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HomeMy WebLinkAbout029237 ORD - 10/11/2011Page 1 of 2 Ordinance consenting to the assignment of a Ground Lease at Corpus Christi International Airport with Corpus Christi Developments 1, L.L.C. doing business as Corpus Christi FXG, L.L.C. to MREIC Corpus Christi TX, L.L.C.; authorizing the City Manager or designee to execute all documents necessary to consent to the Assignment and Assumption Agreement between all parties; and declaring an emergency. WHEREAS, the City of Corpus Christi ("City") executed a Ground Lease at Corpus Christi International Airport with Corpus Christi Developments 1, L.L.C. doing business as Corpus Christi FXG, L.L.C., as approved by Ordinance 028801 on 10/12/2010, with a thirty year term; WHEREAS, Corpus Christi Developments 1, L.L.C. doing business as Corpus Christi FXG, L.L.C. requests consent of the assignment of the agreement to MREIC Corpus Christi TX, L.L.C.; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI TEXAS THAT: SECTION 1. The City Council, pursuant to Article IX, Section 4, of the City Charter, approves the assignment of the Ground Lease at Corpus Christi International Airport with Corpus Christi Developments 1, L.L.C. doing business as Corpus Christi FXG, L.L.C. Inc. to MREIC LLC. under the terms and conditions stated in the attached Assignment and Assumption Agreement. Furthermore, the City Manager or designee is authorized to execute all documents necessary to consent to the Assignment and Assumption Agreement with all parties. A copy of the agreement will be filed with the City Secretary. SECTION 2. The City Manager is authorized to execute the Landlord Estoppel certificates appended to the Assignment and Assumption agreement, with copy to be filed with the City Secretary. SECTION 3. That upon written request of the Mayor or five Council members, copy attached, the City Council finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and suspends the Charter Rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinancp is pass,d and takes effect upon first reading as an emergency measure this the /Jay of tJ 6.�, , 2011. ATTEST: Armando Chapa City Secretary Approv d: August 1$, 2011 By: i�- Lisa Aguilar, As `is ant City Attorney for the City Attorney CITY OF CORPUS CHRISTI 0;1-11.,:eeitoe--0 Joe Aame Mayor 029.237 J:1LISA12011 OrdinancelAirport Ground Lease Assignment and Assumption Agreement.doc INDEXED Page2of2 Corpus Christi, Texas I'- Day of 6Ci b. , 2011 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: I/we, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, Joe Ad Mayor Council Members The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal David Loeb John E. Marez Nelda Martinez Mark Scott L ard120,-Zel. 0 29237 J:1LISA12011 ordinancelAirport Ground Lease Assignment and Assumption Agreement.doc ASSIGNMENT AND ASSUMPTION OF GROUND LEASE STATE OF TEXAS KNOW ALL BY THESE PRESENTS: COUNTY OF NUECES THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE (the "Assignment") is effective as of the day of , 2011 (the "Effective Date"), by and between CORPUS CHRISTI DEVELOPMENT 1, L.L.C., a Missouri limited liability company d/b/a Corpus Christi FXG, L.L.C. ("Assignor") and MREIC CORPUS CHRISTI TX, LLC, a Texas limited liability company ("Assignee"), with mailing address of Juniper Business Plaza, 3499 Route 9 North, Suite 3-C, Freehold, New Jersey 07728, Attn: Mr. Eugene W. Landy, President. RECITALS WHEREAS, Assignor, as "Developer", has entered into a Ground Lease dated October 12, 2010, with CITY OF CORPUS CHRISTI ("Master Landlord"), as "Tenant", covering certain real property located in Nueces County, Texas, as more particularly described on EXHIBIT A attached hereto and incorporated herein by reference (the "Property"), a true and correct copy of which is attached hereto as EXHIBIT B ("Lease"). WHEREAS, Assignor desires to assign and transfer to Assignee all of the rights and benefits of Assignor as "Developer" under the Lease upon the terms set forth below. WHEREAS, by Assignment and Assumption of Sublease of even date herewith, Assignor has granted, sold, and conveyed to Assignee all of Assignor's interest as "Landlord" under that certain Sublease dated October 4, 2010, between Assignor and FedEx Ground Package System, Inc. covering the Property. WHEREAS, at public hearing on August 23, 2011, the City Council of the CITY OF CORPUS CHRISTI ("City Council") consented to this Assignment and Assumption of Lease and authorized the City Manager to execute the Landlord's Consent and Estoppel Certificate appended hereto. AGREEMENT NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration paid by Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby ASSIGNS, TRANSFERS, SETS OVER, CONVEYS, and DELIVERS unto Assignee all of Assignor's interest in the Lease. TO HAVE AND TO HOLD the Assignor's interest in the Lease, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Assignee, Assignee's successors and assigns forever; and Assignor does hereby bind Assignor, and Assignor's successors and assigns, to WARRANT and FOREVER DEFEND, all and singular, the Assignor's interest in the Lease, unto Assignee, and Assignee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. By execution hereof, Assignee assumes and is obligated to keep, fulfill, observe, perform and discharge each and every covenant, duty, debt, and obligation of the "Developer" that may accrue and become performable, due, or owing on after the Effective Date under the terms, provisions and conditions of the Lease. Assignor agrees to indemnify Assignee against and hold Assignee harmless from any and all cost, liability, loss, damage, or expense, including, without Iimitation, reasonable attorneys' fees, arising from or in any way connected with Assignor's performance of or failure to perform any duties or obligations accruing under the Lease prior to the Effective Date. Assignee agrees to indemnify Assignor against and hold Assignor harmless from any and all cost, liability, loss, damage, or expense, including, without limitation, reasonable attorneys' fees, arising from or in any way connected with Assignee's performance of or failure to perform any duties or obligations accruing under the Lease on or after the Effective Date. Assignor represents and warrants to Assignee that as of the Effective Date: (a) Assignor is the current owner and holder of all rights, titles, and interests of the "Developer" under the Lease, and Assignor's rights, title, and interest in the Lease have not been assigned, transferred, or mortgaged to any other party; (b) there are no uncured defaults by Assignor under the Lease nor does any condition exist that, with the passage of time or the giving of notice or both, would constitute a default of Assignor under the Lease; (c) to the best of Assignor's knowledge, there is no uncured default by time or the giving of notice or both, would constitute a default by Master Landlord under the Lease; (d) Attached hereto as EXHIBIT B is a true, correct and complete copy of the Lease, including all amendments, addenda, and other modifications thereto; (e) The Lease contains the entire agreement between Assignor and Master Landlord and has not been amended, modified, or changed in any respect except as reflected in EXHIBIT B; (f) the Lease is in full force and effect; (g) there are no lease commissions or other fees payable to any real estate broker or agent in connection with this transaction arising by, through, or under Assignor; and. (h) Master Landlord agrees to pay to Assignor $25,801.80 upon issuance of the Certificate of Occupancy, in full satisfaction of Paragraph 6 of the Lease. Assignor and Assignee each agree to execute and deliver such other documents and instruments as may be necessary or appropriate to transfer, assign, convey and deliver the Lease and to otherwise accomplish the purposes and intent of this Assignment. Assignee shall promptly record a copy of the fully executed Assignment and Assumption Agreement in the Official Public Records of Nueces County, Texas. Assignee may not assign or transfer the Lease without the prior written consent of the City Council expressed by Ordinance. This Assignment is binding upon and inures to the benefit of the parties and their respective legal representatives, successors, and assigns. This Assignment may be executed in any number of counterparts, each of which will be deemed an original, and all of which -- taken together -- will constitute a single instrument. Executed pages from any counterpart may be attached to another counterpart to form a complete document. Assignment%20and%2OAssumption%20RHF%208-17-1lb[II 2 Corpus Christi, Texas IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth below, but to be effective as of the Effective Date. STATE OF COUNTY OF § ASSIGNOR: CORPUS CHRISTI DEVELOPMENT 1, L.L.C., a Missouri limited liability company d/b/a Corpus Christi FXG, L.L.C. By: Name: Title: This instrument was acknowledged before me on the day of , 2011, by , the of CORPUS CHRISTI DEVELOPMENT 1, LLC., a Missouri limited liability company, on behalf of said entity. Notary Public, State of Printed Name: My commission expires: (Signatures continued on next page) Ass ignment%20and%20Assumption%20RHF%208-17-11b[ 11 3 Corpus Christi, Texas STATE OF COUNTY OF § § § ASSIGNEE: MREIC CORPUS CHRISTI TX, LLC, a Texas limited liability company By: Monmouth Real Estate Investment Corporation, a Maryland corporation, its Member By: Name: Title: This instrument was acknowledged before me on the day of , 2011, by , the of Monmouth Real Estate Investment Corporation, a Maryland corporation, member, on behalf of MREIC CORPUS CHRISTI TX, LLC, a Texas limited liability company. Notary Public, State of Printed Name: My commission expires: Assignment%20and%20Assumption%20RHF%20$-17-11b[1] 4 Corpus Christi, Texas EXHIBIT A LEGAL DESCRIPTION LNV Inc. ENGINEERS & CONSULTANTS 801 Navigation, Suite 300 Corpus Christi, Texas 78408 Phone: (361) 883-1984 Fax: (381) 883-1886 Field note description for an 8.18 acre tract of land out of Block 23, J. C. Russell Farm Blocks, a sub- division of Nueces County, Texas, recorded in Volume 3, Page 53, Map Records, Nueces County, Texas Map Records, said 8.18 acre tract of land being more particularly described by metes and bounds as follows: Beginning at a 5/8 inch iron rod set in the Northeast right of way line of Pinson Drive, for the most Westerly and beginning corner of the tract herein described, from whence the intersection of the Northeast right of way line of said Pinson Drive and the Southwest right of way line of State Highway 44, bears North 37°-07'-37" West, a distance of 703.39 feet; Thence North 45°-18'-15" East, within said Block 23, J. C. Russell Farm Blocks, at approximately 380 feet, pass the center of a pipeline rumning East -West, as per survey done by Maverick Engineering, Inc., dated September 25, 2006, in all, a distance of 517.77 feet to a 518 inch iron rod set for the Northwest corner of the tract herein described; Thence South 89°-59'-43" East, a distance of 159.83 feet to a 5/8 inch iron rod set for a comer of the tract herein described; Thence South 44°-41'-45" East, at approximately 160 feet pass said pipeline as per Maverick Engineering, Inc. in all a distance of 393.51 feet to a 518 inch iron rod set for a corner of the tract herein described; Thence South 18°-39'-58" East, still within said Block 23. J. C. Russell Farm Blocks, a distance of 163.72 feet to a 5/8 inch iron rad found in the adopted north right of way line of Business Centre Boulevard, for the most Easterly corner of the tract herein described; Thence in a Westerly and Southwesterly direction with said adapted North and Northwest right of way line of said Business Centre Boulevard, and with the arc of a circular curve to the left, whose Central Angle is 43°-01'-52", whose Radius is 330.00 feet, Chord Bearing N 67-07'-49" E, an Arc Distance of 247.84 feet tot a 5/8 inch, iron rod found for the P.T. of said curve and for a comer of the tract herein described; Thence South 45°-36'-53" West, with the adopted Northwest right of way line of said Business Centre Boulevard, a distance of 319.92 feet to a 5/8 inch iron rod found for the Paint of Curve of a circular curve in the Northeast right of way line of said Pinson Drive and for a comer of the paint herein described; PAGE 1 Assignment%20and%20Assumption%2ORHF%208-17-11 b[ 1 J Thence in a Westerly and Northwesterly direction, with the arc of said circular curve, whose Central Angle is 89°-41'-22" whose Radius is 15.011 feet, a Chord Bearing N 89°32'-26" W, an Arc Distance of 23.48 feet to a 5/8 inch iron rod found for the Point of Tangency of said curve and for a comer of the tract herein described; Thence North 44°-41'-45" West, with the Northeast right of way line of said Pinson Drive, a distance of 546.32 feet to the Point of Beginning. Containing more or less 8.18 acres ;Lifland. Basis for Hearings Texas Stats Plane, Zone 4205, Texas South Zone (NAD -83). State of Texas County of Nueces 1, 13oracio Oliveira, a Registered Professional Land Surveyor, of LNV Inc, do hereby certify that the foregoing Field Note Description was prepared from information of record and from a survey made on the ground under my direction, and that this description conforms to the current Texas Surveyor's Association Standards and Specifications for a Category 1-A, Land Title Survey. This the 4.5". day of #4,1,6H 2010. Horacio Oliveira State of Texas License No. 1415 PAGE 2 EXHIBIT "B" [Omitted for Recordation] 7 LANDLORD'S CONSENT AND ESTOPPEL CERTIFICATE THIS LANDLORD'S CONSENT AND ESTOPPEL CERTIFICATE ("Certificate") dated August , 2011, is made by the City of Corpus Christi ("Landlord") to the above ASSIGNMENT AND ASSUMPTION OF GROUND LEASE ("Assignment and Assumption of Ground Lease") for the benefit of CORPUS CHRISTI DEVELOPMENT 1, L.L.C., a Missouri limited liability company d/b/a Corpus Christi FXG, L.L.C., ("Assignor"); and MREIC CORPUS CHRISTI TX, LLC, a Texas limited liability company ("Assignee"), with mailing address of Juniper Business Plaza, 3499 Route 9 North, Suite 3-C, Freehold, New Jersey 07728. RECITALS A. Landlord has leased the Real Property to Assignor pursuant to a ground lease (the "Lease") dated October 12, 2010, a copy of which is attached to the above Assignment and Assumption of Ground Lease The following information is a summary of the basic terms and conditions of the Lease: a. The Lease is for a base term of thirty (30) years commencing on the sixty-first (61st) day following final approval by the Landlord's City Council. The Lease commenced December 12, 2010, and shall expire December 11, 2040. b. Rent is abated for the period beginning on the commencement date until the date of beneficial occupancy as determined by the issuance of a certificate of occupancy by the Landlord ("Certificate of Occupancy") or September 1, 2011, whichever is earlier. c. Rent is due and payable on the first day of each calendar month of the Lease Term. Rent will be assessed as further defined in Section 7 of the lease, for the gross square footage of the Premises and paid on an annual basis to the Airport at the address show in Section 30 of the lease. d. The Lease covers the real property described in the above Assignment and Assumption of Ground Lease. e. The Real Property or its address is commonly known as 246 Glasson Drive, Corpus Christi, Texas 78406. B. Unless otherwise defined below, the capitalized terms herein shall have the meanings as set forth in the Assignment and Assumption of Ground Lease. AGREEMENT To induce Assignee to acquire Assignor's leasehold interest and for other valuable consideration, with knowledge that Assignee is relying thereon, Landlord hereby agrees with Assignee as follows: 1. CONSENT. Landlord acknowledges and agrees that it has fully consented to the assignment and transfer of Assignor's interest in the Lease to Assignee and to the assumption by Assignee of all obligations under the Lease. Additionally, Landlord consents to the lien of Sun National Bank and its successors and assigns attaching to Assignor's interest in the Lease. This consent will not be construed as a waiver of any rights Lessor may have against Assignor by reason of the past 8 performance of Assignor. No provision of this consent alters or modifies any of the terms and conditions of the Lease, including the requirement that the written consent of Lessor be obtained with respect to any future assignment of the Lease. 2. ESTOPPEL. Landlord represents and warrants to Assignee that: 2.1. Lease in Effect. A true and correct copy of the Lease is attached to Assignment and Assumption of Ground Lease. The Lease (i) has been duly executed and accepted by Landlord and Assignor, (ii) is in full force and effect, and (iii) has not been modified or changed, either in writing or orally. 2.2. Waiver of Cancellation Right: Landlord hereby waives any and all rights to cancel the Lease due to the failure of Assignor and FedEx Ground Package System, Inc. ("Sublessee") to execute a build to suit sublease on or before October 1, 2010, as required by Paragraph 4 of the Lease. Landlord acknowledges and agrees that Assignor executed such sublease with Sublessee on October 4, 2010, and that such sublease is in full force and effect and is permitted under the terms of the Lease. 2.3. Workers' Compensation Insurance. Landlord acknowledges and agrees that the requirement for the "Lessee" under the Lease to carry workers' compensation and employer's liability insurance does not apply to any such "Lessee" that does not have employees. However, worker's compensation insurance is required once Lessee hires paid employees. 2.4. No Default. As of the date of this Certificate and to Landlord's best knowledge and belief: (i) all conditions and obligations to be performed by either Landlord or Assignor under the Lease to the date hereof have been satisfied; (ii) there exists no breach, default, or event or condition which the giving of notice or the passage of time, or both, would constitute such a breach or default under the Lease: and (iii) there are no existing claims, defenses or offsets against obligations of either Landlord or Assignor under the Lease, including any against rents due or to become due under the terms of the Lease. Further, Landlord agrees to pay to Assignor $25,801.80 upon issuance of the Certificate of Occupancy, in full satisfaction of Paragraph 6 of the Lease. 2.5. Entire Agreement. The Lease constitutes the entire agreement between Landlord and Assignor with respect to the Lease of the Real Property. 2.6. No Prepaid Rent. No deposits or prepayments of rent have been made in connection with the Lease except as may be described above in the summary description of the Lease. 3. MISCELLANEOUS PROVISIONS: This Certificate shall extend to and bind the respective heirs, personal representatives, successors and assigns of the parties to this Certificate. This Certificate shall be governed by and construed in accordance with the laws of the State of Texas. If Landlord is other than an individual, any agent or other person executing this Certificate on behalf of Landlord represents and warrants to Assignee that he or she has full power and authority to execute this Certificate on Landlord's behalf. Assignee shall not be deemed to have waived any rights under this Certificate unless such waiver is in writing and signed by Assignee. No delay or omission on the part of Assignee in exercising any right shall operate as a waiver of such right or any other right. A waiver by Assignee of a provision of this Certificate shall not constitute a waiver of or prejudice Assignee's right otherwise to demand strict compliance with that provision or any other provision. Commerce 9 Bank N.A. has provided Assignor and Landlord with written consent of this Assignment and Assumption Agreement, and a copy of consent by Commerce Bank N.A. is attached. THIS CERTIFICATE IS DATED August 2011 STATE OF TEXAS COUNTY OF NUECES § § § LANDLORD: CITY OF CORPUS CHRISTI By: Name: Title: This instrument was acknowledged before me on the day of , 2011, by , the on behalf of the City of Corpus Christi. Notary Public, State of: Texas Printed Name: My commission expires: 10