HomeMy WebLinkAboutContract 33411 CITY SECRETARY, ( (
CONTRACT INO. l
LEASE AGREEMENT AND OPTION TO PURCHASE
THIS LEASE AGREEMENT(the "Lease") is made and entered into as of the 1 st day of November,
2005, by and between THE CITY OF FORT WORTH, a home rule municipal corporation organized under
the laws of the State of Texas (the "Landlord") and BLG NORTHSIDE DEVELOPMENT, LP, a Texas
limited partnership(the"Tenant").
WITNESSETH:
In consideration of the mutual covenants and agreements contained herein, Landlord and Tenant
covenant and agree as follows:
ARTICLE I-BASIC LEASE PROVISIONS
1.1 Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the premises shown on Exhibit 1.1 hereto including all improvements (the "Improvements")
thereon as same may be amended from time to time(the"Leased Premises").
1.2 Possessory Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the premises shown on Exhibit 1.2 hereto (the "Possessory Premises"), provided, however, that
Tenant shall have the right to control, as expressly set forth in this Lease, but not occupy the Possessory
Premises. The Leased Premises and Possessory Premises are collectively referred to herein as the
"Premises."
1.3 Adjustment of Leased Premises. Beginning on the Commencement Date (as defined
below) and continuing thereafter, Tenant shall have the right, in Tenant's sole discretion, from time to time,
to increase the square footage of the Leased Premises (and correspondingly decrease the square footage of
the Possessory Premises) by providing written notice thereof to Landlord. In order to exercise its right to
increase the square footage of the Leased Premises, Tenant shall cause a licensed surveyor or engineer to
prepare an accurate survey of the additional premises at Tenant's sole cost and expense, establishing the
boundaries of the additional premises and showing the location of all easements and encroachments, if any,
affecting the additional premises. Such survey shall show the square footage of the additional premises, to
the &arest square foot. Tenant shall provide Landlord with a copy of such survey. Once the survey has
been prepared, Tenant shall provide written notice to Landlord of its election to include such additional
premises within the Leased Premises and the Leased Premises pursuant to this Lease and the Base Rent
payable herewith shall be modified to reflect the inclusion of the additional premises. Correspondingly, the
Possessory Premises and the Possessory Fee payable hereunder shall be modified to reflect the exclusion of
the additional premises. The Base Rent (as defined below) will be adjusted to account for such additional
square footage at the same per square foot Base Rent as being paid by Tenant for the then-existing Leased
Premises. Correspondingly, the Possessory Fee (as defined below) will be adjusted to account for the
removal of such square footage from the Possessory Premises.
1.4 Permitted Uses. Tenant may use and occupy the Leased Premises for parking for baseball
games, Special Events, and Public Events in and around LaGrave Field and on the Leased Premises and for
any other lawful purpose agreed to in advance by Landlord, such approval not to be unreasonably withheld
or delayed. Tenant may not use or occupy the Possessory Premises during the Term of this Lease, except as
agreed to in writing by Landlord. Landlord agrees not to use or occupy or permit the use or occupancy of
the Possessory Premises during the Term of this Lease except for Public Events (as defined below) or for
City purposes deemed necessary by the City Manager and that do not interfere with Tenant's use of the
Leased Premises including use by the County pursuant to the Interlocal Agreement(as defined b
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1.5 Lease Term.
A. Initial Term. The initial term of this Lease (the "Initial Term") shall commence on
November 1, 2005 (the "Commencement Date") and end October 31, 2011 (the "Expiration Date"). Within
ten (10) days after the Commencement Date, Tenant and Landlord shall execute and deliver to each other a
completed Commencement Date Notice in the form attached hereto as Exhibit 1.5.A.
B. Option Term. Provided that it is not then in default under any of the terms and
conditions of the Lease, Tenant shall have the option to extend the term of this Lease for two (2) additional
periods of six (6)years each by written notice to Landlord no later than one hundred eighty (180)days prior
to the Expiration Date or the expiration of the Option Term as applicable as set forth on Exhibit 1.5.13.
hereto.
C. Definition of Term. References in this Lease to the "Term" of this Lease shall
mean the Initial Term and any Option Term.
ARTICLE H-RENT
2.1 Base Rent for Leased Premises During Initial Term. During the first three (3) years of the
Initial Term, Tenant shall pay to Landlord, at the address designated herein for notices to Landlord or such
other address as Landlord may direct in writing, base rent(the "Base Rent") in the amount of TEN CENTS
($0.10) per square foot of the Leased Premises per year payable in equal monthly installments in advance
beginning on the Commencement Date and continuing on the first day of each month thereafter during the
Term of this Lease. The Base Rent during the Initial Term will be adjusted on the third (P) anniversary
date of the Commencement Date to an amount equal to the CPI Adjustment; provided, however, that in no
event will the Base Rent be decreased due to the CPI Adjustment. The CPI Adjustment shall be equal to the
Base Rent then in effect multiplied by a fraction, the numerator of which shall be the CPI Index for the
month prior to the month in which the adjustment is being made and the denominator of which is the index
number of the first month after the Commencement Date. The CPI Index as used herein refers to the
Consumer Price Index for all urban consumers (for Dallas/Fort Worth, Texas, unadjusted for all items) of
the Bureau of Labor Statistics of the United States Department of Labor. If the CPI Index is discontinued
during the Term of this Lease, the adjustment called for by this section of the Agreement shall be based on
another index or other statistics published by the Bureau of Labor Statistics that are most nearly comparable
to the CPI Index. Base Rent during an Option Term shall be calculated in accordance with Exhibit 1.5.13.
hereto. Any rent or other sums due from either party hereto to the other in accordance with the terms of this
Lease which are not paid within thirty (30) days after the date such sum became due and owing shall accrue
interest at the rate of eight percent(8%) per year from the date due until paid.
2.2 Possessory Fee. In addition to the Base Rent, throughout both the Initial Term and any
Option Term, Tenant shall pay to Landlord, at the address designated herein for notices to Landlord or such
other address as Landlord may direct in writing, a possessory fee (the "Possessory Fee") in the amount of
SIX CENTS ($0.06) per ten square feet of the Possessory Premises per year payable in equal monthly
installments in advance beginning on the Commencement Date and continuing on the first day of each
month thereafter during the Term of this Lease, subject to adjustment as set forth below. The Possessory
Fee shall be an amount equal to the City of Fort Worth property taxes that would be attributable to the
Possessory Premises if Tenant owned the Possessory Premises in fee simple based on a per square foot basis
per the Tarrant Appraisal District ad valorem tax valuation. The Possessory Fee shall be adjusted annually
on each anniversary of the Commencement Date based upon the most recent Tarrant Appraisal District
valuation for the Possessory Premises.
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2.3 Commencement Payment. Within seven (7) days of the execution of this Lease, Tenant
shall pay to Landlord a commencement payment (the "Commencement Payment") in the amount of
$16,691.94, which is an amount equal to the Base Rent and Possessory Fee that would have been paid for
the period between May 1, 2005 through October 31,2005 if this Lease had been in effect during such time.
2.4 Payment Information. The Base Rent and the Possessory Fee are collectively referred to
herein as the "Rent." Tenant shall make its Rent payments using the following information, or such other
information as Landlord may from time to time designate for this purpose in writing:
Payee's name (who the check should be made payable to): City of Fort Worth
Payee's address: Revenue Office
1000 Throckmorton Street
Fort Worth, Texas 76102
Contact Person: Director, Economic and Community Development Dept.
Phone Number: (817) 392-6103
2.5 Real Property Taxes. Tenant shall have the right to challenge, at its sole expense, (i) the
Tarrant Appraisal District valuation for the Premises, or any portion thereof, or (ii) the determination to
assess real property taxes for the Premises, or any portion thereof, and Landlord agrees to provide whatever
assistance Tenant may reasonably require. Upon the request of Tenant, and if required to preserve the right
to challenge such appraised valuation or determination to assess taxes for the Premises or any portion
thereof, Landlord will file a protest in its name or file such other documentation as may be required in order
to preserve the right to challenge such valuation. In the event that it is ever determined during the Term that
taxes are to be assessed for the Premises or any portion thereof, the Landlord and Tenant agree that Tenant
shall be responsible for paying all such assessed taxes and shall be entitled to receive a credit for the City of
Fort Worth portion of such taxes (but not taxes paid to taxing units other than the City of Fort Worth),
compounded at an annual rate of four percent (4%) per annum from the date such payments are made by
Tenant as set forth in Section 12.2 hereof.
ARTICLE III -LANDLORD'S OBLIGATIONS
3.1 Quiet Enjoyment. Landlord covenants and agrees that upon Tenant's paying Rent and
performing all of the other obligations of Tenant under this Lease, Tenant shall peaceably and quietly have,
hold and enjoy the Premises hereby demised, subject to the terms and conditions of this Lease.
ARTICLE IV-TENANT'S OBLIGATIONS
4.1 Maintenance, Repair and Security of the Premises. Tenant shall, at Tenant's expense,
provide ordinary and routine maintenance for the Premises and the Improvements, including maintenance of
the parking lots and pavement surface, striping, maintaining the light standards including replacing bulbs,
and maintaining the fencing. Tenant, at Tenant's expense, will also provide normal and routine security for
the Premises.
4.2 Extraordinary Maintenance, Security, or Improvements to Premises. Tenant shall, at
Tenant's expense, also provide extraordinary maintenance and security for the Premises, as may be
necessary, as reasonably agreed to by Landlord and Tenant. For purposes of this Lease, extraordinary
maintenance and security are such maintenance and security as would not reasonably be required or
expected under the circumstances based upon this Lease and that are specifically requested by Landlord.
Landlord agrees not to unreasonably request such extraordinary maintenance and/or security and Tenant
agrees not to unreasonably refuse to provide such extraordinary_ maintenance and/or security. In addition,
Tenant, at Tenant's expense, agrees to make improvements and structural repairs to the Premis
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reasonably necessary and as reasonably agreed to between Landlord and Tenant. Such items (i.e.,
Improvements made to the Premises)shall become a part of the Improvements for all purposes herein.
4.3 Utilities. Tenant shall be responsible for the payment of all utility services which it uses or
consumes at the Leased Premises that are not separately metered, including, without limitation, electricity,
gas, water and telephone. If the Leased Premises are separately metered, Tenant may elect to contract with
a provider of electricity of its choice unless prohibited by any utility provider agreement to which Landlord
is a party.
4.4 Alterations; Trade Fixtures.
A. Tenant shall not permit any lien to attach to the Premises as a result of its use of
the Premises. If any such lien shall be filed against the Leased Premises as a result of Tenant's
construction or installation of improvements at the Leased Premises, then Tenant shall, within thirty (30)
days after the filing thereof, commence to cause the same to be discharged of record by payment, deposit,
bond, order of a court of competent jurisdiction or otherwise. Nothing in this Lease shall be construed as
constituting the consent or request of Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, materialman, architect, surveyor or engineer for the performance of
any labor or the furnishing of any materials or services for or in connection with the Leased Premises.
Notice is hereby given that Landlord shall not be liable for any labor or material or services furnished or
to be furnished to Tenant upon credit, and that no mechanic's or other lien for such labor, materials or
services shall attach to or affect the fee or reversionary or other estate or interest of Landlord in the
Leased Premises or this Lease.
B. All fixtures and/or equipment of whatsoever nature as shall have been installed on
the Leased Premises by Tenant after the Commencement Date, whether permanently affixed thereto or
otherwise, shall continue to be the property of Tenant, and may be removed by Tenant at its option at the
expiration or termination of this Lease; rop vided, however, that Tenant shall at its own expense repair any
injury to the Leased Premises resulting from such removal. Notwithstanding the preceding, however, in the
event that Tenant has received a credit pursuant to Section 12.2 of this Lease for the amount equal to Tenant
expenses attributable to the Improvements, such Improvements shall be the property of Landlord and may
not be removed by Tenant without the prior written consent of Landlord.
4.5 Tenant's Compliance with Laws. Tenant shall comply with all Federal, State and local
statutes, laws, ordinances and regulations applicable to its occupancy of the Leased Premises and the
conduct of its business thereon, other than compliance obligations for which Landlord is responsible
hereunder. Further, Tenant shall comply with all Federal, State, and local statutes, laws, ordinances, and
regulations applicable to its activities on the Possessory Premises, other than compliance obligations for
which Landlord is responsible hereunder.
4.6 Entry by Landlord. Tenant shall permit Landlord or its agent to enter upon the Premises
upon reasonable prior notice during usual business hours(or at any time, and without notice, if necessary in
connection with an emergency or pursuant to Landlord's ordinary police powers) to examine the condition
of same and to make any necessary repairs to the Premises or to perform any work that may be necessary by
reason of Tenant's default under the terms of this Lease.
4.7 Return of Premises. Tenant shall surrender the Premises at the expiration or earlier
termination of the term of this Lease, in as good of condition as received or improved, reasonable wear and
tear, condemnation and casualty excepted. Upon expiration or earlier termination of the Lease, Tenant
shall terminate all service, utility, maintenance and supply contracts relating to the operation of the
Premises that are held by Tenant. Tenant shall be entitled to the return of any deposit(s) posted by it with
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any utility company and Landlord shall notify each utility company serving the Premises to terminate
Tenant's account, effective on the Expiration Date.
ARTICLE V—ASSIGNMENT AND SUBLETTING
5.1 Assignment and Subletting. Tenant shall not assign this Lease or its Option (as defined
below) rights under this Lease without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Tenant may enter into an assignment or
sublease without obtaining Landlord's consent with any Affiliate (for purposes of this Lease, "Affiliate"
means an entity which it controls, is controlled by or with which it is under common control) provided that
Landlord provides written notice of such intent at least thirty(30)calendar days prior to the effective date of
the assignment. Any assignment to which Landlord consents shall effect a release of Tenant from its
responsibility for the obligations of Tenant under this Lease from and after the effective date of assignment.
Tenant shall remain liable for all breaches and obligations occurring prior to the effective date of
assignment. Landlord may assign this Lease without the prior written consent of Tenant. Any assignment
to which Tenant consents shall affect the release of Landlord from its responsibility for the obligations of
Landlord under this Lease from and after the effective date of such assignment.
ARTICLE VI—SPECIAL EVENTS AND PUBLIC EVENTS
6.1 Special Events.
A. Except as otherwise specifically provided by this Lease, Tenant shall have the sole
and exclusive right to permit the use of the Leased Premises by third parties (the "Special Event Sponsor")
for certain special events, including but not limited to concerts, festivals, meetings, rallies, automobile
shows, motorcycle shows, parade staging and ending points, flea markets, swap meets, and other
entertainment activities ("Special Events"). Tenant will have the exclusive right to allow Special Events on
the Leased Premises and will retain all economic benefit(if Tenant, in its sole discretion, determines that it
is desirable to charge any such third party for the use of the Leased Premises for such Special Event)
including fees, commissions, sales proceeds and any other type of economic remuneration resulting
therefrom. Tenant has the right to choose all vendors and/or concessionaires providing services during the
Special Events. Notwithstanding anything to the contrary contained herein, those events identified on
Exhibit 6.1.A. shall not be permitted to be conducted on the Leased Premises. Exhibit 6.1.A. may be
amended from time to time during the Term by the mutual agreement of Landlord and Tenant. Landlord
will not unreasonably request any revisions to Exhibit 6.1.A. and will provide Tenant with specified reasons
that it believes that the particular type of event is not acceptable on the Leased Premises and Tenant agrees
not to unreasonably deny its consent for such event to be added to Exhibit 6.1.A.
B. All such Special Events shall be conducted in accordance with the Special Events
Policy as described on Exhibit 6.1.B.
6.2 Public Events. Landlord shall have the right to permit the use of the Premises by third
parties for certain public events, including but not limited to charitable events, benefits or other causes that
the City reasonably believes are beneficial for the culture, enjoyment, or education of the public, as
mutually agreed by Tenant and Landlord ("Public Events"), at no charge to Landlord or the sponsor of the
Public Event (the "Public Event Sponsor") other than Tenant's necessary or actual expenses directly related
to the Public Event, including, but not limited to, insurance, maintenance, security, and clean up of the
Premises attributable to the Public Event unless otherwise mutually agreed to by Tenant and Landlord or the
Public Event Sponsor. Tenant shall not charge City or the Public Event Sponsor or the Public Event
participants, supporters, or fans for parking on or use of the Premises and Tenant will provide notice tQ the
Public Event Sponsor of this Agreement not to charge for parking, unless otherwise mu all �a ;;o
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writing to by City or Public Event Sponsor and Tenant. Landlord agrees not to unreasonably request an
event to be considered as a Public Event and Tenant agrees not to unreasonably withhold its consent to a
Public Event on the Premises. Landlord or the Public Event Sponsor shall have the ability to determine the
vendors and concessionaires that are entitled to provide services at the Public Event so long as such
products and/or services (i)are provided free of charge or(ii) not less then seventy-five percent(75%)of the
gross revenue from the product or services sold by each such vendor and/or concessionaire, less direct
expenses, is paid to the Public Event Sponsor and provided, further, that such vendors and/or
concessionaires comply with Tenant's reasonable requirements applicable to vendors and/or
concessionaires on the Premises. Additionally, Tenant shall have the right to choose vendors and/or
concessionaires to provide services during the Public Event so long as such Tenant selected vendors and/or
concessionaires do not adversely affect or interfere with the purpose of the Public Event or sell the same
products and/or services as those sold by the Landlord's or Public Event Sponsor's selected vendors and/or
concessionaires. Such Tenant selected vendors and/or concessionaires may include Tenant. Tenant will be
entitled to retain all economic benefits from its chosen vendors and/or concessionaires at the Public Event.
6.3 Scheduling of Special Events and Public Events. Tenant shall be solely responsible for
scheduling of Special Events and Public Events on the Premises. Tenant shall designate a scheduling
coordinator by written notice to Landlord and all inquiries regarding Special Events and Public Events will
be directed to such scheduling coordinator for scheduling. This includes all inquiries received by Landlord
for Special Events or Public Events. Tenant shall provide regular updates to Landlord's Public Events
Program Manager of Special Events and Public Events scheduled for the Leased Premises and/or Premises.
ARTICLE VII-GENERAL INDEMNITY AND INSURANCE
7.1 Tenant's Indemnity. Tenant shall indemnify and hold Landlord harmless from and against
any loss, damage, liability and expense (including, without limitation, court costs, and reasonable attorneys'
fees), to the extent caused by a negligent act or willful misconduct on the part of Tenant, its employees, or
the negligence of the Public Event Sponsor or Special Event Sponsor.
7.2 Landlord's Indemnity. Landlord shall release and hold harmless Tenant from and against
any loss, damage, liability and expense (including, without limitation, court costs, and reasonable attorneys'
fees)to the extent caused by a negligent act or willful misconduct on the part of Landlord or its employees.
7.3 Tenant's Insurance. During the term hereof, Tenant shall obtain and maintain insurance
coverage as described below.
A. Tenant shall obtain commercial general liability insurance with respect to liability
for death, bodily injury and property damage resulting from the use, occupancy and maintenance of the
Premises by Tenant, its employees and agents in the amount of One Million Dollars ($1,000,000)combined
single limit per occurrence,with a reasonable self-insured retention or deductible amount. Landlord shall be
named as an additional insured under such insurance.
B. Tenant shall also obtain property insurance in an amount equal to the
replacement cost of Improvements to the Premises. Tenant shall be the loss payee and Landlord shall be
named as an additional insured under such insurance.
C. In addition, if the nature of Tenant's use or business operations on the Leased
Premises are such as to place any or all of its employees under the coverage of local workers'
compensation or similar statutes, Tenant shall also keep in force, at its expense, as long as this Lease
remains in effect, workers' compensation or similar insurance affording the required statutory coverage
and containing the requisite statutory limits.
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7.4 General Requirements with Respect to Tenant's Insurance. At least twenty (20) days prior
to the expiration of any insurance policy provided by Tenant under the terms of this Lease, Tenant shall,
upon written request from Landlord, furnish to Landlord a certificate of insurance evidencing such
coverage. Such certificate shall provide that the policy may not be canceled or modified without at least
thirty (30) days prior written notice to such other party. All insurance policies shall be issued by companies
authorized to do business under the laws of the State of Texas and shall be in form satisfactory to Tenant
and Landlord.
7.5 Insurance Requirements for Public Events and Special Events. All sponsors,
concessionaires, and vendors for Special Events or Public Events located on the Premises shall be required
to obtain commercial general liability insurance with respect to liability for death, bodily injury, and
property damage in an amount at least equal to $1,000,000.00 combined single limit per occurrence, with a
reasonable self-insured retention or deductible amount. Landlord and Tenant shall be named as an
additional insureds under such insurance. Further, Landlord and Tenant may require such additional forms
and/or amounts of insurance as Landlord and Tenant may mutually agree.
ARTICLE VIII - DEFAULT
8.1 Default by Tenant.
A. Each of the following events is hereby declared an event of default:
(1) Failure of Tenant to pay any installment of Base Rent on or before the 10th
day of the month and the continuation of such failure for a period of thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however, that Tenant shall be
entitled to only three (3) such written notices during the Initial Term or an Option Term;
(2) Failure of Tenant to observe and perform any of its other covenants,
conditions or agreements under this Lease for a period of thirty (30) days after written
notice from Landlord to Tenant specifying such failure and requesting that it be remedied;
or, in the case of any such default which cannot with due diligence be cured within such
thirty (30) day period, failure of Tenant to commence to cure the same within such thirty
(30) day period and thereafter diligently pursue the curing of such default;
(3) Filing of a petition in bankruptcy, or adjudication as a bankrupt or
insolvent; or its filing of a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute,
law or regulation; or its filing of an answer admitting or not contesting the material
allegations of the petition against it in any such proceeding; or its seeking or consenting to
or its acquiescence in the appointment of any trustee, received or liquidator of Tenant or
any material part of its properties; or
(4) Failure of Tenant within sixty (60) days after the commencement of any
proceeding against it seeking its adjudication as a bankrupt or insolvent, or any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, to have such proceeding
dismissed, or within ninety (90) days after the appointment without the consent or
acquiescence of Tenant of a trustee, receiver or liquidator of Tenant or of any material part
of its properties,to have such appointment vacated.
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B. Upon the occurrence of such an event of default, Landlord may:
(1) terminate this Lease by giving notice thereof to Tenant. In such event, the
Term of this Lease shall cease as of the date of such notice of termination, and any and all
right, title and interest of Tenant hereunder shall likewise cease without further notice or
lapse of time, as fully and with like effect as if the entire term of this Lease had elapsed.
Tenant shall remain responsible for all Rent due up to the date of such termination.
Further,Tenant may not remove any of the Improvements until such Rent has been paid.
8.2 Default by Landlord. If Landlord commits a default in the performance of any terms,
covenants or conditions of this Lease, and such default shall not have been remedied within thirty (30) days
after written notice by Tenant to Landlord specifying such default and requiring it to be remedied, then
Tenant, at its election, may either remedy the default and receive a full credit for the cost of the remedy
(including its reasonable attorney's fees) on subsequent payments due to Landlord under this Lease or
terminate this Lease. Notwithstanding the foregoing, in the case of any such default which cannot with due
diligence be cured within such thirty (30) day period, if Landlord has in good faith commenced attempting
to remedy the default complained of within such thirty (30) day period and proceeds with diligence to cure
such default, the time for Landlord to remedy such default shall be extended for such period as may be
reasonably necessary to do so.
8.3 Remedies Not Exclusive. Except as otherwise provided in this Lease, no remedy herein
conferred upon or reserved to Landlord or Tenant is intended to be exclusive of any other remedy, and every
remedy shall be cumulative and in addition to every other remedy herein or now or hereafter existing at law,
in equity or by statute. No delay or failure to exercise any right or power accruing upon a default hereunder
shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or
power may be exercised from time to time and as often as may be deemed expedient.
ARTICLE IX—ENVIRONMENTAL
9.1 Tenant's Environmental Indemnity. Tenant shall indemnify Landlord and hold Landlord
harmless from any cost, liability or expense imposed upon Landlord under any local, state or federal law,
ordinance, statute, rule, regulation, or judicial or administrative order because of or arising out of any
environmental condition at, in, on, or under the Premises due to the actions of Tenant or Tenant's
employees.
9.2 Landlord's Environmental Indemnity. Except for Tenant's obligations as set forth in
Section 9.1 above, Landlord shall release Tenant and hold Tenant harmless from any cost, liability or
expense imposed upon Tenant under any local, state or federal law, ordinance, statute, rule, regulation, or
judicial or administrative order because of or arising out of any environmental condition at, in, on, or under
the Premises that was not caused by the actions of Tenant or Tenant's employees. Tenant shall have no
responsibility for any environmental conditions at, in, on, or under all portions of the Premises, other than
environmental conditions caused by Tenant, its officers, agents, servants, employees, contractors,
subcontractors, licensees and invitees; provided, however, upon Tenant's purchase of all or a portion of the
Premises as provided for in this Lease, Tenant shall indemnify Landlord and hold Landlord harmless from
any cost, liability, or expense imposed upon Landlord due to the environmental conditions at, in, on, or
under the portion of the Premises acquired by Tenant, regardless of the cause of such conditions or the time
in which such conditions arose except to the extent caused by Landlord.
9.3 Survival. The indemnifications of this Article IX shall survive the expiration or
termination of this Lease.
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9.4 Voluntary Cleanup Program. The parties hereto acknowledge that certain Voluntary
Cleanup Program Agreement entered into on or around June 5, 2001 by and among Landlord, Cytec
Industries, Inc., a Delaware corporation, and Texas Independent Baseball, LLC, a Texas limited liability
company (the "VCP"). Landlord will diligently perform all of its obligations under the VCP, a copy of
which is attached hereto as Exhibit 9.4a and incorporated herein by reference. Once the City approves a
development plan under Article XII, the City will use its reasonable efforts to obtain a Voluntary Cleanup
Program Final Certificate of Completion permitting land use consistent with Tenant's proposed
development plan(s) for the Premises, with the understanding that the City shall be deemed to have made
such a "reasonable effort" even if it fails to obtain such a Voluntary Cleanup Program Final Certificate of
Completion if the failure was due to the City's belief, in its sole but reasonable discretion, that the City
would incur additional costs or liabilities related to the remediation of the environmental condition of the
Premises beyond that necessary to remediate the Premises to obtain a Voluntary Cleanup Program Final
Certificate of Completion permitting commercial use, unless Tenant pays such additional costs or assumes
such additional liabilities. Tenant shall pay any additional incremental costs required to remediate the
Premises to allow for residential use if such use is proposed in Tenant's development plan. As reasonably
agreed by Landlord and Tenant, in advance and in writing, Tenant may carry out some or all of the
remediation of the Premises (or such portion thereof) in order to permit commercial use of the Premises (or
such portion thereof) and Tenant's costs and expenses incurred in carrying out same shall be considered for
all purposes as Improvements made to the Premises during the Term pursuant to Section 4.2 above and
credited to the Purchase Price in accordance with Section 12.2 below. The parties also acknowledge that an
application for participation in the Voluntary Cleanup Program has been made for the property referred to as
the "Technicoat Site" consisting of two adjacent tracts of land of approximately one(1)acre each located at
301 NE 6`'' Street (Block 232, North Fort Worth Addition), near the intersection of Jones Street and NE 6`''
Street in Fort Worth, Texas. Texas Commission on Environmental Quality regulations preclude the
acceptance of the Technicoat Site into the Voluntary Cleanup Program when an agreed order exists
affecting the site. Landlord agrees to use its reasonable efforts to promptly resolve the agreed order so that
the Technicoat Site may be placed in the Voluntary Cleanup Program as contemplated pursuant to that one
certain Program Application dated on or about October 2001, a copy of which is attached hereto as Exhibit
9.4b and incorporated herein by reference. Landlord will use its reasonable efforts to obtain a Voluntary
Cleanup Program Final Certificate of Completion permitting land use consistent with Tenant's proposed
development plan(s) for the Technicoat Site, with the understanding that the City shall be deemed to have
made such a "reasonable effort" even if it fails to obtain such a Voluntary Cleanup Program Final
Certificate of Completion if the failure was due to the City's belief, in its sole but reasonable discretion,that
the City would incur additional costs or liabilities related to the remediation of the environmental condition
of the Technicoat Site beyond that necessary to remediate the Technicoat Site to obtain a Voluntary
Cleanup Program Final Certificate of Completion permitting commercial use, unless Tenant pays such
additional costs or assumes such additional liabilities. Tenant shall pay any additional incremental costs
required to remediate the Technicoat Site to allow for residential use if such use is proposed in Tenant's
development plan. As reasonably agreed by Landlord and Tenant, in advance and in writing, Tenant may
carry out some or all of the remediation of the Premises (or such portion thereof) in order to permit
commercial use of the Premises (or such portion thereof) and Tenant's costs and expenses incurred in
carrying out same shall be considered for all purposes as Improvements made to the Premises during the
Term pursuant to Section 4.2 above and credited to the Purchase Price in accordance with Section 12.2
below. Further,the parties acknowledge that a portion of the Premises described on Exhibit 9.4c commonly
known as the"Rail Joint Property" is not currently participating in the Voluntary Cleanup Program and has
not had an application for participation in the Voluntary Cleanup Program filed on its behalf. Landlord will
diligently pursue filing an Application for participation in the Voluntary Cleanup Program for the Rail Joint
Property and Landlord will use its reasonable efforts to obtain a Voluntary Cleanup Program Final
Certificate of Completion permitting land use consistent with Tenant's proposed development plans for the
Rail Joint Property, with the understanding that the City shall be deemed to have made such a "reasonable
effort" even if it fails to obtain such a Voluntary Cleanup Program Final Certificate of Completion if the
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failure was due to the City's belief, in its sole but reasonable discretion, that the City would incur additional
costs or liabilities related to the remediation of the environmental condition of the Rail Joint Property
beyond that necessary to remediate the Rail Joint Property to obtain a Voluntary Cleanup Program Final
Certificate of Completion permitting commercial use, unless Tenant pays such additional costs or assumes
such additional liabilities. Tenant shall pay any additional incremental costs required to remediate the Rail
Joint Property to allow for residential use if such use is proposed in Tenant's development plan. As
reasonably agreed by Landlord and Tenant, in advance and in writing, Tenant may carry out some or all of
the remediation of the Premises (or such portion thereof) in order to permit commercial use of the Premises
(or such portion thereof) and Tenant's costs and expenses incurred in carrying out same shall be considered
for all purposes as Improvements made to the Premises during the Term pursuant to Section 4.2 above and
credited to the Purchase Price in accordance with Section 12.2 below.
9.5 Addition of Tenant as Applicant to Voluntary Cleanup Program. Landlord agrees to
cooperate with Tenant in having Tenant and Tenant's assignees named as a co-applicant for the VCP and on
the applications for the Technicoat Site and Rail Joint Property. Further, Landlord and Tenant agree to
reasonably cooperate with each other in order to reach an acceptable resolution to all environmental
conditions at the Premises.
ARTICLE X—NOTICE
10.1 All notices, consents, approvals or demands required under this Lease shall be in writing,
and shall be deemed delivered when either (i) deposited in the U.S. Mail, postage prepaid, certified or
registered, return receipt requested, or (ii) delivered in person (including delivery by any courier service),
provided that there is a written record confirming such personal delivery; in any event addressed to or
delivered to the appropriate party at:
Tenant: BLG Northside Development, LP
301 NE 6t' Street
Fort Worth, Texas 76106
Attn: Carl Bell
With a copy to: Bourland, Wall& Wenzel, P.C.
301 Commerce Street, Suite 1500
Fort Worth,Texas 76102
Attn: Michael V. Bourland
Landlord: City of Fort Worth
1000 Throckmorton Street
Fort Worth,Texas 76102
Attn: Director, Economic and Community Development Dept.
With a copy to: City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Attn: Peter Vaky
or to such other address(es)as either party may from time to time designate for this purpose.
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ARTICLE XI—SIGNS
Tenant may erect such signage on any part of the Leased Premises as it may desire, provided that
such signage complies with the requirements of governmental authorities having jurisdiction over the
Leased Premises. Tenant shall also be permitted to erect signage on the Possessory Premises with
Landlord's prior written permission, such permission not to be unreasonably withheld, delayed or
conditioned.
ARTICLE XII—CALL OPTIONS FOR THE PREMISES
12.1 Grant Of Call Option, Mineral Reservation, and Surface Vdaiver with Designated
Permitted Area. On or before sixty (60) days after the Commencement Date and on or before sixty (60)
days after each re-appraisal of the fair market value purchase price for the Premises performed in
accordance with this Article XII, Tenant shall pay to Landlord an amount equal to one percent (1%) of
the fair market value purchase price for the Premises (the "Option Fee"). In consideration of the Option
Fee paid by Tenant to Landlord and other good and valuable consideration, including the obligations and
covenants set forth in this Lease, the receipt and sufficiency of which are hereby acknowledged, and on
account of the Premises' location in a reinvestment zone that Landlord desires to have developed under a
project plan adopted for that reinvestment zone, Landlord, pursuant to, among other things, its authority
under Section 272.001(b)(6) of the Texas Local Government Code, grants to Tenant, its lawful
successors and assigns hereunder, on the terms and conditions set forth in this Article XII, the exclusive
right and option (the "Option") to purchase all or a portion of the Premises pursuant to the terms hereof
from time to time during the Term. Tenant is expressly permitted to exercise its Option granted herein on
multiple occasions.
The exact boundaries and acreage of the Premises on which Tenant exercises its option from
time to time to purchase (the "Option Premises") shall be established by the survey (the "Survey")
obtained in accordance with Section 12.5, and a legal description of the Option Premises taken from the
Survey shall be used in the Special Warranty Deed from Landlord to Tenant. The Option Premises
includes all easements and any and all other rights of Landlord that are in any way associated with the
Option Premises, including all buildings, structures, fences and other permanent improvements to the
Option Premises.
Notwithstanding anything to the contrary herein, Landlord reserves for Landlord and Landlord's
successors and assigns forever, all of the oil, gas, and other mineral substances in, on, or under the
Premises or that may be produced from the Premises; provided, however, during the Term of this Lease,
and continuing forever in the event that all or a portion of the Premises is purchased by Tenant pursuant
to the terms contained herein, Landlord and Landlord's successors and assigns activities for any purpose
incident to exploring for, developing, drilling for, producing,transporting, mining, extracting, treating, or
storing the oil, gas, and other mineral substances in, on, and under the Premises shall be confined to a
designated area of the Premises four (4) contiguous acres (collectively, the "Permitted Area"), with the
specific understanding that if such Permitted Area is not adjacent to a public street, Landlord and
Landlord's successors and assigns shall have a right of reasonable ingress and egress (both road and
pipeline) to and from the Permitted Area. The location and configuration of the Permitted Area shall be
requested in Tenant's development plan submitted to Landlord pursuant to Sections 12.6 and 12.7 hereof,
with the understanding that the specific location and configuration of the Permitted Area must be
reasonably agreed to in writing by both Landlord and Tenant, taking into consideration the interests of
both the surface and mineral owners, and with the further understanding that, notwithstanding anything
to the contrary herein, if agreement as to the specific location and configuration of the Permitted Area is
not reached, Landlord shall have the right to reject, withhold or delay approval of the development plan,
and such action or omission shall be deemed reasonable under this Agreement for all purposes hereunder.
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In the event that Landlord desires to commence developing, drilling for, producing, transporting, mining,
extracting, treating, or storing the oil, gas, and other mineral substances in, on, and under the Premises
prior to the time such Permitted Area is designated by Tenant in its development plan, the parties shall
mutually agree on the location of the Permitted Area, such agreement not to be unreasonably withheld or
delayed. The size of the Permitted Area may be reduced if subsequently agreed to in writing by Landlord
and Tenant. Landlord and Landlord's successors and assigns shall have no right of ingress and egress or
right to enter upon or use the surface of the Premises, (except for the Permitted Area and reasonable
ingress and egress to and from the Permitted Area) for any purpose incident to developing, drilling for,
producing, transporting, mining, extracting, treating, or storing the oil, gas, and other mineral substances
in, on, and under the Premises; provided, however, that nothing herein shall ever be construed to prevent
Landlord or Landlord's successors and assigns from (i) exploring, including, but not limited to, the
conducting of seismic studies, for oil, gas, and other mineral substances in, on or under any portions of
the Premises prior to submission by Tenant of a development plan submitted to Landlord pursuant to
Sections 12.6 and 12.7 hereof that incorporates such portions of the Premises, with the understanding that
such explorations shall not materially interfere with Tenant's use of the Leased Premises and upon
completion of exploration, Landlord will restore the affected portions of the Premises to substantially the
same condition as existing prior to the exploration, and (ii) developing or producing the oil, gas, or other
minerals in or under the Premises by means of pooling or unitization of the portion of the mineral estate
owned by Landlord or Landlord's successors and assigns with land other than the Premises; or the
exploration or production of the oil, gas, and other minerals by means of wells that are drilled on land
other than the Premises, but that enter or bottom under the Premises, provided that these operations do
not materially interfere with the surface or subsurface support constructed or to be constructed on the
Premises. Further, prior to conducting any activities relating to the production of oil, gas, or other
mineral substances from the Premises, Landlord must deliver to Tenant and Tenant's successors and
assigns a written instrument executed by the party that will conduct such activities pursuant to which
such party (but not Landlord) agrees to indemnify, defend, and hold Tenant and Tenant's successors and
assigns harmless from and against any and all claims, causes of action, liabilities, damages or costs of
any kind whatsoever resulting from physical damage to the Premises or any improvements constructed on
the Premises directly caused by the exploration for, developing, drilling for, producing, transporting,
mining, extracting, treating, or storing the oil, gas, and other minerals, in, on, and under the Premises. At
the request of Landlord, the parties shall reasonably and in good faith negotiate an agreement pursuant to
which Tenant will pool or combine Tenant's interest in oil and gas in and under property Tenant owns to
the north of the Premises with Landlord's interest in oil and gas in and under the Premises in order to
properly explore, develop, drill for, produce, transport, mine, extract, treat, or store oil and gas that is in
and under both that property of Tenant and the Premises. The terms of this paragraph will be included in
any deed for the Option Premises.
12.2 Purchase Price of Option. The purchase price of the Option Premises (the "Purchase
Price") shall be calculated by multiplying the Net Square Footage (as hereinafter defined) of the Option
Premises by the Purchase Price per square foot as determined in accordance with this Section. The
Purchase Price shall be payable in immediately available funds by cashier's check or by wire transfer at
the Closing. Any real estate taxes or assessments applicable to the Option Premises (other than rollback
taxes), and any income or rents from the Option Premises, for the year in which the Closing occurs shall
be prorated as of the date of the Closing. The Purchase Price will be established based upon the fair
market value per square foot of the Premises based upon the Appraisal Process set forth below. The
Purchase Price shall be fixed for three (3) year periods beginning upon the Commencement Date and
redetermined by a reappraisal of the Premises on every third anniversary of the Commencement Date
during the Term. All Base Rent, Possessory Fee, Option Fees, Commencement Payment, and Appraisal
Fees (as defined below), and costs of extraordinary maintenance and extraordinary security (provided
pursuant to Section 4.2 above), and the City of Fort Worth portion of any ad valorem taxes charged
against the Premises and paid by Tenant pursuant to Section 2.5 above, compounded at an
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four percent (4%) per annum from the date such payments are made by Tenant, shall be credited to the
Purchase Price; provided, however, that Tenant shall only be entitled to apply such amounts paid during
the Initial Term or Option Term, as applicable, that is in effect at the time Tenant provides Landlord its
notice of its intent to exercise its Option pursuant to this Article XII. For example, if Tenant exercises its
Option in the fourth year of the first Option Term, Tenant shall only be entitled to a credit for the Base
Rent, Possessory Fees, Option Fees, Commencement Payment, Appraisal Fees, and cost of extraordinary
maintenance and extraordinary security, and the City of Fort Worth portion of any ad valorem taxes
charged against the Premises and paid by Tenant pursuant to Section 2.5 above, compounded at an
annual rate of four percent (4%) per annum from the date such payments are made, that were made
during the first Option Term and shall not be entitled to any credit for such amounts paid during the
Initial Term. Additionally, Tenant shall be entitled to a credit on the Purchase Price in an amount equal
to Tenant's expenses attributable to Improvements made to the Premises during the Term in accordance
with Section 4.2 above, compounded at an annual rate of four percent(4%) per annum from the date such
expenses were incurred or payments were made by Tenant. All such amounts for which Tenant is
entitled to a credit on the Purchase Price pursuant to this Lease not previously applied toward the
Purchase Price shall be credited toward any future Purchase Price pursuant to the terms hereof and
Tenant need not exercise its Option to purchase at the time of any such payment, but may preserve the
credit generated by such payment for use in exercising its Option at a later date.
12.3 Appraisal Process. The "Appraisal Process", as used herein, shall be as follows:
Landlord shall provide Tenant a list of approved appraisers containing the names of a minimum of three
(3) MAI appraisers acceptable to Landlord. Tenant will then be entitled to select the appraiser from the
list of approved appraisers provided by Landlord. Landlord, Tenant and the selected appraiser shall
negotiate mutually agreeable terms with regard to the appraisal fee and parameters for the appraisal.
Landlord will then contract directly with the selected appraiser, but Tenant shall be responsible for
paying the appraiser's fee (the "Appraisal Fee") directly to the appraiser. The selected appraiser shall
determine a per square foot fair market value purchase price for the Premises and a per square foot fair
market value rental rate for the Premises with consideration of all relevant matters affecting the Premises,
including, but not limited to, the existence of any third parties' rights to use any portion of the Premises,
the current income production of Premises, any deed restrictions, covenants running with the land, and
zoning applicable to the Premises, the environmental condition of the Property, Landlord's right to take
portions of the Premises without payment to Tenant as set forth in this Lease, Tenant's responsibilities
and obligations under this Lease, and Landlord's rights of approval for Tenant's future development of
the Premises.
12.4 Term of Option. Tenant shall have the right to exercise the Option by giving Landlord
written notice of exercise at any time on or before the expiration of the Term, including any extensions,
subject to Tenant's meeting all requirements pertaining to such exercise, as set forth in this Article XII.
12.5 Survey. Tenant shall cause a licensed surveyor or engineer to prepare an accurate
Survey of the Option Premises at Tenant's sole cost and expense, establishing the boundaries of the
Option Premises and showing the location of all easements or encroachments, if any, affecting the Option
Premises. The Survey shall show the square footage of the Option Premises, to the nearest square foot,
less any portion of the Option Premises within a public right of way (the "Net Square Footage"). Tenant
shall provide Landlord with a copy of such Survey within fifteen (15) days from the completion thereof.
Tenant reserves the right to make written objections to title based upon the Survey in accordance with the
terms and provisions and within the time period set forth in the Purchase Agreement (defined below).
Once the Survey has been prepared, a legal description of the Option Premises prepared from the Survey
shall be used in the Special Warranty Deed from Landlord to Tenant.
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12.6 Exercise. If Tenant elects to exercise this Option, it shall do so by sending a written
notice to that effect pursuant to the notice provisions of this Lease prior to the expiration of the Term of
the Lease. Tenant's notice shall contain a description of the portion of the Option Premises, either as a
metes and bounds description or by exhibit as indicated on a survey. In conjunction with Tenant's
exercise of its Option, Tenant shall provide to Landlord a proposed development plan for the Option
Premises. Landlord's obligation to accept Tenant's exercise of its Option is expressly contingent upon
Landlord's approval of the development plan, which shall not be unreasonably withheld or delayed.
Landlord will have the right to reject, withhold or delay approval of the development plan, and such
action or omission shall be deemed reasonable, if(i)the development plan is inconsistent with the Trinity
Uptown Project (as defined below) or such other development concept applicable to the area at the time
of submission of the development plan, or (ii) development of the Option Premises in accordance with
the development plan would, in the reasonable estimation of Landlord, cause Landlord to incur any
expense (in excess of its obligations under Article IX) or liability in excess of that to which Landlord is
subject as of the Commencement Date unless Tenant agrees to indemnify and hold Landlord harmless
from such excess liability, conditioned on a determination by Landlord that, in Landlord's reasonable
estimation, Tenant has the financial ability to fulfill such indemnification and hold harmless obligations.
Additionally, in conjunction with Tenant's exercise of its Option set forth herein, Tenant may submit a
property tax abatement proposal with accompanying economic criteria to Landlord, but Landlord shall
not be required to grant such property tax abatement. Landlord will consider the property tax abatement
proposal as part of Tenant's development plan for the Option Premises, and Landlord may reject,
withhold, or delay approval of such property tax abatement plan in connection with approving Tenant's
proposed development plan. Landlord will retain all legal remedies available to it under law to require
Tenant to fulfill the development plan; provided, however, that Tenant shall have the option to revise the
development plan after the initial approval and resubmit it to Landlord for approval, such approval not to
be unreasonably withheld or delayed. Following receipt by Landlord of Tenant's notice of exercise of
the Option, Landlord and Tenant shall diligently and in good faith negotiate and execute a purchase
agreement for the purchase of the Option Premises in a form reasonably acceptable to the parties (the
"Purchase Agreement"). The closing on the purchase and sale of the Option Premises will occur at a
place and on a date within ninety (90) days following full execution of the Purchase Agreement that is
mutually acceptable to Landlord and Tenant. It is understood and agreed that it shall be a condition of
closing in the Purchase Agreement that Tenant shall have obtained all necessary municipal approvals for
rezoning of the Option Premises to MU-2 Planned Development Special Use, with site plan, in
accordance with the City's Zoning Code (Ordinance No. 13896, as amended), which site plan must
conform to the development plan approved by Landlord in accordance with this Section 12.6 and Tenant
shall have obtained firm financing commitments in a form reasonably acceptable to Landlord. In the
event that Landlord rejects Tenant's proposed development plan, Landlord will provide Tenant with a
written explanation as to why the development plan was rejected, and the Option will be treated as if it
had never been exercised by Tenant, meaning that the Option will be preserved and may be exercised at a
later date in accordance with the terms and conditions of this Lease.
12.7 Right of First Refusal. Notwithstanding Tenant's Option set forth in this Lease,
Landlord shall have the right to offer all or any portion of the Premises for sale to third parties during
those periods set forth on Exhibit 12.7 attached hereto (the "Refusal Period"). In the event that Landlord
receives a bona fide offer from a third party to acquire all or any part of the Premises (the "Refusal
Premises") during a Refusal Period, along with a development plan from the proposed purchaser
acceptable to Landlord, Landlord hereby grants to Tenant a first right of refusal to purchase the Refusal
Premises as set forth herein. Landlord shall provide notice to Tenant of such offer setting forth the price,
terms, conditions of sale (including the approved development plan), description of the Refusal Premises,
and the identity of the third party that Landlord has decided to accept ("Notice of Sale"). Tenant shall
have sixty (60) days from the date of its receipt of the Notice of Sale to exercise its right o 4efu"
upon the same terms as contained in such Notice of Sale provided, however, that in the a ent that the
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purchase price contained in such Notice of Sale exceeds the Option Purchase Price, Tenant shall not be
obligated to pay more than the Option Purchase Price and provided, further, that Tenant shall be entitled
to submit its own development plan as set forth below. If Tenant determines to exercise its right of first
refusal set forth herein, it shall deliver to Landlord written notice thereof within said sixty (60) day
period and include with such written notice a development plan that is, in the reasonable opinion of
Landlord, acceptable to Landlord. Landlord's approval of the submitted development plan will not be
unreasonably withheld or delayed. Landlord will have the right to reject, withhold or delay approval of
the development plan, and such action or omission shall be deemed reasonable, if (i) Tenant's
development plan is inconsistent with the Trinity Uptown Project (as defined below) or such other
development concept applicable to the area at the time of submission of the development plan; or (ii)
development of the Refusal Premises in accordance with Tenant's development plan would, in the
reasonable estimation of Landlord, cause Landlord to incur any expense (in excess of its obligations
under Article IX) or liability in excess of that to which Landlord is subject as of the Commencement
Date unless Tenant agrees to indemnify and hold harmless Landlord from such excess liability,
conditioned on a determination by Landlord that, in Landlord's reasonable estimation, Tenant has the
financial ability to fulfill such indemnification and hold harmless obligations. In the event that Landlord
rejects Tenant's proposed development plan, Landlord will provide Tenant with a written explanation as
to why the development plan was rejected, and Tenant may resubmit a revised development plan within
sixty (60) days of receipt of such comments from Landlord. As part of the development plan, Landlord
will retain all legal remedies available to it under law to require Tenant to fulfill the development plan;
provided, however, that Tenant shall have the option to revise the development plan after the initial
approval and resubmit it to Landlord for approval, such approval not to be unreasonably withheld or
delayed. If(i) Tenant elects not to exercise its right of first refusal; (ii) Tenant fails to deliver written
notice of the exercise of such right of first refusal within sixty (60) days of receipt of a Notice of Sale; or
(iii) Landlord rejects Tenant's initial proposed development plan and Tenant fails to resubmit a revised
development plan within sixty (60) days of receipt of Landlord's written notice explaining why the initial
development plan was rejected; or (iv) Tenant's resubmitted development plan is again rejected by
Landlord, Landlord may sell the Refusal Premises to the third party free and clear of Tenant's right of
first refusal, provided that such sale is made upon the price, terms and conditions as were set forth in the
Notice of Sale. In the event that Landlord accepts Tenant's proposed or resubmitted development plan in
accordance with this Section 12.7, Landlord will sell the Refusal Premises to Tenant at a purchase price
consistent with this Section 12.7 and otherwise in accordance with the same conditions and processes
outlined in Section 12.6 as to an Option Premises. It shall be a condition of the closing for the Option
Premises that Tenant shall have obtained firm financing commitments in a form reasonably acceptable to
Landlord.
12.8 Memorandum of Lease, Option to Purchase and Right of First Refusal. At Tenant's
request, Landlord will execute a Memorandum of Option in substantially the form of Exhibit 12.8 attached
hereto, in recordable form, which Tenant may record at Tenant's expense with the Deed Records of Tarrant
County or similar office. In the event the Option is not timely exercised, Tenant shall, upon Landlord's
written request, promptly execute a release of any Memorandum of Option in recordable form.
ARTICLE XIII—RESTRICTIVE COVENANT AND ZONING
13.1 Restrictive Covenant and Zoning. Tenant acknowledges that the Premises are currently
encumbered with a restrictive covenant that currently affects the use, operation and enjoyment of the
Premises as reflected in the Continuing Agreement executed by and between Cytec Industries, Inc.
("Cytec") and Landlord on or about November_, 2001 and recorded in Volume 15292, Page 207 of the
Real Property Records of Tarrant County, Texas("Restrictive Covenant")and in the Special Warranty Deed
from Cytec, as Grantor, to Landlord, as Grantee, dated November 28, 2001 and recorded as Instrument No.
D201294629 in the Real Property Records of Tarrant County, Texas (the "Cytec Deed"). Within the Term,
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Tenant shall designate that portion of the Premises which Tenant shall endeavor to develop (the
"Development Site"), and shall notify Landlord of same in writing. Upon the designation of the
Development Site and receipt of notification of same from Tenant, Landlord shall use its reasonable efforts
to obtain the consent and approval of Cytec to such proposed development as required by the Restrictive
Covenant and use its reasonable efforts to obtain, if necessary, a waiver or acceptable modification of the
Restrictive Covenant and/or Cytec Deed as applicable for the portion of the Premises constituting the
Development Site from Cytec to permit Tenant's development of the Development Site consistent with
Tenant's development plan. Landlord additionally agrees to exercise its reasonable efforts to have the
Premises zoned to permit Tenant's development of the Premises consistent with its approved development
plan.
ARTICLE XIV—MISCELLANEOUS
14.1 Applicable Law and Venue. This Lease has been entered into in, and shall be construed
and interpreted in accordance with the laws of the State of Texas. Venue for any action arising under this
Lease shall lie in state courts located in Tarrant County, Texas or in the United States District Court for the
Northern District of Texas—Fort Worth Division.
14.2 Successors and Assigns. The covenants and agreements in this Lease shall extend to, be
binding upon, and inure to the benefit of the parties hereto, and their respective heirs, executors,
administrators,successors and assigns.
14.3 Entire Understanding. This Lease constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and any prior agreements, representations or statements
made with respect to such subject matter, whether oral or written, and any contemporaneous oral
agreements, representations or statements, are merged herein. This Lease may be modified only by a
written instrument executed by the parties hereto.
14.4 Brokers. Landlord and Tenant hereby represent and warrant each to the other that no
brokers,agents or finders were involved on their behalf in negotiating or consummating this Lease.
14.5 Rules and Regulations. Tenant agrees to comply with any reasonable rules and regulations
promulgated by Landlord to promote the safe, orderly and efficient operation of the Premises upon receipt
of a written copy of such rules and regulations or any modifications thereto.
14.6 Warranties and Representations.
A. Landlord hereby warrants and represents to Tenant that on and as of the date of this
Lease: (i) that the representative of Landlord executing and delivering this Lease on behalf of Landlord is
authorized to execute and deliver this Lease on behalf of Landlord, and when so executed and delivered by
such officer of Landlord on behalf of Landlord, this Lease shall be binding upon and enforceable against
Landlord in all respects,and(ii)that Landlord has fee simple and marketable title to the Premises.
B. Tenant hereby warrants and represents to Landlord that on and as of the date of this
Lease: (i) that Tenant is a Texas limited partnership duly formed and validly existing under the laws of
Texas; and (ii) that the person executing and delivering this Lease on behalf of Tenant is authorized to
execute and deliver this Lease on behalf of Tenant, and when so executed and delivered by such person on
behalf of Tenant,this Lease shall be binding upon and enforceable against Tenant in all respects.
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14.7 Captions. The captions contained herein are for convenience and reference only and shall
not be deemed to be part of this Lease or construed in any manner as limiting or amplifying the terms and
provisions of this Lease to which they relate.
14.8 Provisions Severable. If any term or provision of this Lease or the application thereof to
any person or circumstance shall,to any extent, be invalid or unenforceable, the remainder of this Lease,or
the application of such term or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term and provision of this Lease shall be
valid and shall be enforced to the fullest extent permitted by law.
14.9 Time is of the Essence. Time is expressed to be of the essence with respect to this Lease.
14.10 Memorandum of Lease. At the written request of either party, the parties hereto shall
execute and exchange copies of a Memorandum of Lease in recordable form outlining the pertinent terms
herein contained. No provision of such Memorandum of Lease shall modify the provisions of this Lease.
14.11 Counterparts; Execution. This Lease may be executed in multiple counterparts by the
signatories hereto, both of which counterparts, when taken together, shall constitute one entire original
agreement. Facsimile signatures shall be deemed and treated as equivalent to original signatures and
each party agrees to furnish the other party with original signatures promptly after transmission of
facsimile signatures.
14.12 Governmental Powers. It is understood and agreed that by execution of this Agreement,
Landlord does not waive or surrender any of its governmental powers or immunities.
14.13 TrinityUptown Project. Landlord and Tenant hereby acknowledge and agree that the
Premises is located within the planned development area currently being referred to as the "Trinity Uptown
Project". In order to assist with the development of this project, the parties hereto do hereby agree that
portions of the Premises may be utilized by Landlord for roadways and/or the bypass channel.
Notwithstanding anything to the contrary herein, upon a final determination of the location of such
roadways and bypass channel, Landlord shall be entitled to terminate Tenant's rights to such portions of the
Premises under this Lease without cost to Landlord provided that Tenant has not yet exercised its Option to
purchase such portion of the Premises as set forth in this Lease.
14.14 Interlocal Agreement. The parties hereto do hereby acknowledge the existence of that one
certain Interlocal Cooperation Agreement (the "Interlocal Agreement") by and between Landlord and
Tarrant County (the "County") for the use of a portion of the Premises, which Interlocal Agreement is on
file in the City Secretary's Office as City Secretary Contract No. 28745 and this Lease is subject to the
terms of such Interlocal Agreement. Of even date herewith, Landlord shall assign to Tenant all of its rights
and obligations as licensor under such Interlocal Agreement, contingent upon the County's approval of such
assignment. Tenant shall assume, perform, pay, fulfill, and discharge, in accordance with the terms of the
Interlocal Agreement, all executory liabilities, obligations, and commitments of Landlord under such
Interlocal Agreement arising after the date hereof.
14.15 No Third Party Rights. The provisions and conditions of this Lease are solely for the
benefit of Landlord and Tenant, and any lawful assign or successor thereto, and are not intended to create
any rights,contractual or otherwise,to any other person or entity.
[NEXT PAGE IS SIGNATURE PAGE]
LEASE AGREEMENT AND OPTION TO PURCHASE PAGE 17
#142950v2O
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the day
and year first above written.
LANDLORD:
CITY OF FORT WORTH
By:
Printed Name: Dale Fisseler
Attested By: Title: Assistant C' ana r
Date executed:
Dlarty Hend ' T APPROVED AS TO FORM AND LEGALITY:
Citv Secretary
By: 0-206 13
`V-26-01
Printed Name: Peter Vaky
Title: Assistant City Attorney
TENANT:
BLG NORTHSIDE DEVELOPMENT, LP
By: BLG Northside Properties, LLC, its general partner
By: A�
Printed Name: Carl W. Bell
Title: P„re„sident
Date executed:
L tiLV`�..
LEASE AGREEMENT AND OPTION TO PURCHASE
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13AUS HAAS
EXHIBIT 1.5.A.
COMMENCEMENT DATE NOTICE
This Commencement Date Notice relates to that certain Lease Agreement (the "Lease") dated
November 1, 2005 by and between THE CITY OF FORT WORTH, as "Landlord" therein, and BLG
NORTHSIDE DEVELOPMENT, LP, as"Tenant"therein with respect to the land,as"Premises"therein.
Landlord and Tenant hereby agree that for all purposes in connection with the Lease, (a) the
"Commencement Date" referenced in Section 1.5.A of the Lease shall be November 1, 2005 and the
"Expiration Date" referenced in Section 1.5.A of the Lease is October 31, 2011 subject to the renewal
options as set forth in the Lease.
LANDLORD:
CITY OF FORT WORTH
By:
Printed Name: Dale Fisseler
Title: Assistant City Manager
Date executed:
APPROVED AS TO FORM AND LEGALITY:
By:
Printed Name: Peter Vaky
Title: Assistant City Attorney
TENANT:
BLG NORTHSIDE DEVELOPMENT, LP
By: BLG Northside Properties, LLC, its general partner
By:
Printed Name: Carl W. Bell
Title: President
Date executed:
EXHIBIT 1.5.B.
RENEWAL OPTION
1. Grant of Renewal Option. Tenant is hereby granted the option to extend the Initial Term of this
Lease for two (2) consecutive extended terms of six (6) years each (the "Option Term"),
provided (a) Tenant is not in default under the Lease at the time of exercise of the option, and (b)
Tenant gives written notice of its exercise of the option to renew not less than one hundred eighty
(180) days prior to the expiration of the Initial Term or the applicable Option Term ("Renewal
Notice"). If Tenant fails to exercise any of such renewal options, then Tenant shall have no
further renewal option rights. Each Option Term shall be upon the same terms and conditions
except (i) Tenant shall have no further right of renewal after the second Option Term prescribed
above, and (ii) the Base Rent shall be determined as set forth below.
2. Terms Applicable to Premises During Renewal Term. The Base Rent per square foot for the
Leased Premises during each Option Term shall be based upon the fair market value rate per
square foot for the Leased Premises.
3. Possessory Fee. The Possessory Fee for the applicable Option Term shall be computed in the
same manner as set forth in the Lease.
4. Procedure for Determining Fair Market Value. Within ninety (90) days after receipt of Tenant's
Renewal Notice, the parties shall have the fair market value rental rate per square foot of the
Premises determined in accordance with the Appraisal Process set forth in the Lease.
5. Rent Adjustment. The Base Rent will be adjusted on the third (3`d) anniversary date of the
commencement of the applicable Option Term to an amount equal to the CPI Adjustment;
provided, however, that in no event will the Base Rent be reduced due to the CPI Adjustment.
The CPI Adjustment shall be calculated as the Base Rent then in effect multiplied by a fraction,
the numerator of which shall be the CPI Index for the month prior to the month in which the
adjustment is being made and the denominator of which is the CPI Index of the first month of the
applicable Option Term. The CPI Index as used herein refers to the Consumer Price Index for all
urban consumers (for Dallas/Fort Worth, Texas, unadjusted for all items) of the Bureau of Labor
Statistics of the United States Department of Labor. If the CPI Index is discontinued during the
Term of this Lease, the adjustment called for by this section shall be based on another index or
other statistics published by the Bureau of Labor Statistics that are most nearly comparable to the
CPI Index.
6. Renewal Amendment. If Tenant is entitled to and properly exercises its Renewal Option,
Landlord shall prepare an amendment (the "Renewal Amendment") to reflect changes in the
Base Rent, Term, Expiration Date and other appropriate terms. The Renewal Amendment shall
be sent to Tenant within a reasonable time after Landlord's receipt of the fair market value Base
Rent. Tenant may exercise its Renewal Option notwithstanding the fact that Tenant has
previously exercised its Option to purchase for all of the Leased Premises so long as there
remains a portion of the Premises subject to the terms of this Lease.
-.aA
EXHIBIT 6.1A.
EVENTS NOT PERMITTED
1. None upon Commencement Date
EXHIBIT 6.1.B.
SPECIAL EVENTS POLICY
Special Events Policy & Process
Transportation and Public Works Department Street Management Section
Public Events Program Manager 311 W. 10`h Street
817/392-7894 (phone) 392-8941 (fax) Fort Worth, TX 76102
If any portion of a City street and or sidewalk within the City's right-of-way is to be restricted or closed, it is
necessary to obtain a permit from the Transportation and Public Works Department.
Neighborhood Private Events (block parties, Crime Watch, Neighborhood Associations, Code Blue, etc.
which involve closures of city streets classified as local residential streets.)
These are events open only to persons residing in the general neighborhood. Permission of affected
citizens is required. Submit a written request with a petition with signatures of those affected by the
closure. Submit written request three weeks in advance of the event.
Special Private Events (family reunions, wedding parties, holiday parties, etc. which involve closure of city
streets classified as local residential streets.)
These are events open to persons residing outside the neighborhood but sponsored by a person who
lives on the street being closed. A Certificate of Insurance showing the City of Fort Worth as an
additional insured in the amount of$1,000,000 general liability is required. Submit written request with
signatures and comments of those residents and/or businesses affected by the closure four weeks in
advance of the event.
Public Events (festivals, concerts, etc. that involve closure of city streets)
These are events open to the public. Notification to all affected residents, businesses, etc. of the
specific plan and any comments from those individuals shall be submitted to T/PW at least three (3)
weeks in advance of the planned event. A Certificate of Insurance showing the City of Fort Worth as an
additional insured in the amount of$1,000,000 general liability is required. If alcohol is to be sold,
$1,000,000 liquor liability insurance is also required.
Private Property
If an event with anticipated attendance is 500 or greater, a Special event permit shall be required
(Churches and Schools exempt). Required to comply with Special Events Process and ordinances.
Health Department
If food or beverages is served to the public, it shall be the responsibility of the Event Holder to obtain a
Health Permit and arrange for food handling training from the Health Department 817/ 871-7255.
Texas Alcoholic Beverage Commission (TABC)
To serve or sell alcoholic beverages it is the respnsibility of the Event Holder to obtain the proper
permits, licenses and training from the Texas Alcoholic Beverage Commission at(817) 451-9466.
Fire Department—Emergency Medical Service(EMS)
It is the responsibility of the Event Holder to provide EMS, Public Safety Plans (in accordance with the
Fire Code, Section 403.1.1, and 403.1.2), Site Plan which includes the event layout, tents, cooking
arrangements, Fire Marshall, etc. as required by the Fire Department.
Police Department
The Event Holder shall provide Security, Traffic Control and Emergency Evacuation Plan as required by
the Fort Worth Police Department Special Events Coordinator's rules and regulations. The Event
Coordinating Officer is required to attend the Pre-Event Meeing before approval of the event is granted.
Parks & Community Services Department
Application must be submitted forty five (45) days prior to event if held at a park location
Revised 5/10/05
S
fU .. `uaCi Js A3
Special Events Process
Other Special Events in the City Right-of-Way
Violations
When additional City resources such as additional Police or Firemen are provided during a Special
Event, the Special Event Deposit will be retained and the Event Promoter will be billed for the additional
amount incurred.
Any person who shall violate any portion of this special events process and ordinances will be subject to
fines, probation and/or revocation of Special Events Permit.
All requirements must be satisfied two (2) weeks before event.
If an event, as indicated below, is held or staged on a City Street, right-of-way or sidewalk, the
Special Events Street Use Policy & Process shall be followed:
• Parade or Procession
• Tournament or Competition
• Festival or Cultural Event
• Exhibition or Show
• Concert
• Carnival
• Run Event
• Walk Event
Structured walks require that an Event Official be present at the start line of the walk. Please note:
Prior to starting the event, the Event Promoter is requied to announce that "running is not authorized
and to do so is at the risk of the participants"
• Filming
If held or staged on a City Street, right-of-way or sidewalk, please follow Street Closure and Special
Event policies. Street Use Permit Fee: $250
Please note:
If an event, as described above, is held in the Central Business District(CBD), Historical Stockyards
District or Cultural District and the event has anticipated participants of 1000 or greater, a Certifical of
Insurance listing the City of Fort Worth as an additional insured in the amount of $1,000,000 General
Liability is required.
Page 2 of 10
DRAFT
Special Events Process
City Sponsored Events
A City sponsored event is defined as a special event that requires City resources such as traffic control
devices, on-duty police officers and/or fire department personnel during the event.
Service Requested #of units unit price Total
Delivery and pick up of traffic control devices (includes crew, one pickup &trailer
event holder required to set up devices) Minimum: 2 persons/4 hours per person $221.64
Traffic cones will not be provided $
❑ Type 1 Barricades (includes sand bags) $.50 $
each
❑ Advanced warning signs (includes sand bags) $.75 $
each
❑ Tandem Trucks 12 cubic ft. (includes driver) $ .77 $
Per mile
❑ Sand Grade#6 cubic yards 12 c.y. $13/cy $
❑ Street Sweeper for clean up after the event (includes driver) $25.70 $
Per hr.
❑ Parking Meter Rental - $6 per meter+ $20 permit fee $6.00 $
TOTAL DUE $
The charge for this service will be determined based on the size and set up of the event. The event holder is
required to pay all fees two (2) weeks prior to the event.
The use of TPW resources will be limited to the following events at the above cost:
• Stock Show Parade
• ML King Parade
• Environmental Management -Annual Clean Air Fair
• Hispanic Heritage Celebration @ City Hall
• Juneteenth Parade
• Evans Avenue Celebration
• CFW National Night Out (FW Police Officers -Code Blue & Neighborhood Associations city wide)
• Annual Library Fest
• Historic Handley Festival
• Convoy of Hope Community Outreach
• Kick the Can Event - benefiting Tarrant County Food Bank
• Parade of Champions
• Most Livable Community
• Veteran's Day Parade
The Police and Fire Departments may elect to provide resources on a case by case basis for the above
events, as the cost associated with these events vary according to the magnitude of each event.
Contact the Police Dept @ 817/871-6423 & the Fire Dept. @ 817/392-6834.
Page 3 of 10
Special Events Process
Transportation and Public Works Department Street Management Section
Public Events Manager 311 W. 10th Street
817/392-7894 (phone) 817/ 392-8941 (fax) Fort Worth, TX 76102
These Temporary Street Closure procedures relate to the closing of City streets and or sidewalks, or public
rights-of-way for Public Events (3) days or less. Temporary Street Closures for Public Events of longer than
three (3) days must be approved by the City Council.
Eligibility/Criteria:
1. Streets may be temporarily closed if they do not interfere with necessary traffic circulation, or police
and fire emergency routes. This requirement is normally satisfied through use of streets during
weekends and holidays and with permission of relevant City departments.
2. Profit and non-profit firms, corporations, and/or associations may request street closures.
3. Temporary street closures conforming to these guidelines may be approved if determined to be in
the public interest.
4. For-profit organizations are required to obtain permission from City Council prior to closing a street .
(Generally takes two weeks to obtain Council approval)
5. No Interstate Highway or frontage road shall be closed without permission of the Texas Department
of Transportation.
Requirements: The following requirements must be met:
1. An application for a temporary street closure permit may be obtained from the Traffic Engineering
Division's Street Management Section.
2. Submit request in writing six (6)weeks prior to the event.
3. All requirements for an application shall be met two (2) weeks prior to the event, or the permit will
automatically be denied.
4. Event holder, a representative of the non-profit organization and the Event Coordinating Officer
for the event must attend the pre-event meeting (4) weeks prior to the event.
5. Fort Worth Police Officers are required to be on-site during the set up/removal and operational
hours of the event
6. Barricades are required to be staffed by an adult(18 years of age or older)during vendor setup
and take down and during event operational hours.
7. Provide IRS 501 (C) (3) documentation for non-profit organization
8. A Certificate of Insurance showing the City of Fort Worth as an additional insured in general liability
for this event is required. The amount must be$1,000,000. An additional $1,000,000 liability is
required if alcoholic beverages are to be sold.
9. An event site plan and traffic control plan must be submitted for any event. It is important to maintain
access to businesses for customers and to keep adjacent neighborhood streets open for area
residents.
10. Provide a copy of your notification letter to all affected Businesses and/or Residents
Notification:
The Event Holder is required to provide written documentation (English and Spanish, when appropriate)
to all residential, non profit and commercial properties, and specified organizations and agencies
affected by the closures, including all closed streets and businesses and homes within a one (1) block
radius of the closure. Notice to the public must be provided at least three (3) weeks in advance of the
event. The notice must state the dates of the event, the schedule of concerts or performances and state
the time restrictions street will occur. Any questions or concerns from residents, business or property
owners shall be addressed by the event holder prior to issuance of a permit.
Page 4 of 10
In addition to property owners, businesses and residents, the following organizations must also
be notified of any request for a street closure at least three (3) weeks prior to the event:
Phone# Fax#
1. All Permits
Fire Prevention, F.D. 392-6834 and 392-7635 392-6867
Police, Traffic Division 871-7110 871-7118
Health Department 871-7255 212-2713
2. Central Business District Contacts
NPD #1 871-6423 or 871-6400 871-6408
Downtown Fort Worth, Inc. 870-1692 335-3113
FW Transportation Authority 212-2533 215-8902
F.W. Visitors & Convention Bureau 336-8791 336-3282
Convention Center 884-2222 884-2323
3. Stockyard Area Contacts
NPD #2 740-2103 740-2122
N.F.W. Business Association 626-7921 625-9744
Fees
A Street Use Permit Fee in the amount of$700.00 and a Special Event Deposit of$1,000 shall be
provided to the City for street closures to ensure proper clean up, etc., reimbursement to cover damages
to public or private property. In the event that the requirements of the permit are not complied with in
full, the Event Holder shall forfeit the deposit. This deposit does not apply to Event Holders who have
conducted public events in City streets/right-of-ways for more than five (5) years.
All fees will be addressed at Pre-Event Meeting, including fees for Police and Fire Departments as
determined.
Schedule
The following schedule (Exhibit A) is recommended in order to provide sufficient time to plan the event,
notify businesses and residents, obtain approvals of plans and a permit two weeks prior to the event.
Approvals
The City Traffic Engineer shall approve or deny any request for temporary closures that are in the public
interest and/or may waive any technicality related to this policy.
The City Council must approve any closures exceeding three (3) days.
Page 5 of 10
FORT WORTH
Ir-
CITY OF FORT WORTH
TEMPORARY STREET USE REQUEST FORM FOR SPECIAL EVENTS
Only those temporary street closings not interfering with necessary traffic circulation
and police or fire emergency vehicle routes shall be permitted.
DATE:
NON-PROFIT ORGANIZATION REQUESTING STREET CLOSURE:
NAME OF REQUESTOR:
ADDRESS OFFICE PHONE# FAX# MOBILE#
REQUESTOR'S EVENT PROMOTER:
NAME OF CONTACT PERSON:
ADDRESS OFFICE PHONE# FAX# MOBILE#
REASON FOR STREET USE:
COORDINATING POLICE OFFICER: OFFICE PHONE#
MOBILE PHONE#
CHECK ALL THAT APPLY:
❑ SIDEWALK
❑ LIST NUMBER OF LANES TO BE USED
❑ FULL STREET CLOSURE
1ST STREETILANE TO BE CLOSED (LIMITS) FROM TO IBEGIN&ENDI DATE AND TIME OF CLOSURE
2ND STREETILANE TO BE CLOSED (LIMITS) FROM TO (BEGIN&END) DATE AND TIME OF CLOSURE
3RD STREETILANE TO BE CLOSED (LIMITS) FROM TO (BEGIN&END) DATE AND TIME OF CLOSURE
4TH STREETILANE TO BE CLOSED (LIMITS) FROM TO (BEGIN&END) DATE AND TIME OF CLOSURE
5TH STREETILANE TO BE CLOSED (LIMITS) FROM TO (BEGIN&END) DATE AND TIME OF CLOSURE
CLOSURE TIME COMMENTS: (PLEASE INCLUDE THE OPERATIONAL HOURS OF YOUR EVENT)
TRANSPORTATION AND PUBLIC WORKS DEPARTNIENT
STREET MANAGEMENTISPECIAL EVENTS
311 W.10TH STREET
FORT WORTH,TX 76102
(817)392-7894 FAX(817)392-8941
Page 6 of 10
SPECIAL EVENTS TERMS AND CONDITIONS AGREEMENT
1. The "Street Use Permit" and Traffic Control Plan (TCP) must be on site during your event at all
times. You are authorized to occupy only the area(s) noted on the permit. You may not occupy or
block access to additional city property (sidewalks, parking lots, rights-of-way, etc.) or private
property without permission.
2. Amplified music is prohibited by City Ordinance after the hours of 10:00 PM Sunday through
Thursday and after midnight on Friday and Saturday.
3. An adequate number of portable toilets, including mobility-impaired units, are required.
4. All necessary food and/or beverages permits and information for proper dispensing and handling
procedures have been obtained from the City Health Department (871-7255) and are in
accordance as stated under Model Food Ordinance #9827.
5. Permits for dispensing alcoholic beverages shall be obtained from The Texas Alcoholic Beverage
Commission (TABC) (817-451-9466) at least two (2) weeks prior to the event.
6. Daily litter removal is required in the vicinity of the closed streets. Litter must be removed from the
sidewalks and streets inside the event area and for one (1) block around the event on the morning
after each scheduled event day prior to 8:00 AM.
7. Off duty City of Fort Worth Police Officers or other peace officers licensed in the State of Texas
must be on site throughout the event's operations and outside the perimeter of the street closure to
provide security and traffic control. The Police Department shall determine the number of officers
required for the event.
8. When it is the opinion of the Fire Code Official, it is essential for public safety in a place of
assembly or any other place where people congregate, because of the number of persons, or the
nature of the performance, exhibition display, contest or activity, the owner, agent or lessee shall
employ one or more qualified Fire Marshals, EMS and Public Safety Plan as required and
approved, to remain on duty during the times such places are open to the public, or when such
activity is being conducted, in accordance with IFC 2003 (SECTIONS 403.1, 403.1.1, and 403.1.2).
9. The Event Holder shall comply with all requirements of the City's Street Use Requirements and
any additional requirements as may be attached to the Street Use Permit.
10.The Event Holder shall be responsible for costs of repairs in excess of amount of deposit and shall
be invoiced and due within 30 days for all costs related to these, or other, requirements.
11. If the site is left in as good or better condition than before the event, the deposit will be
returned. Reimbursement to cover damage to public or private property shall be deducted from the
deposit at the rate of three (3) times the actual cost of repairs. In addition, when the City of Fort
Worth has to provide on-duty resources due to the lack of Security, Fire Marshals, etc., the event
holder will be billed for this service. Please allow approximately 30 days for processing any
refunds.
By signing in the place provided below and as the Event Holder, I am in agreement with the conditions listed
above and will abide by all requirements.
Print Name Signature of Event Holder Date
Page 7 of 10
(SAMPLE TRAFFIC CONTROL PLAN)< \Y LEGEND
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Page 8 of 10
2,.
FORT WORTH
CITY OF FORT WORTH
DEPARTMENT APPROVAL FORM
FOR
SPECIAL EVENT STREET CLOSURES
EVENT HOLDER: EVENT DATE:
RESPONSIBLE OFFICIAL:
ADDRESS PHONE* FAX* MOBILE#
REASON FOR STREET USE:
POLICE DEPARTMENT APPROVAL
COORNINATING POLICE OFFICER:
CELL PHONE 4
DIVISION CAPTAIN
SIGNATURE DATE
FIRE DEPARTMENT APPROVAL
FIRE MARSHAL:
SIGNATURE DATE
OFFICE PHONE# CELL PHONE#
COMMENTS: (PLEASE RETURN THIS FORM WITH THE REQUIRED SIGNATURES(2)WEEKS PRIOR TO YOUR EVENT)
TRANSPORTATION AND PUBLIC WORDS DEPARTMENT
STREET MANAGEMENT SECTION
311 W. 10TH STREET
FORT WORTH, TX 76102
(817) 392-7894 FAX (817) 392-8941
Page 9 cat 10
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i
EXHIBIT 9.4a
VOLUNTARY CLEANUP PROGRAM
PROGRAM APPLICATION FOR PREMISES
(EXCLUDING TECHNICOAT)
09/81/2684 14:48 9725. AS W&M PAGE 82119
TOM TIVRCC-IOUI R4v1W 1/00
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FFICE Un ONLY
GA number:CP Pro'eat MMIha:
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
VOLUNTARY CLEANUP PROGRAM
Program Apphcadon
Please complete this foam and an agreematt form to n quest assistance and M iew from the
Texas Natural Resource Conservation Commission (TNRCC) staff in the Voluntary Cleanup
Program(VCP)pursuant to§361.604 of the Texas Solid Waste Disposal Act.
Complete A applicable sections. The TNRCC may reject incomplete or inaccurate applications
as per §361.605 of the VCP statute. To accurately complete this form,please refer to the VCP
Application Instructions or call the TNRCC's Voluntary Cleanup Section at(5 12)239-S891 with
any questions eonceming the ewnpletion of this foam.
General Site Information
Site Name American Cvanaruid
Address 600 North Jones (sometimes also listed as 500 North Commerce): Anumiean
Cyanamid Comaaay, Blk Lot A. N Pt Tr A Blk 3. e�ccepting thatyortion of said onwaty
formed, leased to Tcchnicoat.Inc..approximately one acre in size.which is Sjwt to a TNRCC
"COVU Citil%C EJ 1Yti11J (\Lt4lAUGi.7vWv/.
City Fort Worth County Tarrant Zip Code 76106
Site Size(acres) approximately 33
Applicant(s)
Appdcant A (The person or entity seeking review and approval of a plan or report and/or
issuance of a VCP Certificate of Completion by the TNRCC. Applicant A b responsible for
payineust of TNRCC costs of review and oversight unless indicated otherwise on page 3 of this
form).
Applicant City of Fort Worth.Texas
Contact Person Brian Boomer Title Director,Dcut.of Environmental hftaaement
Organization City of Fort Worth Phone 817-871-8079 Fax 817-871-6359
Address 1000 Thmckmortmu Street
City Fort Worth State Texas Zip Code 76102
Interest in Property Purchaser
v
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09/01/2004 14:40 9725 AS W&M PAGE 93/19
Applicant B
Applicant Cytec Industries,loc.
Contact Person Anton C.Marek Title Ro..ediation Mattaster
Organization Case Industries,Inc. Phone 973-423-8410 Fax 973-425-0185
Address 1300 Mt.Kemble Avenue
City Morristown State New Jersey Zip Code 07960
Interest in property Owner
Applicant C
Applicant Texas b�dcnt Baseball. L.L.C.
Contact Person Carl W.Bell Title Chairman
Organization Texas I.dependent Baseball,L.L.0 Phone 972-581-4801 Fax 972-581.4802
Address 16980 N Dallas Parkway
City Dallas State Texas Zip Code 75248
interest in Property fbture lessee
Current Site Owner (if different from an applicant)
OWM(B)
Contact Person Title
Organization Phone( ) _Fax(
Address
City State Zip Code
Other Contacts (Corculf-a t/A,ttomey)
For applicant A
N c Herb B.Ea Title Client Proo m Manager
on The rr Grow Phone 972-341-8315 Fax 972-341-8365
Address 1201 Beltline Road
City Coppell State Tcxas Zip Code 75019-4907
For Applicant B
Name Marls P. QW4W Title ProhWonal Engineer
Organization Brown aldwelf Phone 713-759.0999 Fax (713)308-3886
Address 1415 Louisiana,suite 2500
City Houston State Texas Zip Code 77002
�.I
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09/81/2804 14:48 9725. ,4'45 W&M PAGE 04/19
Billing Information
If billing should be directed to a person other than Applicant A. please enter the required
information below and include their signature consenting to the obligation for payment of
TNRCC oversight costs.
Names) Title
Organization Phone Fax(�
Address
City State .Zip Code
Signature of Consent: Date-
Current Property Use(Use percentage if site is divided into different use categories.)
Residential Other(e.g., agricultural;recreational)
Non-residential X If non-residential, type of business the site operated as a
rnanufactuainafor p oleum refining catalyst from the 1940s tluvuah 1483. The site is
currently inactive and fallow.
Is a real estate transaction imminent for this site?Yes X No
If yes,what is the plamred closing date? June 2001
Latitude/Longitude
Lautuae(aogrees,min.,sec.N or ciecimal acgrces)
Longitude(degrees,min.,sec.W or decimal degrees) w -97.33744
Date of collection 04/18/2001 Organization providing collection data Michael Ganga Cityof
Fort Worth Department of Bttvironmental Management
Cbeok the method used to determine latitude and longitude:
GPS-Real Time DiffprcAd&Uy Corrected
GPS -Post Processed DitYerentially Corrected
Map Interpolation-Manual
X Map Interpolation-Digital USGS Quad may—Haltom City
DOQQ
If using GPS,please state professional unit brand name,model number gond accuracy tolerances.
If using Map Interpolation,please state which USGS quad map was used for iatexpolation.
If using DOQQ Interpolation,please state which DOQQ was used for interpolation.
3
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09/81/2884 14:40 972. 4145 W&M PAGE 85/19
Does the latitude and longitude listed above refer to the
Center of the property?
.f_Main entrance to the property?
Other,please describe
VCP Eligibility and Involvement With Other Regulatory Programs
Is the site subject to a TNRCC permit or administrative order?Yes No X
Have response actions been initiated at the site after April 1996?Yes No X
Note; Response actions initiated after April 1996 may cause the applicant to become
ineligible for the VCP.
Has a state or federal Notice of Violation or any other notice of oforcament action been issued
relating to contamination at the site?Yes X No
Has there been any prior contact with any state or federal caviromnental regulatory programs or
agencies relating to environmental issues at this site?Yes_ X No
If yes, please describe all prior contact with any state or federal emirvntntal regulatory
programs or agencies which relate to each of these questions. Attach additional shcnts as
accessary.
On Pcbnrary 1, 1980, the United States Environmental Protection AeeticyL�YA) made a
oretiminarv..assemment of the American_ymamid site. On July 1, 1980, EPA conducted a site
Lw—cutin. the site was U&CO t its 1,10 r.: .7n,► r..uxvw-+ ..�+.
QMRAP).
American, Cyanamid announced the site's cloeurc in May 1983, and filed closure plans It th
with the EPA and the Tom Dcaertmient of Water Resouges CIDWRZan required under
the Resource Cos®rvation and Recovery Act(RCRA). The site was closed in accordance with
the RCRA closure plans.
On_MUch 31. 1995, the Texas Natural Resource Conservation Commission (TNRCC) rued
Cytec Industries. Inc.. a Notice of Violation (NOV) with a Coxreetive Action Directive(CAD)
(SWR/ID Number: 30023)concogim the eelease of metals into the soil,sediment,Vundwater,
rmwaxes. Additional samnli" activities were conducted fiamUX to September 1995.
On June 12 1997Cytec Industries, Inc. submitted a site investigation report. Hest revision tb
the TNRCC. The obiacts,ves of the investigation were to meet the r;mjMmetzts of the CAD sad
to develaa a rntovosal for�on and site closure On May 17,2001 the TNRCCissue
letter to Cvtee with, comffients on the June 111997 site investigation revert, MY=Cytec 180
days to respond.
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09/81/2884 14:48 972. 4145 W8a1 PAGE 86/19
Is a request for reimbursement pre-approval eurreody under review by the Petroleum Storage
Tank(PST)Program?Yes No _?g__
If yes,then please describe the site's status in the PST Program:
Please provide any and all state and federal identification numbers related to the Property in
question, including any solid waste (SWR), leaking petroieum storage tank (LPST), CERCLIS,
RCRIS, UIC, etc. registration numbers which have been assigned. I;tCRIS:_T=W$017261,
SWR D Number 30023 .
Contaminated Media and Contaminants Present
Have contaminants been detected in on-site media?Yes X_No
Please check the chemicals of concern within each contaminant category and the media which
have been affected:
"VOCs Ben�enc
Vinyl Chioride
cis 1,2 DCE
trans 1.2 DCE
`-� Trichlaraethykne
Perchlometh lens
•SVOCs
*u�m_w a f9r,te A�„a;q Mln4vbAenunn
Cadmium
Chromium
Coban
Copper
Lead
Mercury
Molybdenum
Nickel
Silver
Vanadium
ochlorinated Vinyl Chloride
8olvenb cis 1,2 DCE
trans 1,2 DU
Trichloroethylene
Perchlo lene
Pesticides
TPR
PCBs
Other x
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09/81/2094 14:40 9725._4145 AM PACE 07/19 Ju
*Please describe.
Applicant's Intended Response Action Objectives(Cleanup Levels)
Not known at this time. Applicant wishes to receive guidance Brom VCP staff prior to the
signing of a VCP agreement.
Tezaa Risk Redaction Program(11W)Rules(30 TAC-Chapter 330)
Cleanup to Remedy Standard A,Tier I .Levels -Default Protective Concentration Level
(PCL) equations. See table for list of PCLs for common constituents. No physical
controls necessary.
Cleanup to Remedy Standard A, Tier 2 Levels - Default PCL equations, site-specific
parameters,MCC Models.No physical controls necessary.
Cleanup to Remedy Standard A, Tier 3 Levels -Proposed PCL equations based on site-
specific parameters,user proposed models.No physical controls necessary.
Cleanup to Remedy Standard B,Tier 1 Levels-Default PCL equations,physical controls
necessary.
Cleanup to Remedy Standard B, Tier 2 Levels - Dethuh PCL equations with some sito-
specific property parameters,physical controls necessary.
Cleanup to Rcmedy�iunaara o, i;.ot u -
physical controls necessary.
PST Rules(30 TAC Chapter 334)
Cleanup to generic ri*-based levels(following PST Plan A requirements).
Cleanup to site specific risk-based levels not relying on angineering or institutional
controls(following PST Plan B requirements).
Cleanup to ate specific risk-based levels which rely on engineering or institutional
controls(following PST Plan B requirements).
Other(explain)
X Risk Reduction Standard 2.
6
TNRCC V"m ZZ-Reviem 7=M.pWAM im""oWWO
09/01/2004 14:40 971 4145 W9M PAGE 08/19
Federal Brownllelds Tax Deduction
Are you repeating a TNRCC statement that the site is a"qualified contaminated site" and that
the cleanup costs are eligible for a federal tax deduction ander the Taxpayer Relief Act of 1997
(HR 2014)7 Yes No X
If yes,please read the application instructions for more information about this tax deduction.
State property Tax Abatements for Brownfields
Are you interested in signing an agreement with the local taxing authority to receive a property
tax abatement after issuance of the VCF Certificate of Completion, as allowed under Section
31.2.211 of the Tcxas Tax Code?Yes No X
If yes,please read the application instructions for more information about this tax abatement.
Environmental Assessment
An environmental assessmcat that includes the following information must be attached to this
application:
1. a legal description of the site,including a site map drawn to scale;
2. the physical characteristics of the site,
3. the operational history of the site,to the extent the history is known by the applicant;
4. ltilOtJ[flSulOa i;;ac ioB ii
contamination and/or release at the site and in areas contiguous to the site;and
S. relevant information the applicant is aware of concerning the potential for human and
environmental exposure to contamination at or emanating from the site.
Intent to Participate
The undersigned requests oversight by the TNRCC of investigation and cleanup activities of
possible contamination'at the property described above and intends to negotiate in good faith, a
written agreement with the TNRCC to provide technical and regulatory oversight.This Intent to
Participate does not constitute such an agreement and neither TNRCC nor the undersigned will
be bound to proceed with VCP oversight unless such an agreement is executed. Applicants
should be aware that in order for the TNRCC to issue a VCP Ce&fieate of Completion for an
entire site, the applicant must provide adequate information to document that the amore site
meets the applicable standards. As an alterative,the applicant may pursue a VCP Certificate of
Completion for only a portion of the site, as a partial response action area. The agreement will
(10MI)e the project activities of each party and will require Applicant A (unties indicated
otherwin on page 2 of this form) to reimburse tbo TNRCC for all of its oversight costs. By
7
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09/01/2004 14:40 972, .4145 W&M PAGE 09/19
completing and signing this Intent to Participate, the undersigned does affirm the applicant's
financial capability to perform the voluntary cleanup. The Executive Director way request
additional information to support this affirmation. With this Intent to Participate,the undersigned
does not admit or assume IiabiHty for investigation or cleanup of the site. In addition, the
undersigned may terminate the Intent to Participate at any time. If the TNRCC rejects the
application,it will notify the applicant and explain the reasons for rejection and will refund half
of the application deposit. unless the applicant indicates a desire to resubmit a oorrected
application. An applicant can resubmit an application once witboat submitting an additional
application fee,if the applicant resubmits within 45 days after the rejection notice date.
Deposit of Oversight Costs
The applicant must submit with this application,a deposit in the amount of one thousand dollars
($1,000),made payable to the Texas Natural Resource Conservation Commission.Deposits may
be meds in the farm of company or personal checks. If a deposit check is returned due to
insufficient funds, the application will be considered incomplete and will be rejected. Cash
deposits will not be accepted.
Please execute this latent to Participate to the space below and retura it and allassociated
documents(e.g.,environmental assessment reports)to:
Attention:Cashier
Texas Natural Resource Conservation Commission
MC-214
P.O.Box 13088
Anatin,Texas 78711-3088
Attention:Cashier
Texas Natural Resource Conservation Commission
MC-214
12100 Park 35 Circle
Austin,Texas 78753
Noh: Please do not send the application and associated documents direct► to the VCP.
This will only result In a delay in processing your application.
Correctness of Information
The undersigned affirm that the information contained in this application is true and accurate to
the beat of their knowledge.
8
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09/81/2004 14:40 97: 1145 W91M PAGE 18/19
Applicant's Signatures
Applicant A
By. Nacre: Brian Boerner
(sign mure) (print or type)
Date: Title; Director,Bavironmental Management
Company City of Fort Worth Phone:(817)$71-8079
Applicant B
By Name: Antw::C.Marek
(signature) (Ont or type)
Date: Title: Remediation NWw-r
Company: Cytec Industries,Tne. Phone:(973)425-8410
Applicant C
By: Name: Carl W.Bell
(print or type)
Data: Title: Chairman
Company: Texas Indeaendent Baseball,L.L.C. Phone: (972)581-4801 `
9
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99/01/2984 14:40 971 1145 W&M PAGE 11/19
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
VOLUNTARY CLEANUP PROGRAM AGREEMENT
INTRODUCTION
This Agreement is entered into voluntarily by the City of Fort Worth, Texas (Applicant A), Cytec
Industries, Inc. (Applicant B), Texas Independent Baseball, L.L.C., and the executive director of the
Texas Natural Resource Conservation Commission (TNRCC). This Agreement is not and shall not be
construed as an admission of any liability under the Texas Solid Waste Disposal Act or any other law or
as a waiver of any defense to such liability.No approval hereunder or receipt of Ponds hereby shall be
taken is a warranty as to sufficiency or efficacy of the response action.Tho purpose of this Agreement is
to detail the obligations and functions of each parry,reload to the voluntary response action prooess at the
American Cyanamid facility,600 N.]ones,Fort Worth,Texas(Site),Vohmtery Cleanup Program(VCP)
No.1359.
The activities conducted by the Applicants under this Agreement ars subject to approval by TNRCC.The
activities conducted by the Applicants shall be consistent with this Agreement, all applicable laws and
regulations and any appropriate guidance documents. Applicants shall employ sound scientific,
engineering and construction practices.
STATEMENT OF ELIGIBILITY
The executive director has determined that the application submitted by the Appiicams is complete and
that the Site is eligible to participate in the VCP established under Subchapter S of Chapter 361 of the
Health and Safety Code(HSC).If the agency determims that the Applicants withheld or misrepresented
information that would be relevant to the Site's eligibility,the executive director may exercise his/her
right to withdraw from this Agreement.
PARTIES BOUND
This Agreement shall apply to and be binding upon the Applicants„ their officers, directors, principals,
employees, receivers, trustees, agents, successors, subsidiaries over which the Applicants exercise
control,and assigns and upon the TNRCC,its employees,agents,assigns and successors.The signatories
to this Agreement certify that they aro fWly authorized to execute and legally bind the parties they
represent.No change in ownership, corporate,or partnership status of Applicants shall in any way alter
their status or responsibilities under this Agreement unless an Applicant or TNRCC withdraws from this
Agreemont.
Applicants shall provide a copy of this Agreement to any subsequent business owners or successors
betbre ownership rights are transferred. if an Applicant is also the owner of the Si*the Applicant shall
provide a copy of this Agreement to prospeetivc purchasers of the Site prior to transfer of title.Applicants
shall provide a copy of this Agreement to alt contractors, subcontractors, laboratories, and consultants
which are retained to conduct any work performed under this Agreement, within 14 days after the
efFective date of this Agreement or within 14 days afEer the date of retaining their services, whichever is
later.
1
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09/01/2004 14:40 972. 1145 W&M PAGE 12/19
DU NITIONS
"Site" means the aro&described in the VCP application,attached and incorporated herein as Exhibit"A"
or, if the executive director approve&the Applicants' request to address a partial response action area,
then only that portion(i.e.,the partial response action area)of the area described in Exhibit"A."
ADDRESSES FOR ALL CORRESPONDENCE
Documents, including reports, approvals, notifications, disapprovals, and other correspondence to be
submitted under this Agreement, may be sent by certified mail, return receipt requested, hand delivery,
overnight mail or by courier service to the following addresses or to such addresses as the Applicants or
TNRCC may designate in writing.
Documents to be submitted to MCC should be sent to.
Mailing Address Overnight/Express Mail Address
Mike Frew Mike Frew
Project Manager Project Manager
Voluntary Cleanup Section Voluntary Cleanup Section
MC-221 MC-221
P.O.Box 13087 12100 Park 35 Cirole
Austin,TX 78711-3087 Austin,TX 76753
Documents to be delivered to the Applicants should be sent to (include name, address and phone
number):
Applicant A:
4r[y o7 1'or% Worm, re"s
Brien Boerner,Director
Department of Envimnmental•Managoment
1000 Throckmorton Strout
Fort Worth,Texas 76102
Phone: 817-871-8079
Fax: 817-871.6359
Applicant B:
Cytec Industries,NO.
Anton C.Marek,Remediation Manager
1300 Mt.Kemble Avenue
Morristown,New Jersey 07960
Phone: 973425-8410
Fax: 973-425-0183
Applicant C:
Texas Independent Baseball,L.L.C.
Carl W.Bell,Chairman
16980 N.Dallas Parkway
2
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09/01/2004 14:40 972, 145 W&M PAGE 13/19—
Dallas,Texas 75248
Phone: 972-581-4801
Fax: 972-581-4802
COMPLIANCE WITH APPLICABLE LAWS
All work undertaken by the Applicants pursuant to this Agreement shall be performed in compliance with
all applicable federal,state and local laws, ordinances and regulations, including, but not limited to,all
Occupational Safety and Health Administration, Department of Transportation and Resource
Conservation and Recovery Act regulations.Tn the event of a conflict in tho application of federal,state,
or local laws, ordinances and regulations, Applicants shall comply with the more/most stringent such
laws,ordinances,or regulations,unless authorized otherwise in writing by TNRCC.
Federal requirements shall be followed if they are the more/most stringent. However, as provided by
HSC, Section 361.611 a state or tical permit shall not 6e required,although Applicants must coordinate
with ongoing federal and state hazardous waste programs and must comply with the substantive
requirements of an otherwise required state permit.Where it is determined that a permit is required under
federal law,Applicants shall submit timely and complete applications and take all other actions necessary
to obtain all such permits or approvals. The Applicants shall be responsible for obtaining all federal
permits which are necessary for the performance of any work hereunder. '
APPLICABLE RULES AND REGULATIONS
The VCP rules, 30 Texas Administrative Code (TAC) 333, Subchapter A and the following rules or
regulations are specifically designated as being directly applicable for the Site and must be followed.
Citation of these rules does not imply that they are the only applicable rules.
30 TAC 350(Texas Risk Reduction Program Rules-TRRP)
30 TAC 334(Petroleum Storage Tank Rules)
V";Q41 JV iAC—5.jj,SUok;asplier S(RiSk
SUBMITTALS AND SCHEDULES
The following plans and reports were included with the VCP application,in this Agreement,or have been
added by amendment to this AVftmont:
Phase I Environmental Site Assessment(ESA)
Phase 111Limited Phase 11 ESA
Affected Property Assessment Report(Texas Risk Reduction Program Rules-TRRP)
Response Action Plan(Texas Risk Reduction Program Rules-TRRP)
—X—Other Soil Investigation Report, dated ,lune 1997; Draft Soil and Groundwater Investigation
Report, dated December 13,2000; Draft Due Diligence Assessment Report, dated December 15,
2000;and Final Groundwater Sampling Report dated March 28,2001.
In compliance with the afommentioned rules or regulations, the required submittals shall include a
monthty status report which describes all activities completed for the current month and diose planned
for the upcoming month. Future plans and reports should be prepared in accordance with the TNRCC
VCP guidance document entitled Guidance for Initiating ago Reoortina Response Actions Conducted
Under TNRCCs VohmIM Cleanup Program (RO-213), In order to complete the voluntary cleanup
3
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09/01/2004 14:40 971 4145 W&M PAGE 14/19
activities which aro necessary for Certificate of Completion issuance,the following plans and reports will
be submitted according to the schedule specified in Appendix A.
Rcsponsw to 7NRCC comments on the aforementioned submittals shall be in accordance with time
frames provided in TNRCC comments letters. Most comment letters specify a 60 day response time
iirame;however,applicants are encouraged to respond as soon as possible.
Proposed future land use to be achieved:
Residential(i.e.,unrestricted)
Non-residential(i.e.,commercial/industrial)
X Other(e.g.,agricultural or recreational)
DESIGNATED PROJECT MANAGER
On or before the effective date of this Agreement,the TNRCC and the Applicants shall each designate It
project manager. Each project manager shall be responsible for overseoing the Implementation of this
Agreement. The TNRCC project manager will be the TNRCC- designated representative at the Site.To
the maximum extent possible, communications between the Applicants and 7NRCC and all documents
(including reports, approvals and other correspondence)concerning the activities performed pursuant to
the terms and conditions of this Agreement shall be directed through the project managers. During
implementation of this Agreement, the respective project managers shall whenever possible, operate by
consensus and shall attempt in good faith to resolve disputes informally through discussion of the issues.
.Each party has the right to change its respective project manager by notifying the other party in writing at
least five days prior to the change.
ACCESS
To the extent that the Site or other areas where work is to be performed hereunder is presently owned or
.._..���.� :� r« .., .,...�. ....... ....._:i .,.,w.... ..j ...'.o.',a..,>....;., _.r :',.rte......_. .«. ........ ....... ; ... .... �_.
its best efforts to obtain access agreements from the present owners. Bask efforts yshall include at it
minimum, a certified letter from Applicant to the present owner of such property requesting an access
agreement to permit Applicants.TNRCC,their authorized representatives and persons designated by the
TNRCC in accordance with HSC,Section 361.752(c)access to such property.Any such access agreement
shall be incorporated by reference into this Agreement. Such an agreement shall provide access for
Applicants.TNRCC and authorized representatives of TNRCC.and persons designated by the TNRCC in
accordance with HSC. Section 361.752(e),as specified below.in the event that such access agreement is
not obtained, the Applicants shall so notify TNRCC, which may than, at its discretion, assist the
Applicants in gaining access.
11fe Applicants shall provide authorized representatives of TNRCC access to the Site and other areas
where work is to be performed at all reasonable times. Such access shall be related solely to the work
being performed on the Site and shall include,but not be limited to:inspecting records,operating logs and
contracts related to the Site; reviewing the progress of the Applicants in carrying out the terms of this
Agreement; conducting such tests, inspections, and sampling as TNRCC may deem nooessary; using a
camera,sound recording,or other documentary type equipment for field activities;and verifying the data
submitted to TNRCC by the Applicants hereunder, The Applicants shall permit TNRCC's authorized
representatives to inspect and copy all records. files, photographs, documents, and other writings,
including all sampling and monitoring data. which pertain to this Agreement and over which the
4
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09/01/2004 14:40 971 4145 W&M PAGE 15/19--
Applicants may exercise control. All persona with access to the Site pursuant to this Agreement shall
comply with submitted health and safety plans.The TNRCC does not approve health and safety plans.
DISPUTE RESOLUTION
This section(Dispute Resolution)shall apply to any dispute arising under any section of this Agreement,
unless specifically excepted. It should be noted, that as provided for in HSC, Section 361.607, the
executive director or the Applicants in its sole discretion may terminate the Agreement by giving 15 days
advanced written notice to the other.
The parties shall use their best effort to, in good fkIth, resolve all disputes or differences of opinion
informally.If,however,disputes arise concerning this Agrocment which the parties are unable to resolve
informally,the Applicants may present written notice of such dispute to TNRCC and set forth specific
Points of dispute and the position of the Applicants. This written notice shall be submitted no later than
five calendar days after the Applicants discover the project managers are unable to resolve the dispute.
The Applicants' project manager shall notify the TNRCC's project manager immediately by phone or
other appropriate methods of communication prior to written notice,when he/she believes the parties are
unable to resolve a dispute.Within ten days of receipt of such a written notice,the TNRCC will provide a
written response to the Applicants setting forth its position and the basis therefore. During the five
calendar days following the receipt of the response,the parties shall attempt to negotiate in good faith a
resolution of their differences,if during this negotiation period,the TNRCC concurs with the position of
the Applicants,the Applicants will be notified in writing and this Agreement shall be modified to include
any necessary extensions of time or variances of work.
Following the expiration of the previously described time periods,if no resolution of the disputed imsue(s)
has been reached,the executive director shall make a determination regarding the dispute,based upon and
consistent with the terms of this Agreement and will provide written documentation of such determination
to the Applicant
At this juncture, If disoute resolution fails and either or both varties exercise their right to withdrew from
Enc Agreement by giving 0 gays aovancee wrhuen nuacn to iia OLACr, 001y UkAte wsw wvwsiou of
obligated by the TNRCC before notice of termination of the Agreement are recoverable under the
Agreement.
RESERVATION OF RIGH
TNRCC and Applicants reserve all rights and defenses they may have pursuant to any available legal
authority unless expressly waived herein.
Nothing herein is intended to release, discharge, or in any way affect any claims, causes of action or
demands in law or equity which the parties may have against any person,firm,partnership or corporation,
not a party to this Agreement for any liability it may have arisen out of, or relating in any way to the
generation, storage, westment, handling, transportation. release or disposal of any materials, hazardous
substances, hazardous waste, contaminants or pollutants at, to or from the Site. The parties to this
Agreement expressly reserve all rights, claims, demands, and causes of action they have against each
other,and against any and all other persons and entities who are not parties to this Agreement.
The Applicants reserve the right to seek contribution, indemnity, or any other available remedy against
any person other than TNRCC found to be responsible or liable for contribution, indemnity or otherwise
for any amounts which have been or will be expended by the Applicants in connection with the Site.
5
++++xec gena�02as.wnyhan 2.s-a.�d l00-.,..:ea■+wdw,.aleurex
- . . . .... ..... ._•�vva-rvw F. Jc
09/81/2664 14:48 972° 4145 W9M PAGE 16/19
During the term of this Agreement.TNRCC will not bring an enforcement action against Applicants for
any Violations of statutes or regulations for the specific violations or releases that are being remadiated by
this Agreement,unless the Applicants withdraw from this Agreement prior to completion of the response
action. However, a responsible party remains liable for contamination should response action standards
change or additional contamination be discovered.Non-responsible party Applicants have a release ftom
liability upon issuance of the Certificate of Completion subject to statutory conditions in Scotian
361.610(c)HSC.
ADMINISTRATIVE COSTS
Applicant A, unless indicated otherwise in Exhibit"A".agrees to reimburse TNRCC for all of its costs
asaoefated with implementation of this Agreement.TNRCC's costs may include direct and indirect cogis
of overhead,salaries,equipment,utilities,legal,management and support costs associated with the review
of the Applicant's work plans and reports and oversight of field activities.
The TNRCC will track all costs to the TNRCC for review and oversight activities related to the Site and
provide quarterly invoices to the person responsible, per this Agreement for said costs. If TNRCC costs
are less than the application fee of one thousand (S 1.000) dollars, the remaining balance in the Site
account will not be refunded.The Applicant shall pay these invoiced costs to the TNRCC within 30 days
after the date the Applicant receives notice that these costs aro due and owing. If payment is not made
within 30 days after the date the second notice that these costs aro due and owing is sent,the TNRCC will
stop reviewing any site-related submittals. If payment is not made within 30 days after the date the third
notice is sent, the TNRCC shall terminate this Agreement and mquest that the attorney general bring
action to recover all cosh allowed by law.
Checks shall be made payable to the Texas Natural Resource Conservation Commission and be mailed
along with a transmittal letter stating the Site name, VCP number, and addressed to the Texas Natural
Resource Conservation Commission; MC-214; Attention: Cashier; P.O. Box 13088, Austin, Texas.
78711-3088.
1n one event UIX mis Agreement 1s ccrrnmateu for any ro"Ufi,AppljQ lu A,iuTtdvai isw—a,"vw!-
Exhibit"A",agrees to reimburse TNRCC for all costs incurred or obligated by the TNRCC before notice
of termination of the Agreement.
NOTICE OF BANKRUPTCY
As soon as Applicant has knowledge of its intention to file bankruptcy or no later than seven days prior to
the actual filing of a voluntary bankruptcy petition,Applicant shall notifj TNRCC of its intention to file a
bankruptcy petition. in the case of an involuntary bankruptcy petition, Applicant shall give notice to the
TNRCC as soon as it acquires knowledge of such petition.
INDEMNMCATION
The Applicant agrees to indemnify and save and hold the State of Texas, its agencies, successors.
departments, agents and employees, harmless from any and all eiaims, damages or causes of action
arising from or on account of, the willful or negligent acts or omissions of the Applicant, its officers,
directors, prinoipals, employees, receivers, trustees. agents, successors, subsidiaries over which the
Applicant exercises control and assigns in carrying out the activities pursuant to this Agreement. By
entering Into this Agreement, the Applicant does not asaume any liability arising ftom the acts or
omissions of the TNRCC or its agents or employees in carrying out any activities pursuant to this
Agreement.
6
MOC Pam 10242.Velhim 7a.lkcMad?Me.VMIGUS varier.obwkft
69/e1/2ee4 14:40 9725 3145 W9M PA&- 1 /i19
EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
The effective date of this Agreement shall be the data on which this Agreement is signed by the Executive
Director of TNRCC or his/her authorized representative. This Agreement may be amended by mutual
agrecment of TNRCC and the Applicant. Amendments shall be in writing and shall be effective when
signed by the Executive Director of TNRCC or his/her authorized representative.
TERMINATION AND SATISFACTION
The provisions of the Agreement shall be satisfied when TNRCC gives the Applicant written notice in the
fonts of it Final Certifleate of Completion that the Applicant has demonstrated to TNRCC9 satisfaction
that all teens of this Agreement have been completed, including the selection and Implementation of a
response action,when appropriate.
Nothing in the Agreement shall restrict the State of Texas from seeking other appropriate relief to protect
human heahh or the environment from pollution or contamination st or from this Site not remediated in
accordance with this Agreement
7
TNKC Fara I PU2-VwWan 21-RMPd 7100-IMavims Y"Ou*y9ae
09/91/2004 14:40 972 1145 WBM PAGE 18/19
SIGNATURES
Applicant A
By: type) Neme:
(signature) (print or
Date: Title;
Applicant B
By: Name:
(signature) (print or type)
pate: Title:
Applicant C
$y: Name:
(signature) (print or type)
Date: Title:
TMRCC Representative
By: Name:
(sign-ti, e of authorized representative) (print or type)
Date-_ Title•
8
TWRCC Pam IOU2.Vm1m 2.2•kwhW 7M•Pmvkw,,m4m&*%Mac
09/01/2004 14:40 972 145 W&M PACE 19/1y
APPENDIX A
SUBMITTALS AND SCHEDULES
Sicils—Risk Reduction Standard 2
• Completion Report—July 2001
Groundwater—Risk Reduction Standard 3
• Work Pian
• Investigation Report
• Risk Assessment
o GW to Air Pahway
o Deed Restrictions
• Monitoring Schedule orCompiction Report
9
TMCC Fane 10742-V"m 2.2-AxvW 100•emioue vaylpu oAielme
fp
EXHIBIT 9.4b
VOLUNTARY CLEANUP PROGRAM
PROGRAM APPLICATION FOR TECHNICOAT
uLl VL LVU`f 1IW VQ'JJ nil ')FLLlf1UU[- f inraiV1nL rnn nu. ,,c_ Joi4ouu r. 4v
09/01/2004 14:46 972; .145 AM PAGE 04/14
R 10M 0 nbW 30
0"WE USE ONLY
RCA number:
VW bcdect number:
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
VOLUNTARY CLEANUP PROGRAM
Program Application _
Please complete this form,a TNRCC Form 10400 and an agroement form to inquest assistance and
review from the Tom Natural Resource Conservation Commission(MCC)staff in the Voluntary
Cleanup Program(VCP)pursuant to§361.604 of the Texas Solid Waste Disposal Act. You may
download this document,TNRCC Form 10400 and any other VCP_ documents via the Internet at
http://www.staa txut/permittingtroned/vcp/vep/html.
Complexe all applicable sections. The TNRCC may reject incomplete or inaccurate applications as
per §361.605 of the VCP statute. To accurately complete this focal, please refer to the VCP
Application Instructions or call the TNRCC's Voluntary Cleanup Section at(512)239-5891 with any
questions concerning the completion of this form.
General Site Informadon
Site Name JAWWCoat Site Ma northem half_&wmxlmaWv i an ir,awned by W.Havins. The
satthesn half,wwgslw v 1 acme is owned by C*c Industries and was ereytous v Jawed to TechniCeatl
Site Size(acres) Approximately 2 Acres
Regulated Entity Reference No.(if issued):CN
Applicaut(s)
Applicant A(The person or entity seeking review and approval of a plan or report and/or issuance
of a YCP Certificate of Completion by the TNRCC. Applicant A is responsible for payment of
TNRCC costs of review and oversight unless indicated otherwise on page 2 of this form).
Applicant City of Fort Worth.TX
Contact Persott8rian Boemar Title
Customer Reference No.(if issued):CN-
Organization City of Fott Worth Phone(817)871-80 5�_Fax f&17 SZJ&3�2
Interest in Property Purchaser
To receive copies of TNRCC correspondence? Yes.XX_No
Applicant B
Applicant Cytea Industries
Contact person_ Anton C.Musk Title RmZfdiadon bl naXet
Customer Reference No.(if issued):CN-
Organization Cytec Industries Tn. Phone(973)569-4009 Fax(973)569-4011
Interest in Property S-Wner fsouthern!-acre 22diQn of site.which was formerly leased to Technicoat.)
To receive copies of TNRCC correspondence? Yes_-Z_No
rt4=ware.x 1 -FAWWWW1.PftWftn""WWqh JIM
— — wvz "IV VV-JV 1-111 ULLLLUnUU1- C11YMIQ 11`11- rnn NU. JrC_ Z)0jq 0U F. [}�
99/01/2004 14:46 972, 145 W&M PAGE 05/14
Applieant C
Applicant
Contact person Carl WK-Bell. _ Title _ Chairman
Customer Reference No.(if issued):CN-
Organization Texas Indepe�tlenLBamball.LLC.-Phone(97215814801Fax(972)581-4802
,_.Jntetrst in Property Futum lessee
To receive copies of TNRCC correspondence? Yes No, Xx—_
If more than three applicants,list others under"Additional Applicants•on page 8 of this form.
Current Site Owner(if different from an applicant)
Owner(sYelton H.Having.Sr (northern 1-acre_tmrtion of site ad owner of TechniCoat)
Contact Person_John Wi s n Title Attorn
Organization Phone(512)495-6015 Fax(512):L95-6093
DAPORTANT-Please attach a completed form TNRCC-10400 for each applleant and the
current site owner.
Other Contacts (Consultant/Attorney)
Organization The 1T Groyp Phonc(972)341-8315 _Fax(9721341-8365
Addm&sj►201 Aeltlirla Road
City_Qgypell State_- TX Zip Code 750194907
Names) 12an h aellg 'title Vice Preddgnt
Organization Whitehead and UVOCr.Inc. Phone(972)633-3810 Fax(972)633-3910
Address 1612 Avenue J
City- Plano State TX _ Zip Code 75074
Billing Information
If billing should be directed to a person other than Applicant A,please enter the requited infonnadon
below and include their signature consenting to the obligation for payment of TNRCC oversight
costs.
Names) Title
Organization Phone j Fax( l
Address
City State Zip Code
Signature:of Consent: Date:
TMCC VWMM 3.1 -Re-bW WWI-WUN ftvfwl 0"dit" 2
09/01/2004 14:46 9725164145 AM PAGE 06/14
Current Property Use(Use percentage if site is divided into different use categories)
Residential Other(e.g.,agricultural,recreational)
Non-residential_XX—If non-rasidential, type of badness •Thin site WASSpreviouslyoRerated as a
manufacturing plant. The site is currently inactive and fallow
Is a real estate transaction imminent for this site? Yeses— No
If yes,what is the planned closing date?nrrnler 2001
Latitude/Longitude
Latitude(degree.*,min.,sec.N or dccimnt degrees)032.46,04N
Longitude(degree.min.,sea W or 4eeimal degrees)097.20.15 W
Date of collection 8/29/01 Organization providing collection data Whitehead and Mueller
Check the method used to determine latitude and longitude:
GPS-Real Time Differentially Corrected
GPS-Post Processed Differentially Corrected
Map Interpolation-Manual
—XX Map Interpolation -DigitalMNbjg$Lcom Dallas Quadrangle
A.*V 1
If using GPS, please state professional unit brand name, model number and accuracy tolerances.
If using Map Interpolation, please state which USGS quad map was used for interpolation.
If using DOQQ Interpolation,please state which DOQQ was used for interpolation.
Does the latitude and Iongitude listed above refer to the
.29L Center of the property?
Main entrance to the property?
Other,please describe _-
VCP Eligibility and Involvement Witb Otbier Regulatory Programs
Is the site subject to a TNRCC permit or administrative order? Yes X_ No (See
Attachment B)
Have response actions been initiated at the site after April 1996? Yes No_X_Note:
Response actions initiated after April 1996 may cause the applicant to become ineligible for the
VCP.
Has a state or federal Notice of Violation or any other notice of enforcement action been issued
relating to contamination at the site? Yes_2L_No
Has there been any prior contact with any state or federal environmental regulatory programs or
agencies relating to environmental issues at this site? Yes X _ No
TMCC VOW—M -Revised IM01.PWAQU VMICIN cknme 3
r^, nom^
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—_ _— —__ - ..._ —_ .. ................ . .............. . ..0 nvi _vvawv`. I . 'iV
09/01/2084 14:46 97251b4145 W&M PACE 07/14
If yes,please describe 9 prior contact with any state or federal environmental regulatory
programs or agencies which relate to each of these questions. Attach additional sheets as
necessary. INC Awed Order Issued Aug+ t 12, 991 Enforcem .O r Iss t e
I N Con hme 25, 1999. Termination of dhe Order is to be considered by the'I'NRCQv
December 31.2001.
Is a request for reimbursement pre-approval currently under review by the Petroleum Storage
Tank(PST)Program? Yes NoXX .—
If yes,then please describe the site's status in the PST Program
Please provide M and all state and federal identification numbers related to the property in
question,including any solid waste registration,leaking petroleum storage tank,CERCUS,
RCRIS,UIC,etc. registration numbers which have been assigned.
TeehniCoat– Solid Waste Registration#30068
TNRCC Agreed Order.Docket No. 98-0723-MW-F
EPA ID No.TXD982293912
Contaminated Media and Contaminants Present
KT
Please check the chernicals of concern within each contaminant category and the media which have
been affected:
Contaminant Category Soil Groundwater Surface Water Sediment
*VOCs XX XX
*SVOCs
*Heavy Metals XX
*Chlorinated Solvents XX XX
Pesticides
TPH
PCBs
Other
*Please describe Cis-1.2-DCE,Trane-1.?.-DCL TCE,PCE,YC.MWK,Cd Pb,NL and CR
TMRCC Vmsi=3.1 .Rerlud 32001•pmA=vanioro obsotNe
1 . JV
09/01/2004 14:46 97251b4145 W&M P40W 08/14
Applicant's Intended Response Action Objectives(Cleanup levels)
{ Not known at this time. Applicant wishes to receive guidance from the VCP prior to the
signing of a VCP agreement.
Texas Risk Reduction Program Rules (30 TAC Chapter. 350)-Check Appropriate
Standard and Tier Level:
Self-Implemented Cleanup to Remedy Standard A,Tier 1 ____ Tier 2—Tier 3
Non Self-Implemented Cleanup to Remedy Standard A,Tier 1 —Tier 2—Tier 3
— Cleanup to Remedy Standard B.Tier 1_Tier 2 _Tier 3_
PST Rules (30 TAC Chapter 334)- Check Appropriate Standard:
-_ Cleanup to generic risk-based levels(following PST Plan A requirements).
Cleanup to site specific risk-based levels not relying on engineering or institutional
controls(following PST Plan B requirements).
controls (following PST Plan B requiTements).
Other(explain)
Federal Brownfields Tax Deduction
Are you requesting TNRCC certification that the site is eligible for a federal tax deduction under
the Taxpayer Relief Act of 1997(HR 2014)? Yes No XX Not at this time
If yes,please submit a Brownfields Tax Deduction Pre-Certification Form.This form may be
downloaded from http://wwwjtatctx.us/permitdnWreme&vcp/vcp&bnl.
State Property Tax Abatements for Brownflelds
Are you interested in signing an agreement with the local taxing authority to receive a property
tax abatement after issuance of the VCP Certificate of Completion, as allowed under Section
312.21.1 of the Texas Tax Code? Yes No-2"_Not at this time
If yes,please read the application instructions for more information about this tax abatement.
Environmental Assessment
An environmental assessment that includes the following information must be attached to this
application:
7NRCC Venice 3.1 -Revised 3M01.Psvioee vee m avow
09/01/2004 14:46 97251e4145 W&M PAG1 -E 09/1J14
1. a legal description of the site,including a site map drawn to scale;
2. the physical characteristics of the site;
3. the operational history of the site, to the extent the history is known by the applicant;
4. information that the applicant is aware of concerning the nature and extent of any
contamination and/or release at the site and in areas contiguous to the site; and
5. relevant information the applicant is aware of concerning the potential for human and
environmental exposure to contamination at or emanating from the site.
Intent to Participate
The undersigned requests oversight by the TNRCC of investigation and cleanup activities of
possible contamination at the property described above and intends to negotiate in good faith, a
written agreement with the TNRCC to provide technical and regulatory oversight. This Intent to
Participate does not constitute such an agreement and neither TNRCC nor the undersigned will
be bound to proceed with VCP oversight unless such an agreement is executed. Applicants
should be aware that in order for the TNRCC to issue a VCP Certificate of Completion for an
entire site,the applicant must provide adequate information to document that the entire site meets
the applicable standards. As an alternative,the applicant may pursue a VCP Certificate of
Completion for only a portion of the site,as a partial response action area. The agreement will
describe the project activities of each party and will require Applicant A (unless indicated
otherwise on page 2 of this form) to reimburse
__ ._ ` ..� eL:.. T_..e.-,.,,n A. ►_',tea-•ems..:�..,�n n.}r�
Luv 11-i.'.v`.a"aa C... �.. .w v;..cwQ.,ei vvJ.,J. r� ......•�.....�•..L,�.--. _ -_�-� _._.. __. .. .. -. _ "
that excepting areal limitations with partial response actions,MU environmental media which
exceed the critical Protective Concentration Levels shall be addressed through appropriate
response actions.The undersigned affirms the applicant's financial capability to perform the
voluntary cleanup.The Executive Director may also request additional information to support
this affirmation.
With this Intent to Participate,the undersigned does not admit or assume liability for
investigation or cleanup of the site. In addition,the undersigned may terminate the Intent to
Participate at any time. If the TNRCC rejects the application,it will notify the applicant and
explain the reasons for rejection and will refund half of the application deposit,unless the
applicant indicates a desire to resubmit a corrected application. An applicant can resubmit an
application once without submitting an additional application fee, if the applicant resubmits
within 45 days after the rejection notice date.
Deposit of Oversight Costs
The applicant must submit with this application, a deposit in the amount of one thousand dollars
($1,1700),made payable to the Texas Natural Resource Conservation Commission. Deposits may
be made in the form of company or personal checks. If a deposit check is returned due to
insufficient funds, the application will be considered incomplete and will be rejected. Cash
deposits will not be accepted.
Please execute this Intent to Participate in the space below and return it and aH associated
documents(e.g.,envirow rental assessment reports) to:
TMtCC V"m 3.1 .ReNwd L2001•Provlar vm tisu e6w4te
09/01/2004 14:46 97251b4145 W&M PAGE 10/14
Attention:Cashier
Texas Natural Resource Conservation Commission
MC-214
P.O.Box 13088
Austin,Teras 787113088
For overnight o;gpM mail please use the following street address:
Attention:Cashier
Texas Natural Resource Conservation Commission
MC-214
12100 Park 35 Circle
Austin,Texas 78753
Note: Please do not send the application and associated documents directly to
the VCP. This will only result in a delay in processing your application.
Correctness of Information
The undersigned affirm that the information contained in this application is true and accurate to
the best of their knowledee.
Applicant's Signatures
Appli A
By: Brian K.Boom
( azure) (print or type)
Date: October 11.2001 Title:: hector.Devart=t of Environmental Mana eft went
Company: City of Fort Worth.TX Phone:-(§17)871-8085
Applicant B
By: Name: Anton C.Marek
(signature) (print or type)
Date:_. /-T 0/0 Title: om"afon Manager
Company: Industries Inc. Phone: 9-73)569-409
IMCC Veru@ 3.1 -ReviRd]/tool•pn.don venlotu obwkte
Ili L
J1.uI1'� p'2l
89/91/2994 14:46 97251b4145 W&M PAGE 11/14
Appli t C
ay: Nerve: Carl:':'. Belt
(signature) (print or type)
Date:_ U, 12 10 1 Title: Chairman
---t----
Company: Texas Independent Baseball,L.L.C. Phone: (972)581-4801
AppUc nt D
By.
y ame: Carl W.Bell
(signature) (print or type)
Date: tow • I 'Z 2-0'0 1 Title: Chairman
Company- LaGrave Reconstruction ComgM,L.L.C. Phone:(972) 58014801
Applicant E
(signature) (print or type)
Date: Title:
Company: Phone:,��
Applicant F
By: Name:
(signature) (print or type)
Date: Title:
Company. Phone: (, )
MM VOSIM 3.1 -Reviled V2WI-pev%w nalom;obsolete
09/01/2004 14:46 97251b4145 W&M
PAGE 12/14
Supplement to
Application to Participate in the Voluntary Cleanup Program("VCP")
TechniCoat,Inc.
Environmental Assessment Information
301 Northeast 6th Street
Ft. Worth,Texas
1. Legal description of the Site:
The property is identified as a 2-acre rectangular shaped tract of land located at 301 Northeast 6m Street
("Sine")in Ft Worth,Tan wt County,Texas. The Site is bound on the northwest by 6"'Strect; on the east
and northeast by Jones Street; on the south by currently undeveloped land; and on the west and southwest
by a building and currently undeveloped land (formerly a Cytce facility). A map depicting the
approximate Site boundaries is provided as Figure 1.
2. Description of physical characteristics of the site:
The Site is currently undeveloped with slight vegetation. Previous land use records indicate
manufacturing/light industrial activities have occurred on this property. The Site is located in an
industrial area of Ft. Worth north of downtown. According to the U.S.G.S. topographic map, the Site
slopes gently to the northeast. Groundwater elevation data indicates that the groundwater flows in a
Diver 711f`She is located in the Trinity Rivet flood plain
3. Operational history of the Site to the extent that is known by the applicant:
A historical review indicates that the Site was occupied by a metal fabrication facility and a metal
coatings company. It is unclear of the exact historical activities that occulted on the property. Themost
recent operator, TechniCoat, Inc., applied epoxy-based coatings to condenser coils and assembled
fiberglass components. The prior operator, Southern Anodizing Company, conducted application
processes for metal plating, anodizing,epoxy and other coatings. Excavations performed during the site
assessment revealed heavy machinery stands, waste metals, and other debris associated with metal
stamping.
4. Information of which the Applicant is aware concerning the nature and extent of any
relevant contamination or release at the Site and immediately contiguous to the Site, or
wherever the contamination came to be located:
Tbree tanks have been previously identified as located on the Sitc. One UST was removed in 1997. One
concrete tank, identified in the documents as a "Hazardous Waste Tank", was located and found to
contain building debris was removed in 1997, and a recently discovered tank that is presumed to have
contained chlorinated solvents. The potential historical release of product from any ofthese tanks is not
known.
VOCs have been identified as the predominant groundwater contaminant in this area, Cis-1,2
Dichloroethylene, trans-1,2 dichloroethylene, tetrachloroethylene, trichlorethylene, and vinyl chloride,
were the aPecific contaminants identified in the groundwater. It is important to note that the cause of
this contamination is believed to be a combination of industrial operations in this area,
Page 1
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VV
09/01/2004 14;46 9725104145 W&M PAGE 13/14
RCRA Metals and organics were identified in the soil, Historical sampling of organics identified xylene,
toluene, and ethyl benzene. Cadmium, lead, nickel, and chromium weer identified through historical
sampling events. Historical soil sampling occurred from 1987 through 1998.
S. Relevant information of which the Applicant is aware concerning the potential for human
emmsare to contamination at the Site:
The Site is located within an industrial area and is not readily accessible to the public. The Site is
currently undeveloped and does not have a fence preventing the public from exposure to the contaminated
soil. No impact to drinking ouster is anticipated,since drinking water in this area is obtained from surface
water reservoirs and not groundwater.
Page 2
revised-6201705
09/01/2004 14:46 97251 4145 W&M PAGE 14/14
Supplemental Information Concerning the Agreed Order on the
TechnlCoat Site
301 N E 6th Street
The TechniCoat Site consists of two adjacent tracts of land that are
approximately 1 acre each. The northern acre of the Site (referred to as the
"Northern Portion" in the Agreed Order) is owned by TechnlCoat, Inc. The
southern acre(referred to as the "Southern Portion" herein and In the Agreed
Order) is owned by Cytec, Inc. and was formerly leased to TechniCoat and its
predecessor company, Southern Anodizing Company, The Site is located at 301
NE a Street (Block 232, North Fort Worth Addition) near the intersection of
Jones Street and NE fig' Street in Fort Worth,Texas in the near northside
neighborhood of Fort Worth.
According to available information,the TechnlCoat Site was operated by
Southern Anodizing beginning in the mid-1960s. Southern Anodizing leased the
Southern Portion from American Cyanamid Company, which owned the Southern
Portion before Cytec, beginning in 1965. In 1979, TechniCoat and American
Cyanamid Company executed a lease covering the Southern Portion that
superseded Southern Anodizing's prior lease. Although the exact date of the
71,.1.- k—"— t- "..► �.,.. Te+,.4�rir �►at 1AacP�
the Southern Portion until May 1990 when the Southern Portion was returned to
American Cyanamid. The Site has remained abandoned and inactive since
1995, when a fire destroyed all onsite structures.
Releases of environmental contaminants from historic operations at the Site
resulted in the issuance of an Agreed Order by the Texas Water Commission on
August 19, 1991, and amended by the Texas Natural Resource Conservation
Commission in June 1999. Historic operations at the Site included, but are not
limited to, plating, coating, painting, molding and manufacturing. Contaminants
encountered at the Site Include volatiles and metals above TRRP and Risk
Reduction Rules health based criteria.
It is the intent of the City of Fort Worth to purchase this property and develop it in
conjunction with the adjacent Cytec site(VCP 1359)into a minor league ballpark
and attached facilities. The City recognizes that State of Texas regulations
preclude the acceptance of the Site Into the Voluntary Cleanup Program when an
agreed order exists. It is the intent of the City to meet both the penalty aspects
(through the payment of the purchase price to the Commission) and the technical
aspects (via the attached VCP commitment)of the Agreed Order. We are
working to place this proposal on the agenda of the Commissioners of the
TNRCC and have the Agreed Order terminated. Once the Agreed Order has
been terminated,the City will complete the appropriate agreement and complete
the assessment and remedlation of the property.
EXHIBIT 9.4c
RAIL JOINT PROPERTY
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EXHIBIT 12.7
REFUSAL PERIOD
1. The first Refusal Period shall commence on November 1, 2011 and expire on October 31, 2012.
2. The second Refusal Period shall commence on November 1, 2014 and expire on October 31, 2015.
3. The third Refusal Period shall commence on November 1, 2017 and expire on October 31, 2018.
4. The fourth Refusal Period shall commence on November 1, 2020 and expire on October 31, 2021.
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EXHIBIT 12.8
MEMORANDUM OF LEASE,OPTION TO PURCHASE,AND RIGHT OF FIRST REFUSAL
This MEMORANDUM OF LEASE, OPTION TO PURCHASE, AND RIGHT OF FIRST
REFUSAL is executed effective this 1" day of November, 2005 by and between The City of Fort Worth,
having an address of 1000 Throckmorton Street, Fort Worth, Texas 76102 (referred to as "Landlord"),
and BLG Northside Development, LP, having an address of 301 NE 6`}' Street, Fort Worth, Texas 76106
(referred to as "Tenant").
Landlord and Tenant have executed an option agreement contained in a Lease Agreement dated
November 1, 2005 (the "Agreement"), pursuant to which Landlord has granted to Tenant the right and
option(the "Option")to buy certain real property situated in Tarrant County, Texas and more particularly
described in Exhibit A attached hereto (the "Pro e "), at the price and under terms and conditions
described in the Agreement. Unless exercised prior to the expiration of the initial term, or, if extended,
prior to the expiration of the extended term, Tenant shall have no further interest in the Property pursuant
to the Agreement.
The terms and conditions of the Agreement are incorporated herein by reference. It is
understood that the purpose of this Memorandum is to give notice of the Agreement and the Option, and
that all rights, titles and obligations of the parties are to be governed by the terms of the Agreement.
LANDLORD:
THE CITY OF FORT WORTH
By:
Name: Dale Fisseler
Title: Assistant City Manager
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on the day of , 2006 by
Dale Fisseler, as Assistant City Manager of The City of Fort Worth.
Notary Public, State of Texas
TENANT:
BLG NORTHSIDE DEVELOPMENT, LP
By: BLG Northside Properties, LLC
its general partner
By:
Name: Carl W. Bell
Title: President
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on the day of , 2006 by Carl
W. Bell, as President of BLG Northside Properties, LLC, as general partner and on behalf of BLG
Northside Development, LP.
Notary Public, State of Texas
Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 4/26/2005
DATE: Tuesday, April 26, 2005
LOG NAME: 17LAGRAVELEASE REFERENCE NO.: C-20683
SUBJECT:
Authorize Execution of Lease with Purchase Option of Approximately 33 Acres of Land North of
LaGrave with LaGrave Redevelopment, LLC
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a lease with purchase option
of approximately 33 acres of land north of LaGrave Field with LaGrave Redevelopment LLC.
DISCUSSION:
On November 14, 2000 (M&C G-13075), the City Council approved the purchase of approximately 33 acres
from Cytec Industries, Inc. (Cytec) to assist in the development of LaGrave Field. On July 30, 2002 the City
purchased an additional 75,0000 square feet of property, bringing the City's total real property investment in
the area to approximately $776,000.
Under the terms of the agreement, LaGrave Redevelopment (LaGrave) would lease a portion of the
property at fair market value for LaGrave Field parking, special events and public events, and would
assume responsibility for normal maintenance and security of the leased property. In addition, LaGrave will
have a possessory fee interest in the remainder of the property and will pay the City a posessory fee each
year that is equal to the real property taxes the City would receive if the property were not tax exempt. The
term of the lease will be six years, with two options to renew for two additional six-year terms. The property
is to be re-appraised every six years to ensure that the rent amount conforms with then-current fair market
value. Additionally, rent will be subject to adjustment based on the increase in the Consumer Price Index
for the Dallas/Fort Worth metropolitan area every three years. LaGrave may at any time convert the
property covered by possessory fee to lease property or exercise a purchase option at fair market value,
subject to certain conditions. Any rent paid toward the lease during the lease term shall be credited toward
the purchase price of the property.
Should LaGrave decide to exercise its option to purchase all or a portion of the property, the City Council
must first approve a detailed development plan. The plan must satisfy environmental issues, deed
restrictions and the Continuing Agreement, as outlined below, in order to be deemed to be a bonafide
development plan.
Environmental Issues
When the City purchased the property, Cytec, the City and LaGrave entered the property in the Voluntary
Clean-Up Program (VCP) with the Texas Commission of Environmental Quality (TCEQ). The application
for the VCP stated that that the property would be used for commercial and industrial purposes only. If the
use of the property were to change under a proposed development plan by LaGrave, the VCP application
would have to be resubmitted and/or modified. In addition, it is anticipated that additional remediation will
be necessary in order for the property to be used for a purpose other than as a baseball field and parking
lot.
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 4/21/2006
Page 2 of 2
Deed Restrictions
When the City purchased the property from Cytec, the City agreed to deed restrictions limiting the use of
the property to commercial and industrial use. In order to have these restrictions released, the City would
need to negotiate an acceptable release agreement with Cytec.
Continuing Agreement
As a condition of purchasing the property, the City was required to enter into a Continuing Agreement with
Cytec. In the Continuing Agreement, Cytec and the City agreed to limit the use of the property to a baseball
field, parking lot and vacant land. In order to change the use of the property, the Continuing Agreement
provides that the city must obtain the approval of Cytec. In addition, the Continuing Agreement provides
that Cytec must be informed about any communication to TCEQ regarding the property and must be
allowed to comment on the communication before it is submitted to TCEQ.
The City and LaGrave have begun discussions with Cytec to address the issues above.
Under the purchase portion of the agreement, the City will have the right to entertain purchase offers from
third parties for one year following the 6th, 9th, 12th and 15th anniversaries of the lease with purchase
option agreement.
This project is located in the Trinity River Vision TIF. The City desires this property to be developed in
accordance with the project plan that is adopted for the Trinity River Vision TIF.
This project is in COUNCIL DISTRICT 2.
Economic and Community Development is responsible for collection of lease revenue.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will require no direct expenditure from currently held City
funds.
TO Fund/Account/Centers FROM Fund/Account/C enters
Submitted for City Manager's Office b_y- Dale A. Fisseler (6266)
Originating Department Head_ Tom Higgins (6192)
Additional Information Contact: Peter Vaky (7601)
Ossana Hermosillo (8618)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 4/21/2006