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Home My WebLink About2006.08_YMCA Poolxre PROJECT COMPLETION REPORT N� PROJECT: YMCA POOL DATE PROJECT WAS INITIATED: May 2005 DATE PROJECT WAS COMPLETED: August 2006 DEPARTMENT RESPONSIBILITY FOR PROJECT: Managerial Department STAFF COMMENTS: The proiect consists of a partnership between the City of Owasso and the YMCA of Greater Tulsa for the expansion of recreational facilities at RaLola Park. The City contributed $1,000,000 for the purpose of purchasing construction materials needed to build an indoor aquatic facility. It should be noted, that an additional $500,000 from the Tulsa County Vision 2025 funds were also used. The new facility opened in June 2006. The final invoice was received on August 29, 2006 and paid by the City of Owasso. Rodney J. Ray PROJECT COORDINATOR City Manager DEPARTMENT PROJECT COORDINATOR January 10, 2007 DATE Approved this 22nd day of January, 2007. B end Snow, Chairman n LEASE between THE CITY OF OWASSO, OKLAHOMA and THE YMCA OF GREATER TULSA, An Oklahoma nonprofit corporation June 15, 2004 ;-n2 9a;, 1370293.3; TABLE OF CONTENTS PAGE RECITALS......................................................................................... ............................... 1 ARTICLE 1 — INTERPRETIVE MATTERS .................................. ............................... 1 Section 1.1 Interpretation and Construction I .................. ............................... ARTICLE H — REPRESENTATIONS Section 2.1 ............................................ ............................... Representations and Covenants by the City 2 ............................... 2 Section 2.2 Representations and Covenants by the Company ..................... 3 ARTICLEIII — LEASE .................................................................... ............................... 4 Section 3.1 Lease of the Ground/ Facilities Section3.2 ...................... ............................... Facilities 4 Section 3.3 .......................................................... ............................... Short Form Lease 4 Section 3.4 ........................................... ............................... Baseball Field 4 ................................................. ............................... 4 ARTICLEIV — LEASE TERM Section 4.1 ........................................................ ............................... Term of the Lease 5 Section4.2 ........................................... ............................... Intentionally Blank 5 Section4.3 ........................................ ............................... Surrender of Possession 5 Section4.4 ................................. ............................... Reversion 5 Section 4.5 ............................... ............................... Evidence of Termination Section 4.6 ............................... ............................... Effect of Holding Over ................................... ............................... 5 5 Section 4.7 First Right of Refusal ..................................... ............................... 6 ARTICLE V — ACQUISITION, CONSTRUCTION AND EQUIPPING OF THEFACILITIES Section 5.1 ................................................... ............................... Agreement to Acquire Construct and Install the Facilities; 6 Plans and Specifications ........................... Section 5.2 ............................... Completion of Facilities 6 Section 5.3 ................................. ............................... Performance and Payment Bonds 8 ............................ Section 5.4 Maintenance Bond Section 5.5 ......................................... ............................... Builder's Risk Completed Value Insurance ............................... 9 9 Section 5.6 General Public Liability and Property Dam, ge Insurance ...... 9 Section 5.7 Workers' Compensation Insurance 9 Section 5.8 .............................. Title to the Facilities Section 5.9 ....................................... ............................... Use of the Facilities 10 Section 5.10 ........................................ ............................... Notices and Permits; Legal Conformance ... ............................... 10 10 Section 5.11 No Warranty of Condition or Suitability by the City ................ 10 Section 5.12 Subsequent Improvements .. ............................... 1370293.3; ARTICLE VI - PAYMENTS UNDER THIS LEASE ................... ............................... 11 Section 6.1 Ground /Facility Rentals ................................ ............................... I1 Section 6.2 Payments Under Lease in Addition to Payments For Operating Property ................................ ............................... 11 ARTICLE VII - SPECIAL COVENANTS .................................... ............................... 11 Section 7.1 Financial Statements of Company ................ ............................... 11 Section 7.2 Company to Maintain its Corporate Existence• Conditions Under Which Exceptions Permitted ............. ............................... 12 Section 7.3 Indemnification Covenant ............................. ............................... 12 Section 7.4 Quiet Enjoyment ............................................ ............................... 13 Section 7.5 Assignments and Subleases .......................................................... 13 .............................. Section 7.6 Financing and Mortgage of Ground and Facilities ..................... 13 ARTICLE VIII - USE AND MAINTENANCE OF FACILITIES .............................. 13 Section8.1 Permitted Use Section 8.2 ................................................. ............................... Limitations Upon Use and Location 13 Section 8.3 ............. ............................... Compliance with Other Governmental Regulations ................. 13 13 Section8.4 Utilities Section 8.5 ............................................................ ............................... Company Property 14 Section 8.6 ......................................... ............................... Disposition of Company Property at End of Lease Term 14 Section 8.7 ......... Repairs, Maintenance and Replacement ..... ............................... 14 14 Section 8.8 Right to Enter, Inspect and Make Re airs .. ............................... 14 Section 89 Condition of Property .................................... 15 Section 8.10 ............................... Purchases by Company .................................. ............................... 15 ARTICLE IX - LOSS OF AND LIABILITIES PERTAINING TO FACILITIES ... 15 Section9.1 Property Insurance Section 9.2 ........................................ ............................... Liability Insurance 15 Section 9.3 ......................................... ............................... Workers Compensation Coverage 16 Section9.4 ................. ............................... Payment of Insurance Proceeds 16 Section 9.5 .................... ............................... Continued Obligation to Pay Ground /Facility Rentals ............. 16 16 Section 9.6 Limitations as to Policies Section 9.7 ............................... ............................... Failure of Company to Provide Insurance 16 Section 9.8 .. ............................... Notification of Loss and Compliance with Policies .................... 16 17 Section 9.9 Damage or Destruction and Restoration 17 Section 9.10 ................... ................ Company's Election Not to Restore Damaged Pn onertc ........... 17 Section 9.11 Excess Insurance Proceeds ....................... ............ 17 ARTICLE X - LIENS AND CLAIMS ....... ............................... 17 Section 10.1 Prompt Payment of Taxes and Fees . 17 Section '10.2 Mechanic's and Materialmen's Liens .......... ............................... 17 Section 10.3 Prompt Payment of Otber Obligations ............ 18 Section: 10.4 Right of Contest ......................................................... Section 10.5 Nonpayment During Contest ............... 18 ;370193, , ii ARTICLE XI — EVENTS OF DEFAULT AND REMEDIES ...................................... Section 11.1 Events of Default Defined .............................. ............................... Section 11.2 Remedies on Default ...................................... ............................... Section 11.3 Company Remedies ......................... ............................... Section 11.4 Agreement to Pay Fees and Expenses to Counsel ....................... Section 11.5 No Additional Waiver Implied by One Waiver; Consentsto Waivers ...................................... ............................... ARTICLE XII — MISCELLANEOUS . ............................... ............. ............................... Section 12.1 No Personal Liability ................................... ............................... Section 12.2 Release of Liability ....................................... ............................... Section 12.3 Third Parties .................................. ............................... Section 12.4 ............... No Limitation on Previous Agreements ..... ............................... Section 12.5 Binding Effect ............................................... Section 12.6 ............................... Execution of Counterparts .......................... ............................... Section 12.7 Amendments, Changes and Modifications ............................... Section 12.8 Severability ................................................... ............................... Section12.9 Notices Section 12.10 ........................................................... ............................... Further Assurances ...................................... ............................... Section12.11 Applicable Law Section 12.12 ............................................. ............................... Independent Contractor .............................. ............................... Section 12.13 Nondiscrimination ........................................ ............................... Section 12.14 Energy Conservation ....................... ............. ............................... Section 12.15 Partnership or Joint Venturer Disclaimer .............. I................. Section 12.16 Appropriation of Funds ................................. Section 12.17 ............................... Estoppel Certificates ..................................... ............................... 1.970293:±: 18 18 19 20 20 21 21 21 21 21 21 22 22 22 22 22 23 23 23 23 23 24 24 24 LEASE This LEASE, dated as of Jude /-15-12004, between the City of Owasso, Oklahoma, a home rule city and an Oklahoma municipal corporation organized and existing under the Constitution and laws of the State of Oklahoma (the "City"), and the YMCA of Greater Tulsa, an Oklahoma nonprofit corporation (the "Company "). RECITALS WHEREAS, the City owns certain unimproved real estate more specifically described on Exhibit A hereto (the "Ground "), and desires to improve the Ground for recreational use for the benefit of the public; and WHEREAS, the Company is an Oklahoma nonprofit corporation dedicated to building strong kids, strong families and strong communities through programs that enrich the spirit, mind and body for persons of all ages and economic levels; and WHEREAS, in recognition of the need to provide recreational facilities and opportunities in the City, the City desires to provide a certain amount of economic assistance for, and the Company desires to design, construct and equip a new permanent recreational facility on the Ground, together with improvements thereto, including certain aquatic facilities (the "Aquatics Portion "), all as more particularly described on Exhibit B hereto (the "Facilities "); and WHEREAS, the Company desires to lease from the City the Ground upon which the Facilities are to be located, in accordance with the terns hereinafter contained; and WHEREAS, the City proposes to lease to the Company the Ground in accordance with this Lease which, among other matters, provides for the payment of Ground /Facility Rentals (as defined in Section 6.1 herein) and sets forth certain other rights and obligations of the Company with respect to the Facilities and the Ground. AGREEMENT NOW, THEREFORE, in consideration of the respective representations and agreements contained herein, the City and the Company hereby agree as follows: ARTICLE I INTERPRETIVE MATTERS Section 1.1 Interpretation and Construction. For all purposes of this Lease, except as otherwise expressly provided or unless the context otherwise requires: (a) All references in the Lease to "Articles," "Sections," "subsections," "paragraphs," "clauses" and other subdivisions are to the designated Articles, Sections, subsections, paragraphs, clauses and other subdivisions of this Lease. The terms "herein," 370 ?21;3; "hereof," `.hereto," "hereby," and "hereunder" and other words of similar import refer to this Lease as a whole and not to any particular Article, Section or other subdivision. (b) "file terms defined herein include the plural as well as the singular. (c) All the accounting terms not otherwise defined herein have the meaning assigned to them in accordance with generally accepted accounting principles as in effect from time to time. (d) "file teen "money" or "moneys" includes any cash, check, deposit, investment security or other form in which any of the foregoing are held hereunder. (e) Every "request," "order," "demand," "application," "appointment," "notice," "statement," "certificate," "consent" or similar action hereunder by the City or the Company shall be in writing and signed on behalf of the City by the City Manager for the City or such other person as the City Manager may designate in writing as provided herein or on behalf of the Company by the Chief Financial officer of the Company. (f) In the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and each of the words "to" and "until" means "to but excluding." (g) All section titles herein are for convenience of reference only and not for the purpose of interpreting the provisions of this Lease. (h) The Facilities and the Ground shall be collectively referred to herein as the "Property ". ARTICLE tI REPRESENTATIONS Section 2.1 Representations and Covenants by the City. The City hereby represents and covenants that, subject to the provisions of its City Charter: (a) The City is a home rule city and an Oklahoma municipal corporation, duly organized and existing under the Constitution and laws of the State of Oklahoma. (b) The City is duly authorized and empowered by the Constitution of the State of Oklahoma, and the City Charter of tine City of Owasso, to enter into the transactions contemplated by this Lease, and to carry out its obligations hereunder and thereunder. (c) None of the execution and delivery of this Lease, the consummation of the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Lease, materially conflicts with Or will result in a material breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which it is bound, or constitutes a default under any of the foregoing. ;370293;3; (d) The City has good and clear title to the Ground, free and clear of all liens and encumbrances, to enable the Company to acquire, construct and install the Facilities on the Ground and to enable the City to lease to the Company [lie Ground as provided in this Lease. (e) This Lease has been duly authorized and delivered by the City and constitutes the legal, valid and binding obligation of the City, enforceable against the City in accordance with its terms. (f) To the knowledge of the City, no person holding office of the City, either by election or appointment, has any interest, either directly or indirectly, in any contract being entered into or with respect to any work to be carried out in connection with the Lease and upon which said officer may be called upon to act or vote. (g) With respect to the Ground, the City is in full compliance with all applicable environmental laws, rules, requirements, order, directives, ordinances and regulations of the United States of America, the State of Oklahoma and the City and any other lawful authority having jurisdiction over or affecting the Ground, and the City is not aware of any potential claim or liability under any such environmental laws, rules, requirements, orders, directives, ordinances and regulations or of any events, conditions, circumstances, activities, practices, actions or plans which may give rise to any such claim or liability. Section 2.2 Representations and Covenants by the Company. The Company hereby represents and covenants that (a) The Company is a nonprofit corporation duly incorporated and in good standing in the State of Oklahoma, is not in violation of any provision of its Articles of Incorporation or its by -laws, has full corporate power to own its properties and conduct its business, has full legal right, power and authority to enter into this Lease, and to consummate all transactions contemplated hereby and thereby and by proper corporate action has duly authorized the execution and delivery of this Lease. (b) Neither the execution and delivery by the Company of the Lease nor the consummation by the Company of the transactions contemplated hereby or thereby conflicts with, will result in a breach of or default under or will result in the imposition of any lien on any property of the Company pursuant to the Articles of Incorporation or by -laws of the Company or the terns, conditions or provisions of any statute, order, rule, regulation, agreement or instrument to which the Company is a party or by which it is bound. (c) This Lease has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms. (d) The Facilities consist and will consist of the facilities described in Exhibit B hereto, and no changes shall be made in the Facilities except as permitted herein. ;370293;3} ARTICLE I.II LEASE Section 3.1 Lease of the Ground /Facilities. The City hereby leases to the Company, and the Company hereby leases from the City, the Ground and its portion of the Facilities hereafter to be constructed and owned by the City, for the use by the Company on the terms and conditions set forth in this Lease, including but not limited to the Company's agreement to pay Ground /Facility Rentals to the City in accordance with Section 6.1 hereof. Section 3.2 Facilities. (a) The Facilities shall be deemed personal property of the City (subject to the lease in favor of the Company as provided below) and the Company in their respective percentages provided in Section 8.5 below, and shall consist of (i) the Facilities as more fully described in Exhibit B hereto, and (ii) all improvements and fixtures constructed or installed in or with respect to the Facilities in accordance with the Plans and Specifications. (b) The City and the Company acknowledge that the descriptions in Exhibits A, B, and C hereto are approximate and that, following completion of a formal survey, an exact description for such Facilities and the Ground upon which they are to be located shall be provided and approved by both the City and the Company, as evidenced by initials thereon, and thereafter substituted as revised Exhibits without the requirement of a formal amendment to this Lease. Thereafter, the Exhibits hereto shall be revised from time to time to reflect additions to, deletions from and changes to the Facilities and the Ground upon which they are to be located made in accordance with this Lease. Section 3.3 Short Form Lease. On or before the date that Company commences construction of the Improvements, the parties will execute and record in the office of the County Clerk, Tulsa County, Oklahoma, a short form of this Lease or a memorandum of this Lease in form reasonably acceptable to the Company. Upon completion of the construction of the Improvements are issuance of a certificate of occupancy, the parties will further execute and record an amendment to this Lease as well as the Short Form Lease or memorandum of lease which specifies the allocation of ownership in the Facilities, as provided in Section 5.8(a) below. In no event shall this Lease be recorded in its entirety. Company shall pay the cost of recording the Short Form Lease. Section 3.4 Baseball Field. The parties acknowledge that the City is currently in the process of constructing certain baseball fields in Owasso and upon completion of such construction, the City shall cease Operating that certain baseball field and relating improvements upon the real property described on Exhibit "C" attached hereto and made a part hereof (the "Baseball Field ") which is located northeast of and adjacent to the Ground. Promptly after- the completion of such construction of ;37o293;31 4 slhort form of Lease City to ludo the Field as execute and amend this Lease (and any ) part and parcel of the Ground, and subject to the terms of this Lease except the Company shall be under no obligation to pay any additional rent. Further, the parties acknowledge and agrce that for no additional rental or other payments, during the construction of the Facilities, the Company shall be entitled to use that certain south baseball Field, as described on Exhibit "B" attached hereto, for parking purposes. ARTICLE IV LEASE TERM Section 4.1 Term of the Lease. This Lease shall commence on the date set forth on the first page hereof and shall continue until the earliest of. 1 (a) June JC2054; (b) at the City's option, upon the occurrence of an event of default under Section 11.1 hereof that is not waived in accordance with Section 11.4 hereof; (c) at the Company's option, but only as to all of the Property, at any time. Section 4.2 Intentionally Blank Section 4.3 Surrender of Possession. No notice to quit possession at the termination of the Lease shall be necessary, and the Company covenants peaceably to surrender possession of the Ground upon the termination of this Lease, provided, however, that the Company shall have the right to remove any and all property and Facilities of the Company in accordance with Sections 8.5 and 8.6 herein. Section 4.4 Reversion. Upon termination of this Lease, the Company's rights with respect to the Ground shall tenninate, and the Ground and any Facilities owned by the Company but which are not removed by it in accordance with Section 8.6 herein shall become improved real property owned in whole and entirely by the City. Section 4.5 Evidence of Termination. At the termination of this Lease pursuant to Section 4.1 herein, and following fidi payment of all amormts payable hereunder in accordance with the provision of this Lease, the patties hereto shall deliver any documents and take such actions as may be requested to effectuate the cancellation and evidence the termination of this Lease. Section 4.6 Effect of lding Ovcr. Should the Company hold over the use of or continue to occupy the Ground Hoany part thereof after the termination of this Lease, such holding over shall be deemed merely a tenancy from month to month upon a monthly rental in an amount equal to one - twelfth of the prior year's Ground /Facility Rentals (as defined in section 6.2 herein) paid by the Company. ;370293;31 Section 4.7 First Rialht of-Refusal (a) In the event the Company wishes to sell or otherwise transfer the Facilities to any third party (other than to an affiliate of the Company that expressly agrees to be bound by and subject to this Lease), the Company shall give to the City prompt written notice of its intent to sell or otherwise transfer the Facilities. Thereafter, the City may, but need not, notice the Company in writing, within forty -five (45) days of the Company's notice to the City, of the City's intent to purchase the Facilities for the Facilities' then appraised fair market value, less $1,500,000.00. In the event the City gives such notice, the City shall thereafter purchase all, but not less than alt, of the Facilities from the Company, within ninety (90) days of the City's notice. In the event the parties cannot agree upon the fair market value within thirty (30) days following the City's notice, the City shall appoint one commercial real estate broker duly licensed in the State of Oklahoma with at least fifteen (15) years experience in commercial real estate (the "Real Estate Broker ") and the Company shall appoint one Real Estate Broker and the two Real Estate Broker's shall appoint a third Real Estate Broker, and each of the three Real Estate Brokers shall determine the fair market vatic of the Facilities (and deliver to the City and the Company a written report explaining the process and assumptions used to determine Fair Market Value), and the "Fair Market Value" shall be the average of such findings. Each party shall be responsible for the cost of its respective Real Estate Broker, and the cost of the third Real Estate Broker shall be evenly divided between the City and the Company. If the then appraised fair market value of the Facilities at the time of the Company's notice to the City of its intent to sell or otherwise transfer the Facilities is less that $1,500,000.00, then in the event the City notices the Company of its intent to exercise its right of first refusal contained in this Section 4.7 the purchase price for the Facilities shall be equal to the then appraised fair market value of the Facilities less an amount equal to the then appraised fair market value of the Facilities multiplied by a fraction, the numerator of which is the then appraised fair market value of the Facilities and the denominator of which is $1,500,000.00. (b) In the event the City wishes to sell or otherwise transfer its portion of the Facilities and the Ground to any third party, the City shall give to the Company prompt written notice of its intent to sell or otherwise transfer the Facilities and Ground. Thereafter, the Company may, but need not, notice the City in writing, within forty -five (45) days of the City's notice to the Company, of the Company's intent to purchase the Facilities and Ground for the price of $1,500,000.00. In the event the Company gives such notice, the Company shall thereafter purchase all, but not less than all, of the Facilities and Ground from the City, within ninety (90) days of the Company's notice. During the term of this Lease, at not time shall the City sell or otherwise transfer its portion of the Facilities or the Ground, separate from the other. ARTICLE V ACQUISITION, CONSTRUCTION AND EQUIPPING OF THE FACIL.ITIES Section 5.1 Agreement to Acc wire Construct and hnstall the Facilities plans and Specifications. 370293;3; 6 (a) The Company agrees that it will construct and install the Facilities substantially in accordance with the Plans and Specifications and the provisions set forth in Exhibit D hereto which have been previously approved by the City. The Company shall submit two (2) complete copies of the Plans and Specifications to the City Manager (the ".Manager ") prior to the commencement of construction of the Facilities. The Plans and Specifications may be revised at any time prior to the completion date for the Facilities provided that (i) the revisions are approved by the Manager, which shall not be unreasonably withheld, delayed or conditioned and (ii) the Exhibits hereto are revised to reflect additions to, deletions from and changes in the Facilities. (b) The Plans and Specifications shall be prepared by a licensed architect with experience in the design of recreational facilities. After final written approval by the Manager, the Manager shall return to the Company one (1) approved copy of the Plans and Specifications for the Company's records and shall retain one (1) approved copy as an official record thereof. In the event of disapproval by the Manager of any portion of any plans or specifications, the Company shall promptly submit necessary modifications and revisions thereof for approval by the Manager. The Manager agrees to act within ten (10) days of receipt of such Plans and Specifications and upon requests for approval of changes or alternations in said Plans or Specifications. If the Manager fails to act within said ten (10) days, approval shall be deemed to have been granted. No substantial changes or alterations shall be made in said Plans or Specifications after initial approval by the Manager without the prior written approval of the Manager, which approval shall not be unreasonably withheld or delayed. The Company shall include in all contracts and agreements provisions acceptable to the City governing the construction of the improvements on the Ground. Such provisions are set forth in Exhibit E hereto. The City, through the Manager, shall retain at all times the right to stop construction, order the contractor off of the construction site, or to take such other actions on behalf of the City as deemed reasonably necessary to ensure the safety of workers or equipment. (c) All design or construction contracts for the Facilities shall be awarded by the Company and certain portions of the work may be awarded to the Company's own personnel. Where the work is to be done by Company personnel, the Company may charge for materials and direct labor, plus a reasonable percentage for overhead. (d) The City shall contribute the amount of $1,500,000.00 to the costs of the construction of the Facilities and specifically the acquisition and payment of certain materials and the City represents and warrants to the Company that such funds are available for such purpose and the use thereof by the City as provided in this Lease has been duly authorized and approved. In connection with the foregoing, Notwithstanding anything herein to the contrary, the City shall purchase, acquire and pay for those certain categories of materials as described on Exhibit "G" attached hereto (the "Building Materials "). Regardless of the entire construction cost for the Facilities, including costs if any of materials purchased, unless otherwise agreed upon between the parties, the City's contribution need not exceed total payments of $1,500,000.00. The City shall purchase all of such Building Materials directly from such vendors and suppliers as are mutually approved and agreed upon by the City and the Company. The costs of Building Materials so purchased by the City shall be paid by or on behalf of the City (through 'Culsa County 2025 Funds) and not by Company. The City shall pay for or cause to be ;370293;31 7 paid for by Tulsa County 2025 Funds on its behalf the Building Materials ordered by the City and such payment shall be made directly to the vendors and suppliers of such Building Materials - Payment shall be made for such Building Materials that are properly delivered to and accepted by the City. Such payment shall be made within thirty (30) days of the date the City is invoiced for the Building Materials. If and in the event the City's direct Building Material purchases do not equal $1,500,000.00, then, in such event, the City, upon written request therefor from the Company, shall pay over unto Company such remaining amounts in direct proportion that such remaining funds bears to the percentage of completion of the construction. Upon completion of the Facilities and subject to Section 3.1 hereof, the City shall own an undivided percentage interest in the Facilities determined by dividing $1,500,000.00 by the total dollar cost of the Facilities as provided in 8.5 hereof. (e) Nothing contained in this Section 5.1 shall relieve the Company from making the payments required to be made pursuant to Article VI hereof. Section 5.2 Completion of Facilities. The Company shall pursue the planning and construction of the Facilities to completion promptly with diligence. The Company shall use its best efforts to cause the completion date to occur on or before , 2005. The Company, with the approval of an engineer or architect (who may be an employee of the Company) familiar with the Facilities, shall certify to the City that to the best of the Company's knowledge based upon the representation of contractors, subcontractors, architects, engineers, vendors or other consultants and, except for any amounts estimated by the Company to be necessary for payment of any costs of construction not then due and payable, the Facilities have been completed in substantial conformity with the Plans and Specifications as approved by the City. Provided however, that the delivery of any such certificate by the Company shall not, and such certificate shall state that it does not, prejudice any rights against third parties which exist at the date of such certificate or which may subsequently come into being. For purposes of this Lease, the Completion Date shalt be such date that the Company and the City, by and through its City Council, accepts the Facilities. The Company shall provide the City with one (1) completed set of as -built drawings in the form of an AutoCADD file (Release 12), and one (1) completed set of as -built drawings in mylar reproducibles. The Company agrees that, upon the request of the City, the Company will inspect the Facilities and the real property provided by the Cityjointly with the City to verify the as -built drawings. Section 5.3 Performance and Payment Bonds. Prior to the commencement of any construction hereunder, the Company or its contractor shall furnish to the City, and without expense to the City, performance and payment bonds in a form approved by the City Attorney, naming the City as beneficiary, issued by a surety licensed to transact business in the State of Oklahoma and satisfactory to the City, with the Company's contractor or contractors as principals, in a SLIM not less than the amount bid by the successful contractor(s) for the contract or contracts for the construction of the Facilities as approved by the City herein. Said bonds shall assure prompt and satisfactory completion of the work to performed in accordance with the construction contract and shall guarantee the prompt payment to all persons supplying labor, materials, provisions, supplies, and equipment used directly or indirectly by said contractor, subcontractor(s), and suppliers in the prosecution of the work provided for said construction contract and shall protect the City f-om any liability, losses, or damages arising therefrom. The ;370293;3) 8 Company specifically reserves the right to contest any and all claims for payment which may be submitted or otherwise set forth nuclei- this Section 5.3. Tire form of the bond shall be as shown on Exhibit F of this Lease. Section 5.4 Maintenance Bond. The Company shall cause each contractor and , at the Company's discretion, any subcontractor, that is responsible for the construction of any portion of the Facilities to bond or otherwise guarantee all work performed by it against defective workmanship and materials for a period of one year after the Completion Date, provided that such one year period shall not begin with respect to any item that is not completed on the Completion Date until such item is completed. Section 5.5 Builder's Risk Completed Value Insurance. The Company shall procure and maintain, at its own cost and expense, or require its general contractor to obtain, until the later of the Completion Date or the date all insurance required pursuant to Article IX of this Lease is procured, all risk of loss builder's risk completed value insurance upon such property. This insurance shall insure and protect from all insurable risks of physical loss or damage to the project materials (including but not limited to the Building Materials purchased by the City) or equipment, including labor expended, in warehouses or storage area, during the installation or erection, and after the work is completed until final acceptance of the entire work by the City and the Company regardless of any acceptance or use of portions of the work prior to completion of the contract. Contractors and subcontractors will be covered, excluding their own machinery, tools and equipment. The deductible under the Builder's Risk insurance shall be sustained and home by the contractor. Section 5.6 General Public Liability and Property Damage Insurance. The Company shall require that each contractor or subcontractor procure and maintain standard form comprehensive general public liability and property damage insurance, at the contractor's or subcontractor's own cost and expense, during the duration of the contractor's or subcontractor's contract with the Company, in the amount of at least $10,000,000.00. Such policies shall include the City as an additional insured and shall include a provision prohibiting cancellation, termination or alteration without thirty- (30) day's prior written notice to the City and the Company. A certificate of insurance evidencing such insurance shall be provided to the Company and the City with respect to each contractor or subcontractor. Such insurance shall provide protection from all claims for bodily injury, including death, property damage and contractual liability. Section 5.7 Workers' Compensation Insurance. The Company shall require that each contractor or subcontractor that is responsible for construction of any portion of the Facilities procure and maintain, at the contractor's or subcontractor's own cost and expense, workers' compensation insurance during the teen of the contractor's or subcontractor's contract with the Company, covering all persons working under the contract. Such insurance, if issued by a private carrier, shall contain a provision prohibiting cancellation, termination or alteration without thirty (30) days prior written notice to the City aid the Company. A certificate issued by the State Insurance Fund evidencing such coverage shall be provided to the City and the Company, or if such insurance is provided by a private carrier, a certificate of insurance evidencing such insurance shall be provided to the City and the Company. ;37ozez;;; 9 i Section 5.8 Title to the Facilities. (a) The City and the Company hereby jointly owu all of its right, title and interest in the Facilities and all work completed or in progress. The percentage ownership of the Facilities of each party shall be determined by adding the total cost of constriction of the Facilities and then dividing the amount by the respective party's total payments of those total costs by the total costs so determined. Except as provided in Section 3.4 above, the City and the Company shall not be required to take any further action to evidence or confirm such title. The Company will be liable at all such times for all risk, loss and damages with respect to the Property. (b) Title to any subsequent improvement to the .Facilities, unless such are accomplished and /or paid for by the City, will be retained by the Company as the same are erected, installed and /or put in place and any subsequent improvements shall be subject to the teen of this Lease. (c) The City and the Company each agree to do all acts and execute and deliver all documents necessary to confirm title to the Facilities in the City and the Company. Section 5.9 Use of the Facilities. The Company shall have the sole management, occupancy and control of the Property. Section 5.10 Notices and Permits; Legal Conformance. (a) The Company shall give or cause to be given all notices and comply or cause compliance with all laws, ordinances, inunicipal rules and regulations and requirements of public authorities applying to or affecting the conduct of the work on the construction of the Facilities. All permits, approval and licenses necessary for the prosecution of the work shall be procured by the Company. (b) All of the Facilities and all alterations and additions thereto shall in all respects be constructed in accordance with the ordinances and any applicable building code and any other applicable rules, laws or regulations. (c) The City covenants, warrants and agrees that the applicable zoning ordinance with respect to the Ground permits the construction, operation and use of the Facilities by the Company. Section 5.11 No Warranty of Condition or Suitability by the City. THE COMPANY SPECIFICALLY ACI NOWLEDGES THAT THE CITY MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF HABITABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR USE, AS TO THE GROUND OR FACILITIES OR THEIR CONDITION OR THAT THEY WILL BE SUITABLE FOR THE COMPANY'S PURPOSES OR NEEDS. ;370393;31 Section 5.12 Subsequent Improvements. After the Company's occupancy of the Property, the Company shall be responsible for the ful I cost of any alterations and improvements. The Company shall be responsible for obtaining permits and inspections, if necessary, from other agencies of the City, Tulsa County, or other government entities with jurisdiction over the Property. In the event the Facilities require expansion, the Company shall have the right to expand such Facilities in accordance with the terms hereof and such expansion shall be deemed part of the Facilities and shall be subject to the terms and conditions thereof. Any such expansion by the Company shall be owned by the Company and shall increase the Company's percentage of ownership of the entire Facilities. Such percentage of ownership shall be determined by adding the total cost of construction of the Facilities, including costs of construction of the subsequent improvements, and then dividing the amount of the Company's total payments of those total costs by those total costs so determined. ARTICLE VI PAYMENTS UNDER THIS LEASE Section 6.1 Ground /Facility Rentals. The Company agrees to pay Ground /Facility Rentals to the City on the occupancy date of the Facilities and thereafter on the first day of each succeeding year, in advance, during the term of this Lease, in an amount equal to $1.00 per month. Section 6.2 Payments Under Lease in Addition to Payments For Operating Propert y. All expenses incurred by the Company in connection with its operation and use of the Property shall be paid by the Company directly without reduction of any other amounts payable by the Company under this Lease and without right or reimbursement. Nothing contained in this Article VI shall be construed to release the City from the performance of any of the agreements on its part herein contained; and in the event the City shall fail to perform any such agreement on its part, the Company may institute such action against the City as the Company may deem necessary to compel performance. The Company may at its own cost and expense and in its own name prosecute or defend any action or proceeding or take any other action involving third persons which the Company deems reasonably necessary in order to secure or protect its rights hereunder, and in such event the City hereby agrees to cooperate fully with the Company and to take all action necessary to effect the substitution of the Company for the City in any such action or proceeding if the Company shall so request; provided that the City shall not be required to take any act which, in the opinion of the City Attorney, would be prejudicial to the rights or interests of the City in connection with such action or proceeding or the facts giving rise thereto. ARTICLE VII SPECIAL COVENANTS Section 7.1 Financial Statements of Com Etnv. The Company agrees to furnish to the City Treasurer copies, within 150 days of the end of the Company's fiscal year, an audited statement of consolidated financial position and results of operations, with respect to operations of the Company as a whole. 370293:3: 11 Section 7.2 Company to Maintain its Corporate Existence- Conditions Under Which r Exceptions Permitted. The Company agrees that during the term of this Lease it will maintain in good standing its corporate existence, will remain duly qualified to do business in the State of Oklahoma, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another corporation; provided, however, that the Company may, without violating the agreements contained in this Section 7.2, consolidate with or merge into another corporation either incorporated and existing under the laws of the State of Oklahoma or qualified to do business in the State of Oklahoma as a foreign corporation, or sell or otherwise transfer to another such corporation all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) the resulting, surviving or transferee corporation, as the case may be, is not "insolvent" within the meaning of the Oklahoma Uniform Commercial Code, (ii) the City Treasurer is provided with a certificate from the Chief Financial Officer of the resulting, surviving or transferee corporation stating that such corporation has not ceased to pay its debts in the ordinary course of business and can pay its debts as they become due and is not insolvent within the meaning of the federal bankruptcy law, (iii)) the resulting, surviving or transferee corporation irrevocably and unconditionally assumes in writing and agrees to perform by means of an instrument which is delivered to the City Treasurer all of the obligations of the Company herein, and (iv) the City Treasurer and the City Attorney receive an opinion of Counsel, in form and substance satisfactory to the City Attorney, to the effect that such consolidation, merger, sale or transfer complies with this Lease. Section 7.3 Indemnification Covenant. The Company will pay, and will protect, indemnify and save the City and its respective agents, officers and employees, harmless from and against any and all liabilities, losses, damages, costs and expenses (including attorney's fees, alternative dispute resolution expenses and fees and expenses of the Company and the City), causes of action, suits, claims, demands and judgments of whatsoever kind and nature (including those arising or resulting from any injury to or death of any person or damage to property) arising out of any of the following except when caused by the negligence of the willful misconduct or gross negligence of the City or its agents, officers or employees acting in their official capacity (and not as patrons of the Facilities): (a) the design, construction, installation, equipping and financing of the Facilities; (b) the use or occupancy by the Company of the Property; (c) the violation by the Company of any agreement, representation, warranty, covenant or condition of this Lease; (d) the violation by the Company of any other contract, agreement or restriction relating to the Property; or (e) the violation by the Company of any law, ordinance, regulation or court order affecting the Leased Property or the ownership, occupancy or use thereof. The City shall promptly notify [lie Company in writing of any claim or action brought against the City in respect of which indemnity may be sought against the Company hereunder, 1370293;7; 12 setting forth the particulars of such claim or action. The City may employ separate Counsel in any such action and participate in the defense thereof, but the fees and expenses of such Counsel shall not be payable by the Company unless such employment has been specifically authorized by the Company. The indemnity provided for in this Section 7.3 shall be independent of any indemnities to which the City may be entitled under any agreement between the City and the Company. Section 7.4 Quiet Enjoyment. The City covenants that the Company, on perfonning its covenants and other obligations hereunder, shall have quiet and peaceable possession of the Property until the termination of this Lease. Section 7.5 Assignments and Subleases. Except as otherwise provided in this Section 7.5 and Section 7.2 hereof, neither the Company nor the City shall assign or otherwise transfer its respective interest in this Lease, in whole or in part, or transfer any interest in or to the Facilities without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Company shall have the right to grant licenses for portions of the Facilities to concessionaires of Company's choosing, or to otherwise subcontract operations functions to subcontractors of the Company's choosing. All revenues paid by concessionaires for use of the Facilities shall be paid to and belong to the Company. The Company shall bear sole responsibility for making all payments to subcontractors. Section 7.6 Financing and Mortgage of Ground and Facilities The City acknowledges and agrees that as an accommodation to the Company, the City shall join in the execution and deliver to the Company's construction or permanent tender or financial institution (whether direct loans, bond financing or otherwise) of a real estate mortgage (and all other applicable documents, as reasonably necessary) thereby submitting and granting the fee interest of the City in and to the Ground and the ownership interest of the City in and to a portion of the Facilities to a first lien, security interest and mortgage as security for the repayment of the constriction loan and any permanent financing thereof incurred by the Company for the construction of the Facilities and any renewal or refinancing thereof. ARTICLE VIII USE AND MAINTENANCE OF FACILITIES Section 8.1 Permitted Use. The Company shall have the right to the use, occupancy and control of the Property as a recreational facility, subject to the terms hereof. The Company, with the approval of the Manager, which approval shall not be unreasonably withheld, shall be permitted to use the Property for any additional use which constitutes a proper recreational purpose and which is related to the operation of the Company's nonprofit activities. The Company will at all times during the tern hereof provide for a daily user fee so as to enable non- members to utilize the recreational and aquatic facilities. Such daily user fee shall be in all amount that is competitive with other YMCA facilities in the Tulsa metropolitan area. Section 8.2 Limitations Upon Use and Location. The Company shall not commit waste with respect to the Property and shall not commit or permit any nuisance from or upon the Property. ;_7ozQ 3:3 13 Section 83 Compliance with Other Governmental Revelations. The Company shall, at all times, faithfully obey and comply with all existing and future laws, rules and regulations adopted by federal, state, local or other governmental bodies and applicable to or affecting the Company and its operations and the Facilities, provided, however, that the Company may, without being considered to be in breach of this Lease, contest any such laws, rules and regulations so long as such contest is diligently commenced and prosecuted. Section 8.4 Utilities. The Company understands and agrees that all utility services required by it during the term of this Lease for the Property shall be obtained and secured by the Company at its own expense. Section 8.5 Company Property. The Company may from time to time, in its sole discretion and at its own expense, install machinery, equipment and other personal property on or upon the Ground. All such personal property so installed by the Company shall remain the sole property of the Company in which the City shall have no interest except as otherwise provided herein. Such property may be purchased by the Company on conditional sale, installment purchase or lease sale contract, or subject to vendor's lien or security agreement, as security for the unpaid portion of the purchase price thereof. The Company shall have the right at any time during the term of this Lease, when not in default hereunder, to remove any or all of the property installed by the Company pursuant to this Section 8.5, at its own expense, subject to the Company's obligation to repair, at its own expense, all damage, if any, resulting from such removal. Section 8.6 Disposition of Company Property at End of Lease Term. All property and Facilities installed by the Company pursuant to Section 8.5 hereof and all trade fixtures and personal property of the Company shall be removed by the Company at its own expense by the expiration or earlier termination of the term of this Lease; and the Property shall be surrendered as provided herein, unless the Company shall have notified the City at least 120 days prior to the date of the expiration or earlier termination of the tern of this Lease of the Company's desire not to remove the property and Facilities installed by the Company in or upon the Ground pursuant to Section 8.5 hereof, or any portion thereof, and of its request therefore, which request shall describe such property with reasonable particularity, and unless the City, acting by and through its Manager, shall have notified the Company not less than 60 days in advance of such expiration or earlier tennination of its willingness to accept title to such property. The Company shall have a period not exceeding 60 days after termination of the tern of this Lease for the removal of the property installed by the Company, pursuant to Section 8.5 hereof. Section 8.7 R pairs, Maintenance and Replacement. The cost of maintenance, care and any necessary replacement of the Facilities shall be borne by the Company. The Company covenants and agrees at its expense, and without cost or expense to the City, during the term hereof, after the completion of the Facilities, that the Company shall keep tile Facilities neat, clean and in good order and condition and will make all necessary and appropriate repairs and replacements thereof, provided that all replacement property shall be in as good operating condition as, and shall have a value and utility at least equal to, the property replaced. 370293af 14 Section 8.8 Right to Enter Inspect and Make Repairs. The City and its authorized officers, employees, agents, contractors, subcontractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with reasonable notice to the Company and with as little interruption of the Company's operations as is reasonably practicable) to enter upon the Property for the following purposes: (a) to inspect such premises at reasonable intervals during regular business hours (or at any time in case of emergency) to determine whether the Company has complied and is complying with the terms and conditions of this Lease with respect to such Property; (b) to perform maintenance and make repairs and replacements in any case where the Company is obligated but has failed to do so, after the City has given the Company reasonable written notice so to do, in which event the Company shall reimburse the City for the reasonable cost thereof promptly upon demand; and (c) in the proper exercise of the City's police power; provided, however, that nothing contained in this Section 8.8 shall limit the power of the City and its authorized officers, employees and agents to enter upon the Property as provided by law in a capacity other than as lessor under this Lease. No such entry by or on behalf of the City upon the Property shall cause or constitute a termination of the Lease or be deemed to constitute an interference with the possession thereof by the Company. Section 8.9 Condition of Property. On the expiration or termination of this Lease, the Company shall surrender the Facilities (except to the extent of the Company's personal property and trade fixtures and equipment) to the City in good condition, exposure to the elements, casualty, acts of God, condemnation, and reasonable wear and tear excepted. The determination of "good condition" shall take into account the age of the Improvements and the components thereof at the time of surrender. Under no circumstances shall the Company be required to restore the Improvements to their original condition, nor shall the Company have any obligation to leave or put the Improvements in a condition for immediate occupancy by another tenant. Section 8.10 Purchases by Company. Property, services and materials (except as otherwise provided in this Lease) may be purchased or otherwise obtained by the Company from any person or corporation of its choice and no unjust or unreasonable discriminatory limitations, restrictions, charges or conditions shall be imposed by the City, directly or indirectly, against the Company or its suppliers for the privilege of purchasing, selling, using storing, withdrawing, handling, consuming, loading, unloading or delivering any personal property of the Company, by the Company or its suppliers, or for the privilege of transporting such personal property to, from or on the Property. ARTICLE IX LOSS OF ARID LIABILITIES PERTAINING T® FACILITIES Section 9.1 Property Insurance. Except to the extent the Facilities are insured during the construction, installation, and other acquisition of the Facilities by any contractors pursuant 1370293;3; 15 to Article V hereof, at all times during the term of this Lease, the Company agrees that, at its own cost and expense, it shall keep the Facilities, insured against loss or damage (in excess of $100,000.00 in any one occurrence) for the full replacement cost value by fire, lightning, tornado, windstorm, hail, flood, earthquake, explosion, riot, riot attending a strike, civil commotion, vandalism and malicious mischief, sprinkler leakage, aircraft, vehicles and smoke, or any other casualty, in amounts not less than 100% of the replacement value of such improvements. Section 9.2 Liability Insurance. At all times during the term of this Lease, the Company is required and agrees, at its own cost and expense, to provide and keep in force for the bereft of the Company and the City, a policy, or policies, of insurance written on a single limit each occurrence basis with limits of not less than Ten Million Dollars ($10,000,000) for bodily injury and property damage arising from any operation of the Company at the Property, including any operation in or related to the Aquatics Portion, and contractual liability coverage. Section 9.3 Workers Compensation Coverage. The Company shall maintain in force, during the term of this Lease, Workers Compensation coverage in accordance with the provisions of Oklahoma law. Section 9.4 Payment of Insurance Proceeds. All insurance policies obtained pursuant to Section 9.1 hereof shall provide for payment of the proceeds to the Company and the City to the extent of their insurable interest. Section 9.5 Continued Obligation to Pay Ground /Facility Rentals. No loss or damage, regardless of whether it is wholly or partially insured, shall in any way relieve the Company of its obligation to make payments as provided in Article VI hereof. Section 9.6 Limitations as to Policies. The insurance policy, or policies, and certificates of insurance evidencing the existence thereof required by this Article IX shall insure the Company's agreement to indemnify the City as set forth in the indemnification provisions hereof. The City shall be named as an additional insured of said insurance. Each such policy and certificate shall contain a special endorsement stating "This policy will not be materially changed or altered or canceled without first giving 30 days written notice by certified mail, return receipt requested, to the City Manager ,City of Owasso, I I 1 N. Main St., Owasso, OK." Section 9.7 Failure of Company to Provide Insurance. If at any time the Company shall fail or neglect to insure the Property, as aforesaid, or to deliver such policies or certificates of insurance as aforesaid, the City may effect such insurance by obtaining policies issued by companies satisfactory to the City. The amount of the premium or premiums paid for such insurance by the City shall be payable by the Company to the City with the installment of rent thereafter next due under the terns of this Lease. The City shall not be limited in the proof of any damage which the City may claim against tlue Company arising out of or by reason of the Company's failure to provide and keep in force insurance as aforesaid, to the amount Of tile insurance premium or premiums not paid or incurred by the Company and which would have been payable upon such insurance, but the City shall also be entitle to recover as damages for such breach the uninsured amount of any loss, damages, cost and expenses of suit suffered or incurred by reason of damage to, or destruction of, or liability appertaining to, the Facilities occurring during any period when Company shall have failed o' neglected to provide insurance X370 ?93;3; 16 as aforesaid. Section 9.8 Notification of Loss and Compliance with Policies. The Company shall not violate the terns or prohibitions of any insurance policy herein required to be fumished by the Company, and the Company shall promptly notify the City of any claim or loss under such insurance policies. Section 9.9 Damage or Destruction and Restoration. In case of damage or loss of all or any portion of the Facilities, the Company will give prompt notice thereof to the City; and, except as otherwise hereinafter provided in Section 9.10, the Company shall promptly commence and complete with clue diligence (subject to delays beyond its control), the restoration of the Facilities or the damaged portion thereof as nearly as reasonably practicable to the value and condition thereof immediately prior to such damage or destruction (with alterations, at the Company's election, pursuant to Section 5.12 hereof) or, with the consent of the City, the replacement of the Facilities, in whole or in part, with other facilities. In the event of such damage or destruction, the Company shall be entitle to use or receive reimbursement from the proceeds of all property insurance policy or policies for the Facilities, including the Aquatics Portion, and shall be obligated to provide any additional moneys necessary for such restoration, except as otherwise provided in Section 9.10 hereof. Section 9.10 Company's Election Not to Restore Damaged Property. In the case of the damage or destruction of all or any part of the Facilities to such extent that , in the reasonable opinion of the Company, the repair or replacement thereof would not be economical, the Company, within 120 days thereafter, may elect not to restore or replace such part of the Facilities as provided in Section 9.9 hereof. Within 180 days after the Company elects not to restore or replace any part of the Facilities as provided in Section 9.9 and this Section 9.10 hereof, the Company may raze such part of the Facilities at the Company's expense as nearly as reasonably practicable to the value and condition thereof immediately prior to the commencement of the acquisition and construction of such part of the Facilities. Thereafter this Lease shall expire with respect to the Ground underneath such razed Facilities. Section 9.11 Excess Insurance Proceeds. In the event there remain any insurance proceeds in excess of the cost of the restoration of any part of the Facilities pursuant to Section 9.9 hereof, and /or to raze such part of the Facilities and restore the underlying land pursuant to Section 9.10 hereof, the Company shall retain and be entitled to retain such excess insurance proceeds, including any amounts attributable to the Aquatics Portion. ARTICLE X LIENS AND CLAIMS Section 10.1 Prpl11pt Payment of Taxes and Fees. The Company agrees to pay all lawful general taxes, special assessments, excises, license fees, permit fees, and utility service charges of whatever nature, applicable to its operation at the Property, prior to the creation of a lien on the Property as a result of nonpayment, and to take out and keep current all licenses, municipal, state or federal, required for the conduct of its business at the Property. Section 10.2 Mechanic's and Materiahnen's Liens. Suibject to Section 10.4 hereof, the (?702`11,31 17 Company agrees to remove promptly any mechanic's or materialman's or any other lien to be imposed upon the Property, by reason of any work or labor performed or materials furnished by any mechanic or materialman at the request of the Company (other than for work done or materials furnished under a contract to which the City is a party) with respect to the Property. Section 10.3 Prompt Payment of Other Obligations. The Company agrees to remove any lien, mortgage, judgment or execution to be filed against the Property or any part thereof resulting from an act or omission of the Company which will in any way impair the rights of the City under this Lease. Section 10.4 Right of Contest. The Company shall have the right to contest any such mechanic's, materialman's or any other lien or encumbrance; and the Company shall not, pending the termination of such contest, be obligated to pay, remove, or otherwise discharge such lien or claim, provided, however, that the contest, in the reasonablejudgment of the Company, will not affect the possession, use or control of the Property. The Company agrees to indemnify and save harmless the City from any loss as a result of the Company's action as aforesaid. Section 10.5 Nonpayment During Contest. If the Company shall in good faith proceed to contest any general tax, special assessment, excise, license :fee, permit fee, or other public charge, relating to the Property, or the validity thereof by proper legal proceedings which shall operate to prevent the collection thereof or to prevent the appointment of a receiver because of nonpayment of any such taxes, assessments, excises, fees, or other public charges, the Company shall not be required to pay, discharge, or remove any such tax, assessment excise, fee, or other public charge so long as such proceeding is pending and not disposed of; provided that the nonpayment, in the reasonable judgment of the Company, will not affect the possession, use or control of the Property. During the pendency of such proceeding, the City shall not, pending the termination of such legal proceedings, pay, remove, or discharge such tax, assessment, excise, fee, or other public charge. The Company agrees to indemnify and save harmless the City, from and loss as a result of the Company's action as aforesaid. ARTICLE XI EVENTS OF DEFAULT AND REMEDIES Section 11.1 Events of Default Defined. The occurrence of any one or more of the events described in the following subsections (a) through (b) of this Section 11.1 shall constitute a "default" for all purposes of this Lease; and each such default shall, after the giving of notice, if any, passage of time, if any, or occurrence of an event, if any, specified in the subsection describing such default, constitute an "event of default" for all proposes of this Lease: (a) Any material breach by the Company of any of i is representations or warranties made in this Lease, any failure by the Company to make any payment required to be made by it hereunder or any failure by the Company to observe and perform any of its covenants, conditions or agreements made on its part to be observed or performed hereunder, for a period of 30 days after written notice specifying such breach, failure to pay or failure to observe and perform and requesting that it be remedied, given to the Company by the City, unless (i) the City shall agree in writing to an extension of Such time prior to its expiration or (ii) if the breach, failure to pay or failure to observe and perform be such that it can be corrected but cannot be ;37029;:51 18 corrected within the applicable period, corrective action is instituted by the Company within the applicable period and is being diligently pursued. (b) The dissolution or liquidation of the Company; or the filing by the Company of a voluntary petition in bankruptcy; or the entry of an order for relief under Title 1 I of the United States Code, as the same may from time to time be hereafter amended, against the Company; or the filing of a petition or answer proposing the entry of an order for relief against the Company under Title I 1 of the United States Code, as the same may from time to time be hereafter amended, or proposing the reorganization, arrangement or debt readjustment of the Company under any present of future federal bankruptcy act or any similar federal or state law in any court and the failure of said petition or answer to be discharged or denied within 90 days after the filing thereof, or the appointment of a custodian (including without limitation a receiver, trustee or liquidator of the Company) of all or a substantial part of the property of the Company, and the failure of such a custodian to be discharged within 90 days after such appointment; or the taking by such a custodian of possession of the Company or a substantial part of its property, and the failure of such taking to be discharged within 90 days after such taking; or the Company's consent to or acquiescence in such appointment or taking; or assignment by the Company for the benefit of its creditors; or the entry by the Company into an Agreement of composition with its creditors. The tern "dissolution or liquidation of the Company," as used in this subsection, shall not be construed to include the cessation of the corporate existence of the Company resulting from a merger or consolidation of the Company into or with another corporation or a dissolution or liquidation of the Company following a transfer of all or substantially all of its assets, under the conditions permitting such actions contained in Section 7.2 hereof. The foregoing provisions of Section I I.1(a) are subject to the following limitations: if by reason of events wholly beyond the Company's control the Company is unable in whole or in part to cant' out its agreements on its part herein contained, other than the obligations on the part of the Company or to make payments required hereunder, the Company shall not be deemed in default during the continuance of such inability. The Company agrees, however, to remedy with all reasonable dispatch the cause or causes preventing the Company from carrying out its agreements; provided that the settlement of strikes, lockouts and other disturbances shall be entirely within the discretion of the Company and the Company shalt not be required to make settlement of strikes, lockouts and other disturbances by acceding to the demands of the opposing party or parties when such course is in the sole judgment of the Company unfavorable to the Company. Section 11.2 Remedies our Default. Whenever any event of default referred to in Section 11.1 hereof shall have happened and be continuing, the City, shall have the right, at the City's election, then or at any time thereafter, to exercise any one or more of the following remedies: (a) The City may terminate this Lease, effective at such time as may be specified by written notice to the Company, and demand (and, if such demand is refused. recover) possession of the Ground from the Company. In the event of such demand, the City shall seek an appraisal of the Property (less any properly or Facilities which the Company intends to remove pursuant to Section 8.6 hereof and about which the Company notices the City) from a qualified and independent third party appraiser and shall pay the Company the percentage 13702933 3l 19 of the appraised value equal to the Company's percentage of ownership of the Property, as adjusted for improvements to the Property pursuant to Section 5.12, within thirty (30) days after the City's possession of the Property. In addition, the City shall, by notice in writing to the Company upon the occurrence and continuation of an event of default described in subsection (a) or (b) of Section 1 1.1 hereof, declare all Ground /Facility Rentals payable under this Lease to be due and payable immediately; (b) Without termination of the Lease, the City may reenter and take possession of the Ground or Facilities or any part thereof, without demand or notice, and repossess the same and expel the Company and any party claiming by, under or through t13e Company, and remove the effects of both using such force for such proposes as may be necessary, without being liable for prosecution on account thereof or being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or right to bring any proceeding for breach of covenants or conditions. In the event of such reentry and possession, the City shall seek an appraisal of the Property (less any property of Facilities which the Company intends to remove pursuant to Section 8.6 hereof and about which the Company notices the City) from a qualified and independent third party appraiser and shall pay the Company the percentage of the appraised value equal to the Company's percentage of ownership of the Property, as adjusted for improvements to the Property pursuant to Section 5.'12, within thirty (30) days after the City's possession of the Property. No such reentry or taking possession of the by the City shall be construed as an election by the City to terminate this Lease unless a written notice of such intention is given to the Company. No notice from the City hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by the City to terminate this Lease unless such notice specifically so states. The City reserves the right, following any reentry or reletting, to exercise its right to terminate this Lease by giving the Company such written notice, in which event this Lease will terminate as specified in said notice; and (c) Without reentry or possession of the Property, the City may take whatever action at law or in equity may appear necessary or desirable to collect the payments and other amounts then due and thereafter to become due hereunder or to enforce performance and observance of any obligation, agreement or covenant of the Company under this Lease. Section 11.3 Company Remedies. In the event of any default of this Lease by the City which shall not have been cured within sixty (60) days after the City shall have received notice of such default (provided, however, if such default cannot be cured within such sixty (60) day period, then such sixty (60) day period shall be extended for a period reasonably sufficient to allow the City to cure such default, if within such initial sixty (60) day period the City shall have commenced to cure such default and shall thereafter continue its efforts with due diligence), then, at the Company's option and without limiting the Company in the exercise of any other rights or remedies which the Company may have at law or in equity by reason of such default, the Company, with or without notice or demand may seek monetary damages or pursue any other remedy available at law or in equity resulting from such default by the City and if the Company obtains a final and non - appealable judgment against the City awarding the Company monetary damages and the City fails to pay such judgment in fall within ten (10) days after such judgment is issued, the Company may deduct the amount thereof from the next accruing installments of rent or any other amount due hereunder. 3702937; 20 Section 11.4 Agreement to Pay Fees and Expenses to Counsel. ht the event the either party should default under any of the provisions of this Lease and the other party should employ Counsel or incur other expenses for the collection of the amounts due hereunder or the enforcement or performance or observance of any obligation or agreement herein contained, each party agrees that it will on demand therefore pay to the prevailing party, or, if so directed by the prevailing party, to the Counsel for the prevailing party, the reasonable fees of such Counsel and such other expenses so incurred by or on behalf of the prevailing party. Section 11.5 No Additional Waiver Implied by One Waiver° Consents to Waivers. In the event any agreement contained in this Lease should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. No waiver shall be effective unless it is in writing and signed by the party making the waiver. ARTICLE XII MISCELLANEOUS Section 12.1 No Personal Liabilitv. No Councilmember, manager, officer, employee or other agent of either party shall be personally liable Linder or in com3ection with this Lease. Section 12.2 Release of Liability. The City shall not be liable for, and is hereby released from, all liability to the Company, to the Company's insurance carrier, or to anyone claiming under or through the Company for any loss or damage whatsoever to the Property or effects of the Company resulting from the discharge of water or other substances from pipes, sprinklers, or conduits, containers or appurtenances thereof or fixtures thereto, or for any damage resulting from the discharge or failure of electric current, regardless of cause or origin, unless such damage is caused by the sole negligence of the City. The provisions of this paragraph shall not be construed as a limitation of the City's rights under this Lease, but are additional to the rights and exclusions from liability provided in this Lease. In any event, any City obligation hereunder shall be subject to the limitations and exclusions that typically apply to any liability insurance policy carried by the City, shall be expressly subject to the restrictions, provisions and damage limitations contained in the Oklahoma Governmental Tort Claims Act, Section 151, et seq.,Title 51, Oklahoma Statutes now existing or as such statute may be subsequently amended or any statute superseding the Act. Nothing contained herein shall be construed to constitute a waiver by the City of the protection, defenses, and immunities, afforded it under Section 151 et seq.,Title 51, Oklahoma Statutes now existing or as subsequently amended or any statute superseding the Act or any other law providing such protection, defense, or immunity. Nothing in this Lease shall be construed or interpreted to require or provide for indemnification of the Company by the City for any injury to any person or any property damage whatsoever. Section 12.3 Third Parties. This Lease does not, and shall not be deemed or construed to, confer upon or grant to any third party or parties (excepting any successor to the Company or any parties to whom the Company may sublet or subcontract this Lease in accordance with Section 7.7 and Section 7.2 hereof), any right to claim damages or to bring any suit, action or other proceeding against either the City of the Company due to any breach hereof or due to any of the terms, covenants and conditions herein contained. 370293:3; 21 Section 12.4 No Limitation on Previous Agreements. It is expressly understood that except as provided herein the terms and provisions of this Lease shall in no way affect or impair the terms, obligations or conflict with other agreement conditions of any existing or prior agreement between the Company and the City. Section 12.5 Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the City, the Company and their respective successors and assigns. Section 12.6 Execution of Counterparts. This Lease may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 12.7 Amendments, Changes and Modifications. This Lease may be amended in writing at any time upon the mutual agreement of the City and the Company. Section 12.8 Severability. In the event any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 12.9 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given to the parties required hereunder to receive such notice, certificate or communication when mailed by registered mail, postage prepaid, addressed as follows: If to the City: City of Owasso Attn: Rodney Ray, City Manager 111 N. Main Owasso, OK 74055 Copy to: Ronald D. Cates, City Attorney I 1 I N. Main Owasso, OK 74055 If to the Company: YMCA of Greater Tulsa 2405 East Skelly Drive Tulsa, Oldahoma 741 70 -1 620 Attention: President and CEO Copy to: The City and the Company may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be 370293.3; 22 sent. Section 12. 10 Further Assurances. The Company and the City both agree that they shall, from time to time, execute and deliver such further instruments and take such further actions as may be reasonably required to carry out the purposes of this Lease. Section 12.11 Applicable Law. This Lease shall be governed exclusively by and construed in accordance with the laws of the State of Oklahoma. Section 12.12 Independent Contractor. In the performance of the Company's obligations under this .Lease, it is understood, acknowledged and agreed between the parties that the Company is at all times acting and performing as an Independent Contractor, and the City shall neither have nor exercise any control or direction over the manner and means by which the Company performs the Company's obligations under this Lease, except as otherwise stated within this Lease. The Company understands and agrees that the Company and the Company's employees, agents, servants, or other personnel are not City employees. The Company shall be solely responsible for payment of salaries, wages, payroll taxes, unemployment benefits or any other form of compensation or benefit to the Company or any of the Company's employees, agents, servants or other personnel performing services or work under this Lease, whether it be of a direct or indirect nature. Further in that regard, it is expressly understood and agreed that for such proposes neither the Company nor the Company's employees, agents, servants or other personnel shall be entitled to any City payroll, insurance, unemployment, worker's compensation, retirement or any other benefits whatsoever. Section 12.13 Nondiscrimination. The Company, as part of the consideration hereof and as a covenant numing with this Lease, hereby covenants and agrees that: (a) No person on the grounds or race, creed, color, national origin, sex, age, or physical handicap shall be excluded .from participation in, denied the benefits of, or be otherwise subjected to discrimination in the sue of said Facilities. (b) No person on the grounds of race, creed, color, national origin, sex, age, or physical handicap shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the construction of any improvements on, over, or under the Facilities and the furnishing of services thereon. (c) The Company agrees that it shall insert the provisions of this subsection 12.13(c), inclusive, in any lease or other agreement by which it grants a right or privilege to any person, firm, or corporation to render accommodations and /or services to the public on the Facilities. (d) The Company shall furnish its accommodations and /or services on a fair, equal, and not unjustly discriminatory basis to all users thereof, and it shall charge fair, reasonable, and not unjustly discriminatory prices for each unit or service. The Company may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar types of price reductions. Noncompliance with this Section 12.14(d) shall constitute a material breach hereof. In the event of such noncompliance, the City shall have the right to judicially enforce such provision. 3102933; 23 Section 12.14 Enerw Conservation. ,Intentionally Left Blank Section 12.15 Partnership orJoi[it Venturer Disclaimer. It is inutually understood that nothing in this Lease is intended or shall be construed as in any way creating or establishing the relationship of partners orjoint venturers between the parties hereto, or as constituting the Company as an agent or representative of the City for any purpose or in any matter whatsoever. Section 12.16 Appropriation of Funds. In accordance with the laws of the State of Oklahoma, performance of the City's obligations under this Agreement is expressly subject to appropriation of funds by the City Council. Further, in the event that funds are not appropriated in whole or in part sufficient for performance of the City's obligations under this Agreement, or appropriated funds may not be expended due to constitutional, statutory and charter spending limitations, then the City may terminate this Agreement without compensation to the Company. Section 12.17 Estoppel Certificates. The City and the Company agree that within fifteen (15) days after receipt of a written request from either to the other, the party receiving the request will execute and deliver to the requesting party, or to any prospective purchaser, mortgagee or assignee of the interest of the requesting party designated by the requesting party, a certificate certifying (a) that this Lease is unmodified and in fill force and effect, or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect, (b) the date to which the rent and other charges hereunder are paid in advance, if any (c) that to the certifying party's knowledge, as of the date of the certificate, there are no uncured defaults hereunder on the part of the requesting party, or specifying such defaults, if any as are claimed by the certifying party, (d) the then - scheduled expiration date of the Tenn and the number and duration of any unexercised, unexpired options to extend the Tenn, and (e) certifying or acknowledging any other facts or matters reasonably requested by the requesting party. Further, the City shall agree to provide to any potential mortgagee prior written notice of any default hereunder and allow such mortgagee the opportunity to cure such default within a reasonable time. The certificate may be relied upon by the requesting party or any prospective purchaser, mortgagee or assignee of the requesting party to whom it is delivered. IN WITNESS WHEREOF, the City and the Company have caused this Lease to be executed in their respective corporate names and attested by their duly authorized officers, all as of the date first above written. h� N orrFe A. 0'. BE AL (CITY SEAL OAAHOVO' Attest: .' Sherry Bishop) City Clerk CITY OF OWASSO, OKLAHOMA l f. ( � BY � Susan Kimball, Mayor 370293,31 24 Ap)/)�dvecl as to D. Cates, City Attorney YMCA OF GREATER TULSA By Title: c' -7-h [SEAL] Title: f 3 70293 a; 25 STATE OF OKLAHOMA ) ss: COUNTY OF TULSA The day of J, instrument was acknowledged before me this / 2004, foregoing g -� - —(-41C by Susan Kimball as Mayor of THE CITY OF OWASSO, OKLAHOMA. WITNESS my hand and official seal. Notary Public for the State of Oklahoma [SEAL] My Commission expires: IL (YT STATE OF OKLAHOMA ss: COUNTY OF TULSA The foregoing instrument was acknowledged before me this ,,,,,'day of 2004, by,2 e "/', �' " �'Iva,,�,—of YMCA OF GREATER TULSA, an Oklahoma corporation. L- �0114111A ahoma nonprofit WITNESS my hand and official seal. i Notary Public for the State of Oklah&na 7 [SEAL] My Commission expires: : 170293;31 26 ,3;019::3; EXHIBIT G CATEGORIES OF BUILDING MATERIALS'ITO BE ACQUIRED BY CITY 33 icuulC values . —. --------- Exhibit G Project: Owasso Family YMCA NON- TAXABLE MATERIAL - OWASSO Architect: Selser Schaefer Architects Contractor: Jim Butler Construction Co., Inc. 1350 S. Boulder 11337 E. 60th Place Tulsa, OK K 74169 Suite 1 Tulsa, OK 74146 Date: 5/20/05 _Ub120, 05210, 05_500 Material $2,200.00 $0.00 $2,200.00 Ross Fabrication 05120 05210 05500 5 - "- - -' -- — ___ $60,347.00__ -- - -' —`— Ross Fabrication 05120, 05210, 05_500 _ Steel - Joists /Deck - Material $19,9_70.00 _$0600$60,347.00_ $0.00 $19,970.00 _ Ross Fabrication 07720 _ Roof Hatch - Material _ $525.00_ $0.00 $525.00 _ Murray Womble 08 _70 ___— Hollow Metal_Material $7,790.00 _ $0.00 $7,790.00 _ Builders Supply Aluminum Storefront, Glazed Aluminum $7,800.0_0__ $o.00_ $7,800.00_ _ — Builders Supply 08411_08911 Curtain Wall, Misc. Materials - Material $77_000.00 $0.00 $77_000.00 Advantage Glass 08110_ - Finish Hardware - Material � - ---- - - - - -� ._.__....___ $8_097.00 —__ ___ -- Builders Supply 08800_,— __ .- Glazing= Material $59,780.00 $0.00 $59,780.00 _ Advantage Glass Ceramic Tile, Resilient Athletic Flooring, -- - -' —`— — 09310. 09625, 09651, Resilient Tile Flooring, Carpet, Floor 09580_ _Mat _Material Athletic Wood Flooring Material $55,430.00 $38,75_6.0_0 _$0.00 $55,430.00_ Aliens Floor Systems _09642 10171 — = $0.00_ $38,756.0_0_ Tri -State Floors Toilet Partitions - Material $7,800.0_0__ $o.00_ $7,800.00_ _ — Builders Supply 10200__ _ t.ouvers - Material $561.0_0_ $0.00$561.00 Dave Maher & Associates Flagpoles - Material _ $698.00 $0_00 Specialty Sales 10400 _ _ _ Signage - h'iaterial $4,830.00 $0.00 _$698.00 $4,8_30.00 Architectural Signs & Graphics 10410 _ Bulletin Board - Material — $230.00 _ $0_00 $230.00 _ Builders Supply Fire Protection Spec. - Fire 10520 _ Extinguishers - Material $1,136.00 $0.00 $1,136.00_ Builders Supply _10800_ _Toilet Accessories - Material $10,973.00 $0.00 _ $10,973.00 Supply 13122 Metal Building - Material $43,373.00 $0.00 __Builders $43,373.00 Vanguard Builders Building - Insulation - Material $32,907.00' ' $0.00 $32,907.00 Vanguard Builders Building =Curved SSR - Material $21,000.00 $0.00_ $21,000.00 Vanguard Builders 13150 Swimming Pool - Material $261_100.00 $0.00 $261,100.00 _ Associated Pool Builders 13154 _ Swimming Pool Tile - Material $19,000.00 $0.00 $19,000.00 Associated Pool Builders 15010, 15060, 15090, 15140, 15160, 15210, 15250, 15258, 15600, 15517, 15771, 15813, 15820, 15840, 15860, 15870, 15900 HVAC - Ductwork - Material $45,488.00 $0.00 $45,488.00 Air Technology Services Schell of Values Project: Owasso Family YMCA NON - TAXABLE MATERIAL - OWASSO Architect: Balser Schaefer Architects contractor: Jim Butler construction co., Inc. 1350 S. Boulder 11337 E. 60th Place Suite 1100 Tulsa, OK 74146 Tulsa, OK 74119 Date: 5/20/05 Spec Section Descnpt on o W'W f- ork - O ing nal alue Change Orders Rewsed a of e - '-'�"- '- $ubcontracto�l Supplier' -'� HVAC - Grilles /Fans /Accessories - _ --- - - - - -- -_ - Material _ ------- $25.117,00 $0.00 $25,117.00 Air Technology Services 15510, 15530 -__ Fire Sprinkler - Underground - Material $650.00____ $0.0_0_ $650.00 Superior Fire Protection_ Sprinkler_ Inside - Material $18,905.00 50.00 $18,905.00 Superior Fire Protection 15010, 15060, 15090, ----- ' - - - -'— -- - ----- 15100, 15120, 15140, 15160. 15250, 15400, 15450_15625 Plumbing - Fixtures - Material _ _ $63_885.00 $0.00 $63,885.00 AA Electric & Plumbing _ Plumbing - Bedding &Fill - Material $1,500.00 $0.00 .__ __..-- $1,500.00 ____ AA Electric & Plumbin Pipe Insulation - Material- $4,54_6:_00 - $0.00 $4,546.00 AA Electric & Plumbing Copper Fin -Tube Pool Heaters - - - - -- 15625__-- Material $10,603.00 $0.00 $10,603.00 UNDETERMINED TOTALS 59,000,00 0000 .@,...F,. . ,...- $- 0.00.,P.as.,,�..�...�.. 51.000.000.00 Project: Owasso Family YMCA Architect: Selser Schaefer Architects 1350 S. Boulder Suite 1100 Tulsa, OK 74119 13122 S_ NON- TAXABLE MATERIAL -VISION 2025 Contractor: Jim Butler Construction Co., Inc. 11337 E. 60th Place Tulsa, OK 74146 Allian_ce_St_eel, Inc. 3333 S. C ----- _ .._ ------- Oklahoma City, Oh Trane 2201 N. Willow AV, Broken Arrow, OK ARTICLE I Indemnification and Condemnation Section 1.1 Indemnification Covenant. The City will pay and will protect, indemnify, and save the Company, its respective agents, officers, employees, successors and assigns, harmless from and against any and all liabilities, losses, damages, costs, and expenses (including attorney's fees, alterative dispute resolution expenses, and fees of the Company), causes of action, suits, claims, demands, and judgments of whatsoever kind and nature arising out of any claims made in connection with or related to the Reversion and Restriction. Section 1.2 Condemnation. The City will commence, within thirty (30) days following the execution of this Addendum, condemnation proceedings respecting the Reversion and Restriction. In the event that the condemnation proceedings are not resolved in favor of the City, then the Company may terminate the Lease upon written notice. Dated this _:3 mclt day of A"(CtLds sT 2004. U CITY OF OWASSO, OKLAHOMA N �J oFFternr o By: () t Lt12( [CITY SEAL] ` �AL Susan Kimball, Mayor ATTEST:s1 Sherry Bishop] City Clerk AS TO FORM: D. Cates, City Attorney YMCA OF GREATER TULSA 9 Susan Plank, CEO o7-za -oa 2 t i.. ADDENDUM NO. 1 This is an Addendum to that certain Lease by and between The City of Owasso, Oklahoma (the "City "), and the YMCA of Greater Tulsa, an Oklahoma nonprofit corporation (the "Company "), dated June 15, 2004 ("Lease"). RECITALS WHEREAS, by General Warranty Deed dated January 13, 1958, which was thereafter filed in the office of the Tulsa County Clerk on February 4, 1958, and recorded in Book 2844 at Page 342, J. Ray Smith and Ola Smith, husband and wife, conveyed to the City certain real property, which constitutes, in part, the Grounds (as that term is defined therein) described in the Lease. The above described General Warranty Deed contains the following reversionary right: "That said property hercinabovc conveyed to the City of Owasso, Oklahoma, shall be used by the said party grantee as a recreation park for the use and enjoyment of the general public, and that it shall in no way be used for any other purpose by said party grantee; that if at any time this property shall cease to be used for said purposes, then and in that event this property shall revert back to the grantor, their heirs or assigns."; (hereinafter referred to as the "Reversion "). WHEREAS, by General Warranty Deed dated October 18, 1960, which was thereafter filed in the office of the Tulsa County Clerk on December 21, 1960, and recorded in Book 3112 at Page 461, J. Ray Smith and Ola Smith, husband and wife, conveyed to the City certain real property, which constitutes, in part, the Grounds described in the Lease. The above described General Warranty Deed contains the following restrictive covenant: "This property is to be used by the City of Owasso for a public park only, and cannot be deeded or transferred without an expression by vote of the Citizens of Owasso, Oklahoma."; (hereinafter referred to as the "Restriction "). WHEREAS, in order to effect the Lease and to permit the Company to obtain financing and to build the Facilities on the Grounds, the City has agreed to protect the Company from any loss that may be related to the Reversion and Restriction and to further institute eminent domain proceedings to further ensure such protection. AUREEIVIENT NOW, THEREFORE, in consideration of the respective representations and agreements contained in the Lease and herein, the City and the Company hereby agree as follow: 07 -22 -04