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Execution VersionLEASE AND DEVELOPMENT AGREEMENTby and betweenCITY OF AUSTIN, as LandlordandAUSTIN STADCO LLC, as TenantDated as of December 18, 2018AUSTIN FC SOCCER STADIUMAUSTIN, TRAVIS COUNTY, TEXASDC: 6827402-27
TABLE OF CONTENTSPageARTICLE I GENERAL TERMS .11.11.2Definitions and Usage .1Governing Provisions.1ARTICLE II REPRESENTATIVES .12.12.2Landlord Representative .1Tenant Representative .2ARTICLE III LEASED PREMISES .23.13.23.33.4Grant .2Delivery of Possession; Covenant of Quiet Enjoyment; Leasehold Priority .3Leased Premises Reservations .4Development .5ARTICLE IV CAPITAL METRO, PARKING AND SITE COORDINATION .64.14.24.3Capital Metro .6Parking and Transit Plan .6Signage .6ARTICLE V TERM .75.15.2Term .7Options to Extend .7ARTICLE VI RENT; FUNDING OBLIGATIONS .86.16.26.36.46.56.66.7Payment of Rent .8Rent .8Calculation and Payment of Base Rent .8Additional Rent .9Community Benefits .9Compliance; Certificate of Compliance and Inspection .9Audit Rights .9ARTICLE VII CONDITION OF LEASED PREMISES .107.17.2Condition of Leased Premises; Disclaimer of Representations andWarranties .10Tenant’s Risks .11i
ARTICLE VIII CONDITIONS TO CONTINUATION OF LEASE; TENANTDEADLINES AND DELIVERABLES .128.18.28.38.48.58.6Conditions to Continuation of Lease .12Agreement to Consult .13Termination for Failure of Conditions to be Satisfied .14Tenant Deadlines After Execution Date .14Extension of Project Completion Deadline.16Failure to Meet Mandatory Substantial Completion Deadline .16ARTICLE IX CONSTRUCTION OF THE PROJECT IMPROVEMENTS; GENERALWORK REQUIREMENTS General Provisions .16Monitoring Rights .18Remedial Work .18Work Performed on Project Improvements and Additional Work .19Mechanics’ Liens and Claims .22Construction Safety Plan.23Total Project Costs .23Zoning and Permits .24Wetlands and other Environmental Matters .24Cessation of Work for an Extended Period.24Project Construction Contract Bond or Project Contractor ParentGuarantee .25Small and Minority Business Compliance .25Labor .26Art .26ARTICLE X DELAYS AND EFFECT OF DELAYS .2610.110.210.3Excusable Tenant Delay .26Excusable Landlord Delay .27Continued Performance; Exceptions.27ARTICLE XI APPROVALS, CONFIRMATIONS AND NOTICES; DISPUTERESOLUTION .2811.111.211.311.411.5Approvals, Confirmations and Notices .28Informational Purposes Only; No Approval Required .30Governmental Rule .30Standards for Approvals .30Dispute Resolution .32ARTICLE XII USE AND OCCUPANCY; PERMITTED AND PROHIBITED USES;OPERATING REQUIREMENTS .3212.1Permitted Uses .32ii
hibited Uses .34Operation After Substantial Completion .35Compliance with Applicable Laws and Permitted Exceptions .38Light and Air .39Event Day Costs.39Management .39Youth Soccer .39Landlord Dates .39Affordable Ticket Committee .42Team Event Ticket Prices .42Team Assessment.43ARTICLE XIII IMPOSITIONS; NET LEASE .4313.113.213.3Taxes and Assessments .43Tenant’s Right to Contest Impositions .46Net Lease .47ARTICLE XIV REPAIRS AND MAINTENANCE; UTILITIES .4714.114.2Repairs and Maintenance .47Utilities.52ARTICLE XV OWNERSHIP OF IMPROVEMENTS AND TENANT’S PERSONALPROPERTY; ADDITIONAL WORK .5315.115.215.3Title to the Project Improvements.53Additional Work by Tenant .54No Substitute for Permitting Processes.56ARTICLE XVI LANDLORD’S RIGHT OF ENTRY .5616.1Access to Leased Premises by Landlord .56ARTICLE XVII ADDITIONAL ENVIRONMENTAL PROVISIONS .5717.117.217.317.417.5No Hazardous Materials .57Notice of Environmental Event .58Environmental Audit .58Tenant Release .58Landlord Release .59ARTICLE XVIII CASUALTY DAMAGE .5918.118.218.318.4Damage or Destruction during the Term .59Casualty Proceeds .59Abatement .60Option to Terminate .60iii
ARTICLE XIX INSURANCE AND INDEMNIFICATION 9.12Policies Required .62Blanket or Master Policy .73Failure to Maintain.73Additional Policy Requirements .74General Obligations with Respect to Policies .76Proceeds of Insurance .77Indemnification .77Conduct of Claims .78Failure to Defend .79No Third-Party Beneficiary .79Surety Bonds for Additional Work .79Reimbursement by Landlord.80ARTICLE XX CONDEMNATION .8020.120.220.320.420.520.620.7Condemnation of Substantially All of the Leased Premises .80Condemnation of Part .81Temporary Taking .82Condemnation Proceedings .82Notice of Condemnation .83Condemnation by Landlord .83Survival .83ARTICLE XXI ASSIGNMENT, TRANSFER AND SUBLEASING .8321.121.221.321.421.521.621.721.821.9Assignment and Subletting .83Standards for Landlord Approval of Transfers; Costs .85No Waiver of Rights by Landlord .85Conditions to Effectiveness of Any Transfer.85Acceptance of Rent .86Use Agreements .86Transfers by Landlord .86No Release .86General Provisions .87ARTICLE XXII SURRENDER OF POSSESSION; HOLDING OVER.8722.122.222.3Surrender of Possession .87Removal of Tenant’s Personal Property .87Holding Over .87ARTICLE XXIII REPRESENTATIONS, WARRANTIES AND COVENANTS.8823.123.223.3Tenant’s Representations and Warranties .88Tenant Covenants.89Landlord’s Representations and Warranties .91iv
23.4Landlord Covenants .92ARTICLE XXIV DEFAULTS AND REMEDIES.9324.124.224.324.424.524.6Events of Default .93Remedies .96[Reserved] .98Right to Injunction .98No Waivers .98Effect of Termination .99ARTICLE XXV LEASEHOLD .1025.1125.1225.1325.1425.1525.16Tenant’s Right to Grant Liens and Special Provisions Applicable toPermitted Project Financing Holders .99Leasehold Mortgagee Not Bound .101Default Notice .101Notice to Leasehold Mortgagee .102Procedure on Default .102New Lease .104New Lease Priority .105Liability of New Tenant .105Further Assurances; Estoppel Certificate.105Use Agreements and Rents .106Legal Proceedings .107Notices .107Amendments .107Fee Mortgages.107No Merger .107Casualty and Condemnation Proceeds .107ARTICLE XXVI GENERAL PROVISIONS .10826.126.226.326.426.526.626.726.826.926.10No Broker’s Fees or Commissions .108Non-Appropriation.108Recording of Memorandum of Lease .108Interest on Overdue Obligations .109Employment of Consultants .109Estoppel Certificate .109Open Records .109Maintenance of Rights of Way, Easements and Licenses .110Compliance with Anti-Forfeiture Laws .110Assignment of License Agreements; Name of Project Improvements;Trademarks .11026.11 Marketing Rights .11026.12 Exclusive Right to Exhibit Professional Soccer .11226.13 Landlord’s Lien Waiver .113v
ARTICLE XXVII MLS RULES .11327.127.2MLS Rules. .113MLS Step-in Rights .114vi
APPENDICES, SCHEDULES AND EXHIBITSAppendix AGlossary of Defined TermsAppendix BGoverning ProvisionsAppendix CAddress for Payment and NoticesSchedule 6.5Community BenefitsSchedule 6.6Certificate of ComplianceSchedule 12.8Youth Programming PlanSchedule 14.1.4Landlord’s Capital Repairs Reserve Fund ContributionsExhibit ALandExhibit BMemorandum of LeaseExhibit CGuarantyExhibit DPermitted ExceptionsExhibit EProject BudgetExhibit FInitial Project Construction Schedulevii
Execution VersionLEASE AND DEVELOPMENT AGREEMENTTHIS LEASE AND DEVELOPMENT AGREEMENT (this “Lease”) is made andentered into effective as of December 18, 2018 (the “Execution Date”) by and between theCITY OF AUSTIN, a Texas home rule municipal corporation (“Landlord”), and AUSTINSTADCO LLC, a Delaware limited liability company (“Tenant”). Landlord and Tenant aresometimes collectively referred to herein as the “Parties” and individually as a “Party”.RECITALSA.Landlord owns certain real property situated in the City of Austin, Travis County,Texas.B.Landlord desires to lease to Tenant and Tenant desires to lease from Landlord theLeased Premises to be used for public purposes in accordance with the terms hereof.C.In connection with its lease of the Leased Premises, Tenant desires to undertakethe development, construction, operation and maintenance of a public sports, entertainment, andcultural multi-purpose facility that will include a new, first class, state-of-the art, natural grass,open-air stadium, park/open space, performance area, parking and related facilities in accordancewith the terms hereof, which will be owned by Landlord and open to the public (regardless ofwhether a fee is charged for admission). Tenant does not and will not own any part of theLeased Premises (neither the Land, Project Improvements or any other Improvements, nor anypersonal property owned by Landlord) during the Term of this Agreement.AGREEMENTSNOW, THEREFORE, for and in consideration of the respective covenants andagreements of the Parties herein set forth, and other good and valuable consideration, the receiptand sufficiency of which are hereby acknowledged by the Parties, Landlord and Tenant,intending to be legally bound, hereby agree as follows:ARTICLE IGENERAL TERMS1.1Definitions and Usage. Unless the context shall otherwise require, capitalizedterms used in this Lease shall have the meanings assigned to them in the Glossary of DefinedTerms attached hereto at Appendix A, which also contains rules as to usage that shall beapplicable herein.1.2Governing Provisions. The governing provisions set forth in Appendix Battached hereto shall apply to and govern this Lease for all purposes.ARTICLE IIREPRESENTATIVES2.1Landlord Representative. Landlord hereby designates each of The Director ofthe Economic Development Department (or successor department) and Greg Kiloh to be the
representative of Landlord (the “Landlord Representative”), each of whom shall be authorizedto act on behalf of Landlord under this Lease; provided, however, that Greg Kiloh shall only beauthorized to act with respect to design and construction matters and only prior to FinalCompletion of the Project Improvements Work. Landlord shall have the right, from time to time,to change the individual or individuals who are the Landlord Representative by giving at leastten (10) days’ prior written Notice to Tenant thereof. The only functions under this Lease of theLandlord Representative shall be as expressly specified in this Lease. Any written Approval,decision, confirmation or determination of any one of the individuals from time to time servingas the Landlord Representative acting alone and without the joinder of the other individuals thenserving as the Landlord Representative shall be binding on Landlord but only in those instancesin which this Lease specifically provides for the Approval, decision, confirmation ordetermination of the Landlord Representative and in no other instances; provided, however, thatnotwithstanding anything in this Lease to the contrary, the Landlord Representative shall nothave any right to modify, amend or terminate this Lease.2.2Tenant Representative. Tenant hereby designates each of David Greeley andDan Valliant to be the representative of Tenant (the “Tenant Representative”), each of whomshall be authorized to act on behalf of Tenant under this Lease; provided, however, that DanValliant shall only be authorized to act with respect to design and construction matters and onlyprior to Final Completion of the Project Improvements Work. Tenant shall have the right, fromtime to time, to change the individual who is the Tenant Representative by giving at least ten(10) days’ prior written Notice to Landlord thereof. With respect to any such action, decision ordetermination to be taken or made by Tenant under this Lease, the Tenant Representative shalltake such action or make such decision or determination or shall notify Landlord in writing of thePerson(s) responsible for such action, decision or determination and shall forward anycommunications and documentation to such Person(s) for response or action. Any writtenApproval, decision, confirmation or determination hereunder by the Tenant Representative shallbe binding on Tenant; provided, however, that notwithstanding anything in this Lease to thecontrary, the Tenant Representative shall not have any right to modify, amend or terminate thisLease. CAA ICON is acting as the project manager on behalf of Tenant with respect to theProject Improvements Work.ARTICLE IIILEASED PREMISES3.1Grant. In consideration of and pursuant to the covenants, agreements andconditions set forth herein, Landlord does hereby lease, let, demise and rent unto Tenant, andTenant does hereby rent and lease from Landlord, on and subject to the terms, conditions andprovisions of this Lease, the Leased Premises, for the Term set forth in Article V hereof.TO HAVE AND TO HOLD the Leased Premises unto Tenant for the Term pursuant tothe terms and conditions of this Lease.Except as necessary to construct and operate the Improvements and appurtenancesthereto, Tenant is not granted any air rights over or subsurface rights under the Land. NeitherLandlord nor Tenant will develop, permit any development of, or interfere in any way with any2
of the air rights or air space above the Land or any of the subsurface rights and space below theLand without the prior written consent of the other Party.3.2Delivery of Possession; Covenant of Quiet Enjoyment; Leasehold Priority.Delivery of Possession. On the Execution Date, Landlord will deliver toTenant exclusive possession, use and occupancy of the Leased Premises free of alltenancies and parties in possession subject only to (i) the Permitted Exceptions and(ii) the rights and reservations of Landlord under this Lease. Subject to Tenant’s rights toaccess the Leased Premises pursuant to any early access agreement, Tenant shall not havethe right to use or occupy any part of the Leased Premises prior to the Execution Date.Covenant of Quiet Enjoyment. Landlord covenants for the Term thatTenant, so long as no Tenant Default has occurred and is continuing, shall and mayquietly and peaceably hold, occupy, use and enjoy the Leased Premises during the Termwithout ejection or interference by or from Landlord or any other Person claiming by,through or under Landlord (other than Persons claiming by, through or under Tenant),subject only to (i) rights of permitted Subtenants arising by, through or under Tenant,(ii) the Permitted Exceptions, (iii) Applicable Laws and (iv) the rights and reservations ofLandlord under this Lease. Landlord (a) shall, and shall cooperate with Tenant to,promptly relocate or vacate all inactive easements on the Land under Landlord’s controlnecessary or advisable for the construction of the Project Improvements (at no expense toTenant), and (b) shall cooperate with Tenant to promptly relocate or vacate all otherexisting easements on the Land necessary or advisable for the construction of the ProjectImprovements, in each case, to allow for timely commencement of construction of theProject Improvements and application for Governmental Authorizations.Leasehold Priority. Landlord covenants and agrees that (a) Tenant’sleasehold estate in the Leased Premises shall be senior and prior to any Lien or otherEncumbrance other than the
LEASE AND DEVELOPMENT AGREEMENT THIS LEASE AND DEVELOPMENT AGREEMENT (this "Lease") is made and entered into effective as of December 18, 2018 (the "Execution Date") by and between the CITY OF AUSTIN, a Texas home rule municipal corporation ("Landlord"), and AUSTIN STADCO LLC, a Delaware limited liability company ("Tenant").
