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Res 040-2912 5/1/2012 RESOLUTION NO. _40-2012_ Resolution Authorizing The City Manager To Enter Into A Lease Agreement With North Texas Vision Of Wichita Falls, Inc. For Management And Operation Of The Farmers Market WHEREAS, the City owns and operates a Municipal Produce Market located at 713 Ohio Avenue, commonly referred to as the Farmers Market; and WHEREAS, the City and North Texas Vision of Wichita Falls, Inc. agree that management and operation of the Farmers Market by Downtown Wichita Falls Development (DWFD) will serve to better market, promote and enhance the operation of the Farmers Market; and WHEREAS, the City and North Texas Vision of Wichita Falls also believe that a vibrant Farmers Market will also serve to bring more visitors to downtown and thereby help to reinvigorate the downtown Wichita Falls area; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute a Lease Agreement with North Texas Vision of Wichita Falls, Inc. for the management, operations and minor maintenance of the Farmers Market for period May 1, 2012 to April 30, 2017. st PASSED AND APPROVED this the 1 day of May, 2012. ______________________________ M A Y O R ATTEST: ____________________ City Clerk LEASE AGREEMENT THIS LEASE AGREEMENT is made and entered into this ____ day of ____, 2012 by and between the City of Wichita Falls, hereinafter referred to as the "LANDLORD," and North Texas Vision of Wichita Falls, Inc., a 501(c)(6) corporation organized and operating under the laws of the State of Texas, hereinafter referred to as the "TENANT." WITNESSETH WHEREAS, the Landlord owns certain cultural, historical or architecturally significant real property hereinafter described; and WHEREAS, the Tenant desires to utilize the property for uses that would benefit the City and the downtown Wichita Falls area; NOW, THEREFORE, in consideration of the mutual promises and agreements of the Landlord and Tenant, it is understood and agreed by and between the Landlord and Tenant as follows: 1. Obligations of the Landlord: A. The Landlord hereby leases to the Tenant pursuant to the terms of this Agreement, a portion of certain real property located in the City of Wichita Falls, Texas, hereafter called the FARMERS MARKET, OR THE PREMISES, and described as follows: a. 713 Ohio Avenue, Wichita Falls, TX 76301 B. The term of this Lease shall commence May 1, 2012 and continue through April 30, 2017. This Agreement may be automatically renewed at the end of each term for an additional 5 year term. Either Landlord or Tenant may terminate, without cause, the tenancy by giving the other 90 days written notice of an intention to terminate the agreement. a. Annual rent payment to City of Wichita Falls: $1.00 per year. b. Rental fees for producers and dealers shall be established annually prior to May 1 and approved by the City Manager. C. During the term of this Lease Agreement the City of Wichita Falls shall provide the Farmers Market with routine police and fire protection. Said police and fire protection will be the same type and level of protection provided to comparable properties within the City of Wichita Falls. 2. Obligations of the Tenant: Use of Premises. Tenant shall use the Premises for the purpose of operating a A. retail produce market for the sale of produce and related products directly to consumers. Tenant agrees to continuously and diligently operate a produce market during the market season on the Premises in accordance with the guidelines of the City of Wichita Falls. a. The Farmers Market shall be operated and maintained by the Tenant in an efficient and economical manner. The Tenant shall preserve the same in good repair and order for the duration of this Lease Agreement. The Tenant's programs and operations shall at all times reflect, support, promote and educate the public about the agricultural heritage of north central Texas. This provision shall be a covenant by Tenant and any breach thereof, at the option of the Landlord and after notice by the Landlord, shall be cause for the termination of this Lease Agreement. b. Special Events: Tenant may use the Premises for other promotional events as Attachment A listed in . Prior written consent of Landlord must be obtained for any other use not specifically listed. Tenant shall comply with all governmental laws, ordinances and regulations B. applicable to the use of the Premises, and shall promptly comply with all governmental orders and directives for the correction, prevention and abatement of nuisances in or upon, or connected with the Premises, all at Tenant's sole expense. Tenant is responsible for the collection, filing and paying of any sales taxes that may be assessed on their productions. Tenant is responsible for any state or local health permits required. No additions or alterations to the Premises may be made by the Tenant or placed C. on the Premises by the Tenant during the term of the Lease Agreement, except with the prior written consent of Landlord. Any repairs as a result of the negligence or intentional act of the Tenant or any employee, agent, invitee or patron of the Tenant, shall be promptly made by the Tenant in a good workmanlike manner. Tenant shall maintain the Premises in good repair, condition and cleanliness at D. Tenant's sole expense. Tenant shall be responsible for all trash removal from the leased space on a daily basis. Landlord shall provide adequate dumpsters and collection as agreed upon with Tenant. Tenant also agrees to remove all produce on the site at the end of each day. Tenant shall not permit overnight sleeping, camping, cooking, etc., unless written approval of the Landlord is obtained in advance and is related to a special event or cooking demonstration. Tenant accepts the Premises in an "As Is - Where Is" condition. Landlord makes no E. warranty either expressed or implied of the Premises, including, but not limited to, structure, plumbing or surface conditions. Notwithstanding the above, Tenant shall annually provide Landlord with requests for major repair items in accordance with General Provisions paragraph 3. (B). The Tenant's representative will procure and keep in effect during the term hereof a F. public liability and property damage insurance for the benefit of Tenant and landlord in the amount of at least $200,000 for damages resulting to one person and $500,000 for damages resulting from one casualty, and $100,000 property damage resulting from any one occurrence. Tenant shall provide Landlord prior to the commencement date a proof of insurance certificate showing these minimum amounts. Additionally, Tenant agrees to procure and keep in effect during the term of this Lease Agreement product liability insurance for the benefit of Tenant and Landlord in the amount of $500,000. Landlord shall be named an additional insured on all insurance policies obtained by the Tenant. Any prior oral or written agreement or understanding between the parties which has G. not been expressly stated in this Lease Agreement is hereby deemed to be waived, not part of this Lease Agreement, and no longer of any force or effect. 3. General Provisions: A. Tenant will be responsible for the costs of marketing, promotion, minor repairs (less than $400 per occurrence), maintenance, and any other costs incidental to operation of a farmers market. Landlord will pay for utility costs (water, sewer, gas, and electric) incurred at premises up to a maximum of $5,200 annually. B. Annually, prior to March 1, Tenant will provide Landlord with Tenant’s requests for capital expenditures or improvements which may be desired for the upcoming fiscal year (October 1 through September 30). C. Reports. Tenant shall furnish to Landlord semi-annual reports which show the total gross receipts for the previous period and year to date. The term "gross receipts" as used in this article means receipts from stall rentals of Tenant and all other business conducted on or from the leased premises by Tenant, whether these rentals are evidenced by check, credit, charge account, exchange or otherwise. Tenant agrees to prepare and maintain for a period of not less than 12 months following the end of each lease period, adequate records which will show gross receipts. Landlord and authorized representatives of Landlord have the right to examine the records of Tenant during regular business hours. These receipts will be used for tracking purposes and used to maintain and improve the quality of the market. D. For any claim resulting from the condition of the Premises not brought to the attention of the Landlord by Tenant pursuant to provision 2(E) of this Agreement, Tenant releases Landlord from all claims for loss of life, personal Injury, or damage to the property or business sustained by Tenant or any person claiming through Tenant resulting from any fire, accident, occurrence or condition in or upon the premises or any adjacent property owned by Landlord, including, but not limited to, such claims resulting from: a. Defect in or failure of plumbing, electrical wiring, water pipes, railing or walks; b. Any equipment being out of repair; c. The bursting, leaking or running of any drain or any other pipe in or about the Premises; d. The backing up of any sewer pipe; e. Water, wind, snow or ice coming through the roof of the structure above the Premises; f. Broken glass; g. Any act or omission of another Tenant, invitee or other occupant; and h. Any act or omission of Landlord, or of its principals, agents, servants or employees, unless caused solely by the negligence of Landlord. E. The Tenant shall use and operate the Premises in a careful, safe and reasonable manner. It shall not use or permit the Premises to be used for any purpose prohibited by the laws of the United States of America, the State of Texas, or the charter or ordinances of the City of Wichita Falls and the County of Wichita. It shall not use or keep any substance or material in or about the Premises which would endanger the Premises or vitiate the validity of any insurance upon the structure or increase the hazard of any risk. F. The Tenant shall not assign or transfer its rights under this Lease Agreement either in whole or in part without obtaining the prior written consent of the Landlord. G. The Tenant shall indemnify, defend and hold the Landlord harmless against all damages, losses, claims, demands, costs and expenses {including without limitation, attorneys fees and court costs) and liabilities of any kind or nature whatsoever, including injury or damage to persons or property sustained or claimed to have been sustained by anyone whomsoever by reason of the operation, use or occupancy of the Farmers Market by Tenant, whether such use is authorized by this Lease Agreement or not, or by any act or omission of Tenant or any of its officers, agents, employees, independent contractors, or patrons, and Tenant shall pay for any and all damages to the property of the Landlord, or loss or theft of such property done or caused by such persons. The insurance coverage specified herein constitutes a minimum requirement which shall in no way lessen or limit the liability of the Tenant under the terms of this Lease Agreement. The Tenant shall procure and maintain at its own cost and expense, any additional kinds and amounts of insurance that in its own judgment, may be necessary for its protection and the protection of the Premises. H. All personal property of any kind or description whatsoever, either placed upon or currently upon the Premises, shall be at the Tenant's sole risk and the Landlord shall not be held liable for any damage to or loss of such personal property or for damage or loss suffered by the employees, guests or invitees of the Tenant from any source, including bursting, overflowing or leaking of water, sewer or steam pipes or from heating or plumbing fixtures, or from gases or odors, or caused in any other manner whatsoever, except in the case of the gross negligence or willful misconduct of the Landlord. I. The Tenant agrees to deliver up and surrender possession of the Premises to the Landlord upon the expiration, cancellation or termination of the Lease Agreement, The Premises shall be delivered up clean and in good repair excepting only ordinary, normal wear and tear. J. No waiver or any breach of any one or more of the conditions or covenants of this Lease Agreement by either party shall be deemed to imply or constitute a waiver of any succeeding or other breach hereunder. K. The parties hereto acknowledge and agree that in entering into this Lease Agreement they have not relied upon any statements, representations, agreements or warranties, except such as are expressed herein, and that no amendment or modification of this Lease Agreement shall be valid or binding unless in writing and executed by the parties hereto in the same manner as the execution of this Lease Agreement. L. All notices required to be given to the Landlord shall be given by certified or registered mail at the following address: City Manager PO Box 1431 Wichita Falls, TX 76307 All notices required to be given to the Tenant hereunder shall be given by certified or registered mail at the following address: Executive Director Downtown Wichita Falls Development, Inc. 719 Scott Street Wichita Falls, TX 76301 M. The Landlord shall warrant and defend the Tenant in the enjoyment and peaceful possession of the Premises during the term of the Lease Agreement. N. Nothing in this Lease Agreement shall either obligate or prevent the Landlord from contributing money and/or manpower as the Landlord may from time to time, in its sole and absolute discretion, deem necessary for the proper operation, maintenance and continued development of the Farmers Market. O. Landlord shall have, at all times, a valid security interest to secure payment of all rentals and other sums of money becoming due under this Lease Agreement from Tenant, and to secure payment of any damages or loss that Landlord may suffer by reason of the breach by Tenant of any covenant, agreement, or condition contained in this lease, upon all goods, wares, equipment, fixtures, furniture, and other personal property of Tenant which is now on the Premises or which is placed on the Premises at some later date, and all proceeds from them. The property shall not be removed from the Premises without the prior consent of Landlord and until all arrearages in rent and all other sums of money then payable to Landlord under this Lease Agreement shall have been paid and discharged, and all the covenants, agreements, and conductions of this Lease Agreement have been fully complied with and performed by Tenant. a. Upon the occurrence of an event of default by Tenant, Landlord may, in addition to any other remedies provided in this Lease Agreement or by law, after giving reasonable notice of the intent to take possession, enter upon the Premises and take possession of any and all goods, wares, equipment, fixtures, furniture, and other personal property of Tenant situated on the Premises, without liability for trespass or conversion, and the Landlord may sell the same at public or private sale, with or without having such property at the sale, after giving Tenant reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made. Landlord or its assigns may purchase any items to be sold at such a sale unless they are prohibited from doing so bylaw. b. Unless otherwise provided by law, and without intending to exclude any other manner of giving Tenant reasonable notice, the requirement of reasonable notice shall be met if such notice is given at least 30 days before the time of sale. The proceeds from any such disposition, less any and all expenses connected with the taking of possession, holding, and selling of the property including reasonable attorney's fees and other expenses, shall be applied as a credit against the indebtedness secured by the security interest granted in this section. Any surplus shall be paid to Tenant or as otherwise required by law; and Tenant shall immediately pay any deficiencies to Landlord. Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a financial statement in form sufficient to perfect the security interest of Landlord in the aforementioned property and proceeds under the provisions Of the Uniform Commercial Code in force in the State of Texas, The statutory lien for rent is not waived, the security interest granted in this article being in addition, and supplementary, to that lien. P. Any provision of this Lease Agreement to the contrary notwithstanding this Lease Agreement shall not be construed or deemed to be or create either a partnership or joint venture between the Landlord and Tenant. Attachment ‘B’ Q. See for additional provisions or exclusions. 4. Attorney's Fees and Other Expenses: If any action at law or in equity is necessary to enforce this agreement, each party agrees to pay its own attorney fees and will not seek to recover its attorney fees from the other party. Tenant understands that pursuant to Local Govt. Code §271.153(a)(3), the total amount of money awarded in an adjudication brought against a governmental entity for breach of a contract includes reasonable and necessary attorneys’ fees that are equitable and just. Tenant expressly waives its statutory rights to recover attorneys’ fees as outlined in §271.153(a)(3). 5. Entire Agreement and Modification: This Lease constitutes the entire agreement between Landlord and Tenant and may be modified or amended only by a written document duly executed by both Landlord and Tenant. 6. Governing Law: This Lease shall be governed by and construed in accordance with the laws of the State of Texas. All legal actions to improve or continue this Lease shall be instituted in the courts of Wichita County, Texas. If any provision hereof is invalid or unenforceable, then the remainder of this Lease shall not be affected thereby and shall remain in full force and effect. SIGNED this the _____ day of _____________, 2012. CWF DWF ITY OF ICHITA ALLSOWNTOWN ICHITA ALLS D,I. EVELOPMENT NC By: _________________________ By: ________________________ Darron J. Leiker City Manager Title: _________________________ A: TTEST ___________________________ City Clerk AF: PPROVED AS TO ORM ___________________________ City Attorney ATTACHMENT A – Authorized Special Events 1. St. Patrick’s Day Festival March 17, 2012 2. Cajun Fest May 12, 2012 3. Stroll N Roll September 8, 2012 4. Zombie Crawl October 27, 2012 5. Texas Downtown Association November 6-9, 2012 6. City Lights November 17, 2012 ATTACHMENT B – Additional Provisions and Exclusions 1. Tenant shall comply with the provisions of the City Code of Ordinances, Part II, Chapter 94, Article V “Municipal Produce Market.” 2. Tenant shall fulfill the duties of the Market Manager as prescribed in the City Code of Ordinances.