HomeMy WebLinkAboutContract 52447 4
RECEIVED CITY SECRETARY
M 21 2019 CONTRACT No. 5 R Lf Lf
CITYWORTH
CITY SECRETARY EASEMENT AGREEMENT
This Easement Agreement (the "Agreement") is entered into as of the day of
QV
2019, by and between CITY OF FORT WORTH, a Texas home rule
municL al 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
axed-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 Ci ma nernrn
®EF IUAL RECORD
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FT. WORTH,TX
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 Obligation. 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
-K
OF FORT�L By. 'G`'``..
.,,%.
Attest: %%.0 Jesus Chapa, Assistant City Manager
Up
Mary J. Kayser, City Secretar , ..
Ap roved as t form:
Assistant City Attorney
OWNER:
BURNETT LOFTS,LLC
a Texas limited liability company
By: Burnett Lofts FW Manager, LLC,
a Texas limited -ability col.
its manager
By:
Name: . Rhys Hei sch
Its: Vice Presi ent
[ACKNOWLEDGEMENTS FOLLOW ON NEXT PAGE]
OFFK SAL RECORD
CITY SECRETARY
Signature Page FT. WORTK U
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ACKNOWLEDGMENTS
STATE OF TEXAS
COUNTY OF DALLAS
N 1fl
On the day of in the year 2019 before me, the undersigned, a Notary
Public in and for said State, personally ppeared 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-4 bility company.
Y
'� CARMEN M. RIGSBY
PG6
n�Notary Public, State of Texas Notary Public
Comm. Expires 06-17-2022
Notary ID 979980
STATE OF TEXAS
COUNTY OF a&&e r
On the day of in the year 2019 before .rile, the undersigned, a Notary
Public in and for Usaid State, personally appeared je—ia_-c'd the
s of the City of Fort Worth.
P "s MARIA S.SANCHEZ
My Notary ID#2256490 Not Public
OF
E; Expires December 19,2021
I •T;° �.
OFFICIAL RECORD
Signature Page CITY SECRETARY
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EXHIBIT A
PROPERTY DESCRIPTION
OF THE LAND
Being Lot 1 R and 3R, Block 2, Lot 1 R, Block 3 and Lot 1 R, 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
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EXHIBIT B
DESCRIPTION OF PARKING EASEMENT AREA
[SEE ATTACHED]
Exhibit B
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