HomeMy WebLinkAboutC2015-058 - 4/14/2015 - Approved ASSIGNMENT AND ASSUMPTION
OF LEASE AGREEMENT
ASSIGNMENT AND ASSUMPTION 01?LEASE AGREEMENT,dated as of
..Marek-T 2015 (the.."Assignment Agreement"), by and among THE CITY OF CORPUS
CHRISTI, TEXAS, a Texas home-rule municipal corporation (the 'Lessor'`},-NH Texas
Properties Limited Partnership, aslessee/transferor, and BKD Shoreline, LLC, as
lessee/transferee;
WHEREAS, the Lessor leased certain. property (the "Property") to Trinity Towers
Limited Partnership pursuant to a Skywalk and Improvements Lease (the "Lease") with term
beginning December 18, 1997 and ending December 17, 2056, approved by City Council on.
January 14,.1997.in Ordinance 022820;and
WHEREAS, the Lease was assigned to NH Texas Properties Limited Partnership on
June 13,1997.
WHEREAS,NH Texas Properties Limited Partnership("Lessee/Transferor")wishes to
assign and BKD Shoreline,LLC wishes to acquire all of Lessee/Transferor's rights,obligations
and interests in the Lease,a copy ofwhich is attached as Exhibit 1;
WHEREAS, BK]) Shoreline, LLC wishes to sublease the Property to Trinity Towers
Limited Partnership by Sublease dated as of the effective date hereof,a copy of which is attached_as Exhibit 2;and.
WHEREAS, pursuant to Section 15 of the Lease, Lessee/Transferor's interest in the
Lease may not be assigned and the Property may not be -subleased without the prior written.
consent ofthe City Council;and
NOW THEREFORE, THIS ASSIGNMENT AGREEMENT WITNESSETH, in
consideration of the premises and other good and valuable consideration,the parties do hereby
agree as follows;
Section 1.NH Texas Properties Limited Partnership does hereby transfer and set over
unto Trinity Towers Limited Partnership all right,title and interest,as lessee and,otherwise,in,to
and under the Lease,a copy of whichis attached as Exhibit 1,to have and to hold the same unto
BKD Shoreline,LLC,from and after the date hereof,for the remainder of the term of the Lease.
Section.2.BKD Shoreline, LLC,inconsideration,of the executiorxand delivery of this
Assignment Agreement does hereby assume,eftbctive upon the date hereofi for the benefit of the
• Lessor and:NH Texas Properties Limited Partnership,from and after the date hereof, all of the
terms, covenants and conditions on the part ofNH Texas Properties Limited Partnership under
the Lease. BKD Shoreline, LLC agrees to assume all liability for any violations of the Lease
which may have occurred prior to the execution of this Assignment Agreement.
Section 3. BSD,Shoreline,LLC agrees to indemnify City of Corpus Christi, Texas,
NH Texas Properties Limited Partnership and their respective officers, agents, employees,
('individually and collectively, `Indemnitees") and hold Indemnitees harmless from and
2015-058
4/14/15
Ord.030476
Trinity Towers INDEXED
against any and all claims, liens damages; demands, actions, causes of action, liabilities,
lawsuits, judgments, losses, costs and expenses (including but not limited to reasonable
attorneys'fees and expenses) asserted against or incurred by Indemnitees by reason of or
arising out of any failure by BBD Shoreline, LLC to perform or observe any of the
obligations,-covenants,terms and conditions of the Lease.
Section 4. The Lease is amended to revise contact information for the Lessee,as shown
in Exhibit 3.
Section 5. By The Lessor's City Manager's execution hereof,the Lessor consents to the
assignment by NH Texas Properties Limited Partnership to BKD Shoreline, LLC -of all of its
right,title and interest under the,Lease and confirms the Lessor's consent to the sublease of the
Property to Trinity Towers Limited Partnership.
Section 6. .BKD Shoreline, LLC acknowledges and agrees that Lessor bas not made,
does not make and specifically negates and disclaims any representations,warranties,promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether express or
implied, oral or written, past, present or future, of: asto, concerning or with respect to the
Property as defined in the Lease. BKD Shoreline,LLC finer acknowledges and agrees that it
has beengiven the opportunity to inspect the Property and Lease. BKD Shoreline, LLC is
relying solely on its own investigation of the Property and Lease and not on any information
provided or to be provided by Lessor.
Section 7. Upon execution of this Assignment Agreement by all parties hereto, NH
Texas Properties Limited Partnership shall be and is hereby released from all liability under the
Lease
Section.8. This.Assignment.Agreement shall be governed by, construed and interpreted.
in accordance with the laws of the State of Texas.
Section 9. This Assignment Agreement shall be binding upon :and shall inure to the
benefit of NH Texas Properties Limited.Partnership,BKD Shoreline,LLC and the Lessor and
their respective successors and assigns.
Section 10. This Assignment Agreement is effective upon the execution by the last
signatory of this document. In the event That the above stated condition does not occur, this
assignment and assumption is null and void and of no effect whatsoever.
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT is executed
iii triplicate,as of the date first hereinabove written.
(Signature pages follow.)
-2-
ORIGINAL
NH TEXAS PROPERTIES LIMITED
PARTNERSHIP, a Texas limited partnership
By: MLD Texas Corporation,
a Texas corporation, its general partner
By:
Name: Tui+othy A Deman
Title: Vice President
STATE OF ILLINOIS, COOK COUNTY
Ac‘L0,a-ec...ic-, i Notary Public of the County and State aforesaid, certify that
mat-�.- A.���-,4- , As the �l�u +�� cscn� of MLD Texas Corporation, a Texas
corporation, general partner of NH TEXAS PROPERTIES LIMITED PARTNERSHIP, a
Texas limited partnership, personally appeared before me this day and acknowledged the
execution of the foregoing instrument as the act and deed of said limited partnership.
Witness my hand and official stamp or seal,this 2yday of March, 2015.
Notary Public
My commission expires:
`o/a-y 1 '13
[NOTARIAL SEAL]
CIELO AQUINO-REMINGTON
OFFICIAL SEAL
Notary Public,State of Illinois
7,4 // My Commission Expires
October 29,2018
-3-
ORIGINAL
BKD SHORELINE, LLC,
a Delaware limited liability company
By:
Name: t•T stiffer
Title: EVP Corporate Developo,
STATE OF 776,1,056,c , (A);ilj qoisc COUNTY
I, nt , ��� ` s`„,��k , a Notary Public of the County and State aforesaid, certify that
N Te Kge511Aer , as the > vP , of BKD SHORELINE, LLC, a
Delaware limited liability company, personally appeared before me this day and acknowledged
the execution of the foregoing instrument as the act and deed of said company.
Witness my hand and official stamp or seal, this 2 3rd day of March, 2015.
otary0 blic
cpx.e t( e-
My commission expires:
( ao/6
[NOTARIAL SEAL]
� 0 c
11 IllilaltIn�o\\\\\\\
-4-
i
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT is consented
to as of the date first hereinabove written.
CITY OF CORPUS CHRISTI,TEXAS,
a.Texas home-rule municipal corporation
i
By:Avadislig.. C7.-..YM'
Name: Mari L 1124. G.
Title: ir r
STATE OF TEXAS §
COUNTY OF NUECES § Afn g —`'
This i str hent 1,; ac, ,.wledged before me on.the 2- 2-day of rICTM, 2015 by
Wi�(,YC ,( �� r.-6e, i }'•1 r of the City of Corpus Christi, Texas, a Texas home-rule
municipal corporation,on behalf of said corporation.
cif,),_
t-16(\
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,..__e_jazh
Notary lic, to of Texas '‘-a-O--
< :"'•: 1°uB1••. MONIQUE TAMEZ LERMA
r:.4,, ti Notary Public
•.. `V STATE OF TEXAS
`gTEa;' -i•P My Comm. Exp. 01-23-2017 > i `l
ATTEST:
0--....---.....,-...--4.--..v`�" """ 4. REBECCA HUERTA
CITY SECRETARY
Legal form approved on V 10 , a+D 1
By •C A/Yr
Assistant City Atto for the City Attorney.
•
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.._...._...._r 01 H Inc.
1K COUPOIIi.. I+ ' tr
SECRETARY
-5
Exhibit 1
Lease
(see attached)
t. r ti •
Skywalk and Improvements Lease
State of Texas §
County of Nueces §
This Lease is between the City of Corpus Christi,a Texas home-rule municipal corporation,
("City'),acting by and through its duly authorized City Manager,or designee,("City Manager")and
Trinity Towers Limited Partnership,a Tennessee limited partnership,by its General Partner,
ARC Corpus Christi,Inc.,a Tennessee corporation("Lessee"),acting by and through its duly
authorized officers("Lessee Agent"),in consideration of the mutual covenants herein.
1. PREMISES. City hereby leases to Lessee certain aerial premises and certain surface and
subsurface premises to construct an expansion of Trinity Towers on the West side of Carancahua
Street ("Building") . The aerial premises are more particularly described in the attached and
incorporated Exhibits A-Skywalk, B-Building Underpass, C-Cornices, (collectively called the
"Aerial Premises"), The surface and subsurface premises are more particularly described in the
attached and incorporated Exhibit D ( Surface Premises");provided,however,that the Surface
Premises includes only that part of the Surface Premises that is reasonably necessary for the
placement of the Building and related appurtenances. The Aerial Premises and the Surface Premises
are collectively referred to as the"Premises."
2. LEASE TERM. This Lease begins on December 18,1997,and ends on December 17,
2056,subject to prior termination. December 18 is the Anniversary Date of the Lease,
3. RENT.
A. Aerial Premises Rent. Lessee must pay City$2,555 as total Aerial Rent for years 1-4
upon Lessee's execution of this Lease. The City Manager will calculate the next 5 years Aerial Rent
1 ,
based on a 10%rate of return on the Fair Market Value of the Aerial Premises and provide the
calculation to Lessee 90 days prior to the Anniversary Date of the Lease each 5 years until expiration
of the Lease. Lessee must then pay the 5 year amount by the Anniversary Date, City's first
recalculation is due September 18,2001 and Lessee's next 5 year payment is due December 18,
2001.
B. Surface Rent. Lessee must pay City$539 as total Surface Rent for years 1-4 upon
Lessee's execution of this Lease. The City Manager will calculate the next'5 years Surface Rent
based on a 10%rate of return on the Fair Market Value of the Surface Premises and provide the
calculation to Lessee 90 days prior to the Anniversary Date of the Lease each 5 years until expiration
of the Lease. Lessee must then pay the 5 year amount by the Anniversary Date. City's first
recalculation is due September 18,2001 and Lessee's next 5 year payment is due December 18,
2001.
C. Rent Not Refundable. No rental paid by Lessee will be refunded if this Lease is
terminated prior to its full term.
4. AERIAL PREMISES. -
A.Use of Aerial Premises. City hereby grants Lessee the right to use the Aerial Premises for the
construction, installation, maintenance, repair, removal, and replacement (collectively called
"Construction")of(1)an enclosed structure that will connect theTrinity Tower facilities on the East
side of Carancahua Street with the Trinity Tower facilities to be constructed on the West side of
Carancahua Street("Skywalk"),(2)two building areas-one over a storm sewer easement(1,545
s.f.)and one over a utility easement(874 s.f.)to be constructed on the West side of Carancahua
Street("Building Underpass"),and(3)two building cornice overhangs-one on Carancahua Street
ACM930,000tskyway.lse Page 2 of 16
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(33 s.f.)and one on Tancahua Street(157 s.f.)("Cornices")and collectively called("Structures").
Lessee's Construction of the Structures must comply with applicable ordinances of the City of
Corpus Christi. A detailed architectural plan of the Structures together with a drawing of the
Structures exterior,including without limitation the Skywaik,is attached and incorporated on sheets
C-4 and C-5 as Exhibit C. Lessee will make no substantial change In the architectural plan or the
exterior appearance of the Structures,as they appear in Exhibit C without the prior written consent
of City Manager,which consent will not be unreasonably withheld.
B. Use adjacent to Aerial Premises. City hereby grants Lessee the right to use so much of
the premises below, above, and adjacent to the Aerial Premises ("Surrounding Premises") as is
reasonably necessary to construct,install,repair,remove,and replace the Structures and Building;
provided, however, that Lessee's use of the Surrounding Premises complies with applicable
ordinances of the City of Corpus Christi.
C. Use of Skywalk. Lessee may use the Skywalk to move pedestrians and goods between
Lessee's facilities on the East side of Carancahua Street and those to be constructed on the West side
of Carancahua Street adjacent to the Aerial Premises,to contain electrical power lines,and for such
other purposes as are consistent with the design and plan of the Skywallq provided,however,that
Lessee must not use the Skywalk for storage or occupancy.
D. Building Underpass.Lessee may use the Building Underpass to cover pedestrians and goods
moving into the Building. In addition,Lessee may construct a portion of the Building over the
Building Underpass to be used for occupancy,storage,electrical power,and such other purposes as
are consistent with the design of the Building.
AG1961930.009bkyway.lse Page 3 of 16
E. Cornices. Lessee may construct building cornices over that area of Carancahua Street
(528 s.f.)and Tancahua Street(612 s.f.)as shown on Exhibit C.
F. Maintenance. Lessee must safely maintain the Structures and Building and regulate
their use and occupancy so that the Structures or their use is not a hazard or danger to the persons
or property of the public using the street,drainage easement,it utility easement below the Structures
or Building. The street, drainage easement, utility easement, and all improvements therein are
collectively called"City Improvements". Further all Lessee's use and occupancy of the Structures
and Building must comply with all applicable federal,state,and local laws,rules,and regulations.
If Lessee's construction,use,or maintenance of any of the Structures or Building causes any damage
to City Improvements, Lessee must repair or replace the City Improvements to the equivalent
improvement existing prior to the damage. Lessee must submit a set of construction plans and
drawings for the proposed repair or replacement of City Improvements to the Director of
Engineering Services a minimum of 3 weeks prior to Lessee's intended onset of construction to
repair or replace, Lessee cannot begin repair or replacement construction prior to receipt of the
written approval of the construction plans and drawings by the Director of Engineering Services.
G. Minimum Elevation of Skywalk. No part of the Skywalk will be constructed lower than
14.0 feet above the crown of Carancahua Street as it presently exists or is adjusted by any collateral
repairs dnririg construction of the Building.The existing minimum pavement grade of Carancahua
Street is 18.09 feet above sea level.Lessee must maintain a minimum clearance of 14.0 feet
above the crown of Carancahua Street at the lowest part of the Skywalk.
Aou- krwty Page 4 of 16
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H. Lighting Structures.Lessee must install,operate, and maintain lighting on and underneath
the Skywalk if the City Manager determines such lighting is necessary to eliminate nighttime
shadow areas caused by the Skywalk's interference with surrounding street lighting.
I. Removal of City Facilities. If it is necessary for City to remove or relocate any City utility
lines or structures in Carancahua Street or the Surface Premises to accomodate construction of the
Structures or Building,Lessee must pay all City's reasonable costs within 30 days after the City
Manager's written demand therefor.
H. Signs. Lessee must not maintain or allow any sign on or within the Skywalkt that is visible
from the outside of the Skywalk,unless a sign is required by law.
I. Entry by City. City,by its officers,agents or employees,may at all reasonable times
enter the Aerial Premises to view the condition of the Structures.
J. Removal of Structures. Within 180 days after termination or expiration of the Lease,
Lessee must remove the Structures at its own expense, regardless of City's failure to demand
removal or to give any notice,other than a notice of termination that is required by other provisions
of this Lease. If Lessee fails to remove the Structures in accordance with this section,then City may
remove the Structures and Lessee must pay all City's reasonable removal expenses within 30 days
of the City Manager's written demand therefor.
5. Surface Premises.
A. Construction in Surface Premises. Lessee may use the Surface Premises only for the
Construction of a 566 s.£portion of a Building footprint,drilled pier column supports, and that
portion of driveways for pedestrian or vehicular traffic that are within the Surface Premises. Lessee
or Lessee Agent must not construct any portion of the Building footprint lower than 13'6" above
Arns6W30.009Wbywn'.be Page 5 of 16
ground directly above the existing twin 6'x7'storm drainage box culverts. Lessee or Lessee Agent
must not construct any drilled pier within 4 feet of any portion of the existing twin 6'x7'storm
drainage box culverts.If Lessee's construction,operation,or maintenance of the Building results in
damages to the twin storm drainage box culverts Lessee must repair or replace the box culverts in
the same manner as set out in Section 4.F. above.
B. Compliance with City Codes. Lessee's use of the Surface Premises must comply with
applicable ordinances of the City of Corpus Christi.
C. Maintenance. Lessee must maintain the Building and regulate the use thereof so that
the Building or the use thereof will not be a heard or danger to the persons or property of the public,
including without limitation City employees working on the storm sewer improvements in the
drainage easement using the drainage easement below the Building.
D. Relocation of Storm Sewer Improvements'. It is recognized that the Building is essential
to the Lessee's operations. Lessee agrees to pay for CIty to relocate the Storm Sewer Improvements
if necessary far federally mandated improvements to the existing Storm Sewer Improvements by
City;provided,however,that if City may accomplish its purpose by a design which does not require
the relocation of the Storm Sewer Improvements but which is more expensive than the design which
would require such relocation,Lessee may,instead of relocating the Storm Sewer Improvements,
pay City the added cost of accomplishing its purpose by the more expensive design.
6. INSURANCE.
A. Coverage. Lessee must obtain and keep in force during this Lease legally binding
policies of insurance for claims arising out of the construction, existence, use, operation,
ACA961930.00skyway.lie Page 6 of 16
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maintenance,alteration,repair,or removal of the Structures or the Building in the amounts and types
of insurance set out on the attached and incorporated Exhibit E. Such policies of insurance must
be issued by a company or companies of sound and adequate financial responsibility authorized to
do business in the State of Texas.
B. Certificates of Insurance. Lessee shall cause current certificates of such insurance to be
delivered to the office of City's Director of Engineering Services.
C. Named Insured. The City must be included as a named insured in the Comprehensive
General Public Liability Insurance policiy(ies). The naming of the City as an additional insured in
such Comprehensive General Public Liability policies does not make the City a partner or joint
venturer with Lessee in its businesses or in connection with its construction of the Structures or the
Building. The policies of insurance must be performable in Nueces County,Texas,and must be
construed in accordance with the laws of the State of Texas. Furthermore,the policies of insurance
must not be subject to cancellation by insurers except after delivery of written notice by certified
mail to City's Director of Engineering Services at least 15 days prior to the effective date of such
cancellation,and Lessee must,prior to the effective date of the cancellation,provide City's Director
of Engineering Services with substitute certificates of Insurance.
D. Failure on the part of Lessee to procure or maintain required insurance constitutes a material
breach of contract upon which the City may immediately terminate this Lease as provided in Section
12 or,at its discretion,procure or renew such insurance and pay any and all premiums in connection
therewith,and all monies so paid by the City must be repaid by Lessee to the City within 30 days
of City Manager's written demand therefor.
AQ19A930.009tskyiray.Iso Page 7 of 16
E. The amount of insurance coverage here specified as required may be subject to renegotiation
each year. Should either party request renegotiation with respect to the amount of insurance
coverage to be provided,the determination thereof will be established through mutual negotiation
between the parties, Said negotiations must comience 3 months prior to the termination of the
current insurance period. In the event a new amount has notbeen established by mutual agreement
within 3 months from commencement of negotiation, said controversy will be submitted to
arbitration under the Commercial Rule of Arbitration of the American Arbitration Association,
except: the locale for the arbitration shall be within the City of Corpus Christi;the sole issue for
determination pursuant to this section by the arbitrator is the amount of Insurance coverage required
for the period under review;and the expenses subject to the arbitration process will be borne equally
by the parties. City Manager is hereby authorized to negotiate on behalf of the City.
7. INDEMNITY. Lessee covenants to indemnify and hold harmless City,its officers,
employees, or agents ("Indemnitees") from, and against all claims, demands, actions, damages,
losses,costs,liabilities,expenses,and judgments recovered from or asserted against City on account
of injury or damage to person or property to the extent any such damage or injury may be incident
to,arise out of,or be caused,either proximately or remotely,wholly or in part,by an act or omission,
negligence, or misconduct on the part of Lessee or any of its agents, servants, employees,
contractors, patrons, guests, licensees, sublessees, or invitees entering upon the Premises, the
Structures or the Building thereon pursuant to this Lease with the expressed or implied invitation or
permission of Lessee(collectively"Lessee's Invitees")or when any such injury or damage is the
result,proximate or remote,of the violation by Lessee,or Lessee's Invitees of any law,ordinance,
or governmental order of any kind,or when any such injury or damage may in any other way arise
AG'96193O.009lskyway.Ira Page 8 of 16
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from or out of the Structures or the.Building located on the Premises herein or out of the use or
occupancy of the Structures or Building on the Premises or the.Premises itself by Lessee,or Lessee's
Invitees.
Lessee further indemnifies City and Indemnitees for all damages to
the Structures or the Building which may occur due to City or Indemnitees
actions in constructing,operating, maintaining,repairing,or replacing Storm
Sewer Improvements or Utility Improvements located within the drainage
easement or utility easement which form a part of the Surface Premises,
expressly including City or Indemnitees own negligence. City will continue to
operate, maintain, repair, and replace the.Storm Sewer Improvements and
Utility Improvements located in the drainage easement and utility easement.
Lessee covenants and agrees that in case City is made a party to any litigation against Lessee
or in any litigation commenced by any party,other than Lessee relating to this Lease,Lessee must
defend City upon receipt of reasonable notice regarding commencement of such litigation.
8. TAXES,FEES. Lessee must pay for all taxes,licenses,and fees required to operate
and maintain its various commercial facilities on the Premises. Further,Lessee must pay all taxes
which its use of the Premises, Structures, and Building may cause to be assessed against the
Premises, Structures,or Building. Lessee must pay all payroll taxes and related taxes and fees
incident to operation of its commercial and retail facilities on the Premises.
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Ass+93nroosn+tcywey.in
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9. FINANCING. City.recognizes that Lessee may borrow funds to construct the
Structures or Building, or for other purposes,securedby a first lien on security which includes
Lessee's interest in the Structures and Building and the leasehold estate in the Aerial Premises and
Surface Premises. The fee simple estate of City In the surface estate burdened by Lessee's leasehold
estate must not be subject to such lien,and the lien instrument must contain the following language,
or other similar language,approved by the City Attorney:
"Lender agrees that the lion created by this instrument is effective only as to the
• leasehold estate of Trinity Towers Limited Partnership, acting by and through its
General Partner,ARC Corpus Christi,Inc.,created under that certain Skywalk and
•
ImprovementLease effective December 18,1997,by and between the City of Corpus
Christi,as Lessor,and
ML-13--Tamta-Trests,acting by and through its Trustee(s)as
Lessee,and that this instrument does not affect the fee simple interest in the Aerial
Premises or Surface Premises owned by the City of Corpus Christi."
In the event of any foreclosure by any lender of a lien or liens on the Structures or
Building and the leasehold estate in the Aerial Premises and Surface Premises,such lender or other
purchaser at foreclosure and its successors and assigns shall succeed to all rights,privileges,and
duties of Lessee,including without limitation the duty to pay rent.
10. INSPECTION. City personnel may at all reasonable times enter upon the Premises,
including the Structures and Building,for purposes of inspection,repair,fire or police action,and
enforcement of this Lease.
11. DEFAULT AND TERMINATION. If Lessee defaults in performance of any of the
promises or covenants contained herein City may terminate this Lease. City will give Lessee written
*NH Texas Properties Limited Partnership
massw3a.009akyw.y tse Page 10 of 16
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notice,in accordance with Section 12 herein,of the default,specifying with particularity the nature
of the default,the period to cure,and if the cure is not completed during the cure period,(or if the
default cannot reasonably be cured within the cure period,and Lessee does not promptly commence
curing the default during the cure period and diligently prosecute the curing of the default to
completion within a reasonable time after the end of the cure.period)City may terminate this Lease.
Provided,however,that the City must give Lessee a second and final notice specifying the default
with particularity and give 30 days to cure, If Lessee has neither cured nor commenced to cure(as
set out in this Section)within 30 days of the City's second and final notice,then City Council may
terminate this Lease at any time thereafter so long as a default continues,
In the event oftermination,Lessee must remove the Skywalk in accordance with Section 4.,Y.
The failure of City or Lessee to insist on strict performance of any of the terms,covenants,
or conditions of this Lease is not a waiver of any right or remedy that City or Lessee may have,and
is not a waiver of the right to require strict performance of all the terms,covenants and conditions
of the Lease thereafter,or a waiver of any remedy for the subsequent breach or default of any term,
covenant or condition of the Lease.
12. NOTICES AND ADDRESSES. All notices,demands,requests or replies provided for
or permitted by this Lease must be in writing and may be delivered by any one of the following
methods: (1) by personal delivery; (2) by deposit with the United States Postal Service as certified
or registered mail,return receipt requested,postage prepaid to the addresses stated below; (3) by
prepaid telegram,or (4) by deposit with an overnight express delivery service at
AG196193O.0091skyway.lse Page 11 of 16
If to City:
City of Corpus Christi
P.O.Box 9277
Corpus Christi,Texas 78469-9277
Attention: Director of Engineering Services
If to Lessee:
Trinity Towers Limited Partnership
do American Retirement Communities,L.P.
11 Westwood Place,Suite 402
Brentwood,Tennessee 37027
Attn:President and General Counsel
with a copy to:
Bass Berry&Sims PLC
2700 First American Center
25th Floor
Nashville,Tennessee 37238.
Attn:T.Andrew Smith
Porter,Rogers,Dahlman&Gordon,P.C.
800 N.Shoreline Blvd,suite 800
Corpus Christi,Texas 78401
Attn:E.V.Bonner,Jr.
MLD Texas Trust
1280 Bison,Suite B9-203
Newport Beach,California 92660
Attn:Co-Trustees and General Counsel
O'Melveny&Myers,L.L.P.
610 Newport Center Drive,Suite 1700
Newport Beach,California 92660
Attn:Real Estate Department Chairman
Notice deposited with the United States Postal Service in the manner described above
will be deemed effective 1 business day after deposit with the U. S.Postal Service. Notice by
AQWtssa,00mttywiy.I Page 12 of 16
telegram or overnight express delivery service will be deemed effective 1 business day after
transmission to the telegraph company or overnight express carrier.
Notices sent to City will be addressed to the attention of its CIty Manager unless some other
provisions of this Lease requires a particular notice to be sent to a different specified City officer,
in which case the notice will be addressed to the attention df that officer.
Either party's address may be changed by a party giving notice to all other parties as
provided above. Post Office receipt or return receipt is conclusive proof that such notice was
delivered in due course.
13. MODIFICATIONS. No changes or modifications to the Lease may be made,nor
any provision waived,unless in writing signed by a person authorized to sign agreements on behalf
of each party.
14. MISCELLANEOUS PROVISIONS.
A. Limitation of Leasehold. City does not warrant its title to the Premises. This Lease and
the rights and privileges granted Lessee in and to the Premises are subject to all covenants,
conditions,restrictions,and exceptions of record or apparent. Nothing contained in this Lease may
be construed to imply the conveyance to Lessee of rights in the Premises that exceed those owned
by City.
B. Binding Agreement. It is further mutually understood and agreed that the covenants and
agreements contained in the Lease,to be performed by the respective parties,shall be binding on the
said parties,and their respective successors and assigns.
C. Other City Ordinances. This Lease and the ordinance under which it is executed do not
operate to repeal,rescind,modify,or amend any ordinances or resolutions of the City of Corpus
A0196s93o.o09►skrway.lsa Page 13 of 16
•
I I
Christi relating to the use or obstruction of streets,the granting of permits and any regulations
relating to the preservation of order and movement of traffic, or any other ordinances,
resolutions,or regulations not specifically set forth in the ordinance of which this Lease is a part.
D. Compliance with laws. Lessen must comply with all applicable Federal,State,and
local laws,rules,and regulations that apply to Lessee's use and occupancy of the Premises with
the Structures and Building.
15. ASSIGNMENT AND SUBLEASING. Lessee may `gn this Lease to'MSD
Texas-Tr4 ' Vg' Aktre
*, a Delaware businoss-trust*T. xa t*may sublease this Lease to
Trinity Towers Limited Partnership. All other assignments and subleases must be approved by
the City Council,which consent will not be unreasonably withheld. Upon assignment,Lessee
may request the City to release Lessee from any further liability under the Lease. City will grant
the release if the assignee covenants to assume all obligations and duties of Lessee hereunder.
16. MEMORANDUM OF LEASE. The City will execute and deliver to Lessee a short
form memorandum of this Lease in recordable form.Lessee shall pay all costs of preparing and
recording the Memorandum of Lease.
17. INTERPRETATION. This Lease must be interpreted according to the Texas laws
which govern the interpretation of contracts. Venue lies in Nueces County,Texas,where this
Lease was entered into and will be performed.
The headings contained herein are for convenience and reference only and are not
intended to define or limit the scope of any provision.
18. ENTIRETY CLAUSE. This Lease and the exhibits incorporated and attached
constitute the entire agreement between the City and Lessee for the use granted. All other
drAt. *NH Texas Properties Limited Partnership 77j1 **limited partnership
ACii961930.0091skywayaso Page 14 of 16
agreements,promises and representations with respect thereto,unless contained in this Lease,are
expressly revoked,as it is the intention of the parties to provide for a complete understanding within
the provisions of this document, and the exhibits incorporated and attached hereto, the terms,
conditions,promises,and covenants relating to Lessee's commercial and retail operations and the
Premises to be used in the conduct of said operations. The unenforceability,invalidity,or illegality
of any provision of this Lease does not render the other provisions unenforceable,invalid,or illegal.
Executed this /4 day of �,� 19
p.
Lessor:
CITY OF CORPUS CHRISTI,TEXAS
By: ,1
t1Y CPitP�„ jrr
Hennings,City Manager
SECRt'? 11
AST: APPROVED AS TO LEGAL FORM L4 A , 1996
JAMES IL BRAY JR,CITY ATTORNEY
Armando Chapa,G1.02? /9Eg.:1_____
etary Alison callow*,Assistant City At
Y
Lessee:
Trinity Towers Limited Partnership,through
ARC Co 'us Christi,Inc.,General Partner
By:
N: et.. a m � �� pl,,tr:.:e.
Title: S t)P �`.�c . s c e r - s
AGi961930.009%skywey.ise Page 15 of 16
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ATTACHMENT B
I 1
INSURANCE RgOUIREMENTS
L LESSEE'S LIABILITY INSURANCE
A. The Lessee must not commence work under this agreetent until he/she has obtained all insurance
required herein and such insurance has been approved by the City. Nor may the Lessee allow any
subcontractor to commence work until all similar insurance required of the subcontractor has been so
obtained.
B. The Lessee must ibmialt to the City's Risk Manager 2 copies of Certificates of Insurance,with the
City named as an additional insured for all liability policies,and a blanket waiver of subrogation on all
applicable policies showing the following minimum coverage by an insurance company(s)acceptable
to the City's Risk/vtanager.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-Day Notice of Cancellation required on all certificates Bodily Injury and Property Damage
Commercial General Liability including: S1,000.000 COMBINED SINGLE LIMIT
I Commercial Form
2. Prtmises-Operations
3. Explosion and Collapse Hazard
4. Underground Hazard
5. Products/Completed Operations Hazard
6. Contmetnal Iusuraneo
7. Broad FortnProperty Damage
S. Independent Contractors
9. Personal Injury
AUTOMOBILE LIABILITY—OWNED NON OWNED S1,000,000 COMBINED SINGLE LIMIT
OR RENTED
WHICH COMPLIES WITH THE TEXAS WORKERS'
WORKERS'COMPENSATION COMPENSATION ACT AND PARAGRAPH II OF THIS
EXHIBFT
EMPLOYERS'LIABILITY $100,000
EXCESS LIABILITY $1,000,000 COMBINED SINGLE LIMIT
C. In the event of accidents of any kind, the Lessee must flunish the Risk Manager with copies of all
reports of such accidents at the same time that the reports are forwarded to any other interested parties.
Exhibit E
•
r ,
2
iI. ADDITIONAL REQUIREMENTS I
A. The Lessee must obtain workers'compensation coverage through a licensed insurance company or
through self-insurance obtained in accordance with Texas law; If such coverage is obtained through
a licensed company,the contract for coverage must be written on a policy and endorsements approved
by the Texas Department of Insurance.
If such coverage is provided through self-insurance,then within 10 calendar days after the date the
Contract Administrator requests that the Lessee sign the contract documents,the Lessee must provide
the Risk Manager with a copy of its certificate of authority to self-insure its workers'compensation
coverage,as well as a letter signed by the Lessee stating that the certificate of authority to self-insure
remains in effect and is not subject to any revocation proceeding then pending before the Texas
Workers'Compensation Commission. Further,if at any time before final acceptance of the Work by
the City,such certificate of authority to self-insure is revoked oris made the subject of any proceeding
which could result In revocation of the certificate,then the Lessee must immediately provide written
notice of such facts to the CIty,by cenified mail,return receipt requested directed to City of Corpus
Christi, Engineering Department, P.O. Box 9277, Corpus Christi, TX 78469-9277 - Attention:
Contractor Administrator.
Whether workers' compensation coverage Is provided through a licensed insurance company or
through self-insurance, the coverage provided must be in an amount sufficient to assure that all
workers'compensation obligations incurred by the Lessee will be promptly met.
B. Certificate of Insurance:
* The City of Corpus Christi must be named as an additional insured on the liability coverage,
except for the Workers' Compensation coverage and a blanket waiver of subrogation on all
applicable policies.
* If your insurance company uses the standard ACORD form,,the cancellation clause(bottom
right)must be amended by adding the wording"changed or" between"be"and"canceled",
and deleting the words,"endeavor to",and deleting the wording after"left".
* The name of the project must be listed under"Description of Operations"
* At a minimum,a 30-day written notice of change or cancellation is required.
C. If the Certificate of Insurance on its face does not show on its face the existence of the
coverage required by items 1.B(1)-(8),an authorized representative of the insurance company
must include a letter specifically stating whether items 1.B.(1X8)are included or excluded.
•
III. A completed Disclosure of Interest must be submitted with your proposal.
Revised August, 1996
Trinity Towers ins mq.
12-6-96 cp Rick tvtgint
Exhibit 2
Sublease
(see attached)
SUBLEASE
[Trinity Towers—Skyway Lease]
THIS SUBLEASE ("Sublease") is made as of , 2015, by and between
TRINITY TOWERS LIMITED PARTNERSHIP,a Tennessee limited partnership("Sublessee"),
and BKD SHORELINE,LLC,a Delaware limited liability company("Sublessor").
WITNESSETH:
WHEREAS,pursuant to that certain Skyway and Improvement Lease dated January 14,
1997, by and between the CITY OF CORPUS CHRISTI, as lessor (the "City"), and Sublessee,
as lessee (the "Prime Lease"), a memorandum of which is of record in County CIerk's File No.
1997015846 of the Official Public Records of Nueces County, Texas, the City leased certain
property(the"Leased Property")to Sublessee,as more particularly described therein; and
WHEREAS,pursuant to that certain Assignment and Assumption Agreement dated June
13, 1997, by and between Sublessee and NH Texas Properties Limited Partnership ("NH.
Texas"), of record in County Clerk's File No. 1998017796 of said Public Records, all of
Sublessee's rights and obligations as lessee under the Prime Lease were assigned to, and
assumed by,NH Texas;and
WHEREAS,pursuant to that certain Assignment and Assumption Agreement of Skywalk
and Improvement Lease dated as of February 12, 2015, by and between Sublessor and NH
Texas, of record in County Clerk's File No. of said Public Records, all of NH
Texas' rights and obligations as lessee under the Prime Lease were assigned to,and assumed by
Sublessor;and
WHEREAS,the parties hereto have agreed that Sublessor shall sublet the entirety of the
Leased Property to Sublessee pursuant to the terms and provisions of this Sublease.
NOW,THEREFORE,the parties hereto hereby covenant and agree as follows:
1. Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases from
Sublessor, the Leased Property for the remaining term of the Prime Lease, at the same rental
described in the Prime Lease. Sublessee shall pay the rent provided for under the Prime Lease at
the times and places set forth in the Prime Lease. Such payments shall be made directly to the
City for the benefit of the Sublessor. At Sublessor's request, Sublessee shall furnish Sublessor
with evidence that any particular payment has been made within five (5) days after making said
payment or receiving the request,whichever is later.
2. If Sublessor shall be charged for additional rent or other sums pursuant to the
provisions of the Prime Lease, Sublessee shall be liable for such additional rent or sums. Any
additional rent or other sums will be payable by Sublessee in the same manner or subject to the
same stipulations as rent itself.
3. This Sublease is subject and subordinate to the Prime Lease. Except as may be
inconsistent with the specific terms hereof, all the terms, covenants,and conditions contained in
866283
the Prime Lease shall be applicable to tills Sublease with the same force and effect as if I
Sublessor were the lessor under the Prime Lease and Sublessee were the lessee thereunder; and
in case of any breach hereof by Sublessee,Sublessor shall have all the rights against Sublessee as
would be available to the lessor against the lessee under the Prime Lease if such breach were by
the lessee thereunder.
4. Notwithstanding anything herein contained, the only services or rights to which
Sublessee is entitled hereunder are those to which Sublessor is entitled under the Prime Lease,
and Sublessee shall Iook solely to the lessor under the Prime Lease for such services and rights.
As long as Sublessee is not in default hereunder, Sublessor hereby designates Sublessee as its
agent and attorney-in-fact to exercise all rights, including without limitation, any rights to
enforce any remedies that may be available to Sublessor as lessee under the Prime Lease.
5. Sublessee shall neither do nor permit anything to be done that would cause the
Prime Lease to be terminated or forfeited by reason of any right of termination or forfeiture
reserved or vested in the City under the Prime Lease.
6. Sublessee represents that it has read and is familiar with the terms of the Prime
Lease.
7. This Sublease may not be changed or terminated orally or in any manner other
than by an agreement in writing and signed by the party against whom enforcement of the
change or termination is sought.
8. . Any notice or demand which either party may or must give to the other hereunder
shall be in writing and delivered personally or sent by registered mail addressed if to the
Sublessee,as follows:
Trinity Towers Limited Partnership
c%Brookdale Senior Living Inc.
111 Westwood Place
Suite 400
Brentwood,TN 37027
Attn: General Counsel
and,if to Sublessor,as follows;
BKD Shoreline,LLC
e%Brookdale Senior Living Inc.
I l 1 Westwood PIace
Suite 400
Brentwood,TN 37027
Attn: Executive Vice President,Finance
Either party may,by notice in writing,direct that future notices or demands be sent to a different
address.
2
9. The covenants and agreements herein contained shall bind and inure to the benefit
of Sublessor,Sublessee,and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
on or as of the date first above written.
SUBLESSEE:
TRINITY TOWERS LIMITED
PARTNERSHIP,a Tennessee limited
partnership
By: ARC Corpus Christi,Inc.,a Tennessee
corporation,its general partner
By:
Name:
Title:
SUBLESSOR:
BKD SHORELINE,LLC,a Delaware limited
liability company
By:
Name:
Title:
3
STATE OF TENNESSEE )
)
COUNTY OF DAVIDSON )
Personally appeared before me, the undersigned, a Notary Public,
with whom I am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that he is the
Executive Vice President of ARC Corpus Christi,Inc.,a corporation that is the general partner of
Trinity Towers Limited Partnership, a limited partnership, and is authorized by the corporation,
the corporation being authorized by the limited partnership, to execute this instrument on behalf
of the corporation in its capacity as general partner of the limited partnership.
WITNESS my hand,at office,this^day of ,2015
Notary Public
My Commission Expires:
STATE OF TENNESSEE )
COUNTY OF DAVIDSON )
Personally appeared before me, the undersigned, a Notary Public,
with whom I am personally acquainted, and who acknowledged that he executed the within
instrument for the purposes therein contained, and who further acknowledged that he is the
Executive Vice President of BKD Shoreline,LLC, a limited liability company, and is authorized
to execute this instrument on its behalf.
WITNESS my hand,at office,this day of ,2015
Notary Public
My Commission Expires;.
4
Exhibit 3
Contact Information
If to Lessee:
BKD Shoreline,LLC
c/o Brookdale Senior Living Inc.
111 Westwood Place,Suite 400
Brentwood,TN 37027
Attention: General Counsel
with a copy to:
Rogers&Hardin LLP
2700 International Tower
229 Peachtree Street NE
Atlanta,GA 30303
Attention: Carolyn B.Dobbins