Res 152-91 9/10/1991RESOLUTION NO. /g-. 04—f/
RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE-PURCHASE AGREEMENT ON THE
FORMER SEARS BUILDING AT 1000 SCOTT STREET.
WHEREAS, on May 1, 1991, the City of Wichita Falls formally
acquired the property at 1000 Scott Street, which was the former
site of Sears and Roebuck; and,
WHEREAS, the City desires to lease/sell this property and
has been advertising for proposals which would provide the
greatest economic impact on the community by the creation of new
employment opportunities and/or additional capital investment in
the downtown area.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WICHITA FALLS, TEXAS, THAT:
The City Manager is hereby authorized to execute a lease-
purchase agreement for the former Sears building, in accordance
with the terms and conditions contained in the lease-purchase
agreement attached hereto.
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PASSED AND APPROVED this the / /L-/day of September, 1991.
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M A z7 O R
ATTEST:
City lerk
LEASE AGREEMENT
THIS IS A LEASE, dated September 10 1991, between
City of Wichita Falls (herein called "Lessor, " ) , and
RWH Enterprises, Inc . herein called "Lessee" ) :
1. DEMISE. Lessor hereby leases to Lessee, and Lessee
hereby leases from Lessor, the following described land situated
at 1000 Scott Street, in the City of Wichita Falls, County of
Wichita, and in the State of Texas, to-wit:
All of Lots 1 through 10, Block 193 , Original
Townsite, together with 25 ' alley closed by
Ordinance No. 2221.
together with all rights, privileges and appurtenances thereto,
and all of Lessor' s building, improvements, equipment and other
property now or hereafter located thereon.
2. TERM. This lease is for a term of three ( 3 ) years,
commencing on September 10 1991 , and ending on
September 10 1994.
3. RENT. The Lessee agrees to pay the Lessor as rental
for the premises during said term the annual sum of Thirty Six
Thousand ( $36,000. 00 ) Dollars, payable in monthly installments of
Three Thousand ( $3 , 000 . 00) Dollars. Rental payment is to be made
on or before the fifteenth ( 15th) day of each month by check
payable to the City of Wichita Falls. It is understood and
agreed that Lessee ' s obligation to pay rent shall not commence
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until the date Lessee opens for public business on the premises,
or March 10, 1992 , whichever occurs first. Rent for any period
less than a calendar month shall be prorated.
4 . USE OF PREMISES. Lessee shall have the right to use
the premises for a retail sales business or any other lawful
purpose. Lessor agrees to eliminate two ( 2 ) parking spaces on
Lamar Street in front of the two ( 2 ) sliding doors.
5. UTILITIES. Lessee shall pay all public utility
charges, including heat, water, sewer, electricity, gas,
telephone and other utility services on the premises from the
date of execution of this lease through the term of this lease.
6. TAXES AND ASSESSMENTS. In addition to the rental
payments specified herein, Lessee shall pay, as they become due,
all ad valorem, personal property, and other taxes levied against
the leased premises during the term of this Lease. Lessee shall
also pay any assessments levied against the leased premises
during the term of this Lease. Lessee, at its option, at its own
expense and for its sole benefit, may initiate and protest before
the proper authorities for the purpose of obtaining an abatement
of or otherwise contesting the validity or amount of taxes or
special assessments levied upon the demised premises . Lessee
shall pay such taxes and provide Lessor, upon request, copies of
all paid tax statements. All improvements made to the premises
shall be available for tax abatement, if such is provided by law.
Lessor shall use its best efforts to assist Lessee in obtaining
tax abatement.
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7 . LIABILITY INSURANCE. Lessee shall, at its expense,
naming Lessor as additional insured, provide and keep in force
general liability insurance containing bodily injury and property
damage combined single limit coverage of not less than Five
Hundred Thousand ( $500 , 000 . 00 ) Dollars per each occurrence. Such
policies shall cover the entire leased premises.
8. CASUALTY INSURANCE. Lessee, at its expense, shall
maintain and keep in force standard fire, extended coverage,
vandalism and malicious mischief insurance on the building and
improvements located on the demised premises, naming Lessor as an
additional insured. In no event shall the insurance coverage be
less than the current appraised value of the building and
improvements as determined by the Wichita County Appraisal
District. Lessee ' s insurance policies shall provide for at least
ten ( 10 ) days ' notice to Lessor of any change or cancellation
thereof and Lessee shall deliver evidence of such policies if so
requested. Such policies shall be in effect prior to Lessee ' s
occupancy of the premises.
9 . INDEMNITY. Lessee shall indemnify and save Lessor
harmless from any loss, costs or expense of any sort or nature,
and from any liability to any person on account of any damage to
person or property arising out of any failure of Lessee to comply
in any respect with and perform any of the requirements and
provisions of this lease.
10 . PURCHASE OPTION. Lessee shall have, at any time during
the term of this lease, the right and option to elect to purchase
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the premises, including all improvements thereon for the sum of
Two Hundred Fifty Thousand ( $250 , 000. 00 ) Dollars, less One
Thousand ( $1 , 000. 00 ) Dollars for each month' s rental paid prior
to closing. Such election on the part of the Lessee shall be
exercised by giving written notice thereof to Lessor. Closing of
the purchase shall take place in accordance with Article 11 , even
though such may be after the termination of Lessee ' s tenancy
hereunder. Lessor will consider allowing Lessee to execute an
installment contract for the purchase of the building upon terms
and conditions that are mutually satisfactory to both parties.
11. PURCHASE PROCEDURE. In Lessee ' s notice exercising any
purchase option herein, Lessee shall designate an Escrow Agent;
and within twenty ( 20 ) days after receipt of such notice, Lessor
shall deliver to Lessee evidence of Lessor' s title to such
property, and shall clear the title of all liens, encumbrances,
restrictions and defects. Upon receipt from Lessee of the
purchase price and notice that title is acceptable, Escrow Agent
shall deliver to Lessee a recorded General Warranty Deed and to
Lessor the purchase price, less the amount of any liens subject
to which Lessee accepted title, and all documentary, transfer and
like taxes not otherwise paid by Lessor. Upon receipt from
Lessee of notice that title is not acceptable, Lessor shall have
thirty ( 30) days in which to clear Lessee ' s objections to title.
12 . MAINTENANCE AND REPAIRS. Lessee shall, throughout the
primary term of this lease or any extension, at its expense, care
for and maintain the buildings , parking lot, driveways ,
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landscaped areas and other improvements located upon the premises
and keep them in reasonably good repair and condition except for
ordinary wear and tear and damage caused by an act of God or
other casualty described in Article 20 herein.
13 . ALTERATIONS. Lessee may make any alterations to the
structure or structures on the premises as it requires for
business purposes . All alterations and additions to the
structural parts of the building or buildings shall be made in
accordance with the applicable laws and shall remain for the
benefit of Lessor unless otherwise consented to by Lessor.
Lessee agrees to indemnify Lessor against any liability, loss or
damage on account of any mechanic lien claim for work performed
or materials furnished in connection with any such alterations
made by Lessee.
14 . COMPLIANCE WITH LAWS. Lessee shall comply with all
laws, orders and regulations of federal, state and municipal
authorities, which shall impose any duty upon Lessor or Lessee
with respect to the operation of business thereon. Lessee, at
its expense, shall obtain all licenses or permits which may be
required for the conduct of its business within the terms of this
lease, or for alterations, improvements , or additions which
Lessee may desire to make.
15 . WAIVER OF SUBROGATION. Lessor and Lessee, and all
parties claiming under them, hereby mutually release and
discharge each other from all claims and liabilities arising from
or caused by any hazard covered by insurance on the premises, or
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covered by insurance in connection with property on or activities
conducted on the leased premises, regardless of the cause of the
damage or less,insofar and only insofar as such insurance
indemnifies and makes whole any loss.
16 . SIGNS. Lessee shall have the right to erect signs
advertising Lessee ' s business anywhere on the premises, provided
that such signs meet building and zoning standards.
17. ASSIGGNMENT-SUBLEASING BY LESSEE. Lessee may at any
time assign this lease or sublease all or any part of the
premises with lessor ' s written approval, which may not be
unreasonably withheld, providing Lessee remains primarily
responsible for the rents, terms and conditions of this lease.
Lessee shall promptly notify Lessor of any such assignment or
subleasing.
18. HOLDOVER-FORFEITURE. Any holdover by Lessee after any
termination of this lease shall create no more than a month-to-
month tenancy at the rent and on all other applicable conditions
herein provided. If forfeiture of this lease is permitted by law
for Lessee' s default, Lessor shall not be entitled to declare any
such forfeiture unless Lessor has given Lessee notice of such
default and Lessee has failed to remedy same within thirty ( 30 )
days after receipt of such notice.
19 . CONDEMNATION. If the leased property shall be taken or
condemned in whole for public purposes, then the term of this
lease shall forthwith cease and terminate. In the event of
taking or condemning of less than all of the leased property for
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public purposes, Lessee at its sole option shall have the right
to forthwith terminate this lease if in Lessee' s reasonable
opinion the remaining property would not be suitable for the
conducting of its business thereon. If Lessee does not exercise
its option to so terminate this Lease, then the rental shall be
equitably apportioned according to that which has been taken.
Notwithstanding the foregoing, nothing herein shall be construed
to preclude Lessee from prosecuting any claim directly against
the condemning authority for damages it may suffer. If the
operation of Lessee' s business on the premises is impaired by the
closing, relocation or rerouting of traffic on or away from any
street or highway adjoining the premises, or by the deprivation
of any access thereto, then Lessee' s rent shall be reduced in
direct proportion to the reduction in Lessee' s sales as a result
of such action. Lessee shall provide necessary records as
evidence of its sales decrease and said rent reduction will
continue only as long as the aforesaid conditions exist. If
Lessee' s business is substantially impaired as a result of one or
more of these conditions for more than 180 days, then Lessee may
terminate this lease by giving thirty ( 30 ) days written notice.
20. DAMAGE TO OR DESTRUCTION OF PREMISES. In the event the
whole or any part of the improvements on the leased premises
including Lessee ' s equipment and fixtures) shall be damaged or
destroyed by fire, flood, windstorm, strikes, riots, civil
commotions, acts of God, or other casualty, Lessee shall, to the
extent possible under the insurance proceeds receivable under the
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terms of Article 8 , restore same to their condition just prior to
said loss without unreasonable delay, and the rental shall be
proportionately and equitably abated during said restoration, or
Lessee, at his option, may use all or part of such proceeds to
purchase the premises in accordance with Articles 10 and 11 . Any
insurance proceeds over and above the cost of restoration or the
purchase of the premises shall be the property of the Lessee.
21 . WARRANTY OF TITLE. Lessor covenants that Lessor is
well seized of and has good and marketable title and good right
to lease the premises, will warrant and defend the title thereto,
and will indemnify Lessee against any damage and expense which
Lessee may suffer by reason of any lien, encumbrance, restriction
or defect in the title to or description herein of the premises.
If at any time Lessor ' s title or right to receive rent hereunder
is disputed, or there is a change of ownership of Lessor ' s estate
by act of the parties or operation of law, Lessee may withhold
rent thereafter accruing until Lessee is furnished proof
satisfactory to it as to the party entitled thereto.
22. NOTICES. Notices hereunder shall be given only by
certified or registered letter and shall be deemed given when the
letter is deposited in the mail, postage prepaid. All notices
required or permitted by any provision of the lease shall be
directed as follows:
TO LESSOR: James Berzina, City Manager
1300 Seventh Street
Wichita Falls, Texas 76301
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TO LESSEE: Ronald William Hamilton
President, RWH Enterprises, Inc.
1000 Scott Street
Wichita Falls, Texas 76301
or to such other place as either party will subsequently notify
the other in writing.
23 . CONDITION OF PREMISES AND LESSOR ACCESS THERETO.
Lessee shall deliver up and surrender the leased premises upon
expiration of this lease or its termination in as good condition
and repair as the same shall be at the commencement of said term,
loss by ordinary wear and tear, fire, flood, windstorm, strikes,
riots, civil commotion, acts of God, and other casualty excepted.
Lessor, its agents or employees, shall have access to the
premises at all reasonable times for the purposes of inspecting
same.
24 . QUIET ENJOYMENT. So long as Lessee performs all of the
covenants and provisions herein, Lessee shall have the peaceful
and quiet enjoyment and use of the leased premises without let or
hindrance on the part of the Lessor, or any persons lawfully
claiming through Lessor.
25. LESSEE'S DEFAULT OR BANKRUPTCY. If Lessee shall at any
time during the term of this lease, fail to pay any installment
of rent when due or shall fail to keep and perform any other
covenant of this lease and shall remain in default for a period
of thirty ( 30 ) days after receipt of written notice thereof from
Lessor; or if Lessee ' s leasehold estate shall be taken in
execution or by other legal process, or if Lessee shall be
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adjudicated bankrupt, or if a receiver be appointed for Lessee,
or if Lessee shall make an assignment of its leasehold estate for
the benefit of creditors, then and in any such event Lessor shall
have the right, at its election, to lawfully declare termination
hereof and re-enter the premises or any part thereof, and by due
process of law, expel, remove and put out the Lessee or any
person or persons occupying the premises without prejudice to any
remedies which might otherwise be used for the collection of
arrears of rent or for amounts other than rent owing Lessor by
Lessee for any breach by Lessee of covenants and conditions
herein contained.
IN WITNESS WHEREOF, the said parties have caused this lease
to be executed on the day and year first above written.
LESSOR:
411.1:
411.
11.1.r
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Jim Berzina A t Mana.er
City of Wichita Falls, Texas
LESSEE:
By: /(
R. W. Hamilton
Title: President, RWH Enterprises, Inc.
A
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STATE OF TEXAS
COUNTY OF WICHITA
BEFORE ME, the undersigned authority, a Notary Public in and
for the State of Texas, on this day personally appeared James
Berzina, City Manager for the City of Wichita Falls, Texas, a
municipal corporation, 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 said City of
Wichita Falls, Texas, a municipal corporation, for the purposes
and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 10th day of
September 1991 .
o,,,
os;Notary Public, State of Texas
A,_,,_.,_c.,.,, A_,C5--YN,
LINDA THOMAS
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mmiss
Public,State o.Tex
1*"l(/_v( ti vi Commission Expires Cec.22.lgLl
STATE OF TEXAS
COUNTY QF WICHITA
BEFORE ME, the undersigned authority, a Notary Public in and
for the State of Texas, on this day personally appeared
R. W. Hamilton President
of RWH Enterprises, Inc. 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 said RWH Enterprises , Inc .for the purposes
and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 10th day of
September 1991 .
Notary Public, State of Texas
LINDA THOMAS
k ry ;ry Prt'ic.State of TezaS,'`
vi Comrrission Expires Dec.22,19
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