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HomeMy WebLinkAboutContract 36485-A1CITY SECRETARY CONTRACT N0. -�� y - I. AMENDMENT NO. 1 TO ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This AMENDMENT NO. 1 TO ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Amendment") 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 FW RIVER PLAZA, L.P. ("Developer"), a Texas limited partnership. RECITALS The City and Developer hereby agree that the following statements are true and correct and constitute the basis upon which the City and Developer have entered into this Amendment: A. Developer owns approximately 6.75 acres of land in the vicinity of the intersection of University Drive and River Run (the "Development Property"), as more specifically depicted and described in Exhibit "A", attached hereto and hereby made a part of this Agreement for all purposes. The Development Property, which is located in the Central City, contained an older Class C/B office building and parking lots and was served by an inefficient network of streets which has stifled optimum development in the area. The Development Property currently contains the shell of a multi -story parking garage. B. Developer intends to cause construction of a mixed -use development on the Development Property consisting of (i) a multi -story parking garage containing approximately seven hundred (700) parking spaces (the "Parking Garage"); (ii) approximately 80,000 square feet of space suitable for retail uses; (iii) approximately 100,000 square feet of space suitable for commercial offices; and (iv) approximately 50,000 square feet of space suitable for a limited -service hotel (collectively, the "Development"). The proposed Development is generally depicted in the schematic attached hereto as Exhibit "B", which is hereby made a part of this Agreement for all purposes. Developer has represented to the City that the Development will not be feasible financially without public assistance due to, among other things, obsolete infrastructure on and around the Development Property, the necessity of reconfiguring access to and egress from the Development Property, the demolition of existing structures on the Development property and the need to complete the Parking Garage in order to make the Development more dense. Co The 2011 Comprehensive Plan, adopted by the City Council on March 1, 2011 pursuant to Ordinance No. 19569-03-2011 (the "Comprehensive Plan") recommends that the City promote Central City locations in the City for business development and that the City establish incentives to promote the redevelopment or reuse of deteriorated properties in the City's commercial districts. --` Page 1 OFFICIAL i aeWRO Amendment No. 1 to Economic Development Program Agreement CITY SE( RETAIN between City of Fort Worth and FW River Plaza, L.P. I,� WQRYHy TX D. 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 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"). E. The City and Developer previously entered into that certain Economic Development Program Agreement dated as of January 14, 2008, a public document on file in the City Secretary's Office as City Secretary Contract No. 36485 (the "Agreement") that provided for the City to pay Developer certain economic development program grants under the 380 Program in return for Developer's completion of the Development pursuant to and in accordance with the terms and conditions of that Agreement. Due to economic, market and financing changes since the Agreement was originally executed, the City Council approved Mayor and Council Communication (M&C) C-25124 on August 23, 2011, that approved execution of an amendment to the Agreement allowing for a change in the scope of the Development, extensions of the Completion Deadline for the Development, and a change in the manner in which Program Grants payable to Developer will be calculated. Because the proposed changes will result in numerous changes to the wording of the Agreement, the parties wish to amend the Agreement by restating herein all terms and conditions of the Agreement. F. The City Council has determined that by entering into the Agreement, as amended by this Amendment, the potential economic benefits that will accrue to the City under the terms and conditions of the Agreement are consistent with the City's economic development objectives and that promoting mixed -use development in the Central City will further the goals espoused by the Comprehensive Plan for positive growth in the City. In addition, the City Council has determined that the 380 Program is an appropriate means to achieve the construction of the 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, as amended by this Amendment, is authorized by Chapter 380 of the Texas Local Government Code. G. The City has determined that the feasibility of the Development is contingent on Developer's receipt of the Program Grants, as provided in the Agreement, as amended by this Amendment. The City's analysis is specifically based on financial information provided by Developer. Page 2 ?,mendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. 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 Developer hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Amendment and the Agreement. This Amendment is a complete restatement and amendment of the Agreement. Any conflict between the provisions of the Agreement set forth herein, including any exhibits attached hereto, and the provisions of City Secretary Contract No. 36485, including any exhibits attached thereto, shall be resolved in favor of the provisions set forth in this Amendment. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital D. Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling Developer. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Certificate of Completion has the meaning ascribed to in Section 5.1. Completion Date means the date as of which certificates of occupancy, whether final or temporary, have been issued by the City for all of the improvements comprising the Development. Completion Deadline means June 1, 2015. Comprehensive Plan has the meaning ascribed to it in Recital C. Construction Costs means Hard Construction Costs and the following costs directly expended or caused to be expended by Developer for the Development between the Effective Date and the Completion Date: engineering fees; architectural and design fees; real estate commissions; costs of third party consultants; developer fees; and Page 3 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. financing costs, including capitalized interest, but specifically excluding any land acquisition costs. Development has the meaning ascribed to it in Recital B. Development Personal Property Tax Revenues means ad valorem taxes on Tangible Personal Property located on the Development Property that are received by the City, minus taxes payable on Tangible Personal Property located on the Development Property for the 2011 tax year, based on the taxable appraised value of Tangible Personal Property located on the Development Property for the 2011 tax year. With respect to Tangible Personal Property leased by a Development Property User, Development Personal Property Tax Revenues will include that portion of annual property tax paid by the Development Property User, prorated on a daily basis, which is attributable to the period during which the Development Property User was the lessee of such property. The taxable appraised value of such Tangible Personal Property for any given tax year will be established solely by the appraisal district that has jurisdiction over the Development Property at the time. Development Property has the meaning ascribed to it in Recital A. Deelopment Property User means any person or entity that has the vlegal right to use all or any portion of the Development for commercial, retail, residential or other lawful purposes, including without limitation, Developer and third party retail and commercial businesses, including the hotel. Development Real Property Tax Revenues means ad valorem taxes on the Development Property and any improvements located thereon, minus the taxes payable on the Development Property and any improvements located thereon for the 2011 tax year, based on the taxable appraised value of the Development Property and any improvements located thereon for the 2011 tax year. The taxable appraised value of the Development Property and any improvements located thereon for any given year will be established solely by the appraisal district that has jurisdiction over the Development Property at the time. Development Sales Tax Revenues means a one percent (1%) available sales tax, such as that presently in effect pursuant to Texas Tax Code §§ 321.101(a) and 321.103, resulting from sales taxes received by the City and collected by Developer and other Developer Property Users on Sales transacted on the Development Property, minus Three Million Two Hundred Fifty Thousand Dollars ($3,250,000.00), which is the amount of such sales taxes received by the City in the twelve (12)-month period between Janaury 1, 2011 and December 31, 2011. Development Sales Tax Revenues specifically excludes all revenues from (i) 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 (ii) 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 Page 4 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Transportation Authority pursuant to Texas Tax Code Chapter 322. Notwithstanding anything to the contrary herein, in no event shall Development Sales Tax Revenues ever exceed a one percent (1%) sales tax imposed by the City, even if the City at any point in the future charges more than a one percent (1%) sales tax. 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 shall automatically be adjusted to equal that lesser percentage. If the City's sales tax rate is ever decreased as provided in the preceding sentence and the City then subsequently adds a sales tax that increases such lower percentage and whose use is not controlled or regulated, in whole or in part, by another governmental entity or authority or otherwise dedicated to a specific use by the City, then Development Sales Tax Revenues shall be computed to reflect that increased percentage up to a maximum aggregate of one percent (1 %). Director means the director of the City's Housing and 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 Operating Year means the first full calendar year following the year in which the Completion Date occurs. Fort Worth Certified M/WBE Company means a minority or woman -owned business that has received certification as either a minority business enterprise (MBE), a woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the North Texas Regional Certification Agency (NTRCA) and that has a principal business office located within the corporate limits of the City that performs a commercially useful function and that provides the services for which Developer is seeking credit under this Agreement. 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 Developer is seeking credit under this Agreement. has the meaning ascribed to it in Section 4.3. Fort Worth Construction Percentage has the meaning ascribed to it in Section 5.2.1.2. Fort Worth Supply and Service Percentage has the meaning ascribd to it in e Section 5.2.1.4. Page 5 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Fort Worth Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.6. Hard Construction Costs means actual site development and construction costs, contractor fees and the costs of supplies and materials, and specifically excludes land acquisition costs. Job means a job provided to an individual by a Development Property User on the Development Property. M/WBE Construction Commitment has the meaning ascribed to it in Section 4.4. M/WBE Construction Percentage has the meaning ascribed to it in Section 5.2.1.3. M/WBE Supply and Service Percentage has the meaning ascribed to it in Section 5.2.1.5. M/WBE Su to it in Section 4.7. has the meaning ascribed Overall Construction Percentage has the meaning ascribed to it in Section 5.2.1.1. Parking Garage has the meaning ascribed to it in Recital B. Program Cap means the maximum number of gross dollars comprising all Program Grants that the City is required to pay Developer pursuant to this Agreement, based on the amount of Construction Costs expended or caused to be expended for the Development between the Effective Date and the Completion Date, as follows: (a) If Developer expended or caused to be expended between $50,000,000.00 and $63,500,000.00 in Construction Costs for the Development between the Effective Date and the Completion Date, as verified in the Certificate of Completion issued by the City in accordance with Section 5.1, the Program Cap shall equal $6,691,549.00, gross. (b) If Developer expended or caused to be expended between $63,500,001.00 and $81,500,000.00 in Construction Costs for the Development between the Effective Date and the Completion Date, as verified in the Certificate of Completion issued by the City in accordance with Section 5.1, the Program Cap shall equal $9,270,837.00, gross. (c) If Developer expended or caused to be expended $81,500,001.00 or more in Construction Costs for the Development between the Effective Date and the Page 6 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Completion Date, as verified in the Certificate of Completion issued by the City in accordance with Section 5.1, the Program Cap shall equal $12,133,062.001 gTOSS* Program Grants means the annual economic development grants paid by the City to Developer in accordance with this Agreement and as part of the 380 Program. Pro ram Source Funds means an amount of City funds available for inclusion in a Program Grant that is payable in a given Program Year, which shall equal to fifty percent (50%) of the Development Real Property Tax Revenues, plus fifty percent (50%) of the Development Personal Property Tax Revenues, plus fifty percent (50%) of the Development Sales Tax Revenues which were received by the City during the Twelve - Month Period ending in the same Program Year in which the Program Grant for that Program Year is payable. Program Year means a calendar year in which the City is obligated pursuant to this Agreement to pay Developer a Program Grant, beginning with (i) the Second Operating Year or (ii) the First Operating Year if agreed to by the parties pursuant to and in accordance with Section 5.2.3 (Program Year 1). Records has the meaning ascribed to it in Section 4.9. Sales means all sales of merchandise (including gift and merchandise certificates), services and other receipts whatsoever of all business conducted in, on or from the Development Property, whether cash or credit, including mail, telephone, telefax, telegraph, internet or catalogue orders received or filled at or from the Development Property, deposits not refunded to purchasers, orders taken (although such orders may be filled elsewhere), sales to employees, 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 Property, (iii) the amount of returns to shippers and manufacturers or (iv) the sale of any Development Property User's fixtures. Second Operatinsi Year means the second full calendar year following the year in which the Completion Date occurs. Supply and Service Expenditures means all expenditures by or caused by Developer, 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. Tangible Personal Property means personal property that is located on the Development Property and is owned or leased by any Development Property User, Page 7 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. including, without limitation, inventory, fixtures, store signage, checkout stands, computers, cash registers and security and communications systems. Term has the meaning ascribed to it in Section 3. Twelve -Month Period means the period between February 1 of a given year and January 31 of the following year. 3, TERM. This Agreement shall be effective as of January 14, 2008 (the "Effective Date") and, unless terminated earlier in accordance with this Agreement, shall expire on the earlier of (i) the date as of which the City has paid the tenth (loth) annual Program Grant 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"). 4.1. All facade and site improvements for the Development shall be of an architectural and aesthetic style that enhances existing development in the vicinity of the Development Property. In order to ensure compliance with this condition, Developer must obtain the Director's written approval of all plans and specifications for all facade and site improvements for the Development (excluding demolition work) prior to work on the Development being undertaken. The City shall not unreasonably withhold or deny such approval, with the understanding that, provided that the City Council's Housing and Economic Development Committee (or successor City Council committee) (the "Committee") meets within thirty (30) calendar days following submission of such plans and specifications to the Director, the Director shall not be obligated to provide such written approval until the Committee has had an opportunity to review and comment on such plans and specifications. If the Committee does not meet within thirty (30) calendar days following submission of such plans and specifications to the Director, the Director, in his or her administrative capacity, shall either approve or deny such plans and specifications within such time frame. If the Director denies approval of any such plans and specifications, the Director shall provide a written explanation of why the City believes that the plans and specifications do not enhance existing development in the vicinity of the Development Property, and the City and Developer shall thereafter work diligently and in good faith to revise the plans and specifications as necessary to address the City's concerns. Approval by the Director of any plans and specifications relating to the Development shall not constitute or be deemed (i) to be a release by the City of the responsibility or liability of Developer or any of its Page 8 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. contractors; their officers, agents, employees and subcontractors, for the accuracy or competency of the plans and specifications, including, but not limited to, any related investigations, surveys, designs, working drawings and other specifications or documents, or (ii) an assumption of any responsibility or liability by the City for any negligent act, error or omission in the conduct or preparation of any investigation, surveys, designs, working drawings and other specifications or documents by Developer or any of its contractors; their officers, agents, employees and subcontractors. 4.2. Real Property Improvements. In accordance with the terms and conditions of this Agreement, between the Effective Date and the Completion Date Developer shall have expended or caused to be expended at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Development. The Completion Date must occur on or before the Completion Deadline. 4.3. Between the Effective Date and the Completion Date, Developer shall have expended or caused to be expended with Fort Worth Companies the greater of at least (i) $7,200,000.00 in Hard Construction Costs for the Development or (ii) thirty percent (30%) of all Hard Construction Costs for the Development, regardless of the total amount of such Hard Construction Costs (the "Fort Worth Construction Commitment"). wai 4.4. M/WBE Companies. Between the Effective Date and the Completion Date, Developer shall have expended or caused to be expended with Fort Worth Certified M/WBE Companies the greater of at least (i) $6,000,000.00 in Hard Construction Costs for the Development or (ii) twenty-five percent (25%) of all Hard Construction Costs for the Development, regardless of the total amount of such Hard Construction Costs (the "M/WBE Construction Commitment"). Dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of the Fort Worth Construction Commitment outlined in Section 4.3. 4.5. Employment Goal. From and after the Completion Date, Developer will use commercially reasonable efforts to cause at least ten (10) Jobs to be provided on the Development Property (the "Employment Goal"). Page 9 .Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. 4.6. Companies. [�1 In the Second Operating Year and each calendar year thereafter, Developer shall spend or cause to be spent -at least $50,000.00 in annual Supply and Service Expenditures with Fort Worth Companies (the "Fort Worth Supply and Service Spending Commitment"). 4.7. M/WBE Companies. In the Second Operating Year and each calendar year thereafter, Developer shall spend or cause to be spent at least $35,000.00 in annual Supply and Service expenditures with Fort Worth Certified M/WBE Companies (the ending Commitment"). Dollars spent with �IM/WBE Supply and Service Sp Fort Worth Certified M/WBE Companies shall 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. Within thirty (30) calendar days following the Effective Date or prior to the submission of an application by or on behalf of Developer for a permit from the City to initiate any work on the Development (including demolition work), whichever is earlier, Developer will file a plan with the Director as to how Developer intends to meet the M/WBE Construction Commitment and the M/WBE Supply and Service Spending Commitment. Developer agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as reasonably necessary for assistance in implementing such plan and to address any concerns that the City may have with such plan. 4.8.2. Construction Spending Reports. 4.8.2.1. Monthly Reports. From the Effective Date until the Completion Date, in order to enable the City to assist Developer in meeting the M/WBE Construction Commitment, Developer will provide the Director with a monthly report in a form reasonably acceptable to the City that specifically outlines the then -current aggregate Hard Construction Costs expended by and on behalf of Developer for the Development as well as the then -current aggregate Hard Construction Costs expended by and on behalf of Developer for Page 10 ?.mendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. the Development with Fort Worth Certified M/WBE Companies. Developer agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as reasonably necessary for assistance in meeting or exceeding the M/WBE Construction Commitment and to address any related concerns that the City may have. 4.8.2.2. Final Construction Report. Within thirty (30) calendar days following the Completion Date, in order for the City to assess whether Developer satisfied the requirements of Section 4.2, the extent to which Developer met the Fort Worth Construction Commitment and the M/WBE Construction Commitment, and to establish the Program Cap under this Agreement, Developer will provide the Director with a report in a form reasonably acceptable to the City that specifically outlines the total Construction Costs and Hard Construction Costs expended or caused to be expended Developer for the Development, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Developer, including, without limitation, final lien waivers signed by Developer's general contractor. This report shall also include actual total Construction Costs and Hard Construction Costs expended by Developer for construction of the Development with Fort Worth Companies and Fort Worth Certified M/WBE Companies, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Developer to such contractors. 4.8.3. Annual Employment Report. On or before February 1 of the First Full Operating Year and of each year thereafter, in order for the City to assess the degree to which Developer met the Employment Goal in the previous calendar year, Developer shall provide the Director with a report in a form reasonably acceptable to the City that sets forth the total number of individuals who held Jobs on the Development Property, all as of December 1 (or such other date requested by Developer and reasonably acceptable to the City) of the previous year, together with reasonable supporting documentation. If Developer failed to meet the Employment Goal in the previous calendar year, Developer shall include an explanation as to why Developer believes it did not meet the Employment Goal and the efforts that Developer utilized to meet the Employment Goal. 4.8.4. Quarterly Supply and Service Spending Report. Page 11 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Beginning with the first calendar quarter of the Second Operating Year, within thirty (30) calendar days following the end of each calendar quarter, Developer will provide the Director with a report in a form reasonably acceptable to the City that sets forth the then -aggregate Supply and Service Expenditures made during such calendar as well as the then - aggregate Supply and Service Expenditures made during such calendar year with Fort Worth Companies and with Fort Worth Certified M/WBE Companies. The City will use each year's fourth quarter report to assess the degree to which Developer met the Fort Worth Supply and Service Spending Commitment and the M/WBE Supply and Service Spending Commitment for that year. 4.8.5. Sales Tax Reports. To the extent reasonably possible, Developer shall require Development Property Users to provide Developer with annual Sales data sufficient for Developer to complete the annual report required by this Section 4.8.5. Developer shall provide the City with an annual report that sets forth (i) the aggregate amount of sales tax paid to the State Comptroller by Developer and all Development Property Users during the previous year (the "Aggregate Development Property Sales Tax Payments"); (ii) the portion of the Aggregate Development Property Sales Tax Payments for which Developer has obtained and possesses copies of the corresponding sales tax reports filed with the State Comptroller ("Comptroller Reports") by Developer and Development Property Tax Users (collectively, "Verified Aggregate Development Property Sales Tax Payments"); (iii) a list of the separate amounts of sales tax shown on each respective Comptroller Report to have been paid by Developer and by each Development Property User; and (iv) a list of those Development Property Users for which Developer did not obtain a Comptroller Report related to such year. If Developer cannot obtain Sales tax reports or Sales data from any Development Property User sufficient for Developer to complete the annual report required by this Section 4.8.5, Developer shall provide the City with a list of such Development Property Users for the relevant annual compliance term in satisfaction of Developer's reporting obligations for such Development Property Users under this Section 4.8.5. Developer shall keep and maintain copies of all Comptroller Reports that Developer obtains from Development Property Users for at least seven (7) years following the end of the year to which such Comptroller Reports relate and shall make such Comptroller Reports available to the City for inspection pursuant to and in accordance with Section 4.9 of this Agreement. The City's calculation of Development Sales Tax Revenues in a given year will be based on (i) Verified Aggregate Development Property Sales Tax Payments plus (ii) any additional sales tax payments made by a Development Property User in such year, as reflected on Comptroller Reports, that the City is reasonably Page 12 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. able to ascertain, in the City's sole but reasonable judgment, are attributable to the Development Property. 4.9. Audits. The City will have the right throughout the Term to audit the financial and business records of Developer that relate to the Development and any other documents necessary to evaluate Developer'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"). Developer shall make all Records available to the City on the Development Property or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. 4.10. Inspections. At any time during Developer's normal business hours until issuance of a Certificate of Completion for Phase II of the Development pursuant to Section 5.1, and upon prior reasonable notice, the City shall have the right to inspect and evaluate the Development and Development Property, and Developer will provide reasonable access to the same, in order for the City to monitor or verify compliance with the terms and conditions of this Amendment. Developer will reasonably cooperate with the City during any such inspection and evaluation. Notwithstanding the foregoing, Developer shall have the right to require that any representative of the City be escorted by a Developer representative or security personnel during any such inspection and evaluation. 5. CITY OBLIGATIONS. 5.1. Issuance of Certificate of Completion for Development. Within sixty (60) calendar days following receipt by the City of the final construction spending report for the Development, as required by Section 4.8.2.2, and assessment by the City of the information contained therein, if the City is able to verify that Developer expended or caused to be expended at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Development between the Effective Date and the Completion Date and that the Completion Date occurred on or before the Completion Deadline, the Director will issue Developer a certificate stating the amount of Construction Costs and Hard Construction Costs expended or caused to be expended on the Development, including amounts expended specifically with Fort Worth Companies and Fort Worth Certified M/WBE Companies, plus the amount of the Program Cap established under this Agreement based on the amount of Construction Costs expended by and on behalf of Developer for the Development (the "Certificate of Completion"). Page 13 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. 5.2. Program Grants. Subject to the terms and conditions of this Agreement, provided that Developer expended or caused to be expended at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Development between the Effective Date and the Completion Date and that the Completion Date occurred on or before the Completion Deadline, Developer will be entitled to receive from the City ten (10) annual Program Grants. The amount of each Program Grant shall equal a percentage of the Program Source Funds available for that Program Grant. This percentage is based on the extent to which Developer meets the various construction and operational expenditures for the Development, as more specifically set forth in Section 5.2.1. Notwithstanding anything to the contrary herein, aggregate Program Grants payable under this Agreement shall be subject to and shall not exceed the Program Cap. 5.2.1. Calculation of Each Program Grant Amount. Subject to the terms and conditions of this Agreement, the amount of a given Program Grant shall equal the sum of the Overall Construction Percentage, the Fort Worth Construction Percentage and the M/WBE Construction Percentage, as defined in Section 5.2.1.1, 5.2.1.2 and 5.2.1.3, respectively, plus, to the extent applicable, the Fort Worth Supply and Service Percentage and the M/WBE Supply and Service Percentage, as defined in Sections 5.2.1.4 and 5.2.1.5, respectively, multiplied by the Program Source Funds available for that Program Grant. 5.2.1.1. Completion of Development (50%). Each annual Program Grant shall include an amount that is based on Developer's completion of the Development. If Developer expended or caused to be expended at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Development between the Effective Date and the Completion Date and the Completion Date occurred on or before the Completion Deadline, as confirmed by the City in the Certificate of Completion issued by the Director in accordance with Section 5.1, each annual Program Grant shall include fifty percent (50%) of the Program Source Funds (the "Overall Construction Percentage"). In no event will the Overall Construction Percentage exceed fifty percent (50%). Notwithstanding anything to the contrary herein, if Developer failed to expend or cause to be expended at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Development between the Effective Date and the Completion Date or the Completion Date did not occur by the Completion Deadline, an Event of Default, as more specifically set forth in Section 6.1, Page 14 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. will occur and the City shall have the right to terminate this Agreement without the obligation to pay Developer any Program Grants hereunder. 5.2.1.2. Fort Worth Construction Cost Spending (Up to 30% for Program Year 1; Up to 15% Thereafter). Each annual Program Grant shall 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"). The Fort Worth Construction Percentage for the Program Grant payable in Program Year 1 will equal the product of thirty percent (30%) multiplied by the percentage by which the Fort Worth Construction Commitment was met, which will be calculated by dividing the actual Hard Construction Costs expended or caused to be expended between the Effective Date and the Completion Date with Fort Worth Companies for the Development 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 Program Grants will equal the product of fifteen percent (15%) multiplied by the percentage by which the Fort Worth Construction Commitment was met, calculated in accordance with the preceding sentence. For example, if the Fort Worth Construction Commitment is $10,000,000.00 and only $8,000,000.00 in Hard Construction Costs were expended or caused to be expended with Fort Worth Companies between the Effective Date and the Completion Date, the Fort Worth Construction Percentage for the Program Grant payable in Program Year 1 would be 24% instead of 30% (or .30 x [$8 million/$10 million], or .30 x .80, or .24), and the Fort Worth Construction Percentage for all subsequent Program Grants would be 12% instead of 15% (or .15 x [$8 million/$10 million], or .15 x 80, or .12). If the Fort Worth Construction Commitment is met or exceeded, the Fort Worth Construction Percentage will be thirty percent (30%) for the Program Grant payable in Program Year 1 and fifteen percent (15%) 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. 5.2.1.3. Fort Worth M/WBE Construction Cost Spending (Up to 20% for Program Year 1; Up to 10% Thereafter). Page 15 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Each annual Program Grant shall include an amount that is based on the percentage by which the M/WBE Construction Commitment, as outlined in Section 4.4, was met (the "M/WBE Construction Percentage"). The M/WBE Construction Percentage for the Program Grant payable in Program Year 1 will equal the product of twenty percent (20%) multiplied by the percentage by which the M/WBE Construction Commitment was met, which will be calculated by dividing the actual Hard Construction Costs expended or caused to be expended between the Effective Date and the Completion Date with Fort Worth Certified M/WBE Companies for the Development by the number of dollars comprising the M/WBE Construction Commitment, as determined in accordance with Section 4.4. The NVWBE Construction Percentage for all subsequent Program Grants will equal the product of ten percent (10%) multiplied by the percentage by which the M/WBE Construction Commitment was met, calculated in accordance with the preceding sentence. For example, if the M/WBE Construction Commitment is $6,000,000.00 and only $4,500,000.00 in Hard Construction Costs were expended or caused to be expended with Fort Worth Certified M/WBE Companies between the Effective Date and the Completion Date, the M/WBE Construction Percentage for the Program Grant payable in Program Year 1 would be 15% instead of 20% (or .20 x [$4.5 million/$6 million], or .20 x .75, or .15), and the M/WBE Construction Percentage for all subsequent Program Grants would be 7.5% instead of 10% (or .10 x [$4.5 million/$6 million], or .10 x .75, or .075). If the M/WBE Construction Commitment is met or exceeded, the M/WBE Construction Percentage will be twenty percent (20%) for the Program Grant payable in Program Year 1 and ten percent (10%) for all subsequent Program Grants. 5.2.1.4. 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 shall 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 he "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 Page 16 tlmendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Service Spending Commitment. For example, if only $40,000.00 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 foRowing Program Year (other than Program Year 1) would be 12% instead of 15% (or .15 x [$40,000/$50,000], or .15 x .80, or 12). If the Fort Worth Supply and Service Spending Commitment i 1 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. 5.2.1.5. Fort Worth 1V1/W13)N: auAAIY auu ' CnPnrlinu (Un to 10% after Program Year 1 Except for the Program Grant payable in Program Year 1, each annual Program Grant shall include an amount that is based on the percentage by which the M/WBE Supply and Service Spending Commitment, as outlined in Section 4.7, was met (the NVVVBE Supply and Service Percentage"). The M/WBE Supply and Service Percentage will equal the product of ten percent (10%) multiplied by the percentage by which the M/WBE 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 M/WBE Companies by $35,000.00, which is the M/WBE Supply and Service Spending Commitment. For example, if only $21,000.00 in Supply and Service Expenditures were made with Fort Worth Certified M/WBE Companies in the previous calendar year, the M/WBE Supply and Service Percentage for the Program Grant payable in the following Program Year (other than Program Year 1) would be 6% instead of 10% (or .10 x [$21,000/$35,0001, or .10 x .60, or .06). If the NMBE Supply and Service Spending Commitment is met or exceeded in any given year, the NVWBE Supply and Service Percentage for the Program Grant payable in the following Program Year will be ten percent (10%). Calculation of the Program Grant payable for Program Year 1 does not include the NI/WBE Supply and Service Percentage because the M/WBE Supply and Service Commitment does not apply to the First Operating Year. 5.2.1.6. No Offsets. Page 17 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. 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 Developer failed to meet the I/WBE Supply and Service Spending Commitment by $5,000.00, but exceeded the Fort Worth Supply and Service Spending Commitment by $5,000.00, all Program Grants payable in the following year would still be reduced in accordance with Section 5.2.1.5 on account of Developer's failure to meet the M/WBE Supply and Service Spending Commitment. 5.2.2. Program Cap. Notwithstanding anything to the contrary herein, once the City has paid Developer aggregate Program Grants equal to the Program Cap, this Agreement shall terminate. If in any Program Year the amount of a Program Grant would cause the aggregate Program Grants paid by the City pursuant to this Agreement to exceed the Program Cap, the amount of the Program Grant payable in that Program Year shall equal the difference between the aggregate of all Program Grants paid by the City as of the previous Program Year and the Program Cap, and this Agreement shall terminate upon payment of such Program Grant. 5.2.3. Deadline for The first Program Grant payable hereunder (in other words, the Program Grant payable for Program Year 1) shall be paid by the City on or before June 1 of (i) the Second Operating Year or (ii) the First Operating Year if requested by Developer in writing within sixty (60) calendar days following the Completion Date and the City, taking into consideration its current fiscal year budget and following fiscal year budget planning, provides Developer with written consent to such request. Each subsequent annual Program Grant payment will be made by the City to Developer 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 shall come from currently available general revenues of the City and not directly from Development Real Property Tax Revenues, Development Personal Property Tax Revenues or Development Sales Tax Revenues. Developer understands and agrees that any revenues of the City other than those dedicated for payment of a given annual Program Grant pursuant to this 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 Developer. Page 18 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. 6. DEFAULT D TERMINATION ANFAILURE SY D 6.1. Failure to Complete Development. If Developer fails to expend or cause to be expended between the Effective Date and the Completion Date at least Fifty Million Dollars ($50,000,000.00) in Construction Costs for the Development, or if the Completion Date does not occur by the Completion Deadline, the City shall have the right to terminate this Agreement by providing written notice to Developer without further obligation to Developer hereunder. (020 Failure to Pay City Taxes. An event of default shall occur under this Agreement if any City taxes owed on the Development Property by Developer or an Affiliate or arising on account of Developer's or an Affiliate's operations on the Development Property become delinquent and Developer 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 shall notify Developer in writing and Developer shall have thirty (30) calendar days to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Developer and shall have all other rights and remedies that may be available to it under the law or in equity. 6.3. Violations of City Code, State or reaerai Law. An event of default shall occur under this Agreement if any written citation is issued to Developer or an Affiliate due to the occurrence of a violation of a material provision of the City Code on the Development Property or on or within any improvements thereon (including, without limitation, any violation of the City's Building or Fire Codes and any other 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 citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall occur under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that Developer or an Affiliate, or any successor in interest thereto; any third party with access to the Development Property pursuant to the express or implied permission of Developer or an Affiliate, or any a successor in interest thereto; or the City (on account of the Development or the act or omission of any party other than the City on or after the effective date of this Agreement) is in violation of any material state or federal law, rule or regulation on account of the Development Property, improvements on the Development Property or any operations thereon Page 19 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. (including, without limitation, any 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). Upon the occurrence of such default, the City shall notify Developer in writing and Developer shall have (i) thirty (30) calendar days to cure such default or (ii) if Developer has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time that the City reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Developer and shall have all other rights and remedies that may be available to under the law or in equity. 6.4. :F m If Developer fails to meet the Fort Worth Construction Commitment or the M/WBE Construction Commitment, or if Developer fails to meet the Fort Worth Supply and Service Spending Commitment or the M/WBE Supply and Service Spending Commitment in any given year, such event shall not constitute a default hereunder or provide the City with the right to terminate this Agreement, but, rather, shall 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 Developer fails to meet the Employment Goal in any given year, such event shall not constitute a default hereunder and shall not cause the amount of the Program Grant that the City is required to pay in the following Program Year to be reduced. 6.5. Failure to Submit Reports. Without limiting the application of Section 6.6, if Developer fails to submit any report required by and in accordance with Section 4.8, the City's obligation to pay any Program Grants at the time, if any, shall be suspended until Developer has provided all required reports. 6.6. General Breach. Unless stated elsewhere in this Agreement, Developer shall be in default under this Agreement if Developer breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement (or, if Developer 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 Page 20 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. faith), the City shall have the right to terminate this Agreement immediately by providing written notice to Developer. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Developer shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Developer shall have the exclusive right to control all details and day-to-day operations relative to the Development Property and any improvements thereon and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Developer acknowledges that the doctrine of respondeat superior will not apply as between the City and Developer, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Developer further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Developer. g. INDEMNIFICATION. DEVELOPER, 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 DEVELOPER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) DEVELOPER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE DEVELOPMENT AND ANY OPERATIONS AND ACTIVITIES THEREON OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. 9. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: city: Developer: Page 21 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. City of Fort Worth Attn: City Manager 1000 Throckmorton Fort Worth, TX 76102 with copies to: the City Attorney and Economic/Community Development Director at the same address 10. S FW River Plaza, L.P. Attn: Kerby Smith 1600 W. 7th Street, Suite 400 Fort Worth, TX 76102 with a copy to: Mark Bishop Kelly, Hart & Hallman, LLP 201 Main St., Suite 2500 Fort Worth, TX 76102 Developer may at any time assign, transfer or otherwise convey any of its rights or obligations under this Agreement to an Affiliate without the approval of the City so long as Developer, 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 Developer under this Agreement. Developer may also 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, provided that such financial institution or other lender first executes a written agreement with the City governing the rights and obligations of the City, Developer and the financial institution or other lender with respect to such security interest. Otherwise, Developer may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the City Council, which consent shall 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 Developer under this Agreement. Any attempted assignment without the City Council's prior consent shall constitute grounds for termination of this Agreement and following ten (10) calendar days of receipt of written notice from the City to Developer. Any lawful assignee or successor in interest of Developer of all rights under this Agreement shall be deemed "Developer" for all purposes under this Agreement. 11. REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations,amended bI Because this tAgreementand the Program City's Charter and ordinances, as Page 22 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Grants available hereunder were originally approved by the City Council on July 10, d b House 2007 (M&C C-22239), Chapter 2264 of the Texas Government Code, enacted y o Bill 1196 (80th Texas Legislature), which relates to restrictions on the use of certain public subsidies and became effective September 1, 2007, does not apply to this Agreement. 12. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities. 13. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 14. 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 shall 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 shall be construed in accordance with the laws of the State of Texas. 15. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 16. 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, inclement weather, 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 shall be excused from doing or performing the same during such period of delay, so that the time period applicable to Page 23 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. such design or construction requirement shall 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 Developer's failure to obtain adequate financing to complete the Development by the Completion Deadline shall not be deemed to be an event of force majeure and that this Section 16 shall not operate to extend the Completion Deadline in such an event. 17. SEVERASILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 18. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. 19. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. 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 Developer, and any lawful assign and successor of Developer, 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. 21. COUNTERPARTS. This Agreement maybe executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. Page 24 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. EXECUTED as of the last date indicated below: CITY OF FORT WORTII0 By: Fernando Costa Assistant City Manager d by: J. FW RIVER PLAZA, L.P.: By: Trademark River Plaza, L.P., a Texas limited partnership and its sole general partner: a� y: TRP Genpar, L.L.C., a Texas limited liability company °oaQly� and its sole general partner: 0�y i o ,ZRick Knight no a Chief Financial Officer op0 ,q, u� Date: Let, 1 APPROVED AS TO FORM AND LEGALITY: B y — Peter Vaky Deputy City Attorney M&C: C-22239 07-10-07; C-25124 08-23-11 OFFICIAL RECORC CITY �ECRET'AR�' FI WORTS., Page 25 Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of LI , 2012, b Fernando Costa Assistant City Manager of the City of For Worth on be alf of the City of Y Y g Y Y Fort Worth. the State of Texas EUONIA DANIELS MY COMMISSION EXPIRES July 10, 2013 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the q+lday of Ma , 2012, by Rick Knight, Chief Financial Officer of TRP Genpar, L.L.C., as general partner of Trademark River Plaza, L.P., as general partner of FW River Plaza, L.P., a Texas limited partnership, on behalf of said limited partnership. MONICA IUERA Notary Public, State of Texas My Commission 2Oixpires July 19, Notary in and for the State of Texas OFFICIAL RECORD CIiY SECRETARY WORTH, TX Page 26 Amendment No. 1 to Economic Development Program Agreement Beriveen City of Fort Wor[h and FW River Plaza, L.P. EXHIBITS "A" —Description and Map Depicting the Development Property "B" —Depiction and Description of Development Amendment No. 1 to Economic Development Program Agreement between City of Fort Worth and FW River Plaza, L.P. Exhibit "A" TRACT 1: BEING A PART OF LOT 3-A-4, BLOCK 1, RIVER PLAZA COMPLEX, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the plat in Volume 388431, Page 5, Deed Records, Tarrant County, Texas, and more particularly described as follows: BEGINNING at a 1/2" iron pin for the most Northwesterly corner of said Lot 3-A-4, at the intersection of the Easterly line of Old University Drive and the centerline of Merimac Circle (a Firelane, Emergency Access, and Utility Easement); THENCE South 65 degrees, 29 minutes East along the Northerly line of said Lot 3-A-4 and the Westerly line of Lot 3-A4, in said Block 1, South 24 degrees, 31 minutes West 323.0 feet to a railroad spike for the beginning of a curve to the left, having a radius of 169.01 feet; then along said curve 69.02 feet to a railroad spike for the most Southwesterly corner of said Lot 3-A-1; THENCE North 65 degrees, 52 minutes West 140.46 feet to a 1/2" iron pin for corner in the Westerly line of said Lot 3-A4 and the Easterly line of University Drive; THENCE along said Westerly line of Lot 3-A-4 and said Easterly line of University Drive, North 13 degrees, 42 minutes East 32.29 feet to a 1/2" iron pin, North 15 degrees, 15 minutes East 50.0 Feet to a 1/2" iron pin, North 16 degrees, 50 minutes East 50.0 feet to a 1/2" iron pin, North 18 degrees, 24 minutes East 50.0 feet to a 1/2" iron pin, North 19 degrees, 58 minutes East 50.0 feet to a 1/2" iron pin, North 21 degrees, 32 minutes East 50.0 feet to a 1/2" iron pin, North 24 degrees, 40 minutes East 50.0 feet to an "X" cut in concrete, and North 26 degrees, 14 minutes East 10.6 feet to the POINT OF BEGINNING. SAVE AND EXCEPT that portion of above described tract conveyed to Tarrant Bank by Warranty Deed dated October J 1988 and recorded in Volume 9402, Page 294, Deed Records, Tarrant County, Texas FURTHER SAVE AND EXOTM7 that portion of above described tract platted as Lot 3-A-1-A, Block 1, RIVER PLAZA COMPLEX, an Addition to the City of Fort Worth, Tarrant County, Texas, according to Plat recorded in Cabinet A, Slide 319, Plat Records, Tarrant County, Texas. TRACT 2: Lot 3-A-1, Block 1, RIVER PLAZA COMPLEX, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the Plat recorded in Volume 388-131, Page 5, Deed Records, Tarrant County, Texas. SAVE AND EXCEPT that portion of above described tract platted as Lot 3-A4-A, Block 1, RIVER PLAZA COMPLEX, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the Plat recorded in Cabinet A, Slide 319, Plat Records, Tarrant County, Texas. TRACT 3: Lot 3-A-I-A, Block 1, RIVER PLAZA COMPLEX, an Addition to the City of Fort Worth, Tarrant County, Texas, according to Plat recorded in Cabinet A, Slide 319, Plat Records, Tarrant County, Texas. SAVE AND EXCEPT that portion of above described tract conveyed to Bank One, Texas, N.A. by Substitute Trustee's Deed dated June 2, 1992 and recorded in Volume 10664, Page 1009, Deed Records, Tarrant County, Texas, and refilled in Volume 10785, Page 31, Deed Records, Tarrant County, Texas. [MAP INCLUDED ON FOLLOWING PAGE] F c r` w' F` rtr t .z� R � • �4' or 1, T Ida c !�. ION tintry '^�,. �\• . t_ t w r 1I �. �' gyp �{ * - �+�. �.. ��, $e nr � P c r r ' ' MILLm td! '� • P � , � i�r Pr.. rT P a �w o' ,n ' err 1, 'Y ._ . �. eF:` P owl IMP le, 4LI At IV rr it III 14f 4� �T �111L�• \A•+`. 1, IL . EXHIBIT "A" River Plaza Redevelopment Project Plan Project Description: Construction of a mixed -use development consisting of a parking garage, retail space, commercial office space, and a hotel within the attached site plan. (Attachment A) Trademark Property Company intends to construct the following; • Structured Parking Garage with 700 spaces • Approximately 80,000 square feet of Retail Space • Approximately 100,000 square feet of Commercial Office Space • Approximately 50,000 square feet of Hotel Trademark Property has purchased approximately 6.7523 acres of land in the vicinity of the intersection of University Drive and River Run. City of Fort Worth owned approximately 1.9 acres adjacent to the River Plaza Office Building which was also purchased by Trademark Property to reconfigure access to and egress from the Development Property, the demolition of existing structures on the Development Property and the need to construct a parking garage in order to make the Development denser. Project benefits include: • Bringing dormant property onto tax rolls • Increase real property tax revenue • Increase personal property tax revenue • Increase sales tax • Increase hotel occupancy tax • Improve access to the Trinity River • Visually impact University corridor Exhibit "D" [DEPICTION AND DESCRIPTION OF DEVELOPMENT ON FOLLOWING PAGE] t �. � Retail Q Retail Plaza iQ Teaser Parking 0 Office © Office Lobby Q Service 0 Restaurant © Q Water Feature Hotel Plaza 0 Hotel Q Hotel Lobby � Outdoor Seating © Parking Entrance � Parking Garage Entrance Q Retail Paseo /� � EXHIBIT"B" 1 1 f