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HomeMy WebLinkAboutContract 48022V. fr.1- Jj, 2016 °i j Y ci EQr T WO N OTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, t>Lv f f1 i'f YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER STATE OF TEXAS DRAINAGE EASEMENT AGREEMENT i COUNTY OF TARRANT � This DRAINAGE EASEMENT AGREEMENT (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 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 has executed with the City of Fort Worth ("City") a Storm Water Maintenance Facility Agreement ("SW1VLFA") dated October 3, 2012 filed on October 5, 2012 under Clerk's File No. D212247478, Real Property Records of Tarrant County, Texas ("SWMFA"), whereby Grantor, its successors and assigns, agreed, among other things, to construct and maintain on -site storm water management facilities (the "Facility"), the location and dimensions of which is shown and more particularly described by metes and bounds in the attached Exhibit "B" (therein and herein referred to as the "Facility Property"). 1.3 The Phase I Tract and the Facility Property are sometimes hereinafter collectively referred to as the "Tracts", and singularly as a "Tract". 1.4 Grantor desires to grant to Grantee, its successors and assigns, a nonexclusive drainage easement over, across and along defined areas of the Tracts and the right to discharge storm water run-off into the Facility located on the Facility Property. 1.5 The development of the Phase I Tract will increase the volume of storm water run- off from the Tracts. It is in the best interest of the Parties and the general public to regulate the flow, provide storage for storm water run-off and ensure safety of the Facility according to local governing agencies. 014202.000001 \4822-1142-2768.v9 1.7 Grantee desires to construct, expand and modify the Facility (the "Work") as the means for providing adequate drainage and storm water run-off control for the Phase I Tract. Grantee shall be charged with the duty of constructing, expanding and modifying the Facility and with the duties of operating, maintaining and repairing the Facility Article II. Defined Terms 2.1 Defined Tunis. As used herein, the following terms will have the following meanings: "Approving Party" is defined in Section 3 4 of this Agreement. "Business Days" means a day, other than Saturday and Sunday, when banks are open for conducting all of its noimal business activities, and the Federal Reserve Bank is open for business. "City" is defined in Section 1 2 of this Agreement. "Completion Date" means eighteen (18) months following the issuance of the peitnit(s) by the Governmental Authority having jurisdiction over the Facility. "Defaulting Owner" is defined in Article V of this Agreement. "Drainage Facilities" is defined in Section 3 1 of this Agreement. "Easement Strip" is defined in Section 3 1 of this Agreement. "eminent domain taking" is defined in Article IV of this Agreement "Facility" is defined in Section 1 2 of this Agreement "Facility Property" is defined in Section 1.2 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 petniit, 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). "Governmental Authority" means any and all municipality, agency, or other political subdivision and any entity exercising legislative, judicial, regulatory, or administrative functions 014202.000001\4822-1142-2768.v9 of or pertaining to government, including, without limitation, any state agencies and persons responsible in whole or in part for environmental matters in the states in which the Parties are located or otherwise conducting its business activities and the United States Environmental Protection Agency. "Grantee" is defined in the preamble to this Agreement "Grantor" is defined in the preamble to this Agreement "Hazardous Materials" is defined in Section 3 5 of this Agreement "Investor Limited Partner" is defined in Article V 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 Facility, including those matters affecting the use, operation, maintenance, repair, construction or reconstruction thereof. "Lenders" are defined in Article V of this Agreement "Maintenance hxpenses" means all costs of operating, maintaining, repairing, and upgrading the Facility, including the cost of utility fees foi electricity and water, and the payment of ad valorem taxes associated with the Facility, but shall not include any management or administration expenses in carrying out the maintenance obligations "Non -Defaulting Owner" is defined in Article V of this Agreement "Party or Parties" is defined in Article I of this Agreement "Permanent Drainage Facilities" is defined in Section 3 1 of this Agreement "Phase I Tract" is defined in Section 1.2 of this Agreement. "Pro Rata Share' means the dollar amount due at the time of calculation (as the case may be) as allocated to each Tract based upon the Net Land Area of each Tract (or portion thereof) in relation to the Total Net Land Area of the Tracts. The 'Net Land Area' of each Tract means the gross acreage of such Tract minus the area of the Detention Facilities The "Total Net Land Area" of all Tracts means the total of the Net Land Area of all Tracts. "Requesting Party" is defined in Section 3 4 of this Agreement. "SWMFA" is defined in Section 1 2 of this Agreement "Tract or Tracts" is defined in Section 1.7 of this Agreement "Temporary Drainage Facilities" is defined in Section 3 1 of this Agreement. 014202.000001\4822-1142-2768.v9 "Temporary Easement Area" is defined in Section 3 2 of this Agreement. Article III. Easements Grantor has granted, sold and conveyed, and by these presents does grant, sell and convey unto Grantee, a perpetual non-exclusive easement over, across and along the 20' private drainage easement shown on the Final Plat Mason Heights Addition, an addition to the City of Fort Worth, filed under Document No. D212201535, Official Public Records of Tarrant County, Texas (the `Easement Strip") for the construction, operation, maintenance, expansion, replacement, upgrade and repair of the storm water drainage way to consist initially of a surface drainage area or ditch (the "Temporary Drainage Facilities") and ultimately, an enclosed storm sewer pipe (the Permanent Drainage Facilities") to serve the stoinr water run-off foi the Phase I Tract into the Facility (hereinafter collectively referred to as the "Drainage Facilities '). The Grantee may enter upon the Facility Property 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 stouni water run-off into the Facility located on the Facility Property. Grantee's rights shall include, without limitation, the right to (i) clear and remove trees, growth, shrubbery, and brush from within the Easement Strip, (ii) excavate and dispose of soil from the Easement Strip, and (iii) during construction bring upon Facility Property 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. At the Grantor's written request, the Grantee shall provide a construction plan to convert the Temporary Drainage Facilities into the Permanent Drainage Facilities Grantor and Grantee shall review and approve such site plan and any modifications (as outlined below), thereafter the Grantee shall complete the conversion of the Temporary Drainage Facilities into Permanent Drainage Facilities. The Parties agree that the location of the Easement Strip is approximate with regard to the Temporary Drainage Facilities, and that after final construction and installation of the Permanent Drainage Facilities, the Easement Strip shall be redefined as the area extending five feet on all sides of the actual installed location of the Permanent Drainage Facilities. The Parties agiee this Agreement shall be modified to include a revised legal description of the Easement Strip reflecting the actual location of the Easement Strip, 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. The Grantee shall be solely responsible for the design construction, upgrading and expansion of the Drainage Facilities and the Facility, including the conversion of the Drainage Facilities from Temporary Drainage Facilities into Permanent Drainage 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. The 014202.000001\4822-1142-2768.v9 conversion of the Temporary Drainage Facilities into the Permanent Drainage Facilities shall be completed within six (6) months following the date the written approval for such construction is received by the Grantee from the Grantor. The Drainage Easement is made expressly subject to all exceptions, reservations, easements, restrictions, covenants, conditions, and any other matters of record affecting said easement, to the extent that the same are valid and subsisting. 3.2. Grantor grants to Grantee the temporary right to use an additional strip of land as a temporary construction easement (the "Temporary Easement Area '). Such additional strip shall be a 25 foot wide strip of land lying adjacent to a boundary line and parallel to the center line of the 1-i asement Strip, provided, however, that the boundary lines of the Easement Strip to which the Temporary Fasement Area shall be adjacent shall be selected by Grantee based upon avoiding damage to (i) landscaping (to the extent practicable) and (ii) pre-existing improvements located within the Temporary Easement Area. The easement rights granted herein shall include the right of ingress and egress of vehicles transporting construction materials and persons employed in connection with the construction work. Upon completion of such construction and installation, Grantee shall restore the surface of the Temporary Easement Area as nearly as possible (without interfering with the purpose for which the easement is granted) to the condition in which the same was found before any such work was undertaken, including but not limited to, leveling all ruts, mounds, ridges and depressions and removing any berms caused by its operations on the Temporary Easement Area to the extent reasonably practicable, provided, however, that Grantee shall not be required to replace the landscaping and appurtenances on the Temporary Easement Area The Temporary Easement Area shall terminate for all purposes upon the first to occur of (i) completion of all structures and other improvements currently to be constructed on the Phase I Tract or within the Facility Property as part of the development of the Phase I Tract, or (ii) the Completion Date. Upon the termination of the Temporary Easement Aiea, Grantee will upon Grantor's request, execute documents necessary to reflect the teiniination of the Temporary Easement Area in the Real Property Records of Tarrant County, Texas. 3.3 Except as provided in this Agreement, Grantee shall construct, expand or modify, at its sole cost and expense, the Facility to accommodate the storm water run-off from the Phase I Tract. 1'he Facility shall be designed and constructed in accordance with sound engineering principles, all Legal Requirements and any Governmental Authority having jurisdiction over the Facility. The work 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 constructing or expansion of the Facility. Grantor and Grantee disclaim any sharing of liabilities, losses, costs or expenses in connection with the design, construction and expansion of the Facility 3.4 The Parties hereto recognize, acknowledge and agree that storm water drainage, on -site detention and other drainage matters as are contemplated hereby are subject to all Legal Requirements and may have to be amended or modified from time to time to comply with such Legal Requirements; therefore, the Parties hereto acknowledge and agree that the location of the Facility may subsequently be required to be relocated and/or expanded to comply with any such Legal Requirements; provided, however, (a) the Parties shall each provide the other Party prior 014202.000001\4822-1142-2768.v9 written notice and a detailed description of any such required relocation and/or expansion of the Facility; (b) any such relocation and/or expansion of the Drainage 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 performed by the Grantee to relocate and/or expand the Facility shall be in compliance with all applicable Legal Requirements, as well as sound engineering practices (d) any such relocation and/or expansion of the Drainage Facilities not attributable to the development or use of the Phase I Tract as set forth in this Section 3 .4(b) or the Facility shall be performed by Grantor at the Grantor's sole cost and expense, including payment of all surveying and engineering costs, and peinnt fees associated with such relocation and/or expansion (e) all work performed by the Grantor to relocate and/or expand the Facility or Drainage Facilities shall be in compliance with all applicable governmental rules, ordinances, regulations and permits, as well as sound engineering practices; (f) prior to any such relocation and/or expansion of the Facility or Drainage Facilities, Grantor shall construct and install all required connections to the Tracts, such that no undue interruption of or any undue interference with any Parry's use of the Facility or Drainage Facilities shall occur; (g) the Party ("Requesting Party") requesting any such relocation and/or expansion of the Drainage Facilities or the Facility shall submit to the other Party ("Approving Party") the plans and specifications therefor for their approval, which approval shall not be unreasonably withheld, conditioned or delayed; however, if the Approving Party fails to approve or disapprove said plans and specifications within said thirty (30) day period after the date on which the same are received by and receipted for by the City and Approving Party, the plans and specifications shall be deemed to have been approved as though written approval had been given by Approving Party; (h) in the event the Parties are unable to agree upon the relocation of the Drainage Facilities or the Facility, the Parties agree Grantor, its successors and assigns, shall serve as the final arbiter; and (i) this Agreement shall be modified to include a revised legal description of the Facility Property reflecting the new location of any such relocated and/or expanded Drainage Facilities or the Facility, 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 Grantor agrees for itself and its successors and assigns, that it will regularly and routinely inspect, clean and maintain the Facility and the Drainage 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 Drainage Facilities shall be planted or allowed to grow in the Drainage Facilities. The Parties agree that all costs associated with maintenance and repair of the Facility and the Drainage Facilities shall be the responsibility of Grantor, or its successors and assigns, as the fee owner of the Facility Tract. In the event that Grantor, or Grantor's Assignee, fails to so maintain, repair and clean the Drainage Facilities and/or Facility, Grantee shall have the right, but not the obligation, to enter the Facility Property 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 Grantor initiates, with due diligence, efforts to perform such maintenance within the initial 30-day period), to perfoiin any and all required maintenance and repair, and demand and obtain reimbursement from Grantor within fifteen (15) Business Days of Grantor's receipt of a written demand for reimbursement together with evidence of such 014202.000001\4822-1142-2768.v9 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 Easement Strip and the Facility Property will be used, operated and enjoyed by the Parties in compliance with all Legal Requirements or insurance underwriter having jurisdiction over the Easement Strip and the Facility Property 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 Easement Strip or Facility Tract 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 Easement Strip or the Facility Property. 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 Drainage Facilities or Facility of storm water run-off, sewage effluent, silt or other foreign materials, which does not comply with the nounal 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 Drainage Facilities or Facility and such owner shall bear all cost and expense of such maintenance and repair, without any reimbursement from the other Parties hereto. Should any refuse from the Drainage Facilities or Facility 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 Each of the Parties, at its sole cost and expense, shall be responsible or liable for identifying, characterizing, cleaning up, or disposing of such Hazardous Material that is generated by the storm water run-off 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 deteinimed 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 and its successors shall have the right to the full use and enjoyment of the Easement Strip for all purposes, so long as the same (i) does not unreasonably interfere with the Drainage Easement herein granted, (ii) no building or similar structure shall be erected within the Easement Strip, and (iii) the plans for all improvements to be placed within the Easement Strip 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. 014202.000001\4822-1142-2768.v9 3.7. A portion of the easement granted over the Easement Strip shall terminate, to the extent that such 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. 3.8 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 EASEMENT STRIP 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 3.8 SHALL NOT APPLY TO THE EXTENT ALL DRAINAGE, DETENTION AND WATER QUALITY OF STORM WATER RUNOFF FROM THE EASEMENT STRIP IS HANDLED ENTIRELY ON THE EASEMENT STRIP AND NOT THE EASEMENT STRIP OR THE FACILITY PROPERTY. 3.9 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 EASEMENT STRIP (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 3.9 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 EASEMENT STRIP OR THE FACILITY PROPERTY. Article IV. Eminent Domain In the event of an eminent domain taking of all or any portion of the Easement Strip or the Facility Property, 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 014202.000001\4822-1142-2768.v9 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. The fee owner of the property expressly subject to the eminent domain proceeding shall give notice to any other party with an interest in the Easement Strip or the Facility Property being included within the eminent domain proceedings, promptly after the original receipt of same. Article V. 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 completing 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 peituitted 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). 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 noted in Section 6 below and Investor Limited Pal tner 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 VI. Miscellaneous 6.1. 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, 014202.000001\4822-1142-2768.v9 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 Piper LLC 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. 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 this Section 6 hereof. 6.2. 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 performance 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. 6.3. No 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. 014202.000001\4822-1142-2768.v9 6.4 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 Facility Property and the Phase I Tract. 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 herem created or otherwise extinguishing the Drainage Easement and restrictions herein. 6.5. 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 Easement Strip 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 Tracts 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. 6.6. 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. 6.7. 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. 6.8. 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. 6.9. If any tuna, 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 terror, provision and condition of this Agreement shall, nevertheless, remain in full force and effect. 014202.000001\4822-1142-2768.v9 6.10. None of the terms 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. 6.11. 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 teens and provisions hereof. 6.12. 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 herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms 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. 6.13. The laws of the State of Texas govern this Agreement 6.14. 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. 6.15. Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural and any other gender, masculine, feminine or neuter, as the context requires. 6.16. The Parties agree that any cure of any default made or tendered by the Investor Limited Par trier 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. 6.17. 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 6.18. 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 owners of the Facility Property or the Phase I Tract. 014202.000001\4822-1142-2768.v9 6.19. 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 penholder, and shall remain in full force and effect, notwithstanding a foreclosure of said liens (or conveyance in lieu thereof). 6.20. 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). 6.21. Habendum Clause. TO HAVE AND TO HOLD the easements 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 easements and rights -of -way and other rights conveyed herein unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise, and subject to the matters expressly excepted herein. [Signature and Notary Pages follow] 014202.000001\4822-1142-2768.v9 EXECUTEID 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 "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: STATE OF TEXAS COUNTY OF TARRANT Happy Baggett, Manager This instrument was acknowledged before me on the day of July, 2016 by Happy Baggett, Manager of FW MASON HI-i,IGHTS 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 014202.000001\4822-1142-2768.v9 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 RENAISSANCE SQUARE I, L P , a Texas limited partnership, on behalf of said limited partnership. Notary Public 014202.000001\4822-1142-2768.v9 CITY OF FORT WORTH By: APPROVED AS TO FORM AND LEGALITY: v(01/Gi /140/.4._ frtrnr2a- Vickie S. Ganske, Seni Assistant City Attorney STATE OF TEXAS COUNTY OF TARRANT i Fernando Costa, Assistant City Manager This instrument was acknowledged before me this 067 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. • `�`''��"''''� TRIKINYA I JOHNSON ‘N ELY ?ye"-, re' •' '•If = Notary Public, State of Texas ,.:, Comm. Expires 04-17-2018 S�`f°Notary ID 1238832-0 <<utiny`��� Notary Pl.' lic — A/71,1 e of Texas 014202.00000114822-1142-2768.v9 FORT WORTH HOUSING FINANCE CORPORATION By: ��� (iv/ Name: Fernando Costa Title: General Manager STATE OF TEXAS i i COUNTY OF TARRANT I This instrument was acknowledged before me this 2 (' day of July, 2016, by Fernando Costa, General Manager of FORT WORTH HOUSING FINANCE CORPORATION, a Texas housing finance corporation, on behalf of said Texas housing finance co . oration. TRIKINYA L JOHNSON z •' •. f :Notary Public, State of Texas oRYlit ll %'' • . • P; Comm. Expires 04-17-2018 :�`' Notary ID 1238832-0 • Notary public ,J,, tate of Texas 014202.000001 \4822-1142-2768.v9 HXHIBIT "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.0 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 East 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 East 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.C.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 light -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. 014202.000001\4822-1142-2768.v9 EXHIBIT "B" Facility Property 014202.000001\48224 142-2768.v9