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HomeMy WebLinkAboutRes 2021-03-877 Lease Agreement for the Temporary Use of City Facilities with CARDS Dallas, IncorporatedCITY OF ANNA, TEXAS RESOLUTION NO. c f - �--�`l11 A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT FOR THE TEMPORARY USE OF CITY FACILITIES BY AND BETWEEN THE CITY OF ANNA TEXAS AND CARDS DALLAS, INCORPORATED; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Anna is responsible for providing the community with solid waste services; and, WHEREAS, the City of Anna entered into a Solid Waste and Disposal Contract with CARDS Dallas, Incorporated on July 14, 2020 in Resolution No 2020-7-759; and, WHEREAS, The City of Anna and CARDS have developed terms and conditions for a temporary lease of space at the City of Anna Public Works facility for CARDS to use in exchange for a reduced disposal rate for residential solid waste services; and, WHEREAS, the reduced disposal rate results in a reduced cost for Anna neighbors on their solid waste services; and, WHEREAS, CARDS Dallas, Incorporated is continuing to work with the City of Anna to identify a permanent facility for their operations in the City of Anna; and, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Authorization of Payment and Funding. That the City Manager is hereby authorized to execute the lease agreement attached hereto as Exhibit "A." That this agreement shall go into effect immediately upon passage. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this Jay of March 2021OF ATTEST: City Secretary, Carrie L. Smith =1C �T • ••� '� Mayor, Nate Pike T P 0`° Exhibit "A" (see attached lease agreement) LEASE AGREEMENT THIS LEASE AGREEMENT (this Lease") is entered into by and between the City of Anna, Texas, a home -rule municipality ("Landlord") and CARDS Dallas Inc. a Texas corporation ("Tenant"). For valuable consideration the parties as follows. 1. Definitions. The following terms have the meanings set forth below: (a) Effective Date. The effective date of this Lease is the 1ST day of February 2021. (b) Landlord. The City of Anna, Texas. (b) Leased Space. Landlord owns approximately 14.97 acres of real property located at 3223 North Powell Parkway, Anna, Texas 75409 (the 'Premises"). Landlord owns all of the structures and other improvements on the Premises. An industrial/office building of approximately 11,000 square feet (the "Public Works Building") is located on the Public Works Site. The space leased to tenant under this Lease (the "Leased Space") consists of certain portions of indoor and outdoor areas within the Premises, including solely the following: (1) 240 square feet of indoor office space within the Public Works Building as shown on the attached Exhibit A along with nonexclusive license for access and normal use the three restroom areas shown on said exhibit; (2) 20,000 SF of outdoor uncovered polycart and dumpster storage as shown on Exhibit B; (3) 15,000 square feet of commercial vehicle parking as shown on Exhibit B; (4) 3,500 square feet of uncovered employee parking as shown on Exhibit B; and (5) 1,200 square feet of covered vehicle maintenance area as shown on Exhibit B. (c) Lease Period. Commencing on the first day of the month following the Effective Date and expiring on September 1, 2021 subject to a one-year renewal under mutually agreeable terms stated herein if agreed to in writing by Landlord and Tenant. (d) Permitees. All partners, officers, directors, employees, agents, contractorsI customers, visitors and invitees of Tenant at the Leased Space for the purposes set forth in paragraph 2(a), below. (e) City Council. The City Council of the City of Anna, Texas. (f) Tenant. CARDS Dallas Inc. 2. Demise, Term. (a) Demise and Grant of Leased Space. Landlord hereby leases to Tenant and Tenant accepts from Landlord under the terms, provisions and conditions of this Lease the Leased Space commencing on the Effective Date hereof and continuing until the expiration or earlier termination of the Term as hereinafter LEASE AGREEMENT PAGE 1 OF 13 provided and solely for the purpose of using the Leased Space to conduct the business operations necessary to fulfill Tenant's obligations under the City of Anna Solid Waste Collection and Disposal Contract effective August 31, 2020 and entered into by the City of Anna on July 141" 2020 in Resolution No. 2020-7-759 (the "Solid Waste Contract"). (b) Term. The primary term (�Primary Term") of this Lease shall commence as of the Effective Date hereof and shall expire at midnight on September 1, 2021, subject to earlier termination as provided elsewhere in this Lease. The Primary Term and any Renewal Term or extension thereof pursuant to paragraph 2(c) below is referred to in this Agreement as the "Term". (c) Renewal. This Lease shall expire September 1, 2021 (the ��Expiration Date") and shall not automatically renew; provided, however, that this Lease may be extended for a period of one year if the City Council approves such a renewal and a written extension is duly executed by Landlord and Tenant. (d) Quiet Enjoyment. Upon Tenant's payment of all Rent required hereunder as same becomes due and observance and performance of all of the covenants, terms and conditions to be observed and performed by Tenant pursuant to this Lease, Tenant shall have throughout the Term, peaceful, quiet and undisturbed use and possession of the Leased Space and all rights and privileges appertaining thereto, subject to the terms, conditions and provisions of this Lease. (e) Landlord's Title Subordination. Landlord covenants, represents and warrants to Tenant as follows. (1) Title. Landlord hereby represents and warrants that it owns good and indefeasible fee simple title in and to the Premises, subject only to permitted exceptions in any applicable title policy and has full right and authority to make this Lease. This Lease shall not be recorded. (2) No Actions. There are no actions, suits or proceedings pending or to the best of Landlord's knowledge, threatened against Landlord and affecting any portion of the Premises, at law or in equity, or before any federal, state, municipal or other governmental court, department, commission, board, bureau, agency or instrumentality, domestic or foreign. (3) Authority. The execution and consummation of this Lease by Landlord has been duly authorized and does not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, agreement, instrument or obligation to which Landlord is a party or by which the Premises or any portion thereof is bound. However, notwithstanding the foregoing or any term or provision of this Lease, and all rights and obligations of Landlord and Tenant hereunder are subject to and shall not be effective unless and until there has been formal approval by the City Council of this Lease at a duly noticed public meeting. LEASE AGREEMENT PAGE 2 OF 13 (f) Condition of Leased Space. TENANT ACKNOWLEDGES THAT TENANT HAS INSPECTED THE LEASED SPACE AND ACCEPTS THE LEASED SPACE AS STATED IN THE CERTIFICATION ATTACHED HERETO AS EXHIBIT C AND DELIVERED BY TENANT TO LANDLORD, FURTHER, IF AT ANY TIME THIS LEASE SHALL BE FOUND OR DECLARED NULL, VOID, ILLEGAL OR OTHERWISE INVALID FOR ANY REASON BY A COMPETENT COURT OR TRIBUNAL WITH PROPER JURISDICTION, TENANT EXPRESSLY COVENANTS AND WARRANTS THAT IT SHALL CEASE ALL OPERATIONS AND VACATE AND SURRENDER THE LEASED SPACE FORTHWITH IN ACCORDANCE WITH THE SURRENDER REQUIREMENTS UNDER PARAGRAPH 10(e) AND OTHER APPLICABLE PROVISIONS OF THIS LEASE AND AGREES THAT LANDLORD SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES CAUSED BY ANY SUCH FINDING OR DECLARATION OF NULLITY, VOIDNESS, ILLEGALITY OR INVALIDITY. 3. Rent. Tenant shall pay Landlord the following amounts: Rent. During the Term of this Lease, Tenant shall reduce the monthly invoice to the City of Anna for residential solid waste and recycling services from $16.44 to $15.94. Upon the termination of this lease agreement, the residential solid waste and recycling service rate shall increase to the full price of collection and disposal services as stated in the most current Solid Waste Contract, plus disposal fees. At the conclusion of the lease agreement the Residential Solid Waste Rate charged by CARDS to the City of Anna will increase to $16,44, This increase does not include annual price changes for collection and disposal as allowed per the contract. 4. Improvements, Additions and Repairs. (a) Delivery of Leased Space. Landlord shall deliver exclusive possession of the Leased Space to Tenant upon the Effective Date (except that use %J the restrooms in the Public Works Building shall be nonexclusive), suitable for industrial outdoor and office indoor use (with the indoor use being empty, broom clean, and with working HVAC, subject only to the provisions and terms of this Lease). (b) Alterations and Improvements. With the sole exception of construction of improvements on the Leased Space as approved in writing by Landlord, Tenant may not at any time construct, alter, change, and/or demolish any Improvements now or hereafter situated on the Premises. If any such construction by Tenant is at any time approved. (1) All such work shall be performed in a good and workmanlike manner, in accordance with accepted standards of engineering and architecture, if applicable, and in accordance with local, state and federal law, including but not limited to the Americans with Disabilities Act; and (2) Such construction, alteration, additions, changes or demolishment shall be in compliance with all applicable building codes, zoning, LEASE AGREEMENT PAGE 3 OF 13 rules, regulations and ordinances affecting construction of such alterations, additions, and changes and shall be commenced only after Tenant has been duly granted all applicable permits for same. (c) No Mechanic's Liens. Tenant shall not permit any mechanic's or materialman's liens to be filed against Landlord's interest in the Premises arising out of any Tenant improvements, and Tenant shall indemnify, defend (using counsel acceptable to Landlord in its reasonable discretion), and hold harmless Landlord from and against any costs, liability or expense, including attorneys fees and related expenses, attributable to any such liens. Tenant's obligations under this paragraph 4(c) shall expressly survive the expiration or earlier termination of this Lease. (d) Environmental. Tenant will conduct its business in a lawful manner and will not make or permit any unlawful use of the Leased Space. Tenant will, at its own expense, promptly comply with all laws, regulations, and ordinances affecting the Leased Space and the cleanliness, safety, occupancy, and use thereof. TENANT SHALL INDEMNIFY, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS REASONABLE DISCRETION) AND HOLD HARMLESS LANDLORD FROM AND AGAINST ANY COST, LIABILITY OR EXPENSE ARISING OUT OF OR ATTRIBUTABLE TO ANY CLAIMS, DEMANDS, CAUSES OF ACTION, FINES, PENALTIES, LIABILITY OR EXPENSES (INCLUDING ATTORNEY FEES AND RELATED EXPENSES AND COURT COSTS) ARISING OUT OF OR RELATED TO THE EXISTENCE, REMOVAL OR DISPOSAL OF ANY TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS WITHIN OR UPON THE LEASED SPACE CAUSED BY TENANT, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES DURING THE TERM OF THIS LEASE FOLLOWING THE EFFECTIVE DATE. FOR PURPOSES HEREOF, THE PHRASE "TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS" SHALL INCLUDE ITEMS COVERED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, 42 U.S.C. §§9601-75(1986), AS AMENDED BY THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, PUB. L. NO, 99-4991 100 STAT. 1613 (1986) ("CERCLA"), THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C. §2601 ET SEQ., THE CLEAN WATER ACT, 33 U.S.C. §1251 ET SEQ., THE SAFE DRINKING WATER ACT, 42 U.S.C. §§300(f)-300(j), AND OTHER FEDERAL, STATE AND LOCAL LAWS NOW OR HEREAFTER IN EFFECT GOVERNING THE EXISTENCE, REMOVAL OR DISPOSAL OF TOXIC OR HAZARDOUS SUBSTANCES OR MATERIALS. Tenant's obligations under this paragraph 4(d) shall expressly survive the expiration or earlier termination of this Lease. (e) Repairs. Landlord shall, at its sole cost and expense, perform all repairs and preventative maintenance necessary to maintain the indoor and exterior grounds and parking areas comprising the Leased Space in good condition and repair, all to be repaired and maintained in a condition suitable for commercial office use and industrial use, as applicable, and keep the Leased Space in compliance with applicable law throughout the Term. Tenant is otherwise responsible for maintaining the indoor portions of the Leased Space in good condition, reasonable wear and tear excepted. The foregoing shall not in any way LEASE AGREEMENT PAGE 4 OF 13 impair or limit Tenant's right to make alterations or additions to the Leased Space as set forth in paragraph 4(b) above. Landlord may charge Tenant for reasonable third -party charges for repair of damage to the Leased Space, other than ordinary wear and tear, caused by Tenant's negligence, willful misconduct or breach of this Lease Agreement. (f) Tenant's Fixtures. Tenant may install in or upon the Leased Space such trade fixtures and equipment as Tenant deems desirable, provided that Tenant does so in accordance with a written plan approved by Landlord in writing. Said plan shall demonstrate the size and configuration of such fixtures and equipment upon the Leased Space, with said written plan having been approved in advance by Landlord in writing, said approval not to be unreasonably withheld. All of said items shall remain Tenant's property whether or not affixed or attached to the Leased Space. Tenant may remove such items from the Leased Space at any time during the Term and shall repair, at Tenant's sole cost, any damage caused by such removal. (g) Platting, Site Plans, Approvals. Landlord and Tenant acknowledge that it may be necessary, from time -to -time, for Landlord or Tenant to seek governmental approvals with respect to platting, zoning, site plans, permitting and/or obtaining other permits in connection with its use and occupancy of the Leased Space for the uses permitted hereby (collectively, "Approvals"). Landlord agrees to reasonably cooperate with Tenant with respect to its obtaining the Approvals and to execute such documents as may be required of the owner of fee title to the Leased Space in order for Tenant to obtain the Approvals, provided that Landlord shall not incur any costs or liabilities in connection therewith, and Landlord does not guarantee or make any representations with regard to Tenant's ability to actually obtain the Approvals. Tenant expressly understands and agrees that approval by the City Council of this Lease does not constitute the City Council's granting of an Approval and does not bind the City Council to grant or approve any other Approvals. 5. Utilities. Landlord shall at its own expense arrange with the appropriate utility suppliers for services to the Premises, pay all connection, meter and service charges required to connect utilities to the Premises, and pay such utility suppliers directly for such services. 6. Use, Transfers, or Assignments. (a) Tenant's Use. Tenant may use the Leased Space solely for the purposes set forth in Paragraph 2(a), above. (b) Assignment, Subletting. Tenant shall not assign all or any part of this Lease or sublet all or any part of the Leased Space without Landlord's written consent, which may be withheld in Landlord's sole discretion. In the case of any assignment or sublease permitted by Landlord, Tenant shall not be released from liability under this Lease. All assignments and subleases must be in writing and LEASE AGREEMENT PAGE 5 OF 13 must be binding on Tenant and the assignee or subtentant. No assignment or sublease may become effective before Landlord has approved in writing the terms of such written assignment or sublease. 7. Indemnification, Insurance. (a) Indemnification. IN ADDITION TO ANY OTHER PROVISIONS OF THIS LEASE, TENANT SHALL INDEMNIFY, HOLD HARMLESS, AND, AT LANDLORD'S OPTION, DEFEND (USING COUNSEL ACCEPTABLE TO LANDLORD IN ITS REASONABLE DISCRETION) LANDLORD AND ITS OFFICERS, OFFICIALS DIRECTORS, AGENTS, REPRESENTATIVES AND EMPLOYEES (COLLECTIVELY, THE INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LIABILITY, LIENS, CLAIMS, DEMANDS, DAMAGES, EXPENSES, FEES, COSTS, REASONABLE ATTORNEY FEES AND RELATED EXPENSES, FINES, PENALTIES, SUITS, PROCEEDINGS, ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY KIND AND NATURE ARISING OUT OF TENANT'S USE, OCCUPANCY, CONSTRUCTION, MANAGEMENT OR CONTROL OF THE LEASED SPACE, IMPROVEMENTS OR TENANT'S OPERATIONS, CONDUCT OR ACTIVITIES, UNLESS AND TO THE EXTENT THE SAME IS DUE TO THE GROSS NEGLIGENCE OR INTENTIONAL ACTS OR OMISSIONS OF LANDLORD, ITS AGENTS, EMPLOYEES OR CONTRACTORS, TENANT'S OBLIGATIONS UNDER THIS PARAGRAPH 7(a) SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THE LEASE TERM, THE FOREGOING INDEMNIFICATIONS ARE EXPRESSLY INTENDED AND SHALL OPERATE TO PROTECT AND INURE TO THE BENEFIT OF THE INDEMNIFIED PARTIES EVEN IF SOME OR ALL OF LIABILITIES ARE ALLEGED OR PROVEN TO HAVE BEEN CAUSED BY THE NEGLIGENCE OR STRICT LIABILITY OF ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. (b) Tenant's Insurance. Tenant shall, at its expense, obtain comprehensive general liability insurance against all claims on account %J bodily injury, personal injury or property damage, for which Tenant may, as a result of its business operations or other use of the Leased Space, become liable, with limits of not less than (1) $1,000,000.00 for bodily injury to or death of any one person, (2) $2,000,000.00 for any one occurrence for bodily injury to or death of one or more persons arising out of any one occurrence, and (3) $1,000,000.00 per occurrence with respect to any property damages with a $5,000,000.00 umbrella policy in addition to the foregoing policies. All polices of insurance to be maintained by Tenant hereunder may be maintained by way of "blanket policies" insuring the Leased Space and other premises and/or property owned or operated by Tenant or its Affiliates, and shall be subject to such self -insured retention as may be included in Tenant's policies, all in accordance with Texas law. (c) Workers Compensation. Tenant shall maintain workers compensation or similar insurance affording not less than Texas statutory coverage minimums and providing not less than statutory limits or benefits for all employees of Tenant employed at the Leased Space. LEASE AGREEMENT PAGE 6 OF 13 (d) Scope. Each insurance or risk policy to be provided by Tenant hereunder shall name Landlord or its designee as additional insured and shall also contain a provision whereby the insurer agrees that such policy shall not be cancelled except after 30 days' written notice to Landlord or its designee. The insurance policies or duly executed certificates thereof, together with satisfactory evidence that the premium has been paid, shall be provided to Landlord on or before the Effective Date of this Lease; and, thereafter, evidence of continuing insurance and premium payment shall be delivered to Landlord not less than 30 days prior to the expiration of each policy required to be in force hereunder. If Tenant fails to maintain the required insurance or to deliver evidence of same, Landlord may, but shall not be obligated to, obtain such insurance and be reimbursed by Tenant upon demand. (e) Waiver of Subrogation. Landlord shall not be liable by way of subrogation or otherwise to Tenant or to any insurance company insuring Tenant for any loss or damage to any of the property of the Landlord or Tenant covered by insurance even though such loss or damage might have been occasioned by the negligence of: (1) Landlord or its officers, directors, employees, agents, contractors, customers, or visitors and invitees of Landlord at the Premises$ or (2) Tenant or its Permittees. This waiver shall be in effect only so long as the applicable insurance policies shall contain a clause or endorsement to the effect that the waiver shall not affect the right of the insured to recover under such policies. Tenant shall use its best efforts, including payment of any additional premium, to have its insurance policies contain the standard waiver of subrogation clause. In the event Tenant's insurance carrier declines to include in such carrier's policies a standard waiver of subrogation clause, Tenant shall promptly notify Landlord. 8. Destruction, Condemnation. (a) Destruction. (1) Cancellation. If any portion of the Improvements situated on the Leased Space shall be damaged or destroyed to the extent that Tenant can no longer peaceably enjoy the Leased Space after Landlord has had at least 30 days after written notice from Tenant to cure any such damage or destruction , then this Lease shall terminate at Tenant's sole option and discretion indicated by written notice from Tenant within 30 days following such damage or destruction. (2) Restoration. In the event of damage or destruction not caused by Tenant's or Landlord's intentional misconduct or breach of this Agreement, and in the event Tenant has elected not to terminate the lease, Landlord shall, at its sole discretion: (1) remove any debris and cause the Leased Space to be repaired or restored as Tenant may deem necessary or desirable, but in any event the Leased Space shall be repaired or restored by Landlord to a safe and sightly condition in compliance with all applicable laws; or (2) terminate this Lease as indicated by written notice from Landlord within 30 days following such damage or destruction. LEASE AGREEMENT PAGE 7 OF 13 (b) Condemnation. (1) Taking of Parking or Access. In the event of a taking by the power of eminent domain or conveyance in lieu thereof ("Taking") of the whole or any part of the Leased Space, this Lease shall terminate at Tenant's sole option and discretion indicated by written notice from Tenant within 30 days' following such Taking. If Tenant continues under this Lease, the rental amount shall not be adjusted therefore, except by mutual agreement of the parties. However, neither this provision nor any other provision in this Lease shall be interpreted to restrict in any manner the Landlord's right to grant, convey, or dedicate easements on any part of the Leased Space to any person or entity allowing any type of use so long as such use does not degrade Tenant's ability to operate its business. (2) Awards. All compensation awarded for any Taking of the Leased Space (other than a Taking initiated or consummated by the City of Anna, Texas), including any interest of Landlord or Tenant therein, shall be the property of Landlord, and Tenant hereby assigns to Landlord all of Tenant's rights, title and interest in and to any and all such compensation. 9. Default. (a) Events of Default. The following are events of default (��Events of Default"): (1) Obligations. Either party (`Defaulting Party") fails to perform any obligation, covenant or condition or to comply with any provisions of the Lease and such failure continues for 30 days after written notice from the other party ("'Non- )efaulting Party"), unless said default requires more than 30 days to cure and the Defaulting Party commences a cure within 30 days after written notice and thereafter maintains a diligent effort to complete the cure. (2) Bankruptcy. Either party files in any court pursuant to any statute a petition in bankruptcy or insolvency or for reorganization or arrangement or makes an assignment for the benefit of creditors or any such petition is filed against a party and a receiver or trustee of all or any portion of that party's property is appointed and such proceeding is not dismissed or the trusteeship discontinued within 90 days after such appointment. (b) Remedies. Upon the occurrence of an Event of Default by either party, the Non -Defaulting Party shall have the right to terminate this Lease due to the other's default and has the additional right to pursue a cause of action at law or in equity. In the event of early termination as a remedy to default, Tenant shall be liable to Landlord for a prorated portion of the rent and any utility amounts that would normally be due up and until the date that Tenant surrenders the Leased Space in accordance with this Lease, subject to offset for any damages at law or in equity. 10. General Provisions, LEASE AGREEMENT PAGE 8 OF 13 (a) Notice. "Notice" shall mean any notice, notification, consent, approval, request, designation, submission, specification, election or other communication required or permitted under this Lease. All Notices shall be in writing and shall be deemed to have been given and received the earlier of (1) the date the Notice is delivered by one party to the other party personally or delivered to the party's address by a party or by a delivery service which records delivery dates, or (2) three days after the Notice is placed in the mail addressed to the other party at the party's address, properly stamped, certified or registered mail, return receipt requested. A party's address shall be as follows or as set forth in a written Notice to the other party: Landlord: City Manager City of Anna, Texas 111 N. Powell Parkway Anna, Texas 75409 Fax: 972-924-2620 and to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 300 Frisco, Texas 75034 Fax: 972-712-3540 Tenant: Dan Christensen CARDS Dallas, Incorporated 3020 Sargent Road Dallas, Texas 75203 (b) Entire Agreement. This Lease embodies the entire agreement and understanding between the parties as to the lease of the Leased Space by Tenant and supersedes all prior negotiations, agreements and understandings pertaining to such lease. Any provision of this Lease may be modified, waived or discharged only by an instrument in writing signed by the party against which enforcement of such modification, waiver or discharge is sought. This Lease is not intended to be nor shall it be construed as a service contract or contract for the sale of goods by Tenant to Landlord. Landlord does not by entering into this Lease waive any immunities it may have under common law or statute. (c) Commission. Tenant and Landlord hereby represent to each other that neither has entered into any agreement or understanding that would give rise to a real estate commission being owed in connection with this Lease, and each of Landlord and Tenant shall indemnify and hold the other harmless against any commission, payment, interest or participation claimed on account of this Lease with any party under any alleged agreement or understanding entered into on that LEASE AGREEMENT PAGE 9 OF 13 )arty's behalf with the person or entity claiming the commission, payment, interest or participation. (d) Force Majeure. Each party shall be excused from performing an obligation or undertaking provided for in this Lease for so long as such performance is prevented, delayed, retarded or hindered by an Act of God, fire, earthquake, flood, explosion, action of the elements, war, invasion, insurrection, riot, mob violence, sabotage, strike, lockout, epidemic, pandemic, action of labor unions, requisitions, laws, or orders of government or civil or military authorities. (e) Surrender. Upon the expiration of the Term or earlier termination of this Lease, Tenant shall surrender the Leased Space to Landlord. Tenant shall remove all Personal Property, which are not fixtures (other than fixtures installed by Tenant pursuant to Section 4(f) above, which Tenant may remove at Tenant's expense), and shall return any area altered by Tenant for use into its previous condition, subject to Landlord's election to allow any specific items to remain "as is," which election Tenant may secure only in writing from Landlord. All other installations or improvements, including all infrastructure, structures, buildings, HVAC equipment, paneling, decorating, partitions, railings, mezzanine floors, and galleries made by either party shall be and become upon installation, the property of Landlord and shall be surrendered with the Leased Space at the expiration or termination of this Lease unless Landlord notifies Tenant to the contrary in writing, in which event Tenant may remove such property at its expense. Any property not promptly removed by Tenant under the provisions of this subparagraph may, at Landlord's option, be deemed to have been abandoned by Tenant and may be retained by Landlord without any claim by Tenant. Tenant shall in any event repair any damage to the Leased Space caused by Tenant's removal of any property. (f) Applicable Law, Construction. The laws of the State of Texas shall govern the validity, performance and enforcement of this Lease. Any dispute arising under this Lease resulting in litigation shall be adjudicated solely in a court of competent jurisdiction in Collin County, Texas. The invalidity or unenforceability of any provision of this Lease shall not affect or impair any other provision. If any provision of this Lease is capable of two constructions, one of which would render the provision invalid and the other of which would make the provision valid, the provision shall have the meaning which renders it valid. The submission of this document for examination does not constitute an offer to lease, this document being effective only upon the conditions stated herein. (g) Time of the Essence. Time is of the essence with respect to each provision, term and covenant of this Lease. (h) Captions. The captions are for convenience and do not limit or define the provisions of this Lease. (i) Gender, Number. Whenever the sense of this Lease requires it, the use of (i) singular number shall be deemed to include the plural, (2) the masculine LEASE AGREEMENT PAGE 10 OF 13 gender shall be deemed to include the feminine or neuter gender, and (3) the neuter gender shall be deemed to include the masculine and feminine gender. (j) Counterparts. This Lease may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute one instrument. (k) Contract Interpretation. This Lease is the result of negotiation between the parties, and shall, in the event of any dispute over the meaning or application of any portion thereof, be interpreted fairly and reasonably, and not to be more strictly construed against one party than another, regardless of which party originally drafted the language in dispute. (I) No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. (m) Binding Effect. All provisions of this Lease shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. SIGNATURES: LANDLOFi By: Name: Title: STATE OF TEXAS § COUNTY OF COLLIN § This instrument was acknowledged before me on the �c�ay of 2021, by Jim Proce, City Manager of the City of Anna, Texas, a home -rule municipality on behalf of said municipality. RRI�� ��3U Notary Public/State of Texas Notary ID # 11419404 rF of ,�., Expire; February4, 2023 LEASE AGREEMENT PAGE 11 OF 13 TENANT: CARDS Dallas Inc., a Texas co By: Name: Title: STATE OF TEXAS COUNTY OF COLLIN This instrument wa acknowledged before me on the j� day of AOc% � 2021, by—Cn Iy� Cn� its Caf aSDpllaz, on behalf of said corporation. rERRIE CRAFT .otary Public -Arkansas Benton County Notary PUNNAW114tw LEASE AGREEMENT PAGE 12 OF 13 G 0 w 06 w Q U a co 0° w = U u 0 w a w .I� �l =1 G 0 2 �n':utn xi LAUlUralo1�100cIll uxm�x,u�ir ua NVAONH2{ S°JNIOlIf1B 8peilt�uyNg Cl SNLIOM 011Bfld a I Sec4i�1 1� fd- p ❑ J II fl i of ICD ❑ fn IT m JILPr SNOLLVAON3H 8JNlallfl8Fil Fi g Q �q/8 .W111f1/3OIlOd ONV SIl8 N210M Of1d -T .y_ VNNV dO.0 lO vo INN tip per. �/ t ` d N a. O U. ay 0 O o U0 9 � N d O 4 7J �1 ir1► O O- U m Cn Q LL E ,E \ C E iY a4 Qa rn w ;o EXHIBIT C TENANT'S CERTIFICATE AND AGREEMENT THIS TENANT'S AS -IS CERTIFICATE AND AGREEMENT (this Agreement"), is made as of February 1, 2021 by the City of Anna, Texas, a home - rule municipality ("Landlord") and CARDS Dallas Inc. ("Tenant"). RECITALS WHEREAS, pursuant to the terms of that certain Lease, effective as of February ]., 20211 by and between Landlord and Tenant (as the same may have been amended or modified, the "Lease"), Landlord agreed to lease to Tenant, inter aiia, that certain Leased Space as defined in the Lease and certain rights appurtenant thereto, all as more particularly described in the Lease. Initially capitalized terms not otherwise defined herein shall have the respective meanings ascribed to such terms in the Leases and WHEREAS, the Lease requires, inter alia, that, as a condition precedent to Landlord's obligations under the Lease, Tenant shall execute and deliver this Agreement to Landlord at commencement of the Term. NOW, THEREFORE, in consideration of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Tenant hereby certifies and agrees as follows: 1. For purposes of this Agreement, the following terms shall have the following meanings: IN Assumed Liabilities" shall mean any and all Liabilities attributable to the physical condition of the Leased Space including, without limitation, (a) all Liabilities with respect to the condition of the Leased Space for which Tenant is to be responsible for repairs or maintenance under this Lease, (b) all Liabilities relating to the release of or the presence, discovery or removal of any Hazardous Materials caused by Tenant in, at, about, near, or under the Leased Space, or for, connected with or arising out of any and all claims or causes of action based upon CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 19801 42 U.S.C. §§9601 et seq., as amended by SARA (Superfund Amendment and Reauthorization Act of 1986) and as may be further amended from time to time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901 et seq., or any related claims or causes of action or any other Federal, State or municipal -based statutory or regulatory causes of action for environmental contamination at, in, about, near, or under the Leased Space to the extent that any of the foregoing causes of actions or claims arise from or relate to any environmental contamination or violation of Environmental Laws caused or committed by Tenant during Tenant's occupancy of the Leased Space; and (c) any tort claims made or brought with respect to the Leased Space arising out of the use or operation thereof by Tenant or its invitees and not arising from Landlord's breach TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 1 OF 7 of its obligations under this Lease or with respect to the Leased Space. Notwithstanding the foregoing, however, "Assumed Liabilities" shall not include any Liabilities arising out of or in connection with: (i) any claims made or causes of action brought by any governmental authority as a result of any violations of any applicable laws that were caused by Landlord or by persons other than Tenant, or its invitees during the Lease term, during the time that Landlord owned title to the Premises (except for claims made or causes of action brought by Landlord, arising under, in connection with, growing out of or otherwise related to the Lease or this Agreement); and/or (ii) any and all Liabilities relating to the release of or the presence, discovery or removal of any Hazardous Materials introduced or installed by Landlord or by persons other than Tenant, or its invitees during the Lease term, during or prior to Landlord's period of ownership of the Premises to, in, at, about, near, or under the Leased Space, or for, connected with or arising out of any and all claims or causes of action based upon CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§9601 et seq., as amended by SARA (Superfund Amendment and Reauthorization Act of 1986) and as may be further amended from time to time), the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§6901 et seq., or any related claims or causes of action or any other Federal, State or municipal -based statutory or regulatory causes of action for environmental contamination (collectively "Environmental Laws") at, in, about, near, or under the Leased Space to the extent that any of the foregoing causes of actions or claims arise from or relate to any environmental contamination or violation of Environmental Laws caused by Landlord, or any person other than Tenant or its invitees, during or prior to Landlord's period of ownership of the Premises. (iii)any and all Liabilities relating to, arising from or based upon latent defects, or conditions giving rise to work required to be done by Landlord under the Lease. The items listed in clauses (i)-(iii) above are referred to collectively as the "Excluded Liabilities". "Tenant's Representatives" shall mean Tenant and any officers, directors and senior employees of Tenant involved with the negotiation of the Lease. "deemed to know" (or words of similar import) shall have the following meaning: (a) Tenant shall be "deemed to know" of the existence of a fact or circumstance to the extent that: TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 2 OF 7 (i) any Tenant's Representative has actual knowledge of such fact or circumstance, or (ii) such fact or circumstance is disclosed by the Lease, or any other Document' delivered to any of Tenant's Representatives. (b)Tenant shall be "deemed to know" that any of Landlord's warranties or representations is untrue, inaccurate or incorrect to the extent that: (i) any Tenant's Representative has actual knowledge of information which is inconsistent with any of Landlord's Warranties, or (ii) the Lease or any Document contains information, which is inconsistent with any of Landlord's warranties or representations. "Documents" shall mean the documents and instruments applicable to the Leased Space or any portion thereof that any of the Landlord Parties deliver or make available to any Tenant's Representative prior to the date hereof or which are otherwise obtained by any Tenant's Representative prior to the date hereof, including, but not limited to, the Title Commitment, the Survey, the Title Documents, and the Leased Space Documents. "Due Diligence" shall mean examinations, inspections, investigations, tests, studies, analyses, appraisals, evaluations and/or investigations with respect to the Premises or Leased Space, the Documents, and other information and documents regarding the Premises or Leased Space, including, without limitation the physical condition of the Premises or Leased Space. "Hazardous Materials" shall mean any substance, chemical, waste or material that is or becomes regulated by any Federal, State or local governmental authority because of its toxicity, infectiousness, radioactivity, explosiveness, ignitability, corrosiveness or reactivity, including, without limitation, asbestos or any substance containing more than 0.1 percent asbestos, the group of compounds known as polychlorinated biphenyls, flammable explosives, oil, petroleum or any refined petroleum product. "Leased Space Documents" shall mean, collectively, any documents or instruments which constitute, evidence or create or relate to any portion of the Leased Space. "Liabilities" shall mean, collectively, any and all losses, costs, damages, claims, liabilities, expenses, demands or obligations of any kind or nature whatsoever. Tenant is deemed to have knowledge if any fact or circumstance is disclosed by any Documents (a broadly defined term) delivered or made available to Tenant, whether or not Tenant has actual conscious awareness of a particular fact. TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 3 OF 7 Landlord Parties" shall mean and include, collectively, (a) Landlord; (b) its legal counsel; and (c) any third -party consultants engaged by Landlord to evaluate the feasibility of the Lease. 2. Tenant acknowledges and agrees that, prior to the date hereof: (a) Landlord has made available to Tenant, or otherwise allowed Tenant access to, the Leased Space; (b) Tenant has conducted (or has waived its right to conduct) all Due Diligence as Tenant considered necessary or appropriate; (c) Tenant has reviewed, examined, evaluated and verified the results of its Due Diligence to the extent it deems necessary or appropriate with the assistance of such experts as Tenant deemed appropriate; and (d) except for, and only to the extent of, Landlord's warranties and representations contained in the Lease, is acquiring the Leased Space based exclusively upon its own Due Diligence. 3. Tenant acknowledges and agrees that, except for, and only to the extent of, Landlord's warranties and representations under the Lease. (a) The Leased Space is being demised, and Tenant is accepting possession of the Leased Space on the date hereof, "AS IS, WHERE IS, WITH ALL FAULTS", with no right of setoff or reduction in any payment of Rent or Additional Rent which may become due under the Lease, excepting any Excluded Liabilities. (b) Except as stated in this Lease, none of the Landlord Parties have or shall be deemed to have made any verbal or written representations, warranties, promises or guarantees (whether express, implied, statutory or otherwise) to Tenant with respect to the physical condition of the Leased Space, any matter set forth, contained or addressed in the Documents (including, but not limited to, the accuracy and completeness thereof) or the results of Tenant's Due Diligence. (c) Tenant has confirmed independently all information that it considers material to its acceptance of the Leased Space. (d)Tenant is not relying on (and Landlord and each of the other Landlord Parties does hereby disclaim and renounce) any representations or warranties of any kind or nature whatsoever, whether oral or written, express, implied, statutory or otherwise, from any of the Landlord Parties, as to. (i) the operation or performance of the Leased Space, the income potential, economic status, uses, or the merchantability, habitability or fitness of any portion of the Leased Space for a particular purpose other than for commercial office use; (ii) the physical condition of the Leased Space or the condition or safety of the Leased Space or any component thereof, including, but not limited to, plumbing, sewer, heating, ventilating and electrical systems, roofing, air conditioning, foundations, soils and geology, including Hazardous TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 4 OF 7 Materials, lot size, or suitability of the Leased Space or any component thereof for a particular purpose other than for commercial office use, (iii) the presence or absence, location or scope of any Hazardous Materials in, at, about, near, or under the Leased Space, (v) whether the improvements are structurally sound, in good conon, or in compliance with applicable Laws, other than that the Leased Space have been delivered by the Landlord empty and broom clean, that the HVAC system is in working order at the time of delivery, and that the Leased Space are suitable for commercial office use, (vi) the dimensions of the Leased Space or the accuracy of square footage, sketches, or revenue or expense projections related to the Leased Space; (vii)the locale of the Leased Space, the leasing market for the Leased Space, or the market assumptions Tenant utilized in its analysis of the Leased Space and determination of the Rent amount; and (viii)whether the Leased Space is or would likely constitute a target of terrorist activity or other acts of war. (e) Except as otherwise set forth in the Lease, Landlord is under no duty to make any affirmative disclosures or inquiry regarding any matter, which may or may not be known to any of Landlord Parties regarding the physical condition of the Leased Space, and Tenant, for itself and for its successors and assigns, hereby specifically waives and releases each of the Landlord Parties from any such duty that otherwise might exist. 4. Except as may be provided in the Lease regarding any repairs agreed to be done by Landlord, any repairs or work required by Tenant are the sole responsibility of Tenant, and Tenant agrees that there is no other obligation on the part of Landlord to make any changes, alterations or repairs to the Leased Space, including, without limitation, to cure any violations of Law, comply with the requirements of any insurer or otherwise. Except as may be provided in the Lease, Landlord is solely responsible for obtaining any certificate of occupancy or any other approval or permit necessary for the transfer or occupancy of the Leased Space; provided further, Landlord is responsible for any repairs or alterations necessary to obtain the same, at Landlord's sole cost and expense. 5. Tenant (i) having inspected the Leased Space as described above, (ii) having conducted, reviewed, examined, evaluated and verified the results of all Due Diligence to the extent Tenant deems appropriate as described above, (iii) having notified Landlord of any changes, alterations or repairs required to be made to the Leased Space that Tenant has discovered as a result of such Due Diligence at the time of the signing of this Lease, and (iv) having determined that Tenant shall TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 5 OF 7 accept the Leased Space based exclusively upon its own Due Diligence (except for, and only to the extent of, Landlord's warranties and representations under the Lease), then, accordingly, Tenant agrees with Landlord that Tenant is in fact accepting the Leased Space based exclusively upon its own Due Diligence, except for, and only to the extent of, Landlord's warranties and representations under the Lease, and to evidence the foregoing, Tenant agrees to release Landlord as set forth below. Accordingly, except as expressly provided hereinbelow in this Section 5, Tenant, for Tenant and Tenant's successors and assigns, hereby releases each of the Landlord Parties from, and waives any and all Assumed Liabilities against each of the Landlord Parties for or attributable to or in connection with the Leased Space, whether arising or accruing before, on or after the date hereof and whether attributable to events or circumstances, which have heretofore or may hereafter occur. Notwithstanding the foregoing, the release and waiver set forth in this Section 5 is not intended and shall not be construed as (i) affecting or impairing any rights or remedies that Tenant may have against Landlord as a result of a breach of any of Landlord's warranties and representations under the Lease, or (ii) shifting to Tenant any obligation, responsibility or liability for any Liability that does not constitute an Assumed Liability. Landlord hereby confirms it takes responsibility and liability for the Excluded Liabilities, 6. Tenant hereby assumes and takes responsibility and liability for all Assumed Liabilities. Notwithstanding the foregoing, nothing in this Section 6 shall be construed to affect or limit Tenant's rights or remedies against Landlord as a result of Landlord's breach of Landlord's warranties and representations under the Lease. 7. Tenant expressly understands and acknowledges that it is possible that unknown Assumed Liabilities may exist with respect to the Leased Space and that Tenant explicitly took that possibility into account in determining and agreeing to accept the Leased Space, and that a portion of such consideration, having been bargained for between parties with the knowledge of the possibility of such unknown Assumed Liabilities has been given in exchange for a full accord and satisfaction and discharge of all such Assumed Liabilities, except for Assumed Liabilities arising as a result of Landlord's breach of Landlord's warranties and representations under the Lease. 8. Tenant acknowledges and agrees that the provisions of this Agreement were a material factor in Landlord's agreement to lease the Leased Space to Tenant and, while Landlord has provided the Documents and cooperated with Tenant, Landlord is unwilling to lease the Leased Space unless the Landlord Parties are expressly released as set forth in Section 5 and Tenant assumes the obligations specified in Section 6. 9. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 6 OF 7 10. If any term or provision of this Agreement or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. TENANT: CARDS Dallas Inc., a Texas corporation By: i-N Name: Title: VE a t_ Sa STATE OF TEXAS COUNTY OF COLLIN This instrument was acknowledged before me on the 15 day of 2021, by e\ �c'. Q,Cc Ali its S_tWZt , on behalf of said corporation. TERRIE CRAFT Notary Public -Arkansas Benton County ^oComm ssion #1239729024 Notary Public/State of Texas TENANT'S AS -IS CERTIFICATE AND AGREEMENT PAGE 7 OF 7