HomeMy WebLinkAboutContract 56458 1
C"SECRETARYNTRACT NO.
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1 RECEIVED
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PARKING GARAGE LEASE
WITH OPTION TO PURCHASE
S '
between
CENTRAL CITY LOCAL GOVERNMENT CORPORATION,
as Landlord
and
CITY OF FORT WORTH,
as Tenant
OidnbPr (j, , 2021
OFFIDAL RECORD
' -RETARY
"T, WORTH,TX
CONTENTS
Lease
Exhibit A—Definitions
Exhibit B Premises Description
Exhibit C—Memorandum of Rent and Commencement Date
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Parking Garages Lease CCLGC&CFW
This Lease is made and entered into as of the Effective Date, by and between the Landlord and
Tenant.
.RECITALS
A. Subtenant plans to develop property located at the intersection of Camp Bowie Boulevard and
Van Cliburn Way for the Project, and to facilitate the Project, Landlord, contemporaneously
with this Lease, has entered into (i)a purchase and sale agreement with Subtenant to purchase
the fully-constructed Parking Garages ("Purchase and Sale Agreement"), and (ii) the
Sublease of Parking Garage Master Unit 1 to GPIF CD Multi LLC, of Parking Garage Master
Unit 2 to GPIF CD Office LLC,and of Parking Garage Master Unit 3 to GPIF CD Hotel LLC;
B. GPIF CD Hotel LLC has established a condominium association for the Project ("Condo
Association"), and the Project will consist of condominium units, including a hotel unit, a
multifamily unit, an office unit, and one or more separate units for each of the Parking
Garages;
C. LandIord intends to finance the acquisition of the Premises by the issuance and sale of Lease
Revenue Bonds subject to Chapter 1208 of the Texas Government Code in an amount to be
determined,in one or more series as authorized from time to time by the Landlord pursuant to
one or more Bond Resolutions duly adopted by Landlord's Board of Directors;
D. To further facilitate the Project, Landlord is entering into this Lease with Tenant for the
Premises., and Tenant is simultaneously entering into that certain Parking Garage Sublease
Agreement with Assigned Option to Purchase with Subtenant for the Premises ("Sublease"),
each with an effective date contemporaneous with this Lease and with a term commencing
after completion of the Project, as further set forth in the Lease and Sublease;
E. As further described herein, a public benefit for the use of the Parking Garages by the public
will be preserved by requiring a minimum of 400 Public Spaces available for public parking
use,to be allocated among the Parking Garages by Subtenant pursuant to the Sublease, during
the minimum hours of 6:00 p.m. to 7:00 a.m, on weekdays and all day on weekends with the
understanding that fees may be collected by Subtenant for such parking; and
F. Landlord and Tenant understand that the continued success of the Project is dependent on the
ability of the users of the Project to use the Parking Garages and Landlord and Tenant desire
to support the continued operations of the Project by entering into this Lease, and requiring
Tenant and Subtenant enter into the Sublease.
NOW,THEREFORE,for and in consideration of the above and foregoing premises and
the mutual covenants and agreements set forth herein., together with other good and valuable
consideration,the receipt and sufficiency of which is hereby confirmed and acknowledged by each
of the parties hereto,the undersigned Landlord and Tenant do hereby agree as follows:
AGREEMENT
ARTICLE 1—PREMISES
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1.1 Lease of Premises. As of the Commencement Date, and subject to the provisions hereafter
set forth and in consideration of the rent to be paid and of the covenants and agreement to be
performed by Tenant herein set forth, Landlord does hereby lease to Tenant, and Tenant leases
from Landlord, the Premises. The Premises shall be used for the parking of vehieles and ancillary
activities related thereto.
1.2 Parking Space Allocation. The parties agree that the following covenant shall apply to the
panting spaces contained within the Premises:
1.2.1 A minimum of 400 Public Spaces shall be made available during the
minimum hours of 6:00 p.m.to 7:00 a.m. on weekdays and all day on weekends; provided,
however, it is expressly acknowledged and agreed by Landlord and Tenant that fees in an
amount no greater than prevailing market rate may be collected by Subtenant for such
parking pursuant to the terms of the Sublease.
Subject to the terms and conditions of Section 11.1 of this Lease, including,without limitation, all
applicable notice and cure periods, Tenant's failure to abide by the parking covenant outlined in
this Section 1.2 shall be considered an event of default under this Lease; provided, however, a
default shall not occur to the extent noncompliance with the requirements of this Section 1.2 occurs
during periods of restoration following a Casualty or condemnation of all or any portion of the
Parking Garages (so long as Tenant or Subtenant is proceeding with reasonable and diligent efforts
to commence of such restoration once insurance proceeds have been made available,and thereafter
reasonably pursues such restoration to completion, subject to delays for force majeure and other
delays beyond reasonable control of Tenant or Subtenant [as applicable]), or during periods of
temporary closure relating to maintenance activities, capital repairs or to protect the agents,
employees, contractors, guests, licensees, and invitees of the Premises from any dangerous
conditions existing at the Premises.
1.3 Condition of Premises. The Premises are leased subject to all zoning;restrictions, City of Fort
North codes and ordinances,building restrictions,and other state and federal laws and regulations
now in effect or hereafter adopted by any governmental authority having jurisdiction over the
Premises, and in their present condition without representation or warranty by Landlord. Tenant
or Subtenant taking possession of the Premises shall be conclusive evidence that(a)the Premises
are suitable for the purposes and uses for which same are Ieased; and (b) Tenant waives any and
all defects in and to the Premises, its appurtenances, and in all the appurtenances thereto. Tenant
agrees that they are taking the Premises in its current "As Is" condition with no representations or
warranties of any nature whatsoever by Landlord. Landlord has not made and does not make and
specifically disclaims any representations, guarantees, premises, covenants, agreements or
warranties of any kind or character whatsoever, whether express or implied, oral or written, past,
present, or future of, as to, concerning or with respect to the nature, quality or condition of the
Premises, the income to be derived, the suitability of the Premises for uses allowed under this
Lease, or merchantability or fitness for a particular purpose.
1.4 Alterations or Improvements. Tenant may make alterations or improvements to the Premises
as may be necessary, in Tenant's sole discretion,to maintain and operate the Premises as parking
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garages; provided, however, any alteration or improvement to the Premises that reduces the
parking spaces in the Parking Garages, in the aggregate, by 10% or greater must be approved in
writing by Landlord(such approval not to be unreasonably withheld, conditioned or delayed), and
Landlord may require the submission of plans and specifications reasonably necessary in
connection with Landlord's approval. The approval of Landlord of any plans or specifications
shall not constitute approval of the architectural or engineering design,and Landlord,by approving
the plans and specifications, assumes no liability or responsibility for the architectural or
engineering design or for any resulting defect in any building or improvement constructed from
such plans or specifications. Landlord agrees that Tenant may install and remove, in Tenant's sole
discretion, entry and exit gates, payment equipment and related equipment, security cameras and
related equipment, signage, or other fixtures in order to facilitate and control parking within the
Parking Garages. Any signage must comply with City of Fort Worth ordinances or any other
applicable law. All alterations, additions, and improvements made to, or fixtures placed in or
upon,the Premises shall be deemed a part of the Premises and the property of Landlord at the end
of the Term of the Lease; provided, however, with Landlord's prior written approval (such
approval not to be unreasonably withheld, conditioned or delayed), Tenant may elect to remove
such alterations, additions, improvements or fixtures prior to the expiration or termination of this
Lease and shall repair any damage to the Premises caused by such removal; provided further,
however, Landlord's approval shall not be required in connection with Tenant's removal of any
branding or signage attached to the Premises to the extent such removal does not necessitate
structural alterations to the Parking Garages. All such alterations, additions, improvements, and
fixtures not so removed by Tenant shall remain upon and be surrendered with the Premises as a
part thereof at the termination of this Lease.
ARTICLE 2—TERM
2.1 Term. The initial term of this Lease (the "Term") shalI be for a period of twenty (20) years,
subject to any earlier termination of the Lease as specifically provided in this Lease, commencing
on the acquisition of the Premises by Landlord from Subtenant under the Purchase and Sale
Agreement ("Commencement Date"). Upon the establishment of the actual Commencement
Date, and of Rent as set forth in Section 3.1, Landlord and Tenant shall execute a Memorandum
of Rent and Commencement Date in the form set forth in Exhibit"C", attached hereto and made
a part hereof for all purposes.
2.2 Renewal Term. Tenant may renew and extend the Term of this Lease for up to four (4)
additional 20-year terms (each, a "Renewal Term"), and each such renewal shall be automatic
upon the renewal of the Sublease for additional 20-year Renewal Term in accordance with the
terms of the Sublease.
2.3 Termination of Purchase and Sale Agreement. In the event the Purchase and Sale
Agreement is terminated for any reason, this Lease may be terminated by Landlord effective
immediately upon Landlord providing written notice of termination to Tenant.
.ARTICLE 3--RENT
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3.I Rent. For the use and occupancy of the Premises herein granted, Tenant agrees to pay
Landlord the Rent. The Rent is calculated by determining the amount that is higher of the Debt
Service Rate and the Fair Market Rent, and therefore cannot be calculated until after both the
Substantial Completion of the construction of the Parking Garages and the sale of the Bonds.
"Substantial Completion" shall have the meaning assigned to it in the Purchase and Sale
Agreement. No more than 45 days following the date of Substantial Completion of the Parking
Garages, Landlord and Tenant shall obtain an appraisal or broker's price opinion to determine the
Fair Market Rent for the Premises. Upon determination of the Debt Service Rate and the Fair
Market Rent and the actual Commencement Date as set forth in Section 2.1, Landlord and Tenant
shall execute a Memorandum of Rent and Commencement Date. The first Rent payment shall be
paid in accordance with the Memorandum of Rent, and each additional Rent payment shall be due
monthly on or before the fifth (51h) day of the month. Rent shall be paid to the Landlord,without
notice or demand,at the address included in this Lease under the notice section contained in Article
12, or as otherwise specified by Landlord in writing.
3.2 380 Grant. The parties agree that the 380 Grant provided by Tenant to Subtenant as set forth
in the Sublease shall be paid directly to Landlord, and Landlord shall credit the amount of the 380
Grant to the amount of Rent owed. The Sublease shall contain a provision assigning the payment
of the 380 Grant from Subtenant directly to Landlord.
3.3 Failure to Pay Rent. If Tenant fails to pay Rent in accordance with this section,the Landlord
shall provide Tenant a thirty (30) day written notice to make Rent payments, and if Landlord
delivers such written notice, and Tenant fails to make such Rent payment within thirty (30) days
of receipt of such written notice,the Landlord may consider such failure an event of default under
this Lease, and Landlord shall have the right to terminate this Lease in accordance with the
termination provision under Section 11.1 of this Lease.
ARTICLE 4—MAINTENANCE OF PREMISES
4.1 Premises Maintenance. Landlord shall not be responsible for any repair, replacement, or
maintenance of the Premises, including but not limited to regular maintenance, capital repairs and
replacements, building systems repairs and maintenance, roofs, stairwells, foundation, or walls,
and shall maintain the Premises in good condition and repair. The parties agree that certain repair,
replacement, and maintenance of the Premises shall be performed by or on behalf of the Condo
Association in accordance with the documents pertaining to the operation or governance of the
Condominium. However, to the extent any repair, replacement or maintenance of the Premises
are not performed by or on behalf of the Condo Association, Tenant shall repair, replace, and
maintain the Premises, provided that Tenant may assign all or a portion of its obligations under
this Section 4.1 to Subtenant. If Tenant or Tenant's contractors or Tenant's Subtenant fail to repair,
replace, or maintain the Premises as required in this Section 4.1, Landlord will provide notice of
necessary repairs, replacements, or maintenance to Tenant, and such repairs, replacements, or
maintenance shall be completed within thirty (30) days of receiving such notification or if such
repairs are incapable of being completed within thirty (30) days, within a reasonable time
thereafter, so long as Tenant is diligently pursuing or causing the diligent pursuit of such repairs.
If Tenant fails to effect the required repair, replacement, or maintenance in accordance with this
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Article 4, Landlord has the right to send a second notice stating in conspicuous type that Tenant's
failure to make such repairs within ten (10) days will give Landlord the right to make such repairs
at Tenant's cost. If Landlord delivers such a second notice and Tenant fails to make such repairs
after such additional ten(10)day period,then Landlord may elect to self-perform the maintenance.
Landlord's cost to perform the maintenance may be invoiced to Tenant as additional Rent in an
amount equal to the actual cost of Landlord.
4.2 Assignment of Intangible Personal Property. Upon the execution and delivery of this Lease
by Landlord and Tenant, all of LandIord's right,title and interest, if any, in and to, the following
intangible personal property, but only to the extent directly related to or used solely in connection
with the Premises: (1)copies of the final as-built plans and specifications and all other architectural
and engineering drawings,site plans and renderings for the Premises (to the extent assignable), to
be provided in digital format; (2) any warranties and guaranties (including for workmanship,
materials and performance) which exist or may exist with respect to the Premises against any
architects, contractors, subcontractors, suppliers and others (to the extent assignable); (4) copies
of final surveys,as-built plats, and third-party engineering reports; and(5) governmental permits,
approvals, licenses, or similar documents, if any and only to the extent assignable, excluding any
of Landlord's rights and interests under this Lease, including,to the extent applicable,copies of all
signed permits, the final certificate of occupancy, and the accessibility review performed by a
Registered Accessibility Specialist and approved by the Texas Department of Licensing and
Regulations(collectively,the"Intangible Personal Property") are hereby assigned and assumed
by Tenant until such time as this Lease expires or is terminated in accordance with the provisions
of this Lease.
4.3 Assignment of Condominium Rights. Upon the execution and delivery of this Lease by
Landlord and Tenant, any and all rights and obligations (including the obligations to pay
assessments as provided in the Condominium Declaration), liabilities, limitations,rights,waivers,
benefits or burdens that are vested or that may in the future become vested in or upon the Owner
(as defined in the Condominium Declaration) of Parking Garage Master Unit 1, Parking Garage
Master Unit 2, and Parking Garage Master Unit 3, pursuant to the Condominium Documents are
hereby assigned and assumed by Tenant and will automatically be the rights and obligations
(including the obligations to pay assessments as defined in the Condominium Declaration),
liabilities, limitations, rights,waivers, benefits or burdens of Tenant, until such time as this Lease
expires or is terminated in accordance with the provisions of this Lease.
ARTICLE 5—TAXES
5.1 Taxes. Landlord owns the Premises as a transportation facility as set forth in the Texas
Transportation Corporation Act, Chapter 431 of the Texas Transportation Code, and Tenant leases
the Premises for the governmental function of operating a parking facility as described in Section
101.0215(a)(25) of the Texas Civil Practice and Remedies Code. The Premises are anticipated to
be tax exempt; however, Tenant is obligated to pay any real estate taxes or payments in lieu of
taxes if the tax exempt status changes. Landlord agrees to use all reasonable means to obtain and
maintain the tax exempt status of the Premises. Tenant recognizes and understands that the
Sublease may create a possessory interest subject to property taxation and the Premises may then
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be subject to the payment of property taxes levied on such interest. Tenant agrees to pay or cause
to be paid taxes of any kind, including possessory interest taxes,that may be lawfully assessed on
the leasehold interest hereby created and to pay all other taxes, excises, licenses, permit charges
and assessments based on the usage of the Premises that may be imposed by law,all of which shall
be paid when the same become due and payable and before delinquency.
ARTICLE 6--GENERAL COVENANTS OF TENANT.
6.1 Compliance with Legal Requirements. After the Commencement Date, (a) Tenant shall
comply with any and all applicable laws related to the use, operation, repair, maintenance,
replacement,and occupancy of the Premises and the cleanliness and safety thereof,and(b)Tenant
shall be the responsible entity as between Landlord and Tenant for instituting a plan of compliance
to ensure that the Premises remain in compliance with the ADA or other similar federal or state
law applicable to the Premises. Tenant acknowledges the Premises are subject to all
Governmental Rules at any time applicable to the Premises and that nothing in this Lease shall
constitute or be deemed to constitute a waiver by the Landlord of any such Governmental Rules.
Tenant agrees to abide by any Governmental Rule within a reasonable time after receiving notice
from Landlord of any violation of Governmental Rules. Tenant shall pay all the costs, expenses,
fines, penalties and damages that may be imposed upon Landlord by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe Governmental Rules or that
Landlord may incur as a result of Tenant's breach of the above covenants. Tenant shall give
prompt notice to Landlord of any notice Tenant receives from any governmental body or entity
with jurisdiction over the Premises regarding the violation of Governmental Rules with respect to
the Premises or the use or occupancy thereof.
6.2 Tenant's Rules and Regulations. Tenant shall have the right from time to time to develop,
implement, and enforce reasonable rules and regulations for the use and care of the Premises.
6.3 Enforcement of Parking Garages Use. Tenant shall be responsible for any and all
enforcement against users of the Parking Garages of any violations of the rules and regulations
therefor, including but not limited to, ticketing, towing, or booting of vehicles. Any ticketing,
towing, or booting of vehicles shall be performed in accordance with all applicable laws. Subject
to the terms and conditions of Section 11,1 of this Lease, including, without limitation, all
applicable notice and cure periods, Tenant's continued failure to follow the law as it relates to
ticketing, towing, or booting of vehicles shall be considered an event of default under this Lease;
provided,however,to the extent Landlord gives Tenant written notice of Tenant's failure to follow
the law as it relates to ticketing, towing, or booting, and Tenant notifies Landlord that Tenant is
taking action to ensure future compliance with such laws, no default shall exist.
6.4 Management of Premises. Tenant hereby covenants and agrees that it will perform or cause
to be performed all aspects of management for the operation of the Premises as a parking facility
in a clean and orderly manner consistent with comparable parking facilities within Fort Worth,
including but not limited to the management of subleases, maintenance of the Premises and all
improvements thereon, collection of rent for subleases, and the implementation of rules and
regulations applicable to the Premises. Tenant may contract with a third party to manage the
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Parking Garages. Tenant shall be responsible for any and all management of the Premises, and
shall ensure that any third party hired to manage or operate the Premises shall abide by all
applicable terms and conditions contained in this Lease. If a third party contractor hired by Tenant
fails to manage or operate the Premises in accordance with this Lease, such issues will be brought
to Tenant's attention in writing, and Tenant shall correct the problem within thirty (30) days or as
quickly as possible thereafter if impracticable to correct such problem within thirty (30) days.
Subject to the terms and conditions of Section 11.1 of this Lease, including,without limitation, all
applicable notice and cure periods, failure of Tenant to properly manage the Premises in
accordance with the terms and conditions of this Lease shall be considered an event of default
under this Lease. Any and all costs associated with the management of the Premises shall be paid
by Tenant.
6.5 Entry and Inspection; Ingress and Egress. Landlord, its agents, employees, or servants, or
any person authorized by Landlord, may enter the Premises for the purpose of inspecting the
condition of same in a manner that shall not unreasonably interfere with the normal business
operations of Tenant. Except with respect to Landlord's self-help rights expressly authorized in
Section 4.1 and Section 6.6.3 of this Lease, Landlord shall not perform any work on the Premises
without the prior written consent of Tenant and Subtenant, and, if approved, such work shall be
conducted in a manner that shall not unreasonably interfere with the normal business operations
of Tenant. In the event Landlord causes interference in Tenant's use of the Premises, same shall
be considered an event of default under this Lease. Tenant expressly agrees and shall ensure any
Subtenant expressly agrees not to unreasonably withhold consent to Landlord and its agents,
employees, contractors, suppliers, representatives, guests, licenses, and invitees, such rights of
ingress and egress to the Parking Garages as may be reasonably required under this Lease.
6.6 Environmental. As used herein, "Applicable Environmental Law"means any statutory law,
regulation, or case law pertaining to health or the environment, or oil or petroleum products, or
Hazardous Substances, including without limitation: (i) CERCLA; (ii) the Hazardous Materials
Transport Act as codified at 42 U.S.C. § 1801 et seq.,as amended; (iii)the Resource Conservation
and Recovery Act as codified at 42 U.S.C. § 6901 et seq., as amended; and any so-called
"Superfund" or "Superlien" law, or any other applicable legal requirement presently in effect or
hereafter enacted. As used herein the terms "Hazardous Substances" and "Release" shall have
the meaning specified for such terms in CERCLA; provided, however, that (a) if CERCLA is
amended to broaden the meaning of any term defined thereby, such broadened meaning shall apply
after the effective date of such amendment; (b)to the extent that Texas law establishes a meaning
for "Hazardous Substance" or "Release" that is broader than that specified in CERCLA, such
broader meaning shall apply; and (c) "Hazardous Substances" shall also be defined to include
oil,petroleum products, extremely flammable substances, explosives, and radioactive materials.
6.6.1 No Releases. Tenant shall not suffer, allow, permit, or cause the generation,
accumulation, storage, possession or Release of Hazardous Substances; provided, however, the
foregoing prohibition shall not be applicable to (i) Hazardous Substances that are present on the
Premises before.the Commencement Date, provided that Tenant shall have the burden of proving
that such Hazardous Substances were present on the Premises before the Commencement Date;or
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(ii) normaI and reasonable amounts of cleaning and pest control supplies necessary for normal
maintenance of the Premises as a parking garage so long as such materials are properly, safely,
and lawfully stored and used by Tenant and the quantity of same does not exceed a "reportable
quantity" as defined under 40 C.F.R. 302, as amended.
6.6.2 Notification of Releases. Tenant shall notify Landlord promptly upon learning: (i)
that any duty described in Section 6.6 of this Lease has been violated; (ii) that there has been a
Release, discharge, or disposal of any Hazardous Substance on any part of the Premises; or (iii)
that the Premises or improvements thereon are subject to any third-party claim or action because
of any environmental condition at the Premises or in or originating from the Premises or arising in
connection with the use of the Premises. Tenant shall promptly provide Landlord with copies of
all correspondence to or from third parties regarding such claims or actions or regarding
environmental conditions in or originating from the Premises.,
6.6.3 Remediation. In the event of a Release of any Hazardous Substance on, in,or from
the Premises that was caused by Tenant or any of its invitees or subtenants and not caused by
Landlord, Tenant shall promptly cause the remediation of such Release and restore the Premises
to a condition that complies with the provisions of this Section 6,6. In the event of a Release of
any Hazardous Substance on, in, or from the Premises that was caused by Landlord or any of
Landlord's employees or contractors,Landlord shall promptly cause complete remediation of such
Release and restore the Premises to the condition that existed prior to the Release. I.f Tenant fails
to commence remediation within a reasonable time after learning of such Release or
noncompliance with Applicable Environmental Laws,Landlord and its agents shall have the right,
but riot the obligation,to enter the Premises to commence and diligently pursue remediation of any
environmental condition on the Premises to comply with all Applicable Environmental Laws
during which time Tenant shall not be entitled to any abatement of Rent.
6.6.4 Costs. Tenant shall pay any judgments, fines, charges, fees, damages, losses,
penalties, demands, actions, costs, and expenses (including, without limitation, legal fees and
expenses), remedial and response costs, remediation plan preparation costs, and any continuing
monitoring or closure costs arising from or pertaining to the application of any Applicable
Environmental Law to the Premises due to a breach of Tenant's obligations under this Section 6.6.
Tenant shall release the Landlord of and from any and all liabilities (including strict liability),
judgments, fines, charges, fees, damages, loses, penalties, demands, actions, costs, and expenses
(including, without limitation, legal fees and expenses), remedial and response costs,remediation
plan preparation costs, and any continuing monitoring or closure costs incurred or suffered by the
Landlord, or asserted by any third party against the Landlord, due to the breach of Tenant's
obligations set forth in this Section 6.6.
6.6.5 Surrender. At the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord free of any known Hazardous Substances in, on, or from the
Premises that were not placed on the Premises by Landlord or present on the Premises prior to the
Commencement Date.
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6.6.6 Survival. The provisions of this Section 6.6 shall survive the expiration or earlier
termination of this Lease until such time as Tenant has provided an environmental site assessment
from a commercially reasonable third party vendor stating that there are no recognized
environmental conditions at the Premises that were not in existence as of the Commencement Date,
6.7 Condemnation or Taking. If all or any part of the Premises shall be subject to a Taking,then
in any such event, the entire compensation award therefor (collectively, the "Condemnation
Proceeds") shall be divided as follows: (i) Tenant shall receive a portion of such Condemnation
Proceeds sufficient to fully compensate Tenant for the diminution in value of the leasehold created
hereby, plus the diminution in value of the other portions of the Project owned by any Subtenant
that was entitled to the use of the Premises to the extent such diminution in value was caused by
the Taking; and (ii) Landlord shall receive any remaining portion of the Condemnation Proceeds.
If substantially all of the Premises is subject to a Taking, the Lease will end as of the date of the
Taking, and all Rent will be abated as of such date;provided, however,that such termination shall
be without prejudice to the rights of Landlord and Tenant (or Subtenant) to recover just and
adequate compensation from any condemnor. If less than substantially the entire Premises is the
subject of a Taking, and if restoration of the improvements is permitted or required pursuant to the
Condominium Documents, Tenant shall be entitled to received all Condemnation Proceeds and
shall promptly commence and proceed with diligence to repair or reconstruct the remaining
improvements to a complete architectural unit or units, including, without limitation, temporary
repairs, changes and installations required to accommodate the Subtenant and all other work
incidental to and in connection with all of the foregoing; provided, however, Tenant shall in no
event be required to restore any portion of the common elements unless such restoration is
expressly required to be performed by the Owner of the Premises pursuant to the Condominium
Documents. If less than substantially the entire Premises is the subject of a Taking, the Rent will
be equitably adjusted as of the date of the Taking and this Lease will otherwise continue in full
force and effect. Notwithstanding the foregoing, if a Taking occurs of so substantial a part of the
Premises that Tenant concludes, in its reasonable discretion that it is impracticable to continue to
operate the Premises, then Tenant, at its option, may terminate this Lease by notifying Landlord
and specifying a date not earlier than thirty (30) days after the date of such notice as of which date
this Lease will terminate. On the termination of this Lease under this Section 6.7, all Rent will be
abated as of the date of termination. In addition, in connection with any Taking,Tenant shall have
the right to claim and recover from the condemning authority such compensation as may be
separately awarded. or recoverable by Tenant in Tenant's own right on account of any and all
damage to Tenant's business by reason of the Taking and for or on account of any cost or loss that
Tenant might incur in removing Tenant's merchandise, furniture, fixtures, leasehold
improvements and equipment (collectively, "Tenant's Recovery"). Notwithstanding the
foregoing to the contrary,if the Condominium Documents require that the Condemnation Proceeds
be deposited with a condemnation trustee under the Condominium Documents,then Landlord and
Tenant shall comply with such requirements in accordance with the Condominium Documents. If
the proceeds of the Condemnation Proceeds are deposited with a trustee pursuant to the
Condominium Documents, then the Condemnation Proceeds shall be distributed pursuant to the
Condominium Documents. If either Tenant or Landlord receives notice of any proposed or
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pending Taking of all or any part of the Premises, the party receiving such notice shall promptly
notify the other, along with Subtenant and the Subleasehold Mortgagee, in writing. Thereafter,
Landlord and Tenant shall cooperate with each other, and with Subtenant and/or Subleashold
Mortgagee, to appear and participate in any and all hearings, trials and appeals relating to such
condemnation proceeding to protest same and/or to maximize the compensation, awards and the
like; provided, however, that each party shall be responsible for its own costs and expenses
incurred in connection therewith (including, without limitation, attorneys' fees and costs of suit).
Landlord and Tenant agree that there shall be no settlement of any condemnation award or
proceeding without the prior written consent of Subtenant and the Subleasehold Mortgagee, such
consent not to be unreasonably withheld, conditioned or delayed.
6.8 Amendments. This Lease may not be changed, modified, discharged or extended except by
written instrument duly executed by an authorized representative of Landlord and Tenant or as
otherwise provided herein.
6.9 Open Records Act. Each party acknowledges that the Central City Local Government
Corporation and the City of Fort Worth is subject to the Texas Public Information Act or any
equivalent or successor statute and that this Lease is considered public information and a public
record for purposes of the Texas Public Information Act.
6.10 Intentionally Omitted.
6.11 No Obnoxious Odors or Nuisance. Tenant agrees that it shall not
6.11.1 Cause or permit obnoxious or offensive odors or fumes to emanate or be
dispelled from the Premises;
6.11.2 Cause or permit undue accumulations of garbage,trash,rubbish or any other
refuse in, on or about the Premises; or
6.11.3 Cause, create, maintain or permit any public or private nuisance in, on or
about the Premises.
6.12 Liens. Tenant agrees not to allow or suffer any mechanics' or materialmen's lien to be
imposed upon the Premises or upon any equipment, improvements or property owned by Landlord
located thereon by,through or under Tenant without promptly discharging the same,provided that
Tenant, if so desiring, may have reasonable opportunity to contest the validity of the same.
Landlord agrees not to allow or suffer a mechanics' or materialmen's lien to be imposed upon the
Premises or upon any equipment, improvements or property located thereon occurring by,through
or under Landlord. TENANT AGREES TO RELEASE LANDLORD FROM ANY CLAIMS
FOR MECHANIC'S, MATERIAL SUPPLIER'S, OR OTHER LIENS IN CONNECTION
WITH ANY ALTERATIONS,REPAIRS OR CONSTRUCTION ON THE PREMISES,OR
MATERIALS FURNISHED OR OBLIGATIONS INCURRED BY OR FOR TENANT.
ARTICLE 7—UTILITIES; SERVICES
7.1 Provision of Utilities. Tenant shall be responsible for providing to the Premises all public and
private utilities deemed necessary by Tenant for the normal operation of the Parking Garages,
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including communications, electric, water, heating and air conditioning (as appropriate for the
season in the elevator),trash removal and other utility services to the Premises desired by Tenant.
Tenant shall be responsible for all costs related to the installation of or modification to all utilities
and any ongoing costs related to providing such utilities to the Premises.
,ARTICLE S--INDEMNITY AND INSURANCE
8.1 Indemnity. [Deleted by agreement of the parties.]
8.2 Waiver of Liability. LANDLORD SHALL NOT BE LIABLE IN ANY MANNER TO
TENANT, ITS AGENTS, EMPLOYEES, CONTRACTORS,OR ANY OTHER PARTY IN
CONNECTION WITH THE USE OF THE PREMISES BY ANY OF THEM, FOR ANY
INJURY TO OR DEATH OF PERSONS UNLESS CAUSED SOLELY BY THE WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE OF LANDLORD. IN NO EVENT SHALL
LANDLORD BE LIABLE IN ANY MANNER TO TENANT OR ANY OTHER PARTY AS
THE RESULT OF THE ACTS OR OMISSIONS OF TENANT, ITS AGENTS,
EMPLOYEES, CONTRACTORS, OR ANY OTHER PARTY, IN CONNECTION WITH
THE USE OF THE PREMISES BY ANY OF THEM. ALL VEHICLES AND ALL
PERSONAL PROPERTY WITHIN VEHICLES USING THE PREMISES, WHETHER
PURSUANT TO THIS LEASE OR OTHERWISE SHALL BE AT THE RISK OF TENANT
OR SUBTENANT ONLY, AND LANDLORD SHALL NOT BE LIABLE FOR ANY LOSS
OR THEFT OF OR DAMAGE TO PROPERTY OF TENANT, ITS EMPLOYEES,
AGENTS, PATRONS, INVITEES, OR TO OTHERS, REGARDLESS OF WHETHER
SUCH PROPERTY IS ENTRUSTED TO EMPLOYEES OF LANDLORD OR SUCH LOSS
OR DAMAGE IS OCCASIONED BY CASUALTY,THEFT,OR ANY OTHER CAUSE OF
WHATSOEVER NATURE.
8.3 Insurance.
8.3.1 Commercial General Liability Insurance. The City of Fort Worth is basically a
self-funded entity and as such, generally, it does not maintain a commercial liability insurance
policy to cover premises liability. Damages for which the City of Fort Worth would ultimately be
found liable would be paid directly and primarily by the City of Fort Worth and not by a
commercial insurance company.
8.3.2 Property Insurance. During the term of the Lease, Tenant shall cause to be
maintained in force, at no expense to the Landlord, a policy of insurance against loss or damage
by fire and such other perils as are covered by a "extended coverage" or"broad peril" endorsement
available in the State of Texas;provided, however, that Tenant may assign all or a portion of its
obligations under this Section 8.3.2 to Subtenant,and Subtenant may, in turn and as required under
the Condominium Declaration,cause the Condo Association to carry such portion of the insurance
required herein. Landlord shall be named as an additional insured on such policy of insurance,
and the Subleasehold Mortgagee shall be named as required by its loan documents.
8.3.3 Subtenant Insurance. Notwithstanding anything to the contrary herein, the
satisfaction of the insurance requirements set forth in the Sublease and in the Condominium
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Declaration by Tenant, Subtenant and/or the Condo Association shall be deemed to satisfy the
insurance requirements of Tenant pursuant to this Lease.
ARTICLE 9—SUBLETTING AND ASSIGNMENT
9,1 Mandatory Sublease. At all times during the Term, Tenant shall sublet the Premises to
Subtenant on the terms and conditions set forth below. Any and all subletting shall be subordinate
to this Lease.
9.1.1 Subtenant shall pay the Sublease Payment, with the difference between the
Sublease Payment and the Sublease Rent paid on behalf of Subtenant through the 390 Grant.
9.1.2 The Sublease shall be triple net, with Subtenant being responsible for the costs of
the operation of the Premises and the payment of all property taxes (if any), insurance, and
maintenance of the Premises .
9.1.3 Subtenant shall pay to Sublandlord annually the Garage Revenues (as defined in
the 380 Agreement).
9.1.4 Subtenant shall, upon written notice from Sublandlord, provide to SubIandlord
reasonable access to financial records relating to the operation of the Parking Garages in a form
and on terms specified in the Sublease.
9.1.5 The Sublease shall contain a requirement for Public Spaces.
9.1.6 The Sublease shall contain an assignment of the Option and Right of First Refusal
set forth in Article 19.
9.2 Sublease and Assignment. Tenant shall not be allowed to sublet or assign this Lease, except
as set forth in Section 9.1, without the prior written consent of Landlord, which consent will not
unreasonably be withheld. This Lease is binding upon and inures to the benefit of any of Tenant's
successors and, to the extent assignment may be approved by Landlord hereunder, Tenant's
assigns. Nothing contained herein shall prohibit Tenant or Subtenant from licensing or subleasing
parking spaces for the purpose of parking vehicles in compliance with the allowed use of the
Premises in accordance with the provisions herein.
ARTICLE 10—NON-DISCRUVMATION
10.1 Tenant Shall Not Discriminate. Tenant, for itself, its personal representatives, assigns,
contractors and successors in interest, as part of the consideration herein, agrees that in the
performance of Tenant's duties and obligations hereunder, it shall not discriminate in the treatment
or employment of any individual or group of individuals on any basis prohibited by law.
ARTICLE 11 —REMEDIES, SURRENDER,AND RIGHT OF RE-ENTRY
11.1 Landlord's Remedies. Upon the occurrence of any event of default by Tenant under this
Lease,if such event of default continues for a period of sixty(60)days after Tenant receives written
notice of such default from Landlord (or if the same cannot reasonably be cured within such 60-
day period, then such 60-day period shall be extended for such longer period of time as is
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reasonably necessary to cure such default, so long as Tenant commences such cure within such
60-day period and thereafter continuously prosecutes the same with diligence to completion, but
in no event more than an additional 180 days), Landlord's sole remedies against Tenant shall be:
(i)to specifically enforce the obligations of Tenant under this Lease and recover all costs,expenses
and reasonable attorneys' fees incurred by Landlord in connection with enforcing this Lease, (ii)
recover Landlord's actual damages for such event of default and recover all costs, expenses and
reasonable attorneys' fees incurred by Landlord in connection with such recovery, or(iii)perform
or cause to be performed any act or obligation to be performed by Tenant under this Lease and
recover from Tenant all costs and expenses paid or incurred by Landlord in connection with such
performance. Except as expressly set forth below, Landlord shall not have the right to terminate
this Lease or interfere with Tenant's right to possess the Premises.
Landlord shall have the option to terminate this Lease in the event of Tenant's default for failure
to pay Rent, as described in Section 3.3 above, and Tenant's breach of Tenant's obligation to
provide public parking pursuant to Section 1.2 above, subject to the giving of all notices and
Tenant's failure to cure within any applicable cure periods outlined in this Lease. Unless otherwise
expressly set forth in this Lease, (i) after such event of default for failure to pay Rent, Landlord
will provide Tenant sixty(60)days' written notice of Landlord's intention to terminate this Lease,
and (ii) after such event of default for Tenant's breach of the public parking requirements set forth
in Section 1.2, Landlord will provide Tenant 180 days' written notice of Landlord's intention to
terminate this Lease,which written notice from Landlord shall clearly identify all alleged defaults,
and all alleged required curative actions. If Tenant, Subtenant or any Subleasehold Mortgagee
cures the default within the period described above, Landlord shall no longer have the right to
terminate this Lease on account of such default.
In the event of a termination of the Lease under this Section 11.1 and provided either (i) a
Subtenant is not in default of its Sublease or (ii) a Subleaschold Mortgagee (as defined in the
Sublease)has provided notice of the assumption of the Sublease by Subleaschold Mortgagee or by
another person identified by Subleasehold Mortgagee under Article 16 of the Sublease, Landlord
shall give written notice to Subtenant and any Subleasehold Mortgagee of the termination and
allow Subtenant or Subleasehold Mortgagee, as applicable and in accordance with the Sublease,
to attorn to Landlord and to continue to use, possess, and occupy the Premises upon all of the
terms, covenants, conditions, and agreements set forth in the Sublease for the remainder of the
term of the Sublease. Landlord hereby recognizes the rights and limitations of a Subleasehold
Mortgagee to assume or to cause another person to assume the obligations of the Subtenant under
Article 16 of the Sublease.
Notwithstanding anything herein to the contrary, in the event Landlord elects to terminate this
Lease under this Section 11.1,Landlord hereby acknowledges and agrees that Subtenant shall have
the right, irrespective of the expiration of any applicable cure period described above and the
provision in Section 19.1 below restricting the exercise of the Option set forth in Section 19.1
below until the 20th year of the initial Term, to exercise such Option to purchase the Premises in
accordance with Section 19.1.2 below, by delivering written notice to Landlord of Subtenant's
election to exercise the Option to purchase the Premises. The applicable default notice and cure
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period set forth herein above (and, as a result, the Term of this Lease) shall be extended as
necessary to afford Subtenant the ability to exercise the Option in accordance with the applicable
terms and provisions set forth in Section 19.1 below.
11.2 Termination by Tenant. After twenty (20) years, this Lease may be terminated by Tenant
at anytime without cause after providing the Landlord sixty(60)days' notice of Tenant's intention
to terminate this Lease. Further, in the event the Purchase and Sale Agreement is terminated for
any reason,this Lease shall automatically terminate.
11.3 Termination by Agreement of the Parties. The parties may agree at any time to terminate
this Lease. Any agreement to terminate must be written and signed by an authorized representative
of both parties, shall specify a termination date and must include the joinder of consent from any
Subtenant and Subleasehold Mortgagee.
11.4 No Refund of Rent Upon Termination.Any Rent paid under this Lease will not be refunded
upon termination of the Lease no matter the reason for termination. Any fees or outstanding Rent
due upon termination of the Lease shall be paid immediately by Tenant upon receipt of notice to
terminate.
11.5 Surrender. Upon termination of this Lease or upon expiration of the Term, Tenant shall
vacate the Premises and surrender Premises to Landlord in good condition and repair (ordinary
wear and tear and damage by fire and other perils covered by standard fire and extended coverage
insurance only excepted). Subject to Section 1.4 above, all such alterations, additions,
improvements, and fixtures shall remain upon and be surrendered with the Premises as a part
thereof at the termination of this Lease. All of Tenant's personal property shall be removed from
the Premises upon expiration or termination of this Lease.
11.6 Wavier of Landlord's Lien. Landlord hereby waives any and all rights it may have to assert
a lien against, or security interest in, any of Tenant's personal property, whether situated on the
Premises or not, including, without limitation,the statutory landlord's lien pursuant to Chapter 54
of the Texas Property Code, and any security interest under the Uniform Commercial Code in
effect in the State of Texas.
11.7 Landlord Default; Tenant Remedies. If Landlord is in default of its obligations under this
Lease, Tenant or any Subleasehold Mortgagee may notify Landlord, in writing, of such default
and Landlord shall have thirty (30) calendar days after receipt of such written notice in which to
cure such default (or such shorter period of time as may otherwise be expressly set forth in this
Lease); provided, however, that if such default is not reasonably capable of being cured within
such thirty (30) calendar day period, then Landlord shall have such additional time as shall be
reasonably necessary to remedy such default, provided that during such time Landlord is
continuously and diligently pursuing the remedy necessary to cure such default. The failure of
Landlord to cure the default within such thirty (30) calendar day period, or continuously and
diligently to proceed to cure such default if such default is not capable of being cured within such
thirty(30) calendar day period, shall avail Tenant to all remedies available at law and in equity, as
well as the right to recover all costs,expenses and attorneys' fees incurred by Tenant in connection
with such recovery.
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Notwithstanding anything in the foregoing to the contrary, if Landlord fails to cure any
breach or default by Landlord under this Lease within the time periods set forth above in this
Section 11.7 after receipt of written notice from Tenant (except in the instance of an emergency
event that threatens the health of safety of any person,in which event prior written notice shall not
be required), then Tenant may cure any such breach or default, and the commercially reasonable
out-of-pocket funds costs and expenses expended by Tenant to effectuate such cure, plus ten
percent(10%) of such out-of-pocket expenditures for special handling, supervision, and overhead
("Tenant's Self-Help Cost") shall be due and payable by Landlord to Tenant thirty (30) days
following Landlord's receipt from Tenant of a reasonably detailed invoice of Tenant's Self-Help
Costs expended by Tenant ("Tenant's Invoice"). At Tenant's election, Tenant may deliver
Tenant's Invoices as Tenant's Self-Help Cost are expended or group Tenant's Self-Help Costs as
Tenant may choose. Notwithstanding the foregoing, if Tenant's Self-Help Costs are not paid when
above provided, Tenant may offset against the Rent thereafter becoming due hereunder, the
amount of the Tenant's Self-Help Costs that are past due. All remedies of Tenant under this Lease
are cumulative and may be exercised together or in any sequence.
ARTICLE 12—NOTICES
12.1 Notices. Any notice pursuant to this Lease shall be given in writing by(i)personal delivery,
or (ii) reputable overnight delivery service with proof of delivery, or (iii) United States Mail,.
postage fully prepaid, registered or certified mail, return receipt requested, or (iv) by electronic
mail and followed by written notice outlined above, sent to the intended addressee at the address
set forth below, or to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall be deemed to have
been given either at the time of electronic mail receipt, personal delivery or, in the case of
expedited delivery service or mail.Unless changed in accordance with the preceding sentence,the
addresses for notices given pursuant to this Lease shall be as follows:
If to Landlord:
CCLGC
Attn: Economic Development Department
200 Texas Street
Fort Worth, Texas 76102
Email: Robert.Sturns@fortworthtexas.gov
With Copy to:
City Attorney's Office
City of Fort Worth
Attn: Leann Guzman
200 Texas Street
Fort Worth,Texas 76102
Email: Leann.Guzman@fortworthtexas.gov
If to Tenant:
City of Fort Worth
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Parking Garages Lease CCLGC&CFW
Attn: Property Management Office
900 Monroe Street
Fort Worth, Texas 76102
Email: Marlc.Brown@fortworthtexas.gov
With Copy to:
City Attorney's Office
City of Fort Worth
Attn: Leann Guzman
200 Texas Street
Fort Worth, Texas 76102
Email: Leann.Guzman@fortworthtexas.gov
With Copy of all default notices to Subtenant at:
c/o Crescent Real Estate LLC
777 Main Street, Suite 2260
Fort Worth, Texas 76102
Attn: Legal Department
Email; alombardi@creseent.com
and to:
Winstead PC
2728 N. Harwood Street
Suite 500
Dallas, Texas 75201
Attn: Mike Alessio
Email:malessio@winstead.com
ARTICLE 13—HOLDING OVER
13.1 Holdover. Tenant shall deliver and surrender to Landlord possession of the Premises upon
the expiration or earlier termination of the Lease, in the condition required by this Lease. Should
Tenant or any party claiming under Tenant remain in possession of all or any part of the Premises
after any expiration or earlier termination of this Lease, no tenancy or interest in the Premises
shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall
be subject to immediate eviction and removal, and Tenant shall pay Landlord,without demand, a
sum equal to 150%of the Rent as specified herein then payable at the time of expiration or earlier
termination of this Lease, for any period during which Tenant shall hold the Premises after the
stipulated Term shall have terminated.
ARTICLE 14—INVALID PROVISIONS
14.1 Unenforceable or Inapplicable Provisions. If any provision hereof is for any reason
unenforceable or inapplicable, the other provisions hereof will remain in full force and effect in
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the same manner as if such unenforceable or inapplicable provision had never been contained
herein.
ARTICLE 15—LEASEHOLD MORTGAGES AND SUBLEASEHOLD MORTGAGES
15.1 Leasehold Mortgages Not Authorized; Subleasehold Mortgages Authorized. Tenant
will not be entitled to mortgage, pledge, grant, deed(s) of trust, or otherwise encumber all or a
portion of the leasehold estate created hereby or any portion of the right,title,and interest of Tenant
under this Lease without the prior written approval of Landlord and Subtenant. Subtenant will be
entitled at any time and from time to time,without Landlord's consent or approval being required
for same, on terms and conditions determined by Subtenant in Subtenant's sole discretion to be
appropriate, to mortgage, pledge, grant deed(s) of trust, or otherwise encumber all or any portion
of the subleasehold estate created by the Sublease and all or any portion of the right, title, and
interest of Subtenant under the Sublease (including Subtenant's interest in any improvements and
all rights to purchase hereunder), and to mortgage, assign, hypothecate, or pledge it as security for
the payment of any debt to any holder of a promissory note or other evidence of indebtedness(such
notes, mortgages, deeds of trust, and other documents evidencing and securing such loans
hereinafter referred to as a "Subleasehold Mortgage" and any holder(s) of a Subleaschold
Mortgage as a "Subleasehold Mortgagee"), all of which shall be subordinate to the Landlord's
interest under this Lease. Landlord shall cooperate with requests for additional documentation
required by any Subleasehold Mortgagee in connection with Subtenant Obtaining the Subleasehold
Mortgage or Subleaschold Mortgages and, without limiting the generality of the foregoing,
Landlord shall, upon request, execute, acknowledge and deliver to each Subleasehold Mortgage
an agreement (satisfactory in form and content to each Subleasehold Mortgagee) between
Landlord, Tenant, Subtenant and such Subleasehold Mortgagee (or proposed Subleasehold
Mortgagee) evidencing, ratifying and confirming all the provisions of this Article 15 and/or the
applicable provisions in the Sublease;provided,however,the provisions of this Article 15 shall be
self-executing without the necessity of any additional instrument.
After the execution and recordation of any Subleasehold Mortgage, Tenant, Subtenant or
the Subleasehold Mortgagee must notify the Landlord and Tenant in writing that a Subleasehold
Mortgage has been given and executed by Subtenant and must furnish the Landlord and Tenant
with the address to which copies of notices should be mailed. The Landlord agrees that it will
thereafter give to the Subleasehold Mortgagee,at the address so given, duplicate copies of any and
all notices in writing that the Landlord may from time to time give or serve upon Tenant under and
pursuant to the terms and provisions of this Lease. No notice of default or notice of intention to
terminate this Lease given by Landlord to Tenant shall be valid or effective unless a copy of each
such notice is given to Subtenant and each such Subleasehold Mortgagee.
No Subleasehold Mortgagee will be or become liable to the Landlord as an assignee of this
Lease or otherwise until it expressly assumes such liability in writing, and no assumption may be
inferred or result from foreclosure or other appropriate proceedings in the nature thereof, or, as the
result of any other action or remedy provided for by any Subleasehold Mortgage or other
instrument executed in connection with the Subleasehold Mortgage or from a conveyance from
Tenant pursuant to which the purchaser at foreclosure (or grantee or transferee in lieu thereof)
acquires the rights and interests of Tenant under the terms of this Lease, provided the obligations
of Tenant are fulfilled.
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Landlord agrees that it shall not terminate this Lease during any time that a Subleasehold
Mortgagee is either attempting to foreclose upon the subleasehold estate; is attempting to obtain
possession of the Premises; or is in the process of commencing to exercise or is exercising any
other remedies granted to it Under its Subleasehold Mortgage or is negotiating the terms of a new
,Sublease pursuant to the terms described therein, provided that such Subleasehold Mortgagee is
attempting in good faith and with due diligence to exercise its remedies or obtain possession of the
Premises; and (B) such Subleasehold Mortgagee is complying with Article 15 of the Sublease by
paying Tenant all sums (including applicable late charges imposed under the Sublease) necessary
to cure any monetary default under the Sublease. Landlord hereby agrees to provide notice of any
default by Tenant under this Lease to each Subleasehold Mortgagee whose name and address has
been provided to it and is designated as Subleasehold Mortgagee pursuant to this Article 15. In
the event of any default by Tenant (after exhaustion of the cure periods), Landlord shall refrain
from exercising any remedy with respect to such default unless and until (I) with respect to any
default concerning the obligation to pay Rent, Landlord shall give a further written notice thereof
to Subleasehold Mortgagee and such default remains uncured at the expiration of thirty(30) days
after Subleasehold Mortgagee's receipt of Landlord's written notice of such default; and (11)with
respect to any other default, Landlord shall give a further written notice thereof to Subleasehold
Mortgagee and such default remains uncured at the expiration of ninety (90) days after
Subleasehold Mortgagee's receipt of Landlord's written notice of such default;provided,however,
that if such non-monetary default cannot with diligent efforts be cured within ninety (90) days,
Subleasehold Mortgagee shall have additional time to cure so long as Subleasehold Mortgagee
commences action to remedy such failure promptly following such notice and diligently prosecutes
such action to completion. Landlord agrees to accept performance by Subleasehold Mortgagee of
any covenant, condition or agreement on Tenant's part to be performed under this Lease (whether
prior to or after any default by Tenant) with the same force and effect as though performed by
Tenant. It is understood that Subleasehold Mortgagee is not obligated to cure defaults by Tenant
under this Lease.
15.2 New Parking Garages Lease. Notwithstanding any contrary provision hereof, upon
termination of this Lease for any reason prior to the expiration of the Sublease (including,without
limitation, bankruptcy of Tenant or Subtenant), Subleasehold Mortgagee shall have the exclusive
right and option, exercisable by delivery of notice to Landlord within fifteen (15) days following
receipt by Subleasehold Mortgagee of notice from Landlord of the termination hereof, to elect to
receive, in its own name or an affiliate, from Landlord a new parking garage lease (the "New
Lease") for the Premises for the unexpired balance of the Term. The New Lease will be on the
same terms and conditions as herein provided and executed to be effective as of the date of
termination of this Lease by Subleasehold Mortgagee and Landlord within thirty (30) days of
receipt by Subleasehold Mortgagee of such notice from Landlord of the termination hereof;
provided, however, that in such event, Subleasehold Mortgagee shall pay to Landlord at the time
of the execution and delivery of the New Lease any and all sums(including applicable late charges
imposed hereunder) necessary to cure any monetary default pursuant to this Lease but for such
termination. It is understood that Subleasehold Mortgagee is not obligated to cure defaults by
Tenant under this Lease. Notwithstanding the foregoing, at Landlord's election, Landlord may
elect to enter into a new lease with Tenant permitting Tenant to grant a new sublease to
Subleasehold Mortgagee under Section 15.2 of the Sublease.
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After any termination of this Lease after which Subleasehold Mortgagee has the right to
obtain a New Lease as provided in this Section 15.2, for so long as Subleasehold Mortgagee has
such right, Landlord shall not terminate any subleases or the rights of any subtenant except in the
case of a default under any such sublease. During said time period Landlord will not collect or
receive rents from any subtenant.
15.3 Automatic Stay. If, during the period described in Sections 15.1 and 15.2 above,
Subleasehold Mortgagee shall be precluded by the bankruptcy laws of the United States or by
process or issue of any court having jurisdiction in connection with any bankruptcy, insolvency or
other similar proceeding, from commencing and pursuing to completion all necessary steps and
proceedings required for the foreclosure or transfer in lieu of foreclosure of the Subleasehold
Mortgage,then Landlord shall extend said period so long as may reasonably be required,provided
that Subleasehold Mortgagee is diligently and in good faith exerting all reasonable efforts to obtain
an appropriate release from any applicable court order or restraint, and further provided that upon
such release, Subleasehold Mortgagee shall in good faith immediately commence and diligently
pursue to completion all steps and proceedings for consummation of such foreclosure.
15.4 Limit on Subleasehold Mortgagee's Liability. Except as provided below, Subleasehold
Mortgagee shall not be liable to perform Tenant's obligations under this Lease and/or Subtenant's
obligations under the Sublease until Subleasehold Mortgagee acquires Subtenant's rights by
foreclosure or by transfer in lieu of foreclosure,provided,however, Subleasehold Mortgagee shall
be required to cure Tenant's defaults under this Lease(other than any such default related to [i]the
institution of bankruptcy or insolvency proceedings with respect to Tenant, [ii] the appointment of
a receiver or trustee for the whole or any part of Tenant's property, [iii]the dissolution or winding
up, in whole or in part, of Tenant, or [iv] any other event of default that is specific to Tenant and
not curable by the Subleasehold Mortgagee) occurring before its acquisition of the Premises by
foreclosure or transfer in lieu of foreclosure after it acquires the Premises pursuant to such
foreclosure or transfer in lieu of foreclosure as contemplated by Sections 15.1 and 15.2 It is
understood that Subleasehold Mortgagee is not obligated to cure defaults by Tennant under this
Lease or by Subtenant under the Sublease with respect to this Section 15.4. After acquiring
Subtenant's rights by foreclosure or transfer in lieu of foreclosure, Subleasehold Mortgagee shall,
subject to the provisions of this Article 15, be liable to perform Subtenant's obligations under the
Sublease only until Subleasehold Mortgagee transfers or assigns the Subleasehold estate to a person
which expressly assumes the obligations of Subtenant under the Sublease, and such liability of
Subleasehold Mortgagee shall terminate upon such transfer or assignment for obligations first
accruing from and after the date of such transfer or assignment. No holder of a Subleasehold
Mortgage shall acquire greater rights or interest than Subtenant has under the Sublease.
15.5 No Voluntary Cancellation. No voluntary cancellation,termination, surrender,amendment
or modification of this Lease by Tenant shall bind any Subleasehold Mortgagee if done without
the prior written consent of each such Subleasehold Mortgagee.
15.6 Requirements for Transferee. Notwithstanding anything contained in this Lease or the
Sublease to the contrary,no purchaser or transferee at any foreclosure sale,transfer in Iieu thereof
or other transfer authorized by law or this Lease of Tenant's interest or the Sublease of Subtenant's
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interest shall acquire any right, title or interest in or to Tenant's or Subtenant's interest in the
Premises unless (i) said purchaser or transferee shall, in the instrument transferring the same or
immediately after acquiring the same, assume and agree to keep, observe and perform all of the
terms, covenants and provisions of this Lease on the part of Tenant or of the Sublease on the part
of Subtenant to be kept, observed and performed (including the obligation to cure defaults arising
prior to such assumption); provided, however, Subleasehold Mortgagee's obligations upon its
acquisition of Subenant's rights shall be subject to the terms of this Article 15 and Article 16 of the
Sublease, and (ii)a duplicate original of said assumption agreement, duly executed and
acknowledged by said purchaser or transferee, shall be delivered to Landlord promptly following
the consummation of such sale or transfer.
15.7 Fee Mortgage. This Lease shall be superior to any deed of trust or other security instrument
now or hereafter placed on Landlord's fee interest in the Premises by Landlord and to all advances
made thereunder and to all renewals, modifications, consolidations, replacements and extensions
thereof. If any holder of any mortgage, indenture,deed of trust or other similar instrument succeeds
to Landlord's interest in the Premises, Tenant will pay to such holder all Rent payable to Landlord
which is subsequently payable under this Lease. Tenant shall, upon request of such person
succeeding to the interest of Landlord, automatically become the tenant of, and attorn to, such
successor-in-interest without changing this Lease. Upon request by Landlord or such successor-
in-interest,Tenant will execute, acknowledge and deliver an instrument or instruments confirming
the attornment. Further, Landlord shall not mortgage,pledge, grant deed(s) of trust, or otherwise
encumber all or any portion of Landlord's fee estate in the Premises without Landlord's mortgagee
first executing a subordination of its interest to this Lease and Subtenant's rights under the
Sublease, and any Subleaschold Mortgage, and the rights of the Subleasehold Mortgagee
thereunder, in accordance with this Section 15.7.
15.8 No Merger. There shall be no merger of this Lease or the subleasehold estate hereunder with
the fee estate in the Premises by reason of the fact that this Lease or the Subleasehold estate
hereunder may be held, directly or indirectly, by or for the account of any entities who hold the
fee estate.No such merger shall occur unless all entities having an interest in the fee estate and all
entities (including Subleasehold Mortgagee) having an interest in the New Lease or the
Subleasehold estate hereunder join in a written statement effecting such merger and duly record
the same.
15.9 Damage or Destruction. If the cost to restore improvements exceeds the available insurance
proceeds, Tenant, Subleaschold Mortgagee and Landlord agree to use good faith efforts to arrive
at a mutually agreeable solution to addressing this additional cost; provided, however, no such
good faith efforts shall negate or diminish Tenant's obligations and liability to Landlord and
Subleasehold Mortgagee and Subleasehold Mortgagee's obligations with respect to such
restoration shall be governed under the terms of the documents evidencing or securing the loan
made by Subleasehold Mortgagee to Subtenant
15.10 Amendment or Modification. This Lease may not be modified or amended without the
prior written consent of the Subtenant as well as, to the extent a Subleasehold Mortgage is then in
effect with respect to the Premises,the prior written consent of the Subleaschold Mortgagee.
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15.11 Additional Provisions. To the extent the Subleasehold Mortgagee requests revisions to this
Article., the Landlord and Tenant will agree to reasonably accommodate such revisions to the
extent they are consistent with commercially reasonable lending standards, subject to any required
Landlord approval of the amendment. Either party shall, without charge, at any time and from
time-to-tune hereafter, within ten (10) days after written request by the other, certify by written
instrument duly executed and acknowledged to any Subleasehold Mortgagee, purchaser or
subtenant or prospective Subleasehold Mortgagee,purchaser or subtenant as to: (i)whether this is
a true and correct copy of this Lease,whether this Lease has been supplemented or amended and,
if so, the substance and manner of such supplement or amendment; (ii) the validity and force and
effect of this Lease; (i) the existence of any default hereunder; (iii) the existence of any offsets,
counterclaims or defenses thereto on the part of such party; (iv)the commencement and expiration
dates of the Term of this Lease; (v)the address or addresses for notice of Landlord,Tenant or any
Subleasehold Mortgagee; and (vi) any other matters as may reasonably be so requested.Any such
certificate may be relied upon by the party requesting it and any other person, firm or corporation
to whom the same may be exhibited or delivered, and the contents of such certificates shall be
binding upon the party executing the same.
15.12 Subordination of Landlord's Lien. Landlord hereby subordinates any Iien and security
interest it may have or acquire by operation of law or otherwise upon the property of Tenant or
any subtenant under Tenant from time-to-time situated upon the Premises to each Subleasehold
Mortgage which,from time-to-time,encumbers Tenant's or any subtenant's interest in the Premises
or improvements and/or other property thereon. Such subordination shall be self executing and
effective without the necessity for execution of any further instrument by Landlord; provided,
however,within ten(10) days of a request of a Subleasehold Mortgagee or a subtenant from time
to time, Landlord shall execute such instruments as may be reasonably requested to ratify and
confirm or evidence such subordination.
ARTICLE 16--AUDIT
16.1 Landlord's Right to Audit. Tenant agrees that Landlord shall, until the expiration of one
(1) year after final payment under this Lease, or the final conclusion of any audit commenced
during the said one (1) year-period, have access to and the right to examine at reasonable times
any directly pertinent and non-privileged books,documents,papers and records,including,but not
limited to, all electronic records, of Tenant for the current year and, as applicable, the prior year,
involving transactions directly relating to this Lease and the use of the Premises, at no additional
cost to Landlord. Tenant agrees that Landlord shall have access during normal working hours to
all necessary books, documents, papers and records (for the current year and, as applicable, the
immediately prior three [31 years) in order to conduct audits in compliance with the provisions of
this section; provided, however,Landlord shall conduct any such audits in a manner that does not
unreasonably interfere with the normal business operations of Tenant. Landlord shall give Tenant
not less than thirty(30) days' written notice of any intended audits. Tenant shall require an audit
provision similar to this section in favor of Landlord in any and all contracts, subleases, or other
agreements executed related to the use of the Premises.
ARTICLE 17—CITY'S FISCAL FUNDING OUT
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17.1 Non-appropriation of Funds. In the event no funds or insufficient fiends are appropriated
by Tenant in any fiscal period for any payments due by Tenant hereunder, Tenant will notify
Landlord and Subtenant in writing of such occurrence and Subtenant shall be allowed to take over
any obligation Tenant may have under this Lease for which no funds or insufficient funds have
been identified, and Landlord shall accept Subtenant's performance of Tenant's obligations
hereunder. Should Subtenant elect not to assume such obligations, this Lease shall terminate on
the last day of the fiscal period for which appropriations were received without penalty or expense
to Tenant of any kind whatsoever, except as to the portions of the payments herein agreed upon
for which funds have been appropriated.
ARTICLE 18—DAMAGE TO PREMISES
18.1 Casualty. If a Casualty partially damages or destroys any or all of the Parking Garages
comprising the Premises, and if restoration of such portion the Premises is permitted or required
pursuant to the Condominium Documents,Tenant shall diligently proceed to repair and restore(or
cause Subtenant and/or the Condo Association, as may be applicable, to repair and restore) fully,
at its own cost but in no event in an amount greater than the insurance proceeds allocable to the
Premises in connection with such casualty event, the structural elements of the Parking Garages
or the Premises, and all improvements thereto made by Tenant, substantially to their condition
before the Casualty;provided, however,Tenant shall in no event be required to restore any portion
of the common elements unless pursuant to the Condominium Documents such restoration is
expressly required to be performed by the Owner of the Premises pursuant to the Condominium
Documents. Due allowance, however, shall be given for the time required to adjust and settle
insurance claims, and for such other delays as may result from government restrictions, any
controls on construction, and for strikes, emergencies, and other conditions beyond Tenant's
reasonable control. Notwithstanding anything to the contrary in this Lease, restoration of the
Premises and the application of insurance proceeds thereto shall be governed by the Condominium
Documents and the applicable provisions of any Subleasehold Mortgage,to the extent any conflict
exists between the provisions of this Lease and the provisions of the Condominium Documents
and/or such applicable Subleasehold Mortgage. If reconstruction of the Parking Garages is
deemed financially infeasible by Tenant, Tenant may elect not to restore the improvements and
terminate this Lease with respect to such damaged portion of the Premises (while leaving this
Lease intact for the non-damaged Parking Garage, to the extent only one of the Parking Garages
is damaged or destroyed) by giving written notice to Landlord within 180 days following such
Casualty. In such event, neither party shall have a cause of action against the other for monetary
damages.
ARTICLE 19—OPTION AND RIGHT OF REFUSAL
19.1 Tenant's Option to Purchase.
19.1.1 Grant of Option. Landlord grants to Tenant a one-time option (the "Option") to
purchase the Premises from Landlord for the Option Purchase Price. Tenant shall assign this
Option to Subtenant in the Sublease,and Landlord hereby acknowledges and agrees that Landlord
shall accept the exercise of this Option by Subtenant on the same terms and conditions applicable
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to Tenant hereunder as if Subtenant were Tenant hereunder. Further, Landlord acknowledges and
agrees that, if after the date hereof there are multiple Subleases and Subtenants pursuant to partial
assignments of the Sublease undertaken pursuant to Section 9.2 of the Sublease, each such
Subtenant shall have the separate right to exercise an Option for such Subtenant's separate Sublease
Premises only(such terms to be made on a pro-rata basis, as allocable to such Sublease Premises).
19.1.2 Exercise of Option. Tenant shall have the right to exercise the Option commencing
on the 20th and final year of the initial term of this Lease, The Option may be exercised by the
holder of the Option by giving notice of the exercise of the Option at least seventy-five (75) days
prior to the expiration of the Term. The notice to exercise Option by Tenant shall include the
calculation of the Option Purchase Price. If Tenant has exercised the Option and Landlord agrees
to the calculation of the Option Purchase Price in writing(such agreement not to be unreasonably
withheld),then Landlord and Tenant shall enter into a purchase and sale agreement(the "Option
PSA"), in form and substance reasonably acceptable to Landlord and Tenant, incorporating,
without limitation, the following terms and conditions (collectively, the "Option PSA Terms"):
(i)Tenant shall have a period of forty-five (45) days after executing the Option PSA (the "Study
Period") to order a title report on the Premises and perform any other inspections, surveys, tests,
including without limitation, environmental and engineering tests, and studies that Tenant desires;
(ii) if Tenant is not satisfied with the results of its due diligence, Tenant may elect to deliver to
Landlord, prior to the expiration of the Study Period, a notice stating that Tenant terminates the
Option PSA and declines to exercise the Option (the "Withdrawal Notice"); (iii) if Tenant does
not deliver a Withdrawal Notice within the Study Period, then the closing shall occur on the
Acquisition Closing Date, to be held at the offices of a title company selected by Tenant and
reasonably approved by Landlord; (iv) Tenant shall pay the Option Purchase Price in cash at the
closing of the acquisition of the Premises, subject to the adjustments and prorations described in
the Option PSA;(v)title to the Premises shall be conveyed to Tenant pursuant to a special warranty
deed, subject only to permitted exceptions contained in Landlord's vesting deed and such
subsequent matters affecting title which Subtenant has consented to in writing pursuant to the
provisions of the Sublease; (vi) Landlord shall execute and deliver such other documentation as
.shall be necessary to transfer the Premises, any associated personal property and intangible
property and all appurtenances owned by Landlord to Tenant, and to otherwise consummate the
transaction as set forth in the Option PSA; (vii)Landlord shall pay the base premium for an Owner
Policy of Title Insurance,.one-half of all escrow charges payable at the Closing, its own attorneys'
fees,and any other closing costs customarily borne by sellers at closings of the purchase or sale of
real property similar to the Premises in Tarrant County, Texas; (viii) Tenant shall pay its due
diligence costs, the costs associated with Tenant's financing, recording fees (except for title
curative recording fees,which shall be borne by Landlord),one-half of all escrow charges payable
at the Closing,its own attorneys'fees,and any other closing costs customarily borne by purchasers
at closings of the purchase or sale of real property similar to the Premises in Tarrant County,Texas.
Tenant shall assign this Option to Subtenant in the Sublease, and Landlord hereby acknowledges
and agrees that Landlord shall accept the exercise of this Option by Subtenant, or an affiliate of
Subtenant, on the same terms and conditions applicable to Tenant hereunder as if Subtenant were
Tenant hereunder. Notwithstanding anything herein to the contrary, Landlord's payment of the
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Parking Garages Lease CCLGC&CFW
closing costs described in clause (vii) above, other than Landlord's own attorney's fees and the
costs of removing any tide encumbrances created by or through Landlord,shall in no event exceed
the amount of proceeds Landlord shall receive from the Option Purchase Price, so that all of such
Landlord's closing costs may be deducted from proceeds and not require additional payment by
Landlord,and to the extent any of Landlord's costs exceed the proceeds from the Option Purchase
Price, Tenant shall pay such costs.
19.1.3 Extended Option. In the event the Sublease is extended beyond its initial 20-year
Term,Landlord grants to Tenant an option to purchase one or all of the Parking Garages at the fair
market value as determined by an independent appraisal ("Extended Option"). Tenant shall have
the right to exercise the Extended Option at all times after the initial 20-year Term by giving
written notice of such exercise to Landlord. The giving of a notice by Tenant shall constitute
Tenant's request for determination of the fair market value of the Premises (the "Appraised
Value") by an independent appraiser reasonably agreed upon by the parties who has not less than
ten (10) years of experience in valuing similar properties and who has not been hired by either
party in the prior five (5) years; provided, however, if the parties are unable to agree upon an
independent appraiser, then each party shall appoint its own appraiser, and the respective
appraisers shall work together in good faith to appoint an independent appraiser meeting the
requirements set forth above to determine the Appraised Value. If Tenant has exercised the
Extended Option,then Landlord and Tenant shall enter into an Option PSA containing the Option
PSA Terms, except that (i) the purchase price thereunder shall be equal to the Appraised Value,
and (ii) the closing shall occur on the sixtieth (60th) day after the parties have received the
Appraised Value. Tenant shall assign this Extended Option to Subtenant in the Sublease, and
Landlord hereby acknowledges and agrees that Landlord shall accept the exercise of this Extended
Option by Subtenant on the same terms and conditions applicable to Tenant hereunder as if
Subtenant were Tenant hereunder.
19.2 Right of Refusal. If, at any time during the Term of this Lease, in response to a bona fide
offer for which Landlord has obtained approval from its Board of Directors to accept (subject to
Tenant's rights under this ROFR Option) to sell all or part of Landlord's interest in the Premises
(the "Offer") from a third party(the "Offeror"),Landlord shall desire to sell or otherwise dispose
of such interest, Landlord shall notify Tenant in writing of the Offeror to whom it desires to sell
such interest and the price at which and the terms upon which it desires to sell the same, along
with a copy of the Offer, and Tenant may, within 30 days of receipt of the notice, notify Landlord
in writing whether it elects to purchase such interest in the Premises (the "ROFR Option") at the
price and on the material economic terms set forth in the Offer (the "ROFR Terms"). If Tenant
exercises Tenant's ROM Option, then Landlord and Tenant shall enter into an Option PSA
containing the Option PSA Terms, except that any ROFR Terms shall control in the event a direct
conflict with the Option PSA Terms exists. If Tenant elects not to exercise its ROFR Option or
fails to give notice of its intention within the 30-day period, subject to the terms of this Section
19.2, Landlord shall be free to convey, assign, or otherwise transfer such interest to the Offeror
upon the terms and conditions set forth in the Offer (and not on more favorable terms than those
stated in the Offer). If Landlord shall not have so disposed of such interest to said Offeror within
90 days after receipt of notice that Tenant elects not to exercise its ROFR Option or after expiration
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Parking Garages Lease CCLGC&CFW
of Tenant's 30-day period within which to give notice of its election to exercise the ROFR Option,
or in the event of any change to the terms and conditions set forth in the Offer initially provided to
Tenant,the provisions of this Section shall again apply to the disposition by Landlord of any such
interest and Landlord shall be required to again offer the Premises to Tenant pursuant to this
Section 19.2 prior to any purchase or sale of the Premises (in whole or in part) thereafter. The
ROFR Option granted in this Section 19.2 is an on-going ROFR Option and will apply each time
the owner of the Premises receives an Offer. Any conveyance by Landlord to a third party shall
be subject to the terms of this Lease. Nothing contained herein shall prohibit Landlord from
conveying the Premises to the City or to another entity affiliated with City, provided.that such
entity would be eligible for a tax exemption on the Premises.Tenant shall assign this ROFR Option
to Subtenant in the Sublease, and Landlord hereby acknowledges and agrees that Landlord shall
accept the exercise of this ROFR Option by Subtenant, or an affiliate of Subtenant, on the same
terms and conditions applicable to Tenant hereunder as if Subtenant were Tenant hereunder.
Further, Landlord acknowledges and agrees that, if after the date hereof there are multiple
Subleases and Subtenants pursuant to partial assignments of the Sublease undertaken pursuant to
Section 9.2 of the Sublease,each such Subtenant shall have the separate right to exercise an ROFR
Option for such Subtenant's separate Sublease Premises only(such terms to be wade on a pro-rata
basis, as allocable to such Sublease Premises).
ARTICLE 20—WAIVER
20.1 No Waiver. No waiver of any covenant, condition, or legal right or remedy shall be implied
by the failure of Landlord to declare a default, or for any other reason, and no waiver of any
condition or covenant shall be valid unless it is in writing signed by Landlord. No waiver by
Landlord in respect to the waiver of a breach of any condition or covenant be claimed or pleaded
to excuse a future breach of the same condition or covenant. No waiver of any default by Tenant
shall be implied from any acceptance by Landlord of any Rent or other payments due or by any
omission by Landlord to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect any other default other than as specified in such
waiver.
20.2 No Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest
stipulated Rent nor shall any endorsement or statement on any check or any letter accompanying
any check or payment be deemed an accord and satisfaction,and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue
any other remedy provided for in this Lease or available at law or in equity.
ARTICLE 21 —NIISCELLANEOUS
21.1 Remedies Cumulative. All rights, options, and remedies of Landlord or Tenant,
respectively,contained in this Lease shall be construed and held to be cumulative and the exercise
of one or more rights, remedies, or options shall not be taken to exclude or waive the right to the
exercise of any other. All such rights, remedies, and options may be exercised and enforced
concurrently and whenever and as often as deemed desirable. Landlord and Tenant shall have the
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Parking Garages Lease CCLOC &CF W
right to pursue any one or all of such remedies that may be provided herein. Landlord shall have
a duty to mitigate its damages under this Lease. In no event shall either party be liable to the other
party for any consequential, punitive, indirect,exemplary or special damages suffered or incurred
by the party, including, without limitation, on account of lost profits or the interruption of
business.
21.2 Rule of Construction.. Landlord and Tenant acknowledge that each has reviewed and
revised this Lease, and Landlord and Tenant hereby agree that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Lease or any amendments or exhibits hereto.
21.3 Authority.Each person executing this Lease,by its execution hereof,represents and warrants
that he is fully authorized to do so, and that no further action or consent on the part of the party for
whom it is acting is required to the effectiveness and enforceability of this Lease against such party
following such execution.
21.4 Counterparts. This Lease may be executed in any number of counterparts, each of which
will for all purposes be deemed to be an original, and all of which are identical.
21,5 Applicable Law, Place of Performance. THIS LEASE SHALL BE CONSTRUED
UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ALL OF
THE OBLIGATIONS CONTAINED IN THIS CONTRACT ARE PERFORMABLE IN
TARRANT COUNTY, TEXAS.
21.6 Venue. Venue of any action brought under this Lease shall be in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort
Worth Division.
21.7 Entire Agreement. This Lease and the exhibits attached hereto constitutes the entire
agreement between Landlord and Tenant, and there are no other covenants, agreements,promises,
terms,provisions,conditions,undertakings,or understandings,either oral or written,between them
concerning the Premises other than those herein set forth. No subsequent alteration, amendment,
change, deletion or addition to this Lease shall be binding upon Landlord or Tenant unless in
writing and signed by both Landlord and Tenant.
21.8 Headings.'The headings, captions, numbering system, etc. are inserted only as a matter of
convenience and may under no circumstances be considered in interpreting the provisions of this
Lease.
21.9 Binding Effect.All of the provisions of this Lease are hereby made binding upon the personal
representatives, heirs, successors, and assigns of both parties hereto. Where required for proper
interpretation, words in the singular shall include the plural; the masculine gender shall include
the neuter and the feminine, and vice versa. The terms "heirs, executors, administrators and
assigns" shall include"successors, legal representatives and assigns."
21.10 Severability. If any clause or provision of this Lease is or becomes illegal, invalid or
unenforceable because of present or future laws or any rule or regulation of any governmental
body or entity, effective during the Term, the intention of the parties hereto is that the remaining
parts of this Lease shall not be affected thereby unless such invalidity is, in the sole determination
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Parking Garages Lease CCLGC&CFW
of the Landlord, essential to the rights of both parties, in which event Landlord has the right, but
not the obligation,to terminate the Lease on 10 days" written notice to Tenant.
21.11 Exhibits. All Exhibits attached hereto are deemed incorporated herein by reference as
though made an integral part hereof.
21.12 Lease Memorandum. Tenant may, at its sole cost and expense (including the payment of
all recordation and transfer taxes), record a short form or memorandum of this Lease (but not the
Lease itself) and,promptly provide Landlord a recorded copy.
21.13 Governmental Powers. It is understood and agreed that by execution of this Lease,
Landlord does not waive or surrender any of its governmental powers or immunities.
21.14 Third Party Beneficiaries. Nothing contained in this Lease shall be construed so as to
confer upon any other party the rights of a third party beneficiary except rights contained herein
for the benefit of Subleasehold Mortgagee.
21.15 Force Majeure. The parties shall be excused for the period of any delay in the performance
of any obligations hereunder when prevented from doing so by cause or causes beyond the parties'
absolute control,which shall include, without limitation,all labor disputes, civil commotion, civil
disorder, riot, civil disturbance, war, war-like operations, invasion, rebellion, hostilities, military
or usurped power, sabotage, governmental regulations, orders, moratoriums or controls, fire or
other casualty, inability to obtain any material, services or financing or Acts of God.
Notwithstanding anything herein contained to the contrary, the provisions of this section 21.15
shall not be applicable to Tenant's obligations to pay Rent or any other sums,monies,costs,charges
or expenses required to be paid by Tenant under this Lease.
21.16 Independent Contractor. It is expressly understood and agreed that Tenant shall perform
its obligations and responsibilities hereunder as an independent contractor and not as an officer,
agent, representative or employee of Landlord; that Tenant shall have exclusive control of and the
exclusive right to control the details of its obligations and responsibilities and all persons
performing same; that Tenant shall be solely responsible for the acts or omissions of its officers,
agents, employees or other persons under its supervision, management and control; that the
doctrine of respondeat superior shall not apply as between Landlord and Tenant and that nothing
herein shall be construed as creating a partnership or joint enterprise between' Landlord and Tenant.
Any intention to create a joint venture or partnership relation between the parties hereto is hereby
expressly disclaimed.
[Signature page follows.]
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Parking Garages Lease CCLGC&CFW
IN WITNESS HEREOF, the parties hereto have executed this Lease to be effective as of the
Effective Date.
LANDORD:
Central City Local Government Corporation
sy:
Name:
Title: trti
TENANT:
City of Fort Worth
By:
Name: . C c d—
Title: AR uaJlck.
ADDITIONAL CITY OF FORT WORTH REQUIRED SIGNATURES:
Contract Compliance Manager
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
i
lame
: (T iLoW�'
Title: �v'
/Ll'`� f 4�corrv�►G der�i'e..s..7
IAA RECORD
Page 30 of 40 �'j'iy SECRETARY
Parking Garages Lease CCLGC&CFW y WORIK U
APPROVED AS TO FORM AND LEGALITY:
�-heann Guzman
Deputy City Attorney
Form 1295:NIA
AT STED BY:
OF fo
R nald P. Gonzale$.
Acting City Secretary s}
M&C #
DATE: S
UFFICjAL RECORD
Page 31 of 40 CIS''SECRETAR r
Parking Garages Lease CCLGC& CFW �, ��Rlri TX
EXHIBIT "A"
Definitions
"380 Grant" shall mean the annual payments to Subtenant by the City of Fort Worth, assigned to
be paid directly to the Central City Local Government Corporation, in an amount equal to the
amount by which the Sublease Rent exceeds the Sublease Payment, provided that such payment
shall be received by Subtenant as a credit against the Sublease Rent, pursuant to the Sublease
between Subtenant and the City of Fort Worth.
"Acquisition Closing Date" means a date designated by Tenant for closing of the acquisition of
the Premises (by at least ten(10)days' advance written notice to Landlord),which is not later than
sixty (60) days after Landlord and Tenant enter into the Option PSA.
"Annual Debt Service Amount" means the amount required to pay the annual debt service on the
Bonds.
"Applicable Environmental Law"has the meaning set forth in Section 6.6.
"Pond Resolution"means a resolution approved bythe Landlord's Board of Directors that provides
for the dates, denominations, principal amounts, interest rates, maturities, redemption provisions,
forms of bonds, manner of payment, provision for execution and authentication, application of
proceeds and all other terms and provisions of the Lease Revenue Bonds.
"Bonds" means the bonds issued by the Landlord for the acquisition of the Premises.
"Casualty" shall mean a loss or damage caused by fire or other casualty.
"CERCLA"means the Comprehensive Environmental Response, Compensation,and Liability Act
of 1980 as codified at 42 U.S.C. § 9601 et seq., as amended.
"Commencement Date"has the meaning set forth in Section 2.L
"Condemnation Proceeds" has the meaning set forth in Section 6.7.
"Condominium"means the Cultural District Master Condominium.
"Condominium Declaration"means the Declaration of Condominium Regime for Cultural District
Master Condominium recorded as Document No. of the Official Public Records
of Tarrant County, Texas, as may be amended, supplemented or modified from time to time.
"Condominium Documents" means, individually or collectively as the case may be, the
Condominium Declaration, the Plat and Plans, the Certificate, the Bylaws, the Rules, the
Allocation Document, and. the Act, as each term is so defined in the Condominium Declaration
and as each may be amended from time to time. An appendix, attachment, schedule, or
certification accompanying a Condominium Document is a part of that Condominium Document.
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Parking Garages Lease CCLGC & CFW
"Day(s)" or"day(s)"means a calendar day unless otherwise specified.
"Debt Service Difference"means the difference between the Annual Debt Service Amount and the
Sublease Rate.
"Debt Service Rate"means the amount of the full debt service for the bonds issued by the Landlord
for the acquisition of the Premises.
"Effective Date" means the date on which the Landlord and Tenant have both executed and
delivered the Agreement, as noted on the cover page of the Lease.
"Extended Option"has the meaning set forth in Section 19.1.3.
"Fair Market Rent''means the amount of the fair market value for the use of the Parking Garages,
calculated as set forth in the Lease.
"Garage Revenues" means an amount equal to 25% of any Net Revenue for Short-Term Parking
during the first five (5) years of the Term and 50% of such Net Revenue for all subsequent years
of the Term.
"Governmental Rules" means all statutes, laws, ordinances, treaties, rules, codes, regulations,
permits, interpretations, certificates or orders of any governmental entity, or any judgments,
decisions, decrees, injunctions, writes, orders or like action of any court, arbitrator, or other
Federal, State or local governmental entity.
"Hazardous Substance" and "Hazardous Substances"has the meaning set forth in Section 6.6.
"Landlord" means the Central City Local Government Corporation, a Texas non-profit
corporation.
"Lease"means this Parking Garage Lease with Option to Purchase.
"Memorandum of Rent and Commencement Date"has the meaning set forth in Section 2.1.
"Net Revenue" means the annual revenue, after deductions for amounts payable by Subtenant
under the Sublease, as well as reasonable operating and maintenance expenses directly related to
repair,replacement,maintenance,management and operation of the Premises(subject to an annual
cap on Subtenant's attorneys'fees in the amount of$25,000), collected by Subtenant from parking
fees for the Public Spaces.
"New Lease"has the meaning set forth in Section 15.2.
"Option"has the meaning set forth in Section 19.LI I.
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Parking Garages Lease CCLGC&CFW
"Option Purchase Price" means an amount equal to the Purchase Price minus (1) the net present
value of all Sublease Payments, but specifically excluding any 380 Grant payments, and (ii) all
Garage Revenues paid by Subtenant to Sublandlord as of the date of such determination. For
purposes of net present value calculations, Landlord and Tenant stipulate and agree to a discount
rate equal to six percent(6%)per annum. The year of the first Sublease Payment will serve as the
present year for all such calculations. For example, using this method, the net present value of
twenty annual payments of$1,000,000.00 would be equal to $11,469,921.22.
"Parking Garage Master Unit I" means the Garage Master Unit 1 more particularly described on
the attached Exhibit"B"attached hereto,together with the undivided interest in any areas reserved
as General Common Elements (as defined in the Condominium Declaration) or Limited Common
Elements (as defined in the Condominium Declaration) appurtenant to Garage Master Unit 1,and
such easements and other rights to use the Common Elements (as defined in the Condominium
Declaration)which have been specifically assigned thereto in the Condominium Declaration.
"Parking Garage Master Unit 2"means the Garage Master Unit 2 more particularly described on
the attached Exhibit"B" attached hereto,together with the undivided interest in any areas reserved
as General Common Elements (as defined in the Condominium Declaration) or Limited Common
Elements (as defined in the Condominium Declaration) appurtenant to Garage Master Unit 2, and
such easements and other rights to use the Common Elements (as defined in the Condominium
Declaration) which have been specifically assigned thereto in the Condominium Declaration.
"Parking Garage Master Unit 3"means the Garage Master Unit 3 more particularly described on
the attached Exhibit"B" attached hereto,together with the undivided interest in any areas reserved
as General Common Elements (as defined in the Condominium Declaration) or Limited Common
Elements (as defined in the Condominium Declaration) appurtenant to Garage Master Unit 3, and
such easements and other rights to use the Common Elements (as defined in the Condominium
Declaration) which have been specifically assigned thereto in the Condominium Declaration.
"Parking Garages" means, collectively, Parking Garage Master Unit 1, Parking Garage Master
Unit 2, and Parking Garage Master Unit 3,containing 800 or more spaces in the aggregate that are
located on the Premises.
"Premises"means,collectively,Parking Garage Master Unit 1,Parking Garage Master Unit 2,and
Parking Garage Master Unit 3, and all improvements located thereon, including but not limited to
the Parking Garages.
"Project"means a mixed-use development featuring a hotel with at least 200 rooms; 169 or more
units of multi-family apartments; 150,000 square foot or more office building, and the Parking
Garages on property located at the intersection of Camp Bowie Boulevard and Van Cliburn Way.
"Public Spaces" means the four hundred (400) parking spaces in the Parking Garages that are to
be made available for public use as set forth in the Lease.
"Purchase and Sale Agreement"has the meaning set forth in Recital 1.
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Parking Garages Lease CCLGC& CFW
"Purchase Price" means the purchase price paid by Landlord for the purchase of the Parking
Garages upon completion of construction, which is the Iesser of(i) the fair market value of the
Parking Garages at the time of completion of construction (as determined pursuant to the
applicable provisions in the Purchase and Sale Agreement), or(ii) $25,000,000.
"Release"has the meaning set forth in Section 6.6.
"Rent" means the higher of the Debt Service Rate and the Fair Market Rent, which shall be set
forth in the Memorandum. of Rent.
"Reportable quantity"has the meaning set forth in Section 6.6.1.
"Short-Term Parking" means visitor and public self-parking within the Parking Garages,
excluding any valet parking services, contract parking, and parking by employees, agents,
residents and tenants of the office,residential and retail portions of the Project.
"Sublandlord"means Tenant in its capacity as landlord under the Sublease.
"Sublease" means the mandatory sublease between Tenant and Subtenant with the terms and
conditions set forth in Section 9.1.
"Sublease Payment" means $800,000.00 per year, to be paid by Subtenant to Sublandlord, and is
the maximum amount the Subtenant is required to pay of the total Sublease Rent, with the
remaining amount credited through the 380 Grant as set forth in the agreement between Subtenant
and Tenant,except that in the event that the 380 Grant is terminated,forfeited,or equitably reduced
as expressly provided for in the 380 Agreement, an amount equal to the 380 Grant if terminated,
or to the reduction in the 380 Grant due to forfeiture, or equitable reduction shall be added to the
$800,000.00 per year amount set forth above.
"Sublease Rate"means the greater of$800,000 per year or Fair Market Rent.
"Sublease Rent"means the Sublease Rate plus the Debt Service Difference
"Subleasehold Mortgage"has the meaning set forth in Section 15.1.
"Subleasehold Mortgagee"has the meaning set forth in Section 15.1.
"Subtenant"means GPIF CD Hotel LLC, GPIF CD Multi LLC, and GPIF CD Office LLC, each,
a Delaware limited liability company, and their respective successors and assigns.
"Taking" means a taking or condemnation either permanently or temporarily for any public or
quasi-public use or purpose by any competent authority (other than by the City of Fort Worth) in
appropriation proceedings or by any right of eminent domain (including sale under threat of such
a taking).
"Tenant"means the City of Fort Worth, a Texas municipal corporation.
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Parking Garages Lease CCLGC&CFW
"Tenant's Recovery"has the meaning set forth in Section 6.7.
"Term"means the term of this Lease as set forth in Section.2.1.
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Parking Garages Lease CCLGC& CFW
EXHIBIT "B"
Premises Description
Parking Garage Master Unit 1:
Garage Master Unit 1 of Cultural District Master Condominium,a condominium project in Tarrant
County, Texas created pursuant to Condominium Declaration,together with an undivided interest
in and to the Common Elements(as defined in the Condominium Declaration)appurtenant thereto.
Parking Garage Master Unit 2:
Garage Master Unit 2 of Cultural District Master Condominium,a condominium project in Tarrant
County, Texas created pursuant to Condominium Declaration,together with an undivided interest
in and to the Common Elements(as defined in the Condominium Declaration)appurtenant thereto.
Parkins Garage Master Unit 3:
Garage Master Unit 3 of Cultural District Master Condominium,a condominium project in Tarrant
County, Texas created pursuant to Condominium Declaration,together with an undivided interest
in and to the Common Elements(as defined in the Condominium Declaration)appurtenant thereto.
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Parking Garages Lease CCLGC& CFW
EXHIBIT "C"
Form of Memorandum of Rent and Commencement Date
202
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
Attn:
Re: Parking Garage Lease with Option to Purchase (the "Lease") dated
, 2021, between Central City Local Government Corporation, a
non-profit local government corporation of the State of Texas ("Landlord"), and
The City of Fort Worth ("Tenant"). Capitalized terms used herein but not defined
shall be given the meanings assigned to them in the Lease.
Ladies and Gentlemen:
Landlord and Tenant agree as follows:
I. Acceptance of Premises. Tenant has accepted possession of the Premises pursuant
to the Lease.
2, Commencement Date. Notwithstanding anything to the contrary set forth in the
Lease, it is hereby agreed that the Commencement Date of the Lease shall for all purposes
thereunder be hereafter deemed to be , 202 .
3. Expiration Date. Notwithstanding anything to the contrary set forth in the Lease,
it is hereby agreed that the initial Term is scheduled to expire on the last day of the 20th year of
the Term, which date is , 204 , subject to the Renewal Terms set forth in the
Lease,
4. Fair Market Rent. Notwithstanding anything to the contrary set forth in the Lease,
it is hereby agreed, as determined in accordance with the provisions of the Lease, that (i) Fair
Market Rent shall equal $_ , and(ii) The Debt Service Rate shall equal $
5. Binding Effect; Governing Law. Except as modified hereby, the Lease is and
shall remain in full force and effect and this letter shall be binding upon Landlord and Tenant and
their respective successors and assigns. If any inconsistency exists or arises between the terms of
this letter and the terms of the Lease, the terms of this letter shall prevail. This letter shall be
governed by the laws of the State of Texas.
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Parking Garages Lease CCLGC&CFW
Please indicate your agreement to the above matters by signing this letter in the space
indicated below and returning an executed original to us.
Sincerely,
Central City Local Government Corporation,.
a non-profit local government corporation of the
State of Texas
By: SAMPLE FORM—DO NOT SIGN
Name:
Title:
Agreed and accepted:
City of Fort Worth
By:
Name:
Title:
ADDITIONAL CITY OF FORT WORTH REQUIRED SIGNATURES:
Contract Compliance Manager
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
i
Name:
Title:
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Parking Garages Lease CCLGC & CFW
APPROVED AS TO FORM AND LEGALITY:
Leann Guzman
Deputy City Attorney
Form 1295:N/A
ATTESTED BY:
Mary Kayser
City Secretary
M&C #
DATE:
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Parking Garages Lease CCLGC& CFW
4840-5918-0007v,11 59164-83 9/13/2021