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11/07/24
wAIA Document A101® 2017 Standard Form of Agreement Between Owner and Contractor where,the basis of payment is a Stipulated Sum • AGREEMENT made as of the Fifth day of November in the year Two Thousand Twenty Four ADDITIONS AND DELETIONS: (In words, indicate day,month and year.) The author of this document has added information needed for its BETWEEN the Owner: • completion.The author may also (Name, legal status, address and other information) have revised the text of the original AIA standard form.An Additions and City of West Memphis Deletions Report that notes added 205 S.Redding St • information as well as revisions to the West Memphis,AR 72301 standard form text is available from • the author and should be reviewed.A vertical line in the left margin of this • and the Contractor: document indicates where the author (Name, legal status, address and other information) has added necessary information and where the author has added to or Wagner General Contractors,Inc. deleted from the original AIA text. 7540 Bartlett Corporate Dr This document has important legal Bartlett,TN 38133 consequences.Consultation with an. attorney is encouraged with respect to its completion or modification. for the following Project: The parties should complete (Name, location and detailed description) A101E0-2017,Exhibit A,Insurance Carolyn and Ness Sechrest Animal Shelter and Adoption Center and Bonds,enntemp with Document 2000 Southland Drive A201®-2017,General Conditions of West Memphis,AR 72301 the Contract for Construction,is Construction of new 4735 s.f.animal shelter and adoption center with outside play areas, adopted in this document by access road,and parking.for the City of West Memphis. reference.Do not use with other • general conditions unless this The Architect: document is modified. • (Name, legal status, address and other information) Evans Taylor Foster Childress Architects 343 North Main Street . Memphis,TN 38103 The Owner and Contractor agree as follows. • CEIVED A2,, By • • Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights reserved."The American Institute of Architects,""American Institute of Architects,""AIA;the AIA Logo,and"AIA Contract Documents"are trademarks of The j American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: • (913588851) • • TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACT SUM 5 PAYMENTS 6 DISPUTE RESOLUTION 7 TERMINATION OR SUSPENSION 8 MISCELLANEOUS PROVISIONS 9 ENUMERATION OF CONTRACT DOCUMENTS • EXHIBIT A INSURANCE AND BONDS ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement,Conditions of the Contract(General,Supplementary,and other Conditions),Drawings,Specifications,Addenda issued prior to execution of this Agreement,other documents listed in this Agreement,and Modifications issued after execution of this Agreement,all of which form the Contract,and are as fully a part of the Contract as if attached to this Agreement or repeated herein.The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations,representations,or agreements, either written or oral.An enumeration of the Contract Documents,other than a Modification,appears in Article 9. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents,except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be: (Check one of the following boxes) • • [ ] The date of this Agreement. [ X ] A date set forth in a notice to proceed issued by the Owner. [ ] Established as follows: (Insert a date or a means to determine the date of commencement of the Work) If a date of commencement of the Work is not selected,then the date of commencement shall be the date of this Agreement. • § 3.2 The Contract Time shall be measured from the date of commencement of the Work. § 3.3 Substantial Completion • § 3.3.1 Subject to adjustments of the Contract Time as provided in the Contract Documents,the Contractor shall achieve Substantial Completion of the entire Work: (Check one of the following boxes and complete the necessary information) Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights reserved."The American Institute of Architects,""American Institute of Architects,"AIA;the AIA Logo,and"AIA Contract Documents"are trademarks of The 2 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) • [X ] Not later than 360 (Three Hundred Sixty )calendar days from the date of commencement of the Work. - • [ ] By the following date: § 3.3.2.Subject to adjustments of the Contract Time as provided in the Contract Documents,if portions of the Work are to be completed prior to Substantial Completion of the entire Work,the Contractor shall achieve Substantial Completion of such portions by the following dates: Portion of Work Substantial Completion Date • I 100% Date as noted in Notice to Proceed §.3.3.3 If the Contractor fails to achieve Substantial Completion as provided in this Section 3.3,liquidated damages,if any,shall be assessed as set forth in Section 4.5. • ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract.The Contract Sum shall be Two Million,Two Hundred Ninety Six Thousand,Nine Hundred Ninety Dollars ($2,296,990.00- ),subject to additions and deductions as provided in the Contract Documents. § 4.2 Alternates • § 4.2.1 Alternates,if any,included in the Contract Sum: Item Price See attached Value Engineering(Revised 10-7-2024)listing eleven(11)deductive alternates for a total of$305,010.00 § 4.2.2 Subject to the conditions noted below,the following alternates maybe accepted by the Owner following execution of this Agreement.Upon acceptance,the Owner shall issue a Modification to this Agreement. (Insert below each alternate and the conditions that must be met for the Owner to accept the alternate) Item Price Conditions for Acceptance See 4.2.1 above § 4.3 Allowances,if any,included in the Contract Sum: (Identify each allowance.) Item Price Soil and Concrete Testing $5,000.00 • • Signage $20,000.00 Construction Contingency $50.000.00 § 4.4 Unit prices,if any: (Identify the item and state the unit price and quantity limitations, if any, to which the unit price will be applicable) Item Units and Limitations Price per Unit($0.00) N.A • • § 4.5 Liquidated damages,if any: (Insert terms and conditions for liquidated damages, if any) Five Hundred Dollars($500.00)per day. § 4.6 Other: (Insert provisions for bonus or other incentives, if any, that might result in a change to the Contract Sum) N.A.. Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,199.1,1997,2007 and 2017.All rights reserved."The American Institute of Architects;'American Institute of Architects;"AIA;the AIA Logo,and"AIA Contract Documents'are trademarks of The 3 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) ARTICLE 5 PAYMENTS § 5.1 Progress Payments § 5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect,the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month,or as follows: N.A. § 5.1.3 Provided that an Application for Payment is received by the Architect not later than the 21st day of a month, the Owner shall make payment of the amount certified to the Contractor not later than the 10th day of the next month.If an Application for Payment is received by the Architect after the application date fixed above,payment of the amount certified shall be made by the Owner not later than twenty (20 )days after the Architect receives the Application for Payment. (Federal,state or local laws may require payment within a certain period of time.) § 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents.The schedule of values shall allocate the entire Contract Sum among the various portions of the Work.The schedule of values shall be prepared in such form,and supported by such data to substantiate its accuracy,as the Architect may require.This schedule of values shall be used as a basis for reviewing the Contractor's Applications for Payment. § 5.1.5 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.6 In accordance with AIA Document A201' —2017,General Conditions of the Contract for Construction,and subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: § 5.1.6.1 The amount of each progress payment shall first include: . .1 That portion of the Contract Sum properly allocable to completed Work; .2 That portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction,or,if approved in advance by the Owner,suitably stored off the site at a location agreed upon in writing;and .3 That portion of Construction Change Directives that the Architect determines,in the Architect's professional judgment,to be reasonably justified. • § 5.1.6.2 The amount of each progress payment shall then be reduced by: .1 The aggregate of any amounts previously paid by the Owner; .2 The amount,if any,for Work that remains uncorrected and for which the Architect has previously withheld a Certificate for Payment as provided in Article 9 of AIA Document A201-2017; .3 Any amount for which the Contractor does not intend to pay a Subcontractor or material supplier, unless the Work has been performed by others the Contractor intends to pay; .4 For Work performed or defects discovered since the last payment application,any amount for which the Architect may withhold payment;or nullify a Certificate of Payment in whole or in part,as provided in Article 9 of AIA Document A201-2017;and .5 Retainage withheld pursuant to Section 5.1.7. § 5.1.7 Retainage § 5.1.7.1 For each progress payment made prior to Substantial Completion of the Work,the Owner may withhold the following amount,as retainage,from the payment otherwise due: (Insert a percentage or amount to be withheld as retainage from each Application for Payment. The amount of retainage may be limited by governing law.) Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights reserved."The American Institute of Architects,""American Institute of Architects,""AIA;the AIA Logo,and'AIA Contract Documents"are trademarks of The 4 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) Five(5%) § 5.1.7.1.1 The following items are not subject to retainage: (Insert any items not subject to the withholding of retainage,such as general conditions, insurance, etc.) N.A. § 5.1.7.2 Reduction or limitation of retainage,if any,shall be as follows: (If the retainage established in Section 5.1.7.1 is to be modified prior to Substantial Completion of the entire Work, including modifications for Substantial Completion of portions of the Work as provided in Section 3.3.2, insert provisions for such modifications) N.A. § 5.1.7.3 Except as set forth in this Section 5.1.7.3,upon Substantial Completion of the Work,the Contractor may • submit an Application for Payment that includes the retainage withheld from prior Applications for Payment pursuant to this Section 5.1.7.The Application for Payment submitted at Substantial Completion shall not include retainage as follows: (Insert any other conditions for release of retainage upon Substantial Completion.) • • N.A. § 5.1.8 If final completion of the Work is materially delayed through no fault of the Contractor,the Owner shall pay the Contractor any additional amounts in accordance with Article 9 of AIA Document A201-2017. § 5.1.9 Except with the Owner's prior approval,the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 5.2 Final Payment § 5.2.1 Final payment,constituting the entire unpaid balance of the Contract Sum,shall be made by the Owner to the Contractor when .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Article 12 of ALA Document A201-2017,and to satisfy other requirements,if any, which extend beyond final payment;and .2 a final Certificate for Payment has been issued by the Architect. § 5.2.2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's fmal Certificate for Payment,or as follows: N.A. § 5.3 Interest Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof,at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any) Eight % 8% ARTICLE 6 DISPUTE RESOLUTION § 6.1 Initial Decision Maker The Architect will serve as the Initial Decision Maker pursuant to Article 15 of AIA Document A201-2017,unless the parties appoint below another individual,not a party to this Agreement,to serve as the Initial Decision Maker. (If the parties mutually agree, insert the name,address and other contact information of the Initial Decision Maker, if other than the Architect.) N.A. Init. AIA Document A101—2017.Copyright @ 1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights reserved."The American Institute of Architects,""American Institute of Architects,""AIA,"the AIA Logo,and"AIA Contract Documents°are trademarks of The 5 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) § 6.2 Binding Dispute Resolution • For any Claim subject to,but not resolved by,mediation pursuant to Article 15 of AIA Document A201-2017,the method of binding dispute resolution shall be as follows: (Check the appropriate box.) - [ ] Arbitration pursuant to Section 15.4 of AIA Document A201-2017 [X ] Litigation in a court of competent jurisdiction [ ] _ Other(Specify) If the Owner and Contractor do not select a method of binding dispute resolution,or do not subsequently agree in writing to a binding dispute resolution method other than litigation,Claims will be resolved by litigation in a court of competent jurisdiction. ARTICLE 7 TERMINATION OR SUSPENSION § 7.1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201-2017. § 7.1.1 If the Contract is terminated for the Owner's convenience in accordance with Article 14 of AIA Document A201-2017,then the Owner shall pay the Contractor a termination fee as follows: (Insert the amount of or method for determining,the fee,if any,payable to the Contractor following a termination for the Owner's convenience.) The amount owed at the point of construction. • § 7.2 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201-2017. ARTICLE 8 MISCELLANEOUS PROVISIONS § 8.1 Where reference is made in this Agreement to a provision of AIA Document A201-2017 or another Contract Document,the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 8.2 The Owner's representative: (Name, address, email address, and other information) • City of West Memphis 205 South Redding St. • Marco McClendon,Mayor • • § 8.3 The Contractor's representative: (Name,address, email address, and other information) Wagner General Contractors,Inc Robby Crafton,Project Manager • 7540 Bartlett Corporate Dr • Bartlett,TN 38133 • robby@wagnergeneral.com Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights • reserved. The American Institute of Architects,"American Institute of Architects,"AIA,the AIA Logo,and"AIA Contract Documents"are trademarks of The 6 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) • § 8.4 Neither the Owner's nor the Contractor's representative shall be changed without ten days'prior notice to the other party. § 8.5 Insurance and Bonds § 8.5.1 The Owner and the Contractor shall purchase and maintain insurance as set forth in AIA Document A1017m-2017,Standard Form of Agreement Between Owner and Contractor where the basis of payment is a • Stipulated Sum,Exhibit A,Insurance and Bonds,and elsewhere in the Contract Documents. § 8.5.2 The Contractor shall provide bonds as set forth in AIA Document A101T"_2017 Exhibit A,and elsewhere in the Contract Documents. § 8.6 Notice in electronic format,pursuant to Article 1 of AIA Document A201-2017,may be given in accordance with AIA Document E203T2013,Building Information Modeling and Digital Data Exhibit,if completed,or as otherwise set forth below: (If other than in accordance with AIA Document E203-2013, insert requirements for delivering notice in electronic format such as name, title, and email address of the recipient and whether and how the system will be required to generate a read receipt for the transmission.) § 8.7 Other provisions: ARTICLE 9 ENUMERATION OF CONTRACT DOCUMENTS § 9.1 This Agreement is comprised of the following documents: .1 AIA Document A101Tm-2017,Standard Form of Agreement Between Owner and Contractor .2 AIA Document A101TM_2017,Exhibit A,Insurance and Bonds .3 AIA Document A201Tm-2017,General Conditions of the Contract for Construction .4 AIA Document E203T2013,Building Information Modeling and Digital Data Exhibit,dated as indicated below: (Insert the date of the E203-2013 incorporated into this Agreement.) ) .5 Drawings Number Title Date See Attachment A .6 Specifications • Section Title Date Pages See Attachment B . .7 Addenda,if any: • Number Date • Pages See attachment C Portions of Addenda relating to bidding or proposal requirements are not part of the Contract Documents unless the bidding or proposal requirements are also enumerated in this Article 9. .8 Other Exhibits: Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights reserved."The American Institute of Architects,""American Institute of Architects,""AIA;the AIA Logo,and"AIA Contract Documents"are trademarks of The 7 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents,'Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) • • (Check all boxes that apply and include appropriate information identifying the exhibit where required.) • • ' [ ] MA Document E204T 2017,Sustainable Projects Exhibit,dated as indicated below: (Insert the date of the E204-2017 incorporated into this Agreement.) [ ] The Sustainability Plan: Title Date Pages [ ] Supplementary and other Conditions of the Contract: Document Title Date Pages .9 Other documents,if any,listed below: (List here any additional documents that are intended to form part of the Contract Documents.ALA • Document A201 T"L2017 provides that the advertisement or invitation to bid,Instructions to Bidders, sample forms, the Contractor's bid or proposal,portions of Addenda relating to bidding or proposal requirements, and other information furnished by the Owner in anticipation of receiving bids or proposals,are not part of the Contract Documents unless enumerated in this Agreement.Any such documents should be listed here only if intended to be part of the Contract Documents.) This Agreement entered into as of the day and year first written above. 1f�L GO c 64, 0 NER(Signatu CONTRACTOR(Signature) Marco McClendon Shelton Allen Wagner,Jr. Mayor Owner (Printed name and title) (Printed name and title) • • • Init. AIA Document A101—2017.Copyright©1915,1918,1925,1937,1951,1958,1961,1963,1967,1974,1977,1987,1991,1997,2007 and 2017.All rights reserved."The American Institute of Architects,""American Institute of Architects,""AIA;the AIA Logo,and"AIA Contract Documents"are trademarks of The 8 American Institute of Architects.This document was produced at 12:12:26 ET on 11/05/2024 under Order No.2114581094 which expires on 11/04/2025,is not for resale,is licensed for one-time use only,and may only be used in accordance with the AIA Contract Documents®Terms of Service.To report copyright violations, e-mail docinfo@aiacontracts.com. User Notes: (913588851) _ WAGNER 7540 Bartlett Corporate Drive GENERAC,GONTRACTQRS,,I,NC,- 1711 Higginson St. Bartlett,TN 38133 Searcy,AR 72143 901-380-0060 501-203-0704 Carolyn& Ness,Sechrest'Animal Shelter and Adoption Center 'Value Engineering (Revised) 10/7/2024 Site Work&Asphalt Paving-$29,800 Reduce the select fill under pavement to 24"in lieu of 36"-($4,500) Reduce gravel and site work at shipping container pad—($3,000) City of West Memphis demolish current site fencing and concrete pads—($7,500) Sewer placement adjustments($14,800) l Construction General Conditions-$26,250 Delete site fencing and gates surrounding construction area—($19,250) Delete temporary office—($7,000) • Entrance Fixtures-$24,500 Delete flagpoles(3)—($4,500) Delete owners sign allowance—($20,000)maintains building signage Finishing-$35,560 • Delete stainless steel panels on cabinetry—($10,000) Delete tectum soundproofing panels—($24,560) Delete window shades—($1,000) Kennel Fencing-$10,000 Delete(2).of(4)play area fencing($10,000) • • Canopy-$58,900 Delete free standing canopy extending from the new building to the existing building—($45,900) Delete spec'd canopies in favor of rolled canopies—($13,000) Site Concrete-$15,600 . Delete 630 SF sidewalk between the new building and the existing one—($3,800) • Delete concrete storage pads—($7,500) Change concrete mix design from straight cement to fly ash—($2,800) Change 8"stone base to 6"under concrete paving areas—($1,500) , MEP's-$40,400 • . Change spec water heater to light commercial 80 gal water heater—($5,600) Change spec lighting package to VE package—($24,300) Change split system from 17 SEER to 14 SEER with single stage heat ($10,500) - CEIV D , I WAGNER-, GENERAL CONTRACTORS, INC. 7540 Bartlett Cor orate Drive 1711 Higginson gginson St. Bartlett,TN 38133 Searcy,AR 72143 901-380-0060 501-203-0704 Trench Drains—$8,000 Delete specified trench drain and replace with concrete trench and removable metal grate—($8,000) Metal Paneling-$6,000 Delete spec wood grain metal panels and replace with VE wood grain panel—($5,000) Change 12"spec metal panels to 18" metal panels ($1,000) Owner Construction Contingency-$50,000 Delete the owner construction contingency from the scope—($50,000) $305,010—Total VE Options • Original Bid-$2,602,000 VE Savings—($305,010) Revised Price - $2,296,990 Alternate 1: Construct the college softball field surface using the same scope as described $514,600.00 Provide and install new wall, netting system,fencing,dugouts,roof to match scope on base fields $162,800.00 Provide and install an NCAA Regional level LED lighting system(including demo of old system) $194,700.00 Alternate 2: Construct the college baseball fieldsurface using the same scope as described (w/perfect mound) $1,498,600.00 Provide and install new wall,netting system&fencing to match scope on base bid fields $198,400.00 Provide and install an NCAA Regional level LED lighting system (including demo of old system) $328,900.00 TERMS: • The cost of permits,or license fees,if applicable,will be provided by Others. Engineering and design fees are included. • Materials must be ordered by December 1,2024, or the terms of the Proposal will be renegotiated. • Installation must commence on or before December 1, 2024, or,the terms of the Proposal will be renegotiated. • All electrical or plumbing work assumes existing infrastructure such as city sewer, water source, electrical panels and service requirements are existing. • Unmarked water or electrical lines or any other unmarked utilities are the responsibility of the OWNER. • A $375,000 remodeling allowance is included for the existing concession stand. This allowance will be spent per Owner's criteria. • Access will be provided by the Owner. • GeoSurfaces personnel will not be required to work the week of Thanksgiving or from December 20, 2024, through January 5, 2025. • Installation will commence within 15 days of Purchaser's written notice. Completion will be within the agreed upon good weather working days. "Good weather working days" are defined in the Contract Agreement. • Taxes will be included to Purchaser. Purchaser agrees that any applicable taxes paid by GeoSurfaces will reimburse GeoSurfaces for taxes GeoSurfaces was required to.remit. • Payment and performance bonds are included. Acceptance of Offer to Sell:This offer to sell (Proposal and all attachments) is valid for acceptance by Purchaser by the execution of the Acceptance of Proposal below and return of an original to GeoSurfaces. If the Acceptance of Proposal is not received by GeoSurfaces on or before the Proposal expiration date, this offer to sell shall be deemed automatically cancelled and withdrawn. Proposal tendered this 5th day of November 2024. Proposal expires the 15th day of November 2024. For:GeoSurfaces, Inc. For: City of West Memphis,Arkansas C A� By: BY: ""(41ciL GeoSurfaces,Inc. * 7080 St.Gabriel Avenue,Suite A,St.Gabriel,LA 70776 * 877.663.5968-Phone * www.geosurfaces.com cA S INO HorEl Ground Lease This GROUND LEASE (the "Lease") dated as of the day of , 2024 (the "Effective Date"), is entered into between Southland Racing Corporation ("Landlord") and the City of West Memphis ("Tenant", and together with Landlord,collectively referred to herein as the "Parties"). WITNESSETH: - In consideration of the rents reserved and covenants made herein, the sufficiency of which is acknowledged, Landlord and Tenant, for themselves, and their legal representatives, and their permitted successors and assigns, hereby agree as follows: . ARTICLE I DEFINITIONS Section 1.01 Definitions. The following terms, as used in this Lease, shall have the meanings set forth below: "Additional Rent" shall mean all amounts payable by Tenant under this Lease, other than Base Rent, and whether or not expressly designated as Additional Rent in this Lease. "Affiliate" shall mean a Person which shall control, be under the control of, or be under common control with the Person in question. "Alteration" or "Alterations" shall have the meaning set forth in'Section 7.02 hereof - "Approvals" shall mean all approvals of Governmental Authorities required for the construction of the Facility and for any Alteration, as applicable. "Arbitration" shall mean in such cases where this Lease expressly provides for the settlement of a dispute or question through arbitration, and only in such cases, each party shall promptly appoint a Qualified Appraiser as an arbitrator on its behalf and shall give notice thereof to the other party. The two (2) Qualified Appraisers shall together appoint a third Qualified Appraiser within 10 (10) days after the appointment of Landlord's and Tenant's Qualified Appraisers,and said three (3) Qualified Appraisers shall, within the applicable time period specified in this Lease, or if no time period is specified, as promptly as possible, determine the matter which is the subject of the arbitration and the decision of the majority of them shall be a conclusive, final, non-appealable decision binding on all parties and _ judgment upon the award may be entered in any court having jurisdiction. The arbitration shall be in accordance with the Commercial Arbitration Rules of the American Arbitration Association or any RECEIVED successor body of similar function. The expenses of Arbitration shall be shared equally by Landlord and Tenant, but each party shall be responsible for the fees and disbursements of its own attorneys and the expenses of its own proof. Landlord and Tenant shall sign all documents and do all other things necessary to submit any such matter to arbitration and further shall, and hereby do, waive any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to arbitration and to abide by the decision rendered thereunder. The arbitrators shall have no power to vary or modify any of the provisions of this Lease and their jurisdiction is limited accordingly. "Assignment" shall.mean the sale, exchange, assignment, or other disposition of all Tenant's interest in this Lease and the leasehold estate created thereby, whether by operation of Law or otherwise. "Base Rent" shall have the meaning set forth in Section 3.011 hereof. "Business Day" shall mean any day that is not a Saturday, Sunday, or a day observed as a holiday by either the State or the Federal government. "Certificate of Occupancy" shall mean a certificate issued by the appropriate Governmental Authority permitting the occupancy of the Facility. For purposes,hereof, a temporary Certificate of Occupancy shall be deemed to be a Certificate of Occupancy but shall be replaced with a permanent Certificate of Occupancy before the expiration of such temporary Certificate of Occupancy. "Change Order" shall have the meaning set forth in Error! Reference source not found. hereof. "Completion Date" shall mean thirty (30) months following the Effective Date. "Condemnation" shall mean the taking or appropriation of all or any part of the Premises, or any interest therein or right accruing thereto including any right of access, by or on behalf of any Governmental Authority or by any entity granted the authority to take property in the exercise of the power or right of eminent domain granted by statute, or any agreement that conveys to the condemning authority all or any part of the Premises as the result of, in lieu of, or in anticipation of, the exercise of a right of condemnation or eminent domain. Such term shall also be deemed to include, to the extent not otherwise defined herein, a temporary taking of the Premises or any part thereof or the Improvements thereon for a period of one year or more, and the taking of the leasehold interest created herein. "Date of Taking" shall mean the earlier of the date, pursuant to the provisions of applicable State or Federal Law, on which: (a) actual possession of all or part of the Premises, as the case may be, is acquired by the appropriate Governmental Authority,; or(b) title to all or part of the Premises, as the case may be, is vested in the appropriate Governmental Authority. "Effective Date" shall have the meaning set forth in the first paragraph of this Lease. "Environmental Laws" shall mean all Laws: (a) relating to the environment, human health, or natural resources; (b) regulating, controlling, or imposing liability or standards of conduct concerning any Hazardous Materials;,(c) relating to Remedial Action; and (d)requiring notification or disclosure of releases of Hazardous Materials or of the existence of any environmental conditions on or at the Premises, as any of the foregoing may be amended, supplemented, or supplanted from time to time. 2 "Environmental Liabilities" shall mean any loss, cost, expense, claim, demand, liability, obligation, action, or other responsibility of whatever kind, based upon or required under Environmental Laws or otherwise relating to: (a) any environmental, health, or safety matter or condition (including, but not limited to, on-site or off-site pollution or contamination, the welfare, safety, and health of people at the Premises or elsewhere, and the regulation of chemical substances or products); (b) fines,penalties, judgments, awards, settlements, legal or administrative proceedings, damages, losses, claims, demands, responses, and remedial, investigative, or inspection costs and expenses arising under or caused by application of Environmental Laws (including, but not limited to, fees for attorneys, engineers, and other professionals); (c) financial responsibility under Environmental Laws for Remedial Action or for any damages to natural resources; or (d) any other Remedial Actions required under Environmental Laws. "Expiration Date" shall mean the last day of the month in which occurs on the twenty-fifth (25t1') anniversary of the Effective Date, as same may be extended pursuant to ARTICLE XXIII hereof, or such earlier date on which the Term shall sooner end pursuant to any of the terms, covenants, or conditions of this Lease or pursuant to Law. "Event of Default" shall have the meaning set forth in Section 11.01 hereof. "Facility" shall mean the building to be constructed on the Land by Tenant pursuant to this Lease which is to be used as an Animal Shelter, together with all fixtures now or in the future installed or erected upon the Land or Improvements. "Force Majeure Event" means any of the following events: (a) acts of God; (b) floods, fires, earthquakes, explosions, or other natural disasters; (c) war, invasions, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; (d) governmental authority, proclamations, orders, laws, actions, or requests; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) epidemics, pandemics, or other national or regional public health emergencies; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortages of supplies, adequate power, or transportation facilities; and (i) other similar events beyond the control of the parties. "Governmental Authority or Governmental Authorities" shall mean the United States of America and the State of Arkansas, any political subdivision of any of the foregoing, and any other governmental or regulatory authority, agency, board, department, or any other public or quasi-public authority, having jurisdiction over the Premises or the,matter at issue. "Hazardous Materials" shall mean any and all substances, materials, chemicals, or wastes that now or hereafter are classified or considered to be hazardous or toxic under any Environmental Law, or that are or become regulated by any Governmental Authority because of toxicity, infectiousness, radioactivity, explosiveness, ignitability, corrosiveness, or reactivity under any Environmental Law applicable to the Premises, and shall also include: (a) gasoline, diesel fuel, and any other petroleum • hydrocarbons; (b) asbestos and asbestos containing materials, in any form, whether friable or non- friable; (c)polychlorinated biphenyls; (d) radon gas; and (e) flammable liquids and explosives. "Improvements" shall mean all buildings and other improvements now located, or hereafter erected, on the Land (including the Facility), together with all fixtures now or in the future installed or erected in or upon the Land or such improvements owned or leased by Landlord or Tenant. 3 "Indemnitees" shall have the meaning set forth in Section 9.01 hereof. • "Initial Construction" shall mean the design, development, and construction of the Facility, including all related demolition and excavation. "Land" shall mean all that certain plot,piece, or parcel of land described in Exhibit A attached hereto and incorporated herein and incorporated herein. "Law" or "Laws" shall mean any present or future applicable law, statute, ordinance, regulation (including zoning regulations), code, building code,judgment, injunction, arbitration award, order, rule, directive, common law, codes and ordinances of any Governmental Authorities, easement, covenant, restriction, or other agreement.of record affecting the Premises as of the date of this Lease or subsequent thereto. "Legal Requirements" shall mean all requirements of Law. • "Liabilities" shall mean all losses, claims, suits, demand, costs, liabilities, and expenses, including reasonable attorneys' fees,penalties, interest, fines,judgment amounts, fees, and damages, of "Permitted Use" shall mean the construction, operation and management of an animal shelter in a manner and of a standard agreeable to Landlord. "Person" shall mean any individual,corporation, partnership, firm, or other legal entity. "Personalty" shall mean all machinery, equipment, appliances, furniture, and any other personal property of any kind or description owned or leased by Landlord or Tenant located on the Premises and used in the operation of the Premises, excluding trucks and cars. "Plans" shall have the meaning set forth in Section 5.011 hereof. "Premises" shall mean the Land, any Improvements thereon (including the Facility, as applicable), and any and all rights,privileges, easements, and appurtenances to the Land and the Improvements and any development rights. "Property Reports" shall have the meaning set forth in;Section 5.08'hereof. "Release" shall mean the release or threatened release of any Hazardous Materials into or upon or under or above any land, water, or air, or otherwise into the environment, including by means of . burial, disposal, discharge, emission, spillage, leakage, seepage, leaching, or dumping. • "Remedial Action" shall mean the investigation, response, clean up, remediation,prevention, mitigation, or removal of any Hazardous Materials necessary to comply with any Environmental Laws. "Rent" shall mean Base Rent and Additional Rent. "Rent Commencement Date" shall mean the date that is one (1) year after the Effective Date. "State" shall mean the State of Arkansas. 4 "Sublease" shall mean any lease, sublease, occupancy, license, or concession agreement for the use or occupancy of space in the Improvements (other than this Lease). "Substantial Completion, Substantially Complete, and Substantially Completed" shall mean, with respect to the Initial Construction and all Alterations, the satisfaction of the following conditions: (a) Tenant shall have obtained and delivered to Landlord all Approvals required by Law to be issued in connection with the Initial Construction or Alteration, as applicable, including any Certificate of Occupancy or amendment of the Certificate of Occupancy; and (b) Tenant delivers to Landlord a final release and waiver of mechanic's liens covering all the Initial Construction or Alteration, as applicable, in form and substance reasonably satisfactory to Landlord, executed by each of the general contractor, construction manager, design builder, contractors, and subcontractors. "Subtenant" shall mean any tenant, subtenant, licensee, or other occupant of space in the Improvements (other than Tenant). "Term" shall mean the term of this Lease commencing on the Effective Date and ending on the "Unavoidable Delays" shall mean delays incurred by Tenant due to a Force Majeure Event; provided: (a) Tenant shall have notified reasonably promptly after the commencement of the Force Majeure Event, explaining the nature or cause of the delay and stating the period of time the delay is expected to continue; and (b) Tenant uses reasonable efforts to end the delay and ensure the effects of such Force Maj eure Event are minimized. r ARTICLE II LEASE OF PREMISES; CONDITION OF PREMISES; FAILURE TO DELIVER POSSESSION Section 2.01- Lease of Premises. Subject to the terms and conditions of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises for a Term that shall commence on the Effective Date and end on the Expiration Date (as such Term may be extended from time to time), subject to earlier termination pursuant to any of the terms, covenants,or conditions of this Lease or pursuant to Law. Section 2.02 Condition of Premises. Tenant has inspected the Premises and accepts possession of the Premises in its "AS IS" condition on the Effective Date. Except as otherwise expressly provided in this Lease, Tenant has full responsibility for the repair,Alteration, maintenance, and replacement of the Premises. Tenant expressly acknowledges and agrees that Landlord has not made and is not making, and Tenant is not relying upon, any warranties or representations regarding the Premises, except to the extent same are expressly set forth in the Lease. ARTICLE III BASE RENT; RENT PAYABLE TO LANDLORD; NET LEASE Section 3.01 Base Rent. (a) Tenant covenants and agrees to pay Base Rent to Landlord throughout the Term of this Lease as follows ("Base Rent"): One US Dollar.($1)per annum, payable by the end of the applicable year, unless payment is waived by Landlord. 5 Section 3.02 Rent Payable to Landlord. Tenant shall pay Base Rent to Landlord annually, in arrears without notice or demand. Tenant shall pay to Landlord all Additional Rent that is payable to Landlord pursuant to the terms and conditions of this Lease within thirty (30) days after written demand therefore from Landlord, unless a different time is specified in this Lease. Section 3.03, Net Lease. This Lease is an absolute net lease. Tenant shall pay as Additional Rent all-expenses of every kind and nature whatsoever relating to or arising from the leasing, operation, management, construction, maintenance, repair, use, and occupancy of the Premises, except as otherwise expressly provided in this Lease.Notwithstanding the foregoing, Landlord agrees to pay the following expenses: (a) any expenses expressly agreed to be paid by Landlord in this Lease; (b) expenses incurred by Landlord to monitor and administer this Lease; and(c) expenses that are personal to the Landlord. ARTICLE IV PERMITTED USE Section 4.01 Permitted Use. Subject to all applicable Laws and this Lease, Tenant shall use the Premises only for the Permitted Use. Tenant shall not use or occupy, nor permit or suffer the • Premises or any part thereof to be used or occupied for any unlawful, illegal, or extra hazardous business, use, or purpose,or in such manner as to constitute a nuisance of any kind (public or private), or for any purpose or in any way in violation of the Certificate of Occupancy or of any Laws, or which may make void or voidable any insurance then in force on the Premises. Tenant shall take, immediately upon the discovery of any such unpermitted, unlawful, illegal, or extra hazardous use, all necessary actions, legal and equitable,to compel the discontinuance of such use. ARTICLE V CONSTRUCTION OF FACILITY Section 5.01 Construction Approvals by Landlord. If requested by Landlord, Tenant shall promptly deliver a set of the preliminary design documents and the construction documents (the "Plans"), fully identifying and describing all mechanical, electrical, and plumbing systems, materials, signage, design, and Tenant shall notify Landlord of any material change, substitute work, or materials In prosecuting the construction of the Improvements ("Change Order"). Section 5.02 Construction Performance. All building materials for the Facility must be new and of good quality. All construction will be performed in a good and workmanlike manner and only by contractors and subcontractors that are properly licensed to perform their respective work. Landlord reserves the right to monitor the Initial Construction, from its inception to its completion. Access to the construction site will be limited to those involved with the work. Section 5.03 Liens Subordinate to Landlord. Tenant shall not create or permit to be created or to remain, and shall promptly discharge, any lien, encumbrance, or charge levied on account of any mechanic's, laborer's, or materialman's lien which might or does constitute a lien, encumbrance, or charge upon the Premises, or any part thereof, or the income therefrom, having a priority or preference over or ranking on a parity with the estate, rights, or interest of Landlord in the Premises or any part thereof, or the income therefrom. Nothing in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise,to the i6 filing of any lien against the Premises by any contractor, subcontractor, laborer, materialman, architect, engineer, or other Person for the performance of any labor or the furnishing of any materials or services for or in connection with the Premises or any part thereof. Section 5.04 Completion of Construction by Landlord. Tenant's failure to Substantially Complete the Facility by the Completion Date (subject to Unavoidable Delays) shall be deemed to be a material default under this Lease. Tenant covenants and agrees that in the event: (a) Tenant abandons or fails to Substantially Complete the Facility by the Completion Date (subject to Unavoidable Delays); and (b) such failure is not solely the result of Landlord's being in material default under this Lease, Landlord may, at its option (but without any obligation so to do and without prejudice to any other rights Landlord may have under this Lease) complete the construction of the Facility undertaken by Tenant as an expense of the Premises and, as nearly as practicable, according to the Plans previously submitted to the Landlord. Section 5.05 Title to the Improvements and the Personalty.The title to all Improvements and Personalty now or hereafter located on the Premises shall be vested in Tenant until either the termination or expiration of this Lease, at which time all title to and ownership of the Improvements and Personalty shall automatically and immediately vest (without the necessity of any further action being taken by Tenant or Landlord or any instrument being executed and delivered by Tenant to Landlord) in Landlord. Section 5.06 Architects, Engineers, Contractors, Specialists, and Consultants. Tenant shall require any architects, engineers, contractors, subcontractors, specialists, and consultants engaged in ' connection with the construction of the Facility to perform their respective obligations, to be licensed in accordance with the Laws of the State, and to obtain and maintain for a period of two (2)years after the Substantial Completion of the Facility errors and omissions insurance specific for this project and not aggregated with insurance for other undertakings of the insureds. Section 5.07. Permits, Laws, and Ordinances. Tenant shall, at its sole cost and expense, comply and cause its contractors and subcontractors to comply in all material respects with all Laws of all Governmental Authorities which may now or hereafter, from time to time, be established and which are or shall be applicable to Tenant or Landlord as they relate to the Premises and shall take, as otherwise provided herein, all action necessary to cause the Premises to comply in all material respects with all provisions of this Lease applicable to Tenant. Section 5.08 Reports and Information. Tenant shall deliver or cause to be delivered to Landlord copies of all soil reports, surveys, hazardous wastes or toxic materials reports, feasibility studies, and other similar written materials prepared for Tenant with respect to the Premises (collectively, the "Property Reports"). Section 5.09 Substantial Completion of Facility. As soon as practicable after the Substantial Completion of the Facility, Tenant shall furnish to the Landlord: (i) one complete set of final "as-built" Plans and specifications of the completed Improvements; and (ii) a current, accurate, properly labeled, and certified (by the hereafter stated surveyor or engineer), "as-built" survey of the Premises prepared by registered land surveyor or professional engineer depicting to scale the location of the completed Improvements, as the same have been constructed. 7 ARTICLE VI OPERATION OF THE PREMISES Section 6.01 Tenant's Operation of the Premises; Mechanic's liens. Upon completion of construction of the Facility, Tenant shall operate the Premises in accordance with all Laws governing the Premises and this Lease. Tenant shall keep the Premises and this Lease free from any lien or other encumbrance filed or recorded in favor of any mechanic,materialman, architect, or engineer. Section 6.02 Utilities. Tenant shall obtain and pay for all utilities directly from and to the utilities and vendors serving the Premises, including fuel, gas, electric, water and sewer service,trash collection, telephone, and interne service. ARTICLE VII MAINTENANCE, REPAIRS,AND ALTERATIONS Section 7.01 Maintenance and Repair of the Premises. Tenant shall, at all times during the Term of this Lease, at Tenant's sole cost and expense, keep and maintain the Premises, including the Improvements, appurtenances, and every part thereof that may exist on, in, or be made a part of the Premises, in good order and condition, ordinary wear and tear excepted, and make all necessary repairs thereto, interior and exterior, structural and nonstructural, ordinary, and extraordinary, and foreseen and unforeseen. If Tenant fails to keep and maintain the Premises and the Improvements as required by this Lease, Landlord may (but shall not be required to) perform and satisfy same, and Tenant hereby agrees to reimburse Landlord, as Additional Rent, for the reasonable cost thereof promptly upon demand. Tenant shall not permit any material waste of the Premises. Tenant shall keep the entire Premises, including adjoining sidewalks, substantially free of any accumulation of dirt, rubbish, snow, and ice. Unless otherwise expressly provided in this Lease, Landlord is not required to maintain, repair, clean, alter, or improve the Premises, or to provide any services to the Premises. Section 7.02 Alterations. Tenant may, at its sole cost and expense, alter, replace, or remodel any Improvements upon the Premises ("Alterations"),provided that: (a)the foregoing are made in compliance with all Laws; (b)the foregoing are completed in accordance with general accepted construction standards; (c) any remodeling shall not materially diminish the value of Improvements or the Premises; and (d) Tenant shall not allow mechanic's or materialmen's liens to affix to the Premises because of the Alterations. ARTICLE VIII INSURANCE Section 8.01 Insurance. It is the intent of the parties that all risk of loss for the Premises be shifted to insurance to the maximum extent practicable. Accordingly,unless Landlord otherwise agrees in its sole discretion, Tenant shall maintain, or cause to be maintained, insurance covering the risks enumerated below. The premiums for such insurance shall be paid by Tenant. Such insurance shall be written on an occurrence basis unless Landlord otherwise consents in writing, but for errors and omissions insurance issued on a claims-made basis. The policy shall provide that: (a) such insurance shall be primary coverage without reduction or right of offset or contribution on account of any insurance provided by Landlord to itself or its officers, officials, or employees; (b) such insurance shall not be altered or cancelled without advance written notice to Landlord; and (c) such insurance shall 8 name Landlord as an additional insured. The insurance policies purchased by Tenant must be issued by a company authorized to conduct business in the State or by a company acceptable to the Landlord. Section 8.02 Workers' Compensation and Employer's Liability. At all times prior to the expiration or earlier teiiuination of this Lease during any construction or Alteration conducted by or on behalf of Tenant in or on the Premises, Tenant shall maintain, and cause its contractors to maintain, Workers' Compensation Insurance as required by-the Laws of the State. Tenant shall require all subcontractors performing work under this Lease to obtain an insurance certificate showing proof of Workers' Compensation and Employer's Liability Insurance. Section 8.03 General Commercial Liability. At all times during the Term of this Lease, Tenant shall maintain a primary commercial general liability insurance policy covering all claims for bodily injury (including death) and property damage, including loss of use thereof, in an amount not less than$1 million per occurrence and $2 million aggregate. The policy limits may be adjusted by Landlord • - every five (5) years from the Effective Date. The policy or policies must be on an "occurrence" basis unless waived by the Landlord. The commercial general liability insurance policy shall include contractual liability coverage, which.shall be endorsed to state that indemnity obligations specified in this Lease are insured by the carrier. Section 8.04 Delivery of Insurance Certificates. Upon the commencement of this Lease and at each policy renewal date, Tenant shall furnish to Landlord, at the addresses set forth in Section 15.01 of this Lease, insurance certificates or renewal certificates or, if requested by Landlord, certified copies of policies, evidencing all insurance required to be carried by Tenant in accordance with the Lease. Such certificates or policies shall name Landlord as an insured, in accordance with the requirements contained in this Article VIII. The insurance certificate or polices, as applicable, must document that the liability insurance coverage purchased by the Tenant includes contractual liability coverage to insure the indemnity agreement as stated. Section 8.05 Payments for Tenant by Landlord. If Tenant fails to procure the insurance required to be procured by Tenant under this Lease, or fails to pay any premium of insurance, Impositions, or any other sum in this Lease required to be paid by Tenant(other than Rent), Landlord may, after expiration of the applicable cure period, at Landlord's option,procure on behalf of Tenant any such insurance, and pay on behalf of Tenant any such payment or payments as may be necessary. Any sum so paid or expended by Landlord on behalf of Tenant shall immediately be reimbursed and paid by Tenant to Landlord, as Additional Rent. - ARTICLE IX - INDEMNIFICATION Section 9.01 Indemnification. Tenant hereby releases and agrees to indemnify and hold harmless Landlord and its affiliates, and their respective trustees, officers, employees, directors, agents, and consultants (hereinafter collectively referred to as the "Indemnitees") of and from any and all claims, demands, Liabilities, losses, costs, or expenses for any loss including but not limited to bodily injury (including death), personal injury, property damage, expenses, and attorneys' fees, caused by, growing out of, or otherwise happening in connection with this Lease, due to any negligent or intentional act or omission on the part of Tenant, its agents, employees, or others working at the direction of Tenant or on its behalf, or due to the application or violation of any pertinent federal, state, 9 or local laws except for the gross negligence or intentional misconduct of the Indemnitees. This indemnification is binding on the successors and assigns of the Tenant, and this indemnification survives the expiration or earlier termination of the Lease. ARTICLE X ASSIGNMENT; SUBLEASE; NON-DISTURBANCE Section 10.01 Assignment and Sublease. Tenant shall not, without the prior written consent of Landlord, enter into an Assignment or Sublease. If Tenant's interest in this Lease is assigned in violation of the provisions of this Article X, such Assignment shall be void and of no force and effect against • Landlord.Neither any Assignment nor any subleasing, occupancy, or use of the Premises or any part thereof by any Person,nor any collection of Rent by Landlord from any Person other than Tenant, nor any application of any such Rent shall, in any circumstances, relieve Tenant of its obligations under this Lease on Tenant's part to be observed and performed. Tenant shall notify Landlord of its intention to enter into any Assignment or Sublease at least ninety (90) days prior to the proposed effective date of the foregoing. ARTICLE XI DEFAULT; REMEDIES Section 11.01 Events of Default. Each of the following events shall be an event of default ("Event of Default"): (a) If Tenant shall fail to pay any item of Rent, or any part thereof, when the same shall become due and payable and such failure shall continue for thirty (30) days after notice from Landlord to Tenant. (b) If Substantial Completion of the Facility shall not have occurred on or before the Completion Date (subject to Unavoidable Delays) and such failure shall continue for 180 days after notice from Landlord to Tenant. (c) If Tenant shall use the Premises for any use other than the Permitted Use without Landlord's prior written consent. (d) If Tenant shall fail to observe or perform one or more of the other terms, conditions, covenants, or agreements contained in this Lease, and such failure shall continue for a period of thirty (30) days after notice thereof by Landlord to Tenant specifying such. (e) If Tenant shall abandon the Premises; however, the Tenant shall not be deemed to have abandoned the Premises if the Premises become uninhabitable as a result of Landlord's default under this Lease or as a result of a casualty or Condemnation proceeding. (f) If'a levy under execution or attachment shall be made against the Premises and such execution or attachment shall not be vacated or removed by court order, bonding, or otherwise within a period of thirty (30) days. 10 Upon the occurrence of an Event of Default, Landlord may, at its option, give notice to Tenant of the termination of this Lease and, upon ten(10) days after service of such notice,this Lease shall teiiiiinate and shall end with the same force and effect as if that day were the day fixed for the expiration of this Lease.Notwithstanding the foregoing, Tenant shall remain liable for any damages as provided in this Lease and Landlord may enforce any of the remedies provided in Section 11.02. Section 11.02 Remedies. If this Lease is terminated pursuant to Section 11.01, or if Landlord re- enters or obtains possession of the Premises by summary proceedings or any other legal action or proceeding or by any other legal act(without liability or obligation to Tenant or any Subtenant or any other occupant of the Premises), all'the following provisions shall apply: (a) Tenant shall immediately vacate and surrender the Premises to Landlord in good order, condition, and repair, reasonable wear and tear and damage that Tenant is not obligated under the terms of this Lease to repair excepted. (b) -Tenant shall promptly pay to Landlord all Rent payable to the date on which this Lease is terminated or the date on which Landlord re-enters or obtains possession of the Premises. (c) Landlord shall have no duty or obligation whatsoever to relet all or any portion of the Premises or to mitigate its damages hereunder. ARTICLE XII EXPIRATION OR TERMINATION . Section 12.01 Extinguishment of Tenant's Rights. Upon the termination or expiration of this Lease from any cause, all rights and interests of Tenant, and all Persons whomsoever claiming by, through, or under Tenant shall immediately cease and terminate, and the Premises, all Improvements, and all Personalty located thereon, shall thence forward constitute and belong to and be the absolute property of Landlord or Landlord's successors and assigns, without further act or conveyance, and without liability to make such compensation to Tenant or to anyone whomsoever, and free and discharged from all and every lien, encumbrance, claim, and charge of any character created or attempted to be created by Tenant at any time. Tenant agrees, at the termination of this Lease,to surrender unto Landlord, all and singular the Premises with the then-existing Improvements constructed and located thereon and therein, in the same condition as when the construction of Improvements was completed, only normal wear and tear excepted. Section 12.02 Prepaid Items Assigned. Upon the expiration of the Term of this Lease, or upon the prior termination of this Lease from any cause, all expense items prepaid by Tenant with respect to constructing, operating, maintaining, and protecting the Premises, including, but not limited to, prepaid insurance premiums, and any tax and utility deposits, shall inure to the benefit of and become the property of Landlord, and to this extent Tenant does hereby transfer, assign, and convey any such prepaid expense items to Landlord. - ARTICLE XIII CONDEMNATION 11 Section 13.01 Total Taking. (a) If all or substantially all the Premises shall be taken by the exercise of the right of Condemnation, eminent domain, or by agreement among Landlord, Tenant, and those authorized to exercise such right, the Term shall terminate on the Date of Taking. (b) If all or substantially all the Premises shall be taken or condemned as provided in Section 13.01(a), the award, awards or damages in respect thereof shall be apportioned to Landlord. Each of the parties shall execute any and all documents that may be reasonably required in order to facilitate collection of such awards. ARTICLE XIV ESTOPPEL CERTIFICATES Section 14.01 Estoppel Certificates. Landlord and Tenant shall execute, acknowledge, and deliver to the other promptly upon request, a certificate certifying as to the following: (a) That this Lease is unmodified and in full force and effect (or, if there have been modifications,that this Lease is in full force and effect, as modified, and stating the modifications). (b) The dates through which the Rent under this Lease has been paid. (c) The amount of the Rent then payable. (d) That no notice has been given by Landlord to Tenant of any Event of Default under this Lease that has not been cured and to the best of its knowledge and belief no Event of Default exists (or, if there has been any notice given or an Event of Default exists, describing the same). Certificates from Landlord and Tenant pertaining to the same matters may be relied upon by any prospective assignee of an interest under this Lease. 12 ARTICLE XV NOTICES Section 15.01 Notices. Until a different address is provided in a notice to the other party, all notices, demands or requests made by either party to the other which are required or permitted by the provisions of this Lease shall be in writing and shall be deemed sufficiently given if: (a)-delivered by hand (against a signed receipt); (b) mailed by U.S. certified or registered mail, return receipt requested, postage prepaid; or (c) sent by nationally recognized commercial overnight delivery service at the following address: Landlord: Southland Casino Hotel 1550 Ingram Blvd. • West Memphis, AR 72301 Attn: General Manager Delaware North Companies, Inc. with a copy to: Attn: General Counsel 250 Delaware Ave. Buffalo,NY 14202 Email to legalnotices@delawarenorth.com Tenant: City of West Memphis 205 S Redding West Memphis, AR 72301 Notwithstanding anything contained in this Lease to the contrary, any'notice required to be given by Landlord or Tenant hereunder shall be deemed to be effective as of the date such notice is received or refused as reflected on said notice. ARTICLE XVI SUBMISSION OF MATTERS TO LANDLORD FOR APPROVAL Section 16.01 Submission of Matters to Landlord for Approval. Any review by Landlord of any matter submitted to Landlord is for Landlord's own convenience and purpose only. By undertaking such review, Landlord shall not have nor have any liability to Tenant or any other person, including, without limitation, the Tenant's insurers and lenders. ARTICLE XVII COMPLIANCE WITH LAWS; ENVIRONMENTAL LAWS Section 17.01 Compliance with Laws. Tenant warrants and agrees that, during the entire Term of this Lease and at its expense: (a) Tenant shall conduct Tenant's business and activities on or related to the Premises only in full compliance with all applicable Laws; (b) Tenant shall neither do or permit any 13 act or omission which could cause the Premises and Tenant's use thereof to fail to be in full compliance with all applicable Laws; and(c) Tenant shall neither do or permit any act or omission which could cause any Liabilities to exist or be asserted against Landlord or the Premises. Without limiting the foregoing, Tenant shall promptly cure all violations of Law for which Tenant has received notice or a public notice of violation has been issued and pay all fines; penalties, interest, or other costs imposed by any Governmental Authorities in connection with any violation or requirement of any Law. Section 17.02 Environmental Laws. (a) Tenant warrants and agrees that, during the entire Term of this Lease and at its expense, Tenant shall comply with all Environmental Laws. Such compliance shall include Tenant's obligation to take Remedial Action when required by such Environmental Laws and to pay all fines,penalties, interest, or other costs imposed by any Governmental Authorities in connection with any violation or requirement of any Environmental Law. (b) Tenant shall notify Landlord promptly in writing if: (i) Tenant becomes aware of the presence or Release of any Hazardous Material at, on, under, over, emanating from, or migrating to the Premises in any quantity or manner which could reasonably be expected to violate in any material respect any Environmental Law or give rise to any material Liability or the obligation to take Remedial Action; or(ii) Tenant receives any written notice, claim, demand, request for information, or other communication from a Governmental Authority regarding the presence or Release of any Hazardous Material at, on, under, over, emanating from, or migrating to the Premises. (c) Tenant shall take and complete any Remedial Action with respect to the Premises in full compliance with all Laws and shall, when such Remedial Action is completed, submit to Landlord written confirmation from the applicable Governmental Authority that no further Remedial Action is required. (d) Tenant shall provide Landlord with copies of all tests, studies, notices, claims, demands, requests for information, or other communications relating to the presence or Release of any Hazardous Materials at, on, under, over, emanating from, or migrating to the Premises. ARTICLE XVIII BROKERS Section 18.01 Brokers. Landlord and Tenant each represent and warrant to the other that it has not dealt with any broker in connection with this Lease. ARTICLE XIX NO IMPAIRMENT OF LANDLORD'S TITLE Section 19.01 No Impairment of Landlord's,Title. Tenant shall not permit the Premises to be used by any Person at any time or times during the Term of this Lease in such a manner as would impair Landlord's title to or interest in the Premises or in such a manner as would cause a claim or claims of adverse possession, adverse use,prescription, or other similar claims of, in, to, or with respect to the Premises. 14 ARTICLE XX QUIET ENJOYMENT Section 20.01 Quiet Enjoyment. Landlord covenants and agrees that, if and so long as Tenant observes and performs each and every covenant, agreement, provision, and condition of this Lease on the part of Tenant to be observed and performed throughout the Term of this Lease, Tenant may peaceably and quietly enjoy the Premises without hindrance or molestation of Landlord or any Person acting through Landlord. ARTICLE XXI LIMITATION OF LANDLORD'S LIABILITY • Section 21.01 Limitation of Landlord's Liability. (a) If Landlord sells, assigns; or otherwise transfers (whether by operation of Law or otherwise) all or part of its interests in the Premises or this Lease: (i) Landlord shall be relieved of all obligations and Liabilities of Landlord under this Lease accruing after the effective date of such transfer; and(ii) the transferee shall be deemed to have assumed all Landlord's obligations and Liabilities under this Lease effective from and after the effective date of the transfer. (b) Landlord, its partners, members, shareholders, officers,directors, and principals, whether disclosed or undisclosed, shall have no personal liability under or in connection with this Lease. Tenant agrees that it shall look solely to Landlord's interest in the Premises and this Lease for the satisfaction of Tenant's remedies or to collect any judgment requiring payment of any money by Landlord. ARTICLE XXII EXTENSION OPTIONS Section 22.01 Option to Extend. Landlord and Tenant may agree to extend the Term of this Lease at any time for any period of time by written amendment. ARTICLE XXIII MISCELLANEOUS Section 23.01 Landlord and Tenant Representations and Warranties. Landlord and Tenant each represent and warrant that: (a) This Lease has been duly authorized, executed, and delivered by such party and constitutes the legal, valid, and binding obligation of such party. (b) There are no actions, suits, or proceedings pending or,to the knowledge of such party, threatened against or affecting such party, at law or at equity or before any Governmental Authority that would impair such party's ability to perform its obligations under this Lease. 15 • (c) The consummation of the transactions hereby contemplated and the performance of this Lease will not result in any breach or violation of, or constitute a default under, any other lease or financing agreement. Tenant agrees that, if it is not an individual, it shall provide to Landlord, upon Landlord's request, evidence that the execution and delivery of this Lease has been duly authorized by Tenant. Section 23.02 No Waiver; Cumulative Rights of Landlord. (a) No failure of Landlord to exercise any power given Landlord hereunder or to insist upon strict compliance by Tenant with its undertakings, duties, and obligations hereunder, and no custom or practice of the parties hereto at variance with the provisions hereof shall constitute a waiver of Landlord's right to demand exact compliance with the provisions contained in this Lease. (b) All rights,powers, and privileges conferred herein upon both parties hereto are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. . • Section 23.03 Provisions Are Binding Upon Successors and Assigns. It is mutually covenanted, understood, and agreed by and between the parties hereto, that each of the provisions of this Lease shall apply to, extend to, be binding upon, and inure to the benefit or detriment of not only the parties hereto, but also the legal representatives, successors, and assigns of Landlord and Tenant hereto, and shall be deemed and treated as covenants running with the Premises during the Term of this Lease. Whenever a reference to the parties hereto is made, such reference shall be deemed to include the legal representatives, successors, and assigns of said party,the same as if in each case expressed. Section 23.04 Applicable Law. This Lease shall be governed, construed,performed, and enforced in accordance with the Laws of the State of Arkansas. Section 23.05 Waiver of Jury Trial. LANDLORD AND TENANT EACH WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANT'S USE OR OCCUPANCY OF THE PREMISES. Section 23.06 Interpretation and Construction. This Lease shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any captions or headings used in this Lease are for convenience only and do not define or limit the scope of this Lease. The singular of any term, including any defined term, shall include the plural and the plural of any term shall include the singular. Whenever the singular or plural number, or masculine or feminine gender is used in this Lease, it shall equally apply to, extend to, and include the other. • 16 Section 23.07 Severability. In the event any provision, or any portion of any provision of this Lease is held invalid, the other provisions of this Lease and the remaining portion of said provision, shall not be affected thereby and shall continue in full force and effect. • Section 23.08 Time Is'of the Essence. All time limits stated in this Lease are of the essence of this Lease. Section 23.09 No Agency.Nothing in this Lease is intended, or shall in any way be construed, so as to create any form of partnership or agency relationship between the parties. The parties hereby expressly disclaim any intention of any kind to create any partnership or agency relationship between themselves. Nothing in this Lease shall be construed to make either party liable for any of the indebtedness of the other, except as specifically provided in this Lease. Section 23.10 Entire Agreement. The making, execution, and delivery of this Lease by Tenant has not been induced by any representations, statements, covenants, or warranties by Landlord except for those contained in this Lease. This Lease constitutes the full, complete, and entire agreement between and among the parties hereto; no agent, employee, officer, representative, or attorney of the parties hereto has authority to make, or has made, any statement, agreement, representation, or contemporaneous agreement, oral or written, in connection herewith modifying, adding to, or changing the provisions of this Lease. No amendment of this Lease shall be binding unless such amendment shall be in writing, signed by both parties hereto and attached to, incorporated in and by reference made a part of this Lease. Section 23.11 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURE PAGE FOLLOWS] 17 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the Effective Date. LANDLORD: • SOUTHLAND RACING CORPORATION By: Name: Title: TENANT: CITY OF WEST MEMPHIS By: 7/a4...o Name: Title: • • 18 • • • EXHIBIT A—The Land is defined as the area below shaded in red. '''-'---- '6;,'-•.',-,...fi-!- „,,...-:- .- - _id, -. --, -. „ -i,-,k .-•. - ,--'ii4i;,-:,.7",•".;:A .771'• '''-'!•-•'.:.•:.,!.• . .„.•-''',-;"" ;-• iiie• -.t-'•-,,; --- ,•'..'. , ••rt:; ' ' • 1- • . ..".,-.."••.::,..:., 1•!. • -- "Wig 1.- ••••••'-'";";.1 •';'•11'••"•- -'- -'•-•- •••-r;r'. -. 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