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Res 163-2009 12/1/2009 RESOLUTION NO. �3 ��09 Resolution Authorizing The City Manager To Enter Into A Lease Agreement With The Wichita County Humane Society For Land To Be Used For Animal Services WHEREAS, the City purchased a six-acre tract of land to locate a new Animal Services Center; and WHEREAS, the City's design for its facility consumes about four acres of this six- acre tract; and WHEREAS, the Wichita County Humane Society has requested that the City lease 1'/ acres of the tract to them for an initial term of 60 years to locate its planned adoption facilities; and WHEREAS, it is in both parties' best interests to have the City's Animal Services Center and the Humane Society's Adoption Center in close proximity. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is hereby authorized to enter into the attached Lease with the Wichita County Humane Society for the lease of 1'/z acres of City-owned land for the Humane Society's planned adoption facilities, with modifications and attachments thereto as approved by the City Attorney. PASSED AND APPROVED this the 1 day of December, 2009. MAYOR ATTEST: City Clerk � .r • ' LEASE THIS LEASE is made as of this 1 st day of December, 2009, by and between the City of Wichita Falls, Texas ("Landlord"), and the Wichita County Humane Society, a Texas not-for-profit corporation ("Tenant"). The purpose of this Lease document is to dedicate the land described below for use in a long-term real estate lease. To that end, the parties agree as follows: ARTICLE I GRANT AND TERM 1.1 Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord certain real estate owned by Landlord generally located on Hatton Road, bounded on the east by Central Expressway and on the west by Kinbell Drive, which real estate is more particularly described on Exhibit "A" attached hereto and made a part hereof, together with all improvements thereon and appurtenances thereto (collectively "Leased Premises"). The Leased Premises are part of a larger tract of real property owned by Landlord and more particularly described on Exhibit `B" attached hereto and made a part hereof ("Development"). 1.2 Term. Subject to the provisions contained herein, the term of this Lease shall be for a period of 60 years, commencing on the date that Landlord delivers the Leased Premises to Tenant, ("Commencement date"). Landlord and Tenant each agree to execute an amendment to this Lease setting forth the exact Commencement Date as soon as practical following the Commencement Date. Notwithstanding the foregoing, in the event Tenant has not commenced construction of the Facilities (as de�ned in 1.4 below) within 2 years of the date of this Lease, Landlord shall have the right to terminate this Lease upon not less than 90 days prior written notice to Tenant; provided, however, that if Tenant commences construction of the Facilities within such 90-day period, and reasonably pursues construction thereafter, Landlord's right to terminate shall end and this Lease shall continue in full force and effect. � 1.3 Options to Extend. Tenant shall have the option to extend this Lease for one ten year � period under the same terms and conditions as contained herein, as long as the Leased Premises � continues to be used for the Permitted Uses outlined in this Lease. In the event Tenant elects to � exercise this option to extend, Tenant shall do so by providing Landlord written notice thereof ("Extension Notice") not less than 30 days prior to the expiration of the then current term hereof. Notwithstanding the foregoing, if Tenant shall fail to send the Extension Notice within the time and in the manner hereinbefore provided, this Lease shall be deemed to be automatically extended on a month-to-month basis and landlord shall not be permitted to terminate this Lease for Tenant's failure to exercise its option to extend until such time as Landlord provides written notice to Tenant that it has not received the Extension Notice and provides Tenant with a period of 10 business days after receipt by Tenant of such notice in which to send the Extension Notice to the Landlord. If both Landlord and Tenant agree, this Lease may be extended for five additional five-year periods under the same terms and conditions as contained herein, as long as the Leased Premises continues to be used for the Permitted Uses outlined in this Lease. 1.4 Tenant's Initial Improvements to Leased Premises. Tenant agrees to design and construct on the Leased Premises a building of suff'icient size to carry out Tenant's Permitted Use of the Leased premises ("Facilities"). Tenant may use the architect and contractor of their choice. Prior to commencing any construction of the Facilities, Tenant shall submit the plans and specifications ("Plans") to the Landlord for approval of the exterior architectural design components, exterior construction materials and landscaping by Landlord's project manager in � � order to achieve a harmonious appearance with the structures to be constructed by Landlord on the Development, which approval shall not be unreasonably withheld, conditioned or delayed. Any disapproval of the Plans, shall provide a detailed list of the deficiencies of such Plans. Tenant shall construct the Facilities in a good and workmanlike manner and in compliance with all applicable laws, rules, codes and ordinances. The City has obtained an opinion from the Planning Department that the project as intended would qualify as a permitted use within the cunent zoning for the tract. This use and zoning classification would allow incineration units as of right under the Zoning Code. ARTICLE 2 RENT Tenant shall pay to Landlord on the Commencement Date and on each annual anniversary of the Commencement Date, as Annual Rent, the sum of $625.00. ARTICLE 3 ' MAINTENANCE �I 3.1 Maintenance. I ! A. Landlord is not obligated to maintain lawn and landscape areas located on Leased � Premises. i B. Tenant shall be obligated to maintain all lawn and landscaped areas located on Leased Premises. � ARTICLE 4 USE OF PRENIISES Tenant shall be restricted to using the Leased Premises for an animal shelter and veterinary clinic, and ancillary uses such as animal training classes, public education, meeting facilities, special events, community education, private pet cremation services, animal grooming, adoptions, sale of pet related merchandise, and other activities related to domesticated/companion animal welfare ("Permitted Use"). No use outside the Permitted Use shall be permitted without the written consent of Landlord. ARTICLE 5 TENANT IlVIPROVEMENTS, FIXTURES, ALTERATIONS, ETC. 5.1 Additional Improvements Bv Tenant. Following the construction of the Facilities, Tenant may make such additional improvements or alterations to the interior of the Leased Premises as it desires. In the event Tenant desires to construct an improvement or make an Alteration to the exterior of the Facilities (collectively an "Exterior Alteration"), Tenant shall prepare outlined plans and specifications ("Outline Specifications") for such Exterior Alteration, showing the exterior elevations and specifying the building materials to be used, to be submitted to and approved by Landlord, which approvals shall not be unreasonably withheld, conditioned or delayed, prior to commencing the construction of any such Exterior Alterations. Tenant shall cause any improvement and alterations to the Leased Premises, including any Exterior Alterations, to be constructed in a good and workmanlike manner, in accordance with all applicable laws, requirements, ordinances, codes, rules, and regulations in existence at the time of � � construction. Tenant shall obtain building permits for any such improvements or alterations (including any Exterior Alterations). 5.2 Ownershin of Imnrovements. All alterations and improvements (including the Facilities and any Exterior Alterations) made by Tenant during the term hereof shall remain the sole property of Tenant for the term of this Lease. Upon the expiration or termination of the term of this Lease, or any renewal thereof, all such alterations and improvements (including the Facilities and any Exterior Alterations) shall become the property of Landlord; provided, however, that Tenant shall be entitled to remove its trade fixtures, personal property, and equipment. 5.3 Mechanic's Liens. Neither the Landlord nor Tenant shall do or suffer anything to be done whereby the Leased Premises or any part of the Development may be encumbered by any mechanic's lien or other similar lien. If, whenever and as often as any mechanic's lien or other similar lien is filed against the Leased Premises or any part thereof, or any part of the Development, purporting to be for or on account of any labor, materials or services furnished in connection with any work in or about the leased property done by, for or under the authority of either party or anyone claiming by, through or under such party, such party shall dischazge the same of record within 120 days after the filing date of the lien. Notice is hereby given that the ' Landlord does not authorize or consent to and shall not be liable for any labor or materials furnished to Tenant or anyone claiming by, through or under Tenant upon credit, and that no mechanic's lien or similar lien for any such labor, service or materials shall attach to or affect the � reversionary or other interest of the Landlord in and to the leased property or any part of such ; property. I � ARTICLE 6 MAINTENANCE 6.1 Tenant's Responsibilities. The Leased Premises, including the Facilities located thereon ( or subsequently constructed thereon, and all fixtures, equipment, and improvements related � thereto; and all other fixtures, equipment, and improvements thereon, shall be kept in sightly and good operating condition, reasonable wear and tear excepted, at all times by Tenant, at Tenant's sole cost and expense. Tenant shall keep the Facilities in compliance with all applicable codes, ordinance, statutes, regulations or other governmental requirements applicable thereto. 6.2 Utilitv Char�es. Tenant shall be solely responsible for and promptly pay all charges for heat, water, gas, electricity or any other utility used or consumed in, on, or about the Leased Premises from and after the Commencement Date. , 6.3 Surrender of Leased Premises. Subject to Article 10, at the expiration or termination of the tenancy hereby created, Tenant shall surrender the Leased Premises in good operating condition, reasonable wear and tear excepted, and shall surrender all keys for any buildings located on the Leased Premises to Landlord. Tenant shall remove all its trade fixtures and personal property before surrendering the Leased Premises as aforesaid, and shall repair any damage to the Leased Premises caused thereby. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of the term of this Lease and Tenant's surrender of the Leased Premises. • ARTICLE 7 INSURANCE AND INDEMNITY 7.1 Liabilitv Insurance. Tenant shall, at its sole cost and expense, during the entire term hereof, keep in full force and effect or cause to be kept in full force and effect a policy of Commercial General Liability Insurance ("Liability Insurance"). Tenant shall cause the Landlord to be named as an additional insured on such Liability Insurance. The minimum acceptable limits for Tenant's Liability Insurance shall not be less than the greater of $500,000 combined single limit coverage for bodily injury, personal injury and property damage, or the legislative cap imposed on municipalities under the Texas Tort Claims Act, as amended, or through legislation of similar effect. 7.2 Pronertv Insurance. Tenant shall maintain "all-risk" insurance concerning building improvements located on the Leased Premises in an amount equal to the replacement cost of the Facilities (exclusive of foundations and excavations). Landlord shall be named as an insured "as its interest may appear" under such insurance policy. Tenant shall also carry, under the same terms, a builder's risk policy covering materials and the structure during the construction phases. � 7.3 Proof of Insurance. With respect to all policies of insurance which Tenant is required to ' acquire and maintain under this Lease, Tenant shall deliver to Landlord, on or prior to the �� Commencement Date, a certificate of insurance containing a 30 day notice of cancellation, � material modification, or failure to renew clause benefiting Landlord, and Tenant shall thereafter provide Landlord a new certificate of insurance upon each renewal of such policies. Such policies shall be issued by nationally recognized insurance companies qualified under the laws of the Staxe of Texas to insure the risks covered by such policies. Such policies may be subject to a commercially reasonable deductible. � 7.4 Landlord's Liabilitv Insurance. Landlord shall, at all times, carry a poticy of � Commercial General Liability Insurance for its operations within the Development, or an adequate reserve as a self insured entity, in an amount equal to the legislative cap imposed on municipalities under the Texas Tort Claims Act, as amended, or through legislation of similaz effect, which shall name Tenant as an additional insured thereunder. ARTICLE 8 SALE, ASSIGNMENT AND SUBLETTING Tenant shall be able to sell, sublease, assign or encumber its interest in the Lease or any part thereof with the prior written consent of Landlord. ARTICLE 9 WASTE, GOVERNMENTAL REGULATIONS 9.1 Waste. Tenant shall not commit or suffer to be committed any waste upon the Leased Premises. 9.2 Governmental Re�ulations. Tenant shall, at Tenant's sole cost and expense, comply in all material respects with all laws, rules, regulations, decrees and requirements of all county, municipal, state, federal and other applicable governmental authorities now in force or which may hereafter be in force pertaining to its operations within the Leased Premises, including, without • limitation, obtaining all necessary building permits for the Facilities and any other improvements to the Leased Premises or alterations of the Facilities or other improvements. ARTICLE 10 DAMAGE OR DESTRUCTION If, during the term of the Lease, the Facilities or any portion thereof, are damaged or destroyed, in whole or in part, by fire or other casualty, Tenant shall promptly notify Landlord in writing as to the nature and extent of such damage or loss and whether it is economically feasible to rebuild, repair, restore or replace such damage or loss. If Tenant shall determine that such rebuilding, repairing, restoring or replacing is economically feasible, it shall forthwith proceed with and complete with reasonable dispatch such rebuilding, repairing, restoring or replacing. In such case, any net proceeds of casualty insurance required by the lease and in excess of sums needed to defray the costs of repairing and restoring any such damage or loss of the Facilities shall be used to improve or maintain the Facilities unless said proceeds were in payment for the Tenant's personal property or other items not owned by the Landlord. If Tenant shall determine that rebuilding, repairing or restoring or replacing the Facilities is not economically feasible, tenant shall raze the Facilities and clear the Leased Premises of any debris ' and any proceeds of casualty insurance remaining following such razing and clearing of debris shall be used to acquire substitute land and improvements which will take the place of the � Property and Facilities subject to the lease, or alternatively (at the election of the Tenant), shall be i paid to the Landlord (unless said proceeds were in payment for the Tenant's personal property or other items not owned by Landlord), in which latter case, the lease shall thereupon terminate, and the Tenant shall tender possession of the premises (i.e., the Property and damaged Facilities, but not removable personal property owned by the Tenant) to the Landlord. ARTICLE 11 DEFAULT � i 11.1 Events of Default. Each of the following shall constitute an event of default ("Event of Default) under this Lease: A. Tenant shall fail to pay any Rent, or other sums when due under this Lease if such failure continues for a period of 120 days after written notice specifying such failure has been delivered to Tenant. Tenant shall not be deemed to be in default if Landlord and Tenant agree to enter into a payment plan designed to pay any and all sums owed under this contract. B. Tenant shall: (1) make a general assignment for the benefit of creditors; (2) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property (collectively a"proceeding for relief'); (3) become the subject of any proceeding for relief which is not dismissed within 120 days of its filing or entry; or (4) be dissolved or otherwise fail to maintain its legal existence. C. Tenant's ceasing to be a not-for-profit entity. D. Failure of Tenant to perform any other of the terms, conditions or covenants of this lease to be observed or performed by Tenant, other than those specifically referred to above, for more than 120 days after written notice of such default shall have been given to Tenant; provided, however, if such default cannot reasonably be cured within such 120 day period, Tenant shall not be in default of this Lease if Tenant commences to cure the default within such 120 day period and thereafter diligently and in good faith continues its attempts to cure such default. 11.2. Landlord's Remedies. In the event that (1) a default is not cured within 120 days after issuance of written notice, then the Landlord may, but is not required, to terminate this Lease, and reenter and take possession of the leased property and all improvements thereon. In such event the Landlord may, after giving the aforesaid 120 days_written notice to the Lessee, declare this Lease terminated, and enter and take full possession of the buildings and premises, and with or without legal process expel, oust and remove any and all parties who may occupy any part of said buildings or premises, and all goods and chattels not belonging to the Landlord that may be found within or upon the same, without being liable to prosecution or to any claim for damages as a result thereof. In the event of cancellation of this Lease by the Landlord in accordance with the previsions of this article, all rights, powers, and privileges of the Tenant thereunder shall cease and the Tenant shall immediately vacate said buildings and leased premises, and shall make no claim of any kind whatsoever against the Landlord its agents or representatives by reason of such cancellation or I any act incident thereto. � 11.3 Any accepta.nce or acquiescence by the Landlord for any period, or periods, after a � default in any of the terms, covenants and conditions herein contained to be performed, kept and j observed by the Tenants, shall not be deemed a waiver of any rights on the part of the Landlord to cancel this Lease for failure by the Tenant so to perform, keep or observe any of the terms, covenants or conditions hereof to be performed, kept and observed. 11.4 Landlord's Default. Landlord shall not be in default in the performance of any obligation required to be performed under this Lease unless Landlord has failed to perform such obligation within 30 days after the receipt of notice from Tenant specifying in detail Landlord's failure to perform; provided, however, that if the nature of Landlord's obligation is such that more than 30 days are required for its performance, Landlord shall not be deemed in default if it shall commence such performance within 30 days and thereafter diligently pursues the same to completion. Upon a default by Landlord, Tenant may, in addition to all other rights and remedies available to Tenant at law or in equity, cure such default on behalf of and at the expense of Landlord and do all reasonably necessary work (which Landlord has failed to do, in breach of its duty pursuant to this Lease) and make all necessary payments in connection therewith to the extent necessary in Tenant's discretion, reasonably exercised, to protect Tenant's leasehold interest and Tenant's continued use and occupancy of the Leased Premises. Landlord shall, within 10 days following receipt of "paid" bills, pay Tenant the amount so paid by Tenant together with interest thereon, at a simple interest rate equal to the lesser of 10% per annum or the maximum rate allowed by law, from the date incurred by Tenant. In the event Landlord fails to pay Tenant as provided in the preceding sentence, the amount or amounts paid by Tenant, together with all costs and interest, may be set off against each installment of Rent as and when paid by Tenant. • � 11.5 Ri�ht to Cure Defaults. Landlord may, but shall not be obligated to, cure at any time, without notice, any default by Tenant under this Lease; and, whenever Landlord so e(ects, all costs and expenses incurred by Landlord in curing a default, together with simple interest on the amount of costs and expenses so incurred at the lesser of 10% per annum or the maximum rate allowed by law shall be paid by Tenant as Additional Rent. 11.6 Remedies Cumulative. The parties remedies as speci�ed herein are cumulative and in addition to any rights or remedies available to it in equity or law. ARTICLE 12 ACCESS BY LANDLORD Landlord, or Landlord's representatives, shall have the right, upon reasonable advance notice to Tenant, to enter the Leased Premises at all reasonable times to examine and inspect the same, which times shall be during normal business hours except in emergency circumstances. Landlord agrees not to unreasonably disturb Tenant in the operation of its business and enter the building located on the Leased Premises at such times as shall be calculated to minimize such disturbance. ARTICLE 13 TAXES; LIMITATION 13.1 Taxes on Lease Premises and TenanYs Personal Propert� Tenant shall be responsible for and shall pay before delinquency all municipal, county and/or state taxes which may be assessed during the term of this Lease against the Leased Premises, the Facilities, and any personal property of any kind owned by or placed in, upon or about the Leased Premises by Tenant. 13.2 Loss and Damage. Tenant shall hold harmless and indemnify Landlord which shall not be liable for any loss or damage to Tenant's improvements to the Leased Premises, its trade fixtures or personal property, or the property of others located on the Leased Premises. Tenant shall hold harmless and indemnify Landlord, which shall not be liable for ' any injury or damage to persons or property resulting from fire, e�losion, falling plaster, I steam, gas, electricity, water, rain, snow, bursting of or leaks from any part of the Leased � Premises or from the pipes, appliances or plumbing works. All property of Tenant kept or � stored on the Leased Premises shall be so kept or stored at the risk of Tenant only, and Tenant shall hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier. i ARTICLE 14 HOLDING OVER, SUCCESSORS � 14.1 IIolding Over. Any holding over after the expiration of the term hereof without the consent of Landlord, shall be construed to be a tenancy from month to month at the same Annual Rent applicable during the period prior to such expiration (prorated on a monthly basis) but shall otherwise be subject to all of the terms and conditions herein specified, so far as applicable to a month-to-month tenancy. 14.2 Successors. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors and assigns of the said parties; and if there shall be more than one Tenant, they shall all be bound jointly and severally by the terms, covenants and agreements herein. ARTICLE 15 REPRESENTATIONS AND WARRANTIES OF LANDLORD; QUIET ENJOYMENT 15.1 Landlord's Renresentations and Warranties. In addition to the other representations and warranties of Landlord contained in this Lease, Landlord hereby represents and warrants to Tenant as follows: A. All taxes on the Leased Premises, except for current taxes not delinquent, have been paid in full prior to the Commencement Date. B. Landlord is able to and will place Tenant in the peaceful and undisturbed possession of the Leased Premises on the Commencement Date. C. To the best of landlord's knowledge, there aze no "Hazardous Materials" (such term shall include, without limitation, substances which are flammable, explosive, corrosive, radioactive, toxic, petroleum and petroleum products and any substances defined as hazardous substances, hazardous materials, toxic substances, or hazardous wastes in the Federal Comprehensive environmental Response compensation and Liability Act of 1980, the Federal Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, any similar state laws, all amendments to these laws and regulations adopted or publications promulgated pursuant to these laws) presently located ' in, on, or under the Leased Premises including, without limitation, the subsurface soils ' and groundwater, have migrated to the Leased Premises from another source, have been ; installed, used, generated, manufactured, stored, released, or disposed of on, under, or � about the Leased P�emises by Landlord or any third person, not has Landlord received � any notice or communication regarding any alleged Hazardous Materials on or about the ; Leased Premises and that the Leased Premises is in compliance with all federal, state and local laws, ordinances, rules and regulations relating to any such Hazardous Materials. In the event any Hazardous Materials for which Landlord is responsible (as described above) be found on the Leased Premises during the term or any extension of the term hereof, Landlord shall bear all costs for the removal and remediation of the Hazardous Materials and shall restore the Leased Premises to substantially the same condition as it was in immediately prior to such removal and remediation work. Landlord shall immediately notify Tenant in writing of any notice, complaint„ warning, claim, report, or communication received by Landlord from any federal, state, or local governmental or regulatory agency regarding Hazardous Materials on the Leased Premises, and provide Tenant with a copy of the same within 10 days of Landlord's receipt thereof. D. Tenant agrees not to bring or allow onto the Leased Premises or the development any Hazardous MateriaLs or to do or allow any other form of environmental damage, and agrees to indemnify and hold Landlord harniless from and against all claims, demands, losses, damages, clean-up costs, liabilities or judgments imposed against Landlord, including all interest, penalties, fines and other sanctions, any costs or e�enses in connection therewith, including reasonable attorneys' fees, arising out of in connection with the breach or misrepresentation of the representations, agreements and warranties of tenant set forth herein. • � E. Tenant agrees to obtain, participate and comply with the requirements of an annually conducted environmental audit. 15.2 Ouiet Eniovment. Upon payment by Tenant of the Rent and all other sums due hereunder, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the term hereby demised, without hindrance or interruption by ,� Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to all of the terms and conditions of this Lease. i ; ARTICLE 16 MISCELLANEOUS � 16.1 Non-Discrimination. Tenant agrees, for itself and its successors and assigns, that it shall I not discriminate against any person or group thereof upon the basis of race, color, religion, age, sex, ancestry, disability, or national origin in its use or occupancy of the Leased Premises. A copy of the Landlord's Anti-Discrimination policy is attached to this Lease and is incorporated herein by reference. � 16.2 No Gambling Use. No existing building on the Leased Premises, nor any building which is constructed or placed upon the Leased Premises, either temporarily or permanently, shall be � used for housing the operation of any multi-game, casino-style gambling on the Leased Premises. � 16.3 Entire A�reement. This Lease, and the Exhibits and Riders, if any, attached hereto and i � forming a part hereof, set forth all the covenants, promises, agreements, conditions and � understandings between Landlord and Tenant concerning the Leased Premises. � � 16.4 No Partnership. Landlord does not, in any way or for any purpose, become a partner of tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant. 16.5 Notices. Any notice pursuant hereto shall be given in writing by (a) personal delivery, or (b) expedited delivery service with proof of deliver, or (c) United States Mail, postage prepaid, registered or certified mail, return receipt requested, sent to the intended addressee at the address set forth below, and shall be deemed to have been given either at the time of personal delivery or, in the case of expedited delivery service or mail, as of the date of first attempted delivery at the address. Any such notices may be under the signature of the Landlord's or Tenant's (as the case may be) agent, attorney, or representative. Tenant's Address: Wichita County Humane Society Attn: Kelly Jordan, Executive Director Wichita Falls, Texas 76210 Landlord's Address: City of Wichita Falls Attn: Lou Franklin, Director of Health 1700 Third Street Wichita Falls, Texas 76301 . � 16.6 Cantions and Section Numbers. The captions, section numbers, article numbers and index appearing in this Lease are inserted only as a matter of convenience. 16.7 Partial Invaliditv. If any term, covenant or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of the Lease, or the application of such term covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby. 16.8 Recording. Tenant shall not record this Lease without the written consent of Landlord; however, upon the request of either party hereto, the other party shall join in the execution of a memorandum or so-called "short form" of this Lease for the purposes of recordation. Said memorandum or short form of this Lease shall describe the parties, the Leased Premises, Tenant's right of extension, and the term of this Lease and shall incorporate this Lease by reference. 16.9 Gender. The use of the neuter gender herein shall include the masculine or feminine gender, and the plural shall also include the singular, or vice versa. 16.10 Attornev Fees. If any action at law or in equity is necessary to enforce this agreement, each party agrees to pay their own attorney fees and will not seek to recover their 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 attorney's fees that are equitable and just. ! Tenant expressly waives its statutory rights to recover attorney's fees as outlined in i §271.153(a)(3). j 16.11 Governin� Law. The laws of the State of Texas shall govern this contract, and all ' obligations hereunder of the parties are performed in Wichita County Texas. � 16.12 Right of First Refusal. � A. Grant of Ri�ht of First Refusal. Landlord hereby grants to Tenant an exclusive ( right of first refusal (sometimes referred to herein as the "Right of First Refusal") to purchase the Leased Premises. B. Exercise of right of First Refusal. At such time as Landlord desires to sell, transfer or otherwise convey the Leased Premises to any party, Tenant may exercise its Right of First Refusal pursuant to an "Offer" as defined below and, Tenant shall have the right of first refusal with respect to such Offer. An "Offer" for purposes of this Section is defined as a bona fide offer from a third party (the "Transferee") to acquire the Leased Premises or to accept a transfer of the Leased Premises, which Offer is accompanied by an executed written agreement for the transfer (the "Offer Agreement") identifying the Transferee. If Landlord receives and desires to accept an Offer, Landlord shall promptly notify Tenant thereof and provide Tenant a complete and fully legible copy of the Offer Agreement accompanied by Landlord's statement that it is prepared to transfer the Leased Premises to Tenant upon the terms contained in the Offer Agreement (collectively, the "Offer Notice"). Within 30 days of receipt of the Offer Notice, Tenant shall notify Landlord whether Tenant elects to exercise its right to accept the Transfer of the Leased Premises as set forth above. If Tenant notifies Landlord that it does not wish to exercise its right to � . � accept the Transfer of the Leased Premises, Landlord may proceed to close the proposed Transfer. In the event Tenant exercises the Right of First Refusal by delivering written notice thereof (the "Right of First Refusal Notice"), Tenant and Landlord shall be deemed to have entered into a binding agreement to purchase and sell the Leased Premises pursuant to the terms hereof and under the same terms as contained in the Offer Agreement. In the event tenant does not timely exercise its Right of First Refusal pursuant to the terms and conditions identified in this Section, then Tenant shall be deemed to have waived Tenant's election to exercise its Right of First Refusal and Landlord shall have the right to sell the Leased Premises to Transferee upon the terms and conditions identified in the Offer Agreement. Notwithstanding the foregoing, in the event Landlord does not, for whatever reason, sell the Leased Premises to the Transferee, or receives another offer to sell the Leased Premises, then Landlord shall re-offer to sell the Leased Premises to Tenant in accordance with the terms set forth herein. C. Purchase Price. In connection with the exercise by Tenant of the Right of First Refusal, the purchase price payable by Tenant to Landlord for the Leased Premises shall be the same as set forth in the Offer Agreement, plus any sums then-currently due from ' Tenant to Landlord under this Lease. D. Deliverv of Deed. At the closing of the sale of the Leased Premises, Landlord � shall execute and deliver to Tenant (i) a warranty deed for the Leased Premises in � recordable form, duly executed and acknowledged, conveying to Tenant fee simple, � insurable title to the Leased Premises; such conveyance of the Leased Premises; such conveyance of the Leased Premises shall be subject to (a) the lien of the local ad valorem real property taxes for the year in which the closing occurs (which taxes shall be prorated at closing between Tenant and Landlord on a calendar year basis), (b) those matters of record which are acceptable to Tenant; and (ii) any necessary access and utility � easements across the remainder of the Development to assure Tenant's continuing right to access the Leased Premises and use the other portions of the Development following the closing. CIT CHTTA FALL , XAS BY: arron Leiker, City Manager ATTEST: . ity Clerk APPROVED AS TO FORM: WICHITA COUNTY HUMANE � SOCIETY _ -_ : ��. �. -_ - ,... =_="„- ) BY: �f �.�.._._.._.._._..._.._ _ y �,t �.._._...-----"�- _ .. �._.._.__.._.__.--_ e . ' EXHIBIT A LEASED PREMISES � I I i i � I I 1 i I � � � E E t , I b . ' FIELD NOTES FOR PROPOSED LEASE ' FOR LOT 1, BLOCK 4, REPLAT CHEROKEE INDUSTRIAL PARK, 6 ACRES CHEROKEE COUNTY SCHOOL LANDS 1207 HATTON ROAD �, City of Wichita Falls (Owner) � 1300 7�' Street � Wichita Falls, TX 76301 i PROPOSED LEASE EASEMENT i BEGINING at a point, said point being in the east right of way line of Kimbell Drive (a previously dedicated right i of way to the City of Wichita Falls) and the southwest corner of Lot 1, Block 4, Replat Cherokee Industrial Park, 6 Acres Cherokee County School Lands, as recorded in Volume 3410, Page 245, Wichita County Deed Records, '� Wichita Falls, Wichita County, Texas, and being more specifically described by metes and bounds as follows; ; THENCE following the west property line of said Lot 1, Block 4, North 00° 37' 32" East, 190.00 to a point, said point being in the east right of way of said Kimble Drive and the northwest corner of this lease easement; i i THENCE leaving said east right of way of said Kimble Drive, South 89° 22' 28" East, 350.00 feet to a point, said j point being the northeast of this lease easement; j THENCE South 00° 37' 32"West, 190.11 feet to a point, said point being in the south line of said Lot 1, Block 4, ; and the Southeast corner of this lease easement; i j THENCE following said south line, North 89° 21' 23" West, 350.00 feet to a point, said point being the southwest a corner this lease easement, in the east right of way of said Kimble Drive, in the east property line of said Lot 1, ' Block 4, the PLACE OF BEGINNING and containing 1.53 acres of land, more or less. � i , � i i � f a t � � e � e 9 . � EXHIBIT B DESCRIPTION OF LARGER CTTY TRACT (DEVELOPMENT) ; � � . � . � I A • /� I W I ------ - � J HATTON ROAD --� � - �----------------------------- � I; , I� ' � � � I� � I� ; i� I; ; �; ► w , ► ( �, � � �; � ; � � o � 5.98 ACRES � � I � � � sss•22�28��E I' I � W� 350.00' —� I I m � � I � �w , � � — I I I � p MI� � I I � M I o 1.53 ACRES ��. a I rn � � � � z �� o��- � � N � �� � � � I � N89'21'23"W � i I — — — 350.00' — — — — — — — — — �� � � � � � I I I I I I I I � I , I � I I I' � ' I � I I I I � � � � I I 1207 HATTON ROAD I I ' I I � SCALE: 1 � � � I I � I � � � � � I I , I � � � I I � i ACAD: Legal.dwg I � LEASE THIS LEASE is made as of this day of , 200_, by and between the City of Wichita Falls, Texas ("Landlord"), and the Wichita County Humane Society, a Texas not-for-profit corporation ("Tenant"). The purpose of this Lease document is to dedicate the land described below for use in a long-term real estate lease. To that end, the parties agree as follows: ARTICLE I GRANT AND TERM 1.1 Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord certain real estate owned by Landlord generally located , which real estate is more particularly described on Exhibit "A" attached hereto and made a part hereof, together with all improvements thereon and appurtenances thereto (collectively "Leased Premises"). The Leased Premises are part of a larger tract of real property owned by Landlord and more particularly described on Exhibit "B" attached hereto and made a part hereof ("Development"). 1.2 Term. Subject to the provisions contained herein, the term of this Lease shall be for a period of 60 years, commencing on the date that Landlord delivers the Leased Premises to Tenant, ("Commencement date"). Landlord and Tenant each agree to execute an amendment to this Lease setting forth the exact Commencement Date as soon as practical following the Commencement Date. Notwithstanding the foregoing, in the event Tenant has not commenced construction of the Facilities (as defined in 1.4 below) within 2 years of the date of this Lease, Landlord shall have the right to terminate this Lease upon not less than 90 days prior written notice to Tenant; provided, however, that if Tenant commences construction of the Facilities within such 90-day period, and reasonably pursues construction thereafter, Landlard's right to terminate shall end and this Lease shall continue in full force and effect. 1.3 Options to Extend. Tenant shall have the option to extend this Lease for one ten year period under the same terms and conditions as contained herein, as long as the Leased Premises continues to be used for the Permitted Uses outlined in this Lease. In the event Tenant elects to exercise this option to extend, Tenant shall do so by providing Landlord written notice thereof ("Extension Notice") not less than 30 days prior to the expiration of the then current term hereof. Notwithstanding the foregoing, if Tenant shall fail to send the Extension Notice within the time and in the manner hereinbefore provided, this Lease shall be deemed to be automatically extended on a month-to-month basis and landlord shall not be permitted to terminate this Lease for Tenant's failure to exercise its option to extend until such time as Landlord provides written notice to Tenant that it has not received the Extension Notice and provides Tenant with a period of l0 business days after receipt by Tenant of such notice in which to send the Extension Notice to the Landlord. If both Landlord and Tenant agree, this Lease may be extended for five additional five-year periods under the same terms and conditions as contained herein, as long as the Leased Premises continues to be used for the Permitted Uses outlined in this Lease. 1.4 Tenant's Initial Improvements to Leased Premises. Tenant agrees to design and construct on the Leased Premises a building of sufficient size to carry out Tenant's Permitted Use of the Leased premises ("Facilities"). Tenant may use the architect and contractor of their choice. Prior to commencing any construction of the Facilities, Tenant shall submit the plans and specifications ("Plans") to the Landlord for approval of the exterior architectural design components, exterior construction materials and landscaping by Landlord's project manager in order to achieve a harmonious appearance with the structures to be constructed by Landlord on the Development, which approval shall not be unreasonably withheld, conditioned or delayed. Any disapproval of the Plans, shall provide a detailed list of the deficiencies of such Plans. Tenant shall construct the Facilities in a good and workmanlike manner and in compliance with all applicable laws, rules, codes and ordinances. The City has obtained an opinion from the Planning Department that the project as intended would qualify as a permitted use within the current zoning for the tract. This use and zoning classification would allow incineration units as of right under the Zoning Code. ARTICLE 2 RENT Tenant shall pay to Landlord on the Commencement Date and on each annual anniversary of the Commencement Date, as Annual Rent, the sum of $625.00. ARTICLE 3 MAINTENANCE 3.1 Maintenance. A. Landlord is not obligated to maintain lawn and landscape areas located on Leased Premises. B. Tenant shall be obligated to maintain all lawn and landscaped areas located on Leased Premises. ARTICLE 4 USE OF PREMISES Tenant shall be restricted to using the Leased Premises for an animal shelter and veterinary clinic, and ancillary uses such as animal training classes, public education, meeting facilities, special events, community education, private pet cremation services, animal grooming, adoptions, sale of pet related merchandise, and other activities related to domesticated/companion animal welfare ("Permitted Use"). No use outside the Permitted Use shall be permitted without the written consent of Landlord. ARTICLE 5 TENANT IMPROVEMENTS, FIXTURES, ALTERATIONS, ETC. 5.1 Additional Imnrovements Bv Tenant. Following the construction of the Facilities, Tenant may make such additional improvements or alterations to the interior of the Leased Premises as it desires. In the event Tenant desires to construct an improvement or make an Alteration to the exterior of the Facilities (collectively an "Exterior Alteration"), Tenant shall prepare outlined plans and specifications ("Outline Specifications") for such Exterior Alteration, showing the exterior elevations and specifying the building materials to be used, to be submitted to and approved by Landlord, which approvals shall not be unreasonably withheld, conditioned or delayed, prior to commencing the construction of any such Exterior Alterations. Tenant shall cause any improvement and alterations to the Leased Premises, including any Exterior Alterations, to be constructed in a good and workmanlike manner, in accordance with all applicable laws, requirements, ordinances, codes, rules, and regulations in existence at the time of construction. Tenant shall obtain building permits far any such improvements or alterations (including any Exterior Alterations). 5.2 Ownership of Improvements. All alterations and improvements (including the Facilities and any Exterior Alterations) made by Tenant during the term hereof shall remain the sole property of Tenant for the term of this Lease. Upon the expiration or termination of the term of this Lease, or any renewal thereof, all such alterations and improvements (including the Facilities and any Exterior Alterations) shall become the property of Landlord; provided, however, that Tenant shall be entitled to remove its trade fixtures, personal property, and equipment. 5.3 Mechanic's Liens. Neither the Landlord nor Tenant shall do or suffer anything to be done whereby the Leased Premises or any part of the Development may be encumbered by any mechanic's lien or other similar lien. If, whenever and as often as any mechanic's lien or other similar lien is filed against the Leased Premises or any part thereof, or any part of the Development, purporting to be for or on account of any labor, materials or services furnished in connection with any work in or about the leased property done by, for or under the authority of either party or anyone claiming by, through or under such party, such party shall discharge the same of record within 120 days after the filing date of the lien. Notice is hereby given that the Landlord does not authorize or consent to and shall not be liable for any labor or materials furnished to Tenant or anyone claiming by, through or under Tenant upon credit, and that no mechanic's lien or similar lien for any such labor, service or materials shall attach to or affect the reversionary or other interest of the Landlord in and to the leased property or any part of such property. ARTICLE 6 MAINTENANCE 6.1 Tenant's Responsibilities. The Leased Premises, including the Facilities located thereon or subsequently constructed thereon, and all fixtures, equipment, and improvements related thereto; and all other fixtures, equipment, and improvements thereon, shall be kept in sightly and good operating condition, reasonable wear and tear excepted, at all times by Tenant, at Tenant's sole cost and expense. Tenant shall keep the Facilities in compliance with all applicable codes, ordinance, statutes, regulations or other governmental requirements applicable thereto. 6.2 Utilitv Charges. Tenant shall be solely responsible for and promptly pay all charges for heat, water, gas, electricity or any other utility used or consumed in, on, or about the Leased Premises from and after the Commencement Date. 6.3 Surrender of Leased Premises. Subject to Article 10, at the expiration or termination of the tenancy hereby created, Tenant shall surrender the Leased Premises in good operating condition, reasonable wear and tear excepted, and shall surrender all keys for any buildings located on the Leased Premises to Landlord. Tenant shall remove all its trade fixtures and personal property before surrendering the Leased Premises as aforesaid, and shall repair any damage to the Leased Premises caused thereby. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of the term of this Lease and Tenant's surrender of the Leased Premises. ARTICLE 7 INSURANCE AND INDEMNITY 7.1 Liabilitv Insurance. Tenant shall, at its sole cost and expense, during the entire term hereof, keep in full force and effect or cause to be kept in full farce and effect a policy of Commercial General Liability Insurance ("Liability Insurance"). Tenant shall cause the Landlord to be named as an additional insured on such Liability Insurance. The minimum acceptable limits for Tenant's Liability Insurance shall not be less than the greater of $500,000 combined single limit coverage for bodily injury, personal injury and property damage, or the legislative cap imposed on municipalities under the Texas Tort Claims Act, as amended, or through legislation of similar effect. 7.2 Propertv Insurance. Tenant shall maintain "all-risk" insurance concerning building improvements located on the Leased Premises in an amount equal to the replacement cost of the Facilities (exclusive of foundations and excavations). Landlord shall be named as an insured "as its interest may appear" under such insurance policy. Tenant shall also carry, under the same terms, a builder's risk policy covering materials and the structure during the construction phases. 7.3 Proof of Insurance. With respect to all policies of insurance which Tenant is required to acquire and maintain under this Lease, Tenant shall deliver to Landlord, on or prior to the Commencement Date, a certificate of insurance containing a 30 day notice of cancellation, material modification, or failure to renew clause benefiting Landlord, and Tenant shall thereafter provide Landlord a new certificate of insurance upon each renewal of such policies. Such policies shall be issued by nationally recognized insurance companies qualified under the laws of the State of Texas to insure the risks covered by such policies. Such policies may be subject to a commercially reasonable deductible. 7.4 Landlord's Liabilitv Insurance. Landlord shall, at all times, carry a policy of Commercial General Liability Insurance for its operations within the Development, or an adequate reserve as a self insured entity, in an amount equal to the legislative cap imposed on municipalities under the Texas Tort Claims Act, as amended, or through legislation of similar effect, which shall name Tenant as an additional insured thereunder. ARTICLE 8 SALE, ASSIGNMENT AND SUBLETTING Tenant shall be able to sell, sublease, assign or encumber its interest in the Lease or any part thereof with the prior written consent of Landlord. ARTICLE 9 WASTE, GOVERNMENTAL REGULATIONS 9.1 Waste. Tenant shall not commit or suffer to be committed any waste upon the Leased Premises. 9.2 Governmental Re�ulations. Tenant shall, at Tenant's sole cost and expense, comply in all material respects with all laws, rules, regulations, decrees and requirements of all county, municipal, state, federal and other applicable governmental authorities now in force or which may hereafter be in force pertaining to its operations within the Leased Premises, including, without limitation, obtaining all necessary building permits for the Facilities and any other improvements to the Leased Premises or alterations of the Facilities or other improvements. ARTICLE 10 DAMAGE OR DESTRUCTION If, during the term of the Lease, the Facilities or any portion thereof, are damaged or destroyed, in whole or in part, by fire or other casualty, Tenant shall promptly notify Landlord in writing as to the nature and extent of such damage ar loss and whether it is economically feasible to rebuild, repair, restore or replace such damage or loss. If Tenant shall determine that such rebuilding, repairing, restoring or replacing is economically feasible, it shall forthwith proceed with and complete with reasonable dispatch such rebuilding, repairing, restoring or replacing. In such case, any net proceeds of casualty insurance required by the lease and in excess of sums needed to defray the costs of repairing and restoring any such damage or loss of the Facilities shall be used to improve or maintain the Facilities unless said proceeds were in payment for the Tenant's personal property or other items not owned by the Landlord. If Tenant shall determine that rebuilding, repairing or restoring or replacing the Facilities is not economically feasible, tenant shall raze the Facilities and clear the Leased Premises of any debris and any proceeds of casualty insurance remaining following such razing and clearing of debris shall be used to acquire substitute land and improvements which will take the place of the Property and Facilities subject to the lease, or alternatively (at the election of the Tenant), shall be paid to the Landlord (unless said proceeds were in payment for the Tenant's personal property or other items not owned by Landlord), in which latter case, the lease shall thereupon terminate, and the Tenant shall tender possession of the premises (i.e., the Property and damaged Facilities, but not removable personal property owned by the Tenant) to the Landlord. ARTICLE 11 DEFAULT 11.1 Events of Default. Each of the following shall constitute an event of default ("Event of Default) under this Lease: A. Tenant shall fail to pay any Rent, or other sums when due under this Lease if such failure continues for a period of 120 days after written notice specifying such failure has been delivered to Tenant. Tenant shall not be deemed to be in default if Landlord and Tenant agree to enter into a payment plan designed to pay any and all sums owed under this contract. B. Tenant shall: (1) make a general assignment for the benefit of creditors; (2) commence any case, proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property (collectively a"proceeding for reliefl'); (3) become the subject of any proceeding for relief which is not dismissed within 120 days of its filing or entry; or (4) be dissolved or otherwise fail to maintain its legal existence. C. Tenant's ceasing to be a not-for-profit entity. D. Failure of Tenant to perform any other of the terms, conditions or covenants of this lease to be observed or performed by Tenant, other than those specifically referred to above, for more than 120 days after written notice of such default shall have been given to Tenant; provided, however, if such default cannot reasonably be cured within such 120 day period, Tenant shall not be in default of this Lease if Tenant commences to cure the default within such 120 day period and thereafter diligently and in good faith continues its attempts to cure such default. 11.2. Landlord's Remedies. In the event that (1) a default is not cured within 120 days after issuance of written notice, then the Landlord may, but is not required, to terminate this Lease, and reenter and take possession of the leased property and all improvements thereon. In such event the Landlord may, after giving the aforesaid 120 days_written notice to the Lessee, declare this Lease terminated, and enter and take full possession of the buildings and premises, and with or without legal process expel, oust and remove any and all parties who may occupy any part of said buildings or premises, and all goods and chattels not belonging to the Landlord that may be found within or upon the same, without being liable to prosecution or to any claim for damages as a result thereof. In the event of cancellation of this Lease by the Landlord in accordance with the previsions of this article, all rights, powers, and privileges of the Tenant thereunder shall cease and the Tenant shall immediately vacate said buildings and leased premises, and shall make no claim of any kind whatsoever against the Landlord its agents or representatives by reason of such cancellation or any act incident thereto. 11.3 Any acceptance or acquiescence by the Landlord for any period, or periods, after a default in any of the terms, covenants and conditions herein contained to be performed, kept and observed by the Tenants, shall not be deemed a waiver of any rights on the part of the Landlord to cancel this Lease for failure by the Tenant so to perform, keep or observe any of the terms, covenants or conditions hereof to be performed, kept and observed. 11.4 Landlord's Default. Landlord shall not be in default in the performance of any obligation required to be performed under this Lease unless Landlord has failed to perform such obligation within 30 days after the receipt of notice from Tenant specifying in detail Landlord's failure to perform; provided, however, that if the nature of Landlord's obligation is such that more than 30 days are required for its performance, Landlord shall not be deemed in default if it shall commence such performance within 30 days and thereafter diligently pursues the same to completion. Upon a default by Landlord, Tenant may, in addition to all other rights and remedies available to Tenant at law or in equity, cure such default on behalf of and at the expense of Landlord and do all reasonably necessary work (which Landlord has failed to do, in breach of its duty pursuant to this Lease) and make all necessary payments in connection therewith to the extent necessary in Tenant's discretion, reasonably exercised, to protect Tenant's leasehold interest and Tenant's continued use and occupancy of the Leased Premises. Landlord shall, within 10 days following receipt of "paid" bills, pay Tenant the amount so paid by Tenant together with interest thereon, at a simple interest rate equal to the lesser of 10% per annum or the maximum rate allowed by law, from the date incurred by Tenant. In the event Landlord fails to pay Tenant as provided in the preceding sentence, the amount or amounts paid by Tenant, together with all costs and interest, may be set off against each installment of Rent as and when paid by Tenant. 11.5 Ri�ht to Cure Defaults. Landlord may, but shall not be obligated to, cure at any time, without notice, any default by Tenant under this Lease; and, whenever Landlord so elects, all costs and expenses incurred by Landlord in curing a default, together with simple interest on the amount of costs and expenses so incurred at the lesser of 10% per annum or the maximum rate allowed by law shall be paid by Tenant as Additional Rent. 11.6 Remedies Cumulative. The parties remedies as specified herein are cumulative and in addition to any rights or remedies available to it in equity or law. ARTICLE 12 ACCESS BY LANDLORD Landlord, or Landlord's representatives, shall have the right, upon reasonable advance notice to Tenant, to enter the Leased Premises at all reasonable times to examine and inspect the same, which times shall be during normal business hours except in emergency circumstances. Landlord agrees not to unreasonably disturb Tenant in the operation of its business and enter the building located on the Leased Premises at such times as shall be calculated to minimize such disturbance. ARTICLE 13 TAXES; LIMITATION 13.1 Taxes on Lease Premises and Tenant's Personal Propertv. Tenant shall be responsible for and shall pay before delinquency all municipal, county and/or state taxes which may be assessed during the term of this Lease against the Leased Premises, the Facilities, and any personal property of any kind owned by or placed in, upon or about the Leased Premises by Tenant. 13.2 Loss and Dama�e. Tenant shall hold harmless and indemnify Landlord which shall not be liable for any loss or damage to Tenant's improvements to the Leased Premises, its trade fixtures or personal property, or the property of others located on the Leased Premises. Tenant shall hold harmless and indemnify Landlord, which shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain, snow, 6ursting of or leaks from any part of the Leased Premises or from the pipes, appliances or plumbing works. All property of Tenant kept or stored on the Leased Premises shall be so kept or stored at the risk of Tenant only, and Tenant shall hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier. ARTICLE 14 HOLDING OVER, SUCCESSORS 14.1 Holdin� Over. Any holding over after the expiration of the term hereof without the consent of Landlord, shall be construed to be a tenancy from month to month at the same Annual Rent applicable during the period prior to such expiration (prorated on a monthly basis) but shall otherwise be subject to all of the terms and conditions herein specified, so far as applicable to a month-to-month tenancy. 14.2 Successors. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors and assigns of the said parties; and if there shall be more than one Tenant, they shall all be bound jointly and severally by the terms, covenants and agreements herein. ARTICLE 15 REPRESENTATIONS AND WARRANTIES OF LANDLORD; QUIET ENJOYMENT 15.1 Landlord's Representations and Warranties. In addition to the other representations and warranties of Landlord contained in this Lease, Landlord hereby represents and warrants to Tenant as follows: A. All taxes on the Leased Premises, except for current taxes not delinyuent, have been paid in full prior to the Commencement Date. B. Landlord is able to and will place Tenant in the peaceful and undisturbed possession of the Leased Premises on the Commencement Date. C. To the best of landlord's knowledge, there are no "Hazardous Materials" (such term shall include, without limitation, substances which are flammable, explosive, corrosive, radioactive, toxic, petroleum and petroleum products and any substances defined as hazardous substances, hazardous materials, toxic substances, or hazardous wastes in the Federal Comprehensive environmental Response compensation and Liability Act of 1980, the Federal Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, any similar state laws, all amendments to these laws and regulations adopted or publications promulgated pursuant to these laws) presently located in, on, or under the Leased Premises including, without limitation, the subsurface soils and groundwater, have migrated to the Leased Premises from another source, have been installed, used, generated, manufactured, stared, released, or disposed of on, under, or about the Leased Premises by Landlord or any third person, not has Landlord received any notice or communication regarding any alleged Hazardous Materials on or about the Leased Premises and that the Leased Premises is in compliance with all federal, state and local laws, ordinances, rules and regulations relating to any such Hazardous Materials. In the event any Hazardous Materials for which Landlord is responsible (as described above) be found on the Leased Premises during the term or any extension of the term hereof, Landlord shall bear all costs for the removal and remediation of the Hazardous Materials and shall restore the Leased Premises to substantially the same condition as it was in immediately prior to such removal and remediation work. Landlord shall immediately notify Tenant in writing of any notice, complaint„ warning, claim, report, ar communication received by Landlord from any federal, state, or local governmental or regulatory agency regarding Hazardous Materials on the Leased Premises, and provide Tenant with a copy of the same within 10 days of Landlord's receipt thereof. D. Tenant agrees not to bring or allow onto the Leased Premises or the development any Aazardous Materials or to do or allow any other form of environmental damage, and agrees to indemnify and hold Landlord harmless from and against all claims, demands, losses, damages, clean-up costs, liabilities or judgments imposed against Landlord, including all interest, penalties, fines and other sanctions, any costs or expenses in connection therewith, including reasonable attorneys' fees, arising out of in connection with the breach or misrepresentation of the representations, agreements and warranties of tenant set forth herein. E. Tenant agrees to obtain, participate and comply with the requirements of an annually conducted environmental audit. 15.2 Quiet Eniovment. Upon payment by Tenant of the Rent and all other sums due hereunder, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the term hereby demised, without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to all of the terms and conditions of this Lease. ARTICLE 16 MISCELLANEOUS 16.1 Non-Discrimination. Tenant agrees, for itself and its successors and assigns, that it shall not discriminate against any person or group thereof upon the basis of race, color, religion, age, sex, ancestry, disability, or national arigin in its use or occupancy of the Leased Premises. A copy of the Landlord's Anti-Discrimination policy is attached to this Lease and is incorporated herein by reference. 16.2 No Gamblin� Use. No existing building on the Leased Premises, nor any building which is constructed or placed upon the Leased Premises, either temporarily ar permanently, shall be used for housing the operation of any multi-game, casino-style gambling on the Leased Premises. 16.3 Entire A�reement. This Lease, and the E�chibits and Riders, if any, attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Leased Premises. 16.4 No Partnership. Landlord does not, in any way or for any purpose, become a partner of tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant. 16.5 Notices. Any notice pursuant hereto shall be given in writing by (a) personal delivery, or (b) expedited delivery service with proof of deliver, or (c) United States Mail, postage prepaid, registered or certified mail, return receipt requested, sent to the intended addressee at the address set forth below, and shall be deemed to have been given either at the time of personal delivery or, in the case of expedited delivery service or mail, as of the date of first attempted delivery at the address. Any such notices may be under the signature of the Landlord's or Tenant's (as the case may be) agent, attorney, or representative. Tenant's Address: Wichita County Humane Society Attn: Kelly Jordan, Executive Director Wichita Falls, Texas 76210 Landlord's Address: City of Wichita Falls Attn: Lou Franklin, Director of Health 1700 Third Street Wichita Falls, Texas 76301 16.6 Captions and Section Numbers. The captions, section numbers, article numbers and index appearing in this Lease are inserted only as a matter of convenience. 16.7 Partial Invaliditv. If any term, covenant or condition of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid ar unenforceable, the remainder of the Lease, or the application of such term covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby. 16.8 Recordin�. Tenant shall not record this Lease without the written consent of Landlord; however, upon the request of either party hereto, the other party shall join in the execution of a memorandum or so- called "short form" of this Lease for the purposes of recordation. Said memorandum or short form of this Lease shall describe the parties, the Leased Premises, Tenant's right of extension, and the term of this Lease and shall incorporate this Lease by reference. 169 Gender. The use of the neuter gender herein shall include the masculine or feminine gender, and the plural shall also include the singular, or vice versa. 16.10 Attornev Fees. If any action at law or in equity is necessary to enforce this agreement, each party agrees to pay their own attorney fees and will not seek to recover their attorney fees from the other party. Tenant understands that pursuant to LoC�, 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 attorney's fees that are equitable and just. Tenant expressly waives its statutory rights to recover attorney's fees as outlined in §271.153(a)(3). 16.11 Governin� Law. The laws of the State of Texas shall govern this contract, and all obligations hereunder of the parties are performed in Wichita County Texas. 16.12 Ri�ht of First Refusal. A. Grant of Right of First Refusal. Landlord hereby grants to Tenant an exclusive right of first refusal (sometimes referred to herein as the "Right of First Refusal") to purchase the Leased Premises. B. Exercise of ri�ht of First Refusal. At such time as Landlord desires to sell, transfer or otherwise convey the Leased Premises to any party, Tenant may exercise its Right of First Refusal pursuant to an "Offer" as defined below and, Tenant shall have the right of first refusal with respect to such Offer. An "Offer" for purposes of this Section is defined as a bona fide offer from a third party (the "Transferee") to acquire the Leased Premises or to accept a transfer of the Leased Premises, which Offer is accompanied by an executed written agreement for the transfer (the "Offer Agreement") identifying the Transferee. If Landlord receives and desires to accept an Offer, Landlord shall promptly notify Tenant thereof and provide Tenant a complete and fully legible copy of the Offer Agreement accompanied by Landlord's statement that it is prepared to transfer the Leased Premises to Tenant upon the terms contained in the Offer Agreement (collectively, the "Offer Notice"). Within 30 days of receipt of the Offer Notice, Tenant shall notify Landlord whether Tenant elects to exercise its right to accept the Transfer of the Leased Premises as set forth above. If Tenant notifies Landlord that it does not wish to exercise its right to accept the Transfer of the Leased Premises, Landlord may proceed to close the proposed Transfer. In the event Tenant exercises the Right of First Refusal by delivering written notice thereof (the "Right of First Refusal Notice"), Tenant and Landlord shall be deemed to have entered into a binding agreement to purchase and sell the Leased Premises pursuant to the terms hereof and under the same terms as contained in the Offer Agreement. In the event tenant does not timely exercise its Right of First Refusal pursuant to the terms and conditions identified in this Section, then Tenant shall be deemed to have waived Tenant's election to exercise its Right of First Refusal and Landlord shall have the right to sell the Leased Premises to Transferee upon the terms and conditions identified in the Offer Agreement. Notwithstanding the foregoing, in the event Landlord does not, for whatever reason, sell the Leased Premises to the Transferee, or receives another offer to sell the Leased Premises, then Landlord shall re-offer to sell the Leased Premises to Tenant in accordance with the terms set forth herein. C. Purchase Price. In connection with the exercise by Tenant of the Right of First Refusal, the purchase price payable by Tenant to Landlord for the Leased Premises shall be the same as set forth in the Offer Agreement, plus any sums then-currently due from Tenant to Landlord under this Lease. D. Delivery of Deed. At the closing of the sale of the Leased Premises, Landlord shall execute and deliver to Tenant (i) a warranty deed for the Leased Premises in recordable form, duly executed and acknowledged, conveying to Tenant fee simple, insurable title to the Leased Premises; such conveyance of the Leased Premises; such conveyance of the Leased Premises shall be subject to (a) the lien of the local ad valorem real property taxes for the year in which the closing occurs (which taxes shall be prorated at closing between Tenant and Landlord on a calendar year basis), (b) those matters of record which are acceptable to Tenant; and (ii) any necessary access and utility easements across the remainder of the Development to assure Tenant's continuing right to access the Leased Premises and use the other portions of the Development following the closing.