Capital Newsletter

By: Mark Castillo and Robert Rowe

280 Dark Locations

When Stein Mart put its 280+ stores into a Chapter 11 reorganization during the COVID-19 pandemic, it marketed its various locations around the country to potential bidders that might take over their leases and rent obligations. Anxious landlords closely monitored the process, also hoping new tenants would take the reigns and keep the locations from going dark. After months of planning and several weeks in an expedited and court-approved auction process with seasoned professionals, Stein Mart finally filed its Notice of Bid Results:  A single qualifying bid was received for just one store (store #243). Stein Mart was forced to cancel its planned auction and reject (effectively terminate) its remaining 280+ leases. Below are key bankruptcy concepts that landlords, tenants, and investors should watch for during a potential insolvency or bankruptcy event.

Chapter 11 Leverage Points

The automatic stay: Chapter 11 allows debtor companies to operate in the ordinary course of business while they work to reorganize their debts. The bankruptcy filing creates an automatic stay (an injunction) against many typical collection activities that otherwise could be taken outside of a bankruptcy context. This stay allows breathing room for the debtor to put a pause on collection and a focus on restructuring.

Ipso facto clauses: Lease provisions that purport to automatically terminate or modify a lease in the event of a bankruptcy filing generally are unenforceable in bankruptcy. They conflict with the Bankruptcy Code’s purpose of providing a forum for a tenant to restructure its debt while maintaining business operations.  Unless the landlord has taken every step under the lease to terminate the agreement prior to bankruptcy, Chapter 11 likely remains available to the tenant notwithstanding ipso facto clauses claiming otherwise.

Assumption: A useful bankruptcy tool for debtor tenants is the ability to assume (or keep) their leases and even assign them to a third party in exchange for some immediate value to the tenant and/or reduction of the tenant’s ongoing obligations. Tenants will avail themselves of this opportunity particularly when it comes to below-market leases, which can be assumed (and kept) or assigned to third parties for value and/or savings. If assumed, the tenant must provide assurance that it will cure all defaults in a timely manner and provide adequate assurance that it will meet its future lease obligations.

There is no specific legal definition of “adequate assurance.” Oftentimes, the assurance is the same as what the landlord required when the lease was signed. Therefore, landlords should clearly define these assurances in their leases. 

Assignment: A debtor tenant also can assign its lease to a willing purchaser/assignee.  Any prospective assignee must, as a prerequisite to the assignment, cure the full prepetition (pre bankruptcy filing) default and provide adequate assurance of the ability to abide by the lease provisions in the future. Landlords should conduct as much due diligence as possible of any proposed assignee to the lease and object if the landlord is not satisfied the replacement will be able to perform. 

Rejection: Alternatively, debtor tenants can reject their leases that are of little use to them. This may happen to above-market leases or leases that are in areas where the tenant no longer wants to focus its post-bankruptcy business. If the tenant chooses to reject the lease, this constitutes a default that will allow the tenant to relieve itself of any further liability under the lease. The landlord, on the other hand, will receive an unsecured claim for the remainder of the lease term, up to a statutorily defined cap.  General unsecured claims, however, are typically paid cents on the dollar because of their lower priority under the Bankruptcy Code.

Preparing for the Rainy Day

Given these issues, landlords, tenants, and investors may consider taking time now to clean up their business practices and form agreements.

Due diligence:  While no amount of due diligence can fully guarantee a bankruptcy will not be filed, landlords should balance the short-term gains of filling vacant space with the potential pitfalls of bringing on financially risky tenants.

Financial wherewithal provisions:  In assessing whether a potential assignee to a lease can satisfy the “adequate assurance” requirement for assignment, courts typically key off terms the debtor-tenant had to satisfy initially under its lease for commencement or assignment.  Landlords should consider comprehensive due diligence requirements in their form leases for potential assignees, and tenants should be proactive in gathering this information when courting potential assignees.

Guarantees: Non-debtor guarantees and lines of credit survive the debtor tenant’s bankruptcy and may provide not just a means for collecting lease damages from the guarantor, but also negotiating leverage at the assignment/assumption/rejection stage.

Termination v mere breach:  A landlord who wishes to avoid getting wrapped up in a defaulting tenant’s potential bankruptcy must act quickly to terminate the lease before the tenant finds safe haven in Chapter 11.  Alternatively, a tenant may consider Chapter 11 as a possible lifeline early into its financial distress before the landlord terminates the lease. A pre-filing termination likely cannot be revived even if the tenant is still in physical possession of the premises at the time of bankruptcy filing.

Termination provisions:  Landlords in many of the recent retailer mega-bankruptcies have incurred massive cleanup bills after tenants rejected their leases.  Once the tenant rejects a lease, its obligation to maintain or remove all the detritus of its tenancy is terminated too.  For this reason, a landlord may want to protect itself by requiring heftier security deposits from retail tenants as the landlord may be able to use these to setoff its damages.

Weathering the Storm

A commercial tenant must decide within 60 days whether to assume or reject its lease.  A tenant can request an extension if good cause is shown, including ongoing negotiations with a prospective replacement tenant or proof of strict compliance with all postpetition (post bankruptcy filing) lease obligations. Debtor tenants must still timely pay their postpetition lease obligations as they come due.  Any unpaid postpetition rent may be entitled to administrative expense priority status that is entitled to a higher priority for payment than general unsecured claims.  If the debtor tenant is not staying current on its postpetition obligations, the landlord may seek relief (e.g., an order compelling payment) from the bankruptcy court.

To successfully assume and/or assign the lease, any prepetition default must be cured and the party assuming the lease, whether it’s the tenant or a prospective replacement, must provide adequate assurance of the ability to abide by the lease provisions in the future.   The landlord should always conduct as much due diligence as possible of any proposed assignee to the lease and object if the landlord is not satisfied the replacement will be able to perform. 

Landlords and tenants alike should carefully monitor the bar date for filing of proofs of claims in the bankruptcy case and be aware of the Bankruptcy Code’s cap on claims for lease damages.  In the event a tenant rejects its lease, a landlord’s claim for damages is limited to the larger of one year’s rent or 15% percent of the remaining term capped at three years total.

Finally, a landlord may file a motion to compel earlier assumption or rejection and/or a motion for relief from the automatic stay to terminate and evict a tenant, but the landlord faces a high bar in so doing and often must show the relief is necessary to avoid irreparable harm to the landlord.

Mutual Benefit

The ability to assume, assign, or reject leases is an opportunity for debtor tenants and non-debtor landlords or investors to negotiate a mutual resolve that is perhaps more reflective of current market conditions. This could provide both a reduced rent for the tenant and an uninterrupted revenue source for the landlord. Reviewing your business practices and forms now may provide you better leverage when needed later.

By: Marisa O’Sullivan

Particularly in light of increasingly frequent natural disasters, property insurance has become ever more important in commercial real estate. This article will focus on coverage and challenges in commercial property insurance.

Commercial Property Coverage Basics

Property policies typically cover real property and business personal property either on an “all risks” or a “covered perils” basis. “All risks” policies typically provide broader coverage because the policy insures “all risks” except for those specifically excluded, while “covered perils” policies typically provide narrower coverage and only insure enumerated risks (e.g. tornado, fire, etc.). Property policies can be written for locations that are owned or leased.

Property policies may also include coverage for business interruption or “time element” losses, but coverages can vary widely. Business interruption coverage is generally intended to address damages like lost profits, extra expense, losses stemming from government orders, and loss of access caused by property damage to another’s property.

The Current Commercial Property Insurance Market

In recent years, the domestic commercial property insurance market has been battered by catastrophic weather and disaster events, which have become more severe, more frequent, and harder to predict; annualized losses from unanticipated catastrophic weather have exceeded billions of dollars. For example, after 2021 Winter Storm Uri, the Texas Department of Insurance (TDI) tracked over half a million property claims filed within the state. TDI estimated over $10 billion in covered losses as of summer 2021. The number of claim filings and amount at issue have, in many cases, slowed the claims handling process.

Moreover, post-pandemic inflation has resulted in higher labor and material costs, while supply-chain disruptions are increasing the time it takes to build, repair or rebuild commercial properties. As a result, many construction projects are behind schedule, and it is becoming increasingly common for builders’ risk policies to expire before a project is completed.

Aside from typical, first-party property losses, many commercial property policies also cover business interruption, extra expense, and other time element losses. Since the inception of the COVID-19 pandemic, over 2,300 lawsuits have been filed against property insurers with policyholders hoping to recover losses incurred stemming from COVID-19 closures. Although the vast majority of these suits have resulted in the dismissal of policyholders’ claims, property insurers are still spending an extraordinary amount of time and resources to fight these battles.

In an attempt to slow the hemorrhaging, carriers have been dumping unattractive risks, raising premiums, lowering limits, and tightening policy terms. Now more than ever, it’s important to have a good broker (or coverage lawyer) assist you with the placement or renewal process to make sure you secure favorable terms and pricing.

The Woes of Texas Insurance Code 542A

Meanwhile, commercial property policyholders have been attempting to navigate the now five-year-old Texas Insurance Code 542A, which mandates strict statutory requirements for property claims caused by forces of nature such as flood, tornado, lightning, hurricane, hail, wind, snowstorm, rainstorm, or wildfire. Chapter 542A restricts a policyholder’s ability to sue by: (1) requiring pre-suit notice of any claim, (2) limiting the amount of attorney fees and interest on delayed payments a policyholder can recover, and (3) allowing the insurer to elect to take responsibility for its agent’s conduct and thus shield the agent from liability.

Chapter 542A’s election provision also makes it easier for insurers to remove cases to federal court, traditionally known as a more expensive forum that tends to favor insurers. For example, the Fifth Circuit recently held that where Chapter 542A applies and a Texas policyholder has sued an out-of-state insurer and its Texas agent in state court, the insurer can invoke Chapter 542A’s election provision and remove to federal court on grounds the agent was improperly joined.

Chapter 542A contains detailed pre-suit notice requirements, which courts have strictly enforced. The policyholder must state the acts or omissions giving rise to the insurance claim, the specific amount of damages owed by the insurer on the claim, and a calculation of attorney fees incurred. Unless the policyholder has a reasonable basis for believing a limitations period is about to expire or is asserting its claim as a counterclaim, the policyholder must give pre-suit notice “not later than the 61st day before the date a claimant files an action.” If the notice is given by an attorney or other representative of the policyholder, the attorney or representative must provide a copy of the notice to the policyholder and include in the notice a statement that a copy of the notice was provided to the policyholder. Several courts have held pre-suit notice defective simply for lacking the statement that a copy had been provided to the policyholder.

Moreover, Chapter 542A potentially limits otherwise recoverable attorney fees. For example, if the damages to be awarded by the jury are less than 20% of the damages estimate in the policyholder’s pre-suit notice, the policyholder recovers no attorney fees. The statute also bars recovery of attorney fees incurred from the date an insurer pleads and proves the policyholder failed to give pre-suit notice. Thus, policyholders should make sure to comply with the pre-suit notice requirements and not overestimate damages. Chapter 542A also reduces the interest awarded as damages for violations of Texas prompt payment statutes.

This tricky, technical landscape has been a mine field for insureds of late and courts have taken to strictly enforcing 542A. In the event of a commercial property claim caused by forces of nature, it would be prudent for policyholders to engage a reputable coverage lawyer to ensure compliance with the statute’s requirements.

What should you do if you have a property claim?

First, inventory all potentially applicable policies and give notice to the appropriate insurers in a timely manner, based on the terms of the policy. Second, make sure you are aware of contractual deadlines within the policy (i.e. notice, proofs of loss, deadlines to file suit) and comply with them or negotiate an extension. Third, respond to requests for information thoroughly and promptly, document your damages, and hold on to damaged property until the insurer has inspected it. Fourth, respond to inaccuracies in coverage correspondence or engage coverage counsel to do so and retain records of all communications with the adjuster.

By: Joshua Kipp and Michael Lin

In dealing with warehouse or light industrial properties, leases are often in play. As either a landlord or a tenant, the terms of those leases govern your rights and obligations pertaining to the property and are vitally important to your business operations. While you may mostly focus on the primary lease terms such as economic terms like the rent amount or the costs of common area maintenance and the term of the lease, in warehouse and light industrial leases, maintenance and repair requirements, in addition to the rights to personal property and trade fixtures, can be ripe for disputes. Leases come to an end, whether by expiration or termination. Sometimes these disputes lie in wait until the end of the lease and the surrendering of the premises by tenant back to the landlord.

Often times, these disputes involve: (i) the tenant’s obligations with respect to the maintenance, repair, replacement, and restoration of the premises and other portions of the building in which the premises is located or (ii) the right of the tenant to remove personal property and trade fixtures from the premises.

Most often in commercial leases, the tenant’s maintenance, repair, replacement, and restoration obligations are limited to nonstructural elements of the premises. The landlord is most often responsible for the maintenance, repair, replacement, and restoration of the structural elements of the premises and the building, including, for instance, the roof. The governing language in the lease is critical on this issue. What must you maintain, repair, replace, or restore? Is there a standard to which it should be repaired, replaced, or restored? Does the other party have to give approval for such work before it is performed? To be clear on the parties’ obligations, all of these questions should be addressed in the lease.

In negotiating leases for warehouse or light industrial space, there is a tendency for landlords to attempt to shift the risk of the maintenance, repair, replacement, and restoration obligations of certain structural elements, such as the roof, to the tenants.  While this may not appear to be an important issue at first blush, it could end up being a huge monetary obligation for the tenant if the tenant is ultimately responsible for the costs of such maintenance, repair, replacement, or restoration.

Understanding which party is required to maintain, repair, replace, or restore what portions of the leased premises (and the building) is important so that you know what you are signing up for. Also critically important when performing any such work is knowing the standard required for such work. For the benefit of all parties to the lease, it is vital that such standards are clarified in the lease so that the parties can comply with such standards at the front end rather than asking for forgiveness at the end of the leasing relationship or worse, a fight.

As it is typical for tenants to place personal property and trade fixtures on the leased premises, another important issue at the surrender of the lease is the right to remove personal property and trade fixtures from the premises.  Typically, tenants have the right to remove personal property and unattached trade fixtures from the premises, but not any attached trade fixtures because removal might damage the premises.  It is critical for parties to a lease to discuss and determine at the front end how important it will be for the tenant to be able to remove any personal property and “attached” or “unattached” trade fixtures at the surrendering of the lease.  If this is important to the tenant, this right will need to be negotiated into this lease or the tenant risks not being able to take possession of valuable business assets at the end of the lease term. Even if a landlord is willing to allow removal, the landlord will almost certainly want to require the tenant to repair any damage caused by the removal of any personal property and trade fixtures. These issues should all be addressed in the lease language and a discussion at the outset goes a long way to set clear expectations and avoid nasty, expensive disputes at the end of the lease. As a landlord or a tenant, whether you are negotiating a lease at the front end or looking at your lease when a dispute has arisen, these terms can make substantial differences in your rights and obligations. Taking a few minutes to analyze these issues or, even better, reaching out to an attorney to review these issues before signing the lease, can save significant time and money in the long run. In the case of a tenant, this will also allow the tenant to focus on running its business instead of dealing with contested disputes

By: Cathy Altman

Over the past several years, supply chain challenges and material price volatility have plagued construction projects, strained the relationships among the project participants, and impacted bottom lines.  In 2023, these challenges and volatility remain substantial risk considerations for parties negotiating construction contracts, even if not as widespread or drastic as seen the last few years. In light of this reality, parties contracting for construction projects need to continue to control these risks by closely evaluating pricing provisions and contract risk-shifting provisions based on the specific risks these issues pose for each project. Parties must also ensure contract documents accurately reflect the agreed risk allocation by paying close attention to clauses or exhibits that may shift some or all of those risks in unintended ways. Likewise, parties need to consider the impact of risk shifting provisions on pricing and evaluate options for sharing or mitigating risks that could lead to better costs outcomes. The contract provisions will then need to be carefully aligned . Careful consideration and open communication about these issues at the contracting stage can help prevent unwanted surprises and allow parties to plan for the risks they have assumed.

Under cost plus contracts, owners typically assume the risk of price escalation. On the other hand, under lump sum or fixed price contracts, contractors often bear the risk of price escalation and supply chain challenges that increase costs. Under both price structures, however, contract provisions can shift those risks both intentionally and inadvertently. As a result, parties should closely review proposed changes to contracts and inclusion of exhibits as contract documents to ensure the documents clearly reflect their understanding of who has assumed what risk.

For example, inclusion of a guaranteed maximum price (“GMP”) in a cost plus contract shifts the risk of price escalation to the contractor once the GMP is reached. However, price escalation provisions or addenda may shift that risk back to the Owner by increasing the GMP in the event of price escalation in excess of certain amounts or percentages. Similarly, price escalation provisions included in a lump sum or fixed price contract undermine the price certainty by allowing contractors to recover certain unpredictable cost increases. These provisions can lead to distrust and disputes about whether the contractor could have anticipated or controlled the costs with proper diligence. By discussing expectations, parties may find ways to share the risk in ways that allow encourage expected mitigation efforts by all participants, including splitting or capping recoverable unexpected costs. Linking recovery for price escalation to indexes or percent increases may result in quicker resolution. If the parties elect to address the risk through contingency (or a lender so requires), expectations regarding approval and appropriate use of contingency should be discussed and addressed in the contract.

Owners focused solely on the pricing language in the contract may overlook certain force majeure provisions that offer contractors relief from some or all price increases over which the contractor had no control. Contractor proposals, clarifications, and assumptions regarding scope and pricing may significantly change risk allocation if incorporated as contract documents. Contractors may try to address escalation concerns through the  “excluded scope” clarification.  Close review of all incorporated documents will ensure the signed documents do not include changes not intended by one party. Attention to language establishing the order of precedence of documents is also critical

Inflexibility regarding contract provisions during negotiations may limit opportunities for cost savings. For example, Owners seeking fixed price or lump sum contracts that strictly preclude any opportunity to contractors to recover for unforeseeable and uncontrollable price increases should anticipate that pricing proposed by contractors will include sufficient contingency for escalation risks. Those risks may never materialize, resulting in owners paying more than they needed had they improved procurement practices or considered other options for addressing price escalation risk. Provisions or contingency buckets that allow contractors to recover for unforeseeable price escalation over which they have no control may reduce an owner’s project costs, particularly when paired with contract language detailing the contractor’s obligation to undertake mitigation strategies and to demonstrate the basis of the price escalation claim.

Alternatively, provisions that share the impact of price escalation among the owner and contractor create incentive for the parties to collaborate on risk mitigation options, including early procurement/fabrication, owner direct procurement of certain materials, and flexibility regarding alternatives or substitutions. Standard contract provisions must be reviewed closely for alignment with mitigation strategies and consideration of risks created by those strategies. The contract may need to provide greater flexibility for early procurement and storage of materials offsite, including payment to contractor for offsite materials. Those changes, however, will also require more robust provisions regarding insurance of the materials, security of material, transfer of ownership to the owner, right of access to the storage location for inventory purposes, and right of owner to assume lease of storage location in the event of a contractor termination.

To avoid unnecessary over-pricing of risk by contractors, owners may also want to improve procurement processes to ensure they are attracting contractors who are willing and able to mitigate the price and supply chain risks and consequently offer lower prices. Contractors who improve predictions of price/supply risk should have a competitive advantage over contractors that include contingencies for the substantial escalation rates experienced in prior years rather than rates more aligned with expected market conditions. Likewise, contractors who invest in mitigation strategies such as locking in pricing with suppliers or subcontractors and pre-purchasing and storing materials, may be positioned to offer lower pricing than competitors who have made no attempt to control risks. Questionnaires or interviews with potential contractors should delve into the contractor’s evaluation of the specific and general price escalation risks, opportunities for mitigation, and relationships with suppliers and subcontractors.  David Hurst, an experienced owner’s representative, strongly advises that parties openly discuss material procurement practices during the interview and negotiation process. As he explains, “transparency is the key to accountability and equity in a complicated process.” Thoughtful reconsideration of “form” contract provisions encourages transparency in negotiations to acknowledge and plan for risks in today’s environment.

By: Charles Jordan

With heavily discounted prices, environmentally challenged real estate draws interest from industrial and commercial developers.  Land price advantages can make a pro forma sing!  The “challenge” is a function of the cost of overcoming media contamination and environmental stigma.  A similar problem is presented by “Class C” energy-inefficient buildings with fixtures so unsustainable that efficient operation becomes too complicated.  Is there a sweet spot for environmental or energy deficiencies serious enough to warrant a meaningful discount in pricing, but solvable enough to be mitigated economically?

A unicorn property, indeed.  But creative developers will consider development incentive programs for brownfield projects to aid in the hunt.  There is widespread familiarity with economic development incentive programs driven by job- and tax-base creation.  How do the handful of federal and state programs designed to spur brownfield development compare?

Economic development incentives supply carrots like long term property tax savings or abatements, or even direct development subsidies (e.g., a grant of funds to be applied to public works associated with a site development plan).  Availability often depends on factors such as the projected tax base a tenant will create with taxable equipment and fixtures or (more familiarly) the projected job creation resulting from tenant hiring.

In contrast, the earliest (and, most well-known) federal programs designed to incentivize brownfields development focus on relief from potential liability of the owner or operator for clean-up of environmentally challenged sites.  Such legal exposure is created under statutory programs mandating responses to environmental contamination discovered by owners or operators.  

The Environmental Protection Agency (EPA) has conveniently summarized the federal statutory provisions and enforcement documents drafted for addressing owner liability in redeveloping brownfields property.  The EPA’s Revitalization Handbook features a menu of federal enforcement policies developed since the early 2000s designed to mitigate owner liability concerns under the two principal federal statutes applicable to contaminated real estate (often referred to as CERCLA (or The Comprehensive Environmental Response, Compensation & Liability Act) and RCRA (The Resource Conservation and Recovery Act)).  The most commonly applied are:

• The “bona fide prospective purchaser” defense;
• The “innocent landowner” defense;
• The “contiguous property owner” defense;
• The CERCLA “secured creditor” exemption; and
• The Superfund “comfort/status letter.”

While clearly stating agency intention to encourage site cleanup and reuse to achieve environmental protection goals, decades after promulgation, the landowner and mortgagee protection policies have achieved limited success in the market.  Industry participants cite the absence of reliable liability “safe harbors” coupled with the uncertain extent of cost for site assessment, monitoring, and clean-up.

In contrast, Texas environmental incentive programs provide tangible, predictable “carrots” for developers with green ambitions.  They are created with modest though well-defined policy goals.  Neither program excludes more traditional economic development incentives. They could be combined where a particular site redevelopment warranted relatively public subsidies. 

One Texas program is designed to provide property tax relief for taxable pollution control property, defined generally as a “facility, device, or method for the control of air, water, or land pollution.”  Not only equipment, but certain portions of the land comprising a commercial site, may potentially be tax-exempted.  The program, administered by the Texas Commission on Environmental Quality (TCEQ), is not limited to brownfield sites, but may apply there.  For example, development of a landfill site (frequently attractive to industrial developers given ease of permitting and political support from local governments for property rejuvenation) will require (by state law) the installation of foundation liners and certain methane venting equipment.  An owner of property used “wholly or partly” for pollution control may apply to the TCEQ for the agency’s “use determination” affirming that the property is used wholly or partly for pollution control purposes and (for land or equipment not wholly dedicated to pollution control) specifying the percentage of use allocable to pollution control.  The owner then applies to the applicable county appraisal district for the exemption, based on the TCEQ use and percentage determinations.  The regulations describe specific types of eligible pollution control equipment for air, water, and soil.  While many property classes describe equipment specifically designed for waste treatment or emissions control, a number of categories describe more commonly used fixtures and equipment routinely incorporated into industrial sites (e.g., settling basins, artificial wetlands, equipment and fixtures for storm water containment, oil/water separators, and groundwater monitor wells).

The Texas Property Assessed Clean Energy Act (PACE Act) creates a second program of special interest to industrial developers.  The PACE Act policy is to facilitate environmentally sustainable design and retrofitting of energy and water systems serving eligible projects.  The PACE Act authorizes cities and counties to adopt local programs to facilitate financing of construction or installation of green building features, such as insulation or trendy alternative energy generating systems.  The official authority for implementation of the program, the Texas PACE Authority, describes the legislation as “enabl[ing] owners to lower their operating costs and use the savings to pay for eligible water conservation, energy efficiency, resiliency, and distributed generation projects. Owners gain access to private, affordable, long-term …  financing … not available through traditional funding avenues.”  PACE financing, underwritten through energy and/or water savings, is provided by private market lenders.  A novel feature of the program is a hybrid form of lien on real estate, allowing PACE lenders superior priority in the financing hierarchy.  Priority is based on a local government’s assessment authority.  PACE financing is only implemented with the consent of the project mortgagee(s) to be subordinated. 

The PACE Act is an enabling statute, only.  Availability in any particular municipality or county depends on adoption of the PACE program by the city’s or county’s governing authority.  PACE program jurisdictions are listed at https://www.texaspaceauthority.org/service-areas/. Brownfield development is not for the faint of heart – but can yield bonus entitlements for the green-minded developer.