HomeMy WebLinkAboutContract 48085-A2CSC No. 48085-A2
AMENDMENT NO.2 TO
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
(CITY SECRETARY CONTRACT NO. 48085)
This Amendment No. 2 to Economic Development Program Agreement ("Second Amendment")
is made and entered into by and between the CITY OF FORTWORTH ("City"), a home -rule municipal
corporation organized under the laws of the State of Texas, and ROANOKE 35/114 PARTNERS, L.P., a
Texas limited partnership ("Company").
The following introductory provisions are true and correct and form the basis of this Second
Amendment:
A. Company is the developer of a mixed -use development (consisting of retail, office, and
residential uses) underway on approximately 279 acres of vacant land in the vicinity of the southwest corner
of Interstate Highway 35W and State Highway 114.
B. City and Company are currently parties to an Economic Development Program Agreement,
whereby Developer agreed to, among other things, complete the mixed -use development in two phases by
certain deadlines, in return for up to fifteen annual Program Grants from the City, as authorized by Chapter
380 of the Texas Local Government Code, the same being City Secretary Contract ("CSC") Number 48085.
C. On or about June 24, 2019, City and Company amended CSC 48085 to extend the Phase I
and Phase II Completion deadlines, increase the Phase I Construction Costs, reduce the Commercial/Retail
square footage requirements for the Phase I and Phase II Improvements, and increase the Class A Office
Space square footage requirements for the Phase II Improvements, the same being CSC 48085-Al (CSC
Nos. 48085 and 48085-AI are collectively referred to as the "Agreement").
D. Due to the impacts of COVID-19 and significant changes in market demand since the
parties executed the Agreement, Company has requested a second amendment to the Agreement that revises
the scope of the Phase I Improvements to reduce the total square footage of Commercial/Retail space from
300,000 to 100,000 and increase the Construction Costs for the Phase I Improvements from $120 million
to $150 million.
E. As consideration for revising the Phase I Improvements and associated Construction Costs,
City and Company desire to remove all requirements and obligations concerning Phase II of the
Development, including the construction of the Phase II Improvements and any 380 Grants associated
therewith.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are acknowledged, City and Company agree as follows:
1) The Recitals set forth above are true and correct and form the basis upon which the City and Company
have entered into this Second Amendment.
2) Section 2 of the Agreement pertaining to the Phase I Improvements and Development Sales Tax
Revenues are amended to read as follows:
"Phase I Improvements means the following minimum improvements constructed on the
Development Property: (i) at least 100,000 square feet of Commercial/Retail space and (ii)
Residential Units comprising at least 100,000 square feet of aggregate living, garage,
OFFICIAL RECORD
Amendment No. 2 to CSC 48085 CITY SECRETARY
Economic Program Development Agreement with Roanoke 35/144 Partners, LP 1 of s
FT. WORTH, TX
private patio, or balcony and interior common area space, plus any of the Public
Infrastructure Improvements that Company elects to construct in connection therewith."
"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 within the area of the Phase I Improvements of the Development
Property; provided, however, that Development Sales Tax Revenues specifically excludes
all revenues from (a) the Crime Control and Prevention 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; (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; and (c) taxes collected
by Development Property Users on Sales transacted outside the area of the Phase I
Improvements of the Development Property. 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 (1%) 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 %)."
3) Section 4.2 (Improvements for Phase I) is amended to read as follows:
"4.2. Improvements for Phase I.
By the Phase I Completion Date, Company must have expended or caused to be
expended at least One Hundred Fifty Million Dollars and Zero Cents ($150,000,000.00) 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 the Phase issued by the City in accordance with Section 5 (collectively, the
"Phase I Improvement Commitment"). Subject to all extensions of time allowed under
Section 18 of 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) All references to Phase 11 of the Development in the Agreement are hereby deleted and considered null
and void, which includes, but are not limited to, the following sections of the Agreement:
a) Section 2, Definitions
i) Completion Deadline
(1) Reference to Phase II Completion Deadline
ii) Development
(1) Reference to Phase II Improvements
iii) Phase
(1) Reference to Phase II Improvements
iv) Phase II Completion Date (in its entirety)
v) Phase II Completion Deadline (in its entirety)
Amendment No. 2 to CSC 48085
Economic Program Development Agreement with Roanoke 35/144 Partners, LP 2 of 5
vi) Phase II Improvements (in its entirety)
vii) Phase II Improvement Commitment (in its entirety)
viii) Program Cap
(1) Subsection (b) (in its entirety)
ix) Public Infrastructure Improvements
(1) Reference to Phase II Improvements
x) Tenant Improvement Costs
(1) Reference to Phase II Improvements
b) Section 4.1, Revisions to Site Plan for Phases I and II
i) References to the Phase II Improvements and Phase II Completion Date
c) Section 4.3, Improvements for Phase II (in its entirety)
d) Section 4.4, Construction Spending Commitment for Fort Worth Companies
i) Reference to Phase II Improvements
e) Section 4.4.2, For Phase II (in its entirety)
f) Section 4.5, Construction Spending Commitment for Fort Worth Certified M/WBE Companies
i) Reference to Phase II Improvements
g) Section 4.5.2, For Phase II (in its entirety)
h) Section 4.9.1, Notices of Completion and Final Construction Reports
i) References to Phase B Completion Date and Phase II Improvement Commitment
i) Section 4.10, Audits
i) Reference to the Phase II Improvements
j) Section 4.12, Public Infrastructure Improvements
i) Reference to Phase II Improvement Commitment
k) Section 5, Certificates of Completion for Each Phase
i) References to the Phase II Improvement Commitment
1) Section 6, Program Grants
i) Reference to the Phase II Improvement Commitment
m) Section 6.1.2, Fort Worth Construction Cost Spending (Up to 25% for Program Year 1; Up to 10%
Thereafter)
i) References to Phase II Improvement Commitment and Phase 11 Completion Date
n) Section 6.1.3, Fort Worth M/WBE Construction Cost Spending (Up to 25% for Program Year 1;
Up to 10% Thereafter)
i) References to the Phase II Improvement Commitment and Phase II Completion Date
o) Section 6.2, Program Cap
i) References to the Phase II Improvement Commitment
p) Section 7.1, Failure to Complete Phase I
i) Reference to the Phase II Improvement Commitment
5) City and Company acknowledge that Company will be entitled to receive from the City ten (10) annual
Program Grants based on the formula set forth in the Agreement and this Second Amendment.
Furthermore, City and Company acknowledge that the Program Cap will equal $12,934,487, gross.
6) All terms in this Second Amendment that are capitalized but not defined have the meanings assigned
to them in the Agreement.
7) All terms and conditions of the Agreement that are not expressly amended pursuant to this Second
Amendment remain in full force and effect.
Amendment No. 2 to CSC 48085
Economic Program Development Agreement with Roanoke 35/144 Partners, LP 3 of 5
8) This Second Amendment may be executed by electronic signature, which will be considered as an
original signature for all purposes and have the same force and effect as an original signature. For these
purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file
or facsimile transmission) of an original signature, or signatures electronically inserted via software
such as Adobe Sign.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples.
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
By: wiillai�hnson Fe ,,202CST) of this contract, including ensuring all
William Johnson performance and reporting requirements.
Assistant City Manager
Date: February7 2023
APPROVAL RECOMMENDED:
By:
Robert Sturns
Director, Economic Development
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By: l//l
Jannette Goodall
City Secretary
ROANOKE 35/114 PARTNERS, LP
a Texas limited partnership
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By: Michael Hennig (Aug 19, 2022 13:03 CDT)
Michael Hennig
Economic Development Manager
APPROVED AS TO FORM AND LEGALITY:
By. � uJ.�
Tyler F. Wallach
Assistant City Attorney
CONTRACT AUTHORIZATION:
M&Cs: G-18484 (May 19, 2015); G-19494 (March
5, 2019); 21-0491 (June 22, 2021)
Form 1295: 2016-97418; 2019-449629;
By: Roanoke 35/114 Genpar, LLC
a Texas limited liability company,
its General Partner
BY: / t 0
�
-lk",
Name: illiam Boecker
Title: Manager
, OFFICIAL RECORD
2022 Date: / CITY SECRETARY
r FT. WORTH, TX
Amendment No. 2 to CSC 48085
Economic Program Development Agreement with Roanoke 35/144 Partners, LP 4 of 5
Exhibit A
Description and Map Depicting the Development Property
Development Property L
Amendment No. 2 to CSC 48085
Economic Program Development Agreement with Roanoke 35/144 Partners, LP 5 off-,
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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 ROANOKE 3S/114 PARTNERS, L.P. ("Company"), a Texas limited partnership.
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 is the developer of approximately 279 acres of vacant land in
the vicinity of the southwest corner of Interstate Highway 35 and State Highway 114 (the
"Development Property"), as more specifically depicted and described in the site plan
map set forth in Exhibit "A", attached hereto and hereby made a part of this Agreement
for all purposes. Company has sold portions of the Development Property to third party
land purchasers for development in accordance with this Agreement, and approximately
43.791 acres of the Development Property is being developed separately by Tanger Fort
Worth, LLC. The remainder of the Development Property remains vacant land.
Company, either itself or through an Affiliate or third party land purchasers, wishes to
construct a mixed use development consisting of retail, office, and residential uses
comprising a total of approximately 1,985,000 square feet on the Development Property
in three phases. As more specifically set forth herein, this Agreement covers only the
first two phases of the development of the Development Property. The City is not
providing Company with any kind of economic development incentive under this
Agreement for the third phase or any subsequent phases.
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, office, and other
development of the Development Property and in its vicinity.
Page I
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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
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 `1380
Program").
D. The City Council has determined that the 380 Program is an appropriate
means to achieve the construction of this 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
Development 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 400,000 square feet of new retail space that is being undertaken by
Tanger Fort Worth, LLC or an affiliate thereof on land that is adjacent to the
Development Property (the "Tanger Development"). The City has agreed to provide
separate economic development program grants under the 380 Program for the Tanger
Development. Nevertheless, the City Council has determined that the benefits to the City
that will result from this Development will significantly be enhanced by the Tanger
Development. In addition, the City would not be entering into this Agreement but for the
enhancements brought by the Tanger Development in conjunction with the development
of the Development Property, as described herein.
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:
Page 2
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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.
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 PereentaRe has the meaning ascribed to it in Section 6.1.1.
Certificate of Completion has the meaning ascribed to it in Section 5.
Commercial/Retail means Class A office space or 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), and travel center/convenience store. Commercial/Retail space
includes any accessory areas, service corridors, management offices, or customer facilities
that are incidental to and/or used for Commercial/Retail use.
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 Assitnment 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
Page 3
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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 Improvements that Company elects to construct in accordance with
this Agreement; and financing costs, including capitalized interest.
Development means 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, including the property
owner, and any employee, agent, Tenant, or invitee thereof, that has the legal right to use
or occupy or to 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 Iess than a one percent (1%)
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
LIP 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 4.6.
First Oneratine Year means the first full calendar year following the year in
which the Phase I Completion Date occurs.
Page 4
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
Fort Worth Certified M/WBE 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
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 4.4.
Fort Worth Construction PercentaLye 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 4.7.
Full-time Equivalent Job means a job 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 includes Tenant Improvement Costs and any
Construction Costs expended for the Development by third parties other than Company
and its contractor and subcontractors.
Page 5
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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.
M/WBE Construction Commitment has the meaning ascribed to it in Section
4.5.
M/WBE Construction Percentage has the meaning ascribed to it in Section
6.1.3.
M/WBE 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 4.8.
Notice of Completion has the meaning ascribed to it in Section 4.9.1.
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 Commercial/Retail portion of the Phase I Improvements has received at
least a temporary certificate of occupancy for shell building space issued by the City; (ii)
all occupiable space for Residential Units has received a temporary or final certificate of
occupancy issued by the City for residential operations; and (iii) the punch list or lists 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
4.2.
Phase I Improvements means the following minimum improvements constructed
on the Development Property: (i) at least 500,000 square feet of Commercial/Retail space
and (ii) Residential Units comprising at least 100,000 square feet of aggregate living,
garage, private patio or balcony and interior common area space, 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 Commercial/Retail portion of the Phase II Improvements has received at
least a temporary certificate of occupancy for shell building space issued by the City; (ii)
all occupiable space for Residential Units has received a temporary or final certificate of
occupancy issued by the City for residential operations; and (iii) the punch list or lists for
Page 6
Economic Development Program Agreement
between City of Port Worth and Roanoke 35/114 Partners, L.P.
the Public Infrastructure Improvements portion of the Phase II Improvements to satisfy
the Phase II Improvement Commitment has been completed and signed by both an
authorized 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
4.3.
Phase II Improvements means the following minimum improvements
constructed on the Development Property, excluding the Phase I Improvements: (i) at
least 500,000 square feet of Commercial/Retail space; (ii) at least 200,000 square feet of
Class A office space; and (iii) Residential Units comprising at least 300,000 square feet
of aggregate living, garage, private patio or balcony and interior common area space, plus
any of the Public Infrastructure Improvements that Company elects to construct in
connection therewith.
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 Twelve Million Nine Hundred Thirty-four
Thousand Four Hundred Eighty-seven Dollars ($12,934,487.00), gross.
(b) If both the Phase I Improvement Commitment and Phase 1I 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 of Thirty-one Million Four Hundred Seventy
Thousand Six Hundred Fourteen Dollars ($31,470,614.00), 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 fiends 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).
Page 7
Economic Development Program Agreement
between City of Port Worth and Roanoke 35/114 Partners, L.P.
Public Infrastructure Improvements means that public infrastructure related to
or necessary for the Development. The Public Infrastructure Improvements portion of
the Phase I Improvements is outlined in Exhibit "B" attached hereto and hereby made a
part of this Agreement for all purposes. The Public Infrastructure Improvements portion
of the Phase II Improvements will be those public improvements described in a
Community Facilities Agreement to be submitted by Company and approved by the City
prior to commencement of construction of any portion of the Phase II Improvements.
Records has the meaning ascribed to it in Section 4.10.
Residential Units means residential rental apartments only and, without
limitation, does not include residential condominiums.
Sales means all sales of merchandise (including gift and merchandise
certificates), food, alcohol, gasoline, services and other receipts whatsoever of all
business conducted in, on or from the Development Property, whether cash, credit, or
bitcoin, 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, 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 fixtures.
Second Operatine 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 Property and any improvements
thereon, 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.
Tamer Development has the meaning ascribed to it in Recital F—
Tanner EDPA means that certain Economic Development Program Agreement by
and between the City and Tanger Fort Worth, LLC pertaining to the Tanger Development,
which Agreement is a public document on file in the City Secretary's Office as City
Secretary Contract No. 48084, as may subsequently be amended or assigned.
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 for 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 Roanoke 35/114 Partners, L.P.
to, architectural, contractor, engineering and design fees, building materials and work on
a Tenant's behalf, electrical and lighting, plumbing, fire protection and sprinklers, IIVAC
work, storefront and glazing, demolition, barricades and staging, and any 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 Phase I Improvements and the Phase II
Improvements, but outside of the Tenant's premises, pursuant to the Tenant's lease,
including, but not limited to, common areas.
Term has the meaning ascribed to it in Section 3.
Third Operating Year means the third frill 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. Revisions to Site Plan for Phases I and II.
The site plan map attached hereto as Exhibit "A" depicts the portions of
the Development Property on which each phase of the Development is intended to
be located. Company may revise this site plan map at any time after the Effective
Date of this Agreement by notifying the City in writing and providing the revised
site plan map with such written notice, in which case this Agreement will be
amended by substituting that revised site plan map as a new Exhibit "A".
Notwithstanding the foregoing, Company may not revise the site plan with respect
to the Phase I Improvements after the Phase I Completion Date or with respect to
the Phase II Itprovements after the Phase II Completion Date.
4.2. Improvements for Phase I.
By the Phase I Completion Date, Company must have expended or caused
to be expended at least Sixty Million Dollars ($60,000,000.00) 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
Page 9
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
extensions of time allowed under Section 18 of this Agreement, if the Phase I
Improvement Commitment is not met, a default will occur under this Agreement,
and Section 7.1 will apply.
4.3. Improvements for Phase II.
By the Phase II Completion Date, Company must have expended or
caused to be expended at least One Hundred Thirteen Million Dollars
($113,000,000.00) in Construction Costs for the Phase II Improvements, and the
Phase 11 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 Agreement, but (i) the number of annual Program Grants
payable by the City hereunder will be capped at ten (10), as outlined in Section 6,
and (ii) the Program Cap will not be increased as provided in the definition of that
term in Section 2.
4.4. Construction Spending Commitment for Fort Worth Companies.
Company, either itself, or through an Affiliate, Development Property
User, or a general contractor, must make or cause to be made the following
minimum expenditures in Hard Construction Costs with Fort Worth Companies
for the Phase I Improvements and the Phase II Improvements (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.
4.4.1. 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 the Hard Construction Costs, with Fort Worth Companies,
4.4.2. 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,
Page 10
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
regardless of the total amount of such Hard Construction Costs, with Fort
Worth Companies.
4.5. Construction SpendinLy Commitment for Fort Worth Certified
M/WBE Companies.
Company, either itself or through an Affiliate, Development Property
User, or a general contractor, must make or cause to be made the following
minimum expenditures in Hard Construction Costs with Fort Worth Certified
M/WBE Companies for the Phase I Improvements and the Phase 11 Improvements
(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 4.4. 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 Certified M/WBE Companies will be
counted toward the M/WBE Construction Commitment regardless of whether the
general contractor of such subcontractors is itself a Fort Worth Certified M/WBE
Company.
4.5.1. 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 the Hard Construction Costs, with Fort Worth Certified
M/WBE Companies.
4.5.2. For Phase II.
If the Phase II Improvement Commitment is
Construction Commitment will increase, as follows:
Completion Date, Company must have expended
expended at least twenty-five percent (25%) of the
Construction Costs for the Phase I Improvements
Improvements, regardless of the total amount of the
Costs, with Fort Worth Certified M/WBE Companies.
Page 11
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
met, the M/WBE
By the Phase II
or caused to be
sum of all Hard
and the Phase I1
Hard Construction
4.6. Emplovment Goal.
Throughout the Second Operating Year and each calendar year thereafter,
Company will use commercially reasonable efforts to cause at least two hundred
fifty (250) Full-time Equivalent Jobs to be provided on the Development
Property, whether by Company, or one or more Development Property Users (the
"Employment Goal').
4.7. Sunnly 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").
4.8. Supply and Service Spending Commitment for Fort Worth Certified
M/WBE 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 M/WBE Companies (the "M/WBE Supply and Service Spending
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 Supply and Service Spending Commitment outlined in Section 4.7.
4.9. Reports and Filings.
4.9.1. Notices of Completion and Final Construction Reports.
Within thirty (30) calendar days following either the Phase I
Completion Date or the Phase II 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 thirty (30) calendar days following the Completion Deadline for the
Phase covered by the Notice, with the understanding that no Construction
Costs expended after the Completion Deadline for the Phase in question
will be counted for purposes of calculating whether the Phase I
Improvement Commitment or the Phase II Improvement Commitment, as
the case may be, or the Fort Worth Construction Commitment or the
M/WBE Construction Commitment for the Phase in question, were met.
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 II Improvement Commitment, as applicable; (ii) assess the extent to
which Company met the Fort Worth Construction Commitment and the
Page 12
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, LP.
M/WBE 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 in a form
reasonably acceptable to the Director 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 reasonably 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 M/WBE Companies, together with supporting invoices and any
other documents necessary to demonstrate that such amounts were
actually paid to such contractors. Improvements constructed on the
Development Property that do not at least have a temporwy certificate 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 for purposes of determining
whether the Phase I Improvement Commitment has been met or
assessing the extent to which the Fort Worth Construction Commitment
or the M/WBE Construction Commitment applicable to Phase I was
met; however, those Construction Costs will be considered by file City in
its evaluation as to whether the Phase HImprovenrent Commitment was
met, as well as the extent to which the Fort Worth Construction
Commitment and the M/WBE Construction Commitment applicable to
Phase II were met, so long as those improvements at least have a
temporary certificate of occupancy issued by the Phase II Completion
Date.
4.9.2. Annual Sales Tax Report.
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
required by this Section 4.9.2, 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
aggregate amount of sales tax paid to the Comptroller by Development
Property Users during the previous year (the "Aggregate Development
Property Sales Tax Payments"); (ii) a copy of the sales tax reports filed
with the Comptroller ("Comptroller Reports") verifying Aggregate
Development Property Sales Tax Payments; and (iii) a list containing the
retail site address of and sales tax identification number of each
Development Property User. Company must keep and maintain or cause
to be kept and maintained copies of all Comptroller Reports from
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Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
Development Property Users for at least seven (7) years following the end
of the year to which such Comptroller Reports relate and ensure that such
Comptroller Reports can be made available to the City for inspection
pursuant to and in accordance with Section 4.10 of this Agreement. If
Company cannot obtain Comptroller Reports or any other Sales data from
any given Development Property User, Company's provision of the list set
forth in (iii) above will satisfy Company's reporting requirements with
respect to such Development Property User for the year in question.
Company understands and agrees that the City's calculation of
Development Sales Tax Revenues in a given year will be based solely on
(i) the Aggregate Development Property Sales Tax Payments as verified
by the Comptroller Reports plus (H) any additional sales tax payments
made by Development Property Users in such year, as reflected on
Comptroller Reports, that the City is reasonably able to ascertain, in the
City's sole but reasonable judgment, are attributable to Sales on the
Development Property.
4.9.3. Annual Supp1v and Service Snendinif Report.
On or before February 1 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
with Fort Worth Companies and with Fort Worth Certified M/WBE
Companies, together with supporting invoices and any other documents
requested by City reasonably necessary to demonstrate that such amounts
were actually paid.
4.9.4. Annual Emplovment Report.
On or before February l of the Second Operating Year and of each
year thereafter, in order for the City to assess the degree to which 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.
Page 14
Economic Development Program Agreement
between City of Port Worth and Roanoke 351114 Partners, L.P.
4.10. 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 one 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 Phase I Improvements and the Phase II Improvements
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"). Company must
make all Records available to the City (i) at Company's offices in the City or (ii)
electronically, or (iii) at another location mutually acceptable to both parties
following at least 30 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 to complete
an audit of such records in accordance with this Agreement or as otherwise
required by law.
4.11. 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.
4.12. 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 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 4.12, 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 II Improvement Commitment.
Page 15
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
5. CERTIFICATES OF COMPLETION FOR EACH PHASE.
Within ninety (90) calendar days following receipt by the City of a Notice of
Completion submitted by Company in accordance with Section 4.9.1, 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 1I
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 M/WBE 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 11 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 4.9.1 for the City's
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 Phase 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
ten (10) annual Program Grants. If both the Phase I Improvement Commitment and the
Phase 11 Improvement Commitment were met, Company will be entitled to receive from
the City five (5) additional annual Program Grants, for an aggregate of fifteen (15) annual
Program Grants. 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 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.
Page 16
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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 M/WBE
Construction Percentage, as defined in Sections 6.1.1, 6.1.2 and 6.1.3,
respectively, plus, to the extent applicable, the Foil Worth Supply and Service
Percentage and the M/WBE Supply and Set -vice 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%).
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 5.1,
each Program Grant will include fifty percent (50%) of the Program
Source Funds (the "Base Grant Percentage").
6.1.2. Fort Worth Construction Cost Spending (Up to 25% for
ProLyram Year 1, Uv 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 4.4, was met (the "Fort Worth Construction
Percentage"). In accordance with Section 4.4.2, if the Phase II
Improvement Commitment is met, the Fort Worth Construction
Percentage will be recalculated for purposes of all Program Grants payable
after the Phase II Completion Date. The Fort Worth 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 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 4.4. 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 $9,000,000.00 (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
Page 17
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
Phase I Completion Date, the Fort Worth Construction Percentage for the
Program Grant payable in Program Year 1 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
and until the Fort Worth Construction Commitment is recalculated in
accordance with Section 4.4.2, 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 (25e/) 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 SpendinE (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 M/WBE Construction Commitment, as
outlined in Section 4.5, was met (the "M/WBE Construction
Percentage"). In accordance with Section 4.4.2, if the Phase II
Improvement Commitment is met, the M/WBE Construction Percentage
will be recalculated for purposes of all Program Grants payable after the
Phase 11 Completion Date. The M/WBE 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 M/WBE Construction Commitment was met, which will be
calculated by dividing the actual Hard Construction Costs expended with
Fort Worth Certified M/WBE Companies by the Phase I Completion Date
by the number of dollars comprising the M/WBE Construction
Commitment, as determined in accordance with Section 4.5. The M/WBE
Construction Percentage for all subsequent annual Program Grants will
equal the product of ten percent (10%) multiplied by the percentage by
which the applicable M/WBE 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 M/WBE
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 M/WBE Companies by the Phase I
Completion Date, the M/WBE 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 M/WBE
Construction Percentage for all subsequent Program Grants until the
M/WBE Construction Commitment is recalculated in accordance with
Section 4.5.2 would be 8% instead of 10% (or .10 x [$6 million/$7.5
Page 18
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
million], or .10 x .80, or .08). If the applicable M/WBE Construction
Commitment is met or exceeded, the M/WBE 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.
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 4.7, 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
[$45,000/$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 M/WBE 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 M/WBE Supply and Service Spending
Commitment, as outlined in Section 4.8, was met (the "M/WBE Supply
and Service Percentage"). The M/WBE Supply and Service Percentage
will equal the product of fifteen percent (15%) 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 $25,000.00, which is the
M/WBE Supply and Service Spending Commitment. For example, if only
$17,500.00 in Supply and Service Expenditures were made with Fort
Page 19
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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 10.5%
instead of 15% (or .15 x [$17,500/$25,000], or .15 x .70, or .105). If the
M/WBE Supply and Service Spending Commitment is met or exceeded in
any given year, the M/WBE 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 M/WBE Supply and Service Percentage
because the M/WBE 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 M/WBE 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 M/WBE
Supply and Service Spending Commitment.
6.2. Program Cain.
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 will 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 Pavments 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
Page 20
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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
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 be 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 I.
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 6.2.
7.2. Failure of Tanger Development to Meet Phase I Improvement
Commitment Under Tanker EDPA (Minimum $70 Million in
Construction Costs by December 31, 2018).
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
Tanger Development that is intended to be constructed on land adjacent to the
Development Property. Accordingly, notwithstandirre anvthine to the contrary
herein, even if the Phase IImprovement Commitment is met hereunder, if the
Citv cannot also verify as of the Phase I Completion Deadline (subject to anv
extensions of time allowed pursuant to this Agreement and/or the Tangier
EDPA, as applicable), that the Phase I Improvement Commitment under the
Tangier EDPA ivas met finermine that at least Seventv Million Dollars
($70,000,000.00) in Construction Costs were expended for the Phase I
Improvements under the Tangier EDPA by the Phase I Completion Date under
the Tanger EDPA, subject to arty extensions of time allowed pursuant to
Section 18 of the Tanker EDPAI, the Citv will have the right to terminate this
Agreement intrnediateli, by providine written notice to Company without further
obligation to Conrpanv hereunder. For purposes of this Section 7.2, the City's
verification of Construction Cost expenditures for the Tanger Development will
be made solely in accordance with and is subject to the terms and conditions of
the Tanger EDPA. Company understands and agrees that the City's verification
Page 21
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
of Construction Cost expenditures for the Tanger Development under the Tanger
EDPA will be subject to various reporting requirements by Tanger Fort Worth,
LLC, affiliates thereof or third parties, and that the City will have no obligation to
pursue any legal remedy or enforcement action under the Tanger EDPA if Tanger
Fort Worth, LLC, affiliates thereof or any third parties fail properly to report
Construction Cost expenditures for the Tanger Development or fail to maintain or
allow review of financial or business records in accordance with the Tanger
EDPA that are necessary for the City to verify such Construction Cost
expenditures. Company hereby represents to the City that it has reviewed the
Tanger EDPA and that it understands the provisions of the Tanger EDPA. The
term "Construction Costs" for purposes of the Tanger Development will have the
same meaning as that set forth in the Tanger EDPA. Notwithstanding the
foregoing, any default by Tanger Fort Worth, LLC or its successors or assigns,
other than the failure to expend at least Seventy Million Dollars ($70,000,000) in
Construction Costs for the Phase I Improvements by the Phase I Completion Date
under the Tanger EDPA, shall have no effect on this Agreement or its
effectiveness and will not give the City any rights to terminate this Agreement.
7.3. Failure to Pay Citv 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 (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 of other land or waters which is attributable to
Page 22
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L,P,
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 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; 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 will notify Company in writing and Company will have
(1) 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 Property or any portion thereof that
is then owned by Company; (ii) the involuntary conveyance to a third party of the
Development Property or any portion thereof that is then owned by Company;
(iii) execution by Company or an Affiliate of a deed in lieu of foreclosure of the
Development Property; or (iv) the appointment of a trustee or receiver for the
Development Property or any portion thereof that is then owned by Company.
7.6. Failure to Submit Reports.
If Company fails to submit any report required by and in accordance with
Section 4.9, the City will provide written notice to Company. If Company fails to
Page 23
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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. Knowing 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 of a
violation under 8 U.S.C. Section 1324a(l) (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 offour 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 $10,000 + [5 x ($10,000 x 0.04)], which is $12,000. 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 M/WBE 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 Roanoke 35/114 Partners, L.P.
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.
A 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 a 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 sipeNor 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 Roanoke 35/114 Partners, L.P.
9. INDEMNIFICATION.
COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND,
INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTSAND
EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS,
ACTIONS, COSTS AND EXPENSES OF ANY FIND, 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) AND/OR PERSONAL INJURY, INCLUDING
DEATH, THAT MAYRELATE 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.
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, postage prepaid, or by hand delivery:
City:
City of Fort Worth
Attn: City Manager
Fort Worth, TX 76102
1000 Throclunorton
Fort Worth, TX 76102
with copies to:
the City Attorney and
Economic/Community Development
Director at the same address
11. ASSIGNMENT AND SUCCESSORS.
Company:
Roanoke 35/114 Partners, L.P.
Attn: William V. Boecker
201 Main Street, Suite 3100
Fort Worth, TX 76102
with copy to:
Kelly Hart & Hallman, LLP
201 Main Street, Suite 2500
Fort Worth, TX 76102
Attention: Patricia F. Meadows
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
Page 26
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
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 Property or any
improvements thereon, 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. 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. Notwithstanding the
foregoing, Company may, without the consent of the City Council, convey all or any
portion of the Development Property to any third party purchaser if Company does not
assign this Agreement to the third party purchaser and Company continues to retain all of
the rights, obligations, and benefits of 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.
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 term or provision
of this Agreement or to exercise any right granted hereunder will not constitute a waiver
Page 27
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/I14 Partners, L.P.
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 assign or successor of Company, and are not intended
to create any rights, contractual or otherwise, to any other person or entity.
18. 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
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
Page 28
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
force majeure and that, in such an event, this Section 18 will not operate to extend the
Phase I Completion Deadline or Phase Il 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.
20. 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 assign and 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. COUNTERPARTS.
This 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 Roanoke 35/114 Partners, L.P.
EXECUTED as of the last date indicated below:
CITY OF FORT WORTH: APPROVED AS TO FORM AND
LEGALITY:
By: �� l� By:��/�t7�
Y �.0
Peter Vaky
¢� 5S F. City Manager Deputy City Attorney
Date: � C M&C: G-18484 05-19-15
Form 1295 Cert. No.: 2 D) 6 — q 7 Y / E
Page 30
Economic Development Program Agreement
between City of Fort Worth and Roanoke 35/114 Partners, L.P.
ROANOKE 35/114 PARTNERS, L.P.,
a Texas limited partnership:
By: Roanoke 35/114 Genpar, LLC,
a Texas limited liability company,
its General Partner:
B ��
Y•
William V. Boeker
Manager
Date: 1/91fi
Page 31
Economic Development Program Agreement
between City of Port North and Roanoke 35/114 Partners, L.P.
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
EXHIBIT "B"
Public Infrastructure Improvements for Phase I
1. The public improvements generally described as Champions Circle — Outlet
Blvd./Golf View Dr. and more specifically described in Community Facilities Agreement
- City of Fort Worth Contract No. 46583.
2. The public improvements generally described as Champions Circle — Tanger
Blvd/Bucees Blvd. and more specifically described in Community Facilities Agreement —
City of Fort Worth Contract No. 46685.
3. The public improvements generally described as Champions Circle — Bucees
Blvd., Pilgrim Drive, and Outlet Blvd. and more specifically described in Community
Facilities Agreement -- City of Fort Worth Contract No. 47397.
EXHIBIT "C"
Form of Final Construction Report
FORTWORTH® City of Fort Worth
Project Completion Report
L 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: $
ill. 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) 212-2674 ortasha.
kiloore(@fortworthtexas.aov.
CONSTRUCTION
Total Construction Dollars Spent this Reporting Period (A) : $
AWARDS TO FORT WORTH COMPANIES
Total Construction Dollars Spent with Fort Worth Companies (B) : $
Percentage of Total Construction Dollars Spent with Fort Worth Companies (B/A) : %
AWARDS TO FORT WORTH MINORITY/WOMEN OWNED BUSINESS ENTERPRISES (M/WBE)
Total Construction Dollars Spent with Fort Worth M/WBE Companies (C) : $
Percentage of Total Construction Dollars Spent with Fort Worth M/WBE Companies (C/A) : %
!IIL ADDITIONACINFORMATION (TO BE ATTA(fHED) I
List of Real Property Appraisal District Account Numbers (Applicable toProjectswith Real Property commitments)
ri List of Business Personal Property Appraisal District Account Numbers (Applicable toProjectswith Personal Property Commitments)
j— Copy of the Certificate of Occupancy issued by the City of Fort Worth's Planning and Development Department
r7 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. Clearly note the Fort
r Worth and Fort Worth M/WBE Companies. (Excel Format)
ADDITIONAL DOCUMENTATION FOR SELECTED SAMPLE (initially, City Staff will review the above mentioned list of all invoices related to Total
Construction Dollars Spent. Staff will then select a sample of Involces/Pay Applications to test, communicate 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 MANBE Companies,
f— (invoices/Pay Applications must have the name and address of the company, and include dates, description of services and/or products, quantities of each item and
unit cost of each Item)
f` 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
FORTWORT]Ho City of Fort Worth
Project Completion Report
[VI. CERTIFICATION i
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:
Title:
Signature of Certifying Officer:
Phone:
Fax:
Date:
In order to remain eligible for the incentive, you must return the completed report by February 1 st, 2016 to:
City of Fort Worth
Economic Development Department
Business Development Division
Attn: Ms. Natalie Moore - Business Development Coordinator
1150 South Freeway
Fort Worth, Texas 76104
Please forward an electronic copy of the completed report to: natalie.moore@fortworthtexas.gov. You must also submit
two original hard copies of the report and all attachments to the above stated physical address for proper filing and
review. For assistance call Natalie Moore at (817) 212-2680.
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.
EXHIBIT "D"
Form of Consent to Collateral Assignment
CONSENT TO ASSIGNMENT
FOR SECURITY PURPOSES OF
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
BETWEEN CITY OF FORT WORTH AND
ROANOKE 35/114 PARTNERS, L.P.
(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; and ROANOKE 35/114
PARTNERS, L.P. ("Company"), a Texas limited partnership; 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 , 2015 (the "EDPA")
pursuant to which the City agreed to pay Company certain Program Grants in return for
Company's construction of a mixed -use development in the City in the vicinity of the
southwest corner of Interstate Highway 35W 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 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 reasonfor
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 Loan 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, Lender 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 11 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.
10. 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 later 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:
ROANOKE 35/114 PARTNERS, L.P.,
a Texas limited partnership:
By: Roanoke 35/114 Genpar, LLC,
a Texas limited liability company,
its General Partner:
William V. Boecker
Manager
Date:
M&C: none required