HomeMy WebLinkAboutItem 06 - Palace Arts CenterITEM 0
MEMO TO:
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM:
ROGER NELSON, CITY MANAGER
MEETING DATE: JULY 17, 2001
SUBJECT: APPROVAL OF VARIOUS ACTIONS RELATIVE TO PURCHASE
AND LEASE OF THE PALACE ARTS CENTER
RECOMMENDATION:
City Council to consider a resolution approving and ratifying agreements between the City
and a consortium of Grapevine Banks to finance the acquisition, construction and
renovation of the historic Palace Arts Center in the amount of $3,800,000 and loan
agreements between the City and the Grapevine Heritage Foundation pursuant to an
economic development program established in accordance with Chapter 380 of the Texas
Local Government Code Nunc Pro Tunc to March 7, 2000, the date the documents and
agreements were reviewed and approved by the City of Grapevine City Council; and,
approving documents and authorizing the Mayor to execute all appropriate documents and
instruments necessary to effectuate permanent financing for the Palace Arts Center.
BACKGROUND:
The Council has previously approved a Notice of Intent and Sale of Certificates of
Obligation for purchase of the Palace Arts Center. This purchase is a necessary step to
achieve permanent financing for the Palace Arts Center project.
Following the sale, the City will lease the facility back to the Foundation with a triple net
lease. The Foundation will maintain, repair and operate the project. The term of the lease
shall be concurrent with the City's Certificates of Obligation (20 years). The Foundation's
rent for the project shall be equal to the City's combined principal and interest payments
on the Certificates of Obligation. As security for the lease payments, the Foundation will
pledge all net revenues from operations of the Palace, all unencumbered private
donations, all local and federal grants, and all net Foundation revenue from its projects,
operations and festivals. The Foundation has in its lease the option to purchase the
Palace from the City for its market value, less depreciation. The depreciation schedule will
follow the bond schedule in terms of project value.
This agenda item approves the required documents and authorizes the Mayor to execute
the documents as necessary to complete the transaction on behalf of the City. A copy of
a detailed explanatory memorandum from the City Attorney addressing these steps is
attached to this agenda memorandum. The documents and instruments authorized by this
agenda item are as follows:
July 12, 2001 (9:43AM)
1. A resolution that ratifies previous action taken by the City and the Heritage Foundation
in March of 2000 to effectuate the bank note funding for the Palace construction.
2. A contract of sale for the Palace Arts Center conveying the Center to the City.
3. A Palace Arts Center Lease and Option to Purchase Agreement.
4. A special warranty deed.
Similar documents have been approved by the Heritage Foundation at their meeting on
July 10, 2001. A copy of the draft Foundation meeting minutes indicating the action taken
by that board is attached to this agenda memorandum.
Staff recommends approval.
WAG/cjc
HAGMPalacelease7-17-2001
July 11, 2001 (2:13PM)
STATE OF TEXAS
COUNTY OF TARRANT
CITY OF GRAPEVINE
The Grapevine Heritage
meeting at 11:00 A.M. on
Palace Arts Center, 300
members present:
0 a
Foundation Board of Directors held a special called
Tuesday, July 10, 2001, in the Lancaster Theatre at the
South Main, Grapevine, Texas, with the following
Melva Stanfield
Ted Willhoite
Jerry Pittman
Pat Stinson
Jess Daniel
Curtis Ratliff
P.W McCallum
Clydene Johnson
Roger Nelson
Chairman
Member
Member
Member
Member
Member
Member
Council Liaison
CEO
Constituting a quorum with Board members Joan Pierce, Gerald Thompson and
LuAnn Chapman -Gaffs absent. With the following city staff present:
John F. Boyle, Jr.
H.T. (Tommy) Hardy
Peggy Riddle
Bill Gaither
Susan Howard
Hugo Gardea
Sherry Hendrix
CALL TO ORDER
General Counsel to the Foundation
Development Services Director
Historic Preservation Manager
Administrative Services Director
Administrative Secretary
Historic Preservation Officer
Historic Preservation Assistant
The meeting was called to order by Chairman Melva Stanfield at 11:15 A.M.
NEW BUSINESS
Grapevine Heritage Foundation Board of Directors to consider and approve
the following items relative to the Palace Arts Center restoration refinancing
and take any necessary action:
(a) Consider and approve a resolution ratifying all previous action taken
relative to the financing of the Palace Theatre, nunc pro tunc.
(b) Consider and approve a Contract of Sale of Palace Theatre to the
City.
(c) Consider and approve a Warranty Deed to the City of the Palace
Theatre project.
9726507105
Jul -11-01 11:40am From -Boyle & Lowry 9726507105 T-180 P-003/056 F-431
BOIrI.E SOW Y L Attorneys and Comselors
4201 Wingren, Suite 108
Irving, Texas 75062
(972)650-7100
Fax (972)650-7105
DATE: July 11, 2001
TO: Mayor William 1). Tate
Members of the City Council
Roger Nelson, City Manager
FROM: John F. Boyle, Jr., City Attorney
RE: Palace Arts Center - Heritage Foundation (the Project)
At the time in March of 2000 that the original acquisition cost of the Palace
' Theatre and its proposed improvements were financed by a loan to the City in the
amount of $3,800,000 froze a consortium of six (6) local Banks on a three year Note,
with an interest rate of 11.10, with no advance payment, I believe everyone was
confident that long-term financing with a better rate of interest could be obtained.
In the original transaction, the City borrowed $3,800,000 to pay the original
purchase price and reconstruction costs of the facility (the Project), using rhe proceeds
from the loan and private donations. Title of the Project was in the Foundation. The
Foundation signed a Note agreeing to pay the City's obligations to the Banks from net
revenue from the Palace, net revenue from the Foundation, all private daaations, and
was further secured by a lien against the Property. The banks have now agreed to be
paid earlier.
In structuring long-term financing, the Attorney General, who is required to
approve virtually all municipal bond issues, would not allow the City to sell refunding
bonds to pay directly the outstanding loans to the Banks. Consequently, the City and
the Foundation need to take the following steps to effectuate the long-term financing:
1. Both the City and the Foundation need to approve Nunc Pro Tunc
Resolutions, see both Resolutions enclosed, that merely ratify the
previous action taken by the City and the Foundation in March of 2000
in the acquisition of the Palace and clearly establish a Local Government
Code Chapter 380 program to enhance economic development in support
972650?105
Jui-11-01 11 :40am From -Boyle & Lowry 9726507105 T-180 P-004/056 F-431
Mayor William D. Tate
Members of the City Council
Roger Nelson, City Manager
duly 11, 2001
Page 2
of the transaction.
2. City and Foundation enter into a Contract of Sale for the.Foiiudation to
convey the Palace Arts Center to the City for the amount of the City's
new Bond issue, $4,385,000. The Foundation, from the Bond proceeds,
will pay the Banks in full, plus all accrued interest, and all issuance costs
and receive releases and cancellation of the Note from the Banks and a
termination and cancellation of all existing contractual obligations to the
City. See Contract of Sale, enclosed.
3. Foundation will execute a Special Warranty Deed conveying the Project
to the City.
4. Closing will take place at a title company selected by the City.
5. City will then lease the Palace Arts Center to the Foundation with a
triple net lease. The term of the lease will be concurrent V-.th the term
of the City's Certificates of obligation. This lease will terminate at such
time as all of the subject Certificates of Obligation have been paid in full
by the Foundation.
6. As part of the Lease, the Foundation receives an option to purchase
Project for market value upon payment in full of all outstanding Bonds,
less depreciation, to the extent authorized by law.
The Foundation, for rent, agrees to pay the annual debt service payments of the
City with payments on February I" and August Ist, fifteen (15) days prior to the City's
Bond payments. Any missed payments will be charged interest at the same rate as the
interest rate on the subject bonds, which is projected to be appro)dmately 5.25%.
The Foundation will be responsible for all annual operation and maintenance
expense and all utilities as Additional Rent.
The Foundation receives an Option in the lease to purchase the Project after all
Bonds have been paid, to the extent authorized by law, for its then market value, less
depreciation.
9726507105
Jul -11-01 11:40am From -Boyle & Lowry 9726507105 T-180 P.005/056 F-431
Mayor Williamm, D. Tate
Members of the City Council
"Roger Nelson, City Manager
July 11, 2001
Page 3
.All of the documents were approved unanimously by the Foundation's Board
during its July 10, 2001, Board meeting.
The documents the City will be reviewing and approving on July 17, 2001, in
addition to the sale of the Certificates of Obligation are as follows:
1. Nunc Pro Tune Resolution ratifying City Council's action of March 7,
2000, relative to the Palace.
2. Contract of Sale with Heritage Foundation agreeing to convey the Palace
.Arts Center to the City.
3. Special Warranty Deed to City from Foundation.
4. Triple net Lease from the City to Foundation, which inclu&s Option to
Purchase.
Thanks. If there are any questions please advise.
Enclosures
cc: Bill Gaither, Director of Administrative Services
Rob Collins, Vinson & Elkins, Bond Counsel
p:\Grapevine\ V.palace thsix"kgv-palacc 7-11-01 tato, city council, neisonmpd
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9726507105
Jul -11-01 11:41 am From—Boyle & Lowry 9726507105 T-180 P-006/056 F-431
r.
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AP
CITY OF GFU—ff�A
RESOLUTION NO.
A RESOLUTION AjpPROVING AND ]RATIFYING AGREEME1'rrS
BETW THE CITY AND A CONSoRTrum OF CITY OF
GRAPEVINE BANIKS TO FINANCE THE ACQUISITION,
CONSTRUCTION AND RENOVATION OF TBE HISTORIC
PALACE ARTS CENTER IN T AMOUNT OF $3,900,000-00 AND
LOAN AGREEMENTS BETW EN THE Crff AND THE
GRApEVE,qE HERITAGE FOUNDATION PURSUANT TO AN
RoGRAM •ESTABLISHED IN
F,CONOiNUC DEVELOPMENT P OF TBE TEXAS . LOCAL
ACCORDANCE WITH CFLAPT'ER 380
GOVE)RNMENT CODE NUNC PRO TUNC TO MARCH 7, 2000,
THE DATF, THE DOCUMENTS AN -D AGIREEMENTS WERE
REVIEWED AND APPROVED By THE CITY OF GRAPEV1[NE_
CITY COUNCIL.
WHEREAS, the City Council has concluded that the acquisition, reconstruction
and construction Of the Palace Arts Center in Historic Downtown Grapevine,
contiguous to the new City Hall will enhance the Historic Downtown District, improve
property values, rejuvenatp , and accelerate commercial and retail activity and
stimulate business and commercial activity throughout the City; and
WHEREAS, to accomplish the undertaking, the City has negotiated Loan
Agreements with a consortium of six (6) City of Grapevine Banks, namely, Texas
National Bank, First State Bank of Texas, Independent National Bank, Worth
and Frost Bank (Consortium) to acquire a loan in the
National Bank, Texas Bank, PalaArts
amount of $3,800,000, the proceeds of which will be used to acquire the
Center reconstruct and construct it in a manner that will ignite growth iCethe
Downtown area; and
WHEREAS, the loans to be entered into by the City with the Consortium are
legal, valid and binding agreements secured by excess hotel and motel tax revenue and
the City's available funds subject to annual appropriation; and
WBEREAS, the City has concluded that the Grapevine Heritage Foundation,
a 601(c)(3) corporation created by the City for the purpose of promoting Historic
Downtown Grapevine, is the most appropriate party to acquire, construct., reconstruct,
maintain and operate the Palace Arts Center; and
WTTEREAS, Texas Local Government Code, Chapter 380, provides that the
governing body of a municipality may establish anprovide for the administration of
one or more programs, including programs for the mdaldng of loans and gra�nts Of publico
1'
(d) Consider and approve a triple net Lease from the City to the
Foundation of the Palace Theatre.
(e) Consider and approve an Option to Purchase the Palace Theatre
from the City.
(f) Authorize officers to approve and execute all papers and documents
necessary to consummate the transaction between the City and the
Foundation.
John F. Boyle, General Counsel to the Foundation explained that in March of 2000
that the acquisition of the Palace Theatre and its proposed improvements were
financed by a loan in the amount of $3,800,000 from a consortium of six local banks
on a three year note, with an interest rate of 11.1 %, with no advance payment.
John Boyle advised the City and Foundation to enter into a Contract of Sale for the
Foundation to convey the Palace Arts Center to the City for the amount of the City's
new Bond issue, $4,500,000. The Foundation, with the proceeds, will pay the
banks and all issuance costs out of the Bond proceeds and received releases and
cancellation of the notes from the banks and a termination and cancellation of
existing contractual obligation to the City.
In structuring long-term financing, the Attorney General, who is required to approve
virtually all municipal bond issues, would not allow the City to sell refunding bonds
to pay directly the outstanding loans to the Banks.
The Foundation will be responsible for all annual operation and maintenance
expense and all utilities as additional rent.
The Foundation receives an option in the lease to purchase the property, to the
extent authorized by law, for its then market value, less depreciation.
After much discussion regarding these topics, Clydene Johnson made a motion to
accept the above listed items (a) through (f). Jess Daniel seconded, which
prevailed by the following vote:
Ayes: All
Nays: None
The next item of business was to consider and approve report given by Joanna St.
Angelo, Arts Consultant in reference to the Palace Arts Center "Programming and
Management Recommendations". The following topics were discussed:
Mission and Guiding Principles
Projected Operating Budget — 3 Years
Projected Revenues — 3 Years
Rental Contract and Attachments
Operations and Management Structure
I—NJ
Potential User Groups
Program Concepts and Budgets
Long Range Plan
Additional Recommendations
It was noted in the Guiding Principles that an advisory committee for cultural
development should not be limited to Grapevine citizens.
Melva Stanfield asked what constituted "contract labor' in the Projected Operating
Budget and Ms. St. Angelo explained any additional workers that may be needed
for certain jobs.
Ann Kelley asked about ticket surcharges. Peggy Riddle explained that ticket
surcharges are for the maintenance of the building.
Discussions of the Rental Contract brought about various issues about alcohol,
catering, cleaning and noise levels which were noted and will be revised.
After some discussion of issues that involve certain parts of the Rental Contract,
Melva explained that revisions would be made to the contract and it would be voted
on in the next board meeting. Tommy Hardy advised that the revised rental
contract will be marked "2nd Draft".
The new members of the Board will receive Ms. St. Angelo's report with a copy of
the revised Rental Contract for their review before their first board meeting.
With nothing further to discuss, Curtis Ratliff moved to adjourn the meeting at 1:20
p.m., Jess Daniel seconded the motion, which prevailed by the following vote:
Ayes: All
Nays: None
PASSED AND APPROVED BY THE BOARD OF DIRECTORS OF THE
GRAPEVINE HERITAGE FOUNDATION ON THIS THE OF JULY 2001.
CHAIRMAN
ATTEST:
SECRETARY
9?2650?105
Jul -11-01 11:41 am From -Boyle & Lowry 9726507105 T-180 P-007/056 F-431
E
money and providing personnel and services of the municipality to promote local
economic development and to stimulate business and commercial aCtil7ity in the
municipality; and
WHEREAS, the City Council wishes to establish an incentive program under
Texas Local Government Code, Chapter 380, to provide a program that wiV. encourage
retail and commercial business activity in Historic Downtown Grapevine by the
acquisition, construction and reconstruction of the Palace Arts Center on Main Street
contiguous to the new City Hall by the Grapevine Heritage Foundation; and
W REAS, the effective date of the approval of the loans from the Consortium,
the establishment of the Chapter 380 program under Texas Local Government Code,
and the approval of the Loan Documents with the Consortium and the transaction
between the City and the Grapevine Heritage Foundation is nunc pro tune March 7,
2000.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF GRAPEVINE;
_Section 1. That all matters stated in the preamble are found to be true and
correct and are incorporated into the body of the Resolution as if copied in their
entirety.
Section 2. That the Financing Agreements and all Loan Agreements and
Documents and all terms incorporated therein between the City and the Consortium
for the City to borrow $3,800,000 to acquire, construct and reconstruct the Palace Arts
Center are hereby approved, subject to approval of all documents by the City Attorney
and the City's Director of Administrative Services, and the Mayor, William D. Tate, or
the City Manager, Roger Nelson., are authorized and directed to sign all necessary and
appropriate documents on behalf of the City.
Section 3. That pursuant to Chapter 380 of the Texas Local Government Code
a program to stimulate business and commercial activity in the City is hereby
established as follows:
(A) The City acquires the Historic Palace Arts Center End borrows
$3,800,000.00 from a Consortium of six (6) Banks, for the purpose of
acquiring, reconstructing and constructing the Palace Arts center in
Historic Downtown Grapevine contiguous to the new City T-.1all.
(B) That the City enter into valid and binding Agreements with the
Grapevine Heritage Foundation (Foundation), a 501 (c)(3) corporation,
created by the City to promote Historic Downtown Grapevine and to
2
9726507105
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stimulate its business development to allow the Foundation to acquire,
reconstruct, construct, operate and maintain the Palace Arts Center and
pledge to repay the $3,800,000 Note to the City from private donations,
the operational revenues from the Palace Arts Center, all net revenue of
the Heritage Foundation, and a lien against the Property.
(C) That the Mayor or City Manager shall approve and execute all necessary
documents between the City and the Foundation to carry out this
program, after said documents have been approved by the City Attorney
and City's Director of Administrative Services.
Section 4. That the effective date of all transactions described in Sections 1.
2 and 3 is hereby declared nunc pro tunc to be March 7, 2000.
Section 5. The this Resolution shall take effect from and after its passage.
PASSED the - day Of July, 2001.
City Secretary, Linda Huff , .
City Attorney, John F. Boyle, Jr.
Mayor William D. Tate
D!\GTupevine\gv.reaolutioms\gv-res palace arts ceatcr- agr with banks.wpd
3
9726507105
Jul -11-01 11:44am From -Boyle & Lowry 9726507105 T-180 P.012/056 F-431
STATE OF TEXAS
COUN'T'Y OF TAP -RANT
CITY OF GRAPEVINE
CONTRACT OF SALE
pAL,A,CE ARTS CENTER PROJECT
up,
This Contract of Sale (the "Contract") is entered into by and between the
Grapevine Heritage Foundation, a 501(c) 3 corporation under the Internal Revenue
Code, which corporation was created by the City of Grapevine (the City) pursuant to
the United States Internaler Co Revenue Te�zasCorpora�a Texas
on Act,
hereinafter referred to as S Corporation, and the City of Grapevine,
Home -Rule City, hereinafter referred to as Purchaser and the City.
WH MEAS, the City has previously determined the acquisition, reconstruction
and construction of the Palace Arts Center in Historic Downtown Grapevine improve
property values and accelerates business growth in said area and throughout the City
and is a strong stimulant to economic development and growth by its actions on March
7, 2000, which action was ratified and affirmed by the passage of Resolution No.
on the day of July, 2001, with an effective date of March 7, 2000; and
WHEREAS, the initial acquisition of the Palace Arts Center fihnanced by
e City
the City borrowing $3,800,000 from a consortium of six (6) Local v
rith executing a three (3) year Note and Loan Agreement pledging, as security, the City's
surplus net revenues and surplus hotel occupancy taxes subject to annual
appropriation; and
WHEREAS, the Palace Arts Center (the Palace Project) was conveyed to the
Grapevine Heritage Foundation (the Foundation) pursuant to an. Economic
Development Program approved by the City in accordance with Chapter 380, Texas
Local Government Code, as embodied in Resolution No. 2001-33; and
WBER.EAS, the Foundation executed a Note, Loan Agreement, and warranty
Deed agreeing to pay the sum of $3,800,000 plus interest and all reasonable costs
incurred by the City to the City as payment in full of all of the City's costs incurred iia
the acquisition, repair, improvement and restoration of said Palace Project, which
Note, Loan Agreement, and Security Agreement were all secured by the Foundation
for the benefit of the City by the entire Palace F��� net revenues venues of the Foundation
l property and personal
property, all of the Palace Project's revenues, all o
from its festivals and other fund raisers, the Palace .Arts Center's Funds from private
donations, both on hand and pledges, and a Special Warranty Deed heli by the City
9726507105
Jul -11-01 11 :44am From -Boyle & Lowry 9726507105 T-180 P.013/056 F-431
of Grapevine's City Secretary, Linda Huff; and
WHEREAS, the proceeds from the loans from the Consortium of Banks were
used to acquire, repair, construct and reconstruct the Falace Project, which
Construction Project was completed and the palace Project opened on May 21, 2001;
and
WEEREAS, the Consortium of Banks has agreed to allow the Citi, to pay the
Notes in full in advance of the three (3) year period; and
WEXREAS, the City and the Foundation are agreeable to paying l Loans that carry an interest rate of 11.1% and the City by the issuance cfong-term
Certificates of Obligation will receive an interest rate significantly lowix than the
Consortium's 11.1% interest; and
W-IJEREAS, a requirement for the issuance of long-term, tax-exempt
Certificate -5 of Obligation is for the city to own the property being acquired with the
proceeds; and
WHERFAS, both the City and the Foundation have concluded it is in the best
interest of the City, the Foundation and the citizens of the City to refinance the Palace
Project with tax-exempt, loTig-term City Certificates of Obligation resulting in the
Foundation conveying the Palace Arts Center to the City and the parties entering into
a long-term Lease for the Foundation to operate and maintain the Palace Project,
which Lease runs concurrently with the maturity dates of the Certificates of
Obligation; and
WIIEREAS, the City and the Foundation agree to enter into a long-term Lease
that runs concurrently with the term of the subject Certificates of Obligation, principal
amount not to exceed $4,500,000, with the Foundation agreeing to pay the entire cost
of the Certificate of Obligation issue, face amount and all interest and reasonable
related expenses; and
W7 MEAS, the Foundation pledges to the City as security for the payment of
the Lease Agreement all net revenues from the operation of the Palace Arts Center; all
I
net unpledged revenues raised by the Foundation from any source, including festivals
and any grants and contributions; all revenues raised and pledged in the Palace
Theatre Fund and funds obtained from any and all other sources.
That all matters stated in the preamble are found to be true and correct and are
incorporated into the body of this Agreement as if copied in their entirety.
2
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ARTICLE IT
AGREEMENT OE PURCHASE AND SALE
2.1 Agreement. For the consideration and upon the terms and conditions
contained herein, Seller agrees to sell and convey to Purchaser and Purchaser agrees
to purchase from Seller:
(a) All that property described in Exhibit "A" attached hereto and
incorporated herein for all purposes, including all improvements situated
thereon and all property, included and described as the Palace Arts Center, all
of said property hereinafter referred to as the "Palace Project".
ARTICLE IIT
3.1 Purchase Price. The purchase price for the Palace Project (the
"Purchase Price") shall be $4,385,000. The Purchase Price is payable all in cash
or current funds at the Closing (hereinafter defined), subject to the offsets and
credits described herein.
ARTICLE IV
CONTRACT CONSIDERATION AND EARN -EST MONEY
4.1 ContractConsideration. Upon execution ofthiscontract by Seller,
Purchaser hereby delivers to Seller a check in the amount of $100.00, which is
hereby accepted by Seller as the consideration for Seller's execution and delivery
of this Contract, which consideration is in addition to and independent of any
other consideration provided for in this Contract, is earned and is
nonrefundable.
4.2 Earnest Mone and Title Coni an . No earnest money is
required. This signed Contract shall be submitted to a Title Company of
Purchaser's choice.
PRE-CLOSING ORLIGATYONS AND CpT1DITIQNS
5.1 Items to be Obtained. Within thirty (30) days after the Effective Date
(hereinafter defined), Purchaser shall obtain, at Purchaser's option, the
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Jul -11-01 11 :45am From—Boyle & Lowry 9726507105 T-180 P-015/056 F-431
following at Purchaser's expense:
(a) Acv-rrent on -the -ground survey ofthe Palace Project (the "Survey")
dated subsequent to the Effective Date of this Contract, prepared by a licensed
professional surveyor in a form acceptable to Purchaser (the "Surveyor"). In the
event the legal description of the Palace Project contained in the Survey is
different from the description contained in Exhibit "A7, it shall be :3-abstituted
for the description of the Palace Project contained in Exhibit and the
Contract shall be deemed amended by the substitution of the legal description
of the Palace Project contained in the Survey or the Final Survey (hereinafter
defined), as the case may be, for the description of the Palace Project contained
in Exhibit 'A.'.
(b) A current commitment from the Title Company for the issuance of
a Title Policy (hereinafter defined) by an underwriter acceptable to the
Purchaser, together with complete and legible copies of all instruments referred
to in the commitment as conditions or exceptions to title to the Palace Project,
including items listed in Schedule C of the commitment (collectively, the 'Title
Commitment").
5.2. Items to be Obtained. Within thirty (3 0) clays after the Effective Date
hereinafter defined), Seller, shall obtain the following at Seller's expense: all
information in the possession of the Seller (including copies of documents) concerning
any leases (including oil and gas leases), contracts or licenses concerning the Palace
Project (the "Leases").
4� 9
6.1 Title _Review. Purchaser shall have a period of thirty (30) days from the
date on which it obtains the last of the Title Commitment and the Surveg in which to
review the state of Seller's title to the Palace Project (the "Title Review Period"). If
the Survey or Title Commitment reflects or discloses any defect, exception, or other
matter affecting the Palace Project (individually, "Title Defect" and collectively, "Title
Defects") that is unacceptable to Purchaser for any reason whatsoever, ;hen prior to
the expiration of the Title Review Period, Purchaser shall provide Seller with written
notice of its objections, and Seller shall have five (5) days (the "Cure Period") from the
date of Seller's receipt of such notice to remove or cure any Title Di�fects to the
satisfaction of Purchaser. Seller shall use its best efforts to remove or cure the Title
Defects to Purchaser's satisfaction, but shall not be required to incur any costs to do
SO.
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If Seller cannot cure any or all ofthe Title Defects within the Cure Period, Seller
shall notify Purchaser in writing, prior to the expiration ofthe Cure Period; specifying
Seller's failure, refusal, or agreement to cure each of the Title Defects (the "Cure
Notice"), and Purchaser may on or before ten (10) days after receipt of the Cure Notice
(The "Defect Review Period"), either (i) terminate this Contract by written notice to the
Seller, or (ii) elect in writing to waive any uncured Title Defect which Seller has not
agreed in the Cure Notice to cure at or prior to Closing.
if Purchaser fails to terminate the Contract prior to expiration of the Defect
Review Period, then any Title Defect (i) that Seller has failed to cure prior to the
expiration of the Cure Period and has not agreed in the Cure Notice to cure or cause
to be cured by Closing, and (u) that is set forth on Schedule B of the Title Commitment
shall be deemed waived by Purchaser. In the event Seller fails to provide Purchaser
with the Cure Notice prior to the expiration of the Cure Period, Purchaser shall have
the right, at any time after the expiration of the Cure Period, to either (i) terminate
this Contract by written notice to Seller; or (ii) elect in writing to waive any uncured
Title Defects.
Any exceptions to Seller's title (i) (a) to which Purchaser has not objected or (b)
which have been waived or deemed waived by Purchaser, and (ii) which ai-e shown on
Schedule B ofthe Title Commitment shall be "Permitted Exceptions". In no event shall
any matter or instrument Which affects the Palace Project become s. Permitted
Exception until Purchaser has (i) been advised in writing of the existence of such
matter or instrument, (ii) received a legible copy of the instrument, if aray, creating
such exception, and (iii) failed to object to said exception within ten (10) days following
Purchaser's receipt of written notification of the existence of such exception and the
instrument creating such exception. If Purchaser terminates this Contract as provided
for herein, neither Seller nor Purchaser shall have any further right or obligation
hereunder.
ARTICLE VII
INSPECTION
7.1 Inspection Period. Purchaser shall have a period of sixty (60) days (the
"Inspection Period") after the date on which it obtains the last of the items to be
furnished to it in accordance with Article IV, in which to inspect the condition of the
Palace Project, to conduct an examination of the Palace Project and to review such
other matters as Purchaser deems necessary (including, without limitation, a physical
inspection, an appraisal, an environmental audit, and an engineering inspection ofthe
Palace Project) to determine, in Purchaser's sole discretion, the suitability ofthe Palace
Project for Purchaser's needs. In the event that Purchaser, in its sole discretion,
determines that the Palace Project is not suitable for its needs, then Purchaser may
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terminate this Contract on or prior to the expiration of the Inspection Pericd. It shall
be deemed conclusively that Purchaser has determined that the Palace Project is not
suitable for its needs and that the Purchaser has terminated this Contract pursuant
to this Section 6.1 unless, prior to the expiration of the Inspection Period, Purchaser
delivers to Seller written notice that Purchaser has elected not to terminate this
Contract. It is agreed by Seller that no examination by Purchaser, its representatives,
or agents, shall constitute a waiver or relinquishment on the part of Purchaser of
Purchaser's right to rely on the covenants, representations, warranties, or cLgreeraents
made by Seller in this Contract. Upon the termination of this Contract pursuant to
this Section 7. 1, neither Seller nor Purchaser shall have any further Tight o--- obligation
hereunder. This right of termination is exercisable by Purchaser in its sole discretion
for any reason whatsoever.
8.1 Representations and Warranties. In order to induce Purchaser to enter
into this Contract, Seller makes the following warranties and representations which
shall be true and correct as of the Effective Date and on the Closing Date:
(a) Seller has good and indefeasible fee simple title to the Palace
Project, and at the Closing Seller will have and will convey to Purchaser, good
and indefeasible fee simple title to the Palace Project, free and clear of all liens,
defects, encumbrances, conditions, exceptions, restrictions, or other matters
affecting title except the Permitted Exceptions.
(b) Seller shall use the proceeds from the sale to pay the Consortiurn
of six (6) Grapevine Banks the total balance of the $3,800,000 Notes, plus all
accrued interest and all reasonable costs associated therein. The Banks shall
provide a letter agreeing to the payment in advance of the Note and shall
provide all necessary proof that the Note was paid in full. Upon the Note being
paid in full, the City shall release all of its right, title and interest to the
Agreement, the Note, the Security Agreement, and the Warranty Deed, all of
which shall be terminated and canceled.
(c) There is no litigation or proceeding pending or threatened against
or relating to any of the Palace Project, and no pending, or, to the knowledge of
Seller, threatened or contemplated condemnation actions or special assessments
of any nature with respect to the Palace Project. There are no donations or
payments to or for schools, parks, fire departments or any other public entity
which are required to be made by the owner of the Palace Project. Seller has
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x
received no request (written or otherwise) from any governmental entity with
regard to dedication of any of the Palace Project.
(d) Seller is, and at Closing will be, authorized and permitted to enter
into this Contract and to perform all covenants to be performed by Seller
hereunder, and Seller's right to execute this Contract is not limited by any other
agreements. The person(s) signing this Contract has been authorized by Seller
to do so.
(e) The Palace Project has full access to and from public highways,
roads, and right-of-way, and Seller has no knowledge of any fact cr condition
which would result in the termination ofthe current access to or frornl the Palace
Project to any presently existing highways, roads, and rights-of-way on or
adjoining the Palace Project.
(i) Seller has no knowledge of any pending or contemplated change in
any regulation or private restriction, any pending or threatened judicial or
administrative action, or any action pending or threatened by third parties
applicable to the Palace Project.
r,
(g) Except for debts, liabilities, and obligations for which provision is
made herein for proration or other adjustment at Closing, all liabilities an
obligations arising from the ownership and operation of the Palace Project
(including, but not limited to, utility services and tap fees) will be paid on or
before the Closing Date. The costs for any adjacent streets and any utilities
serving the Palace Project have been fully paid.
(h) Seller has complied with and the Palace Project is in compliance
with all applicable laws, ordinances, regulations, statutes, rules and restrictions
relating to the Palace Project.
(i) Execution and delivery of this Contract, consummation of the
transaction described herein, and compliance with the terms of this Contract
will not conflict with, or constitute a default under, any agreement to which
Seller is a party or by which Seller or the Palace Project is bound, oi-violateany
regulation, law, court order, judgment, or decree applicable to E.eller or the
Palace Project.
(j) Seller has no knowledge of any archaeological, anthropological, or
historical finds, objects, or sites or any endangered or threatened species in, on,
or about the Palace Project. To the best of Seller's knowledge, no portion of the
Palace Project constitutes a "critical habitat" as such term is defined in the
Endangered Species Act of 1973, as amended.
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(k) To the best of Seller's knowledge, no part of the Palace Project has been used for
the storage or disposal of any hazardous or toxic materials, and no part of the
Palace Project contains any materials, whether brought to the PaIELce Project,
deposited thereon, used on the Palace Project generated on the Palace Project
as a product or by-product of activities on the Palace Project, or otherwise; W
that are or contain polychlorinated bi-phenyls(PCB's) or asbestos; (ii) that are
wastes or other regulated substances under the Resource Conservation and
Recovery Act and/or the regulations promulgated or adopted thereunder; (iii)
that are hazardous substances or other regulated substances as defined in the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended (or regulations promulgated, adopted or incorporated thereunder); or
(iv) that are otherwise classified as hazardous or regulated substances under
any federal or applicable state law or regulation. There are no underground
storage tanks on the Palace Project and, to Seller's knowledge, there never have
been any underground storage tanks on the Palace Project. The Palace Project
has not been used as a landfill or as a dump for garbage or refuse.
(1) At the Closing Date, Seller has fully complied with the
requirements of Section 4.2 he -rein.
8.2 Covenants of Seller. Seller covenants that, from and after the Effective
Date, Seller shall:
(a) Give Purchaser and Purchaser's agents and represertatives full
access to physically inspect the Palace Project and to make such inspections,
surveys, test borings, soil analyses, and other tests and surveys thereon as
Purchaser, in its sole discretion, shall deem advisable. Seller shall furnish
Purchaser such additional information concerning the ownership, management,
operation and the condition of the Palace Project as Purchaser may reasonably
request. The expenses of Purchaser's investigation shall be borne solely by
Purchaser.
(b) Not: (i) perform any grading or excavation, construction, or
removal of any improvement or make any other change or improvement on the
Palace Project; (ii) create or permit any lien or other encumbrance affecting the
Palace Project, other than the lien for any taxes not yet due and payable and
existing liens to be released at the Closing; (iii) commit any waste or nuisance
upon the Palace Project; (iv) impose any easements, covenants, ccnditions, or
restrictions on the v; (v) institute or participate in any annexation, zoning,
platting, or other governmental action regarding the Palace Project; or (Ti) enter
into or modify any lease or contract which affects the Palace Project.
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(c) Make all payments on all indebtedness secured by any of the
Palace Project when due, and timely comply with all other provisions of the
instruments evidencing or securing such indebtedness. The instruments
evidencing or securing such indebtedness shall not be amended nor shall such
indebtedness be, renewed, extended, refinanced, or in any other way changed
without the prior written consent of the Purchaser.
8.3 Knowledge Standard. The terms "to the best of the knowledge of the
Seller," "to the best knowledge ofthe Seller," "to Seller's knowledge," and other phrases
of like substance are to be construed to (a) include the knowledge of Seller, its officers,
directors, partners, agents, and employees, and the knowledge of the officers, directors,
partners, agents, and employees of any parties who are employed by Seller in
connection with the management, leasing, and operation of the Palace Project, and (b)
represent that Seller has caused due inquiry and investigations to be made into the
matter represented to be true. -
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF PURCHASER
9.1 Representations and Warranties. To induce Seller to enter into this
Contract, purchaser represents and warrants to Seller that Purchaser is fully
authorized and empowered to enter into this Contract and to consummate the
transactions contemplated hereunder.
AR'T'ICLE X
CONDITIONS PRECEDENT TO CLOSING
10.1 Conditions Precedent to Purchaser's Performance. The obligation of
Purchaser to close the transaction described in this Contract shall be sl:.bject to the
following conditions precedent:
(a) All the representations and warranties of Seller set forth in this
Contract shall be true and correct as of the Effective Date and on the Closing
date, and Seiler shall have complied with all covenants and agreements of Seller
set forth herein. Only for the purpose of determining whether or not this
condition has been satisfied, all of the representations and warranties in this
Contract qualified as to "Seller's best knowledge" (or similar qualification) shall
be considered not so qualified, which means that, for the purl?ose of this
condition, all warranties and representations must be true and correct
irrespective of Seller's knowledge. The previous sentence does not affect any
representation or warranty itself or any express qualification thereof, if any.
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(b) There shall be no change in the matters reflected ori the Title
Commitment or Final Survey from those matters appearing therein on the date
thereof (except those changes requested by Purchaser in its notice of Title
Defects), and no encumbrance or Title Defect shall affect the Palace Project
except the Permitted Exceptions.
(c) Full compliance with the requirements and conditions contained
in Section 5.2 of the Contract.
In the event that any of the above conditions are not satisfied or waived in
writing by Purchaser prior to the Closing, Purchaser may terminate this Contract by
delivery of written notice to Seller on or before the Closing Date.
11.1. Time and Place. The sale and purchase of the Palace Proi,3ct shall be
consummated at a closing (the "Closing") to be held at the offices of the Title Company
selected by the Purchaser. The Closing shall occur on a date designated by Purchaser
that is not later than thirty (30) days following the expiration of the Inspec bion Period,
or six (6) months after the Effective Date, whichever is later (the "Closing; Date").
11.2 Items to be Delivered by Seller at the Clos At the Closing Seller shall
deliver or cause to be delivered to PURCHASER, at Seller's expense, each of the
following items:
(a) A Special Warranty Deed satisfactory to the City duly executed and
acknowledged by Seller, granting, conveying and warranting to Purchaser good
and indefeasible fee simple absolute title to the Palace Project, free and clear
of any liens, encumbrances, easements, restrictions, or other matters affecting
title to the Palace Project except the Permitted Exceptions.
(b) All duly executed and acknowledged deeds and assignments
deemed reasonably necessary by Purchaser and containing general warranties
of title as Purchaser may require, so as to convey all leases, warranties, contract
rights and convey all other rights, title and interests constituting a part of the
Palace Project to Purchaser, free and clear of all liens, encumbrances,
easements, and other matters other than the Permitted Exceptions.
(c) An affidavit in compliance with Section 1.445 of the Internal
Revenue Code and applicable regulations stating, under penalty of perjury,
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Seller's United States taxpayer identification number and that Seller is not a
"foreign person" as that term is defined in said Section 1445. If Seller fails to
deliver such affidavit, Purchaser may withhold from the Purchase Price and pay
to the Internal Revenue Service the amount required by Section. 1445 and
applicable regulations.
(d) An aaf idavit of parties in possession" for delivery to the Title
Company, stating that there are no parties in possession of any portion of the
Palace Project as lessees, tenants at sufferance, or trespassers.
(e) A "bills paid affidavit" in accordance with Section 53.485 of the
Texas Property Code.
17..3. Items to be Delivered by Purchaser at the Closi At the Closing,
Purchaser shall deliver to Seller the Purchase Price at the Title Company �Lnd directly
to the Consortium of six (6) Banks; provided however, if any of the Purchase Price is
paid by bank wire transfer of funds, and the order for transfer of funds is timely made
on the date of Closing, but the funds are not received by the Title Company on the date
of Closing, Purchaser shall notbe in default hereunder ifthe Purchase Price is received
by the Title Company on the next business day.
11.4. Adjustments and Prorations. At Closing, the following items shall be
adjusted or prorated between Seller and Purchaser:
(a) Ad valorem taxes for the Palace Project for the then current
calendar year shall be prorated in cash as of the Closing Date. Seller's pro rata
portion of such taxes shall be based upon taxes actually assessed ibr the then
current calendar year or, if for any reason such taxes for the Palace Project have
not been actually assessed, such proration shall be based upon the amount of
such taxes for the immediately preceding calendar year, and adjusted by cash
settlement when exact amounts are available. All special taxes or assessments
approved or assessed prior to the Closing Date shall be paid by Seller. If Seller
or Seller's predecessors in title have claimed any partial or total exemption from
taxation of the Palace Project based on agricultural or open space use or any
other use, and if a loss of such partial or total exemption would result in the
imposition of tax for a period prior to the Closing Date, Seller shall satisfy at the
Closing, and shall indemnify and hold Purchaser harmless from,'aW, tax on any
of the Palace Project for years prior to the Closing Date which become due as the
result of any changes in Palace Project usage or ownership or otherwise
("Rollback Taxes", the term Rollback Taxes shall include all interest incurred
with respect to such taxes).
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(b) Except as otherwise provided herein, each party shall pay its share
of all other closing costs and expenses of closing in consummating the sale and
purchase of the Property to be borne and paid as follows:
Owner's Title Policy paid by Purchaser
Documentary stamp or other transfer taxes paid by Purchaser
Survey paid by Purchaser
Filing fees paid by Purchaser
Property and other taxes through date of closing paid by Seller
Recording fees paid by Purchaser.
(c) The agreements as to proration5 and adjustments in this Section
shall survive the Closing. In the event that, subsequent to the Closing, any
adjustments made at the Closing pursuant to this Section are agreed upon by
the parties hereto to be erroneous, then either party hereto who is entitled to
additional monies shall invoice the other party for such additional amounts a
may be owing, and such amounts shall be paid within ten days from receipt of
the invoice.
11.5. Right toPossession. At the Closing and as a condition thereto, Purchaser
shall be given full and unrestricted right to possession of the Palace Project, and Seller
will execute such uninterrupted, and full possession of the Palace Project, immediately
following the Closing.
11.6. Inclemmification. SELLER AGREES TO INDEMNIFY AND HOLT)
PURCHASER AND PURCHASER'S OFFICERS, OFFICIALS , DERECTORS, S11AREHOLDERS,
AGENTS, AND EMpLoyEES, HARMLESS FROM AND AGAINST ALL L1AB1LXr1ZS. CLAIMS,
DEMANDS, LOSSES, DAmAGES, COSTS ANDEXP - SES (INCLUDING WITHOUT
LLMTATION, REASONABLE ATTORNEY'S FEES INCIDENTAL THERETO) PX- LATED TO,
RESULTING FROM, OR IN ANY WAY ARISING OUT OF: (I) A BREACH OF ANY
REPRESENTATION WARRANTy, COVENANT, OR AGREEMENT OF SELLER HiEREUNDERz
OR (IT) TIM OWNERSHIP On OPERATION OF THE PALACE PROJECT ON OR pFJOR TO TBE
CLOSLNG DATE.
12.1. Default by eller. If Seller fails to timely comply with any condition,
covenant, or obligation of Seller hereunder, such failure shall be a e.efault, and
Purchaser shall have the right to either: (i) terminate this Contract by giving Written
notice thereof to Seller, and Purchaser may exercise any other right or remedy it may
have at law or in equity by reason of Sellers default (including, but not lizaited to, the
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recovery of attorneys' fees incurred by Purchaser in connection therewith); or (ii)
enforce specific performance of Seller's obligations under this Contract.
Notwithstanding any other provision herein to the contrary, if Seller fails to satisfy its
obligations, whereupon Purchaser will be granted a credit against the Purchase Price
for the costs incurred by Purchaser to satisfy such obligations of Seller.
12.2. Default by Purchaser. If all conditions of this Contract are satisfied and
all covenants and obligations to be performed by Seller prior to Closing are fully
performed, and if performance of this Contract is fully tendered by Seller and the sale
is not consummated through default by Purchaser, then Seller, as Seller's sole and
exclusive remedy at law or in equity, shall have the right to terminate this Contract
by giving written notice thereof to Purchaser, whereupon neither party shall have any
further rights or obligations hereunder. Seller's sole remedy is to terminate the
Contract.
s_ •
MISCELLANEOL7S
13.1. Notices. Any notice, demand, or other communication required to be
given or to be served upon any party hereunder shall be in writing and delivered to the
person to whom the notice is directed, either: (i) in person; (ii) by United states Mail,
as registered or certified item with return receipt requested; or (iii) delivered by
delivery service (including any express mail or delivery service). Notices, demands, or
other communications delivered by mail shall be deemed given and rec-Aved when
deposited in a post office or other depository under the care or custody of the United
States Postal Service, enclosed in a wrapper, addressed properly, with proper postage
affixed. Any notice, demand or other communication given other than by certified or
registered mail, return receipt requested, shall be deemed to have beer, given and
received when delivered to the address of the party to whom it is addressed as stated
below:
Purchaser: The City of Grapevine
Attn: Roger Nelson., City Manager
P.O. Box 95104
Grapevine, Texas 76099
With a copy to:
John F. Boyle, Jr.
Boyle & Lowry, L.L.P.
Irving, Texas 75062
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Seller: Grapevine Heritage Foundation
P.O. Box 95104
Grapevine, Texas 76099
Either party hereto may change its address for notice by giving the other party ten (10)
days advance written notice of such change of address.
13.2. Contract to Survive. All representations, warranties, covenants, and
agreements contained herein, whether to be performed before or after the Closing Date,
shall not be deemed to be merged into or waived by the instruments of the Closing, but
shall survive the Closing.
13.3. Assiznment. This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors, and assigns. This Contract may be assigned by the Purchaser to any
person, firm, corporation, or other entity which the Purchaser, at its sole discretion,
may choose. If Purchaser so assigns its rights to this Contract, such assignment shall
release Purchaser from all liability hereunder without the necessity of further
documentation.
13.4. Interpretation and Applicable Law. THIS CONTRACT SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES CREATED
HEREUNDER ARE PERFORMABLE IN TARRANT COUNTY, TEXILS. Where
required for proper interpretation, words in the singular shall include all genders. The
descriptive headings of the article, sections, and paragraphs in this Contract are for
convenience only and shall not control or affect the meaning or construction of any of
the provisions hereof.
13.5. Amendment. Except as provided above with respect to the automatic
substitution of Exhibit 'A', this Contract may not be amended and no condition,
covenant, or obligation may be waived, except by an agreement in writing signed by
Seller and Purchaser.
13.6. Attorneys' Fees. If either party files a lawsuit in connection with this
Contract, the prevailing party in such action shall be entitled to recover from the non
prevailing party, in addition to all other remedies or damages as limited herein,
reasonable attorneys' fees and costs of court incurred in such lawsuit.
13.7. Entire Agreement. This Contract constitutes the entire agreement
between the parties pertaining to the subject matter hereof and supersedes all prior
and contemporaneous agreements and understandings of the parties in connection
therewith.
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13.8. Multiple Counterparts. This Contract may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
13.9. Effective Date: Dates. The effective date of this Contract (th,. "Effective
Date") shall be the date on which the last of Seller and Purchaser execute this
Contract. Any act performable on an official United States Holiday or a r'laturday or
Sunday shall be performable on the next business day following such date.
13.10. Brokers. Each party represents and warrants to the other that: no brokers
or finders have been engaged by it in connection with the transactions contemplated
by this Contract, or, to its knowledge, is in any way connected with such transaction.
In the event of any claim for broker's or finder's fees or commissions in connection with
the negotiation, execution, or consummation of this Contract, then each party shall
indemnify, hold harmless, and defend the other party from and against any such claim
based upon any statement, representation, or agreement made by, or allegedly made
by, the indemnifying party. This indemnity shall survive the Closing or termination
of this Contract.
13.11. Construction. The parties acknowledge that they have had the
opportunity to be represented by counsel in connection with this transaction and that
this Contract shall be interpr' eted according to its fair construction and shall not be
construed against either party.
13.12. Invalidity. If any provision in this Contract shall for any reason be held
to be inv3alid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Contract shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
13.13. Further Assurances. In addition to the acts recited herein to be
performed by Seller, Seller hereby agrees to perform at or after the Closing all further
acts as Purchaser may reasonably require to (i) evidence and vest in Purchaser the
ownership of, and title to, all of the Palace Project, and (ii) consummate the transaction
contemplated hereunder.
13.14. Acceptance. Seller shall have until 5:00 o'clock p.m., on
2001, to execute this Contract and return a fully executed original thereof to
Purchaser; otherwise, the offer set forth in this Contract shall be revoked
automatically.
13.15. Time is of the Essence,• Waiver. Time is of the essence witIz respect to
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every provision of this Contract. No waiver by either party of any of its rights or
remedies hereunder or otherwise shall be considered a waiver of any other subsequent
right or remedy. Except as expressly provided herein, no waiver by either party of any
of its rights or remedies hereunder or otherwise shall be effective unless such waiver
is evidenced in a written instrument executed by the waiving party.
13.16. No Assumption. Purchaser is acquiring only the Palace Project from
Seller and is not the successor of Seller. Purchaser does not assume or agree to pay,
or indemnify Seller or any other person or entity against, any liability, obligation, or
expense of Seller relating to the Palace Project in any way except, and only to the
extent, if any, expressly provided for herein or in the documents executed at Closing.
Date of Execution:
Date of Execution:
roffwl�• ;��ft �11_
LOO
William D_ Tate, Mayor
t.
SELLER:
LO
16
WROMM
RIDIAVID)
Melva Stanfield, President
Jul -11-01 11:50am From -Boyle & Lowry
NOTARY:
THE STATE OF TEXAS §
COUNTY OF TARRANT §
0726507105 T-180 P-028/056 F-431
BEFORE ME, the undersigned, on this day personally appeared WILLIAM D.
TATE, MAYOR OF THE CITY OF GRAPEVINE, TEXAS, proved to me through the
presentation of a valid Texas Driver's License to be the person who.,;e name is
subscribed to the foregoing instrument and acknowledged to me that he executed the
same for the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
2001.
My Commission Expires:
Notary Public in and for the State of Texas
THE STATE OF TEXAS
COUNTY OF TARRANT §
BEFORE ME, the undersigned, on this day personally appeared MELVA
STANFIELD, PRESIDENT OF GRAPEVINE HERITAGE FOUNDATION, proved to
me through the presentation of a valid Texas Driver's License to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
,2001.
My Commission Expires:
Notary Public in and for the State of Texas
D.\ Grapevine \Zv-palace Vheat=\gv-pa1a= cent of sale gv herit & city of gv,wpd
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�11ncr l_: Ste:i tic, t.l�•• t. ca:t ixit't.icui nl iOt 11, :incl tht: N.i-th 71.11 feet
Of thr, wc::t horti011 qt Lot 14, 1110cl: 1, ORICIitnt. TOWu Of- GRAPhVINF.,
according to th•! pi.it titnrror, rccordad in Vol. 300, P.?qc 72, Plat
Record.., TarrAnt County, T¢xn=, together with a certain tract of
land 15.0 feet in width, adjoining and abuttinrl ^yid lots on the
Wcat; said property btinq more fully do=cribcd in itc cntircty-by
motca and bounds as follow:
BEING a part of the William Dooley survey, nbatract Yo. 422,
situated in Tarrant County Texas, Same being further known as the
North lot as set Aside to Lovey A. Yatcs, as her separate I�roperty
in the partition of the J. K. Buckner E=tate as recorded in Book
251, Page 278 thru 289 of the Probate Minutes of Tarrant county,
Texas, pursuant to judgment as rendered under case 115162, Probate
Coutrt5, Tarrant County, Texaco and being more full), de .cribed by
metes and bounds as follows:
BEGINNING at the Southwest corner of Lot 12, Dlock 1, of the Town
or Grapevine according to the plat thereat recorded in Vol. 309,
Page 72, Plat Records, Tarrant County, Texas, and ar, established as
the Southwest: corner after the widening of Main Strect, sand being
fixed by survey prepared by Brooks Baker as set forth by Statement
of record in Vol. 1867, Pages 556 and $87 of the Deed f.ecords,
Tarrant County, Texaa;
THENCE West along the South line Of lforereferenced Lot 12 and
passing the inside of a wall for a total distance of 109.0 feet to
an iron pipe set at the Northwest corner or the herein described
tract;
TMENCE South for a distance of 46.9 feet to a point for corner;
THENCE East for a distance of 109.6 feet to a point for aorrior,
same being located in the Hast lire of Main Street and the accepted
East line of Block 1;
THENCE North along the said West line of !fain Street and the East
line of alock 1 for a distance of 46.9 fcct to the PLACE OF
BEGINNING.
TRACT 2: All that certain lot, tract or parcel of land lying and
being situated in Tarrant County, 'TCxas, and being described as
follows:
The West 94 feet Of Lots 11 and 12, and a strip 15 feet wid•i lying
adjacent to the Nest lines of said Lots 11 and 12, Blocs: 1,
nRIGINAL TOW -.q OF GRAPEVII;E, an addition to the City of Grapevine,
Tarrant County, Texas, according to the plat recorded in Volume
309, Pages 71 and 72, plat Records, Tarrant County, Tcy;%s.
4
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9726507105
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STATE OF 'TEXAS §
COUNTY OF TARRANT §
CITY OF GRAPEVINE §
PALACE ARTS CENTER LEASE AND
OPTION TO PURCHASE AGREEMENT
T-180 P130/056 F-431
27A
In consideration of the rents and covenants hereinafter set forth, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord,. the following
described premises on the following terms and conditions:
1. FUNDAMENTAL LEASE PROVISIONS:
1.1 Effective Date: As of 11 2001.
1.2 Landlord. CITY OF GRAPEVINE, TEXAS, a Texas Home: Rule City
(which term shall include its elected officials, officers, employees, agents,
attorneys and contracting parties.)
1.3 Tenant: Grapevine Heritage Foundation, a 601 (c) 3 corporation,
authorized by the Landlord.
1.4 Lease Term: Commencing encing on the Effective Date and ending at such time
as all City of Grapevine, Texas, combination Tax and Revenue
Certificates of Obligation, Series 2001, sold on July 21, 2001, in an
amount of $4,385,000, the proceeds of which were used for the purpose of
paying contracted obligations for the acquisition, repair and
reconstruction of the Palace Arts Theatre, 300 Main Street, Grapevine,
Texas, and all professional fees of attorneys and financial advisors and
other closing costs in conjunction with the Palace Arts Center and any
refunding bonds and all attendant costs of any subsequent refunding
bonds.
1.5 Minimum Annual Rental: (Section 6.1)
Estimated Annual Rent: $370,000.00
Estimated Rent Payable on February 1st and August 1'. $185,000.00
At the end of each twelve (12) monthperiod ending on December 31st, the
Landlord shall compare actual sums expended for debt service and other
reimbursable costs by Landlord for the period in relation to the
Certificate of Obligation. That amount will then become the estimated
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annual rent, with one-half (V2) due on February 1' and one-half (V2) on
August 1st for the next preceding twelve (12) months. The &-fference, if
any, between the estimated annual and actual cost shall be due and
payable by Tenant within thirty (30) days of such calculation by Landlord
from the available funds securing the Lease.
1.6. All operating expenses and taxes, if any, shall be promptly paid by
Tenant.
1.7 Permitted Use: Performance and concert use in keeping with the current
standards of the Complex. (Section 4)
1,8 Address of Notices
To Landlord: CITY OF GRAPEVINE, TEXAS
200 South Main Street
Grapevine, Texas 760561
Attention: Roger Nelson, City Manager
with copies to:
John F. Boyle, Jr.
BOYLE & LOWRY, L.L.P.
4201 W-ingren, Suite 108
Irving, Texas 75062-2763
To Tenant: GRAPEVINE HERITAGE FOUNDATION
P.O. Box 95104
Grapevine, Texas 76099
Attention: Peggy Riddle
1.9 Premises and Palace Arts Center (Terms used interchangeably): AR offl_-e
Property, including all personal and real property known as Palace Arts
Center and as described in Exhibit W which is attached hereto and
incorporated herein. I
References in this Section 1 to other Sections are for convenience only and to
designate some of the other Sections where references to the particular Fundamental
Lease Provisions appear. Each reference in this Lease to any of the Fundamental
Lease Provisions contained in this Section I shall be construed to incorporate all of the
terms provided under each such Fundamental Lease Provision. In the event of any
conflict between any Fundamental Lease Provision and the balance of the. Lease, the
latter shall control.
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2. PREMISES.
2.1 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises (the "Premises") set forth in Item 1.9 of the
FUNDAMENTAL LEASE PROVISIONS and shown on Exhibit W. The Premises
include all improvements and appurtenances to the Buildings, any landscaped areas
associated with the Buildings and the land on which the Buildings, landscaping and
appurtenances are situated are referred to collectively herein as "Palace Arts Center"
or "Premises".
2.2 The Lease created hereby is upon the terms, covenants and conditions set
forth herein and Landlord and Tenant covenant, as a material part of the consideration
for the Lease, to perform all of said terms, covenants and conditions required to be
performed by Tenant and Landlord, respectively, and further covenant that; this Lease
is made upon the condition of such performance. -
2.3 Notwithstanding anythinjZ to the contrary expressed or implied
herein. Tenant acknowledges that Landlord males no warranties res'ardinz
the Premises except as specificallyprovided in this Lease and Tenant hereby
expressly disclaims the implied warranty that the Premises are suitable for
their intended L'overnmental and commercial pux-pose. Tenant has had a full
and fair opportunity to inspect the Premises and finds that the Premises suit Tenant's
purposes. Tenant has knowledge of the Premises and with this knowledge has
voluntarily agreed to disclaim the implied warranty of suitability. Both Ls.ndlord and
Tenant have expressly bargained for and agreed to this aforementioned disclaimer.
For and in consideration of the execution of this Lease, Landlord and Tenant agree
that Landlord would not have signed this Lease but for the waiver of those rights as
expressly provided for in this Lease.
The following exhibit is made a part of this Lease.
EXHIBIT `A' - Legal description of the Premises, Palace Arts. Landlord shall
not change the size or location of the Premises or the Tenant Improvements therein
(which are constructed within the requirements of this Lease), nor shall Landlord
unreasonably change access to or from the Premises.
4. USE OF PiIENUSES
4.1 Tenant shall use the Premises. Tenant shall devote the entire Premises
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to performance, concerts, the arts and civic or City functions. Tenant shall devote the
entire Premises to such purposes. Tenant shall not use or permit the Premises to be
used for any other purpose or purposes without the prior written consent of Landlord.
Tenant shall not, without the prior written consent of Landlord, sell merchandise from
vending machines, except for the use of Tenant's employees, or allow any coin-operated
vending (except a cigarette machine, pay telephone and sanitary napkins dispenser)
or gaming machines on the Premises, and any such machines installed without the
such consent shall be subject to removal by Landlord. Tenant further covsnants and
agrees that it will not use or suffer or permit any person or persons to use the Premises
or any part thereof for conducting therein a second-hand store, auction, distress or fire
sale or bankruptcy or going -out -of -business sale, or for any use or purpose in violation
of the laws of the United States of America or the laws, ordinances, regulation and
requirements of the State, County and City of Grapevine where the Premises is
situated, or other lawful authorities havingjuris diction, and that during said term the
Premises, and every part thereof, shall be kept by Tenant in a clean and wholesome
condition, free of any objectionable noises, odors or nuisances, and that all health and
police regulations shall, in all respects and at all times, be fully compli?d with by
Tenant.
4.2 Without Landlord's prior written consent, Tenant may not display or sell
merchandise, allow carts, portable signs, devices or any other objects to be stored or to
remain outside the defined exterior walls or roof and permanent doorways of the
Premises, or in hallways. No aerial or antenna shall be erected oil the roof or exterior
walls of the Premises without first obtaining, in each instance, the written consent of
Landlord. Any aerial or antenna so installed without such written consent shall be
subject to removal without notices at any time. .
4.3 Tenant agrees that all trash, waste materials and rubbish arising out of
Tenant's use of the Premises shall be deposited within receptacles in areas designated
by Landlord and that there shall be no -trash receptacles permitted to remain outside
of the Premises.
4.4 Tenant shall promptly upon demand by Landlord reimburse Landlord for
any additional premium charged for any insurance policy of Landlord insuring the
Premises by reason of Tenant's failure to comply with the provisions of this Section and
for any reasonable, out of pocket other costs incurred by Landlord in enforcing the
provisions of this Section.
4.5 If any govern -mental license or permit is required for the lawful conduct
of any business or other activity carried on by Tenant in the Premises, and if the
failure to obtain such license or permit would affect Landlord, Tenant shall procure
and maintain such licence or permit throughout the term of this Lease, submit such
license or permit for inspection by Landlord and comply at all times with all terms and
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conditions thereof.
4.6 Tenant covenants by and for itself, its successors and assigns, and all
persons claiming under or through Tenant, and this Lease is made and accepted upon
and subject to the following conditions: that there shall be no :intentional
discrimination against or segregation of any person or group of persons, on. account of
race, color, creed, sex, religion, marital status, ancestry or national origin in the
leasing, subleasing, transferring, use, or enjoyment of the Premises, nor shall Tenant
itself, or any person claiming under or through Tenant, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy, of tenants, lessees, sublessees, su1tenants or
venders in the Premises.
4.7 Landlord reserves the right to reasonably regulate the activities of Tenant
in regard to deliveries and surveying of the Premises, and Tenant agrees to abide by
such regulations of Landlord.
5. LEASE TERM
5.1 The term of this Lease shall be the period of time specified in Item 1.4 of
the Fundamental Lease Provisions, adjusted as provided below. The term shall
commence on the day of "2001. The term shall coincide with the
terms of the Certificates of Obligation sold by the City to purchase the Premises. The
term shall not expire until the said Certificates of Obligation and any subsequent
reftanding issue have been paid in full.
5.2 NOTWITHSTANDING ANY PROVISION OF THE LEAST TO THE
CONTRARY, TENANT SHALL HAVE NO RIGHT TO TERMINATE THE LEASE
UNLESS AND UNTIL THE SUBJECT CERTIFICATES OF OBLIGATION OR ANY
REFUNDING ISSUE HAVE BEEN PAID IN FULL
Tenant agrees to pay as rental for the use and occupancy of the Premises, at the
times and in the manner hereinafter provided, the following sums of money.
6.1 Minimum Annual Rental. The Minimum Annual Rental specified in
Section 1.5 hereof shall be payable in two (2) installments during each year in advance,
on the first day of February and the fust day of August, beginning on the date this
Lease is signed by both parties. The rental payments shall equal one-half (1/2) of the
debt service payments and any other reimbursable expense (additional rent) to be
made by the City in payment of its Certificates of Obligation or any refunding issue.
All delinquent rental payments shall bear interest at the rate of the Certificates of
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Obligation issue.
6.2 Lease Year
The term "Lease Year", for purposes of this Lease, is defined to mean the
period of 12 full calendar months during the term of this Lease commencing from the
date this Lease Agreement is signed by both parties..
6.3 Additional Rent. Tenant shall pay as additional rent all other sums of
money or charge required to be paid pursuant to there terms of this Lease, whether or
not the same be designated "Additional Rent". If Tenant shall fail to pay any rent
designated in this Section 6 or Additional Rent when due and payable, the Tenant
shall pay to Landlord, as a late charge and in consideration of the additional costs
incurred by Landlord and the additional record-keeping required to be performed by
Landlord, the sum equal to five percent (5%) of the amount due, it being agreed by
Landlord and Tenant that such additional costs cannot be precisely calculated and both
parties agree that the foregoing late charge constitutes an approximation o-"7 such costs
which is fair to both Tenant and Landlord.
7.1 Definition
A. "Operating Expenses" shall mean all of Landlord's costs and expenses
paid or incurred in operating and maintaining the Premises for a particular calendar
year or portion thereof as determined by Landlord in accordance with reasonable
management practices. Operating Expenses shall include by way of illusization but
not limitation: all real estate taxes and assessments, general, special or otherwise; all
insurance premiums and other expenses incurred by Landlord for liability insurance
and fire and extended coverage insurance; any water, sewer, electrical, natural gas,
cable and other utility charges; fire and police protection charges or fees, if any;
security services; license, permit and inspection fees; management fees and expenses;
wages and related benefits payable to employees relating thereto; maintenance and
repair of electrical, plumbing, mechanical, roof and other systems; maintEinance and
repair of the Buildings, except for repairs and maintenance of the foundation and
structural elements of the exterior walls of the Buildings; legal and consulting fees;
purchase and cleaning of employee uniforms; accounting services; landscaping, trash
removal, for structured or surface parking as pro -rated by Landlord among the
buildings and, in general, all other costs and expenses which would generally be
regarded as operating and maintenance costs and expenses, including those which
would normally be amortized over a period not to exceed five (5) years. There shall
also be included in Operating expenses the cost of any capital improvements made to
the Premises by Landlord after the Commencement Date of this Lease which is
1.1
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required under any governmental law or regulation that was not applicable to the
Premises at the time it was constructed, amortized over such period as Landlord shall
reasonably determine, together with interest at the rate of 12010 per annum on the
unamortized balance. Any expenses for fire, ambulance or police services that can
reasonably be allocated to a specific tenant or tenants shall be charged to same.
Landlord shall not have the right to charge twice for the same goods or services.
7.2 During the term of this Lease, Tenant shall pay as Additional Rent 100%
of all Operating Expenses related to the Premises. Tenant's obligations under the
Section 7.2 shall be pro -rated for any partial year (i.e., the first year and the last year
of the lease term).
7.3 Tenant shall be liable for all taxes levied against personal property and
trade fixtures placed by Tenant in the Premises. If any such taxes are levied against
Landlord or Landlord's property and if Landlord elects to pay the same or if the
assessed value ofLandlord's property is increased by inclusion of personal property and
trade fixtures placed by Tenant in the Premises and Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord upon demand 100% of such taxes.
7.4 Unless otherwise specified herein, all charges, expenses, costs or fees for
which Tenant is liable under this Section 7 shall be paid monthly by Tenant to
Landlord as Additional Rent.
$. TENANT'S INSURt.ANCE
8.1 Tenant shall at all times during the term hereof and at its oven cost and
expense procure and continue commercial general liability insurance, products liability
insurance, workmen's compensation insurance and bodily injury to or death of any
person in connection with the use, operation or condition of the Premises. Such
insurance at all times shall be in an amount of not less than Four Mill;.on Dollars
($4,000,000), combined single limit. The public liability insurance required shall
include dram shop liability insurance when there are alcoholic beverages served on the
Premises.
8.2 Tenant shall at all times during the term hereof maintain in e£i'ect policies
of insurance covering (i) its leasehold improvements (including any alterations,
additions or improvements a may be made by Tenant pursuant to the provisions of
Section 18 hereof) trade fixtures, merchandise and other personal propertl7 from time
to time in, on or upon the Premises, in an amount not less than one hundr. ed percent
(100%) of their actual replacement cost from time to time during the term of this Lease
providing protection against any peril included within the classificatior.L "Fire and
Extended Coverage", together with insurance against sprinkler damage, vandalism
and malicious mischief and (ii) all plate glass on, the Premises. The prooeteds of such
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property so insured. Upon termination of this Lease, the proceeds under W above,
shall be paid to Tenant, and the proceeds under (ii) above, shall be determined by the
company issuing the insurance policy at the time the policy is initially obtained, and
shall be increased as reasonably requested by Landlord from time to time.
8.3 All insurance required to be carried by Tenant hereunder shall be issued
by responsible insurance companies, qualified to do business in the State olTexas and
reasonably acceptable to Landlord and its Risk Manager. Each policy shall name
Landlord's lender as additional insureds, and copies of all certificates evidencing, the
existence and amounts of such insurance, shall be delivered to Landlord bar Tenant at
least thirty (30) days prior to Tenant's opening for business in the Premises. No such
policy shall be cancelable except after thirty (30) days written notice to Landlord.
Tenant shall, at least ten (10) days prior to the expiration of any policy, furnish
Landlord with renewals or "binders" thereof, or Landlord may, but shall not be
obligated to, order such insurance and charge the cost thereof to Tenant, which amount
shall be payable by Tenant upon demand. Any policy may be carried under so-called
"blanket coverage" form of insurance policies, provided any such blanket policy
specifically provides that the amount of insurance coverage required hereunder shall
in no way be prejudiced by other losses covered by the policy. Neither the issuance of
any such insurance policy nor the minimum limits specified in this Section with
coverage shall be deemed to limit or restrict in any way Tenant's liability arising under
or out of this Lease.
8.4 To the extent such waivers are obtainable from insurance carriers,
Landlord and Tenant hereby waive their respective rights of recovery against the other
for injury or loss due to hazards covered by insurance containing such a waiver of
subrogation clause or endorsement, and each releases the other from ary direct or
consequential damage to the property of the other or under its control, including its
interest in the Premises, by fire or other casualty (including liability for 1,:)ss of rent)
to the extent such damage is insured against under a policy or policies of insurance,
whether or not such damage may be attributable to the negligence or act of either
party or its respective agents, invitees, contractors, servants or employees. Such
waiver shall in no way be construed or interpreted to limit or restrict any indemnity
or other waiver made by Tenant under the terms of this Lease.
9. UTILITIES AND SERVICES
9.1 Tenant shall pay as Additional Rent for all water, gas, power and electric
current, heating, ventilation and air conditioning and all other utilities used by Tenant
on the Premises from and after the delivery of possession thereof by Landlord. If any
such charges are not paid when due, Landlord may pay the same, and any amount so
paid by Landlord shall thereupon become due to Landlord from Tenant as Additional
Rent. If any utilities are furnished by Landlord, then the rates charged Tenant shall
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not exceed those of the local public utility company as if its services wera furnished
directly to Tenant. Landlord shall not be liable in damages or otherwise for any failure
or interruption of any utility service being furnished to the Premises, and no such
failure or interruption shall entitle Tenant to terminate this Lease or to aba to payment
of any portion of the rent due hereunder.
9.2 On generally accepted business days from 9:00 a.m. to 6:00 p.m. and on
Saturdays from 9:00 a.m. until 12:00 p.m., Landlord shall ventilate the Premises and
furnish heating or air conditioning, at such reasonable temperatures and in such
reasonable amounts as Landlord deems standard, when in the reasonable judgment
of Landlord, it is required for the comfortable occupancy of the Premises,. subject to any
governmental standards or requirements relating to, among other things, energy
conservation. Upon request, Landlord shall make available at Tenant's expense after
hours heating or air conditioning. The minimum charge in the hourly rate for the use
of after hours heating or air conditioning shall be reasonably determined from time to
time by the Landlord, based on the cost for providing such services, and the Landlord's
determination shall be confirmed in writing to the Tenant.
9.3 Landlord shall not be liable for, and Tenant shall not be entitled to, any
abatement or reduction of Tient by reason of Landlord's failure to maintain
temperature or electrical constancy levels or to furnish any of the foregoing services
when such failure is caused by accident, breakage, repairs, strikes, lockouts or other
labor disturbance or labor dispute of any character, governmental regulation,
moratorium or other governmental. action, the failure of any utility to supply its
service, inability by exercise of reasonable diligence to obtain electricity, water or fuel,
or by any other cause beyond Landlord's reasonable control, nor shall any such failure,
stoppage or interruption of any such service be construed as an eviction of Tenant, or
relieve Tenant from the obligation to perform any covenant or agreement herein, and
in no event shall Landlord be liable for damage to persons or property, or in default
hereunder, as a result of such failure, stoppage or interruption of any such service. In
the event of any failure, stoppage or interruption thereof, however, Landlord shall use
reasonable diligence to resume service promptly.
Tenant hereby agrees to indemnify, protect, defend and hold Landlord harmless
from and against any and all claims arising from Tenant's use of the Premises for the
conduct of its business or from any activity, work, or things done, permitted or suffered
by Tenant and its agents and employees in or about the Premises, and fu�her agrees
to indemnify, protect, defend and hold Landlord harmless from and against any and
all claims arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease, or arising from any act
or negligence of Tenant, or any of its agents, contractors or employees, and from and
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against all costs, reasonable outside attorneys' fees, expense and liabilities incurred
in or about any such claim or any action or proceeding brought thereon; and in case
any action or proceeding be brought against Landlord by reason of any such claim,
Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by
counsel reasonably satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or injury to
persons, in, upon or about the Premises from any cause, except Landlord's sole
negligence, and Tenant hereby waives all claims in respect thereof against Landlord,
except for claims arising out of Landlord's sole negligence or misconduct.
0 DO OR DID W a V
Landlord is hereby agreed not be liable for injury or damage which may be
sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers, or by any other person in or about the Premises,
caused by or resulting from fire, stream, electricity, gas, water or rain whic:i may leak
or flow from or into any part of the Premises or from the breakage, leakage, obstruction
or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning
or lighting fixtures of the same, whether the said damage or injury results from
conditions arising upon the Premises or from other sources. In no event sham the
liability of Landlord arising out of this Lease exceed Landlord's interest in the
Premises, or liability Limits as determined by the Texas Tort Claims Act, whichever is
less. I I
col
Landlord agrees that Tenant, upon paying the rent and performing the
covenants and conditions of this Lease, may quietly have, hold and enjoy the demised
Premises during the term hereof.
13. ESTOPPEL CERTIFICATE
Tenant shall at any time and from time during the Lease Term upon not less
than fifteen (15) days prior notice by Landlord, execute, acknowledge and, deliver to
Landlord a statement in writing certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is i in full force and
effect as modified and stating the modifications), the dates to which the Minimum
Annual Rental, Additional Rent and other charges have been paid in advance, if any,
stating whether or not to the best Imowledge of Tenant, Landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease and, if
so, specifying each such default of which Tenant may have knowledge and -ontaining
any other information and certifications which reasonably may be requested by
Landlord or the holder of any Underlying Mortgage. Any such statemen't, delivered
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pursuant to this Section may be relied upon by any prospective purchaser ,Df the fee of
the Premises or any mortgagee, ground lessor or other like encumbrancer upon the
Premises.
Failure of Tenant to execute, acknowledge and deliver such estoppel certificate
within ten (10) days from receipt of the foregoing notice shell, without further act by
any party, constitute an event of default under this Lease.
14.1 Tenant shall, during the term of this lease and at Tenant's cost, keep the
Premises and all fixtures and equipment installed therein in good order, condition and
repair, including the interior wall, all windows, doors, door &aures, and door closures,
all plate glass, storefronts and showcases, all carpeting and other floor covering, all
electrical equipment, all heating, ventilating and air conditioning equipment, and all
plumbing and sprinkler systems, if any, installed therein and uses exclusively by
Tenant, and shall as necessary, or when required by governmental authority, subject
to the provisions of .Article 15 herein, make modifications or replacements thereof.
Landlord shall have no obligations to repair or maintain the Premises or improvements
constructed therein except as otherwise provided in this Lease. Tenant expressly
agrees that the use of roof areas shall be limited to ingress for maintenance purposes
only and only with Landlord's prior written consent, which shall not be unreasonably
withheld or delayed, and that said roof areas shall not be used £or storage of inventory
or for any other use.
14.2 If Tenant refuses or neglects to make necessary repairs and/or maintain
the Premises, or any part thereof, in a manner reasonably satisfactory to Landlord,
Landlord shall have the right, after ten (10) days written notice (except in case of
emergency) to Tenant, but shall not be obligated, to make such repairs or perform such
maintenance on behalf of aor for the account of Tenant.
In such event, such work shall be paid for by Tenant as Additional hent
promptly upon demand.
14.3 Tenant shall keep in good order, condition and repair the foundations and
structural elements of the exterior walls of the Premises.
14.4 Tenant hereby grants to Landlord the right to enter upon the Premises
at any time in order to inspect, view, analyze or make repairs after prior coordination
with Tenant (except in case of emergency).
14.5 Tenant agrees upon the expiration or earlier termination of this Lease to
surrender the Premises to Landlord in good order, condition and repair, ordinary wear
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and tear expected. Tenant hereby waives the right to make repairs at Landlords
expense under the provisions of any law permitting repairs by a tenant at the expense
of the Landlord to the extent allowed by law, in that Landlord and Tenant have by this
Lease made specific provision for such repairs and have defined their respective
obligations relating thereto.
15. ALTERATIONS
15.1 Tenant shall make no alterations, repairs, additions or improvements in,
to or about the Premises (collectively "Tenant Alterations"), without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed, and
Landlord may impose as a condition to such consent such requirements a, Landlord,
in its sole discretion, may deem necessary or desirable, including without limitation,
(a) the right to approve the plans and specifications for any work, (b) the right to
require insurance satisfactory to Landlord, (c) the right to require security for the full
payment for any work, including performance bonds, (d) requirements as to the
manner in which or the time or times at which work may be performed and (e) the
right to approve the contractor or contractors to perform Tenant Alterations. All
Tenant Alterations shall be completed in accordance with Landlord's requirements and
all applicable rules, regulations and requirements of governmental authorities and
insurance carriers. Tenant shall pay to Landlord actual costs for revi-swing and
inspecting all Tenant Alterations to assure full compliance with all of Landlord's
requirements. If requested by Landlord, Tenant shall provide Landlord with copies of
all contracts, receipts, paid vouchers, and any other documentation in connection with
the construction of such Tenant Alterations. Tenant shall promptly pay all costs
incurred in connection with all Tenant Alterations and shall not permit tine filing of
any mechanic's lien or other hen in connection with any Tenant Alterations. If a
mechanic's lien or other lien is filed against the Premises or the Complex or any
portion thereof as a result of Tenant Alterations by Tenant, Tenant shall discharge or
cause to be discharged such lien within ten (10) days after Tenant receives notice of the
filing thereof. Any increase in any tax, assessment or charge levied or assessed as a
result of any Tenant Alterations shall be payable by Tenant in accordance with Section
7.2 hereof.
15.2 All Tenant Alterations which must be approved in writing by Landlord
and are attached to, or built into, the Premises, including without limitation, floor
coverings, draperies, wall coverings, paneling, molding, doors, vaults, plumbing
systems, electrical systems, mechanical systems, lighting systems, sound insulation
equipment, communication wiring and outlets for the systems mentioned above and
for all telephone, radio, telegraph an television purposes, and any special ceiling
installations, shall become the property of Landlord and shall be surrendered with the
Premises, as a part thereof, at the end of the term of this Lease; provided however,
Landlord may, by written notice to Tenant at least thirty (30) days prior to the end of
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recovery of attorneys' fees incurred by Purchaser in connection therewith); or (ii)
enforce specific performance of Seller's obligations under this Contract.
Notwithstanding any other provision herein to the contrary, if Seller fails to satisfy its
obligations, whereupon Purchaser will be granted a credit against the Purchase Price
for the costs incurred by Purchaser to satisfy such obligations of Seller.
1.2.2. Defaulter by Purchaser. If all conditions of this Contract are satisfied and
all covenants and obligations to be performed by Seller prior to Closing are fully
performed, and if performance of this Contract is fully tendered by Seller and the sale
is not consummated through default by Purchaser, then Seller, as Seller's sole and
exclusive remedy at law or in equity, shall have the right to terminate this Contract
by giving written notice thereof to Purchaser, whereupon neither party .91 all have any
further rights or obligations hereunder. Seller's sole remedy is to terminate the
Contract.
ARTICLE XIII
NUSCELLANEOUS
13.1. Notices. Any notice, demand, or other communication required to be
given or to be served upon any party hereunder shall be in writing and delivered to the
person to whom the notice is directed, either: (i) in person; (ii) by United States Mail,
as registered or certified item with return receipt requested; or (iii) delivered by
delivery service (including any express mail or delivery service). Notices, demands, or
other communications delivered by mail shall be deemed given and received when
deposited in a post office or other depository under the care or custody of the United
States Postal Service, enclosed in a wrapper, addressed properly, with prDper postage
affixed. Any notice, demand or other communication given other than b- certified or
registered mail, return receipt requested, shall be deemed to have been given and
received when delivered to the address of the party to whom it is addressed as stated
below:
Purchaser: The City of Grapevine
Attn: Roger Nelson, City Manager
P.O. Box 95104
Grapevine, Texas 76099
With a copy to:
John F. Boyle, Jr.
Boyle & Lowry, L.L.P.
Irving, Texas 75062
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Premises arising out of the negligent or willful acts or omissions of Tenant, its agents,
employees, contractors, licensees and invitees.
17.3 Landlord shall. not be liable for any loss of business, inconvenience or
annoyance arising from any repair or restoration of any portion of the Premises as
result of any damage from fire or other casualty. Furthermore, in the event of such
damage from fire or other casualty, Landlord shall have no obligation to expend any
amount for the repair of the Premises.
17.4 The provisions of this Lease, including this Section 18 constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Premises, and any statute, case law, or
regulation of the State of Texas with respect to any rights or obligations concerning
damage or destruction in the absence of an express agreement between the parties, and
any other statute, case law or regulation, now or hereafter in effect, shall to the
maximum extent permitted by law have no application to this Lease or any damage or
destruction to all or any part of the Premises.
18. EXHNENT DOMAIN
The exercise of the power of eminent domain by any entity possE:asing such
power of all or a portion of the Premises shall not terminate the Lease, and Tenant
shall continue to be liable to cq4tinue to pay the rent. Landlord shall use the proceeds
from any eminent domain to repair or rebuild the Premises and pay the Certificates
of Obligation.
19. ASSIGNMENT AND SUBLETTING
19.1 Tenant shall not assign this Lease, or allow it to be assigned, in whole or
in part, directly or indirectly, voluntarily or by operation of law or otherwise or
mortgage or pledge the same, or permit the Premises to be occupied or used by anyone
other than Tenant, or any part thereof, without the prior written consent of Landlord.
20. DEFAULTS AND REMEDIES
20.1 The occurrence of any of the following shall constitute a material default
and breach of this Lease by Tenant:
(a) The failure by Tenant to pay the rent or make any other payment
required to be made by Tenant hereunder as and when due,
including additional compensation.
(b) The failure by Tenant to observe or perform the provisions of
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Section 4 where such failure continues and is not remedied within
two (2) business days after notice thereoffrom Landlord to Tenant,
provided however, if such default cannot reasonably be cured
within such period. Tenant shall not be in default if Tenant shall
within such period commence such cure and diligently prosecute
the same to completion within thirty (30) days after the notice.
The failure of Tenant to observe or perform the provisions of
Section 16 where such failure continues and is not remedied within
two (2) business days after notice thereof by Landlord to Tenant,
provided however, if such default cannot reasonably be cured
within such period, Tenant shall not be in default if Tenant shall
within such period commence such cure and diligently prosecute
the same to completion within thirty (30) days.
(d) Any attempted assignment or subletting of part or all -of the
Premises by Tenant in contravention of Section 19.
(e) The failure by Tenant to observe or perform any other provision of
this Lease where such failure continues for thirty (30) days after
notice thereof by Landlord to Tenant; provided, however, that if
the nature of such default is such that the same cannot reasonably
be cured within such thirty (30) day period, Tenant shall not be
deemed to be in default if Tenant shall within each period
commence such cure and thereafter diligently prosecute the same
to completion.
(f) .Any action taken by or against Tenant pursuant to any statute
pertaining to bankruptcy or insolvency or the reorganization of
Tenant (unless, in the case of a petition filed against Tenant, the
same is dismissed within thirty (30) days); the making by Tenant
of any general assignment for the benefit of creditors; the
appointment of a trustee or receiver to take possession of all or any
portion. of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant
within thirty (30) days; or the attachment, execution, or other
judicial seizure of all or any portion of Tenant's assets located at
the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
20.2 in the event of any such default by Tenant, then, in addition to any other
remedies available to Landlord at law, in equity or as provided specifically herein,
which remedies are cumulative, Landlord shall have the immediate option to terminate
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Tenant's right of possession under this Lease and all rights of Tenant hereunder by
giving Tenant five (5) days written notice of such election to terminate Tenant's right
of possession under this Lease. In the event Landlord shall elect to so terminate
Tenant's -right of possession under this Lease, Landlord may recover from Tenant:
(a) The cost of recovering the Premises; plus
(b) The unpaid rent earned at the time of termination plus interest
thereon; plus
(c) Late charges on unpaid rent and accrued interest thereon; plus
(d) The present value of the balance of the rent for the remainder of
the terra; plus
(e) Cost of reletting (including a new brokerage comm---ssion) and
refurbishing (including a new Tenant construction allowance) the
Premises; plus
(f) Any other reasonable amount necessary to compensate Landlord
or all the detriment proximately caused by Tenant's failure to
perform its obligation under this Lease; and
I I
(g) Minus the present value of the fair market rental of the Premises
for the remainder of the term in the Premises "AS IS" condition
allowing at least six months vacancy for reletting and refurbishing.
The term "rent" or "rental" as used herein shall be deemed t -,i be and to
mean the Minimum Annual Rental, and all other amounts required to be paid by
Tenant pursuant
ant to the terms of this Lease. All such amounts shall be computed on
the basis of the monthly amount thereof payable on the date of Tenants 6-efault.
20.3 In the event of any such default by Tenant, Landlord shall also have the
right with or without terminating this Lease or Tenant's right of possession under this
Lease, to reenter the Premises and remove all persons and property, therefrom by
summary proceedings or otherwise, such property may be removed and stored in a
public warehouse or elsewhere at the cost of and of the account of Tenant, provided
Landlord shall have a lien against all personal property located in the Premises in the
amount which is due Landlord hereunder, which hen may be satisfied out .:)f proceeds
of the public sale of such personal property by Landlord.
20.4 In the event of the vacation or abandonment of the Premises by Tenant,
or in the event that Landlord elects to reenter as provided in Section 22.3 or takes
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possession of the Premises pursuant to legal proceeding or pursuant to any notice
provided by law, and if Landlord does not elect to terminate this Lease, then Landlord
may from time to time without terminating this Lease, either sue to recover all rent
periodically as it becomes due or relet the Premises or any part thereof for such term
or terms and at such rent and upon such other terms and conditions as Landlord, in
its sole discretion acting on Tenant's behalf, may deem advisable, with the right to
make alterations and repairs to the Premises.
In the event that Landlord shall elect to so relet, then rentals received by
Landlord from such reletting shall be applied. First, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord, second, to the
payment of any cost of such reletting including without limitation broker's c -=Mission,
attorneys' fees, expenses of remodeling the Premises required by relettvig and like
costs; third, to the payment of the cost of any alterations and repairs to the: Premises;
fourth, to the payment of rent due and unpaid hereunder, and the remainder, if any,
shall be held by Landlord and applied in payment of future rent as the same may
become due and payable hereunder. Should that portion of such rentals received from
such reletting during any month which is applied to the payment of rent hereunder,
be less than the rent payable during that month by Tenant hereunder, then Tenant
shall pay such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall also pay to Landlord, as soon as ascertained, any costs and
expenses incurred by Landlord in such reletting or in making such alterations and
repairs not covered by the rentals received from such reletting.
20.5 No reentry or taking possession of the Premises by Landlord pursuant to
this Section 22 shall be construed as an election to terminate this Lease unless a
written notice of such intention to be given to Tenant or unless the termination thereof
be decreed by a court of competentiurisdiction. Notwithstanding any reletting without
termination by Landlord because of any default by Tenant, Landlord may at any time
after such reletting elect to terminate this Lease for any such default.
20.6 As used in this Section 22 and in Section 23, the term "Tenant" shall be
deemed to include all persons or entities named as Tenant under this Lease, or each
and every one of them. If this Lease has been assigned, the term "Tenant", as used in
this Section 22 and in Section 23 shall be deemed to include both the assignee and the
assignor.
If, at any time prior to the Commencement Date, W any action is taken by or
against Tenant in any court pursuant to any statute pertaining to bankruptcy or
insolvency or the reorganization of Tenant, (ii) Tenant makes any general assignment
for the benefit of creditors, (iii) a trustee or receiver is appointed to take possession of
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substantially all of Tenant's assets or of Tenant's interest in this Lease, (:.V) or there
is an attachment, execution or other judicial seizure of substantially all of Tenant's
interest in this Lease, (iv) or there is an attachment, execution or otherjudi.-Hal seizure
of substantially all of Tenant's assets or of Tenant's interest in this Lease, then this
Lease shall ipso facto be canceled and terminated and be of no further force or effect.
In such event, neither Tenant nor any person claiming through or under Tenant or by
-virtue of any statue or of any order of any court shall be entitled to possession of the
Premises or any interest in this Lease and Landlord shall, in addition tc any other
rights and remedies under this Lease, be entitled to retain any rent, security deposit
or other monies received by Landlord from Tenant as liquidated damages.
NIAME16"Zift 4*410-14 DIP, a W 404 0105 1 1 1 6 :
22.1 The voluntary or other surrender of this Lease by Tenant, or a
termination hereof, shall not constitute a merger, and shall at the option of Landlord,
operate as an assignment to Landlord of any or all subleases or subtenancies affecting
the Premises.
22.2 Upon the expiration of the term of this Lease, or upon any earlier
termination hereof, Tenant shall quit and surrender possession of the Premises to
Landlord in as good order and condition as the Premises are now or hereafter may be
improved by Landlord or Tenant, reasonable wear and tear and repairs which are
Landlord's obligation excepted, and shall, without expense to Landlord, remove or
cause to be removed from the Premises all debris and rubbish, all furniture,
equipment, business and trade fixtures, freestanding cabinet work, movable
partitioning and other articles of personal property owned by Tenant or installed or
placed by Tenant at its expense in the Premises, and all similar articles of any other
persons claiming under Tenant unless Landlord exercises its option to have any
subleases or subtenancies assigned to Landlord, and Tenant shall repair all damage
to the Premises resulting from such removal. Tenant shall indemnify and hold
harmless Landlord from and against any and all liability, damage, costs, fees
(including reasonable attorneys' fees) arising out of Tenant's failure to vacate and
surrender the Premises in timely fashion, including any compeasable damages
incurred by a subsequent tenant.
22.3 In the event the expiration or termination of this Lease or'Other reentry
of the Premises by Landlord as provided in this Lease, any property of Tenant not
removed by Tenant upon the expiration of the term of this Lease, or within two (2)
business days after termination by reason of Tenant's default, shall be considered
abandoned and Landlord may remove any or all of such property and dispose of the
same in any manner or store the same in a public warehouse or elsewhere for the
account of, and at the expense and risk of, Tenant. If Tenant shall fail to pay the costs
of storing any such property after it has been stored for a period of thirty (30) days or
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more, Landlord may sell any or all of such property at public or private sale, in such
manner and at such times and places as Landlord, in its sole discretion; may deem
proper, without notice to or demand upon Tenant. In the event of such sale, Landlord
shall apply the proceeds thereof, first, to the cost and expense of sale, including
"reasonable attorneys' fees; second, to the payment of the cost of removal and storage;
third, to the payment of any other sums which may then or thereafter be due to
Landlord from Tenant under any of the terms of t his Lease, and, fourth, the balance,
if any, to Tenant.
All fixtures, equipment, alterations, improvements and/or appurtenances
attached to or build into the Premises prior to or during the term hereof, whether by
Landlord at its expense or at the expense of Tenant, or both, shall be and remain part
of the Premises and shall not be removed by Tenant at the end of the tarzn of this
Lease unless such removal is required by Landlord pursuant to the provisions of
Section 16 hereof. Such fixtures, equipment, alterations, additions, improvements
and/or appurtenances shall include without limitation, floor coverings, draperies, wall
coverings, paneling, molding, doors, vaults, plumbing systems, electrical systems,
lighting systems, sound installation equipment, communication wiring and outlets for
the systems mentioned above and for all telephone, radio, telegraph and television
purposes, and any special flooring or ceiling installations.
CM 01 •
In the event Tenant holds over after the expiration of the term of this Lease,
with or without the express or implied consent of Landlord, such tenancy shall be from
month to month only, and not a renewal hereof or an extension for any further term
and such month to month tenancy shall be subject to each and every term covenant
and agreement contained herein; provided, however, that Tenant shall pay as
Minimum. Annual Rental during any holding over period, an amount equal to one and
one-half (1-1/2) times the Minimum Annual Rental payable immediately preceding the
expiration of the term of this Lease. Nothing in this Section 26 shall be construed as
a consent by Landlord to any holding over by Tenant and Landlord expressly reserves
the right to require Tenant to surrender possession of the Premises upon the expiration
of the term of this Lease or upon the earlier termination hereof and to assert any
remedy in law or equity to evict Tenant and/or collect damages in connection with such
holding over.
24.1 All covenants and agreements to be performed by Tenant under any ofthe
terms of this Lease shall be performed by Tenant at Tenant's sole expense and without
abatement of rent. IfTenant shall fail to observe and perform any covenant, condition,
provision or agreement contained in this Lease or shall fail to perform any other act
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required to be performed by Tenant. Landlord may, upon notice to Tenant, without
obligation, and without waiving or releasing Tenant from any default or obligations of
Teilatit make any such payment or perform any such obligation on Tenant's part to be
performed. All sums so paid by Landlord and all, costs incurred by Landlord, including
attorneys' fees, together with interest at the highest rate permitted by law shall be
payable to Landlord on demand and Tenant covenants to pay any such sums, and
Landlord shall have (in addition to any other right or remedy hereunder) the same
rights and remedies in the event of the non-payment thereof by Tenant as in the case
of default by Tenant in the payment of rent.
24.2 If Tenant shall fail to make any payment ofrent within ten (10) days after
the date it is due, Tenant shall pay to Landlord as a late charge and in consideration
of the additional costs incurred by Landlord and the additional record keeping required
to be performed by Landlord, an additional sum equal to five percent (5%) of the
amount of rent due and owing from Tenant. Furthermore, additional interest may be
assessed by Landlord against Tenant at the lesser of 18% or the maximiun interest
rate that an individual is permitted by law to charge. The assessment or payment of
such late charge, however, shall not excuse or be deemed to cure any default; by Tenant
hereunder.
26.1 -- Subject to the provisions of Section 3, Landlord reserves the right, in its
sole discretion and without obligation or liability to Tenant, to at any time make such
changes, alterations, additions, improvements or replacements in or to the Premises,
and the fixtures and equipment thereof, as well as in service areas or tc the street
entrances, halls, passages, courtyards, stairways, parking areas or garages and any
other improvement contained in the Premises.
25.2 Landlord may adopt any name for the Premises and Landlord reserves the
right to change the name and/or the address of the premises or any part thereof at any
time. Landlord agrees to notify Tenant of such change.
The submission of this instrument for signature by Tenant does not constitute
a reservation of, or an option to lease, and this instrument shall not be effective or
binding as a lease or otherwise until its execution and delivery by both Landlord and
Tenant.
Tenant and Landlord agree that no real estate broker was involved. in respect
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-,to the. leasing or.renting of space in the
- , I ndemnif Complex to Tenant and Tenant and Landlord
shall indemnify and hold harmless each the other from and against any liability with
respect to any fee of any kind or brokerage commission except as specifically set forth
herein.
28. NOTICES
Whenever under this Lease a provision is made for any demand, notice or
declaration of any kind or where it is deemed desirable or necessary by either party to
give or serve any such notice, demand or declaration to the other, it shall be in writing
and either party served personally or sent by registered mail or certified mail, return
receipt requested, with postage prepaid, addressed as set forth in Section 1.12. Either
party may by like notice at any time and ram time to time designate a different
address to which notices shall be sent. Such notices, demands or declarations shall be
deemed sufficiently served or given for all Purposes hereunder at the time they shall
be mailed by United States mail as aforesaid.
29. ADVERTISING AND SIGNS
All signs of any type shall be approved in writing by the City in advance
30. SECURITY FOR PERFO I LANCE
Tenant pledges and conveys to Landlord a lien which shall be evidenced by a
VCC Certificate, all net revenues for operating the Palace, all net revenues generated
by the Foundation froria festivities and other fund-raising activities, pro seeds from
Palace Theatre donated funds, funds obtained from grants and any and all sources, and
liens against all personal property _Landlord shall have and retain all liens available
to it under any statute.
321. MISCELLANEOUS
31.1 One or more waivers of a breach of any covenant, term or condition of this
Lease by either Party shall not be construed by the other party as a waiver of a
Subsequent breach of the same covenant, term or condition. The consent or approval
of either party to or of any act by the other party of a nature that required consent or
approval shall not be deemed to waive or render unnecessary consent to or approval
of any subsequent act.
31.2 Tenant and Landlord agree that Tenant, a 501 (c)(3) corporation, is an
,instrumentality of the City as it was created by the City, all of its Board Members are
appointed by the City; its budget is approved by the City; it carries on functions that
are governmental in nature; and the City through its City Manager lends supervisory
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authority and the City supports the Tenant in a substantive manner.
31.3 The laws ofthe State of Texas shall govern the validity, performance and
enforcement of this Lease. Although the provisions of this Lease were drawn by
Landlord, this Lease shall not be construed either for or against Landlord. or Tenant,
but this Lease shall be interpreted in accordance with the general tenor of the
language herein.
31.4 In the event that at any time during the term of this Lase either
Landlord or Tenant shall institute any action or proceeding against the other relating
to the provisions of this Lease, or any default thereunder, then, and in that event, the
unsuccessful party in such action or proceeding agrees to reimburse the successful
party herein for the reasonable attorneys' fees and costs of suit incurred by the
successful party.
31.5 The word "Tenant" shall be deemed and taken to mean each and every
person or party mentioned as a tenant herein, be the same one or more; and if there
shall be more than one tenant, each shall bejointly and severally liabl ' e hemunder, arid
any notice -required or permitted by the terms of this Lease may be given by or to any
one thereof, and shall have the same force and effect as if given by or to all thereof.
The use of the neuter singular pronoun to refer to Tenant shall be deemed a proper
reference even though Tenant may be an individual, a corporation, a corporation or a
group of two or more individuals or corporations. The necessary grammatical changes
required to make the provisions of this Lease apply in the plural sense where there is
mor than one Tenant and to either corporations, associations, part -n erships or
individuals, males or females, shall in all instances be assumed as though is each case
fully expressed.
31.6 The terms and agreements as contained in this Lease shall apply to, run
in favor of and shall be binding upon and inure to the benefit of the parties hereto, and
their respective heirs, executors, administrators, personal representatives and assigns
and successors in interest, subject at all times nevertheless to the provisions of Section
20 of this Lease.
31.7 It is understood that there are no oral agreements or representations
between the parties hereto affecting this Lease, and this Lease supersede end cancels
any and all previous negotiations, arrangements, brochures, agreements or
representations and understandings, if any between the parties hereto or displayed by
.Landlord or Tenant with respect to the subject matter thereof, and none thereof shall
be used to interpret or construe this Lease. There are no other representations or
warranties between the parties and all reliance with respect to representations is
solely upon the representations and agreements contained in this document.
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31.8 The titles of Sections herein are for convenience only and do not in any
way define, limit or construe the contents of such Sections.
31.9 It is agreed that if any provision of this Lease shall be determined to be
void by any court of competent jurisdiction, then; such determination shall not affect
any other provision ofthis Lease and all such other provisions shall remain in full force
and effect; and it is the intention of the parties hereto that if any provision of this
Lease is capable of two constructions, one of which would render the provisi Dn void and
the other of which would render the provision valid, the provision shall have the
meaning which renders it valid.
31.10 Any prevention, delay or stoppage due to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls, enemy
or hostile governmental action, civil commotion, fire or other casualty, and other causes
beyond the reasonable control of the party obligated to perform any term, covenant or
—condition of this Lease, shall excuse the performance by such party for a pr�triod equal
to any such prevention, delay or stoppage except the obligations imposed with regard
to rental and other charges to be paid by Tenant pursuant to this Lease, provided,
however, nothing contained in this paragraph or in any other section of the :Lease shall
excuse Tenant from paying the minimum monthly and annual rental payments.
31.11 Time is of the essence of this Lease and each provision hereof in which
time of performance is established.
31.12 TELECONEVIMCATIONS REGULATIONS. Tenant acknowledges and
agrees that all telephone and telecommunications services desired by Tenant shall be
ordered and utilized at the sole expense of Tenant. Landlord shall have no
responsibility for the maintenance of Tenant's telecommunications Equipment,
including wiring; nor for any wiring or other infrastructure to which Tenant's
telecommunication equipment may be connected. Tenant agrees that, to the extent
any such service is interrupted, curtailed or discontinued, Landlord shall have no
obligation or liability with respect thereto and it shall be the sole obligation of Tenant
at its expense to obtain substitute service.
Southwestern Bell provides telecommunications services to the Premises. In the
event that Tenant wishes at any time to utilize the services of a, telephone or
telecommunications provider whose equipment is not then servicing the Premises, no
such provider shall be permitted to install its lines or other equipment -within the
Premises without first securing the prior written approval of the Landlord which
approval shall not be unreasonably withheld. Landlord's approval shall not be deemed
any kind of warranty or representation by Landlord, including, without limi•.ation, any
warranty or representation as to suitability, competence, or financial strength of the
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provider. Without limitation of the foregoing, unless all of the following conditions are
satisfied to Landlord's satisfaction, it shall be reasonable for Landlord to refuse to give
its approval: (1) Landlord shall incur no expense whatsoever with respect to any aspect
of the provider's provision of its services, including without limitation, the costs of
installation, materials and services; (ii) prior to commencement of any work in or about
the Preinises-- by the provider, the provider shall supply Landlord with such written
indemnities and/or insurance as Landlord reasonably deem necessary to protect
Landlord; (iii) the provider agrees to abide by such rules and regulations, bililding and
other codes, job site rules and such other requirements as are reasonably determined
by Landlord to be necessary to protect the interests of the Premises and Landlord, in
the same or similar manner as Landlord has the right to protect itself and the
Premises with respect to proposed alterations as described in Article 16 of this Lease;
(iv) Landlord receives from the provider such compensation as is reasonably
determined by Landlord to compensate it for the out of pocket costs which may
reasonably be expected to be incurred by Landlord; (v) the provider agrees to deliver
to Landlord detailed "as built" plans promptly after the installation of the provider's
equipment is complete; and (vi) all of the foregoing matters are documented in a
written license agreement between Landlord and the provider, the form and content
of which is reasonably satisfactory to Landlord including any restoration or removal
requirements of Landlord for such equipment.
V a 21140101: - —
1 ,
For good and valuable consideration, to the extent authorized by law, Landlord
conveys to Tenant the Option to Purchase the Premises at such times as all of the
Certificates of Obligation, or refunding Bonds, have been paid in full on th,a condition
that the Premises would continue to be used for the same uses as allowed and
authorized under this Lease and for the current market value of the Premises as
reflected in the City's Financial Statement, less normal depreciation as applied in
accordance with Public Finance Officer's rules and guidelines. The Tenant shall give
the City ninety (90) days written notice of its intention to exercise this Option, which
transaction shall be consummated within the ninety (90) day period at a Title
Company of the City's choice. The City shall convey the Premises to the Tenant by the
execution of a Special Warranty Deed. All closing costs are to be borne by the Tenant.
RVI
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'N WITNESS WHEREOF, the Parties hereto have executed this LBase on the
date and at the place indicated below.
t.
STATE OF TEXAS
COUNTY OF TARP -ANT
§
Ignowl Iq KIM- •
CITY OF GRAPEVINE, TEXAS
M
Name:
Title:
TENANT
William D. Tate
Mayor
By:
Name: Melva Stanfield
Title: President
BEFORE ME, the undersigned authority, a Notary Public in and for said County
and State, on this day personally appeared WILLIAM D. TATE, MAYOR OF THE
CITY OF GRAPEVINE, TEXAS, Imown to me or proved to me on the oath of
orthrough (description ofidentity card
or other document) to be the person whose name is subscribed to the foregoing
25
Jul -11-01 12: copm From -Boyle & Lowry 0726507105 T-180 P-055/056 F-431
instrument and acknowledged to me that he executed the same for the pi-xposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of
_P 2001.
NOTARY OF PUBLIC in and for the State
of Texas
STATE OF TEXAS §
COUNTY OF TARPLANT §
BEFORE ME, the undersigned authority, a Notary Public in and for said County
and State, on this day personally appeared MELVA STANFIELD, PRESIDENT Or,
GRAPEVINEi HERITAGE FOUNDATION, known to me or proved to me on the oath
of -- or through (description of identity
card or other document) to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that she executed the same for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of
.200. '
NOTARY OF PUBLIC in and for the State
of Texas
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972650?105
Jul -11-01 12:00pm From -Boyle & Lowry
9726507105 T-180 P-056/056 F-431
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or t t *n rt, c -I I,1L 13 In,$
_h"' We'" POI-Li011 of Lot: '5i.n root
1,-,, Olt
acc ording ICIVAL TOW14 Ol' rlt,tI,I:VTNE,
to t1l" Pl-It thl-roor,
recordtid in Vol- 309, 72, plat
Records, TArrAnL County, Tox.j=, a
together with
land 15-0 rc0t in Ccrt4in
.1 tract or
,
widthadjoining and jjbuttinc7
wc=t; said rrop4�,rty boing n-sid 10tt on the
metes more fully dozcrjbtd
in its cnti.rety-by
and bounds .1= rallowc;
BEINC a part of the William Dooley Survey, Ab. -tract N..,*. 422,
Situated in Tarrant County
Texas,
North Z*mc being further knowr. as the
lot as sct aside to Love
Xy A. Yates, as
in the partition of the j. K. her separate r-roperty
251, BQCkner rztate
Page
as recorded in Book
278 thru 289 Of the Probate Minutes of Tarrant county,
Texas, pursuant to judgment as
rendered under Case 115162, Probate
Courts, Tarrant County, Texas, and being
metes
more fully described by
and bounds as follows;
B&GrNNING at the Southwest corner of Lot 12, Block 1.
Of Grapevine according Of the Town
to the
Plat thereof recorded in Vol. 309,
Page 72, Plat Records, Tarrant County, Texas,
the Southwest,corner after the
and as established as
wi
fixed by survey prepared by Brooks Baker
of
as set forth by Statement
record in Vol. 1867, Pages 536
'
Tarrant County, Texas; C)and S97 of the Qed peCordG'
THENCE West along the South line Of OfOrCreferemeed Lot 12
Passing the inside
or a wall and
an Iron pipe set at for 0 total distance of 309.0 feet to
the Northwest corner Of
Che herein dcl;cribed
THENCE South for a distanceof 46.9
THENCE East for a distance feet to a Point for Corner;
same being located of 109.0 feet to a DOint for Corrier,
in the West; line Of Main
East 'line 'Cif 'Block
3., Strcei and the accepte d
THr.WCE North along the Said West line Of Main Street
line of Block
and
I for a distance of 46.9 the Zest
feet to the PU�CE
OF
TRACT 7.' All that Certain lot, tract Or parcel of land lying and
being situated in Tarrant County, Texas,
roll* -s: and being described as
The West 94 feet Of Lots 11 and 12, and a strip
adjacent to the West lines 15 feet wide lying
said
r%RIGINAL TOWN, of Lots 11 and 12. Bieck 1,
OF GRAPEVINE, an addition to the
Tarranty
County,
or c
citrape.i.,
Texas, according to the Plat recorded
309, Pages 71 and
in Volum
72, Plat Records, Tarrant
County,
M
9726507105
Jul -10-01 02;02pm From -Boyle & Lowry 9726507105
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF GRAPEVINE §
Date: 12001
T-173 P-002/003 F-413
4,
Grantor: Grapevine Heritage Foundation, a Texas Non -Profit Corporation
Grantor's Mailing Address (including county):
P.O. Box 951.04, Grapevine, Tarrant County, Texas 76099
Grantee: City of Grapevine, Texas, a Home Rule City
Grantee's Mailing Address (including county):
200 S. Main Street, Grapevine, Tarrant County, Texas 76051
Consideration: $4,500,000-00, the receipt and sufficiency of which is hereby
acknowledged.
Property (including improvements):
See Exhibit W attached hereto and incorporated herein fully by
reference, -he Property".
M -M I
r � 11; 1 pip
. ron-2
This conveyance is made and accepted subject to the following matters,
to the extent same are in effect at this time: Any and all restnetions
covenants, conditions and easements, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown
of record in the hereinabove mentioned County and State, and to all
zoning laws, regulations and ordinances of municipal and/or other
govern -mental authorities, if any, but only to the extent they are still in
effect, relating to the hereinabove described Property.
Current ad valorem taxes on said Property, if any, shall be prorated.
Jul -10-01 02:02pm From -Boyle & Lowry 9726507105 T-173 P. 003/003 F-413
Grantor, for the consideration and subject to the reservations from and
exceptions to conveyance and warranty, grants, sells and conveys to
Grantee the Property, together with all and singular the rights and
appurtenances thereto in any wise belonging, to have and hold it to
Grantee, Grantee's heirs, executors, administrators, successors, or
assigns forever. Grantor hereby binds Grantor and Grantor's heirs,
executors, administrators, and successors to warrant and forever defend
all and singular the Property to Grantee and Grantee's heirs, executors,
administrators, successors, and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof,
by, through or under Grantor, but not otherwise.
GRAPEVINE HERITAGE FOUNDATION
Melva Stanfield, President
STATE OF'TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me on the day of
, 2001, by MBLVA STANFIELD, President.
NOTARY PLTBLIC, State of Texas
D: \ Grapeviae \gv-palace theatre \gv-palaer warr=ty deed gv herit found & city of gv_wpd
9726507105
Jul -10-01 01:34pm From -Boyle & Lowry 9726507105 T-172 P.004/008 F-411
f� sem,-�r+r-
'.'tom,:.
_ - ;ice•._
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moi.:' �. •
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I'f?ACT_i_: E:f:TF1G t.h•• Sco:a i„>it.io:, of fat I'J and tI1'. t:•')rtlt 21.n feet
==
of Lite WC'_. portion tit Lot 1 ., 131oCY, I, ORIGIt7Af. TOWN OF CHA1't:VINF,
Y
according to th._ pd.,t thnr„of, recorded in vol _ -109, 11agc 72, plat
®
Record:, Tarrant County, Texas, togethor with certain tract of
-- -.
land 15.0 feet in width, adjoining and abutting nmid lots on the
Nett; said proparty ix,iing more fully dcoersbed in its entirety by
oil
vete: and bounds as follows:
BEING a part of the William Dooley Survey, Abstract No- 422,
••/
situated in Tarrant County Texas, same being further known as the
North lot as act lsidc to Lovey A. Yates, as her separate property
'
':8
in the partition of the J. K. Buckner Estate as recorde9 in Boole
251, Page 278 thru 289 of the probate Minutes of Tarrant county,
Texas, pursuant to judgment as rendered under case f15167, Probate
Courts, Tarrant County, Texas, and being more fully described by
metes and bounds as follows:
BEGINNING at the Southwest Corner of Lot 12, Block 1, of the Town
of Grapevine according to the plat thereof recorded in vol. 309,
Page 72, Plat Records, Tarrant County, Teras, and as estat,lished as
the Southwest corner after the widening of Main 5trect, pane being
fixed by survey prepared by Brooks Balser as set forth by Statement
of record in vol. 18G7, Pages 586 and 587 of the Dead Records,
`i
Tarrant County, Texas;
THENCE West along the South line of aforereferenced Lot 12 and
E[
passing the inside of a wall for a total distance of 109.0 feet to
an iron pipe set at the Northvest corner of the herein described
tract;
+:
THENC_ South for a distance of 46.9 feet to a point for corner;
THENCE East for a distance of 109_0 feet to a point for corner,
�l
same being located in tho West line of Main Street and the accepted
East line of Block 1;
THENCE North along the said West line Of Main Street and the East
line of Block 1 for a distance of 46.9 feet to the PLACE Of
BEGINNING.
T&W'f_2- All that certain lot, tract or parcel of land lying and
—
being situated in Tarrant County, Texas, and being described as
rjl
follows:
The west 94 feet of Lots 11 and 12, and a strip 15 feet wide lying
adjacent to the West lines of said Lots 11 and 12, Block 1,
^RIGINAL TOW;7 OF GRAPEVINE, an addition to the City of Grapevine,
Tarrant County, Toxas, according to the plat recorded in Volume
i..
709, Pages 71 and 72, Plat Records, Tarrant County, TCX1S.
ILI