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Res 009-2003 2/4/2003RESOLUTION NO. q - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT WITH RIVER BEND NATURE WORKS, INC., FOR THE OPERATION OF THE RIVER BEND NATURE WORKS CENTER; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, the City and the River Bend Nature Works, Inc., have previously entered into an operation and maintenance agreement for the operation of the River Bend Nature Works Center: and WHEREAS, the parties desire to execute a long -term lease agreement which will facilitate and promote additional development of the River Bend Nature Works Center. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1 . The City Manager is hereby authorized to execute the attached lease agreement with River Bend Nature Works, Inc., for the operation of the River Bend Nature Works Center. SECTION 2 . It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 4` day of February, 2003. 0_ /j )L MAYOR ATTEST: V V� lj yh�l _ er LEASE TERMS AND DEFINITIONS Date: As of July 1, 2002 Landlord: City of Wichita Falls 13007 1h Street Wichita Falls, Texas 76301 Wichita County Tenant: River Bend Nature Works, Inc. 2200 3` Street Wichita Falls, Texas 76301 Wichita County Premises: The building and premises known as: River Bend Nature Works Center, located at 2200 3r Street Wichita Falls, Texas 76301 and legally described as : See attached Exhibit "A" for legal description Rent: $1.00 per year Term: Fifty (50) years, plus options for renewal for two twenty -five (25) year consecutive terms Commencement Date: July 1, 2002 Termination Date: June 30, 2052 Use: As a center for River Bend Nature Works, Inc., activities and operations, and all other lawful charitable uses and activities that River Bend Nature Works, Inc., might engage in as a service to the public of the City of Wichita Falls and its environs Amount of Liability Insurance: Death /Bodily Injury $1,000,000.00 Property $ 250,000.00 Tenant's Improvements means all the improvements and renovations to the Premises made by the Tenant during the Lease term. A. Tenant agrees to — 1. Lease the premises for the entire term beginning on the commencement date and ending on the termination date. 2. Accept the Premises in their present condition "AS IS," the Premises being currently suitable for Tenant's present use, and Tenant WAIVES the implied warranty of suitability. 3. Obey all laws, ordinances, orders, and rules and regulations applicable to the use, condition, and occupancy of the Premises. 4. Submit to Landlord plans for any future renovation, additions, or remodeling projects for substantial Tenant Improvements, and obtain Landlord's written approval prior to commencement of any work on those projects on the Premises, which approval will not be unreasonably withheld. 5. Pay the annual rent of $1.00 to Landlord. 6. Allow Landlord to enter the Premises at all reasonable times to perform Landlord's obligations and to inspect the premises. 7. Maintain public liability insurance (so long as such is obtainable at a reasonable premium) for the Premises and the conduct of Tenant's operations, naming Landlord as an additional insured, in the amounts stated in the basic Lease terms and definitions. 8. Maintain insurance on Tenant's personal property in amounts and for coverages desired by Tenant. 9. Insure (so long as such is obtainable at a reasonable premium) the buildings on the Premises against all risks (except earthquake and flood) of direct physical loss in an amount equal to at least ninety percent (90 %) of the full replacement cost of the same as of the date of loss and liability, naming Landlord and Tenant as loss payees as their respective interests may appear. 10. Deliver certificates of insurance evidencing the required coverages hereunder to Landlord before the commencement date and thereafter when requested. 11. Maintain the Lease Premises, and all fixtures therein and additions thereto, in good repair and condition. This obligation shall not include the repair and maintenance responsibilities assumed by the Landlord under paragraph CA. B. Tenant agrees not to — 1. Use the premises for any purpose other than that stated in the basic Lease terms and definitions. 2. Allow a lien to be placed on the Premises (without first obtaining Landlord's approval, which approval will not be unreasonably withheld). 3. Assign this Lease without Landlord's written consent. C. Landlord agrees to — 1. Lease (and does hereby lease) to Tenant the Premises for the entire term beginning on the Commencement Date and ending on the Termination Date. 2. Obey all laws, ordinances, orders, and rules and regulations applicable to the use, condition, and occupancy of the building and Premises. 3. Provide normal utility service connections to the building(s) on the Premises. 4. Repair, replace and maintain the grounds of the Premises, including mowing grass (in the areas set aside by Tenant for mowing), trimming trees, controlling poison ivy, applying herbicide to weeds (in areas set aside as lawn areas by Tenant), applying fire ant poison as reasonably necessary, performing irrigation and maintaining the irrigation system, and providing exterior lighting — all as reasonably necessary for the grounds to be neat, attractive and presentable to the public as a first -class nature center. 5. Pay all utility costs associated with the buildings, improvements, and grounds of the Premises, including water and sewer, gas and electric services, and trash removal and disposal services — provided, however, the furnishing of such utility costs shall be only as to such uses presently made of the Premises by Tenant, and if any substantially increased uses such as the uses associated with a building hereafter added of substantial size (over 1,000 square feet of HVAC serviced and lighted new building) are had, then Landlord may elect not to furnish such utilities for such increased uses. 6. Provide written notice of Landlord's approval or disapproval of Tenant plans submitted under paragraph A4 of this Lease within twenty (20) days of receipt of such plans. D. Landlord agrees not to — 1. Interfere with Tenant's possession of the Premises as long as Tenant is not in default. 2. Unreasonably withhold consent to a proposed assignment or addition or additional renovation to the Premises or the placing of a lien on the Premises to secure financing for improvements to the Premises. Landlord hereby agrees to allow Tenant to erect exterior walls or fences as Tenant deems necessary, such to Landlord approval of actual construction plans to be submitted by Tenant according to the terms of paragraph A4 of this Lease. E. Landlord and Tenant agree to the following — 1. Alterations All buildings, structures, and other improvements upon the Leased Premises at the commencement of the term of this Lease or at any time thereafter during said term, including all appurtenances thereto, whether now belonging to the Landlord or hereinafter built or placed upon the Leased Premises (by the Tenant) shall become and remain the property of the Landlord. 2. Early Termination by Tenant Notwithstanding paragraph Al of this Lease, Tenant may elect early termination of the Lease. Such request shall be made in writing to the Landlord and state the effective date. If such an early termination of the Lease is without just cause, Tenant will thereupon forfeit all claims and rights under the Lease. Landlord agrees to execute a Release of Lease for the benefit of Tenant upon such early termination, within thirty (30) days of the termination notice. Just cause for the purposes of this paragraph E(2) shall mean default by the Landlord under this Lease agreement. Also, if Tenant should abandon the Premises, then this Lease will terminate upon such abandonment, but such abandonment must be conclusively established to cause termination hereof. 3. Release of Claims /Subrogation Landlord and Tenant release each other from any claim, by subrogation or otherwise, for any damage to the Premises, the building, the parking facility, if any, personal property within the building, or death or personal injury or property damage by reason of fire, the elements, or any other cause, including negligence of Landlord or Tenant This release applies only to the extent that it is permitted by law, the damage is covered by insurance proceeds and the release does not adversely affect any insurance coverage. Provided, however, each party shall seek to obtain such a waiver of subrogation against the other in all insurance policies obtained by either party and applicable to any act or event occurring on the Premises, all so long as such waiver of subrogation is reasonably obtainable without additional premium therefore in excess of 10% of the premium otherwise payable for such insurance. 4. Notice to Insurance Companies Landlord and Tenant will notify the issuing insurance companies of the release set forth in the preceding paragraph and will have the insurance policies endorsed, if necessary, to prevent invalidation of the insurance coverage. 5. Casualty/Total or Partial Destruction If the Premises are damaged or destroyed by casualty, and the Tenant elects to rebuild either on site or on any site within the city limits of Wichita Falls, Landlord agrees to apply all proceeds from the property insurance policy, heretofore described in paragraph A9, to rebuild the Premises. Tenant shall communicate its election to rebuild to the Landlord within 90 days after the date of the casualty. Upon such election, Tenant shall submit to Landlord a plan for rebuilding the Premises for the Landlord's written approval (which approval will not be unreasonably withheld or delayed) prior to the commencement of any work on the Premises. Such plan shall be submitted within a reasonable time after notice of Tenant's intent to rebuild is given, but in no event more than six months from the date of the casualty. 6. Condemnation /Substantial or Partial Taking If the Premises cannot be used for the purposes contemplated by this Lease because of condemnation or purchase in lieu of condemnation, the Tenant will have the option of terminating this Lease. 7. Default by Landlord /Events Defaults by Landlord are (a) failing to comply with any provision of this Lease within thirty (30) days after receipt of written notice thereof, or (b) failing to provide essential services (being furnishing utilities or garbage removal) to Tenant within ten days after receipt of written notice. 8. Default by Landlord/Tenant's Remedies Tenant's remedies for Landlord's default are to sue for damages, terminate this Lease, and /or seek injunction (or mandamus) or other equitable relief. 9. Default by Tenant/Events Defaults by Tenant are (a) failing to pay timely rent within ten days after receipt of written notice by Landlord, (b) abandoning or vacating a substantial portion of the Premises (and such continuing to remain abandoned for thirty (30) days after Tenant's receipt of notice thereof), (c) failing to comply with any other provision of this Lease within thirty (30) days after receipt of written notice thereof, or (d) failure to use Premises for the public purposes as provided herein in the definition of "Use" under Lease Terms and Definitions (and such failure continues for thirty (30) days after Tenant receives written notice thereof). 10. Default by Tenant /Landlord's Remedies Landlord's remedies for Tenant's default are to (a) enter and take possession of the Premises, after which Landlord may relet the Premises on behalf of Tenant and receive the rent directly by reason of the reletting, and Tenant agrees to reimburse Landlord for any expenditures made in order to relet; (b) enter the Premises and perform Tenant's obligations; or (c) terminate this Lease by written notice and sue for damages. Landlord may upon any default by Tenant enter and take possession of the Premises by self -help, by picking or changing locks if necessary, and may lock out Tenant or any other person who may be occupying the Premises, until the default is cured, without being liable for damages. 11. DefaultM/aiver /Mitigation It is not a waiver of default if the non - defaulting party fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set forth in this Lease does not preclude pursuit of other remedies in this Lease or as provided by law. Landlord and Tenant have a duty to mitigate damages. 12. Holdover If Tenant does not vacate the Premises following termination of this Lease, Tenant shall be a Tenant at -will and shall vacate the Premises on receipt of notice from Landlord. No holding over by Tenant, whether with or without the consent of Landlord, will extend the term. 13. Alternative Dispute Resolution Landlord and Tenant shall submit in good faith to mediation before filing a suit for damages. 14. Attorneys' Fees If either party retains an attorney to enforce this Lease, the prevailing party is entitled to recover reasonable attorneys' fees. 15. Venue Venue is in the county in which the Premises are located. 16. Option to Renew Tenant shall have the option to renew this Lease for two additional twenty -five (25) -year terms, upon the same terms and conditions as for the initial fifty (50) -year term. The first such option period shall commence upon the expiration of the initial 50 -year term and the second such option period shall commence upon the expiration of the first 25 -year option term (provided such 25 -year options are so exercised). To exercise each such option, the Tenant shall notify the Landlord in writing of the exercise thereof at least 120 days before the commencement of such option period (and provided Tenant is not in default hereunder at the time of the exercise hereunder). Provided, however, if Tenant should fail to give such written notice of the exercise of an option, such option right will not terminate until Landlord gives Tenant a written notice reminder of such failure to exercise the option, and Tenant then fails to exercise such within thirty (30) days after the receipt of such reminder. 17. Provision for Inclusion of Additional Premises Tenant may include additional property to also be included under this Lease upon furnishing Landlord a description of such additional property and obtaining Landlord's written consent for such inclusion. 18. Entire Agreement This Lease, together with the attached exhibit, is the entire agreement of the parties, and there are no oral representations, warranties, agreements, or promises pertaining to this Lease or to the expressly mentioned exhibits and riders not incorporated in writing in this Lease. 19. Amendment of Lease This Lease may be amended only by an instrument in writing signed by Landlord and Tenant. 20. Limitation of Warranties THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY STATED IN THIS LEASE. 21. Notice Any notice required by this Lease shall be deemed to be delivered (whether or not actually received) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to Landlord or Tenant at their addresses as set forth herein, or such other address as a party may have theretofore given (under the procedure of this paragraph 21) to the other party. 22. Abandoned Property Landlord may retain destroy, or dispose of any property left on the Premises at the end of the term. Landlord: City of Wichita Falls M. James Berzina, City Manager Tenant: River Bend Nature Works, Inc. BY: Julia Whitmire, President, Board of Directors STATE OF TEXAS § COUNTY OF WICHITA § This instrument was acknowledged before me this day of , 2003, by James Berzina, City Manager of the City of Wichita Falls. Notary Public, State of Texas STATE OF TEXAS § COUNTY OF WICHITA § This instrument was acknowledged before me this day of , 2003, by Julia Whitmire, President of the Board of Directors of River Bend Nature Works, Inc., a Texas non - profit corporation, on behalf of said corporation. Notary Public, State of Texas EXHIBIT " A " A. Hilltop at River Bend Parcel A tract of land out of the John A. Scott Survey No. 18, A -300, Wichita County, Texas, and being more specifically described by metes and bounds as follows: BEGINNING at a'' /2 inch iron rod lying at the intersection of the West right -of -way line of Sunset Drive, a dedicated street, and the North right -of -way line of Third Street, a dedicated street, said Yz inch iron rod also being the Southwest corner of this description; THENCE along the North right -of -way line of Third Street, South 89° 37' 26" West a distance of 349.70 feet to a 3/8 inch iron rod for the most easterly southwest corner of this description; THENCE leaving the North right -of -way line of said Third Street and along the East line of Lot 2, Thomas Ward Addition, an addition to the City of Wichita Falls, Wichita County, Texas, as recorded in Volume 16, Page 12, Wichita County Plat Records, North 00° 31' 03" West a distance of 61.44 feet to a 5/8 inch sucker rod for the Northeast corner of said Lot 2 and an angle corner of this description; THENCE along the South line of Lot 1 in said Thomas Ward Addition, North 89 22' 16" East a distance of 29.69 feet to a 5/8 inch sucker rod for the Southeast corner of said Lot 1, and an internal corner of this description; THENCE along the East line of Lot 1 ins aid Thomas Ward Addition, North 00 19' 48" West a distance of 72.98 feet to a 5/8 inch sucker rod for the Northeast corner of said Lot 1 and an internal corner of this description; THENCE along the south line of said Lot 1, South 89° 37' 26" West a distance of 169.52 feet to a' /z inch iron rod lying in the North right -of -way line of Polk Street for the most westerly Southwest corner of this description; THENCE North 41° 30' 40" East a distance of 56.68 feet to a'' /2 inch iron rod for the Northwest corner of this description; THENCE North 00° 43' 13" West a distance of 196.38 feet to a ' / 2 inch iron rod for the Northwest corner of this description; THENCE East a distance of 482.75 feet to a ' / 2 inch iron rod for the Northwest corner of this description; THENCE in a southeasterly direction as follows: Along a 11.384° curve to the right having a radius of 503.20 feet and a central angle of 14 09' 32 ", a curve distance of 124.35 feet to a'' /z inch iron rod for a point of compound curvature; Along a 1.303 curve to the right having a radius of 4,395.88 feet and a central angle of 01' 28' 01". A curve distance of 112.55 feet to a ' / 2 inch iron rod for a point of tangency lying in the West right - of -way line of Sunset Drive; THENCE South 89° 37' 26" West a distance of 50.03 feet to a ' / 2 inch iron rod in the West right -of -way line of Sunset Drive for an interior corner of this description; THENCE along the West right -of -way line of Sunset Drive South 00 22' 34" East a distance of 134.55 feet to the place of beginning and containing 3.75 acres, more or less. B. Natural Area At River Bend Parcel A tract of land out of the John A. Scott Survey No. 18, A -300, Wichita County, Texas, and being more specifically described by metes and bounds as follows: BEGINNING at a'' /z inch iron rod which bears North 00 25' 59" East 48.08 feet from the Northeast corner of Lot 18, Block 6, amended plat of Inglewood Place, an addition to the City of Wichita Falls, Texas, for the southwest corner and place of beginning of this description; THENCE North 14° 51' 14" East 342.97 feet to a '/z inch iron rod in a fence line for the Northwest corner of this tract; THENCE along said fence line, North 66° 39' 53" East 60.78 feet to a'' /2 inch iron rod for the most northerly corner of this tract; THENCE South 52 56' 51" East 187.93 feet to a '/z inch iron rod for the Northeast corner of this tract; THENCE South 02 47' 03" West 245.44 feet to a '/2 inch iron rod for the Southeast corner of this tract; THENCE North 89° 25' 48" West 281.81 feet to the Place of Beginning and containing 1.78 acres, more or less. C. Leta A. Huckabee Keen Parcel Lot Two (2) of the Thomas Ward Subdivision, an addition to the City of Wichita Falls, Wichita County, Texas, according to plat recorded in Volume 16, Page 12, Wichita County Plat Records. D. Lillie Jung Parcel Lot No. One (1), of the Thomas Ward Subdivision, an Addition to the City of Wichita Falls, Wichita County, Texas, according to plat of record in Volume 16, Page 12, Wichita County Plat Records. E. Joyner Parcel Lot, tract, or parcel of land situated in Wichita County, Texas, described as being a portion of that certain five acres out of J. A. Scott Survey #18, Abstract #300, from J.A. Kemp to J.G. Stearns, deeded to J. H. Joyner and wife, Annie Joyner, March 6, 1946, and being further described as follows: BEGINNING at the Southeast corner of a tract sold to Roy Wall, running east 80 feet; THENCE North 150 feet; THENCE West 80 feet; THENCE South 150 feet to the Place of Beginning, as per plat of record, recorded in Wichita County, Texas.