HomeMy WebLinkAboutContract 50044 CITY SECRETARY
CONTRACT NO. b b
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
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 NTP35, LP, a Texas limited partnership ("Company").
RECITALS
The City and Company hereby agree that the following statements are true and
correct and constitute the basis upon which the City and Company have entered into this
Agreement:
A. Company wishes to develop property located at the intersection of
Interstate Highway 35W and U.S. Highway 287, as more specifically described and
depicted in Exhibit"A", attached hereto and hereby made a part of this Agreement for all
purposes (the "Development Property"). In return for the economic development
incentives set forth in this Agreement, Company is willing to tailor the development as a
commercial development that contains (i) an IKEA retail store with a total floor area of at
least 289,000 square feet; (ii) at least 48,000 square feet of space for restaurant use; (iii)
at least 66,000 square feet of space for retail and/or commercial use; and (iv) at least
75,000 square feet of Class A office space (the "Required Improvements").
B. The City's 2017 Comprehensive Plan, adopted by the City Council
pursuant to Ordinance No. 22629-03-2017 (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.
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 gr ints of--ubiic money,
as well as the provision of personnel and services of the City, to t usinesses and entitie
O"ICIAL RECORD
Page 1 CITY SECRETARY
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA) IST.WORTH,TX
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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 11380
Program").
D. The City Council has determined that the 380 Program is an appropriate
means to achieve the construction of the Required Improvements, 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 the Required
Improvements 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.
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged,the parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS.
The City Council has found, and the City and Company hereby agree, that the
recitals set forth above are true and correct and form the basis upon which the parties
have entered into this Agreement.
2. DEFINITIONS.
In addition to other terms defined in the body of this Agreement, the following
terms shall have the definitions ascribed to them as follows:
380 Program has the meaning ascribed to it in Recital C.
Affiliate means all entities, 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.
Aggregate Development Property Sales Tax Payments has the meaning
ascribed to in Section 4.8.3.
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Base Grant Percentage has the meaning ascribed to it in Section 6.1.
Certificate of Completion has the meaning ascribed to it in Section 5.
Comprehensive Plan has the meaning ascribed to it in Recital B.
Comptroller means the Texas Comptroller for Public Accounts.
Consent to Collateral Assignment has the meaning ascribed to it in Section 12.
Construction Costs means Hard Construction Costs, Tenant Improvement Costs,
plus the following costs expended in connection with construction of the Required
Improvements and the Public Infrastructure Improvements: engineering, architectural and
other design and consulting fees; real estate commissions; costs of third party consultants,
including attorneys and environmental consultants; developer fees; zoning fees; insurance
and taxes related to the construction of the Required Improvements; financing costs,
including capitalized interest; construction management fees; and costs of governmental
permits and inspection fees related to site preparation and construction.
Development Completion Date means the date as of which (i) all occupiable
space within the Requirea improvements has received a temporary or permanent
certificate of occupancy and (ii) if Company elects to construct any of the Public
Infrastructure Improvements, the punch list for those Public Infrastructure Improvements
has been completed and signed by both an authorized representative of the City and
Company's general contractor for such Public Infrastructure Improvements.
Development Completion Deadline means July 31, 2021.
Development Property has the meaning ascribed to it in Recital A.
Development Property Use means any person or entity, and any employee,
agent, Tenant, or invitee thereof, which has the legal right to use or occupy 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
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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%).
Director means the director of the City's Economic Development Department or
his authorized designee.
Effective Date has the meaning ascribed to it in Section 3.
Employment Goal has the meaning ascribed to it in Section 4.6.
Expenditure Completion Deadline means December 31, 2020.
Final Construction Report has the meaning ascribed to it in Section 4.8.1.
First Operating Year means the calendar year in which the Development
Completion Date occurs.
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 that performs a
commercially useful function; and (iii)has provided from such office the services or sales
that Company is seeking to have counted under this Agreement.
Fort Worth Company means a business that has a principal office located within
the corporate limits of the City that performs a commercially useful function and that
provides the services for which Company is seeking credit under this Agreement.
Fort Worth Construction Percentage has the meaning ascribed to it in Section
6.2.
Fort Worth Construction Spending Commitment has the meaning ascribed to
it in Section 4.2.
Fort Worth Resident means an individual whose principal place of residence is
at a location within the corporate limits of the City.
Fort Worth Supply and Service Spending Commitment has the meaning
ascribed to it in Section 4.4.
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Fort Worth Supply and Service Percentage has the meaning ascribed to it in
Section 6.4.
Full-time Equivalent Job means a job held by one (1) or more individuals on the
Development Property for, collectively, at least forty (40) hours per week. For example,
in a case where one individual works on the Development Property for 15 hours per week
and another individual works on the Development Property for 25 hours per week, those
jobs will be counted under this Agreement as one (1) Full-time Equivalent Job.
Hard Construction Costs means actual site development and construction costs
expended or caused to be expended for the Required Improvements and the Public
Infrastructure Improvements if Company elects to construct any Public Infrastructure
Improvements, including contractor fees, costs of construction labor, supplies and
materials for site preparation, construction and landscaping, and materials testing,
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 Percentage has the meaning ascribed to it in Section 6.3.
M/WBE Construction Spending Commitment has the meaning ascribed to it in
Section 4.
M/WBE Supply and Service Spending Commitment has the meaning ascribed
to it in Section 4.5.
M/WBE Supply and Service Percentage has the meaning ascribed to it in
Section 6,5.
Notice of Completion has the meaning ascribed to it in Section 4.8.2.
Program Can means Eighteen Million Dollars ($18,000,000.00), which is the
maximum number of gross dollars comprising the aggregate amount of all Program
Grants that the City will pay under this Agreement.
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 Year means one of the fifteen (15) consecutive years in which the City
is obligated to pay Company a Program Grant under this Agreement, beginning in the
calendar year following the year in which the Development Completion Date occurs.
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Public Infrastructure Improvements means that public infrastructure related to
or necessary for the Required Improvements outlined in Exhibit "B", attached hereto and
hereby made a part of this Agreement for all purposes.
Real Property Development Commitment has the meaning ascribed to it in
Section 4.1
Records has the meaning ascribed to it in Section 4.10.
Required Improvements has the meaning ascribed to it in Recital A.
Sales means all sales of merchandise (including gift and merchandise
certificates), food, alcohol, services and other receipts whatsoever of all business
conducted in, on or from the Required Improvements, whether cash or credit, including
mail, telephone, telefax, telegraph, internet or catalogue orders received or filled at or
from the Required Improvements, 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 Required Improvements,
(iii)the amount of returns to shippers and manufacturers or(iv)the sale of any fixtures.
Second Operating Year means the first full calendar year following the year in
which the Development Completion Date occurred.
Supply and Service Expenditures means all expenditures by or caused by
Company, whether pursuant to a written contract or on an ad hoc basis, related to the
operation and maintenance of the Required Improvements, including amounts paid to
third parties for the provision of personnel services, but excluding amounts paid for
electric, gas, and water utility services.
Tenant means a tenant or licensee with the legal right to occupy any portion of
the Development Property under a lease, license, or other similar agreement.
Tenant Improvement Costs means Tenant allowances paid by Company and any
Tenant expenditures in excess of Tenant allowances on all costs associated with the
design, construction, and fixturization of a Tenant's premises, including, but not limited
to, architectural, contractor, engineering and design fees, building materials and work on
a Tenant's behalf, electrical and lighting, plumbing, fire protection and sprinklers,
HVAC work, storefront and glazing, demolition, barricades and staging, and other work
performed within the Tenant's premises along with the Tenant's permanent fixtures, as
well as any other costs directly expended for the Required Improvements, but outside of
the Tenant's premises, pursuant to the Tenant's lease or other similar agreement,
including, but not limited to, common areas.
Term has the meaning ascribed to it in Section 3.
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Third Operating Year means the second full calendar year following the year in
which the Development Completion Date occurred.
3. TERM.
This Agreement shall be effective as of the date of execution by both parties (the
"Effective Date") and, unless terminated earlier pursuant to and in accordance with this
Agreement, shall expire on the date as of which the City has paid all Program Grants
required hereunder(the"Term").
4. COMPANY OBLIGATIONS AND COMMITMENTS.
4.1. Real Property Improvements.
Company must expend or cause to be expended by the Expenditure
Completion Deadline at least One Hundred Million Dollars ($100,000,000.00) in
Construction Costs for the Required Improvements and any Public Infrastructure
Improvements that Company elects to construct, and the Development
Completion Date must occur on or before the Development Completion Deadline
(collectively, the "Real Property Development Commitment"). It is
specifically understood and agreed that any Construction Costs expended for the
Required Improvements after the Expenditure Completion Deadline will not be
counted for purposes of assessing attainment of the Real Property Development
Commitment, even if such Construction Costs are expended prior to the
Development Completion Deadline.
4.2. Construction Spending Commitment with Fort Worth Companies.
Company must expend or cause to be expended by the Expenditure
Completion Deadline at least thirty percent (30%) of all Hard Construction Costs
for the Required Improvements and any Public Infrastructure Improvements that
Company elects to construct, regardless of the total amount of such Hard
Construction Costs, with Fort Worth Companies (the "Fort Worth Construction
Spending Commitment"). Construction Cost expenditures that are made to a
general contractor which is a Fort Worth Company shall be counted toward the
Fort Worth Construction Spending Commitment, regardless of whether any
subcontractors of such general contractor are themselves Fort Worth Companies.
It is specifically understood and agreed that any Hard Construction Costs
expended with Fort Worth Companies for the Required Improvements after the
Expenditure Completion Deadline will not be counted for purposes of assessing
attainment of the Fort Worth Construction Spending Commitment, even if such
Hard Construction Costs are expended prior to the Development Completion
Deadline.
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4.3. Construction Spending Commitment with Fort Worth Certified
M/WBE Companies.
Company must expend or cause to be expended by the Expenditure
Completion Deadline at least twenty-five percent (25%) of all Hard Construction
Costs for the Required Improvements, regardless of the total amount of such Hard
Construction Costs, with Fort Worth Certified M/WBE Companies (the "M/WBE
Construction Spending Commitment"). Expenditures with Fort Worth
Certified M/WBE Companies shall also be counted as expenditures with Fort
Worth Companies for purposes of measuring the Fort Worth Construction
Spending Commitment. Construction Cost expenditures that are made to a
general contractor which is a Fort Worth Certified M/WBE Company shall be
counted toward the M/WBE Construction Spending Commitment, regardless of
whether any subcontractors of such general contractor are themselves Fort Worth
Certified M/WBE Companies. It is specifically understood and agreed that any
Hard Construction Costs expended with Fort Worth Certified M/WBE Companies
for the Required Improvements after the Expenditure Completion Deadline will
not be counted for purposes of assessing attainment of the Real Property
Development Commitment, even if such Construction Costs are expended prior to
the Development Completion Deadline.
4.4. Supply and Service Spending Commitments for Fort Worth
Companies.
In the Second Operating Year and each calendar year thereafter, Company
must expend or cause to be expended at least One Hundred Twenty Thousand
Dollars ($120,000.00) in annual Supply and Service Expenditures with Fort
Worth Companies (the "Fort Worth Supply and Service Spending
Commitment").
4.5. 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 Forty Thousand Dollars
($40,000.00) in annual Supply and Service expenditures with Fort Worth
Certified M/WBE Companies (the "M/WBE Supply and Service Spending
Commitment"). Expenditures with Fort Worth Certified M/WBE Companies
will be counted as expenditures with Fort Worth Companies for purposes of
measuring the Fort Worth Supply and Service Spending Commitment outlined in
Section 4.4.
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4.6. Employment Goal.
Company will use commercially reasonable efforts to ensure that in each
Program Year at least Three Hundred Fifty (350) Full-time Equivalent Jobs are
provided on the Development Property, whether by Development Property Users
or affiliated entities, Company or an Affiliate (the "Employment Goal').
Company will reasonably assist the City, upon request by the City, in verifying
the number of Full-time Jobs provided on the Development Property. Failure to
meet the Employment Goal in any year following the year in which the
Development Completion Date occurred will not constitute a default under this
Agreement or result in any reduction to the amount of Program Grants payable
hereunder or any other penalty.
4.7. 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 Public Infrastructure
Improvements and with all applicable federal, state and local laws, ordinances
rules and regulations. If any Public Infrastructure Improvements are constructed
in a manner that does not comply with this Section 4.7, the Construction Costs for
such Public Infrastructure Improvements will not be counted for purposes of
measuring attainment of the Real Property Development Commitment.
4.8. Reports and Filings.
4.8.1. Final Construction Report.
Within thirty (30) calendar days following the date as of which
Company determines it has expended or caused to be expended at least
One Hundred Million Dollars ($100,000,000.00) in Construction Costs for
the Required Improvements, but not later than thirty (30) calendar days
following the Expenditure Completion Deadline, Company must provide a
final construction report to the City ("Final Construction Report'). The
purpose of the Final Construction Report is to assist the City in verifying
whether at least One Hundred Million Dollars ($100,000,000.00) in
Construction Costs were expended for the Required Improvements, as
well as to assess the extent to which Company met the Fort Worth
Construction Spending Commitment and the M/WBE Construction
Spending Commitment. The Final Construction Report must be in a form
reasonably acceptable to the Director that specifically outlines (i) the total
Construction Costs and Hard Construction Costs expended or caused to be
expended for the Required Improvements and any Public Infrastructure
Improvements, together with supporting invoices and other documents
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necessary to demonstrate that such amounts were actually paid, including,
without limitation, final lien waivers signed by Company's general
contractor, as well as (ii) the total Construction Costs and Hard
Construction Costs expended for construction of the Required
Improvements and any Public Infrastructure Improvements with Fort
Worth Companies and Fort Worth Certified M/WBE Companies, together
with supporting invoices and any other documents reasonably necessary to
demonstrate that such amounts were actually paid to such contractors.
4.8.2. Notice of Completion.
Within thirty (30) calendar days following the Development
Completion Date, Company must provide written notice to the City (the
"Notice of Completion"). The purpose of the Notice of Completion is to
assist the City in verifying that the Development Completion Date
occurred on or before the Development Completion Deadline.
4.8.3. Annual Sales Tax Reports.
To the extent reasonably possible, Company will require
Development Property Users to provide Company and/or the City with
annual Sales data sufficient for determining annual sales tax payments as
required by this Section 4.8.3. On or before February 1 of the Second
Operating Year and of each year thereafter, Company must provide or
cause to be provided the City with annual report(s) that set forth (i) the
total amount of Sales generated from the Required Improvements during
the previous calendar year; (ii) 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"); (iii) a
copy of the Comptroller report verifying Aggregate Development Property
Sales Tax Payments; and(iv) a list containing the retail site address of and
sales tax identification number of each Development Property User.
Company understands and agrees that the City's calculation of
Development Sales Tax Revenues in a given year will be based solely on
sales tax payments made by Development Property Users in such year.
4.8.4. Annual Supply and Service Spending 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
necessary to demonstrate that such amounts were actually paid.
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4.9. Inspections of Development Property.
At any time during Company's normal business hours throughout the
Term and following reasonable notice to Company, the City shall have the right to
inspect and evaluate the Development Property and any improvements thereon,
including the Required Improvements, and Company will provide or cause to be
provided reasonable access to the same, in order 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 shall have the right to require that any
representative of the City be escorted by a representative or security personnel of
Company or of a Development Property User having control over the premises
during any such inspection and evaluation.
4.10. Audits.
The City will have the right throughout the Term to audit the financial and
business records of Company that relate to the Required Improvements and the
Development Property and are necessary to evaluate Company's compliance with
this Agreement or with the commitments set forth in this Agreement(collectively
"Records"). Company shall make all Records available to the City on the
Development Property or at another location in the City acceptable to both parties
following reasonable advance notice by the City and shall otherwise reasonably
cooperate with the City during any audit.
5. CERTIFICATE OF COMPLETION.
Within ninety (90) calendar days following receipt by the City of both the Final
Construction Report submitted in accordance with Section 4.8.1 and the Notice of
Completion submitted in accordance with Section 4.8.2, and assessment by the City of
the information contained therein, including through the exercise of its rights under
Sections 4.9 and 4.10, if the City is able to verify attainment of the Real Property
Development Commitment set forth in Section 4.1 (that is, that Company expended or
caused to be expended at least One Hundred Million Dollars ($100,000,000.00) in
Construction Costs for the Required Improvements by the Expenditure Completion Date,
and that the Development Completion Date occurred on or before the Development
Completion Deadline), the Director will issue Company a certificate stating this fact as
well as the verified total amount of Construction Costs expended for the Required
Improvements (the "Certificate of Completion"). The Certificate of Completion will
also include a statement of the verified total amounts of the Hard Construction Costs
expended specifically with Fort Worth Companies and Fort Worth Certified M/WBE
Companies for the Required Improvements and will serve as the basis for determining the
extent to which the Fort Worth Construction Spending Commitment and the M/WBE
Construction Spending Commitment were met.
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6. PROGRAM GRANTS.
If the City verifies that the Real Property Development Commitment set forth in
Section 4.1 was met, as reflected in the Certificate of Completion issued in accordance
with Section 5, Company will be entitled to receive up to fifteen (15) annual Program
Grants, subject to the Program Cap. The amount of each Program Grant shall equal a
percentage of the Development Sales Tax Revenues received by the City in the calendar
year preceding the year in which the Program Grant is payable, which percentage will be
based on the extent to which the various commitments set forth in Section 4 were met
and, specifically, will equal the sum of the Base Grant Percentage, the applicable Fort
Worth Construction Percentage, the applicable M/WBE Construction Percentage, and, for
the Program Grants payable in Program Years 2 through 15, the Fort Worth Supply and
Service Percentage and the M/WBE Supply and Service Percentage, as defined and
outlined in Sections 6.1, 6.2, 6.3, 6.4, and 6.5. Notwithstanding anything to the contrary
herein, aggregate Program Grants payable under this Agreement will be subject to and
will not exceed the Program Cap.
6.1. Attainment of Real Property Development Commitment (40%).
Provided that the City is able to verify that the Real Property Development
Commitment set forth in Section 4.1 was met, each annual Program Grant will
include an amount equal to forty percent (40%) of the Development Sales Tax
Revenues received in the calendar year preceding the year in which the Program
Grant is payable (the "Base Grant Percentage").
6.2. Fort Worth Construction Spending Commitment (Up to 20% for
Program Year 1; Up to 10% Thereafter).
A percentage of each Program Grant will be based on the extent to which
the Fort Worth Construction Spending Commitment, as outlined in Section 4.2,
was met (the "Fort Worth Construction Percentage"). For the first Program
Grant, payable in Program Year 1, the Fort Worth Construction Percentage will
equal the product of twenty percent (20%) multiplied by the percentage by which
the Fort Worth Construction Spending Commitment was met, which will be
calculated by dividing the actual Hard Construction Costs expended for the
Required Improvements with Fort Worth Companies by the number of dollars
comprising the Fort Worth Construction Spending Commitment, as determined in
accordance with Section 4.2. For all subsequent Program Grants, payable in
Program Years 2 through 15, the Fort Worth Construction Percentage will equal
the product of ten percent (10%) multiplied by the percentage by which the Fort
Worth Construction Spending Commitment was met. For example, if Company
expended or caused to be expended $75,000,000.00 in Hard Construction Costs
for the Required Improvements, the Fort Worth Construction Spending
Commitment would be $22,500,000.00 (30% of $75,000,000.00). If only
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$18,000,000.00 in Hard Construction Costs for the Required Improvements were
expended for the Required Improvements with Fort Worth Companies, the Fort
Worth Construction Percentage for the Program Grant payable in Program Year 1
would be 16% instead of 20% (or .20 x [$18 million/$22.5 million], or .20 x .80,
or .16). For all subsequent Program Grants, payable in Program Years 2 through
15, the Fort Worth Construction Percentage would be 8% instead of 10% (or .10
[$18 million/$22.5 million], or .10 x .80, or .08. If the Fort Worth Construction
Spending Commitment was met or exceeded, the Fort Worth Construction
Percentage for the Program Grant payable in Program Year 1 will be twenty
percent (20%), and for all subsequent Program Grants, it will be ten percent
(10%).
6.3. M/WBE Construction Spending Commitment(Up to 20% for
Program Year 1; Up to 10% Thereafter).
A percentage of each Program Grant will be based on the extent to which
the M/WBE Construction Spending Commitment, as outlined in Section 4.3, was
met (the "M/WBE Construction Percentage"). For the first Program Grant,
payable in Program Year 1, the M/WBE Construction Percentage will equal the
product of twenty percent (20%) multiplied by the percentage by which the
M/WBE Construction Spending Commitment was met, which will be calculated
by dividing the actual Hard Construction Costs expended for the Required
Improvements with Fort Worth Certified M/WBE Companies by the number of
dollars comprising the M/WBE Construction Spending Commitment, as
determined in accordance with Section 4.3. For all subsequent Program Grants,
payable in Program Years 2 through 15,the M/WBE Construction Percentage will
equal the product of ten percent (10%) multiplied by the percentage by which the
M/WBE Construction Spending Commitment was met. If the M/WBE
Construction Spending Commitment was met or exceeded, the M/WBE
Construction Percentage for the Program Grant payable in Program Year 1 will be
twenty percent (20%), and for all subsequent Program Grants, it will be ten
percent(10%).
6.4. Fort Worth Supply and Service Spending(Up to 10% 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
4.4, was met (the "Fort Worth Supply and Service Percentage"). The Fort
Worth Supply and Service Percentage will equal the product of ten percent (10%)
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 $120,000.00, which is the Fort Worth Supply and Service
Spending Commitment. For example, if only $108,000.00 in Supply and Service
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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 9%
instead of 10% (or .10 x [$108,000/$120,000], or .10 x .90, or .09). 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 ten percent (10%). 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.
6.5. Fort Worth M/WBE Supply and Service Spending(Up to 10% after
Pro>_ram 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
4.5, was met (the "M/WBE Supply and Service Percentage"). The M/WBE
Supply and Service Percentage will equal the product of ten percent (10%)
multiplied by the percentage by which the M/WBE Supply and Service Spending
Commitment was met, which will be calculated by dividing the actual Supply and
Service Expenditures made in the previous calendar year with Fort Worth
Certified M/WBE Companies by $40,000.00, which is the M/WBE Supply and
Service Spending Commitment. 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 ten percent(10%). 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.
6.6. No Offsets.
A deficiency in attainment of one commitment may not be offset by the
exceeding attainment of another commitment. For example, if the M/WBE
Construction Spending Commitment was missed by $50,000.00 in Hard
Construction Cost expenditures, but the Fort Worth Construction Spending
Commitment was exceeded by $50,000.00 in Hard Construction Cost
expenditures, the M/WBE Construction Percentage for each Program Grant would
still be reduced in accordance with Section 6.3 on account of the failure to meet
the M/WBE Construction Spending Commitment.
6.7. Deadline for Payments and Source of Funds.
The first Program Grant payable hereunder shall be paid by the City on or
before June 1 of the year following the year in which the Development
Page 14
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
Completion Date occurs. Each subsequent annual Program Grant payment will be
made by the City to Company on or before June 1 of the year in which such
payment is due. It is understood and agreed that all Program Grants paid pursuant
to this Agreement shall come from currently available general revenues of the
City and not directly from Development Property Sales Tax Revenues that are
received by the City. Company understands and agrees that any revenues of the
City other than those dedicated for payment of a given annual Program Grant
pursuant to and in accordance with 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.
7. DEFAULT, TERMINATION AND FAILURE BY COMPANY TO MEET
VARIOUS DEADLINES AND COMMITMENTS.
7.1. Failure to Meet Real Property Development Commitment.
Notwithstanding anything to the contrary herein, the City shall have the
right to terminate this Agreement immediately upon provision of written notice to
Company, without further obligation to Company hereunder, if the Real Property
Development Commitment, as outlined in Section 4.1 is not met.
7.2. No Default for Failure to Meet Fort Worth and M/WBE Construction
Spending Commitments, Supply and Service Spending Commitments,
or Employment Goal.
If the Fort Worth Construction Spending Commitment or the M/WBE
Construction Spending Commitment are not met, or the Fort Worth Supply and
Service Spending Commitment or the M/WBE Supply and Service Spending
Commitment are not met in any given year, such failure shall not constitute a
default hereunder or provide the City with the right to terminate this Agreement,
but, rather, shall only cause the amount of the Program Grant that the City is
required to pay in the following year to be reduced in accordance with this
Agreement. If the Employment Goal is not met in any given year, such failure
shall not constitute a default hereunder or result in any reduction to the amount of
Program Grants payable hereunder or any other penalty.
7.3. Failure to Submit Reports.
If Company fails to submit any report required by and in accordance with
Section 4.7, the City's obligation to pay any Program Grants at the time, if any,
shall be suspended until Company has provided all required reports; provided,
however, that if any report required hereunder is delinquent by more than one (1)
year, Section 7.6 shall apply.
Page 15
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
7.6. General Breach.
Unless stated elsewhere in this Agreement, Company shall be in default
under this Agreement if Company breaches any term or condition of this
Agreement. In the event that such breach remains uncured after thirty (30)
calendar days following receipt of written notice from the City referencing this
Agreement (or, if 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 shall have the right 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 2264.001(4) of the
Texas Government Code. 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):
• if such conviction occurs during the Term of this Agreement, this
Agreement shall terminate contemporaneously upon such conviction
(subject to any appellate rights that may lawfully be available to and
exercised by Company) and Company shall repay, within one hundred
twenty (120) calendar days following receipt of written demand from the
City, the aggregate amount of the Program Grants received by Company
hereunder, if any,plus Simple Interest at a rate of four percent (4%)per
annum;or
• if such conviction occurs after expiration or termination of this
Agreement, subject to any appellate rights that may lawfully be available
to and exercised by Company, Company shall repay, within one hundred
twenty (120) calendar days following receipt of written demand from the
City, the aggregate amount of the Program Grants received by Company
hereunder, if any,plus Simple Interest at a rate of four percent (4%)per
annum.
For the purposes of this Section 7.7, "Simple Interest" is defined as a rate of
interest applied only to an original value, in this case the aggregate amount of
Program Grants paid hereunder. This rate of interest can be applied each year, but
Page 16
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
will only apply to the aggregate amount of Program Grants paid hereunder and is
not applied to interest calculated. For example, if the aggregate amount of the
Program Grants paid hereunder is $10,000 and such amount is required to be paid
back with four percent (4%) interest five years later, the total amount would be
$10,000 t [5 x ($10,000 x 0.04)], which is $12,000. This Section 7.7 does not
apply to convictions of any subsidiary or affiliate entity of Company, by any
franchisees of Company, or by a person or entity with whom Company contracts.
Notwithstanding anything to the contrary herein, this Section 7.7 shall survive the
expiration or termination of this Agreement.
8. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Company shall operate as an
independent contractor in each and every respect hereunder and not as an agent,
representative or employee of the City. Company shall have the exclusive right to
control all details and day-to-day operations relative to the Required Improvements and
the Development Property and any improvements thereon and shall be solely responsible
for the acts and omissions of its officers, agents, servants, employees, contractors,
subcontractors, licensees and invitees. Company acknowledges that the doctrine of
respondeat superior will not apply as between the City and Company, its officers, agents,
servants, employees, contractors, subcontractors, licensees, and invitees. Company
further agrees that nothing in this Agreement will be construed as the creation of a
partnership or joint enterprise between the City and Company.
9. FORCE MAJEURE.
If Company gives written notice to the City that Company cannot perform one or
more of Company's obligations because of an event of force majeure within ninety (90)
calendar days of the occurrence of the event of force majeure, Company's obligations
shall be suspended in whole or in part for the time and to the extent reasonably necessary
to allow Company to overcome the event of force majeure and resume performance
thereof. If there is an event of force majeure, then the time period to which benefits
apply under this Agreement shall be adjusted to provide Company the benefits that
Company would have received in the absence of the event of force majeure. For
purposes of this provision, "force majeure" means lightning, earthquakes, hurricanes,
storms, floods, or other natural occurrence or act of God; strikes, lockouts, riots, wars, or
other civil disturbances; 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 Property; or explosions, fires, or similar events not reasonably within the
control of Company or Company's agents or contractors regardless of whether any such
circumstance is similar to any of those enumerated or not, with the understanding that the
Page 17
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
inability to obtain adequate financing to fund any of Company's obligations or
commitments under this Agreement does not constitute an event of"force majeure."
10. INDEMNIFICATION.
COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND,
INDEMNIFY AND HOLD THE CITY, ITS OFFICERS,AGENTS SERVANTS AND
EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS,
ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT
LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY
RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING
DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY(i)
COMPANY'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR
SUBCONTRACTORS, RELATED TO THE REQUIRED IMPROVEMENTS AND
ANY OPERATIONS AND ACTIVITIES ON THE DEVELOPMENT PROPERTY OR
OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT.
11. 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: Company:
City of Fort Worth NTP35, LP
Attn: City Manager Attn: Steve McKeever
200 Texas Street 275 Main Street, Suite 211
Fort Worth, TX 76102 Edwards, CO 81632
with copies to:
the City Attorney and
Economic Development
Director at the same address
Page 18
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
12. ASSIGNMENT AND SUCCESSORS.
Company may at any time assign, transfer or otherwise convey any of its rights or
obligations under this Agreement to an Affiliate without the approval of the City 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 Required Improvements and/or Development Property without the
consent of the City Council, provided that Company and the financial institution or other
lender first execute a written agreement with the City in substantially the same form as
that attached hereto as Exhibit "C", 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"). Otherwise,
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 prior consent of the City
Council, which consent shall not be unreasonably withheld, conditioned on (i) the prior
approval of the assignee or successor and a finding by the City Council that the proposed
assignee or successor is financially capable of meeting the terms and conditions of this
Agreement and (ii) prior execution by the proposed assignee or successor of a written
agreement with the City under which the proposed assignee or successor agrees to assume
and be bound by all covenants and obligations of Company under this Agreement. Any
attempted assignment without the City Council's prior consent shall 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 shall be deemed "Company" for all purposes under this
Agreement.
13. 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.
14. 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.
Page 19
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
s- 1
15. 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.
16. 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.
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. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of
this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither
more strongly for or against any party,regardless of the actual drafter of this Agreement.
19. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and
shall not be deemed a part of this Agreement.
20. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way
be affected or impaired.
Page 20
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
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.
EXECUTED as of the last date indicated below:
CITY OF FORT WORTH: NTP35, LP, a Texas limited partnership:
By:NTP Investments LLC, a Texas
limited liability company and its sole
General Partner
By:-- sy;
Jesus J. Chapa Name:
Assistant City Manager Title: .44
Date: / J 7 Date:
Page 21
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
CONTRACT COMPLIANCE MANAGER:
By signing below, I hereby acknowledge that I
am the person responsible for the monitoring
and administration of this contract, including
ensuring all performance and reporting
requirements:
By:
Nametr"�
City Employee:
Title: --
APPROVED AS TO FORM AND LEGALITY:
By:
Peter Vaky 67
Deputy City Attorney
M&C: C-28275 6-13-17
Form 1295: 2017-2068 57N
O,�•FORr�o
,Attatted by:
ary J s ty Secre
ACAS
OFFICIAL
Page 22 CITY SEC%:I]
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA) FT WOR
EXHIBITS
"A"—Description and Map of the Development Property
"B"—Public Infrastructure Improvements
"C"—Form of Consent to Collateral Assignment
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
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MAP OF THE DEVELOPMENT PROPERTY
SSD SUBW Avemm•Wte 400•fart Waft Texas 76107
Tet 8,7.335.,141 FORT WORTH, TEXAS
trXW- F-1 14
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METES AND BOUNDS DESCRIPTION
TRACT 2
BEING a 146.11-acre tract of land situated in the William McCowen Survey, Abstract Number 999 in Tarrant
County,Texas and being the residue of that 165.87-acre tract of land described as Tract 2 in deeds to Ellesmere
Investment Corporation, N.V.as recorded in Volume 6617, Page 99 and in Volume 6709, Page 791 of the Deed
Records of Tarrant County, Texas (D.R.T,C.T.), said 146.11-acre tract of land being referred to hereinafter as "the
above referenced tract of land" and being more particularly described by metes and bounds as follows:
3
Z BEGINNING at a 5/8-inch-diameter iron rod with cap stamped "DUNAWAY ASSOC. LP" set(referred to hereinafter
0. as "a 5/8-inch diameter iron rod with cap set")to mark the northeast corner of the above referenced tract of land
and the west line of the right-of-way for Interstate Highway 35 West(1-35W), said point also marking a re-entrant
corner of that called 3.429-acre tract of land described as Parcel 5 in deed to the State of Texas as recorded under
County Clerk's File Number(C.C.F.) D204292513 of the Official Public Records of Tarrant County,Texas and the
x northeast corner of that called 0.560-acre easement described in deed to the State of Texas as recorded under
C.C.F. D20429514 of said O.P.R.T.C.T.;
? THENCE South 00 degrees 34 minutes 05 seconds East,with the common line between the above referenced tract
y of land, said 3.429-acre tract of land and said 1-35W right-of-way, at 485.12 feet passing the southeast corner of
said 0.560-acre tract, in all a total distance of 1,159.91 feet to a 5/8-inch diameter iron rod with cap set to mark
the southwest corner of said 3.429-acre tract and an angle point in the west line of said 1-35W right-of-way;
THENCE North 89 degrees 26 minutes 33 seconds East,with the south line of said 3.429-acre tract of land and said
right-of-way line, a distance of 3.83 feet to a Texas Department of Transportation,Type II monument(TxDOT
monument)found marking the easternmost northwest corner of that called 7.749-acre tract of land described in
deed to the State of Texas as recorded under C.C.F. D205080406 of said O.P.R.T.C.T.;
0
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THENCE South 00 degrees 33 minutes 20 seconds East with the common line between the above referenced tract
of land, said 7.749-acre tract of land, and said 1-35W right-of-way, a distance of 1,367.38 feet to a 5/8-inch
diameter iron rod with cap set to mark the beginning of a curve to the right having a radius of 448.48 feet, a
central angle of 133 degrees 41 minutes 41 seconds and a long chord which bears South 66 degrees 17 minutes 30
seconds West, a distance of 824.72 feet;
2
I
THENCE, in a southwesterly direction with said curve to the right in said right-of-way line and a northwest line of
said 7.749-acre tract, a distance of 1,046.50 feet to a TxDOT monument found marking the northeast line of the
right-of-way for U.S Highway 81/287 (U.S. 287);
z THENCE North 46 degrees 51 minutes 39 seconds West, continuing with the common line
w between the above referenced tract of land, said 7.749-acre tract of land and the northeast line of said U.S. 287, a
distance of 2,955.76 feet to the southwest-most southeast line of that 8.601-acre right-of-way conveyed to the
City of Fort Worth by Judgment recorded under C.C.F. D207377959 of said O.P.R.T.C.T.,from which point, a TxDOT
Q monument bears North 46 degrees 51 minutes 39 seconds West, a distance of 5.77 feet and a second TxDOT
i~
monument bears South 76 degrees 12 minutes 11 seconds West, a distance of 10.64 feet;
P
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DUNAWAY
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350 Bailey Avenue•Suite 40D•Fart Worth,Texas 76107
Tel:817.335.1 12T
RRER F•71141
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METES AND BOUNDS DESCRIPTION
TRACT 2
THENCE North 43 degrees 10 minutes 16 seconds East, departing the common line between the above referenced
tract of land, said 7.749-acre tract and the northeast line of said U.S. 287 and with said southwest-most, southeast
line of said 8.601-acre tract of land, a distance of 5.71 feet to a 1/2-inch-diameter iron rod with yellow cap
stamped "HALFF ASSOC INC'found marking an angle point;
3 THENCE with the common line between the above referenced tract of land and said 8.601-acre tract of land, the
following courses and distances:
t North 46 degrees 52 minutes 41 seconds West, a distance of 161.21 feet to a 1/2-inch-diameter iron rod with
yellow cap stamped "HALFF ASSOC INC'found marking an angle point;
North 36 degrees 06 minutes 51 seconds West, a distance of 550.22 feet to a 5/8-inch diameter iron rod with cap
set to mark an angle point;
w North 37 degrees 34 minutes 17 seconds East,a distance of 101.82 feet to a 5/8-inch diameter iron rod with cap
set to mark an angle point;
Z North 60 degrees 16 minutes 03 seconds East,a distance of 344.82 feet to a 5/8-inch diameter iron rod with cap
set to mark an angle point;
North 84 degrees 26 minutes 26 seconds East, a distance of 150.74 feet to a 5/8-inch diameter iron rod with cap
set to mark an angle point;
North 79 degrees 04 minutes 13 seconds East, a distance of 89.43 feet to a 5/8-inch diameter iron rod with cap set
to mark an angle point;
North 89 degrees 27 minutes 21 seconds East, a distance of 1,840.23 feet to a 5/8-inch diameter iron rod with cap
set to mark an angle point;
South 88 degrees 56 minutes 19 seconds East, a distance of 294.13 feet to a 5/8-inch diameter iron rod with cap
3 set to mark an angle point;
g South 80 degrees 42 minutes 52 seconds East, a distance of 478.69 feet to a 5/8-inch diameter iron rod with cap
U set to mark an angle point, said point also being on the west line of the above referenced 0.560-acre easement
tract;
THENCE North 00 degrees 33 minutes 50 seconds West, continuing with the common line between the above
referenced tract of land and said 8.601-acre tract of land and with the western-most west line of said 0.560-acre
8 easement tract, a distance of 59.58 feet to a 5/8-inch diameter iron rod with cap set to mark the northern-most
southwest corner of the above referenced 3.429-acre tract of land;
V
THENCE North 89 degrees 25 minutes 15 seconds East, departing the common line between the above referenced
0 tract of land and said 8.601-acre tract and with the north-most south line of said 3.429-acre tract,a distance of
116.00 feet to the POINT OF BEGINNING and containing 146.11 acres (6,364,509 square feet)of land, more or less.
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DUNAWAY
550 Haley avemie•Suite 400•Fat Worth,Texas 76107
Tal:817335.1121
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Aw DUNAWAY PUBLIC INFRASTRUCTURE IMPROVEMENTS
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Tel: F-11148 US 287 & 1-35W FORT WORTH, TX
EXHIBIT "C"
Form of Consent to Collateral Assignment
CONSENT TO ASSIGNMENT
FOR SECURITY PURPOSES OF
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
BETWEEN CITY OF FORT WORTH
AND NTP35, LP
(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; NTP35, LP ("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 , 2017 (the "EDPA")
pursuant to which the City agreed to pay Company certain Program Grants in return for
Company's construction of a commercial development in the City at the intersection of
Interstate Highway 35W and U.S. Highway 287, as more specifically outlined in the
EDPA. The EDPA is a public document on file in the City Secretary's Office as City
Secretary Contract No
B. Section 12 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 Required Improvements and/or Development Property
(both as defined in the EDPA) without the approval of the City Council, provided that
Company and the financial institution or other lender first execute a written agreement
with the City governing the rights and obligations of the City, Company, and the financial
institution or other lender with respect to such security interest.
C. Company wishes to obtain a loan from Lender in order to [state reason for
loan] (the "Loan"). As security for the Loan, certain agreements between Company and
Lender governing the Loan and dated , including, but not limited
to, that certain Loan Agreement and [list other related documents] (collectively, the
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
"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
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
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 12 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.
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
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]
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
CITY OF FORT WORTH: APPROVED AS TO FORM
AND LEGALITY:
By: By:
Name: Name:
Assistant City Manager Assistant City Attorney
Date: M&C: none required
CONTRACT COMPLIANCE MANAGER:
By signing below, I hereby acknowledge that I
am the person responsible for the monitoring
and administration of this contract, including
ensuring all performance and reporting
requirements:
By:
Name of City Employee:
Title:
NTP35,LP, a Texas limited partnership:
By: NTP Investments LLC, a Texas
limited liability company and its
sole General Partner
By:
Name:
Title:
Date:
Economic Development Program Agreement
between City of Fort Worth and NTP35,LP(IKEA)
M&C Review Pagel of 3
Official
CITY COUNCIL AGENDA F0111 WORTH
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DATE: 6/13/2017 REFERENCE NO.: C-28275 LOG NAME: 17NTP35EDPA
CODE: C TYPE: NON-CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of Economic Development Program Agreement with NTP 35 LP or
an Affiliate for a Mixed-Use Development to be Located at the Intersection of Interstate
Highway 35W and U.S. Highway 287 (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to execute an Economic Development Program Agreement with NT
35 LP or one of its affiliates for a mixed-use development to be located at the intersection
Interstate Highway 35W and U.S. Highway 287; and
2. Find that the terms and conditions of the Agreement, as outlined below, constitute a custon
designed Economic Development Program, as recommended by the 2016 Comprehensive Plan ar
authorized by Chapter 380 of the Texas Local Government Code.
DISCUSSION:
NTP 35 LP or one of its affiliates (Developer) plans to construct a mixed use development located
the intersection of Interstate Highway 35W and U.S. Highway 287 (Project or Development). Th
Developer will invest at least $100 million in total development costs (exclusive of land acquisitic
costs) including public and private roads, utilities and storm water collection, infrastructure ar
amenities by December 31, 2020. The Development will consist of at least 478,000 square feet
development that will be include the following minimums:
• 289,000 square feet IKEA Store
• 48,000 square feet restaurant space
• 66,000 square feet retail/commercial space
• 75,000 square feet of Class A office space
All space that is intended to be occupied must have a temporary or final certificate of occupancy t
July 31, 2021. So long as the developer meets the $100 million development cost requirement th
Agreement shall remain in effect and the rebates shall begin with reimbursements for the Fiscal Ye,
2021.
The Developer will cause to be expended a minimum 30 percent of hard construction costs wii
contractors that are Fort Worth contractors and a minimum 25 percent of hard construction costs wii
contractors that are certified Fort Worth Minority and Women Business Enterprise (M/WBE
contractors, with the understanding that expenditures with Fort Worth M/WBEs count toward the Fo
Worth contractor minimum. The Developer will spend a minimum of $120,000.00 of annus
discretionary service and supply expenditures with Fort Worth companies and a minimum
$40,000.00 of annual discretionary service and supply expenditures with certified Fort Worth MMB
contractors, with the understanding that expenditures with Fort Worth M/WBEs count toward the Fo
Worth minimum requirement. It is anticipated that the Development will employ a minimum of 350 FL
Time Employees (FTEs) on the property through its contractors, tenants and affiliated compar
employees within 365 calendar days of being issued the first City of Fort Worth Certificate
http://apps.cfwnet.org/council_packet/mc review.asp?ID=24706&councildate=6/13/2017 12/12/2017
M&C Review Page 2 of 3
Occupancy.
Due to a financial gap in project feasibility, Staff recommends entering into an Econom
Development Program Agreement with Developer for the project, as authorized by Chapter 380 of th
Texas Local Government Code. The recommended Agreement provides for annual program grafi
payments equal to up to 80 percent of the incremental City $.01 sales tax attributable to th
development for a period of 15 years capped at $18,000,000.00 gross value for the maximum tot;
incentive amount.
The actual amount of each annual program grant will depend upon the extent which Developer he
met its commitments, as allocated in the chart below:
Developer Commitment Year 1 Year 2 -
15
40 40
$100 million in Total Investment (Base Commitment) Percent Percent
20 10
30 Percent Hard Construction Costs with Fort Worth Companies Percent Percent
25 Percent Hard Construction Costs with Fort Worth MWBE 20 10
Companies Percent Percent
$120,000.00 Annually with Fort Worth Companies for Services 10
and Supplies Percent
$40,000.00 Annually with Fort Worth MWBE Companies for 10
Services and Supplies Percent
80 80
TOTAL
Percent Percent
Except for cases of default, failure to meet a commitment will result in a reduction of th
corresponding component of the grant for that year proportional to the amount by which th
commitment was not met, or for the duration of the Agreement in the case of constructic
commitments.
This project is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that approval of the above recommendation will have no material
effect on the Fiscal Year 2017 Budget. Upon approval of this Agreement, the long term financial
impacts will be included in the multi-year financial forecast.
TO
Fund Department Account Project Program Activity Budget Reference# Amoun
ID ID I I Year (Chartfield 2).__.._..
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M&C Review Page 3 of 3
FROM
Fund Department Account Project Program Activity Budget Reference# I Amoun
ID ID Year (Chartfield 2)
Submitted for City Manager's Office by: Jay Chapa (5804)
Originating Department Head: Robert Sturns (212-2663)
Additional Information Contact: Robert Sturns (212-2663)
ATTACHMENTS
170512 NTP35 1295.pdf
SiteplanGradient TractEatStreet.pdf
http://apps.cfwnet.org/council_packet/mc review.asp?ID=24706&councildate=6/13/2017 12/12/2017
CERTIFICATE OF INTERESTED PARTIES
FORM 1.295
10f
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-206578
NTP35, LP
Fort Worth,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 05/11/2017
being filed.
City of Fort Worth Date Acknowledged:
LP ()1
3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a
description of the services,goods,or other property to be provided under the contract.
NA
Sales Tax Reimbursements
Nature of interest
4
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
5 Check only if there is NO Interested Party. ❑
X
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
""��•, DANIELLE ISENBERG
Notary Public,State of lexos
Comm.Expires 04-05-2020
Notary ID 125790919
Signature of orized agent of contracting business entity
AFFIX NOTARY STAMP.'SEAL ABOVE
Sworn to and subscribed before me,by the said J this the day of
20��,to certify which,witness my hand and seal of office.
Signature of officer administeringth Printed name of officer administering o Title of officer administerin ath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883