HomeMy WebLinkAboutContract 52414 CITY SECRETARY
G CONTRACT N0.
ROUND LEASE
WITH OPTION TO PURCHASE
sIt BETWEEN CITY OF FORT WORTH AND
BURNETT LOFTS FW, LLC
This GROUND LEASE WITH OPTION TO PURCHASE (hereafter referred to as the
"Agr a nt j�" or "Lease", as applicable), is made and entered into this day of
(�'� 2019 ("Effective Date"), by and between the CITY OF FORT WORTH, a
Texas 16me rule municipal corporation("City"), and BURNETT LOFTS, LLC, a Texas limited
liability company (hereafter referred to as "Catalyst").
WITNESSETH:
WHEREAS, City is the owner of real property generally located in downtown Fort Worth
in the block bounded by Lancaster Avenue, Cherry Street, Texas Street and Lamar Street, and
within Tax Increment Reinvestment Zone No. 8 (hereafter referred to as "TIF 8"), a portion of
which is currently used by City as a parking lot;
WHEREAS, Catalyst desires to develop a mixed-use project, consisting of multi-family
residential, retail development, and a parking garage on the real property owned by City in TIF 8
("Project"), and Catalyst desires to acquire certain property necessary for the Project from City,
such property on Exhibit "A", attached hereto and made apart hereof for all purposes
("Property");
WHEREAS, in connection with the Project, Catalyst requested that the TIF 8 Board of
Directors ("TIF Board") make TIF funds available to Developer to support the Project and the
TIF Board and Catalyst have entered into that certain Economic Development Program Agreement
("TIF Agreement')dated as of July 1, 2015, as amended by Amendment No. 1 to Tax Increment
Financing Development Agreement dated April 3, 2019, providing for a program of incentives in
exchange for Catalyst completing certain improvements which will promote local economic
development and stimulate business and commercial activity within the City of Fort Worth;
WHEREAS, to support the implementation of the TIF 8 project plan and the fulfillment of
the TIF Agreement, City desires to convey the Property to Catalyst upon the completion of the
construction of the improvements for the Project, with the primary consideration for the
conveyance of the Property being a parking easement in the Parking Garage (as hereinafter
defined);
WHEREAS, a ground lease under the terms and conditions set forth herein is desired to
ensure the completion of the construction of the improvements for the Project prior to the
conveyance of the Property, to provide for the conveyance of the Property upon the completion of
the Improvements (as hereinafter defined), and to provide for the granting of a parking easement
in the Parking Garage to the City;
Ground Lease and Option to Purchase
CFW and Catalyst OFFICIAL RECORD
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FT. WORTH,TX
NOW THEREFORE, in consideration of the terms and conditions set forth herein, for
the rents to be paid and other good and valuable consideration, City and Catalyst covenant and
agree as follows:
I. Leased Premises
1.1 Lease. City hereby leases, lets and demises to Catalyst the "Leased Premises",
which shall be defined collectively to include:
(a) The Property; and
(b) Any improvements existing on the Property.
1.2 Mineral Estate Reserved. Notwithstanding anything in this Agreement to the
contrary, City hereby reserves the exclusive right to any natural resources in, on or under the
Leased Premises, including all oil, coal, natural gas and other hydrocarbons, minerals, aggregates
and geothermal resources as well as a right to grant leases or to conduct and undertake surface or
subsurface extraction of same; provided, however, that no extraction of such natural resources
shall (i) be inconsistent or incompatible with the rights or privileges of Catalyst under this
Agreement, (ii) be permitted on the surface of the Leased Premises, or (iii) adversely affect the
surface of the Leased Premises or adversely undermine the support for the Property and the
improvements now or hereafter located on the Property.
II. Agreement Term
2.1 Term. The initial term of this Agreement (the "Initial Term") shall begin on the
Effective Date and end on the earlier to occur of(i) the conveyance of the Leased Premises by
City to Catalyst as set forth in Article XVI or (ii) forty-five (45) years following the Effective
Date. City will tender possession of the Leased Premises to Catalyst not later than the Effective
Date.
2.2 Renewal Term. If Catalyst performs and abides by all provisions and conditions
of this Lease and is not in default, upon the expiration of the Initial Term of this lease, Catalyst
shall have an option to renew this Lease for a renewal term of fifteen (15) years ("Renewal
Term") on the same terms and conditions as for the Initial Term. In order to exercise its option
to renew this Lease, Catalyst shall notify City in writing of its desire to renew this Lease no less
than ninety calendar days prior to the expiration of the term then in effect. The Initial Term and
Renewal Term are referred to herein generally as the "Term".
III. Rent and Consideration
3.1 Rent. For the use and occupancy of the Leased Premises herein granted, Catalyst
contracts to pay to City, throughout the Term of this Agreement, payments (collectively, the
"Rent") of One and No/100 Dollars ($1.00) per year for the Leased Premises. The first rental
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payment shall be due upon execution of this Agreement. After that, all payments shall be
payable in advance on January 1" of each year, without notice or demand, at the office of the
City Manager or at such other offices as may be directed in writing by City. If Rent payments are
not received by January 1"of each year, City may notify Catalyst in writing of the delinquency.
3.2 Other Consideration. Catalyst agrees to convey to the City, at the Closing (as
hereinafter defined), a parking easement in the Parking Garage for 185 spaces upon the
conveyance of the Leased Premises to Catalyst, said parking easement in substantially the same
form as the parking easement in Exhibit B, attached hereto and made apart hereof for all
purposes ("Parking Easement"). The value of the parking spaces in the Parking Easement is
approximately $2,770,000.00 ("Parking Easement Value"), and $115,157.00 of the Parking
Easement Value is hereby accepted by City as consideration for this Agreement ("Lease
Consideration Amount'). The remainder of the Parking Easement Value in the amount of
$2,654,849 ("Easement Value Remainder") shall be applied and accepted by City as the total
consideration for the conveyance of the Leased Premises as set forth in Article XVI below. The
Parking Easement shall be executed by Catalyst and placed into Escrow within five (5) business
days of the Effective Date of this Agreement. In the event this Agreement is terminated by City
due to a default by Catalyst under Section 17.1, after the expiration of all grace, notice and cure
periods and if the Parking Easement is not granted to City and recorded, then Catalyst shall pay
to City in cash, within five (5) business days following the effective date of the termination and
without further demand by City, a prorated amount of the Lease Consideration Amount based on
the number of months in the Term through the termination; provided, however, no proration shall
be given for partial months. The provisions of this Section 3.2 shall survive the termination of
this Agreement.
3.3 Special Option Consideration. Within five (5) days following the Effective Date,
Catalyst agrees to pay to City the sum of$100.00 as consideration for the Option set forth in this
Agreement.
IV. Use And Occupancy of Leased Premises
4.1 Submittal of Schematic Plans. Prior to entering into any contract for the
construction of the Improvements to the Leased Premises, Catalyst shall obtain approval of the
Downtown Design Review Board for the design plans for the Improvements. The Improvements
constructed on the Leased Premises shall substantially conform to the improvements described in
the TIF Agreement as the "Development'. The urban style mixed-use building which will be
developed on the Leased Premises shall hereafter be referred to as the "Mixed Use Building"
and the parking garage which will be developed on the Leased Premises shall hereafter be
referred to as the "Parking Garage".
4.2 Permitted Uses. Catalyst agrees that it shall use and occupy the Leased Premises
solely for the purposes of designing, developing, constructing, furnishing, marketing, leasing,
occupying and operating the Improvements, pursuant to the terms and conditions of this
Agreement ("Permitted Use"). Catalyst shall diligently and without unreasonable delay perform
the work necessary to reach substantial and physical completion of the Improvements.
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4.3 Demolition, Abatement, and Infrastructure Improvements. The Permitted Use
shall include any and all actions necessary for Site Preparation (as defined in Exhibit "C") to
prepare the Leased Premises for the construction and development of the Mixed Use Building
and Parking Garage. Collectively, the Site Preparation, Mixed Use Building and the Parking
Garage shall be known as the "Improvements". The parties agree that the Site Preparation shall
be performed pursuant to all terms and conditions in (i) Exhibit "C", attached hereto and made a
part hereof for all purposes, and(ii) this Agreement.
4.4 Prohibited Uses. Catalyst shall not use nor permit the use of the Leased Premises
for any other or additional purpose that is not, during the Term of this Agreement, a Permitted
Use, without first obtaining the prior written consent of the City, which consent may be granted,
withheld, conditioned or delayed in City's sole and absolute discretion. Catalyst acknowledges
that the use of the Leased Premises is subject to all statutes, laws, treaties, rules, codes,
ordinances, regulations, permits, interpretations, certificates or orders of any governmental
entity, or any judgments, decisions, decrees, injunctions, writs, orders or like actions of any
court, arbitrator, or other Federal, State or local governmental entity (hereafter the
"Governmental Rules") at any time applicable to the Leased Premises and improvements
thereon and that nothing in this Article IV or elsewhere in this Agreement shall constitute or be
deemed to constitute a waiver by the City of the performance of its governmental functions or of
any such Governmental Rules or of the duty of Catalyst to comply with such Governmental
Rules. Catalyst will comply with the provisions of Article XIII with respect to Hazardous
Materials.
V. Improvements
5.1 Ownership of Improvements. The Improvements constructed on the Leased
Premises during the term of this Agreement, together with any related improvements, will be the
property of Catalyst; provided, however, that upon any termination of this Agreement pursuant
to Section 17.2, the improvements shall become the property of the City, subject to any rights of
the Leasehold Mortgagee.
5.2 Compliance with Re ug latory Requirements. Catalyst agrees that all
improvements and alterations on or to the Leased Premises shall be constructed in accordance
with the Governmental Rules. Catalyst shall, at its sole cost and expense, procure or cause to be
procured all necessary building permits, other permits, licenses and other authorizations required
for the lawful and proper construction, use, occupation, operation, and management of the
Leased Premises.
5.3 Taxes and Other Charges. It is understood and agreed that this lease is a net
lease, and that Rentals and all other amounts due hereunder will be paid by Catalyst on an
absolutely net basis. Catalyst or tenants of the Leased Premises, shall be responsible for the
payment of all utilities, insurance and other operating and capital expenses associated with the
possession, maintenance, use, alteration, repair, rebuilding, ownership and operation of the
Leased Premises. Without limiting the generality of the foregoing, Catalyst shall pay and
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discharge, prior to the delinquency thereof, all lawful assessments, ad valorem taxes, sales taxes,
business and occupation taxes, occupation license taxes, water charges, or sewage disposal
charges, and all other governmental taxes, impositions, and charges of every kind and nature, and
all applicable interest and penalties, if any, which at any time during the Term becomes due and
payable by Catalyst because of its rights or obligations under this Lease and which is lawfully
levied, assessed or imposed on Catalyst, the Leased Premises or the Improvements under or by
virtue of any present or future law, statute, ordinance, regulation or other requirement of any
governmental authority, whether federal, state, county, city, municipal, school or otherwise
(collectively, "Taxes") imposed on the Leased Premises and the Improvements and Catalyst's
use and occupancy of the Leased Premises and the Improvements or against personal property,
furniture or fixtures placed or situated in or on the Leased Premises during the Term. Catalyst,
upon written notice to City, may contest in good faith any Taxes (other than water charges or
sewage disposal charges), and in such event may permit such Taxes (other than water charges or
sewage disposal charges) to remain unsatisfied during the period of such contest and any appeal.
5.4 Liens and Encumbrances. Catalyst covenants and agrees that it will not create or
suffer to be created any lien, encumbrance or charge upon the Leased Premises or Catalyst's
interest in this Lease, except for mortgages permitted under Article IX, and any other
encumbrance expressly permitted under this Lease or the TIF Agreement or which is necessary
in order for Catalyst to exercise its rights or perform its obligations under this Lease or the TIF
Agreement. Catalyst shall satisfy or cause to be discharged, or will make adequate provision to
satisfy and discharge, within sixty (60) days after the same occurs, all claims and demands for
labor, materials, supplies or other items which, if not satisfied, might by law become a lien upon
the Leased Premises or any part thereof. If any such lien is filed or asserted against Catalyst or
the Leased Premises by reason of work, labor, services or materials supplied or claimed to have
been supplied on or to Catalyst or the Leased Premises at the request or with the permission of
Catalyst or of anyone claiming under it, Catalyst shall, within sixty (60) days after it receives
notice of the filing thereof or the assertion thereof against the Leased Premises, cause the same to
be discharged of record, or effectively prevent the enforcement or foreclosure thereof,by contest,
payment, deposit, bond, order of court or otherwise. It is acknowledged that the provision of a
payment and performance bond pursuant to Section 53.201 of the Texas Property Code will
satisfy Catalyst's obligations hereunder. Catalyst hereby agrees to indemnify City for, from
and against any damages that City may suffer or any liability imposed upon City for any
such claims, demands, or liens as set forth in this Section 5.4.
5.5 The following requirements shall apply to all construction on the Leased
Premises:
(a) Catalyst shall include in all Catalyst general construction contracts for
Improvements the following provisions:
(1) Contractor does hereby contract to waive all claims, release,
indemnify, defend and hold harmless the City of Fort Worth and all of its
officials, officers, agents and employees, in both their public and private
capacities, from and against any and all liability, claims, losses, damages,
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suits, demands or causes of action including all expenses of litigation and/or
settlement, court costs and attorney fees which may arise by reason of injury
to or death of any person or for loss of, damage to, or loss of use of any
property occasioned by error, omission or negligent act of contractor, his
officers, agents, employees, subcontractors, invitees or any other persons,
arising out of or in connection with the performance of this contract, and
contractor will at his or her own cost and expense defend and protect the
City of Fort Worth from any and all such claims and demands.
(2) Contractor does hereby contract to waive all claims, release,
indemnify, defend and hold harmless the City of Fort Worth and all of its
officials, officers, agents and employees, from and against any and all claims,
losses, damages, suits, demands or causes of action, and liability of every
kind including all expenses of litigation and/or settlement, court costs and
attorneys' fees for injury or death of any person or for loss of, damages to, or
loss of use of any property, arising out of or in connection with the
performance of this contract. Such indemnity shall apply whether the
claims, losses, damages, suits, demands or causes of action arise in whole or
in part from the negligence of the City or Fort Worth, its officers, officials,
agents or employees; provided, however, that in no event shall such
indemnity apply to gross negligence or willful misconduct of the City of Fort
Worth, its officers, officials, agents or employees. It is the express intention
of the parties thereto that the indemnity provided for in this paragraph is
indemnity by contractor to indemnify and protect the City of Fort Worth
from the consequences of the City of Fort Worth's own negligence, whether
that negligence is a sole or concurring cause of the injury, death or damage.
(3) In any and all claims against any party indemnified hereunder by
any employee of the contractor, any subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable, the
indemnification obligation herein provided shall not be limited in any way by any
limitation on the amount or for the contractor or any subcontractor under workers'
compensation or other employee benefit acts.
(b) Catalyst agrees that all work to be performed by it or its contractor on the
Leased Premises, including all workmanship and materials, shall be of the quality
described in, and shall be performed in full compliance and in accordance with, the
schematic drawings approved by the Downtown Design Review Board, and such work
shall be subject to inspection in accordance with Article VII hereof. Catalyst shall
assume the risk of loss or damage to all such work prior to the completion thereof.
Catalyst shall repair or replace any such loss or damage without cost to City.
(c) Catalyst shall deliver within ten (10) business days of a request from City,
written progress reports of the work performed and shall at all times during the term of
this Agreement and any extension option periods thereof keep construction reports and
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drawings current showing any changes or modifications made in or to the improvements
constructed on the Leased Premises.
(d) The City hereby waives any lien the City may have, constitutional,
statutory or contractual, upon any leasehold improvements on the Property.
VI. Acceptance, Care, Maintenance and Repair
6.1 Catalyst accepts the Leased Premises in their "as is" condition. City has not made
and does not make and specifically disclaims any representations, guarantees, promises,
covenants, agreements or warranties of any kind or character whatsoever unless otherwise
provided for herein, whether express or implied, oral or written, past, present or future of, as to,
concerning or with respect to the nature, quality or condition of the Leased Premises, the income
to be derived, the suitability of the Leased Premises for uses allowed under this Agreement, or
merchantability or fitness for a particular purpose. The City shall not be required to maintain nor
to make any improvements, repairs or restorations upon or to the improvements located thereon.
City shall never have any obligation to repair, maintain or restore, during the term of this
Agreement or any extension option periods, any improvements on the Leased Premises.
6.2 Catalyst, without limiting the generality hereof, shall keep at all times, in a clean
and orderly condition and appearance, the Leased Premises and Improvements, and all of
Catalyst's fixtures, equipment and personal property which are located on any part of the Leased
Premises and Improvements. Catalyst shall repair any damage to the Leased Premises.
VII. Inspections by City
7.1 At any time during normal business hours throughout the term of this Agreement
and following at least three (3) business day's written notice to Catalyst, the City or its
authorized agents may enter upon the Leased Premises, for any purpose connected with the
performance of City's or Catalyst's obligations hereunder, in order to inspect the performance of
Catalyst's obligations under this Agreement, or to inspect safety compliance or in order to
determine compliance with all Governinental Rules. Any inspections shall be conducted in a
manner that does not unreasonably interfere with the development or operation of the
Improvements and, following completion of the Improvements, any such inspections will be
conducted in a manner as non-intrusively as possible to the tenants of the Leased Premises.
Notwithstanding the foregoing, Catalyst shall have the right to require that any representative of
the City be escorted by a representative or security personnel of Catalyst during any such
inspection and evaluation. In case of an emergency or if necessary to ensure the health, safety
and welfare of the public, City may enter upon the Leased Premises at any time and without
notice. This shall not constitute a waiver by the City of the performance of its governmental
functions and Catalyst agrees that in the performance of its governmental functions, City
representatives may enter onto the Leased Premises at any time.
VIII. Subletting and Assignments
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8.1 Except as provided in Article IX, Catalyst may not assign, transfer, sublet, or
convey, or otherwise dispose of this Lease or the rights, title, or interest in or to the same or any
part thereof without the prior written consent of City. Notwithstanding the foregoing, Catalyst
may sublet space in the Improvements to tenants subject to the provisions of this Agreement.
Any and all subletting shall be subordinate to this Agreement and Catalyst agrees, after written
notice from the City, to resolve any issues arising from subtenants' failure to comply with the
applicable provisions of this Agreement. If this Lease is assigned, such assignment shall be
subject to City Council approval and shall be upon and subject to all of the terms, covenants, and
conditions contained in this Lease. Within thirty (30) days after the execution and delivery of any
such assignment, Catalyst shall furnish to City a duplicate original of the assignment which shall
contain an assumption by the assignee of all of the obligations of Catalyst under this Lease. Any
assignment prohibited hereby shall be void.
IX. Leasehold Mortgages
9.1 Catalyst will be entitled, at any time and from time to time, without the City's
consent, and on terms and conditions determined by Catalyst to be appropriate, to mortgage,
pledge, grant deed(s) of trust, or otherwise encumber all or any portion of the leasehold estate
created hereby and all or any portion of the right, title, and interest of Catalyst under this
Agreement (including Catalyst's interest in the Improvements), and to assign, hypothecate, or
pledge it as security for the payment of any debt to any holder of a promissory note or other
evidence of indebtedness (such notes, mortgages, deeds of trust, and other documents evidencing
and securing such loans hereinafter referred to as a "Leasehold Mortgage" and a holder of a
Leasehold Mortgage as a "Leasehold Mortgagee"), all of which shall be subordinate to the
City's interest under this Agreement.
9.2 After the execution and recordation of any Leasehold Mortgage, Catalyst or the
Leasehold Mortgagee must notify the City in writing that a Leasehold Mortgage has been given
and executed by Catalyst and must furnish the City with the address to which copies of notices
should be mailed. The City agrees that it will thereafter give to the Leasehold Mortgagee, at the
address so given, duplicate copies of any and all notices in writing that the City may from time to
time give or serve upon Catalyst under and pursuant to the terms and provisions of this
Agreement.
9.3 No Leasehold Mortgagee will be or become liable to the City as an assignee of
this Agreement or otherwise until it expressly assumes such liability in writing, and no
assumption may be inferred or result from foreclosure or other appropriate proceedings in the
nature thereof, or, as the result of any other action or remedy provided for by any Leasehold
Mortgage or other instrument executed in connection with the Leasehold Mortgage or from a
conveyance from Catalyst pursuant to which the purchaser at foreclosure (or grantee or
transferee in lieu thereof) acquires the rights and interests of Catalyst under the terms of this
Agreement, provided the obligations of Catalyst are fulfilled.
9.4 City agrees that upon the occurrence of any event of default under the Leasehold
Mortgage, Leasehold Mortgagee may (but shall not be obligated) to assume, or cause a new
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lessee or purchaser of the leasehold estate created hereby to assume, all the interests, rights and
obligations of Catalyst thereafter arising under this Agreement; provided, however, that any new
lessee or purchaser of the leasehold estate is approved by City Council, and that any defaults by
Catalyst must be cured pursuant to this Agreement as herein provided (other than any such
default related to [i] the institution of bankruptcy or insolvency proceedings with respect to
Catalyst, [ii] the appointment of a receiver or trustee for the whole or any part of Catalyst's
property, or [iii] the dissolution or winding up, in whole or in part, of Catalyst). City hereby
agrees to provide notice of any default by Catalyst under this Agreement to each Leasehold
Mortgagee whose name and address has been provided to it and is designated as Leasehold
Mortgagee pursuant to this Article 9. In the event of any default by Catalyst (after exhaustion of
the cure periods provided in Article 17 below), City shall refrain from exercising any remedy
with respect to such default unless and until (i) with respect to any default concerning the
obligation to pay Rentals, City shall give a further written notice thereof to Leasehold Mortgagee
and such default remains uncured at the expiration of ten (10) days after Leasehold Mortgagee's
receipt of City's written notice of such default; and (ii) with respect to any other default, City
shall give a further written notice thereof to Leasehold Mortgagee and such default remains
uncured at the expiration of thirty (30) days after Leasehold Mortgagee's receipt of City's written
notice of such default; provided, however, that if such non-monetary default cannot with diligent
efforts be cured within thirty (30) days, Leasehold Mortgagee shall have additional time to cure
so long as Leasehold Mortgagee commences action to remedy such failure promptly following
such notice and diligently prosecutes such action in good faith. City agrees to accept
performance by Leasehold Mortgagee of any covenant, condition or agreement on Catalyst's part
to be performed under this Agreement (whether prior to or after any default by Catalyst) with the
same force and effect as though performed by Catalyst. It is understood that Leasehold
Mortgagee is not obligated to cure defaults by Catalyst under Section 17.1 of this Agreement.
9.5 New Ground Lease. Notwithstanding any contrary provision hereof, upon
termination of this Agreement for any reason (including, without limitation, bankruptcy of
Catalyst) other than by expiration of the Term, Leasehold Mortgagee shall have the exclusive
right and option, exercisable by delivery of notice to City within fifteen (15) days following
receipt by Leasehold Mortgagee of notice from City of the termination hereof, to elect to receive,
in its own name or an affiliate, from City a new lease (the "New Ground Lease") for the Leased
Premises for the unexpired balance of the term. The New Ground Lease will be on the same
terms and conditions as herein provided and executed to be effective as of the date of termination
of this Agreement by Leasehold Mortgagee and City within thirty (30) days of receipt by
Leasehold Mortgagee of such notice from City of the termination hereof; provided, however, that
in such event, Leasehold Mortgagee shall be entitled to receive such a New Lease only if
Leasehold Mortgagee shall cure any defaults by Catalyst hereunder prior to execution of such
New Lease (other than any such default related to [i] the institution of bankruptcy or insolvency
proceedings with respect to Catalyst, [ii] the appointment of a receiver or trustee for the whole or
any part of Catalyst's property, or [iii] the dissolution or winding up, in whole or in part, of
Catalyst). It is understood that Leasehold Mortgagee is not obligated to cure defaults by Catalyst
under Section 17.1 of this Agreement.
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After any termination of this Agreement after which Leasehold Mortgagee has the right
to obtain a New Ground Lease as provided in this Section 9.5, for so long as Leasehold
Mortgagee has such right, City shall not terminate any subleases or the rights of any sublessee
except in the case of a default under any such sublease. During said time period City will not
collect or receive rents from any subtenant.
9.6 Automatic Stay. If, during the period described in Sections 9.4 and 9.5 above,
Leasehold Mortgagee shall be precluded by the bankruptcy laws of the United States or by
process or issue of any court having jurisdiction in connection with any bankruptcy, insolvency
or other similar proceeding, from commencing and pursuing to completion all necessary steps
and proceedings required for the foreclosure or transfer in lieu of foreclosure of the Leasehold
Mortgage, then City shall extend said period so long as may reasonably be required, provided
that Leasehold Mortgagee is diligently and in good faith exerting all reasonable efforts to obtain
an appropriate release from any applicable court order or restraint, and further provided that
upon such release, Leasehold Mortgagee shall in good faith immediately commence and
diligently pursue to completion all steps and proceedings for consummation of such foreclosure.
9.7 Limit on Leasehold Mortgagee's Liability. Except as provided below, Leasehold
Mortgagee shall not be liable to perform Catalyst's obligations under this Agreement until
Leasehold Mortgagee acquires Catalyst's rights by foreclosure or by transfer in lieu of
foreclosure, provided, however, Leasehold Mortgagee shall be required to cure Catalyst's
defaults under this Agreement (other than any such default related to [i] the institution of
bankruptcy or insolvency proceedings with respect to Catalyst, [ii] the appointment of a receiver
or trustee for the whole or any part of Catalyst's property, or [iii] the dissolution or winding up,
in whole or in part, of Catalyst) occurring before its acquisition of the Leased Premises by
foreclosure or transfer in lieu of foreclosure after it acquires the Leased Premises pursuant to
such foreclosure or transfer in lieu of foreclosure as contemplated by Sections 9.4 and 9_5. It is
understood that Leasehold Mortgagee is not obligated to cure defaults by Catalyst under
Section 17.1 of this Agreement with respect to this Section 9.7. After acquiring Catalyst's rights
by foreclosure or transfer in lieu of foreclosure, Leasehold Mortgagee shall, subject to the
provisions of this Article 11, be liable to perform Catalyst's obligations under this Agreement
only until Leasehold Mortgagee transfers or assigns the leasehold estate to a person which
expressly assumes the obligations of Catalyst under this Agreement, and such liability of
Leasehold Mortgagee shall terminate upon such transfer or assignment for obligations first
accruing from and after the date of such transfer or assignment. No holder of a Leasehold
Mortgage shall acquire greater rights or interest than Catalyst has under this Agreement.
9.8 No Voluntary Cancellation. No voluntary cancellation, termination, surrender,
amendment or modification of this Agreement by Catalyst shall bind any Leasehold Mortgagee
if done without the prior written consent of such Leasehold Mortgagee, which consent shall not
be unreasonably withheld with respect to an amendment or modification of this Agreement.
9.9 Requirements for Transferee. Notwithstanding anything contained in this
Agreement to the contrary, no purchaser or transferee at any foreclosure sale, transfer in lieu
thereof or other transfer authorized by law or this Agreement of Catalyst's interest shall acquire
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any right, title or interest in or to Catalyst's interest in the Property unless (i) said purchaser or
transferee shall, in the instrument transferring the same or immediately after acquiring the same,
assume and agree to keep, observe and perform all of the terms, covenants and provisions of this
Agreement on the part of Catalyst to be kept, observed and performed (including the obligation
to cure defaults arising prior to such assumption); provided, however, Leasehold Mortgagee's
obligations upon its acquisition of Catalyst's rights shall be subject to the terms of Section 9.7
above, (ii.) said purchaser or transferee is approved by City Council, and (iii) a duplicate original
of said assumption agreement, duly executed and acknowledged by said purchaser or transferee,
shall be delivered to City promptly following the consummation of such sale or transfer.
9.10 Fee Mortgage. This Agreement shall be superior to any deed of trust or other
security instrument now or hereafter placed on City's fee interest in the Property by City and to
all advances made thereunder and to all renewals, modifications, consolidations, replacements
and extensions thereof. If any holder of any mortgage, indenture, deed of trust or other similar
instrument succeeds to City's interest in the Property, Catalyst will pay to such holder all Rent
payable to City which is subsequently payable under this Agreement. Catalyst shall, upon
request of such person succeeding to the interest of City, automatically become the tenant of, and
attorn to, such successor-in-interest without changing this Agreement. Upon request by City or
such successor-in-interest, Catalyst will execute, acknowledge and deliver an instrument or
instruments confirming the attornment.
9.11 No Merger. There shall be no merger of this Agreement or the leasehold estate
hereunder with the fee estate in the Property by reason of the fact that this Agreement or the
leasehold estate hereunder may be held, directly or indirectly, by or for the account of any
entities who hold the fee estate. No such merger shall occur unless all entities having an interest
in the fee estate and all entities (including Leasehold Mortgagee) having an interest in the
Ground Lease or the leasehold estate hereunder join in a written statement effecting such merger
and duly record the same. Notwithstanding the foregoing, upon the closing contemplated by
Section 16.4 hereof, the leasehold estate and fee estate shall, with the consent of any Leasehold
Mortgagee, be merged.
9.12 Damage or Destruction. If the cost to restore Improvements exceeds the available
insurance proceeds, Catalyst, Leasehold Mortgagee and City agree to use good faith efforts to
arrive at a mutually agreeable solution to addressing this additional cost; provided, however, no
such good faith efforts shall negate or diminish Catalyst's obligations and liability to City and
Leasehold Mortgagee.
9.13 Amendment or Modification. This Agreement may not be modified or amended
without the prior written consent of the Leasehold Mortgagee.
9.14 Additional Provisions. To the extent the Leasehold Mortgagee requests revisions
to this Article, the City and Catalyst will agree to reasonably accommodate such revisions to the
extent they are consistent with commercially reasonable lending standards, subject to any
required City Council approval of the amendment.
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X. Damage or Destruction
10.1 In the event of damage or destruction during the Term to any of the improvements
upon the Leased Premises, Catalyst shall have the obligation to utilize insurance proceeds as and
when available to rebuild or repair the improvements unless otherwise agreed by the City. City
shall have no obligation to repair or rebuild the improvements or any fixtures, equipment or other
personal property installed by Catalyst pursuant to this Agreement; however, upon the failure of
Catalyst to repair or rebuild as required by this Agreement, the City may, as agent of Catalyst,
repair or rebuild such damage or destruction at the expense of Catalyst, and such expense shall
be due and payable on demand.
10.2 Upon completion of all repair or rebuilding work as a result of damage or
destruction, Catalyst shall certify by a responsible officer or authorized representative that such
rebuilding and repairs have been completed. Nothing herein contained shall be deemed to
release Catalyst from any of its repair, maintenance or rebuilding obligations under this
Agreement.
10.3 In no event shall Catalyst be obligated to provide improvements, equipment and
fixtures in excess of those existing prior to such damage or destruction or as required by City
Code, whichever is greater. Catalyst agrees that it will promptly seek to adjust any insurance
claims and thereafter will promptly commence such work and proceed to completion with due
diligence.
10.4 Catalyst shall not be entitled to any abatement, allowance, reduction, or
suspension of the rent payments as a result of or in connection with the partial or total
destruction of the improvements on the Leased Premises. No such damage or destruction shall
affect in any way the obligation of Catalyst to pay Rent and any other charges contained herein.
XI. Insurance and Bonds
11.1 Catalyst's Insurance. Catalyst represents that it currently has in effect, and
Catalyst further covenants that it shall maintain in effect at all times during the full Term of this
Lease, insurance coverages with limits not less than those set forth below with insurers licensed
to do business in the State of Texas and under commercially reasonable forms of
policies. Catalyst shall maintain such insurance coverages at its sole cost and expense. City shall
be under no obligation to maintain any such insurance coverage should Catalyst be found to be in
default under this Article XI. None of the requirements contained herein as to types or limits to
be maintained by Catalyst are intended to and none shall in any manner limit, qualify or quantify
the liabilities and obligations assumed by Catalyst under this Lease or otherwise provided by
law.
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11.1.1. Schedule of Insurance Coverages.
COVERAGE MINIMUM AMOUNTS AND LIMITS
Workers' Compensation.
Workers' Compensation, Employers' Liability, or alternative work-place
injury or non-subscription plan as may be permitted under applicable law
Statutory Limits: $100,000
This policy shall include a waiver of subrogation in favor of the
Indemnitees.
11.1.2. Commercial General Liability.
Bodily Injury/Property Damage (Occurrence Basis): $1,000,000 each
occurrence
or equivalent; subject to a$2,000,000 aggregate
Such commercial general liability policy shall be on an occurrence form
reasonably acceptable to City, endorsed to include the Indemnitees as
additional insureds, contain cross-liability and severability of interest
endorsements, state that this insurance is primary insurance as regards any
other insurance carried by any Indemnitee, and shall include the following
coverages:
(a) Leased Premises/Operations;
(b) Independent Contractors;
(c) Broad Form Contractual Liability specifically in support of, but not
limited to, the Indemnification section of this Lease; and
(d) Personal Injury Liability with the employee and contractual
exclusions removed.
11.1.3. Comprehensive Automobile Liability.
Bodily Injury/Property Damage: $1,000,000 combined single limit of
liability
This policy shall be on a standard form written to cover all owned, hired
and non-owned automobiles.
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11.1.4. Garag_ekeeper's Liability.
Physical Damage to Parked Vehicles: $100,000 combined single limit
each occurrence
This policy shall be endorsed to include the Indemnitees as additional
insureds and include a waiver of subrogation in favor of the Indemnitees.
11.1.5. Umbrella Excess Liability Insurance.
Bodily Injury/Property Damage (Occurrence Basis): $10,000,000 per
occurrence,
$10,000,000 aggregate
This policy shall be written on a following form umbrella excess basis
above the coverages described in Sections 11.1.1.2, 11.1.1.3, and 11.1.1.4
above and shall include the Indemnitees as additional insureds.
11.1.6. Property Insurance. Such property insurance as Catalyst, in its sole
discretion, deems appropriate.
11.2 Bonds. Prior to the commencement of any activity under this Agreement,
Catalyst shall provide a Performance and Payment Bond in the full amount of the cost of all the
improvements and work to be performed on the Leased Premises. Each bond will be approved as
to form, substance and surety by the City.
11.3 CATALYST HEREBY RELEASES, AND SHALL CAUSE ITS
CONTRACTORS TO RELEASE, THE INDEMNITEES (AS DEFINED IN SECTION
12.1) FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION WHATSOEVER
THAT CATALYST OR ITS CONTRACTORS MIGHT OTHERWISE POSSESS
RESULTING IN OR FROM OR IN ANY WAY CONNECTED WITH ANY LOSS
COVERED OR WHICH SHOULD HAVE BEEN COVERED BY INSURANCE,
INCLUDING THE DEDUCTIBLE PORTION THEREOF, MAINTAINED AND/OR
REQUIRED TO BE MAINTAINED BY CATALYST AND/OR ITS CONTRACTORS
PURSUANT TO THIS AGREEMENT, EVEN IF SUCH CLAIMS OR CAUSES OF
ACTION ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY
INDEMNITEE. THE FOREGOING WAIVER, HOWEVER, WILL NOT APPLY TO
ANY CLAIMS OR CAUSES OF ACTION WHICH ARE CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE.
11.4 Survival; Right to Enforce. The provisions of Section 11.4 shall survive the
termination of this Agreement. In the event that Catalyst shall fail to maintain full insurance
coverage required by this Agreement and such failure continues for thirty (30) days after
Catalyst's receipt of written notice from City, City may (but shall be under no obligation to) take
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out the required policies of insurance, pay the required premiums or otherwise comply with the
covenants set forth in this Article XI. All amounts advanced by City in payment of the required
premiums for such insurance or otherwise to comply with the covenants set forth in this Article
XI shall be paid by Catalyst to City, together with interest thereon at the prime rate of interest
charged its commercial customers from time to time by Chase Bank-Fort Worth.
XII. Liabilities and Indemnities
12.1 Indemnity. CATALYST SHALL INDEMNIFY, PROTECT, DEFEND, AND
HOLD HARMLESS CITY, CITY'S OFFICERS, DIRECTORS, AFFILIATES,
EMPLOYEES, AGENTS, AND COUNCIL MEMBERS (COLLECTIVELY, THE
"INDEMNITEE" OR "INDEMNITEES") FOR, FROM, AND AGAINST ANY AND ALL
DAMAGES, LOSSES, LIABILITIES (JOINT OR SEVERAL), PAYMENTS,
OBLIGATIONS, PENALTIES, CLAIMS, LITIGATION, DEMANDS, DEFENSES,
JUDGMENTS, SUITS, PROCEEDINGS, COSTS, DISBURSEMENTS OR EXPENSES
(INCLUDING, WITHOUT LIMITATION, FEES, DISBURSEMENTS AND
REASONABLE EXPENSES OF ATTORNEYS, ACCOUNTANTS, AND OTHER
PROFESSIONAL ADVISORS AND OF EXPERT WITNESSES AND COSTS OF
INVESTIGATION AND PREPARATION) OF ANY KIND OR NATURE
WHATSOEVER (COLLECTIVELY, THE "DAMAGES"), DIRECTLY OR
INDIRECTLY RESULTING FROM, RELATING TO OR ARISING OUT OF:
(a) THE DESIGN, INSTALLATION, CONSTRUCTION, DEVELOPMENT,
MAINTENANCE, OPERATION, USE, OCCUPANCY, OR OWNERSHIP OF
THE IMPROVEMENTS, INCLUDING, WITHOUT LIMITATION ANY
DAMAGES WITH RESPECT TO CONTRACTS OR ATTRIBUTABLE TO
BODILY INJURY, SICKNESS, DISEASE OR DEATH, TO PERSONAL INJURY,
OR TO INJURY OR DESTRUCTION OF PROPERTY, INCLUDING LOSS OF
USE RESULTING THEREFROM, PROVIDED THE PARTIES AGREE THAT
THEY WILL PURSUE ANY AVAILABLE INSURANCE COVERAGE PRIOR
TO PURSUING INDEMNIFICATION HEREUNDER;
(b) THE FORMATION, ORGANIZATION AND OPERATION OF
CATALYST, OR ANY SUBSIDIARIES OF CATALYST;
(c) ANY BREACH OF OR INACCURACY IN ANY REPRESENTATION OR
WARRANTY MADE OR GIVEN BY CATALYST OR ANY OF ITS AGENTS,
OFFICERS, OR EMPLOYEES CONTAINED IN THIS AGREEMENT; OR
(d) ANY BREACH OR NON-PERFORMANCE, PARTIAL OR TOTAL, BY
CATALYST OF ANY COVENANT OR AGREEMENT OF CATALYST
CONTAINED IN THIS AGREEMENT.
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12.2 Negligence of Indemnitee. THIS INDEMNIFICATION REMAINS IN FULL
FORCE AND EFFECT EVEN IF ANY CLAIM DIRECTLY OR INDIRECTLY
RESULTS FROM, ARISES OUT OF, OR RELATES TO OR IS ASSERTED TO HAVE
RESULTED FROM, ARISEN OUT OF, OR RELATED TO THE SOLE NEGLIGENCE
OR CONCURRENT NEGLIGENCE OF AN INDEMNITEE. THE ONLY
CIRCUMSTANCES UNDER WHICH THIS INDEMNITY SHALL NOT APPLY SHALL
BE IN CONNECTION WITH LIABILITIES ATTRIBUTABLE TO THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
12.3 Survival; Right to Enforce. The provisions of this Article XII shall survive the
termination of this Agreement. In the event of failure by Catalyst to observe the covenants,
conditions and agreements contained in this Article XII, any Indemnitee may take any action at
law or in equity to collect amounts then due and thereafter to become due, or to enforce
performance and observance of any obligation agreement or covenant of Catalyst under this
Article XII. The obligations of Catalyst under this Article XII shall not be affected by any
assignment or other transfer by the City of its rights, titles or interests under this Agreement and
will continue to inure to the benefit of the Indemnitees after any such transfer. The provisions of
this Article XII shall be cumulative with and in addition to any other agreement by Catalyst to
indemnify any Indemnitee.
XIII. Environmental and Hazardous Materials
13.1 For purposes of this Agreement, the following terms shall have the following
meanings: (1) "Hazardous Materials" shall mean (i) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde
foam insulation, transformers, or other equipment that contains dielectric fluid containing
polychlorinated biphenyls in violation of Environmental Law, and radon gas in indoor air at
concentrations above US Environmental Protection Agency action levels; (ii) any chemicals or
substances now or hereafter defined as or included in the definition of "hazardous materials",
hazardous wastes", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants" or "pollutants", or words of similar import,
under any applicable Environmental Law; and (iii) any other chemical, material, or substance,
exposure to which is now or hereafter prohibited, limited, or regulated, by any applicable
Environmental Law or governmental authority; (2) "Release" or "Released" means disposed,
discharged, injected, spilled, leaked, leached, dumped, emitted, escaped or emptied in, on, or
under any land, water, or air, or otherwise entered into the environment, and as otherwise more
broadly defined in applicable Environmental Law; and (3) ("Environmental Law") means all
applicable Governmental Rules (whether now or hereafter in effect), relating to the regulation of,
imposing standards of conduct or liability regarding, or protection of, human health, natural
resources, conservation, the environment, or the storage, treatment, disposal, transportation,
handling or other management of Hazardous Materials. Catalyst hereby acknowledges and
agrees that City is not the Generator as defined by Environmental Law of any Hazardous
Materials which Catalyst has allowed on the Leased Premises.
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13.2 Catalyst covenants and agrees with City as follows: (1) the construction and
installation of all improvements and the use and operation of the Leased Premises shall at all
times be in material compliance with applicable Environmental Law; (2) Catalyst will obtain all
environmental permits, licenses. and approvals that are necessary or required by applicable
Environmental Law to conduct its business and operations on the Leased Premises prior to
conducting such business or operations, and Catalyst shall at all times materially comply with
such environmental permits, licenses, and approvals; (3) neither Catalyst nor any person acting
on behalf of or at the direction of Catalyst shall bring onto, use, store, generate, treat, process,
dispose of, recycle, incinerate or transport any Hazardous Materials in, on, or under the Leased
Premises except in compliance with applicable Environmental Law and in a reasonable and
prudent manner so as to prevent the Release or threat of Release of any Hazardous Material on,
onto or from the Leased Premises; (4) Catalyst shall regularly inspect the Leased Premises to
monitor and ensure that the Leased Premises are at all times in material compliance with
applicable Environmental Law; (5) Catalyst shall use commercially reasonable efforts to protect
the Leased Premises against intentional or negligent acts or omissions of third parties which
might result in the Release of Hazardous Materials on the Leased Premises in violation of
applicable Environmental Law; and (6) if Catalyst has actual knowledge that any Hazardous
Materials are Released by Catalyst or any person other than by the City or City's agents in, on, or
under the Leased Premises in violation of Environmental Law during the Term of this
Agreement:
a. Catalyst shall promptly notify City of the occurrence of the Release of the Hazardous
Materials and shall promptly provide City with Catalyst's response action and/or
communication with any governmental agency to which Catalyst is required by
applicable laws to report such Release. Catalyst shall furnish or make available to the
City such information, documents, and other communications as City shall reasonably
request;
b. Catalyst shall promptly and timely commence or cause to be commenced
appropriate actions required by applicable Environmental Law to clean up the
Hazardous Materials that have been Released on the Leased Premises (collectively
referred to as "Response Action") and shall conduct and perform or cause to be
conducted or performed all appropriate Response Action in accordance with
applicable Environmental Law; and
C. Catalyst, at its sole cost, shall contract for or perform all Response Action in the Catalyst's
own name or cause the violator to do so in the violator's name.
13.3 CATALYST HEREBY COVENANTS AND AGREES THAT IT SHALL BE
RESPONSIBLE FOR, AND WAIVES, RELEASES, AND FOREVER DISCHARGES
THE INDEMNITEES FROM, AND AGREES TO INDEMNIFY, DEFEND, AND HOLD
THE INDEMNITEES HARMLESS FROM AND AGAINST, ALL EXPENSES, COSTS
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS), LOSSES,
DAMAGES, PENALTIES, FINES, AND OTHER EXPENDITURES OF ANY NATURE
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ARISING FROM OR IN CONNECTION WITH ANY CLAIMS, DEMANDS, LIENS,
INVESTIGATIONS, NOTICES OF VIOLATION, GOVERNMENTAL DIRECTIVES,
CAUSES OF ACTION OR ANY OTHER ADMINISTRATIVE OR LEGAL
PROCEEDINGS OF ANY NATURE WHICH RESULT FROM,RELATE TO, OR ARISE
OUT OF (1) THE BREACH OF ANY COVENANT OR AGREEMENT OF CATALYST
IN THIS SECTION 13.3, (2) THE PRESENCE OR ALLEGED PRESENCE OF
HAZARDOUS MATERIALS IN, ON, OR UNDER THE LEASED PREMISES IN
VIOLATION OF ANY ENVIRONMENTAL LAW BUT ONLY IF SUCH
HAZARDOUS MATERIALS WERE BROUGHT TO THE LEASED PREMISES
DURING THE TERM OF THIS AGREEMENT BY CATALYST, OR (3) THE
VIOLATION OF ANY APPLICABLE ENVIRONMENTAL LAW WITH RESPECT TO
THE LEASED PREMISES DURING THE TERM OF THIS AGREEMENT; SO LONG
AS, IN EACH INSTANCE, THE PRESENCE OR RELEASE OF THE HAZARDOUS
MATERIAL OR THE VIOLATION OF ENVIRONMENTAL LAW WAS NOT CAUSED
DIRECTLY OR INDIRECTLY BY CITY OR AN INDEMNITEE. THIS RELEASE AND
INDEMNITY SPECIFICALLY INCLUDES (A) ALL COSTS OF "REMOVAL" AND/OR
"REMEDIAL ACTION" AND ALL OTHER COSTS OF "RESPONSE", AS THOSE
TERMS ARE DEFINED AND USED IN APPLICABLE ENVIRONMENTAL LAW, AND
(B) ALL OTHER COSTS AND EXPENSES OF ANY NATURE INCURRED BY,
ASSESSED AGAINST, IMPOSED UPON, OR CHARGED TO THE INDEMNITEES
RELATING TO COMPLIANCE WITH OR ENFORCEMENT OF APPLICABLE
ENVIRONMENTAL LAW. IF ANY INDEMNITEE INCURS COSTS OR EXPENSES
DESCRIBED IN THIS INDEMNITY, CATALYST SHALL REIMBURSE THE
INDEMNITEE FOR THOSE REASONABLE COSTS OR EXPENSES WITHIN THIRTY
(30) DAYS OF THE DATE OF RECEIPT BY CATALYST OF NOTICE FROM THE
INDEMNITEE, INCLUDING COPIES OF INVOICES OR OTHER VERIFICATION,
THAT THE COSTS OR EXPENSES HAVE BEEN INCURRED. THE FOREGOING
RELEASE AND INDEMNITY SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT.
13.4 If(i) there exists any uncorrected violation by Catalyst of an Environmental Law
or any condition, caused directly or indirectly by Catalyst, which requires a cleanup, removal or
other remedial action by Catalyst under any Environmental Law, and such cleanup, removal or
other remedial action is not initiated within the time period required by Environmental Law or
(ii) City reasonably determines that (A) such uncorrected violation or condition poses an
imminent threat to the safety or wellbeing of any other users of the Leased Premises, the citizens
of the City of Fort Worth or the County, or other persons, or (B) the Leased Premises is likely to
be further damaged or contaminated or other land on or in the vicinity of the Leased Premises is
likely to be damaged or contaminated by virtue of the continued failure to correct such violation
or condition; and such cleanup, removal or other remedial action is not initiated within ninety
(90) days from the date of written notice from City to Catalyst, and diligently pursued to
completion, the same shall, at the election of City, constitute an Event of Default as described in
Section 17.1(c) hereof; and provided, further, that City will not consider any failure to initiate
such cleanup, removal or other remedial action within the aforesaid ninety (90) day period an
Event of Default if such cleanup, removal or other remedial action is of such a nature that it
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cannot readily be initiated within the ninety (90) days and so long as Catalyst commences in
good faith to cure such uncorrected violation or condition and diligently pursues the cure
continuously thereafter.
13.5 Catalyst hereby grants to City, its agents, employees, consultants, contractors,
successors, and assigns, an irrevocable license and authorization, upon reasonable notice, to enter
upon and inspect the Leased Premises (but not any facilities or improvements thereon), and
perform such tests, including without limitation, subsurface testing, soils and groundwater
testing, and any other tests thereon, as the City, in its sole discretion, determines is necessary to
protect its interest in the Leased Premises, provided, however, that such access to the Leased
Premises shall not unreasonably interfere with Catalyst or any tenant's use of the Leased
Premises.
13.6 During the term of this Agreement, Catalyst agrees to provide City with copies of
any environmental reports Catalyst obtains (without Catalyst being obligated to obtain any such
reports)relating to the Leased Premises.
XIV. Utilities
14.1 Catalyst will bear costs, expenses and fees of extension connections and tapping
charges for water and sanitary sewer facilities in accordance with the ordinances of the City on
the Leased Premises. Catalyst acknowledges that City, as the landlord, is not responsible for
providing utility service to the Leased Premises, except for utilities provided by City in its
governmental capacity as provider of certain utilities, including water and sewer. Any
construction performed by Catalyst within any drainage or utility easement area must meet utility
company and City criteria for design and construction in such easement area. Any and all
connections to water and sewer lines must occur at the existing utility connection points, unless
otherwise agreed to in writing by City. All costs incurred with any relocation of existing utility
lines or facilities or installation of additional utility lines or facilities on the Leased Premises
shall be entirely at Catalyst's expense, whether on or off the Leased Premises. Catalyst shall also
provide the City legal descriptions for any required utility easements and City shall reasonably
cooperate with Catalyst on the granting of any necessary easements, subject to all required
Council approvals.
XV. Non-Discrimination.
15.1 Catalyst agrees that for itself, its personal representatives, successors in interest
and assigns, no person shall be excluded from participation in or denied the benefits of Catalyst's
use of the Leased Premises on the basis of race, color, national origin, religion, handicap, gender,
sexual orientation, familial status, gender identity, gender expression, or transgender.
XVI. Option to Purchase and Put Option
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16.1 Catalyst's Option to Purchase. City grants to Catalyst a one-time option (the
"Option"), pursuant to and subject to the conditions of this Article XVI, to purchase the Leased
Premises (excluding the Improvements thereon, which are owned by Catalyst), from City for the
Property Consideration (defined below), provided that City does not first exercise the Put Option
set forth in Section 16.2 below. Catalyst shall have the right to exercise the Option by giving
notice to City within thirty (30) days after the date of Project Completion as defined in the TIF
Agreement (the "Option Period"). However, if Catalyst fails to exercise the Option within the
Option Period (and City fails to exercise the Put Option), City shall deliver written notice to
Catalyst requesting that Catalyst notify City whether Catalyst will exercise the Option set forth in
this Section 16.1, and Catalyst will have ten(10) days after receipt of City's notice to exercise the
Option, even though such ten (10) day period would extend beyond the Option Period. If
Catalyst has exercised the Option, then Catalyst shall purchase the Leased Premises within 60
days after the date of the exercise of the Option, and the Parking Easement shall be recorded in
the Official Public Records of Tarrant County at closing.
16.2 City's Put Option. Catalyst hereby grants to City an option to put the Leased
Premises to Catalyst (the "Put Option") during the Option Period for the Property
Consideration, provided that Catalyst does not first exercise the Option, and Catalyst shall be
obligated to accept the Leased Premises within sixty (60) days thereafter. To exercise the Put
Option, City must give notice of its exercise within the Option Period; provided, however, if City
fails to exercise the Put Option within the Option Period (and Catalyst does not exercise the
Option), Catalyst shall deliver written notice to City requesting that City notify Catalyst whether
City will exercise the Put Option set forth in this Section 16.2. City will have ten (10) days
following receipt of Catalyst's notice to exercise the Put Option, even though such ten (10) day
period would extend beyond the Option Period.
16.3 Consideration for Option and Property Conveyance. The parties agree that the
fair market value of the Leased Premises, as determined on January 1, 2014, is $2,654,849.00.
The parties agree that the consideration for the Leased Premises shall be paid by Catalyst to City
through the granting of the Parking Easement as full payment for the Leased Premises. The City
and Catalyst agree that the value of the Property Easement is equal to the Easement Value
Remainder("Property Consideration").
16.4 Terms and Conditions of Purchase/Put. In the event that the Leased Premises are
to be acquired by Catalyst pursuant to Catalyst's exercise of the Option or City's exercise of the
Put Option: (a) the closing of such acquisition shall occur in such place as City and Catalyst
mutually determine; (b) the closing shall occur on a date designated by Catalyst (by at least ten
(10) days' advance written notice to City) (the "Closing Date"); (c) the Leased Premises shall be
conveyed to Catalyst pursuant to a special warranty deed, subject only to the permitted
exceptions, the form of which is attached hereto as Exhibit "D"; (d) the Parking Easement shall
be recorded in the Real Property Records of Tarrant County immediately following the recording
of the special warranty deed; (e) any utility or right-of-way easements required by City, subject
to Catalyst's reasonable approval, shall either be retained by City or granted by Catalyst to City
at closing at no cost to City; (f) City and Catalyst shall terminate this Agreement; (g) City shall
execute and deliver such other documentation as shall be necessary to vest title to the Leased
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Premises and all appurtenances owned by City in Catalyst; and (h) all expenses of closing,
including but not limited to any title policy premiums, survey costs, and recording fees (but
excluding attorneys' fees, which shall be borne by the party incurring such fees), shall be borne
solely by Catalyst.
16.5 Remedies. In the event that City shall default in any of its obligations hereunder
to be performed prior to closing, for any reason other than Catalyst's default or a termination of
this Agreement by City pursuant to a right to do so under the provisions hereof, Catalyst may
exercise any and all remedies available to it at law or in equity, including without limitation, by
enforcing specific performance of this Agreement or terminating this Agreement. All rights and
remedies available to Catalyst shall be cumulative and nonexclusive, and the failure or delay in
exercising any such right or remedy shall not constitute a waiver thereof. Catalyst agrees to give
City three (3) days written notice and an opportunity to cure any default by City under this
Article XVI prior to Catalyst exercising its remedies provided for herein, other than for failure to
close and perform the obligations and make the deliveries required for closing hereunder. The
foregoing notice and cure shall not extend any deadlines expressly set forth in this Agreement.
XVII. Default and Termination
17.1 The following events shall be deemed to be events of default by Catalyst under
this Agreement:
(a) Catalyst shall fail to pay any installment of Rent, and such failure shall
continue for a period of thirty (30) business days after written notice of such delinquency
is delivered to Catalyst.
(b) Catalyst shall fail to obtain and/or provide insurance in accordance with
this Agreement and such failure shall continue for a period of ten (10) business days after
written notice of such is delivered to Catalyst.
(c) Catalyst shall fail to comply with any term, provision, clause, sentence,
covenant or any other item of this Agreement, other than the payment of Rent or
provision of insurance, and shall not cure such failure within thirty (30) calendar days
after written notice thereof to Catalyst; provided, however, that if such performance or
observance cannot be reasonably accomplished within such thirty (30) day period, then
Catalyst shall have up to an additional one hundred eighty (180) days so long as Catalyst
is diligently pursuing such performance or observance; provided further, that if Catalyst
is diligently pursuing the eviction of a subtenant due to the failure of the subtenant to
comply with the provisions of this Agreement and the eviction process cannot be
reasonably accomplished within such one hundred eighty (180) day period, then Catalyst
shall have such additional time as is needed for the eviction.
(d) The TIF Agreement is terminated due to the default of Catalyst under any
of the following Sections of the TIF Agreement, including any amendments thereto:
Section 4.1 (but not Sections 4.1.1 or 4.1.2) and Section 4.5.1.
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(e) Catalyst shall desert or vacate any substantial portion of the premises. In
the event that the City believes a substantial portion of the Leased Premises has been
vacated or deserted, the City shall notify Catalyst of such. If Catalyst fails to respond
within thirty (30) calendar days to such notice, Catalyst shall be deemed to have deserted
or vacated a substantial portion of the Leased Premises under this Section.
(f) It is recognized that if Catalyst is adjudged a bankrupt, or makes a general
assignment for the benefit of creditors, or if a receiver is appointed for the benefit of its
creditors (and same is not discharged within 60 days thereafter), or if a receiver is
appointed on account of its insolvency (and same is not discharged within 60 days
thereafter), such could impair or frustrate Catalyst's performance of this Agreement.
Accordingly, it is agreed that upon the occurrence of any such event, City shall be
entitled to request of Catalyst or its successor in interest adequate assurance of future
performance in accordance with the terms and conditions hereof. Failure to comply with
such request within ten (10) calendar days of delivery of the request shall be an event of
default by Catalyst hereunder.
(g) Catalyst has repeated defaults, whether cured or not. In order to be in
default under this provision, Catalyst must be given notice of default four times over a
consecutive 12 month period for the same event of default. In that event, City shall have
the right to pursue the remedies in Section 17.2.
17.2 Upon the occurrence of any event of default specified above in Section 17.1, City
shall have the option to pursue any one or more of the following remedies without any notice or
demand whatsoever:
(a) Terminate this Agreement in which event Catalyst shall immediately
surrender the Leased Premises and the Improvements (subject to all rights of the
Leasehold Mortgagee) to the City; and if Catalyst fails to do so, the City may, without
prejudice to any other remedy which it may have for possession or arrearages in rent,
enter upon and take possession and expel or remove Catalyst and any other person who
may be occupying the Leased Premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim of damages therefor; and Catalyst agrees to pay
to the City on demand the amount of all loss and damages which the City may suffer by
reason of such termination, whether through inability to relet the Leased Premises on
satisfactory terms or otherwise.
(b) Enter upon and take possession of the Leased Premises and expel or
remove Catalyst and any other person who may be occupying the premises or any part
thereof, by force if necessary, without being liable for prosecution or any claim of
damages therefor; and if the City so elects, relet the Leased Premises on such terms as the
City shall deem advisable and receive the rent thereof, and Catalyst agrees to pay to the
City on demand any deficiency that may arise by reason of such reletting.
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(c) Enter upon the Leased Premises, by force if necessary, without being
liable for prosecution or any claim of damages therefor and do whatever Catalyst is
obligated to do under the terms of this Agreement; and Catalyst agrees to reimburse the
City on demand for any expenses which the City may incur, thus effecting compliance
with Catalyst's obligations under this Agreement; and Catalyst further agrees that the City
shall not be liable for any damages resulting to Catalyst from such action.
17.3 No reentry or taking possession of the premises by the City shall be construed as
an election on its part to terminate this Agreement, unless a written notice of such intention shall
be given to Catalyst. Notwithstanding any such reletting or reentry or taking possession, the City
may at any time thereafter elect to terminate this Agreement for a previous default. Pursuit of
any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein
provided or any other remedies provided by law, nor shall the pursuit of any remedy herein
provided constitute a forfeiture or waiver of any payments due to the City hereunder or of any
damages accruing to the City by reason of the violation of any of the terms, provisions and
covenants herein contained. The City's acceptance of payments following an event of default
hereunder shall not be construed as the City's waiver of such event of default. No waiver by the
City of any violation or breach of any of the terms, provisions and covenants herein contained
shall be deemed or constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained. Forbearance by the City to enforce one or more of
the remedies herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. The loss or damage that the City may suffer by reason of
termination of this Agreement or the deficiency from any reletting as provided for above shall
include the expense of repossession and any repairs or remodeling undertaken following
possession. Should the City at any time terminate this Agreement for any default, in addition to
any other remedy the City may have, the City may recover from Catalyst all damages the City
may incur by reason of such default, including cost of recovering the premises and reasonable
attorney's fees expended by reason of default.
In the event of a termination prior to the conveyance of the Leased Premises pursuant to Article
XVI, regardless of the cause of the termination (except for a termination under Section XIX),
Catalyst shall pay to City the prorated amount of the Lease Consideration Amount as set forth in
Section 3.2, less any unreimbursed cost for the Site Preparation that is committed to be
reimbursed to Catalyst pursuant to the TIF Agreement but is not reimbursed due to a termination
of the TIF Agreement. Catalyst shall not be allowed to deduct any amounts from the Lease
Consideration Amount due under this Section 17.4 that (i) have already reimbursed or are to be
reimbursed for Site Preparation pursuant to the TIF Agreement or (ii) are not substantiated with
sufficient proof of expenditures for Site Preparation in a form acceptable to City.
XVIII. The City's Default
18.1 The occurrence of the following shall be an event of default by the City: The
failure of the City to substantially perform or substantially observe any of the obligations,
covenants or agreements to be performed or observed by the City under this Agreement within
sixty (60) days' notice after notice from Catalyst of such failure; provided, however, that if such
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performance or observance cannot be reasonably accomplished within such sixty (60) day
period, then no event of default shall occur unless the City fails to commence such performance
or observance within such sixty (60) day period and fails to diligently prosecute such
performance or observance within such sixty (60) day period and such performance or
observance is not completed within one hundred eighty (180) days of such notice of default.
18.2 Upon the occurrence of any event of default specified above in Section 18.1,
Catalyst shall have the option to pursue any one or more of the following remedies:
(a) Terminate this Agreement; and
(b) Catalyst may exercise any and all remedies available to Catalyst at law or
in equity.
18.3 The parties acknowledge that all references to "City" herein shall refer only to
City in its capacity as landlord and seller under this Agreement. The term "City" and the duties
and rights assigned to it under this Agreement, thus exclude any action, omission or duty of the
City when performing its governmental functions. Any action, omission or circumstance arising
out of the performance of the City of its governmental functions may prevent City from
performing its obligations under this Agreement and shall not cause or constitute a default by
City under this Agreement or give rise to any rights or claims against the City in its capacity as
landlord, it being acknowledged that Catalyst's remedies for any injury, damage or other claim
resulting from any such action, omission or circumstances arising out of the governmental
functions of the City shall be governed by the laws and regulations concerning claims against the
City as a charter city and a governmental authority. In addition, no setoff, reduction,
withholding, deduction or recoupment shall be made in or against any payment due by Catalyst
to City under this Agreement as a result of any action or omission of the City when performing
its governmental functions.
XIX. Condemnation
19.1 If during the term of this Agreement, all of the Leased Premises and
Improvements should be taken for any public or quasi-public use under any governmental law or
by right of eminent domain, or should be sold to the condemning authority under threat of
condemnation, this Agreement shall terminate and Catalyst, its heirs, successors and assignees
shall be fairly compensated for the fair market value of their leasehold interests. Rent shall be
abated during the unexpired portion of this Agreement effective as of the date of the taking of the
premises by the condemning authority. To the best of the knowledge of City's signatory of this
Lease, no known condemnation action is planned for the Leased Premises.
19.2 Should the City or any other governmental authority take a portion of the Leased
Premises or the Improvements (including but not limited to Catalyst's leasehold estate in and to
the Leased Premises or Improvements), under any governmental law or by right of eminent
domain, and Catalyst can demonstrate that such a taking has a material financial impact on its
operations of the Improvements, Catalyst may terminate this Agreement by giving written notice
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to the City within thirty (30) days after possession of the condemned portion is taken by the
entity exercising the power of condemnation.
19.3 Regardless of any other provision of this section, no condemning authority shall
be required to pay more than the then current fair market value of the Leased Premises.
X.X. Surrender and Right of Re-entry
20.1 Upon the cancellation or termination of this Agreement (except for a termination
or cancellation made in connection with the closing of the Option or Put Option), Catalyst agrees
peaceably to surrender the Leased Premises to the City in good condition and repair, ordinary
wear and tear excepted. Upon any such cancellation or termination, the City may re-enter the
Leased Premises together with all improvements and additions thereto at City's election. So long
as Catalyst is not in default, Catalyst shall have a reasonable time thereafter(not exceeding thirty
[30] days after such cancellation or termination) to remove its personal property, and trade
equipment which it may have on the Leased Premises, provided the removal thereof does not
impair, limit or destroy the utility of said Leased Premises. Any damage caused by such removal
will be repaired by Catalyst at its sole cost and expense.
20.2 If Catalyst fails to remove its property within thirty (30) days after the termination
of or expiration of this Agreement, the City may remove such property to a public warehouse for
deposit or retain the same in its own possession. If Catalyst fails to take possession and remove
such property, after paying any appropriate rental fees, within sixty (60) days after termination of
this Agreement, the property shall be deemed to be abandoned and the City may sell the same at
public auction.
XXI. Notices
21.1 All notices, consents and approvals required or desired to be given by the parties
hereto shall be sent in writing, and shall be deemed sufficiently given when same is hand
delivered or deposited in the United States mail, sufficient postage prepaid, registered or certified
mail, return receipt requested, addressed to the recipient at the address set forth below:
To City: Director of Economic Development
City of Fort Worth
1150 South Freeway
Fort Worth, Texas 76104
with a copy to: City Attorney
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
Attn: Leann Guzman
To Catalyst: Burnett Lofts, LLC
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c/o Catalyst Urban Development, LLC
7001 Preston Road, Fifth Floor
Dallas, Texas 75205
with a copy to: Locke Lord LLP
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201
Attn: J. Mitchell Bell
XXII. Holding Over
22.1 A holding over by Catalyst after the termination of this Agreement and after
written notice by the City to vacate such premises, and continued occupancy thereof by Catalyst
shall constitute Catalyst a trespasser.
22.2 Any holding over by Catalyst beyond the thirty (30) day period permitted for
removal of property without the written consent of the City shall make Catalyst liable to the City
for rent at one hundred fifty percent (150%) of the rent amount in effect at the time of the
holdover, and damages, costs and attorneys' fees which may arise due to Catalyst holding over.
22.3 All insurance coverage that Catalyst is required to maintain shall continue in
effect for so long as Catalyst, or any of Catalyst's subtenants occupy the Leased Premises or any
part of the Leased Premises.
XXIII. Invalid Provisions
23.1 If any of the terms, sections, subsections, sentences, clauses, phrases, provisions,
covenants, conditions or any other portion of this Agreement are for any reason held to be
invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences,
clauses, phrases, provisions, covenants or conditions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
XXIV. Miscellaneous Provisions
24.1 All remedies provided in this Agreement shall be deemed cumulative and
additional and not in lieu of, or exclusive of, each other, or of any other remedy available to the
City, or Catalyst, at law or in equity, and the exercise of any remedy, or the existence herein of
other remedies or indemnities shall not prevent the exercise of any other remedy.
24.2 No failure or delay by a party hereto in exercising any right, power or remedy
under this Agreement, and no course of dealing between the parties hereto, will operate as a
waiver of any such right, power or remedy of the party. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or provisions.
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24.3 Notwithstanding any other provision of this Agreement, Catalyst shall not be
entitled to claim or receive any compensation as a result of or arising out of any delay,
hindrance, disruption, force majeure, impact or interference, foreseen or unforeseen.
24.4 Catalyst assumes the risk of all suspensions of or delays in performance of this
Agreement, regardless of length thereof, arising from all causes whatsoever, whether or not
relating to this Agreement, and Catalyst shall bear the burden of all costs, expenses and liabilities
which it may incur in connection with such suspensions or delays, and all such suspensions,
delays, costs, expenses and liabilities of any nature whatsoever, whether or not provided for in
this Agreement, shall conclusively be deemed to have been within the contemplation of the
parties.
24.5 Upon full execution of this Agreement, the City and Catalyst will execute and
record a Memorandum of Agreement in a form acceptable to both parties. Catalyst will pay all
recording fees due upon recordation of the Memorandum of Agreement.
24.6 Notwithstanding anything to the contrary set forth in this Agreement, Catalyst
recognizes and agrees that any contracts, agreements or amendments contemplated to be entered
into by the City under the terms of this Agreement which are entered into after the Effective Date
of this Agreement will be subject to the prior approval of the Fort Worth City Council other than
the approvals, consents and confirmations expressly permitted in this Agreement.
XXV. General Provisions
25.1 This Agreement shall be performable and enforceable in the City of Fort Worth
and County of Tarrant, Texas, and shall be construed in accordance with the laws of the State of
Texas.
25.2 This Agreement is made for the sole and exclusive benefit of the City and
Catalyst.
25.3 Subject to the limitations upon assignment herein contained, this Agreement shall
be binding upon and inure to the benefit of the parties hereto, their respective successors and
assigns.
25.4 In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did not author the same.
25.5 Nothing contained in this Agreement will be deemed or construed, either by the
parties hereto or by any third party, to create any partnership, joint venture or other association
between the City and Catalyst except that of lessor and lessee, and seller and purchaser.
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25.6 The titles of the sections of this Agreement are inserted herein for convenience
only, and are not intended and shall not be construed to affect in any manner the terms and
provisions hereof or the interpretation or construction thereof.
XXVI. Amendments
26.1 This Agreement may not be changed, modified, discharged or extended except by
written instrument duly executed by the City and Catalyst or as otherwise provided herein.
XXVII. Force Maieure
27.1 In the event that City or Catalyst shall be delayed, hindered in, or prevented from
the performance of any act required hereunder by reason of an act of God, strike, lockout, labor
trouble, inability to procure materials, unseasonable weather affecting construction or operation,
failure of power, riot, insurrection, or war,then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be extended for a
period equal to the period of such delay; provided, however, that this Section 27.1 shall have no
application to (i) Catalyst's obligation to pay the Rent or any other monetary obligations
hereunder once Catalyst begins to pay such amounts or (ii) City's obligations to convey the
Leased Premises in accordance with Section XVI.
[Signature Page to Follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year written above.
LANDLORD/CITY:
CITY OF FORT WORTH, TEXAS,
a Texas municipal corporation
By:
Attest: ' ' `5 Jesus Chapa, Assistant City Manager
FdRT�o.
Mary J. Kayser'w§ecre y
Approved as to form:
ssistant City Attor y
Mot C,- d44[3( TENANT:
BURNETT LOFTS,LLC
a Texas limited liability company
By:Burnett Lofts FW Manager, L
a Texas limited liability com
its manager
By:
Nam R. Rhys He nsch
Its: Vice Presid t
OFFICOAL RECORD
CITY SECRETARY
America:0105896/00004:71559413v.2 FT. WORTH,TX
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
ensuring all performance and reporting requirements.
(?�? �
Name of Employee/ ature
�jaf:.res5 ,�.�o,4r»�2.�7�`" Co�iiuf7�pr
Title
❑ This form is N/A as No City Funds are associated with this Contract
Printed Name Signature
OFFICIAL. RECORD
CITY SECRETARY
FT. WORTH,TX
Exhibit"A"
Leased Premises Legal Description
Being Lot 1R and 3R, Block 2, Lot 1R, Block 3 and Lot 1R, Block 4 of Nance's Addition, an
addition to the City of Fort Worth, Tarrant County, Texas, recorded under Clerk's File.No.
D219059650, Real Property Records Tarrant County, Texas.
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Exhibit"B"
Parking Easement
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EASEMENT AGREEMENT
This Easement Agreement (the "Agreement") is entered into as of the day of
, 2019, by and between CITY OF FORT WORTH, a Texas home rule
municipal corporation ("City"), and BURNETT LOFTS, LLC, a Texas limited liability
company (hereafter referred to as "Owner").
RECITALS:
A. Pursuant to that certain Ground Lease with Option to Purchase dated
, 2019 ("Ground Lease") between City and Owner, Owner is developing a
mixed-use project, consisting of multi-family residential, retail development, and a parking
garage (collectively, the "Project") on land owned by the City, such property consisting of
approximately 181,216 square feet and described on Exhibit "A", attached hereto and made
apart hereof for all purposes (the "Property");
B. Owner is the owner of the improvements of the Project, including the 676 space
parking garage located on the Property (the "Parking Garage"), and upon completion of the
Project Owner intends to exercise its option to purchase the Property as set forth in the Ground
Lease, the consideration for said Property purchase being the granting of an easement to park in
the Parking Garage and the Parking Easement Value under the Ground Lease.
C. Owner has agreed and desires to grant an easement to City covering the parking
spaces described on Exhibit "B", attached hereto (the"Parking Easement Area") solely for the
purpose of parking automobiles in and upon the Parking Easement Area as consideration for the
Property purchase.
The preceding Recitals are true and correct and form the basis for this Agreement.
NOW, THEREFORE, for and in consideration of the mutual and dependent covenants
herein contained, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby covenant and agree as
follows:
1. Parking Easement. Owner hereby grants and conveys to City a perpetual and
exclusive easement to the Parking Easement Area for parking of automobiles (the "Permitted
Use") within the Parking Easement Area for the benefit of City. Subject to the terms and
conditions of this Agreement, the City may permit City's employees, customers, invitees,
designees, or licensees (collectively, the "Benefited Users"). to park automobiles in the Parking
Easement Area. Owner reserves the right to grant other non-exclusive easements or other long-
term or short-term agreements for parking of motor vehicles within the Parking Garage so long
as the easements or agreements do not cover any of the Parking Easement Area.
2. Access Easement. Owner hereby grants and conveys to City a perpetual easement
for non-exclusive ingress and egress to and from the Parking Easement Area, over and across the
access driving lanes as shown on Exhibit "B" attached to this Agreement (the "Driving Lanes")
and common areas that are reasonably necessary to permit access to and from the Parking
Easement Area, subject to the terms and conditions of this Agreement. The City may permit any
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Benefited User to use the Driving Lanes and such common areas in connection with the
Permitted Use. Owner, its employees, agents, contractors, supplier and representatives shall not
interfere with the Benefited Users' use of the Parking Easement Area and Driving Lanes, except
as permitted under this Agreement. Nothing contained herein will be construed as creating any
rights in or for the benefit of the general public.
3. Reservations of Owner. Owner reserves the right, subject to City's rights in
Sections 1 and 2 herein, to (i) grant to such parties as Owner deems reasonably necessary
licenses with respect to the Parking Garage and the Driving Lanes and all other common areas
other than in the Parking Easement Area; (ii) take such actions as Owner deems necessary to
discourage unauthorized parking in the Parking Easement Area; (iii) make alterations,
additions and improvements to the Parking Garage and common areas; (iv) manage and control
the Parking Garage, in a commercially reasonable manner consistent with comparable parking
garages in the City of Fort Worth, Texas; (v) establish, modify and enforce reasonable rules
and regulations with respect to the Parking Garage, Driving Lanes, and other common areas;
(vi) temporarily close all or any portion of the Parking Garage, Driving Lanes, or common
areas for the purpose of making repairs, alterations, additions or improvements thereto; and
(vii) install one or more controlled access devices, including, but not limited to, gates utilizing
card keys or tokens, so long as Owner or its subcontractors or affiliates bears all costs
associated with the installation, maintenance and operation of such controlled access devices,
the installation and operation of such devices is in compliance with all applicable laws and
ordinances, and the installation and operation of such devices does not preclude or interfere
with access to or use of the Parking Easement Area or Drive Lanes by City or Benefited Users.
Notwithstanding the foregoing, Owner will have no rights to modify the Parking Garage, the
Parking Easement Area, the Drive Lanes, the common areas, or the rules and regulations to the
extent that the same materially and adversely affect City's or Benefited Users' rights and
benefits set forth in this Agreement.
4. Covenants of Owner. Owner hereby covenants to maintain the Property and the
Parking Garage in accordance with Section 7 hereof. In the event any act performed by Owner in
any manner reduces the Parking Easement Area then currently used by Benefited Users, Owner
will, in its sole discretion, choose to either(i) provide City with parking spaces at another parking
area within close proximity to the Parking Garage, such parking spaces substantially comparable
in number of spaces, condition and repair, convenience (as to location) and safety to those spaces
that are affected; or (ii) pay to the City a fee in the amount of Fourteen Thousand Nine Hundred
Seventy-Two and 97/100 Dollars ($14,972.97) multiplied by the number of parking spaces by
which Owner fails to provide City with 185 parking spaces, which payment will satisfy Owner's
obligation to deliver the Parking Easement Value under the Ground Lease.
5. Compliance with Laws. Owner and City hereby agree to comply with all laws,
ordinances, rules, and regulations pertaining to the Parking Garage.
6. Parking Operations. In order to provide for the orderly use of the Parking Garage,
Owner, with the concurrence of City, will have the right from time to time to develop,
implement, and enforce reasonable rules and regulations for the use and care of the Parking
Garage and upon adoption Owner will furnish written copies of such rules and regulations to
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City. City shall, at its sole cost and expense, use commercially reasonable efforts to cause the
Benefited Users to comply with such rules and regulations.
7. Maintenance Obligations. Owner will maintain the Parking Garage in good
condition and repair, consistent with a Class A parking garage in the Fort Worth Central
Business District, at Owner's sole cost and expense. If the need for repair is caused by City or a
Benefited User, City shall be responsible, at its sole cost and expense, for the repairs.
8. Indemnity-
(a) OWNER WILL AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND
AND HOLD HARMLESS CITY, TOGETHER WITH ITS BENEFITED USERS, OFFICERS,
DIRECTORS, EMPLOYEES, SERVANTS AND AGENTS (THE "INDEMNIFIED
PARTIES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND
REASONABLE EXPENSES, (INCLUDING REASONABLE COURT COSTS,
ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR
DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO OR
DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) BY REASON
OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED
OR ALLEGED TO BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR
OMISSION ON THE PART OF OWNER OR CONTRACTOR OF OWNER, OR ANYONE
OWNER CONTROLS OR EXERCISES CONTROL OVER OR (2) BY ANY BREACH,
VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF OWNER UNDER THIS
AGREEMENT (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES
ARISE FROM OR ARE ATTRIBUTED TO THE CONCURRENT OR PARTIAL
NEGLIGENCE OF ANY INDEMNIFIED PARTIES. THE ONLY LIABILITIES WITH
RESPECT TO WHICH OWNER'S OBLIGATION TO INDEMNIFY THE INDEMNIFIED
PARTIES DOES NOT APPLY IS WITH RESPECT TO LIABILITIES ARISING OUT OF
OR RESULTING SOLELY FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
ANY INDEMNIFIED PARTIES OR ANY BENEFITED USER. IF ANY ACTION OR
PROCEEDING IS BROUGHT BY OR AGAINST ANY INDEMNIFIED PARTIES IN
CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THEN OWNER, ON NOTICE
FROM CITY, WILL DEFEND SUCH ACTION OR PROCEEDING, AT OWNER'S
EXPENSE, BY OR THROUGH ATTORNEYS SELECTED BY OWNER FOLLOWING
CONSULTATION WITH THE CITY. THE PROVISIONS OF THIS PARAGRAPH WILL
APPLY TO ALL ACTIVITIES OF OWNER, WHETHER OCCURRING BEFORE OR
AFTER THE EFFECTIVE DATE OF THIS AGREEMENT AND BEFORE OR AFTER THE
TERMINATION OF THIS AGREEMENT. THIS INDEMNIFICATION WILL NOT BE
LIMITED TO DAMAGES, COMPENSATION OR BENEFITS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFIT
ACTS OR OTHER EMPLOYEES' BENEFIT ACTS.
(b) IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR
HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF
THE INDEMNIFICATION OBLIGATION UNDER THIS ARTICLE 8, SUCH LEGAL
LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND
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WILL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE
MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY
WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE
INDEMNIFICATION OBLIGATION WILL CONTINUE IN FULL FORCE AND EFFECT.
9. Waiver of Liability. NO INDEMNIFIED PARTIES WILL BE LIABLE IN
ANY MANNER TO OWNER OR ANY OTHER PARTY IN CONNECTION WITH THE
USE OF THE PARKING GARAGE BY ANY OF THEM, FOR ANY INJURY TO OR
DEATH OF PERSONS UNLESS CAUSED SOLELY BY THE WILLFUL MISCONDUCT
OR GROSS NEGLIGENCE OF AN INDEMNIFIED PARTIES OR ANY BENEFITED
USER. IN NO EVENT WILL ANY INDEMNIFIED PARTIES BE LIABLE IN ANY
MANNER TO OWNER OR ANY OTHER PARTY AS THE RESULT OF THE ACTS OR
OMISSIONS OF OWNER, ITS AGENTS, EMPLOYEES, CONTRACTORS, OR ANY
OTHER PARTY, IN CONNECTION WITH THE USE OF THE PARKING GARAGE BY
ANY OF THEM. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN
VEHICLES USING THE PREMISES, WHETHER PURSUANT TO THIS AGREEMENT OR
OTHERWISE, WILL NOT BE AT THE RISK OF INDEMNIFIED PARTIES, AND NO
INDEMNIFIED PARTIES WILL BE LIABLE FOR ANY LOSS OR THEFT OF OR
DAMAGE TO PROPERTY OF OWNER OR TO OTHERS, REGARDLESS OF WHETHER
SUCH PROPERTY IS ENTRUSTED TO CONTRACTORS, SUBCONTRACTORS, OR
EMPLOYEES OF OWNER OR SUCH LOSS OR DAMAGE IS OCCASIONED BY
CASUALTY, THEFT OR ANY OTHER CAUSE OF WHATSOEVER NATURE, EVEN IF
DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNIFIED PARTY
OR ANY BENEFITED USER. FOR THE AVOIDANCE OF DOUBT, BENEFITED USERS
ARE NOT INDEMNIFIED PARTIES HEREUNDER.
10. Insurance.
(a) Commercial General Liability Insurance. Owner will maintain at all times
commercial general liability insurance insuring the Owner and City against all claims or
demands for personal injuries to or death of any person, and damage to or destruction or loss of
property, that may be claimed to have occurred in the Parking Garage at the sole cost and
expense of Owner. The policies shall cover such risks and be in such amounts as Owner from
time to time may reasonably determine to be necessary, but in any event with a combined single
limit for bodily injury and property damage per occurrence of not less than Two Million Dollars
($2,000,000.00). Owner insurance will be issued by an insurer licensed to business in the State of
Texas and will contain a waiver of subrogation endorsement. Owner will deliver to City
certificates of such insurance coverage and evidence of payment of all premiums promptly upon
demand by City, which certificates show City as an additional insured and will provide that no
cancellation, reduction in amount, or material change in coverage will be effective until at least
thirty (30) days after receipt of written notice to City. City may carry additional insurance in its
sole and absolute discretion.
(b) Property Insurance During the term of the contract Owner will maintain in force,
at its sole cost and expense, insurance against all risks of direct physical loss for an amount equal
to the full replacement value of the Parking Garage.
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(c) Assignment of Obli ation. Owner may assign its insurance obligations under this
Section 10 to any tenant who leases the entirety of the Parking Garage, whether under a single
lease or multiple leases.
11. Damage to Parking Garage.
(a) If a loss or damage caused by fire or other casualty (a "Casualty") partially
damages or destroys the Parking Garage, the Parking Easement Area, the Driving Lanes, or the
common area except as set forth in Section I I(b), Owner will diligently proceed to repair and
restore fully, at its own cost, the structural elements of the Parking Garage, the Parking
Easement Area, Driving Lanes or the common areas substantially to their condition before the
Casualty. Due allowance, however, will be given for the time required to adjust and settle
insurance claims, and for such other delays as may result from government restrictions, any
controls on construction, and for strikes, emergencies, and other conditions beyond Owners'
reasonable control.
(b) If the Parking Garage or any part of it or any appurtenance to it is so damaged by
fire, casualty or structural defects that the Parking Garage cannot be used for City's purposes,
then Owner will diligently proceed to rebuild the Parking Garage, at its sole cost and expense,
substantially to the condition existing before the Casualty. Due allowance, however, will be
given for the time required to adjust and settle insurance claims, and for such other delays as
may result from government restrictions, any controls on construction, and for strikes,
emergencies, and other conditions beyond Owner's reasonable control.
12. Condemnation.
(a) If substantially all of the Parking Easement Area, Driving Lanes or common
areas are taken or condemned either permanently or temporarily for any public or quasi-
public use or purpose by any competent authority in appropriation proceedings or by any
right of eminent domain (including sale under threat of such a taking) (a "Taking"), then in
any such event, but subject to the provisions of Section 12(b) of this Agreement regarding
repair and restoration, the Agreement will end as of the date of the Taking. If less than
substantially the entire Parking Easement Area, Driving Lanes, or common areas is the
subject of a Taking, this Easement will continue in full force and effect. Notwithstanding the
foregoing, if a Taking occurs of so substantial a part of the Parking Easement Area, Driving
Lanes or common areas that Owner and City conclude that it is impracticable to continue for
the City to use the Parking Easement Area, for its intended use, then this Agreement may be
mutually terminated by Owner and City.
(b) All damages in the event of any Taking related to the Parking Easement Area,
Driving Lanes or common areas are to be equitably divided between Owner and City based on
the respective real property interests in the Property, whether such damages are awarded as
compensation for diminution in value of the Property, reversion, or fee of the Parking
Easement Area and Driving Lanes, and City will have the right to claim and recover from the
condemning authority, or Owner, if the condemning authority does not award damages to City,
such compensation as may be separately awarded or recoverable by City in City's own right
on account of any and all damage to City's parking area by reason of the Taking and for or on
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account of any cost or loss that City might incur in removing City's fixtures, leasehold
improvements and equipment, even if Owner's award is reduced thereby. Notwithstanding the
foregoing, if the City is directly or indirectly the condemning authority, all damages from the
Taking shall be paid to Owner.
13. Subordination. Any mortgage, deed of trust, ground lease, or other lease hereafter
granted or entered into with respect to the Property or the Parking Garage will be subject,
subordinate, and inferior to the easements, rights, benefits, and obligations created hereby, and
the foreclosure under any such mortgage or deed of trust will not extinguish or impair the
easements, rights, benefits, and obligations created by this Agreement.
14. Third Party Beneficiaries. There are no third party beneficiaries to this
Agreement.
15. Notices. All notices, demands, or other communications of any type (herein
collectively referred to as "Notices") given under this Agreement will be in writing and delivered
to the person to whom the notice is directed, either in person (provided that such delivery is
confirmed by the courier delivery service), or by nationally recognized expedited delivery
service with proof of delivery, or by United States Mail, postage prepaid, as a Registered or
Certified item, Return Receipt Requested. Notices delivered by personal delivery will be deemed
to have been given at the time of such delivery, notices delivered by mail will be effective when
deposited in a Post Office or other depository under the care or custody of the United States
Postal Service, enclosed in a wrapper with proper postage affixed, and notice by expedited
delivery service will be considered to have been given on the day deposited with such delivery
service, and addressed, as provided below.
The proper address and facsimile number for City is as follows:
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
Attention: Jesus Chapa
With a copy to:
City Attorney
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
Attn: Leann Guzman
The proper address and facsimile number for Owner is as follows:
Burnett Lofts, LLC
c/o Catalyst Urban Development, LLC
7001 Preston Road, Fifth Floor
Dallas, Texas 75205
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with a copy to:
Locke Lord LLP
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201
Attn: J. Mitchell Bell
Any party hereto may change the address for notice specified above by giving the other party
five days' advance written notice of such change of address in the manner provided above.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas.
17. Severability. In case any one or more of the provisions contained in this
Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability will not affect any other provision hereof, and this
Agreement will be construed as if such invalid, illegal, or unenforceable provisions had never
been contained herein.
18. Covenants Run With the Land. The rights, obligations and benefits established
pursuant to this Agreement run with the Parking Garage and are binding upon Owner, City, and
their respective successors and assigns and all subsequent owners of any portion of the Parking
Garage. From and after a transfer of the Parking Garage by Owner to a successor or assignee,
such successor or assignee shall be solely responsible for the obligations of Owner arising
hereunder.
19. Entire Agreement. This Agreement embodies the entire agreement between the
parties relating to the subject matter hereof, supersedes all prior agreements and understandings,
if any, relating to the subject matter hereof.
20. Amendment. This Agreement and the easements, rights and interests granted
hereunder may only be amended by a written instrument executed jointly by all of Owner, City,
and first mortgage lienholders.
[Signatures Begin on the Following Page]
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IN WITNESS WHEREOF, Owner and City have executed this Agreement as
of the date and year first set forth in this Agreement.
CITY:
CITY OF FORT WORTH,
TEXAS, a Texas municipal
corporation
By:
Attest: Jesus Chapa, Assistant City Manager
Mary J. Kayser, City Secretary
Ap roved as to form:
vv
Assistant City Attorney
OWNER:
BURNETT LOFTS,LLC
a Texas limited liability company
By: Burnett Lofts FW Manager,.LLC,
a Texas limited liability o pany
its manager
By:
Name: . Rhys H inch
Its: Vice Pre ident:
[ACKNOWLEDGEMENTS FOLLOW ON NEXT PAGE]
Signature Page
America:0105 896/00004:7155953 8v.2
ACKNOWLEDGMENTS
STATE OF TEXAS
COUNTY OF DALLAS
,,j°>
On the 2-Z day of KA , Z-0 1 q in the year 2019 before me, the undersigned, a Notary
Public in and for said State, personally appeared R. Rhys Heinsch, the Vice President of Burnett
Lofts FW Manager, LLC, a Texas limited liability company, the Manager of BURNETT
LOFTS, LLC, a Texas limited liability company, on behalf of said limited i 11. company.
CARMEN M. RIGSBY r
JqP UB�
Notary Public,State of Texas
Comm. Expires 06-17-2022 Public
Notary ID 979980
STATE OF TEXAS
COUNTY OF
On the day of in the year 2019 before me, the undersigned, a Notary
Public in and for said State, personally appeared the
of the City of Fort Worth.
Notary Public
Signature Page
America:0105896/00004:715 5953 8v.2
EXHIBIT A
PROPERTY DESCRIPTION
OF THE LAND
Being Lot 1R and 3R, Block 2, Lot 1R, Block 3 and Lot 1R, Block 4 of Nance's Addition, an
addition to the City of Fort Worth, Tarrant County, Texas, recorded under Clerk's File No.
D219059650, Real Property Records Tarrant County, Texas.
Exhibit A
America:0105896/00004:71559538v.2
EXHIBIT B
DESCRIPTION OF PARKING EASEMENT AREA
[SEE ATTACHED]
Exhibit B
America:0105896/00004:715 5953 8v.2
r PGarage
a •in
I I
—It I id
IIr:III F IIi'"1
�--_�_-_
I� Ir I_-1_I I I i
I I;_
Ir-
I II _II I li Ii _-
Commercial I
I I Ili- I Spaces—
Burnett Lofts
I
I
Commercial `I
Spaces—
Adjacent Office
r
1
F F- - G
1
f
I
F, l
i
Tier Parking Spaces Total GSF
1 133 47,733
2 136 43,459
3 135 43,459
4 136 43,459
Roof 136 43,459
Total 676 221,569
BreakDown By Use
Commercial Spaces - Adjacent Office User 85
Commercial Spaces - Burnett Lofts 47
City of Fort Worth 185
Residential Spaces- Burnett Lofts 358
USPS 1
Total 676
Parking
. _ . j 7
Commercial
Spaces;Burnett
hid-
I Lofts
i I I
II I
Commercial
Spaces—City
of Fort Worth
LLIL
-TF T
- T-
_ - v E' _`_
i
Tier Parking Spaces Total GSF
1 133 47,733
2 136 43,459
3 135 43,459
4 136 43,459
Roof 136 43,459
Total 676 221,569
Break own By Use
Commercial Spaces -Adjacent Office User 85
Commercial Spaces - Burnett Lofts 47
City of Fort Worth 185
Residential Spaces- Burnett Lofts 358
USPS 1
Tota 1 676
Parking
r�P.,F_S.f- RAMP UD57%
Residential
Spaces—
Burnett Lofts — )
Commercial
Spaces—City
of Fort Worth
Lin—
Tier Parking Spaces Total GSF
1 133 47,733
2 136 43,459
3 135 43,459
4 136 43,459
Roof 136 43,459
Total 676 221,569
BreakDown By Use
Commercial Spaces -Adjacent Office User 85
Commercial Spaces - Burnett Lofts 47
City of Fort Worth 185
Residential Spaces - Burnett Lofts 358
USPS 1
Total 676
Exhibit "C"
Site Preparation
"Site Preparation" shall consist of-
(i) Demolition of existing structures, including all necessary asbestos abatement;
(ii) Diligently pursuing the environmental remediation of the Property to bring the
environmental condition of the Property to Texas Commission on Environmental
Quality (TCEQ) remediation or corrective action standards applicable to the
Property with the Mixed-Use Improvements, provided, however, that such
standards may consider risk-based standards and institutional or engineering
controls (including, but not limited to a Municipal Setting Designation), as may
be authorized or approved by TCEQ or available pursuant to Environmental Law
(the "Remediation"); and
(iii) Infrastructure improvements necessary to support the development of the Mixed
Use Improvements.
Site Preparation shall be performed in compliance with all Environmental Laws and
Governmental Rules. Catalyst may select the contractors of its choice to perform the Site
Preparation, including the Remediation.
Catalyst shall coordinate with City for all applicable Texas Department of State Health Services
correspondence for proper notification requirements involving asbestos abatement and
demolition-related activities. Notification to the City at least 30 days prior to scheduled structure
demolition or asbestos abatement activities at the site is required. The City, as the owner, must
complete the notification on behalf of Catalyst within 10 days of the request from Catalyst, and
City shall complete the notification at its sole cost and expense.
Upon completion of an environmental cleanup implementation plan ("Cleanup Plan"), Catalyst
shall provide the proposed Cleanup Plan to City for a courtesy review to ensure the proposed
remediation technique and the overall Cleanup Plan is reasonably anticipated to achieve the
Remediation. The Cleanup Plan shall include conclusions regarding whether entering a
regulatory program is necessary or advisable. The City shall provide comments within 10 days
of receipt of the Cleanup Plan, and Catalyst will use commercially reasonable efforts to address
the City's comments. The City and Catalyst agree that the Remediation and the Cleanup Plan
may not be complete during the Lease Term; Catalyst shall diligently pursue the Remediation
and the Cleanup Plan and shall timely complete all portions of the Remediation as are required to
proceed with construction of the Mixed Use Improvements. The City will cooperate with
Catalyst with respect to providing any information for and signatures to any necessary or
advisable regulatory submittals, authorizations or deed recording of documents as may be needed
for Catalyst to perform the Site Preparation.
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Exhibit "D"
Special Warranty Deed
America:0105 896/00004:71559413v.2
SPECIAL WARRANTY DEED
DATE: May 15, 2019
GRANTOR: CITY OF FORT WORTH
GRANTOR'S MAILING ADDRESS: 200 Texas Street, Fort Worth, Tarrant County, Texas
GRANTEE: BURNETT LOFTS FW, LLC
GRANTEE'S MAILING ADDRESS:
Burnett Lofts, LP
c/o Catalyst Urban Development
7001 Preston, Road, Fifth Floor
Dallas, Texas 75205
Attention: Rhys Heinsch
CONSIDERATION: Ten Dollars and and other good and valuable consideration.
PROPERTY (including any improvements):
See attached Exhibit "A", attached hereto and incorporated herein for all purposes
RESERVATIONS FROM CONVEYANCE:
For Grantor and Grantor's heirs, successors, and assigns forever, a reservation of all oil, gas, and
other minerals in and under and that may be produced from the Property, however Grantor hereby
waives any and all rights to conduct drilling, mining, exploratory and producing operations on the
surface of the Property or to construct houses, pits, tanks, pipelines, compressors or similar structures
thereon. If the mineral estate is subject to existing production or an existing lease, this reservation
includes the production,the lease, and all benefits from it, provided that the lessee under such existing
lease waives all rights conduct drilling, mining, exploratory and producing operations on the surface
of the Property or to construct houses, pits,tanks, pipelines, compressors or similar structures thereon.
The right to produce the oil, gas, hydrocarbons and any other minerals under the Property shall be
exercised by conducting all such exploring, mining, drilling and producing operations on lands other
than the Property.
EXCEPTIONS TO CONVEYANCE AND WARRANTY:
This conveyance is expressly made by Grantor and accepted by Grantee subject to:
1. The lien of all current taxes and municipal easements.
2. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting
the title that would be disclose by an accurate and complete survey of the Property or a
personal inspection of the Property.
3. Declarations, restrictions, covenants, and private or public easements of record.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY
KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS, TO CONCERNING OR WITH RESPECT
TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL, AND GEOLOGY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY
CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G)
THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY,
OR (H) EXCEPT FOR THE WARRANTY OF TITLE IN THIS DEED, ANY OTHER MATTER
WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION
OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING SOLID WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION
AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR EXISTENCE IN
OR ON THE PROPERTY OF ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE
COMPREHENSIVE ENVIRONMENT RESPONSE COMPENSATION AND LIABILITY ACT
OF 1980,AS AMENDED,AND REGULATIONS PROMULGATED THEREUNDER. GRANTEE
FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY GRANTOR. AS A MATERIAL PART OF THE
CONSIDERATION FOR THIS AGREEMENT, GRANTOR AND GRANTEE AGREE THAT
GRANTEE IS TAKING THE PROPERTY "AS IS WITH ALL FAULTS" BASIS WITH ANY
AND ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY BY
GRANTOR THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE. GRANTEE
ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY REPRESENTATIONS,
STATEMENTS, ASSERTIONS OR NON-ASSERTIONS BY THE GRANTOR WITH RESPECT
TO THE PROPERTY CONDITION, BUT IS RELYING SOLELY UPON ITS EXAMINATION
OF THE PROPERTY. GRANTEE TAKES THE PROPERTY UNDER THE EXPRESS
UNDERSTANDING THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR
LIMITED WARRANTIES OF TITLE SET FORTH IN THE CLOSING DOCUMENTS). AFTER
CLOSING, AS BETWEEN GRANTEE AND GRANTOR, THE RISK OF LIABILITY OR
EXPENSE FOR ENVIRONMENTAL PROBLEMS, EVEN IF ARISING FROM EVENTS
BEFORE CLOSING, WILL BE THE SOLE RESPONSIBILITY OF GRANTEE, REGARDLESS
OF WHETHER THE ENVIRONMENTAL PROBLEMS WERE KNOWN OR UNKNOWN AT
CLOSING. ONCE CLOSING HAS OCCURRED, GRANTEE INDEMNIFIES, HOLDS
HARMLESS AND RELEASES GRANTOR FROM LIABILITY FOR ENVIRONMENTAL
PROBLEMS AFFECTING THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, UNDER
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND
LIABILITY ACT (CERCLA), THE RESOURCE CONSERVATION AND RECOVERY ACT
(RCRA), THE TEXAS SOLID WASTE DISPOSAL ACT OR THE TEXAS WATER CODE.
2
GRANTEE INDEMNIFIES, HOLDS HARMLESS AND RELEASES GRANTOR FROM ANY
LIABILITY FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE
PROPERTY ARISING AS THE RESULT OF GRANTOR'S OWN NEGLIGENCE OR THE
NEGLIGENCE OF GRANTOR'S REPRESENTATIVES. GRANTEE INDEMNIFIES, HOLDS
HARMLESS AND RELEASES GRANTOR FROM ANY LIABILITY FROM ANY AND ALL
PRESENT OR FUTURE CLAIMS OR DEMANDS AND ANY AND ALL DAMAGES, LOSS,
INJURY, LIABILITY CLAIMS OR COSTS, INCLUDING FINES, PENALTIES AND
JUDGMENTS AND ATTORNEYS FEES ARISING FROM OR IN ANY WAY RELATED TO
THE CONDITION OF THE PROPERTY ARISING AS A RESULT OF THEORIES OF
PRODUCTS LIABILITY AND STRICT LIABILITY, OR UNDER NEW LAWS OR CHANGES
TO EXISTING LAWS ENACTED AFTER THE EFFECTIVE DATE OF THIS DEED THAT
WOULD OTHERWISE IMPOSE ON GRANTOR IN THIS TYPE OF TRANSACTION NEW
LIABILITIES FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE
PROPERTY. PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING. IT IS
UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY
PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY
GRANTOR AND PURCHASED BY GRANTEE SUBJECT TO THE FOREGOING. GRANTEE
ACKNOWLEDGES AND ACCEPTS ALL THE TERMS AND PROVISIONS BY HIS
ACCEPTANCE HEREOF.
Grantor, for the Consideration and subject to the Reservations from Conveyance and the
Exceptions to Conveyance and Warranty, grants, sells,and conveys to Grantee the Property,together with
all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to
Grantee and Grantee's heirs, successors, and assigns forever. Grantor binds Grantor and Grantor's heirs
and successors to warrant and forever defend all and singular the Property to Grantee and Grantee's heirs,
successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any
part thereof when the claim is by, through, or under Grantor but not otherwise, except as to the
Reservations from Conveyance and the Exceptions to Conveyance and Warranty.
When the context requires, singular nouns and pronouns include the plural.
GRANTOR
CITY OF FORT WORTH Approved as to Form and Legality
Assistant City Manager Assistant City Attorney
GRANTEE:
BURNETT LOFTS FW,LLC
a Texas limited liability company
By:
Name:
Its:
3
After Recording Please send to:
4
THE STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared ,
known to me to be the person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same as the act and deed and on behalf of the City of Fort
Worth, a municipal corporation of Tarrant County, Texas, for the purposes and consideration therein
expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
,20
Notary Public
THE STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority,on this day personally appeared ,
of ,general partner for
a Texas limited partnership known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that the same is the act of
a Texas limited partnership, and that he/she executed the same as its General Partner and as the act of
such limited partnership and for the purposes and considerations expressed in the foregoing instrument.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
20_
Notary Public
5