HomeMy WebLinkAboutContract 55083CSC No. 55083
the City Councils approval during its regular meeting on August 4, 2020, of agenda item
IVI&C 20-0495 (the "Economic Development Program Agreement").
F. Company has submitted an application for tax abatement to the City
concerning the Land and the Required Improvements, the leasehold interest in the Land
and the Required Improvements, and New 'taxable Tangible Personal Property to be
located on the Land ("Application"), which Application is attached hereto as Exhibit "B"
and hereby made a part of this Agreement for all purposes.
G. The Required Improvements that are contemplated hereunder and the terms
of this Agreement are consistent with encouraging development of the Zone and generating
economic development and employment retention opportunities in the City, in accordance
with the purposes for creation of the Zone, and are in compliance with the Policy, the
Ordinance and other applicable laws, ordinances, rules and regulations.
H. The provisions of this Agreement, and the proposed use of the Land and
nature of the Required Improvements, satisfy the eligibility criteria for commcrciallindustrial
tax abatement pursuant to Section 3 of the Policy.
I. Written notice that the City intends to enter into this Agreement, along with
a copy of this Agreement, has been furnished in the manner prescribed by the Code to the
presiding officers of the governing bodies of each of the taxing units that have jurisdiction
over the Land,
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. INCORPORATION OF RECITALS; LIMITED ROLE OF THE OWNER.
The City Council has found, and the City and Company hereby agree, that the
recitals set forth above are true and correct and form the basis upon which the parties have
entered into this Agreement. The Owner joins this Agreement as a party solely to
memorialize that (i) the Owner has leased or will lease the Land to Company on terms and
conditions substantially in accordance with the Lease attached hereto as Exhibit "C" and
(ii) the Owner consents to construction of the Required Improvements solely in accordance
with the Lease. It is a condition of the Abatement provided hereunder that the Owner has
executed the Lease.
2. DEFINITIONS.
In addition to terms defined in the body of this Agreement, the following terms will
have the definitions ascribed to them as follows:
Abatement means the abatement of a percentage (not to exceed forty percent in
any year of the Abatement Term) of the City's incremental ad valorem real property taxes
on any improvements located on the Land (but not on the land itself, which taxes will not
Page Z
Tax Abatement Agreement between
City oFFort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LIX
be subject to Abatement hereunder) and of the City's incremental ad valorem taxes on New
Taxable Tangible Personal Property, all calculated in accordance with this Agreement.
Abatement Term means the term of nine (9) consecutive years, commencing on
January I, 2023 and expiring on December 31, 2032, in which Company will received the
Abatement.
Affiliate means all entities, incorporated or otherwise, under common control with,
controlled by or controlling Company. For purposes of this definition, "control" means
fifty percent (50%) or more of the ownership determined by either value or vote.
Application has the meaning ascribed to it in Recital F.
Annual Salary Cornmitnxcot has the moaning ascribed to it in Section 4.6.
Annual Salary Pcreentage has the meaning ascribed to it in Section 5.2.4.
Base Year Value means the sum of any taxable value of the Land, improvements
on the Land, leaschold in the Land and improvements, and Taxable Tangible Personal
Property located on the Land for tax year 2020, which sum is agreed to be $4,109,176.
Certificate of Completion has the meaning ascribed to it in Section 5.1.
Code has the meaning ascribed to it in Recital B.
Combined Tax Increment means the City's assessed ad valorem taxes for the
Commencement Tax Year that are based on the value of the Leasehold Interest, along with
any taxable value of the Land and all improvements thereon, and on the value of Taxable
Tangible Personal Property over the Base Year Value.
Commencement Tax Year means the tax year inclusive of, or following, the
Completion Date that Company elects to commence the abatement by filing with the
appropriate appraisal district an Application for Property Tax Abatement Exemption
between January l and April 30 of said tax year and providing a copy of the Application
for Property Tax Abatement Exemption to the City. The Commencement Tax Year will
not be later than tax year 2022.
Completion Date means the date as of which all occupiable Required
Improvements constructed on the Land have received at least a temporary certificate of
occupancy from the City.
Completion Deadline means December 31, 2021.
Construction Costs means Ilard Construction Costs, plus the following costs
expended by Company directly in connection with construction of the Required
Improvements: engineering, architectural and other design and consulting fee, construction
Page 3
Tax Abatement Agreement between
City of Pon Worth, Aria International, Inc, and NP,OV Fort Worth Project 1, LLC
management fees; costs of governmental permits and inspection fees related to site
preparation and construction; and landscaping.
Director means the director of the City's Economic Development Department.
Economic Development Program Agreement has the meaning ascribed to it in
Recital E.
Effective Date has the meaning ascribed to it in Section 3.
Fort Worth _Certified_MIWBE Comnanv_ means a minority or woman -owned
business that has received certification as either a minority business enterprise (MBE), a
woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the
North Central Texas Regional Certification Agency (NCTRCA) and that has a principal
business office located within the corporate limits of the City that performs a commercially
useful function and that provides the services for which Company is seeking credit under
this Agreement.
Full-time Equivalent Job means a _job provided on the Land by Company or a
Third -Party Logistics Provider to one (1) or more individuals, whether new or retained, for
at least thirty (30) hours per week.
Hard Construction. Costs means actual site development and construction costs
expended by Company for the Required Improvements, including directly -related
contractor fees, costs of construction labor, supplies and materials for site preparation,
construction and landscaping, and materials testing.
Land has the meaning ascribed to it in Recital D.
Lease means that certain lease of the Land and the improvements located in the
Land by the Owner to Company in substantially same form as that attached hereto as
Exhibit "C"C", attached hereto and hereby made a part of this Agreement for all purposes,
as it may subsequently be amended.
Leasehold Interest means the leasehold in the Land and improvements thereon
provided by the Lease.
M/W BE Construction Commitment has the meaning ascribed to it in Section 4.4.
MIWBE Construction Pereenta a has the meaning ascribed to it in Section 5.2.2.
New Taxable Tangible Personal Property means any personal property other
than inventory or supplies that (i) is subject to ad valorem taxation by the City; (ii) is
located on the Land; (iii) is owned or leased by Company; and (iv) was not located in the
City prior to the Effective Date of this Agreement.
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Tax Abatement Agreement between
City orFort Worth, Aria International, ine, and NP-OV Vort Worth Project 1, LLC
4.5.1.
Ordinance has the meaning ascribed to it in Recital C.
Overall Employment Commitment has the meaning ascribed to it in Section
Overall_ If.inployment Percent#,ge has the meaning ascribed to it in Section 5.2.3.
Overall linpi-ovement Pet-centage has the meaning ascribed to it in Section 5.2.2.
Policy has the meaning ascribed to it in Recital A.
Real Property Commitment has the meaning ascribed to it in Section 4.2.
Records has the meaning ascribed to it in Section 4.9.
Required Improvements has the meaning ascribed to it in Recital D.
TanLdble Personal Property Commitment has the meaning ascribed to it Section
4.3.
Taxable Tangible Personal Property means any personal property other than
inventory or supplies that (i) is subject to ad valorem taxation by the City; (ii) is located on
the Land; and (iii) is owned or leased by Company.
Term has the meaning ascribed to it in Section 3.
Third -Party Louistics Provider means a specialized provider offering
distribution, warehousing and fulfillment services.
Total Investment Commitment has the meaning ascribed to it in Section 4.3.
Zone has the meaning ascribed to it in Recital C.
3. TERM.
This Agreement will take effect on the last date as of which all parties have
executed this Agreement ("Effective Date") and, unless terminated earlier in accordance
with its terms and conditions, will expire simultaneously upon the expiration of the
Abatement Term (46Term"),
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Tax Abatement Agreement between
City of Purt Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LLC
4. COMPANY'S OBLIGATIONS AND COMMITMENTS.
4.1. Use of Land; Lease; Maintenance of Corporate Headquarters in the
City. T
4.1.1 From the Completion Date until expiration of the Term of this
Agreement, Company must use the Land for Company's (or its successor's)
business operations, or the operations of another business approved in
writing by the City Council.
4.1.2 Throughout the Term of this Agreement, Company (or its successor)
must own the Leasehold Interest.
4.1.3 Throughout the Term of this Agreement, Company (or its successor)
must maintain its distribution hub and corporate office at a location in the
City. In the event that Company (or its successor) fails to do so, the City
may terminate this Agreement immediately by providing written notice to
Company (or its successor).
4.2. Real Property Improvements.
Company must expend or caused to be expended at least Forty -Three Million
Dollars and Zero Cents ($43,000,000.00) in Construction Costs for the Required
Improvements by the Completion Date, and the Completion Date for the Required
Improvements must occur on or before the Completion Deadline (col lectively, "Real
Property Commitment"). The Owner has agreed within the Lease to permit
Company to construct the Required Improvements solely in accordance with the
terms and conditions of the Lease.
4.3. Tan dale .Personal Property Improvements.
New Taxable 'Tangible personal Property having a value of at least Thirty
Million Dollars and Zero Cents ($30,000,000.00) must be in place on the Land by
January 1, 2022, as determined solely by the appraisal district having jurisdiction
over the Land ("Tangible Personal Property Commitment"). The Real Property
Commitment and 'Tangible personal Property Commitment are hereinafter referred
to as the "Total Investment Commitment",
4.4. Construction Spending Commitment for Port Worth Certified
M1WBE Companies.
Prior to the Completion Date, Company must expend or caused to be
expended at least Six Million Four Hundred Fifty Thousand Dollars and Zero Cents
($6,450,000.00) in Hard Construction Costs for the Required Improvements with
Fort Worth Certified M/WBE Companies ("MIWBE Construction
Commitment").
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Tax Abatement Agreement between
City of Fan Worth, Aria International, Inc, and NP-dV Fort Worth Project I, LLC
4.5. Employment Commitments.
Determination each year of compliance with the following
employment commitments will be based on the employment data provided
to the City pursuant to this Agreement for the year under evaluation.
4.5.1. Overall Emvlovment.
Company must provide a minimum of 450 Full -Time
Equivalent Jobs on the Land pursuant to the schedule set forth below
(for each year below, "Overall Employment Commitment"). The
Full -Time Equivalent Jobs must consist of at least 75 Company -
employed corporate office positions and 375 employees from a
Third -Party Logistics Provider. The level of overall employment
for the calendar years is specified below:
(a) 2021
On or before December 31, 2021, Company will
meet the Overall Employment Commitment if the
Company provides and fills at least 75 Full=lime
Equivalent Jobs on the Land.
(b) 2022
On or before December 31, 2022, Company will
meet the Overall Employment Commitment if the
Company provides and fills at least 125 additional
Full -Time Equivalent Jobs on the land, for a total of
200 Full -Time Equivalent Jobs.
(c) 2023
On or before Decclnbcr 31, 2023, Company will
meet the Overall Employment Commitment if the
Company provides and fills at least 125 additional
Full -Time Equivalent Jobs on the Land, for a total of
325 Full -Time Equivalent Jobs,
(d) 2024
On or before December 31, 2024, Company will
meet the Overall Employment Commitment if the
Company provides and fills at least 125 additional
Page 7
Tax Abatement Agreement between
City of Port Worth, Aria International, Inc, and NP-OV Fort Worth Project I, Lt.0
Full -Time Equivalent Jobs on the Land, for a total of
450 Full -Time Equivalent Jobs.
4.6. Annual Salary Commitments
Beginning in the calendar year following the Completion Deadline and for
the duration of the Term, the average annual salary for all Full -Time Equivalent
Jobs must be a minimum of Forty -Three Thousand Nine Hundred Ninety -Two
Dollars and Zero Cents ($43,992,00) ("Annual Salary Commitment"). Salary
includes direct pay and planned bonuses, but not benefits, expense reimbursements,
or discretionary bonuses.
4.7. Reports and Filings.
4.7.1. flan for Use of Fort Worth Certified M/W131f, Companies.
Within ninety (90) calendar days following; the Effective Date,
Company, or its designee, must file a plan with the Director as to how
Company intends to meet the M/WBE Construction Commitment.
Company agrees to meet with the City's M/WBE Office, as reasonably
necessary, for assistance in implementing such plan and to address any
concerns that the City may have with such plan.
4.7.2. Construction Spending Deports.
(a) Semi-annu-il Reports.
From the Effective Date until the Total Investment
Commitment and the M/WBE Construction Commitment have been
satisfied, Company, or its designee, must provide the Director with
a semi-annual report in a form reasonably acceptable to the Director
that specifically outlines the then -current aggregate Construction
Costs expended by and on behalf of Company for the Required
Improvements as well as the then -current aggregate Hard
Construction Costs expended by and on behalf of Company for
Required Improvements with Fort Worth Certified MIWBE
Companies.
(b) Final Construction Report.
Within sixty (60) calendar days following the Completion
Date, in order for the City to assess whether Company met the Real
Property Commitment and the extent to which Company met the
M/WBE Construction Commitment, Company, or its designee,
must provide the Director with a report in a form reasonably
acceptable to the Director that specifically outlines (i) the total
Page 8
Tax Abatement Agreement between
City of Fort Worth, Aria International, Inc, and NNOV Fort Worth Project 1, LLC
Construction Costs expended by and on behalf of Company for the
Required Improvements; (ii) the total Hard Construction Costs
expended with Fort Worth Certified M/WBE Companies by and on
behalf of Company for the Required Improvements, together with
supporting invoices and other documents reasonably necessary to
demonstrate that such amounts were actually paid by Company,
including, without limitation, final lien waivers signed by
Company's general contractor.
4.7.3. Personal Property Report.
On or before February 1 of the Commencement Tax Year, in order
for the City to assess the amount of the Tangible Personal Property on the
Land that qualifies as New Taxable Tangible Personal Property, and to
verify the costs of any New Taxable Tangible Personal Property used to
meet the Total Investment Commitment, Company must provide the
Director with a report in a form reasonably acceptable to the City that lists
the New Taxable Tangible personal Property that was installed on the Land
between the Effective date and the Completion Deadline and the cost of
such New Taxable Tangible Personal Property, together with reasonable
supporting documentation concerning the identification and cost (including
invoices and receipts) of such New Taxable Tangible Personal Property,
4.7.4. Cmployment and Salary Report.
(a) On or before April 1, 2022, and April 1 of each year
thereafter, in order for the City to assess the degree to which the
Overall Employment Commitment was met, Company must provide
the Director with an affidavit in a form reasonably acceptable to the
Director that sets forth the total number of individuals who held
employment positions comprising Full-time Equivalent Jobs on the
Land, along with payroll exports or withholding documentation of
direct employees as of December 31 of the prior year.
(b) In the event that a Third -Party Logistics Provider is used to
fulfill all or a portion of the Overall Employment Commitment and
taking into consideration the Average Salary Commitment, the
Third -Party Employer must provide the Director with the affidavit
and supporting documentation set forth immediately above.
4.7.5. General.
Company agrees to supply any additional information reasonably
requested by the Director that is pertinent to the City's evaluation of
compliance with each of the terms and conditions of this Agreement.
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Tax Abatement Agrcurncnt bctwccn
City of Fors Worth, Aria International, Inc, and NI' -UV I-ort Worlh Project 1, LLC
4.7.6. Annual Certification,
Each year of the Abatement Term, Company must obtain and
provide to the Director a certification from a representative of the Owner
that the Lease remains in effect. Company must provide that certification,
along with its own certification that Company is in compliance with each
applicable term of this Agreement, to the Director on or before February
1 St.
4.8. Ins wetions.
At any time during Company's normal business hours, throughout the Term
and following reasonable notice to Company, the City will have the right to inspect
and evaluate the Land and any improvements thereon, and Company and any of its
Affiliates and Third -Party Logistics Providers located on the Land will provide full
access to any facilities on the Land reasonably necessary for the City to monitor
compliance with the terms and conditions of this Agreement. Company will
cooperate with the City during any such inspection and evaluation.
Notwithstanding the foregoing, Company will have the right to require that any
rcpresentative of the City be escorted by a Company representative or security
personnel during any such inspection and evaluation.
4.9. Audits.
The City will have the right throughout the Term to audit the financial and
business records of Company and any Affiliates and Third -Party Logistics Provider
that relate to the Required Improvements and any other documents necessary to
evaluate compliance with this Agreement or with the commitments set forth in this
Agreement, including, but not limited to construction documents and invoices as
well as employment records of any Affiliate or Third -Party Logistics Provider
solely to the extent that Full-time Equivalent Jabs provided by any Affiliate or
Third -Marty Logistics Provider are included in the employment report (collectively,
"Records"), Company will make or cause to be made all Records available to the
City on the land or at another location in the City acceptable to both parties
following reasonable advance notice by the City and will otherwise cooperate with
the City during any audit.
4,10. Abatement Application Fee.
The City acknowledges receipt of the required Application fee of Five
Thousand Dollars ($5,000.00). Of such amount, Two Thousand Dollars
($2,000,00) is nonrefundable and will be used by the City for the purposes set forth
in the Policy. If construction work on the Required Improvements begins within
one (1) year from the date of the Application, the remaining Three Thousand
Dollars ($3,000.00) of such fee will be credited to Company's benefit against any
permit, impact, inspection or other lawful fee required by the City in connection
Page ID
Tax Abatement Agreement between
City of Fort Worth, Aria international, Inc, and NP-OV fort Worth Project 1, LLC
with the Required Improvements. if construction work on the Required
Improvements does not begin within one (1) year from the date of the Application,
Company will not receive a credit or refund of any portion of the fee.
5. CITY OBLIGATIONS.
5.1. Issuance of Certificate of Completion.
5.1.1. Within ninety (90) calendar days following receipt by the City of
both the final construction expenditure report for the Required Improvements and
the expenditure report for New Taxable Tangible Personal Property and assessment
by the City of the information contained thercin, if the City is able to verify that
both the Real Property Commitment was met and that the Total Investment
Commitment was met, the Director will issue Company a certificate stating the total
amount of Construction Costs expended for the Required Improvements; the
amount of Hard Construction Costs expended specifically with Fort Worth
Certified M/WBE Companies for the Required Improvements; and the total costs
of New Taxable Tangible Personal Property installed on the Land by the
Completion Deadline if costs of New Taxable Tangible Property are necessary to
meet the Total Investment Commitment ("Certificate of Completion"').
5.1.2 The Certificate of Completion will serve as verification that the Real
Property Commitment and the Total Investment Commitment were met and will
also establish the extent to which the M/WBE Construction Commitment was met.
5.2. Tax Abatement.
5.2.11 Subject to the terms and conditions of this Agreement and provided
that that Company timely meets its obligations related to the Total Investment
Commitment, then the Company will be entitled to receive an Abatement in the
First year of the Abatement Term and in each year thereafter for the remainder of
the Abatement Term.
5.2.2 The amount of each abatement that the Company is entitled to
receive during the Abatement Term will be a percentage of the City's ad valorem
taxes based on the incremental taxable appraised value of any improvements
located on the Land (but not on the Land itself, which taxes will not be subject to
the Abatement hereunder) over their taxable appraised value for the 2020 tax year
(which is $4,109,176.00) and on the incremental taxable appraised value of the New
Taxable Tangible Personal Property, which percentage will equal the sum of the
Overall Improvement Percentage, the MIWBE Construction percentage, the
Overall Employment Percentage, and the Annual Salary Percentage (not to exceed
40%) as defined set forth below:
Page I 1
Tax Abatement Agreement between
City of Fort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LLC
(a) Completion of Total Investment Commitment (15%)
Company will be entitled to receive a percentage of the
Abatement equal to Twenty -Five Percent (25%) ("Overall
Improvement Percentage") on account of Company's having met
the Total Investment Commitment,
(b) Fort Worth_M_1WBE Construction Cost Spending (Up
tol0"1,1.
A percentage of the Abatement will be based on the extent
to which the M/WBE Construction Commitment is met (I'M/'VVBE
Construction Percentage"). The M/WBE Construction Percentage
will equal the product of ten percent (10%) multiplied by the
percentage by which the M/WBE Construction Commitment is met,
which will be calculated by dividing the actual Hard Construction
Costs expended for the Required Improvements by the Completion
Date with Fort Worth Certified M/WBE Companies by the number
of dollars comprising the M/WBF Construction Commitment. If
Company meets the M/WBE Construction Commitment, then the
M/WBE Construction Percentage will be 10%.
5,13. Overall Employment (Up to 5%).
A percentage of the Abatement will be based on the extent to which
the Overall Employment Commitment is met (the "Overall Employment
Percentage"). The Overall Employment Percentage will equal the product
of five percent (5%) multiplied by the percentage by which the Overall
Employment Commitment is met for each yearly Overall Employment
Commitment. Expressed as formula: 5% x (Actual number of Full -Time
Equivalent Jobs filled by the Company for the applicable year/Overall
Employment Commitment for the applicable year).
(a) 2021
For example, if only 70 Full-time Equivalent Jobs were
provided on the Land by December 31, 2021, then the
Overall Employment Percentage would be 4.6% instead of
5% (or .05 x [70/75]), or .05 x .933 = .046. If the Overall
Employment Commitment is met or exceeded, the Overall
Employment Percentage will be five percent (5%).
(b) 2022
For example, if only 120 Full-time Equivalent Jobs were
provided on the Land by December 31, 2022, then the
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Tax Abatement Agreement between
City of Fort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LLC
Overall Employment Percentage would be 3% instead of 5%
(or .05 x [120/2001), or .05 x .6 = .03 If the Overall
Employment Commitment is met or exceeded, the Overall
Employment Percentage will be five percent (5%).
(c) 2023
For example, if only 250 Full-time Equivalent Jobs were
provided on the Land by December 31, 2023, then the
Overall Employment Percentage would be 3.8%o instead of
5% (or .05 x [250/325]), or .05 x .769 = .038. If the Overall
Employment Commitment is met or exceeded, the Overall
Employment percentage will be five percent (5%).
(d) 2024
For example, if only 400 Full-time Equivalent Jobs were
provided on the Land by December 31, 2024, then the
Overall Employment Percentage would be 4.4% instead of
5% (or .05 x [400/4501), or .05 x .88 = .044. If the Overall
Employment Commitment is met or exceeded, the Overall
Employment Percentage will be five percent (5%).
5.2.4. Average Annual Salarv_(Un to 10%).
A percentage of the Abatement will be based on the extent
to which the Annual Salary Commitment is met ("Annual Salary
Percentage"). The Average Salary Percentage will equal the
product of ten percent (10%) multiplied by the percentage by which
the Average Salary Commitment is met, which will be calculated by
dividing the actual average annual salary paid to individuals with
Full -Time Equivalent Jobs by the Average Salary Commitment. If
Company meets the annual Average Salary Commitment, then the
Average Salary Percentage will be 10%.
5.2.5. No Offsets.
A deficiency in attainment of one commitment may not be offset by
the exceeding attainment in another commitment. For example, if Company
failed to meet the M/WBF. Construction Spending Commitment by
$5,000.00, but exceeded the Total Investment Commitment by $5,000.00,
the percentage of Abatement available hereunder would still be reduced on
account of Company's failure to meet the M/WBE Construction Spending
Commitment.
Pagc 13
Tax Abatement Agrcemcnt between
city erg ort Worth, Aria International, Ine, and NNOV [art Worth Project [, LLC
6. DEFAULT, TERMINATION AND FAILURE BY COMPANY TO MEET
VARIOUS DEADLINES AND COMMITMENTS,
6.1. Failure to Meet Real Property and Personal Property Commitments.
If either the Real Property Commitment or the New "Taxable Tangible
Personal Property Commitment are not met in a timely manner, or if the Total
Investment Commitment is not met in a timely manner, the City will have the right
to terminate this Agreement immediately upon provision of written notice to
Company, in which case the City will have no further obligation to Company
hereunder, and Company will repay to the City the amount of any tax abatement
realized by Company prior to such termination.
6.2. Failure to Submit Reports.
If Company fails to submit any report or information to the City pursuant to
and in accordance with the provisions this Agreement, the City will notify
Company in writing. Company will have thirty (30) calendar days from the date
the City sends said notice to provide the City with any such report or information
in full. If the City has not received the report or information in full within such
thirty (30) calendar days, the City will have the right to terminate this Agreement
immediately upon provision of written notice to Company, in which case the City
will have no further obligation to Company hereunder.
6.3. Failure to Pay City Taxes.
6.3.1 An event of default will occur under this Agreement if any City
taxes owed by Company or an Affiliate or Third -Party Logistics Provider or arising
on account of Company's or an Affiliate's or a Third -Marty Logistics Provider's
operations on the Land become delinquent and Company or the Affiliate or the
Third -Party Logistics Provider does not either pay such taxes or properly follow
the legal procedures for protest or contest of any such taxes.
6.3.2 In this event, the City will notify Company in writing and Company
will have thirty (30) calendar days to cure such default. If the default has not been
fully cured by such time, the City will have the right to terminate this Agreement
immediately upon provision of written notice to Company, in which case the City
will have no further obligation to Company hereunder, but the City will retain all
other rights and remedies that may be available to it under the law or in equity.
6.4. Violations of City Code State or Federal Law.
6.4.1 An event of default will occur under this Agreement if any written
citation is issued to Company or an Affiliate or Third -Party Logistics Provider due
to the occurrence of a Company violation of a material and applicable provision of
the City Code on the Land or on or within any improvements thereon (including,
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Tax Abatement Agreement between
City of Fort Worth, Aria, tnti rm4tiprial, Inc:, and NP-OV Fort Worth Project 1, LLC
without limitation, any violation of the City's Building or Fire Codes and any other
City Code violations related to the environmental condition of the Land; the
environmental condition of other land or waters which is attributable to operations
on the Land by the Company; or to matters concerning the public health, safety or
welfare) and such citation is not paid or the recipient of such citation does not
properly follow the legal procedures for protest and/or contest of any such citation.
6.4.2 An event of default will occur under this Agreement if the City is
notified by a governmental agency or unit with appropriate jurisdiction that
Company or an Affiliate or Third -Party Logistics Provider, or any successor in
interest thereto; any third party with access to the Land pursuant to the express or
implied permission of Company or an Affiliate or Third -Party Logistics Provider,
or any successor in interest thereto; or if the City (on account of the Required
Improvements or the act or omission of any party other than the City on or after the
effective date of this Agreement) is declared to be in violation of any material state
or federal law, rule or regulation on account of the Company's operations or
management of the Land or Company's construction of improvements on the Land
(including, without limitation, any violations related to the environmental condition
of the Land; the environmental condition of other land or waters which is
attributable to Company's operations on the Land; or to matters concerning the
public health, safety or welfare).
6.4.3 Upon the occurrence of such default, the City will notify Company
in writing, and Company will have (i) thirty (30) calendar days to cure such default
or (ii) if Company has diligently pursued cure ofthe default but such default is not
reasonably curable within thirty (30) calendar days, then such additional amount of
time that is reasonably necessary to effect cure, as determined by both parties
mutually and in good faith. If the default has not been fully cured by such time, the
City will have the right to terminate this Agreement immediately by providing
written notice to Company and will have all other rights and remedies that may be
available it to under the law or in equity.
6.5. Knowin Employment of Undocumented Workers.
6.5.1 Company acknowledges that the City is required to comply with
Chapter 2264 of the Texas Government Code, enacted by House Bill 1196 (80th
Texas Legislature), which relates to restrictions on the use of certain public subsidies.
Contpany hereby certyies that Company, and any branches, divisions, or
departments of Company, does not and will not knowingly employ an
undocumented worker, as that term is defined by Section 2264.001(4) of the Texas
Government Code. In the event that Company, or any branch, division, or
department of Company, is convicted of a violation under S U.S. C Section I324a(l)
(relating to federal criminal penalties and injunctions for a pattern or practice of
employing unauthorized alien.), subject to any appellate rights that may lawfully
be available to and exercised by Company, Company must repay, within one
hundred twenty (120) calendar clays following receipt of written demand front the
Page 15
Tax Abatement Agrccmcnt bclwcen
City orFort Worth, Aria Iritematibnal, Inc, and NP-OV fort Worth Project 1, LLC
City, the amount of Abatement received by Company hereunder, if any, plus
Simple Interest at a rate of four percent (4%) per ann ant hased on the amount of
Abatement received as of December 31 of the tax year in which Ilse Abatement
was granted.
6.5.2 For the purposes of this Section 6.5, "Simple Interest" is defined as
a rate of interest applied only to an original value, in this case the amount of
Abatement. This rate of interest can be applied each year, but will only apply to the
amount of the Abatement received and is not applied to interest calculated. For
example, if the aggregate amountof Abatement received by Company is $10,000 and
it is required to be paid back with four percent (4%) interest rive years later, the total
amount would be $10,000 + [5 x ($10,000 x 0.04)], which is $12,000. This Section
6.5 does not apply to convictions of any Affiliate of Company, any franchisees of
Company, or any person or entity with whom Company contracts. Notwithstanding
anything to the contrary herein, this Section 6.5 will survive the expiraticm or
termination of this Agreement.
6.6. Sale, Assignment or Conveyance of Lease to a Third Party.
If Company sells, assigns, or otherwise conveys its entire I-caschold Interest
to any other person or entity, and this Agreement has not been assigned to that
person or entity in accordance with Section 10 of this Agreement, this Agreement
will terminate on the effective date of the sale, assignment or conveyance.
6.7. General Breach,
Unless stated elsewhere in this Agreement, Company will be in default
under this Agreement if Company breaches any term or condition of this
Agreement. In the event that such breach remains uncured after thirty (30) calendar
days following receipt of written notice from the City referencing this Agreement
(or, if Company has diligently and continuously attempted to cure following receipt
of such written notice but reasonably requires more than thirty (30) calendar days
to cure, then such additional amount of time as is reasonably necessary to effect
cure, as determined by both parties mutually and in good faith), the City will have
the right to terminate this Agreement immediately by providing written notice to
Company.
6.8. Failure to Meet Construction Cost Spendinp_, Employment or Annual
Sa—lary Commitments.
A failure to meet the M/W BE Construction Commitment, the Overall
Employment Commitment, or the Annual Salary Commitment will not constitute a
default hereunder or provide the City with the right to terminate this Agreement,
but, rather, will only cause the percentage of Abatement available to Company
pursuant to this Agreement to be reduced in accordance with this Agreement.
Page 16
Tax Abatement Agreement between
City of Fart Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, Lt.0
7. 1NI)EPEND1W1' CONTRACTOR.
It is expressly understood and agreed that Company will operate as an independent
contractor in each and every respect hereunder and not as an agent, representative or
employee of the City. Company will have the exclusive right to control all details and day-
to-day operations relative to the Land and any improvements thereon and will be solely
responsible for the acts and omissions of its officers, agents, servants, employees,
contractors, subcontractors, licensees and invitees. Company acknowledges that the
doctrine of respondeat superior will not apply as between the City and Company, its
officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees.
Company further agrees that nothing in this Agreement will be construed as the creation of
a partnership or joint enterprise between the City and Company.
8. INDEMNIFICATION.
COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND,
INDEMNIFY, AND HOLD THE CITY AND ITS OFFICERS, REPRESENTATIVES,
AGENTS, SERVANTSAND EMPLOYEES, HARMLESS AGAINST ANY AND ALL
CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR
LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS
AND ANY RESULTING LOST PROFITS) AND PERSONAL INJURY, INCLUDING,
BUT NOT LIMITED TO, DEATH, THAT MAYRELATE TO, ARISE OUT OF OR BE
OCCASIONED BY (i) COMPANY'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS,
AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE
CITY) OR SUBCONTRACTORS, RELATED TO THE REQUIRED
IMPROVEMENTS; THE LAND AND ANY OPERATIONS AND ACTIVITIES
THEREON; OR THE PERFORMANCE OF THIS AGREEMENT OR OTHER WISE
CITY AND COMPANY SHALL COOPERATE IN THE DEFENSE OF ANY CLAIM
CONTESTING THE VALIDITY OF THIS AGREEMENT.
9. NOTICES.
All written notices called for or required by this Agreement must be addressed to
the following, or such other party or address as either party designates in writing, by
certified mail, postage prepaid, or by hand delivery:
City:
City of Fort Worth
Attn: City Manager
200 Texas Street
Fort Worth, TX 76102
Company:
Ariat International, Inc.
Attn: Pankaj Gupta
3242 Whipple Road
Union City, CA 94587
With a copy to: legal(c,ariat.com
Page I?
Tax Abatement Agreement between
City of Fort Worth, Aria International, Inc, and NP-DV Fort Worth Project 1, LLC
with copies to;
the City Attorney and
Economic Development Dept. Director
at the same address
10. ASSIGNMENT AND SUCCESSORS.
Owner:
NP-OV Fort Worth Project 1, LLC
Attn: Nathaniel Hagedorn
Attn: Leo Salinger
4825 N W 41 st Street, Ste. 500
Riverside, Missouri 64150
Company may not assign, transfer, or otherwise convey any of its rights or
obligations under this Agreement to any person or entity other than an Affiliate of the
Company without the prior consent of the City Council, which consent will not be
unreasonably withheld, conditioned on (i) the assignee or successor will own the Leasehold
Interest; (ii) the value of New Taxable Tangible Personal Property located on the Land is
equivalent to any New Taxable Tangible Personal Property necessary to meet the Total
Investment Commitment; (iii) the prior approval of the assignee or successor and a finding
by the City Council that the proposed assignee or successor is financially capable of meeting
the terms and conditions of this Agreement; and (iv) prior execution by the proposed assignee
or successor of a written agreement with the City under which the proposed assignee or
successor agrees to assume and be bound by all covenants and obligations ofCompany under
this Agreement. Any lawful assignee or successor in interest of Company of all rights under
this Agreement will be deemed "Company" for all purposes under this Agreement.
11. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND
REGULATIONS.
This Agreement will be subject to all applicable federal, state and local laws,
ordinances, rules and regulations, including, but not limited to, all provisions of the City's
Chaster and ordinances, as amended.
12. GOVERNMENTAL POWERS.
It is understood that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers or immunities.
13. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, and the effect of such holding is that the City cannot grant Company the
amount of Abatement intended hereunder, the City staff will recommend that the City
Council authorize an amendment to the Economic Development Program Agreement to
provide Company an additional grant or grants under that Agreement in an amount equal
to the difference between the amount of Abatement that Company would have received
Page Is
Tax Abatement Agreement between
City of Fort Worth, Aria Inlcmalional, Inc, and NY-OV Dort Worth Pmject 1, LLC
under this Agreement in accordance with the calculations set forth herein and the amount
of Abatement that Company actually received directly on account of the holding in
question.
14. NO WAIVER.
The failure of either party to insist upon the performance of any term or provision
of this Agreement or to exercise any right granted hereunder will not constitute a waiver
❑fthat party's right to insist upon appropriate performance or to assert any such right on
any future occasion.
15. VENUE AND CHOICE OF LAW,
If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for such action will lie in state courts located in Tarrant
County, Texas or the United States District Court for the Northern District of Texas — Fort
Worth Division, This Agreement will he construed in accordance with the laws of the State
of Texas.
16. NO THIRD PA14ri,y 141C,FI1I1S.
The provisions and conditions of this Agreement are solely for the benefit of the
City and Company, and any lawful assign or successor of Company, and are not intended
to create any rights, contractual or otherwisc, to any other person or entity.
17. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement will be interpreted fairly and reasonably, and neither mol-C
strongly for or against any party, regardless of the actual drafter of this Agreement. In the
event of any direct conflict between the body of this Agreement and the Application, the
body of this Agreement will control.
18. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and
will not be deemed a part of this Agreement.
19. ENTIRETY OF AGREEMENT.
This Agreement, including any exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between
the City and Company, and any lawful assign and successor of Company, as to the matters
contained herein. Any prior or contemporaneous oral or written agreement is hereby
declared null and void to the extent in conflict with any provision of this Agreement.
Notwithstanding anything to the contrary herein, this Agreement may not be amended
Page 19
Tax Abatement Agreement between
City of Fort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, 1.ILC:
unless executed in writing by both parties and approved by the City Council of Lhe City in
an open meeting held in accordance with Chapter 551 of the Texas Government Code.
20, COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which will be
considered an original, but all of which will constitute one instrument.
The Required Improvements will not be financed by tax increment bonds. This
Agreement is subject to the rights of holders of outstanding; bonds of the City. The City
represents that, to the best of its knowledge, there are no bond covenants that prohibit
granting. a City tax abatement on the Land and improvements located on the Land.
22. CONFLICTS OF INTEREST.
Neither the Land nor any improvements thereon are owned or leased by any
member of the City Council, any member of the City Plan or Zoning Commission or any
member of the governing body of any taxing unit with jurisdiction in the Zone.
22. FORCE MAJEURE.
22.1 City and Company will exercise their best efforts to meet their respective
duties and obligations as set forth in this Agreement, but will not be held liable for any
delay or omission in performance due to force majeure or other causes beyond their
reasonable control, including, but not limited to, compliance with any government law,
ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts,
natural disasters, wars, riots, epidemics orpandemics, material or labor restrictions by any
governmental authority, transportation problems, restraints or prohibitions by any court,
board, department, commission, or agency of the United States or of any States, civil
disturbances, other national or regional emergencies, or any other similar cause not
enumerated herein but which is beyond the reasonable control of the Party whose
performance is affected (collectively "Force Majeure Event"). The performance of any
such obligation is suspended during the period of, and only to the extent of, such prevention
or hindrance, provided the affected Party provides notice of the Force Majeure Event, and
an explanation as to how it hinders the party's performance, as soon as reasonably possible,
as determined in the City's discretion, after the occurrence of the Force Majeure Event.
22.2 Notwithstanding anything to the contrary herein, it is specifically
understood and agreed that any failure to obtain adequate financing to complete any
Required Improvements by the Completion Deadline will not be deemed to be an event of
force majeure and that this Section 22 will not operate to extend the Completion Deadline
in such an event.
Page 20
'Pax Abatement Agreement between
City or Fort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LLC
23. ELECTRONIC SIGNATURES
This Agreement may be executed by electronic signature, which will be considered
as an original signature for all purposes and have the same Force and effect as an original
signature. For these purposes, "electronic signature" means electronically scanned and
transmitted versions (e.g. via pdf file or facsimile transmission) of an original signature, or
signatures electronically inserted via software such as Adobe Sign.
EXECUTED as of the last date indicated below:
[SIGNATURES IMMEDIATELY FOLLOW ON NEXT THREE (3) PAGES]
Page 21
Tax Abatcmcnt Agreement between
City of Fort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LLC
CITY OF FORT WORTH:
By: Jesus J. Chapa � 22, 2020 lB:22 CSl)
Jesus J. Chapa
Deputy City Manager
D Dec 22, 2020 ate: ___________ _
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all perfonnance and reporting
requirements.
�.-sa...-.
By: _________ _ Robert Slums Director, Economic Development
M&C 20-0495 (August 4, 2020)
STATE OF TEXAS §
COUNTY OF TARRANT §
ATTEST:
By:Mwj<;�
Mary Kayser
City Secretary
D Dec 23, 2020 ate: ___________ _
APPROVED AS TO FORM
AND LEGALITY
7r-wa&a
By: _________ _Tyler F. Wallach
Assistant City Attorney
BEFORE ME, the undersigned authority, on this day personally appeared Jesus J.
Chapa, Assistant City Managerofthe CITY OF FORT WORTH, a municipality organized
under the laws of the State of Texas, known to me to be the person and officer whose name
is subscribed to the foregoing instrument, and acknowledged to me that the same was the act
of the CITY OF FORT WORTH, that he was duly authorized to perfonn the and that he
executed the same as the act of the CITY OF FORT WORTH for the purposes and
consideration therein expressed and in the capacity therein stated.
'i'it""--· 9���� UNDER MY HAND AND SEAL OF OFFICE
�"'-AQVY , 2020.------
J4.-<Q���Q-_...,Notary Public in and for
���Notary's Printed Name
,u A l Agreement between
City orFort Worth. Aria International, Inc, and NP-OV Fort Wonh Project I, UC ,
"-' this 'U day of
ARIAT INTERNATIONAL, INC.
a California corporation:
By:
Pank ' to
CFO/COO
Date; D i`o- t '7'
STATE OF CALIFORNIA §
COUNTY OF CONTRA COSTA §
BEFORE ME, the undersigned authority, on this day personally appeared Pankai
u ta, CFO/COO, of ARIAT INTERNATIONAL, INC. known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that s/he
executed the same for the purposes and considoration therein expressed, in the capacity
therein stated and as the act and deed of ARIAT INTERNATIONAL, INC.
GIVEN UNDER MY HAND AND
Ce , 2D2R
Notary u rc in an for
the State of C
SEAL OF OFFICE this day of
e r nk a
Notary's Printed Nance
•; r; sx ,_,';'tihh'.Vr.YLSY.4.4ti4'htilh~w/.r� RVENDIA PATELl I
COMM.# 2209096
NOTARY PUBLIC A CALIFORNIA
CONTRA COSTA COUNTY
f Comm. Espies AUG. 6, 21)21
:': jly,tisay.�.tivh•r_ti•.-: v: r.ti�twf.v,•:.
Page 23
•Cax Abatement Agreement betwccn
City of Fait Werth, Avia Intu national, Inc, and NP-OV Fort Worth Project 1, LLC
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
NP-OV PORT WORTH PROJECT 1, LLC,
A Delaware limited liability company
By: NPD Management, LLC, its Manager
By:
Nathaniel I-Iagedorn
Manager
Date: I L - Z/ 20
STATIC OF MISSOURI §
COUNTY OF PLATTE §
BEFORE ME, the undersigned authority, on this day personally appeared Nathaniel
Hagedorn, Manager of NPD Management, LLC, the Manager of NP-OV FORT WORTH
PROJECT 1, LLC, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that s/he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated and as the act and deed of
said limited liability companies.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this
202 .
Notary Public in and for
the State of r ~U f
Notary's Printed Name
! day of
HEATHER R. PFENDER
Notary Public - Notary Sea]2023
Clay County - State of Mlssa
Commission Number 156335
lwly Commission Expires Feb 74,
Page 24
Tax Abatement Agreement between
City of Fort Worth, Aria International, Inc, and NP-OV Fort Worth Project 1, LLC
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
EXHIBIT A
Description and Map Depicting the Develovmentt Site
BEING a tract of land situated in the A. King Survey, Abstract No. 710, the W, Sample Survey,
Abstract No. 1207, the L. Butler Survey, Abstract No. 64, and the A. Robertson Survey, Abstract
No. 1553, Denton County, Texas and being part of that certain tract of land described by deed to
M.T. Cale Family Partnership Number 2, LP, recorded in Instrument Number 2009-102749,
Deed Records, Denton County, Texas, said tract of land being more particularly described by
metes and bounds as follows:
COMMENCING at a point in the northerly right-of-way line of F.M. 156 (variable width public
right-of-way), recorded in Instrument Number 2007-110923, Deed Records, Denton County,
Texas, the southeast corner of Lot 4, Block 1, Dave Addition, an addition to the City of Fort
Worth, according to the plat recorded in Instrument Number 2018-152, Plat Records,
Denton County, Texas, in a non -tangent curve to the left having a central angle of 15"36'59", a
radius of 2,964.79 feet, a chord bearing and distance of South 84136'55" West — 805.57 feet and
from which a found 1/2" iron rod with cap stamped "SPIARS ENG" bears South 80"58'17" East,
a distance of 0.90 feet;
With the north right-of-way line of said F.M.156 the following courses and distances:
With said non -tangent curve to the left in a southwesterly direction, an arc length of 808.07 feet
to a point for the most southerly southwest corner of said Lot 4, Block 1, Dave Addition, being in
centerline of Elizabeth Creek and the POINT OF BEGINNING of herein described tract of land
and the beginning of non -tangent curve to the left having a central angle of05°26'35", a radius
of 2,964.79 and a chord bearing and distance of South 74°05'09" West — 281.54 feet;
With said non -tangent curve to the left in a southwesterly direction, an arc length of 281.65 feet
to a point;
South 8 ]'12'39" West, a distance of 106.20 feet to a point for the beginning of a non -tangent
curve to the left having a central angle: of26°3757", a radius of 2,984,79 feet and a chord bearing
and distance of South 56°02' I8" West — 1,374.95 feet;
With said non -tangent curve to the left in a southwesterly direction, an arc length of 1,387.40 feet
to a point;
South 47016'39" East, a distance of 20,00 feet to a point for the beginning of a non -tangent
curve to the left having a central angle of 01'11'35", a radius of 2,964.79 feet and a chord
bearing and distance of South 42"07'32" West — 61.73 feet;
With said non -tangent curve to the left in a southwesterly direction, an arc length of 61.73 feet to
a point;
South 41 "31'45" West, a distance of 2,286.16 feet to a point for the beginning of a curve to the
left having central angle of 00°50'15", a radius of4,683.66 feet and a chord bearing and distance
of South 41 °06'37" West — 68.46 feet;
Page 25
Tax Abatement Agreement between
City of fort Worth, Aria[ International, Inc, And NP-OV Fort Worth Project I, LLC
With said curve to the left in a southwesterly direction, an arc length of 69.46 feet to a point in the
northerly right-of-way line of said F,M. 156;
THENCE North 47"5I110" West, departing the northerly right-of-way line of said F.M. 156,
crossing into said M.T. Cole Family Partnership No. 2, LP, a distance of 102.37 feet to a point;
THENCE North 41 000'36" West, a distance of 100.72 feet to a point;
TI-•IENCE North 47°5 P10" West, a distance of 888.32 feet to a point;
THENCE North 41 °3 P45" East, a distance of 1,171.00 feet to a point;
THENCE North 19"04'13" East, a distance of 117.80 feet to a point;
THENCE North 41031'45" East, a distance of 75.59 feet to a point;
THENCE. North 63'59'17" East, a distance of 117.80 feet to a point;
THENCE North 41°31'45" East, a distance of 888.30 feet to a point in the southerly line of a
certain tract of land described in deed to Forestar (USA) Real Estate Croup, Inc, recorded in
Instrument Number 2018-27156, Deed Records, Denton County, Texas and the approximate
centerline of Elizabeth Creek;
THENCE with the approximate centerline of said Elizabeth Creek and with the southerly line of
said to Forestar (USIA) Real Estate Group, Inc. tract the following courses and distances;
South 61 °35'42" East, a distance of 77.25 feet to a point;
South 75°35'06" East, a distance of 572.39 feet to a point;
North 77° 13'32" East, a distance of 487.75 feet to a point;
North 29'10'l8" East, a distance of 163.71 feet to a point;
South 80°48'42" East, a distance of 175.36 feet to a point;
North 67'02'13" East, a distance of406.53 feet to a point;
North 47137'34" East, a distance of 257.66 feet to a point;
North 36°41'52" East, a distance of 119.87 feet to a point;
North 80°04'54" East, a distance of 80.79 feet to a point;
South 5S"06'26" East, a distance of 248.69 feet to a point;
South 04°57'53" East, a distance of 134.41 feet to a point;
South 651153'00" East, a distance of 67.91 feet to the POINT OF BEGINNING and containing a
calculated area of 3,257,120 square feet or 74.773 acres of Land.
Pagc 26
Tax Abatement Agrec[ncnt between
City of Fort Worth, Ariat International, Inc, and NP-OV Fort Worth Project I, LLC
15201 Blue Mound Road Fort Worth, TX 76052
Copyright 2020 City of tort Worth. Unauthorized reproduction is a vioWion of applicable taws This products
Of far inforrnetional purposes and may nol have been prepared for of be sullaGte for legal, engrneemg, or
survey09 purposes. it does not represent on On-Ihe-ground Survey 8nd represents on the approximate
relative lacalion of property boundaries. The City of Fart Worth assumes no responsibility for Ihe accuracy of
said dais
Page 27
Tax Abatement Agreement between
City of Fort Worth, Ariat International, Inc, and NP-OV Fort Worth Project I, LLC
EXHIBIT B
TAX ABATEMENT APPLICATION
FORTWORTH..
Economic Development Incentive ,application
Dale t12812020
Project name Project Bay
Applicant Information Constiltant Information
Company
Ariat International Inc.
Company
Contact Name
Pankaj Gupta
Contact Name
Title
Chief Finanpial Orricar
Title
Address
3242 Whipple Rd.
Address
City, Slate ZIP
Union City, CA, 94567
City, State ZIP
Phone
510.477.7000
Phone
Email
pankaj.gupla3@ariat.cam
Email
Protect Descrintion
Ryan, LLC
Savannah Jerrnant
Senior Manager
6565 America's Parkway NE, Suite
200
Albuquarque.NM 87110
505.220.545$
savannah jerrnanceQryan.com
j'Pleasslyovraea generalsummwyof thopioleci proposed for consro'aralion olfncenlives.Aflach addfrionafsheets as rrecassmy.l
Ariat international, Inc 's Project Say slgnrftes a Strategic decision for the company to develop a regional distribution hub and
corporate office that will serve as its base for Its wesbem U.S operations
It will encompass approximately 540,000,000 In capital irves►ment related to the development of this facility. $5D,000,000 is related
to the new construction of the-800,1)D00 sf advanced distribution center and regional corporate office, and 540,0000,000 will he
attributed to the business personal property at the site,
Project Impact;
[In what way will the project benefit the surrounding area or serve as a catalyst for additional development andfor business
oppofturtWes For the local economy?]
Project Bay is a significant operational milestone for the company as it represents its First major expansion outside of California As
such, Ariat International, Inc. is committed to creating a strong, positive impact on the community The tacdillrs operators will
create approximately 450 new, full-time Jobs 75 will be Afiat-employed corporate office positions and the remaining 375 will be
warehouse employees from a third -party logistics provider to service the advanced distribution center operations
Financial Gap, Project Impediment, or Mt11tl•region Competition:
Page 28
Tax Abatement Agreement between
City of Fort Worth, Ariat International, Inc, and NP-OV Fort Worth Project I, LLC
10e4cribe any frnarx:ml gap or other chalien{ia that would pr*vent the profecf from being feasibfe mlhout utcenlives Please indicate
if rnullipfe re ens or *fates are under eon*iderahbn for the pmposedprojecf j
Ariat Intemational is currently engaged in an in-depth muhhstata site selection process to determine the optimal location for its new
distribution center and regional corporate office, known as Project Bay A rinafiat location in Goodyear, Arizona has been identified
and Is the primary eompelition to the Fort Wofth, TX location, The Arizona Commerce Authority ('ACA") and the City of Goodyear
have aggressively pursued Project Bay and have presented Mitt International's teadershlp with a competitive and comprehensive
incentive package In additior to the strong financial support being offered by the state and locality. Arizona has several other
attractive faclors includingForeign Trade Zone property tax exemption, inventory tag exemption; skilled and abundant labor farce
within 5-10 miles, proximity to major Customer markets in western U.S.; and reduced long -haul trUoking lime From strategic California
Business Expansion or Relocation
Conilnue to next section if not applicable
Form of l3u5iness CorEorati If other, describe
Publicly Traded No Ticker Symbol
Years in Operation 26 Parent Company
Industry Equestrian Footwear& Apparel NAILS
NlA
N/A
Lipizzaner, Inc.
424340
Expansion or Relocation Expansion Current Location , Union City. Qihfoinla
If Invastmont Fund (tacluding PE, VC, FamiyCHice, Instituttonal, Infrastructure Fund, etc.[;
Assets tinder Mgml.
NIA
Portfolio Size (Cosa
Describe the Company's Principal Business:
fPlease provide a general descrnpfra,i of fhe company'& current and proposed op&,alli markets served. etc.]
NIA
Ariat Intemational dosigns, manufactures,' and sells high quality and performance equestrian footwear and apparel online and
through third -party retallers. It has an extehsive lies of product that Includes English and W951erh hi hoots, work boots, and
casual footwear as well as a wide assortmant of Eagilsh apparel, Western apparel, work apparel, and accessories
nescfrbe the Company's Internatlonal Presence, if any!
[003cribe major kyeigrr office ioeatrons supply markets. customermarkels. etc.]
The campahy sells its products in the US and Canada through mare than 4,000 retallers such as Cavenders Soot City, Tractor
Supply, and Nordstrom, as well as through the catalogs of Owls. Stata Line Tack, and others Internationally. Arial Sall its products
rn the European markets, Australia, New2ealand, and Japan through itsdisiributors.
Describe the Company's Corporate Cltlzenshlp Practices:
[Cescrlbe any current or proposed anti prograrns, or commitments]
To highllpht l% CPrtthlitnn6nl to CCrnntUhity, Atli Inlernaborial pallrierS with S6Veral 4fgangalions aimed at Sooki I impact rind
empowerment Phili nlhroplo partners include Equus Foundation, Westom Sports Foundation. Folds of Honor, America's Gold Star
Families, Compton Junlor Equestrians, The Rider's Closet, Jared Allan's Humes for Wou nded Wardors, and Two Ten Footwear
Foundation. The company also promotes environmental sustainability through various initiatives.
Real Estate Development
Contintia to next Sertinn if nol applicable
Page 2 of 10
Page 29
Tax Abatement Agreement between
City of Fort Worth, Ariat International, Inc, and NP-OV Fort Worth Project 1, LLC
Describe III Development Tearn:
[Describe the Dovoloper's experience ano background. Please rnduds similar projects that you have constructed including the
project type and location. Attach additional sheets as necessary]
Project Partners:
[Architect, Engineer General Contractor, Key Consultants, Lender, etc j
Site Plan, Illustratlons, and Other Documents
Attach. 1) Silo Pfan, 2) Illustrations cr Renderings, 3) Environmenlat Documents, 4) Survey, 5) Legal Descfiption
Project Financial Statements:
Mach dotumenl$ cullining project 8aurcas F U&Bs, Capital $lack, and Pro Forma, if available.
If Hotel Project:
Total Numborof Keys NIA Total SP Meeting Spate NIA
Project Site Details
Project Site Address
18314 FM 156, Fort Worth, TX, 76052
Protect Sne Acreage
68.317
Existing or New
New Construction
Historic Deslgrallon($)
[Select)
Current Land Valuation
New Property for 20Z0
Improvements Valuation
New Property for 2020
Project Type
Industrial
If Other, Describe
NIA
Est. start Date
Q1 21J20
Est, Completion Bate
Qz 2021
Project Type
Industrial
If Other, Describe:
Anticipated 0wriershsp
4ease
Term of Lease (Years)
12 Years 13 Months
Current Zoning
K
Requested Zoning
NIA
Variances Required
No
Describe Variances,
N/A
Capital Improvement & Investment Details
Total Canslruplion Costs
$5D C00.040
Hard Construction Costs
$40,000,000
New Personal Property
S40,1](30,000
Historic Tax Credits
No
Annual R&D Expenses
NIA
Annual Patents
NIA
Value of Inventory
S231,000 COD
Value of Supplies
•Sts 00D 000 Annual 0l}eratin� Expense
Est. value or Imports
3375,000,20D
Est. Value of Exports
S6,500,000 IU S expwis)
Page 3 of 10
Page 34
,Pax Abatement Agreement between
City of Fort Worth, Ariat International, Inc, and NP-OV fort Worth Project 1, LLC
Employment and Job Creation
Currant Employment 0 Avg. Wage lot Current) N/A
New Employees (FTEs)
450
Avg, Wage rot New) $40.000
Description of Existing Positions and New Positions to be Added and Hiring Schedule:
Pfease uhlize lha 'Employment 01')"rat) to outline the number aaa aveiage annual salaries of oximiuq, as trell as new employees,
by jpb cob9poly (ex4rcupvo, prat"4iollal erc,), as .t•all as robing schedWl0161 nVU pusrYiprrg (i 0, hbT rrtaity r191y OMPtpYW of
Prooci Completiad. Year f, Year 3, and so loran,)
Other Incentive Requests
❑o you intend to pursue abatement of County taxes? Yes
Pa you Intend to pursue Slate Economic Development incentives Yes
Descrlptiou of Other Incentives:
In addition to pursuing ('.ily and County abatemants, the company has also filed a TX Enterprise Fund application with the
Governor's Ofrl60.
Confidentiality & Disclosures
State Law and City of Fort Worth practices and procedures guard the confidentiality of information and materials submitted In
appieation or negotiation for econemlc development Incentives (Section 552 15 r Confidentiality of Cbrfairr Economic Development
Negotiation information). Unlesss otherwise permitted by or coordinated with the applicant, all information will bet kept in strict
confidence except where required under applicable state or federal law City staff will coordinate with the applicant on information
disciosures as necessary to the incenlivo rovlew and approval process.
Disclosura of Financial Interest
The Company is not familiar with incentives or the related compliance with such incentives. As suoh, the Company is
using a third -party provider to assist in the pursuit or incentives under this application and related compliance. The provider
,r Mini. nn -- oMri !,-- — rh- I. —I -F ,nr Min- mn1—A
Form 1295 Certificate of Intarested Parties
State law (Chapter 2264. Texas Government Code) requires that all parties entering into an Incentive agreement with the City of
Fort Worth must completo and atibmit a Form 1295 Certificate of Interested Parties Certain exceptions apply City or Fort Worth
Economic Davelopment staff must receive a completed copy or the Form 1295 (which may he delivered by small as a PDF) or an
explanation of why Company is excepted from this requirement {to be confirmed by the Clty Attorney's Mice before any proposal
for inwritives may be presented to the City Council The Form 1295 can be completed electronically at:
http:rfwww.ethles stale tx,usiwhatsnewrelf_info_lorm1295.htm
Application Fee
Page 4 of 10
Page 31
Tax Abatement Agrecment betwccn
City of Fart Worth, Ariat Intemational, Inc, and NP-OV Fort Worth Project 1, LLC
The company is responsible for paying $5,000 as an appllcalion fee If the application Is withdrawn before the project is presented
to City Council In Executive Session, the fee is refunded. Upon presentation to City Council m Open 5assiar, $2,000 is
non-refundable and 1s applied to offset costs incurred by the Economic Development Department Upon approval by Cily Council.
the bnlance of $3,000 can be credited towards required building pelrnits, inspeCtlonS foes, replatting fees, and other costs of doing
business wdh the City related to the development. Any unused credit batance upon completion of the prefect wil! be refunded upon
request from the company
Certification
n behalf of the applicant, Feaffify1h@ information contained in this application, Including all attachments to be true and correct.
further certify that, on behalf of the applicant. I have read The currant Incentive Palley and all other pertinent City of Fort Worth
patipies and I agree with the guidomos and emoria State thereln.
SlVnature
112MO20
Date
Savannah Jormance _ Senior Manager Credits and Incentives
Printed Name Title
Pate 5 of 10
Page 32
Tax Abatement Agreement between
City or Fort Worth, Aria( International, Inc, and NF-OV Vort Worth Project I, LLC
Employment Information
I ,1,1111 proled Bay
NEW EMPLOYMENT
Assudatr:
Asseclatc
30
M50date
Aawvlhte
A,socktt
Lead u ervlsor
Admin
Manager
Sr Mana of
AnOI SUC4WtdhMor
Maintenance 1 ech
driver
HH Mara e..r
HR Co-ordinator/Recrulter
ONxior
Finamr
11:
PrOJC-Ct Mar Bg'QI
11 M,,N18er
11 Caordlnator/Admin
Operational Roles
Manager0radtorHoles
Total
0
so
50
150
Insert mm and columns to tobre above as necessary
Page 33
Tax Abatement Agrcemenl between
City of Fort Worth, Ariat Inlemational, Inc, and NP-QV Fort Wol4h Project 1, LLC
hrserl rows 10labre above as necessaly
Notes:
1. Instructlans: Please Complete the above labie using the most up-In-dAle values avadoble or
anticipated for the project
2. Function - primary employment categones for proposed newtobs to be added through the
project
3. FTE's - A Full Time Equivalent position is defined as a lob provided to one (1) Individual for at
least forty {40t hours per week. If futum hiring is to occur over multiple phases, please attach hiring
schedule indicating total FTF%by year
4. Hourly Rate - The applicable dollar rate per hour iYorked which compr�ses trio Anhual Salary for
each posrtran group indicated
S. Annual Salary -A cash payment or remunerallon wade to a full-tline ornployea, including paid
hmeoff, commissions, and non•diwretionary honuses ASalarydom not include any banefits,
such as healtll ir%uramce or retiramem cantnbutlons by the employer, reimbursements !or
errlplovee P?;penws, Or any dlaerelionary bonuse$.
S. Total Payroll - The total combined value of all Annual Saiarnas earned by each position group
Indiciated
Page 34
Tax Abatement Agreement between
City of fort Worth, Ariat International, Inc, and NP-OV Fort Worth Project 1, LLC
Page 35
Tax Abatement Agreement between
City of Fort Worth, Ariat International, ]no, and NP-OV Fort Worth Project 1, LLC
Page 36
Tax Abatement Agrccmcnf bct%vccn
City of Fort Worth, Ariat Intcmational, Inc, and NP-Ov Fort Worth Prajeet [, LLC
EXHIBIT C
LEASE
Page 37
TaK Abatement Agreement between
City of Fort Worth, Ariat International, Inc, and NP-OV Fort Worth Project 1, LLC
INDUSTRIAL LEASE
THIS INDUSTRIAL LEASE (this "Lease") is made on December 31, 2019 (the "Effective
Date"), by and between NP-OV Fort Worth Project 1, LLC, a Delaware limited liability company
("Landlord"), and Ariat International, Inc., a California corporation ("Tenant").
WITNESSETII:
1, PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the premises
(the "Premises") shown on the floor plain attached hereto and made a part hereof as Exhibit A-1
(the "Floor Plan"), which Premises will contain approximately one million sixty-nine thousand
eight hundred eighteen (1,069,818) rentable square feet and is a part of that certain to -be -
constructed building commonly referred to as "Ft. Worth Intermodal Logistics Center, Building
li" and containing approximately one million sixty-nine thousand eight hundred eighteen
(1,069,818) rentable square feet (the "Buildint;") located on a portion of the real property described
on Exhibit A-2 attached hereto and made a part hereof (the "Land"), having an address of 18314
FM 156, Fort Worth, Texas 76052. The portion of the Land referenced above, and the
improvements Iocated on said portion of the Land, including the Building and Common Areas, are
depicted on the site plan set forth at Exhibit A-3 attached hereto and made a part hereof (the "Site
Plan"), and are collectively referred to as the "Property". The Property is located within a private
logistics park and development commonly referred to as the "Ft. Worth Intermodal Logistics
Center" (the "Development"), which Development is generally shown and depicted at Exhibit A-
4, attached hereto and made a part hereof, for illustrative purposes only. Landlord shall not revise,
amend, alter or change the Site Plan without Tenant's written approval, which approval shall not
be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, (i) either
Landlord or 'tenant shall have the right, at the measuring party's cost and prior to the
Commencement Date (as defined herein below), to measure the Premises, which measurement
shall be performed by a licensed architect that is reasonably acceptable to the other party, using
the American National Standard method for measuring area in buildings, as described in the
pamphlet entitled "Industrial Buildings: Standard Methods of Measurement" (ANSI/SOMA
L65.2-2012) published by the Building Owners and Managers Association, (ii) Landlord and
Tenant shall mutually and reasonably agree on such final measurement of rentable square feet and
indicate the same in writing (the "Final Measurement"), and (iii) said Final Measurement shall be
used herein for all purposes related to the square footage of the Premises. Notwithstanding the
foregoing, Tenant shall not be required to pay Base Rent in connection with that certain 208,505
rentable square foot portion of the Premises shown on Exhibit A-1 as the "Initial Unused Area"
until the 161h day of the twenty-fourth (24'h) month following the Commencement Date.
Notwithstanding the foregoing, Tenant shall nonetheless be required to pay all Additional Rent in
connection with the Initial Unused Area beginning on the Commencement Tate. Landlord hereby
covenants that, during the Lease Term, Landlord will not develop within the Development any
building that (i) is not of at least similar quality to the Building, and (ii) is not for uses similar to
that of the Permitted Use (defined below), or is not for manufacturing and/or intermodai support
services.
12923849 v I
2. TERM; EXTENSIONS
a. The term of this Lease shall begin on the date (the "Commencement Date") that is
the last to occur of; (i) July 15, 2020 (provided, however, Tenant, in Tenant's sole discretion, shall
have the right to extend such date by up to three (3) months to no later than October 15, 2020, by
providing Landlord with written notice no later than March 1, 2020 of such extended date selected
by Tenant) (the "Target Commencement Date"), and (ii) the date when the Improvements (as
defined in Section 6 below) are Substantially Complete, and shall expire at midnight on the last
day of the month which is one hundred fifty-three (153) months after the Commencement Date.
The initial term of this Lease and any extension of the initial term shall herein be the "Term" or
the "Lease "term." "Substantial Completion" and "Substantially Completes' (or any variation
thereof) shall mean the date when the Improvements are substantially completed as required by
this Lease, with the exception of minor "punch list items" (as that term is commonly used in the
construction industry) and either a temporary or final certificate of occupancy is issued (which
temporary or final certificate of occupancy must permit Tenant to operate its business in the
Premises without restriction). Landlord agrees that, on or prior to Substantial Completion,
Landlord shall conduct a walk-through of the Property with Tenant; provided, that Tenant shall
make itself available for said walls -through upon five (5) business days' notice from Landlord. A
certificate of occupancy for the Premises, issued by the appropriate governmental authority, shall
be evidence of Substantial Completion. If such certificate of occupancy or the equivalent is not
required and routinely issued by a governmental authority, then the execution and delivery of an
AIA Document 0-704 Certificate of Substantial Completion with respect to the Improvements
(the "Certificate of Substantial Completion") shall be evidence of Substantial Completion.
Tenant's execution of the Certificate of Substantial Completion will not be required for achieving
Substantial Completion. If a temporary certificate of occupancy is obtained, Landlord agrees to
obtain the permanent certificate ofoccupancy before the expiration of the temporary certificate of
occupancy, as such temporary certificate of occupancy may be extended by the applicable
governmental authority, and Landlord agrees to obtain a permanent certificate of occupancy when
it becomes available, Notwithstanding anything in this Lease to the contrary, in the event the
Commencement Date has failed to occur by March 31, 2021, then Tenant shall have the right to
terminate this Lease by providing Landlord with written notice of such termination.
b. So long as this Lease is in full force and effect and a Tenant Default (as defined in
Section 19.a below) has not occurred, either at the time Tenant exercises the option provided in
this Section 2.b. or at the commencement of an Extended Term, 'tenant shall have the option to
renew this Lease for three (3) periods of five (5) years each (each an "Extended Term"). Tenant
may exercise each such option to extend by giving written notice to landlord of its intention to
renew for an Extended Term (a "Renewal Notice") (i) with respect to the first Extended Term, not
more than eighteen (1 S) months nor less than nine (9) months' prior to the expiration of the initial
Lease Term, and (ii) with respect to the second and third Extended Terms, not more than twelve
(12) months nor less than six (6) months' prior to the expiration of the prior Extended Term.
Renewal for an Extended Term shall be upon the samc terms and conditions as contained in this
Lease except that: (x) the Base Dent payable during an Extended Term shall be, with respect to the
first Extended Term, as set forth on Exhibit B hereto, and with respect to the second and third
Extended Terms, determined as set forth in Section 2.c. below, and (y) Landlord shall have no
obligations to construct or provide any improvements to the Premises or provide any allowances
to Tenant, except that Landlord shall provide Tenant, uponmuest by Tenant and in Tenant's sole
2
12923849 v I
discretion, with an allowance of up toupon the commencement of the first Extended
Term for the purposes of updating / refreshing the Premises; provided, that said allowance shall
be taken into account for the purposes of determining the Fair Market Value.
C. Base Rent during the second and third Extended 'Perms shall be equal to "Fair
Market Value". For the purposes ofthis Lease, "Fair Market Value" shall mean the annual amount
per rentable square foot that a willing, comparable, non -equity tenant with a creditworthiness
comparable to Tenant would pay, and a willing landlord of a comparable property in the
marketplace would accept at "arms -length" given appropriate consideration of rental rates per
rentable square foot, the type of escalation clauses (including, but without limitation, operating
expenses, real estate taxes), length of lease term, size and location of premises being leased, the
fact that the premises are used primarily for warehouse/distribution center space, and any other
generally applicable terms and conditions of tenancy for the Premises. For the purposes of this
Section 2.c., "comparable property" shall be located within the same general geographic location
as the Premises. All other terms and conditions of the Lease applicable to the payment of Rent,
including the payment of Additional (tent, shall apply during each Extended Term. Landlord shall,
within fifteen (15) days after receipt of the Renewal Notice, deliver to Tenant a written
determination of the Fair Market Value, as determined by Landlord, using the criteria set forth
above. Tenant shall thereafter have fifteen (15) days to notify Landlord in writing of its acceptance
of Landlord's determination of the Fair Market Value, or to deliver to Landlord its own
determination of the Fair Market Value, in which case Landlord and Tenant shall have an
additional fifteen (15) days to negotiate in good faith a Fair Market Value acceptable to both
Landlord and Tenant; provided, however, that in the event Landlord and Tenant are unable to agree
on the Fair Market Value during such additional fifteen (15) day period, then each party shall make
a separate determination of the Fair Market Value within five (5) business days thereafter, and
such determinations shall be submitted to arbitration in accordance with the provisions below: (i)
Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate
broker who shall have been active over the five (5) year period ending on the date of such
appointment in the leasing of industrial office properties in the vicinity of the Premises. The
determination of the arbitrators shall be limited solely to the issue as to whether Landlord's or
Tenant's submitted Fair Market Value is the closest to the actual Fair Market Value as determined
by the arbitrators, taking into account the requirements of this Section. Each such arbitrator shall
be appointed within fifteen (15) days after the end of the 15-day period; (ii) the two arbitrators so
appointed shall within ten (10) days of the date of the appointment of the last appointed arbitrator
agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth
hereiriabove for qualification of the initial two arbitrators; (iii) the three arbitrators shall within
thirty (30) days of the appointment of the third arbitrator reach a decision as to whether the parties
shall use Landlord's or Tenant's submitted Fair Market Value, and shall notify Landlord and
Tenant thereof, (iv) the decision of the majority of the three arbitrators shall be binding upon
Landlord and Tenant; (v) if either Landlord or Tenant fails to appoint an arbitrator within the 15-
day period, the arbitrator appointed by one of them shall reach a decision, notify Landlord or
Tenant thereof, and such arbitrator's decision shall be binding upon Landlord Or Tenant; (vi) if the
two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an
arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the
matter to be decided shall be forthwith submitted to arbitration under the provisions of the
American Arbitration Association, but subject to the instruction set forth in this Section; (vii) each
party shall be responsible for the cost of the arbitrator they appoint, and landlord or Tenant shall
3
12923849 v I
equally share the cost of the third arbitrator and all other costs of the arbitration proceeding; and
(viii) once Landlord and Tenant arrive at an agreement as to the Fair Market Value as herein
provided for, then 'Tenant agrees to execute and return to Landlord, within ten (10) business days
after receipt thereof, a written extension form prepared by Landlord for attachment to this Lease
memorializing the terms of such extension.
3. RENTAL
a. Tenant agrees to pay, on the first day of each month following the Commencement
Date (subject to the free rent period set forth at Fxhibit B), to Landlord the base rental ("Base
Rent"), which Base Rent shall be determined by multiplying the rentable square footage of the
Premises, as determined by the Final Measurement, if any, by the applicable lease rates set forth
in the schedule attached hereto as Exhibit B, and dividing the product thereof by twelve (12).
Exhibit B sets forth the estimated monthly Base Rent; provided, that the same shall be updated
upon completion of the Final Measurement, if any, and memorialized in writing by Landlord and
Tenant.
b. In addition to the Base Rent, beginning on the Commencement Date, Tenant shall
pay monthly, as Additional Rent, Tenant's Proportionate Share (as defined in Section 3.c. below)
of Operating Expenses (as defined in Section 9.b. below) and Taxes (as defined in Section 5.a.i.
below) in accordance with this Lease. "Additional Rent" hereunder shall refer to all amounts due
to Landlord from Tenant under this Lease, except Base Rent.
C. "Tenant's Proportionate Share" shall be a fraction, the numerator of which is the
rentable square footage of the Premises and the denominator of which is the rentable square
footage of the Building, including the rentable square footage of the Premises. Landlord and
Tenant estimate that, on the Effective Date, Tenant's Proportionate Share equals 100.00%.
d. The Base Rent and the Additional Rent shall be referred to herein collectively as
the "Rent". All Rent shall be paid on the first (151) day of each month, in advance, without set -oft"
or deduction except as specifically set forth in this Lease. Landlord shall not be required to provide
Tenant with any demand, invoice, or notice for payment. Rent shall be sent to the following
address: NP-QV Fort Worth Project 1, LLC, 4825 NW 41" Street, Ste. 500, Riverside, Missouri
64150, Attn: Nathaniel Hagedorn. Tenant shall have the option to pay Rent by electronic transfer
and Landlord agrees to provide its bank information to Tenant within live (5) business days after
any request by Tenant to enable Tenant to pay Rent by electronic transfer. Landlord may change
the address for Rent payments by delivering written notice to Tenant. If the Commencement Date
occurs on any day other than the first (1 ") day of a month, the Rent for the first partial month in
which Rent is payable (per the Base Rent Schedule above) shall be prorated on a daily basis.
C. Tenant will pay, as Additional Rent, to Landlord all Rent Tax (as defined in this
Section below), if any, due in connection with this Lease or the payment of Rent hereunder, which
Rent Tax will be paid by Tenant to Landlord with each payment of Rent Made by Tenant to
Landlord under this Lease. "Rent Tax" means any tax or excise on rents, all other sums and charges
required to be paid by Tenant under this Lease, and any gross receipts tax, commercial activity tax
transaction privilege tax or other tax, however described, which is levied or assessed by the United
States of America, or the state, city, municipality, or political subdivision in which the Premises is
4
12923849 v 1
located, against Landlord with respect to the Base Rent, Additional Rent, or other charges payable
under this Lease, or as a result of Landlord's receipt of such rents or other charges accruing under
this Lease; provided, however, those taxes set forth in Section 5.a.i.(I), (2) and (3) shall be
specifically excluded.
f. In addition to any of Landlord's other remedies under this Lease, if any payment
of Rent, or any other amount due to Landlord under this Lease, is not received by Landlord within
ten (10) days after Landlord delivers written notice to Tenant that Tenant has failed to make such
payment, a service charge of three (3%) percent per month on all past due amounts (the "Service
Charge") shall become due and payable in addition to the regular Rent owed under this Lease. If
Tenant fails to make any payment required under this Lease on its due date three (3) times during
any eighteen (18) month period, or if Tenant is more than ten (10) days late on any payment
required under this Lease, then the Service Charge shall be added to the next payment of Rent
without requiring; notice and opportunity to cure.
g. Upon written request from Landlord, Tenant shall, within fifteen (15) days
following Landlord's request, provide to Landlord a statement, certified by Tenant, of Tenant's
most recently internally prepared net worth, total assets, and operating cash flow; provided,
however, if such financial statements have been (without obligation) audited, reviewed and/or
prepared by a major local or national certified public accounting firm then the statement shall be
certified by the same. Landlord shall not be permitted to request copies of such financial
statements more often that once annually. All statements shall be kept strictly confidential by
Landlord.
4. INTENTIONALLY OMITTED
5. REAL ESTATE TAXES
a. As used herein, the following terms wherever initially capitalized shall have the
following meanings:
i. "Taxes" shall mean all real estate taxes and assessments (general or special),
real estate rental receipt or gross receipt taxes levied with respect to the Premises and the
Common Areas of the Property, or any other amount levied against Landlord in substitution
for, or in lieu of, any tax which would otherwise constitute a real estate tax or a specific
tax on rentals from all or part of the Premises and Common Areas of the Property, plus the
reasonable costs, including attorneys' and appraisers' fees, of any negotiation, contests or
appeal pursued by Landlord in an effort to reduce the taxes, or the assessment on which
any of the foregoing taxes are based. Taxes shall specifically exclude all: (1) federal, state,
and local income taxes, (2) franchise, gift, transfer, excise, capital stock, estate, succession,
and inheritance taxes, and (3) penalties or interest for late payment of Taxes (unless such
late payment is caused by Tenant's failure to timely pay Tenant's Proportionate Share of
Taxes).
ii. "Tax Year" shall mean each twelve (12) month period established as the
real estate tax year by the taxing authorities where the Property is located.
12923849 v l
b. Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate Share of
all Taxes payable during each Tax Year (or part thereof) occurring during the Lease Term. Tenant
shall pay to Landlord its Proportionate Share of Taxes in equal monthly payments, in advance,
beginning on the Commencement Date, based upon estimated annual Taxes (as estimated by
Landlord), but subject to adjustment after the end of each Tax Year on the basis of the actual Taxes
incurred, Any overpayment will be credited against future monthly obligations for Taxes or shall
be refunded to Tenant, at Landlord's option. Any underpayment by Tenant shall be paid by Tenant
to Landlord within thirty (30) days alter Landlord delivers to Tenant a written statement
reconciling the amount actually collected from Tenant against Tenant's Proportionate Share of
actual Taxes for the Tax Year. Landlord shall have the right to bill for Taxes after receipt of the
tax bills or upon the expiration or sooner termination of this Lease. Notwithstanding anything to
the contrary in this Lease, Landlord shall pay all Taxes prior to delinquency.
C. Tenant shall be liable for all taxes assessed against and levied upon Tenant's trade
fixtures, furnishings, equipment, and all other personal property located at the Premises.
d. Landlord shall have the obligation to use commercially reasonable efforts on an
annual basis to contest by appropriate legal proceedings, the amount or validity of any Taxes in
the event such Taxes are not consistent with the fair market value of the Property in Landlord's
reasonable discretion, Additionally, Tenant shall have the right to contest by appropriate legal
proceedings, without cost or expense to Landlord, the amount or validity of any Taxes, but Tenant
shall not be relieved of its obligations to pay such Taxes as required by this Lease. Tenant shall
be entitled to any refund of any such Taxes and penalties or interest thereon which have been paid
by Tenant, or paid by Landlord and for which Landlord has been fully reimbursed with interest.
Any proceeding referred to in this Section many be brought by Tenant in the name of Tenant or
Landlord, but Landlord shall not be subjected to any liability for the payment of any costs or
expenses in connection with any proceeding brought by Tenant, and Tenant covenants to
indemnify and save harmless Landlord from any such costs or expenses. At Tenant's request,
Landlord agrees to sign any petition or protest and reasonably to cooperate in such other acts as
may be required to enable Tenant to engage in any proceedings referred to in this Section, provided
Landlord does not thereby incur any material expense or obligation.
6. COMPLETION; EARLY ACCESS
a. Landlord shall construct in a good and workmanlike manner, and in conformity
with the terms and conditions of this Lease and all Applicable Laws (as defined in Section 15
below), certain improvements as specifically set forth in this Section 6. For the purposes of this
Lease, Base Building Improvements and Tenant Improvements shall be referred to herein
collectively as the "Improvements":
i. The "Base Building Improvements", as set forth on Exhibit C-1 hereto, at
Landlord's sole cost and expense, and without deduction from the Allowance or Additional
Allowance (as each are defined below).
ii. In addition to Base Building Improvements, Landlord shall additionally
perform and complete the installation o'fthose additional improvements to the Premises set
forth on Exhibit C-2 hereto (the "Tenant Improvements"). 'Within twenty (20) days after
12923849 v1
the Effective Date, Landlord and Tenant shall agree in writing, which agreement shall not
be unreasonably withheld, conditioned or delayed, on an established set of project
development milestones and a corresponding timeframe therefore, which milestones shall
include, without limitation, Tenant providing to Landlord detailed plans and specifications
for the Tenant Improvements (the "Tenant Plans"), which Tenant Plans shall be consistent
with Exhibit C-2; provided, that in any event Tenant shall deliver to Landlord the Tenant
Plans no later than thirty (30) days following the Effective Date, unless mutually extended
by Landlord and Tenant. Landlord shall either approve or give comments as to the Tenant
Plans within five (5) days after receiving the Tenant Plans from Tenant, which approval
shall not be unreasonably withheld, conditioned, or delayed. If Landlord provides
comments as to the Tenant Plans, Tenant shall have five (5) days to resubmit revised Tenant
Plans to Landlord, whereupon Landlord shall have five (5) days to approve or provide
comments, which process shall continue until such time as Landlord and 'tenant agree upon
final Tenant Plans. Upon mutual approval of the Tenant Plans, or parts thereof, by each of
Landlord and Tenant, Landlord shall commence construction of the Tenant Improvements
in accordance with the final, mutually -approved Tenant Plans. In connection with the
Tenant Plans, and within thirty (30) days following the mutual acceptance of the Tenant
Plans by Landlord and Tenant, Landlord and Tenant shall mutually agree in writing to the
cost of such Tenant Plans (the "Tenant Plans Budget°') and document same, and Landlord
shall construct the Tenant Improvements consistent with the Tenant Plans and the Tenant
Plans Budget, as the same may be increased or decreased upon mutual agreement of
Landlord and Tenant; provided, however, the Tenant Plans Budget shall not exceed the
Allowance unless approved by Tenant in writing in Tenant's sole discretion; and further
provided that agreement of Tenant to Tenant Plans requiring a Tenant Plans Budget in
excess of the Allowance shall be deemed the approval of the Tenant Plan Budget in excess
of the Allowance. Notwithstanding that Landlord shall perform, or cause to be performed,
the Tenant Improvements, any and all costs and expenses of any kind or nature related to
the design, construction, and/or installation of the Tenant Improvements (collectively, the
"Tenant Costs") shall be the responsibility of, and shall be paid by, Tenant, up to an amount
that does not exceed the Tenant Plans Budget, as the same may be increased or decreased
upon the mutual agreement of Landlord and Tenant or as otherwise regoired by this Lease,
and subject to Section 6.b. below. To the extent that Tenant requests any changes or
revisions to the Tenant Plans following the mutual agreement thereto by Landlord and
Tenant, and Landlord approves such changes or revisions, any increased costs related
thereto shall be deemed to be added to the Tenant Plans Budget, while any decreased costs
related thereto shall be deemed to be deducted from the Tenant Plans Budget. An estimated
schedule in connection with the development of the Building and the Premises is attached
hereto as Exhibit D; provided that, to the extent that any dates set forth in said schedule
differ from those set forth in the body of this Lease, the dates set forth in the body of this
Lease shall be controlling.
b. Landlord shall provide Tenant with a tenant improvement allowance in the amount
equal to 0 per rentable square foot of the Premises, i.e. approximately , subject
to revision based upon the Final Measurement (the "Allowance"), which Allowance shall be
credited towards the Tenant Costs. To the extent that the Tenant Costs do not exceed the
Allowance, Landlord will, within thirty (30) days following the Commencement Date, pay to
Tenant any portion of the Allowance remaining after all Tenant Costs have been deducted
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therefroni. To the extent that the Tenant Costs exceed the Allowance. Landlord shall, at Tenant's
election, provide an "Additional Allowance", not to exceed- per rentable square foot of the
Premises, which Additional Allowance shall be credited towards tlhe Tenant Costs. ravided that
in connection with anv Additional Allowance. the initial Base Rent rate.
s nan be increaser in all almonnl equal t0 the aenta*ieA
IOOI AMUL01M AHOwanCe
incurred y Landlord hereunder, multiplied by provided fiuther, However,
Tenant shall have the right, in Tenant's discretioM"I*
itioual Allowance, in which
event Landlord shall have no obligation therefor, and the Base Rent shall not be increased as
provided above. Thereafter, the Base Rent rate, as adjusted by this Section 6.b., shall increase at a
rate o at such times as the Base Rent would otherwise increase as set forth
on Exhibit B hereto. By way of example, if the area of the Premises is equal to exactly 1.069,818
rentable square feet, and the Tennant Costs exceed the Allowance by (which represents
an overage of exacd per rentable square foot of the Premises then the initial Base Rent
rate hereunder er
Wrenia,obblesuare oot. urt her, t e ase ent rate won ten increase yper rentable square foot of the Premises, and again incieasngomenniversary thereafter. With respect to any Tenant Costs exceeding the sum o t ie
Allowance and the Additional Allowance, if applicable, and which were approved as part of the
Tenant Plans Budget, Tenant shall be directly responsible for the payment to Landlord of any such
costs within thirty (30) days following the Commencement Date and provided Tenant has received
written request therefore (which shall include reasonable evidence of such overage). Failure of
Tenant to make any payments required tuider this Section 6.b. shall result iu interest accruing on
said amotunts at the Maximiun Rate as of the date said payments are due. Notwithstanding anything
in this Lease to the contrary, Tenant shall not be responsible for any Tenant Costs in excess of the
Tenant Plans Budget unless Tenant approves in writing, 'lit Tenant's reasonable discretion
following no less than ten (10) days written notice fioni Landlord requesting the same (which
request shall include reasonable supporting documentation for such request), any increase iu the
Tenant Plans Budget, or the Tenant Plaits Budget is increased as a result of illy changes or
revisions to the Tenant Plans requested by Tenant in writing.
c, Landlord agrees that it shall not charge a constmetlon management fee in
connection with the Base Building hmprovements. Landlord and Tenant a ree that Landlord shall
be permitted to charge a construction management fee, not to exceed an
the portion of the Tenant Improvements fiuided by the Allowance. Additionally, to the extent that
the Additional Allowance utilized b Tenant hereunder Wi connection with the Tenant
hnprovemeuts Landlord shall provide to Tenant a proposal for a
construction management PE
e to e c arged in connection with same. If Tenant accepts said
ro osal, Landlord shall be petinitted to charge a construction niana ement fee, not to exceed
on all portions of the Additional Allowance in excess of If Tenant rejects
sal proposal, Tenant shall self-perfor tin said option of the Tenant Improvements to be constiucted
using Additional Allowance lit excess of , which construction by Tenant shall be
consistent with the provision of Section 7.. e ow_
d. If the Improvements and Premises are not Substantially Complete on the Target
Commencement Date, the obligations of Terhant shall not be affected except that the
Coriunencei ient Date slid the expiration of the Lease Term, shall be postponed one day for each
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12923849 vl
day Substantial Completion is delayed until the Premises are Substantially Complete, If, subject
to Tenant Delay and/or Force Majeure Event(s), the Improvements and Premises are not
Substantially Completed within thirty (30) days after the Target Commencement Date, as the same
may be extended by Tenant (the "Extended Completion Date"), subject to Tenant Delay or any
Force Majeure Event(s), the Base Rent (when due following the free Base Rent period set forth
herein) shall be credited by one (1) day for each day after the Extended Completion Date that the
Improvements arc not Substantially Completed, Further, if, subject to Tenant Delay and/or Force
Majeure Event(s), the Improvements and Premises are not Substantially Complete within sixty
(60) days following the Extended Completion Date, the foregoing Base Rent credit shall thereafter
increase to two (2) days for each day after said 60-day period that the Improvements are not
Substantially Completed. Further, if, subject to Tenant Delay and/or Force Majeure Event(s), the
Improvements and Premises are not Substantially Complete within one hundred twenty (120) days
following the Extended Completion Date, the foregoing Base Rent credit shall thereafter increase
to three (3) days for each day after said 120-day period that the Improvements are not Substantially
Completed. Additionally, Landlord covenants and agrees that pail of the Development shall
include unrestricted access to, and ingress and egress from, the generally adjacent BNSF
intermodal facility as more particularly shown and depicted on Exhibit A-4 (as the same may be
relocated so long as direct access from the Development is provided to said BNSF intermodal
facility, the "Intermodal Facility Direct Access"), and in the event such unrestricted Intermodal
Facility Direct Access is not available as of January 1, 2021, then, as Tenant's sole remedy
hereunder in connection with any lack of said unrestricted Intermodal Facility Direct Access, the
Base Rent shall be credited by one-half (1/2) day for each day after January 1, 2021 that such
unrestricted Intermodal Facility Direct Access is not available to Tenant; provided, that (i) in no
event shall such Ease Rent credits continue to accrue beyond December 31, 2021, and (ii) in no
event shall the total, aggregate Basc Rent credits accruing to Tenant under this Section 6.d. in
connection with the lack of Intermodal Facility Direct Access excee , In connection
with said Intermodal Facility Direct Access, Landlord, and its affiliate, NorthPoint Holdings, LLC,
each covenant that they: (i) will not take any actions to impair the opening and continued operation
of the Intermodal Facility Direct Access, and (ii) will promptly enforce any and all rights held
thereby in connection with the opening and operation of the intermodal Facility Direct Access.
e. "Tenant Delay" means any delay in the completion of Landlord's obligations under
this Lease resulting from Tenant's failure to timely perform any of its obligations under this Lease.
If a Tenant Delay results in a material impact of Landlord's ability to meet any of Landlord's
obligations under this Lease, then the deadline for Landlord to complete such obligation shall be
extended without penalty for the period of the delay caused by Tenant, and Tenant shall be
responsible for any reasonable, customary and actual additional costs incurred by Landlord as a
result of the Tenant Delay. In the event Landlord al Icgcs a Tenant Delay, then Landlord shall notify
Tenant in writing on or before the last day of each calendar month of any Tenant Delay occurring
in such calendar month and Tenant shall have five (5) business days following receipt of the same
to dispute the same.
f. Tenant shall, beginning on March 15, 2020, and continuing; until the
Commencement Cate, subject to any and all Applicable Laws, have the right to enter the
warehouse portion of the Premises solely for the purposes of installing within the Premises racking,
fixtures, furniture, equipment, wiring, telecommunications, and personal property, as well as the
move -in of inventory, necessary for Tenant to open for business on the Commencement Date.
9
12923849 vt
During any period which Tenant enters, occupies, or uses the Premises prior to the Commencement
Date, as permitted by this Section 6.f., Tenant shall (i) comply with all obligations of Tenant under
this [ease as i f the Commencement Date had occurred, except that Tenant shall not be required to
pay any Rent hereunder during such period, and (ii) use reasonable efforts to avoid interfering with
Landlord's completion of the Improvements. To the extent Tenant does interfere with Landlord's
completion of the Improvements, and such interference causes a delay in the completion of the
Improvements, such delay will be a Tenant Delay hereunder, subject to the terms of Section 6.c.
above.
g. Landlord represents and warrants to Tenant, as of the Commencement Date, that
(i) all Improvements have been constructed in a good and workmanlike manner, in conformity
with all Applicable Laws, and in compliance with the teams and conditions of this Lease, (ii) the
Property, including, without limitation, the Building, the Premises and the Common Areas
(including, without limitation, the foundations, roof and structural portions of the Building and the
parking lot(s)) are in good condition, working order and repair; (iii) all building and infrastructure
systems and services including, without limitation, main electrical, plumbing, mechanical, HVAC
including, without limitation, the central HVAC units and the main air ducts therefrom, fire/life
safety including, without limitation, the risers and fire pumps necessary for building sprinkler
systems, and elevator(s) (if any) are in good working order and repair and in compliancc with
applicable building code standards and Applicable Laws; (iv) the Building is structurally sound
and water tight; (v) all utilities are available at the exterior face of the walls of the Building and
are in good condition and working order; and (vi) the Premises is A.DA compliant. Landlord
warrants the construction of the Improvements for a period of one (1) year following the
Commencement Date; provided, that thereafter Tenant shall have the benefit of any manufacturer
warranties held by Landlord.
7. REPAIRS AND MAINTENANCE OF PREMISES AND ALTERATIONS
a, Except for any repairs or replacements caused by the negligence or willful
misconduct of Tenant, or Tenant's members, shareholders, officers, managers, agents, employees,
contractors, invitees, subtenants, or any person on the Premises by reason of the Tenant's use or
occupancy of the Premises (each a "Tenant Party"), the expense of which shall be paid by Tenant,
Landlord, at its cost and expense, and not as part of Operating Expenses (except as otherwise
specifically stated herein) shall keep, in good repair and working condition and in compliance with
all Applicable Laws (subject to reimbursement as set forth in Section 9 hereof), the following: (i)
the roof (provided that maintenance and repair, but not capital costs, of the roof may be charged
as Operating Expenses), (ii) foundation, (iii) structure of the Building and Premises (including
exterior maintenance such as caulking and painting, however, such maintenance costs shall be
reimbursed as Operating Expenses), (iv) foundation beneath the floor slab, (v) subfloors, (vi)
structural components (including but not limited to interior load bearing walls and concrete tilt
walls, columns, beams and joists), (vii) electrical systems located outside the Premises up to and
including the transformer serving the Premises, (viii) the main sprinkler riser serving the Building
(provided that routine maintenance and repair of the main sprinkler riser shall be reimbursable as
an Operating Expense, and all portions of the sprinkler system serving the Premises other than the
main sprinkler riser shall be the obligation of Tenant to maintain, repair, and replace pursuant to
Section 7.d. below), and (ix) sewer and water main lines up to the point of entry into the Premises.
Landlord shall additionally repair all latent Building defects. Landlord at its cost and expense (but
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12923849 v1
subject to reimbursement as Operating Expenses) shall keep the sidewalks, parking areas,
driveways and accessways (including, without limitation, the "Driveway" and the "Shared
Driveway" each as depicted on Exhibits A-3 and A-4), and the Common Areas (as defined in
Section 9.a. below) in good repair and order.
b. If any repairs required to be made by Landlord are not begun within thirty (30) days
after receipt of written notice by Landlord from Tenant, or promptly in case of emergency, and
then diligently pursued to completion, Tenant may, at Landlord's cost, make such repairs without
liability to Landlord for loss or damage which may result to Landlord's property, except to the
extent caused by the negligence or willful misconduct of Tenant or any Tenant Party, and Landlord
shall pay to Tenant upon written demand the reasonable cost of such repairs, plus interest at the
Maximum Rate (as defined in Section 40 below) accruing from the date that is thirty (30) days
after receipt of such written demand until paid by Landlord and if such costs are not paid within
said thirty (30) day period then Tenant shall have the right to offset the same against the next due
[lase Rent until the same has been fully credited; provided, that in no event may Tenant offset
greater than fifty percent (50%) of Base Rent in any month. I f the Premises should become in
need of repairs required to be made by Landlord hereunder, Tenant must give written notice to
Landlord as soon as practicable.
C. Tenant shall enter into a quarterly preventative maintenance/service contract with
a maintenance contractor for servicing the heating, air conditioning, and ventilation (HVAC)
systems and equipment within the Premises. The service contract must include all services
suggested by the equipment manufacturer and must become effective, with a copy of the service
contract delivered to landlord, within thirty (30) days after the date Tenant takes possession of the
Premises.
d. Tenant, at Tenant's sole cost, shall perform maintenance, repairs, and replacements
of and to all non-structural portions of the Premises, including but not limited to (i) the HVAC
systems, (ii) glass, (iii) windows and doors, (iv) all interior plumbing and sewage systems, (v)
fixtures, (vi) interior non-loadbearing walls, (vii) floors, (viii) ceilings, (ix) docks and all dock
equipment, and (x) all electrical and mechanical systerns, facilities, and equipment, of every kind
and nature located in, upon, or about the Premises, except with respect to those obligations of
Landlord specifically set forth in Section 7.a. above. Notwithstanding the foregoing, landlord
warrants that the Improvements will be in good operating condition for a period of one (1) year
following the Commencement Date; provided, that the foregoing shall not relieve Tenant of its
obligations to perform, at its cost, routine maintenance of said Improvements, and said warranty
shall not apply to any repairs or replacements necessitated by the negligence or willful misconduct
of Tenant or any Tenant Party. Following said warranty period, Tenant shall have the benefit of
any manufacturer's warranties held by Landlord in connection with the Improvements. Further
notwithstanding the foregoing, if, beginning with the second (2nd) Lease Year, any capital repairs
or replacements in connection with any HVAC unit are required, Landlord shall be responsible for
said costs; provided, that the costs thereof incurred by Landlord shall be amortized over the useful
life of said capital repair or replacement, consistent with generally accepted accounting principles,
utilizing an interest rate of seven percent (7%), and such amortized amounts shall be charged to,
and paid by, Tenant monthly as Additional Bent until the earlier of (i) the full payment of said
costs, with the foregoing interest, by Tenant, or (ii) the expiration or earlier termination of this
Lease, if any repairs required, in Landlord's reasonable discretion and consistent with industry
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12923849 v I
standards, to be made by Tenant are not made within thirty (30) days after receipt of written notice
delivered to Tenant from Landlord, in addition to any other remedies under this Lease, Landlord
may make such reasonable repairs without liability to Tenant for loss or damage to Tenant's
equipment, fixtures, inventory or business by reason of such repairs, and Tenant shall pay to
Landlord upon written demand (which demand shall include reasonable evidence of the cost of
such repairs) as Additional Rent hereunder the cost of such repairs, plus interest at the Maximum
Rate accruing from the date that is thirty (30) days after receipt of such written demand until paid
by Tenant. At the expiration or earlier termination of Lease Term, Tenant shall surrender the
Premises in a substantially similar condition as it existed on the Commencement Date, reasonable
wear and tear and loss by fire or other casualty excepted.
C. Tenant shall not make any installations, alterations, additions, repairs, or
improvements that affect the roof, structural cam onents mechanical systems, or plumbing
systems of the Premises or Building, or which in cost in any given calendar
year, without the prior written consent of Landlord, which consent may not be unreasonably
withheld, conditioned or delayed, Unless specifically required to be removed by Landlord as part
of Landlord's approval, all installations, alterations, additions, repairs, improvements, and fixtures,
by whomever installed or erected (except Trade Fixtures, as defined below) shall remain upon and
be surrendered with the Premises and become the property of Landlord at the expiration or
termination of the Lease. Any alterations, additions, repairs, or improvements not requiring the
consent of Landlord shall be removed by'renant on or prior to the expiration or termination of the
Lease. Tenant shall repair and restore, at Tenant's sole cost, any damage resulting from the removal
of any such alterations, additions, repairs, or improvements. Tenant, at its own cost, and without
Landlord's prior approval, may erect such shelves, racking, conveyors, bins, equipment,
machinery, and trade fixtures (collectively "Trade Fixtures") in the ordinary course of its business
so long as such items do not alter the basic character of the Premises, do not overload or damage
the Premises, are not permanently affixed to the structural components of the Building (including
without limitation, columns, load bearing walls and bar joists, but excluding the floor slab), may
be removed without injury to the Premises, and the construction, erection, and installation thereof
complies with all Applicable Laws. Tenant shall remove all Trade Fixtures from the Premises prior
to the expiration or earlier termination of this Lease, and Tenant shall repair all damage to the
Premises caused by the removal of the Trade Fixtures. Landlord agrees that it shall execute a
reasonable Landlord subordination form pursuant to which Landlord is requested to subordinate,
for itself and all persons claiming by, through or under Landlord, any right of Landlord to any
liens, whether granted by this Lease, statute or otherwise (including, without limitation, rights of
levy for rent), against any property of Tenant located on the Premises, including, without
limitation, Tenant's improvements, machinery, trade fixtures, trade equipment, furniture, personal
property, inventory (including, without limitation, Tenant's racking systems) and all additions,
replacements or substitutions therefor, to any lender or creditor of Tenant requiring the same.
f. All construction work done by Tenant within the Premises shall be performed in a
good and workmanlike manner and in compliance with all Applicable Laws. Tenant shall, before
commencing any alterations which require consent of the Landlord or accepting delivery of any
materials to be used in connection with the alterations, deliver to Landlord certificates evidencing
insurance coverages reasonably acceptable to Landlord. Tenant shall not cause or permit any
materialmen's, mechanics', artisans', or other liens to be filed against the Land, the Building, the
Property, or the Premises, and nothing contained in this Lease shall be deemed the consent or
12
t2923849 v]
request of Landlord, expressed or implied, to any contractor, subcontractor, laborer, or
materialmen for the performance of any labor or the furnishing or any materials for any
improvement, alterations, or repairs of or to the Premises, or any part thereof, nor as giving Tenant
any right, power, or authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of a materialmen's, mechanics' or
other lien against the Land, the Building, the Property, or the Premises. If any such lien should be
filed, Tenant shall cause the same to be discharged of record, or post a bond, within thirty (30)
days after Tenant's receipt of written notice of the filing of the same, If Tenant fails to discharge
or bond over any lien within such period, then in addition to any other right or remedy of Landlord,
Landlord may discharge the same either by paying the amount claimed to be due or by procuring
the discharge of such lien by a deposit in court or by posting a bond. Any amount paid by Landlord
for the aforesaid purposes, or for the satisfaction of any lien caused by Tenant, and all reasonable
expenses of Landlord in defending any action or in procuring the discharge of such lien, shall be
deemed Additional Rent hereunder and shall be repaid by Tenant to Landlord within ten (10) days
after Tenant's receipt of written demand from Landlord together with sufficient documentation
evidencing the costs, plus interest at the Maximum Rate.
8. ACCEPTANCE OF PREMISES AND REPRESENTATIONS AND
WARRANTIES
Landlord represents and warrants and covenants to Tenant that: (a) Landlord owns good
and marketable title to the Property and the portion ofthe Driveway from FM 156 to the Shared
Driveway, and the foregoing are free and clear of any and all liens and encumbrances which would
prohibit Tenant's use, occupancy and enjoyment of the Premises, and Landlord (or an affiliate
thereat] awns or has the right to acquire (and will own) title to the entirety of the Shared Driveway
and Driveway; (b) the execution, delivery and performance of this Lease by Landlord does not
conflict with or cause a breach or default under any agreement to which Landlord is a party; (c)
there are no Taxes which are due and unpaid; (d) Landlord is not in default under the terms and
conditions of any agreements, loans, mortgages, deeds of trust, or any other loan documents in
favor of any mortgagee with a security interest in the Property including, without limitation, the
Premises, nor is Landlord aware of any matter with which the passage of time or the giving of
notice would constitute a default; (e) the Permitted Use (defined below) is a permissible use under
any zoning code and related regulations to which the Property is subject; and (f) subject only to
occurrences outside of Landlord's reasonable control, the Property has, and during the Lease Term
shall maintain, access to and from publicly dedicated streets and rights of way either directly or
through the Development through the Driveway as shown and depicted on Exhibit A-3 and Exhibit
A-4; provided, that if access as set forth in (f) above is unavailable for a period of greater than one
(1) year, said lack of access shal I be deemed to be a taking for the purposes of Section 17.a. below.
Notwithstanding anything in this Lease to the contrary, during the Lease Term, Landlord shall not
subject the Property or the Premises to any liens, encumbrances, conditions, restrictions or other
matters which would restrict the Permitted Use or restrict access to and use of the Intermodal
Facility Direct Access (defined below). Except as otherwise set forth in this Lease, Tenant, upon
completion of the Improvements, shall accept the Premises in its then "AS -IS," "WHERE -IS"
condition as suited for the uses permitted under this Lease. If requested by Landlord, Tenant shall
execute a written acceptance of the Premises subject to any latent defects and punch list items and
any other rights of Tenant under this Lease.
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12923849 v E
9. COMMON AREAS AND OPERATING EXPENSES OF PREMISES
a. The term "Common Areas" is defined in this Lease as that part of the Property that
would be intended for the common use of all tenants of the Property were the Building a multi -
tenant building, including parking areas, sidewalks, driveways, walks, truckways, common
loading areas, and landscaped areas, and which is more particularly depicted at Exhibit A-3 and as
more particularly described at Exhibit A-5 attached hereto and made a part hereof. Tenant shall
have exclusive access to the Common Areas. Additionally, Tenant shall have the exclusive right
to utilize all parking spaces located upon the Property. Tenant shall have the non-exclusive right
to utilize the Driveway and the Shared Driveway and all other common areas of the Development.
Landlord agrees that the portion of the Driveway from FM 156 to the Shared Driveway, as well as
the Shared Driveway, shall be completed on or prior to the Commencement Date.
b. Landlord is responsible for the operation, management, and maintenance of the
Common Areas and Building, and shall keep the same in good repair and working condition and
in compliance with all Applicable Laws (subject to reimbursement as set forth in Section 9 hereof),
the manner and the expenditures thereof to be in the sole but reasonable discretion of Landlord,
and Tenant agrees to pay, as Additional Rent, Tenant's Proportionate Share of the reasonable costs
of operation, management, and maintenance of the Common Areas and Building, including costs
incurred for water; landscaping; lighting; painting; cleaning; policing; inspecting; maintaining,
repairing, and replacing the Common Areas; and any Development Expenses (collectively, the
"Operating Expenses"). Tenant is responsible for providing its own trash dumpster and dumpster
service. Tenant's debris shall not overburden Tenant's trash dumpster, and Tenant shall keep the
trash dumpster area in a clean condition. Landlord agrees that it shall competitively bid on an
annual basis all Operating Expenses for which it is reasonable to do so. Additionally, Landlord
shall maintain or shall cause to be maintained, in good repair and working condition and in
compliance with all Applicable Haws (subject to reimbursement as set forth in Section 9 hereof),
the following specific Development common elements and "Tenant agrees that the Operating
Expenses shall include (x) Tenant's pro-rata share of the costs related to the maintenance of the
Shared Driveway (including but not limited to real estate taxes, insurance premiums, pavement,
striping, reflectors, snow and ice removal, and utilities for street lighting), which pro-rata share
shall be equal to the ratio of the rentable square footage of the Premises to the rentable square
footage of all buildin s that are provided access to the Shared Driveway, which pro-rata share shall
never exceed and (y) Tenant's pro-rata share (based upon the ratio of the rentable square
footage of the Premises to the rentable square footage of all buildings in the Development from
time to time) of charges related to portions of the Development that are located outside of the
Property (the "Development Expenses"), which pro-rata share for the purposes of this sentence
shall never exceed 15.00% (and shall not apply to any original development or construction costs
thereof), and which charges shall be limited to certain reasonable and customary common areas
within the Development relating to the following (and to the extent the same are considered capital
improvements under generally accepted accounting principles consistently applied then only the
annual amortization of these costs shall be included):
Driveway maintenance (including but not limited to pavement, striping,
reflectors, snow and ice removal, and utilities for street lighting);
Park signage maintenance;
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12923849 vI
iii. Streetlight maintenance;
iv. Common or regional detention pond maintenance;
V. Driveway and Development area lawncare and landscaping;
vi. Walking trail and pedestrian bridge maintenance;
vii. Beal estate taxes in connection with the Driveway and other common areas of
the Development; and
viii. Insurance premiums in connection with the Driveway and other common areas
of the Development.
C. Included within the Operating. Expenses, Tenant shall pay to Landlord Tenant's
Proportionate Share of the costs of all insurance maintained by Landlord in connection with the
Premises and the Common Areas of the Property during the Lease Term ("Premiums") for
Landlord's fire and casualty insurance, commercial general liability insurance, and any other
insurance carried by Landlord for the Premises and the Common Areas of the Property (provided
such other insurance is carried by prudent landlords of similar property within a ten -mile radius of
the Property) for the calendar year.
d. Notwithstanding anything to the contrary herein, Operating Expenses shall exclude:
(1) leasing commissions, costs, disbursements, and other expenses incurred for leasing,
renovating, or improving space for tenants or enforcing leases; (2) costs incurred by Landlord in
discharging its obligations to complete the Base Building Improvements, and the Tenant
Improvements in excess orthe Tenant Plans Budget, as the same may be mutually increased by
written agreement of Landlord and Tenant, as the same is increased as a result of changes to the
Tenant Plans requested by Tenant, or to cover the warranties of Landlord set forth in Section 7(d)
above; (3) costs (including permit, license, and inspection fees) incurred in renovating, improving,
decorating, painting, or redecorating vacant space or space for tenants; (4) costs incurred by
Landlord to change the shape, size or layout of the Common Areas, unless the same are requested
by Tenant; (5) costs incurred by Landlord for alterations or replacements to the Common Areas
that are considered capital improvements and replacements under generally accepted accounting
principles consistently applied; provided, that (i) the annual amortization of these costs shall be
included to the extent they reduce Operating Expenses, or (ii) the cost of capital improvements
made to comply with any law, rule, or regulation promulgated after the Effective Date by any
governmental authority, which costs shall be amortized over the useful economic life of such
improvements as determined by Landlord, in accordance with generally accepted accounting
principles consistently applied and shall be included in Operating Expenses; (6) depreciation and
amortization on the Building; (7) reserves of any kind; (8) costs incurred because Landlord
violated the terms of any lease; (9) interest on debt or amortization payments on mortgages or
deeds of trust or any other debt for borrowed money, or rent payments under ground leases; (10)
rentals and other related expenses incurred in leasing air conditioning systems or other equipment
ordinarily considered to be of a capital nature, except equipment used in providing janitorial
services that is not affixed to the Building; (11) items and services for which Tenant reimburses
Landlord or pays third parties; (12) advertising and promotional expenditures (except as may be
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provided in any separate marketing agreement between Landlord and Tenant); (13) repairs or other
work needed because of fire, windstorm, or other casualty or cause insured against by Landlord to
the extent Landlord has received insurance proceeds therefor; (14) costs incurred to remedy
structural defects in original construction materials or installations; (15) any costs, fines, or
penalties incurred because Landlord, or any of Landlord's members, shareholders, officers,
managers, agents, employees, contractors, invitees, or subtenants (each a "Landlord Party")
violated any governmental rule, or arising from the negligence or willful misconduct of Landlord
or a Landlord Party; (16) costs incurred to test, survey, or remedy hazardous materials located on
the Property unless the materials were in or on the Property because of Tenant's (or a Tenant
Party's) actions; (17) costs related to maintaining Landlord's legal existence and Landlord's general
corporate overhead and administrative expenses that are unrelated to the operation, management,
or maintenance of the Building; (18) costs incurred in conncction with the sale or transfer of an
interest in Landlord or the Building; and (19) other expenses that under generally accepted
accounting principles, consistently applied, would not be considered normal maintenance, repair,
management, or operation expenses.
C. Beginning on the Commencement Date, Tenant shall pay to Landlord Tenant's
Proportionate Share of the "Estimated Annual Common Area and Operating Expense Charge' in
equal monthly payments, in advance, based upon the reasonable estimated annual cost of
operation, management, and maintenance of the Property, Driveway, Shared Driveway, and
Development Expenses, but subject to adjustment after the end of each calendar year on the basis
of the actual costs for such year. Landlord's estimate for the first ear of Estimated Annual
Common Area and O eratin r Ex ense Charge is (which amount includes
approximately related to the Premiums). Landlord may re -estimate Operating
]Expenses from time to time during the Lease Term. In such event, but in no event more than twice
in any 12-month period, Landlord will revise the monthly payment for Estimated Annual Common
Area and Operating Expense Charge to an amount sufficient for Tenant to pay the reasonable re -
estimated amount over the balance of the calendar year. Landlord will notify Tenant at least thirty
(30) days prior to the effective date of any such re -estimate. Landlord hereby agrees that the
Controllable Operating Expenses (as defined in Section 91 below durin the first calendar year
following the Commencement Date will not exceed of the
Premises.
f Commencing with the second Lease Year of the Lease Term, Landlord agrees to
cap Tenant's annual obligation for payment of Additional Rent related to Controllable Operating
Expenses (as defined herein below) at on a cumulative basis, over the prior
calendar year's annualized Controllable Operating Expenses (the "Operating Expense Cap").
Notwithstanding the foregoing, for the purposes of`determining the Operating Expense Cap in the
second Lease Year, the Controllable O eratin Ex enses for the first Lease Year shall be deemed
to be the greater of (i) ofiWiMW
the actual
Controllable Operating Expenses using the first Lease Year By way of
definition, "Controllable Operating Expenses" is defined as all Operating Expenses other the
Premiums, utility costs, snow and ice removal costs, Non -Recurring Expenses (as defined herein
below), and (for the purposes of clarity) Taxes. "Non -Recurring Expenses", for the purposes of
this Lease, shall mean Operating Expenses that are incurred on an infrequent or non -recurring
basis, such as but not limited to, exterior painting and caulking of the Building and resurfacing/re-
striping of the parking lots and driveways within the Common Areas, Driveway, and Shared
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Driveway, which Non -Recurring; Expenses shall not be subject to the Operating Expense Cap, but
the cost of which shall be amortized over the reasonably expected useful life of such Non Recurring
Expenses. The Operating Expense Cap shall "reset" at the commencement of any Extended Term
hereunder, and in the first (I") year of any Extended Terra there shall be no cap on Operating
Expenses; provided that the Operating Expense Cap shall again become effective beginning in the
second (2nd) year of any Extended "Term, with the base for the Operating Expense Cap for said
Extended Term being the actual Controllable Operating Expenses of Landlord during the first (I")
year of said Extended Term.
g. Landlord will furnish to Tenant a detailed statement of expenses for the Property
for the prior year ("Statement") no later than April 301r' of each calendar year, such Statement to
be prepared in accordance with generally accepted accounting principles and to include Tenant's
Proportionate Share of the Operating Expenses. The Statement will show any overpayment by
Tenant or any shortage in the payments made by Tenant. Any overpayment will be credited against
subsequent monthly Operating Expense obligations or shall be refunded to Tenant, at Landlord's
option. Any underpayment shall be paid by Tenant to Landlord within thirty (30) days following
Tenant's receipt of the Statement.
h. Tenant, and its agents, and employees shall have ninety (90) days after receiving
the Statement to audit Landlord's books and records concerning the Statement at a mutually
convenient time at Landlord's offices. Tenant may utilize the services of an auditing firm which
firm shall not be compensated on a contingent fee basis. Prior to commencing any audit, Tenant
shall pay to Landlord the amount (if any) purportedly owed by Tenant as reflected on the
Statement. Landlord's books and records shall be kept in accord with generally accepted
accounting principles consistently applied. Any audit by Tenant shall be for the sole purpose of
verifying the Operating Expenses. Tenant shall hold any information obtained during any such
inspection in confidence, except that 'Tenant shall be permitted to disclose such information to its
attorneys and advisors, provided Tenant informs such parties of the confidential nature of such
information and uses good faith and diligent efforts to cause such parties to maintain such
information as confidential. Tenant shall deliver to Landlord the conclusions of its audit within
ten (10) days after the completion of the audit (but in no event more than one hundred filly (150)
days after Tenant receives the Statement). If the audit discloses that the total amount invoiced to
Tenant for Operating Expenses exceeds Tenant's Proportionate Share of actual Operating
Expenses, and Landlord reasonably concurs with such audit results, Landlord shall, within thirty
(30) days reimburse Tenant for any overcharge. If Landlord does not agree with Tenant's audit,
then Tenant may commence arbitration proceedings against Landlord within sixty (60) days after
the date that Tenant delivers its audit to Landlord. If the arbitrator determines that Tenant was
overcharged, Landlord shall within thirty (30) days reimburse 'Tenant for any such overcharged
amount, plus Tenant's reasonable costs in connection with the arbitration, not to exceed $5,000.00.
If the arbitrator determines that Tenant was undercharged, 'Tenant shall within thirty (30) days pay
to Landlord any such undercharged amount, plus Landlord's reasonable costs in connection with
the arbitration, not to exceed $5,000.00.
i. If Tenant's audit of the books and records shows that the actual Operating Expenses
were five percent (5%) or more below the amount appearing on the Statement (and such
discrepancy is upheld in arbitration), then I.,andlord shall pay to Tenant, 'Tenant's reasonable costs
of conducting the audit, not to exceed $5,000.00.
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j. Landlord reserves the right to stop the supply of water, sewage, electrical current,
and other services, if no other reasonable alternatives exist, without incurring any liability to
Tenant: (i) because of accidents or emergencies, (ii) for repairs, alterations, replacements, or
improvements that Landlord reasonably deems necessary, (iii) when Landlord is prevented from
supplying such services by strikes, lockouts, difficulty of obtaining materials, or accidents, (iv) for
any cause beyond Landlord's control, or (v) as a result of any Applicable Laws that prevent
Landlord from supplying such services. In the case of repairs, alterations, replacements, or
improvements that are under Landlord's control, Landlord agrees to give Tenant reasonable prior
notice and to use commercially reasonable efforts to minimize any unreasonable interference with
Tenant's use of the Premises or which would materially increase Tenant's cost hereunder. No
diminution or abatement of rent or other compensation shall be claimed by Tenant because of, nor
shall this ]tease or any of the obligations of Tenant he affected or reduced by reason of, any
interruption of any utility services, except that (x) if the interruption is caused by the negligence
or willful misconduct of Landlord or a Landlord Party, (y) such interruption continues for five (5)
consecutive days, and (z) the restoration of such service is within Landlord's reasonable control,
then the Rent shall abate commencing on the sixth (6th) consecutive day following the beginning
ofthe interruption until such time as the services are continued.
k. Landlord reserves all rights respecting the Property and Premises not spccifically
granted to Tenant under this Lease, but subject to the terms and conditions of this Lease, including
the right to: (i) grant any party the exclusive right to conduct any business or render any service in
the Property so long as such right does not prohibit Tenant from using the Premises for the
Permitted Use (as defined in Section I 1 below); (il) install and maintain pipes, ducts, conduits,
wires, and structural elements in the Premises that serve other parts or other tenants of the Property;
(iii) make changes to the Common Areas, (iv) restrain unauthorized persons from using the
Common Areas; (v) temporarily close any portion of the Common Areas; and (iv) change the
shape and size of the Common Areas. Landlord will not exercise the foregoing rights in a manner
that unreasonably interferes with Tenant's access to, or use of, the Premises, or would materially
increase Tenant's costs hereunder.
10. UTILITIES AND SERVICES
On the Commencement Date, all utilities shall be available at the Premises and separately
metered to the Premises. Tenant shall directly contract with the applicable utility companies for
all utilities to the Promises and shall pay the bills therefor directly to the utility company providing
such service. Landlord shall be responsible for all utility costs for periods prior to the
Commencement Date.
11. USE OF PREMISES
The Premises may be used 24 hours per day/7 days per week by 'tenant for distribution,
warehousing, and general office use (collectively, the ".Permitted Use"), and any other lawful
purpose subject to Landlord's consent, which consent shall not be unreasonably withheld,
conditioned, or delayed. Tenant shall, at its sole cost: (i) obtain all licenses and permits necessary
for its particular use of the Premises, and (ii) subject to Section 15 below, comply with all
Applicable Laws. Tenant shall not receive, store, or otherwise handle any product, material, or
merchandise which is explosive or highly flammable or permit the Premises to be used for any
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purpose which would cause the insurance on the Premises to be void, the insurance risk more
hazardous, or increase the cost of the insurance on the Premises. The Premises shall not be used
for any noxious purposes, in violation of any Applicable Laws, or in any manner that creates any
nuisance. If the Premiums on the Building are increased due to Tenant's use of the Premises,
Tenant shall pay to Landlord the amount of the increase in the Premiums.
12. ABANDONMENT OF LEASED PREMISES
Tenant may remove Tenant's property from the Premises and cease operations in the
Premises at any time, but its right to cease to use the Premises shall not relieve Tenant of its
obligations under this Lease.
13. DAMAGE BY CASUALTY
If the Premises is totally or partially destroyed by casualty, rendering the Premises
untenantable, Landlord will promptly restore and repair the Premises to substantially the same
condition existing immediately prior to the casualty, at Landlord's expense, unless the Premises
cannot be repaired within three hundred sixty-five (365) days after the date of the casualty, in
which case either Landlord or Tenant may terminate this Lease upon thirty (30) days prior written
notice to the other party. Rent shall proportionately abate during the time the Premises, or a part
thereof, is unusable because of the casualty. Landlord shall notify Tenant within thirty (30) days
after a casualty as to whether the Premises may be repaired within three hundred sixty-five (365)
days after the casualty. If Landlord does not complete the repair of the Premises within such three
hundred sixty-five (365) days after the casualty, then Tenant shall have the right to terminate this
Lease by delivering thirty (30) days prior written notice to Landlord, but the termination notice
shall be automatically rescinded if the repairs are completed within thirty (30) days after
Landlord's receipt of Tenant's notice. If the Premises is substantially destroyed or damaged by
casualty when there is less than twelve (12) months remaining in the Lease Term, Landlord or
Tenant may terminate this Lease upon thirty (30) days prior written notice to the other party, and
Tenant's obligations to pay further lent hereunder shall simultaneously terminate as of the
termination date, but Rent shall proportionally abate from the date of the casualty.
14. INDEMNITY AND INSURANCE
a. Except to the extent Claims (as defined in this Section below) arise froth the
negligence or willful misconduct of Landlord or any Landlord Party, Tenant releases, indemnifies,
protects, defends (with counsel reasonably acceptable to Landlord), and holds Landlord and all
Landlord Parties harmless from and against all Claims to the extent arising from: (a) any use or
occupancy of, or activities within, the Premises or Property by Tenant or any Tenant Party, (b) any
default by Tenant under this Lease, (c) any negligence or willful misconduct of Tenant or any
Tenant Party, (d) any accident, injury, or damage in or to the Premises, and (e) to the extent caused
by Tenant or any Tenant Party, any accident, injury, or damage in, about, or to the Property. As
used 1n this Lease, "Claims" means all claims, actions, demands, liabilities, damages, costs,
penalties, forfeitures, losses, or expenses including, without limitation, reasonable attorneys' fees
and the costs of enforcing any obligation under this Lease. The indemnity provided for in this
Scction shall survive the expiration or termination of this Lease.
ILI]
12923849 v1
b. Except to the extent Claims arise from the negligence or willful misconduct of
Tenant or any Tenant Party, Landlord releases, indemnifies, protects, defends (with counsel
reasonably acceptable to Tenant), and holds Tenant and all Tenant Parties harmless from and
against all Claims to the extent arising from: (a) any negligence or willful misconduct of Landlord
or a Landlord Party, (b) any default by Landlord under this Lease, and (c) to the extent caused by
Landlord or any Landlord Party, any accident, injury, occurrence or damage in, about, or to the
Property.
C. Tenant shall maintain, and shall cause any contracts, vendors, and/or service
providers engaged by Tenant to provide any services within the Premises to maintain, during the
Lease Term the following minimum insurance coverage:
i. commercial general liability insurance covering the Premises with a limit of
not less than $2,000,000.00 per occurrence and $5,000,000.00 general aggregate, which
may be provided by a combination of primary and umbrella coverage,
ii. business auto liability insurance covering all vehicles used by Tenant with
a limit of not less than $1,000,000.00 per accident,
iii. all risk or special form property insurance with respect to Tenant's
alterations, additions, improvements, and business and personal property located at the
Premises at full replacement value,
iv. statutory worker's compensation insurance,
V. employer's liability insurance with a $1,000,000.00 minimum limit
covering all of Tenant's employees, and
vi. such other reasonable and customary insurance as may be required by any
lender holding; a mortgage or deed of trust on the Premises, or as may be reasonably
required by Landlord.
d. All policies shall (i) be issued by an insurance company licensed to do business in
the State of Texas that is rated by AM Best as ANJI or better, (ii) be reasonably satisfactory to
Landlord, and (iii) excluding; worker's compensation and employer's liability insurance, name
Landlord, Landlord's property manager (if any), and Landlord's lender as additional insureds.
Tenant shall use its best efforts to cause such policies to not be non -cancellable except after thirty
(30) days' prior notice to Landlord and in any event, Tenant shall provide to Landlord within two
(2) business days of receipt any written notice of cancellation. Tenant shall provide to Landlord
both prior to Tenant's initial entry into the Premises and annually thereafter with certificates of
insurance, on ACQRD Form 25 or an equivalent, confirming; that all policies required to be held
by Tenant are in effect.
e, if Tenant fails, neglects, or refuses to maintain the insurance required under this
Lease, Landlord may procure or renew such insurance. Tenant shall reimburse Landlord for any
actual amounts paid by Landlord within thirty (30) days after receipt of notice by Landlord.
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f. During the Lease Term, Landlord shall maintain Building Insurance - Special Form
CP1030 (formerly Known as "all risk") property insurance, including fire and extended coverage,
sprinkler leakage, vandalism, and malicious mischief, upon the Building and the Property, in an
amount not less than the full replacement cost thereof, including coverage for lost rent for no less
than twelve (12) months. Landlord shall maintain commercial general liability insurance with
respect to the Common Areas with a limit of not less than $2,000,000.00 per occurrence and
$5,000,000.00 general aggregate, which may be provided by a combination of primary and
umbrella coverage.
15. APPLICABLE LAWS
Tenant agrees, at its own expense, to promptly comply with all applicable federal, state,
county, and city laws, ordinances, rules, and regulations of governmental authorities, and all
requirements of any legally -constituted public authority, and any private covenants, conditions, or
restrictions (collectively, the "Applicable Laws") related to Tenant's occupancy, use, and
alteration of the Premises. On the Commencement Date, Landlord represents and warrants to
Tenant that the Premises will comply with all Applicable Laws. Following the Commencement
Date, Landlord, at its own expense (but subject to amortization, with interest, over the useful life
thereof and reimbursement from Tenant monthly as Additional Rent hereunder), shall promptly
cause the Common Areas and the exterior of the Building (but not the docks), as well as the
Premises, to comply with any Applicable Laws so long as such compliance is not made necessary
because of Tenant's alterations to the Premises or Tenant's particular use of the Premises, as
opposed to the Permitted Use, in which event Tenant shall be responsible for any such compliance.
Tenant, at its own expense, agrees to promptly cause the Premises (including the docks) to comply
with any Applicable Laws that are promulgated following the Commencement Date to the extent
that said compliance is necessary as a result of Tenant's alterations to the Premises or Tenant's
particular use of the Premises.
16. ENVIRONMENTAL MATTERS
a. Compliance with Hazardous Materials Laws. Neither Tenant, nor any Tenant
Party, shall cause or permit any Hazardous Materials (as defined in Section 16.e.i. below) to be
brought upon, kept, or used in or about the Premises, Building, or Common Areas, except that
limited quantities of Hazardous Materials may be used, handled, or stored on the Premises if the
use or storage is incident to, and reasonably necessary for, the maintenance of the Premises or
Tenant's Permitted Use and is in compliance with all Hazardous Materials Laws (as defined in
Section 16.e.ii. below) and Applicable Laws. Tenant, at its sole cost, will comply with all
I lazardous Materials Laws related to Tenant's use of the Property. Prior to the expiration or earlier
termination of this Lease, Tenant will remove from the Premises, at Tenant's sole cost, all
Hazardous Materials that Tenant or any Tenant Party causes or permits to be present in, on, or
under the Property. Upon Landlord's written request, Tenant will promptly deliver to Landlord
documentation required to be maintained by Tenant under any Har.,ardous Materials Laws. All
such documentation will list Tenant or a Tenant Party as the responsible party and will not attribute
responsibility for any Hazardous Materials to Landlord or any Landlord Party. All reporting and
warning obligations required under Hazardous Materials Laws arising from Tenant's use or
occupancy of the Premises or Property are Tenant's sole responsibility. Tenant will not apply for
or maintain any permits, licenses, or other governmental approvals for the transportation, storage,
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use, or disposal of Hazardous Materials on the Property without having First having obtained
Landlord's prior written approval, which approval shall not be unreasonably withheld, conditioned
or delayed.
b. Notice ofActions. Tenant will notify Landlord of any of the following actions
affecting; Landlord, Tenant, or the Property that in any way relate to Tenant's use of the Property,
promptly after Tenant becomes aware of the same: (a) any enforcement, clean-up, removal, or
other governmental or regulatory action instituted, completed, or threatened under any Hazardous
Materials Law; (b) any Claims made or threatened relating to any Hazardous Materials on the
Property; and (c) any reports, records, letters of inquiry and responses, manifests, or other
documents made by any person, including Tenant, to or from any environmental agency relating
to any Hazardous Materials. 'tenant will not take any remedial action in response to the presence
of any Hazardous Materials in, on, or under the Property, nor enter into any settlement agreement,
consent decree, or other compromise with respect to any Hazardous Materials in, on, or under the
Property without first notifying Landlord of Tenant's intention to do so and affording Landlord
reasonable opportunity to investigate, appear, intervene, and otherwise assert and protect
Landlord's interest in the Property,
C. Tenant's Hazardous Materials Indemnification. Tenant releases, indemnifies,
protects, defends (with counsel reasonably acceptable to Landlord), and holds Landlord and each
Landlord Party harmless from and against all Claims to the extent arising, in whole or in part,
directly or indirectly, from the presence, treatment, storage, transportation, disposal, release, or
management of I lazardous Materials in, on, under, or from the Property (including water tables
and atmosphere), but only to the extent arising from Hazardous Materials that Tenant or any Tenant
Party brings onto, keeps, uses on, or permits to be brought upon, kept, or used on, the Premises or
the Property. Tenant's indemnification obligations under this Section 16.c. includes, without
limitation and whether foreseeable or unforeseeable: (a) the costs of any required or necessary
repair, compliance, investigations, clean-up, monitoring, response, detoxification, or
decontamination of the Property; (b) the costs of implementing any closure, remediation, or other
required action in connection with the Hazardous Materials; (c) the value of any loss of use and
any diminution in value of the Property and adjacent and nearby properties, including
groundwater; and (d) reasonable consultants' fees, experts' fees, and response costs. The
obligations of Tenant under this Section 16 shall survive the expiration or earlier termination of
this Lease for a period of four (4) years. Tenant shall have no liability for any Hazardous Materials
existing in, on, under, or from the Property that: (x) existed prior to Tenant's entry onto the
Property; (y) resulted from any Hazardous Materials brought onto the Property by a panty other
than Tenant or a Tenant Party; or (c) resulted from any Hazardous Materials which migrated to the
Property.
d. Landlord's Hazardous Materials Representations. Landlord represents and
warrants to Tenant that, to the best of Landlord's knowledge, there are no Hazardous Materials in,
on or under the Property in violation of any I Iazardous Materials Laws and there are no current or
pending; violations of Hazardous Materials Laws with respect to the Property. For purposes of this
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Section 16.d., "the best of Landlord's knowledge" will mean the knowledge, after reasonable
investigation, of Landlord as of the Effective Date only.
e. Definitions.
i. "Hazardous Materials" means any of the following, in any amount: (a) any
petroleum or petroleum product, asbestos in any form, urea formaldehyde and
polychlorinated biphenyls; (b) any radioactive substance; (c) any toxic, infectious, reactive,
corrosive, ignitable or flammable chemical or chemical compound; and (d) any chemicals,
materials or substances, whether solid, liquid or gas, defined as or included in the
definitions of "hazardous substances," "hazardous wastes," i°Hazardous materials,"
"extremely hazardous wastes," " restricted hazardous wastes," "toxic substances," "toxic
pollutants," "solid waste," or words of similar import in any federal, state or local Statute,
law, ordinance or regulation now existing or existing on or after the Effective Date as the
same may be interpreted by government offices and agencies, including, without limitation,
(i) trichloroethylene, tetrachloroethylene, perch loroethylene and other chlorinated
solvents, (ii) oil or any petroleum products or fractions thereof, (iii) asbestos, (iv)
polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, (vii)
radioactive materials and waste, and (vial) infectious waste.
ii. "Hazardous Materials Laws" means any federal, state, or local laws,
ordinances, codes, statutes, regulations, administrative rules, policies and orders, and other
authority, existing now or in the future, which classify, regulate, list, or define Hazardous
Materials.
17. EMINENT DOMAIN
a. If the Premises, or any substantial part thereof, is taken, if access to the Premises is
taken, or if a portion of the parking area is taken such that the Property no longer conforms to
zoning regulations applicable to the Property, in any permanent manner by any competent
authority under the power of eminent domain, then the Lease Term shall cease and terminate on
the date when possession of the Premises, or the part thereof, passes to the condemning authority.
Tenant shall have no claim against Landlord for the value of any unexpired Lease Term. If a
taking reduces the total area of the Property or the total area of the Building by 50% or more,
regardless of whether the Premises is affected or the taking will render the Premises unsuitable for
the Permitted Use, then Landlord may terminate this Lease by notifying Tenant at least thirty (30)
days prior to the date the condemning authority takes possession of the portion of the Property. If
a ticking reduces the Property so as to render the Premises unsuitable for the Permitted Use, as
reasonably determined by Tenant, then Tenant may terminate this Lease by notifying landlord at
least thirty (30) days prior to the date the condemning authority takes possession of the portion of
the Property. If there is a partial taking pursuant to which neither Landlord nor Tenant terminates
this Lease, the Base Rent and Additional Rent due hereunder shall be equitably reduced in
proportion to the part of the Premises so taken. No money or other consideration shal l be payable
by Landlord to Tenant for the right of cancellation, and Tenant shall have no right to share in the
condemnation award or in anyaudgment fordamages caused by the taking. Nothing in this Section
17.a. shall prevent an award being made to Tenant by the condemning authority for the value of
Tenant's interest in the Premises; for loss of business; depreciation to, or cost of removal of,
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Tenant's equipment or fixtures; for moving; expenses; or for Tenant's personal property and
fixtures, but Tenant's award shall not decrease Landlord's award.
b. If the Premises, or any substantial part thereof, shall be taken in any temporary
manner by any competent authority under the power of eminent domain, this Lease shall remain
in full force and effect, and Rent shall continue to be due hereunder during the temporary taking,
except that Rent shall be equitably reduced to the extent that Landlord receives an award to offset
such Rent reduction. No money or other consideration shall be payable by Landlord to Tenant for
such temporary taking and Tenant shall have no right to share in the condemnation award or in
any judgment for damages caused by the taking. Nothing in this paragraph shall preclude an award
being made to "tenant by the condemning authority for the value of Tenant's interest in the
Premises under this Lease, for loss of business or depreciation to and cost of removal of equipment
or fixtures or for moving expenses or for Tenant's personal property and fixtures, but this award
shall not decrease in anyway Landlord's award. To the extent that Tenant receives such award,
Landlord shall have no obligation to abate any portion of Tenant's Rent.
18. ASSIGNMENT AND SUBLETTING
a. Except as permitted in this Section 18.a. below, Tenant shall not assign this Lease
or any interest hereunder, or sublet the Premises or any part thereof, or permit the use of the
Premises by any party other than Tenant, without the prior written consent of Landlord to each
assignment and sublease, which consent shall not be unreasonably withheld, conditioned, or
delayed, subject to review by Landlord of such proposed assignee's, sublessee's, or user's
financials. Tenant may assign this Lease or sublet all or any part of the Premises (including a
license), such part of the Premises being in Tenant's sole discretion, without Landlord's consent,
to. (i) any entity controlling; Tenant, controlled by Tenant, or under common control with Tenant,
(ii) to an entity that Tenant contracts with to perform on -site third party warehouse management
and/or logistics services, (iii) to an entity into which Tenant is merged or consolidated, or (iv) to
an entity to which substantially all of Tenant's assets are transferred, but any merger, consolidation,
or transfer of assets must be for a legitimate business purpose and not principally for the purpose
of transferring Tenant's interest in this Lease. With respect to any assignment permitted by this
Section 18.a., the assignee shall become directly liable to Landlord, and with respect to any
assignment not requiring the approval of Landlord, either the assignee shall have a credit rating
and general financial wherewithal (as determined by Landlord in its reasonable discretion) equal
to or greater than that of Tenant, 01, 'Tenant shall remain fully obligated under this Lease.
Notwithstanding any provisions of this Section 18.a. to the contrary, Landlord agrees that Tenant
may permit, upon written notice to Landlord, Tenant's third -party logistics provider ("31?L,") to
occupy any portion of the Premises; provided, that said 3PL shall comply with all terms and
conditions of this Lease, and Tenant shall remain fully -obligated hereunder.
b. Subject only to Tenant's rights to allow the use ofthe Prem ises by its 3PL, Landlord
and Tenant agree that Landlord shall have the right, during the twenty-four (24) months following
the Commencement Date, to propose subtenants in connection with the Initial Unused Area, or
any portion thereof. In the event that Landlord proposes such a subtenant, and said subtenant is
approved by Tenant, which approval shall not be unreasonably withheld, conditioned, or delayed,
Tenant shall promptly enter into a sublease with said subtenant on terms and conditions reasonably
acceptable to Tenant. In connection with any sublease of the Initial Unused Area during the twenty-
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four (24) months following the Commencement Date, Landlord and Tenant shall equally share
any and all net profits related to said sublease, i.e. the sublease rents less the actual costs incurred
by either party in connection with said sublease; provided, that in no event shall Tenant's
Additional Rent hereunder be deemed an actual cost that will be deducted from the sublease rent
for the purposes of determined the net profits of the sublease. In no event shall Landlord propose
any sublease, the term of which would extend beyond the twenty-fourth (24t) month following
the Commencement Datc. In the event that Tenant unreasonably disapproves of any subtenant
proposed by Landlord pursuant to this Section 18.b., or Tenant unreasonably disapproves the terms
and conditions of any such sublease, then, notwithstanding any provisions hereof to the contrary,
Tenant will, as of the date of said disapproval, be required to begin paying Base Rent in connection
with the Initial Unused Area.
C. If Landlord transfers (other than for collateral security purposes) its ownership
interest in the Premises, the transferor is automatically relieved of all obligations on the part of
Landlord accruing under this Lease fi-om and after the date of the transfer, provided that: (a) the
transferee agrees in writing to assume such obligations, and (b) the transferor delivers or credits to
the transferee any funds the transferor holds in which Tenant has an interest (such as the Security
Deposit). Landlord's covenants and obligations under this Lease bind each successive; Landlord
only during and with respect to its respective period of ownership, but each transferor shall remain
entitled to the benefits of Tenant's releases, indemnities, insurance, and other similar obligations
under this Lease with respect to matters arising or accruing during the transferor's period of
ownership.
d. For the purposes ofthis Lease (i) "Landlord" shall include its heirs, representatives,
assigns, and successors in title to Premises, and (ii) "Tenant" shall include its heirs and
representatives, and if this Lease is assigned or subleased as permitted by this Lease, shall also
include Tenant's assignees or sublessees, as to Premises covered by such assignment or sublease.
19. DEFAULT; REMEDIES
a. The occurrence of any of the following shall constitute a "Tenant Default" under
this Lease:
i. Tenant fails to pay any Rent within five (5) days following its due date and
written request therefore; provided, that in no event shall Landlord be obligated to give
more than two (2) such requests in any twenty-four (24) month period, after which time
Tenant shall be in default if it fails to pay any Rent within five (5) days following its due
date;
ii. Tenant fails to maintain any insurance required by Tenant under this Lease
and such failure continues for more than ten (10) days after Tenant receives written notice
from Landlord demanding that 'Tenant cure such failure;
iii. Tenant fails to perform any of its obligations under this Lease other than the
payment of Rent or maintenance of insurance, and such failure continues for more than
thirty (30) days (or, in the case of Tenant's failure to timely deliver an estoppel certificate,
for more than fifteen (I5) days) after Tenant receives written notice from Landlord
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demanding that Tenant cure such failure, or if such failure cannot be cured within thirty
(30) days, within a period of time reasonably necessary to complete the cure so long as
Tenant has commenced and is diligently pursuing the cure within the original thirty (30)
day period;
iv. Tenant makes material misrepresentations or omissions in any financial
statements, correspondence, or other information provided to Landlord by Tenant in
connection with any consent or approval Tenant requests from Landlord under this Lease;
V. Tenant files a petition under any chapter of the Bankruptcy Code, or under
any federal, state, or foreign bankruptcy or insolvency statute, or 'tenant makes a general
assignment or general arrangement for the benefit of creditors;
vi, An involuntary petition is filed under any chapter of the Bankruptcy Code,
or under any federal, state, or foreign bankruptcy or insolvency statute, or a petition for
adjudication of bankruptcy or for reorganization or rearrangement is fled, by or against
Tenant and such filing not being dismissed within sixty (60) days;
vii. An order is entered for or against Tenant for relief under any chapter of the
Bankruptcy Code, or under any federal, state, or foreign bankruptcy or insolvency statute;
viii. A "custodian" is appointed, as such term is defined in the Bankruptcy Code
(or of an equivalent thereto under any federal, state, or foreign bankruptcy or insolvency
statute) for Tenant, or a trustee or receiver is appointed to take possession of substantially
all of Tenant's assets (or any of Tenant's assets located at the Premises) or of Tenant's
interest in this Lease; or
ix. Substantially all of Tenant's assets located at the Premises, or Tenant's
interest in this Lease, are subjected to attachment, execution, or other judicial seizure.
If court of competent jurisdiction determines that any act described in this Section 19,a.
does not constitute a Tenant Default, and the court appoints a trustee to take possession of the
Premises (or if Tenant remains a debtor -in -possession of the Premises), and such trustee or Tenant
transfers Tenant's interest hereunder, then Landlord is entitled to receive the same amount of Rent
as Landlord would be entitled to receive if such transfer had occurred pursuant to Section I S.
b, Upon the occurrence of any Tenant Default, Landlord may, without any demand or
notice (except as expressly required in this Section 19), elect any one or more of the following
remedies:
i. Landlord may terminate this Lease by giving written notice of termination
to Tenant, in which case this Lease shall terminate on the date specified in the notice, and
possession of the Promises shall immediately return to Landlord. Landlord may
immediately recover from Tenant all of Landlord's actual damages incurred by reason of
the Tenant Default, including, the following: (i) to the extent permitted by Applicable
Laws, the difference, discounted using the Treasury Yield (as defined in this Section
below), between the value of all Base Rent, Additional [tent, and all other sums which
would have been payable under this Lease by Tenant for the remainder ofthe Lease "term
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(the "Remaining Term"), and the aggregate reasonable rental value of the Premises for the
Remaining Term, as reasonably determined by Landlord taking into consideration all
relevant factors; plus (ii) all reasonable costs of recovering possession of the Premises and
all reasonable costs incurred by Landlord due to the Tenant Default, including reasonable
attorneys' fees; lLus (iii) all unpaid Base Rent and Additional Rent accrued as of the date
of termination, including Service Charges thereon and interest thereon at the Maximum
Rate, plus (iv) all other sums of money and damages owed by Tenant to Landlord on the
date of termination; plus (v) all other amounts reasonably necessary to compensate
Landlord for all damages caused to Landlord by Tenant's Default, including reasonable
attorneys' fees. Additionally, any of Tenant's property remaining in the Premises may be
removed by Landlord and stored in a warehouse at Tenant's cost without Landlord being
deemed guilty of trespass or becoming liable for any loss or damage to Tenant's property.
If Tenant fails to pay the storage charges for Tenant's property as and when due, Landlord
may deem such property abandoned and cause such property to be sold or otherwise
disposed of without further obligation or any accounting to Tenant. "Treasury Yield" shall
mean the rate of return per annum of Treasury Constant Maturities as published in
document H.15 by the Board of Governors of the U.S. Federal Reserve System for the day
on which the termination occurs, or if the termination occurs on a day on which Treasury
Constant Maturities are not published, for the prior business day. The Treasury Constant
Maturity Rate utilized shall be for the term closest to, but not exceeding, the number of
months remaining in the Remaining Term. if the publishing of the rate of return of Treasury
Constant Maturities is ever discontinued, then the Treasury Yield shall be based upon an
index which, in Landlord's reasonable determination, most nearly corresponds to the rate
of return of Treasury Constant Maturities.
ii. Landlord may terminate Tenant's right to possess the Premises without
terminating this Lease, in which case Tenant will immediately surrender possession of the
Premises to Landlord. In such case, this Lease will continue in full force and effect (except
for Tenant's right to possess the Premises), and 'tenant shall continue to be obligated for
and pay all Rent as and when due under this Lease. Unless Landlord specifically states that
it is terminating this Lease, Landlord's termination of Tenant's right to possess the
Premises shall not be deemed an election by Landlord to terminate this Lease. If Landlord
terminates Tenant's right to possess the Premises, Landlord may re-enter the Premises,
remove all of Tenant's property from the Premises, and store the same in a warehouse at
Tenant's cost without Landlord being deemed guilty of trespass or becoming liable for any
loss or damage to Tenant's property. If Tenant fails to pay the storage charges as and when
due, Landlord may deem Tenant's property abandoned and cause such property to be sold
or otherwise disposed of without further obligation or any accounting to Tenant. Upon
such re-entry, Landlord will use commercially reasonable efforts to relet all or any part of
the Premises to a third -party or parties for Tenant's account. Tenant will be immediately
liable to Landlord for all Reentry Costs (as defined in this Section below) and must pay
Landlord such Re-entry Costs within fifteen (15) days after receipt of Landlord's written
demand to Tenant for payment of same (which shall include reasonable: evidence of all
such Re -Entry Costs). Landlord may re let the Premises for a period shorter or longer than
the Remaining Term. If Landlord relets all or any part of the Premises, Landlord will, on
a monthly basis, credit any Net bent (as defined in this Section below) received for the
current month against Tenant's Rent obligation for the next succeeding month. If the Net
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Rent received for any month exceeds Tenant's Rent obligation under this Lease for such
month, Landlord will apply the surplus to succeeding months. "Re-entry Costs" means all
reasonable and actual costs of any kind or nature that Landlord incurs with respect to re-
entering and reletting all or any part of the Premises after and during the continuation of
Tenant Default, including, without limitation, all costs related to: (a) maintaining or
preserving the Premises; (b) recovering possession of the Premises, (c) removing persons
and property from the Premises and storing such property, including court costs and
reasonable attorneys' fees; (d) renovating or altering the Premises for a similar Permitted
Use (i.e. cross dock for light manufacturing, distribution, and/or warehousing); (e) the
value of reasonable free rent and other concessions Landlord gives to a third -party in
connection with reletting all or any part of the Premises, and/or (0 real estate commissions,
advertising expenses, and similar expenses related to relctting the Premises. "Net Rent"
means all rent Landlord receives from reletting all or any part of the Premises after
deducting any unpaid Re-entry Costs and any other amounts owed by Tenant to Landlord.
iii. Landlord may pursue such other remedies under Applicable Laws or in
equity. Landlord shall use its commercially reasonable best efforts to mitigate any
damages.
C. A "Landlord Default" shall occur if Landlord fails to perform any of its obligations
under this Lease within thirty (30) days following Landlord's receipt of notice from Tenant
demanding that Landlord cure such failure, or if such failure cannot be cured within thirty (30)
days, within a period reasonably necessary to complete the cure so long as Landlord has
commenced and is diligently pursuing the cure within the original thirty (30) day period. Any
Landlord Default notice from Tenant to Landlord shall state the nature and extent of the asserted
failure and identify the provisions of this Lease containing the obligations of Landlord that Tenant
asserts Landlord has failed to perform. If Tenant receives written notice of a Mortgagee's name,
address, and a request for notice upon a Landlord Default, Tenant shall provide the same notice
required by this Section 19.c. to such Mortgagee at the same time Tenant gives notice to Landlord.
If a Landlord Default occurs, Tenant shall have the right to: (i) sue for damages sustained by reason
ofthe Landlord Default; (ii) perform the obligations described in Tenant's default notice, in which
case Landlord shall reimburse Tenant for the reasonable costs of the performance of such
obligations within thirty (30) days after Tenant's submission of an invoice therefor to Landlord
and if such costs are not paid within said thirty (30) day period then Tenant shall have the right to
offset the same against the next due Base Rent until the same has been fully credited; provided,
that in no event may Tenant offset greater than fifty percent (50%) of Base Rent in any month;
and/ or (iii) pursue any remedy available to 'Tenant under Applicable Laws or in equity. If Tenant
elects to proceed under clause (i i) above, then such Landlord Default shall be deemed to have bccn
cured when Tenant's costs has been reimbursed in full.
d. No provision of this Lease shall be deemed to have been waived by either party
unless such waiver is in writing and signed by the party making such waiver. No custom or
practice which may grow up between the parties in connection with the terms of this Lease shall
be construed to waive or lessen either party's right to insist upon strict performance of the terms
of this Lease, without a written notice thereof to the other party.
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20. WAIVER OF CLAIMS AND SUBROGATION
Notwithstanding anything in this Lease to the contrary, neither landlord nor Tenant shall
be liable to the other for any loss arising out of damage to or destruction of the Premises, the
Building, or the contents of any part thereof, when such loss is caused by any perils which are, or
should be, insured against by the insurance policies required to be carried by Landlord and Tenant
under this Lease. All such claims for all loss are hereby waived. Said waiver of liability is effective
whether the damage or destruction is caused by the negligence of either Landlord, a Landlord
Party, Tenant, or a Tenant Party. It is the agreement of Landlord and Tenant that the Rent under
this Lease contemplates that each of Landlord and Tenant shall fully provide its own insurance
protection, and that each of Landlord and Tenant shall look to its respective insurance carriers for
reimbursement of any such loss; and that the insurance carriers involved shall not be entitled to
subrogation under any circumstances against any party to this Lease. Neither Landlord nor Tenant
shall have any interest or claim in the other's insurance policy or policies, or the proceeds thereof,
unless specifically covered therein as an additional insured. Any property insurance policy
maintained by either of Landlord or Tenant must permit or include a waiver of subrogation in favor
of the other party consistent with the provisions of this Section 20.
i 1#3ta11KTeM;t 110.1i119a10.11Y1110
a. The term "Mortgage' as used in this Lease shall include ground leases, deeds of
trust, and deeds to secure debt. Tenant agrees that, in the event of foreclosure of any such
Mortgage, or the sale of the Premises under the power contained therein, Tenant will attorn to and
accept the purchaser at any such sale as Landlord for the balance of the then -remaining Lease Term
so long as said purchaser agrees in writing to be bound by the terms and conditions of this Lease.
b. Tenant agrees that in the event of a Landlord Default, or any other occurrence which
would give "Tenant the right to terminate this Lease, to claim a partial or total eviction, or to reduce
any Rent payments hereunder, Tenant shall not exercise any of the foregoing rights: (a) until it has
notified in writing the holder of any Mortgage (a °°Mortgagee") of such Landlord Default, (b) until
a reasonable period of time, not exceeding; thirty (30) days, for commencement of remedying such
Landlord Default shall have elapsed following notice to the Mortgagee, and (c) unless Landlord
or Mortgagee, with due diligence, shall not have remedied, or commenced and be continuing to
remedy diligently to completion, such Landlord Default. Tenant agrees that it shall execute
reasonable documentation presented to Tenant by Landlord, including a subordination and non -
disturbance agreement ("SNDA"), for the purposes of subordinating Tenant's interests to those of
any Mortgagee. On the Effective Date, and upon Tenant's request, Landlord shall, and shall cause
its Mortgagee to, enter into a mutually agreeable SNDA with Tenant. Further, Tenanl agrees that
any such documentation shall not bind the Mortgagee with respect to any construction obligations
of Landlord under this Lease.
22. SIGNAGE
Tenant shall have the right to install, at Tenant's sole cost, building -standard signage,
subject to Applicable Laws and Landlord's approval, which shall not be unreasonably withheld,
conditioned, or delayed. Tenant agrees that no other signs, other than as approved by Landlord,
shall be erected or painted which are visible outside the Premises. All signage shall be removed
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by Tenant at its sole cost on or prior to the expiration or earlier termination of the Lease, and
Tenant shall repair all damage to the Premises or the Property resulting from its removal of such
signage.
23. LANDLORD'S RIGHT OF ENTRY
Landlord, or a Landlord Party, may enter the Premises at reasonable hours and upon
reasonable notice (at least 24 hours' notice except in the case of emergency) to Tenant, examine
the Premises and to do anything Landlord may be required to do to satisfy its obligations under
this Lease or which Landlord deems necessary for the good ofthe Premises or the Building, except
that Landlord shall be accompanied by a representative of Tenant. No notice or Tenant
accompaniment shall be required in the case of emergencies. During the last nine (9) months of
this Lease, Landlord may show the Premises and display a "For Rent" sign on the Premises.
Landlord shall enter the Premises at its own risk and shall use all measures reasonably necessary
to minimize; any interference with Tenant's use of the Premises.
24. EFFECT OF TERMINATION OF LEASE
No termination of this Lease prior to the scheduled expiration of this Lease shall prevent
Landlord's from collecting Rent for the period prior to termination of the Lease.
25. NO ESTATE IN LAND
This Lease shall create only the relationship of landlord and tenant between the parties, and
no estate in the Land or Property shall pass out of Landlord to Tenant.
26. HOLDING OVER
If Tenant remains in possession of the Premises after expiration of the Lease Term, or fails
to return the Premises to Landlord in the manner and condition required by this Lease, Tenant shall
be a Tenant at sufferance and all of the terms and provisions of this Lease shall be applicable
during the period following the Lease Term (the "Holdover Period"), exce t that durin the
Holdover Period Landlord shall have the right to charge Base Rent equal to
of the Base Rent payable by Tenant during the last month of the Lease Term.
If during any Holdover Term, Landlord provides to Tenant written notice that Landlord has leased
the Premises, or any portion thereof, to a third -party, and Tenant does not vacate the Premises
within sixty (60) days following its receipt of said notice, Landlord shall have the right to seek
actual and consequential damages caused by Tenant's possession of the Premises following said
60-day period. Tenant agrees to vacate and deliver the Premises to Landlord within thirty (30) days
following Tenant's receipt of written notice from Landlord to vacate Premises. Tenant's
occupancy or possession of the Premises during; the Holdover Period shall not extend the Lease
Term.
27. WAIVER
The rights and remedies of Landlord under this Lease, as well as those provided by
Applicable Laws, shall be cumulative. A waiver by Landlord or Tenant of any Tenant Default or
Landlord Default, respectively, shall not be construed to be a continuing; waiver of such 'tenant
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Default or Landlord Default, nor as a waiver of any subsequent Tenant Default or Landlord
Default. The acceptance by Landlord of any installment of Rent after its due date shall not alter
the obligation of Tenant to pay subsequent installments of Rent promptly when due. No receipt of
money by Landlord from Tenant after the expiration or termination of this lease shall reinstate
the Lease or extend the Lease Term.
28. NOTICES
All notices or other communications required or permitted hereunder shall be in writing
and delivered via personal delivery, U.S. Mail, overnight delivery service, or electronic mail,
addressed to the respective parties as follows:
Notices to Tenant: Ariat International, Inc.
3242 Whipple Road
Union City, CA 94587
Attn: Legal Department
Phone: 510-477-7000
With copy to: Renesch Friedlander Coplan & Aronoff I,I,P
200 Public Square, Suite 2300
Cleveland, OH 44114
Attn: Joel R. Pentz, Esq.
Phone: 216-363-4500
Ismail: jpentz(cbeneschlaw.com
Notices to Landlord: NP-OV Fort Worth Project 1, LLC
4825 NW 4111 Street, Ste. 500
Kansas City, Missouri 64150
Attn.- Nathaniel Hagedorn
Phone. 816-888-7381
Email; nathaniel(a�northpointkc.com
With a copy to: NorthPoint Development, LLC
4825 NW 411� Street, Ste. 500
Kansas City, Missouri 64150
Attn: Tim Klink
Phone: 816-895-8201
Email: tklink[a7northpointkc.com
Notices shall be deemed received by the recipient (i) when personally delivered, (ii) with
respect to certified U.S. mail or overnight delivery service, on the date that delivery is made to the
recipient, and (iii) with respect to electronic mail, when the electronic mail is sent by the sender
so long as the sender provides a copy of such notice to the recipient via another delivery method
permitted by this Lease within three (3) days following the electronic mail. Landlord or Tenant
may update its contact information set forth above upon ten (10) days' prior written notice to the
other party. Rejection or other refusal to accept any notice, or the inability to deliver notice because
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of a changed address for which no notice was given, shall be deemed to constitute receipt of any
notice sent hereunder.
29. TIME OF ESSENCE
Time is of the essence of this Lease.
30. BANKRUPTCY
Neither this Lease, nor any interest herein, nor any estate hereby created, shall pass to any
trustee or receiver in bankruptcy, or to any other receiver or assignee for the benefit of creditors or
otherwise by operation of law during the Lease Term.
31. GOVERNING LAW
This Lease shall be governed by the laws of the State of Texas.
32. ENTIRE AGREEMENT
This Lease contains the entire agreement between Landlord and Tenant, and no
modifications of this Lease shall be binding; upon Landlord or Tenant unless evidenced by an
agreement in writing signed by each of Landlord and Tenant following the Effective Date.
33. ATTORNEY'S FEES
In any action legal action between Landlord and Tenant under this Lease, the unsuccessful
Marty shall pay all costs incurred by the prevailing party, including rcasonably attorneys' fees.
34. ESTOPPEL CERTIFICATES
Landlord and Tenant each agree to certify in writing the status of this Lease and the Rent
payable hereunder, at any time, upon ten (10) days written notice from the other party. Such
estoppel certificate shall be in a form reasonably satisfactory to: (i) Landlord, (ii) Tenant, (iii) any
governmental authority or public agency, (iv) a prospective purchaser of the Property, (v) a
prospective, permitted assignee or sublessee of Tenant, and (vi) a prospective holder of security
instrument executed by Landlord or Tenant, as the case may be. Such estoppel certificate shall
certify: (i) the Commencement Date, (ii) the expiration date of the Lease Term, including any
extensions thereof, (iii) whether or not this Lease is in full force and effect, (iv) whether or not this
Lease has been amended or modified, and if so, in what manner, (v) the date through which Rent
has been paid, (vi) whether or not there are any known Tenant ❑efaults or Landlord Defaults, and
if so, specifying the particulars of such default and the action required to remedy it, (vii) whether
or not there are any known setoffs against, or defenses to, the enforcement of the terms and
conditions of this Lease, and if so, specifying the particulars of such setotTs or defenses, and (viii)
such other factual information as the requesting party reasonably requests and which is customary.
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35. RULES AND REGULATIONS
The rules and regulations attached to this Lease as Exhibit E are hereby made a part of this
Lease, and Tenant agrees to comply with and observe the same. Tenant's failure to keep and
observe the rules and regulations shall constitute a Tenant Default. Landlord reserves the right to
make reasonable amendments, supplements, and additions to said rules and regulations. Written
notice specifying amendments, supplements, and additions to the rules and regulations shall be
given to 'Tenant and shall not be enforceable prior to thirty (30) days after Tenant's receipt of such
notice. Tenant agrees to comply with and ❑bserve all rules and regulations, and all amendments,
supplements, and additions thereto so long as the same do not materially increase Tenant's
obligations or costs under this Lease.
36. )FORCE MAJEURE
Landlord or Tenant shall be excused, without penalty, for the period of any delay in the
performance of any obligations hereunder when prevented from doing so by causes beyond its
control, which shall include acts of God, inclement weather events, governmental restrictions, the
inability of any utility company or provider to connect or provide utility services to the Building
or Premises, strikes, labor disturbances, shortages of materials or supplies and the inability to
obtain reasonable substitutes, and actions or inactions of governmental authorities (but not
violations of Applicable Laws) (a "Force Majeure Event"). In connection with any Force Majeure
Event, the party claiming such Force Majeure Event must use commercially reasonable efforts to
mitigate the effect of such Force Majeure Event and provide the other party with written notice of
the same within ten (10) days of the occurrence thereof. Nothing contained in this Section 36 shall
excuse either party from paying in a timely fashion any payments due under the terms of this
Lease.
37. QUIET ENJOYMENT
Landlord warrants that it has the right to execute and to perform this Lease and to grant the
tenancy of the Premises to Tenant. If no Tenant Default exists, Tenant shall peaceably and quietly
have, hold, and enjoy the Premises during the Lease Term without hindrance by Landlord.
38. EXCULPATION
Tenant agrees that it shall look solely to Landlord's interest in the Property, including,
without limitation, the Building, and Landlord's personal property used in connection with
Property, for the satisfaction of any claim or judgment requiring the payment of money by
Landlord, and no other propcily or assets of Landlord or any Landlord Party shall be subject to
levy, execution, or other enforcement procedures for the satisfaction of any such claim or
judgment; provided, however, Tenant shall also have the right to satisfy any judgment against
Landlord and/or NorthPoint Holdings, LLC by offsetting Base Rent due under this Lease;
provided, that in no event may Tenant offset greater than fifty percent (50%) of Base Rent in any
month. Tenant agrees that no Landlord Party will be personally liable for any claim or judgment
in connection with this Lease. In no event shall Landlord or any Landlord. Party be liable to Tenant,
Tenant Party, or any other person for consequential, indirect, special, or punitive damages.
39, DUE AUTHORIZATION AND EXECUTION
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Landlord and Tenant each represent and warrant to the other that this Lease has been duly
authorized, executed, and delivered by and on behalf of such party and constitutes the valid and
binding agreement of such party.
40. MAXIMUM RATE
If Tenant does not pay any amount required under this Lease when due, Tenant shall pay
Landlord interest on the delinquent payment, calculated at the Maximum Rate from the date the
payment is due through the date the payment is made. Such interest will be considered Additional
Rent and will be in addition to any of Landlord's other remedies under this Lease. "Maximum
Rate" means interest at a per annum rate equal to two (2) percentage points in excess of the "prime
rate" of interest then charged by UMB Bank, N.A., or if UMB Bank, N.A. is not then in existence,
another comparable bank selected by Landlord. if the Maximum Rate exceeds the maximum
interest rate permitted by Applicable Laws, such rate will be reduced to the highest rate allowed
by Applicable Laws.
41. NO ACCORD AND SATISFACTION
No statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to Tenant, cash such
check without being bound by the conditions of any such statement. If Tenant pays any amount
other than an actual amount due to Landlord, receipt of such partial payment will not constitute an
accord and satisfaction. Landlord may retain any such partial payment, whether restrictively
endorsed or otherwise, without prejudice to Landlord's right to collect the balance due under this
Lease. if all or any portion of any payment is dishonored for any reason, payment will not be
deemed made until the entire amount due is actually collected by Landlord. The foregoing
provisions apply to the receipt or collection of any amount by any person on Landlord's behalf.
42. CONFIDENTIALITY
Each party acknowledges and agrees that the terms of this Lease are confidential and
constitute proprietary information. Disclosure of the terms could adversely affect the ability of
Landlord to negotiate other leases and impair Landlord's relationship with other tenants, or could
benefit Tenant's competitors or impair Tenant's relationships with its vendors and suppliers.
Tenant agrees that it and each Tenant Party shall not intentionally or voluntarily disclose the terms
and conditions of this Lease to any newspaper, publication, any other tenant or apparent
prospective tenant of the Building, or real estate agent, either directly or indirectly, without the
prior written consent of Landlord, but Tenant may disclose the terms of this Lease to prospective,
permitted subtenants or assignees. Landlord agrees that it and each Landlord Party shall not
intentionally or voluntarily disclose the amounts of the Base Rent or any other aspect of the rent
structure of the Lease, or any information about the nature, design, operation, methods or
equipment used in the conduct of Tenant's business in the Premises. Landlord and Tenant may
make disclosures if required by Applicable laws, and to their attorneys, lenders, accountants,
auditors, consultants, and others with a valid business reason to review this Lease for a good faith
business purpose.
43. RIGHT OF FIRST REFUSAL TO PURCHASE
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Provided there is no current Tenant Default beyond any applicable notice and opportunity
to cure periods, if at any time after the Effective Date and prior to the expiration of the Lease Term
(as the same may be extended hereunder) Landlord receives an offer from a third -party (the "Third
Party Purchase Offer") to purchase all or a portion of the Property which contains the Premises
and the Common Areas of the Property, which Third Party Purchase Offer Landlord intends to
accept, then prior to accepting such Third Party Purchase Offer, Landlord shall provide written
notice to Tenant (the "First Purchase Refusal Notice") offering to sell to Tenant the Property upon
the same terms and conditions set forth in the Third Party Purchase Offer, which First Purchase
Refusal Notice shall include a copy of the executed Third Party Purchase Offer (to the extent the
same is not subject to any confidentiality provision). Tenant may, within ten (10) days after
Tenant's receipt of the First Purchase Refusal Notice, elect to purchase the Property upon
substantially the same terms and conditions set forth in the Third Party Purchase Offer by sending
to Landlord a written notice of its irrevocable election to purchase the Property. If Landlord does
not receive from Tenant a written irrevocable notice to purchase the Property within such I0-day
period, then Tenant shall be deemed to have elected not to purchase the Property, Landlord may
thereafter sell the Property to the third -party offeror at substantially the same terms and conditions
as the Third Party Purchase Offer. In the event that the terms and/or conditions of such Third Party
Purchase Offer materially change and/or title does not close within nine (9) months after the First
Purchase Refusal Notice, then, in any of such events, Landlord shall again reoffer the Property to
Tenant in accordance with this Section 43, If Tenant shall timely notify Landlord of its election
to purchase the Property in accordance with this Section 43, Landlord and Tenant shall promptly
enter into a reasonable and customary contract to purchase the Property (the "Purchase
Agreement,") upon substantially the same terms and conditions contained in the Third Party
Purchase Offer, which Purchase Agreement shall be entered into within ten (10) business days of
Landlord's receipt of Tenant's notice of Tenant's intent to purchase the Property as set forth above;
provided, that in any event, said Purchase Agreement shall contain provisions by which Landlord
grants to Tenant access easements over and across the Driveway and Shared Driveway. Any
termination of this Lease shall terminate Tenant's right of first refusal under this Section 43. The
rights contained in this Section shall not be continuing rights which survive any sale of Landlord's
interest to others and shall not bind any successors or assigns of the Landlord originally named
herein. The provisions of this Section 43 shall not apply to any transaction in which the Property
is to be sold as a portion of a larger portfolio sale or in which the Property is to be sold with any
other real property.
44. BROKER
Tenant represents and warrants to Landlord that no agent, broker, or realtor other than
Jones Lang LaSalle ("Tenant's Broker") has been involved with respect to this Lease on behalf of
Tenant. Tenant, other than with respect to Tenant's Broker, indemnifies and holds Landlord
harmless from any claims, liabilities, losses, costs and expenses incurred by Landlord with regard
to any claim by any person or entity that it is entitled to compensation as a result of this Lease
through its relationship with Tenant. Landlord represents and warrants to Tenant that no agent,
broker, or realtor other than CBRE, Inc. ("Landlord's Broker") has been involved with respect to
this Lease on behalf of Landlord. Landlord, other than with respect to Landlord's Broker,
indemnifies and holds Tenant harmless from any claims, liabilities, losses, costs and expenses
incurred by Tenant with regard to any claim by and person or entity that it is entitled to
35
12923849 v
compensation as a result of this Lease through its relationship with Landlord. Landlord shall pay
all commissions to Tenant's Broker and Landlord's Broker pursuant to separate agreement(s).
45, OFAC COMPLIANCE
Tenant represents and warrants to Landlord that Tenant is not a party with whom Landlord
is prohibited from doing business pursuant to the regulations of the Office of Foreign Assets
Control ("OFAC") of the U.S. Department of the Treasury, including those parties named on
OFAC's Specially Designated. Nationals and Blocked Persons List. Tenant is currently in
compliance with, and shall at all times during the Lease Term remain in compliance with, the
regulations of OFAC and any other governmental requirement relating; thereto, In the event of any
violation of this section, Landlord shall be entitled to immediately terminate this Lease and take
such other actions as are permitted or required to be taken under law or in equity. TENANT
SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS LANDLORD FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, RISKS, LIABILITIES AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COSTS) INCURRED BY LANDLORD
ARISING FROM OR RELATED TO ANY BREACH OF TIIE FOREGOING
CERTIFICATIONS. These indemnity obligations shall survive the expiration or earlier
termination of this Lease.
46. MISCELLANEOUS
a. Separate Counterparts. This Lease may be executed in one or more counterparts,
each of which shall be deemed to be an original, and all of which together shall constitute one and
the same instrument, Facsimile, portable document format (PDF), or other electronic copies of
signed counterparts of this Lease shall have the same effect as an original signed counterpart.
b. Captions and Section Numbers. The captions, section numbers, article numbers,
and headings appearing in this Lease are inserted only as a matter of convenience, and in no way
define, limit, construe, or describe the scope or intent of such sections or articles of this Lease,
C. Partial Invalidity. If any term, covenant, or condition of this Lease, or the
application thereof to any person or circumstance, shall to any extent be invalid or unenforceable,
the remainder of this Lease or the application of such terra, covenant, or condition of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
d. No Third -Party Beneficiary. Nothing herein expressed or implied is intended or
shall be construed to confer upon any person or entity, other than the parties hereto and their
successors or permitted assigns, any rights or remedies under this Lease.
C. Memorandum of Lease. This Lease shall not be recorded; provided, however,
Landlord and Tenant shall enter into a memorandum of lease at the request of either party and may
be recorded of record by the requesting party.
f. WAIVER OF JURY TRIAL, LANDLORD AND TENANT EACH WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY
36
12923849 v l
WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, OR TENANT'S USE AN❑ OCCUPANCY OF THE PROPERTY.
[Signature Pages Fallow]
37
12923849 ul
IN WITNESS WHEREOF, Tenant hereby executes this Lease as of the Effective Date
set forth on the first page hereof
TENANT:
Ariat International, Inc., a California corporation
By:
Name: Pankaj Gupta
Title: COO/CFO
38
129239,19 v 1
IN WITNESS WHEREOF, landlord hereby executes this Lease as of the Effective Date
set forth on the first page hereof.
LANDLORD:
NP-OV Fort Worth Project 1, LLC, a Delaware
limited liability company
By: NPD Management, LLC, its Manager
By:
Nathaniel I [af darn, Manager
NorthPoint Holdings, LLC executes this Lease for the sole purpose of agreeing to the specific
covenant of NorthPoint. Holdings, LLC set forth in Section 6.d. hereof.
NorthPoint Holdings, LLC, a Missouri
limited liability company
By:
Nathaniel edorn, Manager
39
12923849 vI
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) XI I1BI`I' A-2: LEGAL DESCRIPTION OF THE LAND
BEING c tract of land altucted In the A. King Survey, Abstract No. 710. the W. Sample Survey, Abstract No. 1207. the L.
Butler Survey, Abstract No. 64, and the A. Robertson Survey, Abstract No. 1553. Denton County, Texas and being port of
that aertoin tract of land descrlbed by dead to M.T. Cale Family Partnership Number 2, LP, recorded In Instrument
Number 2009-102749, Deed Records, Denton County, Texas, said tract of land being more particularly described by metes
and bounds as follows:
COMMENCING of a point in the northerly right—of—way Ilne of F.M, 156 (variable width public right—of—way), recorded in
Instrument Number 2007-110923, Deed Records, Denton County, Texas, the southeast corner of Lot 4, Black I, Dave
Addition, an addition to the City of Fort Worth, according to the plot retarded in Instrument Number 2018-152, Plat
Records, Denton County, Texas, in a non —tangent curve to the left having a central angle of 15'36'59', a radius of
2,964.79 feet, a chord bearing and distance of South 84'36'55' West — 805,57 feet and from which a found 1/2" Iran
rod with cap stomped "5PIARS ENG" bears South 80'58'17" East, a dlstonce of 0-90 feet;
With the north right —of --way line of said F.M. 156 the fallowing courses and distances:
With said non—Longent curve to the left in a southwesterly direction, an aft length of 808.07 feet to a paint for the
moat southerly Southwest corner of sold Lot 4, Block 1, Dave Addition, being in canterline of Elizabeth Creek and the
PONT OF BEGINNING of herein described tract of land and the beginning of a non —tangent curve to the left having
0 central angle of 05'26'35",a radius of 2,964,79 and a chard bearing and distance of South 74'OS'09' Weet
291.54 feet:
WEth sold non —tangent curve to the left In a southwesterly direction, an are length of 261.65 feet to a paint;
South 81'12'39" Wtst, a distance of 108.20 feet to a point for the beginning of a non —tangent curve to the left
having o central angle of 26'37'57", a radius of 2.984.79 feat and a chord bearing and dlelonce of South 56'02'18"
West — 1,374.95 fast;
With said non —tangent curve to the left in a southwesterly direction, on arc length of 1,387.40 feet to a point;
South 47'16'39" East, a distance of 20,00 feet to a point for the beginning of a non —tangent curve to the left
having a central angle of 01'11'35, a radius of 2.964,79 feet and a chord bearing and distance of South 42'07'32"
West -- 61.73 feet;
Wlih Bald non—tongent curve to the left in a southwesterly clYoction, on arc length of 61.73 feet to a paint;
South 41`3145 West, a distance of 2,266.16 feet to a point for the beginning of a curve to the left having central
angle of OW50'15", a radius of 4,683.66 feet and o chord bearing and dlatonce of South 41'06'37" West — 68.46
feet;
With said curve to the left in a southwesterly direction, an are length of 68.46 feet to a point in the
northerly right—of—way line of said F.M. 156;
THENCE North 47'51'10" West, departing the northerly right—of—way line of said F.M. 156, crossing Into said M.T. Cole
Fomlly Partnership No. 2, LP, a distance of 102.37 feet to a point;
THENCE North 41'00'38" West, a distance of 100.72 feet to a point;
THENCE North 47'51'10" west, a distance of 888.32 feet to a point;
Continued.,...
A drawing of even date accompanies
this mates and bounds description -
DATE: JUNE 5, 2019
DUNAWAY
$50 8aJey Avenue . S�ire 400 . Fa! Worth. Texas 76107
fill, 817.335.1121
FIRMREGISTRAIION 1D09W00
t ` O+F+.;
STEPHEN R. GLOSUP
5570 ' r
�Ir
PACE z o1- 3
DUNAWAY J013 NO, 8003816,003
12923849vI
Continued......,...
THENCE North 41'31'45" East, a distance of 1.171,00 feet to o polnt;
THENCE North 19'04'13" Lost, a distance of ItZSCI feet tc a point;
THENCE North 41'31'45" East, a distance of 75.59 feet to a point;
THENCE North 63'59'17" East, a distance of 117.8E feet to a paint;
THENCE North 41'31'45" East, a distance of 888.30 feet to a polnt In the southerly line of a certain tract of land
described in deed to Forestar (USA) Real Estate Group, Inc, recorded in Instrument Number 2016-27156, Deed Rocords,
Denton County, Texas and the opproximate eenterline of Elizabeth Creek:
THENCE with the approximate centerline of said Elizabeth Crack and with the southerly line of sold to Forestor (USA) Raul
Eetote Grauer Inc, tract the following courses and dlstcnces:
South 61'35'42" East, a distance of 77,25 feet to a point;
South 75'35'06" East, a distance of 572.39 feet to a paint:
North 77'13'32" Last, a distance of 487.75 feet to o point;
North 29'10)8" East, a distance of 163.71 feet to a point;
South 80'48'42" East, a distance of 175.36 feet to a point;
North 67'02'13" East, a distance of 406,53 feat to in point;
North 4737'34" East, a dlstnnce of 257.66 feet to a paint;
North 36'41'52" East, a distance of 119.87 feet to a point;
North 80'04'54" East, a distance of 80.79 feet to a paint;
South 55'06'26" Lost, a distance of 248.69 feet to a point;
South 04'57'53" East, a distance of 13441 feet to a paint;
South 65'53'00" East, a distance of 67,91 feet to the POINT OF BEGINNING and containing a calculated area of
.3.257,120 square feet or 74.773 acres of land.
NOTES: The basis of bearings for this boundary Is the Texos Coordinate System of 1983, North Central Zone, 4202,
based upon CPS measurements, according to the GP3 Reference Network.
A drawing of even dote accompanies this motes and bounds description.
The metes and bounds description contained herein wos Compiled from information contained in recorded documents
and does not reflect the results of an on the ground survey-
DUNAWAY J013 NO. E1003816.003 PACE 3 OF 3
1
steprArnl G oSup CCSTEPH�ENR-
Registered Professional Land Surveyor Texas Registration No. 557E psrg@dunawayassaclates,com June 6, 2019
UPDUNAWA I
SSA Reiloy Avonuo + Suitu 4M • Fnrt Wailh, romm 761 Of
Tel: 01 f 1395 1121
FIRM REGISfRANON I0a98100
42
EXHIBIT "A"
ANNEXATION OF
74.773 ACRES OF LAND
A PART OF THE
A. KING SURVEY, ABSTRACT NO, 710,
THE W. SAMPLE SURVEY, ABSTRACT NO, 1207,
THE L. BUTLER SURVEY A85TRACT NO. 64, AND
THE A. ROSE I -SON SURVEY, A6$T9ACT NO. 1553,
DEN roN COUNTY, TEXAS.
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L"X11113IT A-S: LEGAL DESCRIVI'ION OF THE PROPERTY
TO BE ADDED WITHING THIRTY (30) DAYS FOLLOWING THE EFFECTIVE DATE
45
12921R49 vI
EYdiIBIT B. EASE RENT SCHEDULE
* The Base Rent rate shall be applied to the entirety of the Premises beginning oil the 16th day of
the twenty-fourth (24th) month following the Conunence:neut Date.
** These auiotnxts remain subject to revision based upon the Final Measurements as provided in
the Lease.
46
12923849 vl
EXHIBIT C-1: BASE BUILDING IMPROVEMENTS
Division 1 —General Requirements
I.I Summary of the Work
A. Scope of Work:
1. The scope of construction work to be furnished by the Contractor shall include all
necessary site improvements and construction as generally depicted on the attached
exhibits. The building shall be constructed with shallow foundation systems, concrete
slab -on -grade, conventional steel framing and metal roofdeck, load -bearing site -cast
concrete wall panels, storefront glass, a mechanically fastened TPO roof system, and
shall include a full coverage 15FR fire suppression system, as well as complete
mechanical, electrical, fire alarm, and plumbing systems.
2. The scope of design work to be furnished by the Contractor shall include:
- mechanical design
- plumbing design
- electrical design
- fire protection design
- fire alarm design
3. The scope of design work to be furnished by the Developer shall include:
- civiUsite design
- landscape design
- architectural design
- structural design
4. Contractor shall be responsible for coordinating all design and construction work within
their scope with design and construction work being furnished by the developer. Cost
related to the lack of coordination is the sole responsibility of the contractor,
1.2 Building Parameters
A. FWLC Building 2 (spec building)
I. Gross Building Area: +1- 1,069,818 GSIa (measured to exterior face of wall panels and
exterior face of storefront framing)
2. Overall Building Dimensions: 570'x 1,872' (excluding bump -outs)
3. 'Typical Column Bay Spacing
a. Storage Bays: 52'x 50'
b. Forklift Speed Bays: 52'x 60'
4. Building Clear Height: 36'- 0" (measured to the bottom of joists 6" inside of first Column
1 i ne)
5. Dock Door Quantity: 108
6. Drive -In Door Quantity: 4
1.3 Applicable Codes
A, All design and construction work shall be performed in accordance with the currently adopted
Codes and regulations of the City of Fort Worth, the County of Denton, and State of Texas
requirements as well as all applicable Federal laws, including the Americans With Disabilities Act
(ADA). energy codes, on -site and off -site drainage requirements, and local Fire Marshall
requirements.
1.4 Permit and fees
47
12923349 vI
A, Contractor shall be responsible for coordinating the permitting process, including submission of
signed/sealed construction documents in accordance with the requirements of the authorities
having jurisdiction.
B. The contractor shall pay the following fees as direct reimbursables without mark-up: all city, state,
and county fire and building permit fees, and plan review fees. The cost of such fees shall not be
included in the base bid.
C. Contractor shall pay for all other miscellaneous permit fees and inspection fees.
D. The contractor shall obtain the necessary FAA crane Fees and/or clearance fees as applicable for
the construction of the building.
E. Developer will pay directly for the following fees: impact fees, sewer, water, gas, electric
connection fees, and/or development fees.
F. Contractor shall include all sales taxes.
1.5 Drawings and Specifications
A. Contractor shall employ the services of qualified and experienced engineering firms properly licensed
to practice in the state of Texas for the design, engineering, construction documents, and specifications
necessary for all portions of the design work within the Contractor's scope. The Contractor shall
manage and coordinate all aspects of their design responsibility and coordinate with the design work
being furnished by the Developer,
B. All design and construction of fire protection systems shall comply with the requirements of the
National Fire Protection Association (NFPA) and local fire department and building code
requirements.
C. The Contractor shall furnish drawings and specifications to the Developer for review and approval
at 70% and I OGI/a design intervals prior to the start of construction.
D. No deviations from the approved construction documents shall be permitted without authorization
from Developer or the Developer's representative.
1.6 General Conditions
A. All materials incorporated in the construction project shall be new, and all work shall be
performed in a professional, workmanlike manner in accordance with generally accepted
construction practices and the authorities having jurisdiction.
A. Contractor shall provide a project manager, project engineer, and field supervision as necessary to
properly manage all work. At a minimum one qualified full time on -site superintendent shall be
included. Contractor shall include all temporary access roads, traffic control, power, water,
lighting, sanitary facilities, field offices, safety barriers, progress cleaning, maintenance of erosion
control, storage and trash removal which may be required during construction and pay for all costs
in connection with same, including their removal.
The Project Manager shall manage the construction of the building. The Project Manager
shall be responsible for negotiating and awarding subcontracts, all coordination and
correspondence with the Owner, material procurement, scheduling, and contact
administration. NorthPoint Development shall be the contractor's primary point of
contact for all construction matters. The Project Manager shall receive all direction from
NorthPoint Development, and shall act at their direction.
48
12923849 vI
2. An experienced full-time on -site Superintendent shall be assigned to the project that has
performed work of similar size and nature. The Superintendent shall be responsible for
all day-to-day field operation and coordination issues, quality control, safety, inspections,
and punchlist completion. The Superintendent shall hold mandatory weekly
Subcontractor Coordination Meetings to review job progress, planning, schedule, safety
and quality issues.
B. Winter conditions (if applicable) will be handled via an Owner controlled contingency.
Northpoint defines winter conditions as costs beyond those reasonably anticipated for the
scheduled activities given the time of year and location for which a project is located. Examples
of winter condition costs would include ground thaw, extensive concrete blanketing, NC:A in
concrete, or tenting of the building. Examples of costs npl considered to be winter (or weather)
related conditions would include hot water for concrete, temporary heat or conditioning necessary
for office finishes, minor blanketing form misc. pours.
C. The Construction Drawings and Specifications shall specify the materials and equipment to be
used in the construction of the project. Contractor shall require subcontractors and material
suppliers to submit all manufacturer's literature and fabricationfinstallation drawings to verify
compliance with the requirements of the Construction Drawings and Specifications. A record
copy of the reviewed submittal data shall be provided to Developer.
D. The Contractor shall prepare and submit a weekly status report to the Developer which shall
include a current and updated schedule, percentage complete, weather records, progress report
defining outstanding issues, current issues, pending change orders, and photos related to the
project.
E. The developer or Tenant shall assume responsibility for payments of all utility bills upon the
earlier of the receipt of Substantial Completion as defined above, Final Certificate of Occupancy,
or beneficial occupancy of the building by the Owner/tenant,
1.8 Warranty and Project Closeout
A. Contractor shall warrant all work for a period of one (1) year from the date of Final Certificate of
Occupancy. All typical extended warranties shall be provided as offered by the manufacturer.
B. Contractor shall provide a manufacturer's fifteen (1 S) year "No -Dollar -Limit" (NDL) warranty for
the roof system.
C. At the earliest occupancy date, Contractor shall provide two (2) complete sets of `"Operation and
Maintenance" manuals, including subcontractor and supplier contact information, maintenance
and service instructions, schedules, emergency instructions, spare parts lists, wiring diagrams, and
warranty information.
D. At the earliest occupancy date, Contractor shall provide two (2) complete marked -up hard -copy
sets and one (1) electronic (pdf) set of as -built drawings to assist with ongoing operations of the
building.
E. At the earliest occupancy date, Contractor shall provide CAD files of MEPF as-builts and training
of owner's personnel on use and maintenance of mechanical, electrical, plumbing, fire protection,
alarm, security, irrigation, and other building systems. Contractor shall video record all owner's
training and provide owner with a complete electronic set of all owner's training videos.
F, Contractor shall schedule a site visit with Tenant and Developer nine (9) months into the warranty
period to review any potential warranty issues.
49
12923949 vl
1.9 Schedule
A. Contractor shall maintain a bar chart progress schedule and hold weekly subcontractor
coordination meetings and weekly or bi-weekly owner meetings as necessary to review the
progress of the project.
B. For the purpose of this proposal assume a start date of April 15, 2019.
1.14 Quality Control Testing
A. Developer shall pay directly for all testing and special inspections, which include; compaction,
asphalt, concrete, reinforcing steel and structural steel testing. Contractor shall be responsible for
scheduling time$ for tests, inspections, and obtaining samples, and notifying testing agency.
B. Contractor is responsible for the cost of any retesting or re -inspections required as a result of test
and inspection results indicating noncompliance with requirements.
1.11 Surveys
A. Contractor shall be responsible for construction staking,
B. At the completion of construction, the Contractor shall furnish an as -built survey showing lot
lines, setback lines, the building, sidewalks, curbs, easements, paved area, manholes, drain inlets,
accessory structures, and all other physical improvements on the property,
Division 2 — Sitework
2.1 Demolltion
A. Not part ot`RF'P, please exclude. This scope has been contracted separately.
2.2 Clearing & Grubbing
A. Not part of RFP, please exclude. This scope has been contracted separately.
2.3 Earthwork
A. Not part of RFP, please exclude. This scope has been contracted separately.
2.4 Paving and Surfacing
A. All pavement sections shall be in accordance with the modified sections provided below. All
pavement shall be installed in accordance with the geotechnical recommendations, Note that this
pavement sections differ from current civil drawings and this outline spec shall govern.
L Heavy duty and off -site paving shall consist of 8" reinforced concrete with No, 3 bar 18"
O.C. each way. Concrete shall be 4,000 psi, 28-day strength, air -entrained concrete,
medium broom finish.
ii. Trailer and dock paving, not currently defined on the civil drawings, shall be 6"
reinforced concrete with No. 3 bar 24" O.C. each way. Dock paving shall be defined as
The first 35 ft extending from the exterior face (docks) of the building. Trailer paving
shall be defined as the last 35 ft furthest away from the exterior face of the building.
Concrete shall be 4,000 psi, 28-day strength, air -entrained concrete, medium broom
finish.
SO
12923849 vi
iii. Standard duty paving (car parking) shall consist of 5" reinforced concrete with No. 3 bar
24" O.0 each way. Standard duty concrete shall be 4,000 psi, 28-day strength, air -
entrained concrete, medium broom finish.
iv. Per geotechnical report, pavement should be placed on adequately compacted subgrade.
Lime stabilization shall be used under heavy duty and off -site paving, and where required
under dock, trailer and car parking pavement. Contractor shall clearly indicate lime
percentage and depths used for each pavement section.
Y. All paving must slope at a minimum of 1% away from building. Provide dowels at all
construction joints at no more than 16" on center. Concrete paving shall have expansion
joints against the building and all concrete vertical surfaces. Saw -cut control joints shall
be at maximum 15'-0" on center each way at all concrete paving. All drive-in ramps shall
be, constructed with the same section and shal l terminate 60' from face of dock,
B. All car parking areas, trailer storage stalls, and dock positions shall be striped with two coats of
Sherwin Williams set -fast acrylic waterborne traffic marking paint or equal. Future dock positions
do nut require striping.
C. All pavement joints shall be sealed with hot asphalt within 30 days of concrete placement.
2.5 Curbs & Sidewalks
A. Sidewalks shall be 5' wide x 4" thick concrete reinforced with welded wire mesh and broom
finished with tooled control joints. Sidewalk shall abut the curb. The remaining area currently
shown as sidewalk shall be green space and shall be hydromulch or similar, as defined on
landscape drawings.
B. Concrete curb shall be provided around all car parking areas to control storm water run-off.
Curbing abutting sidewalks shall have integral turn -down curbs with a control joint tooled the
length of the sidewalk.
2.6 Site Utilities
A. Contractor shall include all costs to extend utilities from the right-of-way to the building and tie
into the building services.
S. Contractor shall include a fire loop and domestic water service to the building as shown with fire
hydrants spaced as in accordance with code requirements, The fire loop is to consist of a
minimum 8" line but may be larger as required to meet the demands of the fire protection system
as well as the local authorities having jurisdiction. All piping is to be installed with thrust blocks,
restraints, and piping; materials consistent with the requirements of all governing agencies. Fire
lead-ins may not be shown on the plans but are to be included as required by the dlb fire protection
system. All elbow transitions from horizontal to vertical piping shall be made with threaded rod
and mag lug connections.
C. Contractor shall include three (3) - 4" empty conduits from the property line to the building
services room for telecommunications service.
D. Contractor shall include a minimum of two (2) - 6" empty conduits, or more as may be required,
to provide primary service from the property line to the transformer and secondary service from
the transformer to the building services room for primary electrical service.
E. Contractor shall include gas trenching and backfill or sleeving as may be required by the local
provider,
51
12923849 v 1
F. Sanitary sewers shall be installed as shown. All piping shall be installed with piping materials and
other incidentals consistent with the requirements of all governing agencies,
G. All storm sewers, inlets, and other storm related components shall be installed as shown, All
piping shall be installed with piping materials and other incidentals consistent with the
requirements of all governing agencies. PVC piping or HDPE will be permitted for all downspout
piping. All HDPE piping must be SaniTite HP or equal. Provide finger drains on all manhole
barrels located within the paved areas.
I I. Where applicable, all bin -retention areas shall be installed with underdrains, free draining
material, and other components per the local sewer district standards. The bio-retention plantings
will be paid for out of the landscaping allowance. Provide finger drains on all manhole barrels
located within the paved areas.
All roof drains and downspouts shall discharge at grade.
2.7 Site Improvements
A. Contractor shall include any retaining walls or slope reinforcement needed to achieve the grades
shown on the plans. Any proposed retaining walls shall be constructed on a design/build basis
using an approved modular block system from the manufacturers standard color selections.
B. Site perimeter shall be secured with an 8' high chain link fence. Barbed wire will not be required.
Fence shall he galvanized with top and bottom rails, posts and minimum 9-gauge dia. fabric.
C. Provide over three miles of walking trails as improvements to the adjacent common ground.
2.8 Landscaping and Irrigation
A. Contractor shall hard bid landscaping, seeding and irrigation system per drawings provided.
Division 3 — Concrete
33 Mix Design
A, Except as indicated by the structural engineer of record all concrete shall consist of proper
proportions of Portland Cement, coarse aggregates, fine aggregates, and clean water conforming to
application ofASTM Standard Specifications.
Concrete for piers, continuous footings, and dock leveler pits shall be a minimum of
3,000 psi strength at twenty-eight (28) days and include the following:
a. Five (3) sack mix.
b. Air Entrainment: Concrete may be air entrained or non -air entrained with an
acceptable air content of 2% +/- I %. Any concrete having an air content over
5% shall be rejected.
G. Slump: 4" +/- I". Any concrete with a slump under 3" that needs water added to
make concrete placeable shall be re -slumped. Any concrete with a slump over 5-
Ya" shall be rejected.
2. Concrete for interior flatwork shall be a minimum of 4000 psi strength at twenty-eight
(28) days and include the following:
a. Six (6) sack mix.
b. Ton -air entrained with an acceptable air content of 2% 41- 1 °/Q, Concrete over
3%shall be rejected.
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C. Slump 4" +/-1 ". Any concrete with a slump under 3" that needs water added to
make concrete placeable shall be re -slumped. Any concrete with a slump over 5-
'/2" shall be rejected.
Concrete pavement shall have a minimum of4,000 psi strength at twenty-eight (28) days
and include the following:
a. Five and one-half(5-'/1) sack mix.
b. Air entrained with an acceptable air content of 4% +1-1% Any concrete under
3% may have additional air entrainment added and shall be retested to ensure
that the concrete falls into the acceptable range. Any concrete having an air
content over 7% shall be rejected.
C. Slump 4" +/-1 ". Any concrete with a slump under 3" that needs water added to
make concrete placeable shall be re -slumped. Any concrete with a slump over
5"-'/r" shall be rejected.
4. Concrete for concrete site: -cast wal I panels shall be a minimum of 4,000 psi strength at
twenty-eight (28) days.
5. No concrete additives except for water reducer and air entrainment per the mix designs
shall be added unless approved by Contractor, Engineer, and Developer,
6. The allowable time limit for batching of the concrete trucks shall be ninety (40) minutes.
7. Copies of all mix designs and testing laboratory results shall be provided to the Engineer
and Developer.
& Use of fly ash in floor slab mixes is prohibited.
3.2 Concrete Floor Slabs
A. The warehouse floor slab shall consist of 7" thick reinforced concrete. Reinforcing shall be with
weld wire mesh.
B, Per geotechnical report, there are three options for "surface seal" or subgrade preparation under
the floor slab. Contractor shall select more economical option and specify on bid form:
1. 12 inches of"select' fill;
2. 6 inches of flexible base; or
3. Lime stabilization of the top 6 inches of soil with a minimum of 6 percent hydrated lime
at Completion of reworking or injection.
C. Slab Details
1. Slab shall be power troweled to a hard -smooth finish with an average overall floor
flatness rating of FF = 40 and FL = 35.
2. Construction joints shall be doweled with greased smooth dowels or speed dowels.
3. Control joints shall be saw cut evenly between the column grids but at a maximum
spacing of lY-0"x l5'-0" on center. Depth of saw cuts shall be 25% of the slab thickness.
Control joints at dock pits shall be modified to terminate at dock pit corners.
4. No vehicles shall be allowed to park on the slab, All construction vehicles and lifts shall
have a diapered undercarriage.
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5. The floor shall be cured with 2 coats of hardener/densifier (Ashford formula sealer, or
equal). The second coat shall be applied as a "spifP' coat just prior to building turnover.
6. A minimum 10 mil vapor barrier shalt be installed below the entire slab (not in office
areas only as indicated on structural drawings)
3.3 Footings and foundations
A. All perimeter footings, grade beams, and interior column footings shall bear on compacted fill or
virgin soil and shall be reinforced with steel bars. See section 2.2 Earthwork for addition
clarifications regarding soil stabilization.
3.4 Concrete Wall Panels
A. Perimeter building walls shall be load -bearing, non -insulated, site -cast, tilt -up concrete panels
with a smooth exterior finish and troweled interior finish ready for paint, Exposed interior lifting
lugs shall be covered with plastic cover plates following erection.
Division 4 — Masonry
4.1 Unit Masonry Assemblies
A. The bottom 10'-0" of all pump room walls shall be constructed of 1-hour fire rated reinforced CMU.
Reference Section 9.1 "Gypsum Board" for balance of pump roam wall construction.
Division 5 — Metals
5.1 Structural Steel
A. Structural steel shall be ASTM A36 fabricated and erected in accordance with latest American
institute of Steel Construction Specifications. All structural steel shall have a shop coat of light
gray paint to provide protection and a good appearance.
B. Structural steel erection shall be inspected by an independent testing agency.
5.2 Bolts and Bracing
A. Anchor bolts shall he Grade A36 steel.
B. Steel connection bolts shall be A325 high strength bolts.
5.3 Steel Joists
A. Joists shall be open web bar joist (Series "K" or "l,W), manufactured in accordance with the
specifications of the Steel Joist Institute.
5.4 Miscellaneous Steel
A. One (1) freestanding caged roof ladder with intermediate resting platform and access hatch shall
be provided for roof access. Ladder shall be engineered by fabricator and shall comply with all
OSHA requirements.
B, Contractor shall provide 6" diameter, concrete tilled pipe bollards on inside and outside jambs of
all drive-in doors, on each side at base of dock stairs, at all sprinkler risers and electrical
equipment exposed to warehouse, at the main utility/building services room, and at all fire
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hydrants, piv valves, transformers, etc. that are exposed to vehicular traffic. All exterior bollards
shall be galvanized.
C. Contractor shall provide pre -finished stcel track -guards with wall and floor attachments at the
tracks ofalI dock doors.
D. Contractor shall furnish and install hot -dip galvanized steel stairs, guardrails, and handrails at all
dock -high personnel doors.
E. Contractor shall furnish and install hot -dip galvanized embed angles at all drive-in doors.
F. Guardrails as required by code should be provided at all drive up ramps,
G. Contractor shall furnish and install roof frames for the heating and ventilation equipment and roof
hatch. All roof openings 12" and larger will be required to have a roof frame,
H. All exterior steel including the dock angles shall be galvanized steel. If dock pit angles are
installed as exterior and interior sections, the exterior portions shall be galvanized and finish
painted and interior portions may be primed and finish painted.
5.5 Roof Deck
A. The roof deck shall be 22-gauge 1 '/z" deep type B metal, factory primed white on the underside
and welded in place.
1. Division 6 — Carpentry and Millwork
6.1 Rough Carpentry
A. All wood blocking associated with roof installation shall be preservative pressure treated material
compatible with intended fasteners to prevent fastener corrosion.
13. All miscellaneous interior wood blocking shall be fire retardant as required by Code.
Division 7 - Thermal and Moisture Protection
7.1 Roofing and Sheet Metal
A. hoof system shall consist of mechanically fastened 60-mil (maximum 8' sheet width), white,
single -ply TPO Firestone, Carlisle or equal with 60 mil vertical (lashings. Fasteners will be
provided in function and quantity to meet 1-90 design requirements. All seams perpendicular to
water flow (if any) shall be shingled. Membrane shall be installed over minimum R-20
polyisocyanu rate rigid insulation installed in two layers with joints staggered. Contractor will
ultimately be responsible for installing roof insulation adequate to meet the building envelope
requirements of the codes and ordinances adopted by the local authorities having jurisdiction.
Cricketing shall be included as required to ensure positive drainage from all inside corners,
obstructions, and at roof drains whether indicated or not. The roof system shall be installed in
accordance with the manufacturer's instructions and shall carry a fifteen (15) year "No Dollar
Limit" (NDL) manufacturer's warranty.
B. Furnish and install one (1) 30"x36" Bilco roof hatch with insulated curb and lid and 48" safety rail
extension.
C, Mechanical equipment, roof hatch, and penetrations shall be flashed in accordance with
Manufacturer's specifications.
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D. Provide 36" wide roof walkway pads at the service side only of HVAC roof equipment and around
perimeter of roof hatch,
E. Flashing and counter flashing for rooftop units shall be fabricated and installed per SMACNA
standard details.
Furnish and install 24 ga Kynar-coated coping at the top of all parapet walls with minimum 4" leg
on interior and exterior face with continuous 22 ga. cleat. Coping assembly shall meet ANSI=ES I
requirements.
G. Furnish and install 22 ga. Kynar-coated sheet metal conductor heads and downspouts for roof
drainage. All downspout connections to underground systems shall be made with appropriately
sized rectangular -to -round downspout adapters "Nyoplast Downspout Adapter" or equal.
H. Install continuous closed cell polyurethane spray foam insulation equal to "Dow Froth -Pak 200"
between edge of rigid insulation and perimeter wall. At all joist pockets, and at perimeter of all
roof penetrations as detailed.
7.2 Caulking and Sealants
A. All exterior and interior joints in concrete wall panels shall be caulked with closed cell backer rod
and polyurethane sealant compatible with finish coating system, including joints below grade and
on rear side of parapet. Joints shall be cleaned and primed prior to sealant installation as required
by sealant manufacturer.
B. If wall panels are tilted to the slab edge in lieu of a pour back strip, the joint between slab edge and
panel shall be caulked.
C, All exterior and interior joints around storefront systems and hollow metal door frames shall be
caulked with closed cell backer rod and polyurethane sealant compatible with finish coating
system. Joints shall be cleaned and primed prior to sealant installation as required by sealant
manufacturer.
D. All construction joints between pours shall be tooled or sawcut and sealed with rigid polyurea
UVR joint filler (Euco QwikJoint UVR, or equal).
All control joints in Floor slab, at the 60' speed bays only, shall be sealed with rigid polyurea UVR
joint filler (Euco QwikJoint UVR, or equal).
All pavement joints shall be sealed with hot asphalt within 30 days of concrete placement,
G. All exterior joints with expansion board shall have the top removed and caulked.
Division 8 — Doors, Windows and Hardware
8.1 Hollow Metal Doors and Frames
A. Exterior hollow metal door frames shall be 14-ga. welded, galvanized, and prime painted.
B. Interior hollow metal door frames shall be 16 ga. welded and prime painted
C. Exterior hollow metal doors shall be 3'-0" x T-0" x 11/4" 16-gauge galvanized, seamless,
insulated, and prime painted,
D. Interior hollow metal doors shall be 3'-0" x T-0" x 13/4" 18-gauge prime painted.
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8.2 Door Hardware
A. All hardware shall be finish US26D "satin chromium plated" and shall comply with all Americans
With Disabilities Act (ADA) requirements.
13. All exterior hollow metal doors shall receive I %a pair non -corrosive ball bearing hinges
(Approved Manufacturers: Hager, McKinney, Ives, Stanley), Grade 1 lockset with lever trim
(Approved Products: Schlage ND, Sargent 10 Line, Corbin Russwin CL3300), heavy duty door
closer Q.CN, Norton, Yale, Sargent), weather-stripping, threshold, drip -sweep, drip cap, latch
guard, and storm chain. All locksets shall have interchangeable cores (Schlage Everest).
C. All interior hollow metal doors shall receive 11A pair ball bearing hinges (Approved
Manufacturers: Hager, McKinney, Ives, Stanley) , Grade 1 lockset with lever trim (Approved
Products: Schlage ND, Sargent 10 Line, Corbin Russwin CL3300), heavy duty door closer (LCN,
Norton, Yale, Sargent), All locksets shall have interchangeable cores (Schlage Everest).
D. All locking hardware, including that on aluminum -framed entrances and storefronts, is to have
interchangeable cores (Schlage Everest),
8.3 Aluminum -Framed Entrances and Storefronts
A. All exterior storefront shall be thermally broken with a Class I clear anodized finish. Class II clear
anodizing is permissible for clerestory glass only.
B. All exterior doors shall be l %" thick medium stile, 10" bottom rail, with a Class I clear anodized
finish and I" tempered insulated glass.
1. Hardware shall include pivots, offset tubular pulls, slimline exit devices with keyed dogging,
closers, weather-stripping, threshold, drip -sweep, and drip cap.
C. A11 glass shall consist of sealed 1" insulating units, with a low "e" coating and shall exhibit the
following minimum performance characteristics:
1. Transmittance: visible light: 37%, solar energy: 28%
2. Reflectance: visible light (exterior): 8%, (interior). 14%
3. ASHRE U-Value: winter nighttime- .35, summer daytime:.35
4. Shading Coefiicient:.47
5. Solar Factor (SHGC):.40
6. All glass above 10' shall be either blackened insulated glass or spandrel glass.
D. Glass shall be tempered at all locations where required by Code.
All locking hardware on aluminum -framed entrances and storefronts are to have cytinders and
interchangeable cores compatible with all other door hardware.
9.4 Overhead Doors
A. pock doors shall be 9'x 10' manual lift sectional overhead doors with min. 24 6a. galvanized steel,
grooved exterior face sheets pressure bonded to a polystyrene insulated core, min. R-9 insulated
core, and galvanized interior face sheets pressure bonded to insulated core with baked enamel
finish. White, gray, or tan color will be selected from manufacturers standard color chart. Doors
shall be equipped with perimeter weather-stripping, and designed to withstand Code -prescribed
wind load pressure based on exposure (minimum 90 mph)
1. Tracks: 3" vertical -lift
2. Springs: 25,000 cycle
3. Locks: spring -loaded dead bolt operable from inside handle (located on left side of door
when inside looking out)
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4. Glazed panel inserts: (1) 3mm clear, uv-resistant, polycarbonate lite per door (located on
left inside of door when looking out)
5. Step Plate (located on left inside of door when looking out).
B. Drive-in doors shall be 14'xl6' motor -operated sectional overhead doors with min. 24 ga.
galvanized steel, grooved exterior face sheets pressure bonded to a polystyrene insulated core,
min. R-9 insulated core, and galvanized interior face sheets pressure bonded to insulated core with
baked enamel finish, White, gray, or tan color will be selected from manufacturers standard color
chart. Doors shall be equipped with perimeter weather-stripping, and designed to withstand Code-
prescribcd wind load pressure based on exposure (minimum 90 mph).
1. Tracks: 3" vertical -lift
2, Springs; 5Q,000 cycle
3. Locks: spring -loaded dead bolt operable from inside handle,
4. Glazed panel inserts: (1) 3mm clear, uv-resistant, polycarb❑nate lite per door. (Located
on side of operator controls)
5. Operator: minimum 'I2 hp jackshaft operator with 3-button control and safety photo -eyes,
6. Step Plate (located on same side as window and operator controls).
Division 9 — Finishes
9.1 Drywall
A. Utility room walls shall be a 1-hour fire rated assembly extending from top of 10'-0" cmu to roof
deck shall be constructed of 518" "Type `X' gyp. board each side of metal studs @ ld" o.c. sized as
required based on span. drywall shall be fire taped to a reasonably smooth level I finish.
B. [demising walls I and 2 shall be priced as separate alternates to subdivide the building among
multiple tenants. 'These walls shall run from the floor to the roof deck and be constructed of 518"
Type `X' gyp, board each side of metal studs @ 16" o.c. sized as required based on span, Drywall
shall be. fire taped to a level I finish
92 Painting
A. The exterior face of all site -cast concrete wall panels shall be cleaned, primed, and painted with
one (1) -coat of medium texture cement -based acrylic coating (Sherwin-Williams Ultraorete, or
approved equal) and one (1) coat of finish paint at accent paint areas. All paint transitions shall
occur at an inside corner in the valley of a horizontal or vertical reveal.
13. All exterior and interior pipe bollards, interior dock -pit angles, and roof access ladder shall receive
two (2) coats of alkyd semi -gloss safety yellow paint, Galvanized metal primer shall be applied
over any galvanized items not factory primed.
C. Galvanized exterior stairs, landings, and railings are not to be painted.
D, Interior and exterior Faces of all hollow metal doors and frames shall receive two (2) coats of alkyd
semi -glass paint.
2. Division 10 — Specialties/Special Conditions
A. Within the base building, Northl'oint has included provisions to upgrade the plan south elevation of
the building. These upgrade include converting the existing dock positions to storefront windows as well
as adding an entry feature similar or equal to that proposed in NorthPoint's proposal labeled as Option A,
B, or C.
10.1 Fire Extinguishers
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A. I -look mounted fire extinguishers shall be Furnished and installed as required by the Uniform Fire
Code and the Fire Marshall,
Division 11 — Equipment
11.1 Dock Equipment
A. Furnish and install the following equipment at each dock position.
1. (30) 45,000 # Mechanical Pit levelers with 7'x8' platform, 16" lip, operating range toe
guards, nightlocks, brush weather seals, and two (2) 10"x4" projection laminated rubber
bumpers.
2. (50) 45,000# Hydraulic Pit levelers with 7'x$' platform, 16" lip, operating range toe
guards, nightlocks, brush weather seals, and two (2) 10"x4" projection laminated rubber
bumpers.
3. (80) truck dock positions equipped with wall mounted electromechanical vehicle
restraints
4. Dock Seals with 10" projection, 10' tall side pads, 10'-4" wide head cap with adjustable
drop curtain and 20 oz vinyl fabric with 40 oz, 4" wear pleats.
5. Wheel chocks with 20' chains.
Division 15 — Mechanical
15.1 ]Plumbing
A. A minimum 8" underground sanitary sewer line shall be provided at the appropriate depth to
accommodate future tenant build outs in all four (4) corners of the building and future dock
offices.
B. Warehouse floor drains and cleanouts shall be heavy duty ductile iron with stainless steel strainers.
C. A 4" domestic water service shall be provided to service potential tenants as shown as well as the
hose bibs. Above grade piping shall be type "U' copper tubing with bronzed joints. Below grade
shall be type "K" copper with soldered joints.
1, Four (4) rrost-proof hose bibs shall be furnished on each building as shown or at the (4)
corners of the building.
2. One (1) post hydrants shall be furnished and installed at the roof of the building.
15.3 Fire Protection
A. A complete hydraulically calculated wet ESFR sprinkler system shall be designed, furnished, and
installed throughout the building based on solid pile storage and storage in racking up to a
maximum oi'34' high of Class i-IV commodities with a maximum allowable deck height of44'.
1, system shall include a complete design including but not limited to hydrants, PIV's, sectional
valves, fire department connections, and hose drops as may be required by the local
authorities having jurisdiction.
2. All sprinkler pipe shall be sloped to allow the system to drain.
3. All risers and service lines shall be Schedule 40 pipe as required by code but no less than
Schedule 10 pipe. All mainlines shall be no less than Schedule 10 pipe. All branch lines shall
be no less than Schedule 7 pipe, Thin wall pipe connections shall be welded or grooved
couplings. Threadable thin wall pipe and Schedule 5 pipe shall not be used.
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4. All below grade elbow transitions from horizontal to vertical piping shall be made with
threaded rod and mag lug connections and shall incorporate concrete thrust blocks.
5. All risers shall be equipped with a flow switch and tamper switch and all valves 2.5" or larger
must be supervised, including P1V's and SCV's.
6. Furnish and install required heads for the E.S.F.R. system.
7. All sprinkler piping shall be located above the bottom cord of all roofjoists to avoid conflicts.
8. Contractor shall Furnish and install a fire booster pump and/or tank, including all necessary
infrastructure as necessary to support a two-hour supply.
15.4 Heating and Ventilation
A. Provide adequately sized direct fired space heating units located on the roof along the dockside of
the first column line closest to the docks. Size unit for a total supply airflow of approximately
0.25 air changes per hour. Units shall be interlocked with an exhaust fan sized at 100% OA. Space
heating units shall include a 50/50 a modulating OA damper with the following operational
modes:
1. Summer Ventilation
i. Units shall operate fan continuous @ 100% OA. Exhaust fans shall be interlocked with
the operation of the supply fan.
2. Winter Normal Operation
1. Units are used as space heaters and only run on a call for heating. Units are set to operate
at 500/. OA and 50% recirculated air.
3. Winter Purge Operation
ii. Units shall be manually set to purge mode at the control panel. Units shall operate at
100% OA to flush the building. Gas burner shall modulate burner to maintain space
temperature setpoint. Exhaust fans shall be interlocked with the operation of the supply
fan.
13. The building shall be heated to 50" F at an outside temperature of251 F and ventilated per Code
with rooftop mounted mechanical equipment located as necessary to eliminate any screening
requirements. Systems shall account for relief as necessary to prevent over pressurization of
building when fully closed.
C. Thermostat controls shall be mounted 10-0" above finished floor on the building column nearest
to each unit.
D. All gas piping necessary for a complete installation of the HVAC system shall be included. All
gas piping is to be ran inside the building from the meter to the corresponding units. All piping
shall be as required by the local authorities having jurisdiction. All exterior gas piping shall be
painted.
E. Provide smoketheat ventilation according to local code requirements. Ventilation calculations
should be based on a 20% product fill ratio where allowed by the local code, Identify code
requirement during bid process.
F. Provide heating and ventilation for fire pump room as required.
G. Provide ventilation for electrical room as required.
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Division 16 — Electrical
16.1 Service
K Furnish and install one (I) 2,000amp 4a0V, 3-phase electrical service and gear to each end of the
building for a total of two (2) services. The main service shall include all breakers, cans,
disconnects, and meters to service and separately meter (4) tenants, each with a 1,000 AMP sub
panel to the (4) quadrants of the building. Within the (4) quadrants of the building provide
277/480V 3-phase panels, and 120/208 panels with the appropriate Step down transformers to
adequately handle the base building lighting and power requirements as well as provide spare
capacity for future lighting and tenant power demands. All transformers shall be wall mounted
above 8'-0" level.
Local utility provider will furnish and install the exterior pad mounted transformer and primary
conductors.
Contractor shall furnish and install transformer pad, primary and secondary conduits, and
secondary conductors.
K. Conductors larger than 100 amps shall be aluminum. All others conductors shall be copper.
L. All wall mounted electrical panels, switch gear, and transformers shall be held a minimum of 1"
off the exterior wall.
M. Panels shall be provided with 20% spare circuits and 20% spare ampacity. All circuits shall be
labeled inside the panel.
N. All conduit and flexible cable routed/run overhead must be installed above the bottom chord of the
roof joist; EMT with compression fittings may be used overhead. All conduit located within 10' of
finish floor shall be rigid galvanized steel conduit
0, Provide metering in accordance with the electrical utility company's requirements.
P. Furnish and install feeds, distribution, and sub -panels as required for power, lighting, and HVAC
loads,
16.2 Lighting
A. Furnish and install warehouse lighting consisting of LED fixtures with 12' modular whips and
individual motion detectors to achieve 30 foot-candles average measured at 30" above finished
floor assuming an open warehouse configuration. Additional lighting will be provided in the 60'
speed bay to achieve 35 foot-candles average measured at 30" above finished floor assuming an
open warehouse configuration.
B. Technical Fixture Specifications:
i. Uniformity Ratio: maximum to minimum of 3:1, average minimum of 2:I. The
maximum allowable average floor area per fixture shall be no more than 1000 SF.
ii. Color Rendering; 70 C RI, 80 preferred
i ii. Color Temperature: 4000-5000K
iv. Sensors: Occupancy sensors
V. Warranty: Minimum 5 year
C. Fixtures shall hang within 0-6" above the bottom chord of the secondary roof framing members
(above the Clear Height) to maximize warehouse volume. Luminaires shall be installed with MC
Cable whips containing #I2 AWG conductors, 15' in length or as allowed by code. If allowed
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locally, a building -wide modular wiring system (RELOC, MWS, etc.) may be used. Fixtures
cannot be attached to the roof deck.
D. Fixtures shall be evenly spaced across the floor plan. A minimum of 15% ofthe warehouse
fixtures are to he equipped with battery backup for full operation of the fixture in an emergency,
Emergency fixtures shall be evenly distributed in all bays except the speed bays which are
assumed to be adequately lit via wall mounted exitlemergency lighting.
E. Furnish and install LED exit/emergency lighting to meet Code required minimums for an occupied
building,
F. Furnish and install site lighting utilizing LED lamps, meeting 1-fe average light levels over all
paved surfaces in the truck courts and access drives, and 246 average light levels over all paved
surfaces in the employee parking lots. No paved surface shall have less than 0.4 fc, Wall
mounted head type fixtures, not wall packs, may be utilized to illuminate areas adjacent to the
building, All site lighting shall match the existing fixtures on HLCI and HLC2 in style and finish.
16.3 Wiring
A. Provide wiring and final connections for all dock equipment required in 1 I,1, .fire protection
equipment required in 15.2, and mechanical equipment required in section 15.3.
13. Furnish an install one (1) fourplex convenience receptacle for every two (2) dock positions.
C., Furnish and install duplex receptacles at telephone demark and in the utility room
D. A complete electric fire pump assembly shall be provided per requirements or local municipality,
including the fire pump controller, jockey pump and controller, pump bypass and necessary valves
per NFPA and local codes.
16.4 Fire Alarm
Include a design/build fire alarm system which meets all applicable code requirements. System shall have
capacity to support 40,000 SF of office finishes without modification beyond addition of devices.
This lire alarm system shall have provisions to report an alarm condition (water flow, tamper
switches, PIV's, fire pump run, eta) at a remote location (fire department, security agency, etc.),
and shall meet local fire/building; codes and ADA requirements. Fire alarm shall be interlocked
with all HVAC units as required by the local pre department including remote fire department
override control of smoke/summer exhaust fans automatic HVAC shutdown. Fire alarm control
panel shall be non-proprietary.
16.5 Telecommunications
A. Furnish and install three (3) 4" conduits from street to where service enters the building. Provide
a plywood backboard with a dedicated quad outlet and required grounding for telephone
equipment.
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TT
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EXHIBIT E: BUILDING RULES AND REGULATIONS
No awning or other projection may be attached to the outside walls of the Premises or
Property. No curtains, blinds, shades, or screens visible from the exterior of the Premises
may be attached to or hung in, or used in connection with any window or door of the
Premises without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned, or delayed. Such curtains, blinds, shades, screens, or
other fixtures must be of a quality, type, design, and color, and attached in a manner,
approved by Landlord in writing.
2. No sign, lettering, picture, notice, or advertisement which is visible from the exterior of the
Premises or Property may be installed on or in the Premises without Landlord's prior
written consent, and then only in such manner, character, and style as Landlord may have
approved in writing.
3. Tenant will not unreasonably obstruct sidewalks, driveways, parking areas, or any other
Common Areas.
4. Tenant will not create or allow unreasonably obnoxious or harmful fumes, odors, smoke,
or other discharges which may be unreasonably offensive to the other occupants of the
Property or neighboring properties, or otherwise create any unlawful nuisance.
The Premises may not be used for cooking; (as opposed to heating of food), lodging,
sleeping, or for any immoral or illegal purpose.
6. Tenant wi I not make unreasonably excessive noises or vibrations or operate any electrical
or mechanical devices or other equipment that emit excessive sound or other waves or
disturbances or which may be offensive to the other occupants of the Property, or that may
unreasonably interfere with the operation of any device, equipment, computer, video, radio,
television broadcasting, or reception from or within the Property.
7. Tenant assumes full responsibility for protecting its space from theft, robbery, and
pilferage, which includes keeping valuable items locked up, doors locked, and other means
of entry to the Premises closed and secured after business hours and at other times the
Premises is not in use.
8. Unless expressly permitted by Landlord, no additional locks or similar devices may be
attached to any door or window, except for a security system. Upon termination of this
Lease or of Tenant's possession, Tenant will surrender all keys to the Premises and will
explain to Landlord all combination locks on safes, cabinets and vaults, and the code for
the security system.
9. If Tenant installs satellite dishes, antennae, or similar equipment, Tenant will first obtain
Landlord's written approval which shall not be unreasonably withheld, conditioned, or
delayed, and comply with Landlord's reasonable instructions in their installation.
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10. The water and wash closets, drinking fountains and other plumbing Fixtures will not be
used for any purpose other than those for which they were constructed, and no sweepings,
rubbish, rags, coffee grounds, or other substances may be thrown therein.
11. Tenant will not overload any utilities serving; the Premises.
12. Tenant will not locate or store any equipment, materials, supplies, or other property outside
of the Premises except as may be permitted by any Applicable Laws. Tenant may stage
trailers used in the ordinary course of Tenant's business. Trucks and trailers are to be
limited to designated parking areas.
13. All loading, unloading, receiving, or delivery of goods, supplies, furniture or other items
will be made only through entryways provided for such purposes.
14. Canvassing, soliciting, and peddling in or about the Property is prohibited, and Tenant will
cooperate to prevent the same.
15. Tenant will store all its trash and garbage in proper receptacles or other facilities for such
purpose located in the areas designated by Landlord. All dumpsters or compactors must
be fully enclosed, including any trash chutes, hoppers, or apparatuses.
16. Tenant will comply with all safety, fire protection, and evacuation procedures and
regulations established by Landlord or any governmental agency.
17. Parking is prohibited (a) in areas not striped for parking; (b) in aisles; (c) where "no
parking" signs are posted; (d) on ramps; (e) in cross -hatched areas; (f) in loading areas; and
(g) in other areas as may be designated by Landlord. Truck and trailer parking will be
limited to designated areas.
18. All responsibility for damage, loss, or theft to vehicles and the contents thereof is assumed
by the person parking their vehicle.
I9. Tenant will be responsible for the observance of these rules by each Tenant Party.
20. Landlord may waive any one or more of these rules for the benefit of Tenant, but no waiver
by Landlord will be construed as a continuing waiver of such rule(s), nor prevent Landlord
from thereafter enforcing any such rule(s) against Tenant. Such enforcement shall not be
done in an arbitrary manner.
21. In the event of any conflict between these rules and any express term or provision set forth
in the Lease, the express term or provision of the Lease is controlling. Tenant shall not be
required to comply with any rules which reduce Tenant's rights as set forth in the Lease or
increase its obligations or liabilities as set forth in the Lease.
22. Materials for floor striping must be approved by Landlord. Floor striping must be removed
prior to the expiration or termination of the Lease Term. Sandblasting is prohibited.
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12/28/2020
M&C Review
CITY COUNCIL AGENDA
DATE: 8/4/2020 REFERENCE
NO.:
CODE: C TYPE:
Official site of the Cite _f 1 II-1" I——
FouWORTII
'11y-
M&C 20- LOG NAME: 17ARIATINCENTIVEAGREEMENT
0495
NON- PUBLIC NO
CONSENT HEARING:
SUBJECT. (CD 7) Authorize Execution of Tax Abatement and Economic Development Program
Agreement with Ariat International, Inc. and NP-OV Fort Worth Project 1, LLC, or
Affiliates, for a Corporate Office and Regional Distribution Hub to be Located at 15201
Blue Mound Road in Tax Abatement Reinvestment Zone No. 100, City of Fort Worth
Texas (Continued from a Previous Meeting)
RECOMMENDATION:
It is recommended that:the City Council:
1. Authorize the City Manager to execute a 9-year Tax Abatement Agreement with Ariat International, Inc.
and NP-OV Fort Worth Project 1, LLC, or affiliates„ for development an approximately 800,000 square
foot corporate office and regional distribution hub to be located at 15201 Blue Mound Road in Tax
Abatement Reinvestment Zone No. 100, City of Fort Worth Texas; and
2. Authorize the City Manager to execute an Economic Development Program Agreement with Ariat
International, Inc., or an affiliate, for a one-time grant from the Economic Development Designated Project
Fund based on new job creation, as authorized by Chapter 380 of the Texas Local Government Code and
Section 14 of the City's Economic Development Program Policy.
DISCUSSION:
As part of a competitive site selection process, Ariat International, Inc. ("Company"), is considering the
lease of approximately 800,000 square feet of an exsiting office/manufacturing facility owned by NP-OV
Fort Worth Project 1, LLC ("Owner") at 15201 Blue Mound Road ("Project Site"). The Project Site would be
redeveloped into a regional distribution hub and corporate office for Company's business operations. In
order to facilitate the selection of Fort Worth as the preferred location, staff is proposing that the City enter
into a Tax Abatement Agreement with Company and Owner to incentivize Company's decision..
Under the proposed terms, Company will expend or cause to be expended a minimum of $43,000,000 in
construction costs for the required improvements by the "completion date", which will be the date as of
which all occupiable space comprising the Development has received a temporary or final certificate of
occupancy from the City. The completion date for the Development must occur on or before December 31,
2021. Company must locate or cause to be located taxable business personal property (BPP) that is new to
the City of Fort Worth on the Project Site having a minimum taxable appraised value of $30,000,000 by
January 1, 2022.
The Company will spend or cause to be expended 15\% of total construction costs (hard and soft) for the
required improvements with contractors that are Minority/Women Owned Business Enterprise companies
located within the market areas applicable to the six county areas where the City spends 80\% of its tax
dollars. Those counties are Tarrant, Dallas, Denton, Johnson, Parker and Wise. Only firms with a principal
office in the market area will be counted towards the M/WBE goals. Failure to meet the M/WBE construction
requirement will result in a reduction of the maximum potential grant percentage by 10 percentage points.
Company must provide a minimum of 450 full-time jobs (consisting of 75 Ariat-employed corporate office
positions and 375 indirect employees from a third -party provider) on the Project Site under the schedule
below. The average annual salary for all full-time jobs must be a minimum of $43,992.00.
75 full time jobs as of December 31, 2021
125 additional full-time jobs as of December 31, 2022 (total 200 jobs)
125 additional full-time jobs as of December 31, 2023 (total 325 jobs)
125 additional full-time jobs as of December 31, 2024 (total 450 jobs)
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M&C Review
In return, the City will grant a 40 percent tax abatement on the incremental increase in value of real and
personal property improvements for a period of nine years. Company must meet specific construction
spending and annual employment commitments in order to achieve the maximum amount of potential
incentive for each abatement year.
Maximum Potential Abatement Percentage with Corresponding Commitments
Property Owner or Company Commitment
Potential
Abatement
Base Commitment: Real and Personal Property Investment =
$73,000,000
25\%
(Base Commitment will be reduced by 10\% if MWBE Commitment
is not met)
Annual Commitments:
Average Annual Salary for all Full -Time Jobs > $43,992.00 10\0/o
Overall Employment Per Schedule Outlined Above 5\%
TOTAL* 40\0/6
Staff is also recommending that the City enter into an Economic Development Program Agreement with
Company pursuant to Section 14 of the Economic Development Program Policy. Under the Economic
Development Program Agreement, the City will provide a one-time cash grant from the Designated Project
Fund of up to $212,000.00 to be paid upon confirmation of job creation and retention for a minimum of
three years as of December 31 of the year preceding the year in which the grant is paid. Company will
have the right to select the year in which it wishes the grant to be calculated and paid, provided that the
earliest year in which the grant may be paid will be 2025 (based on verified employment and retention for a
minimum of three years as of December 31, 2024) and the last year in which the grant may be paid will be
2028 (based on verified employment and retention for a minimum of three years as of December 31, 2027).
The specific amount of the grant will be based on the number of such jobs that pay salaries in accordance
with the following table:
TABLE III -II Maximum Amount per New Position
Minimum Annual Wage Rate
Maximum Amount Per New
Position
$58,552 - $73,111
$1,000
$73,112 - $87,671
$1,500
$87,672 - $102,231
$2,000
$102,232 or above
$2,500
The City will not pay a grant for any new jobs created after December 31, 2024.
This project is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon final approval of the Tax Abatement Agreement, a loss of 40% of
property tax revenue may occur over the next nine years. This reduction in revenue will be incorporated into
the long term financial forecast upon the Tax Abatement being officially granted.
TO
Fund Department Account Project Program Activity Budget Reference # Amount
ID ID Year (Chartfield 2)
FROM
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12/28/2020
M&C Review
FF
ZNhd
Department
Account
Project
Program
Activity
Budget
Reference #
Amount
Fund
DepaMnenL__
Account
PrMbct
Program
Activity
BEIVat
(lq&WMWN 4)
Amount
ID
ID
Year
(Chartfield 2)
Submitted for City Manager's Office by_
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Jay Chapa (5804)
Robert Sturns (2663)
Robert Sturns (2663)
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