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HomeMy WebLinkAboutContract 48021CITY fl4LWiX# N»IThACT ,Itsc 2 6-"" v,,i(sccci; L -• NOTICE OF C� ��NFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, . , e _ } YOU MAY REMOVE OR STRIKE ANY OR A I ,L O 11{` THE; FOLLOWING INFORMATION FROM ANY INSTRUMENT THA'I TRANSF KRS AN INTEREST IN REAL PROPERTY BEFORE II' ' IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER 0 YOUR DRIVER'S LICENSE NUMBER DRAINAGE EASEMENT AGREEMENT STATE, OF TEXAS COUNTY OF TAR.RANT i This DRAIN AGE FAS E M N--{;I\ T AGREEM I- ,N T (the "Agreement") is entered into by and between FW MASON HEIGHTS, L.P., a Texas limited partnership ("Grantor"), and COLUMBIA RENAISSANCE; SQUARE I, L.P., a Texas limited partnership ("Grantee"). Article I. Parties, Recitals and References The undersigned parties (individually, a "Party" and collectively, the "Parties") hereby acknowledge, stipulate and confirm the existence of the following facts and agree that the following terms shall have the meanings set forth below: 1.1 Grantor has conveyed to Grantee that certain real property consisting of approximately 7.882 acres as described on Exhibit A attached hereto and made part hereof ("Phase I Tract"), which Grantee intends to develop as Phase I of a multifamily apartment project. 1.2 Grantor owns that certain real property described on Exhibit B attached hereto and made part hereof (the "Pond Parcel"). 1.3 Subsequent to this Agreement, Grantor intends to gift to a non-profit corporation exempt from taxation under Section 501(c)(3) of the Internal Revenue Code the Pond Parcel by donation on the terms and conditions set forth in this Agreement. 1 A Grantee, in consideration of Grantor granting of the Drainage Easement (hereafter defined) has agreed to construct (i) recreational areas, landscaping and perimeter sidewalks over portions of the Pond Parcel and more fully described on Exhibit C attached hereto and made a part hereof (the "Improvements"), (ii) Detention Facilities (hereafter defined) to be located within a portion of the Pond Parcel pursuant to the City of Fort Worth ("City") design guidelines, and (iii) following completion of the construction of the Improvements and the Detention Facilities, Grantee and its successors and assigns will maintain, landscape, manage and operate the Pond Parcel, as well as the Improvements and Detention Facilities in perpetuity. 014202.000001 \4814-783 9-5952.v 10 1.5 The Pond Parcel and the Phase I Tract are sometimes hereinafter collectively referred to as the "Tracts", and singularly as a "Tract". 1.6 One of the conditions for the development of the Phase I Tract is the granting of a nonexclusive drainage easement, which includes the implementation of certain stoini water practices in accordance with that certain Starlit Water Maintenance Facility Agreement (the `SWMFA") by and between Grantor and the City dated on or about the date of this Agreement such as, but not limited to, the construction, operation and maintenance of the Detention Facilities (hereafter defined); the dedication of an access easement for construction, inspection, maintenance and repair of the Detention Facilities over, across and along defined areas of the Pond Parcel; and the assumption by Grantee of certain specified construction, maintenance and repair obligations 1.7 The Tracts are contiguous to each other along their common boundary lines and development of the Phase I Tract will increase the volume of storm water runoff from the Tracts. It is m the best interest of the Parties and the general public to regulate the flow, provide storage for stoiin water runoff and ensure safety of the Detention Facilities according to local governing agencies. 1.8 The Parties desire to establish, for their mutual benefit, and for the benefit of the current and future Parties and tenants of the Tracts or any portion thereof, and for their respective successors and assigns, certain easements, rights, and privileges over, upon, and across certain portions of the Tracts for the purposes stated herein and on the terms and conditions hereinafter set forth Article II. Defined Terms 2.1 Defined Terms. As used herein, the following terms will have the following meanings: "Abutting Parcel" means Lot 4R1, Block 1, Mason Heights Addition, an addition to the City of Fort Worth, recorded under Clerk's File No. D212201535, Plat Records, Tarrant County, Texas. "Actual Costs" is defined in Section 4 4 of this Agreement "Business Days" means a day, other than Saturday and Sunday, when banks are open for conducting all of its normal business activities, and the Federal Reserve Bank is open for business. "City" is defined in Section 1 4 of this Agreement "Construction Project" is defined in Section 4 2 of this Agreement "Completion Date" means eighteen (18) months after the date hereof. "Defaulting Owner" is defined in Article VI of this Agreement. 2 014202.000001\4814 7839-5952.v10 "Detention Facilities" means the detention and/or water quality ponds and all storm sewage pipes, meters, drains, sewers, passageways, conduits, channels and other storm drainage facilities and related appurtenances (each and all of which shall be underground, except for drain inlets at the surface and any other improvements located on the surface that are set forth on the plans and specifications for the Detention Facilities) over and across portions of the Pond Parcel. "Drainage Easement" is defined in Section 3.2 of this Agreement "eminent domain taking" is defined in Article V of this Agreement. "Force Majeure" means acts of God, strikes, lockouts or other industrial disturbances, acts of public enemies orders of any kind of the government of the United States, the State of Texas, Tarrant County, Texas, or any other civil or military authority, insurrections, riots, epidemics, landslides, earthquakes, lightning, fires, hurricanes, storms, floods, washouts, other natural disasters, a party not receiving a governmental permit, license approval or inspection in time to meet a contractual time period imposed hereunder provided that such party, in good faith, was diligent in the application or request for and prosecution of the process to obtain that permit license, approval or inspection, restraint of government and people, civil disturbances, explosions, acts or omissions of either Party to this Agreement or other causes not reasonably within the control of the Party claiming such inability (except financial inability to perform unless such event, act or cause results primarily from the occurrence of a Force Majeure event described above). "Grantee" is defined in the preamble to this Agreement. "Grantee Parties" is defined in Section 4 7 of this Agreement "Grantor" is defined in the preamble to this Agreement. "Grantor Indemnified Parties" is defined in Section 4 8 of this Agreement "Grantor Parcel" means Lot 3, Block 1, Mason Heights Addition, an addition to the City of Fort Worth, recorded under Clerk's File No. D21220153 5, Plat Records, Tarrant County, Texas. "Grantee Indemnified Parties" is defined in Section 4 9 of this Agreement "Hazardous Materials" is defined in Section 3.5 of this Agreement. "Improvements" is defined in Section 1 4 of this Agreement "Indemnified Parties" is defined in Section 4 8 of this Agreement "Investor Limited Partner" is defined in Article VI of this Agreement "Legal Requirements" means any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, certificates or ordinances of the City in any way applicable to the Detention Facilities and the Improvements, including those matters affecting the use, operation, maintenance, repair, construction or reconstruction thereof. 3 014202.000001\4814-7839-5952.v10 "Lenders" are defmed in Article VI of this Agreement "Non -Defaulting Owner" is defined in Section 6 1 of this Agreement "Party or Parties" is defined in Article I of this Agreement. "Phase I Tract" is defined in Section 1 2 of this Agreement. "Pond Parcel" is defined in Section 1 4 of this Agreement "SWMFA" is defmed in Section 1 6 of this Agreement. "Tract or Tracts" is defined in Section 1 5 of this Agreement Article III. Drainage Easement and Donation of Pond Tract A. Drainage Easement 3.1 Grantor and Grantee hereby confirm the truth and accuracy of the Recitals. 3.2 Expressly subject to the teams, provisions, conditions, covenants, and agreements of this Agreement, Grantor grants to Grantee a perpetual nonexclusive easement (the "Drainage Easement") over, across and along portions of the Pond Parcel for the construction, inspection, operation, maintenance, replacement, upgrade and repair of the Detention Facilities to serve the drainage outfall for the Phase I Tract and the Grantee may enter upon the Pond Parcel to engage in all activities as may be necessary, requisite, convenient, or appropriate in connection therewith, together with the perpetual easement and right to discharge storm water run-off into the Detention Facilities to be located on the Pond Parcel, together with the right to (i) clear and remove vegetation and debris from within the Pond Parcel, (ii) excavate, fill and grade the Pond Parcel, and (iii) during construction, bring upon the Pond Parcel and temporarily store and operate thereon all machinery and equipment as may be necessary or appropriate to effectuate the purpose for which this easement is granted. Grantee shall not be required to replace any trees shrubbery, or other vegetation landscaping and any appurtenances that are damaged on the Pond Parcel The Drainage Easement is made expressly subject to all exceptions, reservations, easements, restrictions, covenants, conditions, and any other matters of record affecting the Drainage basement, to the extent that the same are valid and subsisting. 3.3 Grantee shall construct, maintain and repair, at its sole cost and expense, the Detention Facilities The Detention Facilities shall be designed and constructed in accordance with sound engineering principles, all applicable laws, including, but not limited to, the SWMFA and any governmental or quasi -governmental authority having jurisdiction over the Detention Facilities. The Detention Facilities shall be completed no later than the Completion Date subject to Force Majeure. Nothing herein is intended, nor shall it be deemed or construed as, to make Grantor in any way responsible for the construction of or costs associated in designing or 4 014202.000001 \4814-7839-5952.v10 constructing or maintaining or repairing the Detention Facilities. Grantoi and Grantee disclaim any sharing of liabilities, losses, costs or expenses in connection with the design and construction of the Detention Facilities. The Grantee shall be solely responsible for the design, construction, upgrading and expansion of the Detention Facilities. However, the Grantee must submit the plans and specifications therefor any such construction, upgrading or expansion to the Grantor for the Grantor's approval, which approval shall not be unreasonably withheld, conditioned or delayed. If the Grantor fails to approve or disapprove said plans and specifications within a thirty (30) day period following the date on which the plans or, if previously disapproved, a revised set of plans are received by the Grantor, such plans and specifications shall be deemed to have been approved as though written approval had been given by Grantor. Grantee shall complete the design and construction of the Detention Facilities and site on or before the Completion Date. 3.4 1'he Parties hereto recognize, acknowledge and agree that storm water drainage, on -site detention and other drainage matters as are contemplated hereby are subject to the SWMFA, governmental control and regulation and may have to be amended or modified from time to time to comply with such governmental regulations; therefore, the Parties hereto acknowledge and agree that the location of the Detention Facilities may subsequently be required to be relocated and/or expanded to comply with any such governmental regulations; provided, however, (a) the Parties shall each provide the other Parties prior written notice and a detailed description of any such required relocation and/or expansion of the Detention Facilities; (b) any such relocation and/or expansion of the Detention Facilities (to the extent such relocation or expansion is related to Grantee's development or use of the Phase I Tract) shall be performed by Grantee at the Grantee's sole cost and expense, including payment of all surveying and engineering costs, and permit fees associated with such relocation and/or expansion; (c) all work perfotined by the Grantee to relocate and/or expand the Detention Facilities shall be m compliance with all applicable governmental rules ordinances, regulations and permits, as well as sound engineering practices; (d) prior to any such relocation and/or expansion of the Detention Facilities, Grantee shall construct and install all required connections to the Tracts, such that no undue interruption of or any undue interference with any Party's use of the Detention Facilities shall occur (e) Grantee shall submit to Grantor the plans and specifications therefor for its approval, which approval shall not be unreasonably withheld, conditioned or delayed; however, if Grantor fails so to approve or disapprove said plans and specifications within said thirty (30) day period following the date on which the plans or, if previously disapproved, a revised set of plans are received by the Grantor and the City the plans and specifications shall be deemed to have been approved as though written approval had been given by Grantor; and (f) this Agreement shall be modified to include a revised legal description of the Pond Parcel reflecting the new location of any such relocated and/or expanded Detention Facilities, as evidenced by an amendment to this Agreement signed by all of the Parties hereto and approved by each of the Lenders and the Investor Limited Partner. 3.5 Grantee, at its sole cost and expense, agrees for itself and its successors and assigns, that it will regularly and routinely inspect, clean, repair and maintain the Detention Facilities including the improvements now or hereafter constructed thereon, and otherwise keep the same in good repair No trees or shrubs that will impair the structural integrity of the Detention Facilities shall be planted or allowed to grow in the Detention Facilities. In connection therewith, the Parties agree that Grantee is hereby authorized to do the following: 5 014202.000001 \4814-7839-5952.v l 0 (i) Solicit bids and negotiate ten is and prices for all repairs to the Detention Facilities; (ii) Negotiate the form of contracts covering the repair of the Detention Facilities; (iii) Coordinate with Grantor in dealings with governmental authorities and coordinate the obtaining of all approvals, if applicable, for such repairs; (iv) Provide general supervision and inspection of the work of all contractors to ensure compliance with contracts; and (v) Perform other nonnal functions in connection with supervision of the repairs to the Detention Facilities. In the event that Grantee fails to so inspect, maintain, repair and clean the Detention Facilities, Grantor shall have the right, but not the obligation, to enter the Pond Parcel following thirty (30) days prior written notice (which 30-day notice and opportunity to cure shall be extended by an additional 30 days if the maintenance is not reasonably performable within this 30-day period and Grantee initiates, with due diligence, efforts to perform such maintenance within the initial 30-day period), to perform any and all required maintenance and repair, and demand and obtain reimbursement from Grantee within fifteen (15) Business Days of Grantee's receipt of a written demand for reimbursement together with evidence of such expenditures and to inure to the benefit of and be binding upon the signatories hereto and their respective successors and assigns who become Parties hereunder. At all times the Pond Parcel will be used, operated and enjoyed by the Parties in compliance with the SWMFA, all applicable laws of any governmental or quasi -governmental agency or authority or insurance underwriter having jurisdiction over the Pond Parcel or any portion thereof. Except as otherwise required by a governmental authority, each of the Parties expressly agree not to maintain, place, install or erect any gate, fence, wall, curb or other barrier in, on, along, under, across or within the Pond Parcel or any portion thereof. The Parties expressly agree not to cause or authorize the use, transport, storage, maintenance, generation, manufacture handling disposal, release or discharge of any solid waste or petroleum products, hazardous substances or environmentally hazardous material (collectively referred to herein as "Hazardous Materials") on, in or under the Pond Parcel. Notwithstanding the foregoing, if any maintenance or repair to any portion of the Detention Facilities is required as a result of (a) any construction activities on any of the Tracts or through the actions of any single Tract owner, or (b) any discharge into the Detention Facilities of stoini water runoff, sewage effluent, silt or other foreign materials, which does not comply with the notinal operating standards for such systems, the maintenance and/or repair obligation created thereby shall be the sole obligation of the owner of the Tract which caused the need for such maintenance or repair and/or generated the improper discharge into the Detention Facilities and such owner shall bear all cost and expense of such maintenance and repair, without any reimbursement from the other Parties hereto. 6 014202.000001\4814-7839-5952.v10 Should any refuse from the Detention Facilities be suspected or identified as Hazardous Materials, the Parties shall take all necessary and proper steps to characterize the Hazardous Material and properly dispose of it in accordance with applicable State and/or Federal Regulations, including, but not limited to, the following Texas Health & Safety Code, the Texas Water Code, Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992k, and Federal Solid Waste Regulations 40 CFR Ch I, Occupational Safety and Health Act, as each of such statutes and codes has been amended to date and may be amended from time to time Hach of the Parties, at its sole cost and expense, shall be responsible or liable foi identifying, characterizing, cleaning up, or disposing of such Hazardous Material that is generated by the stotur water runoff from its respective Tract other than de minimus amounts that do not violate applicable environmental laws. Notwithstanding the previous sentence, should any refuse cleaned up and disposed of be determined to be Hazardous Materials, the Party responsible for such clean up, but not the other Party to this Agreement, shall be responsible and liable as the Party, generator, and/or transporter of said Hazardous Materials. 3.6 GRANTOR OR ANY OF ITS TENANTS, EMPLOYEES, INVITEES, AND/OR CONTRACTORS, HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND GRANTEE FROM ANY LOSS, LIABILITY, DAMAGE COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) CLAIMED, ARISING OUT OF OR RELATED OR PROVEN TO RESULT FROM SIGNIFICANT STORM WATER RUNOFF FROM THE GRANTOR PARCEL OR THE ABUTTING PARCEL IN EXCESS OF AMOUNTS GENERALLY OCCURRING ON, ONTO, OVER OR ACROSS THE PHASE I TRACT (EXCLUDING RAINFALL INTENSITIES), EXCEPTING ONLY TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GRANTEE OR ANY OF ITS TENANTS, EMPLOYEES, INVITEES AND CONTRACTORS, PROVIDED, HOWEVER, THIS SECTION 3.6 SHALL NOT APPLY TO THE EXTENT ALL DRAINAGE, DETENTION AND WATER QUALITY OF STORM WATER RUNOFF FROM THE GRANTOR PARCEL IS HANDLED ENTIRELY ON THE GRANTOR PARCEL OR THE ABUTTING PARCEL AND NOT THE POND PARCEL. 3.7 GRANTEE OR ANY OF ITS TENANTS, EMPLOYEES, INVITEES AND/OR CONTRACTORS, HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND GRANTOR FROM ANY LOSS, LIABILITY, DAMAGE, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) CLAIMED, ARISING OUT OF OR RELATED OR PROVEN TO RESULT FROM (I) SIGNIFICANT STORM WATER RUNOFF FROM THE PHASE I TRACT IN EXCESS OF AMOUNTS GENERALLY OCCURRING ON, ONTO, OVER OR ACROSS THE POND PARCEL (EXCLUDING RAINFALL INTENSITIES), AND (II) OPERATION, INSPECTION, CLEANING (INCLUDING ANALYZING AND DISPOSING OF ANY HAZARDOUS MATERIALS), MAINTENANCE AND REPAIR OF THE DRAINAGE FACILITIES, EXCEPTING ONLY TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GRANTOR OR ANY OF ITS TENANTS, EMPLOYEES, INVITEES AND CONTRACTORS; PROVIDED, HOWEVER, THIS SECTION 3.7 SHALL NOT APPLY TO THE EXTENT ALL DRAINAGE, DETENTION AND WATER QUALIFY OF STORM WATER RUNOFF FROM THE PHASE I TRACT IS HANDLED ENTIRELY ON THE PHASE I TRACT AND NOT THE POND PARCEL. 7 014202.000001\4814-7839-5952.v10 3.8 Grantor or the owner of the Abutting Parcel conveys fee simple title to the Grantor Parcel or the Abutting Parcel, as the case may be, to any third -party, then with respect to the Grantor Parcel or the Abutting Parcel, as the case may be, conveyed to any third -party, Grantor shall be released from all indemnity and/or other obligations set forth in this Agreement with respect to the Grantor Parcel and/or the Abutting Parcel conveyed to any such third -party, effective as of the respective date said conveyance is recorded in the Official Property Records of Tarrant County Texas; provided, however, each of the Parties to this Agreement agrees that (i) a third - party taking title to the Grantor Parcel or the Abutting Parcel shall be subject to and bound by the terms and conditions of this Section 3.5 and (ii) the indemnity provisions contained in this Agreement shall in all events run with the land and apply to the owners of the Grantor Parcel and the Abutting Parcel whether or not it shall be so expressed in such deed or ground lease, is deemed to covenant and agree to the indemnity provisions set forth in this Section 3 8 hereof. 3.9 Grantor and its successors shall have the right to the full use and enjoyment of the Pond Parcel for all purposes, so long as the same (i) does not unreasonably interfere with the Drainage basement herein granted, and (ii) the plans for all improvements to be placed within the Pond Parcel shall be subject to the approval of the City, Grantee, the Lenders and the Investor Limited Partner, such approval not to be unreasonably withheld, conditioned or delayed. 3.10 The Drainage Easement shall terminate, to the extent any portion thereof is dedicated to the City for use by the public and the acceptance of such dedication for maintenance by the City, on the date that the document evidencing such dedication is recorded in the Real Property Records of Tarrant County, Texas. 3.11 Nothing contained in this Agreement shall be construed as requiring that the streets, roadways, sidewalks or walkways located within the Tracts be forever maintained as private streets, roadways, sidewalks or walkways. To the extent that any street, roadway, sidewalk or walkway, or portion thereof, located within the Tract is subsequently dedicated to the public or to a public agency, and the maintenance responsibility for such dedicated improvement is accepted on behalf of such dedicatee, this Agreement shall terminate as to such publicly dedicated and accepted street, roadway, sidewalk or walkway. Notwithstanding anything in this Agreement to the contrary, if any portion of the Pond Parcel or the Detention Facilities been dedicated to and accepted for maintenance by the City, then the City shall be solely responsible for the maintenance and repair of such dedicated portion of the Pond Parcel or the Detention Facilities. Article IV. Responsibilities Regarding Construction Of Improvements 4.1 As part of the development of the Pond Parcel, Grantee shall be responsible for the design and permitting of the Improvements. The design, nature, type, materials, specifications and extent of the Improvements shall be deterrrrined by Grantee in its sole discretion provided that, however such Improvements shall (i) comply with the City's guidelines, (ii) comply with any applicable Legal Requirements related to the safety of such improvements, and (in) consist of 8 014202.000001\4814-7839-5952.v10 improvements that provide, or are accessory to, any recreational facilities that serve the residents of the Phase I Tract, and may include the Improvements 4.2 Grantee shall construct and install the Improvements in accordance with the plans, specifications, site plan and construction documents (the "Construction Project"). Grantee shall complete construction and installation of the Improvements by no later than the Completion Date. 4.3 Grantee agrees to follow all City ordinances, and other rules and regulations regarding permits and approvals related to development activities and construction of the Construction Project, as well as those of any other governmental entity having jurisdiction In addition, in carrying out any Construction Project, Grantee shall comply with the accessibility provisions of (i) the Americans with Disabilities Act, 42 U.S.C. §12101, et seq., (ii) the Texas Architectural Barriers Act, Ch. 469, Texas Gov't. Code, (iii) Americans with Disabilities Act Accessibility Guidelines, and (iv) the Texas Accessibility Standards. 4.4 Grantee shall be responsible for all actual costs of construction and installation of any Construction Project. The term "actual costs" as used herein includes, but is not limited to, consultant fees, design costs, landscaping costs, labor costs, site restoration and re -vegetation costs, material costs engineering costs, construction costs, and any other costs actually incurred by Grantee in the design and construction of the Construction Project. Notwithstanding the foregoing and anything herein to the contrary, neither the Grantor shall not be responsible for any costs incurred by Grantee in connection with the Construction Project. 4.5 Notwithstanding anything to the contrary contained herein, provided that the Grantee complies with all Legal Requirements the following activities by Grantee shall be expressly petinitted within any and all of the Pond Parcel and the Grantee shall have the perpetual rights and easement to construct and maintain within any portion of the Pond Parcel, the following* (i) Detention Facilities, (ii) road crossings, (iii) floodplain modification, restoration or enhancement work and/or improvements, (iv) site grading, soil excavation, fill, and excavating trenches for the Detention Facilities, (v) landscaping, (vi) directional signage, and (vii) Improvements as allowed by this Agreement 4.6 Following completion of the Construction Project, Grantee shall provide ordinary and routine maintenance, repair and landscaping of the Pond Parcel and Improvements Grantee shall also be responsible for making necessary repairs or replacement of the Improvements at a minimum level consistent with other City maintained, publicly accessible parks. Grantor shall not be responsible for the ordinary and routine maintenance of the Improvements. 4.7 In connection with any special events within the Pond Parcel, Grantee shall be responsible for authorizing, scheduling and coordinating all such events within the Pond Parcel in accordance with the conditions and requirements of this subsection and with Grantor's approval. 4.8 GRANTEE SHALL INDEMNIFY, DEFEND AND HOLD GRANTOR, AND ITS HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, RECEIVERS, TRUSTEES, SUCCESSORS AND ASSIGNS (TOGETHER, THE "GRANTOR INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST, AND SHALL 9 014202.000001\4814 7839-5952.v10 REIMBURSE THE GRANTOR INDEMNIFIED PARTIES FOR, ANY AND ALL LIABILITY, COSTS, LOSSES, CLAIMS, CAUSES OF ACTION, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS), JUDGMENTS, PENALTIES, FINES, OR OBLIGATIONS OF ANY NATURE WHATSOEVER ARISING OUT OR IN ANY WAY RELATING TO: (A) THE OPERATION, MAINTENANCE, USE OR REPAIR OF THE DETENTION FACILITIES, THE IMPROVEMENTS AND THE POND PARCEL, (B) ANY BREACH BY GRANTEE OF THE TERMS AND PROVISIONS OF THIS AGREEMENT, OR (C) ANY OF THE BENEFITTED PROPERTIES INCURRING SIGNIFICANT STORM WATER RUNOFF IN EXCESS OF AMOUNTS GENERALLY OCCURRING ON, OVER AND ACROSS THE POND PARCEL PRIOR TO THE DATE HEREOF, WHICH EXCESS IS REASONABLY SHOWN TO BE CAUSED BY THE IMPROVEMENTS CONSTRUCTED ON PHASE I TRACT AND IS NOT IN COMPLIANCE WITH APPROVED CITY PLANS FOR THE PHASE I TRACT. GRANTEE SHALL BE RELIEVED OF ANY LIABILITY FOR ANY CLAIMS, INJURIES OR LOSSES RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF GRANTOR, ITS EMPLOYEES OR AGENTS, AND FOR THE NEGLIGENT ACTS OR OMISSIONS ARISING OUT OF THE CONSTRUCTION OF THE CONSTRUCTION PROJECT. 4.9 GRANTOR SHALL INDEMNIFY, DEFEND AND HOLD GRANTEE, AND ITS HEIRS, EXECUTORS, ADMINISTRATORS, REPRESENTATIVES, RECEIVERS, TRUSTEES, SUCCESSORS AND ASSIGNS (TOGETHER, THE "GRANTEE INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST, AND SHALL REIMBURSE THE GRANTEE INDEMNIFIED PARTIES FOR, ANY AND ALL LIABILITY, COSTS, LOSSES, CLAIMS, CAUSES OF ACTION, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS), JUDGMENTS, PENALTIES, FINES, OR OBLIGATIONS OF ANY NATURE WHATSOEVER ARISING OUT OR IN ANY WAY RELATING TO GRANTOR'S OBLIGATIONS UNDER THE TERMS AND PROVISIONS OF THIS AGREEMENT. GRANTOR SHALL BE RELIEVED OF ANY LIABILITY FOR ANY CLAIMS, INJURIES OR LOSSES RESULTING FROM NEGLIGENT ACTS OR OMISSIONS OF GRANTEE, ITS RESPECTIVE EMPLOYEES OR AGENTS, AND FOR THE NEGLIGENT ACTS OR OMISSIONS ARISING OUT OF THE CONSTRUCTION OF THE CONSTRUCTION PROJECT. 4.10 Grantor shall give Grantee written notice of a claim asserted against a Grantor Indemnified Party. Grantee shall assume on behalf of the Grantor Indemnified Party and conduct with due diligence and in good faith the defense of all claims against the Grantor Indemnified Parties. The Grantor Indemnified Parties shall have the right (but not the obligation) to participate in the defense of any claim or litigation with attorneys of their own selection without relieving Grantee of any obligations in this Agreement In no event may Grantee admit liability on the part of an Indemnified Party without the written consent of Grantor. 4.11 Grantee shall give Grantor written notice of a claim asserted against a Grantee Indemnified Party. Grantor shall assume on behalf of the Grantee Indemnified Party and conduct with due diligence and in good faith the defense of all claims against the Grantee Indemnified Parties. The Grantee Indemnified Parties shall have the right (but not the obligation) to participate 10 014202.000001\4814 7839-5952.v10 in the defense of any claim or litigation with attorneys of their own selection without relieving Grantoi of any obligations in this Agreement In no event may Grantor admit liability on the part of a Grantee Indemnified Party without the written consent of Grantee. 4.12 Grantee shall arrange, provide and maintain insurance coverage for its activities on the Pond Parcel related to its general liability, builders risk during construction, and property and casualty insurance of the Improvements and shall ensure that Grantor is named as additional insured for all such policies. Grantor shall provide its general liability insurance to include the Pond Parcel, and ensure that Grantee is named as additional insured. Article V. Eminent Domain In the event of an eminent domain taking of all or any portion of the Pond Parcel, any Party hereto may assert a claim against the condemning authority for damages to the property owned by such Party (even though no portion thereof was taken) by reason of the eminent domain taking of the whole or any portion of any other property, to the extent that such damages may be awarded or paid by the taking authority (in recognition of reduced access, loss of business or similar consequences). The phrase "eminent domain taking" includes a voluntary conveyance made under threat of or in anticipation of an involuntary eminent domain taking. 1'he fee owner of the property expressly subject to the eminent domain proceeding shall give notice to any other party with an interest in the Pond Parcel being included within the eminent domain proceedings, promptly after the original receipt of same. Article VI. Curing Defaults If an owner shall default with respect to any of its obligations set forth herein ("Defaulting Owner"), and shall (i) fail, within thirty (30) days after receipt of written notice of such default from a Party who is benefited hereby ("Non -Defaulting Owner") to cure such default, or to commence the curing thereof (in the case of a default which cannot be completely cured within such thirty (3 0) day period); or (ii) fail to continue such curative action diligently, until completmg such curing within a reasonable time not to exceed ninety (90) days after receipt of written notice; then the Non -Defaulting Owner shall have the right, in addition to such other rights and remedies as may be available at law or in equity, to cure such default for the account of the Defaulting Owner and such Non -Defaulting Owner shall be reimbursed by the Defaulting Owner for the reasonable costs and expenses so incurred, plus (i) interest at the maximum nonusurious rate permitted by applicable law, and (ii) reasonable collection fees, including but limited to, reasonable attorneys' fees. Each Party shall provide notice of any defaults hereunder to any unrelated third party institutional and/or governmental lender(s) who provide mortgage financing for any portion of the Phase I Tract (collectively, the ` Lenders ') Each Party shall provide notice of any defaults hereunder to the Lenders and the Lenders shall then have thirty (30) days to cure such default(s). 11 014202.000001\4814-7839-5952.v10 To the extent an equity investor in Grantee and any of its affiliates, successors and/or assigns (collectively, the "Investor Limited Partner") is then an equity investor in Grantee, each Party shall provide notice of any default hereunder to Investor Limited Partner at the address provided by said Investor Limited Partner and Investor Limited Partner shall have thirty (30) days to cure any such default prior to any Party taking any enforcement action hereunder provided, however, that Investor Limited Partner shall not have the obligation to cure such default Article VII. General and Miscellaneous 7.1 Notices. All notices, requests and communications required or permitted hereunder and the transactions contemplated hereby shall be given in writing and shall be deemed to have been duly given, made and received as to parties whose addresses are within the forty-eight (48) contiguous states of the United States when personally delivered or when delivered by overnight courier or upon the second day after deposit in the United States registered or certified mail postage prepaid, return receipt requested or delivered by facsimile transmission followed by first class registered or certified mail, postage prepaid, return receipt requested; and as to any parties whose addresses are beyond the forty-eight (48) contiguous states of the United States, upon actual receipt by mail or courier deliver service, addressed as set forth below: If to Grantor: With a copy to: If to Grantee: With a copy to: FW MASON HEIGHTS, L P 9005 Crest Ridge Ct. Fort Worth, TX 76179 Attn. Happy Baggett, General Manager DLA PIP Fi;R LLP 1717 Main Street Suite 4600 Dallas, TX 75201-4629 Attn: Craig B. Anderson COLUMBIA RENAISSANCE SQUARE I, L P c/o New Columbia Residential, LLC 1718 Peachtree Street, NW Suite 684 Atlanta, GA 30309 Attn: James S. Grauley, President COATS ROSE, P.C. 9 Greenway Plaza, Suite 1100 Houston, TX 77046 Attn: Barry J. Palmer Any party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provision of this sub -section for the giving of such notice. 12 014202.000001\4814 7839-5952.v10 b. From and after the date hereof, Grantee hereby agrees to provide Grantor written notice if the initial Lender changes; such notice to include the name, address, contact person and telephone number of said Lender. Said notice shall be given in the manner prescribed in Section 7.1(a) hereof. 7.2 Recognizing that Grantor and Grantee may find it necessary from time to time to establish to banks, mortgagees accountants or the like, the then -current status of perfotrnance hereunder, each Party agrees, upon the written request of the other, that it will, from time to time, with reasonable promptness, furnish a written statement in recordable form on the status of any matter relating to this instrument 7.3 Neither Party shall be liable for its failure to carry out its obligations hereunder, during any period when such Party is rendered unable, wholly or in part, by Force Majeure to carry out such obligations, but the obligations of the Party relying on such Force Majeure shall be suspended only during the continuance of any inability so caused and for no longer period, and such case shall, so far as possible, be remedied with all reasonable dispatch. 7.4 Except as explicitly set forth herein, the benefits, restrictions, easements, covenants, and agreements created hereby shall be binding upon and shall inure to the benefit of the Parties hereto and their respective representatives, lessees successors and assigns, and shall run with and be binding upon the Tracts. However, a Lender that forecloses upon the fee title of the Phase I Tract shall not be responsible for any duties or obligations whatsoever hereunder until the time such Lender is vested with fee title to the Phase I Tract. In the event fee simple title to such property is ever held by a single party, there shall be no merger of title between the servient and dominant estates herein created or otherwise extinguishing the Drainage Easement and restrictions herein 7.5 Except as expressly provided herein, this Agreement is not, and shall not be construed, interpreted or enforced as, a dedication of all or any portion of the Drainage N asement herein granted to the public, or as creating any rights in or for the benefit of the general public in any manner whatsoever. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Phase I Tract to the general public, or for any public use or purpose whatsoever, save and except to the extent that rights are granted herein to the City or the City police, fire and other emergency departments. 7.6 Any institutional mortgage, ground lease, or other lease now existing or hereafter granted or entered into with respect to the Tracts or any part thereof shall be subject, subordinate and inferior to the easements, rights, benefits and obligations created hereby, and the foreclosure under any such institutional mortgage shall not extinguish or impair the easements, rights, benefits and obligations created hereby. 13 014202.000001\4814 7839-5952.v10 7.7 The prevailing Party in any legal proceeding brought in relation hereto or the transactions described herein shall be entitled to recover from the non -prevailing Party court costs, reasonable attorneys' fees and all other reasonable litigation expenses 7.8 The Parties shall, promptly on request of the other Party hereto, (a) correct any defect, error or omission which may be discovered in the contents, execution, or acknowledgment hereof; (b) execute, acknowledge, and deliver such further documents and do such further acts as may be necessary, desirable, or proper to carry out more effectively the purposes hereof; and (c) provide such certificates documents, reports, information, affidavits and other instruments and do such further acts as may be necessary, desirable or proper to enable the requesting Party to comply with the requirements or requests of any governmental authority having jurisdiction over the Tracts, or any part thereof. 7.9 If any tern', provision, condition or covenant contained herein shall, to any extent, be held to be invalid or unenforceable by a court of competent jurisdiction, the remainder hereof (or the applicable of such term, provision or condition to persons or circumstances other than other than those in respect of which it is held invalid or unenforceable) shall not be affected thereby, and each and every other tem', provision and condition of this Agreement shall, nevertheless, remain in full force and effect. 7.10 None of the teiius or provisions hereof shall be deemed to create a partnership between the Parties in their respective businesses or otherwise, nor shall it cause the m to be considered joint venturers or members of any joint enterprise Each Party shall be considered a separate owner, and neither Party shall have the right to act as an agent for the other Party, unless expressly authorized to do so herein or by separate written instrument signed by the Party to be charged. 7.11 The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way affect, limit, amplify or modify the terms and provisions hereof. 7.12 This instrument contains the entire understanding between the Parties hereto and with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as herem contained. The express terns hereof control and supersede any course of perfoimance and/or usage of the trade inconsistent with any of the tennis hereof. All exhibits referred to herein are attached hereto and incorporated herein by reference This instrument may not be amended, modified or terminated except by written agreement signed by each of the Parties, approved in writing by the City (if such approval is required to comply with any Legal Requirements), the Lenders and the Investor Limited Partner, to the extent Investor Limited Partner is then an equity investor in Grantee, and recorded in the Real Property Records of Tarrant County, Texas. 7.13 The parties agree that any cure of any Grantee default that is made or tendered by the Investor Limited Partner shall be deemed to be a cure by Grantee and shall be accepted or rejected on the same basis as if made or tendered by Grantee. 14 014202.000001\4814-7839-5952.v10 7.14 The laws of the State of Texas govern this Agreement 7.15 Except as otherwise provided herein, time is of the essence with respect to each and every covenant, agreement and obligation of the Parties set forth herein 7.16 Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to mclude any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires. 7.17 The Parties agree that any cure of any default made or tendered by the Investor Limited Partner on behalf of Grantee shall be deemed to be a cure by Grantee and shall be accepted or rejected on the same basis as if made or tendered by Grantee. 7.18 This instrument may be executed in two or more counterparts, and it shall not be necessary that any one of the counterparts be executed by both of the Parties Each fully or partially executed counterpart shall be deemed an original, but all such counterparts taken together shall constitute but one and the same instrument. 7.19 The provisions of this Agreement shall constitute covenants running with and binding the property hereby affected, and all such provisions shall inure to the benefit of and be binding upon the undersigned parties and their respective successors and assigns who become owner of the Phase I Tract. 7.20 The City of Fort Worth, the holder of liens encumbering the Phase I Tract, joins in the execution of this Agreement to acknowledge its agreement and consent hereto, and does hereby subordinate said liens to the rights granted herein, and agrees that all rights granted herein shall be and remain prior and superior to any rights of such lienholder, and shall remain in full force and effect, notwithstanding a foreclosure of said liens (or conveyance in lieu thereof). 7.21 Fort Worth Housing Finance Corporation, the holder of liens encumbering the Phase I Tract, Joins in the execution of this Agreement to acknowledge its agreement and consent hereto, and does hereby subordinate said liens to the rights granted herein, and agrees that all rights granted herein shall be and remain prior and superior to any rights of such lienholder, and shall remain in full force and effect, notwithstanding a foreclosure of said liens (or conveyance in lieu thereof). 7.22 Habendum Clause. TO HAVE AND TO HOLD the Drainage Easement granted by Grantor in this Agreement, together with all and singular the rights and appurtenances thereto in anywise belonging, including all necessary rights to ingress egress, and regress, unto Grantee, its successors and assigns, forever. Grantor does hereby bind itself and its successors and assigns, to warrant and forever defend all and singular the Drainage Easement and rights -of -way and other rights conveyed herein unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or 15 014202.000001\4814-7839-5952.v10 to claim the same or any part thereof, by, through or under Grantor, but not otherwise, and subject to the matters expressly excepted herein. [SGNATURE AND NOTARY PAGES FOLLOW] 16 014202.000001\4814 7839-5952.v10 1-a1XECUThD as of the dates of the acknowledgments set forth below to be but effective, however, as of the day of July, 2016 which latter date shall be deemed the date hereof for all purposes STATE OF TEXAS COUNTY OF TARRANT "GRANTOR": FW MASON HEIGHTS, L P , a Texas limited partnership By: FW Mason Heights Genpar, L L C , a Texas limited liability company, its general partner By: Happy Baggett, Manager This instrument was acknowledged before me on the day of July, 2016 by Happy Baggett, Manager of FW MASON HEIGHTS GENPAR, L L C , a Texas limited liability company, general partner of FW Mason Heights, L P , a Texas limited partnership, on behalf of said limited partnership. Notary Public - State of Texas 17 014202.000001\4814 7839-5952.v10 STATE OF GEORGIA COUNTY OF "GRANTEE": COLUMBIA RENAISSANCE SQUARE I, L P , a Texas limited partnership By: Columbia Renaissance Square Partners, LLC, a Georgia limited liability company, its general partner By: New Columbia Residential, LLC, a Georgia limited liability company, its managing member By: Name: Title: This instrument was acknowledged before me on the day of July, 2016 by of New Columbia Residential, LLC, a Georgia limited liability company, managing member of Columbia Renaissance Square Partners, LLC a Georgia limited liability company, general partner of COLUMBIA RENAISSANCI- SQUARE I, L P , a Texas limited partnership, on behalf of said limited partnership. Notary Public 18 014202.000001 \4814-7 83 9-5 952. v 10 CITY OF FORT WORTH { T _ i •Y _i li r �rrr: ? ' B7atsfrfrfrAiletA adi y: City Sec 17et Fernando Costa, Assistant City Manager APPROVED AS TO FORM AND LEGALITY: /1 7 tic VOL- Vickie S . Ganske, S e ' or Assistant City Attorney STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me this2 day of July, 2016, by Fernando Costa, Assistant City Manager of the City of Fort Worth, a Texas municipal corporation, on behalf of said Texas municipal corporation. ,O� tY P��`i TRIKINYA L JOHNSON • :sNotary Public, State of Texas °�1P�+°; Comm. Expires 04-17-2018 Notary ID 1238832-0 Notary Public — tat f Texas 014202.000001 \4814-783 9-5952.v 10 STATE OF T 1- XA S i COUNTY OF TARRnNT FORT WORTH HOUSING FINANCE; CORPORATION By: / 62 ame: Fernando Costa Title: General Manager This instrument was acknowledged before me this t day of July, 2016, by Fernando Costa, General Manager of FORT WORTH HOUSING FINANCE CORPORATION, and Texas housing finance corporation, on behalf of said Texas housing finance corporation. on I I WI,/ •.„P,Y. PV6 .:0.*.c.1.;; .tioliteginS ._ TRIKINYA L JOHNSON Notary Public, State of Texas Comm. Expires 04-17-2018 Notary ID 12388324,0 Vn . Notary F��.tblic A .1111,. e of Texas c-� 014202.000001 \4814-783 9-5952.v 10 20 EXHIBIT "A" Legal Description of Phase I Tract Being a tract of land situated in the J. Justice Survey, Abstract No. 859, City of Fort Worth, Tarrant County, Texas and being a portion of Lot 2, Block 1 of the Mason Heights Addition, an addition to the City of Fort Worth as recorded in Document No. D212201535 of the Plat Records, Tarrant County, Texas (P.R.T.C.T.) and being more particularly described as follows; COMMENCING at a 5/8 inch iron rod found with plastic cap stamped "WAI" at the common south corner of Lot 1R1 and 1R2, Block 1 of the Mason Heights Addition, an addition to the City of Fort Worth as recorded in Document No D215133856 (P.R.T.C.T.), said point being on the north right-of-way line of Moresby Street (a 60' right-of-way) as recorded in Document No. D212201535 (P.R.T.C.T.); THENCE, along the north line of said Moresby Street, North 89 degrees 48 minutes 25 seconds East a distance of 483.60 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars" at the POINT OF BEGINNING; THENCE, departing the north line of said Moresby Street, North 00 degrees 32 minutes 20 seconds West a distance of 554.58 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars", THENCE, North 89 degrees 27 minutes 40 seconds Fast a distance of 418.79 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars" on the common line of Lot 2 and Lot 3 of said Mason Heights Addition (D212201535); THENCE, along the common line of said Lot 2 and Lot 3, South 09 degrees 50 minutes 14 seconds Nast a distance of 1,010.52 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars' at the common south corner of said Lot 2 and Lot 3, said point being on the north right-of-way line of Grayson Street (a 60' right-of-way) as recorded in Document No. D212201535 (P.R.T.0 T.); THENCE, along the north right-of-way line of said Grayson Street, South 89 degrees 27 minutes 40 seconds West a distance of 172.26 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars' , THENCE, departing the north right-of-way line of said Grayson Street, North 09 degrees 50 minutes 15 seconds West a distance of 416.07 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars"; THENCE, South 89 degrees 48 minutes 25 seconds West a distance of 312 59 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars", said point being on the east right-of-way line of W.G. Daniels Drive (a 60' right-of-way) as recorded in Document No. D212201535 (P.R.T.0 T.); THENCE, along the east right-of-way line of said W.G. Daniels Drive, North 00 degrees 32 minutes 20 seconds West a distance of 30.00 feet to a 5/8 inch iron rod set with plastic cap stamped "Huitt-Zollars", said point being on the north right-of-way line of the aforementioned Moresby Street; THENCE, along the north right-of-way line of said Moresby Street, South 89 degrees 48 minutes 25 seconds West a distance of 30.00 feet to the POINT OF BEGINNING and containing 343,329 square feet or 7.882 acres of land, more or less. 21 014202.000001\4814-7839-5952.v10 H,XHIBIT "B" Pond Parcel Exhibit B 014202.000001\4814 7839-5952.v10 EXHIBIT "C" Improvements 23 014202.000001\4814 7839-5952.v10