD Lots Lots Seventeen (17), Eighteen (18) and Nineteen (19), together with all and singular rights and appurtenances thereto in anywise belonging unto the said Partners, their heirs and assigns forever, and City does hereby bind themselves, their heirs, executors and administrators to WARRANT AND FOREVER DEFEND, all and singular, the said premises unto the said Partners, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. This grant and conveyance is expressly made and accepted subject to liens securing payment of ad valorem taxes for the current and all subsequent years, as well as to all easements, reservations, covenants, conditions` and restrictions which are applicable to the Property, and of record in Williamson County, Texas, and IN TESTIMONY WHEREOF, City of Round Rock, a municipal corporation and Round Rock Partners, a Colorado general partnership, have executed this instrument. EXECUTED on this the 23 day of P2C2 1985. BY CITY OF ROUND ROCK 214 East Main Round Rock, Texas 78664 ROUND ROCK PARTNERS a Colorado general Partnership y _ . BY au1 R. Cronk, General Partner ADDRESSES FOR GRANTEES: C a es Schrei Nelson General Partner CITY OF ROUND ROCK, TEXAS, a municipal corporation BY / " ✓ ' , MIKE ROBINSON, MAYOR ROUND ROCK PARTNERS 1860 Blake Street, Suite 500 Denver, Colorado 80202 J 1 -k THE STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before, me on the '1-3 AA of Dat , mM I� , 198 5 by T1'lig.2- id.o(i.lvsu,nJ - /1 of City of Round Rock, a municipal corporation, on behalf of said corporation. • :* P �+ THE STATE Q,F TA SC •',, COUNTY OF WYi4E,IAMStiN THE STATE OF TEXAS COUNTY OF WILLIAMSON Notary Public, State of Te�1as STATE OF TEXAS COUNTY OF WILLIAMSON I hereby certify that this Instrument was FILED on the date and at the time stamped hereor an Page of was duly RECORDED, County, Texas, as stamped hereon by me, on DEC 301985 COUNTY CLERK WILLIAMSON COUNTY, TEXAS - 3 - Commission Expires: Fe,t;.$ :011289N r 915 Commission F$TgJ . .StrKINS, JR. Notary Public �� My Commission Expires This instrument was acknowledged before me on the day of p2C p„490/ , 19R r by Paul R. Cronk, ;partner of Round Rock Partners, a Colorado partnership on behalf of said partnership. Notary Public', State of Texa This instrument was acknowledged before me on the 23 day of PPCen -.11P. , 198 5 by Charles Schreiner Nelson, general partner of Round Rock Partners, a Colorado general partnership on behalf of said partnership. Notary Public, State of Texas Commission Expires: / 0 pi 2 3 general general 1264F - 1 - WARRANTY DEED 48717 THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON § %11O1a8 -Doc) 1[.1 1289Na 91. THAT CHARLES SCHREINER NELSON ( "Grantor ") of the County of Bexar and State of Texas, for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00) and other valuable consideration to the undersigned paid by the grantee herein named, the receipt of which is hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY unto ROUND ROCK PARTNERS, a Texas general partnership, the following described real property: Lots One (1), Two (2), Three (3), Four (4), and Five (5), BLOCK Ten (10), CITY OF ROUND ROCK, Williamson County, Texas, according to map or plat thereof of record in Volume 25, Page 314, Deed Records, Williamson County, Texas; This conveyance is made and accepted subject to any and all matters of record affecting the premises, to the extent the same are in force and effect; provided, however, Grantor warrants and covenants that he has not imposed any restrictions, covenants or other matters affecting the title to said premises. TO HAVE AND TO HOLD the above described real property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the Grantee, its successors and assigns forever; and I do hereby bind myself, my heirs, legal representatives and assigns to WARRANT AND FOREVER DEFEND all and singular the said real property unto the Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. EXECUTED this Z / day of December, 1985. CHARLES SCHREINER NELSON OFFICIAL RECORDS W""" = ON COUNTY T€XAp ;RI 1289Fv 912 STATE OF TEXAS § COUNTY OF W I', am1u -- § This instrument was acknowledged before me on this 2 3 day of December, 1985, by Charles Schreiner Ne Grantee's Address: c /oAlbion Property Corporation Suite 500 1860 Blake Street Denver, Colordao 80202 Attn: Paul R. Cronk STATE OF TEXAS COUNTY OF WILLIAMSON I hereby certify that this Instrument was FILED on the date and at the time stamped hereon by me; and was duly RECORDED, in the Volume and Page of the named RECORDS of Williamson County, Texas, as stamped hereon by me, on DEC 3 01985 COUNTY CLERK � WILLIAMSON COUNTY, TEXAS 1264F — 2 — / 1 Notarl Public, "State of Texa,S Notary's printed namei., . My commission expires: h, UPON RECORDATION, RETURN TO GRANTEE AS IT APPEARS 3 r to A 1 265F qs‘1 o,ab 411 2: 5 4 ) i)- : RELEASE OF LIEN THE STATE OF TEXAS 46716 COUNTY OF WILLIAMSON § KNOW § ALL MEN BY THESE PRESENTS: THAT the un dersigned, T TexaT, the legal si of the Texas, equitable County and Bolde, promissory note in the owner and holder and State ONE HUNDRED EIGHTY -FIVE THOUSAND original of that one executed by Charles Dollars ($185,000.00) dated ONE 19 The Frost National C l Schreiner payable atod of of Deed dated Bank of Nelson, pa described n a Official Records 7,1985 duly recorded in Antonio, more to the order being Records fully d escribed in 9 secured of Williamson Volume 1150, be e n ted by b y a vendor's lien County, Texas; Page 830 created Volume 11 deed of trust to Clifford T.bHe d of trust lien Texas, 9e 834, deed in against the f ollowing 83 O Records, Heady, Trustee, recorded described Williamson County, Lots One Property, to -wit: Lots One (1), Two C (2), Three (3), Four Williamson .County, Tex s, CITY OF ROUND (4), ROCKa plat thereof according to map or Deed Records, record in Volume 25, Williamson County, Texas; Page 314, for and in consideration indebtedness secured by of the of which y the aforesaid) and final or payment is hereby acknowledged, has l or liens, by these presents of all described hereby releases released and the receipt said indebtedness. ess. from all d ischarges, and dpert, liens held by the undersigned the above g EXECUTED this g,) gird securing day of December, 1985. ATTESTED BY L JIM, ROSBY ASSISTANT VICE President - 1 - OFFICIAI, RECORDS WILLJAMSorst THE FROST NATIONAL BANK OF SAN ANTONIO 4 0, By: 4 Title/ S i. cis G c.c 7iLCfi /J(.� L .A. Pittman, Jr. Senior Vice President CI 1289f, .: 9.1.0 STATE OF TEXAS § COUNTY OF BEXAR § This instrument was acknowledged before me on 12/23 , 1985, by L.A. Pittman, Jr. Senior Vice,President of The Frost National Bank of San Antonio, a national banking association, on its behalf. Notary Public, State of Texas Notary's printed name: Kathleen Gorzell My Commission Expires: 2/28/89 UPON RECORDATION, PLEASE RETURN' TO: Mr. James C. Norman Cox & Smith Incorporated 600 National Bank of Commerce Building San Antonio, Texas 78205 1265F STATE OF TEXAS COUNTY OF WILLIAMSON I hereby certify that this Instrument was FILED by me; and d u l y RECORDED, in p t he Volume and Page of the named RECORDS of Williamson County, Texas, as stamped hereon by me, on DEC 3 0 1985 COUNTY CLERK WILLIAMSON COUNTY, TEXAS — 2 — rJ CITY OF ROUND ROCK JOANNE LAND 214 EAST MAIN STREET ROUND ROCK, TEXAS 78664 SAM HUEY ASSISTANT CITY MANAGER CITY OF ROUND ROCK 214 EAST MAIN STREET ROUND ROCK, TEXAS 78664 (512) 255 -3612 E LAND, CITY SECRETARY PUBLICATION DATES: OCTOBER 28, 1985 OCTOBER 31, 1985 NOTICE OF OFFER TO EXCHANGE REAL PROPERTY SEALED PROPOSALS WILL BE ACCEPTED BY THE CITY OF ROUND ROCK, TEXAS FOR: THE EXCHANGE OF REAL PROPERTY OWNED BY THE CITY OF ROUND ROCK, TEXAS, FOR THE PURPOSE OF DEVELOPING AND CONSTRUCTING A CITY HALL OFFICE COMPLEX IN BLOCK 10 OF THE CITY OF ROUND ROCK, TEXAS. SAID CITY OF ROUND ROCK REAL PROPERTY BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: LOTS 17, 18 AND 19 OF BLOCK 10 OF THE ORIGINAL TOWN OF ROUND ROCK, TEXAS. THE CITY OF ROUND ROCK WILL EXCHANGE THE ABOVE- DESCRIBED INTEREST FOR A SUB- STANTIALLY EQUIVALENT INTEREST IN OTHER REAL PROPERTY, SAID EXCHANGE TO BE ACCOM- PANIED BY A PROPOSAL AND COMMITTMENT TO EXCHANGE GROUND LEASES AND TO CONSTRUCT AS MANY AS THREE BUILDINGS FOR OFFICES AND MAIN STREET GROUND FLOOR RETAIL SPACE, A CITY COUNCIL CHAMBER AND A MINIMUM THREE LEVEL PARKING GARAGE. PROPOSALS WILL BE RECEIVED UNTIL 9:00 A.M. ON NOVEMBER 15, 1985. ANY PROPOSALS RECEIVED AFTER 9:00 A.M. ON NOVEMBER 15, 1985 WILL BE REJECTED AND RETURNED UNOPENED. BIDS MUST BE DELIVERED TO: PLEASE MARK THE PROPOSAL ENVELOPE "EXCHANGE OF REAL PROPERTY AND AGREEMENT TO CONSTRUCT A CITY HALL COMPLEX ". THE CITY OF ROUND ROCK RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS RECEIVED. ADDITIONAL INFORMATION WITH REGARD TO THE SPECIFICATIONS MAY BE OBTAINED FROM: Richard A. Wells Ed Walsh Ferris F. (Rick) Akins R. Mark Dietz Amy K. Rosenberg Ms. JoAnne Land, City Secretary City of Round Rock 214 East Main Round Rock, Texas 78664 Dear Ms. Land: The City of Round Rock has advertised in the Round Rock Leader on November 4, 7, 11, and 14, 1985, for proposals concerning the exchange of certain property owned by the City of Round Rock for other property. Round Rock Partners hereby makes a proposal to exchange certain property owned by it for the property described in the above referenced advertisement, the details of said proposal for exchange to be as described in the attached "Agreement for Exchange of Real Property" incorporated herein by reference. Your attention to this matter is appreciated. If further information is needed please let me know. RA /km cc: Mr. Paul Cronk Mr. Marty Shelton LAW OFFICES WELLS, WALSH & AKINS A Professional Corporation ONE FINANCIAL CENTRE, SUITE 301 1717 NORTH IH 35 ROUND ROCK, TEXAS 78664 TELEPHONE (512) 244 -1442 November 14, 1985 Sincerely yours, Rick Akins Attorney for Round Rock Partners Jane McAdams Legal Assistant MA/ O Ty JWsw c #M,I 3f 7 I /1 = 014:474,..,, AGREEMENT FOR EXCHANGE OF REAL PROPERTY THE STATE OF TEXAS ) ss: COUNTY OF WILLIAMSON This Agreement For Exchange of Real Property is made as of the day of , 1985, between ROUND ROCK PARTNERS, a Colorado general partnership ( "Partners ") and CITY OF ROUND ROCK, TEXAS, a municipal corporation of the State of Texas ( "City "). RECITALS A. Partners owns certain real property situated in the City of Round Rock, State of Texas described on Exhibit "A" hereto, which, together with all improvements and fixtures of a permanent nature situated thereon and all rights, and appurtenances thereto (including without limitation the rights to any streets, alleys or rights of way adjacent thereto which have been or may here- after be vacated), is hereafter referred to as "Partners Property." B. City owns certain real property situated in the City of Round Rock, State of Texas described on Exhibit "B" hereto, which, together with all improvements and fixtures of a permanent nature situated thereon and all rights, and appurtenances thereto (including without limitation the rights to any streets, alleys or rights of way adjacent thereto which have been or may here- after be vacated), is hereafter referred to as "City Property." C. Partners desire to convey Partners Property to City and City desires to convey City Property to Partners in a tax deferred transaction pursuant to Section 1031 of the Internal Revenue Code of 1954, as amended. D. Concurrently with the conveyances, City desires to lease to Partners the Partners Property and other property owned by City which is adjacent to Partners Property pursuant to and in accordance with the terms of that Ground Lease Agreement ( "Ground Lease ") in the form attached hereto as Exhibit C. E. Partners has agreed to construct as many as two office /retail buildings, a city council chambers and a parking garage upon the leasehold described in the Ground Lease and lease the same to City pursuant to and in accordance with the terms of that office lease ( "Office Lease ") in the form attached hereto as Exhibit D. NOW THEREFORE, is consideration of the premises, the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. Agreement to Convey and Lease. On the "Closing Date" (as hereinafter defined), and subject to the terms and conditions hereinafter set forth, Partners agree to convey Partners Property to City and City agrees simultaneously to con- vey City Property to Partners. Concurrently therewith City and Partners agree to enter into the Ground Lease and the Office Lease. 2. Value of Properties. For the purpose of convey- ancing, the difference between the values of the respective pro- perties shall be deemed to be naught. The parties hereto acknow- ledge that the properties are of equal value and no additional consideration for the conveyancing shall be due from either party. 3. Surveys. Not later than fifteen (15) days follow- ing the date of this Agreement, City shall furnish to Partners, at City's sole expense, a current plat of survey and field notes of City Property; and not later than fifteen (15) days following the date of this Agreement, Partners shall furnish to City, at Partners' sole expense, a current plat of survey and field notes of Partners Property. Each survey shall be prepared by a licensed surveyor or registered engineer of the State of Texas. The surveys shall be staked on the ground and the plats shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks or other water courses, fences, ease- ments, flood plains and rights of way on or adjacent to the respective properties, if any, and each shall contain the sur- veyor's certification that there are no encroachments on the subject property and each shall set forth the total area of the subject property and a metes and bounds description thereof. Each survey shall indicate what portion of the subject property, if any, lies within any flood plain or floodway, as designated by the Army Corps of Engineers Federal Energy Management Administra- tion or the City of Round Rock, Texas or other applicable govern- mental entity. -3- 4. Title Reports. Not later than fifteen (15) days following the date of this Agreement, City shall furnish to Partners, at City's sole expense, a commitment for owner's title insurance policy showing merchantable title to City Property is vested in City and committing to insure merchantable title to City Property in Partners in the amount of $ . Not later than fifteen (15) days following the date of this Agreement, Partners shall furnish to City, at Partners' sole expense, a commitment for Owner's title insurance policy showing merchantable title to Partner's Property is vested in Partners and committing to insure merchantable title to Partners Property in City in the amount of $ . Each of the title insurance commitments shall be issued by Longhorn Title Company and shall be accompanied by legible copies of all recorded instruments affecting title to the subject property. 5. Examination. Each party shall have a period of ten (10) days following delivery by both parties of surveys and title insurance commitments required to be delivered pursuant to Para- graphs 3 and 4 of this Agreement, in which to examine the surveys and title insurance commitments and provide written notice ( "Notice of Unacceptability ") to the other party of any condition revealed by the title insurance commitment or survey that has been delivered to such party and is not considered acceptable. The parties agree that utility easements which do not interfere with the proposed uses of the respective properties shall not be a basis for providing Notice of Unacceptability. Failure of a -4- party to provide Notice of Unacceptability within the specified ten (10) day period shall constitute a waiver by such party of any objection to the status of title and other conditions identified on the survey and title insurance commitment which that party has received. in the event either party timely provides a Notice of Unacceptability, the party receiving the same may elect, at its sole option, (a) to correct any specified condition at its sole expense or n (b) to terminate this Agreement. If the party receiving the Notice of Unacceptability has not elected to correct the specified condition and fully performed the actions required to correct the same, within ten (10) days following receipt of Notice of Unacceptability, such party shall be deemed conclusively to have elected to terminate this Agreement, and the parties shall have no further obligations hereunder. 6. Removal of Improvements. The parties acknowledge and agree that buildings and improvements situated on the respec- tive properties on the date of this Agreement have negligible value and constitute no part of the consideration for the exchange of the properties. Each party, at its sole expense, shall be entitled to remove any such building or improvement from its property at any time prior to closing and retain the same as its sole and separate property; provided, however, any such building or improvement of a permanent nature which has not been removed prior to closing shall vest in the transferee of the respective property upon delivery of the deeds. Notwithstanding -5- the foregoing, City may remove its trade fixtures and personal property from the "Public Works Building" at the time it delivers possession of the same to Partners in accordance with the provi- sions of paragraph 11. 7. Warranties and Representations. City warrants and represents to Partners with respect to the City Property, and Partners warrant and represent to City with respect to Partners Property, each of the following. (The term "Property" when used in this paragraph and in paragraph 8, shall refer to the City Property for purposes of warranties and representations made by City, and shall refer to Partners Property for purposes of war- ranties and representations made by Partners). (a) No part of the Property has been leased or is subject to a lease or other occupancy agreement, except leases which shall be fully terminated not later than the Closing Date. (b) There are no parties in possession of any portion of the Property, except the party in whom title is vested (except, subsequent to closing, the City shall have temporary possession of the "Public Works Building" pursuant to para- graph 11). (c) There is no threatened or pending condemnation or similar proceeding or assessment affecting the Property or any part thereof, nor to the best knowledge and belief of the warran- tor is any such proceeding or assessment contemplated by any governmental authority. -6-- (d) The Property is not located in any special taxing district except as shown on the most recent tax bill for the Property, and to the best knowledge and belief of the warran- tor, no action is pending or contemplated to incorporate the Property into a special taxing district. (e) The Property is not subject to any contracts, commitments, undertakings or other obligations other than those identified in this Agreement and those set forth in written agreements executed by City and Partners. (f) There is no pending or threatened litigation which affects the Property or which would or might affect the transaction contemplated hereby. (g) The property is zoned to permit the construc- tion and occupancy of a commercial office building. (h) To the best knowledge and belief of the war- rantor, the Property has never been used for the disposal of hazardous waste material. (i) The Property has full and free access to and from public highways, streets or roads and, to - the best of the warrantor's knowledge and belief, there is no pending or threat- ened governmental proceeding which would impair or result in the termination of such access. (j) The Property as currently used complies with all applicable laws, ordinances, statutes, and governmental and quasi - governmental rules and regulations, and the warrantor has not received and is not aware of any notices, orders or other -7- requirements issued by any governmental agency which would require any action or change in order to place the Property in compliance with applicable governmental requirements. (k) There are no liens, security interests or other encumbrances on the Property except as revealed by the title insurance commitment. (1) The execution and delivery hereof by the war- rantor and the performance of the terms hereof by the warrantor have been duly and validly authorized by all requisite authori- ties and warrantor has full power and authority to enter into this Agreement and to perform all its obligations hereunder. The individuals executing this Agreement have full power and author- ity to bind the party on whose behalf they are signing, to all of the terms and conditions of this Agreement. 8. Effect of Warranties and Representations. Each of the foregoing warranties and representations is acknowledged by the parties to be material and is intended by the warrantor to be relied upon by the party for whose benefit the warranty or repre- sentation is made, and shall be deemed to have been remade by each party as of the Closing Date. The warranties and repre- sentations shall survive the closing of this transaction and shall not be merged in the delivery of deeds. 9. Covenants. From and after the date of this Agree- ment and until the Closing Date, City covenants to Partners with respect to the City Property and Partners covenant to City with respect to Partners Property as follows: -8- (a) The covenantor shall pay all taxes assessed against the Property (and any personalty situated thereon) as and when they come due. 47 A (b) Covenantor shall not seek or consent to any change in the zoning of the Property. (c) Covenantor shall not enter into any leases or other occupancy agreements with respect to the Property without the consent of the other party hereto. (d) Covenantor shall promptly notify the other party upon learning of or receiving notice thereof, whichever first occurs: (i) Of any event, transaction or occurrence prior to closing which would or might materially adversely affect the Property; (ii) Of any fact or event which would make any of the representations or warranties contained in this Agreement untrue or misleading in any material report; (iii) Of any violation of any law, ordinance or governmental rule or regulation which would or might materially affect the Property or any portion thereof; (iv) Of any proposed changes in any zoning or similar law affecting use or development after Property; (v) Of any pending or threatened litigation which affects the property or any part thereof or the transaction contemplated hereby; -9- (vi) Of any damage or destruction to the Property or any part thereof. 10. Closing Date. Closing shall be conducted at the office of Wells, Walsh & Akins, 1717 North IH 35, Suite 301, Round Rock, Texas, commencing at the hour of 10:00 a.m., local time, on , 198_, or at such other time, date and place as the parties hereto may agree. If the date scheduled for closing occurs within ten (10) days following timely delivery by either party of a Notice of Unacceptability, the closing shall be postponed until the first business day following such ten (10) day period. The day of closing as established in this Para- graph 10 is referred to as the "Closing Date." 11. Conduct of Closing. At closing, subject to satis- faction of the "Conditions of Closing" hereinafter set forth, the parties shall perform the following actions: (a) City shall deliver to Partners a duly executed and acknowledged General Warranty Deed conveying good and market- able title to City Property, in fee simple, to Partners, free and clear of any all liens, encumbrances, conditions, easements, assessments and restrictions except those revealed by the title insurance commitment previously delivered to Partners and not specified in Partners' Notice of Unacceptability. (b) City shall deliver possession of City Property to Partners, free and clear of all leases and tenancies; pro- vided, however, City may temporarily withhold possession of the "Public Works Building" located on City Property, for use as -1 municipal offices. City's possession of the "Public Works Building" shall be deemed a tenancy at sufferance and may be terminated at any time by Partners by providing thirty (30) days' prior notice of termination. City agrees to deliver possession of the "Public Works Building" in its "as is" condition upon termination of the tenancy at sufferance. So long as City remains in possession of the "Public Works Building," city shall be solely responsible for and agrees to pay, prior to delin- quency, all costs and expenses attributable to its use and pos- session of the "Public Works Building," including without limita- tion, utilities charges, costs of maintaining the building and its environs, and taxes attributable to the Building, regardless of whether such or to Partners. Building. costs and charges are assessed directly to City During such possession, City shall maintain its current public liability insurance policy with respect to the - - -- ------ ------ - - - - -- -- -- Building and shall indemnify Partners against any claims, losses or liabilities arising out of City's use of the Public Works In the event caused by the gross negligence of Partners) the Building is damaged or destroyed, Partners shall have no liability to City for such loss (unless and City shall look solely to its insurer for payment of its losses. (c) City shall pay for and deliver to Partners a Texas Owner's Title Policy, insuring fee simple title to the City Property in Partners, in the amount specified in Paragraph 4 hereof, subject only to those exceptions revealed in the title insurance commitment and not specified in Partners' Notice of Unacceptability, and subject to the standard printed exceptions in the usual form of Texas Owner's Title Policy, provided how- ever: (i) The exception as to restrictive covenants shall be endorsed "None of Record "; and (ii) The exception as to liens for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable." (d) City shall deliver to Partners a true copy of a duly executed ordinance of the City of Round Rock, Texas, authorizing and empowering the City to consummate the transaction described herein. (e) City shall execute and deliver to Partners the Ground Lease. Office Lease. (f) City shall execute and deliver to Partners the (g) Partners shall deliver to City a duly executed and acknowledged General Warranty Deed conveying good and market- able title to Partners Property, in fee simple, to City, free and clear of any and all liens, encumbrances, conditions, easements, assessments and restrictions except those revealed by the title insurance commitment previously delivered to City and not speci- fied in City's Notice of Unacceptability. (h) Partners shall deliver possession of Partners Property to City, free and clear of all leases and tenancies. -12- (i) Partners shall pay for and deliver to City a Texas Owner's Title Policy, insuring fee simple title to Partners Property in City, in the amount specified in Paragraph 4 hereof, subject only to those exceptions revealed in the title insurance commitment and not specified in City's Notice of Unacceptability, and subject to the standard printed exceptions in the usual form of Texas Owner's Title Policy, provided however: (i) The exception as to restrictive covenants shall be endorsed "None of Record ";'and (ii) The exception as to lien for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable." (j) Partners shall deliver to City a true copy of a partnership resolution authorizing and empowering Partners to consummate the transaction described herein. (k) Partners shall execute and deliver to City the Ground Lease. Office Lease. (1) Partners shall execute and deliver to City the (m) Each party shall do or cause to be done such other matter and things as shall be necessary to vest good and marketable title to the properties in the intended transferee as hereinbefore provided. 12. Taxes. General real property taxes for the year of closing for each of the properties shall be prorated to the Closing Date and shall be adjusted in cash at closing. If the -13- closing occurs before the tax rate is designated for the year of closing, the proration shall be based upon the tax rate for the next preceding year applied to the most recent assessed valua- tion. Prior to closing, City shall pay all taxes on City Property as and when they come due and shall pay the full amount of any outstanding special assessments against City Property or any part thereof. Prior to closing, Partners shall pay all taxes on Partners Property as and when they come due and shall pay the full amount of any outstanding special assessments against Part- ners Property or any part thereof. Any roll back of taxes due to the exchange or a change in use of either property after the year of closing shall be the responsibility of the party acquiring such property. 13. Conditions of Closing. Each party's obligation to close the exchange hereunder shall be subject to the following conditions: (a) As of the Closing Date, there shall be no default by the other party under this Agreement which has not been cured, unless such default has been waived by the non - defaulting party. (b) All of the other party's obligations which come due at or before closing shall have been fully performed and satisfied, unless such obligations have been waived by the party for whose benefit the obligation is incurred. (c) All warranties and representations of the other party shall be true and correct as of the Closing Date, -14- unless such warrant is and representations have been waived by the party for whose benefit the warranties and representations are made. (d) Unless waived by Partners, appropriate financ- ing for the construction of improvements upon City Property and Partners Property shall be available for disbursement (subject only to reasonable requirements for evidencing progress of con- struction and payment of invoices) to Partners on the Closing Date. "Appropriate Financing" shall mean the proceeds from the sale of Industrial Development Revenue Bonds issued by the City and Round Rock, Texas in an amount of not less than $ 14. Condemnation. In the event that any condemnation of any part of or all of either property shall be pending or threatened prior to closing, the party to whom such property is to be transferred may exercise either of the following remedies, at its sole discretion: (a) Proceed with the closing notwithstanding such condemnation, in which event all condemnation proceeds all newly received and the right to receive any condemnation proceeds sub- sequent to closing shall be transferred to such party. (b) Terminate this Agreement, in which event the parties shall be relieved of all further obligations under this Agreement. 15. Inspection. Each party shall have the right from time to time prior to closing to enter upon each of the proper- -15- ties for the purpose of making such inspections and evaluations as may be desirable, provided that such inspections shall not damage the subject property and shall not unreasonably interfere with the current tenants or occupants thereon. 16. Default. In the event of default by either party of its obligations hereunder at a time when the other party is not in default, the other party shall have such remedies therefor as are normally available therefor at law or in equity, notwith- standing, that the non - defaulting party has elected to terminate this Agreement. 17. Real Estate Commissions. Each of the parties hereto represents and warrants to the other than it has not incurred and will not incur any liability for brokerage fees, agents' commissions or similar charges in connection with the negotiation or execution of this Agreement or the consummation of the transaction envisioned hereby. Each party agrees to indem- nify, defend and hold harmless the other from all claims and actions for payment of such fees or commission which arise out of agreements, understandings or actions of the indemnifying party. 18. Miscellaneous. (a) Assignment. This Agreement may not be assigned by either party without the express written consent of the other party hereto, which consent may be withheld in such party's sole discretion. (b) Survival. This Agreement and all obligations provided herein shall, to the extent not fully satisfied and -16- performed by or through the closing, and all warranties and rep- resentations made herein shall survive the closing and conveyance of the title to the Properties. (c) Governing Law. This Agreement shall be gov- erned by and construed in accordance with the laws of the State of Texas. (d) Binding Effect. This Agreement shall be bind- ing and effective on and inure to the benefit of the parties hereto and their respective successors and assigns, when per- mitted by this Agreement. (e) Entire Agreement. This Agreement contains the entire contract, understanding and agreement between the parties and supersedes all prior understandings or written or oral agree- ments between the parties with respect to the subject matter hereof. (f) the performance of (9) Time of Essence. Time is of the essence in all obligations under this Agreement. Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. (h) Gender and Number. Words of one gender used in this Agreement shall be held and construed to include any -17- other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. (i) Compliance. in accordance with the require- ments of Section 28 of the Texas Real Estate License Act, each party is hereby advised that he should be furnished with or obtain a policy of title insurance or have the abstract covering the property examined by an attorney of his own selection. (j) Notices. Any notice required or permitted to be given by one party to the other under this Agreement shall be in writing and shall be personally delivered, delivered by com- mercial air courier or mailed. If mailed, the notice shall be sent certified, return receipt requested, with all postage pre- paid. Notices shall be deemed received on the first to occur of personal delivery or delivery to the respective address set forth below. The date of delivery shown on a signed postal service return receipt or as stated on the signed receipt provided by a commercial air courier shall be conclusive evidence of delivery to the address shown. Notices may be sent to Partners at: Round Rock Partners 1860 Blake Street Suite 500 Denver, Colorado 80202 Attn: Paul R. Cronk -18- With a copy to: Rick Akins, Esquire Wells, Walsh & Akins, 1717 North Ili 35, #301 Round Rock, Texas 78664 Notices may be sent to City at: City of Round Rock, Texas 214 East Main Round Rock, Texas 78664 Attn: City Manager With a copy to: Don Wolf, Esquire 214 E. Main Round Rock, Texas 78664 (k) Nonwaiver. No delay or omission on the part of a party to this Agreement in exercising any right hereunder at any time prior to closing shall operate as a waiver of such right unless failure to act within a stated time limit is expressly made a waiver by the terms of this agreement. Except as expressly stated in this Agreement, all waivers shall be in writ- ing and shall be signed by the party entitled to make the waiver. (1) Execution. This Agreement may be executed in mul- tiple counterparts, each of which shall constitute an original document. If this Agreement has been executed by only one party, it shall constitute an offer subject to acceptance until executed by each party hereto, and may be withdrawn by the signing party at any time prior to execution by the other party, by delivering written notice of withdrawal. -19- IN WITNESS WHEREOF, this Agreement has been executed as of the day and year first above written. PARTNERS: ROUND ROCK PARTNERS, a Colorado general partnership ATTEST: By: -20- Paul R. Cronk, general partner CITY: CITY OF ROUND ROCK, TEXAS, a municipal corporation By: Joanne Land, City Secretary Mike Robinson, Mayor EXHIBIT A TO AGREEMENT FOR EXCHANGE OF REAL PROPERTY BETWEEN ROUND ROCK PARTNERS AND CITY OF ROUND ROCK, TEXAS Legal Description of Partners Property: EXHIBIT B TO AGREEMENT FOR EXCHANGE OF REAL PROPERTY BETWEEN ROUND ROCK PARTNERS AND CITY OF ROUND ROCK, TEXAS Legal Description of City Property: EXHIBIT C TO AGREEMENT FOR EXCHANGE OF REAL PROPERTY BETWEEN ROUND ROCK PARTNERS Form of Ground Lease Agreement: AND CITY OF ROUND ROCK, TEXAS Form of Office Lease: EXHIBIT D TO AGREEMENT FOR EXCHANGE OF REAL PROPERTY BETWEEN ROUND ROCK PARTNERS AND CITY OF ROUND ROCK, TEXAS 1 -k 12$°.���, : 888 ASSIGNMENT OF LEASE - 48715 WHEREAS, Wallace Luersen of Williamson County, Texas, as Lessor, and Farmers State Bank, a Texas banking association, as Lessee, entered into a Lease Agreement on December 22, 1971, covering Lots 6, 7, 8, 9, and 10 in Block 10, City of Round Rock, Williamson County, Texas; and WHEREAS, Lessee assigned all of its rights under said Lease Agreement to the City of Round Rock, a municipal corporation, by assignment dated December 28, 1979, which assignment was recorded in Volume 782, Page 910, Deed Records of Williamson County, Texas, with the original Lease Agreement being attached to said assignment as an exhibit and recorded in said deed records at Volume 782, Pages 912 -926; and WHEREAS, the City of Round Rock, ( "City "), and Round Rock Partners, ( "Partners "), a Colorado general partnership, entered into a Ground Lease Agreement on December 12, 1985, which Ground Lease covered, among other property, the 5 lots described above; and WHEREAS, City now desires to assign its rights under the original Lease with Wallace Luersen as Lessor to Partners; and UTF(CTAL RECORDS • y91LGAMSON COUNTY TEXAr, -O 9 WHEREAS, under the terms of said original Lease City is authorized to assign its rights under the Lease provided that the Lessee assumes the performance of all obligations imposed upon the Lessee; NOW THEREFORE, City, a municipal corporation, acting by and through its duly authorized officer, for a full and valuable consideration in hand paid to City by Partners, the receipt and sufficiency of which is hereby acknowledged, hereby bargains,' grants, sells, assigns, and transfers unto Partners, all of its 'right, title and interest in and to that one certain Lease Agreement ( "Lease,Agreement ") dated December 22, 1971, (a copy of which is attached hereto as Exhibit "A "), between the Farmers State Bank as Lessee,-and Wallace Luersen as Lessor, which Lease was assigned to City by Assignment of Lease dated December 28, 1979, (a copy of which is attached hereto as Exhibit "B "), covering the following described property: All of Lot 6, 7, 8, 9, and 10, Block 10, City of Round Rock, Williamson County, Texas, according to the map or plat thereof of record in Volume 25, Page 314, Deed records, Williamson County, Texas. TO HAVE AND TO HOLD the Lease Agreement to Partners, its successors and assigns forever, and City does hereby bind itself, its successors, and assigns to forever warrant and defend title to the Lease Agreement, under Partners, its successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through or under it but not otherwise; except however this conveyance is made subject to the lien securing payment of ad valoreum taxes for 1986 and subsequent years, as well as to all the easements of record in Williamson County, Texas, or visible or apparent on the ground, and all reservations, convenants, conditions, and restrictions which are applicable to the property hereby conveyed. Partners, by its signature below, and for and in consideration of the assignment of the Lease Agreement, assumes and agrees to timely perform all of the obligations of Lessee as set forth in the Lease Agreement, save and except the right to acquire the fee simple title to the property which City hereby agrees to do at no cost to Partners and the obligation to make lease payments, the obligation of which City shall retain. 1 -k If City does not acquire the fee simple title at least thirty (30) days before the final time .specified in the Lease Agreement, Partners is hereby given the right to acquire said fee simple title. Partners further agrees to indemnify and save City harmless from any and all liability, loss, costs, damage, attorney's fees and expenses of whatever kind or nature which City may sustain and incur by reason or in consequence of any claim or cause of action arising subsequent to the date hereof out of or attributable to Partners failure to timely perform any of the obligations set forth in the Lease Agreement that it has assumed under this assignment. EXECUTED this 13 day of /7Pc e ih AO! , 1985. ATTEST: CUAIJfl- J I 4 -- tGL , Ci4 y Secretary EXECUTED this Z 7J day of PeC2 4P %, 1985. CITY OF ROUND ROCK, TEXAS BY 2;1.-Z 4/4' ROUND ROCK PARTNERS, a Colorado General Partnership BY ROUND ROCK PARNTERS, a - Colorado General Partnership BY i` Cha les Schreiner Nelson, General Partner - 2 - MIKE ROBINSON, MAYOR P aul R. Cronk, General Partner 1289p::8 9 ;01 1289 890 1 -k THE STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged befoie me on i. day of z .p,,,(, .� , 1985 by i e /� rk)so..i )�Kl r) ,/L of City of Round Rock, a corpdration, on behalf of said corporation. ,`r THE STATE %.Q ZES KA, COUNTY OF W2tVPRM ON THE STATE OF TEXAS COUNTY OF WILLIAMSON the 0 23 4 municipal // / Notary Public, State of Ta Commission Expires: FERRIS F. AKINS, JR. Notary Public My Commission Expire^ This instrumen was acknowledged before me on the 23 day of 91ec a e..P/ , 1985 by Paul R. Cronk, General Partner of Round Rock Partners, a Colorado general partnership on behalf of said partnership. Sta e of Tex . Nota y Pub i Commission Expire fe / /if C • This i??11,,strument was acknowledged before me on the 23 day of tiec Per -i,P , , 1985 by Charles Schreiner Nelson, General Partner of Round Rock Partners, a Colorado general partnership on behalf o£ said partne 'p.' Notary Public, State of Texa 'Commission Expires: 2 e/7:f I 4' - 3 - 4 . r) rt k 1289K. 891 THE STATE OF TEXAS . COUNTY OF TRAVIS : - This Lease Agreement is entered into on the date last herein writ- ten between Wallace Luersen, of Williamson County, Texas, as and Farmers State Bank, a Texas Banking Association, acting herein by and through its duly authorized officers, as lessee, and is as follows: I. - Lessor covenants that he_is the fee simple owner of Lots Nos. 6, 7, 8, 9, and 10, in Block No. 10, in.the City of Round Rock, Williamson County, Texas, together with all improvements thereon, and does lease said property, save and except, the scale presently on the premises, an area 3 feet east of the scale, the area between the scale and the alley and that portion of the exist- ing building which houses the scale beam, hereinafter sometimes called the leased premises, free and clear of all liens and en- cumbrances except such public utility easements, if any, as may be applicable thereto; that he has full power to lease the premises covered by this agreement; and that by paying the rent and performing its other obligations herein contained the lessee shall peaceably hold and enjoy 'the leased premises throughout the lease term, without interruption by the lessor or any person claiming by, through, or under him. - II. Lessor hereby leases and lets the above described real prop - erty,'together with all improvements thereon, to the lessee for use in the operation and conduct of any lawful. business or busi - • ,nesses. -- November, 1976, unless sooner terminated under the terms and pro- visions hereof. fIdT " �;.aL'w.x s n . III. . 1. This lease shall begin on the 1st day of- Decemb'gr,-44 , and shall terminate at 12:00 o'clock midnight on the 30th day of • ;m 1289r' 89 2. Lessee shall have the rights and options to renew and extend this lease in the manner hereinafter provided as follows: - (1) At the end of the primary term, lessee shall have the right to renew the extend this lease for a renewal period of 5 years ( "first renewal period "); (2) At the end of the first renewal period, lessee shall have the right to renew and extend this lease for an additional renewal period of 5 years ( "second renewal period "); (3) At the end of the second renewal period, lessee shall have the right to renew and extend this lease { for an additional renewal period of 5 years ( "third re- newal period"); (4) At the end of the third renewal period, lessee shall have the right to renew and extend this lease for an additional renewal period of 5 years ( "fourth renewal period"); lessee shall not have the right or option to renew or extend this lease for more than an aggregate of four renewal periods. 3. This lease shall be automatically renewed on the same terms and conditions herein contained, except that the rent shall be as provided in Section III.3 hereof, without the necessity for execu- tion of any further instrument by either party if the following conditions have been satisfied: (1) Immediately prior to the end of the primary term or the applicable renewal period, this lease shall be in full force and effect; and ' (2) Lessee has failed to give lessor a written termination notice not less than twelve (12) months prior to the end of the primary term or applicable renewal period setting forth lessee's election to terminate the lease. If a termination notice is not given to lessor on or before twelve -2- (12) months prior to the end of the primary term or any renewal period, this lease shall automatically be renewed at the end of the primary term and at the end of each renewal period. If a termination notice is given to lessor on or before twelve (12) months prior to (i) the end of the primary term or (ii) the end of the applicable renewal period, as the case may be, this lease shall terminate on the last day of the primary term or the last' day of the applicable renewal period, as the case may be. The lessor shall have free access to the leased premises at all reasonable times so long as this lease remains in effect. ,IV. V. :01 12L9F1: 893 1. So long as this lease remains in effect, both lessee and lessor agree and bind themselves to keep and to perform all of the covenants and agreements stated herein and lessee shall pay to lessor monthly rentals, in advance, as hereinafter provided. 2. Lessee shall pay to lessor a monthly rental of $175.00, in advance, on the 1st day of each month throughout the primary term of the lease. 3. During each of the renewal periods it is the'intention of the lessor and le see to provide as monthly rental for a sum of money equivalent c9 4he value, as of December 1, 1971, of the �UO.c u grid' sum of $3- 7.570.0, measured by the Revised Consumers' Price Index, published by the Bureau of Labor Statistics, U. S. Department of Labor (1967 equals 100), which on'said 1st day of September, 1971, reflected a figure of 122.4. Therefore, between the 1st and 30th days of November of each of the years 1976, 1981, 1986 and 1991, the amount of the monthly rental payments to be made during the next succeeding renewal period shall be fixed by increasing or de- creasing the same to such an extent, if any, as may be necessary in order to carry out the intention herein expressed, and the amount so fixed in each of those years shall be paid by lessee to lessor, in advance, on the 1st day of each month during the next ..:011289. : 814 . om of succeeding renewal period. - For example, assuming that on November 1, 1976, the Revised Consumers' Price Index reflects a figure of 130, the monthlg rental for the first renewal period of this lease shall be x 130, that is, $184.60 per month. • 122.4 4. If the publication of said Consumers' Price Index is discontinued prior to the expiration or termination of this lease, or if the present method of ascertaining the index figure is ma- terially or . substantially changed, a substitute standard shall be designated, upon the written application of either party hereto, by the Judge of any court of record in Williamson County,_ Texas. VI 1. During the term of this lease and in addition to the monthly rentals herein contracted to be paid by lessee to lessor, the lessee agrees to pay, at least thirty days prior to delin- quency, all taxes and assessments of every kind and character, but'' exclusive of any estate, inheritance, or income taxes, that may be levied upon or assessed against the above described real prop- erty and all improvements now or hereafter placed thereon. The lessee further agrees that at least fifteen days prior to the date ,of delinquency it will furnish to lessor either the original re- ceipts for taxes or assessments it has paid or photostatic copies of the same, and that if it shall fail to pay any taxes or assess- ments it is required to pay within the time herein stipulated, the lessor shall be privileged, though not required, to pay the same for the account of the lessee. • 2. If during the term of this lease any taxing authority shall give to lessee notice of any increase or proposed increase in the valuation for tax purposes of any improvement now located or hereafter erected upon the leased premises, lessee shall, within ten days after the receipt of each such notice, furnish to lessor the original or a photostatic copy of the same, lessor shall -4- be privileged, though not required, to protest each such increase VI I. -5- wi 1289F� : 895 in any way he deems advisable and in the name of either lessor x or lessee, or both of them, but at the sole cost and expense of the lessor. 1. In the event of damage to or destruction of any of the improvements now or hereafter located upon the leased pre- mises save and except the scale and scale beam,` the lessee agrees that it will with due diligence restore the same to their former condition at its own cost and expense within a reasonable time after such damage or destruction, it being understood, however, that there shall be applied to the cost of restoration any and all sums of money that may be paid by any insurance company or companies to lessee under the terms and provisions of any policy or policies of insurance upon said improvements, but subject, however, to the provisions of the next succeeding paragraph of this lease. 2. Lessee agrees to procure and to keep in force, in a company or companies acceptable to lessor, a policy or policies of fire and extended coverage insurance in an amount equal to at least 80% of the actual cash value of the improvements now or hereafter located upon the above described real property save and except the scale and scale beam, exclusive of any foundation be1o the surface of the ground, with loss payable to lessee for the benefit of lessor, lessee, and any mortgagee of the lessee, as their re- spective interests may appear, and to furnish to lessor an appro- priate certificate or appropriate certificates of such insurance. Lessor and lessee agree that all sums of money which are paid by any insurance company or companies under and by virtue of the terms of any such policy of insurance shall be held in trust by the lessee for the purpose of repairing or rebuilding the improvements upon the above described property save and except the scale and scale beam in such manner as may be required to restore them to the con- al 1289— : 899 dition in which the same were prior to any damage or destruc- tion, and that those sums shall be paid by the lessee during the progress of the work as the improvements are repaired or rebuilt, to the person or persons entitled to receive payment for the labor performed and the material furnished to repair or rebuild said improvements. 3. If the lesses shall fail to procure fire and extended . coverage insurance, as required by paragraph 2 of this Section VII, or shall fail to pay any premium therefor when it is due, the les- sor shall be privileged, though not required, to obtain said in- surance and to pay the premium or premiums thereon for the account of the lessee. 4. In the event the lessee does not with due diligence restore the improvements upon the leased premises to their former condition within a reasonable time after the same have been damaged or destroyed, then all sums of money paid to the lessee by any insurance company on account of damage to or destruction of said improvements shall be by the lessee paid to the lessor as liquidated damages for the breach of lessee's covenant to restore said im- provements to the condition in which the same were prior to any damage or destruction, and this lease shall continue in full force,. and effect. V VIII. 1. Lessee agrees to indemnify, save, and hold harmless the lessor of and from any and all claims, demands, or causes of ac- tion for damage either to person or to property occurring upon the leased premises, specifically excluding the area used or retained by lessor during the term of this lease, to procure and to keep in force for the benefit of both lessor and lessee a policy of public liability and property damage insurance, with $100,000.00/$300,000.00 / $5,000.00 limits by which the insurer shall be bound to pay on behalf of the insureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by -6- -7- 1289,, . 897 law because of bodily injury or death to the extent of $100,000.00 for each person and $300,000.00 for each accident and to pay on behalf of the insureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by law for damages because of injury to or destruction of property to the extent of $5,000.00 for each accident, and to furnish to lessor an appropriate certificate evidencing such in- surance. If the lessee shall fail to procure such insurance or to pay any premium therefor when it is due, the lessor shall be privileged, though not required, to obtain said insurance and to pay the premium or premiums thereon for the account of the lessee. 2. Lessor agrees to indemnify, save, and hold harmless the lessee of and from any and all claims, demands, or causes of action for damage either to person or to property occurring upon the premises retained or used by lessor during the term of this lease, to procure and to keep in force for the benefit of both lessee and lessor a policy of public liability and property damage insurance, with $ 100 ,000 .00/$300,000.00 /$5,000.00 limits by which the insurer shall be bound to pay on behalf of the insureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by law because of bodily injury or death to the extent of $100,000.00 for each person and $300,000.00 for each accident and to pay on behalf of the in- sureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by law for damages because of injury to or destruction of property to the extent of $5,000.00 for each accident, and to furnish to lessee an appropriate certificate evidencing such insurance. If the lessor shall fail to procure such insurance or to pay any' premium therefor when it is due, the lessee shall be privileged, though not required, to obtain said insurance and to pay the pre- mium or premiums thereon for the account of the lessor. wit 1289 F- 898 • . IX. Lessee may make such improvements to the leased premises as may be reasonably necessary to its use and enjoyment of the same, including the remodeling of the existing improvements, but all improvements to the leased premises made by the lessee shall remain thereon,' shall at all times be kept in good repair and condition, and shall become the property of the lessor upon the expiration or termination of this lease. Lessor may remove all fixtures and equipment it installs in or on the leased prem- ises provided it restores the premises to their original condi- tion. X. ; Lessor shall remove all gas and oil tanks and pumps, equipment and other personal property located on the leased prem- ises and shall restore the leased premises to'ground level. Fur- ther, lessor shall at all times maintain the scale, scale beam room and area surrounding scales in a neat and orderly manner, and shall not store trucks or equipment on the scale or other area retained by him or at the curb line adjoining the leased premises. XI. Lessee further covenants and agrees that, during the term of this lease, it will (1) keep the leased premises and all im- ) provements now or hereafter located thereon in good repair and r �,i condition; (2) pay all charges for water, gas, electricity, and . other utilities used on or furnished to the leased premises; (3) o comply with all laws of the United States of America and the State of Texas, all ordinances of the City of Round Rock, and all regu- lations and requirements of all federal, state, and municipal boards or authorities relating to the use and occupancy of the leased premises; and (4) upon the expiration or termination of this agreement surrender the leased premises in good repair and condi- tion, ordinary wear and tear excepted. XII. ' This lease can be extended after its termination from any -8- XIV. , 1. If the lessee shall default in the payment of any in- stallment of rent when it is due, or if it shall default in the per- formance of any of its other obligations herein stated, lessor agrees that he will give to lessee written notice of the existence of such default or claimed default, and the lessee shall have a period of thirty days within which to cure the same. If any de- fault hereunder is not cured within the time herein permitted, the lessor may, at his option, cancel this lease and retake pos- session of the leased premises, without prejudice to his right to recover past due rentals or damages or to declare all rentals hereunder immediately due and payable for the entire term of the lease, or the lessor may, at his option, enter upon the leased premises, remove all persons and property therefrom, store all such property in a public warehouse for the account of lessee and its cost and expense, and as lessee's agent relet the leased prop- erty and premises to any person, firm, or corporation of lessor's selection, crediting all rents received by him, first, to the pay- ment of the cost and expense of re -entry and repossession, and, second, to the payment of rentals contracted to be paid by lessee i hereunder, but provided, however, that the lessee shall not in any event be entitled to such sums of money, if any, as may be cause only by and with the written of the lessor, and any holding over by the lessee after such termination without the writ- ten consent of the lessor shall be a mere tenancy at will and may be terminated by lessor at any time without notice to lessee. XIII. The lessee may at any time mortgage its interest in the leased premises, but only to secure the payment of the actual rea- sonable cost of improvements to said premises, and it shall never encumber, or attempt to encumber, the lessor's interest therein. -9- wit 128 9N 899 to' 1289 F_" 90o . collected by lessor in excess of the amounts required to pay and discharge the lessee's obligations under this lease, and that any deficiency shall be paid by lessee to lessor on demand. In the event lessor exercises either of the foregoing options, he shall be privileged to through any agent, servant, or employee of his selection, and if possession of the leased premises is re- taken, whether by force or otherwise, the lessor shall not be liable to the lessee in any manner whatever, and lessee expressly waives any and all claims, demands, or causes of action which it may or might against the lessor by reason of any such re- entry.' 2. It is expressly stipulated that acceptance by the les- sor of any rental after its due date shall not be deemed to be or construed as a waiver of any future default on the part of the lessee either in the payment of the rentals required to be paid hereunder or in the performance of any of the other obligations of the lessee which are set out in this agreement. xv. Lessee shall be privileged to assign this lease, but upon condition that any assignee shall in writing assume the performance of the obligation herein imposed upon said lessee, and the lessee shall not in any event be relieved of any of its obligations here- under. The lessee shall also be privileged to sublet all or any part of the leased premises. XVI. If the lessor shall pay any sum for the account of the lessee under the terms and provisions of this contract, lessee agrees to pay to lessor, on demand, the amount or amounts so paid. Each such sum of money and all delinquent rentals shall bear in- terest from their due date until paid at the highest rate permitted by law. XVII. If it becomes necessary for lessor to secure the services -10- w •128DF M1 of an attorney in order to collect any amount due hereunder, or to enforce any of the provisions hereof, lessee agrees and binds itself to pay to lessor a reasonable attorney's fee, which shall e + bear interest from the date of its accrual at the highest rate permitted by law. XVIII. All sums becoming due and payable to lessor by lessee under the terms of this agreement shall be paid to him at Round Rock, Texas, or at such other place as may from time to time be desig- nated in writing by lessor. XIx. • 1. Any notice given to lessor hereunder shall be sent by registered mail addressed to him at Round Rock, Texas, and any notice given to lessee hereunder shall be sent by registered mail addressed to it at the Farmers State Bank, Round Rock, Texas. Each party may from time to time designate another place as the ad- dress to which such notices bhall be sent, such designation to be in writing and to be sent by registered United States Mail to the other party at the last address so designated by such other party; and such change of address shall become effective thirty days after the mailing of such notice, properly stamped and addressed. 2. Any such notice shall be deemed to have been given on the date of the mailing thereof the manner above set out. XX. PURCHASE OPTION Lessor does hereby grant and sell unto lessee the exclusive right and irrevocable option to purchase on the terms and conditions hereinafter set forth the property described in Article I hereof. 1. Lessee may exercise this option to purchase in the manner hereinafter set forth at any time from June 1, 1996 to December 1, 1996, by notifying lessor in writing that it has elected to exercise this option to purchase, accompanied by an earnest money cashier's check in the amount of $5,000.00, payable to the • voi 1289 order of Dallas Title and Guaranty Company, escrow agent, to be paid to lessor when the deed to said option property is delivered to lessee by lessor, and if not so paid, to'be paid and delivered as provided for hereinafter. 2. The purchase price for Lots 6 through 10 of Block 10, City of Round Rock, shall be $75,000.00. The purchase price to be paid in cash at closing. 3. The parties agree that the property shall be sold and conveyed free and clear of all liens and encumbrances of every kind and character except (a) ad valorem taxes for the year of sale, which taxes shall be prorated on the date of delivery of the deed, and (b) public utility easements of record as of the date of execution of this lease agreement. 4. Within ten days from the date of notice of exercise of . the option to purchase by lessee, lessor shall furnish to lessee a commitment by Dallas Title and Guaranty Company, to issue an owner's policy of guaranty title insurance for the total purchase price upon and covering the property, if any, for public utilities, ad valorem taxes for the current year, of record with the notation "none of record," the survey exception and the rights of parties in possession. 5. Upon the consummation of this transaction, lessor agrees to furnish to lessee an owner's policy of guaranty title insurance issued by Dallas Title and Guaranty Company, subject only to the exceptions stated in paragraph 3 hereof, and subject to the provisions set forth in paragraph 4, for the amount of the purchase price of the property to be then conveyed. 6. Within a reasonable time after lessor shall have fur- nished to lessee the owner's title commitment letter provided for in paragraph 4 hereof, lessor agrees to execute, acknowledge, and deliver to lessee a general warranty deed conveying the property described in paragraph 1 hereof, subject only to the exceptions, stated in paragraph 3 hereof, and when said deed is tendered for -12- delivery to lessee, the cash deposit by lessee to escrow agent shall be paid to lessor, and the additional cash representing the balance of the purchase price shall be paid to lessor by lessee. XXI. • All of the covenants, agreements, and conditions contained in this lease shall be construed as covenants running with the land and shall extend to and be binding upon the heirs, executors, administrators, successors, and assigns of the parties hereto. . xxII. The foregoing sections numbered I through XXI, inclusive, contain the entire agreement between the lessor and lessee, and both of them agree that this contract cannot be altered or varied by any prior, contemporaneous, or subsequent oral agreement, stipu- lation, representation, or understanding. Executed in two counterparts, each of which shall have the • force and effect of an original, effective the '2•2_ day of Noovem• be, 1971. ATI • �.� ; •, ' Cashier ,, THE STATE OF TEXAS COUNTY OF WILLIAMSON : Before me, the undersigned authority, ' on this day personally appeared Wallace Luersen, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same•for•,,the purposes and consideration therein expressed. .•••Given ,under my hand and seal of office, this .. • L2 day of es f , 1971.. ezegze p i s Wallace Lue s Less FARMERS STATE BANK BY O.2 Executive Vice President 1 Notary Publ c, Williamson County, Texas -13- m429 F JO3 (7) / ( ��� 10i 1280m. 9x04. • • THE ,STATE OF TEXAS COUNTY OF WILLIAMSON Before me, the undersigned authority, on this day personally appeared N. G. Whitlow, Executive Vice President of Farmers State Bank, a Texas Banking Association, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of Farmers State Bank, and in the capacity therein stated. j3i my hand and seal of office, this the ' day L� e4 =w 1\ / Notary Public, Williamson County, Texas -14- ADDENDUM NO..1 TO TIIAT LEASE AGREEMENT BETWEEN WALLACE LUERSEN, AS LESSOR AND FARMERS STATE BANK,'AS LESSEE OF EVEN DATE. SECTION I of said Lease is hereby amended by adding the following sentence: . "In the event Lessor elects to build, own and operate a retail store in Round Rock_, Texas on the leased property, Lessee shall sub -lease to Lessor upon 30 days prior written notice to Lessee for a term equal to the remainder of the primary'term of this Lease, with the right to renew as set forth in-this Lease for, an annual rental of $300.00 per annum, payable in 12 equal monthly installments in advance, plus taxes and assessments levied on said property, a tract, 30' X 60' out of the South West Corner of the leased property fronting 60' on Jo p .rsn s' Street and 30' on 134 o ' Street. EXECUTED this 2 day of December,'-1971. .1011289p.,,905 e J LESSEE E 4 410 . ,Ert+ , .. • ,••: RECORDERS MEMORANDUM All or parts of the text on this rate was not dearly legible for satisfactory recordation. EXHIBIT "B" ahlelinnni ECM airzr " • Vfll 7 l T ' E' STATE 'OF TEXAS! { reCE Q 1 r, COUNTY OF WILLIAMSON Before, me, the undersigned.' uti�ority',' on this day ?per bnally appeared = To C. Nelson ' 7r Cli'�irman of:helll gourd of, The Farmer State Bank of Round Rock : a Texas banking' corporation, . known tb me' to• be the; person and •'officer whose 5 iikme is subsc abed ,to the.; foregoing instramen , and acknowl edged to me. that, he execut thOesame # thie purpose and consideration therein expressed; ' as• the "act., cand d ed {` 'said orpo ation', and in th 4 F: capacity therein stated., 1 I� T . 1 7 ` z } i1 f ti •� I � � ;S ' �_� .. Given undbr my ?hand,;and seal ofti;office this ;�N ,, day of.. December , • 1289 PA 8t Mr. Wallace Luersen Round Rock, TX 78664 Dear Mr. Luersen: Accepted and agreed to: RA /clh December 20, 1985 The purpose of this letter is to confirm the agreement of the City of Round Rock ( "City ") to acquire and your consent to sell all of Lots 6 through 10, Block 10, City of Round Rock, currently owned by you and leased to the City. It is agreed that this transaction shall be in accordance with the terms of the purchase option stated in that lease agreement dated December 22, 1971 with such revisions as are mutually agreed to by the parties; however, it is further agreed that such transaction will be closed and title transferred on or before February 28, 1986. Sincerely yours, By: /L l 4 Wallace Luersen 45713 CITY OF ROUND ROCK °FFICMAC RECORDS WIWAMBON COUNTY TEXAS Tguotag -t -9 STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on the 2,3 day of December 1985 by Donald L. Wolf, City Attorney of the City of Round Rock, a municipal corpo- ration on behalf of said corporation. STATE OF TEXAS COUNTY OF WILLIAMSON This instrument was acknowledged before me on the day of December 1985 by Wallace Luersen. STATE OF 1EXAS COUNTY OF WILLIAMSON I hereby certify that this Instrument was FILED on the date and at the time stamped hereor, by me; and was duly RECORDED, in the Volume :nd Page of the named RECORDS of Williamson .;aunty, Texas, as stamped hereon by me, on DEC 3 01985 WILLIAMSON COUNTY, TEXAS Notary S tate f Texa N Y Public, a Commission Expires: 7 -1 —eflo Fern ;) f Ak. 2' • 4t ;v, 73- ;01 1289 i 885 Notary Public, State of Tex Commission Expires: x �(� ;UI 1289 PA' '886 STATE OF TEXAS * COUNTY OF WILLIAMSON CITY OF ROUND ROCK ' 48 '714 I, JOANNE LAND, City Secretary of the City of Round Rock, Texas do hereby certify that the above and foregoing is a true and correct copy of a resolution passed and adopted by the City Council of the City of Round Rock, Texas, at a meeting held on the /© day of i...0_,CA , 195 which is recorded in the minutes of the City of Round Rock in book /(A Page . WITNESSED by my hand and seal of the City of Round Rock, Texas on this / % day of ) 2 CY/nh1 LJ , 19 S5 . OFFICIAL' RECORDS WILLIAMSON cou[m.. tsm* NE LAND, City ecretary of Round Rock STATE OF TEXAS COUNTY OF WILLIAMSON * This instrument was acknowledged before me on the l g day of December, 1985, by Joanne Land, City Secretary, City of 'Round Rock, Texas, a municipal corporation, on behalf of said corporation. r P Cr O Notary Public, State of Texas / " 4'- s . FERRIS F. AKINS, JR. Notary Public My Commission Expires ? l S `$s11oLa -8 - -olccj ATTEST: RESOLUTION NO. 716 /[ WHEREAS, the City Council of the City of Round Rock has expressed a desire for a new City Hall Complex; and WHEREAS, the City Hall Complex Project has been in negotiations for several months; and WHEREAS, the Round Rock City Council is desirous of executing any and all documents necessary to complete the project; NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ROUND ROCK, TEXAS That the Mayor is hereby authorized and directed to execute any ` and all documents necessary to provide funding for the City Hall Complex, complete the land exchange and enter into Ground Lease and Office Lease Agreements; said authority shall extend to making changes to the documents attached necessary to conform the documents to the intent of the parties and to meet legal requirements as may arise in the orderly closing of said transaction. RESOLVED this /0t day of Qtawb n, 1985. MIKE ROBINSON, Mayor City of Round Texas ., nl E OF 1EXAS COUNTY OF WILLIAMSON I hereby certify that this Instrument was FILED In the date and at the time stamped hereon ' y me; and was duly RECORDED, in the Volume nd Page of the named RECORDS of Williamson ; Texas, as stamped hereon by me, on DEC 301985 0. COUNTY CLERR d a WILLIAMSON COUNTY, TEXAS rf,l 1289P 887- - -+,,, • 1 -k rol 1289W 864 LESSOR: Wallace Luersen LESSEE: City of Round Rock ESTOPPEL CERTIFICATE OFFICIAL REiORDS WILWUI&ON COUNTY TEXAS 46'712' LESSOR'S ADDRESS: . ,Round Rock, Texas 78664 LESSEE'S ADDRESS: 214 East Main, Round Rock, Texas 78664 ASSIGNEE: Round Rock Partners, a Colorado general partnership ASSIGNEE'S ADDRESS: Suite 500, 1860 Blake Street Denver, Colorado 80202 LEASE: Lease dated December 22, 1971 between Lessor and Farmers State Bank LENDER: MBank Austin, National Association, Trustee S5 t101a� -"la LENDER'S ADDRESS: 221 W. 6th Street Austin, Texas 78701 REAL PROPERTY: Lot 6, 7, 8, 9, and '10, Block 10, City of Round Rock, Williamson County, Texas,' according the map or plat of record in Volume 25, Page 314, Deed Record, Williamson County, Texas. Lessor has previously leased the Real Property described above to Farmers State Bank which lease has been assigned to Lessee, and which lease is now being assigned to Assignee. As a condition for such transaction, however, Assignee and the Lender require the Lessor to verify the following information concerning the Lease. Lessor and Lessee understand that Assignee and the Lender will be relying upon this information in connection with the closing of this transaction. 1. Copies of the Lease and Assignment of Lease to Lessee are attached as Exhibits A and B. Said Lease is in full force and effect as of this date. 2. The Lease has not been renewed, extended, modified or amended and will not be renewed, extended, modified, or amended without the prior written consent of Lender. 3. The Lessor ,is the present owner of the Real Property. 4. All amounts required to be paid as of this day under the terms of the Lease have been paid in full. 5. No default presently exists under the terms of the Lease. - 6. Notwithstanding any other provision in the Lease the Assignment of the Lease of the Real Property by Lessee to Assignee and the loan to be made by the Lender, will not cause the Lease to be in default, and the Lessor hereby consents to the Assignment of the Lease to Assignee. 7. In the event of any default or failure by Assignee or Lessee to pay any amount coming due under the Lease, or to perform any covenant or condition contained in the Lease, Lessor agrees to give written notice of such default or failure to Lender at the above address, or such other address as may hereafter be designated in writing by Lender, and to allow Lender Thirty (30) days to remedy such default. 1 -k ` 8. Lender agrees to accept payments on the lease from Assignee or from Lender with the understanding that the Lender in no way obligates itself to make such payments. 9. Lessor agrees that it will not modify, cancel or terminate the Lease nor will it sell, transfer, or otherwise encumber the real property without first giving Lender an opportunity to cure any default thereunder. 10. Lessor hereby stipulates and agrees and'by these presents does hereby include in the property covered by this Lease the following property previously excluded from the Lease: the scale presently on the premises, an area 3 feet east of the scale, the area between the scale and the alley and that portion of the existing building which houses the scale beam. 11. Lessor hereby waives its right to sublease that tract of 30' X 60' as described in Addendum No. 1 to Lease Agreement dated December 22, 1971, and by these presents agrees to terminate any such rights to sublease said property. EXECUTED this 7 - Pra day of D eve 6 , 1985. THE STATE OF TEXAS COUNTY OF WILLIAMSON LESSOR - 2 - •:o 1289 18L5 ALLACE LUERSEN This instrument was acknowledged before me on the 7-3 — day of December, 1985, by Wallace Luersen. Printed Name Commission Expires: FERRIS F. AKINS, JR. Notary Public My Commission Expires .rot 1289 8E6 THE STATE OF TEXAS " : COUNTY OF TRAVIS : This Lease Agreement is entered . into on the date last herein writ- ten between Wallace Luersen, of Williamson County, Texas, as lessor, and Farmers State Bank, a Texas Banking Association, acting herein by and through its duly authorized officers, as lessee, and is as follows: I. Lessor covenants that he, is the fee simple owner of Lots Nos. 6, 7, 8, 9, and 10, in Block No. 10, in_the City of Round Rock, Williamson County, Texas, together with all improvements thereon, and does lease said property, save 'and except, the scale presently on the premises, an area 3 feet east of the scale, the area between the scale and the alley and that portion of the exist- ing building which houses the scale beam, hereinafter sometimes called the leased premises, free and clear of all liens and en- cumbrances except such public utility easements, if any, as may ' be applicable thereto; that he has full power to lease the premises covered by this agreement; and that by paying the rent and performing its other obligations herein contained the lessee shall peaceably hold and enjoy the leased premises throughout the lease term, without interruption by the lessor or any person claiming by, through, or under him. II. ,Lessor hereby leases and lets the above described real prop- erty, together with all improvements thereon, to the lessee for use in the operation and conduct of any lawful business or busi -. .nesses. III. - 1,e 7 . - '7 7 Z_ 1., This lease shall begin on the 1st day of- Decemb - er, }, and shall terminate at 12:00 o'clock midnight on the 30th day of - November, 1976, unless sooner terminated under the terms and pro- visions hereof. lutul ./011289f; f 867 • 2. Lessee shall have the rights and options to renew and extend this lease in the manner hereinafter provided as follows: (1) At the end of the primary term, lessee shall have the right to renew the extend this lease for a renewal period of 5 year ( "first renewal period "); (2) At the end of the first renewal period, lessee shall have the right to renew and extend this lease for an additional renewal period of 5 years ( "second renewal period "); (3) At the end of the second renewal period, lessee shall have the right to renew and extend this lease for an additional renewal period of 5 years ( "third re- newal period "); (4) At the end of the third renewal period, lessee shall have the right to renew and extend this lease for an additional renewal period of 5 years ( "fourth renewal period "); lessee shall not 'have the right or option to renew or extend this lease for more than an aggregate of four renewal periods. 3. This lease shall be automatically renewed on the same terms and conditions herein contained, except that the rent shall be as provided in Section 111.3 hereof, without the necessity for execu- tion of any further instrument by either party if the following conditions have been satisfied: (1) Immediately prior to the end of the primary term or the applicable renewal period, this lease shall be in full force and effect; and (2) Lessee has failed to give lessor a written termination notice not less than twelve (12) months prior to the end of the primary term or applicable renewal period setting forth lessee's election to terminate the lease. If a termination notice is not given to lessor on or before twelve -2- :nt 1289e 868 (12) months prior to the end of the primary term or any renewal period, this lease shall automatically be renewed at the end of the primary term and at the end of each renewal period. If a termination notice is given to lessor on or before twelve (12) months prior to (i) the end of the primary term or (ii) the end of the applicable renewal period, as the case may be, this lease shall terminate on the last day of the primary term or the last day of the applicable renewal period, as the case may be. ,IV. The lessor shall have free access to the leased premises at all reasonable times so long as this lease remains in effect. v . 1. So long as this lease remains in effect, both lessee and lessor agree and bind themselves to keep and to perform all of the covenants and agreements stated herein and lessee shall pay to lessor monthly rentals, in advance, as hereinafter provided. 2. Lessee shall pay to lessor a monthly rental of $175.00, in advance, on the 1st day of each month throughout the primary term of the lease. ' - 3. During each of the renewal periods it is the intention of the lessor and le see to provide as monthly rental for a sum of,money equivalent 4he value, as of December 1, 1971, of the ,2uwc' m r-1 : sum of $3- 7.5 -e-0, measured by the Revised Consumers' Price Index, published by the Bureau of Labor Statistics, U. S. Department of Labor (1967 equals 100), which on said 1st day of September, 1971, reflected a figure of 122.4. Therefore, between the 1st and 30th days of November of each of the years 1976, 1981, 1986 and 1991, the amount of the monthly rental payments to be made during the next succeeding renewal period shall be fixed by increasing or de- creasing the same to such an extent, if any, as may be necessary in order to carry out the intention herein expressed, and the amount so fixed in each of those years shall be paid by lessee to lessor, in advance, on the 1st day of each month during the next -3- `p , /.945/ �0 ZG u succeeding renewal period. For example, assuming that on November 1, 1976, the Revised Consumers' Price Index reflects a figure of 130, the monthly rental for the first renewal period of this lease shall be x 130, that is, $184.60 per month. 122.4 4. If the publication of said Consumers' Price Index is discontinued prior to the expiration or termination of this lease, or if the present method of ascertaining the index figure is ma- terially or substantially changed, a substitute standard shall be designated, upon the written application of either party hereto, by the Judge of any court of record in Williamson County, Texas. VI. 1. During the term of this lease and in addition to the monthly rentals herein contracted to be paid by lessee to lessor, the lessee agrees to pay, at least thirty days prior to delin- quency, all taxes and assessments of every kind and character, but exclusive of any estate, inheritance, or income taxes, that may be levied upon or assessed against the above described real prop- erty and all improvements now or hereafter placed thereon. The lessee further agrees that at least fifteen days prior to the date of delinquency it will furnish to lessor either the original re- ceipts for taxes or assessments it has paid or photostatic copies of the same, and that if it shall fail to pay any taxes or assess- ments it is required to pay within the time herein stipulated, the lessor shall be privileged, though not required, to pay the same for the account of the lessee. - 2. If during the term of this lease any taxing authority -4- 1289N 869 shall give to lessee notice of any increase or proposed increase in the valuation for tax purposes of any improvement now located or hereafter erected upon the leased premises, lessee shall, within ten days after the receipt of each such notice, furnish to lessor the original or a photostatic copy of the same, and lessor'shall be privileged, though not required, to protest each such increase 1289- -87(1 in any way he deems advisable and in the name of either lessor or lessee, or both of them, but at the sole cost and expense of the lessor. - VII. 1. In the event of damage to or destruction of any of the improvements now or hereafter located upon the leased pre- mises save and except the scale and scale beam, the lessee agrees that it will with due diligence restore the same to their former condition at its own cost and expense within a reasonable time after such damage or destruction, it being understood, however, that there shall be applied to the cost of restoration any and all sums of money that may be paid by any insurance company or companies to lessee under the terms and provisions of any policy or policies of insurance upon said improvements, but subject, however, to the provisions of the next succeeding paragraph of this lease. 2. Lessee agrees to procure and to keep in force, in a company or companies acceptable to lessor, a'policy or policies of fire and extended coverage insurance in an amount equal to at•least 80% of the actual cash value of the improvements now or hereafter located upon the above described real property save and except the scale and scale beam, exclusive of any foundation below the surface of the ground, with loss payable to lessee for the benefit of lessor, lessee, and any mortgagee of the lessee,'as their re- spective interests may appear, and to furnish to lessor an appro- priate certificate or appropriate certificates of such insurance. Lessor and lessee agree that all sums of money which are paid by any insurance company or companies under and by virtue of the terms of any such policy of insurance shall be held in trust by the lessee for the purpose of repairing or rebuilding the improvements upon the above described property save and except the scale and scale beam in such manner as may be required to restore them to the con- -5- dition in which the same were prior to any damage or destruc- tion, and that those sums shall be paid by the lessee during the • progress, of the work as the improvements are repaired or rebuilt, to the person or persons entitled to receive payment for the labor performed and the material furnished to repair or rebuild said improvements. 3. If the lesses shall fail to procure fire and extended • coverage insurance, as required by paragraph 2 of this Section VII, or shall fail to pay any premium therefor when it is due, the les- sor shall be privileged, though'not required, to obtain said in- surance and to pay the premium or premiums thereon for the account of the lessee. - 4. In the event the lessee does not with due diligence restore the improvements upon the leased premises to their former condition within a reasonable time after the same have been damaged or destroyed, then all sums of money paid to the lessee by any - insurance company on account of damage to or destruction of said improvements shall be by the lessee paid to the lessor as liquidated damages for the breach of lessee's covenant to restore said im- * provements to the condition in which the same were prior to any - 4 damage or destruction, and this lease shall continue in full force and effect. 'r VIII. Lessee agrees to indemnify, save, and hold harmless the lessor of and from any and all claims, demands, or causes of ac- tion for damage either to person or to property occurring upon the leased premises, specifically excluding the area used or retained , by lessor during the term of this lease, to procure and to keep in force for the benefit of both lessor and lessee a policy of public liability and property damage insurance, with $100,000.00/$300,000.00 / $5,000.00 limits by which the insurer shall be bound to pay on behalf of the insureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by -6- 1289NA. 871 sal 1289 872 8' l2 -7- law because of bodily injury or death to the extent of $100,000.00 for each person and $300,000.00 for each accident and to pay on behalf of the insureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by law for damages because of injury to or destruction of property'to the extent of $5,000.00 for each accident, and to furnish to lessor an appropriate certificate evidencing such in- surance. If the lessee shall fail to procure such insurance or to pay any premium therefor when it is due, the lessor shall be - privileged, though not required, to obtain said insurance and to pay the premium or premiums thereon for the account of the lessee. 2. Lessor agrees to indemnify, save, and hold harmless the lessee of and from any and all claims, demands, or causes of action for damage either to person or to property occurring upon , the premises retained or used by lessor during the term of this lease, to procure and to keep in force for the benefit of both lessee and lessor a policy of public liability and =property damage insurance, with $ 100 ,000.00/$300,000.00 /$5,000.00 limits by which the insurer shall be bound to pay on behalf of the insureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by law because of bodily injury or death to the extent of $100,000.00 for each person and $300,000.00 for each accident and to pay on behalf of the in- sureds all sums which either of them shall become obligated to pay by reason of the liability imposed upon either of them by law for damages because of injury to or destruction of property to the extent of $5,000.00 for each accident, and to furnish to lessee an appropriate certificate evidencing such insurance. If the lessor shall fail to procure such insurance or to pay any premium therefor when it is due, the lessee shall be privileged, though not required, to obtain said insurance and to pay the pre- mium or premiums thereon for the account of the lessor. IX. Lessee may make such improvements to the leased premises as may be reasonably necessary to its use and enjoyment of the same, including the remodeling of the existing improvements, but all improvements to the leased premises made by the lessee shall remain thereon, shall at all times be kept in good repair and condition, and shall become the property of the lessor upon the expiration or termination of this lease. Lessor may remove all fixtures and equipment it installs in or on the leased prem- ises provided it restores the premises to their original condi- tion. X. Lessor shall remove all gas and oil tanks and pumps, equipment and other personal property located on the leased prem- • ises and shall restore the leased premises to ground level. Fur- ther, lessor shall at all times maintain the scale, scale beam room and area surrounding scales in a neat and orderly manner, and shall not store trucks or equipment on the scale or other area retained by him or at the curb line adjoining the leased premises. XI. Lessee further covenants and agrees that, during the term of this lease, it will (1) keep the leased premises and all im- ', provements now or hereafter located thereon in good repair and \\`• Y condition; (2) pay all charges for water, gas, electricity, and . other utilities used on or furnished to the leased premises; (3) o comply with all laws of the United States of America and the State of Texas, all ordinances of the City of Round Rock, and all regu- - lations and requirements of all federal, state, and municipal boards or authorities relating to the use and occupancy of the leased premises; and (4) upon the expiration or termination of this agreement surrender the leased premises in good repair and condi- tion, ordinary wear and tear excepted. XII. This lease can be extended after its termination from any -8- 1 289NA 18•/3 1289P,.. 8'74. • cause only by and with the written consent of the lessor, and any holding over by the lessee after such termination without the writ- ten consent of the lessor shall be a mere tenancy at will and may be terminated by lessor at any time without notice to lessee. XIII. The lessee may at any time mortgage its interest in the leased premises, but only to secure the payment of the actual rea- sonable cost of improvements to said premises, and it shall never encumber, or attempt to encumber, the lessor's interest therein. xiv. 1. If the lessee shall default in the payment of any in- stallment of rent when it is due, or if it shall default in the per- formance of any of its other obligations herein stated, lessor agrees that he will give to lessee written notice of the existence of such default or claimed default, and the lessee shall have a period of thirty days within which to cure the same. If any de- fault hereunder is not cured within the time herein permitted, the lessor may, 'at his option, cancel this lease and retake pos- session of the leased premises, without prejudice to his right to recover past due rentals or damages or to declare all rentals hereunder immediately due and payable for the entire term of the lease, or the lessor may, at his option, enter upon the leased premises, remove all persons and property therefrom, store all such property in a public warehouse for the account of lessee and ' Y its cost and expense, and as lessee's agent relet the leased prop- erty and premises to any person, firm, or corporation of lessor's selection, crediting all rents received by him, first, to the pay- ment of the cost and expense of re -entry and repossession, and, second, to the.payment of rentals contracted to be paid by lessee - hereunder, but provided, however, that the lessee shall not in any event be entitled to such sums of money, if any, as may be -9- collected by lessor in excess of the amounts required to pay and discharge the lessee's obligations under this lease, and that any deficiency shall be paid by lessee to lessor on demand. In the event lessor exercises either of the foregoing options, he shall be privileged to act through any agent, servant, or employee of his selection, and if possession of the leased premises is re- taken, whether by force or otherwise, the lessor shall not be liable to the lessee in any manner whatever, and lessee expressly waives any and all claims, demands, or causes of action which it may or might have against the lessor by reason of any such re- entry: 2. It is expressly stipulated that acceptance by the les- sor of any rental after its due date shall not be deemed to be or construed as a waiver of any future default on the part of the lessee either in the payment of the rentals required to be paid hereunder or in the performance of any of the other obligations of the lessee which are set out in this agreement. 'xv. Lessee shall be privileged to assign this lease, but upon condition that any assignee shall in writing assume the performance of the obligation herein imposed upon said lessee, and the lessee shall not in any event be relieved of any of its obligations here- under. The lessee shall also be privileged to sublet all or any part of the leased premises. If the lessor shall pay any sum for the account of the lessee under the terms and provisions of this contract, lessee agrees to pay to lessor, on demand, the amount or amounts so paid. Each such sine of money and all delinquent rentals shall bear in- by law. • XVI. terest from their due date until paid at the highest rate permitted XVII. If it becomes necessary for lessor to secure the services -10- 1289N.: 8 75 • ;nt .128J 876 of an attorney in order to collect any amount due hereunder, or to enforce any of the provisions hereof, lessee agrees and binds itself to pay to lessor a reasonable attorney's fee, which shall ,4 bear interest from the date of its accrual at the highest rate permitted by law. XVIII. All sums becoming due and payable to lessor by lessee under the terms of this agreement shall be paid to him at Round Rock, Texas, or at such other place as may from time to time be desig- nated in writing by lessor. XIx. 1. Any notice given to lessor hereunder shall be sent by registered addressed to him at Round Rock, Texas, and any notice given to lessee hereunder shall be sent by registered mail addressed to it at the Farmers State Bank, Round Rock, Texas. Each party may from time to time designate another place as the ad- dress to which such notices Shall be sent, such designation to be in writing and to be sent by registered United States Mail to the other party at the last address so designated by such other party; and such change of address shall become effective thirty days after the mailing of such notice, properly stamped and addressed. 2. Any such notice shall be deemed to have been given on the date of the mailing thereof in the manner above set out. XX. PURCHASE OPTION Lessor does hereby grant and sell unto lessee the exclusive right and irrevocable option to purchase on the terms and conditions hereinafter set forth the property described in Article I hereof. 1. Lessee may exercise this option to purchase in the manner hereinafter set forth at any time from June 1, 1996 to December 1, 1996, by notifying lessor in writing that it has elected to exercise this option to purchase, accompanied by an earnest money cashier's check in the amount of $5,000.00, payable to the ;0.11289F, .: 877 order of Dallas Title and Guaranty Company, escrow agent, to be paid to lessor when the deed to said option property is delivered to lessee by lessor, and if not so paid, to be paid and delivered as provided for hereinafter. - 2. The purchase price for Lots 6 through 10 of Block 10, City of Round Rock, shall be $75,000.00. The purchase price to be paid in cash at closing. 3. The parties agree that the property shall be sold and conveyed free and clear of all liens and encumbrances of every kind and character except (a) ad valorem taxes for the year of sale, which taxes shall be prorated on the date of delivery of the deed, and (b) public utility easements of record as of the date of execution of this lease agreement. - 4. Within ten days from the date of notice of exercise of. the option to purchase by lessee, lessor shall furnish to lessee a commitment by Dallas Title and Guaranty Company, to issue an owner's policy of guaranty title insurance for the total purchase price upon and covering the property, if any, for public utilities, ad valorem taxes for the current year, restrictions of record with the notation "none of record," the survey exception and the rights of parties in possession. 5. Upon the consummation of this transaction, lessor agrees to furnish to lessee an owner's policy of guaranty title insurance issued by Dallas Title and Guaranty Company, subject only to the exceptions stated in paragraph - 3 hereof, and subject to the provisions set forth in paragraph 4, for the amount of the purchase price of the property to be then conveyed. 6. Within a reasonable time after lessor shall have fur- nished to lessee the owner's title commitment letter provided for in paragraph 4 hereof, lessor agrees to execute, acknowledge, and deliver to lessee a general warranty deed conveying the property described in paragraph 1 hereof, subject only to the exceptions stated in paragraph 3 hereof, and when said deed is tendered for -12- lm 1289K:8:8 • delivery to lessee, the cash deposit by lessee to escrow agent shall be paid to lessor, and the additional cash representing the balance of the purchase price shall be paid to lessor by lessee. XXI. • All of the covenants, agreements, and conditions contained in this lease shall be construed as covenants running with the land and shall extend to and be binding upon the heirs, executors, administrators, successors, and assigns of the parties hereto. • - XXII. The foregoing sections numbered I through XXI, inclusive, contain the entire agreement between the lessor and lessee, and both of them agree that this contract cannot be altered or varied by any prior, contemporaneous, or subsequent oral agreement, stipu- lation, representation, or understanding. Executed in two counterparts, each of which shall have the • Pe c-, force and effect of an original, effective the 22_ day of Novcm- ber-, 1971. ,1111111/, 1 \ 1 :( ��'l. • • 1 ATI • • • I I , 7 111 :t,11 11 � ' THE STATE OF TEXAS 11' Wallace Lue Lessors / J GZ/JyJ� /FARMERS STATE BANK By 7d -v/ . Executive Vice President COUNTY OF WILLIAMSON : : Before me, the undersigned authority, on this day personally appeared Wallace Luersen, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the $ame'for,,the purposes and consideration therein expressed. YFoe •••Given :Under my hand and seal of office, this ' 2 z..7 day of eii•dae , 19 71:•. '1 .. ( 7) I Notary Pub c, Williamson County, Texas -13- THE STATE OF TEXAS COUNTY OF WILLIAMSON Before me, the undersigned authority, on this day personally appeared N. G. Whitlow, Executive Vice President of Farmers State Bank, a Texas Banking Association, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of Farmers State Bank, and in the capacity therein stated. ;•� pi under my hand and seal of office, this the ' 2 day Novembar"; • • •J_$ ,71•. 706 . /(IX Notary Public, Williamson County, Texas -14- 1289 PA : 879 128 l 880 . ADDENDUM NO. 1 TO THAT LEASE AGREEMENT BETWEEN WALLACE LUERSEN, AS LESSOR AND FARMERS STATE DANK,.AS LESSEE OF EVEN DATE SECTION I of said Lease is hereby amended by adding thereto the following sentence: "In the event Lessor elects to build, own and operate a retail store in Round Rock, Texas on the leased property, Lessee shall sub -lease to Lessor upon 30 days prior written notice to Lessee for a term equal to the remainder of the primary term of this Lease, with the right to renew as set forth in this Lease for an annual rental of $300.00 per annum, payable in 12 equal'monthly installments in advance, plus taxes and assessments levied on said property, a tract 30' X 60' out of the South West Corner of the leased property fronting 60' on j.nw.rnrnrs Street and 30' on ,434 Street. EXECUTED this 2 day of December, 1971. LESSEE • ATCORDERS MEMORANDUM A11 or part, of the text on this nage was no' coariy legible for satisfactory recordation. ' EXHIBIT "B" ' 4 0 0 ,o1 1289p 916 GROUND LEASE AGREEMENT 4713 THIS LEASE AGREEMENT made as of the /02., day of _Q , 1985, by and between CITY OF ROUND ROCK, TEXAS, a municipal corporation of the State of Texas, (hereinafter called "Lessor ") and ROUND ROCK PARTNERS, a Colorado general partnership (hereinafter called "Lessee "). WITNESSETH: ' ARTICLE ONE Grant of Demised Premises and Description of Condition Thereof 1.01 Grant of Premises. Lessor, for and in consideration of the rents herein- after reserved and to be paid by Lessee and in further consideration of the satisfactory performance of the covenants and agreements hereinafter set forth to be kept and per- formed by Lessee, has granted, demised and leased and by these presents does GRANT, DEMISE AND LEASE unto the Lessee those certain premises situated in the County of Williamson, State of Texas, and more particularly described on Exhibit "A" attached hereto and incorporated herein by reference; TOGETHER WITH: (a) All and singular the appurtenances, rights, privileges and easements in any wise now or hereafter appertaining thereto; and - (b) All landscaping improvements now or hereafter appertaining thereto. Said property being hereinafter sometimes referred to as the "Land" and sometimes hereinafter referred to as the "Demised Premises ". ARTICLE TWO Rent 2.01 Amount of Rent. Lessee covenants to pay to Lessor as rent for the Demised Premises the annual sum of Ten and No One Hundredths Dollars ($10.00) payable in annual installments, in advance on the first day of each January during the term of this Lease; provided, however, if this Lease commences on any day other than January 1, a prorated amount of rental for the first fractional calendar year shall be due and payable (in addition to the normal annual rental) on the first day of January which next follows the Commencement Date. 2.02 Place of Payment. Lessee shall pay all such rent to Lessor in lawful money of the United States of America, at such place as Lessor may from time to time designate in writing, and in the absence of such designation, as follows: City of Round Rock, Texas 214 East Main Round Rock, Texas 78664 Attn: City Manager 2.03 Rent To Be Net. It is the Intention of the parties that the rent shall be paid to Lessor absolutely net, without deduction of any nature whatsoever except as in this Lease otherwise expressly provided. OFFICIAL RECORDS 11W11.14AMS.o.N gouts raxAn 'd ∎No l s,-p1a(1 ARTICLE THREE Term 3.01 Demised Term. Unless this Lease shall sooner end and terminate as hereinafter provided, the term of this Lease shall be for the period of ninety -nine (99) years, commencing on the date hereof (the "Commencement Date "). Said ninety -nine (99) year period is hereinafter called the "Demised Term ". 3.02 Partial Termination. In the event that the "Office Lease" (as such term is hereinafter defined in Section 22.01) terminates with respect to the land on which Building "C" or Council Chambers is proposed to be constructed (which termination shall be in accordance with Section 1.53 of the Office Lease), this Lease shall, simultaneously with such partial termination of the Office Lease, terminate with respect to the land area on which Building "C" and /or Council Chambers (as the case may be) was proposed to be constructed; provided however, the partial termination shall be contingent upon compliance with each of the following: _ (a) Lessor shall, prior to such partial termination, obtain and deliver to Lessee, the written approval of such partial termination from the owner of the bonds issued by Round Rock Industrial Development Corporation in an amount of not less than $i,595,000.00 which are secured by a leasehold mortgage on Lessee's interest herein (the "Bonds "), together with written assurances in form reasonably acceptable to Lessee that the partial termination will not adversely affect the Bonds or Lessee's obligation for payment thereof; (b) If such partial termination would cause the balance of the Demised Premises to be In violation of any subdivision, zoning, land use or similar laws, ordinances or regulations, Lessor shall, at Its expense, obtain all variances, approvals, subdivision platting and permits from governmental authorities of appropriate jurisdiction to allow the use of both properties subsequent to the partial termination without violation of such laws, ordinances and regulations. (c) This Lease shall remain In full force and effect with respect to the balance of the Demised Premises subsequent to such partial termination. ARTICLE FOUR vol 417 Payment of Taxes, Assessments and Other Impositions 4.01 Payment of Impositions. Lessee agrees to pay, as additional rent, before any fine, penalty, Interest or cost 'may be added thereto for the non - payment thereof, all real estate taxes, assessments, water and sewer rates and charges and other governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever, including but not limited to assess- ments for public improvements or benefits (all of which taxes, assessments, water rates or charges, levies and other governmental charges are hereinafter referred to as "imposi- tions"), which as a result of the existence of the land or the buildings, or both, are assessed, levied, confirmed, imposed or become a lien upon the land or upon the build- ings, or both, or become payable during the term of this Lease; provided, however, that if by law any such imposition is payable or may at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of such imposi- tion), Lessee may pay the same (and any accrued interest on the unpaid balance of such imposition) In installments as the same, respectively, become due and before any fine, penalty, interest or cost may be added thereto for the non - payment of any such install- ment and interest; and provided further that any imposition relating to a fiscal period of the taxing authority, a part of which period is included within the term of this Lease or any renewal hereof and a part of which is included in a period of time after the termina- tion of the term of this Lease or any renewal hereof, shall (whether or not such imposi- tion shall be assessed, levied, confirmed, imposed or become a lien upon the land or upon the buildings 'or both or shall become payable during the term of this Lease) be adjusted as between Lessor and Lessee as of the termination of the term of this Lease, so that Lessor shall pay that proportion of such imposition which that part of such fiscal period included in the period of time after the termination of the term of this Lease bears to such fiscal period, and Lessee shall pay the remainder thereof. With respect to any imposition for public improvements or benefits which by law is payable, or at the option of the taxpayer may be paid, in installments, Lessor shall pay the installments thereof which become due and payable subsequent to the termination of the term of this Lease, and Lessee shall pay those installments which become due and payable during the term of this Lease. -2- roi 1289 K.•` 918 4.02 Lessee Not To Pay Certain Taxes. Nothing in this Lease shall require Lessee to pay any franchise, estate, inheritance, succession, capital levy or transfer tax of Lessor, or any income, excess profits or revenue tax or any other tax, assessment, charge or levy upon the rent payable by Lessee under this Lease, except to the extent provided in the preceding Section. . 4.03 Proof of Payment. With thirty days following written request therefor, Lessee shall furnish to Lessor copies of official receipts of the appropriate taxing author- ity or other proof satisfactory to Lessor, evidencing the payment of all general real estate taxes on the land which would be delinquent if they had not then been paid. 4.04 Right To Contest Impositions. Lessee shall have the right to contest the amount or validity of any imposition by appropriate legal proceedings, but this shall not be construed in any way as modifying Lessee's covenant to pay such imposition at the time and in the manner as in this article provided, unless: (a) The legal proceedings shall operate to prevent the collection of the imposition so contested and the sale of the land or any part thereof and the buildings or any part thereof to satisfy the same; and (b) Lessee (unless said imposition has been paid in full under protest) shall deposit with Lessor security reasonably satisfactory to Lessor in an amount suffi- cient to pay the imposition, together with all interest and penalties in connection there- with, and all charges that may be 'assessed against or become a charge on the land, the buildings, or both, or any part of the land or the buildings in said legal proceedings. 4.05 Impositions Contested In Lessor's Name. Any such contest may be made In the name of Lessor or Lessee, or both, as Lessee shall determine, and Lessor agrees to - cooperate reasonably with Lessee in any such contest but without expense to Lessor. Lessee shall be entitled to any refund of any imposition and penalties or interest thereon which have been paid by Lessee or which have been paid by Lessor and for which Lessor has been fully reimbursed. 4.06 Tax Bills Prima Facie Evidence. The certificate, advice or bill issued by the appropriate official designated by law to make or issue the same or to receive payment of any Imposition, indicating the non - payment of any imposition shall be prima facie evidence that the imposition is due and unpaid at the time of the issuance of such certificate, advice or bill. ARTICLE FIVE Insurance 5.01 Kinds of Insurance. Lessee shall at all times during the term hereof, and at its own cost and expense, procure and continue in force the following insurance coverage: - (a) Hazard insurance covering the Demised Premises, and the buildings now or hereafter erected or constructed thereon and the building equipment installed therein, against loss or damage by fire and against loss or damage by other risks now or _hereafter embraced by "Broad Extended Coverage ", including, without limitation, vandal- ism, malicious mischief, special extended perils (all risk), windstorm, hail, riot and sprinkler leakage, In an amount reasonably satisfactory to Lessor, but not less than eighty percent (80%) of the actual replacement cost of the buildings and improvements, which amount shall be adjusted annually; (b) Broad Form Boiler and Machinery Insurance on all heating, air conditioning, electrical and mechanical equipment located in or on the Demised Premises if required by written notice from Lessor; A (c) Broad Form Comprehensive public liability insurance, including property damage and elevator hazards insurance, insuring Lessor and Lessee against liability for injury to persons or property occurring in or about the Demised Premises or arising out of the ownership, maintenance, use or occupancy thereof. The liability under such insurance shall not be less than One Million Dollars ($1,000,000.00) combined single limit for personal injury and property damage and shall be adjusted from time to time by agreement between Lessor and Lessee; -3- r -4- ,01128N 8 19 (d) At all times when any Work is in progress on or in connection with the construction of any buildings or other improvements on the Demised Premises or the repair, alteration, restoration or making of additions thereto or otherwise in respect of the Demised Premises, each of the following shall be maintained: (i) Workmen's compensation insurance covering all persons engaged in such work and with respect to whom claims for death or bodily injury might be asserted against Lessor, Lessee or the Demised Premises; (ii) Public liability insurance protecting any contractor under any contract entered into by Lessee, or anyone on Lessee's behalf, with respect to such Work, and contingent public liability insurance protecting Lessor and Lessee, both protecting against liability for death and, bodily injury and loss and damage to property occurring during the progress of any such Work or in any way arising therefrom; and (iii) Builder's risk, fire and extended coverage insurance in an amount equal to not less than eighty percent (80 %) of the value when finished and ready for occupancy of the building, structure, alteration or addition being constructed, repaired or altered. - 5.02 Form of Insurance. All insurance required by this Lease shall be written in a form and by a company which is reasonably acceptable to Lessor. Any such company shall be qualified to write insurance of the type required within the State of Texas. All such policies shall be primary and non - contributing with any insurance which may be carried by Lessor. Each policy shall name the Lessor as an additional insured and shall contain a provision that it cannot be cancelled or materially changed except after thirty (30) days' notice to Lessor. Certificates or copies of all required policies (or binders satisfactory to Lessor) shall be furnished to Lessor prior to the commencement of this Lease, and a renewal or replacement policy shall be provided to Lessor at least ten (10) days prior to the expiration of each such policy. 5.03 Mutual Release of Liability. So long as the Demised Premises are Insured in compliance with this Lease, the Lessor and Lessee mutually release each other and waive all claims from any and all liability or responsibility (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the other party or anyone for whom such party may be respon- sible. Parties agree that all applicable insurance policies shall include such a clause or endorsement. 5.04 Proceeds of Fire and Extended Coverage Insurance. Subject to the rights of any mortgagee of the Demised Premises, the proceeds of any policy which are payable due to loss occasioned by fire or other peril included within "extended coverage" shall be disbursed to Lessee to be used for the following purposes: (a) • - Lessee shall first use the proceeds for payment of the cost of the repair, restoration or alteration or reconstruction of the buildings and other improve- ments; (b) Lessee shall pay out the proceeds from time to time to persons furnishing labor or materials for such work. Payment shall be made on vouchers approved by Lessee as such work is satisfactorily completed; (c) Any insurance proceeds remaining after satisfactory completion of such work shall be paid to Lessee. • 5.05 Cooperation of Lessor and Lessee. The Lessor and the Lessee shall cooperate in connection with the collection of any insurance moneys that may be due in the event of loss and the Lessee shall execute and deliver to insurers such proof of loss and other instrument as may be required for the purpose of obtaining the recovery of any such insurance moneys. In the event Lessee fails or refuses to make an Insurance claim after notice from Lessor, Lessor shall have the right, but not the obligation, to file proof of loss and thereafter to negotiate and settle the claim and collect the proceeds thereof, and disburse the same for the reconstruction of the buildings or other improvements. W11289 Pa 920 ARTICLE SIX Lessor's Right to Perform Lessee's Covenants; Reimbursement of Lessor for Amounts So Expended 6.01 Performance of Lessee's Covenants. Lessee covenants that if it shall at any time default In the payment of any imposition pursuant to the provisions of Article Four of this Lease, or fail to take out, pay for, maintain or deliver any of the insurance policies provided for herein, or shall fail to take such steps to remove any mechanic's lien which shall attach to the land or improvements (except as hereinafter expressly permitted), or fail to make any other payment (other than rent, including any payments due and payable on any mortgage or trust deed which Lessee may place upon the land or any building), and such failure shall continue for thirty (30) days after written notice to Lessee, or shall fail to perform any act on its part to be made or performed as in this Lease from Lessor provided, and such failure to perform shall be an event of default as hereinafter defined, then Lessor may, but shall not be obliged so to do, and without further notice to or demand upon Lessee and without waiving or releasing Lessee from any obligations of Lessee in this Lease contained, pay any such impositions, effect any such insurance coverage and pay premiums therefor, take steps to remove such mechanic's lien or pay the amount of same or make any other payment or perform any other act on the part of Lessee to be made and performed, in such manner and to such extent as Lessor may deem desirable, and in exercising any such rights, Lessor may pay necessary and incidental costs and expenses, employ counsel and incur and pay reasonable attorney's fees. 6.02 Reimbursement of Lessor. All sums so paid by Lessor and all necessary and incidental costs and expenses in connection with the performance of any such act by Lessor, together with Interest thereon at the rate of eighteen per cent (18 %) per annum from the date of the making of such expenditure by Lessor, shall be deemed additional rent hereunder and, except as otherwise in this Lease expressly provided, shall be payable to Lessor on demand or at the option of Lessor may be added to any rent then due or hereafter becoming due under this Lease; and Lessee covenants to pay any such sum or sums with interest as aforesaid; and Lessor shall have (In addition to any other right or remedy of Lessor) the same rights and remedies in the event of the non - payment thereof by Lessee as in the case of default by Lessee in the payment of any installment of rent. ARTICLE SEVEN Use Of The Land And The Buildings 7.01 The Project. The parties acknowledge that Lessee intends to construct a multiple building project upon the Demised Premises, consisting ofxaxpaalkingxgesagec xlLdc up to two commercial office /retail buildings, a city council chambers and a parking garage (the "Project "). Subject to Lessee's compliance with the provisions of Article Nine, Lessor approves of such use and all lawful uses which are incidental thereto. 7.02 Compliance With Laws. Lessee shall throughout the term of this Lease, at Lessee's sole expense, promptly comply with all laws and ordinances and the orders, rules, regulations and requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and officers thereof (whether or not the same require structural repairs or alterations), which may be applicable to the land, the buildings, the fixtures, equipment and machinery situated in the buildings, the sidewalks, curbs and vaults, if any, adjoining the land, or the use of the land or the buildings. Lessee shall likewise observe and comply with the requirements of all policies of public - liability, fire and all other policies of insurance at any time in force with respect to the buildings and the fixtures, equipment and machinery therein. 7.02 Limitations On Use Of Buildings. Lessee shall not use nor permit any other person to use the land or the buildings for any unlawful purposes. Provided, how- ever, that there shall be no violation by Lessee of this provision unless and until Lessor has notified Lessee in writing, specifying the alleged violation and until there has been a final adjudication that the specified use is in violation of the law, regulation, or ordinance specified in the written notice, and that the specified law, regulation, or ordinance is valid and applicable to the Demised Premises, and until Lessee has had a reasonable time after the final adjudication to cure the specified violation. -5- ARTICLE EIGHT .i,,12F . 9 ?1 Repairs, Maintenance and Improvements 8.01 Repair Of Buildings. Lessee shall throughout the term of this Lease, at Lessee's sole expense, take good care of the buildings and the equipment, fixtures and machinery situated therein, and the sidewalks, curbs, driveways, vaults, bridges and tunnels (if any) in or contiguous to the land and keep the same in good order and condi- tion, ordinary wear and tear excepted. Lessee shall promptly, at Lessee's own expense, make to and on the buildings all necessary repairs, renewals and replacements, interior and exterior, structural and non - structural. 8.02 Premises Kept Clean. Lessee shall keep and maintain all portions of the land, the buildings and the sidewalks adjoining the land in a clean and orderly condition, free of accumulations of dirt, rubbish, snow and ice. 8.03 Removal Of Dangerous Conditions. Lessee shall, during the term of this Lease, at Lessee's sole expense, do all things necessary to remove any dangerous condi- tion from time to time existing on the land, including (without limiting the generality of the foregoing) promptly taking appropriate measures to prevent or repair any erosion, • collapse or other unstable condition in the land. ARTICLE NINE Construction, Alterations And Demolition of Buildings 9.01 Construction By Lessee. Lessee shall have the right at any time and from time to time during the term of this Lease, and at its own expense, to erect, main- tain, alter, remodel, reconstruct, rebuild, replace, and remove buildings and other improvements on the Demised Premises, and correct and change the contour of the Demised Premises, provided it first obtains Lessor's written consent in accordance with Section 9.02 of this Lease. Notwithstanding the foregoing, Lessee shall have the right to perform any of the following at any time during the term of this Lease without obtaining such consent, approval being hereby granted by Lessor: (a) Demolish any buildings or structures which on the Commencement Date are situated on the Demised Premises in order to permit commencement of construction of the Project. (b) Perform such nonstructural repairs and alterations as may be necessary or advisable from time to time to maintain, repair or remodel improvements which have been previously constructed with Lessor's consent or perform interior finish work on any such improvements. Any such work shall not materially change the external appearance of the structure. (c) Make changes, alternations and modifications which are required by any authorized governmental body or public official having authority or jurisdiction over such buildings or improvements in order to comply with legal or regulatory requirements. 9.02 Lessor's Approval of Plans. Whenever Lessor's consent to construction or alteration of improvements upon the Demised Premises is required pursuant to Section 9.01, Lessee shall, prior to commencing the proposed activity, submit to Lessor a full set of detailed working drawings, plans and specifications (the "Plans ") prepared by a licensed architect or engineer, accurately depicting the proposed work. Lessor shall review the Plans promptly and shall not unreasonably withhold its consent to the proposed construction or alteration. In the event Lessor disapproves of the Plan, it shall notify Lessee in writing of the reasons for such disapproval within thirty (30) days following receipt of the Plans and, to the extent possible, the manner in which the Plans I may be altered in order to receive Lessor's consent. Failure of Lessor to provide timely notice of disapproval of the Plans shall be conclusively deemed to be approval of the Plans and the proposed construction. If Lessor provides timely notice of disapproval, Lessee may alter the Plans and resubmit the same for approval, in which event the Lessor shall promptly review the Plans and either approve or disapprove of the same in the manner and within the time limits set forth above for the original review. Once the Plans have been approved, Lessee may make minor non - structural changes to the Plans which do not materially change the external appearances of the improvements and which do not materially adversely effect the general character of the Project, without obtaining additional approval from Lessor. All other alterations to the Plans must be -6- :ni 1289 i't4 ; 92 approved by Lessor in the same manner and within the same time limits as provided above for the original approval of the Plans. 9.03 Effect of Lessor's Approval. Lessor's approval does not constitute any warranty suitability of the architectural or engineering design, and Lessor, by approving such plans and specifications, assumes no liability or responsibility for the architectural or engineering design or for any defect in any building or improvement constructed from the plans or specifications. 9.04 Lessor's Cooperation. Lessor shall cooperate with Lessee in granting and obtaining easements, dedications, zoning, and restrictions of the Demised Premises, provided all costs thereof shall be borne by Lessee. Without limitation, such cooperation shall include the following: (a) Easements and Dedications. In order to provide for the more orderly development of the Demised Premises, it may be necessary, desirable, or required that street, water, sewer, drainage, gas, power lines, and other easements and dedications and similar rights be granted or dedicated over or within portions of the Demised Premises. Lessor shall, on request of Lessee, join with Lessee in executing and delivering such documents, from time to time, and throughout the term of this Lease, as may be appropriate, necessary, or required by governmental agencies, public utilities, and companies for the purpose of granting such easements and dedications. (b) Zoning. In the event that Lessee deems it necessary or appropriate to obtain use, zoning, or subdivision and precise plan approval and permits for the Demised Premises, or any part of them, Lessor agrees to execute such documents, peti- tions, applications, and authorizations as are appropriate or required to submit the Demised Premises, or any part of them, for the purposes of obtaining conditional use permits, zoning and rezoning, tentative and final tract approval, precise plan approval, and further, for the purposes of annexation or the creation of districts and governmental subdivisions. Lessor shall execute these documents from time to time as requested by Lessee. - (c), Restrictions. At the request of Lessee, Lessor shall, from, time to time, execute and deliver or join in the execution and delivery of such documents as are appropriate, necessary, or required to impose on the Demised Premises covenants, condi- tions, and restrictions providing for the granting of exclusive uses of the Demised Premises, or any part of them, the establishment of common and parking areas, the establishment of party walls, and provisions for the enlargement of the common and parking areas by the establishment of mutual and reciprocal parking rights and the rights of ingress and egress, and other like matters, all of which are for the purpose of the orderly development of the Demised Premises as a commercial unit. for, the Lessee as Lessor's Agent. Lessor appoints Lessee as Lessor's attorney in fact and agent (to be irrevocable so long as this Lease remains in full force and effect, which shall be deemed to be a power coupled with an interest) to execute and deliver and to record any documents which may be appropriate, necessary, or required under Subsections (a) through (c) above, in the name of Lessor, and any such execution and delivery and recordation may be relied on by any third person. - ARTICLE TEN Damage or Destruction 10.01 Repair Of Building After Damage. In the event of damage (but not destruction) by fire or otherwise to any machinery, fixtures or equipment situated in the buildings, Lessee shall, within six (6) months after such damage and as much sooner as is reasonably possible, to the extent insurance proceeds are made available therefor, either repair or restore the same as completely as possible to the condition they were in ^ immediately prior to such damage. In the event of damage by fire (but not destruction) or otherwise to any building, Lessee shall, within eighteen (18) months after such damage and as much sooner as is reasonably possible, and to the extent insurance proceeds are made available therefor, repair and restore such building as completely as possible to the condition it was in immediately prior to such damage. If Lessee elects to remove and replace such building (including all machinery, fixtures and equipment situated therein) with a new building, such new building shall be` constructed within twenty -four (24) months and as much sooner as is reasonably possible. -7- 10.02 Replacement Of Buildings After Total Destruction. Lessee shall, in case of total destruction of any building by fire or otherwise, within twenty -four (24) months from the date of such total destruction and as much sooner as is reasonably possible, but subject to availability of insurance proceeds, replace the same (including all machinery, fixtures and equipment situated therein) with a new building. Provided, however, that if such destruction occurs during the final ten (10) years of the Demised Term, Lessee may, in lieu of rebuilding, assign to Lessor all of Lessee's right, title and interest in and to all proceeds of insurance policies insuring against such damage. 10.03 Right Of Mortgagees To Repair. In case any mortgage or trust deed in the nature of a mortgage shall have been made by Lessee of the leasehold estate or any building, and such mortgage or trust deed shall be in force at the time of any damage to , or destruction by fire or otherwise of any building or of any machinery, fixtures or equip- - ment situated therein, then any such mortgagee or trustee under any trust deed is hereby authorized, at its sole expense, to repair the building or to rebuild the same or to con- struct a new building on the land, as the case may be, in full compliance with all of the provisions of this article. The mortgagee or trustee so repairing or rebuilding any building or constructing a new building shall, if it assumes all the obligations of Lessee contained in this article, be subrogated to the rights of Lessee to all the insurance proceeds payable as a result of the damage to or destruction of the building, and shall be entitled, if Lessee is not then In default hereunder, to have all said insurance proceeds paid out, upon architect's certificates, in the same manner in every respect as if said mortgagee were Lessee under this Lease. • 128,9 : 923 ARTICLE ELEVEN Mechanic's Liens 11.01 Discharge of Mechanic's Liens. Lessee shall not suffer nor permit any mechanic's liens to be filed against the Lessor's interest in the land nor against the Lessee's interest in the land nor against any building by reason of work, labor, service or materials supplied or claimed to have been supplied to Lessee or anyone having a right to possession of the land or any part thereof or any building or any part thereof as a result of an agreement with, or the assent of, Lessee. Nothing in this Lease shall be construed as constituting the consent or request of Lessor; expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration or repair of or to the land or any part thereof, or any building or any part thereof, nor as `giving Lessee any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanic's liens against Lessor's interest in the land or any building. If any such mechanic's lien shall at any time be filed against the land or any building, Lessee shall cause the same to be discharged of record within thirty (30) days after the date Lessor notifies Lessee of the filing of the same. If Lessee shall fail to discharge such mechanic's lien within such period, then, in addition to any other right or remedy of Lessor, Lessor may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by,procuring the discharge of such lien by deposit in court or bonding, and in any such event Lessor shall be entitled, if Lessor so elects, to compel the prosecution of any action for the foreclosure of such mechanic's lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances. However, Lessee shall not be required to pay or discharge any such mechanic's lien so long as Lessee shall in good faith proceed to contest the same by appropriate proceedings; provided, however, Lessee shall give notice in writing to Lessor of its intention to contest the validity of such lien and shall furnish a surety bond of a company satisfactory to Lessor in an amount sufficient to pay such contested lien claim with all Interest thereon and court costs and expenses, including reasonable attorneys' fees which may at such time be allowable by law to be incurred in connection therewith. ARTICLE TWELVE •k Covenant Against Waste 12.01 Waste. Except as otherwise permitted by this Lease, Lessee covenants not to do or suffer any waste or damage, disfigurement or injury to the land or any building, or any machinery, fixtures or equipment situated therein, or permit or suffer any overloading of the floors thereof. - 12R9- ; 9?A ARTICLE THIRTEEN Mortgaging The Leasehold And The Building 13.01 Lessee's Right To Mortgage. Subject to the limitations set forth in this Article, Lessee is hereby given the right, at any time and from time to time, to mortgage its interest in the land and in any building by mortgage or trust deed; provided, however, that Lessee at the time such mortgage or trust deed is made shall not be in default under this Lease. The mortgagee or trustee in any such mortgage or trust deed and the owner of the indebtedness secured by said mortgage or trust deed shall not become liable upon the covenants of this Lease unless and until they shall become the owners of the legal and equitable title to the leasehold estate or to any building; provided that such liability shall terminate at the time such mortgagee, trustee or owner of the mortgage indebted- ness shall, pursuant to a bona fide sale, transfer its interest in the leasehold estate created by this instrument. 13.02 Extension of Mortgagee's Grace Period To Cure Certain Defaults. If Lessee breaches this Lease by reason of the occurrence of any event of default (herein- after defined), Lessor agrees that it will not terminate this Lease or invoke its right to take possession of the land and buildings if within thirty (30) days after the termination of the applicable grace period herein granted to Lessee for the purpose of curing such event of default; any mortgagee of Lessee's interest in the land and buildings cures such default or commences a foreclosure under the laws of the State of Texas and if such mortgagee diligently proceeds in good faith with its foreclosure, provided it is not precluded from so doing by injunction of a court in bankruptcy, and if, and only as long' as, such mortgagee fully performs all of the obligations of Lessee under this Lease; provided, however, that,notwithstanding the preceding provisions of this sentence, Lessor may invoke any or all of its remedies under this Lease, including the remedy of termina- tion, (a) if such mortgagee fails to cure all defaults of Lessee under this Lease, other than the bankruptcy of Lessee, or (b) if such mortgagee fails to continue to proceed with its foreclosure in good faith and with diligence. • 13.03 Notice to Lessor. Lessee warrants and agrees to provide Lessor with a true and correct copy of any notice of default received by Lessee from the mortgagee or trustee of any leasehold mortgage or deed of trust described in the preceeding section. Such copy shall be delivered to Lessor promptly after receipt by Lessee. In the event Lessee fails to cure any such default within the applicable curative period provided in such mortgage or deed of trust, Lessor shall have the right, but not the obligation, to undertake the cure in its own name or on behalf of Lessee, and to expend such funds as may be reasonably required to effectuate such cure. All such funds expended by Lessor shall constitute additional rent hereunder which shall be due and payable by Lessee ten (10) days following delivery of a written invoice to Lessee. Lessee agrees to cooperate with Lessor in requesting any such mortgagee or trustee to provide Lessor with a simultaneous copy of any notice of default by Lessee and In obtaining the consent of such mortgagee or trustee to accept performance of curative action from the Lessor. ARTICLE FOURTEEN Excavations And Lateral Support 14.01 Excavations And Shoring. If any excavation or other building operation shall be about to be made or shall- be made upon the land or any adjoining premises, street or alley, Lessee shall, and does hereby assume all obligations to both the owner and the occupant of the land with respect to shoring and lateral support, and agrees, to the extent that either the owner or occupant of the land may be obligated so to do, to shore the foundations and walls.of the adjoining premises, as the case may be, and to do any 'other act or thing, to the extent necessary for the safety or preservation of the adjoining premises and to prevent any claims or liens,against Lessor, the land or any building by reason of failure .to furnish such lateral support or shoring. Should Lessee fail to do such shoring, then Lessor may do such shoring but shall not be required so to do, and In such event, Lessee shall permit Lessor or Lessor's agents or the owners or lessees of such adjoining premises and their respective representatives to enter the land and any building for such purpose, and Lessor shall not be liable for any Inconvenience, annoy- ance, disturbance, loss of business or other damage arising therefrom, and Lessee's obligations hereunder shall not thereby be affected. -9- ARTICLE FIFTEEN Public Utility Charges 15.01 Payment Of Public Utility Charges: Lessee shall pay or cause to be paid all charges for gas, electricity, light, heat or power, telephone or other communica- tion service used, rendered or supplied upon or in connection with any building and also any charges or expenses in connection with any alterations, additions, installations or changes required or desired in connection with the supplying or using of such utilities or services or substitutes therefor throughout the term of this Lease, and to indemnify Lessor and save it harmless against any liability or damage on such account. Lessee shall also at its sole expense procure any and all necessary permits, licenses or other authori- zations required for the lawful and proper installation and maintenance upon the land and in or on any building, of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any such service'to such building and upon the land. ARTICLE SIXTEEN Indemnification of Lessor 16.01 General Indemnification Of Lessor. Lessee agrees to defend and indem- nify and save harmless Lessor against and from any and all claims by or on behalf of any person, firm or corporation, arising from the construction, conduct or management of or from any work or thing whatsoever done in or about any building or on the land. Lessee also agrees to defend and indemnify and save Lessor harmless against and from any and all claims arising during the term of this Lease from any condition of the land, any building or any street, curb, driveway or sidewalk adjoining the land, or of any vaults, passageways or spaces therein or appurtenant thereto, or arising from any breach or default on the part of Lessee in the performance of any covenant or agreement on the part of Lessee to be performed, pursuant to the terms of this Lease, or arising from any act of negligence of Lessee or any of its agents, contractors, servants, employees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the term of this Lease in any building or on the land or upon or under the sidewalks and the land adjacent thereto, and from and against all costs, counsel and legal fees, expenses and liabilities incurred in or about any such claim or action or proceeding brought thereon, and in case any action or proceeding be brought against Lessor by reason of any such claim, Lessee, upon notice from Lessor, shall resist or defend such action or proceeding by counsel satisfactory to Lessor. 16.02 Reimbursement Of Costs Of Obtaining Possession. Lessee covenants to pay, and to indemnify Lessor against, all costs and charges, including counsel and legal fees, lawfully and reasonably incurred In obtaining possession of the land and the build- ings after default of Lessee or upon expiration or earlier termination of this Lease or in enforcing any agreement by Lessee herein contained. ARTICLE SEVENTEEN Condemnation -10- , ;01 1289 : 925 17.01 Rights After Total Taking. If during the term of this Lease, as a result of the exercise of the power of eminent domain or any transfer in lien thereof to any authority entitled to exercise the power of eminent domain (hereinafter referred to as the "condemnation "), either (a) the entire land and all of the Improvements thereon shall be taken, or (b) a portion of the land or a portion of the buildings or a portion of each shall be taken with resulting damage to any building or any part thereof and the award made in the proceedings shall be based on a determination that the portion of the build- ings remaining on the portion of the land not so taken cannot practicably be rehabili- tated, then this Lease and all interest of Lessee In the land shall cease and come to an end on the date of vesting of title in the proceedings. The entire compensation award shall be apportioned among Lessor and Lessee in proportion to the values of their respec- tive interests in this Lease and in the Demised Premises, the buildings and other improvements constructed thereon, as of the day immediately preceding termination. The value of Lessor's interest in this Lease and in the Demised Premises shall be its fair market value without regard to the anticipated condemnation, taking into consideration the value of the Demised Premises as encumbered by the Lease, the rent payable by Lessee had there been no condemnation and the fact that the buildings and other improvements upon the Demised Premises would belong to Lessor upon expiration of the 1289 . 926 term. The value of Lessee's interest in this Lease and in the Demised Premises shall be its fair market value without regard to the anticipated condemnation, taking into consid- eration Lessee's obligation to pay rent and perform its obligation under this Lease had there been no condemnation, and the fact that the Demised Premises would belong to Lessor upon the expiration of the term. The Lessor shall receive the percentage of the total condemnation award which the value of its interest bears to the combined value of Lessor's and Lessee's interests, and Lessee shall receive the remainder of the condemna- tion award. 17.02 Rights After Partial Taking. If during the term of this Lease either (a) a portion of the land shall be taken in the proceedings without resulting damage to the buildings or any part thereof, or (b) a portion of the land shall be taken in the proceedings with resulting damage to the buildings and the amount of the award made therein shall be based on a determination that the portion of the buildings remaining on the portion of the land not so taken can practicably be rehabilitated, then (i) this Lease shall, upon vesting of title in the proceedings, terminate as to the part so taken. From and after the date of vesting of title in the proceedings, an equitable and proportionate part of the rent shall abate for the remainder of the term of this Lease, and the total award made in the proceedings whether made entirely to Lessee or entirely to Lessor, or partially to Lessee and partially to Lessor, shall be apportioned between Lessor and Lessee in the proration to the reduction in value of their respective interests in this Lease and in the Demised Premises on account of the condemnation. The reduction in value of the parties' respec- tive interests in this Lease and in the Demised Premises shall equal the difference between the fair market value of each party's interest immediately preceding the con- , demnation (and without regard to the condemnation) and the fair market value of such party's interest immediately following the condemnation. In determining such difference in value of the Lessor's interest, the value of the untaken residue of the Demised Premises, the abatement of rent otherwise payable by Lessee had there been no condem- nation, and the loss of the buildings and other improvements which would have belonged to Lessor upon expiration of the term shall be taken into consideration. In determining such difference in value of the Lessor's interest, the abatement of Lessee's obligations to pay rent and observe the other conditions of this Lease had there been no condemnation and the fact that the Demised Premises would belong to Lessor upon expiration of the term shall be taken into consideration. Lessor shall receive that percentage of the condemnation award which the reduction in value of its interest bears to the combined reduction in value of Lessor's and Lessee's interest, and Lessee shall receive the remainder of the condemnation award. 17.03 Abatement And Reconstruction Upon Partial Condemnation. Notwith- standing the provisions of the preceding sections of this Article, in the event less than all of the Demised Premises or the buildings or other improvements located thereon, are taken by condemnation and this Lease is not terminated as provided hereinabove, the entire condemnation award shall be held by Lessee in trust, and used by Lessee for restoration of the Demised Premises, the buildings and other improvements located thereon, and only the excess of the condemnation award, if any, remaining after paying the expenses of such restoration shall be apportioned among Lessor and Lessee as afore- said. Lessee shall promptly undertake such restoration, which shall include (to the extent of the condemnation award made available to it) repairs, restoration (to the extent possible according to the land area so taken to make each of the buildings a complete architectural unit) or demolition of such remaining buildings and /or improvements, all such repairing, restoration and /or demolition to be done in a good and workmanlike manner, in conformity with all applicable governmental rules, regulations, ordinances and laws, and any additional requirements of any bona fide commercial or institutional mort- gagee of Lessee's interest in and to the Demised Premises and /or any buildings or improvements located thereon. - • 17.04 Cooperation Between Lessor And Lessee. Lessor and Lessee shall, in connection with any eminent domain proceedings, cooperate in making all claims for damages, bringing suit or action, and settling or compromising all such claims. Neither party shall make or enter into any settlement or compromise without submitting the same in writing to the other party at least ten days prior thereto. The amount of any award, judgment or settlement shall be paid jointly to Lessor and Lessee, and promptly disbursed in accordance with the provisions of this Lease. 17.05 Temporary Takings. If all or any portion of the land or all or any por- tion of the buildings shall be taken by the exercise of the right of eminent domain for governmental occupancy for a limited period, this Lease shall not terminate and Lessee shall continue to perform and observe all obligations hereunder as though such taking had not occurred, except only to the extent that Lessee may be prevented from performing such obligations (other than the payment of rent, impositions and other sums due Lessor under this Lease) by the terms of the order of the authority which made the taking. In the event of such a taking as in this section referred to, Lessee shall be entitled to receive the entire amount of any award made for such taking (whether paid by way of damages, rent or otherwise) unless the period of governmental occupancy extends beyond the termination of the term of this Lease, in which case the award shall be apportioned between Lessor and Lessee as of the date of such termination. 17.06 Rent Due Until Taking. In the event of the termination of this Lease or any part thereof after a partial or total taking as a result of the proceedings, Lessee shall pay to Lessor all rent and all other charges payable by Lessee with respect to that portion of the land so taken in the proceedings, and with respect to which this Lease shall have terminated, justly apportioned to the date of such termination. 17.07 Rights Hereunder Shall Prevail. Lessor and Lessee hereby agree that: (a) If less than all the buildings shall be taken in the proceedings, the court hearing the proceedings shall be requested to find specifically, or, if there shall be a jury hearing the proceedings, to instruct the jury to find specifically in its verdict, whether the award is or is not based on a determination that the portion of the buildings remaining on the portion of the land not so taken can practicably be rehabilitated; and (b) Notwithstanding any provision which may be made in the judgment or decree entered In the proceedings concerning the respective rights of Lessor and Lessee in and to any award or awards made therein, the total amounts awarded to Lessor and Lessee in the proceedings shall be disbursed in accordance with the provisions of this Lease. 17.08 Rights Of Leasehold Mortgage Upon Condemnation. Lessee shall give any leasehold mortgagee notice of any condemnation proceedings affecting the Demised Premises. The leasehold mortgagee shall have the right to intervene and be made a party to any such condemnation proceedings and the parties hereto do hereby consent that the leasehold mortgagee may be made such party or intervenor. ARTICLE EIGHTEEN Default Provisions 18.01- Events Of Default. The following events are hereby defined as "events of default ": - (a) The failure of the Lessee to pay any installment of rent, or any other payment of money as herein provided or required, when due and the continuance of such failure for a period of fifteen (15) days after notice thereof in writing from Lessor; • (b) The failure of the Lessee to perform any of the other covenants, conditions and agreements of this Lease on the part of the Lessee to be performed, and the continuance of such failure for a period of thirty (30) days after notice in writing thereof (which notice shall specify the respects in which the Lessor contends that the Lessee has failed to perform any of such covenants, conditions and agreements) from the Lessor to the Lessee, unless the Lessee in good faith, promptly after receipt of such written notice, shall have commenced and thereafter shall continue diligently to prose- cute all action necessary to cure such default; (c) The entry of an order, judgment or decree by any court of compe- tent jurisdiction, adjudicating the Lessee a bankrupt or appointing a receiver, trustee or liquidator of it or of all of its assets (except in a foreclosure proceeding brought by a mortgagee of Lessee's interest hereunder), and such order, judgment or decree continuing unstayed and in effect for a period of sixty (60) consecutive days; and (d) Non - payment or other non - performance of the covenants of any mortgage or trust deed encumbering the Demised Premises constituting a default therein, which has not been remedied or cured within any grace period expressly granted by such mortgage or deed of trust. 18.02 Notice Of Termination. If any of the above mentioned events of default shall occur, Lessor may at its option give to Lessee a notice of termination of this Lease, and except as expressly provided in this Lease for the rights of Leasehold Mortgagees, -12- :0112 927 fll 1289 9/,8 upon the date specified in such notice from the Lessor to the Lessee, the term of this Lease shall expire as fully and completely as if that day were the day herein originally fixed for the expiration of the term of this Lease, and on the date so specified, the Lessee shall then quit and surrender the premises to the Lessor, but the Lessee shall remain liable as herein provided. Upon the termination of this Lease as provided in this Section, all rights and interest of the Lessee in and to the Demised Premises and every part thereof shall cease and terminate, and the Lessor may retain on account of any sums then owing Lessor, on account of the liquidated damages specified in the next paragraph and on account of any amounts thereafter to become due under the provisions of this Lease, any security deposit or other moneys received by the Lessor from the Lessee or others on behalf of the Lessee. 18.03 Entry Without Termination. Notwithstanding the foregoing provisions of this Article, in the event one or more of the events of default shall occur, the Lessor, at his option and without terminating this Lease, may enter upon the Demised Premises or any part thereof and occupy or lease the whole or any part thereof for and on account of the Lessee, and on such terms and conditions and for such rent as the Lessor may deem proper, and may collect said rent or any rent that may thereafter become due and payable and apply the same toward the amount due or thereafter to become due from the Lessee on account of the rents hereunder, and toward the expense of such reletting, including reasonable attorneys' fees, and to any and all other damage sustained by the Lessor. If such rental is less than the rental herein agreed to be paid by the Lessee, the Lessee agrees to pay such deficiency to the Lessor in advance of the times hereinabove specified for the payment of rentals; and the Lessee agrees to pay to the Lessor forth- with upon any such letting the costs and expenses which the Lessor may incur by reason thereof. All sums received by the Lessor pursuant to this Section which are in excess of the amounts for which the money may be then applied as above provided, shall be held by the Lessor as security for the performance by the Lessee of its obliga- tions under this Lease, and may be applied from time to time to the payment of rent and other sums payable by the Lessee. 18.04 Reletting By Lessor. In the event of the termination of this Lease by any proceeding to secure possession of the Demised Premises, or in the event that this Lease shall be terminated by Lessor as a result of an event of default, and whether or not Lessor shall have taken any action hereunder to re -enter the Demised Premises, Lessee shall nevertheless be obligated to continue to pay an amount equivalent to the rent herein reserved on the regular rent payment dates. Lessor may rent the Demised Premises or any part thereof, either in the name of Lessor or otherwise, for a term which may be lesser or greater than the period which would otherwise have been the balance of the term of this Lease without releasing Lessee from any liability, applying any moneys collected first to the expense of resuming or obtaining possession, next to restoring the Demised Premises or any part thereof to a rentable condition and then to the payment of all amounts due and to become due to Lessor hereunder. The net profit derived by the Lessor from any rents or other net income, or from operation by him either directly or through an agency from the Demised Premises or any part thereof, shall be applied in the same manner. In any event Lessee covenants that in case of such termination, it will indemnify Lessor against all loss of rent and other payments which Lessor may incur by reason of such termination, for what would otherwise have been the balance of the term of this Lease. - 18.05 Non - Disturbance of Sublessees. The exercise by Lessor of any remedy available to it upon the occurrence of an event of default shall not affect the existence of subleases which were entered Into by Lessee In accordance with the terms of this Lease and which cover any portion of the Demised Premises. Lessor agrees to recognize the rights of such sublessees so long as they are not In default of their subleases, notwithstanding the default by Lessee under this Lease. ' ARTICLE NINETEEN Rights Of Leasehold Mortgagee 19.01 Notice To Leasehold Mortgagee. It is mutually covenanted and agreed by and between the parties hereto that if the leasehold estate hereby demised shall from time to time be conveyed to a lending institution by mortgage or trust deed by said -13- .;iii 128.9 9;9 Lessee, and if the Lessor shall be notified in writing of such mortgage or trust deed and the address of the mortgagee thereunder, then, so long as such mortgage or trust deed shall continue in force, and until the delivery of a deed to the purchaser at a sale in foreclosure of the mortgage or trust deed, notice of default in the performance of the covenants in this Lease contained as is hereby required to be given to the Lessee shall simultaneously be given to said mortgagee or trustee, and until given, as notice of default shall be deemed to have been given to Lessee. Such mortgagee or trustee shall have the right, within the respective curative periods provided for such event of default and for an additional period of thirty (30) days thereafter, and to the same extent and with the same effect as though done by the Lessee, to take such action or to make such payment as may be necessary or appropriate to cure any such default. 19.02 Reinstatement By Leasehold Mortgagee. Anything in this Lease con- tained to the contrary notwithstanding, if the Lessor shall exercise his right to terminate this Lease after the occurrence of an event of default, the holder of any mortgage or trust deed on the leasehold estate, or purchaser at a sale thereof in an action to fore- close the lien of such mortgage or trust deed, shall have the right for a period of three (3) months subsequent to such termination to pay or tender to the Lessor all rent and other charges payable by the Lessee hereunder in arrears at the time of the payment or tender, with interest thereon from the due date to the date of payment or tender at the rate of eighteen per cent (18%) per annum, and the reasonable costs and charges which may have been incurred by the Lessor and to cure any other defaults of the Lessee which such mortgagee is able to cure, and thereupon the holder or purchaser shall be entitled to a lease of the Demised Premises for an equivalent rent and for a term equivalent to the unexpired portion of the term hereby demised and otherwise upon the same terms, covenants and conditions of this Lease; provided, however, that the holder or purchaser shall pay the reasonable legal fees incurred by Lessor in connection with said new Lease. 19.03 Protection To Leasehold Mortgage. Provided there is no default under this Lease of which notice has been given to any mortgagee of the leasehold estate in the manner hereinbefore provided, and if there exists any unpaid mortgage against the lease- hold estate, the Lessor agrees that it will not accept a surrender of the Demised Premises, or a cancellation of this Lease from the Lessee nor terminate this Lease for any reason prior to the term nor modify or amend this Lease without in any such event, first obtaining the written consent of such mortgagee or trustee. There shall be no merger of the estate of the Lessor and of the Lessee, notwithstanding any acquisition of the leasehold estate of the Lessee, through purchase, foreclosure or otherwise so long as any mortgage indebtedness of the Lessee secured by mortgage or trust deed shall remain outstanding on the leasehold estate, nor shall any merger of the estates of the Lessor and the Lessee be permitted by operation of law or otherwise which would adversely affect the rights of any mortgagee. 19.04 Lessor's Right To Perform Lessee's Obligations. If Lessee at any time time shall fail to make any payment or perform any act under the Lease required to be made or performed by it, then Lessor (after notice to Lessee), or the holder of any mort- gage on the Lessee's interest hereunder, but without waiving or releasing Lessee from any obligation or default under this Lease, may at any time thereafter (but shall be under no obligation to) make such payment or perform such act for the account and at the expense of Lessee, and Lessor or the Leasehold Mortgagee and the authorized represen- tatives of Lessor or any such Leasehold Mortgagee may enter upon the Demised Premises for the purpose and take all such action thereon as may be necessary therefor. No entry by Lessor or any such Leasehold Mortgagee or any such authorized representatives upon the Demised Premises pursuant to the provisions of this section shall constitute or be deemed to be an eviction of Lessee. All sums so paid by Lessor or any such Leasehold Mortgagee and all costs and expenses incurred by them in connection with the perform- ance of any such act shall constitute additional rent payable by Lessee under this Lease and shall be paid by Lessee to Lessor (or any such Leasehold Mortgagee) on demand. ' 19.05 Foreclosure By Mortgagee. In case any mortgage on the Lessee's interest hereunder shall have been foreclosed, the holder of such mortgage shall, if no event of default under this Lease shall have occurred and be continuing, upon payment of all attorneys' fees and other expenses in connection therewith, including reasonable fees and expenses of counsel for Lessor, be entitled to receive, within sixty (60) days after the receipt by Lessor of a written request therefor, a new lease of the Demised Premises running from Lessor to such holder or its nominee containing the same covenants, agree- ments, terms, provisions, conditions, limitations and waivers as are contained in this Lease, and upon the execution and delivery of such new lease, Lessor, at the expense of the new Lessee, shall take such steps as shall be necessary to cancel and discharge this Lease of record. -14- i289 '"' : 939 ARTICLE TWENTY Remedies Cumulative 20.01 Remedies Cumulative. No remedy herein or otherwise conferred upon or reserved to Lessor shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy conferred herein or by statute; and every power and remedy given by this Lease to Lessor may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by Lessor. No delay or omission of Lessor to exercise any right or power arising from any default shall impair any such right or power, nor shall it be construed to be a waiver of any such default or any acquiescence therein. 20.02 Waiver Of Remedies Not To Be Inferred. No waiver of any breach of any of the covenants or conditions of this Lease shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeed- ing breach of the same or similar covenants or conditions. , 20.03 RIght To Terminate Not Waived. Neither the rights herein given to receive, sue for or distrain for any rent, money or other payments, or to enforce any of the terms of this Lease, or to prevent the breach or non - observance thereof, nor the exercise of any such right or of any other. right or remedy shall in any way impair or toll the right or power of Lessor to declare ended the term herein granted and to terminate this Lease because of any default hereunder. . ARTICLE TWENTY -ONE Assignment And Subleases 21.01 Conditions Of Assignment. Lessee may sell or assign at any time its interest in the Demised Premises and in the buildings thereon, provided that: (a) All rents, taxes, impositions, insurance premiums and other charges required to be paid by Lessee under this Lease shall be paid by Lessee up to the date of such assignment and all other covenants and agreements hereinconcerned to be kept and performed by Lessee shall be fully compiled with at the date of such assignment; (b) The assignment shall be evidenced by an instrument in writing, duly executed and acknowledged by the Lessee and the assignee wherein and whereby the assignee shall expressly accept and assume all the terms and covenants in this Agreement contained to be kept and performed by Lessee; and (e) - A True copy of the documents evidencing such assignment shall be delivered to Lessor within ten (10) days after such recording, together with the address of such assignee. Lessee covenants that it will not make any assignment of this Lease, except in the manner and upon the conditions above set forth. 21.02 No Release of Lessee's Liability. If an assignment shall be made, after complying with the foregoing conditions, the assignee shall be subject to the same terms and conditions as to future assignments, and to all the covenants, agreements, provisions and conditions contained in this Lease. Notwithstanding formal assumption by the assignee of all the covenants, agreements, provisions and conditions of this Lease, the Lessee herein so assigning and conveying shall remain the principal convenantor and obligor and as such the person primarily liable for complying with all covenants, agree- ments, conditions and provisions of this Lease. 21.03 Subleases. Lessee may sublease all or any part of the demised Premises at any time during the term provided that all subleases entered into by Lessee shall: (a) Be subject to all the terms and conditions of this Lease and the rights of Lessor hereunder; and - (b) Terminate at the end of the term of this Lease unless agreed to the contrary by a Sublessee and Lessor, and except as provided in Section 18.05 hereof. -15- ARTICLE TWENTY -TWO Option To Terminate .Oi 1289N4 : 931 22.01 Office Lease. Concurrently with the execution hereof, Lessor and Lessee have entered into an office lease (the "Office Lease ") pursuant to which Lessor (or "Tenant ") has leased the Project (as it is constructed from time to time) from Lessee. Lessor hereby consents to and approves of the Office Lease and the subleasehold created thereby and agrees that no merger of title or interest shall occur by reason of its capacity as owner of the fee and holder of a subleasehold, and this Lease shall in any event remain in full force and effect notwithstanding such common interests, unless sooner terminated in the manner hereinafter set forth. 22.02 Option To Terminate. Lessor is hereby granted the right and option to terminate the Lease in accordance with the provisions of this Article. This option may be exercised only by delivering a written notice ( "Notice of Exercise ") to Lessee, referring to this section and reciting Lessor's desire to exercise the option. Notice of Exercise may be delivered only during the term of this Lease, but may not be delivered (and the option may not be exercised) at any time when (a) a default by Tenant exists under the Office Lease which has not then been cured or waived by Lessee (as Landlord), or (b) the Office Lease has been terminated and is no longer in full force and effect. Notice of Exercise delivered at any time other than expressly permitted by the preceding sentence shall be a nullity of no force or effect whatever. In the event no Notice of Exercise has been duly delivered at the time the Office Lease terminates, the Option to Terminate herein provided shall automatically expire. . • 22.03 Procedure v for Termination. In the event Lessor duly and timely delivers a Notice of Exercise, this Lease shall terminate, either completely or partially, depending upon whether Lessor (in its capacity as "Tenant" under the Office Lease) has then exercised its option to construct Building "C" at its own expense. Termination shall be as follows: (a) Complete Termination. This Lease shall completely terminate and the leasehold shall fully revert to Lessor thirty (30) days following delivery of a Notice of Exercise (the "Early Termination Date "), but only If Lessee has not then exercised its option to construct Building "C" at its own expense in accordance with Section 1.52 of the Office Lease. On the Early Termination Date, Lessor shall pay the consideration described in Section 22.04 hereof. (b) Partial Termination. This Lease shall partially terminate and the portion of the leasehold which is terminated shall revert to Lessor thirty (30) days following delivery of a Notice of Exercise (the "Early Termination Date ") if Lessee has then exercised its option to construct Building "C" at its own expense in accordance with Section 1.52 of the Office Lease. The portion of the Demised Premises which shall not terminate on the Early Termination Date (the "Excluded Portion ") shall be Building "C" and so much of the underlying and adjacent land area as may be necessary for use of Building "C" as a commercial office /retail buildng. This Lease will, however, terminate with respect to the Excluded Portion (and the Excluded Portion will revert to Lessor) on the tenth (10th) anniversary of the Commencement Date of this Lease, which Is some- times referred to as the "Final Termination Date." (c) Method. On the Early Termination Date, Lessee shall surrender and delivery up either (1) all of the Demised Premises if there is a complete termination, or (11) all of the Demised Premises except the Excluded Portion, if there is a Partial Termination. The Demised Premises shall be surrendered in their "as is" physical condi- tion on the Early Termination Date, and if only a Partial Termination is made, the Excluded Portion shall be surrendered and delivered up in its "as is" physical condition on the Final Termination Date. At the time this Lease is terminated as to any portion of the Demised Premises, the Lessee shall pay and discharge any leasehold mortgage encumbering the portion of the Demised Premises which is then reverting to Lessor, EXCEPT, Lessee shall not be obligated to redeem Bonds or pay the mortgage securing the Bonds. the reminder of the the rerinder of the 22.04 Consideration. On the Early Termination Date, and as a condition precedent to termination of the Lease, Lessor shall deliver each of the following to Lessee: -16- 1289 N. . 932 (a) In the event of a complete termination, written evidence in form reasonably satisfactory to Lessee that the Bonds have been fully paid, or in the alterna- tive, written evidence in form reasonably satisfactory to Lessee that Lessee's obligation to pay the debt evidenced by the Bonds has been discharged; in the event of a Partial Termination, written evidence in a form reasonably satisfactory to Lessee that the - portion of the Bonds attributable to development of all buildings except the Excluded Portion have been fully paid or, in the alternative, written evidence in a form reasonably satisfactory to Lessee that Lessee's obligation to pay such portion of the debt evidenced by the Bonds has been discharged. In the event of a Partial Termination, Lessor shall provide written evidence of fu11 payment of the Bonds or full discharge of Lessee's liabil- ity thereunder on the Final Termination Date. (b) Written agreement executed by Lessor assuming all of Lessee's obligations under any and all subleases of the Demised Premises, including without limitation the Office Lease; provided however, if terminaton is made pursuant to subpart (b) of Section 22.03, the assumption shall apply only to subleases of the portion of the Demised Premises then being surrendered, and a second written agreement executed by Lessor assuming Lessee's obligations and subleases of the Excluded Portion shall be delivered to Lessee on the Final Termination Date. (c) Written agreement executed by Lessor assuming all of Lessee's obligations under any and all management agreements, contacts, and warranties which have ben entered into by Lessee for purposes of constructing the portion of the Project then being surrendered and /or operating and maintaining the same. A second agreement assuming such obligations with respect to the Excluded Portion shall be executed on the Final Termination Date if termination is pursuant to subpart (b) of Section 22.03. In addition, in the event Lessee is then entitled to receive all or any portion of a development fee for services performed in the development of the Project, Lessor shall • pay the same. - 22.05 Cooperation. Lessor and Lessee shall cooperate in executing any and all . documentation which is necessary or required to consummate the termination in accordance with the foregoing terms. _ ARTICLE TWENTY -THREE Invalidity Of Particular Provisions 23.01 Invalidity Of Provisions. If any provision of this Lease or the applica- tion thereof to any person or circumstances shall to any extent be invalid or unenforce- able, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. „ ARTICLE TWENTY -FOUR Quiet Enjoyment 24.01 Quiet Enjoyment. Lessor agrees that Lessee, upon paying the rent and all impositions and other charges herein provided for and performing all the covenants and conditions of this Lease, shall (subject to Lessor's rights specified in this Lease) lawfully and quietly occupy the land during the term of this Lease without hindrance or molestation by Lessor or any persons claiming under Lessor, except such portion of the Demised Premises, if any, as shall be taken in condemnation. ARTICLE TWENTY -FIVE Joint Consents 25.01 Joint Consents As To Streets. Neither Lessor nor Lessee shall sign any petition, consent or other instrument in writing whereby any party other than Lessee or those claiming under Lessee shall hereafter directly or indirectly acquire the right to use or occupy any portion of any street, driveway or alley which abuts the land, or the space above or under the surface thereof, without the other party hereto joining in such instrument or consenting in writing to the execution thereof. -17- Estoppel Certificates 26.01 From Lessee. Lessee shall, without charge, at any time and from time to time, within twenty (20) days after request by Lessor, deliver a written instrument to Lessor or any other person, firm or corporation specified by Lessor, duly executed and acknowledged, certifying: - (a) That the Lease is unmodified and in full force and effect, or if there has been a modification, that the same is in full force and effect as so modified and identifying any such modification; (b) Whether or not there are then existing any set offs or defenses in favor of Lessee against the enforcement of any of the terms, covenants and conditions of this Lease by Lessor, and if so, specifying the same, and also whether or not Lessor has observed and performed all of the terms, covenants and conditions on the part of Lessor to be observed and performed, and if not, specifying same; and - - (c) The dates to which annual rent, participation rental, additional rental and all other charges hereunder have been paid. , 26.02 From Lessor. Lessor shall, without charge, and at any time and from time to time, within twenty (20) days after request by Lessee, deliver a written instru- ment to Lessee or any other person, firm or corporation specified by Lessee, duly executed and acknowledged, certifying: (a) As to the same facts as set forth in this article as may be requested by Lessee; and (b) Whether or not there are then any existing set offs or defenses In favor of Lessor against the enforcement of any of the terms, covenants and conditions of this Lease by Lessee, and if so, specifying the same, and also whether or not Lessee has observed and performed all of the terms, covenants and conditions on the part of Lessee to be observed and performed, and if not, specifying same. ARTICLE TWENTY -SIX 28.01 Reversion Of Title To Lessor. Title to all'improvements and appurte- nances thereto, as well as all alterations, changes and additions thereto and all equip- ment, fixtures and machinery therein contained and all furniture and furnishings of the Lessee therein, when made, erected, constructed, installed or placed upon, below or above the Demised Premises, shall be and remain in Lessee until the expiration of the Demised Term hereof, unless this Lease shall be sooner terminated as herein provided, and upon such expiration or sooner termination, title to all such buildings and improve- ments and all equipment, fixtures and machinery therein contained as are then remaining on, below or above the Demised Premises shall automatically pass to, vest in and belong to Lessor without further action on the part of either party and without cost or charge to Lessor, as provided. Notwithstanding the provisions of this section, Lessee shall have the ARTICLE TWENTY -SEVEN Construction Delays 27.01 Construction Delays. Whenever Lessee, pursuant to the provisions of this Lease, is required to repair or restore any building within a particular time limit, or at or before a specified date, and if Lessee should in good faith be delayed in such work of repair, restoration or replacement by any strike, lockout, war, fire, act of God or other casualty, inability to obtain labor or materials, or governmental restriction, with- out the fault or neglect of Lessee, then and in such event the period of the delay occasioned by any such cause shall be added to the particular time limit otherwise provided herein, and Lessee shall not be in default if it shall complete such work of repair or restoration within the stipulated time limit as increased by a period of time equal to such period of delay. ' ARTICLE TWENTY -EIGHT Covenant to Yield Possession ii, 1 2891% .933 :x11289 P ..934 right to remove trade fixtures not owned by Lessor at any time prior to expiration of the Demised Term and for a period of thirty (30) days after any earlier termination hereof. 28.02 Surrender By Lessee In Good Condition. Except as herein otherwise provided, Lessee shall on the last day of the term, or upon the sooner termination of the term, peaceably and quietly surrender and deliver up to Lessor the Demised Premises and the buildings, structures and improvements on or above the Demised Premises, broom - clean, including all buildings, alterations, rebuildings, replacements, changes, additions and improvements constructed, erected, added or placed by Lessee on, in, below or above the Demised Premises, with all equipment in or appurtenant thereto, together with all fixtures forming a part of, located in or used in connection with the operation of the Demised Premises or of said buildings and improvements, subject to- depreciation and ordinary wear and tear, and except as Lessee may have been prevented from maintaining any such building or improvement in good order and repair due to occupation thereof by any sovereign who shall have taken the temporary use thereof or who shall have been in possession thereof, without any payment or allowance whatever by Lessor therefor. Lessee hereby waives any notice now or hereafter required by law with respect to vacating the Demised Premises at any such termination date. ARTICLE TWENTY -NINE Modification 29.01 Modification. None of the covenants, terms or conditions of this Lease to be kept and performed by either party to this Lease shall in any manner be waived, modified, changed or abandoned except by a written instrument duly signed, acknowl- edged and delivered by the other party to this Lease. ARTICLE THIRTY Notices 30.01 Manner Of Mailing Notices. In every case where under any of the provisions of this Lease or in the opinion of either Lessor or Lessee, or otherwise, it shall or may become necessary or desirable to make or give any declaration or notice of any kind to Lessor or Lessee, a copy of any such declaration or notice shall be either personally delivered or sent by certified mail, return receipt requested, postage prepaid, properly addressed to Lessor or Lessee (as the case may be) at such address as the one party may have theretofore furnished to the other party in writing for the purpose of receiving notices, or if no such address shall have been theretofore furnished to such party for such purpose, then properly addressed to the party at such party's last known address. 30.02 Notices To Mortgagees. All notices, demands or requests which may be required to be given by Lessor or Lessee to any mortgagee of the leasehold estate or the buildings shall also be sent by Lessor or Lessee, as the case may be, in writing, by registered mail, postage prepaid, addressed to the mortgagee of the leasehold estate or the building at such place as such mortgagee may from time to time designate in a written notice to Lessor and Lessee. 30.03 When Notice Deemed Given. Whenever a notice is required by this Lease to be given by either party hereto to the other party or by either party hereto to a mortgagee, the notice shall be considered as having been given on the day on which the notice was received at the address specified for delivery as indicated on the returned receipt, or if such notice is refused, on the date of such refusal. ARTICLE THIRTY -ONE Captions 31.01 Captions. The captions and headings in this Lease are inserted only as a matter of convenience and for reference, and they in no way define, limit or describe the scope of this Lease or the intent of any provision thereof. -19- ARTICLE THIRTY -TWO Short Form Lease and Counterparts • 32.01 Short Form Lease. The parties hereto may, subsequent to the execution and delivery hereof, execute, acknowledge and deliver a short form memorandum of lease for the purpose of recording, but the parties further agree that the terms, cove- nants and conditions of this Lease shall control. 32.02 Counterparts. The parties hereto have simultaneously executed, acknowledged and delivered this Lease in duplicate counterparts. Each of such counter- parts is in all respects similar and is to be deemed complete in itself and any one of which may be introduced in evidence or used for any purpose without the introduction of any counterparts thereof. ARTICLE THIRTY -THREE 'No Partnership Or Joint Venture 33.01 No Partnership Or Joint Venture. This Lease Is not intended nor shall it be construed to create the relationship of either a partnership or a joint venture between the Lessor and the Lessee. - ARTICLE THIRTY -FOUR Controlling Law 34.01 Controlling Law. This Lease shall be governed by and construed in accordance with the local laws of the State of Texas. • • ARTICLE THIRTY -FIVE Covenants To Bind And Benefit Respective Partles And To Run With The Land 35.01 Covenants To Run With The Land. All the covenants, agreements, conditions and undertakings in this Lease shall extend and inure to and be binding upon . the distributees, lessees, successors and assigns of each of the parties hereto, the same as if they were in every case named and expressed, and the same shall be construed as covenants running with the land. Wherever in this Lease reference is made to any of the parties hereto, it shall be held to include and apply to, wherever applicable, also the distributees, lessees, successors and assigns of each such party, the same as if in each and every case so expressed. ARTICLE THIRTY-SIX Interest Upon Arrears • 36.01 Interest Upon Arrears. Each and every installment of rent accruing under this Lease shall, If it is not paid when due, bear interest at the rate of eighteen per cent (18 %) per annum from said date until the same shall be paid. ARTICLE THIRTY -SEVEN Entire Agreement - • 37.01 Entire Agreement. This Lease contains the entire agreement between the Lessor and the Lessee and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. The terms of this Lease cannot be changed or terminated orally, but only by an instrument in writing executed by the parties. -20- ,, 1289- 935 1289 r:: 9J6 Successors And Assigns 38.01 Successors And Assigns. All of the terms, covenants and conditions herein contained shall inure to the benefit of and be binding upon the Lessor, its succes- sors and assigns, and the Lessee, its successors and assigns, and those who at any time shall be the owners of the land or of the leasehold estate hereby created, respectively, or of the buildings and improvements on, below or above the Demised Premises. 39.01 Severability. The invalidity of any provision of this Lease, as deter- mined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 39.02 Number and Gender. Where the context so requires, the use of the neuter gender shall include the masculine and feminine genders, and the masculine gender shall include the feminine and neuter genders; the singular number shall include the plural and the plural number shall Include the singular. IN WITNESS WHEREOF, the Lessor and Lessee have caused this Lease to be executed in counterparts as of the day and year first above written. ATTEST: f #1 .11/4 ! % L./. 1 Address: 0 Land, City Secretary 214 East Main . Round Rock, Texas, 78664 Address: 1860 Blake Street Suite 500 Denver, Colorado 80202 ARTICLE THIRTY -EIGHT ARTICLE THIRTY -NINE Miscellaneous LESSOR: CITY OF ROUND ROCK, TEXAS a municipal corporation By Mike Robinson, Mayor LESSEE: ROUND ROCK PARTNERS, a Colorado general partnership By -21- aul R. Cronk, General Partner STATE OF TEXAS COUNTY OF WILLIAMSON The foregoing instrument was acknowledged before me this Il day of <- ¢ ,. —f.1)n 1985, by Mike Robinson as Mayor and by Joanne Land as City Secretary for and on behalf of City of Round Rock, Texas. Witness my hand and official seal. STATE OF TEXAS (SEAL) ACKNOWLEDGMENTS ) ss. Publ•c �i `� /66 )0 My commision expires: �SJ ' / /l ) ss. COUNTY OF WILLIAMSON ) f / The foregoing instrument was acknowledged before me this j•-7 day of , 1985, by Paul R. Cronk as general partner of Round Rock Partners, a Colorado general partnership for and on behalf of said partnership. Witness my hand and official seal. No rPPub1'o' My commission expires: -22- /011289 pA. 937 6- c�4n/ /7 1289: 938 Legal Description: Lots 1 -10 and 13 -16, Block 10, Original Town of Round Rock Williamson County, Texas STATE OF TEXAS COUNTY OF WILLIAMSON I hereby certify that this Instrument was FILED on the date and at the time stamped hereon by me; and was duly RECORDED, in the Volume and Page as stamped Cheeontby Williamson me, on DEC 3 01985 00/41.4.0 COUNTY CLERK WILLIAMSON COUNTY, TEXAS EXHIBIT A TO GROUND LEASE AGREEMENT Together with all of Lessor's right to any streets, alleys or rights of way adjacent thereto which have been or may hereafter be vacated. -23-