Contract - KR CC, Inc - Ground Lease Agreement - 12/15/2016 GROUND LEASE AGREEMENT
between
CITY OF ROUND ROCK, TEXAS
and
KR CC, INC.
Dated as of December 20, 2016
RESORT AND CONVENTION CENTER
ROUND ROCK, TEXAS
00367521.DOCX
JK_Znlb l 5
TABLE OF CONTENTS
Page
1. Definitions..........................................................................................................................2
2. Lease and Grant of Use; Term ........................................................................................7
2.1 Lease and Grant of Use......................................................................................... 7
2.2 Term........................................................................................................................ 8
3. Intangible Rights...............................................................................................................8
3.1 Tenant's Righis...................................................................................................... 8
4. Rent and Other Payments................................................................................................9
4.1 Rent.............................................:........................................................................... 9
4.2 Utilities.................................................................................................................... 9
4.3 Maintenance and Repairs...................................................................................... 9
5. Taxes; Operations; Capital Repairs; Recordkeeping....................................................9
5.1 Tenant's Sole Cost................................................................................................. 9
5.2 Tax Matters............................................................................................................ 9
5.3 Operations and Management of the Leased Premises....................................... 10
6. Assignment and Subletting............................................................................................. 11
6.1 Covenant Regarding Assignment and Subletting...............................................11
6.2 Covenant Regarding Encumbrances...................................................................11
6.3 Tenant's Right to Lease....................................................................................... 11
6.4 Assignment of Purchase Option.......................................................................... 11
6.5 City Encumbrances or Fee Mortgages................................................................ 11
7. Insurance......................................................................................................................... 11
7.1 Required Insurance.............................................................................................. 11
8. Damage or Destruction; Condemnation....................................................................... 12
8.1 Damage;Destruction........................................................................................... 12
8.2 Insurance Proceeds..............................................................................................12
8.3 Condemnation......................................................................................................12
8.4 Survival.................................................................................................................13
9. Representations and Warranties................................................................................... 13
9.1 Representations and Warranties......................................................................... 13
9.2 "As Is",,-No Representations or Warranties.......................................................14
9.3 Mutual Covenants................................................................................................ 14
10. Default and Remedies..................................................................................................... 14
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10.1 Default.................................................................................................................. 14
10.2 Remedies............................................................................................................... 14
10.3 Immunity.............................................................................................................. 15
11. Title; Surrender.............................................................................................................. 15
11.1 Title....................................................................................................................... 15
11.2 Surrender.............................................................................................................. 16
12. Indemnification............................................................................................................... 16
12.1 Tenant................................................................................................................... 16
13. Covenant of Quiet Enjoyment.......................................................................................16
14. Estoppel Certificate; Memorandum of Agreement.....................................................16
14.1 Estoppel Certificate.............................................................................................. 16
14.2 Memorandum of Agreement................................................................................ 17
15. Leasehold Mortgages...................................................................................................... 17
15.1 Right to Obtain Leasehold Mortgages................................................................ 17
15.2 Effect of a Leasehold Mortgage.......................................................................... 18
15.3 Foreclosure; Further Assignment.......................................................:............... 18
15.4 Notice ofLeaseh old Mortgages........................................................................... 19
15.5 Modifications Required by Leasehold Mortgagee.............................................. 19
15.6 Further Assurances.............................................................................................. 19
15.7 Protection of Leasehold Mortgagees................................................................... 19
15.8 First Leasehold Mortgagee's Right to a New Agreement.................................. 22
15.9 Priority of Leasehold Mortgages......................................................................... 24
15.10 Liability of Leasehold Mortgagee........................................................................ 24
15.11 Casualty and Condemnation Proceeds................................................................ 25
15.12 Mezzanine Lenders as Leasehold Mortgagees.................................................... 25
15.13 Rights of City........................................................................................................26
16. Purchase Option..............................................................................................................26
16.1 Purchase Option...................................................................................................26
16.2 Exercise................................................................................................................ 26
16.3 Option Purchase Price......................................................................................... 26
16.4 Closing..................................................................................................................26
16.5 SurvivallForfeiture...............................................................................................27
17. Miscellaneous...................................................................................................................27
17.1 Notices.................................................................................................................. 27
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17.2 Force Majeure......................................................................................................28
17.3 Severability...........................................................................................................28
17.4 Time of the Essence.............................................................................................28
17.5 Binding Effect;Amendments..............................................................................28
17.6 Waiver...................................................................................................................29
17.7 Interpretation.......................................................................................................29
17.8 Entire Agreement.................................................................................................29
17.9 No Joint Venture..................................................................................................29
17.10 No Third-Party Beneficiaries..............................................................................29
17.11 Attorneys'Fees.....................................................................................................29
17.12 Counte►parts......................................................................................................... 29
17.13 Applicable Law.....................................................................................................30
17.14 Interest..................................................................................................................30
17.15 Paragraph Headings............................................................................................30
17.16 Survival.................................................................................................................30
17.17 Hazardous Materials............................................................................................30
LIST OF EXHIBITS
EXHIBIT A-1 Property
EXHIBIT A-2 Leased Premises
EXHIBIT B Deferred Rent Security
EXHIBIT C Program Resolution
EXHIBIT D Authorizing Resolution
EXHIBIT E Form of Assignment and Assumption Agreement and Lease-Back
Agreement
EXHIBIT F Form of Memorandum of Lease and Purchase Option
EXHIBIT G Krienke Tract Description
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GROUND LEASE AGREEMENT
This GROUND LEASE AGREEMENT (this "Agreement") is made and entered into as
of December 20, 2016 (the "Effective Date"), between CITY OF ROUND ROCK, TEXAS, a
home rule city and municipal corporation (the "City"), and KR CC, INC., a Delaware
corporation ("Tenant"). The City and Tenant are sometimes referred to in this Agreement as the
"Parties"and each as a"Party". .
RECITALS
WHEREAS, the City has adopted Resolution No. , attached as
Exhibit C ("Program Resolution"), establishing an economic development program and
Resolution No. , attached hereto as Exhibit D (the "Authorizing
Resolution"), authorizing the Mayor to enter into this Agreement and an Economic
Development Program Agreement (the `Economic Development Program Agreement'
with Tenant and its affiliate, KR Acquisitions LLC ("Developer"), in recognition of the positive
economic benefits to the City through development by the Developer of approximately 351.7
acres of land, as more particularly described on the attached Exhibit A-1 ("Property") as a
master planned mixed use development (the "Project") anchored by a Kalahari Resort and
Convention Center, (the "Resort") (the Program Resolution and the Authorizing Resolution
being collectively referred to herein as the "City Resolutions"); and
WHEREAS, as part of the economic development program established in the Program
Resolution, the City agrees to assist Tenant in the purchase of the Property and financing of the
Project by entering into this Agreement; and
WHEREAS, concurrently with the Parties' execution of this Agreement, the Parties with
the Developer and the Round Rock Transportation and Economic Development Corporation, a
"Type B corporation" created under the authority of Chapter 501, Texas Local Government
Code, are entering into the Economic Development Program Agreement and the Master
Development Agreement (the "Master Development Agreement"), pursuant to which
Developer will construct the Project to be located on the Property.
WHEREAS, the Parties desire to enter into this Agreement, pursuant to which (i)the
City leases to Tenant, and Tenant leases from the City, the Leased Premises during the Term(as
defined below) and (ii) Tenant has the option to purchase the Leased Premises from the City at
the end of the Term, in each case on the terms and conditions set forth in this Agreement.
WHEREAS, the Parties acknowledge and agree that the Rent paid hereunder constitutes
fair market value for the Property and the Leased Premises.
AGREEMENT
NOW THEREFORE, in consideration of their mutual promises herein contained, and for
other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged,the Parties, each intending to be legally bound, do hereby agree as follows:
1. Definitions. As used in this Agreement, capitalized terms shall have the meanings
indicated below unless a different meaning is expressed herein.
"Affiliate" of a specified Person means a Person who is directly or indirectly controlling,
controlled by, or under common control with, the specified Person, where "control"
means the possession, directly or indirectly, of the power to direct the management and
policies of the specified Person whether through the ownership of voting securities, by
contract or otherwise.
"Agreement"means this Ground Lease Agreement.
"Applicable Law" means any law, statute, ordinance, rule, regulation, order,
determination or requirement of any Governmental Authority, including all
Environmental Laws.
"Assignment" means any sale, transfer, assignment, pledge, mortgage, encumbrance or
any other transfer, including transfers as security for obligations, of this Agreement or a
Party's rights or obligations under this Agreement.
"Bankruptcy Proceeding" means any bankruptcy, insolvency, reorganization,
composition or similar proceeding under the United States Bankruptcy Code or any
similar state or federal statute for the relief of debtors.
"Business Day" means any day other than a Saturday, Sunday or other day on which
commercial banks in Austin, Texas are authorized or required by Applicable Law to
close. The use of the word"day," instead of"Business Day,"means a calendar day.
"City"means the City of Round Rock, Texas.
"Condemnation Action" means a taking by any Governmental Authority (or other
Person with power of eminent domain)by exercise of any right of eminent domain.
"Condemnation Award" means all sums, amounts or other compensation for the
Improvements and Leased Premises payable to the City or Tenant, as applicable, as a
result of, or in connection with, any Condemnation Action.
"Default Rate" means an annual interest rate equal to the Interest Rate plus two percent
(2%).
"Deferred Rent Security" means the 156.769 acre portion of the Leased Premises
known as the "Krienke parcel" and that 14.4 acre portion of the Leased Premises.on the
west side of Kenney Fort known as part of the 'Bison parcel" all as described on Exhibit
B and valued at $12,800,000 which property may be excluded from this Agreement and
sold if Tenant fails to timely make the Deferred Rent payment.
"Developer"means KR Acquisitions.
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"Economic Development Program Agreement" means that certain Economic
Development Program Agreement between the Parties and the Developer dated
December 15,2016.
"Effective Date"is defined in the introductory paragraph of this Agreement.
"Enforcement Action" means, with respect to any Leasehold Mortgage and Leasehold
Mortgagee, the occurrence of any of the following events: (A) any judicial or
non judicial foreclosure proceeding, the exercise of any power of sale, the taking of a
deed or assignment in lieu of foreclosure, the appointment of a receiver, or the taking of
any other enforcement action against the Leasehold Estate or any portion thereof or
Tenant, including the taking of possession or control of the Leasehold Estate or any
portion thereof, (B) any acceleration of, or demand or action taken in order to collect, all
or any indebtedness secured by all or any portion of the Leasehold Estate (other than
giving of notices of default and statements of overdue amounts), (C) any exercise of any
right or remedy available to Leasehold Mortgagee under any and all loan documents
evidencing the debt secured by the Leasehold Estate (collectively, the "Leasehold Loan
Documents"), at law, in equity, or otherwise with respect to Tenant or any portion of the
Leasehold Estate, other than the giving of notices of default and statements of overdue
amounts or (D) any active negotiation (including the exchange of written correspondence
regarding the same and the scheduling and subsequent attending of negotiations, whether
in person or via telephone) between Tenant and Leasehold Mortgagee with respect to a
workout following any default by Tenant under the terms and conditions of the Leasehold
Loan Documents; provided, however, that any Enforcement Action shall be deemed to
continue for a period of 120 days following final non-appealable judgment of a court of
competent jurisdiction or cessation of any of the events or activities identified in
subclauses (A)through (D) above.
"Environmental Law" means any Applicable Law, including requirements under
permits, licenses, consents and approvals of any Governmental Agency, relating to
pollution or protection of human health or the environment, including those that relate to
emissions, discharges, releases or threatened releases, or the generation, manufacturing,
processing, distribution, use, treatment, storage, disposal, transport, or handling of
Hazardous Materials.
"Expiration Date" means 11:59 p.m. on the day prior to the ninety-ninth (99`t')
anniversary of the Effective Date.
"Fee Estate"means the City's fee title interest in the Property.
"First Leasehold Mortgagee" means the holder of the Leasehold Mortgage constituting
a first lien on the Leasehold Estate.
"Force Majeure Event" is defined in Section 17.2.
"Foreclosure Event" means a foreclosure, trustee's sale, deed, transfer, assignment or
other conveyance in lieu of foreclosure, or other similar exercise of rights or remedies
under any Leasehold Mortgage, including the occurrence of any transfer of title to the
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mortgaged estate by operation of or pursuant to any Bankruptcy Proceeding, in each case
whether the transferee is a Leasehold Mortgagee, a party claiming through a Leasehold
Mortgagee or a third party.
"Governmental Authority" means any federal, state or local governmental entity,
political subdivision, agency, department, commission, board, bureau, administrative or
regulatory body or other instrumentality having jurisdiction over the Project,
Improvements, Leased Premises, or the Parties.
"Hazardous Materials"means those materials that are regulated by, or form the basis of
liability under, any Environmental Law, including, but not limited to, polychlorinated
biphenyls (PCBs), petroleum (including oil, motor oil and gasoline), natural gas (and
synthetic gas usable for fuel), asbestos and asbestos containing materials (ACMs),
underground storage tanks (USTs), above-ground storage tanks (ASTs), as well as
substances, materials or conditions now or in the future defined as "hazardous
substances", "pollutants" or "contaminants" in the Comprehensive Environmental
Response Compensation and Liability Act (42 U.S.C. Section 9601, et seq.), those
substances, materials or conditions now or in the future defined as "hazardous waste" in
any applicable Environmental Law and any other substance, material or condition that is
now or in the future considered hazardous or otherwise subject to any statutory or
regulatory requirement governing handling, disposal and/or clean up.
"Improvements" means all improvements, structures, buildings and fixtures of any kind
whatsoever, other than trade fixtures which constitute personal property, whether above
or below grade, including buildings, the foundations and footings thereof, utility
installations, storage, loading facilities, walkways, driveways, landscaping, signs, site
lighting, site grading and earth movement, and all fixtures, plants, apparatus, appliances,
furnaces, boilers, machinery, engines, motors, compressors, dynamos, elevators, fittings,
piping, connections, conduits, ducts and equipment of every kind and description now or
hereafter affixed or attached to any of such buildings, structures or improvements and
used or procured for use in connection with the heating, cooling, lighting, plumbing,
ventilating, air conditioning, refrigeration, or general operation of any of such buildings,
structures or improvements, and any exterior additions, changes or alterations thereto or
replacements or substitutions therefor.
"Initial Rent Payment" means an amount of money equal to the purchase price of the
Property plus all of the purchaser's closing costs, less the Krienke Tract Purchase Price,
which is equal to $10,592,029.01. The Initial Rent Payment may be made in more than
one installment to coincide with the closings of the purchase of the separate tracts of land
included in the Property. The final total Initial Rent Payment will be determined at the
closing of the Boyles Tract but Parties estimate that the total Initial Rent Payment will be
$17,911,473.88.
"Intangible Rights"is defined in Section 3.1.
"Interest Rate" means the one-month LIBOR Rate quoted by U.S. Bank National
Association from Reuters Screen LIBOR01 Page or any successor thereto, plus one
4
percent (1%). All interest to be paid pursuant to this Agreement shall be compounded
annually.
"KR Acquisitions" means KR Acquisitions LLC, a Delaware limited liability company
and an affiliate of Tenant.
"Krienke Tract" means the tract of land described in Exhibit G .
"Krienke Tract Purchase Price" means the contract purchase price plus closing costs
paid by the purchaser at the closing of the Krienke Tract, which is$10,592,029.01.
"Lease Impairment" means any (A) cancellation, amendment, modification, rejection
surrender (whether voluntary or otherwise) or termination of this Agreement, including
upon a casualty or condemnation affecting the Improvements or the Leased Premises,
(B) consent, or affirmative acquiescence, by Tenant to a sale of any property, or interest
in any property, under 11 U.S.C. § 363 or otherwise in any Bankruptcy Proceeding by the
City, (C) exercise of any right of Tenant to treat this Agreement as terminated under
11 U.S.C. § 365(h)(1)(A)(i) or any comparable provision of law or (D) subordination of
this Agreement or the Leasehold Estate to any other estate or interest in the
Improvements or the Leased Premises.
"Leased Premises" shall mean that portion of the Property as identified on Exhibit A-2
(excluding the Fee Estate), together with (a) all air rights and air space above the
Property; (b) all mineral and water rights; and (c) all of City's right, title and interest, if
any, in and to all rights, privileges and easements appurtenant to the Property now
existing or created during the Term of this Agreement. Provided however, (i) the
Convention Center, as defined in the Master Development Agreement and/or the
Economic Development Program Agreement, and (ii) any and all public streets, rights of
way, and utility easements dedicated to the City during the platting and development
process, shall not be included in the Leased Premises.
"Leasehold Estate" means Tenant's leasehold and subleasehold estate and all other
rights, titles and interests of Tenant arising under this Agreement.
"Leasehold Mortgage" means a mortgage, deed of trust, security deed, deed to secure
debt or any similar other instrument or agreement constituting a lien upon, or similarly
encumbering, the Leasehold Estate held by a Leasehold Mortgagee, as renewed, restated,
modified, consolidated, amended, extended or assigned (absolutely or collaterally) from
time to time.
"Leasehold Mortgagee" means the holder of a Leasehold Mortgage (including any
trustee, servicer or administrative agent acting on behalf of the holder or holders of a
Leasehold Mortgage).
"Liabilities"is defined in Section 12.1.
"Mortgagee's Cure"is defined in Section 15.7(E).
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"Mortgagee's Cure Rights" is defined in Section 15.7(E).
"New Agreement" is defined in Section 15.8(A).
"New Agreement Delivery Date"is defined in Section 15.8(A).
"New Operator" means a Person, including, without limitation, Leasehold Mortgagee or
its assignee, nominee or designee, that (A) acquires the Leasehold Estate through a
Foreclosure Event or(B) enters into a New Agreement with the City under Section 15.8.
"Option Purchase Price"is defined in Section 16.3.
"Party" or"Parties"is defined in the introductory paragraph of this Agreement.
"Person" means any individual, trust, estate, partnership, joint venture, company,
corporation, association, limited liability company, or other legal entity, business
organization or enterprise.
"Personal Default" means any nomnonetary default under this Agreement that is not
susceptible to cure by a Leasehold Mortgagee.
"Project" means the Project as described in Article V. of the Master Development
Agreement.
"Property" means the approximately 351.7 acres of land more particularly described in
Exhibit A excluding any roadways, easements or other facilities which have been
dedicated to the City.
"Purchase Option"is defined in Section 16.1.
"Purchase Price" is defined in Section 2.1(E)
"Rent" is defined in Section 4.1 and means the total amount of the Purchase Price of the
Property,plus the rent paid pursuant to Section 4.1(B).
"Tax" means any general or special, ordinary or extraordinary, tax, imposition,
assessment, levy, usage fee, excise or similar charge (including any ad valorem or other
property taxes), however measured, regardless of the manner of imposition or
beneficiary,that is imposed by any Governmental Authority.
"Tenant"means KR CC, Inc.
"Tenant Default"is defined in Section 10.1.
"Tenant's Cure Period Expiration Notice" is defined in Section 15.7(C).
"Term"is defined in Section 2.2
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2. Lease and Grant of Use; Term
2.1 Lease and Grant of Use.
(A) Lease. Subject to the terms and conditions of this Agreement, the City
hereby leases to Tenant, and Tenant hereby leases fiom the City, the
Leased Premises during the Term. The Parties agree that, during the
Terni, Tenant is permitted hereunder to use the Leased Premises only for
the Project, including without limitation, to perform and engage in the
design, development, construction, operation and management of the
Project on the Leased Premises, together with all infrastructure necessary
for the Project.
(B) Additional Property. The Parties acknowledge that Developer has entered
into a contract to purchase an additional 1.5-acre tract of land known by
the Parties as the "Boyles Tract," that such contract has been assigned to
Tenant, and that Tenant will assign that purchase contract to City. Upon
City's acquisition of the Boyles Tract, the Parties agree to concurrently
amend the definition and description of the "Property" in this Agreement
to include the Boyles Tract as part of the "Property." A condition
precedent to the City's acquisition of the Boyles Tract is Tenant's payment,
as the remaining amount of the Initial Rent, an amount equal to the
purchase price and closing costs for the Boyles Tract.
(C) Convention Center Property. The Convention Center will be constructed
on a portion of the Property to be excluded from the Leased Premises.
Once that portion of the Property is platted, the Parties agree to promptly
amend this Agreement such that Exhibit A attached hereto will be
replaced with a legal description that excludes from the Property the
platted lot on which the Convention Center will be located. That platted
lot will be released from this Agreement. Upon the release, such property
will be free of liens or other monetary obligations. The City agrees to
convey title to the Convention Center in accordance with the terms of the
Convention Center operating lease.
(D) Development of Leased Premises; Zoning. Tenant may use, improve,
develop and occupy the Leased Premises as contemplated by the Master
Development Agreement and the Economic Development Program
Agreement, and Tenant may rezone or otherwise plat, subdivide,
apportion, and/or subject any portion of the Leased Premises to a
condominium, entitle, permit or seek approvals for the Leased Premises
(collectively "Entitlement Actions") at its option and the City, solely as
owner of the Fee Estate, shall cooperate in such efforts and execute all
consents and documents necessary for the submission and pursuit of such
Entitlement Actions. The City shall not, without the written consent of
Tenant, take any Entitlement Actions regarding the Leased Premises.
Notwithstanding, the foregoing Tenant shall comply with the City's
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development approval processes and shall develop the Project on the
Leased Premises in compliance with City ordinances, City-approved PUD
zoning ordinance for the Leased Premises, City-approved development
regulations, and other City development requirements, and any
requirements of the City to cooperate here under shall not be deemed any
approval outside of such legal requirements.
(E) Acquisition and Aggregation of Leased Premises. The Developer has
previously entered into contracts to acquire the Property (the "Purchase
Contracts"), with an aggregate purchase price of Twenty Eight Million
Four Ilundred Eighty Five Thousand and no/100 Dollars $28,483,414.50
(the "Purchase Price"). All of purchaser's closing costs shall be included
in the final Purchase Price. The Developer has previously assigned the
Purchase Contracts to the Tenant. Concurrent with the execution of this
Agreement, the Parties are entering into an Assignment and Assumption
Agreement and Lease-Back Agreement (the "Assignment Agreement")
pursuant to which the Tenant is agreeing to assign, and City is agreeing to
assume, the Tenant's rights under the Purchase Contracts. City hereby
agrees to use reasonable efforts to consummate the acquisitions of the
Property by December 23, 2016, and to cooperate with Tenant in
aggregating and/or dividing the Property and the Leased Premises as
requested by Tenant to accommodate the Project in accordance with
applicable subdivision and condominium related regulations. The form of
Assignment Agreement is attached hereto as Exhibit E.
(F) Nondisturbance and Attornment. If requested by Tenant, the City and
Tenant shall, at any time at the request of Tenant, enter into a
non-disturbance and attornment agreement that shall provide, among other
things, that the City agrees not to disturb Tenant's or its subtenants' use of
the Leased Premises pursuant to the terms and conditions of this
Agreement.
2.2 Term. The term of this Agreement (the "Term") commences on the Effective
Date and expires on the Expiration Date, unless terminated earlier as expressly
provided for in this Agreement.
3. Intangible Rights
3.1 Tenant's Rights. Tenant shall have sole ownership, as owner of the Project and
other Improvements, of all intellectual property rights associated therewith, and
the exclusive right and license to use any replica, model, artistic or photographic
rendering or other visual representation of the Project or Improvements or any
portion thereof owned by or licensed to the Tenant in association with any and all
goods and services throughout the world (the "Intangible Rights"), together with
the right to use, enjoy (whether in whole or in part) the Intangible Rights to
advertise, market and promote the Project and Improvements, and to receive and
retain all revenues from such use of the Intangible Rights by Tenant.
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4. Rent and Other Payments.
4.1 Rent. The total rent to be paid hereunder shall be equal to the Purchase Price (the
"Rent"). Tenant shall pay the Rent as follows:
(A) snake a partial Initial Rent Payment to the City of Sixteen Million Eight
Hundred Eight Thousand and no/100 Dollars ($16,811,065.51) concurrent
with City's closing on the acquisition of the Property (less the Boyle's
Tract) and the execution and delivery of this Agreement;
(B) make an additional partial Initial Rent Payment to the City equal to the
purchase price and closing costs for the Boyles Tract concurrent with the
City's closing on the acquisition of the Boyles Tract;
(C) make an annual rent payment to the City of One Dollar ($1.00 , which
shall be paid, without demand,deduction, or offset, on the fifth (5")day of
January of each year during the Term of this Agreement; and
(D) snake a one-time rent payment to the City equal to the Krienke Tract
Purchase Price on the first Business Day following the day which is the
eight year anniversary date of this Agreement (the "Deferred Rent").
Payment of the Deferred Rent shall include all interest on the Deferred
Rent amount accrued at the Interest Rate.
4.2 Utilities. Tenant shall pay or cause to be paid when due all charges for public or
private utility services to or for the Property during the Term, including without
limiting the generality of the foregoing, all charges for heat, light, electricity,
water, gas, telephone service, garbage collection and sewage and drainage service
and the cost of installation thereof from the boundaries of the Property.
4.3 Maintenance and Repairs. During the Term of this Lease, Tenant shall maintain
the Property and the Leased Premises at Tenant's own expense, and Tenant shall
keep the Leased Premises in good condition and repair. Landlord shall not be
required to maintain or repair any portion of the Leased Premises or any
improvements located thereon.
5. Taxes; Operations; Capital Repairs; Recordkeeping
5.1 Tenant's Sole Cost. In consideration for Tenant's rights under this Agreement,
Tenant shall be responsible for paying,throughout the Term, all costs necessary to
manage and operate the Project and Leased Premises in accordance with this
Agreement, including, subject to the terms and conditions of this Agreement,
including all costs of maintenance, repairs, replacements, renovation, remodeling,
removal, alterations, improvements and insurance, as well as all Taxes, with
respect to the Project and the Leased Premises.
5.2 Tax Matters.
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(A) Without limiting the generality of Section 5.1 and in consideration for
Tenant's rights under this Agreement, except as provided in
Section 5.2(B), Tenant shall be solely responsible for, and shall pay and
discharge as and when due, all Taxes, to the extent allocable to the Term,
upon or with respect to the Leased Premises and Tenant's possession,
operation, management, maintenance, alteration, repair, rebuilding,use or
occupancy of, or employment of personnel in, the Project or any portion
thereof.
(B) The City will own the Property at the time a change of use occurs and will
continue to own the Fee Estate of the Property for the Term. To the extent
rollback taxes are owed on all or any portion of the Leased Premises, the
City agrees to rebate the City portion of such rollback taxes as a grant to
Tenant pursuant to Chapter 380 of the Texas Local Government Code.
Within 90 days after the date the City receives a written request from the
Tenant requesting that the City seek an exemption determination, the City
will request from the Texas Comptroller the determination of rollback tax
exemption contemplated by Texas Tax Code Section 23.55(m). Such a
rollback tax determination by the Texas Comptroller is binding on the City
but not on the Developer or the Tenant.
(C) Tenant shall have the right, at its sole cost and expense, to contest the
amount, validity, or applicability, in whole or in part, of any Taxes
affecting, against, or attaching to the Leased Premises or any portion of
the Property by appropriate proceedings. The City acknowledges that the
determination of property tax valuation, equalization, exemption, special
open space valuation and tax rollback are within the exclusive province of
the appraisal district and as a result, the City takes no position on these
matters. The City grants to the Tenant the right to file any and all
applications, documents, requests, forms or other required submissions
with respect to any Taxes affecting, against, or attaching to the Leased
Premises or any portion of the Property, and does hereby appoint the
Tenant as the agent of the City for all such actions. The City covenants
that it will not avail itself of the tax challenge provisions contained in
Chapter 41 of the Texas Tax Code for the duration of this
Agreement. The City further covenants that it will fully cooperate with
the Tenant's efforts to obtain maximum property tax relief for the Property
and will make available all relevant documents and witnesses pertaining to
the transaction for any and all property tax proceedings pertaining to the
Property.
(D) This Section 5.2 shall survive the expiration of the Term or termination of
this Agreement.
5.3 Operations and Management of the Leased Premises. Tenant shall be
exclusively responsible for the operations and management of the Project,
Improvements, and Leased Premises during the Term of this Agreement.
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Notwithstanding anything to the contrary in this Agreement, operations and
management of the Project may be performed by (i) Tenant or its Affiliates,
(ii) an unrelated third-party management company engaged by Tenant and/or
(iii) any other third-party contracted by Tenant to perform such services. During
the Term, Tenant shall have the exclusive right to negotiate, execute and perform,
and to receive allocate, use and distribute, in its sole discretion, all revenues from,
all use agreements, licenses and other agreements with respect to the use of
Project or Leased Premises (or any part thereof).
6. Assignment and Subletting
6.1 Covenant Regarding Assignment and Subletting. Tenant shall have the right at
any time, and without the consent of City and with no limitation as to frequency or
number, to assign, in whole or in part, this Agreement or sublet all or any portion
of the Leased Premises and all or any portion of the Improvements. Tenant shall
provide a copy of such assignment or sublease to City within 15 days after the
effective date of such assignment or sublease. City shall not assign this
Agreement.
6.2 Covenant Regarding Encumbrances. Tenant, its successors and assigns, shall
have the right, without the consent of City, to mortgage, pledge, or otherwise
encumber this Lease, the Improvements or Tenant's interest herein, in accordance
with the requirements of Section 15.
6.3 Tenant's Right to Lease. Tenant may, without the consent of City, enter into
subleases, licenses, concession agreements, leases, or other occupancy
agreements related to the Project or Leased Premises. Notwithstanding any such
subleases, licenses, concessions, leases, or other occupancy agreements, Tenant
shall at all times remain liable for the performance of all of the covenants and
agreements under this Agreement due on Tenant's part to be so performed.
6.4 Assignment of Purchase Option. Tenant may, without the consent of City, make
an Assignment of the Purchase Option to any Person, provided that such Person
shall agree to be bound by all terms and conditions in this Agreement regarding
the Purchase Option.
6.5 City Encumbrances or Fee Mortgages. The City shall not mortgage or otherwise
encumber the City's Fee Estate with any mortgage, deed of trust, security deed,
deed to secure debt, or any other similar instrument or agreement constituting a
lien upon, or similarly encumbering,the Fee Estate.
7. Insurance
7.1 Required Insurance. Tenant shall, at its sole expense, unless otherwise agreed by
the City in writing, procure and maintain (or cause to be procured and maintained
by appropriate contractors or vendors) the following insurance coverage during
the Term; provided that nothing herein shall prohibit Tenant from procuring and
maintaining additional insurance coverages that Tenant deems desirable:
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(A) Commercial general liability insurance (CGL) written on an
"occurrence" policy form and covering liability for death, bodily injury,
personal injury, and property damage with limits of not less than
$5,000,000 per occurrence relating, directly or indirectly, to Tenant's
business operations, conduct or use or occupancy of the Improvements.
Such coverage shall include all activities and operations conducted by any
Person on or about the Leased Premises, and any work performed by or on
behalf of Tenant at the Leased Premises. Coverage should be as broad as
ISO policy form CO 0001, or any replacement thereof that becomes
standard in the insurance industry, or an equivalent form reasonably
acceptable to the City.
(B) Physical property damage insurance covering all real and personal
property, excluding personal property paid for by subtenants or paid for by
Tenant for which subtenants have reimbursed Tenant, located on or in, or
constituting a part of, the Leased Premises, in an amount equal to at least
one hundred percent (100%) of the new replacement cost of all such
property (or such lesser amount as Landlord may approve in writing).
Tenant shall not be required to maintain insurance for earthquake, flood or
war risks.
8. Damage or Destruction; Condemnation
8.1 Damage; Destruction. In the event of damage to, or destruction of, the Project,
this Agreement shall remain in full force and effect and Tenant, in its sole
discretion, may elect to repair and restore the Project.
8.2 Insurance Proceeds. Any insurance proceeds paid under any property insurance
for the Project as a result of damage or destruction of any portion of the Project
shall be deposited with Tenant or a Leasehold Mortgagee.
8.3 Condemnation.
(A) Total Condemnation. In the event of any Condemnation Action, other
than a temporary taking, that prevents the use or occupancy of any portion
of the Leased Premises necessary for the location or use of Improvements
(including access to and from Improvements), then, subject to Tenant's
rights under Section 16 (which survive the termination of this Agreement)
and the rights of any Leasehold Mortgagee under Section 15, Tenant shall
have the right to terminate this Agreement by delivering written notice to
the City within ninety(90) days after the Condemnation Action becomes
final and non-appealable. If this Agreement is so terminated, any such
termination shall be without penalty to Tenant or the City. If Tenant
terminates this Agreement, it shall not be entitled to a refund of any rent
payments made.
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(B) Partial Condemnation. If Tenant does not have a right to terminate this
Agreement as a result of a Condemnation Action or elects not to do so,
Tenant, at its option, may, at no cost to City, as promptly as practicable
and in any event within twelve (12) months after such Condemnation
Action, repair and restore any damage to the Project resulting from such
Condemnation Action.
(C) Proceedings. To the maximum extent permitted by Applicable Law,
Tenant and the City each shall have the right, at its own expense, to appear
in any Condemnation Action and to participate in any and all hearings,
trials, and appeals relating thereto even if this Agreement has been
terminated. The Leasehold Mortgagee shall also be entitled to appear and
participate in any Condemnation Action and in any and all hearings,trials
and appeals relating thereto even if this Agreement has been terminated.
Neither Party shall settle or compromise any right of the other Party to
receive a Condemnation Award without the prior written consent of the
other Party and, with respect to Tenant's rights, the prior written consent
of each Leasehold Mortgagee. Subject to the other provisions of this
Section 8.3, in any Condemnation Action Tenant shall have the right to
assert a claim for any Condemnation Awards for the value of the
Improvements. Tenant and the City shall each have the right to assert a
claim for any Condemnation Awards for (x)the loss in value of its rights
under this Agreement as if this Agreement had not terminated, and(y) any
other damages to which the City or Tenant, as applicable, may be entitled
under Applicable Law. City agrees that Tenant or Leasehold Mortgagee
shall be entitled to receive any Condemnation Awards received by City in
connection with the Leased Premises.
8.4 Survival. This Section 8 survives the expiration or earlier termination of this
Agreement, but only insofar as such provisions relate to any damage or
destruction of the Project (or insurance proceeds therefrom) or Condemnation
Action (or Condemnation Award therefrom) that arose prior to the expiration or
earlier termination of this Agreement.
9. Representations and Warranties
9.1 Representations and Warranties. The City represents and warrants to the Tenant
that: (a) this Agreement is within its authority, (b) it is duly authorized and
empowered to enter into this Agreement, (c) this Agreement is enforceable
against the City; and (d) all obligations of the City are proprietary, unless
otherwise ordered by a court of competent jurisdiction. Tenant represents and
warrants to City that it has the requisite authority to enter into this Agreement.
Neither Party has incurred or created any liabilities or claims for broker's
commissions or finder's fees in connection with the negotiation, execution or
delivery of this Agreement.
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9.2 "As is",No Representations or Warranties. Except as expressly set forth herein,
it is understood and agreed that the Leased Premises will be leased and, if
applicable, conveyed "as is" with any and all faults and latent and patent defects
without any express or implied representation or warranty by the City.
Specifically, City disclaims any warranty of suitability that may otherwise arise
by operation of law. Tenant accepts the Leased Premises whether suitable or not,
and waives the implied warranty of suitability.
9.3 Mutual Covenants. Commencing with the Effective Date, each Party covenants
and agrees to the other Party as follows:
(A) Additional Documents and Approval. Each Party, upon the reasonable
request of the other Party, shall execute or cause to be executed any
further documents, take any further actions and grant any further
approvals as may be reasonably necessary in order to consummate the
transactions provided for in this Agreement.
(B) Notice of Matters. Should Tenant or the City receive knowledge about
any matter that may constitute a breach of any of its representations,
warranties or covenants set forth in this Agreement, it shall promptly
notify the other Party of the same in writing.
10. Default and Remedies
10.1 Default. No Party shall be in default under this Agreement until notice of the
alleged failure of such Party to perform has been given (which notice shall set
forth in reasonable detail the nature of the alleged failure) and until such Party has
been given a reasonable time to cure the alleged failure, such reasonable time
determined based on the nature of the alleged failure, but in no event less than
30 days or more than 90 days after written notice of the alleged failure has been
given (subject to Force Majeure Events), provided, however, such 90 day period
shall be extended as may be reasonably necessary provided that the such
defaulting Party is pursing cure with due diligence. In addition, no Party shall be
in default under this Agreement if, within the applicable cure period, the Party to
whom the notice was given begins performance and thereafter diligently and
continuously pursues performance until the alleged failure has been cured.
Notwithstanding the foregoing, however, a Party shall be in default of its
obligation to make any payment required under this Agreement if such payment is
not made within five Business Days after it is due.
10.2 Remedies.
10.2.1 If a Party is in default, the aggrieved Party may, at its option and without
prejudice to any other right or remedy under this Agreement, including the
remedies under Section 10.2.2, seek any relief available at law or in
equity, including, but not limited to, an action under the Uniform
Declaratory Judgment Act, specific performance, mandamus, and
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injunctive relief. Notwithstanding the foregoing, however, no default
under this Agreement shall: (a) entitle the aggrieved Party to terminate this
Agreement; (b) entitle City to suspend performance under this Agreement;
(c) adversely affect or impair the current or future obligations of the City
of Round Rock to provide water or sewer service or any other service to
the Leased Premises; (d) entitle the aggrieved Party to seek or recover
monetary damages of any kind; or(e) reduce the Term of this Agreement.
10.2.2 If the Tenant is in default of Section 4.1 (Rental Payments) the amount of
any overdue rent may be deducted from the payments required to be paid
by the City of Round Rock to Tenant pursuant to the Economic
Development Program Agreement. If the Deferred Rent is not paid when
due as provided at Section 4.1(D) herein, the City may alternatively elect
to terminate this Agreement with respect to all or a portion of the Deferred
Rent Security. If the City elects such remedy, the City may terminate this
Agreement as to all or a portion of the Deferred Rent Security only after
an additional 90 days prior written notice to the Tenant of default under
Section 4.1(D) of this Agreement and the election by the City to seek such
remedy and Tenant's failure to cure such default within such 90 day
period. The Deferred Rent Security is valued at $12,800,000. At Tenant's
option, but subject to the prior written consent of the City, which shall not
be unreasonably withheld, the Deferred Rent Security may be replaced
with an alternative portion of the Leased Premises or reduced acreage if
the Tenant provides to the City (a)a legal description for the portion of the
Leased Premises that will replace the Deferred Rent Security; and (b) an
appraisal or other evidence acceptable to the City confirming the
substituted security has a value equal to at least $12,800,000. The value
determination may not be the basis for the City to withhold its consent to
the Deferred Rent Security if the City selects the appraiser who provides
the appraisal confirming the minimum value of $12,800,000. These
remedies shall be the exclusive remedy for a Tenant default of the
obligations in Section 4.1 (Rental Payments) of this Agreement.
10.3 Immunity. The Parties agree that the City's functions under this Agreement are
proprietary, not governmental. Pursuant to Wasson Interests, Ltd. v. City of
Jacksonville, 489 S.W.3d 427 (Tex. 2016), the City agrees that it cannot assert
governmental immunity in connection with any claim under this Agreement.
11. Title; Surrender
11.1 Title. Notwithstanding any other provisions of this Agreement,the Improvements
erected on the Leased Premises and all alterations, additions, equipment and
fixtures built, made, or installed by Tenant in, on, under, or to the Improvements
shall be the sole property of Tenant (subject to the terms of this Agreement and
any Leasehold Mortgage) until the termination of this Agreement by the passage
of time or otherwise (but shall become the property of City thereafter, subject to
the terms of Section 16 hereof) and Tenant shall have all corresponding tax and
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other rights associated therewith until the expiration or other termination of the
Term.
11.2 Surrender. Upon the expiration of the Tenn, if Tenant has not exercised the
Purchase Option pursuant to Section 16, then Tenant shall, on or before the
Expiration Date, peaceably and quietly leave, surrender and yield to the City the
Improvements and the Leased Premises.
12. Indemnification
12.1 Tenant. To the extent permitted by Applicable Law, Tenant hereby agrees to
defend, hold harmless and indemnify the City from and against any and all
actions, damages, costs, liabilities, claims, demands, losses,judgments, penalties,
costs and expenses of every type and description, whether arising on or off the
Leased Premises (hereafter collectively referred to as "Liabilities"), suffered or
incurred by City as a result of Tenant's use or operation of the Leased Premises;
provided that the foregoing indemnity does not apply to any Liability to the extent
arising from (A) the negligence or willful misconduct of the City or its agents,
consultants or employees, or(B) any breach by the City of this Agreement.
13. Covenant of Quiet Enjoyment. So long as Tenant performs in all material respects its
obligations under this Agreement, the City shall do nothing (other than the acts permitted or
required by this Agreement) that will prevent Tenant or its licensees, guests or invitees from
peaceably and quietly enjoying, using and occupying the Leased Premises or Improvements in
the manner described in this Agreement, and the City shall (i) defend Tenant's quiet enjoyment,
use and occupancy of the Leased Premises and Improvements in the manner described in this
Agreement against the claims of all Persons claiming by, under, or through the City and (ii)not
permit any lien, encumbrance, right-of-way, covenant, condition, invalidity or other matter
adversely affecting the City's right to possess and use, or its title to, the Leased Premises to
diminish, disturb or impair Tenant's and its licensees', guests' and invitees' quiet enjoyment, use
and occupancy of the Leased Premises and Improvements hereunder.
14. Estoppel Certificate; Memorandum of Agreement
14.1 Estoppel Certificate. Each of the Parties shall, upon the reasonable request of the
other (or any current or prospective source of financing for the City, Tenant, or
any of their Affiliates or any transferee or assignee), and in each case within
ten(10) Business Days after the other Party has requested it, execute and deliver
to the appropriate Persons a certificate in recordable form stating:
(A) That this Agreement is unmodified and is in full force and effect (or, if
there have been modifications, that this Agreement is in full force and
effect as modified and stating the modifications or, if this Agreement is
not in full force and effect, that such is the case);
(B) That, to the knowledge of the Party providing the certificate, there are no
defaults by it or the other Party under this Agreement (or specifying each
such default as to which it may have knowledge);
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(C) The Effective Date and the then-current Expiration Date;
(D) The date(s) to which any financial obligation of the Party has been paid
under this Agreement;
(E) To the knowledge of the Party providing the certificate, whether there are
any counterclaims against the enforcement of any Party's obligations
under this Agreement; and
(F) Any other matters reasonably requested.
14.2 Memorandum of Agreement.
(A) Recordation. At any time Tenant may cause a memorandum of this
Agreement or any amendment hereto to be recorded in the Real Property
Records of Williamson County, Texas and Tenant shall pay and discharge
the costs, fees and taxes in connection therewith. The initial form of such
memorandum shall be as set forth in Exhibit F attached hereto, and upon
any amendment to this Agreement, the form of any memorandum of
amendment shall be subject to the approval of the City (not to be
unreasonably withheld, conditioned or delayed) prior to the recordation
thereof, and the City shall sign such memorandum when so requested by
Tenant. The City Manager is authorized to grant such City approval.
(B) Release of Memorandum of Agreement. Tenant shall, at its cost, execute
and record a release of any such memorandum within ten (10) Business
Days after the expiration of Tenant's Purchase Option under Section 16
without the exercise thereof by Tenant, which release shall include
language whereby Tenant acknowledges that the Purchase Option has
terminated and Tenant quitclaims to the City all rights of Tenant in and to
the Leased Premises.
15. Leasehold Mortgages
15.1 Right to Obtain Leasehold Mortgages. Notwithstanding anything to the contrary
contained in this Agreement, Tenant shall have the right, without the City's
consent, to execute and deliver one or more Leasehold Mortgages encumbering
the Leasehold Estate or the direct or indirect ownership interests in Tenant at any
time and from time to time; provided, that no such Leasehold Mortgage shall
encumber the Fee Estate. The City's interests in the Leased Premises shall be
subject and subordinate to any such Leasehold Mortgages, provided, however, no
Leasehold Mortgage shall encumber the Fee Estate and the City's interest in the
Fee Estate shall remain in priority to that of Tenant or any Leasehold Mortgagee
during the Term. Each Leasehold Mortgage shall provide that the Leasehold
Mortgagee shall send to the City copies of all notices of material default sent to
Tenant in connection with the Leasehold Mortgage or the debt secured thereby,
provided that the failure to provide any such notice shall not affect the validity of
the notice in any manner.
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15.2 Effect of a Leasehold Mortgage. Notwithstanding anything to the contrary in
this Agreement, Tenant's making of a Leasehold Mortgage shall not be deemed to
constitute an Assignment of the Leasehold Estate, nor shall any Leasehold
Mortgagee, as such, or in the exercise of its rights under this Agreement, be
deemed to be an assignee or transferee or mortgagee in possession of the
Leasehold Estate so as to require such Leasehold Mortgagee, as such, to assume
or otherwise be obligated to perform any of Tenant's obligations under this
Agreement except when, and then only for so long as, such Leasehold Mortgagee
has acquired ownership and possession of the Leasehold Estate pursuant to a
Foreclosure Event (as distinct from its rights under this Agreement to cure
defaults or exercise Mortgagee's Cure Rights), No Leasehold Mortgagee (or
other Person acquiring the Leasehold Estate pursuant to a Foreclosure Event)
shall have any liability beyond its interest in this Agreement nor shall Leasehold
Mortgagee (or any Person acquiring the Leasehold Estate pursuant to a
Foreclosure Event under a Leasehold Mortgage) be liable under this Agreement
unless and until such time as it becomes the owner of the Leasehold Estate.
Without further notice to or consent from the City, the City recognizes and agrees
that a Leasehold Mortgagee may acquire directly, or may cause its assignee,
nominee, or designee to acquire, the Leasehold Estate through a Foreclosure
Event and such party shall enjoy all the rights and protections granted to
Leasehold Mortgagee under this Agreement with the same force and effect as if
such party were the Leasehold Mortgagee itself.
15.3 Foreclosure; Further Assignment. Notwithstanding anything to the contrary in
this Agreement, any Foreclosure Event or any exercise of rights or remedies
under any Leasehold Mortgage shall not be deemed to violate this Agreement or
require the consent of the City. if a Leasehold Mortgagee or a successor or
assignee of a Leasehold Mortgagee, or an Affiliate thereof, acquires Tenant's
Leasehold Estate following a Foreclosure Event, or if a Leasehold Mortgagee or a
successor or assignee of a Leasehold Mortgagee, or an Affiliate thereof, enters
into a New Agreement, such Leasehold Mortgagee or successor or assignee of a
Leasehold Mortgagee, or an Affiliate thereof, shall enjoy all of the rights and
protections granted to Leasehold Mortgagee under this Agreement with the same
force and effect as if such successor, assign or Affiliate were the Leasehold
Mortgagee itself and may thereafter assign or transfer this Agreement or such
New Agreement without prior notice to or consent of the City; provided, that the
assignee or transferee expressly agrees in writing to assume and to perform all of
the obligations under this Agreement or such New Agreement, as the case may
be, from and after the effective date of such assignment or transfer. No Leasehold
Mortgagee (or Person acquiring the Leasehold Estate pursuant to a Foreclosure
Event under a Leasehold Mortgage) shall have any liability beyond its interest in
this Agreement nor shall Leasehold Mortgagee (or person acquiring the Leasehold
Estate pursuant to a Foreclosure Event under a Leasehold Mortgage) be liable
under this Agreement unless and until such time as it becomes, and then only for
so long as it remains,the owner of the Leasehold Estate.
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Leasehold Mortgage) shall be null, void, and of no further force or effect,
and shall not bind Tenant, Leasehold Mortgagee or New Operator. For
clarification, this Section 15.7(A) shall be inapplicable during any period
that no Leasehold Mortgage is in effect.
(B) Copies of Notices. If the City shall give any notice to Tenant under this
Agreement, then the City shall at the same time and by the same means
give a copy of such notice to any Leasehold Mortgagee. No notice to
Tenant shall be effective unless and until such notice has been duly given
to Leasehold Mortgagee, provided the City has received notice of such
Leasehold Mortgagee pursuant to Section 15.4. No exercise of the City's
rights and remedies under or termination of this Agreement shall be
deemed to have occurred or arisen or be effective unless the City has
given like notice to each Leasehold Mortgagee as this Section 15.7(B)
requires. Any such notice shall describe in reasonable detail the alleged
Tenant default or other event allegedly entitling the City to exercise such
rights or remedies.
(C) Tenant's Cure Period Expiration Notice. If Tenant is in default under this
Agreement and the cure period applicable to Tenant expires without cure
of Tenant's default,then the City shall promptly give notice of such fact to
any Leasehold Mortgagee, which notice shall describe in reasonable detail
Tenant's default(an"Tenant's Cure Period Expiration Notice").
(D) Right to Perform Covenants and Agreements. Any Leasehold Mortgagee
shall have the right, but not the obligation, to perform any obligation of
Tenant under this Agreement and to remedy any default by Tenant. The
City shall accept performance by or at the instigation of a Leasehold
Mortgagee in fulfillment of Tenant's obligations, for the account of
Tenant, and with the same force and effect as if performed by Tenant. No
performance by or on behalf of such Leasehold Mortgagee shall cause it to
become a"mortgagee in possession" or otherwise cause it to be deemed to
be in possession of the Improvements or bound by or liable under this
Agreement.
(E) Notice of Default and Cure Rights. Upon receiving any notice of default,
any Leasehold Mortgagee shall have the right within the same cure period
granted to Tenant under this Agreement, extended through the date 90
days after such Leasehold Mortgagee shall have received Tenant's Cure
Period Expiration Notice within which to take (if any Leasehold
Mortgagee so elects; such actions, "Mortgagee's Cure"; and a Leasehold
Mortgagee's rights to take such actions, including pursuit of an
Enforcement Action, collectively, "Mortgagee's Cure Rights").
(F) During Cure Period. At any time during the cure period (if any) that
applies to Tenant, extended through the date that is 120 days after such
Leasehold Mortgagee's receipt of Tenant's Cure Period Expiration Notice
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15.4 Notice of Leasehold Mortgages. Promptly after Tenant enters into any Leasehold
Mortgage, Tenant or the Leasehold Mortgagee shall deliver to the City a true and
correct copy of the Leasehold Mortgage together with written notification
specifying the name and address of the Leasehold Mortgagee. The Leasehold
Mortgagee identified in such notice or the mortgage filed of record shall be
entitled to all the rights and protections of a Leasehold Mortgagee under this
Agreement (as against both the City and any successor holder of the Fee Estate).
The City agrees to acknowledge to Tenant and such Leasehold Mortgagee the
City's receipt of any such materials and, following notification thereof, notice of
any Assignment of such Leasehold Mortgage and to confirm that such Leasehold
Mortgagee is or will be, upon closing of its financing or its acquisition of an
existing Leasehold Mortgage, entitled to all of the rights and protections granted
to Leasehold Mortgagee under this Agreement with the same force and effect as if
such successor, assign or Affiliate were the Leasehold Mortgagee itself, in this
Agreement, including after any premature termination of this Agreement. If the
City has received actual or constructive notice of any Leasehold Mortgage, then
such notice shall automatically bind the City's successors and assigns.
15.5 Modifications Required by Leasehold Mortgagee. If, in connection with
obtaining, continuing or renewing any financing for which the Leasehold Estate,
or the direct or indirect equity interests in Tenant, represents collateral in whole or
in part, the Leasehold Mortgagee requires any modifications of this Agreement as
a condition to such financing, then the City shall, at Tenant's or such Leasehold
Mortgagee's request, promptly consider any such modifications in good faith. If
such modifications do not (A)modify the Rent or the Term or (B) lessen the
City's rights or increase the City's obligations under this Agreement by more than
a de minimis amount in the reasonable judgment of the City, then the City shall
execute and deliver to Tenant an amendment to this Agreement to effect such
modifications.
15.6 Further Assurances. Upon request by Tenant or by any existing or prospective
Leasehold Mortgagee, the City shall deliver to the requesting party such
documents and agreements as the requesting party shall reasonably request to
further effectuate the terms of this Agreement, including a separate written
instrument in recordable form signed and acknowledged by the City setting forth
and confirming,directly for the benefit of Leasehold Mortgagee and its successors
and assigns, any or all rights of Leasehold Mortgagee; provided, however, that
Tenant shall reimburse the City immediately upon demand therefor for any and all
reasonable third-party costs or expenses actually incurred by the City in
complying with this Section 15.6.
15.7 Protection of Leasehold Mortgagees. Notwithstanding anything to the contrary
set forth in this Agreement, if, and only for so long as, any Leasehold Mortgage is
in effect,the following shall apply:
(A) Lease Impairments. Any Lease Impairment made without First Leasehold
Mortgagee's prior written consent (or any deemed consent under its
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as to such nonmonetary default, or if no cure period applies to Tenant,
then within 120 days after such Leasehold Mortgagee's receipt of notice
of such default, such Leasehold Mortgagee shall be entitled to institute
proceedings, and (subject to any stay in any Bankruptcy Proceedings
affecting Tenant or any injunction, unless such stay or injunction is lifted)
provided that from and after the institution of such proceedings, such
Leasehold Mortgagee shall diligently prosecute the same to completion,to
obtain possession of the Improvements as mortgagee (including
possession by a receiver), or acquire directly, or cause its assignee,
nominee, or designee to acquire, the Leasehold Estate through a
Foreclosure Event, or foreclose on its pledged collateral, as applicable (the
obtaining of such possession or the completion of such acquisition,
"Control of the Leased Premises").
(1) Further Cure After Control of Leased Premises. Upon obtaining
Control of the Leased Premises (whether before or after expiration
of any otherwise applicable cure period), such Leasehold
Mortgagee or, in the event the Leasehold Estate is acquired
through a Foreclosure Event, such New Operator, shall be required
to proceed with reasonable diligence and reasonable continuity to
cure such nommonetary defaults as are then reasonably susceptible
of being cured by such Leasehold Mortgage or New Operator
(excluding Tenant's Personal Defaults, which Leasehold
Mortgagee need not cure), within a reasonable time under the
circumstances, but, subject to Force Majeure Events, in no event
more than 120 days after Leasehold Mortgagee obtains Control of
the Leased Premises.
(2) Effect of Cure. Upon the cure of a default by such Leasehold
Mortgagee or New Operator, as the case may be, in accordance
with this Agreement, this Agreement shall continue in full force
and effect as if no default(s)had occurred. Leasehold Mortgagee's
exercise of Mortgagee's Cure Rights shall not be deemed an
assumption of this Agreement in whole or in part.
(G) Forbearance by the City.
(1) So long as a Leasehold Mortgagee shall be diligently exercising its
Mortgagee's Cure Rights, including the commencement and
pursuit of an Enforcement Action, within the applicable cure
periods set forth above, the City shall not, to the extent permitted
under this Agreement, (i)re-enter the Leased Premises to cure the
Tenant Event of Default, (ii)bring a proceeding on account of such
default to (a)re-enter the Leased Premises to cure the Tenant
Event of Default, (b) dispossess Tenant or other occupants of the
Leased Premises, (c)terminate the Leasehold Estate, or
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(d) accelerate payment of Rent or any other amounts payable by
Tenant under this Agreement.
(2) Nothing in this Section 15 shall, however, be construed to either
(i) extend the Term beyond the Expiration Date that would have
applied if no default had occurred or (ii)require any Leasehold
Mortgagee to cure any Personal Default by Tenant as a condition
to preserving this Agreement or to obtaining a New Agreement
(but this shall not limit such Leasehold Mortgagee's obligation to
seek to obtain Control of the Leased Premises, and thereafter
consummate a Foreclosure Event, by way of Mortgagee's Cure
Rights, if such Leasehold Mortgagee desires to preclude the City
from terminating this Agreement on account of a Personal Default
of Tenant).
(3) Nothing in this Section 15 shall preclude the City from exercising
its rights to sue for damages, specific performance, or other
equitable relief (excluding "self-help", dispossession, termination
or engagement of new management company) under
Section 10.2(B).
(H) Leasehold Mortgagee's Right to Enter Leased Premises. The City and
Tenant authorize each Leasehold Mortgagee to enter the Improvements
and the Leased Premises as necessary to affect Mortgagee's Cure and take
any action(s) reasonably necessary to effect Mortgagee's Cure without
such action being deemed to give Leasehold Mortgagee possession of the
Leased Premises.
(I) Rights of New Operator Upon Acquiring Control. If any New Operator
shall acquire the Leasehold Estate pursuant to a Foreclosure Event and
shall continue to exercise Mortgagee's Cure Rights as to any remaining
defaults (other than Personal Defaults, which New Operator need not
cure), then any Personal Defaults by Tenant shall no longer be deemed
defaults and the City shall recognize the rights of such New Operator
hereunder as if such New Operator were Tenant.
(J) Interaction Between Agreement and Leasehold Mortgage. Tenant's
default as mortgagor under a Leasehold Mortgage shall not constitute a
default under this Agreement, except to the extent that Tenant's actions or
failure to act in and of itself constitutes a breach of this Agreement. The
exercise of any rights or remedies of a Leasehold Mortgagee under a
Leasehold Mortgage, including the consummation of any Foreclosure
Event, shall not constitute a default under this Agreement (except to the
extent such actions otherwise constitute a breach of this Agreement).
15.8 First Leasehold Mortgagee's Right to a New Agreement.
22
(A) If this Agreement shall terminate by reason of the City exercising any
right it has under this Agreement to terminate, a rejection in Tenant's
bankruptcy, or option of Tenant to treat this Agreement as terminated
under 11 U.S.C. § 365(h)(1)(A)(i), or any comparable provision of
Applicable Law,the City shall promptly give notice of such termination to
any Leasehold Mortgagee of which the City has notice. The City shall,
upon a First Leasehold Mortgagee's request given within 30 days after
such First Leasehold Mortgagee's receipt of such notice, enter into (and if
the City fails to do so, shall be deemed to have entered into) a new lease of
the Leased Premises effective as of (or retroactively to) the date of the
termination of this Agreement, for the remainder of the Term, as if no
termination had occurred, with a New Operator on the same terms and
provisions of this Agreement, including the Purchase Option and all other
rights, options, privileges and obligations of Tenant under this Agreement,
but excluding any requirements that have already been performed or no
longer apply (a "New Agreement"); provided, that the First Leasehold
Mortgagee shall, at the time of execution and delivery of such New
Agreement, (i) pay the City any and all Rent and any other amounts
required to be paid by Tenant to the City under this Agreement
(determined as if this Agreement had not been terminated), and (ii) cure
any nonmonetary defaults (other than Personal Defaults, which First
Leasehold Mortgagee need not cure) under this Agreement (determined as
if this Agreement had not been terminated) or, if such nonmonetary
default is of a nature that it cannot with due diligence be cured upon such
execution and delivery, then the First Leasehold Mortgagee shall (x)upon
such execution and delivery, advise the City of its intention to take all
steps necessary to remedy such nomnonetary default (other than Personal
Defaults, which First Leasehold Mortgagee need not cure), and
(y) promptly and duly commence the cure of such default and thereafter
diligently prosecute to completion the remedy of such default, which
completion must be achieved within a reasonable time under the
circumstances, subject to Force Majeure Events. In no event, however,
shall the New Operator be required to cure a Personal Default of Tenant as
a condition to obtaining or retaining a New Agreement or otherwise.
From the date this Agreement terminates until the date of execution and
delivery of any such New Agreement (the "New Agreement Delivery
Date"), the City may, at its option, perform maintenance and repair of the
Improvements and the Leased Premises; provided, however, the City shall
not (1) operate the Leased Premises in an unreasonable manner, (2)take
any affirmative action to cancel any license or sublease or accept any
cancellation, termination or surrender of a sublease, except due to such
licensee's or subtenant's default, or (3) lease any of the Leased Premises
except to New Operator.
(B) The following additional provisions shall apply to any New Agreement:
23
(1) Form and Priority. Any New Agreement (or, at the City's option,
a memorandum thereof) shall be in recordable form. Such New
Agreement shall not be subject to any rights, liens, or interests
other than permitted exceptions and other exceptions to title
existing as of the date of such New Agreement which were not
created by the City.
(2) Adjustment for Expenses. On the New Agreement Delivery Date,
the New Operator shall pay to the City expenses incurred by the
City during the period from the termination date of this Agreement
to the New Agreement Delivery Date.
(3) Assignment of Certain Items. On the New Agreement Delivery
Date, the City shall assign to New Operator all of the City's right,
title and interest in and to all moneys (including security deposits,
insurance proceeds and condemnation awards), if any, then held
by, or payable to, the City that Tenant (or Leasehold Mortgagee)
would have been entitled to receive but for termination of this
Agreement. On the New Agreement Delivery Date, the City shall
also transfer to New Operator all sublease and service contracts to
the extent assignable by the City.
(4) Preservation of Licenses and Subleases. Between the date of the
termination of this Agreement and the New Agreement Delivery
Date, the City shall not take any affirmative action to cancel any
license or sublease or accept any cancellation, termination or
surrender of a license or sublease (it being understood that the City
shall not be obligated to take any action to keep any licenses or.
subleases in effect). Any license or sublease which was terminated
upon the termination of this Agreement as a matter of law, shall, at
New Operator's option, be reinstated upon execution of the New
Agreement.
(5) Separate Instrument. The City hereby agrees, at the request of any
Leasehold Mortgagee, to enter into a separate instrument (and
memorandum thereof in recordable form) memorializing such
Leasehold Mortgagee's rights under this Section 15.8.
15.9 Priority of Leasehold Mortgages. If there is more than one Leasehold Mortgage,
then whenever this Agreement provides a Leasehold Mortgagee with the right to
consent or approve or exercise any right granted in this Agreement, the exercise
or waiver of same by the First Leasehold Mortgagee shall control and be binding
upon the holder(s) of all junior Leasehold Mortgages or other holders of debt,
such as Mezzanine Lenders.
15.10 Liability of Leasehold Mortgagee. If a New Operator shall acquire Tenant's
Leasehold Estate through a Foreclosure Event or a New Agreement shall be
24
granted to a New Operator pursuant to Section 15.8, such New Operator shall be
liable for the performance of all of Tenant's covenants under this Agreement or
such New Agreement, as the case may be, from and after the effective date of
such Foreclosure Event or New Agreement. If (A)the New Operator is a
Leasehold Mortgagee or its assignee, nominee or designee, (B) such Leasehold
Mortgagee, or its assignee, designee or nominee, as applicable, then assigns this
Agreement or the New Agreement to a third-party assignee, and (C) such third-
party assignee delivers to the City an agreement under which such assignee
assumes and agrees to perform all the terms, covenants, and conditions of this
Agreement or such New Agreement, in form reasonably acceptable to the City,
the Leasehold Mortgagee, or its assignee, designee or nominee, as applicable,
shall be automatically and entirely released and discharged from the performance,
covenants, and obligations of the New Operator under this Agreement or the New
Agreement, thereafter accruing.
15.11 Casualty and Condemnation Proceeds. If a casualty or a Condemnation Action
shall occur with respect to all or any portion of the Improvements and the Leased
Premises and restoration is to occur pursuant to the provisions of this Agreement,
any insurance proceeds shall be handled in accordance with Section 8. The City
understands that Tenant may irrevocably appoint Leasehold Mortgagee as its
representative to participate in any settlement regarding, and with regard to, the
disposition and application of said insurance proceeds or Condemnation Awards.
The City will recognize and deal with Leasehold Mortgagee for such purposes.
The City hereby acknowledges that no election by Tenant not to restore in the
event of a casualty or Condemnation Action shall be effective unless Leasehold
Mortgagee's consent has been granted to such election.
15.12 Mezzanine Lenders as Leasehold Mortgagees, The Parties agree that each lender
under a Mezzanine Financing (as hereinafter defined) (each such lender, a
"Mezzanine Lender") is intended to and shall be entitled to substantially the
same protections and rights set forth in this Section 15 as provided to a Leasehold
Mortgagee, modified as appropriate to reflect the nature of the limited liability
company or limited partnership interest or stock pledge, as applicable, in favor of
each such Mezzanine Lender, mutatis mutandis. If requested by Tenant in
connection with a Mezzanine Financing, the Parties agree to negotiate, in good
faith and with due diligence, an amendment to this Agreement or a separate
agreement, containing commercially reasonable terms and conditions in order to
specifically reflect such protections and rights set forth in this Section 15 as
applicable to a Mezzanine Lender. Tenant shall be responsible for the
out-of-pocket costs and expenses of the City's participation in such negotiations,
including reasonable attorney's fees. As used herein, a "Mezzanine Financing"
means a financing transaction which is secured by, inter alia, a pledge or
collateral assignment of any or all of the limited liability company or limited
partnership interests or the corporate stock of Tenant (or any entity holding a
direct or indirect interest in Tenant), as applicable, either together with or in lieu
of a Leasehold Mortgage (provided that if the same lender holds both a Leasehold
Mortgage and such a pledge or collateral assignment, such lender shall be a
25
Leasehold Mortgagee, and such financing transaction shall be a Leasehold
Mortgage,hereunder).
15.13 Rights of City. Notwithstanding anything contained herein to the contrary, any
Leasehold Mortgage executed by Tenant shall comply with the following
requirements:
(A) the Leasehold Mortgage and all rights acquired thereunder shall be subject
to each and all of the covenants, conditions, restrictions and provisions set
forth in this Ground Lease, and to all rights of City hereunder; and
(B) no Leasehold Mortgage shall encumber any interest in real property other
than Tenant's leasehold interest in the Property, or secure debt which is
not utilized for the purpose of the Project.
16. Purchase Option
16.1 Purchase Option. Tenant shall have the option to purchase all, or any part of, the
Property (including, without limitation the Fee Estate and all rights and
appurtenances thereto, and all Improvements (if any are owned by the City)
thereon from the City on the terms and conditions set forth in this Section 16 (the
"Purchase Option"). The Purchase Option shall be a continuing right and there
shall be no limitation on the frequency or number of times Tenant may exercise
its rights under the Purchase Option and this Section 16.
16.2 Exercise. Tenant may exercise the Purchase Option (i)by delivering written
notice thereof to the City at any time during the Term; or(ii)if this Agreement is
terminated pursuant to Section 8, by delivering written notice thereof to the City
within six (6) months after the effective date of such termination. Tenant
acknowledges that exercising the Purchase Option may trigger the collection of
rollback taxes assessed upon a change of use of the Property, if any are owed.
16.3 Option Purchase Price. The purchase price to be paid by Tenant to the City in
connection with the exercise of the Purchase Option (the "Option Purchase
Price") shall be equal to One Dollar ($1.00) per acre of the Property plus
assessed, but uncollected rollback taxes, if any are owed, provided the Deferred
Rent has been paid pursuant to Section 4.1(c), otherwise it shall be equal to One
Dollar ($1.00) per acre of Property plus assessed, but uncollected rollback taxes,
if any are owed,plus the Deferred Rent that has not been paid.
16.4 Closing. If Tenant exercises the Purchase Option in accordance with this
Section 16, then the closing of the conveyance of the Property and all
Improvements thereon shall occur on a date set forth by Tenant in the notice by
which Tenant exercised its Purchase Option, subject to the City's approval of
such date, which will not be unreasonably withheld, conditioned or delayed. At
such closing, (A)the City shall convey fee title to the Leased Premises and all
Improvements thereon (to the extent of City's interest in such Improvements if
any), free and clear of any liens, encumbrances and obligations, except for
26
easements and similar restrictions that do not adversely affect or impact the use
and operation of the Improvements and the Leased Premises for their intended
purposes and that impose no monetary obligations for Tenant, to Tenant,
(B)Tenant shall pay the Option Purchase Price to the City and (C)the City and
Tenant shall deliver such customary closing documents (e.g., settlement
statements, title insurance, a survey tax reporting forms) and take such customary
actions as shall be required in order to effect such conveyance in accordance with
then-common Texas real estate conveyancing practice. The Parties agree that any
transfer Taxes that are imposed in connection with the conveyance of the Leased
Premises and all Improvements thereon to Tenant pursuant to this Section 16 shall
be paid by the City.
16.5 Survival/Forfeiture. This Section 16 shall survive the expiration of the Term or
termination of this Agreement pursuant to Section 8 (and regardless of Tenant,
Leasehold Mortgagees or Mezzanine Lenders receiving any amounts set forth in
Section 8.2 or 8.4).
17. Miscellaneous
17.1 Notices. Any notice and or statement required and permitted to be delivered shall
be deemed delivered by actual delivery, by electronic mail, or by depositing the
same in the United States mail, certified with return receipt requested, postage
prepaid, addressed to the appropriate party at the following addresses:
If to City: City of Round Rock
221 E. Main Street
Round Rock, TX 78664
Attn: City Manager
Phone: (512) 218-5400
Email: citymanager@roundrocktexas.gov
With a required copy to:
Sheets& Crossfield
309 E. Main Street
Round Rock, TX 78664
Attn: Stephan L. Sheets
Phone: (512) 255-8877
Email: steve@scrrlaw.com
If to Tenant: KR CC, INC.
P.O. Box 590
1305 Kalahari Drive
Wisconsin Dells, WI 53965
Attn: Mary Bonte Spath
Phone:(608) 254-5320
Email: mbonte@kalahariresorts.eom
27
With required copy to:
Shupe Ventura Lindelow&Olson, PLLC
9406 Biscayne Blvd.
Dallas, Texas 74218
Attn: Misty Ventura
Phone: (214) 328-1101
Email: misty.ventura@svlandlaw.com
Michael Best&Friedrich LLP
One South Pinckney Street, Suite 700
Madison, Wisconsin 53703
Attn: Michael S. Green
Phone: (608) 257-3501
Email: msgreen@michaelbest.com
Either Party may designate a different address at any time upon written notice to the other Party.
17.2 Force Majeure. Except as otherwise provided herein, an equitable adjustment
shall be made for delay or failure in performing if such delay or failure is caused,
prevented, or restricted by conditions beyond that Party's reasonable control (a
"Force Majeure Event"). An event of force majeure for the purposes of this
Agreement shall include, but not be limited to, acts of God, fire; explosion,
vandalism; storin or similar occurrences; orders or acts of military or civil
authority; litigation; changes in law, rules, or regulations outside the control of the
affected Party; national emergencies or insurrections; riots; acts of terrorism; or
supplier failures, shortages or breach or delay; unusual weather events; and
unusual delays in obtaining City approvals of plats, permits, or other development
approvals required to construct and operate the Project. Except as otherwise
expressly provided herein, there shall be an equitable adjustment allowed for
performance under this Agreement as the result of any event of force majeure.
17.3 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of
the Parties that the remainder of this Agreement shall not be affected. It is also
the intention of the Parties of this Agreement that in lieu of each clause and
provision that is found to be illegal, invalid or unenforceable, a provision be
added to this Agreement which is legal, valid or enforceable and is as similar in
terms as possible to the provision found to be illegal, invalid or unenforceable.
17.4 Time of lite Essence. Time is of the essence in the performance of this
Agreement.
17.5 Binding Effect,Amendments. This Agreement binds and inures to the benefit of
the Parties' permitted successors and assigns. This Agreement may be amended
only by the mutual written agreement of the Parties.
28
17.6 Waiver. A Party's failure to insist on strict performance of this Agreement or to
exercise any right or remedy upon breach of this Agreement will not constitute a
waiver of the performance, right, or remedy. A Party's waiver of the other
Party's breach of any provision in this Agreement will not constitute a continuing
waiver or a waiver of any subsequent breach of the same or any other provision.
A waiver is binding only if set forth in a writing signed by the waiving Party.
17.7 Interpretation.
17.7.1 The term "including" shall mean "including, without limitation" and
"including, but not limited to" and shall not be interpreted to imply any
limitation on the more general preceding provision unless otherwise
expressly stated. All references in this Agreement to Sections, Exhibits, or
Schedules refer to the Sections, Exhibits, and Schedules of this Agreement
unless otherwise expressly stated. Each Exhibit and Schedule referenced
in this Agreement is incorporated herein by reference and made a part
hereof. The headings and captions of the Sections, Exhibits and Schedules
are included for convenience only and shall have no effect upon the
construction or interpretation of this Agreement.
17.7.2 Each of the Parties has been represented by counsel of their choosing in
the negotiation and preparation of this Agreement. Regardless of which
Party prepared the initial draft of this Agreement, this Agreement shall, in
the event of any dispute, however its meaning or application, be
interpreted fairly and reasonably and neither more strongly for or against
any Party.
17.8 Entire Agreement. This Agreement, together with the Master Development
Agreement and the Economic Development Program Agreement, constitute the
entire agreement between the Parties and supersedes all prior agreements,whether
oral or written, covering the subject matter of this Agreement.
17.9 No Joint Venture. It is acknowledged and agreed by the Parties that the terms
hereof are not intended to and shall not be deemed to create any partnership or
joint venture among the Parties.
17.10 No Third-Party Beneficiaries. Except for the rights of a Leasehold Mortgagee
and a Mezzanine Lender provided herein, and as otherwise specifically provided
in this Agreement, this Agreement is not intended to confer any rights,privileges,
or causes of action upon any third party.
17.11 Attorneys' Fees. Except as otherwise expressly stated herein, the Parties shall
bear their own costs and attorneys' fees incurred in connection with this
Agreement.
17.12 Counterparts. The Parties may sign this Agreement in counterparts, each of
which will be considered an original, but all of which will constitute the same
29
Agreement. Facsimile signatures or signatures transmitted by e-mail or other
electronic means shall be effective to bind the Parties.
17.13 Applicable Law. This Agreement is made, and shall be construed and interpreted,
under the laws of the State of Texas and venue shall lie in Williamson County,
Texas.
17.14 Interest. Except as otherwise expressly set forth in this Agreement, any payment
required under this Agreement that is not timely made shall bear interest at the
Interest Rate from the due date until paid in full.
17.15 Paragraph Headings. The paragraph headings contained in this Agreement are
for convenience only and will in no way enlarge or limit the scope or meaning of
the various and several paragraphs.
17.16 Survival. This Section 17 shall survive the expiration of the Term or termination
of this Agreement.
17.17 Hazardous Materials. Tenant shall not use, generate, manufacture, refine,
produce process, store or dispose of any hazardous Materials in, on, under or
about the Property, except in strict compliance with all
Applicable Laws.
[signature page follows]
30
IN WITNESS WHEREOF, the Parties have entered in this Agreement as of the day and
year first above written.
CITY OF ROUND ROCK,TEXAS KR CC,INC.
a home rule city and municipal corporation a Delaware corporation
By: a T By: :Zeg- ! `d
Alan McGraw,Mayor Todd Nelson,President
[Signature Page to Ground Lease]
31
Exhibit A-1
Property
(see attached)
A-1
351.737 ACRES FN. NO. 16-433 (DLB)
: LAND NOVEMBER 28, 2016
DESCRIPTIONS FILE NO. 222010482
DESCRIPTION
OF A 351.737 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY,
ABSTRACT NO 297 SITUATED IN THE CITY OF ROUND ROCK, WILLIAMSON
COUNTY, TEXAS BEING A PORTION OF THE REMAINDER OF THAT CERTAIN
157 .385 ACRE TRACT OF LAND CONVEYED TO BISON TRACT 79, LTD. BY DEED
OF RECORD IN DOCUMENT NO. 2007049657 OF THE OFFICIAL PUBLIC RECORDS
OF WILLIAMSON COUNTY, TEXAS; ALL OF THAT CERTAIN 60.58 ACRE TRACT
OF LAND CONVEYED TO ERNEST NELSON JOHNSON, JOHN DAVID JOHNSON AND
BERTHA MARIE JOHNSON KELLER BY DEED OF RECORD IN DOCUMENT NO.
2003035323 OF SAID OFFICIAL PUBLIC RECORDS, SAME BEING ALL OF LOT 9
OF THE SWENSON SUBDIVISION, OF RECORD IN VOLUME 13, PAGE 119 OF THE
DEED RECORDS OF WILLIAMSON COUNTY, TEXAS; ALL OF THAT CERTAIN
155. 589 ACRE TRACT OF LAND CONVEYED TO KEITH KRIENKE AND MARK
MEREDITH BY DEED OF RECORD IN DOCUMENT NO. 2006113854 OF SAID
OFFICIAL PUBLIC RECORDS, SAME BEING CONVEYED TO GREGORY CARTER BY
DEED OF RECORD IN DOCUMENT NO. 2010072268 OF SAID OFFICIAL PUBLIC
RECORDS; AND ALSO LOT 1, OF THE BERTIL TELANDER SUBDIVISION, OF
RECORD IN CABINET H, SLIDE 126 OF THE PLAT RECORDS OF WILLIAMSON
COUNTY, TEXAS AS CORRECTED BY INSTRUMENT OF RECORD IN VOLUME 1419,
PAGE 416 OF THE REAL PROPERTY RECORDS OF WILLIAMSON COUNTY, TEXAS;
SAID LOT 1 CONVEYED TO DAVID BOYLES BY DEED OF RECORD IN DOCUMENT
NO. 2014059825 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY,
TEXAS; SAID 351. 737 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED IN
FOUR PARTS BY METES AND BOUNDS AS FOLLOWS:
PART 1 - 337.295 ACRES
BEGINNING, at a 5/8-inch iron rod found in the southerly right-of-
way line of the Union Pacific Railroad (100' R.O.W. ) being the
northeasterly corner of said 157. 385-acre tract, also being the
northwesterly corner of said 155.589-acre tract;
THENCE, N63037128"E, leaving the northeasterly corner of said
157.385 acre tract, along the southerly right-of-way line of the
Union Pacific Railroad, for a portion of the northerly line hereof,
a distance of 2864.50 feet to a 1/2-inch iron rod with "Baker
Aicklen" cap found at the northwesterly corner of Lot 1, Block A of
Final Plat of Brushy Creek Regional Wastewater Treatment Plant, a
subdivision of record in Document No. 2007067173 of said Official
Public Records, being the northeasterly corner of said 155. 589 acre
tract and hereof;
THENCE, leaving the southerly right-of-way line of the Union
Pacific Railroad, along the common line of said Lot 1 and said
155.589-acre tract, for the easterly line hereof, the following six
(6) courses and distances:
1) S26012100"E, a distance of 49. 99 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 2 OF 9
2) N63041106"E, a distance of 81. 63 feet to a 1/2-inch iron rod
with illegible cap found;
3) S03°33152"E, a distance of 1695. 07 feet to a 1/2-inch iron rod
with "LCRA" cap found;
4) N58053153"E, a distance of 362 .51 feet to a 1/2-inch iron rod
with "LCRA" cap found;
5) N58035113"E, a distance of 245.00 feet to a 1/2-inch iron rod
with "LCRA" cap found;
6) S02°28132"E, passing at a distance of 387 .44 feet, a 1/2-inch
iron rod with "SURVCON INC" cap found, and continuing for a
total distance of 463.04 feet to a point in the center of
Brushy Creek, being in the northerly line of Lot 59, Block F
of Final Plat of Freeman Park Subdivision Phase I, of record
in Document No. 2015010846 of said Official Public Records,
also being the most southerly southwesterly corner of said Lot
1, for the southeasterly corner hereof;
THENCE, leaving the most southerly southwesterly corner of said Lot
1, along or near the center of Brushy Creek, with the northerly
line of said Lot 59; the northerly line of Lot 26, Block B of Lake
Forest III, Village III Revised, a subdivision of record in
Document No. 2004095851 of said Official Public Records; the
northerly line of Lot 43, Block E of Final Plat of Sonoma Section
9, a subdivision of record in Document No. 2004021881 of said
Official Public Records; and the northerly line of Lot 46, Block F
of Final Plat of Sonoma Section 11, a subdivision of record in
Document No. 2005000171 of said Official Public Records for a
portion of the southerly line hereof, the following twenty-three
(23) courses and distances:
1) S71058' 01"W, a distance of 59.92 feet to an angle point;
2) S6604011111W, a distance of 90.58 feet to an angle point;
3) S49°32'25"W, a distance of 78. 88 feet to an angle point;
4) S4004713911W, a distance of 82. 04 feet to an angle point;
5) S2303712011W, a distance of 81.79 feet to an angle point;
6) S2805210411W, a distance of 110. 18 feet to an angle point;
7) S3601215211W, a distance of 282.02 feet to an angle point;
8) S38003'24"W, a distance of 84. 64 feet to an angle point;
9) S4703711211W, a distance of 329.19 feet to an angle point;
10) S15°41'16"E, a distance of 184.53 feet to an angle point;
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 3 OF 9
11) S07°27 '39"E, a distance of 150. 82 feet to an angle point;
12) S03049127"W, a distance of 142. 77 feet to an angle point;
13) S21°18106"W, a distance of 94.11 feet to an angle point;
14) S44°12101"W, a distance of 165.58 feet to an angle point;
15) S69051149"W, a distance of 215.14 feet to an angle point;
16) S45°25149"W, a distance of 111.25 feet to an angle point;
17) S26029136"W, a distance of 94 .25 feet to an angle point;
18) S31°48 ' 00"W, a distance of 125. 62 feet to an angle point;
19) S51058120"W, a distance of 230.16 feet to an angle point;
20) S6105512611W, a distance of 477.59 feet to an angle point;
21) S54°23'53"W, a distance of 144.42 feet to an angle point;
22) S40028156"W, a distance of 383. 47 feet to an angle point;
23) S42015133"W, a distance of 108. 54 feet to the southeasterly
corner of said 60.58-acre tract, for an angle point hereof;
THENCE, leaving the westerly line of said 155.589-acre tract, along
or near the center of Brushy Creek, with the northerly line of Lot
46 of said Sonoma Section 11 and the northerly line of Lot 46,
Block F of Final Plat of Sonoma Section 12, a subdivision of record
in Document No. 2005000358 of said Official Public Records for a
portion of the southerly line hereof, the following five (5)
courses and distances:
1) S42015'33"W, a distance of 148. 42 feet to an angle point;
2) S80°51111"W, a distance of 301. 01 feet to an angle point;
3) S83008 '53"W, a distance of 200. 01 feet to an angle point;
4) S67°32' 04"W, a distance of 132.76 feet to an angle point;
5) S62°26147"W, a distance of 141.77 feet to the southeasterly
corner of said 157. 385-acre tract, being the southwesterly
corner of said 60.58-acre tract, for an angle point hereof;
THENCE, leaving the southwesterly corner of said 60.58-acre tract,
along the approximate center of Brushy Creek, with the northerly
line of said Lot 46 and in part along the northerly line of that
certain 1.764-acre tract of land conveyed to the City of Round Rock
by deed of record in Document No. 2013056475 of said Official
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 4 OF 9
Public Records, for the southerly line hereof, the following four
(4) courses and distances:
1) S70010' 09"W, a distance of 138 . 30 feet to an angle point;
2) S58052142"W, a distance of 700. 00 feet to an angle point;
3) S67052142"W, a distance of 240. 00 feet to an angle point;
4) S5300414211W, a distance of 132.01 feet to a point in the
easterly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) for the southwesterly corner hereof;
THENCE, leaving the approximate center of Brushy Creek and the
northerly line of said 1.764-acre tract, along the easterly right-
of-way line of Kenney Fort Boulevard, for a portion of the westerly
line hereof, the following nine (9) courses and distances:
1) NO3027114"W, passing at a distance of 100.00 feet, a 1/2-inch
iron rod with "BURY" cap set for reference, and continuing for
a total distance of 492.81 feet to a 1/2-inch iron rod with
"Baker Aicklen" cap found;
2) N85058 ' 17"E, a distance of 58. 16 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
3) NO3026' 15"W, a distance of 243.69 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
4) N1901044"W, a distance of 376. 64 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
5) N26022135"W; a distance of 1454 . 98 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
6) N22047126"W, a distance of 160.27 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
7) N26023134"W, a distance of 114 .86 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
8) N23012113"W, a distance of 254 .74 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
9) NO2°18129"W, a distance of 323.01 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found at the intersection of the
easterly right-of-way line of Kenney Fort Boulevard and the
southerly right-of-way line of the Union Pacific Railroad,
being in the northerly line of said 157.385-acre tract, for
the northwesterly corner hereof;
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 5 OF 9
THENCE, N63036145"E, leaving the easterly right-of-way line of
Kenney Fort Boulevard, along the southerly right-of-way line of the
Union Pacific Railroad, being the northerly line of said 157.385-
acre tract for the northerly line hereof, a distance of 2121. 63
feet to the POINT OF BEGINNING, containing an area of 338 .795 acres
(14, 627,230 square feet) of land, more or less, SAVE AND EXCEPT
THEREFROM THE FOLLOWING TRACT OF LAND:
THAT CERTAIN 1. 50 ACRE TRACT OF LAND CONVEYED TO KEITH KRIENKE AND
LAURA RINEHART KRIENKE BY DEED OF RECORD IN DOCUMENT NO. 2006074399
OF SAID OFFICIAL PUBLIC RECORDS, TEXAS; SAID 1.50 ACRE TRACT BEING
MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
COMMENCING, a 1/2-inch iron rod with "Baker Aicklen" cap found in
the southerly right-of-way line of the Union Pacific Railroad for
the northwesterly corner of Lot 1, Block A of said Final Plat of
Brushy Creek Regional Wastewater Treatment Plant of record, being
the northeasterly corner of said 155. 589-acre tract;
THENCE, S26012100"E, leaving the southerly right-of-way line of the
Union Pacific Railroad, along the common line of said 155.589-acre
tract and said Lot 1, a distance of 49. 99 feet to a 1/2-inch iron
rod with "Baker Aicklen" cap found;
THENCE, S03034149"E, leaving the westerly line of said Lot 1, over
and across said 155.589-acre tract, a distance of 291.32 feet to a
1/2-inch iron rod with "Stan Coalter" cap found for the POINT OF
BEGINNING, being the northeasterly corner of said 1.50-acre tract
and hereof;
THENCE, along the exterior lines of said 1. 50-acre tract for the
exterior lines hereof, the following four (4) courses and
distances:
1) S03034 ' 49"E, a distance of 298. 62 feet to a 1/2-inch iron rod
with "Stan Coalter" cap found for the southeasterly corner
hereof;
2) S74024152"W, a distance of 244 .97 feet to a 1/2-inch iron rod
with "Stan Coalter" cap found for the southwesterly corner
hereof;
3) N06037152"E, a distance of 340.30 feet to a 1/2-inch iron rod
with `Stan Coalter" cap found for the northwesterly corner
hereof;
4) N81044134"E, a distance of 179.89 feet to the POINT OF
BEGINNING, containing an area of 1.500 acres (65, 357 square
feet) of land, leaving a TOTAL NET AREA OF 337.295 ACRES
(14, 692, 570 square feet) of land, more or less, within these
metes and bounds.
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 6 OF 9
PART 2 - 0.037 ACRES
BEGINNING, at a 1/2-inch iron rod with "Baker Aicklen" cap found in
the westerly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) , being in the common line of said 157 . 385-acre tract and
that certain 107. 17-acre tract of land conveyed to John Bolt
Harris, Et. Al. by deed of record in Volume 2372, Page 112 of said
Official Public Records and to The Hickox Family Living Trust by
deed of record in Document No. . 2006053683 of said Official Public
Records, for the northwesterly corner hereof;
THENCE, S2804214111E, leaving the easterly line of said 107 .17-acre
tract, along the westerly right-of-way line of Kenney Fort
Boulevard for the northerly line hereof, a distance of 59.01 feet
to a 1/2-inch iron rod with "Baker Aicklen" cap found for the
northerly corner of that certain 0.158-acre tract of land conveyed
to the City of Round Rock by deed of record in Document No.
2011041098 of said Official Public Records for the northeasterly
corner hereof;
THENCE, leaving the westerly right-of-way line of Kenney Fort
Boulevard, with the northerly line of said 0. 158-acre tract for the
easterly and southerly lines hereof, the following two (2) courses
and distances:
1) S1702613111W, a distance of 55.47 feet to a 1/2-inch iron rod
with "SAM" cap found for the southeasterly corner hereof;
2) S63037108"W, a distance of 8. 52 feet to a 1/2-inch iron rod
with "BURY " cap set in the common line of said 107.17-acre
tract and said 157. 385-acre tract for the southwesterly corner
hereof from which, a 1/2-inch iron rod with "SAM" cap found
for the apparent northwesterly corner of said 0.158-acre tract
as found bears, N76°15 ' 30"E, a distance of 0. 67 feet;
THENCE, NO2009144"W, leaving the northerly line of said 0. 158-acre
tract, along the common line of said 107.17-acre tract and said
157 .385-acre tract for the westerly line hereof, a distance of
108 .54 feet to the POINT OF BEGINNING, containing an area of 0.037
acres (1, 602 square feet) of land, more or less, within these metes
and bounds.
PART 3 - 4.609 ACRES
COMMENCING, at a 1/2-inch iron rod with "Baker Aicklen" cap found
in the westerly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) , being in the common line of said 157. 385-acre tract and
that certain 107.17-acre tract of land conveyed to John Bolt
Harris, Et. Al. by deed of record in Volume 2372, Page 112 of said
Official Public Records and to The Hickox Family Living Trust by
deed of record in Document No. 2006053683 of said Official Public
Records, for the northwesterly corner hereof;
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 7 OF 9
THENCE, S0200914411E, leaving the westerly right-of-way line of
Kenney Fort Boulevard, along the common line of said 107 . 17 acre
tract and said 157. 385 acre tract, a distance of 196.31 feet to a
1/2-inch iron rod with "BURY" cap set in the southerly line of that
certain 0 .158 acre tract of land conveyed to the City of Round Rock
by deed of record in Document No. 2011041098 of said Official
Public Records for the POINT OF BEGINNING, being the northwesterly
corner hereof from which, a 1/2-inch iron rod with "SAM" cap found
for the apparent southwesterly corner of said 0.158 acre tract as
found bears, N63°02114"E, a distance of 0. 70 feet;
THENCE, leaving the easterly line of said 107.17-acre tract, with
the southerly line of said 0.158-acre tract for the northerly line
hereof, the following two (2) courses and distances:
1) N63033' 51"E, a distance of 47. 01 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
2) S71°12 ' 55"E, a distance of 56.50 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found in the westerly right-of-way
line of Kenney Fort Boulevard, being the southeasterly corner
of said 0.158-acre tract, for the northeasterly corner hereof;
THENCE, S26022111"E, leaving the southeasterly corner of said
0. 158-acre tract, over and across said 157.385-acre tract, along
the westerly right-of-way line of Kenney Fort Boulevard for the
easterly line hereof, a distance of 695. 06 feet to a 1/2-inch iron
rod found for the northeasterly corner of that certain 0. 864-acre
tract of land conveyed to the City of Round Rock by deed of record
in Document No. 2011041098 of said Official Public Records for the
southeasterly corner hereof;
THENCE, leaving the westerly right-of-way line of Kenney Fort
Boulevard, with the northerly line of said 0.864-acre tract for the
southerly line hereof, the following two (2) courses and distances:
1) S18°36' 13"W, a distance of 56.47 feet to a 1/2-inch iron rod
found;
2) S63036' 13"W, a distance of 395.45 feet to a 1/2-inch iron rod
with "BURY " cap set in the common line of said 107 . 17-acre
tract and said 157. 385-acre tract for the southwesterly corner
hereof from which, a 1/2-inch iron rod found for the apparent
northwesterly corner of said 0.864-acre tract as found bears,
N58021123"E, a distance of 1. 69 feet;
THENCE, NO200914411W, leaving the northerly line of said 0.864-acre
tract, along the common line of said 107.17-acre tract and said
157 .385-acre tract for the westerly line hereof, a distance of
849.94 feet to the POINT OF BEGINNING, containing an area of 4.609
acres (200, 777 square feet) of land, more or less, within these
metes and bounds.
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 8 OF 9
PART 4 - 9.796 ACRES
COMMENCING, at a 1/2-inch iron rod with "Baker Aicklen" cap found
in the westerly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) , being in the common line of said 157. 385-acre tract and
that certain 107. 17-acre tract of land conveyed to John Bolt
Harris, Et. Al. by deed of record in Volume 2372, Page 112 of said
Official Public Records and to The Hickox Family Living Trust by
deed of record in Document No. 2006053683 of said Official Public
Records, for the northwesterly corner hereof;
THENCE, S02009'44"E, leaving the westerly right-of-way line of
Kenney Fort Boulevard, along the common line of said 107 .17 acre
tract and said 157. 385 acre tract, a distance of 1133.82 feet to a
1/2-inch iron rod with "BURY" cap set in the southerly line of that
certain 0.864 acre tract of land conveyed to the City of Round Rock
by deed of record in Document No. 2011041098 of said Official
Public Records for the POINT OF BEGINNING, being the northwesterly
corner hereof from which, a 1/2-inch iron rod with "SAM" cap found
for the apparent southwesterly corner of said 0.864 acre tract as
found bears, N6205211911E, a distance of 1. 77 feet;
THENCE, leaving the easterly line of said 107.17-acre tract, with
the southerly line of said 0.864-acre tract for the northerly line
hereof, the following two (2) courses and distances:
1) N63°36157"E, a distance of 431.40 feet to a 1/2-inch iron rod
found;
2) S71027138"E, a distance of 56.40 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found in the westerly right-of-way
line of Kenney Fort Boulevard, being the southeasterly corner
of said 0.864-acre tract, for the northeasterly corner hereof;
THENCE, leaving the southeasterly corner of said 0.864-acre tract,
along the westerly right-of-way line of Kenney Fort Boulevard for
the easterly line hereof, the following four (4) courses and
distances:
1) S26022109"E, a distance of 250.82 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found at the point of curvature of a
non-tangent curve to the right;
2) Along said non-tangent curve to the right, having a radius of
1441.72 feet, a central angle of 12°09139", an arc length of
306. 00 feet, and a chord which bears, S21015' 08"E, a distance
of 305.42 feet to a 1/2-inch iron rod with "Baker Aicklen" cap
found at the end of said curve;
3) S00°08116"E, a distance of 360.25 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
4) S16°10146"W, a distance of 165.87 feet to a 1/2-inch iron rod
with "SAM" cap found for the most northerly northeasterly
FN. NO. 16-433 (DLB)
NOVEMBER 28, 2016
PAGE 9 OF 9
corner of that certain 12.1-acre tract of land conveyed to the
City of Round Rock by deed of record in Document No.
2013049009 of said Official Public Records for the
southeasterly corner hereof;
THENCE, S88041151"W, leaving the westerly right-of-way line of
Kenney Fort Boulevard, along the northerly line of said 12. 1-acre
tract for the southerly line hereof, a distance of 267.19 feet to a
1/2-inch iron rod with "Baker Aicklen" cap found in the easterly
line of that certain 4 . 42-acre tract of land conveyed to Thomas P.
Elrod Et. Ux. By deed of record in Document No. 1813, Page 540 of
said Official Public Records, being the westerly line of said
157 .385-acre tract, also being the most northerly northwesterly
corner of said 12. 1-acre tract for the southwesterly corner hereof;
THENCE, N01023' 35"W, leaving the northerly line of said 12. 1-acre
tract, along the common line of said 157 .385-acre tract and said
4 . 42-acre tract for a portion of the westerly line hereof, a
distance of 498.34 feet to a 1/2-inch iron rod found for the
northeasterly corner of said 4 .42-acre tract;
THENCE, S89011133"W, along the irregular westerly line of said
157.385-acre tract and the northerly line of said 4.42-acre tract,
passing at a distance of 319.72 feet, a 1/2-inch iron rod found for
the northwesterly corner of said 4 . 42-acre tract, and continuing
for a total distance of 323. 61 feet to a 1/2-inch iron rod found in
the common line of said 157.385-acre tract and said 107. 17-acre
tract for the southwesterly corner hereof;
THENCE, NO200914411W, along the common line of said 157.385-acre
tract and said 107. 17-acre tract for a portion of the westerly line
hereof, a distance of 367.85 feet to the POINT OF BEGINNING,
containing an area of 9.796 acres (426, 728 square feet) of land,
more or less, within these metes and bounds.
BEARING BASIS: THE BASIS OF BEARING OF THE SURVEY SHOWN HEREON IS
TEXAS STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83 (96) ,
UTILIZING WESTERN DATA SYSTEMS CONTINUALLY OPERATING REFERENCE
STATION (CORS) NETWORK.
I, JOHN T. BILNOSKI, A REGISTERED PROFESSIONAL LAND SURVEYOR, DO
HEREBY CERTIFY THAT THE PROPERTY DESCRIBED HEREIN WAS DETERMINED
BY A SURVEY MADE ON THE GROUND UNDER MY DIRECTION AND
SUPERVISION.
STANTEC CONSULTING JOH T. BILNOSKI DATE OF F
�p�E.or r
SERVICES INC. R. P L S. NO. 4998 �oQt�C�tiE9Fo cP
221 WEST SIXTH STREET STdTE OF TEXAS
SUITE 600 TBPLS # F-10194230 1 JOHirT.b"eLNOSKI
AUSTIN, TEXAS 78701 john.bilnoski@stantec.com ""4998
�' sutiO�
P.LUDE
P.O.C. EXCLUDED
TRACT 0 400 800 1200 1600
EXCLUDED 1"=80'
TRACT
O
a EXCLUDED TRACT
1500 ACRES
Q0O w 155.589 ACRES
m¢ KE17H KR/ENKE, MARK MERED17H
y > DOCUMENT NO, 2006113854
�r w GREGORY STEPHEN CAR7£R
DOCUMENT NO. 2010072268
W >a
..:. TOTAL AREA
351.737 ACRES
a
w (15,321,664 SQ. FT.)
PART 1
P.O.B. 337.295
PART 1 ACRES
6'
Lor I
BER77L TFLANDER ��s'F�✓Oy�oy�c`�+
SUSDIWS/ON
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020140598250 o��F ?� 9 S sti
0.854 ACRES p�ss> AGF rr9
C/TY OF ROUND ROCK
1oD, DOCUMENT NO. KENNEY FORT
WA 2011041098
RICH T-OF-
UN/ON PACIRO BOULEVARD
RAILROAD PART 2 PART 3 (R.O.W. VARIES)
0.037 4,609 PART 4 _
ACRES ACRES 9.796 LEGEND
ACRES P.O.B. POINT OF
BEGINNING
P•O•EL P.O.C. POINT OF
PART 2 COMMENCEMENT
P.O.C. S&E SAVE EXCEPT ND
PARTS 3 P.O.B.
AND 4 PART 3
P.O.B. _4.42 ACRES
0,156 ACRES PART 4 THOMAS P.
CITY OF £LROD AND
ROUND ROCK 107.17 ACRES SPOUSE,
DOCUMENT N0, THE H/CKOX FAMILY L114NG 7RUST, ET. AL. CHRISTEL ELROD
2011041098 DOCUMENT NO. 2006053683 VOLUME 1813
VOLUME 2372, PAGE 112 PAGE 540
+� Q SKEMH TO A=MP DESCRIPTION
J� � Q��'�i OF SITUATE ACRES OF LAND OUT OF THE P.A.HOLDER SURVEY, ABSTRACT N0.
294,SITUATED IN THE CITY OF ROUND ROCK,NIWAAISON COUNTY;TEXAS BEINC A
PORTION OF THAT CERTAIN 157,385 ACRE TRACT OF LAND OF RECORD IN
221 West Sixth Street,Suite 600 DOCUMENT NO. 2007049657 AND ALL OF THOSE CERTAIN TRACTS OF LAND OF KR CC, INCAus1ln,Texas 78701 RECORD IN DOCUMENT NO. 2003035323,2006113854
AND 2010072268, ALL OF
THE OFFICIAL PUBLIC RECORDS OF\NWAMSON COUNTY,TEXAS; ALSO BEING ALL
Tol.(512)328.0011 Fax(512)328-0325 OF LOT 9 OF THE S.M.SWENSON SUBDIVISION,OF RECORD IN BOOK 13,PAGE 119
TBPE it F-6324 TBPLS#F-10194230 OF THE DEED RECORDS OF WIWAMSON COUNTY, TEXAS; AND ALSO LOT 1, OF THE
Copyright 02016 BERTIL TELANDER SUBDIVISION,OF RECORD IN CABINET H, SLIDE 128 OF THE PLAT
RECORDS OF v,ILIJAMSON COUNTY TEXAS
DATE:11/28/2016 1 DRAWN BY:KWAIDLB I FN: 16-433(DLB) I FILE:V:\2220\ACTIVE\SURVEY\222010482EX3.DWG PROJECT No. 222010482
V:\2220\activo\222010482\survey\222010482EX3.dwg Nov 29, 16 8:41 AM by. dbogoert
Exhibit A-2
Leased Premises
(see attached)
A-2
350.237 ACRES FN. NO. 16-341(MJR)
LAND SEPTEMBER 13, 2016
DESCRIPTIONS • FILE NO. 222010482
DESCRIPTION
OF A 350.237 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY,
ABSTRACT NO 297 SITUATED IN THE CITY OF ROUND ROCK, WILLIAMSON
COUNTY, TEXAS BEING A PORTION OF THE REMAINDER OF THAT CERTAIN
157 . 385 ACRE TRACT OF LAND CONVEYED TO BISON TRACT 79, LTD. BY DEED
OF RECORD IN DOCUMENT NO. 2007049657 OF THE OFFICIAL PUBLIC RECORDS
OF WILLIAMSON COUNTY, TEXAS; ALL OF THAT CERTAIN 60. 58 ACRE TRACT
OF LAND CONVEYED TO ERNEST NELSON JOHNSON, JOHN DAVID JOHNSON AND
BERTHA MARIE JOHNSON KELLER BY DEED OF RECORD IN DOCUMENT NO.
2003035323 OF SAID OFFICIAL PUBLIC RECORDS, SAME BEING ALL OF LOT 9
OF THE SWENSON SUBDIVISION, OF RECORD IN VOLUME 13, PAGE 119 OF THE
DEED RECORDS OF WILLIAMSON COUNTY, TEXAS; ALL OF THAT CERTAIN
155. 589 ACRE TRACT OF LAND CONVEYED TO KEITH KRIENKE AND MARK
MEREDITH BY DEED OF RECORD IN DOCUMENT NO. 2006113854 OF SAID
OFFICIAL PUBLIC RECORDS, SAME BEING CONVEYED TO GREGORY CARTER BY
DEED OF RECORD IN DOCUMENT NO. 2010072268 OF SAID OFFICIAL PUBLIC
RECORDS; SAID 350.237 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED
IN FOUR PARTS BY METES AND BOUNDS AS FOLLOWS:
PART 1 - 335.795 ACRES
BEGINNING, at a 5/8-inch iron rod found in the southerly right-of-
way line of the Union Pacific Railroad (100' R.O.W. ) being the
northeasterly corner of said 157. 385-acre tract, also being the
northwesterly corner of said 155. 589-acre tract;
THENCE, N63037128"E, leaving the northeasterly corner of said
157.385 acre tract, along the southerly right-of-way line of the
Union Pacific Railroad, for a portion of the northerly line hereof,
a distance of 2864 . 50 feet to a 1/2-inch iron rod with "Baker
Aicklen" cap found at the northwesterly corner of Lot 1, Block A of
Final Plat of Brushy Creek Regional Wastewater Treatment Plant, a
subdivision of record in Document No. 2007067173 of said Official
Public Records, being the northeasterly corner of said 155.589 acre
tract and hereof;
THENCE, leaving the southerly right-of-way line of the Union
Pacific Railroad, along the common line of said Lot 1 and said
155.589-acre tract, for the easterly line hereof, the following six
(6) courses and distances:
1) S26°12' 00"E, a distance of 49. 99 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
2) N63°41' 06"E, a distance of 81. 63 feet to a 1/2-inch iron rod
with illegible cap found;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 2 OF 10
3) S03033'52"E, a distance of 1695. 07 feet to a 1/2-inch iron rod
with "LCRA" cap found;
4) N58053153"E, a distance of 362. 51 feet to a 1/2-inch iron rod
with "LCRA" cap found;
5) N58035' 13"E, a distance of 245. 00 feet to a 1/2-inch iron rod
with "LCRA" cap found;
6) S02028132"E, passing at a distance of 387 .44 feet, a 1/2-inch
iron rod with "SURVCON INC" cap found, and continuing for a
total distance of 463.04 feet to a point in the center of
Brushy Creek, being in the northerly line of Lot 59, Block F
of Final Plat of Freeman Park Subdivision Phase I, of record
in Document No. 2015010846 of said Official Public Records,
also being the most southerly southwesterly corner of said Lot
1, for the southeasterly corner hereof;
THENCE, leaving the most southerly southwesterly corner of said Lot
1, along or near the center of Brushy Creek, with the northerly
line of said Lot 59; the northerly line of Lot 26, Block B of Lake
Forest III, Village III Revised, a subdivision of record in
Document No. 2004095851 of said Official Public Records; the
northerly line of Lot 43, Block E of Final Plat of Sonoma Section
9, a subdivision of record in Document No. 2004021881 of said
Official Public Records; and the northerly line of Lot 46, Block F
of Final Plat of Sonoma Section 11, a subdivision of record in
Document No. 2005000171 of said Official Public Records for a
portion of the southerly line hereof, the following twenty-three
(23) courses and distances:
1) S71°58101"W, a distance of 59.92 feet to an angle point;
2) S66040111"W, a distance of 90.58 feet to an angle point;
3) S4903212511W, a distance of 78.88 feet to an angle point;
4) S4004713911W, a distance of 82.04 feet to an angle point;
5) S23037 '20"W, a distance of 81.79 feet to an angle point;
6) S28052' 0411W, a distance of 110.18 feet to an angle point;
7) S36°12' 52"W, a distance of 282.02 feet to an angle point;
8) S38003124"W, a distance of 84. 64 feet to an angle point;
9) S4703711211W, a distance of 329.19 feet to an angle point;
10) S15°41' 16"E, a distance of 184.53 feet to an angle point;
11) S0702713911E, a distance of 150.82 feet to an angle point;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 3 OF 10
12) S03049127"W, a distance of 142 .77 feet to an angle point;
13) S21°18106"W, a distance of 94 .11 feet to an angle point;
14) S44012101"W, a distance of 165.58 feet to an angle point;
15) S69°51149"W, a distance of 215.14 feet to an angle point;
16) S45°25' 49"W, a distance of 111.25 feet to an angle point;
17) S26029136"W, a distance of 94.25 feet to an angle point;
18) S31°48100"W, a distance of 125. 62 feet to an angle point;
19) S51058120"W, a distance of 230. 16 feet to an angle point;
20) S61°55'26"W, a distance of 477 . 59 feet to an angle point;
21) S54°23' 53"W, a distance of 144. 42 feet to an angle point;
22) S40°28156"W, a distance of 383. 47 feet to an angle point;
23) S42°15' 33"W, a distance of 108.54 feet to the southeasterly
corner of said 60.58-acre tract, for an angle point hereof;
THENCE, leaving the westerly line of said 155.589-acre tract, along
or near the center of Brushy Creek, with the northerly line of Lot
46 of said Sonoma Section 11 and the northerly line of Lot 46,
Block F of Final Plat of Sonoma Section 12, a subdivision of record
in Document No. 2005000358 of said Official Public Records for a
portion of the southerly line hereof, the following five (5)
courses and distances:
1) S42015133"W, a distance of 148.42 feet to an angle point;
2) S80°51' 11"W, a distance of 301.01 feet to an angle point;
3) S83°08153"W, a distance of 200.01 feet to an angle point;
4) S67032104"W, a distance of 132.76 feet to an angle point;
5) S62°26147"W, a distance of 141.77 feet to the southeasterly
corner of said 157.385-acre tract, being the southwesterly
corner of said 60. 58-acre tract, for an angle point hereof;
THENCE, leaving the southwesterly corner of said 60.58-acre tract,
along the approximate center of Brushy Creek, with the northerly
line of said Lot 46 and in part along the northerly line of that
certain 1. 764-acre tract of land conveyed to the City of Round Rock
by deed of record in Document No. 2013056475 of said Official
Public Records, for the southerly line hereof, the following four
(4) courses and distances:
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 4 OF 10
1) S70010'09"W, a distance of 138. 30 feet to an angle point;
2) S58052 ' 42"W, a distance of 700. 00 feet to an angle point;
3) S67052142"W, a distance of 240. 00 feet to an angle point;
4) S53004142"W, a distance of 132. 01 feet to a point in the
easterly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) for the southwesterly corner hereof;
THENCE, leaving the approximate center of Brushy Creek and the
northerly line of said 1.764-acre tract, along the easterly right-
of-way line of Kenney Fort Boulevard, for a portion of the westerly
line hereof, the following nine (9) courses and distances:
1) NO3°27 ' 14"W, passing at a distance of 100.00 feet, a 1/2-inch
iron rod with "BURY" cap set for reference, and continuing for
a total distance of 492. 81 feet to a 1/2-inch iron rod with
"Baker Aicklen" cap found;
2) N85058 ' 17"E, a distance of 58. 16 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
3) NO3026115"W, a distance of 243. 69 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
4) N19010144"W, a distance of 376. 64 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
5) N2602213511W, a distance of 1454 . 98 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
6) N22047126"W, a distance of 160.27 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
7) N26023134"W, a distance of 114.86 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
8) N23012 ' 13"W, a distance of 254.74 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
9) NO2018129"W, a distance of 323.01 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found at the intersection of the
easterly right-of-way line of Kenney Fort Boulevard and the
southerly right-of-way line of the Union Pacific Railroad,
being in the northerly line of said 157. 385-acre tract, for
the northwesterly corner hereof;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 5 OF 10
THENCE, N63036145"E, leaving the easterly right-of-way line of
Kenney Fort Boulevard, along the southerly right-of-way line of the
Union Pacific Railroad, being the northerly line of said 157.385-
acre tract for the northerly line hereof, a distance of 2121. 63
feet to the POINT OF BEGINNING, containing an area of 338.795 acres
(14, 627,230 square feet) of land, more or less, SAVE AND EXCEPT
THEREFROM THE FOLLOWING TRACT OF LAND:
LOT 1, OF THE BERTIL TELANDER SUBDIVISION, OF RECORD IN CABINET H,
SLIDE 126 OF THE PLAT RECORDS OF WILLIAMSON COUNTY, TEXAS; SAID LOT
1 BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
COMMENCING, at a 5/8-inch iron rod found in the southerly right-of-
way line of the Union Pacific Railroad (].00' R.O.W. ) being the
northwesterly corner of said 176. 78-acre tract of land and also
being the northeasterly corner of said 157 .385-acre tract;
THENCE, S02010 '29"E, leaving the southerly right-of-way line of the
Union Pacific Railroad, along the common line of said 157 . 385-acre
tract and said 176.78-acre tract, a distance of 305.90 feet to a
1/2-inch iron rod with "Baker Aicklen" cap found for an angle point
in said common line;
THENCE, S84058111"W, leaving the westerly line of said 176.78-acre
tract, over and across said 157. 385-acre tract, a distance of 31. 42
feet to a 1/2-inch iron rod found for the POINT OF BEGINNING, being
the northeasterly corner of said Lot 1 and hereof;
THENCE, along the exterior lines of said Lot 1, the following four
(4) courses and distances:
1) S02004150"E, a distance of 255.76 feet to a 1/2-inch iron rod
found for the southeasterly corner hereof;
2) S87058100"W, a distance of 255. 61 feet to a 1/2-inch iron rod
found for the southwesterly corner hereof;
3) NO2002148"W, a distance of 255.58 feet to a 1/2-inch iron rod
found for the northwesterly corner hereof;
4) N87055135"E, a distance of 255.46 feet to the POINT OF
BEGINNING, containing an area of 1.500 acres (65, 334 square
feet) of land.
ALSO SAVE AND EXCEPT THEREFROM THE FOLLOWING TRACT OF LAND:
THAT CERTAIN 1.50 ACRE TRACT OF LAND CONVEYED TO KEITH KRIENKE AND
LAURA RINEHART KRIENKE BY DEED OF RECORD IN DOCUMENT NO. 2006074399
OF SAID OFFICIAL PUBLIC RECORDS, TEXAS; SAID 1.50 ACRE TRACT BEING
MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 6 OF 10
CON¢r1ENCING, a 1/2-inch iron rod with "Baker Aicklen" cap found in
the southerly right-of-way line of the Union Pacific Railroad for
the northwesterly corner of Lot 1, Block A of said Final Plat of
Brushy Creek Regional Wastewater Treatment Plant of record, being
the northeasterly corner of said 155. 589-acre tract;
THENCE, S26012 ' 00"E, leaving the southerly right-of-way line of the
Union Pacific Railroad, along the common line of said 155.589-acre
tract and said Lot 1, a distance of 49. 99 feet to a 1/2-inch iron
rod with "Baker Aicklen" cap found;
THENCE, S03034149"E, leaving the westerly line of said Lot 1, over
and across said 155.589-acre tract, a distance of 291.32 feet to a
1/2-inch iron rod with "Stan Coalter" cap found for the POINT OF
BEGINNING, being the northeasterly corner of said 1.50-acre tract
and hereof;
THENCE, along the exterior lines of said 1. 50-acre tract for the
exterior lines hereof, the following four (4) courses and
distances_
1) S03034149"E, a distance of 298.62 feet to a 1/2-inch iron rod
with "Stan Coalter" cap found for the southeasterly corner
hereof;
2) S74°24152"W, a distance of 244 . 97 feet to a 1/2-inch iron rod
with "Stan Coalter" cap found for the southwesterly corner
hereof;
3) N0603715211E, a distance of 340.30 feet to a 1/2-inch iron rod
with "Stan Coalter" cap found for the northwesterly corner
hereof;
4) N81044134"E, a distance of 179. 89 feet to the POINT OF
BEGINNING, containing an area of 1.500 acres (65, 357 square
feet) of land, leaving a TOTAL NET AREA OF 335.795 ACRES
(15, 256,308 square feet) of land, more or less, within these
metes and bounds.
PART 2 - 0.037 ACRES
BEGINNING, at a 1/2-inch iron rod with "Baker Aicklen" cap found in
the westerly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) , being in the common line of said 157.385-acre tract and
that certain 107. 17-acre tract of land conveyed to John Bolt
Harris, Et. Al. by deed of record in Volume 2372, Page 112 of said
Official Public Records and to The Hickox Family Living Trust by
deed of record in Document No. 2006053683 of said Official Public
Records, for the northwesterly corner hereof;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 7 OF 1.0
THENCE, S28042' 41"E, leaving the easterly line of said 107. 17-acre
tract, along the westerly right-of-way line of Kenney Fort
Boulevard for the northerly line hereof, a distance of 59. 01 feet
to a 1/2-inch iron rod with "Baker Aicklen" cap found for the
northerly corner of that certain 0. 158-acre tract of land conveyed
to the City of Round Rock by deed of record in Document No.
2011041098 of said Official Public Records for the northeasterly
corner hereof;
THENCE, leaving the westerly right-of-way line of Kenney Fort
Boulevard, with the northerly line of said 0. 158-acre tract for the
easterly and southerly lines hereof, the following two (2) courses
and distances:
1) S17026131"W, a distance of 55. 47 feet to a 1/2-inch iron rod
with "SAM" cap found for the southeasterly corner hereof;
2) S63037 ' 08"W, a distance of 8.52 feet to a 1/2-inch iron rod
with "BURY " cap set in the common line of said 107. 17-acre
tract and said 157.385-acre tract for the southwesterly corner
hereof from which, a 1/2-inch iron rod with "SAM" cap found
for the apparent northwesterly corner of said 0. 158-acre tract
as found bears, N76°15130"E, a distance of 0. 67 feet;
THENCE, NO2009' 44"W, leaving the northerly line of said 0.158-acre
tract, along the common line of said 107. 17-acre tract and said
157.385-acre tract for the westerly line hereof, a distance of
108.54 feet to the POINT OF BEGINNING, containing an area of 0.037
acres (1, 602 square feet) of land, more or less, within these metes
and bounds.
PART 3 - 4.609 ACRES
COMMENCING, at a 1/2-inch iron rod with "Baker Aicklen" cap found
in the westerly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) , being in the common line of said 157.385-acre tract and
that certain 107. 17-acre tract of land conveyed to John Bolt
Harris, Et. Al. by deed of record in Volume 2372, Page 112 of said
Official Public Records and to The Hickox Family Living Trust by
deed of record in Document No. 2006053683 of said Official Public
Records, for the northwesterly corner hereof;
THENCE, S0200914411E, leaving the westerly right-of-way line of
Kenney Fort Boulevard, along the common line of said 107. 17 acre
tract and said 157.385 acre tract, a distance of 196.31 feet to a
1/2-inch iron rod with "BURY" cap set in the southerly line of that
certain 0. 158 acre tract of land conveyed to the City of Round Rock
by deed of record in Document No. 2011041098 of said Official
Public Records for the POINT OF BEGINNING, being the northwesterly
corner hereof from which, a 1/2-inch iron rod with "SAM" cap found
for the apparent southwesterly corner of said 0. 158 acre tract as
found bears, N63002' 14"E, a distance of 0.70 feet;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 8 OF 10
THENCE, leaving the easterly line of said 107 . 17-acre tract, with
the southerly line of said 0.158-acre tract for the northerly line
hereof, the following two (2) courses and distances:
1) N63033151"E, a distance of 47. 01 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
2) S71012'55"E, a distance of 56.50 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found in the westerly right-of-way
line of Kenney Fort Boulevard, being the southeasterly corner
of said 0. 158-acre tract, for the northeasterly corner hereof;
THENCE, S26022111"E, leaving the southeasterly corner of said
0. 158-acre tract, over and across said 157.385-acre tract, along
the westerly right-of-way line of Kenney Fort Boulevard for the
easterly line hereof, a distance of 695.06 feet to a 1/2-inch iron
rod found for the northeasterly corner of that certain 0. 864-acre
tract of land conveyed to the City of Round Rock by deed of record
in Document No. 2011041098 of said Official Public Records for the
southeasterly corner hereof;
THENCE, leaving the westerly right-of-way line of Kenney Fort
Boulevard, with the northerly line of said 0. 864-acre tract for the
southerly line hereof, the following two (2) courses and distances:
1) S18°36' 13"W, a distance of 56. 47 feet to a 1/2-inch iron rod
found;
2) S63036' 13"W, a distance of 395.45 feet to a 1/2-inch iron rod
with "BURY" cap set in the common line of said 107. 17-acre
tract and said 157 . 385-acre tract for the southwesterly corner
hereof from which, a 1/2-inch iron rod found for the apparent
northwesterly corner of said 0. 864-acre tract as found bears,
N58°21'23"E, a distance of 1. 69 feet;
THENCE, NO2009144"W, leaving the northerly line of said 0. 864-acre
tract, along the common line of said 107 .17-acre tract and said
157.385-acre tract for the westerly line hereof, a distance of
849. 94 feet to the POINT OF BEGINNING, containing an area of 4.609
acres (200,777 square feet) of land, more or less, within these
metes and bounds.
PART 4 - 9.796 ACRES
COMMENCING, at a 1/2-inch iron rod with "Baker Aicklen" cap found
in the westerly right-of-way line of Kenney Fort Boulevard (R.O.W.
Varies) , being in the common line of said 157. 385-acre tract and
that certain 107.17-acre tract of land conveyed to John Bolt
Harris, Et. Al. by deed of record in Volume 2372, Page 112 of said
Official Public Records and to The Hickox Family Living Trust by
deed of record in Document No. 2006053683 of said Official Public
Records, for the northwesterly corner hereof;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 9 OF 10
THENCE, S02009' 44"E, leaving the westerly right-of-way line of
Kenney Fort Boulevard, along the common line of said 107.17 acre
tract and said 157. 385 acre tract, a distance of 1133.82 feet to a
1/2-inch iron rod with "BURY" cap set in the southerly line of that
certain 0. 864 acre tract of land conveyed to the City of Round Rock
by deed of record in Document No. 2011041098 of said Official
Public Records for the POINT OF BEGINNING, being the northwesterly
corner hereof from which, a 1/2-inch iron rod with "SAM" cap found
for the apparent southwesterly corner of said 0.864 acre tract as
found bears, N62°52119"E, a distance of 1.77 feet;
THENCE, leaving the easterly line of said 107 . 17-acre tract, with
the southerly line of said 0.864-acre tract for the northerly line
hereof, the following two (2) courses and distances:
1) N63°36' 57"E, a distance of 431. 40 feet to a 1/2-inch iron rod
found;
2) S71027138"E, a distance of 56. 40 feet to a 1/2-inch iron rod
with "Baker Aicklen"' cap found in the westerly right-of-way
line of Kenney Fort Boulevard, being the southeasterly corner
of said 0.864-acre tract, for the northeasterly corner hereof;
THENCE, leaving the southeasterly corner of said 0. 864-acre tract,
along the westerly right-of-way line of Kenney Fort Boulevard for
the easterly line hereof, the following four (4) courses and
distances:
1) S26022109"E, a distance of 250. 82 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found at the point of curvature of a
non-tangent curve to the right;
2) Along said non-tangent curve to the right, having a radius of
1441.72 feet, a central angle of 12°09139", an arc length of
306. 00 feet, and a chord which bears, S21015' 08"E, a distance
of 305. 42 feet to a 1/2-inch iron rod with "Baker Aicklen" cap
found at the end of said curve;
3) S00008116"E, a distance of 360.25 feet to a 1/2-inch iron rod
with "Baker Aicklen" cap found;
4) S16010146"W, a distance of 165.87 feet to a 1/2-inch iron rod
with "SAM" cap found for the most northerly northeasterly
corner of that certain 12. 1-acre tract of land conveyed to the
City of Round Rock by deed of record in Document No.
2013049009 of said Official Public Records for the
southeasterly corner hereof;
FN. NO. 16-341 (MJR)
SEPTEMBER 13, 2016
PAGE 10 OF 10
THENCE, S88041151"W, leaving the westerly right-of-way line of .
Kenney Fort Boulevard, along the northerly line of said 12.1-acre
tract for the southerly line hereof, a distance of 267.19 feet to a
1/2-inch iron rod with "Baker Aicklen" cap found in the easterly
line of that certain 4 .42-acre tract of land conveyed to Thomas P.
Elrod Et. Ux. By deed of record in Document No. 1813, Page 540 of
said Official Public Records, being the westerly line of said
157.385-acre tract, also being the most northerly northwesterly
corner of said 12. 1-acre tract for the southwesterly corner hereof;
THENCE, N01023135"W, leaving the northerly line of said 12. 1-acre
tract, along the common line of said 157. 385-acre tract and said
4 .42-acre tract for a portion of the westerly line hereof, a
distance of 498 . 34 feet to a 1/2-inch iron rod found for the
northeasterly corner of said 4 . 42-acre tract;
THENCE, S89011133"W, along the irregular westerly line of said
157 . 385-acre tract and the northerly line of said 4 . 42-acre tract,
passing at a distance of 319.72 feet, a 1/2-inch iron rod found for
the northwesterly corner of said 4 . 42-acre tract, and continuing
for a total distance of 323. 61 feet to a 1/2-inch iron rod found in
the common line of said 157. 385-acre tract and said 107. 17-acre
tract for the southwesterly corner hereof;
THENCE, NO200914411W, along the common line of said 157 .385-acre
tract and said 107. 17-acre tract for a portion of the westerly line
hereof, a distance of 367. 85 feet to the POINT OF BEGINNING,
containing an area of 9. 796 acres (426,728 square feet) of land,
more or less, within these metes and bounds.
BEARING BASIS: THE BASIS OF BEARING OF THE SURVEY SHOWN HEREON IS
TEXAS STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83(96) ,
UTILIZING WESTERN DATA SYSTEMS CONTINUALLY OPERATING REFERENCE
STATION (CORS) NETWORK.
I, JOHN T. BILNOSKI, A REGISTERED PROFESSIONAL LAND SURVEYOR, DO
HEREBY CERTIFY THAT THE PROPERTY DESCRIBED HEREIN WAS DETERMINED
BY A SURVEY MADE ON THE GROUND UNDER MY DIRECTION AND
SUPERVISION.
Zvi 1c
STANTEC CONSULTING J0 BILNOSKI DATE
SERVICES INC. R. P.L.S. NO. 4998
221 WEST SIXTH STREET ST TE F TEXAS
SUITE 600 TBPLS # F-10194230 0F7�c�._
AUSTIN, TEXAS 78701 john.bilnoski@stantec.com.
JOHN T.SILNOSKI`
P.O.B.
P.O.C.--J 2ND SAVE & 0 400 800 1200 1600
2ND SAVE & EXCEPT TRACT 1 -80
EXCEPT
TRACT
Q 2ND SBE TRACT
1.500 ACRES
~ J�
Q :Dw 155.589 ACRES
ow
KE/7H KR/ENKE MARK MEREDITH
_ DOCUMENT N0. 2006113854
GREGORY STEPHEN CAR7ER
3 DOCUMENT N0. 2010072268
z Q TOTAL AREA
350.237 ACRES 1
to w (15,256,324 SQ. FT.)
P.O.B. PART 1
PART 1 P.O.B. 335.795 _
P.O.C. IST SAVE & ACRES
15E CEPT SAVE & EXCEPT !04
os
TRACT TRACT
✓o 'iso �o
00 'SSV A; 'SN
04,
1ST S&E
TRACT oocG019
1.50041,
ACRES �oo�t ��Fs a oo,�sioNN
0.854 ACRES oR96s? 90<``
CITY OF ROUND ROCK _
DOCUMENT NO: KENNEY FORT
100' - 2011041098
RIGHT-OF-WAY BOULEVARD
UNION FA CIRC
RAILROAD PART 2 PART 3 (R.O.W. VARIES)
0.037 4.609 PART 4
ACRES ACRES 9.796 LEGEND
ACRES P.O.B. POINT OF
BEGINNING
P.O.B. P.O.C. POINT OF
PART 2 COMMENCEMENT
P.O.C. S&E SAVE AND
EXCEPT
PARTS 3 P.O.B.
AND 4 PART 3
P.O.B. 4.42 ACRES
0.158 ACRES PART 4 THOMAS P
CITY OF 107.17 ACRES ELROD AND
ROUND ROCK THE H/CKOX FAM/L Y LI KNG TRUST, ET. AL. SPOUSE,
DOCUMENT N0. CHR/STEL ELR00
2011041098 DOCUMENT NO. 2006053683 VOLUME 1813
VOLUME 2372, PAGE 112 PAGE 540
CC +� /'� SKETCH TO ACCOMPANY DESCRIPTION
V ��'1 E'C OF 94,-SITUATED
ACRES OF LAND OUT OF THE P.A.HOLDER SURVEY, ABSTRACT KR
N0. 294, SITUATED IN THE CITY Of ROUND ROCK, NILLIAMSON COUNTY, TEXAS
BEING A PORTION OF THAT CERTAIN 157.365 ACRE TRACT OF LAND OF ACQUISITIONS
221 West Sixth 51reel.Suite 600 RECORD IN DOCUMENT NO. 2007049657 AND ALL OF THOSE CERTAIN TRACT5
Auslin.Texas 76701 OF LAND OF RECORD IN DOCUMENT NO. 2003035323, 2006113854 AND
ToL(512)32U.U011 Fax(51))326-0325 2010072268, ALL OF THE OFFICIAL PUBLIC RECORDS OF TRAVIS COUNTY, LLC
TEXAS; ALSO BEING ALL OF LOT 9 OF THE S.M. SVENSON SUBDIVISION, OF
TBPE If F-03'14 TDPLS H F•10193230
RECORD IN BOOK 13,PAGE 119 OF THE DEED RECORDS OF VAWAMSON
Coppigh102016 COUNTY, TEXAS.
DATE:917/2016 DRAWN BY:KWA FN: 16.341(MJR) FILE:V:12220kACTIVE\SURVEYk222010482EX2.DWG PROJECT No. 222010482
V:\2220\active\222010482\survey\222010482EX2.dwg Sep 22, 16 2:39 PM by. mraabe
Exhibit B
Deferred Rent Security
(see attached)
B-1
DEFERRED RENT SECURITY TRACT I-DESCRIPTION
OF A 0.037 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY,ABSTRACT NO
297 SITUATED IN THE CITY OF ROUND ROCK, WILLIAMSON COUNTY, TEXAS BEING
A PORTION OF THE REMAINDER OF THAT CERTAIN 157.385 ACRE TRACT OF LAND
CONVEYED TO BISON TRACT 79, LTD. BY DEED OF RECORD IN DOCUMENT NO.
2007049657 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS;
SAID 0.037 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND
BOUNDS AS FOLLOWS:
BEGINNING, at a 1/2 inch iron rod with "Baker Aicklen" cap found in the westerly right-of-way
line of Kenney Fort Boulevard (R.O.W. Varies), being in the common line of said 157.385 acre
tract and that certain 107.17 acre tract of land conveyed to Jolum Bolt Harris, Et. Al. by deed of
record in Volume 2372, Page 112 of said Official Public Records and to The Hickox Family Living
Trust by deed of record in Document No. 2006053683 of said Official Public Records, for the
northwesterly corner hereof;
THENCE, S28042'41"E, leaving the easterly line of said 107.17 acre tract, along the westerly right-
of-way line of Kenney Fort Boulevard for the northerly line hereof, a distance of 59.01 feet to a 1/2
inch iron rod with "Baker Aicklen" cap found for the northerly corner of that certain 0.158 acre
tract of land conveyed to the City of Round Rock by deed of record in Document No. 2011041098
of said Official Public Records for the northeasterly corner hereof,
THENCE, leaving the westerly right-of-way line of Kenney Fort Boulevard,with the northerly line
of said 0.158 acre tract for the easterly and southerly lines hereof, the following two (2) courses and
distances:
1) S17°26'31"W, a distance of 55.47 feet to a 1/2 inch iron rod with "SAM" cap found for the
southeasterly corner hereof,
2) S63°37'08"W, a distance of 8.52 feet to a 1/2 inch iron rod with"BURY " cap set in the
common line of said 107.17 acre tract and said 157.385 acre tract for the southwesterly
corner hereof from which, a 1/2 inch iron rod with "SAM" cap found for the apparent
northwesterly corner of said 0.158 acre tract as found bears,N76°15'30"E, a distance of 0.67
feet;
THENCE,NO2009'44"W, leaving the northerly line of said 0.158 acre tract, along the common line
of said 107.17 acre tract and said 157.385 acre tract for the westerly line hereof, a distance of
108.54 feet to the POINT OF BEGINNING, containing an area of 0.037 acres (1,602 square feet)
of land, more or less, within these metes and bounds.
BEARING BASIS: THE BASIS OF BEARING OF THE SURVEY SHOWN HEREON IS TEXAS
STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83(96), UTILIZING
WESTERN DATA SYSTEMS CONTINUALLY OPERATING REFERENCE STATION (CORS)
NETWORK.
DEFERRED RENT SECURITY TRACT 1—0.037 ACRES FN.NO. 15-444(MJR)
BISON TRACT 79, LTD BURY NO. R0109123-10001
1
DEFERRED RENT SECURITY TRACT II-DESCRIPTION
OF A 4.609 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY, ABSTRACT NO
297 SITUATED IN THE CITY OF ROUND ROCK, WILLIAMSON COUNTY, TEXAS BEING
A PORTION OF THE REMAINDER OF THAT CERTAIN 157.385 ACRE TRACT OF LAND
CONVEYED TO BISON TRACT 79, LTD. BY DEED OF RECORD IN DOCUMENT NO.
2007049657 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS;
SAID 4.609 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND
BOUNDS AS FOLLOWS:
COMMENCING, at a 1/2 inch iron rod with `Baker Aicklen" cap found in the westerly right-of-
way line of Kenney Fort Boulevard (R.O.W. Varies), being in the common line of said 157.385 acre
tract and that certain 107.17 acre tract of land conveyed to John Bolt Harris, Et. Al. by deed of
record in Volume 2372, Page 112 of said Official Public Records and to The Hickox Family Living
Trust by deed of record in Document No. 2006053683 of said Official Public Records, for the
northwesterly corner hereof;
THENCE, S02°09'44"E, leaving the westerly right-of-way line of Kenney Fort Boulevard, along
the common line of said 107.17 acre tract and said 157.385 acre tract, a distance of 196.31 feet to a
1/2 inch iron rod with "BURY" cap set in the southerly line of that certain 0.158 acre tract of land
conveyed to the City of Round Rock by deed of record in Document No. 2011041098 of said
Official Public Records for the POINT OF BEGINNING, being the northwesterly corner hereof
from which, a 1/2 inch iron rod with "SAM" cap found for the apparent southwesterly coiner of
said 0.158 acre tract as found bears,N63°02'14"E, a distance of 0.70 feet;
THENCE, leaving the easterly line of said 107.17 acre tract, with the southerly line of said 0.158
acre tract for the northerly line hereof,the following two (2) courses and distances:
1) N63°33'51"E, a distance of 47.01 feet to a 1/2 inch iron rod with "Baker Aicklen" cap
found;
2) S71°12'55"E, a distance of 56.50 feet to a 1/2 inch iron rod with "Baker Aicklen" cap found
in the westerly right-of-way line of Kenney Fort Boulevard, being the southeasterly corner
of said 0.158 acre tract, for the northeasterly corner hereof;
THENCE, S26°22'11"E, leaving the southeasterly corner of said 0.158 acre tract, over and across
said 157.385 acre tract, along the westerly right-of-way line of Kenney Fort Boulevard for the
easterly line hereof, a distance of 695.06 feet to a 1/2 inch iron rod found for the northeasterly
corner of that certain 0.864 acre tract of land conveyed to the City of Round Rock by deed of record
in Document No. 2011041098 of said Official Public Records for the southeasterly corner hereof;
2
THENCE, leaving the westerly right-of-way line of Kenney Fort Boulevard, with the northerly line
of said 0.864 acre tract for the southerly line hereof,the following two (2) courses and distances:
1) S18°36'13"W, a distance of 56.47 feet to a 1/2 inch iron rod found;
2) S63°36'13"W, a distance of 395.45 feet to a 1/2 inch iron rod with"BURY" cap set in the
common line of said 107.17 acre tract and said 157.385 acre tract for the southwesterly
corner hereof from which, a 1/2 inch iron rod found for the apparent northwesterly corner of
said 0.864 acre tract as found bears,N58°21'23"E, a distance of 1.69 feet;
THENCE,NO2009'44"W, leaving the northerly line of said 0.864 acre tract, along the common line
of said 107.17 acre tract and said 157.385 acre tract for the westerly line hereof, a distance of
849.94 feet to the POINT OF BEGINNING, containing an area of 4.609 acres (200,777 square
feet) of land,more or less, within these metes and bounds.
BEARING BASIS: THE BASIS OF BEARING OF THE SURVEY SHOWN HEREON IS TEXAS
STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83(96), UTILIZING
WESTERN DATA SYSTEMS CONTINUALLY OPERATING REFERENCE STATION (CORS)
NETWORK.
DEFERRED RENT SECURITY TRACT II -4.609 ACRES FN.NO. 15-445(MJR)
BISON TRACT 79, LTD BURY NO. R0109123-10001
3
DEFERRED RENT SECURITY TRACT III—DESCRIPTION
OF A 9.796 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY, ABSTRACT NO
297 SITUATED IN THE CITY OF ROUND ROCK, WILLIAMSON COUNTY, TEXAS BEING
A PORTION OF THE REMAINDER OF THAT CERTAIN 157.385 ACRE TRACT OF LAND
CONVEYED TO BISON TRACT 79, LTD. BY DEED OF RECORD IN DOCUMENT NO.
2007049657 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS;
SAID 9.796 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND
BOUNDS AS FOLLOWS:
COMMENCING, at a 1/2 inch iron rod with "Baker Aicklen" cap found in the westerly right-of-
way line of Kenney Fort Boulevard (R.O.W. Varies),being in the common line of said 157.385 acre
tract and that certain 107.17 acre tract of land conveyed to John Bolt Harris, Et. Al. by deed of
record in Volume 2372, Page 112 of said Official Public Records and to The Hickox Family Living
Trust by deed of record in Document No. 2006053683 of said Official Public Records, for the
northwesterly corner hereof;
THENCE, S02°09'44"E, leaving the westerly right-of-way line of Kenney Fort Boulevard, along
the common line of said 107.17 acre tract and said 157.385 acre tract, a distance of 1133.82 feet to a
1/2 inch iron rod with "BURY" cap set in the southerly line of that certain 0.864 acre tract of land
conveyed to the City of Round Rock by deed of record in Document No. 2011041098 of said
Official Public Records for the POINT OF BEGINNING, being the northwesterly corner hereof
from which, a 1/2 inch iron rod with "SAM" cap found for the apparent southwesterly corner of
said 0.864 acre tract as found bears,N62°52'19"E, a distance of 1.77 feet;
THENCE, leaving the easterly line of said 107.17 acre tract, with the southerly line of said 0.864
acre tract for the northerly line hereof,the following two (2) courses and distances:
1) N63°36'57"E, a distance of 431.40 feet to a 1/2 inch iron rod found;
2) S71°27'38"E, a distance of 56.40 feet to a 1/2 inch iron rod with"Baker Aicklen" cap found
in the westerly right-of-way line of Kenney Fort Boulevard, being the southeasterly corner
of said 0.864 acre tract, for the northeasterly corner hereof;
THENCE, leaving the southeasterly corner of said 0.864 acre tract, along the westerly right-of-way
line of Kenney Fort Boulevard for the easterly line hereof, the following four (4) courses and
distances:
1) S26022'09"E, a distance of 250.82 feet to a 1/2 inch iron rod with "Baker Aicklen" cap
found at the point of curvature of a non-tangent curve to the right;
2) Along said non-tangent curve to the right, having a radius of 1441.72 feet, a central angle of
12°09'39", an are length of 306.00 feet, and a chord which bears, S21015'08"E, a distance of
305.42 feet to a 1/2 inch iron rod with"Baker Aicklen" cap found at the end of said curve;
3) S00°08'16"E, a distance of 360.25 feet to a 1/2 inch iron rod with "Baker Aicklen" cap
found;
4
4) S16°10'46"W, a distance of 165.87 feet to a 1/2 inch iron rod with "SAM" cap found for the
most northerly northeasterly corner of that certain 12.1 acre tract of land conveyed to the
City of Round Rock by deed of record in Document No. 2013049009 of said Official Public
Records for the southeasterly corner hereof;
THENCE, S88°41'51"W, leaving the westerly right-of-way line of Kenney Fort Boulevard, along
the northerly line of said 12.1 acre tract for the southerly line hereof, a distance of 267.19 feet to a
1/2 inch iron rod with "Baker Aicklen" cap found in the easterly line of that certain 4.42 acre tract
of land conveyed to Thomas P. Elrod Et. Ux. By deed of record in Document No. 1813,Page 540 of
said Official Public Records, being the westerly line of said 157.385 acre tract, also being the most
northerly northwesterly corner of said 12.1 acre tract for the southwesterly corner hereof;
THENCE,NO °2335"W, leaving the northerly line of said 12.1 acre tract, along the common line
of said 157.385 acre tract and said 4.42 acre tract for a portion of the westerly line hereof, a distance
of 498.34 feet to a 1/2 inch iron rod found for the northeasterly corner of said 4.42 acre tract;
THENCE, S89011'33"W, along the irregular westerly line of said 157.385 acre tract and the
northerly line of said 4.42 acre tract, passing at a distance of 319.72 feet, a 1/2 inch iron rod found
for the northwesterly corner of said 4.42 acre tract, and continuing for a total distance of 323.61 feet
to a 1/2 inch iron rod found in the common line of said 157.385 acre tract and said 107.17 acre tract
for the southwesterly corner hereof;
THENCE, NO2009'44"W, along the common line of said 157.385 acre tract and said 107.17 acre
tract for a portion of the westerly line hereof, a distance of 367.85 feet to the POINT OF
BEGINNING, containing an area of 9.796 acres (426,728 square feet) of land, more or less,within
these metes and bounds.
DEFERRED RENT SECURITY TRACT III—9.796 ACRES FN.NO. 15-446(MJR)
BISON TRACT 79, LTD BURY NO. RO109123-10001
5
DEFERRED RENT SECURITY TRACT IV—DESCRIPTION
OF A 156.769 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY, ABSTRACT
NO. 297 AND THE JOSEPH MARSHALL SURVEY, ABSTRACT NO. 409 SITUATED IN THE
CITY OF ROUND ROCK, WILLIAMSON COUNTY, TEXAS BEING ALL OF THAT SAME
155.589 ACRE TRACT OF LAND CONVEYED TO KEITH KRIENKE AND MARK
MEREDITH BY DEED OF RECORD IN DOCUMENT NO. 2006113854 OF THE OFFICIAL
PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS AND ALSO CONVEYED TO
GREGORY CARTER BY DEED OF RECORD IN DOCUMENT NO. 2010072268 OF SAID
OFFICIAL PUBLIC RECORDS; SAID 156.769 ACRE TRACT BEING MORE
PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING, at a 5/8 inch iron rod found in the southerly right-of-way line of the Union Pacific
Railroad (100' R.O.W.) being the northeasterly corner of that certain 157.385 acre tract of land
conveyed to Bison Tract 79, Ltd. by deed of record in Document No. 2007049657 of said Official
Public Records, also being the northwesterly corner of said 155.589 acre tract and hereof;
THENCE, N63037'28"E, leaving the northeasterly corner of said 157.385 acre tract, along the
southerly right-of-way line of the Union Pacific Railroad for the northerly line hereof, a distance of
2864.50 feet to a 1/2 inch iron rod with "Baker Aicklen" cap found for the northwesterly comer of
Lot 1, Block A of Final Plat of Brushy Creek Regional Wastewater Treatment Plant, a subdivision
of record in Document No. 2007067173 of said Official Public Records, being the northeasterly
corner of said 155.589 acre tract and hereof,
THENCE, leaving the southerly right-of-way line of the Union Pacific Railroad, along the common
line of said Lot 1, and said 155.589 acre tract for the easterly line hereof, the following five (5)
courses and distances:
1) S26°12'00"E, a distance of 49.99 feet to a 1/2 inch iron rod with"Baker Aicklen"cap found;
2) N63°41'06"E, a distance of 81.63 feet to a 1/2 inch iron rod with illegible cap found;
3) S03°33'52"E, a distance of 1695.07 feet to a 1/2 inch iron rod with"LCRA"cap found;
4) N58°53'53"E, a distance of 362.51 feet to a 1/2 inch iron rod with"LCRA" cap found;
5) N589T13"E, a distance of 245.00 feet to a 1/2 inch iron rod with"LORA" cap found;
6) S02°28'32"E, passing at a distance of 387.44 feet, a 1/2 inch iron rod with "SURVCON
INC" cap found, and continuing for a total distance of 463.04 feet to a point in the center of
Brushy Creek, being in the northerly line of Lot 59, Block F of Final Plat of Freeman Park
Subdivision Phase I, of record in Document No. 2015010846 of said Official Public
Records, also being the most southerly southwesterly corner of said Lot 1, for the
southeasterly corner hereof,
THENCE, leaving the most southerly southwesterly corner of said Lot 1, along or near the center
of Brushy Creek, with the northerly line of said Lot 59; the northerly line of Lot 26, Block B of
Lake Forest III, Village III Revised, a subdivision of record in Document No. 2004095851 of said
Official Public Records; the northerly line of Lot 43, Block E of Final Plat of Sonoma Section 9, a
6
subdivision of record in Document No. 2004021881 of said Official Public Records; and the
northerly line of Lot 46, Block F of Final Plat of Sonoma Section 11, a subdivision of record in
Document No. 2005000171 of said Official Public Records for the southerly line hereof, the
following twenty-three (23) courses and distances:
1) S71°58'01"W, a distance of 59.92 feet to an angle point;
2) S66°40'11"W, a distance of 90.58 feet to an angle point;
3) S49°32'25"W, a distance of 78.88 feet to an angle point;
4) S40°47'39"W, a distance of 82.04 feet to an angle point;
5) S23°37'20"W, a distance of 81.79 feet to an angle point;
6) S28°52'04"W, a distance of 110.18 feet to an angle point;
7) S36°12'52"W, a distance of 282.02 feet to an angle point;
8) S3 8'03'24"W, a distance of 84.64 feet to an angle point;
9) S47°37'12"W, a distance of 329.19 feet to an angle point;
10) S15°41'16"E, a distance of 184.53 feet to an angle point;
11) S07°27'39"E, a distance of 150.82 feet to an angle point;
12) S03°49'27"W, a distance of 142.77 feet to an angle point;
13) S21-18'06"W, a distance of 94.11 feet to an angle point;
14) S44-12-01"W, a distance of 165.58 feet to an angle point;
15) S69-5 1'49"W, a distance of 215.14 feet to an angle point;
16) S45°25'49"W, a distance of 111.25 feet to an angle point;
17) S26°29'36"W, a distance of 94.25 feet to an angle point;
18) S31°48'00"W,a distance of 125.62 feet to an angle point;
19) S51°58'20"W, a distance of 230.16 feet to an angle point;
20) S61°55'26"W,a distance of 477.59 feet to an angle point;
21) S54°23'53"W, a distance of 144.42 feet to an angle point;
22) S40°28'56"W, a distance of 383.47 feet to an angle point;
7
23) S42°15'33"W, a distance of 108.54 feet to the southeasterly corner of that certain 60.58 acre
tract of land conveyed to Ernest Johnson Et. Al. by deed of record in Document No.
2003035323 of said Official Public Records, for the southwesterly corner hereof;
THENCE, leaving the northerly line of said Lot 46, along the common line of said 60.58 acre tract
and said 155.589 acre tract, for a portion of the westerly line hereof, the following two (2) courses
and distances:
1) NO2°13'26"W, passing at a distance of 100.00 feet, a 1/2 inch iron rod with "Bury" cap set
for reference, and continuing for a total distance of 2999.89 feet to a 1.5 inch pipe found for
the northeasterly corner of said 60.58 acre tract;
2) S87°58'05"W, a distance of 847.45 feet to an axle found for the northwesterly corner of said
60.58 acre tract, being in the easterly line of said 157.385 acre tract for an angle point;
THENCE, leaving the northwesterly corner of said 60.58 acre tract, along the common line of said
157.385 acre tract and said 155.589 acre tract, for a portion of the westerly line hereof, the
following two (2) courses and distances:
1) S86°15'40"W, a distance of 8.60 feet to a 1/2 inch iron rod with"Baker Aicklen" cap found,
from which a 1/2 inch iron rod found for the northeasterly corner of Lot 1 of Bertil Telander
Subdivision, of record in Cabinet H, Slides 126 of the Plat records of Williamson County,
Texas bears S84°58'11"W, a distance of 31.42 feet;
2) NO2°10'29"W, a distance of 305.90 feet to the POINT OF BEGINNING, containing an
area of 158.269 acres or (6,894,202 square feet) of land, more or less, SAVE AND
EXCEPT THEREFROM, that certain 1.50 acre tract of land conveyed to Keith Krienke
and Laura Rinehart Krienke by deed of record in Document No. 2006074399 of said Official
Public Records, Texas; Said 1.50 acre tract being more particularly described by metes and
bounds as follows:
COMMENCING, a 1/2 inch iron rod with "Baker Aicklen" cap found in the southerly right-of-
way line of the Union Pacific Railroad for the northwesterly corner of Lot 1, Block A of said Final
Plat of Brushy Creek Regional Wastewater Treatment Plant of record, being the northeasterly
corner of said 155.589 acre tract;
THENCE, S26012'00"E, leaving the southerly right-of-way line of the Union Pacific Railroad,
along the common line of said 155.589 acre tract and said Lot 1, a distance of 49.99 feet to a 1/2
inch iron rod with"Baker Aicklen" cap found;
THENCE, S0303449"E, leaving the westerly line of said Lot 1, over and across said 155.589 acre
tract, a distance of 291.32 feet to a 1/2 inch iron rod with "Stan Coalter" cap found for the POINT
OF BEGINNING,being the northeasterly corner of said 1.50 acre tract and hereof;
8
THENCE, along the exterior lines of said 1.50 acre tract for the exterior lines hereof, the following
four(4) courses and distances:
1) S03°34'49"E, a distance of 298.62 feet to a 1/2 inch iron rod with "Stan Coalter" cap found
for the southeasterly corner hereof;
2) S74°24'52"W, a distance of 244.97 feet to a 1/2 inch iron rod with "Stan Coalter" cap found
for the southwesterly corner hereof;
3) N06°37'52"E, a distance of 340.30 feet to a 1/2 inch iron rod with "Stan Coalter" cap found
for the northwesterly corner hereof;
4) N81°44'34"E, a distance of 179.89 feet to the POINT OF BEGINNING, containing an area
of 1.500 acres (65,357 square feet) of land, leaving a TOTAL NET AREA OF 156.769
ACRES (6,828,845 square feet) of land,more or less, within these metes and bounds;
BEARING BASIS: THE BASIS OF BEARING OF THE SURVEY SHOWN HEREON IS TEXAS
STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83(96), UTILIZING
WESTERN DATA SYSTEMS CONTINUALLY OPERATING REFERENCE STATION (CORS)
NETWORK.
DEFERRED RENT SECURITY TRACT IV 156.769 ACRES FN. NO. 16-016(MJR)
KRIENKE, MEREDITH AND CARTER TRACT BURY NO. R0113323-10001
9
P.O.B.
P.O.C. EXCLUDED TRACT 0 400 80000 120-0 1600
EXCLUDED 111=80r
TRACT
Q,¢ EXCLUDED TRACT
}J 1.500 ACRES
155.559 ACRES
coC KE17H KR/ENKZ MARK MEREDITH
x}> DOCUMENT NO, 20061IJ854
�r GREGORY STEPHEN CAR7ER
DOCUMENT NO, 2010072266
u
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P.O.B. -
PART 1
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BEA7ELANDER
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DOCUMENT NO.
2014059825 T 4 'Js S'' ! .9
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C R 8 LEGEND
AC P.O.B. POINT OF
BEGINNING
P.O.B. P.O,C. POINT OF
COMMENCEMENT
PART 2 S&E SAVE AND
P.O.C. EXCEPT
PARTS 3
AND 4 — PART 3
P.O.B. 4.42 ACRES
0.158 ACRES PART 4 THOMAS P.
ROUND ROCK 107.17 ACRES ESPOcyry OF OU� D
DOCUMENT NO, THE HICKOX FAMILY LINNG 7RUST, ET. AL CHRISTA ELROD
2011041095 DOCUMENT NO. 2006053683 VOL LIME 1813,
VOLUME 2372, PAGE 112 PAGE 540
III TO ACCOMPANY DESCRIPTION
® Sta n pec OF S;7UAT7 ACRES C LAND OUT OF THE P.A.NIXSO COUNT,ABSTRACT N0.
294,SORTION W THE CER OF ROUND ROCK,YTRACT OF COUNTY.RECORD
BEING A
PORTION OF THAT CERTAIN 157,365 ACRE TRACT OF LAND OF RECORD W
221 West Sixth S09at.$ui:a000 DOCUMENT NO,200 70 496 57 AHO ALL OF THOSE CERTAIN TRACTS OF LAND OF KR CC, INC
Aualut,Texas 78701 RECORD W 353
DOCUMENT ND.2003023,2006 7 7 3654 AND 2010072266,ALL OF
WE OETICIAL PUBLIC RECORDS OF MIWAUSON COUNTY,TEXAS:ALSO BONG ALL
7.1.(512)328.0011 Fea(512)326,D325 OF LOT 9 OF THE S.M.SNENSON SUBDIVISION,OF RECORD 01 BOOK 13,PACE 119
TOPERF-6324 TOPlSa F-t0iRa23O OF THE DEED RECORDS OF WWAMSON COUNTY,TEXAS;AND ALSO LOT 1,OF THE
C.0y,ig5t X2016 BER 7F.IAt1BER RECORDS OF 1MWAAUSSON COUNTY TIVISION,OF RECORD IN CABINET EXAS E 126 OF WE PLAT
DATE:1 112 812 0 1 6 DRAWN BY:KWNDLB FN: 16-433(DLB) F-ILE•:V:122201ACTIVEISURVEYt222010482EX3.DWG PROJECT No.222070;82 -
V:\2220\active\222010482\survey\222010482EX3.dwg Nov 29, 16 8:41 AM by dbogoert
10
Exhibit C
Program Resolution
(see attached)
C-1
RESOLUTION NO. R-2016-4010
WHEREAS, KR Acquisitions, LLC, a Delaware limited liability company ("Developer")
and KR CC, Inc., a Delaware corporation (the "Tenant") have expressed to the City of Round
Rock ("City") their desire, either directly or with an affiliate, to develop a master-planned mixed
use development in the City which will include a hotel, a convention center, and an indoor water
park(the "Project"), and which will provide jobs and additional tax base to the City, and
WHEREAS, §380.001 Local Government Code provides that a municipality may
establish an economic development program ("Program") to promote local economic
development and to stimulate business and commercial activity in the municipality, and
WHEREAS, the City Council has determined that the Program described in Exhibit "A"
will meet the goals set forth in said §380.001 and will be of mutual benefit to all Parties, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
That the City approves a §380.001 Program to encourage the Developer to develop the
Project in the City, and to encourage the Tenant to enter into a Ground Lease for property to be
used for the Project, and;
BE IT FURTHER RESOLVED
That the Economic Development Program shall be as generally outlined in Exhibit "A"
attached hereto and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place
and subject of the meeting at which this Resolution was adopted was posted and that such
meeting was open to the public as required by law at all times during which this Resolution and
0112.1604;00368652
the subject matter hereof were discussed, considered and formally acted upon, all as required by
the Open Meetings Act, Chapter 551, Texas Government Code, as amended.
RESOLVED this 15th day of December, 2016.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
2
EXHIBIT A
ECONOMIC DEVELOPMENT PROGRAM
The terms of the §380.001 Economic Development Program to be offered to KR
Acquisitions, LLC, a Delaware limited liability company or its affiliates or assignees (the
"Developer") and KR CC, INC., a Delaware corporation or its affiliates or assignees (the
"Tenant") in exchange for the Developer's master-planned mixed use development in the City of
Round Rock are as generally outlined below:
1. Developer's and Tenant's obligations:
1.1 The Developer agrees to the development of a master-planned mixed use project
that includes a hotel, a convention center, and an indoor water park (the
"Project").
1.2 The Developer and Tenant agree to spend or cause to be spent a cumulative total
of at least $350,000,000 in a combination of rental payments under the Ground
Lease and in improvements to real property and additions to personal property
within the Property.
1.3 The Developer agrees to cause the employment of at least 700 full-time
equivalent employees in the Project.
1.4 The Tenant agrees to comply with the terms of a Ground Lease for the Project.
2. City's obligations:
2.1 City shall, subject to the Developer's and the Tenant's satisfaction of each of their
obligations set out above, make the Economic Incentive Payments to the
Developer and the Tenant.
3. The terms and provisions of this Program will be set out in more detail in the Economic
Development Program Agreement and the Ground Lease of even date herewith.
3
Exhibit D
Authorizing Resolution
(see attached)
D-1
RESOLUTION NO. R-2016-4012
WHEREAS, KR Acquisitions, LLC, a Delaware limited liability company ("Developer") and
KR CC, Inc., a Delaware corporation (the "Tenant") have expressed to the City of Round Rock
("City") their desire, either directly or with an affiliate, to develop a master-planned mixed use
development to include a hotel, a convention center, and an indoor water park (the "Project") in the
City which will provide jobs and additional tax base to the City, and
WHEREAS, pursuant to §380.001 Local Government Code, the City has established an
economic development program ("Program") to promote local economic development and to stimulate
business and commercial activity in the municipality by encouraging Developer and Tenant to develop
the Project, and
WHEREAS, pursuant to the Program, the City Council wishes to approve an Economic
Development Program Agreement as contemplated by Chapter 380 of the Texas Local Government
Code whereby the Developer intends to operate portions of the Project in conformance with the City's
development approvals for the Project,Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,TEXAS,
That the Mayor is hereby authorized and directed to execute on behalf of the City, an Economic
Development Program Agreement with the Round Rock Transportation and Economic Development
Corporation, KR Acquisitions, LLC, and KR CC, Inc., a copy of same being attached hereto as Exhibit
"A"and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551,Texas Government Code, as amended.
0112.1604;00368637
RESOLVED this 15th day of December,2016.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
2
Exhibit E
Form of Assignment and Assumption Agreement and Lease-Back Agreement
(see attached)
E-1
ASSIGNMENT AND ASSUMPTION AND LEASE-BACK AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AND LEASE-BACK AGREEMENT (this
"Agreement") is made and entered into as of this [20th day of December, 2016],by KR CC,Inc., a
Delaware corporation (the "Assignor") and the City of Round Rock, Texas, a Texas local
government home rule corporation(the"City").
RECITALS:
WHEREAS, Assignor, as Buyer, is the assignee of that certain
Commercial Contract-Unimproved Property dated as of October 30, 2015 (the "Bison
Commercial Contract", a true and correct copy of which is attached hereto as Exhibit A), with
Bison Tract 79, Ltd., a Texas limited partnership, as Seller(the"Bison Seller"); and
WHEREAS, Assignor, as Buyer, is the assignee of that certain
Commercial Contract-Unimproved Property dated as of December 23, 2015 (the "Krienke
Commercial Contract", a true and correct copy of which is attached hereto as Exhibit B), with
Keith Krienke, Mark Meredith, Greg Carter, and the Estate of Lisa M. Carter, as Seller
(collectively,the"Krienke Seller"); and
WHEREAS, Assignor, as Buyer, is the assignee of that certain
Commercial Contract-Unimproved Property dated as of December 16, 2015, as amended by that
certain First Amendment to Commercial Contract — Improved Property dated December 21,
2015 (together, the "Keller Commercial Contract", a true and correct copy of which is attached
hereto as Exhibit C), with Gladys B. Johnson, John D. Johnson, and Bertha M. Keller, as Seller
(collectively, the "Keller Seller"). The Keller Commercial Contract, together with the Bison
Commercial Contract, and the Krienke Commercial Contract, are collectively referred to herein
as the "Commercial Contracts"). The Keller Seller, together with the Bison Seller, and the
Krienke Seller, are collectively referred to herein as the"Sellers"); and
WHEREAS,pursuant to the Commercial Contracts, Assignor has agreed to purchase and
Sellers have agreed to sell certain real and personal property in Round Rock, Texas as further
described in each commercial contract(collectively, the"Property');
WHEREAS, the Property consists of approximately 350.2 acres of land located east of
Kenney Fort Boulevard and south of the Union Pacific Railroad, in Round Rock, Texas, all as
further described on Exhibit D attached hereto(the"Land");
WHEREAS, concurrent with the execution hereof, Assignor, KR Acquisitions, LLC, a
Delaware limited liability company ("Developer") and City have entered into that certain Master
i
Development Agreement (the "Master Development Agreement") pursuant to which Assignor and
Developer will develop the Property;
WHEREAS, pursuant to this Agreement and the Master Development Agreement,
Assignor has agreed to assign, and City has agreed to take assignment of,the Commercial Contracts
and close on the purchase of the Property pursuant to such Commercial Contracts and this
Agreement; and
WHEREAS, pursuant to this Agreement and the Master Development Agreement,
Assignor and City have agreed to enter into that certain Ground Lease Agreement of even date
herewith and as referenced in Section 3.03 of the Master Development Agreement, the form of
which is attached hereto as Exhibit E(the"Ground Lease").
AGREEMENT:
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged,Assignor and City hereby agree as follows:
1. Defined Terms. Terms utilized but not defined herein, or otherwise noted, shall
have the meanings set forth in the Master Development Agreement
2. Assignment and Assumption. Assignor hereby assigns all of its right, title and
interest in and to, and delegates all of its related obligations under, the Commercial Contracts to
City. City hereby assumes and agrees to be bound by the terms of the Commercial Contracts, and
agrees to perform all of Assignor's obligations thereunder with regard to the Commercial Contracts
as if City had been the party originally named as"Buyer"therein.
3. Acquisition of the Property. City hereby agrees to acquire the Property pursuant to
the terms and conditions of the Commercial Contracts. Assignor shall assist and facilitate the
closing on the acquisition of the Property(the"Closin ") which shall occur on or before December
23,2016,unless otherwise agreed upon the parties hereto (the"Closing Date").
4. Lease-Back of Land. Concurrent with the Closing, Assignor and City shall enter
into the Ground Lease.
5. Closing and Closing Deliveries for Assignment and Assumption and Lease-Back.
The Closing shall take place at the offices of First American Title Insurance Company and
Austin Title Company (collectively, the "Escrow Agent") on the Closing Date. At the Closing
and to the extent not previously executed and delivered, the Assignor, City and Developer, as
applicable, shall execute and deliver to each of the following:
2
a. This Agreement
b. The Master Development Agreement
c. The Ground Lease;
d. The Memorandum of the Ground Lease (as defined in the Ground Lease)
e. The Economic Development Program Agreement (as defined in the Master
Development Agreement);
Assignor and City further agree to execute escrow instructions substantially in the form attached
hereto as Exhibit F, as amended as may be necessary to enable the Escrow Agent to comply with
the terms of this Agreement and the Commercial Contracts (the"Escrow Instructions").
6. Closing and Closing on Purchase of Property. At the Closing, City shall close on
the acquisition of the Property pursuant to the Commercial Contracts and the Escrow
Instructions. All deeds, title policies, affidavits, settlement statements, and other closing
documents for the acquisition of the Property shall be approved by Assignor prior to execution of
the Closing. All costs, taxes, fees or other expenses payable by the "buyer" with respect to the
Closing shall be the responsibility of Assignor and shall be paid directly or funded into the
Escrow Agent on or before the Closing Date for disbursement at the Closing.
7. Acceptance of the Land. City acknowledges and agrees that, upon its acquisition
of the Land, it accepts the Land in an "AS IS, WHERE IS" condition and Assignor
acknowledges and agrees that City has not agreed and has no obligation to make any
representations or warranties as to the condition to title or physical condition of the Land and has
no obligations to improve the Land, except as specifically set forth in the Master Development
Agreement or herein.
8. Representations and Warranties of Assignor. Assignor represents, warrants, and
covenants to City, that Assignor has full right, power, and authority to enter into this Agreement
and the execute the transactions contemplated hereby, and that the signatory hereunder has full
right,power, and authority to execute this Agreement.
9. Representations and Warranties of City. City represents, warrants, and covenants
to Assignor, that City has full right, power, and authority to enter into this Agreement and the
execute the transactions contemplated hereby, and that the signatory hereunder has full right,
power, and authority to execute this Agreement.
3
10. Brokers. Assignor and City each hereby represent and warrant that neither party
has dealt with any broker in connection with this Agreement and there are no unpaid brokerage
commissions or finders' fees payable in connection herewith, except for those to be paid by
Assignor to Summit Commercial, as set forth in the Commercial Contracts. Assignor shall
indemnify and hold City harmless, including reasonable attorney's fees, from any claim made by
any broker, including, but not limited to, any brokers, in respect of this Agreement. This
indemnification shall survive the termination of this Agreement.
11. Mutual Assistance; Further Assurances. Assignor and City will do all things
reasonably necessary or appropriate to carry out the terms and provisions of this Agreement and
the transactions contemplated hereby. Assignor and City agree to furnish to each other such
further information, execute and deliver such other documents and do all such other acts and
things as may be necessary or appropriate to evidence, document or conclude the transactions
contemplated hereby
12. Counterparts. This Agreement may be executed, by original signature, facsimile
or electronic signature, in counterparts, each of which shall be deemed an original, all of which
together shall constitute one and the same instrument.
13. Headings. The captions or headings herein are for convenience only and in no
way define, limit or describe the scope or intent of any provision of this Agreement.
14. Binding Effect; Entire Agreement. This Agreement shall be binding on and inure
to the benefit of Assignor and City, their respective successors and assigns. This Agreement, the
Master Development Agreement, the Ground Lease and the Economic Development Program
Agreement constitute the entire agreement between Assignor and City, and supersede all prior
agreements,whether oral or written, covering the subject matter of this Agreement.
15. Assignment. Except as provided herein, neither party assign all or part of its
rights and obligations to a third party without the express written consent of the other party
unless such assignment is a collateral assignment to a lender. Assignor may assign all or part of
its rights and obligations under this Agreement to an entity that is controlled by or under
common control with the Assignor, and shall provide a copy of the assignment to the City within .
15 days after the effective date of the assignment. The City may not assign this Agreement.
16. Amendment. This Agreement may be amended only by the mutual written
agreement of Assignor and City.
17. Notice. Any notice and or statement required and permitted to be delivered shall
be deemed delivered by actual delivery, by electronic mail, or by depositing the same in the
4
United States mail, certified with return receipt requested, postage prepaid, addressed to the
appropriate party at the following addresses:
If to City:
City of Round Rock
221 E. Main Street
Round Rock,TX 78664
Attn: City Manager
Phone: (512) 218-5400
Email: citymanager@roundrocktexas.gov
With a required copy to:
Sheets & Crossfield
309 E. Main Street
Round Rock,TX 78664
Attn: Stephan L. Sheets
Phone: (512)255-8877
Email: steve@scrrlaw.com
If to the Assignor:
KR CC, Inc.
P.O. Box 590
1305 Kalahari Drive
Wisconsin Dells, WI 53965
Attn: Mary Bonte Spath
Phone: (608) 254-5320
Email: mbonte@kalahariresorts.com
With required copy to:
Shupe Ventura Lindelow&Olson, PLLC
9406 Biscayne Blvd.
Dallas, Texas 74218
Attn: Misty Ventura
Phone: (214) 328-1101
Email: misty.ventura@svlandlaw.com
Michael Best& Friedrich LLP
One South Pinckney Street, Suite 700
Madison, Wisconsin 53703
Attn: Michael S. Green
Phone: (608)257-7482
Email: msgreen@michaelbest.com
5
Either party may designate a different address at any time upon written notice to the other party.
18. Interpretation. Each of Assignor and City has been represented by counsel of
their choosing in the negotiation and preparation of this Agreement. Regardless of which party
prepared the initial draft of this Agreement, this Agreement shall, in the event of any dispute,
however its meaning or application, be interpreted fairly and reasonably and neither more
strongly for or against any party.
19. Applicable Law. This Agreement is made, and shall be construed and interpreted,
under the laws of the State of Texas and venue shall lie in Williamson County, Texas.
20. Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of Assignor and
City that the remainder of this Agreement shall not be affected. It is also the intention of
Assignor and City that in lieu of each clause and provision that is found to be illegal, invalid or
unenforceable, a provision be added to this Agreement which is legal,valid or enforceable and is
as similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
21. No Third Party Beneficiaries. This Agreement is not intended to confer any
rights, privileges, or causes of action upon any third party.
22. No Joint Venture. It is acknowledged and agreed by the parties hereto that the
terms hereof are not intended to and shall not be deemed to create any partnership or joint
venture among Assignor and City. The City, its past, present and future officers, elected
officials, employees and agents, do not assume any responsibilities or liabilities to any third party
in connection with the development of the Project or the design, construction or operation of any
portion of the Project.
[Signature Page Follows]
6
IN WITNESS WHEREOF, Assignor and City have executed this Agreement as of the date
first above written.
ASSIGNOR: CITY:
KR CC,INC. CITY OF ROUND ROCK TEXAS
a Delaware corporation a Texas local government home rule corporation
By: By:
Todd Nelson,President Alan McGraw, Mayor
EXHIBIT A
BISON COMMERCIAL CONTRACT
,[Attached heretol
EXHIBIT B
KRIENKE COMMERCIAL CONTRACT
[Attached hereto]
EXHIBIT C
KELLER COMMERCIAL CONTRACT
[Attached hereto]
EXHIBIT D
LEGAL DESCRIPTION OF THE LAND
[Attached hereto]
EXHIBIT E
FORM OF GROUND LEASE
[Attached hereto]
EXHIBIT F
FORM OF ESCROW INSTRUCTIONS
[Attached hereto]
Exhibit F
Form of Memorandum of Lease and Purchase Option
Recording Requested By and
When Recorded Mail To:
Michael Best&Friedrich LLP
One South Pinckney Street, Suite 700
Madison, Wisconsin 53703
Attention: Michael S. Green
MEMORANDUM OF LEASE AND OPTION
This MEMORANDUM OF LEASE AND OPTION (this "Memorandum"), dated as
of December , 2016 is entered into between CITY OF ROUND ROCK, TEXAS, a Texas
local government home rule corporation (the "City"), and INC., a
Delaware corporation("Tenant").
RECITALS
A. The City and Tenant entered into that certain Ground Lease Agreement, dated as
of (the "Lease Agreement"), pursuant to which the City will lease to
Tenant, and Tenant will lease from the City, for the Term (as such term is defined in the Lease),
the real property described in Exhibit"A" attached hereto and incorporated herein by reference
(the"Leased Premises").
B. The City and Tenant desire to execute this Memorandum to provide constructive
notice of Tenant's rights under the Lease Agreement to all third parties.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged,the parties agree as follows:
1. Term. The City has agreed to lease the Leased Premises to Tenant for the Term,
which Term will end approximately 99 years after the Effective Date (as such term is defined in
the Lease).
2. Lease Terms. The lease of the Leased Premises to Tenant is pursuant to the Lease
Agreement, which is incorporated into this Memorandum by reference.
3. Purchase Option. Tenant shall have the option to purchase the Leased Premises
from the City (the "Purchase Option") upon and subject to the terms and conditions set forth in
the Lease Agreement.
F-5
4. Assignment. Tenant's ability to transfer its rights under the Lease Agreement and
to sublease the Leased Premises is set forth in more detail in the Lease Agreement.
5. Leasehold Mortgagee's Right to New Agreement. Tenant's leasehold mortgagees
are granted certain rights and protections, including notice and cure rights with respect to
Tenant's defaults and the right, under certain circumstances that result in the termination of the
Lease Agreement, to require the City to enter into a new lease with Tenant's senior leasehold
mortgagee or its assignee, nominee or designee, all as set forth in more detail in the Lease
Agreement.
6. Encumbrances. The Lease Agreement prohibits City from mortgaging or
otherwise encumbering City's fee title interest in the Leasehold Premises with any mortgage,
deed of trust, security deed, deed to secure debt, or any other similar instrument or agreement
constituting a lien upon, or similarly encumbering, City's fee title interest in the Leasehold
Premises.
7. Successors and Assigns. This Memorandum and the Lease Agreement shall bind
and inure to the benefit of the parties and their respective heirs, successors and assigns, subject,
however, to the provisions of the Lease Agreement.
8. Release. The Lease Agreement provides that Tenant will execute and record a
release of this Memorandum within ten(10) Business Days (as defined in the Lease Agreement)
following the expiration of the Purchase Option.
9. Governing Law. This Memorandum and the Lease Agreement are governed by
Texas law.
F-2
109581297
IN WITNESS WHEREOF, the City and Tenant have entered in this Memorandum as of
the day and year first above written.
CITY OF ROUND ROCK,TEXAS KR CC,INC.
a home rule city and municipal corporation a Delaware corporation
By: By:
Alan McGraw, Mayor Todd Nelson,President
F-3
109581297
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF §
This instrument was acknowledged before me on the_day of December, 2016,by Alan
McGraw, as Mayor of the CITY OF ROUND ROCK, TEXAS, a home rule city and municipal
corporation.
Notary Public
State of Texas
My Commission:
ACKNOWLEDGMENT
STATE OF WISCONSIN §
COUNTY OF §
This instrument was acknowledged before me on the_day of December, 2016,by Todd
Nelson, as President of KR CC,INC., a Delaware corporation.
Notary Public
State of Wisconsin
My Commission:
F-4
109581297
Exhibit A
Leased Premises
(see attached)
F-5
Exhibit G
Krienke Tract Description
(see attached)
G-1
Krienke Tract Description
OF A 156.769 ACRE TRACT OF LAND OUT OF THE P.A. HOLDER SURVEY,
ABSTRACT NO. 297 AND THE JOSEPH MARSHALL SURVEY, ABSTRACT NO. 409
SITUATED IN THE CITY OF ROUND ROCK, WILLIAMSON COUNTY, TEXAS BEING
ALL OF THAT SAME 155.589 ACRE TRACT OF LAND CONVEYED TO KEITH
KRIENKE AND MARK MEREDITH BY DEED OF RECORD IN DOCUMENT NO.
2006113854 OF THE OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS
AND ALSO CONVEYED TO GREGORY CARTER BY DEED OF RECORD IN
DOCUMENT NO. 2010072268 OF SAID OFFICIAL PUBLIC RECORDS; SAID 156.769
ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS
AS FOLLOWS:
BEGINNING, at a 5/8 inch iron rod found in the southerly right-of-way line of the Union
Pacific Railroad (100' R.O.W.) being the northeasterly coiner of that certain 157.385 acre tract
of land conveyed to Bison Tract 79, Ltd. by deed of record in Document No. 2007049657 of said
Official Public Records, also being the northwesterly corner of said 155.589 acre tract and
hereof,
THENCE, N63037'28"E, leaving the northeasterly corner of said 157.385 acre tract, along the
southerly right-of-way line of the Union Pacific Railroad for the northerly line hereof, a distance
of 2864.50 feet to a 1/2 inch iron rod with "Baker Aicklen" cap found for the northwesterly
corner of Lot 1, Block A of Final Plat of Brushy Creek Regional Wastewater Treatment Plant, a
subdivision of record in Document No. 2007067173 of said Official Public Records, being the
northeasterly corner of said 155.589 acre tract and hereof;
THENCE, leaving the southerly right-of-way line of the Union Pacific Railroad, along the
common line of said Lot 1, and said 155.589 acre tract for the easterly line hereof, the following
five(5) courses and distances:
1) S26°12'00"E, a distance of 49.99 feet to a 1/2 inch iron rod with `Baker Aicklen" cap
found;
2) N63°41'06"E, a distance of 81.63 feet to a 1/2 inch iron rod with illegible cap found;
3) S03°3352"E, a distance of 1695.07 feet to a 1/2 inch iron rod with"LCRA"cap found;
4) N58°53'53"E, a distance of 362.51 feet to a 1/2 inch iron rod with"LORA" cap found;
5) N58°35'13"E, a distance of 245.00 feet to a 1/2 inch iron rod with"LORA"cap found;
6) S02°28'32"E, passing at a distance of 387.44 feet, a 1/2 inch iron rod with "SURVCON
INC" cap found, and continuing for a total distance of 463.04 feet to a point in the center
of Brushy Creek, being in the northerly line of Lot 59, Block F of Final Plat of Freeman
Park Subdivision Phase I, of record in Document No. 2015010846 of said Official Public
Records, also being the most southerly southwesterly corner of said Lot 1, for the
southeasterly coiner hereof;
THENCE, leaving the most southerly southwesterly corner of said Lot 1, along or near the
center of Brushy Creek, with the northerly line of said Lot 59; the northerly line of Lot 26,Block
B of Lake Forest III, Village III Revised, a subdivision of record in Document No. 2004095851
of said Official Public Records; the northerly line of Lot 43, Block E of Final Plat of Sonoma
Section 9, a subdivision of record in Document No. 2004021881 of said Official Public Records;
and the northerly line of Lot 46, Block F of Final Plat of Sonoma Section 11, a subdivision of
record in Document No. 2005000171 of said Official Public Records for the southerly line
hereof, the following twenty-three (23) courses and distances:
1) S71°58'01"W,a distance of 59.92 feet to an angle point;
2) S66°40'11"W,a distance of 90.58 feet to an angle point;
3) S49°32'25"W, a distance of 78.88 feet to an angle point;
4) S40°47'39"W, a distance of 82.04 feet to an angle point;
5) S23037'20"W, a distance of 81.79 feet to an angle point;
6) S28°52'04"W, a distance of 110.18 feet to an angle point;
7) S36°12'52"W, a distance of 282.02 feet to an angle point;
8) S38°03'24"W, a distance of 84.64 feet to an angle point;
9) S47°37'12"W, a distance of 329.19 feet to an angle point;
10) S15°41'16"E, a distance of 184.53 feet to an angle point;
11) S07°27'39"E, a distance of 150.82 feet to an angle point;
12) S03°49'27"W, a distance of 142.77 feet to an angle point;
13) S21°18'06"W, a distance of 94.11 feet to an angle point;
14) S44°12'01"W, a distance of 165.58 feet to an angle point;
15) S69-5 1'49"W, a distance of 215.14 feet to an angle point;
16) S45°25'49"W, a distance of 111.25 feet to an angle point;
17) S26°29'36"W, a distance of 94.25 feet to an angle point;
18) S31°48'00"W, a distance of 125.62 feet to an angle point;
19) S51°58'20"W, a distance of 230.16 feet to an angle point;
20) S61°55'26"W, a distance of 477.59 feet to an angle point;
21) S54°23'53"W, a distance of 144.42 feet to an angle point;
22) S40°2856"W, a distance of 383.47 feet to an angle point;
23) S42°15'33"W, a distance of 108.54 feet to the southeasterly corner of that certain 60.58
acre tract of land conveyed to Ernest Johnson Et. Al. by deed of record in Document No.
2003035323 of said Official Public Records, for the southwesterly corner hereof;
THENCE, leaving the northerly line of said Lot 46, along the common line of said 60.58 acre
tract and said 155.589 acre tract, for a portion of the westerly line hereof, the following two (2)
courses and distances:
1) NO2°13'26"W, passing at a distance of 100.00 feet, a 1/2 inch iron rod with "Bury'" cap
set for reference, and continuing for a total distance of 2999.89 feet to a 1.5 inch pipe
found for the northeasterly corner of said 60.58 acre tract;
2) S87058'05"W, a distance of 847.45 feet to an axle found for the northwesterly corner of
said 60.58 acre tract, being in the easterly line of said 157.385 acre tract for an angle
point;
THENCE, leaving the northwesterly corner of said 60.58 acre tract, along the common line of
said 157.385 acre tract and said 155.589 acre tract, for a portion of the westerly line hereof, the
following two (2)courses and distances:
1) S86°15'40"W, a distance of 8.60 feet to a 1/2 inch iron rod with "Baker Aicklen" cap
found, from which a 1/2 inch iron rod found for the northeasterly coiner of Lot 1 of Bertil
Telander Subdivision, of record in Cabinet H, Slides 126 of the Plat records of
Williamson County, Texas bears S84°58'11"W, a distance of 31.42 feet;
2) NO2°10'29"W, a distance of 305.90 feet to the POINT OF BEGINNING, containing an
area of 158.269 acres or (6,894,202 square feet) of land, more or less, SAVE AND
EXCEPT THEREFROM,that certain 1.50 acre tract of land conveyed to Keith Krienke
and Laura Rinehart Krienke by deed of record in Document No. 2006074399 of said
Official Public Records, Texas; Said 1.50 acre tract being more particularly described by
metes and bounds as follows:
COMMENCING, a 1/2 inch iron rod with "Baker Aicklen" cap found in the southerly right-of-
way line of the Union Pacific Railroad for the northwesterly corner of Lot 1, Block A of said
Final Plat of Brushy Creek Regional Wastewater Treatment Plant of record, being the
northeasterly corner of said 155.589 acre tract;
THENCE, S26°12'00"E, leaving the southerly right-of-way line of the Union Pacific Railroad,
along the common line of said 155.589 acre tract and said Lot 1, a distance of 49.99 feet to a 1/2
inch iron rod with"Baker Aicklen"cap found;
THENCE, S03034'49"E, leaving the westerly line of said Lot 1, over and across said 155.589
acre tract, a distance of 291.32 feet to a 1/2 inch iron rod with "Stan Coalter" cap found for the
POINT OF BEGINNING, being the northeasterly corner of said 1.50 acre tract and hereof;
THENCE, along the exterior lines of said 1.50 acre tract for the exterior lines hereof, the
following four(4) courses and distances:
1) S03°34'49"E, a distance of 298.62 feet to a 1/2 inch iron rod with "Stan Coalter" cap
found for the southeasterly corner hereof;
2) S74°24'52"W, a distance of 244.97 feet to a 1/2 inch iron rod with "Stan Coalter" cap
found for the southwesterly corner hereof;
3) N06°37'52"E, a distance of 340.30 feet to a 1/2 inch iron rod with "Stan Coalter" cap
found for the northwesterly corner hereof;
4) N81°44'34"E, a distance of 179.89 feet to the POINT OF BEGINNING, containing an
area of 1.500 acres (65,357 square feet) of land, leaving a TOTAL NET AREA OF
156.769 ACRES (6,828,845 square feet) of land, more or less, within these metes and
bounds;
BEARING BASIS: THE BASIS OF BEARING OF THE SURVEY SHOWN HEREON IS
TEXAS STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83(96),
UTILIZING WESTERN DATA SYSTEMS CONTINUALLY OPERATING REFERENCE
STATION (CORS)NETWORK.
TRACT V - 156.769 ACRES FN. NO. 16-016(MJR)
KRIENKE, MEREDITH AND CARTER TRACT BURY NO. R0113323-10001
P.O.B.
P.O.C. EXCLUDED0 400 800 1200 1600
EXCLUDED TRACTT
TRACT
o
} EXCLUDED TRACT
r?W 1.500 ACRES
Q _ 155.589 ACRES
CO* KE7TH KRIENKE, MARK MER£D17H \
Z
>-> DOCUMENT N0. 2006113854
Ur Lil GREGORY S7EPHEN CAR7ER
DOCUMENT NO, 2010072268
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DOCUMENT NO. THE HICKOX FAMIL Y LI NNC TRUST, ET, AL. CHRIS7EL ELROD
2011041095 DOCUMENT NO. 200605J683 VOLUME 18131
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THE OFFICIAL PUBLIC
RECORDS OF BIWAVSOH COUNTY,TEXAS;ALSO BEING All
TO.(512)3260011 Fox(512)328-03:5 Or LOT 9 OF THE S.Y.SWENSON SUBDINSION,OF RECORD M BOOR 13,PACE 119
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Copy.l0A1�92016 BERTIL TELANDER SUBDIVISION,OF RECORD IN CABINET H,SLIDE 126 OF THE PUT
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DATE:11/2812016 1 DRAWN BY:KWNDLB I FN: 16-433(DLB) I FlL.E:V:12220V1CTIVELSURVEYL222010482EX3.DWG PROJECT No.222010482
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I
CERTIFICATE OF INTERESTED PARTIES FORM 1295
i
I
1of2
USE ONLY i
Complete Nos.1-4 and 6 if there are Interested parties. OFFICEi
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
I Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-145429
KR CC, Inc
Wisconsin Dells,WI United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 12/12/2016
being filed. j
City of Round Rock Date Acknowledged:
g Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
2016 Kalahari Ground Lease j
This agreement is related to the development of a Kalahari Resort in Round Rock,Texas. I
t
i
Nature of interest i
4 Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling Intermediary
Patel,Hamang Madison,WI United States X
Boles,Jim Round Rock,TX United States X
I
Flemma,Saverio Milwaukee,WI United States X
i
Harms, Bruce Madison,WI United States X j
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Downey,Tim Lake Forest,IL United States X j
Ventura,Misty Dallas,TX United States X
Kane,Michael Madison,WI United States X
Green,Michael Madison,WI United States X j
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c
Bonte Spath,Mary Wisconsin Dells,WI United States X
Nelson,Shari Wisconsin Dells,WI United States X
1
Nelson,Todd Wisconsin Dells,WI United States X
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I
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277
1
CERTIFICATE OF INTERESTED PARTIES
FORM 1295 j
I
2 of 2
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Complete Nos.1-4 and 6 if there are Interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
;
i
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: p
of business. 2016-145429
KR CC, Inc
Wisconsin Dells,WI United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 12/12/2016 {
being filed.
City of Round Rock Date Acknowledged:
i
a Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a I
description of the services,goods,or other property to be provided under the contract.
2016 Kalahari Ground Lease
This agreement is related to the development of a Kalahari Resort in Round Rock,Texas. I
i
4 Nature of interest
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling Intermediary i
i
I
i
3
i
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IE
i
3
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i
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5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT ,•` ` I swear,or affirm,under penalty of1rY
er u ,that the above disclosure Is true and correct.
P
NCr49
ignature of authorized agent of contracting business entity
AFFIX fd�T�.STAMP/,SEAL ABOVE
Sworn to andlsubsgriped he Ifo me,by the said r- f/�Y� t .t .l.r r�'\ this the � day of w[ ,
20 I V ,to certify which,witness my hand and sea of office, j
Signaffr—eaf-Acer administering oath Printed name of officer administering oath Title of offi er administering oath
i
3
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277
i
1
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 2
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-145429
KR CC, Inc
Wisconsin Dells,WI United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 12/12/2016
being filed.
City of Round Rock Date Acknowledged:
12/15/2016
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
2016 Kalahari Ground Lease
This agreement is related to the development of a Kalahari Resort in Round Rock,Texas.
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling Intermediary
Patel, Hamang Madison,WI United States X
Boles,Jim Round Rock,TX United States X
Flemma, Saverio Milwaukee,WI United States X
Harms, Bruce Madison,WI United States X
Downey,Tim Lake Forest, IL United States X
Ventura, Misty Dallas,TX United States X
Kane, Michael Madison,WI United States X
Green, Michael Madison,WI United States X
Bonte Spath, Mary Wisconsin Dells,WI United States X
Nelson, Shari Wisconsin Dells,WI United States X
Nelson,Todd Wisconsin Dells,WI United States X
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277
CERTIFICATE OF INTERESTED PARTIES FORM 1295
2of2
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2016-145429
KR CC, Inc
Wisconsin Dells,WI United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 12/12/2016
being filed.
City of Round Rock Date Acknowledged:
12/15/2016
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
2016 Kalahari Ground Lease
This agreement is related to the development of a Kalahari Resort in Round Rock,Texas.
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said this the day of
20 ,to certify which,witness my hand and seal of office.
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277