GROUND LEASE, 1. This Lease agreement ("Lease") is made and entered by and between: Lessor: City of Austin, a Texas home rule city and municipal corporation (the “City” or “Lessor") Mailing Address: Real Estate Services Division Contract and Land Management Office P.O. Box 1088, Austin, Texas 78767-8839 Lessee: ‘Austin Yellow Bike Project, a Texas non-profit corporation (the “Lessee”) Mailing Address: 1307 Leona St., Austin, Texas 78702, until issuance of a certificate of ‘occupancy for the Shop (defined in Article 3 below). After issuance of a certificate of occupancy: 1201 Webberville Rd., Austin, Texas, 78721 2. Property Name: 2.8040 acres of Abstract 22, Survey 29, J.C.Tannehill Survey, Travis County, Texas Property Address: 1200 Webberville Road Austin, Texas 78721 (the “Property”) 3. Leased Premises: ‘That part of the Property bounded on the northeast by the 7.946 acre tract of land owned by Austin Independent School District and ‘occupied by Simms elementary School, bounded on the southeast by the right-of-way of Webberville Road, and bounded on the northwest and southwest by the “new fence” and “relocated fence” shown on Exhibit A, which is attached hereto and incorporate herein. Upon construction of the “new fence” and “relocated fence” under Article 6.1, the northwest and southwest boundaries of the Leased Premises shall be fixed at the actual location of those fences. 4, Commencement Date: ‘This Lease is effective as of the date it has been signed by both Parties (the “Commencement Date”) The 2008 temporary use agreement between Lessor and Lessee allowing Lessee t0 use the Leased Premises terminates as of the Commencement Date, 8, Expiration Date: ‘The anniversary of the Commencement Date in the year 2059, unlessextended by Lessee under Article 2. 9, Parking: Lessee shall be entitled to exclusive use of the three regular parking spaces and one handicapped parking space in the asphalt parking area shown on Exhibit A. However, Lessor reserves the right to use the parking area driveway for ingress and egress to Lessor’s abutting land and Leessee will keep the driveway free of obstructions that might limit that access, ARTICLE 1. Leased Premises In consideration of Lessee’s covenant to provide the consideration in Article 3 and performance of Lessee’s other obligations and covenants under this Lease, Lessor hereby leases, demises, and lets to Lessee, and Lessee does hereby lease and take from Lessor the Leased Premises. ‘The Leased Premises are leased subject to all liens, covenants, easements, agreements, and restrictions of record, provided that if Lessee discovers any title matter that makes the purpose of the Lease impractical, in its sole discretion, Lessee shall have the right to terminate, ARTICLE 2. Lease Term; Extension Options 2.1 This Lease shall commence on the Commencement Date, and shall terminate at II pm, on the Expiration Date, unless extended or sooner terminated as provided in the Lease, or unless Lessee does not extend the initial term or the First Renewal Term. The initial term shall commence on the commencement date and expire after 50 years on [DATE] 2059 (the “Initial Term”). Subject to Lessor’s rights under Section 2.2, Lessee may exercise an initial twenty-five year option to extend the Lease on the same terms and conditions (the “First Renewal Term”) by giving Lessor advance written notice of Lessee’s desire to extend the Lease at least 120 days before expiration of the then-current lease term. Lessee may exercise a second twenty-four year option to extend the lease on the same terms and conditions (the “Second Renewal Term”) by giving Lessor advance written notice of Lessee’s desire to extend the Lease at least 120 days before expiration of the then-current lease term. 2.2 Lessor may send to Lessee at least 150 days before the expiration of the Initial ‘Term and the First Renewal Term a written notice (“Termination Notice”) that Lessor desires to take back the Leased Premises upon expiration of the Lease. The Termination Notice shall include Lessor’s estimation of the fair market value (“FMV”) of the Shop, as defined in Article 4 below. If Lessor timely sends the Termination Notice and terminates the Lease, Lessor shall pay Lessee the FMV of the Shop. If the Lessee does not agree on the FMV proposed by Lessor, Lessee may within thirty (30) days of receipt of the Termination Notice opt to have the FMV determined as follows: FMV shall be determined as of the Expiration Date and shall mean the price a willing buyer would pay a willing seller for the Shop. No later than sixty (60) days before the Expiration Date, Lessee and Lessor shall eachappoint an appraiser. Appraisers appointed under this section shall be impartial, have an office in Travis County, Texas, and at least ten (10) years experience appraising commercial buildings in the Travis County, Texas, area, and shall be a member of the American Institute of Real Estate Appraisers or a successor or similar organization of national standing. The appraisers shall meet promptly and attempt to agree on the FMV. If the appraisers cannot agree, but their determinations of the FMV differ by an amount equal to or less than five percent (5%) of the higher of the two determinations, then the FMV shall be equal to the arithmetic mean of the two determinations. If their determinations of the FMV differ by more than five percent (5%) of the higher of the two determinations, no later than 60 days efore the Expiration Date, the appraisers shall select a third appraiser. If the appraisers cannot agree on a third appraiser, each appraiser shall select the names of two other willing appraisers and one name shall be selected to be the third appraiser by lot in a manner agreed upon by Lessee and Lessor. The third appraiser shall determine the FMV at least 30 days before the Expiration Date. The average of the two determinations of FMV which are closer to each other than the other determination of FMV shall be the FMV. This Lease shall terminate when Lessor pays the Lessee the FMV. Lessee and Lessor shall each pay for their ‘own appraiser and the cost of the third appraiser shall be shared equally by Lessee and Lessor. ARTICLE 3. Consideration ‘The consideration for this Lease is the benefit to the community that will result from Lessee’s undertaking the programs described in Article 5. These benefits include but are not limited to reduced vehicular traffic and congestion on City streets, reduced impairment of air quality in the City, and the improved health of reduced health care costs for the citizens and employees of the City that will result from increased use of bicycles in lieu of automobiles as a mode of transportation in the City. In addition, Lessee will (i) donate approximately 100 bicycles annually to area schools through its Bikes to School program, (ii) undertake bicycle-oriented after-school youth programs, and (iii) provide three (one each in spring, ‘summer, and fall) 4-week bicycle maintenance or Road 1 bicycling courses annually for city employees at a place and time determined by Lessee. ARTICLE 4. Use of the Leased Premises Lessee shall use and occupy the Leased Premises only to operate a community bicycle shop (the “Shop”) on a not-for-profit basis. The purpose of the Shop shall be as a facility (i) where persons can, for free or for no more than a nominal charge (which may be set to recover costs and reasonable expenses), lean to construct, repair, maintain, or ride bicycles (ii) for the construction, repair, or storage of bicycles to be either provided to the general community for free use or donated to individuals in need and (jii) to provide space for meetings and administrative functions to support and promote the activities referred to in Articles 3 and 4, The Shop shall include work-stations outfitted with tools and repair manuals. Lessee shall provide coordinators to teach persons about constructing, repairing, maintaining, or riding bicycles and shall use best efforts to maintain an inventory ofprimarily donated bicycles and bicycle parts. Lessee shall use the Leased Premises for no other purposes without the prior written consent of Lessor ARTICLE 5. Construction and Maintenance; Condition of Premises; Access; Operating Expenses 6.1 Lessee agrees to construct at its sole expense the Shop described in Article 4. Lessee shall submit complete plans and specifications for the Shop and ancillary facilities to Lessor to for approval on that basis prior to applying for any permit necessary to begin construction of the Shop. Lessee shall design and construct the Shop in accordance with the approved site plan. Lessee shall commence construction of the Shop within the later of one year of the Commencement Date or 4 months of the plan approval and shall complete the Shop in a timely, good, and workmanlike manner within eighteen months, which may be ‘extended by Lessor for cause shown, including but not limited to periods of delay beyond the Lessee’s control. Lessor may terminate this Lease if for any reason the Shop is not completed within five years of the Commencement Date. 6.2. No consent for construction of the original Shop as shown on the site plan shall be required except for the approval contemplated in section 6,1. Otherwise, Lessee shall obtain Lessor’s written consent before making any major alterations or physical additions in the Leased Premises. No structural changes to the Leased Premises shall be made by Lessee without Lessor’s prior written consent. Lessor consent under this paragraph shall not be unreasonably withheld. 6.3 Any equipment owned by Lessee, whether installed by Lessee or Lessor, shall remain the property of Lessee, including, but not limited to: removable tade fixtures; special equipment located in mechanical rooms, or on the roof, or in areas other than the Leased Premises; Lessce's telephone or communications systems and equipment, including, wiring and cabling; additional air conditioning equipment installed by Lessee; antennas; wiring; movable partitions; and other computer and communication equipment. 6.4 The Shop shall become part of the Leased Premises and the property of Lessor, and shall be surrendered to Lessor, only upon the termination of this Lease, normal wear and tear excepted, subject to Lessor’s reimbursement obligations for termination under section 22. 6.5 Lessee shall not use, occupy, or permit the use or occupancy of the Leased Premises for any purpose that is: (a) forbidden by law, statute, ordinance, governmental or municipal regulation or order, (b) dangerous to life, limb, or property, (c) commission of ‘waste; (d) a public or private nuisance; or (e) an action or omission that would increase the fire and extended coverage insurance rates on the Leased Premises or Property. 6.6 Lessee shall keep the Leased Premises in good repair and shall promptly notify Lessor of any damage to the Leased Premises. Lessee shall keep the foundation; roof; extetior walls; building systems and components including HVAC, plumbing and electricalsystems; building envelope of the Property and Leased Premises in good repair; including treatment for any wood-infesting insects (“Repairs”). Repairs made by Lessee shall be completed in a good, workmanlike, and timely manner. Lessee shall give Lessor prior written notice of the need for any significant Repairs. 6.8 Lessor, its employees, contractors, agents and representatives, shall have the right to enter the Leased Premises at all reasonable hours to inspect and make repairs, alterations, and additions to the Leased Premises. All work performed by Lessor shall be diligently performed and conducted so as to minimize any interference with Lessee's normal business operations. 6.9 Lessee shall pay all operating expenses relating to the Leased Premises, including but not limited to those for water, wastewater, electric, natural gas, telephone, cable, telecommunications, insurance, and taxes. ARTICLE 7. Quiet Possession 7.1 Lessor agrees that Lessee shall peaceably and quietly hold, possess, and enjoy the Leased Premises for the Lease Term. ARTICLE 8. Reservation 8.1 During the Lease Term, Lessor reserves the right to use the part of the Leased Premises adjacent to Webberville Road for parking, driveways, entrances and exits, truck ways, loading areas, pedestrian walkways and ramps, landscaped areus, or other areas and improvements, but only as marked on Exhibit A (the “Common Areas”) for the benefit of the public or the part of the Property that is not the Leased Premises. 8.2 Lessee, its employees, agents, invitees and permittees shall, during the Lease ‘Term, have access to the Common Areas appurtenant to the Property and Leased Premises. ARTICLE 9. Insurance Requirements Lessee shall carry insurance in the types and amounts as set forth in Exbibit.B, which is attached hereto and incorporated herein ARTICLE 10. Damage by Fire or Other Casualty 10.1 If improvements on the Leased Premises should be totally destroyed by fire, flood or other casualty (“Casualty”), or if the Leased Premises should be so badly damaged ‘by Casualty that the Leased Premises are untenantable, then Lessee shall have the option to (a) terminate this Lease, as of the date of the occurrence, by written notice delivered to Lessor within thirty (30) days following the damage or destruction; or (b) continue thisLease in full force and effect, in which event Lessee shall promptly and diligently repair and restore the damaged or destroyed Leased Premises and Property to substantially the same condition existing prior to the Commencement Date. 10.2 If the Leased Premises are damaged by Casualty, but are not made untenantable, this Lease shall continue in full force and effect, and Lessee shall promptly and diligently repair and restore the damage to the Leased Premises to substantially the same condition prior to the Casualty. 10.3 If the Casualty damage cannot be repaired within one-hundred and eighty (180) days from the date of Casualty, this Lease may be terminated by either Lessor or Lessee. For the purposes of this Article, "untenantable" shall mean that the Leased Premises have been made totally inaccessible or unfit for use under the terms of this Lease. 10.4 If Lessee terminates this Lease under this Article, Lessee shall remove all damaged improvements and restore the Leased Premises and Property to substantially the same condition that existed on the Commencement Date at Lessee’s expense. ARTICLE 11, Risk and Indemnification 11.1 All personal property of Lessee located in the Leased Premises shall be kept and stored at Lessee’s sole risk. 11,2 Lessee shall indemnify and hold harmless Lessor, its employees, agents, successors, and assigns from and against all injury, loss, claims, or damages to any third party or property arising from, related to, or in connection with, use and occupancy of the ‘Common Areas and Property. ARTICLE 12. Eminent Domain 13.1 If, during the Lease Term, any part of the Leased Premises shall be taken by ‘eminent domain, and the taking would prevent or materially interfere with Lessee's use of the Leased Premises, Lessee may elect either to (a) terminate this Lease, relieving Lessor and Lessee of all obligations under this Lease, or (b) continue this Lease in full force and effect. 13.2 If Lessee elects to continue the Lease, Lessee shall repair to the extent reasonably practicable any damage to the Leased Premises resulting from the taking. Lessor shall be entitled to recover from the condemning authority the full amount of Lessor's interest in the Property taken in condemnation; Lessee shall be entitled to recover the value ‘of Lessee's improvements in the Leased Premises, if any, taken, but not the value, if any, of the remaining Lease interest; and Lessee shall be entitled to recover from the condemning authority any damage to the Leased Premises that Lessee is obligated to repair under thissection. ARTICLE 14. Assignment or Sublease 14.1 Lessee may not assign or sublease any or all of the Leased Premises without Lessor’s prior written approval, In the event Lessee should desire to assign this Lease or sublease any of all of the Leased Premises (the “Sublease”) Lessee shall give Lessor written notice at least sixty (60) calendar days in advance of the date of the proposed sublease or assignment (the “Sublease Notice”). 14.2 The Sublease Notice will include (a) the name and address of the proposed sublessee of assignee, (b) all information regarding the proposed sublease or assignment, (c) the proposed effective date, (d) whether an assignment or sublease is proposed, (e) copies of the proposed assignment or sublease document, and (f) current financial status of the proposed assignee or sublessee, and (h) any other information requested by Lessor. 143 Any attempted assignment or sublease by Lessee in violation of this Article shall be void ARTICLE 15. Assignment by Lessor 15.1 In the event the Property is sold, transferred in a like kind exchange, or otherwise conveyed (“Conveyance”), by Lessor to a buyer or transferee (“Buyer”), Lessor agrees it shall have the obligation to assign this Lease to the Buyer of the Property (Assignment of Lease”) in compliance with this Article. 15.2 Lessor shall provide written notice to Lessee of (a) a pending Conveyance to a Buyer, (b) the proposed date of the Conveyance; and (c) a proposed copy of the Assignment of Lease, within ten (10) days following the execution of a Contract of Sale of the Property between Lessor and Buyer. 153 As a condition precedent to Conveyance of the Property, Lessor agrees and stipulates that Buyer, prior to or on the date of closing, will (a) join in execution of the ‘Assignment of Lease, (b) assume all Lessor’s obligations under the Lease, and (c) covenant ‘that Buyer will not disturb Lessee’s quiet possession. Upon written notice to Lessee, with a true and correct copy of the executed Assignment of Lease attached, and provided the Assignment of Lease conforms to the requirements of this Article, Lessee will attom to Buyer as Property owner and Lessor of the Leased Premises. As of the date of Conveyance, Lessor shall have no further liability under this Lease provided the terms of this Article have been met.ARTICLE 16. Rules and Regulations Lessee agrees to comply with all reasonable rules and regulations that Lessor may adopt from time to time for operation, protection and welfare of the Leased Premises, Property, Common Areas, and tenants, visitors, and occupants. Copies of all Rules and Regulations must be timely provided to Lessee. Lessor stipulates that all Rules and Regulations will not be inconsistent with the provisions of this Lease. ARTICLE 17. Governmental Regulations 17.1 Lessee warrants that, at the time of construction, renovation and/or improvements to the Leased Premises, handicapped accessibility to the Leased Premises will comply with accessibility requirements as required by the Americans with Disabilities Act of 1990, the Texas Accessibility Standards (TAS), and Chapter 5-2 of the Austin City Code, as those requirements may be amended (“Legal Requirements”). 17.2 Lessee agrees to comply with and to maintain and operate the Leased Premises in compliance with all applicable laws, rules, and regulations of county, municipal, state, federal, and other applicable governmental authorities. ARTICLE 18. Discharge of All Liens Lessee shall pay promptly all contractors, subcontractors and materialmen to avoid any lien from attaching to the Leased Premises or Property. ARTICLE 20. Lessee's Covenants Lessee hereby covenants and agrees as follows: (a) Lessee shall pay any sums due Lessor under the Lease, to Lessor as it becomes due and payable under the terms of this Lease. (b) At Lease termination and surrender of possession of the Leased Premises, Lessee shall remove, at its sole expense, any of Lessee's property specified to be removed in a written notice by Lessor to Lessee and Lessee may remove other property that is not Permanent under section 6.4. Lessee shall repair any damage to the Leased Premises caused by Lessee’s removal of its property. (c) Lessee shall observe and perform all of the terms, conditions, and obligations of this Lease.ARTICLE 21. Lessor's Covenants Lessor hereby covenants and agrees to observe and timely perform all the terms, conditions, and obligations of this Lease. ARTICLE 22. Default by Lessee; Lessor's Remedies 22.1 Each of the following acts or omissions by Lessee shall constitute an event of default (a "Lessee Default"): (a) Failure or refusal by Lessee to make the timely and punctual payment of any sums payable under the Lease. (b) Failure by Lessee to perform or comply with any of the terms, covenants, or conditions in this Lease. 22.2 Upon Lessee Default, Lessor shall give Lessee written notice specifying the Lessee Default, and Lessee shall cure its default within thirty (30) days of receipt of written notice, plus any additional time as may be reasonable necessary for cure. If after additional reasonable time the Default has not been cured, Lessor shalll send a second notice specifying the Default and additional reasonable time for cure. If Lessee shall fail to cure a Lessee Default within 30 days of the additional reasonable time specified in the second notice, Lessor may, at its option, in addition to all other rights and remedies available under this Lease, at law, or in equity, (a) continue this Lease in full force and affect, OR (b) terminate this Lease, in which event Lessee shall immediately surrender possession of the Leased Premises to Lessor, OR (c) elect not to terminate this Lease, and Lessor may relet the Leased Premises and terminate the Lease upon reletting, If Lessor is unable to put the Leased Premises to use for a public purpose within a reasonable time, Lessor shall use best efforts to relet the Leased Premises. 22.3 Exercise by Lessor of any of its remedies available under this Lease shall not be deemed to be surrender of the Leased Premises by Lessee, whether by agreement or by operation of law, it being understood that surrender of the Leased Premises must be by written agreement between Lessor and Lessee. 22.4 Upon Lessee Default, if Lessor elects to terminate this Lease, Lessee shall be liable for the sum of indebtedness accruing under the Lease, and all expenses incurred by Lessor incident to Lessee’s Default, up to the date of Lease termination. 22.5 Unless otherwise provided in the Lease, if Lessee should fail to timely make any payment or cure any Lessee Default, Lessor, without being under any obligation to do so and without waiving the Lessee Default, may make such payment and/or remedy the default for the account of Lessee. Lessee agrees to pay Lessor upon demand all costs, ‘expenses, disbursements, repossession costs, and expenses incurred by Lessor incident to Lessee Default.22.6 All costs and expenses incurred by Lessor incident to Lessee Default shall be paid by Lessee to Lessor at its current Mailing Address, ARTICLE 23. Default by Lessor; Lessee's Remedies 23.1 In the event of any default by Lessor (“Lessor Default”), Lessee shall give Lessor written notice specifying the Lessor Default, and Lessor shall have thirty (30) days to ‘cure same, plus any additional time as may be reasonable necessary for cure. If Lessor fails to timely cure its Default, Lessee may (a) file an action for damages, and/or (b) terminate the Lease, and Lessee shall have no further obligation to Lessor under the Lease post- termination. 23.2 All costs and expenses incurred by Lessee incident to Lessor Default shall be paid on demand by Lessor to Lessee at its current Mailing Address ARTICLE 24. Law Governing This Lease shall be subject to, governed by and construed in accordance with all applicable federal, State of Texas, county, and municipal laws, ARTICLE 25. Prior Occupancy If Lessee, with Lessor’s prior written consent, shall occupy the Leased Premises prior to the beginning of the Lease Term, all provisions of this Lease shall be in full force and effect commencing upon the date of occupancy. ARTICLE 26. Estoppel Certificate 26.1 Upon not less than thirty (30) days prior written request by Lessor, Lessee shall prepare, execute, and deliver to Lessor a statement in writing certifying (a) the Lease Commencement Date and Lease Termination date; (b) the amount of any Security Deposi (©) that Lessee has accepted and occupied the Leased Premises; (d) that the Lease is in full force and effect and has not been modified or amended; (¢) that all improvements to the Leased Premises have been satisfactorily completed; (f) that there are no uncured Lessor defaults under the Lease, or any existing conditions that constitute Lessor Default upon notice from Lessee; (g) that Lessee has not received any concessions from Lessor; (h) that Lessee has received no notice from any insurance company of any defects or inadequacies, affecting coverage on the Leased Premises; (i) that Lessee has no options or rights other than those set forth in the Lease; and (j) any other information that Lessor may reasonably request (an “Estoppel Certificate”). Lessee acknowledges that a Buyer may rely on an Estoppel Certificate. -~10-26.2 If an Estoppel Certificate is to be delivered to a prospective buyer of the Property (“Buyer”), it shall include (a) Lessee’s agreement to recognize Buyer as Lessor under the Lease, and (b) Buyers agreement to execute a non-disturbance agreement in favor of Lessee, covenanting non-disturbance and quiet possession of the Leased Premises in Lessee. ARTICLE 27. Memorandum of Lease Lessor may execute a Memorandum of Lease in recordable form, setting forth the names of the parties, the Lease Term, Commencement Date, Termination Date, and the description of the Leased Premises and record it in order to give record notice of this Lease to third parties. ARTICLE 28. Tender and Delivery of Lease Instrument Submission of this instrument to either party for examination does not constitute an offer, reservation of or option for the Leased Premises. This instrument ‘becomes enforceable only upon execution and delivery of the Lease by both Lessor and Lessee. ARTICLE 29. Time is of the Essence In all instances where Lessor or Lessee are required under the terms of this Lease to pay any sum or timely take any action, itis understood and agreed that time is of the essence in this Lease. ARTICLE 30. Notice Notices required under the Lease shall be in writing and shall be delivered by hand, or sent by United States Registered or Certified Mail, postage prepaid, return receipt requested, to the Mailing Addresses for Lessor and Lessee, as may be changed from time to time by either party by giving notice to the other party as provided in this Article 33 (“Current Mailing Address” or “Mailing Address”), ARTICLE 31. Entire Agreement and Binding Effect 31.1 This Lease, any addenda, and exhibits constitute the entire agreement between Lessor and Lessee; no prior written, oral promises, or representations shall be binding upon. the parties. All exbibits, amendments, and addenda attached to this Lease are now incorporated and made a part of this Lease for all purposes.31.2 This Lease shall not be amended, changed, or extended except by written instrument signed by both parties, 31.3 The provisions of this Lease shall be binding upon, and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties. ARTICLE 32. Authority 32.1 The patties to this Lease warrant and represent that each has the power and authority to enter into this Lease in the name, title, and capacity stated; on behalf of the entity, person, or firm represented; and all prerequisites necessary to authorize, negotiate, and enter into the Lease have been fully completed without the joinder of any other party. 32.2 If Lessor is a corporation, Lessor shall be required to deliver to Lessee, contemporaneous with the execution of this Lease, a certified Board of Directors’ resolution evidencing the authority of Lessor and the individual executing this Lease on behalf of Lessor, to enter into this Lease and perform Lessor's attendant Lease obligations. ARTICLE 33. Venue ‘This Lease is to be performed in Travis County, Texas. Venue and jurisdiction of any suit, right, or cause of action arising under or in connection with this Lease shall be exclusively in Travis County, Texas, ARTICLE 34. Terminology Whenever required by the context, as used in this Lease, the singular shall include the plural, and the masculine gender shall include the feminine and neuter. Titles of Asticles are for convenience only, and shall neither limit nor amplify the provisions of this Lease. Any reference to an "Article" shall be deemed to include all provisions of this Lease unless expressly provided to the contrary. ARTICLE 35. Holding Over If Lessee should remain in possession of the Leased Premises after the expiration or termination of this Lease, without the execution by Lessor and Lessee of a new lease, then the Lease shall be deemed to be extended on a day to day basis for the period of possession, and the parties to this Lease shall continue to be subject to all the covenants and obligations of this Lease. Monthly rent during a hold-over period shall be prorated on a daily basis -12-ARTICLE 36. Non-Waiver ‘The failure of Lessor to complain of any action, omission, or default under the Lease, whether singular or repetitive, shall not constitute a waiver of any of Lessor’s rights and obligations under the Lease. Failure of Lessor to insist on a strict performance of any of the Lease covenants and/or obligations of this Lease shall not constitute a waiver or relinquishment of any right or obligation in the future. ARTICLE 37. Severability; Interpretation 37.1 This Lease is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules, and regulations of the City of Austin, Travis County, the State of Texas, and the United States. If any provision of the Lease, or its application, shall for any reason be held invalid or unenforceable by a court of competent jurisdiction, that Lease provision shall be stricken from this Lease; the remainder of the Lease shall remain valid and enforceable to the extent permitted by law. 37.2 Should a dispute arise under this Agreement, there shall be no presumption that the Agreement will be construed in favor of or against either party. THIS LEASE IS EXECUTED in multiple originals, effective on the date signed by all Parties. Facsimile signatures shall have the same force and effect as original signatures. LESSOR: LESSEE: Austin Yellow Bike Project City of Austin, a Texas home rule (@ Texas nonprofit corporation) ‘municipal corporation By: Gb8.LIndh By:_Raunaugte. Pepe — I Lauraine Rizer, Manager Printed Name; Per 5 Wall Real Estate Services Division Date: +2009 Contract and Land Management Office Date: SePrewee” F_, 2009 APPROVED AS TO FORM: oY) Tom Nuckols Assistant City Attorney -13-EXHIBIT “A”EXHIBIT “B” INSURANCE REQUIREMENTS ARTICLE 1 Licensee’s Insurance Requirements 1.1. General Requirements: Lessee shall carry insurance in the types and amounts indicated below for the term of the Lease. Within five (5) days of the execution of this Lease, Lessee shall obtain the required insurance and provide the City a Certificate of Insurance as proof of coverage. If coverage period ends during the term of the Lease, Lessee must, prior to the end of the coverage period, forward a new Certificate of Insurance to City as verification of continuing coverage for the duration of this Lease Approval of insurance by the City and the required minimums does not relieve or decrease the liability or responsibility of the Lessee hereunder and will not be construed to be a limitation of liability on the part of the Lessee, Insurance coverage must: (a) be written by companies licensed to do business in the State of Texas at the time the policy is issued, and (b) with an A.M. Best rating of B+VII or better. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall indicate: City of Austin Real Estate Services Attention: Property Management 505 Barton Springs Road. Suite 1350 ‘Austin, Texas. 78704 The “Other” insurance clause does not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in this Lease, covering both the City and Lessee, will be considered primary coverage as applicable. If insurance policies are not written for amounts specified below, Lessee shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it must follow the form of the primary coverage. City shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except were policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. City reserves the right to review the insurance requirements set forth during the effective -15-period of this Lease and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by City based upon changes in statutory law, court decision, the claims history of the history of the industry or financial condition of the insurance company as well as the Lessee. Lessee shall not cause or permit any insurance to lapse or to be canceled during the term of this Lease, Lessee shall be responsible for premiums, deductibles and self-insured retention’s, if any, stated in policies. All Certificate of insurance. 1.2. Specific Coverages: Commercial General Liability Insurance: ‘The Policy must contain the following provisions: a) Blanket contractual liability coverage for liability assumed under the ‘Temporary Use Agreement and all contracts relative to this Temporary Use Agreement b) _ Independent Contractors coverage ©) City listed as an additional insured, endorsement CG 2010 4) Thirty (30) Day Notice of Cancellation in favor of City, endorsement CG o20s ©) Waiver of Transfer of Recovery Against Others in favor of City, endorsement CG 2404 Provide coverages A & B with minimum limits as follows: ‘A combined bodily injury and property damage limit of $1,000,000 per occurrence. ARTICLE 2 Lessor's Commercial General Liability Insurance 2.1 Lessee understands that Lessor is a self-insurer and does not maintain commercial general liability insurance coverage. ARTICLE 3 Requirements for Contractors performing work on the Premises 3.1 General Requirements: Contractor's insurance coverage must be written by companies: (a) licensed to do business in the State of Texas at the time the policies are issued, and (b) with an A.M. Best rating of B+VII or better. All endorsements such as additional insured, waivers, and notices of cancellation endorsements as well as the attached certificate shall indicate naming the City of Austin as follows: City of Austin Real Estate Services Attention: Property Management - 16 -505 Barton Springs Road, Suite 1350 Austin, Texas 78704 ‘The "other" insurance clause does not apply to the City where the City of Austin is an additional insured shown on any policy. It is intended that policies required in the Contract, covering the City and the Contractor, will be considered primary coverage as applicable. If insurance policies are not written for amounts specified above, Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it must follow the form of the primary coverage. ‘The City shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies ‘The City reserves the right to review the insurance requirements set forth during the effective period of this Temporary Use Agreement and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. ‘The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. ‘The Contractor shall be responsible for premiums, deductibles and self-insured retention’, if any, stated in policies, All deductibles or self-insured retention’s will be disclosed on the certificate of insurance attached. ‘The Contractor shall provide the City thirty (30) days written notice of erosion of the aggregate limits below occurrence limits for all applicable coverages indicated within the Contract If City owned property is being transported or stored off-site by the Contractor, then the appropriate property policy will be endorsed for transit and storage in an amount sufficient to protect the City’s property. ‘The insurance coverages required under this contract are required minimums and are not intended to limit the responsibility or liability of the Contractor. 3.2 Specific Coverages: Insurance Requirements for any agreements containing provisions for contractors cleaning, maintaining, repairing or working on Premises: Contractor shall carry insurance in the types and amounts indicated below for the duration of the Contract, which includes items owned by the City in the care, custody and control of the Contractor prior to and during the period during which services are provided, ay(1) Workers' Compensation and Employers’ Liability coverage with limits consistent with statutory benefits outlined in the Texas Workers’ Compensation Act (Section 401) and minimum policy limits for employers liability of $100,000 bodily injury each accident, $500,000 bodily injury by disease policy limit and $100,000 bodily injury by disease each ‘employee. The City will accept workers’ compensation coverage written by the Texas Workers Compensation Insurance Fund, ‘The Contractor's policy must apply to the State of Texas and include these endorsements in favor of the City of Austin: (@) Waiver of Subrogation, form WC 420304 (b) 30 day Notice of Cancellation, form WC 420601 (2) Commercial General Liability Insurance with a minimum bodily injury and property damage per ocourrence limit of $500,000 for coverages A & B. The policy must contain the following provisions: (a) Blanket contractual liability coverage for liability assumed under this contract, and all contracts relative to this Temporary Use Agreement. (6) Completed Operations/Products Liability for the duration of the Warranty period (©) Explosion, Collapse, and Underground (X, C, & U) coverage. (d) Independent Contractors coverage. (©) City of Austin shown as an additional insured, endorsement CG 2010. (30 day notice of cancellation in favor of the City of Austin; endorsement CG 0205. (g Waiver of Transfer Right of Recovery Against Others in favor of the City of ‘Austin, endorsement CG 2404, (3) Business Automobile Liability Insurance for all owned, non-owned and hired vehicles with a minimum combined single limit of $500,000 per occurrence for bodily injury and property damage. Alternate acceptable limits are $250,000 bodily injury per person, $500,000 bodily injury per occurrence and at least $100,000 property damage liability per accident. The policy shall contain the following endorsements in favor of the City of Austin: (@) Waiver of Subrogation endorsement TE 2046A, a(b) 30 day Notice of Cancellation endorsement TE 0202 (©) Additional Insured endorsement TE 9901B oe