HomeMy WebLinkAboutResolution - 2007-R0067 - Assign Lease - Trancas Capital LLC, CNL Income FEC Lubbock LLC - 02/22/2007Resolution No 2007-R0067
February 22, 2007
Item No. 5.7
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LU3BOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock an Assignment and Assumption of
Lease and Consent to Assignment, Sub -Lease and Sub -Sublease by and between the City
of Lubbock, Trancas Capital, LLC (Assignor) and CNL Income FEC Lubbock, LLC
(Assignee) for the property located at 5110 291h Drive, Lubbock, Texas, which
Assignment and any associated documents shall be spread upon the minutes of this
Council and as spread upon the minutes of this Council shall constitute and be a part
hereof as if fully copied herein in detail.
Passed by the City Council this 22nd day of February , 2007.
l s
DAVID A. 4ILLER, MAYOR
lll
ATTEST:
Reb cca Garza, City Secretary
APPROVED AS TO CONTENT:
Z2�
Dave Booher, Right -of -Way Agent
APPROVED AS T7RM:
Don Vandiver, Attorney o`I"Counsel
DDres/LeaseAss ignmentTrancasCN I -Res
February 12,2007
Resolution No. 2007-R0067
ASSIGNMENT AND ASSUMPTION OF LEASE
AND CONSENT TO ASSIGNMENT, SUBLEASE AND SUS -SUBLEASE
This Assignment and Assumption of Lease and Consent to Assignment, Sublease and
Sub -Sublease (this "Assignment"), dated as of February 22, 2007 (the "Effective Date"), is
entered into by and among the CITY OF LUBBOCK, a Texas municipal corporation (the
"City"), TRANCAS CAPITAL, LLC, a Delaware limited liability company (the "Assignor")
and CNL INCOME FEC LUBBOCK, LLC, a Delaware limited liability company (the
"Assignee").
RECITALS
WHEREAS, the City and Assignor entered into that certain Ground Lease dated March 1,
2005 (the "Ground Lease") related to that certain real property described in the Ground Lease
(the "Property"),- and
WHEREAS, Assignor now desires to assign to Assignee all of its right, title and interest
in and to the Ground Lease, and Assignee desires to assume each and all of the obligations of the
"Tenant" to be performed under the Ground Lease following the Effective Date hereof; and
WHEREAS, Assignee shall, as of the Effective Date hereof, enter into that certain
Sublease Agreement by and between Assignee and Zuma Holdings, LLC, a Delaware limited
liability and an affiliate of Assignor ("Zuma") (the "Sublease"), whereby Assignee shall sublease
all of its right, title, interest in and to the Ground Lease to Zuma; and
WHEREAS, Subtenant shall sublease its interest under the Sublease to P2 Investments,
LLC ('PT'), pursuant to that certain Commercial Ground Lease by and between Assignor and
P2, dated as of March 1, 2005, as amended by that certain Amendment Number One, dated June
13, 2005, and as further amended by that certain Amendment Number Two, dated as of the
Effective Date hereof (referred to herein as the "Sub -Sublease"); and
WHEREAS, the Ground Lease provides that the City must consent to this Assignment,
the Sublease and the Sub -Sublease, and the City has agreed to provide such consent, subject to
the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
I. Assignment and Assumption of the Ground Lease. Assignor hereby assigns all of
Assignor's right, title, and interest in and to, and delegates all of Assignor's duties, obligations,
and responsibilities as "Tenant" under, the Ground Lease to Assignee as of the Effective Date
hereof. Assignee hereby accepts all of Assignor's right, title and interest in and to and assumes
all of the duties, obligations, and responsibilities of Assignor under the Ground Lease following
the Effective Date hereof, and agrees to be bound by all of the terms and conditions of the
Ground Lease as if Assignee were the original "Tenant" thereunder.
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2. Indemnifications. Assignor, on behalf of itself and its affiliates, as well as its and
their respective successors and assigns, hereby agrees to indemnify and hold Assignee, its
affiliates, and its and their respective managers, directors, officers, employees and agents,
harmless from and against any and all claims, actions, proceedings, losses, liabilities, costs,
damages and expenses (including, but not limited to, reasonable attorneys' fees and
disbursements and court costs) suffered or incurred by Assignee, or any of its affiliates, and its
and their respective managers, directors, officers, employees and agents, in connection with, or
arising out of or under the Ground Lease, or resulting from the failure of Assignor, or its
affiliates, to perform or fulfill, any duty, obligation or responsibility under the Ground Lease
accruing prior to the Effective Date. On and after that date upon which Assignor, or any
"Affiliated Person" (as such term is defined in the Sublease) is no longer the owner or holder of a
leasehold interest or estate in and to the Property, or otherwise has any right or claim of right of
occupancy or possession in and to the Property, Assignee, on behalf of itself and its affiliates, as
well as its and their respective successors and assigns, hereby agrees to indemnify and hold
Assignor, its affiliates, and its and their respective managers, directors, officers, employees and
agents, harmless from and against any and all claims, actions, proceedings, losses, liabilities,
costs, damages and expenses (including, but not limited to, reasonable attorneys' fees and
disbursements and court costs) suffered or incurred by Assignor, or any of its affiliates, and its
and their respective managers, directors, officers, employees and agents, in connection with, or
arising out of or under the Ground Lease, or resulting from the failure of Assignee, or its
affiliates, to perform or fulfill, any duty, obligation or responsibility under the Ground Lease;
provided, however, the foregoing indemnification shall not apply to any claims, actions,
proceedings, losses, liabilities, costs, damages and expenses (including, but not limited to,
reasonable attorneys' fees and disbursements and court costs) which are caused by, based upon
or related to, directly or indirectly, any action or inaction of Assignor or any Affiliated Person.
3. Consent to Assignment, Sublease and Sub -Sublease. The City hereby consents to
(i) the assignment by Assignor to Assignee of all of Assignor's right, title, interest, duties,
obligations, and responsibilities in and under the Ground Lease, (ii) the Sublease to be entered
into between Assignee and Zuma, whereby Assignee shall sublease all of its right, title, interest
in and to the Ground Lease to Zuma, and (iii) the Sub -Sublease to be entered into between Zuma
and P2, whereby P2 shall continue to occupy and operate the Property.
4. Representations and Warranties of City. The City represents and warrants to
Assignee that (a) the Ground Lease is valid, in full force and effect, has not been assigned,
modified, supplemented or amended in any way except as described herein, and represents the
entire agreement between the City and Assignor; (b) all rentals, fees or other monetary
obligations of Assignor have been paid in full through , , 2007, no rentals, fees or other
monetary obligations of the Assignor are past due, aitdf no security deposit is being held by the
City in connection with the Ground Lease; (c) the City has not delivered, nor has the City
received any notices of default under the Ground Lease, and, to the City's actual knowledge,
there is no default by Assignor or the City under the Ground Lease, nor has any event or
omission occurred which, with the giving of notice or the lapse of time, or both, would constitute
a default thereunder; (d) any improvements required by the terms of the Ground Lease to be
made by Assignor thereunder have been completed to the satisfaction of the City, and P2's
current use and operation of the Property complies with any use covenants or operating
requirements contained in the Ground Lease; (e) there are no pending eminent domain
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proceedings or other governmental actions or any judicial actions of any kind against the
Property; (f) the City has not provided any written notice to Assignor that the Property is in
violation of any governmental law or regulation applicable to Assignor's interest in the Property
or its operation, including, without limitation, any environmental laws and regulations, and the
City has no reason to believe that there are grounds for any claim of any such violation; and (g)
the City, and the person or persons executing this Assignment on behalf of the City, have the
power and authority to execute the same.
5. Representations and Warranties of Assignor. Assignor represents and warrants to
Assignee that (a) Assignor is the lawful owner and holder of all the rights, title and interest of
Assignor in, to and under the Ground Lease, and Assignor warrants such rights, title and interests
to Assignee against all adverse claims; (b) Assignor has the full power and authority to transfer
and convey all of its right, title and interest in, to and under the Ground Lease and all security
deposits, if any; (c) such rights, title and interest are free from all liens, security interests and
other encumbrances of any kind or nature; and (d) the Ground Lease is in full force and effect
and, to Assignor's actual knowledge, no default (nor any event which, with notice or lapse of
time, or both, could cause a default) has occurred under the Ground Lease,
6. Successors and Assigns. This Assignment shall be binding on and inure to the
benefit of the parties hereto, their heirs, executors, administrators, successors in interest and
assigns.
7. Attorneys' Fees. If any dispute should arise between the parties hereto regarding
the terms or subject matter of this Assignment or the enforcement or breach of such terms, then
the party prevailing in such dispute, whether by out -of -court settlement or final judicial
determination, shall be entitled to recover from the non -prevailing party all costs and expenses of
such dispute incurred by such prevailing party, including, without limitation, reasonable
attorneys' fees.
8. Governing Law. This Assignment shall be deemed to be an agreement made
under the laws of the State of Texas and for all purposes shall be governed by and construed in
accordance with such laws.
9. Miscellaneous. This Assignment may be executed in one or more counterparts,
all counterparts shall be valid and binding on the party executing them and all counterparts shall
together constitute one and the same document for all purposes. This Assignment may be
executed and delivered by facsimile signature for execution on the part of one or more parties
hereto.
[SIGNATURE PAGE FOLLOWS]
09146251125656\985742\4
LA i995782.4 -3 -
WITNESS THE EXECUTION OF THIS INSTRUMENT this S clay of
�, zt — , 2007.
CITY OF LUBBO
DAVID A. MILLER, MAYOR
ATTEST:
Re ca Garza, City Secretary
APPROVED AS TO CONTENT:
Dave Booher, Right -Of -Way Agent
APPROVE TO FORM:
A
i�
on V fiver, Attey of Counsel
"ASSIGNOR"
TRANCAS CAPITAL, LLC, a Delaware
limited liability company
By: TRANCAS MANAGEMENT GROUP,
LLC, a Delaware limited liability company,
Mar. �ar
By:
Nan
Title
Date
"ASSIGNEE"
CNL. INCOME FEC LUBBOCK, LLC, a
Delawft limited liability company
By:
NaI11
Title L U -,?re S; d ev 'r-
Date:y c io ru a r-,
0914625\125656198574214
LA 1995782.4 -4-
STATE OF TEXAS
COUNTY OF "b o c L
4ol
This instrument was acknowledged before me on theg1Z day of �U k , 2007,
by Q,y # A L ter— , as Q.V Q r of the City of L bbock, a
Texas municipal entity, on behalf of the City.
VVE
CELlANotary Pu lic in and for the State of Texas
W"Public, :MBB]
e at ��� a
03 -6 1-7,.e 1 o Printed Name
STATE OF Mn�
COUNTY OF dMVW-Q )
This instrument was acknowledged before me on the S day of 'Vt , J at- , 2007,
by lb ", as " of Trancas Man agement
Group, LLO a DelA ware limited liability com zany, as Manager of Trancas Capital, LLC, a
Delaware limited liability company, on behalf of said e1tities. ,
My Commission Expires: 6 r 3 _0 9
STATE OF Vl ; A
COUNTY OF Of a
N&a6 Public in for the State of
iJ r& 4�
Printed Name
won #Alit - Corarw
0.
This instrument was acknowledged before me on the (— day of 1141ty q , 2007,
by r,nn,ut • bj*P,n a r� , as&quL;%q V;cA Prosi&a. 4- of CNL Income FEC
Lubbock, LLC, a Delaware limited liability company, on behalf of said entity.
Notary 4ublic in and for the State of V loride
My Commission Expires: :5 elk a -"Z. f\ . n` �.� 5
Printed Name
` Sandra I. Quinones
Commission # DD335095
Expires July 8, 2008
bbMW T1w Fan • hMuraRC�, k1C d0a70�T011
0914625\1256561985742%
LA /995782.4 —5—
I rc -aTATE OF TEXAS
COUNTY OF LUBBQCK
Before me Alen C. AN ORDINANCNci u1wINANCE CVO.7084
wWIMS a Notary Public in and fo �ANO THE OFFICIAL MAP OF THE Cm OF LUBBOCK MAKING THE
FOLLOWING CHANGES. ZONE CASE No. 30E8: A ZONING CHANGE
FROM T TO R-1 SIPECIPIC USE OR EN HIDMES ON 1.12
day personally appeared Krista ROMMez of tI ACRES OF P T NTED LAND OUT OF SECT ION 17, BLOCK E•2,
LUBBOCK, TEXAS: PROVIDING PENALTY, PROVIDING A SAVINGS
LAUSECorporation, publishers of the Lubbock Avalanche-Joumal - Morning, and Sund C SECTION 3. ROVIDING THAT vlotationRoi aanny prov$eiiPICATIOon of this Ordinatwe shall
be deemed a misdemeanor punishable by fine not to exceed Two
Thousand and Noll o0 Doliarq (32,OW 00 as Provided inSection 29-3711
did dispose and say that said newspaper has run continuously for more than f ofjhoToningOrd%n"_ ftheCiNQ1L�p
insertion of this Legal Notice
No. at Lubbock County, Texas and the attached
printed copy of the Legal Notice is a true copy of the original and was printed in the Lubbock
Avalanche-Joumal on the following dates: �( i
NOTARY PUBLIC in and for the State of Texas
Inside Sales Manager my commission Expires &7=1
LUBBOCK AVALANCHE -JOURNAL
Morris Communication Corporation
Subscribed and sworn to before me this day of
FORM 58-10 �' `"
ar►y AU1N C WEE
,r�,+`. "= Notary Public. State ai Texas
My Cammieuon Eftpires
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