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HomeMy WebLinkAboutContract 48084 RECEIVED CITY SECRETARY CONTRACT010. I/aO 3 AUG 15 2016 CITY OFFORT WDXili ECONOMIC DEVELOPMENT PROGRAM AGREEMENT MUCK= This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the CITY OF FORT WORTH, TEXAS (the "City"), a home rule municipality organized under the laws of the State of Texas, and TANGER FORT WORTH, LLC, a North Carolina limited liability company, its successors and assigns("Company"). RECITALS The City and Company hereby agree that the following statements are true and correct and constitute the basis upon which the City and Company have entered into this Agreement: A. Company owns or will own approximately 43.791 acres of real property in the vicinity of the southwest corner of Interstate Highway 35 and State Highway 114 (the "Development Property"), as more specifically described in Exhibit "A", attached hereto and hereby made a part of this Agreement for all purposes. The Development Property currently consists of vacant Iand. Company,either itself or through an Affiliate, wishes to construct a commercial development consisting mainly of Retail uses of up to 400,000 square feet on the Development Property in two stages, as more specifically set forth in this Agreement. B. The 2015 Comprehensive Plan, which was adopted by the City Council pursuant to Ordinance No. 21693-03-2015 (the "Comprehensive Plan"), observes that the City relies very heavily on property taxes as a revenue source. The Comprehensive Plan notes that the City has a significantly higher property tax rate than other comparable municipalities in Texas and recommends that the City establish potential incentives to promote the development of vacant land in the City and to explore ways to increase the sales tax base in order to offset reliance on property taxes. The Development Property is situated in a developing corridor of the City that is bordered by other municipalities that potentially could compete with the City for economic development opportunities. In order to ensure that there is a balance between residential development and appropriate retail and commercial development in this area of the City, both to serve citizens moving into this area as well as to generate new sales tax revenues in an effort to offset the property tax burden on residents, the City wishes to encourage retail development in the vicinity of the Development Property. C. As recommended by the Comprehensive Plan and in accordance with Resolution No. 3716-03-2009, adopted by the City Council on March 10, 2009, the City has established an economic development program pursuant to which the City will, on a case-by-case basis, offer economic incentive packages authorized by Chapter 380 of the Texas Local Government Code that include monetary loans and grants of public money, as well as the provision of personnel and services of the City, to businesses and entities Page I Economic Development Program Agreement OFFICIAL RECORD between City of Fort Worth and Tanger Fort Worth.LLC CITY SECRETARY FT. WORTH, TX that the City Council determines will promote state or local economic development and stimulate business and commercial activity in the City in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the City (the "380 Program"). D. The City Council has determined that the 380 Program is an appropriate means to achieve the construction of this retail development, which the City Council has determined is necessary and desirable, and that the potential economic benefits that will accrue to the City pursuant the terms and conditions of this Agreement are consistent with the City's economic development objectives as outlined in the Comprehensive Plan. The Agreement is authorized by Chapter 380 of the Texas Local Government Code. E. The City has determined that the feasibility of constructing this retail development on the Development Property is contingent on Company's receipt of the Program Grants, as provided in this Agreement. The City's analysis is specifically based on financial information provided by Company. F. This development is being constructed in conjunction with another development of up to two million square feet of new commercial, rental residential and office space that is being undertaken by Roanoke 351114 Partners, L.P. or an affiliate thereof on land that is adjacent to the Development Property (the "Champions Circle Development"). The City has agreed to provide separate economic development program grants under the 380 Program for the Champions Circle Development. Nevertheless, the City Council has determined that the benefits to the City that will result from the retail development covered under this Agreement will significantly be enhanced by the Champions Circle Development. In addition, the City would not be entering into this Agreement but for the enhancements brought by the Champions Circle Development in conjunction with the commercial development on the Development Property. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The City Council has found, and the City and Company hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Agreement. Page 2 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.I,1.0 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms will have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital C. Affiliate means any entity, incorporated or otherwise, under common control with, controlled by or controlling Company. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Base Grant Percentage has the meaning ascribed to it in Section 6.1.1. Certificate of Completion has the meaning ascribed to it in Section 5. Champions Circle Develo ment has the meaning ascribed to it in Recital F. Champions Circle EDPA means that certain Economic Development Program Agreement by and between the City and Roanoke 351114 Partners, L.P. pertaining to the Champions Circle Development, which Agreement is a public document on file in the City Secretary's Office as City Secretary Contract No. 48085, as may subsequently be amended or assigned. Completion Deadline means the Phase I Completion Deadline and/or the Phase II Completion Deadline, depending on the context, and is a general term used herein to refer to such various Completion Deadlines. Comprehensive Plan has the meaning ascribed to it in Recital B. Comptroller means the Texas Comptroller for Public Accounts. Consent to Collateral Assignment Agreement has the meaning ascribed to it in Section 11. Construction Costs means the aggregate of Hard Construction Costs, Tenant Improvement Costs, and the following costs directly expended or caused to be expended by Company or by third parties other than Company for the Development and the Public Infrastructure: engineering fees; architectural and design fees; real estate commissions; costs of third party consultants, including attorneys and environmental consultants; developer fees; development fees, zoning fees, water and sewer tap fees, and impact fees charged by the City; other costs and fees customarily incidental to construction of a commercial project; insurance and taxes directly related to the Development and any Public Infrastructure that Company elects to construct; and financing costs, including capitalized interest. Page 3 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC Development means all improvements on the Development Property, including, but not limited to,the Phase I Improvements and the Phase II Improvements. Development Property has the meaning ascribed to it in Recital A. Development Property User means any person or entity, and any employee, agent, Tenant, or invitee thereof, that has the legal right to use or occupy and conduct Sales on any portion of the Development Property. Development Sales Tax Revenues means revenues received by the City from the one percent(1%)available City sales tax that is presently in effect pursuant to Texas Tax Code §§ 321.101(a) and 321.103, resulting from taxes collected by Development Property Users on Sales transacted on the Development Property; provided, however,that Development Sales Tax Revenues specifically excludes all revenues from (a) the Crime Control District Sales Tax imposed by the City pursuant to Texas Tax Code § 323.105 and Texas Local Government Code § 363.005, as may be amended, and (b) the Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority pursuant to City Secretary Contract No_ 19689, as previously or subsequently amended or restated, from the sales tax imposed by the Fort Worth Transportation Authority pursuant to Texas Tax Code Chapter 322. If the City's sales tax rate is ever decreased to the extent that the City receives available sales tax revenues based on less than a one percent (1%) sales tax, then the meaning of Development Sales Tax Revenues will automatically be adjusted to equal that lesser percentage. If the City's sales tax rate is ever decreased to the extent that the City receives available sales tax revenues based on less than a one percent (M) sales tax and is then increased to a higher percentage whose use is not otherwise controlled, regulated, restricted or otherwise dedicated to a specific use by the City, then Development Sales Tax Revenues will be computed to reflect that increased percentage up to a maximum aggregate of one percent(1%). Director means the director of the City's Economic Development Department. Effective Date has the meaning ascribed to it in Section 3. Employment Goal has the meaning ascribed to it in Section 4.5. First Dperatiniz Y means the first full calendar year following the year in which the Phase I Completion Date occurs. Fort Worth Certified MIWBE Company means a minority or woman-owned business that (i) has received certification as either a minority business enterprise (MBE), a woman business enterprise(WBE) or a disadvantaged business enterprise (DBE) by the North Central Texas Regional Certification Agency (NCTRCA); (ii) has a principal business office located within the corporate limits of the City; and (iii) from such principal business office performs a function or provides a service useful or necessary for the Development for which Company is also seeking credit under this Agreement. For purposes of this definition, a"principal" office does not mean its headquarters and can be Page 4 Economic Development Program Agreement between City of Fon Worth and Tanger Fort Worth.LLC one of multiple offices throughout the State of Texas and/or the United States of America maintained by such company. Fort Worth Company means a business that has a principal office located within the corporate limits of the City that performs a commercially useful function and that provides the services for which Company is seeking credit under this Agreement. For purposes of this definition, a"principal"office does not mean its headquarters and can be one of multiple offices throughout the State of Texas and/or the United States of America maintained by such company. Fort Worth Construction Commitment has the meaning ascribed to it in Section 4.3. Fort Worth Construction Percentage has the meaning ascribed to it in Section 6.1.2. Fort Worth Supply and Service Percentage has the meaning ascribed to it in Section 6.1.4. Fort Worth Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.6. Full-time YAuivalent Job means a job or combination of jobs on the Development Property provided to one or more individuals by Company, Company's Affiliate, or a Development Property User for a total period of not less than forty (40) hours per week. By way of example, jobs on the Development Property provided to two separate individuals for periods of twenty (20) hours per week each would be considered, in combination,one Full-time Equivalent Job. Hard Construction Costs means the aggregate of the following costs expended or caused to be expended by Company for the Development and the Public Infrastructure: actual site development and construction costs, general contractor and subcontractor fees, and the costs of supplies, materials and construction labor, but excludes land acquisition costs paid by Company for the various parcels that make up the Development Property. Hard Construction Costs specifically excludes Tenant Improvement Costs and any Construction Costs expended for the Development by third parties other than Company, Company's Affiliates and its contractors and subcontractors. Infrastructure Construction Agreement means an Infrastructure Construction Agreement, Community Facilities Agreement or other agreement or agreements requested by the City governing construction of any of the Public Infrastructure Improvements. Leasable Square Footage means the leasable Retail square footage contained in the Development. Page 5 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,E.E.0 Minimum Sales Per Occupied Square Foot Goal means a goal by Company that in each calendar year following the year in which the fifth (5th) Program Grant is payable, Sales Per Occupied Square Foot will equal Three Hundred Dollars($300.00). MIWBE Construction Commitment has the meaning ascribed to it in Section 4.4. MIWBE Construction Percentage has the meaning ascribed to it in Section 6.1.3. MIWBE Supply and Service Percentage has the meaning ascribed to it in Section 6.1.5. M/WBE Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.7. Notice of Com letion has the meaning ascribed to it in Section 4.8.1. Occupied Square Footage means the Leasable Square Footage that is occupied and under a current lease or any other agreement with a Tenant to occupy all or a portion of any building on the Development Property at any given point in time. Phase means generally the Phase I Improvements or the Phase II Improvements. Phase I Completion Date means the date as of which (i) all occupiable space comprising the Retail portion of the Phase I Improvements has received at least a temporary certificate of occupancy for shell building space issued by the City and (ii) if Company elects to construct any of the Public Infrastructure Improvements as part of the Phase I Improvements, the punch list for the Public Infrastructure Improvements portion of the Phase I Improvements has been completed and signed by both an authorized representative of the City and Company's general contractor for such Public Infrastructure Improvements. Phase I Completion Deadline means December 31, 2018. Phase I Improvement Commitment has the meaning ascribed to it in Section 4.1. Phase I Improvements means at least 350,000 square feet of Retail space constructed on the Development Property plus any of the Public Infrastructure Improvements that Company elects to construct in connection therewith. Phase II Completion Date means the date as of which (i) all occupiable space comprising the Retail portion of the Phase II Improvements has received at least a temporary certificate of occupancy for shell building space issued by the City and (ii) if Company elects to construct any of the Public Infrastructure Improvements as part of the Phase II Improvements, the punch list for the Public Infrastructure Improvements portion of the Phase II Improvements has been completed and signed by both an authorized Page 6 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC representative of the City and Company's general contractor for such Public Infrastructure Improvements. Phase II Completion Deadline means December 31, 2021. Phase II Improvement Commitment has the meaning ascribed to it in Section 4.2. Phase II Improvements means at least 50,000 square feet of Retail space constructed on the Development Property plus any of the Public Infrastructure Improvements that Company elects to construct in connection therewith, excluding any of the Phase I Improvements. Program Cap means the maximum number of gross dollars comprising the sum of the aggregate amount of all Program Grants paid by the City pursuant to this Agreement, as follows: (a) If the Phase I Improvement Commitment is met, as verified in the Certificate of Completion for that Phase issued by the City in accordance with Section 5, the Program Cap will equal Twenty-two Million Five Hundred Eleven Thousand Five Hundred Fifty Dollars ($22,511,550.00), gross. (b) If both the Phase I Improvement Commitment and Phase II Improvement Commitment are met, as verified in the Certificate of Completion for those Phases issued by the City in accordance with Section 5, the Program Cap will be increased to equal an aggregate Twenty-four Million Nine Hundred Seventy-four Thousand Three Hundred Sixty-eight Dollars ($24,974,368.00), gross. Program Grants means the annual economic development grants paid by the City to Company in accordance with this Agreement and as part of the 380 Program. Program Source Funds means an amount of City funds available for inclusion in a Program Grant that is payable in a given Program Year, which will equal eighty-five percent (85%) of the Development Sales Tax Revenues which were received by the City during the previous calendar year. Program Year means a calendar year in which the City is obligated pursuant to this Agreement to pay Company a Program Grant, beginning with the second full calendar year following the Phase I Completion Date (which is also defined herein as the "Second Operating Year") (Program Year 1). Public Infrastructure Improvements means that public infrastructure related to or necessary for the Development outlined in Exhibit `B", attached hereto and hereby made a part of this Agreement for all purposes. Records has the meaning ascribed to it in Section 4.9. Page 7 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC Retail means a facility for the retail sale of merchandise, food and beverages, or services, including by way of example but not limited to a retail store, restaurant, entertainment use (e.g., a theater), or personal service use (e.g., a health spa or beauty shop). Retail space includes any accessory areas, service corridors, management offices, or customer facilities that are incidental to and/or used for Retail use(s). Sales means all sales of merchandise (including gift and merchandise certificates), food, alcohol, services and other receipts whatsoever of all business conducted in, on or from the Development, whether cash or credit, including mail, telephone, telefax, telegraph, internet or catalogue orders received or filled at or from the Development, deposits not refunded to purchasers, orders taken (although such orders may be filled elsewhere), sales to employees, and sales through vending machines or other devices. Sales will not include (i) any sums collected and paid for any sales or excise tax imposed by any duly constituted governmental authority, (ii) the exchange of merchandise purchased on and returned to the Development, (iii) the amount of returns to shippers and manufacturers or(iv)the sale of any fixtures. Sales Per Occupied Square Foot means an amount equal to the total Sales from the Occupied Square Footage within the Development Property during a particular calendar year, divided by the total Occupied Square Footage. This number shall be calculated on the last day of each month during each calendar year. At the end of each calendar year, the numbers for each of the twelve (12) months of such calendar year will be added together and divided by twelve (12) to calculate the average Sales Per Occupied Square Foot for such year. The total Sales for the purposes of calculating Sales Per Occupied Square Foot shall be determined as set forth in Section 4.8.2, Annual Sales Tax and Sales Per Occupied Square Foot Reports. Second Operating Year means the second full calendar year following the year in which the Phase I Completion Date occurs. Supply and Service Expenditures means all expenditures by or caused by Company,whether pursuant to a written contract or on an ad hoc basis, expended directly for the operation and maintenance of the Development, including amounts paid to third parties for the provision of personnel services, but excluding amounts paid for electric, gas, water and any other utility services. Supply and Service Provider means any person or entity that provides supplies and services for the operation and/or maintenance of the Development, whether pursuant to a written contract or on an ad hoc basis. Tenant means a tenant or licensee with the legal right to occupy any portion of the Development Property under a lease, license, or other similar agreement. Tenant Improvement Costs means Tenant allowances paid by Company and any Tenant expenditures in excess of Tenant allowances on all costs associated with the design, construction, and fixturization of a Tenant's premises, including, but not limited Page 8 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC to, architectural, contractor, engineering and design fees, building materials and work on a Tenant's behalf, electrical and lighting, plumbing, fire protection and sprinklers, HVAC work, storefront and glazing, demolition, barricades and staging, and other work performed within the Tenant's premises along with the Tenant's permanent fixtures, as well as any other costs directly expended for the Development, but outside of the Tenant's premises, pursuant to the Tenant's lease or other similar agreement, including, but not limited to, common areas. Term has the meaning ascribed to it in Section 3. Third Operating Year means the third full calendar year following the year in which the Phase I Completion Date occurs. 3. TERM. This Agreement will take effect on the date as of which both the City and Company have executed it (the "Effective Date") and, unless terminated earlier in accordance with this Agreement, will expire on the earlier of(i) the date as of which the City has paid all Program Grants required hereunder, or (ii) the date as of which the amount of aggregate Program Grants paid by the City equals the applicable Program Cap (the "Term"). 4. COMPANY OBLIGATIONS GOALS AND COMMITMENTS. 4.1. Improvements for Phase I. By the Phase I Completion Date, Company must have expended or caused to be expended at least Seventy Million Dollars ($70,000,000.00) in Construction Costs for the Phase I Improvements, and the Phase I Completion Date must occur on or before the Phase I Completion Deadline, all as verified in the Certificate of Completion for that Phase issued by the City in accordance with Section 5 (collectively, the "Phase I Improvement Commitment"). Subject to all extensions of time allowed under this Agreement, if the Phase I Improvement Commitment is not met, a default will occur under this Agreement, and Section 7.1 will apply. 4.2. Improvements for Phase II. By the Phase II Completion Date, Company must have expended or caused to be expended at least Ten Million Dollars ($10,000,000.00) in Construction Costs for the Phase II Improvements, and the Phase II Completion Date must occur on or before the Phase II Completion Deadline, all as verified in the Certificate of Completion for that Phase issued by the City in accordance with Section 5 (collectively,the "Phase II Improvement Commitment"). If the Phase II Improvement Commitment is not met, a default will not occur under this Page 9 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC Agreement, but the Program Cap will not be increased as provided in the definition of that term in Section 2. 4.3. Construction Spending Commitment for Fort Worth Companies. Company, either itself, through an Affiliate or through a general contractor, must make or cause to be made the following minimum expenditures in Hard Construction Costs with Fort Worth Companies for each Phase of the Development (the "Fort Worth Construction Commitment"). Payments to a general contractor which is a Fort Worth Company will be counted toward the Fort Worth Construction Commitment, regardless of whether any subcontractors of such general contractor are themselves Fort Worth Companies. Likewise, payments to subcontractors which are Fort Worth Companies will be counted toward the Fort Worth Construction Commitment, regardless of whether the general contractor of such subcontractors is itself a Fort Worth Company. 4.3.1. For Phase I. By the Phase I Completion Date, Company must have expended or caused to be expended at least thirty percent (30%) of all Hard Construction Costs for the Phase I Improvements, regardless of the total amount of such Hard Construction Costs, with Fort Worth Companies. 4.3.2. For Phase II. If the Phase II Improvement Commitment is met, the Fort Worth Construction Commitment will increase, as follows: By the Phase II Completion Date, company must have expended or caused to be expended at least thirty percent (30%) of the sum of all Hard Construction Costs for the Phase I Improvements and the Phase II Improvements, regardless of the total amount of such Hard Construction Costs, with Fort Worth Companies. 4.4. Construction Spending Commitment for Fort Worth Certified M/WBE Companies. Company, either itself or through an Affiliate, must make or cause to be made the following minimum expenditures in Hard Construction Costs with Fort Worth Certified M/WBE Companies for the Development (the "M/WBE Construction Commitment"). Dollars spent with Fort Worth Certified M/WBE Companies will also count as dollars spent with Fort Worth Companies for purposes of the Fort Worth Construction Commitment outlined in Section 4.3. Payments to a general contractor which is a Fort Worth Certified M/WBE Company will be counted toward the M/WBE Construction Commitment, regardless of whether any subcontractors of such general contractor are themselves Fort Worth Certified M/WBE Companies. Likewise, payments to subcontractors which are Fort Worth Page 10 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC Certified MIWBE Companies will be counted toward the MIWBE Construction Commitment, regardless of whether the general contractor of such subcontractors is itself a Fort Worth Certified MIWBE Company. 4.4.1. For Phase I. By the Phase I Completion Date, Company must have expended or caused to be expended at least twenty-five percent (25%) of all Hard Construction Costs for the Phase I Improvements, regardless of the total amount of such Hard Construction Costs, with Fort Worth Certified MIWBE Companies. 4.4.2. For Phase II_ If the Phase 11 Improvement Commitment is met, the MIWBE Construction Commitment will increase, as follows: By the Phase II Completion Date, Company must have expended or caused to be expended at least twenty-five percent (25%) of the sum of all Hard Construction Costs for the Phase I Improvements and the Phase 11 Improvements, regardless of the total amount of such Hard Construction Costs, with Fort Worth Certified MIWBE Companies. 4.5_ Employment Goal. Throughout the Second Operating Year and each calendar year thereafter, Company will use commercially reasonable efforts to cause at least three hundred fifty (350) Full-time Equivalent Jobs to be provided on the Development Property, whether by Company or one or more Development Property Users (the "Employment Goal"). 4.6. Supply and Service Spending Commitments for Fort Worth Companies. In the Second Operating Year and each calendar year thereafter, Company must expend or cause to be expended at least Fifty Thousand Dollars ($50,000.00) in annual Supply and Service Expenditures with Fort Worth Companies(the "Fort Worth Supply and Service Spending Commitment"). 4.7. Supply and Service Spending Commitment for Fort Worth Certified MIWBE Companies. In the Second Operating Year and each calendar year thereafter, Company must expend or cause to be expended at least Twenty-five Thousand Dollars ($25,000.00) in annual Supply and Service expenditures with Fort Worth Certified MIWBE Companies (the "MIWBE Supply and Service Spending Commitment"). Dollars spent with Fort Worth Certified MIWBE Companies will Page 1 I Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.LLC also count as dollars spent with Fort Worth Companies for purposes of the Fort Worth Supply and Service Spending Commitment outlined in Section 4.6. 4.8. Reports and Filings. 4.8.1. Notices of Completion and Final Construction Reports. Within thirty (30) calendar days following either the Phase l Completion Date or the Phase 11 Completion Date, as applicable, Company will provide a written notice to the City (a "Notice of Completion"). A Notice of Completion must be filed with the City on or before the Completion Deadline for the Phase covered by the notice. The purpose of a Notice of Completion is to allow the City to (i) assess whether Company met the Phase I Improvement Commitment or the Phase 1I Improvement Commitment, as applicable; (ii) assess the extent to which Company met the Fort Worth Construction Commitment and the MIWBE Construction Commitment applicable to such Phase; and (iii) establish the amount of the Program Cap under this Agreement. Each Notice of Completion must include a final construction report substantially in the form attached hereto as Exhibit "C" that specifically outlines the total Construction Costs and Hard Construction Costs expended or caused to be expended for improvements constructed as part of such Phase, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid, including, without limitation, final lien waivers signed by Company's or an Affiliate's general contractor, as well as the total Construction Costs and Hard Construction Costs expended for construction of the improvements comprising such Phase with Fort Worth Companies and Fort Worth Certified MIWBE Companies, together with supporting invoices and any other documents reasonably necessary to demonstrate that such amounts were actually paid to such contractors. Improvements constructed on the Development Property that do not at least have temporary certificates of occupancy for shell building space issued by the City as of the Phase I Completion Date, and any Construction Costs expended for such improvements, will not be considered far purposes of determining whether the Phase I Improvement Commitment has been met, with the understanding that those Construction Costs will be considered by the City in its evaluation as to whether the Phase II Improvement Commitment was met, so long as those improvements at least have a temporary certificate of occupancy for shell building space issued by the Phase II Completion Date. Notwithstanding the foregoing, Construction Costs expended for such improvements will be considered for purposes of assessing the extent to which the Fort Worth Construction Commitment or the WWBE Construction Commitment applicable to Phase I was met in accordance with Sections 4.3 and 4.4 of this Agreement. Page 12 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC 4.8.2. Annual Sales Tax and Sales Per Occupied Square Foot Reports. To the extent reasonably possible, Company will require Development Property Users to provide Company and/or the City with annual Sales data sufficient for determining annual sales tax payments and Sales Per Occupied Square Foot as required by this Section 4.8.2. On or before February 1 of the Second Operating Year and of each year thereafter, Company must provide or cause to be provided the City with annual report(s) that set forth (i) the total amount of Sales generated from the Occupied Square Footage in the Development during the previous calendar year; (ii) the total Leasable Square Footage and the total Occupied Square Footage in the Development as of December 31 of the previous calendar year; (iii) the Sales Per Occupied Square Foot for the Occupied Square Footage in the Development during the previous calendar year; (iv) the aggregate amount of sales tax paid to the Comptroller by Development Property Users during the previous year (the "Aggregate Development Property Sales Tax Payments"); (v) a copy of the Comptroller report verifying Aggregate Development Property Sales Tax Payments; and (vi) a list containing the retail site address and sales tax identification number of each Development Property User. The Sales for purposes of determining Sales Per Occupied Square Foot for the previous calendar year shall be based upon the Aggregate Development Property Sales Tax Payments stated in the Comptroller report for such year divided by the combined state and local tax rate for that yearn. However, if the aforementioned method of calculation does not yield the Minimum Sales Per Occupied Square Foot Goal in any year. Company may submit a supplemental report to the City, on or before April l of the same year in which the initial report was due, to be used as a basis for determining if the Minimum Sales Per Occupied Square Foot Goal for the previous year was attained and calculating the Base Grant Percentage in Section 6.1.1 (the "Supplemental Sales Report"). In such an event, the Supplemental Sales Report shall be based upon annual Sales statements provided by Tenants to Company. Company understands and agrees that the City's calculation of Development Sales Tax Revenues in a given year will be based solely on sales tax payments made by Development Property Users in such year. 4.8.3_ Annual Supply and Service Spending Report. On or before February l of the Third Operating Year and of each year thereafter, Company must provide the Director with a report in a form reasonably acceptable to the City that sets forth the total Supply and Service Expenditures made during the previous calendar year as well as the total Supply and Service Expenditures made during such calendar year For example,in 2016 the combined state and local tax rate is 8.25%,so the total sales would be determined by dividing the Aggregate Development Property Sales Tax Payments by 0.0825. Page 13 Economic Development Program Agreement between City of Fort Worth and"1'anger Fort Worth.LLC with Fort Worth Companies and with Fort Worth Certified MIWSE Companies, together with supporting invoices and any other documents necessary to demonstrate that such amounts were actually paid. 4.8.4. Annual Employment Report. On or before February 1 of the Second Operating Year and of each year thereafter, in order for the City to assess the degree that the Employment Goal was met in the previous calendar year, Company must provide the Director with a report in a form reasonably acceptable to the City that sets forth the total number of Full-time Equivalent Jobs on the Development Property as of December 1 (or such other date requested by Company and reasonably acceptable to the City) of the previous calendar year, together with reasonable supporting documentation. If the Employment Goal was not met in the previous calendar year, Company will include an explanation as to why Company believes the Employment Goal was not met and the efforts that were utilized to meet the Employment Goal. 4.9. Audits. Provided that reasonable notice is given and to the extent necessary to verify compliance with the terms of this Agreement or to otherwise administer the terms of this Agreement, but no more than once per calendar year, the City will have the right throughout the Term to audit the financial and business records of Company that relate to the Development and are necessary to evaluate Company's compliance with this Agreement or with the commitments set forth in this Agreement, including, but not limited to construction documents and invoices (collectively "Records"). If such documentation is contained in financial and business records of Company that also contain unrelated matters, and the City cannot verify such expenditures or costs in any other documents of Company, such expenditures and costs will not be counted for purposes of this Agreement unless Company allows the City to audit those records; provided, however, that if Company allows the City to audit those records, Company may redact any unrelated matters that are non-essential to the audit of Company's compliance with this Agreement or with the commitments set forth in this Agreement. Company must make all Records available to the City (i) at Company's corporate offices; (ii) electronically; or (iii) at another location mutually acceptable to both parties following at least 34 days advance written notice by the City and will otherwise cooperate fully with the City during any audit. Further, Company may require that all individuals reviewing the financial and business records of Company, an Affiliate, a Development Property User, or another party must first sign a reasonable confidentiality agreement under which they agree to not discuss or publicize information contained in those records except as necessary for them to complete an audit of such records in accordance with this Agreement. Page 14 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.LLC 4.10. Inspections of Development and Development Property. At any time during the Development's normal business hours throughout the Term and following reasonable notice to Company, the City will have the right to inspect and evaluate the Development Property and any improvements thereon, and Company will provide reasonable access to the same, to the extent necessary for the City to monitor or verify compliance with the terms and conditions of this Agreement. Company will reasonably cooperate with the City during any such inspection and evaluation. Notwithstanding the foregoing, Company will have the right to require that any representative of the City be escorted by a representative or security personnel of Company during any such inspection and evaluation. 4.11. Public Infrastructure Improvements. Company may not initiate construction of any Public Infrastructure Improvements unless Company has first executed an Infrastructure Construction Agreement with the City governing such work. All Public Infrastructure Improvements must be constructed in accordance with the terms and conditions of the Infrastructure Construction Agreement covering such Improvements and with all applicable federal, state and local laws, ordinances rules and regulations. If any Public Infrastructure Improvements are constructed in a manner that does not comply with this Section 4.11, the Construction Costs for such Public Infrastructure Improvements will not be counted for purposes of measuring attainment of the Phase I Improvement Commitment or the Phase I1 Improvement Commitment. 5. CERTIFICATES OF COMPLETION FOR EACH PHASE. Within ninety (94) calendar days following receipt by the City of a Notice of Completion submitted by Company in accordance with Section 4.8.1, and assessment by the City of the information contained therein, including a final construction report substantially in the form attached hereto as Exhibit "C" for the Phase in question, if the City is able to verify that the Phase I Improvement Commitment or the Phase 11 Improvement Commitment, as the case may be, was met, the Director will issue Company a certificate confirming that fact, including the amount of Construction Costs and Hard Construction Costs expended on that Phase, as well as amounts expended specifically with Fort Worth Companies and Fort Worth Certified MIWBE Companies (each a"Certificate of Completion"). In the event that the City determines, after receipt of a Notice of Completion and assessment of the final construction reports included therein, that the Phase I Improvement Commitment or the Phase II Improvement Commitment, as the case may be, has not been met, the City will notify Company in writing, in which case Company may file supplemental construction reports in accordance with Section 4.8.1 for the City's Page 15 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LI,C consideration at any time prior to the later of(i)the Completion Deadline for the Phase in question or (ii) thirty (30) calendar days following the City's notification (provided that such supplemental construction reports will be considered only for Construction Costs expended on or prior to the Completion Deadline applicable to the Phase in question), and the City will reassess whether Company subsequently has met the Please I Improvement Commitment or the Phase II Improvement Commitment, as applicable. 6. PROGRAM GRANTS. Subject the terms and conditions of this Agreement, provided that the Phase I Improvement Commitment was met, Company will be entitled to receive from the City fifteen (15) annual Program Grants, subject to the applicable Program Cap. The amount of each annual Program Grant will equal a percentage of the Program Source Funds, and, depending upon the year in which a Program Grant is due, this percentage will be based on a combination of some or all of the extent to which Company met or caused to be met the various construction and operational expenditures for the Development at the time as well as the extent to which a certain annual level of Sales Per Occupied Square Foot in the Development was maintained, all as more specifically set forth in this Section 6. Notwithstanding anything to the contrary herein, aggregate Program Grants payable under this Agreement will be subject to and will not exceed the applicable Program Cap. 6.1. Calculation. Subject to the terms and conditions of this Agreement, the amount of a given annual Program Grant will equal the sum of the Base Grant Percentage, the applicable Fort Worth Construction Percentage and the applicable MIWBE Construction Percentage, as defined in Sections 6.1.1, 6.1.2 and 6.1.3, respectively, plus, to the extent applicable, the Fort Worth Supply and Service Percentage and the MIWBE Supply and Service Percentage, as defined in Sections 6.1.4 and 6.1.5, respectively, multiplied by the Program Source Funds available for that Program Grant. 6.1.1. Completion of Development(50%for Program Years 1-5,Up to 50%Thereafter). Each annual Program Grant will include an amount that is based on completion of the Phase I Improvements. If the Phase I Improvement Commitment was met, as confirmed by the City in the Certificate of Completion issued for by the Director in accordance with Section 5, each Program Grant payable in Program Years 1 through 5 will include fifty percent (50%) of the Program Source Funds (the "Base Grant Percentage"). For all subsequent Program Grants, if the Minimum Sales Per Occupied Square Foot Goal, as defined in Section 2, was not attained in the previous calendar year,the Base Grant Percentage from the Program Grant payable in the following Program Year will be reduced. This reduction will be calculated by multiplying fifty percent (5011/o) by the Page 16 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth_LLC percentage by which the Minimum Sales Per Occupied Square Foot Goal was attained. For example, if in a given year after the fifth Program Grant was paid Sales Per Occupied Square Foot for the Occupied Square Footage in the Development equaled only $240.00, then the overall Base Grant Percentage for the Program Grant payable in the following Program Year would be 40% instead of 50% (or .50 x [$2401$300], or .50 x. 80, or .40). Notwithstanding anything to the contrary herein, regardless of the amount of Sales Per Occupied Square Foot for the Occupied Square Footage in any given year, the Base Grant Percentage will never be less than twenty-five percent (25%) and will never be more than fifty percent (50%). Sales Per Occupied Square Foot for the Occupied Square Footage in the Development will be based on the annual Sales and sales tax report submitted by Company to the Director in accordance with Section 4.8.2 and any supporting documentation necessary for the City to ascertain that information. 6.1.2. Fort Worth Construction Cost SWnding(Up to 25% for Prop am Year 1, Up to 10%Thereafter}. Each annual Program Grant will include an amount that is based on the percentage by which the Fort Worth Construction Commitment, as outlined in Section 4.3, was met (the "Fort Worth Construction Percentage"). In accordance with Section 4.3.2, if the Phase II Improvement Commitment is met, the Fort Worth Construction Percentage will be recalculated for purposes of all Program Grants payable following the Phase 11 Completion Date. The Fort Worth Construction Percentage for the Program Grant payable in Program Year I will equal the product of twenty-five percent (25%) multiplied by the percentage by which the applicable Fort Worth Construction Commitment was met, which will be calculated by dividing the actual Hard Construction Costs expended with Fort Worth Companies by the Phase I Completion Date by the number of dollars comprising the Fort Worth Construction Commitment, as determined in accordance with Section 4.3. The Fort Worth Construction Percentage for all subsequent annual Program Grants will equal the product of ten percent (10%) multiplied by the percentage by which the applicable Fort Worth Construction Commitment was met, calculated in accordance with the preceding sentence. For example, if $30,000,000.00 in Hard Construction Costs were expended for the Phase I Improvements as of the Phase I Completion Date, the Fort Worth Construction Commitment would be $9,000,000.04 (30% of$30 million). However, if only $8,100,000.00 in Hard Construction Costs for the Phase I Improvements were expended with Fort Worth Companies as of the Phase I Completion Date, the Fort Worth Construction Percentage for the Program Grant payable in Program Year I would be 22.5% instead of 25% (or _25 x [$8.1 million/$9 million],or.25 x .90, or .225), and the Fort Worth Construction Percentage for all subsequent Program Grants, unless Page 17 Economic Development Program Agreement between City of Fort Worth and"ranger Fort Worth.LLC and until the Fort Worth Construction Commitment is recalculated in accordance with Section 4.3.2, would be 9% instead of 10% (or .10 x [$8.1 million/$9 million], or .10 x .90, or .09). If the applicable Fort Worth Construction Commitment is met or exceeded, the Fort Worth Construction Percentage will be twenty-five percent (25%) for the Program Grant payable in Program Year 1 and ten percent (10%) for all subsequent Program Grants. In no event will the Fort Worth Construction Percentage exceed those percentages for the respective Program Year in which a Program Grant is payable. 6.1.3. Fort Worth M/WBE Construction Cost Spending Up to 25% for Program Year 1• Up to 10%Thereafter). Each annual Program Grant will include an amount that is based on the percentage by which the MIWBE Construction Commitment, as outlined in Section 4.4, was met (the "MIWBE Construction Percentage"). In accordance with Section 4.4.2, if the Phase II Improvement Commitment is met, the MIWBE Construction Commitment will be recalculated for purposes of all Program Grants payable following the Phase I1 Completion Date. The MIWBE Construction Percentage for the Program Grant payable in Program Year 1 will equal the product of twenty-five percent (25%) multiplied by the percentage by which the applicable MIWBE Construction Commitment was met, which will be calculated by dividing the actual Hard Construction Costs expended with Fort Worth Certified MIWBE Companies by the Phase I Completion Date by the number of dollars comprising the MIWBE Construction Commitment, as determined in accordance with Section 4.4. The MIWBE Construction Percentage for all subsequent annual Program Grants will equal the product of ten percent (10%) multiplied by the percentage by which the applicable MIWBE Construction Commitment was met, calculated in accordance with the preceding sentence. For example, if $30,000,000.00 in Hard Construction Costs were expended for the Phase I Improvements as of the Phase I Completion Date, the MIWBE Construction Commitment would be $7,500,000.00 (25% of$30 million). However, if only $6,000,000.00 in Hard Construction Costs were expended with Fort Worth Certified MIWBE Companies by the Phase I Completion Date, the MIWBE Construction Percentage for the Program Grant payable in Program Year 1 would be 20% instead of 25% (or .25 x [$6 million/$7.5 million], or .25 x .80, or .20), and the MIWBE Construction Percentage for all subsequent Program Grants until the MIWBE Construction Commitment is recalculated in accordance with Section 4.4.2 would be 8% instead of 10% (or .10 x [$6 million/$7.5 million], or .10 x .80, or .08). If the applicable MIWBE Construction Commitment is met or exceeded, the MIWBE Construction Percentage will be twenty-five percent (25%) for the Program Grant payable in Program Year 1 and ten percent(10%) for all subsequent Program Grants. Page 18 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth. LF.0 6.1.4. Fort Worth Supply and Service Spending(Up to 15%after Program Year 1). Except for the Program Grant payable in Program Year 1, each annual Program Grant will include an amount that is based on the percentage by which the Fort Worth Supply and Service Spending Commitment, as outlined in Section 4.6, was met (the"Fort Worth Supply and Service Percentage"). The Fort Worth Supply and Service Percentage will equal the product of fifteen percent (15%) multiplied by the percentage by which the Fort Worth Supply and Service Spending Commitment was met, which will be calculated by dividing the actual Supply and Service Expenditures made in the previous calendar year with Fort Worth Companies by $50,000.00, which is the Fort Worth Supply and Service Spending Commitment_ For example, if only $45,000.00 in Supply and Service Expenditures were made with Fort Worth Companies in the previous calendar year, the Fort Worth Supply and Service Percentage for the Program Grant payable in the following Program Year (other than Program Year 1) would be 13.5% instead of 15% (or .15 x [$45,4001$50,000], or .15 x .90, or .135). If the Fort Worth Supply and Service Spending Commitment is met or exceeded in any given year, the Fort Worth Supply and Service Percentage for the Program Grant payable in the following Program Year will be fifteen percent (15%). Calculation of the Program Grant payable for Program Year 1 does not include the Fort Worth Supply and Service Percentage because the Fort Worth Supply and Service Commitment does not apply to the First Operating Year. 6.1.5. Fort Worth MIWBE Supply and Service Spending U to 15% after Program Year 1). Except for the Program Grant payable in Program Year 1, each annual Program Grant will include an amount that is based on the percentage by which the MIWBE Supply and Service Spending Commitment, as outlined in Section 4.7, was met (the "MIWBE Supply and Service Percentage"). The MIWBE Supply and Service Percentage will equal the product of fifteen percent (15%) multiplied by the percentage by which the MIWBE Supply and Service Spending Commitment was met, which will be calculated by dividing the actual Supply and Service Expenditures made in the previous calendar year with Fort Worth Certified MIWBE Companies by $25,000.00, which is the MIWBE Supply and Service Spending Commitment. For example, if only $17,500.00 in Supply and Service Expenditures were made with Fort Worth Certified MIWBE Companies in the previous calendar year, the MIWBE Supply and Service Percentage for the Program Grant payable in the following Program Year(other than Program Year 1) would be 10.5% Page 19 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.LLC instead of 15% (or .15 x [$17,5001$25,000], or .15 x .70, or .105). If the MIWBE Supply and Service Spending Commitment is met or exceeded in any given year, the MIWBE Supply and Service Percentage for the Program Grant payable in the following Program Year will be fifteen percent (15%). Calculation of the Program Grant payable for Program Year 1 does not include the MIWBE Supply and Service Percentage because the MIWBE Supply and Service Commitment does not apply to the First Operating Year. 6.1.6. No Cross-Offsets Between Commitments. A deficiency in attainment of one commitment may not be offset by the exceeding attainment in another commitment. For example, if in a given year Company failed to meet the MIWBE Supply and Service Spending Commitment by $5,000.00, but exceeded the Fort Worth Supply and Service Spending Commitment by $5,000.00, the Program Grant payable in the following year would still be reduced in accordance with Section 6.1.5 on account of Company's failure to meet the MIWBE Supply and Service Spending Commitment. 6.2. Program Cat). The amount of the Program Cap will increase if the Phase II Improvement Commitment is met, as more specifically set forth in the definition provided in Section 2 for the term "Program Cap." Once the City has paid Company annual Program Grants that, in the aggregate, are equal to the applicable Program Cap, the Term of this Agreement wiII expire. If in any Program Year the amount of the Program Grant calculated in accordance with Section 6.1 would cause aggregate Program Grants paid made by the City pursuant to this Agreement, in the aggregate, to exceed the applicable Program Cap, the amount of the Program Grant payable in that Program Year will equal the difference between the aggregate of all Program Grants paid as of the previous Program Year and the Program Cap, in which case, upon payment of such Program Grant, this Agreement will expire automatically- 6.3. Deadline for Payments and Source of Funds. The first Program Grant payable hereunder (in other words, the Program Grant payable for Program Year 1) will be paid by the City on or before June 1 of the Second Operating Year. Each subsequent annual Program Grant payment will be made by the City to Company on or before June 1 of the Program Year in which such payment is due. It is understood and agreed that all Program Grants paid pursuant to this Agreement will come from currently available general revenues of the City and not directly from Development Sales Tax Revenues. Company understands and agrees that any revenues of the City other than those dedicated for payment of a given annual Program Grant pursuant to this Page 20 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.LLC Agreement may be used by the City for any lawful purpose that the City deems necessary in the carrying out of its business as a home rule municipality and will not serve as the basis for calculating the amount of any future Program Grant or other obligation to Company. For any applicable year in which the City fails to appropriate funds for any Program Grant rightly due and payable to Company pursuant to this Agreement, the Term of this Agreement shall he automatically extended until the City has paid all Program Grants payable hereunder. 7. DEFAULT, TERMINATION AND FAILURE BY COMPANY TO MEET VARIOUS DEADLINES AND COMMITMENTS. 7.1. Failure to Complete Phase 1. If the Phase I Improvement Commitment is not met, the City's sole remedy shall be the right to terminate this Agreement by providing written notice to Company without further obligation to Company hereunder. A failure to meet the Phase II Improvement Commitment will have no effect on this Agreement or its effectiveness, but will only affect the amount of the Program Cap, as defined in Section 2 and further set forth in Section 5.2. 7.2. Failure to Achieve-1-10 Million Investment Combined with Champions Circle Development. As outlined in Recital F, this Agreement and the anticipated economic benefits that will accrue to the City from the Development are, in part, predicated on the City's expectation that the Development will be further enhanced by the Champions Circle Development that is intended to be constructed on land adjacent to the Development Property. Accordingly, notwithstanding anything to the cgntrary herein, even if the Phase 1 Improvement Commitment is met, i the City cannot also verJ& that, as of the Phase I Completion Deadline (subject to any extensions of time allowed pursuant to this Agreement and/or the Champions Circle EDPA, as applicable), at least One Hundred Million Dollars ($100,000,000.DOJ in Construction Costs have been expended for both the Phase I Improvements hereunder plus a im rovements constructed as pqrt oL the Cham ions Circle Development in accordance with the Cham ions Circle EDPA the Ci will have the right to terminate this A eement immediately by Providin written notice to CoMpany without further obligation to CoMpany Companyhereunder. For purposes of this Section 7.2, the City's verification of Construction Cost expenditures for the Champions Circle Development will be made solely in accordance with and is subject to the terms and conditions of the Champions Circle EDPA. Company understands and agrees that the City's verification of Construction Cost expenditures for the Champions Circle Development under the Champions Circle EDPA will be subject to various reporting requirements by Roanoke 351114 Partners, L.P., affiliates thereof or third parties, and that the City will have no obligation to pursue any legal remedy or enforcement action under the Champions Circle EDPA if Roanoke 351114 Partners, L.P., affiliates thereof Page 21 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC or any third parties fail to properly report Construction Cost expenditures for the Champions Circle Development or fail to maintain or aIIow review of financial or business records in accordance with the Champions Circle EDPA that are necessary for the City to verify such Construction Cost expenditures. Company hereby represents to the City that it has reviewed the Champions Circle EDPA and that it understands the provisions of the Champions Circle EDPA. The term "Construction Costs" for purposes of the Champions Circle Development will have the same meaning as that set forth in the Champions Circle EDPA. Notwithstanding the foregoing, any default by Roanoke 35/114 Partners, L.P. or its successors or assigns, other than the failure to achieve at Ieast One Hundred Million Dollars ($100,004,404.00) in Construction Costs for both the Phase I Improvements and improvements constructed as part of the Champions Circle Development as described in this Section 7.2 shall have no effect on this Agreement or its effectiveness and will not give City any rights to terminate this Agreement. 7.3. Failure to Pay City Taxes. An event of default will occur under this Agreement if any City taxes owed on the Development Property by Company or an Affiliate or arising on account of Company's or an Affiliate's operations on the Development Property become delinquent and Company or the Affiliate does not either pay such taxes or properly follow the Iegal procedures for protest and/or contest of any such taxes. In this event, the City will notify Company in writing and Company will have thirty (30) calendar days to cure such default. If Company fails to cure such default within thirty (30) calendar days following receipt of such written notice, the City will provide a second written notice to Company. If the default has not been fully cured within five (5) business days following receipt of this second written notice, the City will have the right to terminate this Agreement immediately by providing written notice to Company and will have all other rights and remedies that may be available to it under the law or in equity. Either payment of such taxes or initiation of and ongoing engagement in legal proceedings for protest and/or contest of such taxes shall constitute a full cure pursuant to this Section 7.3. 7.4. Violations of City Code, State or Federal Law. An event of default will occur under this Agreement if any written citation is issued to Company or an Affiliate due to the occurrence of a material violation of a material provision of the City Code on the Development Property or on or within any improvements thereon (including, without limitation, any material violation of the City's Building or Fire Codes and any other material City Code violations related to the environmental condition of the Development Property; the environmental condition other land or waters which is attributable to operations on the Development Property; or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such Page 22 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default will occur under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that Company or an Affiliate, or any successor in interest thereto; or an occupant or Tenant with access to any portion of the Development Property owned or operated by Company or an Affiliate pursuant to the express or implied permission of Company or an Affiliate, or a successor in interest thereto if action was not taken within thirty (30) days of actual knowledge by Company or an Affiliate to resolve, mitigate or protest and/or contest such violation under proper legal procedures; or the City is in material violation of any material state or federal law, rule or regulation on account of any portion of the Development Property owned or operated by Company or an Affiliate, or on account of improvements owned or operated by Company or an Affiliate or any operations therein on the Development Property (including, without limitation, any material violations related to the environmental condition of any portion of the Development Property owned or operated by Company or an Affiliate; the environmental condition of other land or waters which is attributable to operations on any portions of the Development Property owned or operated by Company or an Affiliate; or to matters concerning the public health, safety or welfare). Upon the occurrence of any default described by this Section 7.4, the City shall notify Company in writing and Company will have (i) thirty (34) calendar days to cure such default or(ii) if Company has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time as is reasonably necessary to cure such default. If the default has not been fully cured by such time, the City will have the right to terminate this Agreement immediately by providing written notice to Company and will have all other rights and remedies that may be available under the law or in equity. 7.5. Foreclosure on Development Property_ Subject to any rights of a lender that is a party to a Consent to Collateral Assignment Agreement executed pursuant to and in accordance with Section 11, upon the occurrence of any of the following events, the City will have the right to terminate this Agreement immediately upon provision of written notice to Company: (i) the institution of an action to foreclose or otherwise enforce a lien, mortgage or deed of trust on the Development or Development Property; (ii) the involuntary conveyance to a third party of the Development or Development Property; (iii) execution by Company or an Affiliate of any assignment of the Development or Development Property or deed in lieu of foreclosure to the Development or Development Property; or (iv) the appointment of a trustee or receiver for the Development or Development Property_ 7.5. Failure to Submit Reports. If Company fails to submit any report required by and in accordance with Section 4.8, the City will provide written notice to Company. If Company fails to Page 23 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC or any third parties fail to properly report Construction Cost expenditures for the Champions Circle Development or fail to maintain or allow review of financial or business records in accordance with the Champions Circle EDPA that are necessary for the City to verify such Construction Cost expenditures. Company hereby represents to the City that it has reviewed the Champions Circle EDPA and that it understands the provisions of the Champions Circle EDPA. The term "Construction Costs" for purposes of the Champions Circle Development will have the same meaning as that set forth in the Champions Circle EDPA. Notwithstanding the foregoing, any default by Roanoke 35/114 Partners, L.P. or its successors or assigns, other than the failure to achieve at least One Hundred Million Dollars ($100,000,000-00) in Construction Costs for both the Phase I Improvements and improvements constructed as part of the Champions Circle Development as described in this Section 7.2 shall have no effect on this Agreement or its effectiveness and will not give City any rights to terminate this Agreement_ 7.3. Failure to Pa City Taxes. An event of default will occur under this Agreement if any City taxes owed on the Development Property by Company or an Affiliate or arising on account of Company's or an Affiliate's operations on the Development Property become delinquent and Company or the Affiliate does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes_ In this event, the City will notify Company in writing and Company will have thirty (34) calendar days to cure such default. If Company fails to cure such default within thirty (30) calendar days following receipt of such written notice, the City will provide a second written notice to Company. If the default has not been fully cured within five (5) business days following receipt of this second written notice, the City will have the right to terminate this Agreement immediately by providing written notice to Company and will have all other rights and remedies that may be available to it under the law or in equity. Either payment of such taxes or initiation of and ongoing engagement in legal proceedings for protest and/or contest of such taxes shall constitute a full cure pursuant to this Section 7.3. 7.4. Violations of City Code, State or Federal Law. An event of default will occur under this Agreement if any written citation is issued to Company or an Affiliate due to the occurrence of a material violation of a material provision of the City Code on the Development Property or on or within any improvements thereon (including, without limitation, any material violation of the City's Building or Fire Codes and any other material City Code violations related to the environmental condition of the Development Property; the environmental condition other land or waters which is attributable to operations on the Development Property; or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such Page 22 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth. LLC citation does not properly follow the legal procedures for protest and/or contest of any such Citation. An event of default will occur under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that Company or an Affiliate, or any successor in interest thereto; or an occupant or Tenant with access to any portion of the Development Property owned or operated by Company or an Affiliate pursuant to the express or implied permission of Company or an Affiliate, or a successor in interest thereto if action was not taken within thirty (30) days of actual knowledge by Company or an Affiliate to resolve, mitigate or protest and/or contest such violation under proper legal procedures; or the City is in material violation of any material state or federal law, rule or regulation on account of any portion of the Development Property owned or operated by Company or an Affiliate, or on account of improvements owned or operated by Company or an Affiliate or any operations therein on the Development Property (including, without limitation, any material violations related to the environmental condition of any portion of the Development Property owned or operated by Company or an Affiliate; the environmental condition of other land or waters which is attributable to operations on any portions of the Development Property owned or operated by Company or an Affiliate; or to matters concerning the public health, safety or welfare). Upon the occurrence of any default described by this Section 7.4, the City shall notify Company in writing and Company will have (i) thirty (30) calendar days to cure such default or(ii) if Company has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time as is reasonably necessary to cure such default. If the default has not been fully cured by such time, the City will have the right to terminate this Agreement immediately by providing written notice to Company and will have all other rights and remedies that may be available under the law or in equity. 7.5. Foreclosure on Development Property. Subject to any rights of a lender that is a party to a Consent to Collateral Assignment Agreement executed pursuant to and in accordance with Section 11, upon the occurrence of any of the following events, the City will have the right to terminate this Agreement immediately upon provision of written notice to Company: (i) the institution of an action to foreclose or otherwise enforce a lien, mortgage or deed of trust on the Development or Development Property; (ii) the involuntary conveyance to a third party of the Development or Development Property; (iii) execution by Company or an Affiliate of any assignment of the Development or Development Property or deed in lieu of foreclosure to the Development or Development Property; or (iv) the appointment of a trustee or receiver for the Development or Development Property. 7.5. Failure to Submit Reports_ If Company fails to submit any report required by and in accordance with Section 4.8, the City will provide written notice to Company. If Company fails to Page 23 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.LLC provide any such report within thirty (30) calendar days following receipt of such written notice, the City, as a courtesy, will provide Company with a second written notice. If Company fails to provide any such report within fifteen (15) calendar days following receipt of the second written notice, the City will have the right to suspend payments of any Program Grants until Company has provided all required reports or, in the City's sole discretion, to terminate this Agreement immediately by providing written notice to Company. 7.7. mowing Employment of Undocumented Workers. Company acknowledges that the City is required to comply with Chapter 2264 of the Texas Government Code, enacted by House Bill 1196 (80th Texas Legislature), which relates to restrictions on the use of certain public subsidies. Company hereby certifies that Company, and any branches, divisions. or departments of Company, does not and will not knowingly employ an undocumented worker, as that term is defined by Section 2264.00](4) of the Texas Government Code, on the Development Property. In the event that Company, or any branch, division, or department of Company, is convicted Ufa violation under 8 US.C Section 1324a(f) (relating to_federal criminal penalties and injunctions for a pattern or practice of employing unauthorized aliens), subject to any appellate rights that may lawfully be available to and exercised by Company, Company must repay, within one hundred twenty (120) calendar days following receipt of written demand from the City. the aggregate amount of Program Grants received by Company hereunder, if any, plus Simple Interest at a rate of four percent (4,) per annum. For the purposes of this Section 7.7. "Simple Interest" is defined as a rate of interest applied only to an original value, in this case the aggregate amount of Program Grants paid pursuant to this Agreement. This rate of interest can be applied each year, but will only apply to the amount of Program Grants received hereunder and is not applied to interest calculated. For example, if the aggregate amount of Program Grants received by Company hereunder is $10,000 and it is required to be paid back with four percent (4%) interest five years later, the total amount would be$10,040 + [5 x($10,000 x 0.04)], which is $12,004. This Section 7.7 does not apply to convictions of any Affiliate of Company, any franchisees of Company,or any person or entity with whom Company contracts. Notwithstanding anything to the contrary herein, this Section 7.7 will survive the expiration or termination of this Agreement. 7.8. Failure to Meet Construction Cost Spending and/or Supply and Service Spending;Failure to Meet Employment Goal. The failure to meet the applicable Fort Worth Construction Commitment or the applicable M/WBE Construction Commitment, or the failure to meet the Fort Worth Supply and Service Spending Commitment or the MIWBE Supply and Service Spending Commitment in any given year, will not constitute a default Page 24 Economic Development Program Agreement between City of Fort Worth and Tanger Fon Worth, LLC: hereunder or provide the City with the right to terminate this Agreement, but, rather, will only cause the amount of the Program Grants that the City is required to pay pursuant to this Agreement to be reduced in accordance with this Agreement. If Company fails to meet the Employment Goal in any given year, such event will not constitute a default hereunder and will not cause the amount of the Program Grant that the City is required to pay in the following Program Year to be reduced_ 7.9. Termination of Infrastructure Construction Agreement. An uncured breach by Company of any Infrastructure Construction Agreement will also constitute a breach of this Agreement. In this event, the City will comply with any requirements under the Infrastructure Construction Agreement in question to notify Company of such breach, and the City will have no additional notification requirements under this Agreement_ If the City lawfully terminates an Infrastructure Construction Agreement on account of an uncured breach by Company or an Affiliate thereunder, this Agreement will automatically terminate without further action required by the City. 7.10. General Breach. Unless and to the extent stated elsewhere in this Agreement, Company will be in default under this Agreement if Company breaches any term or condition of this Agreement and such breach remains uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement (or, if Company has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), the City will have the right to terminate this Agreement immediately by providing written notice to Company. 8. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company will operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Company will have the exclusive right to control all details and day-to-day operations relative to the Development Property and any improvements thereon and will be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Company acknowledges that the doctrine of respondeat superior will not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Company. Page 25 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth.I.I.0 9_ INDEMNIFICATION. COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS LAWSUITS ACTIONS. COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) COMPANY S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS ASSOCIATES. EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS RELATED TO THE DEVELOPMENT PROPERTY, THE DEVELOPMENT AND ANY OPERATIONS AND ACTIVITIES THEREON OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. THE CITY HEREBY RELEASES AND AGREES TO HOLD HARMLESS COMPANY, ITS OFFICERS AGENTS, AFFILIATES AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING. BUT NOT LIMITED TO. THOSE FOR PROPERTY DAMAGE OR L USS AND/OR PERSONAL INJUR Y, INCL UDING DEA TH, THA T MA Y RELATE TO, ARISE OUT OF OR BE OCCASIONED BY(i) THE CITY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF THE CITY, ITS OFFICERS, SERVANTS AGENTS, ASSOCIATES, EMPLOYEES CONTRACTORS (OTHER THAN COMPANY) OR SUBCONTRACTORS, RELATED TO THE DEVELOPMENT PROPERTY. IMPROVEMENTS ON THE DEVELOPMENT PROPERTY AND ANY OPERATIONS AND ACTIVITIES THEREON, OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. 10. NOTICES. All written notices called for or required by this Agreement must be addressed to the following, or such other party or address as either party designates in writing, by certified mail, hostage prepaid,or by hand delivery: City: Company: City of Fort Worth Tanger Factory Outlet Center, Inc. Attn. City Manager Attn: Jim Williams 1004 Throckmorton Senior VP and Chief Accounting Officer Fort Worth,TX 76102 3200 Northline Ave., Suite 360 Greensboro,NC 27408 Page 26 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC with copies to: with copies to: the City Attorney and Tanger Factory Outlet Center, Inc. Economic/Community Development Attn: Brian A. Auger Director at the same address Vice President and Corporate Counsel 3200 Northline Ave., Suite 350 Greensboro, NC 27408 11. ASSIGNMENT AND SUCCESSORS. Company may at any time assign, transfer or otherwise convey any of its rights or obligations under this Agreement to an Affiliate that is in good standing to do business in the State of Texas, as determined by the Texas Secretary of State, without the consent of the City Council so long as Company, the Affiliate and the City first execute an agreement under which the Affiliate agrees to assume and be bound by all covenants and obligations of Company under this Agreement. In addition, Company may assign its rights and obligations under this Agreement to a financial institution or other lender for purposes of granting a security interest in the Development and/or Development Property without the consent of the City Council, provided that Company and the financial institution or other lender first execute a written agreement with the City in substantially the same form as that attached hereto as Exhibit "D", together with such other terms and conditions as may be agreed by the City, Company and the financial institution or other lender with respect to such security interest (a "Consent to Collateral Assignment Agreement"). Except as otherwise provided, Company may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the consent of the City Council, which consent will not be unreasonably withheld, conditioned on(i)the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor is financially capable of meeting the terms and conditions of this Agreement and (ii) prior execution by the proposed assignee or successor of a written agreement with the City under which the proposed assignee or successor agrees to assume and be bound by all covenants and obligations of Company under this Agreement. Except for an assignment to an Affiliate or lender as described above, any attempted assignment without the City Council's prior consent will constitute grounds for termination of this Agreement following ten (10) calendar days of receipt of written notice from the City to Company. Any lawful assignee or successor in interest of Company of all rights under this Agreement will be deemed "Company" for all purposes under this Agreement. 12. COMPLIANCE WITH LAWS,ORDINANCES, RULES AND REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. Page 27 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth_LLC 13. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 14. NO WAIVER. The failure of either party to insist upon the performance of any tern or provision of this Agreement or to exercise any right granted hereunder will not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 15. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action will lie in state courts located in Tarrant County. Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement will be construed in accordance with the laws of the State of Texas. 16. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. 17. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Company, and any lawful assignee or successor of Company, and are not intended to create any rights, contractual or otherwise,to any other person or entity_ l8. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, strike, inclement weather, shortages or unavailability of labor or materials, unreasonable delays by the City (based on the then-current workload of the City department(s) responsible for undertaking the activity in question) in issuing any permits, consents, or certificates of occupancy or conducting any inspections of or with respect to Page 28 Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth. t.l_C the Development, or other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted will be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement will be extended for a period of time equal to the period such party was delayed. Notwithstanding anything to the contrary herein, it is specifically understood and agreed that Company's failure to obtain adequate financing to complete the Phase I Improvements by the Phase I Completion Deadline or the Phase II Improvements by the Phase II Completion Deadline will not be deemed to be an event of force majeure and that, in such an event, this Section 18 will not operate to extend the Phase I Completion Deadline or Phase II Completion Deadline, as the case may be_ 19. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement will be interpreted fairly and reasonably, and neither more strongly for or against any party,regardless of the actual drafter of this Agreement. 24. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Company, and any lawful assignee or successor of Company, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. 22. COLNTERPARTS_ "Phis Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. Page 29 Economic Development Program Agreement between City of Fort Worth and-manger Fort Worth.LLC EXECUTED as of the last date indicated below: CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: By: 1z s u s 7. G h a►�S a� Peter V aky A ssl; City Manager Deputy City Attorney Date: �f L Y M&C: G-18485 05-19-I5 ?-D14 33 a0i� TANGER FORT WORTH, F�1��' LLC, a North Carolina limited liability AWMd by: company: ❑ By: Tanger Devco, LLC, its Manager: a �. ei, �i1 By: Thomas E. Mc on ugh Vice President Date: OFFICIAL RECORD CITY SECRETARY Page 30 FT.WORTH,Tx Economic Development Program Agreement between City of Fort Worth and Tanger Fort Worth,LLC EXHIBITS "A"—Description and Map Depicting the Development Property "B"—Public Infrastructure Improvements "C"—Form of Final Construction Report "D"— Form of Consent to Collateral Assignment EXHIBIT"A" Description and Map Depicting the Development Property_ PROPERTY DESCRIPTION STATE OF TEXAS § COUNTY OF DENTON § BEING a tract of land situated in the G.W. SHAMBLIN SURVEY, ABSTRACT NO. 1191 and the R. DANIEL SURVEY, ABSTRACT NO. 382, in the Fort Worth, Denton County, Texas, being a portion of a tract of land (Tract 3) described in deed to Roanoke 351114 Partners, L.P. and Roanoke 351114 O & G Partners, L.P., recorded in Document Number: 2007-21421, Official Records, Denton County, Texas, and also being a portion of Interstate Highway 35-W, and being more particularly described as follows: COMMENCING at a 112-inch iron rod with a plastic cap stamped "HALFF" found for the Southeast corner of said Tract 3, said point being in the Northwest right- of-way of Interstate Highway 35-W (North Freeway), a variable width right-of- way; THENCE North 30 deg 20 min 52 sec East, departing the South line of said Tract 3 and along the Northwest right-of-way of said Interstate Highway 35-W, a distance of 952.59 feet to a 518-inch iron rod with plastic cap found for corner; THENCE North 58 deg 20 min 42 sec West, a distance of 58.85 feet to a 112-inch iron rod with red plastic cap stamped "W.A.I." set for corner on the Northwest right-of-way of said Interstate Highway 35-W at its intersection with the Northeast right-of-way of Outlet Boulevard, a 100-foot right-of-way per Champions Circle Addition, an addition to the City of Fort Worth, Denton County, Texas, according to the Plat thereof recorded in Doc Number 2016-1, Plat Records, Denton County, Texas, said point being the POINT OF BEGINNING; THENCE North 58 deg 20 min 42 sec West, departing the Northwest right-of-way of said Interstate Highway 35-W, along the Northeast right-of-way of said Outlet Boulevard, a distance of 937.57 feet to a 112-inch iron rod with red plastic cap stamped "WA.I." set for corner, said point being the beginning of a curve to the left having a radius of 510.00 feet, a central angle of 27 deg 05 min 25 sec, a chord bearing of North 71 deg 53 min 25 sec West, and a chord length of 238.89 feet; THENCE along said curve to the left, an arc distance of 241.13 feet to a 112-inch iron rod with red plastic cap stamped "W.A.I." set for corner at the Southerly end of a corner clip at the intersection of the Northerly right-of-way of said Outlet Boulevard with the East right-of-way of Pilgrim Drive, a 66-foot right-of-way per said Champions Circle Addition; THENCE North 43 deg 00 min 18 sec West, along said corner clip, a distance of 14.63 feet to a 112-inch iron rod with red plastic cap stamped "W.A.I." set for corner at the Northerly end of said corner clip; THENCE North 00 deg 00 min 46 sec West, along the East right-of-way of said Pilgrim Drive, a distance of 978.75 feet to a 112-inch iron rod with red plastic cap stamped "W.A.I." set for corner at the Southerly end of a radial corner clip at the intersection of said Pilgrim Drive with the South right-of-way of Bucees Boulevard per said Champions Circle Addition, said point being the beginning of a curve to the right having a radius of 50.00 feet, a central angle of 90 deg 00 min 45 sec, a chord bearing of North 44 deg 59 min 37 sec East, and a chord length of 70.72 feet; THENCE along said radial corner clip and said curve to the right, an arc distance of 78.55 feet to a 112-inch iron rod with a red plastic cap stamped "W.A.I."found for corner; THENCE along the South right-of-way of said Bucees Boulevard, the following courses and distances: North 89 deg 59 min 59 sec East, a distance of 905.57 feet to a 112-inch iron rod with red plastic cap stamped "W.A.I." set for corner, said point being the beginning of a curve to the right having a radius of 400.13 feet, a central angle of 32 deg 16 min 48 sec, a chord bearing of South 73 deg 51 min 28 sec East and a chord length of 222.46 feet; Along said curve to the right, an arc distance of 225.43 feet to a 112-inch iron rod with red plastic cap stamped 'W.A.I." set for corner; South 58 deg 07 min 09 sec East, a distance of 674.53 feet to a 112-inch iron rod with red plastic cap stamped 'W.A.L" set for corner on the Northwest right-of-way of said Interstate Highway 35-W; THENCE South 35 deg 06 min 04 sec West, along the Northwest right-of-way of said Interstate Highway 35-W, a distance of 4.07 feet to a 112-inch iron rod with red plastic cap stamped 'W.A.L" set for corner; THENCE South 01 deg 34 min 50 sec East, continuing along the Northwest right- of-way of said Interstate Highway 35-W, a distance of 16.89 feet to a 112-inch iron rod with red plastic cap stamped "W.A.I." set for corner, said point being the beginning of a non-tangent curve to the right having a radius of 6,536.67 feet, a central angle of 02 deg 09 min 51 sec, a chord bearing of South 33 deg 35 min 32 sec West, and a chord length of 246.89 feet; THENCE continuing along the Northwest right-of-way of said Interstate Highway 35-W and along said non-tangent curve to the right, an arc distance of 246.90 feet to a 1I2-inch iron rod with red plastic cap stamped 'W.A.U' set for corner on the North line of a tract of land awarded to the State of Texas per judgement recorded in Volume 530, Page 118, Deed Records, Denton County, Texas, said North line being the existing right-of-way of said Interstate Highway 35-W; THENCE South 32 deg 46 min 13 sec West, over and across said State of Texas tract, a distance of 98.51 feet to a 112-inch iron rod with a red plastic cap stamped 'W.A.L" set for corner,- THENCE orner;THENCE South 30 deg 21 min 45 sec West, along the future Northwest sight-of- way of said Interstate Highway 35-W, a distance of 1,018.67 feet to the POINT OF BEGINNING. CONTAINING within these metes and bounds 1,907,522 square feet or 43.791 acres of land, more or less. Bearings shown hereon are based upon an on-the- ground Survey performed in the field on the 9th day of July, 2014, utilizing a G.P.S. measurement (NAD 83, Grid) from the GeoShack VRS network. v"3.wmw.o...rs mK-ivot.o.d A3AHns 91111 ONV1 WSOVIVI v ■rr� a ■1 me vxLwam "�" } ■.rw+.s�.awL�Lr.�r tanws.n■w�w Mn °•a TT vt Its RZ a�ww®waov. ;� � i 3 � �� 1 did ■ Z � �1 ■ �� � � � '; Fa,.� � �i� a as } E,f Z€f I� ��€ � �f .■E�€!af$aale■.:■■�■s� 'g��; '; ��i p■ �� p oaf �� F, ;e��r a� �f � �� YF [ ,€ �■ ; �3 �� ��� �� � � �i��l f €fid "a■..tF�aI iFx'rE irk r� rf != rr rri ii, r• ra 1� �" , ei = �aarill}i s;Eta i € r e{;i F ;!a `i It Rs s= + €} sit Ra �; �} 1 #■}11plhEi■cle5et»■t iia iizr i;� f� iF+i is i +'• �= •= 1; . �F ! 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It A IgE =' € =�ti # aaex tib 1,211- 11 i$SEc S3 =#_ g €Fia S: i ';PV. ��e �8 �i �y6� _�:�y[ a�� ��� �� fy� L53qq 3y_ g kFgg Igj a}�}Ei `� pay,- 9- ��p y��}■■i�Fp'_�� yy8[� �x� °��g; �������dgg��ijdj 3��e���a��F`yk,�a 3',�}, � Y- �`bSp YF [�.gg� @R�� 6� f�� A..p�'9 } d a s i E M 511 a r I4 a_ tat �t€ qq g i i t a It i zg ]E� .p 5i q ]3 ux„ Sk n 3 } g }ggA, sg} oygnsFyi`ciyFt {�SysAyppgg$ jj$$$ ��gT¢¢i3`{jb �¢ � pp � $[P55 # tl - _ 1 EXHIBIT"B" Public Infrastructure Improvements 1. The public improvements generally described as Paving, Drainage, Water& Sanitary Sewer to served Tanger Outlet Centers and more specifically described in—City of Fort Worth City project No. 02628 & DDE No 7489 EXHIBIT"C" Form of Final Construction Report FORT WORTH. City of Fort Worth Project Completion Report I. PROJECT INFORMATION Property Owner. Company/Project Name: Project Contact: Title: Telephone: Fax: E-Mail: Property Owner Address(If Different): Address of Property Subject to Agreement: Construction completion Date: Date of issuance of the Certificate of Occupancy:(Please attach a copy) Date installation of Business Personal Property was completed: Total Actual Dollars Spent on Machinery,Equipment,and Other Business Personal Property:$ II.CONSTRUCTION SPENDING Company names,addresses,and the amounts paid during the reporting period should be attached to this report.Please verify that M/WBE companies are located in Fort Worth by contacting the M/WBE office at(817)212-2574 or tasha. ki Igore@fortwo rthtexas.gov. CONSTRUCTION Total Construction dollars Spent this Reporting Period(A):$ AWARDS TO FORT WORTH COMPANIES Total Construction Dollars Spent with Fort Worth Companies(8):$ Percentage of Total Construction Dollars Spent with Fort Worth Companies(B/A): % AWARDS TO FORT WORTH MINORITY/WOMEN OWNED BUSINESS ENTERPRISES(MIWBE) Total Construction Dollars Spent with Fort Worth M/WBE Companies(C):$ Percentage of Total Construction Dollars Spent with Fort Worth M/WBE Companies(CIA): % III.ADDITIONAL INFORMATION (TO BE ATTACHED) F_ List of Real Property Appraisal District Account Numbers(Applicable to Projects with Real Property Commitments) I List of Business Personal Property Appraisal Dlstrlct Account Numbers(Applicable to Projects with Personal Property Commitments) F— Copy of the Certificate of Occupancy issued by the City of Fort Worth's Planning and Development Department r Copy of Certification from the North Central Texas Regional Certification Agency for each.M/WBE vendor List of all Company Names,Addresses,Invoice Numbers,and Amounts Paid During Construction.Clea rty note the Fort F Worth and Fort Worth MIINBE Companies.(Excel Format) ADDITIONAL DOCUMENTATION FOR SELECTED SAMPLE(Initially.City Staffwill review the above mentioned list of all invoices reiated toTotal Construction Dollars Spent.Staff will then select a sample of Invoices/Pay Applications to test,com m u n i c ate to the Project Contact which items have been selected for the sample,and request the following documentation for the selected sample only.Please see'Project completion Audit Process"on the reverse side for more details.) Copies of Invoices/Pay Applications for the Sample.Clearly note the Fort Worth and Fort Worth MIWSE Companies. F_ (InvoiceslPay Applications must have the name and address of the company,and include dates,description of services andior products,quantities of each item and unit cost of each item) r Front/back copies of cancelled checks and bank statements showing checks cleared for above-mentioned invoices F— Copies of general ledger documenting checks posting to general ledger FORT WORTH City of Fort Worth Project Completion Report A.CERTIFICATION In connection with the review of the tax abatement/economic development grant agreement for the respective project, between the City of Fort Worth and (Company Name) we confirm,to the best of our knowledge and belief,the following representations made to the City of Fort Worth. 1.) We are responsible for the information provided in the Project Completion Report. 2.) We have made available all information that we believe is relevant to the Project Completion Report. 3.) We will respond fully to all inquiries made by the City of Fort Worth during the audit process. 4.) We acknowledge that the City of Fort Worth is responsible for evaluating the criteria and determining that the criteria are appropriate for meeting the terms of the agreement. Name of Certifying Officer: Phone: Title: Fax: Signature of Certifying Officer. Date: In order to remain eligible for the incentive,you must return the completed report by February 1 st,2015 to: City of Fort Worth Economic Development Department Business Development Division Attn:Ms.Natalie Moore-Business Development Coordinator 1150 South Freeway Fort Worth,Texas 75104 Please forward an electronic copy of the completed report to: natalie.mooreC@fortworthtexas.gov. You must also submit two original hard copies of the report and ail attachments to the above stated physical address for proper filing and review.For assistance call Natalie Moore at(817)217-7680. About the Project Completion Audit Process Initially,the City of Fort Worth's Internal Audit Department will review the provided list of all Invoices/Pay Applications for Total Construction costs, Fort Worth Construction costs,and Fort Worth M/WBE Construction costs (if applicable to your agreement).City Staff will then select a sample of Invoices/Pay Applications to test, communicate to the Project Contact which items have been selected for the sample, and request additional documentation for the selected sample only. (Please see "ADDITIONAL DOCUMENTATION FOR SELECTED SAMPLE" on the reverse side for the list of documentation required.)If Staff is able to successfully trace the Invoice/Pay Applications to cancelled checks and the general ledger,and the information on the Invoices/Pay Applications is correct and contains all required information, Staff will utilize the information from the sample to form a conclusion regarding compliance with the agreement.However,if Staff finds more than the minimum allowable deviations (this number varies based upon the sample size), Staff will have to expand the sample size and review more Invoices/Pay Applications. Therefore, it is imperative that Staff receives complete and accurate information. Staff will work closely with the Certifying Officer and/or the appropriate representatives of the companies to try to resolve questions, and differences in reported amounts. Staff will also keep the contact persons apprised of any issues and/or non-compliant categories as they are determined. EXI IIBIT"D" Form of Consent to Collateral Assignment CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN CITY OF FORT WORTH AND TANGER FORT WORTI1, LLC (CITY SECRETARY CONTRACT NO. ) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Consent") is entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; TANGER FORT WORTI1, LLC ("Company"), a North Carolina limited liability company; and ("Lender"), a RECITALS The City, Company and Lender hereby agree that the following statements are true and correct and constitute the basis upon which the parties have entered into this Consent: A. The City and Company previously entered into that certain Economic Development Program Agreement, dated as of , 2016 (the "EDPA") pursuant to which the City agreed to pay Company certain Program Grants in return for Company's construction of a commercial development consisting mainly of Retail uses in the City in the vicinity of the southwest corner of Interstate I Iighway 3 5 W and State Highway 114, as more specifically outlined in the EDPA (the "Development"). The EDPA is a public document on file in the City Secretary's Office as City Secretary Contract No B. Section 11 of the EDPA allows Company to assign its rights and obligations under the EDPA to a financial institution or other lender for purposes of granting a security interest in the Development and/or Development Property without the approval of the City Council, provided that Company and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Company, and the financial institution or other lender with respect to such security interest. C. Company wishes to obtain a loan from Lender in order to [state reason for loan] (the "Loan"). As security for the Loan, certain agreements between Company and Lender governing the Loan and dated , including, but not limited to, that certain Loan Agreement and [list other related documents] (collectively, the "Loan Documents") require that Company assign, transfer and convey to Lender all of Company's rights, interest in and to the EDPA until such time as Company has fully satisfied all duties and obligations set forth in the Goan Documents that are necessary to discharge Lender's security interest in the EDPA(the"Assignment"). D. The City is willing to consent to this Assignment specifically in accordance with the terms and conditions of this Consent. AGREEMENT 1_ The City, Company and Lender hereby agree that the recitals set forth above are true and correct and form the basis upon which the City has entered into this Consent. 2. The City hereby consents to the Assignment at the request of Company and Lender solely for the purpose of Lender's securing the Loan pursuant to and in accordance with the Loan Documents. Notwithstanding such consent, the City does not adopt, ratify or approve any of the particular provisions of the Loan Documents and, unless and to the extent specifically acknowledged by the City in this Consent, does not grant any right or privilege to Lender or any assignee or successor in interest thereto that is different from or more extensive than any right or privilege granted to Company under the EDPA. 3. In the event that the City is required by the EDPA to provide any kind of written notice to Company, including notice of breach or default by Company, the City will also provide a copy of such written notice to Lender, addressed to the following, or such other party or address as Lender designates in writing, by certified mail, postage prepaid, or by hand delivery: or such other address(es) as Lender may advise City from time to time. 4. If Company fails to cure any default under the EDPA, the City agrees that Lender, its agents or designees will have an additional thirty (30) calendar days or such greater time as may specifically be provided under the EDPA to perform any of the obligations or requirements of Company imposed by the EDPA and that the City will accept Lender's performance of the same as if Company had performed such obligations or requirements; provided, however, that in the event such default cannot be cured within such time, Lender, its agents or designees, will have such additional time as may be reasonably necessary if within such time period Lender has commenced and is diligently pursuing the remedies to cure such default, including, without limitation, such time as may be required for lender to gain possession of Company's interest in the Company property pursuant to the terms of the Loan Documents. 5. If at any time Lender wishes to exercise any foreclosure rights under the Loan Documents, before taking any foreclosure action Lender will first provide written notice to the City of such intent (a "Notice"). Lender will copy Company on the Notice and deliver such Notice to Company by both first class and certified mail return receipt concurrent with its transmittal of the Notice to the City and represent in the Notice that it has done so. Notwithstanding anything to the contrary herein, unless Lender enters into a written agreement with the City to assume and be bound by all covenants and obligations of Company under the EDPA, bender understands and agrees that the City will not be bound to pay Lender any Program Grants pursuant to the EDPA. In addition, Lender understands and agrees that if Lender wishes to sell all or any portion of the Development Property or improvements thereon to a third party following Lender's exercise of any foreclosure rights under the Loan Documents, the City will not be bound to pay such third party any Program Grants pursuant to the EDPA unless Lender and such third party comply with the procedure for assignment set forth in Section l i of the EDPA, including the obligation of such third party to enter into a written agreement with the City to assume and be bound by all covenants and obligations of Company under the EDPA. In the event that payment of any Program Grants are withheld by the City pursuant to this Section 5, any rights to receipt of those Program Grants are hereby waived, but the number and amount(s) of any such Program Grant(s) will nevertheless be counted for purposes of calculating the Term of the EDPA, as set forth in Section 3 of the EDPA. 6_ In the event of any conflict between this Consent and the EDPA or any of the Loan Documents, this Consent will control. In the event of any conflict between this Consent and any of the Loan Documents, this Consent will control. In the event of any conflict between the EDPA and any of the Loan Documents,the EDPA will control. 7. This Consent may not be amended or modified except by a written agreement executed by all of the parties hereto_ Notwithstanding anything to the contrary in the Loan Documents, an amendment to any of the Loan Documents will not constitute an amendment to this Consent or the EDPA. 8. Once Company has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security interest in the EDPA and such security interest is released, Lender will provide written notice to the City that Lender has released such security interest, in which case this Consent will automatically terminate. 9. This Consent will be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Consent will lie in state courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. M Capitalized terms used but not specifically defined in this Consent will have the meanings ascribed to them in the EDPA. 11. This written instrument contains the entire understanding and agreement between the City, Company and Lender as to the matters contained herein. Any prior or contemporaneous oral or written agreement concerning such matters is hereby declared null and void to the extent in conflict with this Consent. 12. This Consent will be effective on the tater date as of which all parties have executed it. This Consent may be executed in any number of duplicate originals and each duplicate original will be deemed to be an original. The failure of any party hereto to execute this Consent, or any counterpart hereof, will not relieve the other signatories from their obligations from their obligations hereunder. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] CITY OF FORT WORTH: APPROVED AS TO FORM AND LEGALITY: By: By: Name: Name: Assistant City Manager Assistant City Attorney Date: M&C: none required TANGERFORT WORTH, LLC,a North Carolina limited liability company: By: Name: Title: Date: 4844-0387-1541 •.2 48601-2 M&C Review Page l of 3 Official site of the City of Fort Worth.Texas CITY COUNCIL AGENDA FoRTWRTH COUNCIL ACTION: Approved on 511912015 DATE: 5/19/2015 REFERENCE G_18485 LOG NAME: 17ED CHAMPIONSEDPA2 NO.. CODE: G TYPE: NOW PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Execution of an Economic Development Program Agreement with Tanger Devco, LLC or Affiliates for the Development of an Outlet Mall to be Located at the Southwest Corner of Interstate 35 and Highway 114(COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council: 1, Authorize the City Manager to execute an Economic Development Program Agreement with Tanger Devco, LLC or Affiliates related to the development of an outlet mall to be located at the southwest corner of Interstate 35 and Highway 114; and 2. Find that the terms and conditions of the Agreement, as outlined below, constitute a custom- designed Economic Development Program, as recommended by the 2015 Comprehensive Plan and authorized by Chapter 380 of the Texas Local Government Code. DISCUSSION: Tanger Devco, LLC (Developer) or affiliates thereof, will construct a 400,000 square foot retail development project in two phases. The project will be located at the southwest corner of Interstate 35 and Highway 114. The proposed project is estimated to have a development cost of$80 million. In return, the City will pay the Developer 15 annual Economic Development Program grants, as authorized by Chapter 380, Texas Local Government Code. The maximum annual program grant will be equal to 85 percent of the City's $0.01 sales tax attributable to the development. The grants will be tied to the amount of project investment made by the Developer and to the satisfaction of other project and spending requirements. The minimum investment levels, maximum incentive schedule and required improvements for each phase are summarized as follows: Phase I: - Minimum investment of$70 million in total development costs (exclusive of land acquisition costs) including public infrastructure improvements and amenities; - Minimum 350,400 square feet retail space; and - Must be complete by December 31, 2018. Failure to meet the Phase i minimum investment is an event of default and will result in immediate termination of the Agreement. Additionally, if a combined $100 million is not spent between Tanger Devco, LLC and Roanoke 351114 Partners, LP the Agreement will terminate. Phase It: - Minimum additional investment of$10 million to achieve an aggregate total development costs of http://apps.cfwnet.org/council_sacketlmc—review.asp?ID=21084&councildate=511912015 8/17/2016 IVAOGI, Neview Page 2 of 3 $80 million (exclusive of land acquisition costs) including public infrastructure improvements and amenities; - Minimum 50,000 square feet additional retail space; and - Must be complete by December 31, 2021. In exchange for achieving the specified levels of investment, the Developer will be eligible to receive up to 15 annual Economic Development Grants equal to 85 percent of the incremental City$4.01 sales tax attributable to the development. Utilization of Fort Worth Companies and Fort Worth Certified MfWBE Companies Real Pro a Im rovements : The Developer is required to spend 30 percent of hard construction costs with contractors that are Fort Worth companies. The Developer is also required to spend 25 percent of hard construction costs with contractors that are Fort Worth certified Minority/Women-Owned Business Enterprise (MIWBE) companies (with an understanding that dollars spent with Fort Worth certified M/WBE companies will also count as dollars spent with Fort Worth companies.) Employment Commitments: The Developer will employ a minimum of 354 full-time equivalent employees on the property through its contractors, tenants and affiliated company employees within 365 calendar days from the completion of Phase 1. Utilization of Fort Worth Companies and Fort Worth Certified MIWBE Com artier (Supply & Services): The Developer will spend a minimum of$50,040.00 of annual discretionary service and supply expenditures with Fort Worth companies beginning in the second year following the completion of Phase 1. The Developer will spend a minimum of$25,000.04 of annual discretionary service and supply expenditures with Fort Worth certified MfWBE companies beginning in the second year following the completion of Phase I (with an understanding that dollars spent with Fort Worth certified MNVBE companies will also count as dollars spent with Fort Worth companies.) Supply and service expenditures shall include all expenditures, whether under written contract or ad hoc purchases, other than for electric, gas and water utilities related to the operation and maintenance of the project, including amounts paid to eligible companies or contractors for personnel. City Commitments: All grant payments are based on and shall not exceed 85 percent of the City's $0.01 sales tax attributable to the development for a 15-year term up to an overall incentive cap as outlined below. Phase Incentive Cap(Gross) Phase 1 $22,511,550 Phase li $24,971,368 Developer's ability to earn the maximum 85 percent grant each year will be based on the extent to which Developer meets the various spending commitments outlined above, each of will be weighted in accordance with the following percentages: httn-llnnnc.cfwnet.or2Icouncil _packetlmc_review.asp?ID=21084&councildate=511912015 8/17/2016 M&C Review Page 3 of 3 Developer Commitment Weighted Percentage Minimum Project Investment 50 Percent Fort Worth Construction Spending 11 25 Percent Year-1,10 Percent Year-2-15 Fort Worth certified M/WBE Construction Spending 25 Percent Year-1, 10 Percent Year-2-15 Fort Worth Supply and Service Spending 25 Percent Year-2-15 Fort Worth certified M1WBE Supply and Service Spending 25 Percent Year-2-15 Total 100 Percent This protect is located in COUNCIL DISTRICT 7, Mapsco 643P, 643Q, 643S, 643T and 643U. FISCAL INFORMATIONXERTIFICATION: The Financial Management Services Director certifies that if approved, the components of this Agreement will be incorporated into our long-term financial forecast. TO Fund/Account/Centers FROM FundfAccount/Centers Submitted for City Manager's Off_ice_by: David Cooke (6116) Originating_Department Head: Jay Chapa (5804) Additional information Contact: Jay Chapa (5804) ATTACHMENTS Champions Circle Map,pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=21084&councildate=511912015 $11712016 CERTIFICATE OF INTERESTED PARTIES FORM 1295 J.of 1 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. X016-33044 Tanger Fort Worth,LLC Fort Worth,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the farm is 03130!2016 being filed. City of Fort Worth,Texas Date Acknowledged: 9Ihz ( / �- 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 goods or services to be provided under the contract. M&C G-18485 Chapter 380 Economic Development Agreement for a commercial development consisting primarily of retail uses. 4 Nature of interest(check applicable) Name of Interested Party City,State, Country(place of business) Controlling Intermediary Tanger Devco, LLC Greensboro, NC United States X Tanger Properties Limited Partnership Greensboro, NC United States X Pettit,David Fort Worth,TX United States X Hunter,Barton Old Greenwich, CT United States X Mann,Tommy Dallas,TX United States x Hoffmann, Laura Dallas, TX United States X 5 Check only if there is NO Interested Party. ❑ fi AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure Is true and correct. TANGER FORT WORTH.LLC, a North Carolina limited liability company By: Tanger Devco, LLC, a North Carolina limited liability company, +t5`idlarrag _ ( By: KIMBERLY W. HERNANDEZ Signature❑ author ed agent of contracting business entity Notary Public-North Carolina T�301�1a5 • M onough AF x NOTARY 4!�Wfig6Ul-i'`9OVE Vice resident Sworn to and subscribed before me,by the said V this the �} day of�_L� 24_V4L_—,to certify which,witness my hand and seal of office. Signature It facer administering oath Printed name of❑4er administering oath Title of officer k ministering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.312