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HomeMy WebLinkAboutContract 33399 rf , CITY SECRETARY CONTRACT NO. ECONOMIC AND COMMUNITY DEVELOPMENT AGREEMENT This ECONOMIC AND COMMUNITY DEVELOPMENT AGREEMENT ("Agreement") is made and 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 PENNSYLVANIA AVENUE, L.P. ("Developer"), a Texas limited partnership. RECITALS A. With the City's encouragement Developer has proposed to redevelop a blighted site at the intersection of Hemphill Street and Magnolia Avenue into a high- density mixed-use development that will include multi-story commercial/retail and residential buildings and a pedestrian-friendly infrastructure as more specifically set forth in this Agreement and as generally depicted in the site plan and renderings attached hereto as Exhibit "A" (the "Development"). The Development is located within the medical district area of the City on property identified in Exhibit "B" (the "Land"). Exhibits "A" and `B" are hereby made a part of this Agreement for all purposes. B. The 2005 Comprehensive Plan, adopted by the City Council on February 22, 2005 pursuant to M&C G-14691 (the "Comprehensive Plan"), defines a mixed-use growth center as a relatively small urbanized area that contains a concentration of jobs, housing units, schools, parks and other public facilities, public transportation hubs and pedestrian activities. Among the potential benefits of mixed-use growth centers cited by the Comprehensive Plan are economic development; the development of multifamily housing at appropriate locations; the protection of single family neighborhoods; efficiency in the provision of public facilities and services; reduced reliance upon single- occupancy vehicles; and the protection of the environment. Accordingly, the Comprehensive Plan cites the promotion of mixed-use growth center development patterns as a goal that the City should embrace. The Comprehensive Plan identifies the medical district area of the City as a mixed-use growth center. C. In 2001 the City Council selected Hemphill Street as one of eight commercial corridors in the City where revitalization efforts were most needed and where use of various federal and state grant funds could most sensibly be focused. In this vein, the City Council identified the Development as one of two catalyst projects proposed for Hemphill Street that could utilize existing system capacity, encourage mixed-use development, establish a physical environment that would encourage public transportation(including light rail transportation), foster job creation and provide housing opportunities in the immediate area. Therefore, the City has requested that Developer design the Development as a mixed-use commercial/retail and residential development consistent with the Comprehensive Plan, which will cause an increase in Developer's 03-30-06 A08 :08 IN p Eage I conomic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,LP. � +� � � financial investment in the Development. In return, the City has agreed to provide financial incentives to Developer in an effort to help cover such increased costs. D. On March 28, 2002 the City nominated the Development to the U.S. Department of Housing and Urban Development ("HUD") for an Economic Development Initiative grant. On or about April 18, 2002 HUD notified the City that the Development had been selected to receive $1 million in grant funds (the "EDI Grant Funds") pursuant to that certain Economic Development Initiative Grant No. B-02-SP- TX-0700. E. The Comprehensive Plan recommends various financial incentive programs, based on a model of custom-designed incentives and partnership programs with private businesses on a case-by-case basis, in order to stimulate development and redevelopment of land in growth centers. In addition, in accordance with Resolution No. 2704, adopted by the City Council on January 30, 2001, 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"Program"). F. The City Council has determined that by entering into this Agreement, the City's policy of encouraging appropriate mixed-use development in targeted commercial corridors of the City will be met. In addition, the City Council has determined that the Program is an appropriate means to achieve the construction of an appropriate mixed-use development on the Land and that the potential economic benefits that will accrue to the City as a result of such a mixed-use development are consistent with the City's economic development objectives as outlined in the Comprehensive Plan. This Agreement is authorized by Chapter 380 of the Texas Local Government Code. 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 City and Developer agree as follows: AGREEMENT Page 2 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. 1. INCORPORTION OF RECITALS. The City Council hereby finds, and the City and Developer hereby agree, that the recitals set forth above are true and correct and form the basis upon which the City has entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them herein: Beck means HC Beck, Ltd., a Texas limited partnership, the general contractor for the Wells Fargo Bank Building, with an office address of 100 Throckmorton, Suite 477, Fort Worth, Texas 76102. Byrne means Thos. S. Byrne, Ltd., a Texas limited partnership, the general contractor for the Texas Cancer Care Building, with an office address of 900 Summit Avenue, Fort Worth, Texas 76102. CFA means a Community Facilities Agreement executed by both the City and Developer for a specific phase or aspect of the Development and as provided by and in accordance with this Agreement. Construction/Installation Costs means site development, demolition and drainage costs, actual hard construction costs, storm drain and utility relocation costs, contractor fees, the costs of supplies and materials, landscaping installation costs, the costs of plants, furniture, irrigation and lighting for landscaping, engineering and geotechnical fees, architectural fees, and development and permitting fees. EDI Grant Agreement means that certain written Grant Agreement between the City and HUD dated as of August 21, 2002, which is on file in the City Secretary's Office, and any amendments to such agreement, governing that certain Economic Development Initiative Grant No. B-02-SP-TX-0700 and the manner in which the City may use EDI Grant Funds provided to the City thereunder. The EDI Grant Agreement is hereby incorporated by reference as part of this Agreement for all purposes. EDI Grant Funds has the meaning assigned thereto in Recital E of this Agreement. EDI Grant Improvements means those portions of the; Development eligible and selected for funding under the EDI Grant, as more specifically set forth in Exhibit "C", attached hereto and hereby made a part of this Agreement for all purposes. Effective Date has the meaning assigned in Section 3 hereof. Page 3 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. ';iii Fort Worth Certified M/WBE Company means a minority or woman-owned business that has received certification as either a minority business enterprise (MBE) or a woman business enterprise (WBE) by either the North Central Texas Regional Certification Agency (NCTRCA) or the Texas Department of Transportation (TxDOT), Highway Division, with an office located within the corporate limits of the City. A Fort Worth Certified M/WBE Company is also a Fort Worth Company for purposes of this Agreement. City and Developer stipulate and agree that Byrne is a Fort Worth Certified M/WBE Company. Fort Worth Company means a business that has a principal office located within the corporate limits of the City. City and Developer stipulate and agree that Byrne and Beck are each a Fort Worth Company. Fort Worth Resident means an individual whose principal place of residence is located within the corporate limits of the City. Park means an approximately one-acre "green-space" park to be centrally located in the Development as depicted on Exhibit "A" hereto for the use and enjoyment of the public, including tenants and occupants of the Development, to be constructed as part of the Development and maintained pursuant to Section 6.5 of this Agreement. Phase I Commercial Improvements means the Texas Cancer Care Building and the Wells Fargo Bank Building. Phase I Completion Date means the date as of which (i) a certificate of occupancy, whether temporary or final, has been issued for all of the Phase I Commercial Improvements; (ii) the EDI Certificate of Completion has been issued by the City as provided by and in accordance with Section 4.5.3 of this Agreement; (iii) the date as of which the City has received all construction spending reports required by Section 4.6 and the Phase I Certified Costs have been provided to Developer in accordance with Section 4.6.2; and (iv) permanent access easements for all roads and sidewalks on the Land have been dedicated by final plat. Phase I Completion Deadline means March 31, 2006, as may be extended by Force Majeure. Phase II Completion Date means the date as of which both (i) the City has received all construction spending reports required by Section 6.4; (ii) the City has completed a rough inspection of all Phase II Residential Improvements, excluding the Park, in accordance with amendments adopted by the City to the International Residential Code, Section 7-62, subsection 108.5; and (iii) the Park has been landscaped in accordance with the plans and specifications prepared by Developer and approved by the City pursuant to this Agreement and Developer has granted the City a public access easement thereto in a form and under terms and conditions that are acceptable to the City. Page 4 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. Phase II Completion Deadline means the later of July 31, 2007 or thirty (30) days prior to the expiration date of the EDI Grant Agreement, as may be amended. Phase II Residential Improvements means (i) a subsequent phase of the Development, the plans and specifications of which shall be prepared by Developer at a later date (and subject to review and approval by the City in accordance with Section 8.1 of this Agreement), which shall include at least sixteen (16) residential dwelling units designed and located on the Land, as specifically approved by the City in writing, such approval not to be unreasonably withheld, conditioned or delayed, and having a minimum Construction/Installation Cost of$70.00 per square foot of space, and (ii) the Park. Program Grant means an economic development grant paid as part of the Program established hereunder by the City to Developer in accordance with the terms and conditions of this Agreement and as authorized by Chapter 380 of the Texas Local Government Code. Public Property means any public rights-of-way, easements or other property owned by the City. Texas Cancer Care Building means that certain multi-story, medical office and cancer treatment building containing approximately 51,000 square feet of space and commonly known as The Center for Cancer and Blood Disorders of the Southwest as depicted on the site plan attached as Exhibit "A" hereto. Wells Fargo Bank Building means that certain two-story office building containing approximately 33,000 square feet of space, together with motor bank drive- through facilities and commonly known as the Wells Fargo Bank Building as depicted on the site plan attached as Exhibit "A" hereto. 3. TERM. This Agreement shall be effective as of May 3, 2005 (the "Effective Date") and, unless terminated sooner in accordance with this Agreement, shall expire upon the earlier of(i) sixty (60) calendar days following the Phase II Completion Date or (ii) sixty (60) calendar days following the Phase II Completion Deadline. 4. DEVELOPER'S OBLIGATIONS REGARDING PHASE I COMMERCIAL IMPROVEMENTS. In addition to the general requirements set forth in Section 8 in this Agreement and all other obligations of Developer under this Agreement, Developer shall comply with the following requirements with respect to the Phase I Commercial Improvements: Page 5 Economic and Community Development Agreement ' between City of Fort Worth and Pennsylvania Avenue,L.P. Z 4.1. Completion of Phase I Commercial Improvements. The Phase I Completion Date must occur on or prior to the Phase I Completion Deadline. 4.2. Construction Spending Commitments. 4.2.1. Fort Worth Companies. By the Phase I Completion Date, Developer shall have spent or caused to be spent at least thirty percent (30%) of actual Construction/Installation Costs for the Phase I Commercial Improvements and the EDI Grant Improvements, in the aggregate, regardless of the total amount, with contractors that are Fort Worth Companies. 4.2.2. Fort Worth Certified M/WBE Companies. By the Phase I Completion Date, Developer shall have spent or caused to be spent at least twenty-five percent (25%) of actual Construction/Installation Costs for the Phase I Commercial Improvements and the EDI Grant Improvements, in the aggregate, regardless of the total amount, with contractors that are Fort Worth Certified M/WBE Companies. 4.3. Employment Goals. Developer hereby agrees to use reasonable efforts to encourage purchasers or lessees of the Phase I Commercial Improvements to provide employment to at least one hundred (100) Fort Worth Residents. 4.4. Other M/WBE Goals. In addition to the construction spending commitments with Fort Worth Certified M/WBE Companies, as outlined in Section 4.2.2, Developer shall consult with the City's Minority/Women Business Enterprise Office in establishing goals for Developer to further utilize minority-owned and women- owned business enterprises in undertaking the EDI Grant Improvements, the Phase I Commercial Improvements and the Phase II Residential Improvements. 4.5. City Monitoring. 4.5.1. Inspections. Prior to payment of the Phase I Grant, as defined in Section 5.1, at any time during normal business hours and following at least twenty-four (24) hours' advance written notice to Developer and upon appropriate Page 6 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. notice to tenants as permitted or required under applicable leases, the City and any authorized designee shall have, and Developer shall provide, reasonable access to the Land and the Development to allow inspection of any work on the Phase I Commercial Improvements and/or the EDI Grant Improvements in order to ascertain Developer's compliance with the provisions of this Agreement. Developer shall cooperate fully with the City during any such inspection. 4.5.2. Periodic Certificates for EDI Grant Improvements. Developer shall submit a certificate, signed by an officer of Developer and Developer's general contractor, to the City every sixty (60) calendar days or such other period of time agreed to in writing by the City that states, as of a date certain, (i) the specific work on the EDI Grant Improvements that has been completed since the last report; (ii) the amount of money that Developer has paid for the completion of such work; and (iii) Developer's calculation of the estimated cost to complete the EDI Grant Improvements. Upon receipt of any such certificate, the City will have ten (10) calendar days to notify Developer in writing of any reasonable objection that it may have as to the nature of the work, the amount of money that Developer has paid or as to Developer's calculation of the estimated cost to complete the EDI Grant Improvements. Any such notice shall specify in reasonable detail the basis or grounds of any such reasonable objection and the grounds for any such objection shall be limited, respectively, to a reasonable determination by the City that the nature of the work does not qualify as part of the EDI Grant Improvements outlined in Exhibit "C" or to a reasonable inquiry and investigation as to whether the amount of money reportedly paid for an item of work was actually paid. If City fails to timely deliver to Developer a written notice of objection with such ten (10) calendar day period, then City shall be deemed to have no objections, time being of the essence with respect to the delivery of such written notice. If Developer disagrees with any final objection of the City, the parties shall diligently work in good faith to resolve the dispute. If the parties cannot resolve the dispute within thirty (30) calendar days, Developer may request that the dispute be submitted for resolution through mediation, as that term is defined in Section 154.023 of the Texas Civil Practices and Remedies Code, in accordance with procedures reasonably agreed to by the parties, which request shall not be unreasonably denied or withheld by the City. 4.5.3. Issuance of EDI Certificate of Completion. Once Developer has completed the EDI Grant Improvements, Developer shall submit a final certificate, signed by an officer of Developer and Developer's general contractor, to the City, which certificate will state the specific work on the EDI Grant Improvements that Page 7 [ Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. have been completed and the amount of Construction/Installation Costs expended by Developer for completion of such work, and which will include all supporting invoices and other documents demonstrating that such amounts were actually paid, including final lien waivers signed by the general contractor (provided that Developer may bond over any contested liens). Any EDI Grant Improvements that are to be dedicated to the City must be lawfully accepted by the City in writing before such EDI Grant Improvements will be deemed complete for purposes of this Section 4.5.3. Subject to the provisions of this Section 4.5, the City will issue a final certificate of completion to Developer within thirty (30) calendar days following receipt of Developer's final certificate that certifies that the EDI Grant Improvements have been completed and that certifies the actual Construction/Installation Costs expended by Developer for such EDI Grant Improvements (the "EDI Certificate of Completion"). 4.6. Construction Spending Reports. 4.6.1. For Phase I Commercial Improvements and EDI Grant Improvements. Within thirty (30) calendar days following the Phase I Completion Date, Developer will provide the City with a report (the "Phase I Construction Spending Report") in a form reasonably acceptable to the City that specifically outlines (i) the actual Construction/Installation Costs expended for the Phase I Commercial Improvements and the EDI Grant Improvements and (ii) the actual Construction/Installation Costs expended with Fort Worth Companies and Fort Worth Certified M/WBE Companies for the Phase I Commercial Improvements and the EDI Grant Improvements. The Phase I Construction Spending Report shall include supporting invoices and other documents necessary to demonstrate that all amounts reported were actually paid, including, without limitation, final lien waivers signed by Developer's general contractor (provided that Developer may bond over any contested liens), and will be subject to reasonable verification by the City; provided, however, City and Developer stipulate and agree that the supporting documentation provided by Developer to, and approved by, Developer's construction lender with respect to the construction financing of the Phase I Commercial Improvements shall be deemed adequate documentation for verification of the Phase I Construction Spending Report. 4.6.2. Declaration of Phase I Certified Costs. Upon receipt of the Phase I Construction Spending Report, the City will have ten(10) calendar days to notify Developer in writing of any objection that it may have as to the nature of the work or the amount of money that Developer has reportedly paid for any line item of work Page 8 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. comprising Phase I Commercial Improvements. Any such notice shall specify in reasonable detail the basis or grounds of any such reasonable objection and the grounds for any such objection shall be limited, respectively, to a reasonable determination by the City that the nature of the work does not qualify as part of the Phase I Commercial Improvements, as outlined in Exhibit "A" or to a reasonable inquiry and investigation as to whether the amount of money reportedly paid for an item of work was actually paid. If Developer disagrees with any final objection of the City, the parties shall diligently work in good faith to resolve the dispute. If the parties cannot resolve the dispute within thirty (30) calendar days, Developer may request that the dispute be submitted for resolution through mediation, as that term is defined in Section 154.023 of the Texas Civil Practices and Remedies Code, in accordance with procedures reasonably agreed to by the parties, which request shall not be unreasonably denied or withheld by the City. If the City does not object to any portion of the Phase I Construction Spending Report within ten (10) calendar days following receipt, or once any objection is resolved in accordance with this Section 4.6.2, the City will issue a written certificate to Developer confirming the Construction/Installation Costs expended by Developer for the Phase I Commercial Improvements, (the "Phase I Certified Costs"). 5. PAYMENT OF PHASE I GRANT BY CITY. 5.1. Amount of Grant. Subject to the terms and conditions of this Agreement and provided that Developer is not in material breach of this Agreement at the time, within thirty (30) calendar days following the Phase I Completion Date (or one hundred twenty (120) calendar days following the Phase I Completion Date if Section 5.3 applies), and provided that Developer has complied with all requirements of the Guaranty attached hereto as Exhibit "D", which is hereby made a part of this Agreement for all purposes, the City will pay Developer a Program Grant in an amount equal to the lesser of(i) the actual Construction/Installation Costs of the EDI Grant Improvements, as reflected in the Certificate of Completion issued by the City in accordance with Section 4.5.3 of this Agreement; (ii) ten percent (10%) of the Phase I Certified Costs, as outlined and defined in Section 4.6.2, or (iii) $1 million (the "Phase I Grant"), and additionally subject to reduction in accordance with Section 5.2. It is understood and agreed that if the Phase II Completion Date has not also occurred by such time, the City's payment of the Phase I Grant will specifically be made on account of the City's good faith reliance upon Developer's representation that the Phase II Residential Improvements will be completed by the Phase II Completion Deadline in accordance with this Agreement, which representation is backed by the Guaranty attached hereto as Exhibit "D". Page 9 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. 5.2. Reduction for Failure to Meet Construction Spendine Commitments. The amount of the Phase I Grant payable by the City shall be reduced by the aggregate degree to which Developer failed to meet its construction spending commitments with Fort Worth Companies and Fort Worth Certified M/WBE Companies, as follows: 5.2.1. Construction Spending with Fort Worth Companies. If Developer failed to meet its commitment to spend at least thirty percent (30%) of actual, aggregate Construction/Installation Costs for the Phase I Commercial Improvements and the EDI Grant Improvements, regardless of the total amount of Construction/Installation Costs so expended, with contractors that are Fort Worth Companies, as required by Section 4.2.1, then the Phase I Grant shall be reduced by a percentage calculated by taking the difference between (i) one hundred percent (100%) and (ii) a fraction, to be expressed as a percentage, where (a) the numerator is the amount of Construction/Installation Costs actually spent with Fort Worth Companies for the Phase I Commercial Improvements and the EDI Grant Improvements and (b) the denominator is the total amount of Construction/Installation Costs actually spent on the Phase I Commercial Improvements and the EDI Grant Improvements, multiplied by .30 (30%). For example, if Developer spent $10 million in Construction/Installation Costs for the Phase I Commercial Improvements and the EDI Grant Improvements and spent only $2.7 million in such Construction/Installation Costs with Fort Worth Companies, then the amount of the Phase I Grant payable by the City under this Agreement would be reduced by ten percent (10%), which is 100% minus [$2.7 million divided by {$10 million x .301, or $2.7 million/$3 million, or 90%]. 5.2.2. Construction Spending with Fort Worth Certified M/WBE Companies. If Developer failed to meet its commitment to spend at least twenty-five percent (25%) of actual, aggregate Construction/Installation Costs for the Phase I Commercial Improvements and the EDI Grant Improvements, regardless of the total amount of Construction/Installation Costs so expended, with contractors that are Fort Worth Certified M/WBE Companies, as required by Section 4.2.2, then the Phase I Grant shall be reduced by a percentage calculated by taking the difference between (i) one hundred percent (100%) and (ii) a fraction, to be expressed as a percentage, where (a) the numerator is the amount of such Construction/Installation Costs actually spent with Fort Worth Certified M/WBE Companies for the Phase I Commercial Improvements and the .� Page 10 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. 1---DI Grant Improvements and (b) the denominator is the total amount of Construction/Installation Costs actually spent on the Phase I Commercial Improvements and the EDI Grant Improvements, multiplied by .25 (25%). For example, if Developer spent $10 million in Construction/Installation Costs for the Phase I Commercial Improvements and the EDI Grant Improvements and spent only $2 million in such Construction/Installation Costs with Fort Worth Certified M/WBE Companies, then the amount of the Phase I Grant payable by the City under this Agreement would be reduced by twenty percent (20%), which is 100% minus [$2 million divided by {$10 million x .251, or$2 million/$2.5 million, or 80%]. 5.2.3. Anreeate Nature of the Reductions. The reductions calculated in accordance with Sections 5.2.1 and 5.2.2 are cumulative in nature, so that in the examples above the amount of the Phase I Grant payable by the City under this Agreement would be reduced by a total of thirty (30%) (the 10% reduction for the failure to meet the construction spending commitment with Fort Worth Companies pursuant to Section 4.2.1 plus the 20% reduction for the failure to meet the construction spending commitment with Fort Worth Certified M/WBE Companies pursuant to Section 4.2.2). 5.2.4. No Offsets. A deficiency in attainment of one of the construction spending commitments set forth in Section 4.21 and 4.2.2 may not be offset by exceeding the other commitment. In other words, if Developer exceeded its commitment for construction spending with Fort Worth Companies, as outlined in Section 4.2.1, by ten percent (10%) but failed to meet its commitment for construction spending with Fort Worth Certified M/WBE Companies, as outlined in Section 4.2.2, by ten percent (10%), the amount of the Phase I Grant payable by the City would still be reduced by ten percent (10%) on account of Developer's failure to meet its commitment for construction spending with Fort Worth Certified M/WBE Companies. 5.3. Election of City to Pay Phase I Grant from EDI Grant Funds. Developer understands and agrees that the City shall have the option to elect to pay the Phase I Grant directly from EDI Grant Funds received from HUD rather than from the City's general fund as a Program Grant. The City may elect such option by providing written notice thereof to Developer as soon as practicable (but in no event later than 30 days) following the Phase I Completion Date. If the City makes such election, notwithstanding anything to the contrary in this Agreement, the City shall have up to one hundred twenty (120) calendar days following the Phase I Completion Date to pay the Phase I Grant directly from EDI Grant Funds. At the City's request, Developer shall cooperate and work with the Page 11 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. City diligently and in good faith to assist the City in obtaining the EDI Grant Funds from HUD. In the event that the City is unable to obtain the EDI Grant Funds from HUD for any reason or no reason other than a material breach by Developer under this Agreement, City shall pay the Phase I Grant to Developer as a Program Grant no later than the date that is thirty (30) days following the expiration of the 120 day time period to pay the Phase I Grant directly from EDI Grant Funds. 6. DEVELOPER'S OBLIGATIONS REGARDING THE PHASE II RESIDENTIAL IMPROVEMENTS. In addition to the general requirements set forth in Section 8 in this Agreement and all other obligations of Developer under this Agreement, Developer shall comply with the following requirements with respect to the Phase II Residential Improvements: 6.1. Phase II Residential Improvements. The Phase II Completion Date must occur on or prior to the Phase II Completion Deadline. 6.2. M/WBE Goals. Developer shall consult with the City's Minority/Women Business Enterprise Office in establishing goals for Developer to utilize minority-owned and women-owned business enterprises in constructing the Phase II Residential Improvements. 6.3. City Inspections. At any time during normal business hours and following at least twenty- four (24) hours' advance written notice to Developer and upon appropriate notice to tenants as permitted and required under applicable leases, the City and any authorized designee shall have, and Developer shall provide, access to the Land and the Development to allow inspection of any work on the Phase II Residential Improvements in order to ascertain Developer's compliance with the provisions of this Agreement. Developer shall cooperate fully with the City during any such inspection. 6.4. Construction Spendinp- Report for Phase II Residential Improvements. Within thirty (30) calendar days following the Phase II Completion Date, Developer will provide the City with a report (the "Phase II Construction Spending Report") in a form reasonably acceptable to the City that specifically outlines the actual Construction/Installation Costs expended by and on behalf of Page 12 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. Developer for the Phase II Residential Improvements. The Phase II Construction Spending Report shall include supporting invoices and other documents necessary to demonstrate that all amounts reported were actually paid, including, without limitation, final lien waivers signed by Developer's general contractor (provided that Developer may bond over any contested liens), and will be subject to verification by the City. 6.5. Grant of Easement of Park for Public Use; Maintenance. Developer shall construct the Park on or before the Phase II Completion Deadline. Upon completion of the Park, Developer shall grant the City a perpetual public access easement that allows the general public to use the Park at all times, subject to reasonable rules, regulations and hours of operation established by Developer or Magnolia Green Owners Association, Inc., a Texas non-profit corporation (the "Association"), or such other successor association responsible for the operation and maintenance of the Park pursuant to those certain Declaration of Easements, Covenants, Conditions and Restrictions of Magnolia Green (as amended to date, the "CREs") and reasonably acceptable to the City; provided, however, Developer or the Association may temporarily restrict public access for a limited duration not to exceed forty-eight (48) hours for purposes of special events, activities or functions without the approval or consent of the City. Developer shall also install signage reasonably acceptable to the City that indicates that the Park is open to the general public. Developer shall establish and enact, or shall cause the Association to establish and enact, a plan for regular maintenance of the Park at no cost to the City in accordance with the CREs. 7. FAILURE TO COMPLETE PHASE II RESIDENTIAL IMPROVEMENTS. As indicated in Section 5.1 of this Agreement, Developer understands and agrees that the City's payment of the Phase I Grant at any time prior to the Phase II Completion Date is specifically conditioned on Developer's representation that the Phase II Residential Improvements will be completed by the Phase II Completion Deadline in accordance with this Agreement. Notwithstanding anything to the contrary herein, in the event that the Phase II Completion Date has not occurred by the Phase II Completion Deadline and, as a result, the City either does not receive the EDI Grant Funds or is required to repay the EDI Grant Funds, Developer shall, within thirty (30) calendar days following receipt of written notification from the City, reimburse the City an amount of cash equal to the Phase I Grant actually paid by the City to Developer, which obligation shall survive the expiration or earlier termination of this Agreement. In the event that Developer fails to so reimburse the City, the City may exercise all rights under the Guaranty attached hereto as Exhibit "D" and any other rights or remedies it may have at law or in equity. Page 13 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. 8. GENERAL REQUIREMENTS. 8.1. Approval of Plans and Specifications. Prior to Developer's application for any permit after the Effective Date to initiate construction of any portion of the Phase I Commercial Improvements, any of the EDI Grant Improvements and any portion of the Phase II Residential Improvements, Developer will submit all fagade and site plans to the City's Economic and Community Development Department for review and comment. If the City has any objections or concerns with respect to such plans, the City will provide written comments to Developer within ten (10) business days following receipt of the plans. In this event, Developer will work in good faith with the City to address the City's concerns and/or objections to the reasonable satisfaction of both parties. If the parties cannot resolve any of their differences within thirty (30) calendar days following receipt by Developer of the City's written comments, Developer may request that the dispute be submitted for resolution through mediation, as that term is defined in Section 154.023 of the Texas Civil Practices and Remedies Code, in accordance with procedures reasonably agreed to by the parties, which request shall not be unreasonably denied or withheld by the City. 8.2. Community Facilities Agreements. Before undertaking any work on the EDI Grant Improvements, regardless of whether such work is to occur on Public Property, and before undertaking work on any other portion of the Development that is to occur on Public Property, Developer will notify the City in writing and request a written opinion as to whether Developer must first enter into a CFA or other written document with the City. If any such document is required, Developer will not undertake or cause to be undertaken any affected work until the CFA or other required written document has been executed by all parties and is in full force and effect. Developer hereby agrees to comply with all terms and conditions of any CFA or other required written document with the City covering the affected work. Notwithstanding the foregoing to the contrary, no CFA shall be required for work completed prior to the Effective Date. 8.3. Financial Guaranty of Developer. In addition to bonds provided by any third party contractors pursuant to Section 8.4 of this Agreement, for all work on the Development that is to be undertaken on Public Property, Developer may not initiate or cause initiation of construction of any such work until Developer has provided the City with adequate financial security to guaranty Developer's completion of that work once it has started. Developer shall provide its financial guaranty to the City in one of the following forms: Page 14 Economic and Community Development Agreement f between Cit of Fort Worth and Pennsylvania Avenue,L.P. �' Y Y _ 1�:_� r � 8.3.1. Bonds. Developer shall deliver to the City a bond or bonds, executed by a corporate surety in accordance with Texas Government Code, Chapter 2253, as amended, in the full amount of each affected construction contract. The bond(s) shall guarantee (i) the satisfactory completion of the construction work to be undertaken and (ii) full payments to all persons, firms, corporations or other entities with whom Developer has a direct relationship for the performance of such construction work; or 8.3.2. Escrow Pledize AEreement. Developer shall place a cash deposit equal to one hundred twenty- five percent (125%) of the full amount of the cost of each affected construction contract (the latter 25% included to take into account change orders) in escrow with an escrow agent in the City that is acceptable to the City, in which case (i) the Developer and the City will use reasonable efforts to negotiate an escrow agreement with such escrow agent regarding the disposition of funds in escrow and (ii) Developer shall pay all costs associated with such escrow arrangement. The escrow agreement will outline a process under which Developer may receive draws from the escrowed funds in order to pay the costs of work covered by the escrow pledge agreement after the City has verified completion of the construction work for which payment is sought and, if a contractor was used for such construction work, that all parties associated with such work have been fully paid. 8.4. Third Party Contractors. If Developer enters into agreements with third party contractors to undertake (i) any work on the EDI Grant Improvements, regardless of whether such work is to be undertaken on Public Property, and (ii) any other work that is to be undertaken on Public Property (collectively, "Third Party Contracts"), as part of the consideration under this Agreement Developer will cause such Third Party Contracts to be let in a manner that is approved by the City, taking into consideration the requirements of the Grant Agreement, and to contain (a) a provision, similar in form to Section 12 of this Agreement, pursuant to which the contractor and any subcontractors involved in any work contemplated by clauses (i) and (ii) above, agree to release, indemnify, defend and hold harmless the City from any and all damages arising as a result of or in relation to the Development and any work thereunder and for any negligent and grossly negligent acts or omissions or intentional misconduct of the contractor, any subcontractors and Developer, and their officers, agents, servants and employees; (b) a requirement that the contractor provide Developer with a bond or bonds, which Developer shall forward to the City, that guarantees the faithful performance and completion of all construction work covered by the contract and full payment for all wages Page 15 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. for labor and services and of all bills for materials, supplies and equipment used in the performance of the contract; (c) if the work being undertaken is covered by a CFA, a requirement that the contractor provide insurance in accordance with the minimum requirements set forth in the CFA; and (d) a requirement that the contractor comply with all Legal Requirements, as addressed and defined in Section 15 of this Agreement. All of the requirements contained in this Section 8.4 shall hereinafter be referred to as the "Third Party Contract Provisions". IF DEVELOPER ENTERS INTO ANY THIRD PARTY CONTRACT THAT DOES NOT CONTAIN ALL OF THE ABOVE THIRD PARTY CONTRACT PROVISIONS, REGARDLESS OF WHETHER DEVELOPER ENTERED INTO THE THIRD PARTY CONTRACT PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT AND TO THE EXTENT THAT ANY CLAIMS, DEMANDS, LAWSUITS OR OTHER ACTIONS FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEA TH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISE UNDER, ON ACCOUNT OF OR IN RELATION TO THE THIRD PARTY CONTRACT FOR WHICH THE CONTRACTOR THEREUNDER WOULD HAVE BEEN REQUIRED TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY IF THE THIRD PARTY CONTRACT PROVISIONS HAD BEEN INCLUDED IN THE THIRD PARTY CONTRACT ("THIRD PARTY CONTRACT DAMAGES'), THEN DEVELOPER, AT DEVELOPER'S OWN EXPENSE, SHALL INDEMNIFY, DEFEND (WITH COUNSEL REASONABLY ACCEPTABLE TO THE INDEMNIFIED PARTIES HEREIN) AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS (EXCLUDING DEVELOPER) AND VOLUNTEERS, FROM AND AGAINST ANY SUCH THIRD PARTY CONTRACT DAMAGES. 8.5. Cooperation with City in Complyina with EDI Grant.Agreement. Developer shall cooperate with the City and comply with all requests of the City as necessary to assist the City in its full compliance with the EDI Grant Agreement; provided, however, that no such cooperation or requests of the City for assistance shall expand any obligation, covenant, representation or warranty of Developer or result in any new obligation, covenant, representation or warranty under this Agreement beyond those expressly set forth in this Agreement. 9. RECORDS AND AUDITS. Developer or an Affiliate (defined below) of Developer, will be the party to all contracts related to work on the Phase I Commercial Improvements and the EDI Grant Improvements and will maintain all books and records related to the Phase I Commercial Page 16 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. Improvements and the EDI Grant Improvements at a location in the City (collectively "Records") throughout the Term and for one (1) year thereafter, which obligation shall survive the expiration or termination of this Agreement. Developer agrees that the City will have the right to audit the financial and business records of Developer in order to determine compliance with this Agreement or any CFA. Following reasonable advance written notice by the City, but in no event less than five (5) business days, Developer shall make all Records available to the City at Developer's principal place of business in the City or at another location in the City acceptable to both parties and shall otherwise cooperate fully with the City during any audit. As used herein "Affiliate" means any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Developer. 10. DEFAULT, REMEDIES AND TERMINATION RIGHTS. 10.1. [Intentionally Left Blank]. 10.2. Failure of Developer to Pay City Taxes. An event of default shall occur under this Agreement if any ad valorem taxes on the Land owed by Developer to the City or arising on account of Developer's operations on the Land and owed by Developer to the City become delinquent and Developer does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. Upon the occurrence of such default, the City shall notify Developer in writing and Developer shall have (i) thirty (30) calendar days to cure such default or (ii) if Developer has diligently pursued cure of the default but such default is not reasonably curable within thirty(30) calendar days, then such amount of time that the City reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Developer and shall have all other rights and remedies that may be available to it under the law or in equity. 10.3. Violations of City Code, State or Federal Law. An event of default shall occur under this Agreement if any written citation is issued due to the occurrence of a violation of a material provision of the City Code on the Land while owned by Developer or on or within any improvements thereon that are owned by Developer at the time (including, without limitation, any violation of the City's Building or Fire Codes and any other City Code violations related to the environmental condition of the Land; the environmental condition other land or waters which is attributable to operations on the Land; or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall occur under this Agreement if the City is notified by a governmental Page 17 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. agency or unit with appropriate jurisdiction that the City; Developer; a successor in interest; or any third party with access to the Land pursuant to the express or implied permission of Developer or a successor in interest is in violation of any material state or federal law, rule or regulation on account of the Land, improvements on the Land or any operations thereon (including, without limitation, any violations related to the environmental condition of the Land; the environmental condition other land or waters which is attributable to operations on the Land; or to matters concerning the public health, safety or welfare). Upon the occurrence of such default, the City shall notify Developer in writing and Developer shall have (i) thirty (30) calendar days to cure such default or (ii) if Developer has diligently pursued cure of the default but such default is not reasonably curable within thirty(30) calendar days, then such amount of time that the City reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Developer and shall have all other rights and remedies that may be available to under the law or in equity. 10.4. Other Breach or Default. An event of default under this Agreement shall occur if either party breaches any of its duties or obligations hereunder. In this event, promptly after becoming aware of the default, the non-defaulting party shall provide written notice by certified mail to the other party that describes the nature of the default. The defaulting party shall have thirty (30) calendar days to cure the default, or if such default is not reasonably curable within thirty (30) calendar days, such additional time as may be reasonably necessary provided that the defaulting party is diligently pursuing cure of the default. If the default has not been fully cured within such time, the non-defaulting party shall have all rights and remedies available under the law or in equity, including, but not limited to, the right to terminate this Agreement, which may be effected by providing written notice thereof to the defaulting party. 11. INDEPENDENT CONTRACTOR. Nothing contained in this Agreement or any collateral agreements between the City and Developer with respect to the Development is intended by the parties to create a partnership or joint venture between the parties, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor does it appoint any party as an agent of any other party, for any purpose whatsoever. Pae 18 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. 12. INDEMNIFICATION. DEVELOPER AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCL UDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO DEVELOPER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY DEVELOPER'S BREACH OF ANY OF THE TERMS OR PRO VISIONS OF THIS AGREEMENT OR ANY NEGLIGENT ACT OR OMISSION OF DEVELOPER, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE DEVELOPMENT OR THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS RESPECTIVE OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH DEVELOPER AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LA WS OF THE STA TE OF TEXAS. 13. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: City: Developer: Attn: Director Attn: Jim Eagle Economic and Community Development Pennsylvania Avenue, L.P. Department c/o Red Oak Realty, LLC 1000 Throckmorton 100 E. 15th Street, Suite 400 Fort Worth, TX 76102 Fort Worth, TX 76102 with a copy to: with a copy to: Attn: City Attorney Attn: Greg Zimmerman City Attonney's Office Winstead Sechrest &Minick P.C. 1000 Throckmorton 5400 Renaissance Tower Fort Worth, TX 76102 1201 Elm Street Dallas, TX 75270 Page 19 Economic and Community Development Agreement ^, between City of Fort Worth and Pennsylvania Avenue,L.P. C, G���,r 14. ASSIGNMENT AND SUCCESSORS. Developer may assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any party without the prior written consent of the City, so long as the proposed assignee or successor has agreed in writing to assume all of the covenants and obligations of Developer under this Agreement. 15. 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 ("Legal Requirements"). 16. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. 17. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 18. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas— Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 19. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assignee or successor of Developer (as evidenced by compliance with the terms and conditions of Section 14 of this Agreement), and are not intended to create any rights, contractual or otherwise, to any other person or entity. Page 20 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. tlQ ^ r 20. FORCE MAJEURE. Other than City's obligations under this Agreement that can be performed by the payment of money (e.g., payment of the Phase I Grant), it is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, or interferences, unreasonable delays by the City in issuing any permits or certificates of occupancy or conducting any inspections of or with respect to the Development (based on the amount of time that the City customarily requires in undertaking such activities and based on the then-current workload of the City department(s) responsible for undertaking such activities), or delays caused by unforeseen construction or site issues, fire or other casualty, court injunction, acts of the other party, its affiliates/related entities and/or their contractors, or any actions or inactions of third parties 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 (each an event of"Force Majeure"), the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to action or performance shall be extended for a period of time equal to the period such party was delayed. Notwithstanding anything to the contrary herein, if an event of Force Majeure causes the Phase II Completion Date to not be met by the Phase II Completion Deadline, Section 7 shall control, with the understanding that the City shall use reasonable efforts to cause HUD to extend the expiration date of the EDI Grant Agreement. 21. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. 22. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 23. CONFIDENTIALITY. Except as specifically provided in this Agreement and except for disclosures required on account of Legal Requirements, Developer and the City will (i) keep confidential and not disclose to any other party any information that is provided by one Page 21f'�° Economic and Community Development Agreement " Q between City of Fort Worth and Pennsylvania Avenue,L.P. party to the other and that is marked as confidential and (ii) not disclose or use any such confidential information for any purpose other than performance of this Agreement. 24. PROPRIETARY INFORMATION. The City acknowledges that Developer or one of its affiliates is or will become the owner or licensee of certain intellectual property (the "Developer's Intellectual Property"), including, but not limited to, software in use by Developer and all source and object code versions thereof and all related documentation, flow charts, user manuals, listing and service/operator manuals and any enhancements, modifications or substitutions thereof. Developer shall utilize Developer's Intellectual Property in connection with the Development to the extent that it deems appropriate for the purpose of carrying out its agreements and obligations hereunder, but such use shall be strictly on a non-exclusive basis, and neither such use nor anything contained in this Agreement shall confer any proprietary or other rights in Developer's Intellectual Property upon the City or any third parties. 25. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Developer, and any lawful assign and successor of Developer, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 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. 26. 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. EXECUTED to take effect as of the Effective Date: Page 22 Economic and Community Development Agreement between City of Fort Worth and Pennsylvania Avenue,L.P. CITY OF FORT WORTH: / Attested By: r By: Dale isseler Marty Hend x Assistant City Manager City Secretary APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Assistant City Attorney M&C: C-20709 5-3-05 PENNSYLVANIA AVENUE, L.P., a Texas limited partnership By: Pennsylvania Management LLC, a Texas limited liability company, its general partner By: enn Darden, Manager Page 23 ,, Economic and Community Development Agreement V �L Jb 1: v�✓aJ between City of Fort Worth and Pennsylvania Avenue,L.P. ar'Ifj+.j UU � ',P-XHIBI'�'S "A"— Description and Depiction of the Phase I Commercial Improvements "B" —Description and Depiction of the Land "C"—EDI Grant Improvements "D"— Guaranty Page List of Exhibits rg7 C I` EXHIBIT A DESCRIPTION AND DEPICTION OF THE PHASE I COMMERCIAL IMPROVEMENTS [ATTACHED] Page Exhibit A 4112826v.2 42799/7 :1 rO li1! +aaiac�...0 ""NOW W'S RRNFJ�J N j sv�ca1 I I _ rq i t:iax, z ' o '1S 3Nt>3SOH DESCREMON OF BUILDING SITE OF WELLS FARGO BANK BUILDLNG Lot 4,Block 1,Magnolia Green,an Addition to Fort Worth,Tait County,Tcaas as shown by Plat recorded in Cabinet'A'Slide 8443 of the Plat Records of Tarrant County,Texas. I I I " J i i I i Amendment to Declaration of Easements,Covenants, Conditions and Restrictions of Magnolia Green v�'a.J BOUNDARY DESCRIPTION FOR A TRACT TO BE KNOWN AS LOT 4 BLOCK 1, MAGNOLIA GREEN A 61,253 SF TRACT OF LAND OUT OF LOT 2, BLOCK 1 MAGNOLIA GREEN FORT WORTH, TARRANT COUNTY, TEXAS BEING a tract of land out of the remainder of Lot 2, Block 1, Magnolia Green as shown by plat recorded in Cabinet A, Slide 8443, Plat Records of Tarrant County, Texas and being more particularly described as follows: BEGINNING at a set `T'cut in concrete for the southwest corner of the tract described herein, said point being in the east right-of-way Alston Avenue and being NO°31'48"W, 568.14 ft. from the southwest corner of the said Lot 2; THENCE NO°31'48"W, with the east line of the said Alston Avenue, 211.49 ft. to a set 5/8 inch brazed iron pin in the south right-of-way of Rosedale Street; Continuing with the south right-of-way of the said Rosedale Street the following courses and distances, THENCE N44`04'12"E, 15.34 ft. to a point on a non-tangent curve from which the center bears N3°05'19", 1977.61 ft. THENCE northeasterly with the said curve through a central angle of 1°34'19"W, for a distance of 54.22 ft.; THENCE N85°19'14"E, 106.27 ft to the beginning of a curve from which the center bears S4'4 1'09"E, 1860.71 ft; THENCE northeasterly with said curve through a central angle of 0°36'27", for a distance of 19.72 ft. THENCE S47°36'40"E, 22.58 ft.; THENCE N85053'05"E, 63.98 ft, to a set 5/8 inch iron pin, being the northwest corner of Lot 1, Block 1 Magnolia Green as shown by said plat; THENCE SO°3148"E with the east line of the said Lot 1, 223.22 ft. to a set 5/8 inch brazed iron pin, THENCE S89028'12"W, 270.96 ft. to the place of beginning and containing - 61,253 square feet of land. OF '`P� 4��Thy•�`,�' J. B. Davies, Inc. �0�9 Fort Worth, Texas April 15, 2004 q :u Rev. May 3, 2004 v 7 '°f'tsst: -{o 5 v s"u ii } e w w r i w � w M1 e n� P � d � d ^ ru TCCMG BUILDING SITE LEGAL DESCRIPTION BOUNDARY DESCRIPTION FOR 67,711 SF TRACT OF LAND OUT OF LOT 2,BLOCK 1 MAGNOLIA GREEN,AN ADDITION TO FORT WORTH,TARRANT COUNTY,TEXAS BEING a tract of land out of Lot 2,Block 1 Magnolia Green, an addition to the City of Fort Worth, Texas as shown by plat recorded in Cabinet A, Slide 8443,of the Plat Records of Tarrant County, said tract being tied to the Texas Coordinate System, North Central Zone(NAD83), coordinates and bearings are grid and the distances are horizontal measurements using a combined factor of 0.9998571, said tract being more particularly described as follows: BEGINNING a found T'cut in the face of a concrete curb being the most southerly southeast corner of the said Lot 2 and also being the southwest corner of Lot 3,Block 17 of the Glendale Subdivision of the Field-Welch Addition as shown by plat recorded in Cabinet B, Slide 2193 of the Plat Records of Tarrant County and having coordinates of N-6,950,782.967, E=2,327,528.173; THENCE S89'28'12"W,with the north line of West Magnolia Ave. as shown on said Lot 2 plat,282.13 ft to set P/K nail with shiner; THENCE NO-31-48-W,240.00 ft. to a set P/K nail with shiner; THENCE N89'28'12'E, 282.13 ft. to a set T'cut in concrete on the most southerly east line of the said Lot 2; THENCE SO-31'48-E, with the said east line of Lot 2 and the west line of the said Lot 3, GIendale Subdivision,240.00 ft. to the place of beginning and containing 67,711 square feet of land. J.B. Davies,Inc Fort Worth,Texas December 10,2003 now known as Lot 3, Block 1, Magnolia Green, an Addition to the City of Fort Worth, Tarrant County, Texas, as shown by plat recorded in Cabinet A, Slide 9005, of the Plat Records, Tarrant Cotmty, Texas FEN430l11000Dxlarwion of Fsseimnts and CCRs3-" i K ti .q. a 0 r,� I � A ,F s in t . o # IF EXHIBIT B DESCRIPTION AND DEPICTION OF THE LAND [ATTACHED] Page r ,�311 Exhibit B � � ., a •.�• r I{ s lip lip ! �e. Tei► Li�•eiQ7Pf�:e° tni�.S•ill� ;m ( s rP�� ii l����� e oirl ' 91.111 Iy" +i�l7!ir� IM, W iF r 111 roa TSrarn JSMUS MUM -� I 7 q ss®rrusart I -('M'O'M.09)-_----- i l� 1 rti $ W o O bti„d�. kM IU ~ O~ltOl a .n� 1 M08 318` I?JVA � i g ZMIS 7IIHdAf3H a_,s % i Ifl Es! rg� ri y I I I B � Snl'4n 0&32' ------_—,�---- ^pr'b .role as to sawn a sn.y. �� so M'4 E 214" N NW G.11 is 17 mum]R1 �'V 8 IN t 5--- Ll - f .OB IL y A,9f,l�.ON otr crKas r� lr= 'ON MNVAZIZ A6 U31Ya _ ,. .. �lw m 11UPV7 WM vd W UM13l AVi-p-u�r— EXHIBIT C EDI GRANT IMPROVEMENTS [ATTACHED] Magnolia Green - Mixed Use Development EDI Grant Project - Estimates Totals HARD COSTS Land - Site Development& Drainage 407,000 Shell Construction - Finish Out - Landscaping/Irrigation 42,700 Parking - Demolition 69,000 Utility Relocation 265,000 Hard Cost Contingency - Total Hard Costs 783,700 SOFT COSTS Architecture & Engineering 81,500 A/E Reimbursables 14,800 Impact Fees - Permits - Geotech/Environmental 25,000 Appraisal - Survey 30,000 Title Policy - Bank's Inspector - Testing Consultants - Builder's Risk Insurance - Property Tax Rate- 3% - Development Fee 40,000 Legal 25,000 Marketing - Commissions- Inside - Commissions-Outside - Contingency - Total Soft Costs 216,300 Total Hard and Soft Costs - 1,000,000 Eco-Magnolia Green (EDI Budget) Page 1 EXHIBIT D GUARANTY 1. The City shall not be obligated to pay the Phase I Grant, as specified in Section 5.1, until Developer has delivered to the City a clean, unconditional and irrevocable letter of credit, substantially in the form attached hereto, in the stated amount of$1 million (or if the Phase I Grant is less than $1 million, an amount equal to the Phase I Grant) (the "LC Amount"), issued by a bank located in the City and reasonably acceptable to the City (the "Bank"). Developer shall maintain this letter of credit at all times from the date of delivery to the City until the expiration of the Term of this Agreement, as specified in Section 4. Developer shall use its best efforts to secure a letter of credit that expires on or after September 29, 2007, which is sixty (60) calendar days following the Phase II Deadline. If Developer is unable to secure a letter of credit that expires on or after September 29, 2007 after diligently using best efforts to do so, Developer will notify the City in writing and shall obtain a letter of credit with an expiration date no earlier than one (1) year from the date of issuance and with automatic renewals from year to year unless terminated or non-renewed by the Bank by provision of written notice to both Developer and the City, delivered by certified or registered mail and given not less than sixty (60) calendar days prior to the then-expiration date thereof The final expiration date of the letter of credit (including any renewals) shall be no earlier than September 29, 2007. Subject to the last sentence of this paragraph, if any letter of credit required under the Agreement expires without being automatically renewed or is terminated prior to September 29, 2007, Developer shall replace such letter of credit meeting the criteria set forth in this Guaranty within thirty (30) calendar days prior to its expiration or termination date. If the Agreement expires prior to September 29, 2007, the City agrees to notify the Bank in writing and, following receipt of such written notice, the Bank shall have the right to terminate the letter of credit. 2. If the City at any time, or from time to time, requests any reasonable change in the terms, conditions or provisions of such letter of credit, other than the LC Amount, Developer shall promptly cause such letter of credit to be so modified. If the letter of credit is lost, mutilated, stolen or destroyed, Developer shall cooperate with the City's efforts to cause the Bank to cancel the lost, mutilated, stolen or destroyed letter of credit and to replace such letter of credit. 3. The City may draw in whole on such letter of credit if (i) pursuant to and in accordance with this Agreement, the City does not receive the EDI Grant Funds or the City is required to repay HUD the EDI Grant Funds on account of Developer's failure to complete the Phase II Residential Improvements by the Phase II Completion Deadline and Developer does not reimburse the City in cash in an amount equal to the Phase I Grant within thirty(30) calendar days following receipt of written notice from the City or (ii) the Bank notifies the City of non-renewal or termination of the letter of credit prior to September 29, 2007 and Developer does not deliver the City with a replacement letter of 4136365v.2 42799/7 credit meeting the criteria set forth in this Guaranty at least thirty(30) calendar days prior to the stated expiration or termination date of the previous letter of credit. 4. Developer shall have the right to substitute one letter of credit for another if the substitute letter of credit meets the requirements of this Guaranty and is in a from that is acceptable to the City. In addition, Developer shall substitute another letter of credit if the Bank that has issued the previous letter of credit becomes insolvent or if the letter of credit is void, unenforceable, or uncollectible. If the Bank which has issued the letter of credit becomes unacceptable to the City, in its sole but reasonable discretion, Developer shall, within fifteen (15) calendar days following receipt of written notice from the City, deliver to the City a substitute letter of credit meeting the requirements of this Guaranty. • e FORM OF LETTER OF CREDIT ISSUING BANK , 2006 City of Fort Worth Attn: Director Economic and Community Development Department 1000 Throckmorton Fort Worth, TX 76102 Ladies and Gentlemen: We hereby establish our irrevocable Letter of Credit No. in your favor at the request of and for the account of Pennsylvania Avenue, L.P. in the amount of One Million Dollars ($1,000,000), effective immediately. This letter of credit shall be payable in immediately available funds in U.S. Dollars upon presentation of a statement attached hereto as Annex I appropriately completed and signed by the City Manager or an Assistant City Manager of the City. This letter of credit shall expire twelve (12) months from the date hereof, but is automatically extendable, so that this letter of credit shall be deemed automatically extended, from time to time, without amendment, for one (1) year from the expiration date hereof and from each and every future expiration date, unless at least sixty (60) days prior to any expiration date we notify you by certified or registered mail that we elect not to consider this letter of credit renewed for any such additional period. Subject to the foregoing, the final expiration date hereof shall be no earlier than September 29, 2007. This letter of credit is transferable and may be transferred one or more times. However, no transfer shall be effective unless advice of such transfer shall be effective unless advice of such transfer is received by us in our standard form. We hereby agree to honor each draft drawn under and in compliance with this letter of credit if duly presented at our offices in Fort Worth, Texas. This letter of credit is subject to the International Standby Practices ISP98, International Chamber of Commerce Publication No. 590, except for Rule 4.09(c) and Rule 5.06(c)(i), and as to matters not covered by ISP98, the laws of the State of Texas. Name of Bank By: Name: Title: w ANNEX Statement 200_ Issuing Bank Attn: Re: Letter of Credit No. Ladies and Gentlemen: Please be advised that we are hereby drawing under the above-referenced Letter of Credit and that: 1. This drawing relates to: (check one) 0 The City has either not received the EDI Grant Funds or is required to repay HUD the EDI Grant Funds because your client, Pennsylvania Avenue, L.P., has failed to complete the Phase II Residential Improvements and has failed to reimburse the City in cash in an amount equal to the Phase I Grant within thirty (30) calendar days following receipt of written notice from the City, as required by and in accordance with that certain Economic and Community Development Agreement by and between the City of Fort Worth and Pennsylvania Avenue, L.P., effective as of May 3, 2005, as subsequently amended. 0 You have notified us that you elect not to renew the Letter of Credit following its expiration date and a substitute letter of credit, acceptable to us, has not been issued in our favor at least thirty (30) calendar days prior to the applicable expiration date. 2. This drawing is in the amount of $1 million (or if the Phase I Grant is less than $1 million, an amount equal to the Phase I Grant). C14" j vh, l RR ter, 8 3. The amount of the drawing should be paid to us [written instructions to be provided by City with draw request]. 4. The undersigned is an authorized representative of the beneficiary. City of Fort Worth By: Name: Title: City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 5/3/2005 DATE: Tuesday, May 03, 2005 LOG NAME: 17MAGGREENEDA REFERENCE NO.: C-20709 SUBJECT: Authorize Execution of Economic and Community Development Program Agreement with Pennsylvania Avenue, L.P. for the Magnolia Green Development Project on the Southwest Corner of West Rosedale Street and Hemphill Street RECOMMENDATION: It is recommended that the City Council: 1) Authorize the City Manager to execute the attached Economic and Community Development Program Agreement with Pennsylvania Avenue, L.P. (the Developer) for the Magnolia Green Development Project, subject to subsequent non-material revisions agreed to by the parties; and 2) Find that the terms and conditions of the Agreement, as outlined below, constitute a custom-designed economic development program, as recommended by the 2004 Comprehensive Plan and authorized by Chapter 380 of the Local Government Code. DISCUSSION: The Magnolia Green Development is a mixed-use transit oriented development project situated on the southwest corner of West Rosedale Street and Hemphill Street. The total project consists of 23,000 square feet of retail, 127,000 square feet of office, a public park, structured parking garage and at least 16 residential units, estimated at $30 million of new investment. The project will be carried out in several phases, including the Phase I Commercial Improvements (discussed below) and Phase II Residential Improvements. The Phase II Residential Improvements consist of 16 residential units, an essential component of the mixed-use character of the project. On or about April 18, 2002, the United States Housing and Urban Development Department (HUD) notified the City that the Magnolia Green Project had been selected to receive $1 million in grant funds (the EDI Grant Funds) pursuant to that certain Economic Development Initiative Grant No. B-02-SP-TX-0700 (the EDI Grant) and in support of the mixed-use development concept. The Developer commits to complete two commercial buildings on the site, totaling at least 75,000 square feet (Phase I Commercial Improvements) and certain public infrastructure supporting the Phase I Commercial Improvements by October 31, 2005. In return for constructing the Phase I Commercial Improvements, the Developer shall be reimbursed for qualifying infrastructure costs up to $1 million based on a spending ratio of one grant dollar ($1.00) for every ten dollars ($10.00) of private investment in the Phase I Commercial Improvements. The maximum grant benefit possible for Phase I is not to exceed $1 million, made possible through a minimum private investment of $10 million and subject to fulfilling its construction spending commitments below. This grant is authorized by Chapter 380 of the Texas Local Government Code. In order to obtain the maximum benefit of the EDI Grant under this Agreement, the Developer will be required to (i) spend at least 30% of total construction costs for Phase I Commercial Improvements with Fort Worth companies; (ii) spend 25% of total construction costs for Phase I Commercial Improvements http://www.cfwnet.org/council_packet/Reports/mc_print.asp 4/21/2006 Page 2 of 2 with Fort Worth Certified M/WBE companies, which commitments have been endorsed by the City's Minority and Women Business Enterprise Ad Hoc Committee; and, (iii) make best efforts to provide employment opportunities for at least 100 Fort Worth residents. Should the Developer fail to meet the construction spending commitments, the amount of grant funds the Developer would be eligible to receive shall be reduced by the percentage in which the Developer did not achieve the construction spending commitment. In order for the City's grant to Developer to be reimbursed from EDI Grant Funds, the Developer will be required to complete the Phase II Residential Improvements by July 31, 2007. If the Developer fails to complete the Phase II Residential Improvements by July 31, 2007, the Developer will repay the City an amount equal to the amount of the City's grant pursuant to the Guaranty attached to the Agreement. The development is located in Council District 9 and is located in the Magnolia Village Neighborhood Empowerment Zone. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the Grants Fund. TO Fund/Account/Centers FROM Fund/Account/C enters GR76 539120 017206766010 $1,000,000.00 Submitted for City Manager's Office b Dale Fisseler (6140) Originating Department Head: Tom Higgins (6192) Additional Information Contact: Christine Maguire (8187) http://www.cfwnet.org/counciI_packet/Reports/mc_print.asp 4/21/2006