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]
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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