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HomeMy WebLinkAboutContract 36482-A5CITY SECRETARY CONTRACT We AMENDED AND RESTATED OIVIIC DEVELOPMENT PROGRAM AGREEMENT (CITY SECRETARY CONTRACT NO. 36482) This AMENDED AND RESTATED ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Amended and Restated 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 MUSEUM PLACE HOLDINGS, LLC ("Developer"), a Texas limited liability company. BANK OF THE OZARKS ("Lender"), a financial institution organized under the laws of the State of Arkansas that is authorized to do business in the State of Texas, consents to this Amended and Restated Agreement for the limited purposes set forth herein. The following introductory provisions are true and correct and for the basis of this Amended and Restated Agreement: A. As of January 14, 2008 the City and Developer entered into that certain Economic Development Program Agreement on file in the City Secretary's Office as City Secretary Contract No. 36482, as amended by City Secretary Contract Nos. 37066, 36482-A2, 36482-A3, and 36482-A4 (collectively, the "Original Agreement"). Under the Original Agreement, Developer agreed, among other things, to construct a mixed - used development on certain real property located in the City's cultural district, which has been identified by the Comprehensive Plan as a regional mixed -use growth center where public incentives could effectively be used as a catalyst for beneficial long-term planned development in the City. In return, the City agreed to pay Developer certain Program Grants as authorized by Chapter 380 of the Texas Local Govermnent Code and outlined in the Original Agreement. The total amount of all aggregate Program Grants payable by the City under the Original Agreement was $26,000,000.00, gross (defined in the Original Agreement as the "Program Cap"). B. Under the Original Agreement, Developer was required to construct the development in four (4) different phases, each of which had a completion deadline established by the Agreement. Due to changes in market conditions since the Effective Date of the Agreement, Developer has requested that the Original Agreement be amended to eliminate the phases of the development defined in the Original Agreement as "Phase III" and "Phase IV." Because of the public benefits that the City will receive from the development, as outlined in the Recitals of the Original Agreement, the City is willing to amend the Original Agreement in order to address Developer's request. However, to ensure that the amount of aggregate Program Grants paid to Developer is commensurate with the value of the public benefits received from construction of only Phase I and Phase II of the Development (as defined herein), it is necessary to reduce the Program Cap from $26,000,000.00 to $10,000,000.00, gross. Page 1 Amended and Restated CSC No. 36482 pp CIAL REC�R� Economic Development Program Agreement hetween City of Fort Worth and Museum Place Hold g��P,� CITY SECRETARY WANEDFT. WORTH, TX C. The Original Agreement also required that Developer construct as part of the Phase II Improvements at least 180,000 square feet of Residential Apartment Units. A certain number of Residential Apartment Units were required to be reserved for lease exclusively as quality affordable housing units, as more specifically set forth in the Original Agreement. Of the affordable housing units addressed in the Original Agreement, a certain number of them were -required to be reserved for lease to qualifying households whose adjusted incomes did not exceed the United States Department of Housing and Urban Development's 65 percent income levels for the Fort Worth - Arlington, TX HUD Metro FMR Area. The parties wish to amend this provision to stipulate that the units will be reserved for qualifying households whose adjusted incomes do not exceed 60 percent income levels for the area, which will make the units available to more people in search of quality, affordable housing. D. Because of the scope of these desired amendments and the impact they have on calculating future Program Grants, for ease of reference the parties wish to reflect these changes in this Amended and Restated Agreement, which will replace and supersede the Original Agreement. E. The Ciiy, Developer and Lender previously entered into that certain Consent to Assignment for Security Purposes of Economic Development Agreement between City of Fort Worth and Museum Place Holdings, LLC (City Secretary Contract No. 36482, as amended), dated on or about July 14, 2008 (the "Consent"). Under the Consent, Lender has a security interest in the Original Agreement and the Program Grants payable to Developer to secure certain financing provided by Lender to Developer. Section 6(c) of the Consent states that until Lender discharges its security interest in the Original Agreement and the Program Grants, Lender must consent to any proposed amendment to the Original Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Developer hereby agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The City Council has found, and the City and Developer hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Amended and Restated Agreement. The provisions set forth below constitute a complete restatement of and amendment to City Secretary Contract No. 36482, as previously amended by City Secretary Contract Nos. 36482-A1, 36482-A2, 36482-A3 and 36482-A4. Any conflict between the provisions of the Agreement set forth herein, including any exhibits attached hereto, and the provisions of the contracts enumerated above, including any exhibits attached thereto, will be resolved in favor of Page 2 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City ofFort Worth and Museum Place Holdings, LLC k the provisions set forth herein. The term "Agreement", as hereinafter used, will refer to the Original Agreement, as amended and restated by this Amended and Restated Agreement, The Original Agreement is replaced and superseded in its entirety by this Amended and Restated Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: 380 Program means an economic development program established by the City, as recommended by the Comprehensive Plan and in accordance with Resolution No. 2704, adopted by the City Council on January 30, 2001, 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. Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling Developer and any condominium owners association formed in connection with a condominium regime within the Development. For purposes A this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Affordable Housinu Commitment has the meaning ascribed to it in Section 4.7. Affordable Housing Units has the meaning ascribed to it in Section 4.7. Agreement has the meaning ascribed to it in Section I. Certificate of Completion for a Phase of the Development has the meaning ascribed to it in Section 5.1. Completion Date for a Phase of the Development means the date as of which the City receives a Notice of Completion for that Phase (as may be supplemented in accordance with this Agreement), whether the Phase I Completion Date or the Phase II Completion Date. If a Notice of Completion is supplemented, the Completion Date for that Phase shall be the date of the last supplement. Completion Deadline for a Phase of the Development, as generally used herein, means the Phase I Completion Deadline or the Phase II Completion Deadline, as applicable. Page 3 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holduigs, LLC Comprehensive Plan means the 2007 Comprehensive Plan, adopted by the City Council on February 20, 2007 pursuant to Ordinance No. 1741M2-2007 which defines a nixed -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. Construction Costs means Hard Construction Costs; engineering fees; architectural fees; and other professional, development and permitting fees directly related to the design and construction of the Required Improvements. Development means a mixed -use development on the Development Property in two (2) phases (Phases I and II), each of which is more specifically defined in Section 2 of this Agreement. The Development Property consists of or will be replatted to consist of two (2) separate parcels, with each phase of the Development constructed on one of the parcels. The proposed Development is generally depicted in the schematic attached hereto as Exhibit "B", which is hereby made a part of this Agreement for all purposes. Development Property means approximately twelve (12) acres of land flanking West 7th Street in the cultural district area of the City west of the intersections of University Drive, Camp Bowie Boulevard, West 7th Street and Bailey Street (the "Development Property"). The Development Property is specifically described in Exhibit "A", attached hereto and hereby made a part of this Agreement for all purposes. Director means the director of the City's Economic Development Department or successor City department. Effective Date has the meaning ascribed to it in Section 3. Employment Goal has the meaning ascribed to it in Section 4.4. First Operating Year of a given Phase means the first full year following the year in which the Completion Date for that Phase occurs. Fort Worth Certified M/WBE Company means a minority or woman -owned business that has received certification as either a minority business enterprise (MBE), a woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the North Texas Regional Certification Agency (NTRCA) and that has a principal business office located within the corporate limits of the City that performs a commercially useful function and that provides the services for which Developer is seeking credit under this Agreement. thin Fort Worth Company means a business that has a principal office located wi the corporate limits of the City that performs a commercially useful function and that provides the services for which Developer is seeking credit under this Agreement. Page 4 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth azid Museum Place Holdings, LLC Fort Worth Construction Commitment has the meaning ascribed to it in Section 4.2. Fort Worth Construction Percentage has the meaning ascribed to it in Section 5.2.1.2. Fort Worth Supply and Service Percentage has the meaning ascribed to it in Section 5.2.1.4. Fort Worth Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.5. Hard Construction Costs means the actual site development and construction costs, contractor fees and the costs of supplies and materials. HUD means the United States Department of Housing and Urban Development or successor agency. HUD Units has the meaning ascribed to it in Section 4.7. Job means a job provided to an individual by a Parcel User on any given Parcel. M/WBE Construction Commitment has the meaning ascribed to it in Section 4.3. M/WBE Construction Percentage has the meaning ascribed to it in Section 5.2.1.3. M/WBE Supply and Service Percentage has the meaning ascribed to it in Section 5.2.1.5. M/WBE Supply and Service Spending Commitment has the meaning ascribed to it in Section 4.6. Notice of Completion has the meaning ascribed to it in Section 4.8.2.2. Overall Construction Percentage has the meaning ascribed to it in Section 5.2.1.1. Parcel means, generally, a given parcel of the Development Property (i.e. Phase I Parcel and Phase II Parcel). Parcel Personal Property Tax Revenues means ad valorem taxes on Tangible Personal Property located on a Parcel that are received by the City. For example, Parcel Personal Property Tax Revenues for Parcel I means the amount of ad valorem taxes paid by all Parcel Users to the City in a given Twelve -Month Period based on the entire Page 5 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC taxable assessed value of Tangible Personal Property located on Parcel I. With respect to Tangible Personal Property leased by a Parcel User, Development Personal Property Tax Revenues will include that portion of annual property tax paid by the Parcel User, prorated on a daily basis, which is attributable to the period during which the Parcel User was the lessee of such property. The taxable appraised value of such Tangible Personal Property for any given tax year will be established solely by the appraisal district that has jurisdiction over the Development Property at the time. Parcel Real Property Tax Revenues means ad valorem taxes on a given Parcel and any improvements located thereon, minus taxes payable on that Parcel and any improvements located thereon for the 2007 tax year, based on the taxable appraised value of that Parcel and any improvements located thereon for the 2007 tax year. The taxable appraised value of a Parcel and any improvements located thereon for any given year will be established solely by the appraisal district that has jurisdiction over the Development Property at the time. Parcel Sales Tax Revenues means the one percent (1%) available sales tax, such as that presently in effect pursuant to Texas Tax Code § § 321.101(a) and 321.103, resulting from sales taxes received by the City and collected by Developer and other Parcel Users on Sales transacted on a given Parcel. Parcel Sales Tax Revenues specifically excludes all revenues from (i) the Crime Control District Sales Tax imposed by the City pursuant to Texas Tax Code § 323.105 and Texas Local Government Code § 363.005, as may be amended, and (ii) the Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority pursuant to City Secretary Contract No. 19689, as previously or subsequently amended or restated, from the sales tax imposed by the Fort Worth Transportation Authority pursuant to Texas Tax Code Chapter 322. Notwithstanding anything to the contrary herein, in no event shall Parcel Sales Tax Revenues ever exceed a one percent (1%) sales tax imposed by the City, even if the City at any point in the future charges more than a one percent (1%) sales tax. If the City's sales tax rate is ever decreased to the extent that the City receives available sales tax revenues based on less than a one percent (1%) sales tax, then the meaning of Parcel Sales Tax Revenues shall automatically be adjusted to equal that lesser percentage. If the City's sales tax rate is ever decreased as provided in the preceding sentence and the City then subsequently adds a sales tax that increases such lower percentage and whose use is not controlled or regulated, in whole or in part, by another govermnental entity or authority or otherwise dedicated to a specific use by the City, then Parcel Sales Tax Revenues shall be computed to reflect that increased percentage up to a maximum aggregate of one percent (10/6). Parcel User means any person or entity that has the legal right to use all or any portion of a particular Parcel for commercial, retail, residential or other lawful purposes, including without limitation, Developer, third party retail and commercial businesses and residents of the Residential Units. Phase means a given phase of the Development, as defined in this Agreement, whether Phase I or Phase II. Page 6 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC ti Phase I or Phase I Improvements means the first phase of the Development constructed by Developer, which, at a minimum, shall consist of at least 108,000 square feet of commercial office space, at least 24,000 square feet of ground level retail space, at least 75,000 square feet of residential condominiums and a parking garage with at least four hundred (400) parking spaces, all as generally depicted in Exhibit `B". Phase I Completion Date means the date on which the City receives the Notice of Completion for Phase I. Phase I Completion Deadline means June 30, 2009. Phase I Parcel means that parcel of the Development Property on which Phase I is constructed, as specifically described in Exhibit A4, attached hereto and hereby made a part of this Agreement for all purposes. Phase II or Phase II Improvements means the second phase of the Development constructed by Developer, which, at a minimum, shall consist of at least 20,000 square feet of commercial office space, at least 40,000 square feet of ground level retail space, at least 180,000 square feet of Residential Apartment Units and a parking garage with at least four hundred fifty (450) parking spaces, all as generally depicted in Exhibit `B". Phase II Completion Date means the date on which the City receives the Notice of Completion for Phase 11. Phase II Completion Deadline means December 31, 2013. Phase II Parcel means that parcel of the Development Property on which Phase II is constructed, as specifically described in Exhibit A-2, attached hereto and hereby made a part of this Agreement for all purposes. Program Can means Ten Million Dollars ($10,000,000.00), gross. Program Grants means the annual economic development grants paid by the City to Developer in accordance with this Agreement and as part of the 380 Program. Pro ram Source Funds means, for a given Phase, an amount of City funds available for inclusion in a Program Grant attributable to that Phase and payable in a given Program Year, as follows. (a) Program Source Funds for the first ten (10) Program Grants attributable to a given Phase shall consist of an amount equal to fifty-five percent (55%) of the Parcel Real Property Tax Revenues, plus fifty-five percent (55%) of the Parcel Personal Property Tax Revenues, plus fifty-five percent (55%) of the Parcel Sales Tax Revenues for the Parcel on which that Phase was constructed and which were Page 7 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC received by the City during the Twelve -Month Period ending in the same Program Year in which a Program Grant for that Program Year is payable. (b) Program Source Funds for the latter five (5) Program Grants attributable to a given Phase shall consist of an amount equal to fifty percent (50%) of the Parcel Real Property Tax Revenues, plus fifty percent (50%) of the Parcel Personal Property Tax Revenues, plus fifty-five percent (55%) of the Parcel Sales Tax Revenues for the Parcel on which that Phase was constructed and which were received by the City during the Twelve -Month Period ending in the same Program Year in which a Program Grant for that Program Year is payable. Proraram Year means a calendar year in which the City is obligated pursuant to this Agreement to pay Developer a Program Grant, beginning with the first full calendar year following the Phase I Completion Date. Records has the meaning ascribed to it in Section 4.9. Required Improvements means the improvements required for a given Phase. For example, when used in context with respect to Phase I, the Required Improvements means the Phase I Improvements, and when used in context with respect to Phase II, the Required Improvements means the Phase H Improvements. Residential Apartment Units means residential rental apartments and shall not include residential condominium units. Sales means all sales of merchandise (including gift and merchandise certificates), services and other receipts whatsoever of all business conducted in, on or from a given Parcel, whether cash or credit, including mail, telephone, telefax, telegraph, Internet or catalogue orders received or filled at or from that Parcel, deposits not refunded to purchasers, orders taken (although such orders may be filled elsewhere), sales to employees, sales through vending machines or Sher 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 Parcel, (iii) the amount of returns to shippers and manufacturers or (iv) the sale of any Parcel User's fixtures. Second Operating Year of a given Phase means the second full year following the year in which the Completion Date for that Phase occurs. Substantially Complete means that a certificate or certificates of occupancy, whether temporary or final, have been issued for all occupiable space within an improvement. For example, a building would be Substantially Complete if (i) final certificates of occupancy have been issued for all occupiable space within the building; (ii) final certificates of occupancy have been issued for some occupiable space within the building and temporary certificates of occupancy have been issued for all remaining occupiable space within the building; or (iii) temporary certificates of occupancy have Page 8 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC n been issued for all occupiable space within the building. A building would not be Substantially Complete if temporary or final certificates of occupancy have been issued for some occupiable space within the building but no temporary or final certificates of occupancy have been issued for any remaining occupiable space within the building. Supply and Service Expenditures means all expenditures by Developer, whether pursuant to a written contract or on an ad hoc basis, expended directly for the operation and maintenance of the Development, including amounts paid to third parties for the provision of personnel services, but excluding amounts paid for electric, gas, water and any other utility services. Tangible Personal Property means personal property that is located on a Parcel and is owned or leased by any Parcel User, including, without limitation, inventory, fixtures, store signage, checkout stands, computers, cash registers and security and communications systems. Term has the meaning ascribed to it in Section 3. Twelve -Month Period means the period between February 1 of a given year and January 31 of the following year. 3. TERM. This Agreement shall be effective as of the date of execution by both parties (the "Effective Date") and, unless terminated earlier in accordance with this Agreement, shall expire on the earlier of (i) the date as of which the City has paid all Program Grants required hereunder; (ii) the date as of which the amount of aggregate Program Grants paid by the City equals Program Cap; or (iii) December 31, 2026, regardless of the number and amount of Program Grants that may have been paid hereunder (the "Term"). 4. DEVELOPER OBLIGATIONS, GOALS AND C 4.1. Real Property Improvements. 4.1.1, Phase I. In accordance with the terms and conditions of this Agreement, by the Phase I Completion Date, (i) at a minimum, all Phase I Improvements must be Substantially Complete and (ii) Developer must have expended or caused to be expended at least $50 million in Construction Costs for Phase I of the Development. The Phase I Completion Date must occur on or before the Phase I Completion Deadline. Page 9 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC T 4.1.2. Phase II. In accordance with the terms and conditions of this Agreement, by the Phase II Completion Date, (i) at a minimum, all Phase I Improvements and all Phase II Improvements must be Substantially Complete and (ii) Developer must have expended or caused to be expended at least $90 million in Construction Costs for Phase I and Phase H of the Development. The Phase II Completion Date must occur on or before the Phase II Completion Deadline. 4.2. Construction S 1/ By the Completion Date of each Phase, Developer shall have expended or caused to be expended with Fort Worth Companies at least thirty percent (30%) of all Hard Construction Costs for the respective Phase, regardless of the total amount of such Hard Construction Costs (for each affected Phase, the "Fort Worth Construction Commitment"). Payments to a general contractor who is a Fort Worth Company shall be counted toward the Fort Worth Construction Commitment, regardless of whether subcontractors of such general contractors are Fort Worth Companies. 4.3. M/WBE Companies. By the Completion Date of each Phase, Developer shall have expended or caused to be expended with Fort Worth Certified M/WBE Companies at least twenty-five percent (25%) of all Hard Construction Costs for the respective Phase, regardless of the total amount of such Hard Construction Costs (for each affected Phase, the 111M JWBE Construction Commitment"). Payments to a general contractor who is a Fort Worth Certified M/WBE Company shall be counted toward the M/WBE Construction Commitment, whether or not subcontractors of such general contractor are themselves Fort Worth Certified M/WBE Companies. In addition, dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of the Fort Worth Construction Commitment outlined in Section 4.2. 4.4. Employment Goal. From and after the Phase I Completion Date, Developer will use commercially reasonable efforts to cause at least five (5) Jobs to be provided on the Development Property (the "Employment Goal"). Page 10 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth acid Museum Place Holdings, LLC is Companies. Developer hereby makes the following commitments to make certain minimum annual Supply and Service Expenditures with Fort Worth Companies For each applicable time period, the "Fort Worth Supply and Service Spending Commitment"): 4.6. 4.5.1. Phase I. From January 1 of the Second Operating Year of Phase I until December 31 of the First Operating Year of Phase II, Developer will spend at least $30,000.00 in annual Supply and Service Expenditures with Fort Worth Companies. 4.5.2. Phase II. From January 1 of the Second Operating Year of Phase II until expiration of the Term, Developer will expend at least $45,000.00 in annual Supply and Service Expenditures with Fort Worth Companies. M/WBE Companies. for Developer hereby makes the following commitments to make certain minimum annual Supply and Service Expenditures with Fort Worth Certified M/WBE Companies (for each applicable time period, the "M/WBE Supply and Service Spending Commitment"): 4.6.1. Phase I. From January 1 of the Second Operating Year of Phase I until December 31 of the First Operating Year of Phase II, Developer will spend at least $20,000.00 in annual Supply and Service Expenditures with Fort Worth Certified 1MIWBE Companies. Dollars spent with Fort Worth Certified MIWBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of the Fort Worth Supply and Service Spending Commitment outlined in Section 4.5.1. 4.6.2. Phase H. From January 1 of the Second Operating Year of Phase II until expiration of the Term, Developer will expend at least $30,000.00 in annual Supply and Service Expenditures with Fort Worth Certified M/WBE Companies. Dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies Page 11 ,4mended acid Restated CSC No. 36482 Economic Develop,nent Program Agreement between City of Fort Worth and Museum Place Holdings, LLC for purposes of the Fort Worth Supply and Service Spending Commitment outlined in Section 4.5.2. 4.7. Affordable Housing Set -Aside. Beginning on the Phase II Completion Date and for the remainder of the Term, the greater of at least (i) thirty (30) Residential Apartment Units located on the Phase II Parcel and which have received final certificates of occupancy or (ii) a number of Residential Apartment Units equal to fifteen percent (15%) of all Residential Apartment Units located on the Phase II Parcel and which have received final certificates of occupancy, regardless of the total number of such Residential Apartment Units, shall be reserved for lease exclusively as quality affordable housing units in accordance with the provisions of this Section 4.7 (the "Affordable Housing Units"). At least one-third (1/3) of the Affordable Housing Units will be set aside exclusively for lease to qualifying households whose adjusted incomes do not exceed HUD's then -current sixty percent (60%) income limits for the Fort Worth -Arlington, TX HUD Metro FMR Area at rents that do not exceed thirty percent (30%) of such adjusted incomes and must satisfy the inspection conditions and criteria attached hereto as Exhibit "C", which is hereby made a part of this Agreement for all purposes (the "HUD Units"). The remaining number of Affordable Housing Units will be set aside exclusively for lease to qualifying households whose adjusted incomes do not exceed HUD's then -current eighty percent (80%) income limits for the Fort Worth -Arlington, TX HUD Metro FMR Area at rents that do not exceed thirty percent (30%) of such adjusted incomes (all of the preceding, the "Affordable Housing Commitment"). For Developer's reference, HUD's 2007 60% income limits and 80% income limits for the Fort Worth, TX HUD Metro FMR Area are attached hereto as Exhibit "D" and are published annually by HUD (see www.hud.gov and www huduser.ory). In the event that HUD's regulations are amended or HUD's published data is revised to the extent that Developer's requirements hereunder cannot be ascertained, the City and Developer will meet and in good faith negotiate alternative requirements that can be ascertained under HUD's amended regulations and revised published data, with the understanding that such alternative requirements will be consistent with the requirements set forth in this Section 4.7 as closely as possible. 4.8. Reports and Filings. 4.8.1. Plan for Use of Fort Worth Certified Within thirty (30) calendar days following the Effective Date of this Agreement, Developer will file a plan with the Director as to how Developer intends to meet the M/WBE Construction Commitment and Iv1/WBE Supply and Service Spending Commitment for all Phases. Developer agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as reasonably Page 12 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Maseum Place Holdings, LLC c necessary for assistance in implementing such plan and to address any concerns that the City may.have with such plan. 4.8.2. Construction Spending Reports Pertaining to Required Improvements. 4.8.2.1. Monthly Reports. From the Effective Date until expiration of the Term in order to enable the City to assist Developer in meeting the M/WBE Construction Commitment, Developer will provide the Director with a monthly report in a form reasonably acceptable to the City that specifically outlines the then -current aggregate Hard Construction Costs expended by and on behalf of Developer with Fort Worth Certified M/WBE Companies for construction of the Required Improvements for the Phase in question. Developer agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as reasonably necessary for assistance in meeting or exceeding the M/WBE Construction Commitment and to address any related concerns that the City may have. 4.8.2.2. Notices of Completion and Final Construction Reports for Each Phase. Once all unprovements in a particular Phase that Developer intends to complete by the Completion Deadline for that Phase are Substantially Complete, Developer shall submit a written notice to that effect to the Director (a "Notice of Completion"). The purpose of a Notice of Completion is to allow the City to assess whether Developer satisfied the requirements of Section 4.1.1 and 4.1.2, as applicable, and the extent to which Developer met the Fort Worth Construction Commitment and the M/WBE Construction Commitment for that Phase. Each Notice of Completion will include a final construction report in a form reasonably acceptable to the City that specifically outlines the total Construction Costs and Hard Construction Costs expended by and on behalf of Developer for construction of the Required Improvements for the Phase in question, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Developer, including, without limitation, final lien waivers signed by Developer's general contractor. This final construction report shall also include actual total Construction Costs and Hard Construction Costs expended by Developer for construction of the Required Improvements for the Phase in question with Fort Worth Companies and Fort Worth Page 13 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC Certified M/WBE Companies, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Developer to such contractors. Improvements constructed as part of Phase I that are not Substantially Complete as of the date of the Notice of Completion for Phase I, and any Construction Costs and Hard Construction Costs expended for such improvements, shall not be considered for purposes of determining whether Developer satisfied the requirements of Section 4.1.1or assessing the extent to which Developer met the Fort Worth Construction Commitment and the VWBE Construction Commitment for Phase I. For example, if Developer expended $6 million in Construction Costs for construction a particular building, but the building is not Substantially Complete because a certificate of occupancy, whether temporary or final, has not been issued for a portion of the occupiable space within the building, none of the $6 million in Construction Costs or related Hard Construction Costs shall be counted in determining whether Developer satisfied the requirements set forth above, including any Construction Cost expenditures for portions of the building that do have a certificate of occupancy. 4.8.3. Annual Employment Report. On or before February 1 of the year following the Phase I Completion Date and of each year thereafter during the Term of this Agreement, in order for the City to assess the degree to which Developer met the Employment Goal in the previous calendar year, Developer shall use commercially reasonable efforts to provide the Director with a report in a form reasonably acceptable to the City that sets forth the total number of individuals who held Jobs on the Development Property, all as of December 1 (or such other date requested by Developer and reasonably acceptable to the City) of the previous year, together with reasonable supporting documentation. If Developer failed to meet the Employment Goal in the previous calendar year, Developer shall include an explanation as to why Developer believes it did not meet the Employment Goal and the efforts that Developer utilized to meet the Employment Goal. 4.8.4. Quarterly Supply and Service Spending Report. Beginning with the first calendar quarter of the Second Operating Year of Phase I, within thirty (30) calendar days following the end of each calendar quarter during the Term of this Agreement, Developer will provide the Director with a report in a form reasonably acceptable to the City that sets forth the then -aggregate Supply and Service Expenditures made during such calendar year as well as the then -aggregate Supply and Page 14 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC Service Expenditures made during such calendar year with Fort Worth Companies and with Fort Worth Certified M/WBE Companies. The City will use each year's fourth quarter report to assess the degree to which Developer met the Fort Worth Supply and Service Spending Commitment and the M/WBE Supply and Service Spending Commitment for that year. 4.8.5. Annual Affordable Housing Report. On or before February 1 of the year following the Phase II Completion Date and of each year thereafter, in order for the City to assess the degree to which Developer met the Affordable Housing Commitment in the previous calendar year, Developer shall provide the Director with a report in a form reasonably acceptable to the City that sets forth (i) the total number of Residential Apartment Units on the Development Property (excluding the Hotel); (ii) the total number of Affordable Housing Units; (iii) the number of Residential Apartment Units that were under lease at any time during the previous calendar year; (iv) the number of Affordable Housing Units that were under lease at any time during the previous calendar year; and (v) for each Affordable Housing Unit that was under lease at any time during the previous calendar year, sufficient documentation for the City to assess the adjusted income of the tenant leasing such Affordable Housing Unit and the amount of monthly rent paid by that tenant. In addition to the above, for the HUD Units only, Developer shall include with such report copies of all leases for the HUD Units in effect at the time; the most recent pay stub or other evidence of employment acceptable to the City and the most recent federal income tax return for all occupants of the HUD Units; a Social Security determination of benefits letter for all occupants of the HUD Units; and for any divorced tenants with minor children who occupy the HUD Units, copies of the divorce decrees in order to determine child support obligations for purposes of measuring the adjusted incomes of such tenants. 4.9. Audits, The City will have the right throughout the Term to audit the fmancial and business records of Developer that relate to the Required Improvements and any other documents necessary to evaluate Developer's compliance with this Agreement or with the commitments set forth in this Agreement, including, but not limited to construction documents and invoices, apartment lease agreements, apartment rental rolls and deposit records of Developer or any entity affiliated with Developer pertaining to the Required Improvements (including general ledger and bank statements) (collectively "Records"). Developer shall snake all Records available to the City on the Development Property or at another location Page 15 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. 5. CITY OBLIGATIONS. 5.1. Issuance of Certificates of Completion for Required Improvements. Within sixty (60) calendar days following receipt by the City of a Notice of Completion for a given Phase, as required by and in accordance with Section 4.8.2.2. and assessment by the City of the information contained therein, if the City is able to verify that (i) all Required Improvements for that Phase are Substantially Complete and (ii) Developer expended or caused to be expended at least the minimum number of dollars in aggregate Construction Costs for the Development, as outlined in Section 4.1, the Director will issue to Developer a certificate verifying that all such Required Improvements for that Phase are Substantially Complete; stating the amount of aggregate Construction Costs expended on the Development as of the Completion Date for that Phase; and stating the amount of Hard Construction Costs expended on the Required Improvements for that Phase, including amounts expended specifically with Fort Worth Companies and Fort Worth Certified MIWBE Companies (each a "Certificate of Completion"). In accordance with this Agreement, a Certificate of Completion for a given Phase of the Development may be issued after the Completion Deadline for that Phase. 5.2. Program Grants. Subject the terms and conditions of this Agreement, for each Phase (i) whose Completion Date occurs on or before the Completion Deadline specified in Section 4.1 for that Phase and (ii) in which the minimum aggregate Construction Costs for the Development, as specified in Section 4.1, have been expended by the Completion Date for that Phase, Developer will be entitled to receive from the City fifteen (15) annual, Program Grants. The amount of each Program Grant shall equal a percentage of the Program Source Funds available for that Program Grant. This percentage is based on the extent to which Developer meets the various construction and operational expenditures for the Required Improvements, as more specifically set forth in Section 5.2.1. Program Grants may be reduced or forfeited for a given Program Year if Developer fails in any given year to meet the Affordable Housing Commitment, as more specifically set forth in Section 5.2.3. Notwithstanding anything to the contrary herein, aggregate Program Grants payable under this agreement for all Phases shall be subject to and shall not exceed the Program Cap. Page 16 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Piace Holduigs, LLC 5.2.1. Calculation of Each Program Grant Amount. Subject to the terms and conditions of this Agreement, and subject to reductions or forfeitures imposed pursuant to Sections 5.2.2, 5.2.3 and 5.2.5, the amount of a given Program Grant for a given Phase shall equal the sum of the Overall Construction Percentage, as defined in Section 5.2.1.1, plus, to the extent applicable, the Fort Worth Construction Percentage, the M/WBE Construction Percentage, the Fort Worth Supply and Service Percentage and the M/WBE Supply and Service Percentage, as defined in Sections 5.2.1.2, 5.2.1.3, 5.2.1.4 and 5.2.1.5, respectively, multiplied by the Program Source Funds available for that Program Grant, as set forth in the definition of Program Source Funds provided by Section 2. 5.2.1.1. Each annual Program Grant shall include an amount that is based on Developer's completion of the Required Improvements for the Phase in question by the Completion Deadline for that Phase. If by the Completion Date for the Phase in question Developer Substantially Completes the Required Improvements for that Phase and has expended at least the minimum number of dollars in aggregate Construction Costs for the Development, and the Completion Date for the Required Improvements for that Phase occurs on or before the Completion Deadline for that Phase, all as outlined in Section 4.1 and as confirmed by the City in the Certificate of Completion issued for that Phase in accordance with Section 5.1, Developer will automatically receive fifty percent (50%) of the Program Source Funds for the Phase in question (the "Overall Construction Percentage"). In no event will the Overall Construction Percentage for Phases I or II exceed fifty percent (50%). 5.2.1.2. 25% . Each annual Program Grant shall include an amount that is based on the percentage by which the Fort Worth Construction Commitment, as outlined in Section 4.2, was met (the "Fort Worth Construction Percentage"). The Fort Worth Construction Percentage for the first Program Grant payable for Phase I will equal the product of twenty-five percent (25%) multiplied by the percentage by which the Fort Worth Construction Commitment was met, which will be calculated by dividing the actual Hard Construction Costs expended by the Completion Date with Fort Worth Companies for the Required Improvements by the Page 17 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC number of dollars comprising the Fort Worth Construction Commitment, as determined in accordance with Section 4.2. The Fort Worth Construction Percentage for the second and all subsequent Program Grants payable for Phase I, as well as all Program Grants payable for Phase II will equal the product of twenty percent (20%) multiplied by the percentage by which the Fort Worth Construction Commitment was met, calculated in accordance with the preceding sentence. For example, if the Fort Worth Construction Commitment in a given Phase is $10,000,000.00 and only $8,000,000.00 in Hard Construction Costs were expended with Fort Worth Companies by the Completion Date for that Phase, the Fort Worth Construction Percentage for all Program Grants associated with that Phase would be 16% instead of 20%, or .20 x [$8 million/$10 million], or 20 x .80, or .16 (or, for the first Program Grant payable for Phase I, 20% instead of 25%, or .25 x [$8 million/$10 million], or .25 x 80). If the Fort Worth Construction Commitment in a given Phase is met or exceeded, the Fort Worth Construction Percentage will be twenty-five percent (25%) for the first Program Grant associated with Phase I and twenty percent (20%) for the second and all subsequent Program Grants associated with Phase I, as well as for all Program Grants associated with Phase II. In no event will the Fort Worth Construction Percentage exceed those percentages for the respective Program Year in which a Program Grant is payable. 5.2.1.3. N'ort worzn 1vL yr Spending (20%-25%). Each annual Program Grant shall include an amount that is based on the percentage by which the M/WBE Construction Commitment, as outlined in Section 4.3, was met (the 11NMBE Construction Percentage"). The M/WBE Construction Percentage for the first Program Grant payable for Phase I will equal the product of twenty-five percent (25%) multiplied by the percentage by which the M/WBE Construction Commitment was met, which will be calculated by dividing the actual Hard Construction Costs expended by the Completion Date with Fort Worth Certified M/WBE Companies for the Required Improvements by the number of dollars comprising the N WBE Construction Commitment, as determined in accordance with Section 4.3. The M/WBE Construction Percentage for the second and all subsequent Program Grants payable for Phase I, as well as alI Program Grants payable for Phase 11, will equal the product of twenty percent (20%) multiplied by the percentage by which the 14/WBE Construction Commitment was met, calculated in accordance with the preceding sentence. For example, if the Page 18 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC M/WBE Construction Commitment in a given Phase is $5,000,000.00 and only $4,000,000600 in Hard Construction Costs were expended with Fort Worth Certified M/WBE Companies by the Completion Date for that Phase, the M/WBE Construction Percentage for the second and all subsequent Program Grants associated with that Phase would be 16% instead of 25%, or .20 x [$4 million/$5 million], or .20 x .80, or .16 (or, for the first Program Grant payable for Phase I, 20% instead of 25%, or .25 x [$4 million/$5 million], or .25 x .80, or .20). If the 1VI/WBE Construction Commitment in a given Phase is met or exceeded, the M/WBE Construction Percentage will be twenty-five percent (25%) for the first Program Grant associated with Phase I and twenty percent (20%) for the second and all subsequent Program Grants associated with Phase 'I, as well as all Program Grants associated with Phase II. In no event will the M/WBE Construction Percentage exceed those percentages for the respective Program Year in which a Program Grant is payable. 5.2.1.4. Except for the first Program Grant associated with Phase I, each annual Program Grant shall include an amount that is based on the percentage by which the Fort Worth Supply and Service Spending Commitment, as outlined in Section 4.5, was met in the previous calendar year (the "Fort Worth Supply and Service Percentage"). The Fort Worth Supply and Service Percentage for each Program Grant other than the first Program Grant associated with Phase I will equal the product of five percent (5%) multiplied by the percentage by which the Fort Worth Supply and Service Spending Commitment was met in the previous calendar year, which will be calculated by dividing the actual Supply and Service Expenditures made in the previous calendar year with Fort Worth Companies by the Fort Worth Supply and Service Spending Commitment for that year, as established and set forth in Section 4.5. For example, pursuant to Section 4.5.2, the Fort Worth Supply and Service Spending Commitment for the Second Operating Year of Phase 11 is $45,000.00. If in that year Developer makes only $40,500.00 in Supply and Service Expenditures with Fort Worth Companies, the Fort Worth Supply and Service Percentage for the next Program Grants attributable to Phase I and Phase II would be 4.5% each instead of 5% each, or 05 x [$40,500/$45,000], or .05 x .9, or .045. 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 year will be five Page 19 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC percent (5%). In no event will the Fort Worth Supply and Service Percentage exceed 5% for any Program Grant. 5.2.1.5. Fort W Phase Except for the first Program Grant associated with Phase I, each annual Program Grant shall include an amount that is based on the percentage by which the NV"E Supply and Service Spending Commitment, as outlined in Section 4.6, was met in the previous calendar year (the "M/WBE Supply and Service Percentage"). The M/WBE Supply and Service Percentage for each applicable Program Grant will equal the product of five percent (5%) multiplied by the percentage by which the M/WBE Supply and Service Spending Commitment was met in the previous calendar year, 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 the Fort Worth Supply and Service Spending Commitment for that year, as established and set forth in Section 4.6. For example, pursuant to Section 4.6.2, the 1VI/WBE Supply and Service Spending Commitment for the Second Operating Year of Phase II is $30,000.00. If in that year Developer makes only $24,000.00 in Supply and Service Expenditures with Fort Worth Certified M/WBE Companies, the M/WBE Supply and Service Percentage for the next Program Grants attributable to Phase I and Phase II would be 4% each instead of 5% each, or .05 x [$24,000/$30,000], or .05 x .8, or .04. 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 year will be five percent (5%). In no event will the M/WBE Supply and Service Percentage exceed 5% for any Program Grant. 5.2.2. II. Notwithstanding anything to the contrary herein, in the event that Developer completes Phase I in accordance with Section 4.1.1, but (i) all Phase II Improvements are not Substantially Complete as of the Phase H Completion Date or (ii) Developer fails to expend or cause to be expended by the Phase II Completion Date at least $90 million in aggregate Construction Costs for Phase I and Phase II of the Development, as set forth in Section 4.1.2, the maximum amount of all remaining Program Grants payable hereunder for Phase I shall be reduced to thirty percent Page 20 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC 0 (30%) of the Program Source Funds for Phase I, subject to further reductions imposed pursuant to Section 5.2.3, and Developer shall not be eligible to receive any Program Grants for Phase U. In addition, in any year thereafter, if (i) Developer fails to spend at least $30,000.00 in Supply and Service Expenditures with Fort Worth Companies, the Program Grant payable in the following year shall be further reduced by five percent (5%o) of the Program Source Funds for Phase I, and (ii) Developer fails to spend at least $20,000.00 in Supply and Service Expenditures with Fort Worth Certified WWBE Companies, the Program Grant payable in the following year shall be further reduced by five percent (5%) of the Program Source Funds for Phase I. :. !='ro„te fnr Failure t0 5.2.3. If the City determines that Developer has not complied with or is not in compliance with the Affordable Housing Commitment, as outlined in Section 4.7, the City will notify Developer in writing. If Developer disagrees with the City's determination, Developer shall have fourteen (14) calendar days to provide the City with documentation to rebut such determination. If Developer does not provide the City with documentation sufficient to rebut the City's determination within such time, the City's determination shall be deemed conclusive. In this event, notwithstanding anything to the contrary herein, (i) if the Affordable Housing Commitment was not met for an entire calendar year, Developer shall forfeit payment of cell Program Grants payable for the following Program Year, and (ii) if the Affordable Housing Commitment was not met for a portion of a calendar year, then the amounts of each Program Grant payable in the following Program Year (as calculated in accordance with Sections 5.2.1 and 5.2.2) shall be reduced by a fraction, to be expressed as a percentage, where the numerator is the number of days in that calendar year in which the Affordable Housing Commitment was met and the denominator is 365. Any Program Grant that is forfeited in a given Program Year pursuant to this Section 5.2.3 shall nevertheless count as one of the fifteen (15) annual Program Grants paid for a respective Phase in accordance with this Section 5.2. 5.2.4. No Offsets. A deficiency in attainment of one commitment may not be offset by the exceeding attainment in another commitment. For example, if in a given year Developer failed to meet the NVWBE Supply and Service Spending Commitment by $5,000.00, but exceeded the Fort Worth Supply and Service Spending Commitment by $5,000.00, all Program Grants payable in the following year would still be reduced in accordance with Page 21 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC Section 5.2.1.5 on account of Developer's failure to meet Lite M/WBE Supply and Service Spending Commitment. 5.2.5. program Cap. Once the City has paid Developer aggregate Program Grants equal to the Program Cap, this Agreement shall terminate. If in any Program Year the amount of a Program Grant calculated in accordance with Sections 5.2.1, 5.2.2 and 5.2.3 would cause the aggregate Program Grants paid by the City to exceed the Program Cap, the amount of the Program Grant or Grants payable in that Program Year shall equal the difference between the aggregate of all Program Grants paid by the City as of the previous Program Year and the Program Cap, and this Agreement shall terminate upon payment of such Program Grant or Grants. 5.2.6. Deadline for Payments and Source of The first Program Grant for a Phase shall be paid by the City on or before June 1 of (i) the Second Operating Year of that Phase or (ii) the First Operating Year of that Phase if requested by Developer in writing within sixty (60) calendar days following the Completion Date of that Phase and the City, taking into consideration its current fiscal year budget and following fiscal year budget planning, provides Developer with written consent to such request. Each subsequent annual Program Grant payment will be made by the City to Developer on or before June 1 of the Program Year in which such payment is due. It is understood and agreed that all Program Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from Parcel Real Property Tax Revenues, Parcel Personal Property Tax Revenues or Parcel Sales Tax Revenues. Developer understands and agrees that any revenues of the City other than those dedicated for payment of a given annual Program Grant pursuant to this Agreement may be used by the City for any lawful purpose that the City deems necessary in the carrying out of its business as a home rule municipality and will not serve as the basis for calculating the amount of any future Program Grant or other obligation to Developer. 5.3. Waiver of -- Developer will be required to apply for, receive and comply with all permits and other licenses and certificates required by the City with respect to the Development. However, the City hereby agrees to waive up to $559,247.00 in aggregate temporary encroachment fees customarily charged by the City and directly associated with temporary street closures necessitated by construction of the Required Improvements. If Developer exceeds the $559,247.00 temporary encroachment fee credit granted hereunder, Developer will be required to pay any Page 22 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC additional temporary encroachment fees, in an amount prescribed by and in accordance with standard City procedures. 5.4. Parlc Dedication Fees. Notwithstanding anything to the contrary ut the City's Neighborhood and Community Park Dedication Policy adopted by the City Council pursuant to M&C G-12893, as subsequently amended (the "Park Dedication Policy"), Developer may satisfy all requirements of the Park Dedication Policy by complying with those standards in the Park Dedication Policy applicable to residential developments located within the Central City boundary of Park Planning District 4, including, but not limited to, the requirement that Developer pay the City a flat fee of $500.00 per residential unit, as defined in the Park Dedication Policy, constructed in the Development in lieu of those requirements that would otherwise apply to the Development, including, but not limited to, the requirement for land dedication and payment of other associated fees. This Section 5.4 shall not be deemed to grant Developer any waiver of fees or other requirements of the Park Dedication Policy applicable to residential developments located within the Central City boundary of Park Planning District 4. 6.1. TO 6.1.1. Failure to Submit Notice of Completion. If Developer fails to submit a Notice of Completion for a given Phase to the Director by the Completion Deadline for that Phase in accordance with Section 4.8.2.23 the City shall notify Developer in writing and Developer shall have thirty (30) calendar days to submit such Notice of Completion. If Developer submits such Notice of Completion within this thirty (30) calendar day period, the Completion Date for that Phase shall be deemed to be the Completion Deadline for that Phase. If Developer fails to submit such Notice of Completion within this thirty (30) calendar day period, then the Completion Date for the Phase in question shall be deemed to have not occurred by the Completion Deadline for that Phase, in which case (i) if the Phase in question is Phase I, the City shall have the right to terminate this Agreement immediately by providing written notice to Developer and (ii) if the Phase in question is Phase II, Section 6.1.3 shall apply. Page 23 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC 6.1.2. Failure to Complete Phase I. After receipt of a timely submitted Notice of Completion for Phase I, if the City determines that (i) all Phase I Improvements are not Substantially Complete or (ii) Developer has not expended or caused to be expended at least $50 million in Construction Costs for Phase I of the Development, the City shall notify Developer in writing and Developer shall have the greater of: (i) such time as necessary (but in no event beyond the Phase I Completion Deadline), or (ii) thirty (30) calendar days following receipt of such notice, to supplement the Notice of Completion in order to demonstrate to the satisfaction of the City that as of the Phase I Completion Date (i) all Phase I Improvements have been Substantially Completed and (ii) Developer has expended or caused to be expended at least $50 million in Construction Costs for Phase I of the Development. If the City still determines that as of the Completion Deadline (i) all Phase I Improvements were not Substantially Complete or (ii) Developer did not expend or cause to be expended at least $50 million in Construction Costs for the Phase I of the Development, the Phase I Completion Date shall be deemed to not have occurred by the Phase I Completion Deadline and the City shall have the right to terminate this Agreement immediately by providing written notice to Developer. 6.1.3. Failure to Complete Phase II. After receipt of a timely submitted Notice of Completion for Phase II, if the City determines that (i) all Phase II Improvements are not Substantially Complete or (ii) Developer has not expended or caused to be expended at least $90 million in aggregate Construction Costs for Phase I and Phase II of the Development, the City shall notify Developer in writing and Developer shall have the greater of: (i) such time as necessary (but in no event beyond the Phase II Completion Deadline), or (ii) thirty (30) calendar days following receipt of such notice, to supplement the Notice of Completion in order to demonstrate to the satisfaction of the City that as of the Phase II Completion Date (i) all Phase II Improvements have been Substantially Completed and (ii) Developer has expended or caused to be expended at least $90 million in aggregate Construction Costs for Phase I and Phase II of the Development. If the City still determines that as of the Phase II Completion Deadline (i) all Phase II Improvements were not Substantially Complete or (ii) Developer did not expend or cause to be expended at least $90 million in aggregate Construction Costs for Phase I and Phase II of the Development, the Phase II Completion Date shall be deemed to not have occurred by the Phase II Completion Deadline, in which case the Program Grants payable under this Agreement shall be reduced in accordance with Section 5.2.2. Page 24 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC 6.2. Failure to Pay City Taxes. An event of default shall occur under this Agreement if any City taxes owed on the Development Property by Developer or an Affiliate or arising on account of Developer's or an Affiliate's operations on the Development Property become delinquent and Developer or the Affiliate does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. In this event, the City shall notify Developer in writing and Developer shall have thirty (30) calendar days to cure such default. If the default has not been fully cured by such time, the City shall have the right to terminate this Agreement immediately by providing written notice to Developer and shall have all other rights and remedies that may be available to it under the law or in equity. 6.3. An event of default shall occur under this Agreement if any written citation is issued to Developer or an Affiliate due to the occurrence of a violation oCode on the Development Property or on or f a material provision of the City within any improvements thereon (including, without limitation, any violation of the City's Building or Fire Codes and any other City Code violations related to the environmental condition of the Development Property; the environmental condition other land or waters which is attributable to operations on the Development Property; or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall occur under this Agreement if the City is notified by a governmental agency or unit with appropriate jurisdiction that Developer or an Affiliate, or any successor in interest thereto; any third party with access to the Development Property pursuant to the express or implied permission of Developer or an Affiliate, or any a successor in interest thereto; or the City (on account of the Required Improvements or the act or omission of any party other than the City on or after the effective date of this Agreement) is in violation of any material state or federal law, rule or regulation on account of the improvements on the Development Property or any Development Property, operations thereon (including, without limitation, any violations related to the environmental condition of the Development Property; the environmental condition other land or waters which is attributable to operations on the ing the public health, safety Development Property; or to matters concern , welfare). Upon the occurrence of any such default described in this Section 6.3 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 Page 25 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC notice to Developer and shall have all other rights and remedies that may be available to under the law or in equity. Spending and/or A Employment Goal. If Developer fails to meet the Fort Worth Construction Commitment or the I VWBE Construction Commitment for any Phase, or if Developer fails to meet the Fort Worth Supply and Service Spending Commitment or the M/WBE Supply and Service Spending Commitment in any given year, such event shall not constitute a default hereunder or provide the City with the right to terminate this Agreement, but, rather, shall only cause the amount of the Program Grants that the City is required to pay pursuant to this Agreement to be reduced in accordance with this Agreement. If Developer fails to meet the Affordable Housing Commitment in any given year, such event shall not constitute a default hereunder or provide the City with the right to terminate this Agreement, but, rather, shall only cause the Program Grant payment that would otherwise have been payable in the following Program Year to be forfeited or reduced in accordance with this Agreement. If Developer fails to meet the Employment Goal in any given year, such event shall not constitute a default hereunder and shall not cause the amount of the Program Grant that the City is required to pay in the following Program Year to be reduced. 6.5. Failure to Submit Reports. Without limiting the application of Section 6.6, if Developer fails to submit any report required by and in accordance with Section 4.8, the City's obligation to pay any Program Grants at the time, if any, shall be suspended until Developer has provided all required reports. 6.6. General Breach. Unless stated elsewhere in this Agreement, Developer shall be in default under this Agreement if Developer breaches any term or condition of this Agreement. In the event that suohr breach remains uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement (or, if Developer has diligently and continuously attempted to cure foRowing 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 Developer. Page 26 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Developer shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Developer shall have the exclusive right to control all details and dayAo-day operations relative to the Development Property and any improvements thereon and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Developer acknowledges that the doctrine of respondeat superior will not apply as between the City and Developer, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Developer further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Developer. g. INDENINIFICATION. DEVELOPER, AT NO COST TO THE CITY, AGREES TO DEFEND, INDEMNIFYAND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO DEVELOPER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) DEVELOPER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIAT OR EMPLOYEES, CONTRACTORS (OTHER THAN THE CIT19 SUBCONTRACTORS, RELATED TO THE DEVELOPMENT AND THE TIONS AND ACTIVITIES REQUIRED IMPROVEM SETTHE PERFORMANOPECE T OF THIS AGREEMENT. THEREON OR OTHERW 9, NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other parry or address as either parry designates in writing, by certified mail, postage prepaid, or by hand delivery: City: City of Fort Worth Attn: City Manager 200 Texas St. Fort Worth, TX 76102 Developer: Museum Place Holdings, LLC Attn: Richard Garvey 2918 Wingate St. Fort Worth, TX 76107 Page 27 Amended a<id Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Hotduigs, LLC with copies to: with o copy to: the City Attorney and Russell Norment Brackett & Ellis, P.C. Economic Development Dept. 100 Main St. Director at the same address Fort Worth, TX 76102-3090 10. ASSIGNMENT AND SUCCESSORS. Developer may at any time assign, transfer or otherwise convey any of its rights or obligations under this Agreement to an Affiliate without the approval of the City so long as Developer, the Affiliate and the City first execute an agreement under which the Affiliate agrees to assume and be bound by all covenants and obligations of Developer under this Agreement. In addition, Developer may assign its rights and obligations under this Agreement to a financial institution or other lender for purposes of granting a security interest in the Development and/or Development Property without the approval of the City Council, provided that (i) the City is first provided with copies of all loan agreements, deeds of trust, and other documents between Developer and the financial institution or other lender relating to such security interest and (ii) Developer and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Developer, and the financial institution or other lender with respect to such security interest. Otherwise, Developer may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the City Council, which consent shall not be unreasonably withheld, conditioned on (i) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor is financially capable of meeting the terms and conditions of this Agreement and (ii) prior execution by the proposed assignee or successor of a written agreement with the City under which the proposed assignee or successor agrees to assume and be bound by all covenants and obligations of Developer under this Agreement. Any attempted assignment (other than to an Affiliate in accordance with this Section 10) 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 Developer. Any lawful assignee or successor in interest of Developer of all rights under this Agreement shall be deemed "Developer" for all purposes under this Agreement. 11. REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. Page 28 Amended and Restated CSC No. 36482 Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC s 12. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities. 13. NO WAIVER• The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 14. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 15. NO THHtD PARTY RIGHTS. . The provisions and conditions of this Agreement are solely for the benefit of the City and Developer, and any lawful assign or successor of Developer, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 16. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, or other circumstances which are reasonably beyond the control of the parry obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. Notwithstanding anything to the contrary herein, it is specifically understood and agreed that Developer's failure to obtain adequate financing to complete the Required Improvements by the Completion Deadlines specified for those Required Improvements by this Agreement shall not be deemed to be an event of force Page 29 Amended and Restated CSC No. 36482 Econonuc Development Program Agreement between City of Fort Worth uid Museum Place Holduigs, LLC majeure and that this Section 16 shall not operate to extend the Completion Deadline in such an event. 17. 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. 18. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 19. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Developer, and any lawful assign and successor of Developer, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. This Amended and Restated Agreement will take effect on the last date of execution below: CITY OF FORT WORTH: By. Jesus J. Chapa Assistant City Manager MUSEUM PLACE HOLDINGS, LLC: By: Manager Svc= Page 30 Amended and Restated CSC No. 36482 Econonuc Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC l ursuant to Section 6(c) of OW COJ)Scnz, .Lender tic.rebv co:iscnts to this Amcncled �trid Ii cgated Agreement as a cOnIpicte restntenieltt and substitution of the &40 nal Arkansas financial Institution: VO Title: execivnw Vice P2Eiivfwr l ate:Z �`ar Cft�' ut'F©rt i'4'acth; AYPRC��IEI� A,S TC� liUt�ivT A�l� [��t�At�IT�;'° By: Peter 'Vaky Deputy City Attorney 5' = 2 016 -- 7 S J 15 Gonzales, Assn OFFICIAL RECORLI CITY SECRETARY FT. WORTH, TX Atrnncictl nn� ��i:tic�€ �Sf' �. ,;fi�1S;2 i=�,v���s4 �k;3�elvpsnv�i i'rclgrin� :��tecmc�at b�E�wr s� Cii}� of i�a-t N`ar€h a��d ���s�s;sn �'l<src Hvldinfls, l.>_.t r. EXHIBITS "A" — Description and Map Depicting the Development Property 11A411— Phase I Parcel 11A-2" — Phase H Parcel "B" — Depiction and Description of Required Improvements "C" — Inspection Conditions and Criteria for HUD Units "D"— 2007 HOME Program Rent Limits and 2007 Income Limits for the Fort Worth -Arlington, TX HUD Metro FMR Area Amended and Restated Agreement to CSC No. 36482, Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC fib E- AL a t {off PIP LN kOfi f t�Aidt4l, Ll POOP Ph POP. r� ' PLO . I ~� w� LL low F, i 1 ( Irk: MENOMONEE t-rx CPS�vol P9 _ L 1�-1.491 #d r ^' I "I `I r y YJ Ala •'i t • ii7 iR p� '>>3 Y` RMOrf *` OU - - 9:y 1 S•� lef 1 t 'Y+t Exhibit INSPECTION CONDITIONS AND CRITERIA FOR HUD UNITS Developer shall comply with any HUD rules and regulations regarding the condition, repair, or maintenance of the HUD Units, including, but not limited to, compliance with the City's Building Code, including the International Building Code and any locally adopted amendments thereto, as set forth in Chapter 7 of the City Code and City Ordinance Nos. 15948 and 16162. Developer shall allow the City to inspect or cause inspection of the HUD Units to ensure compliance with such Code. Without limiting application of any HUD rules and regulations to the HUD Units, Developer agrees that the HUD Units be made available to qualifying tenants for terms of at least one (1) year, unless a shorter term is specifically requested by the tenant and mutually agreed to by and between Developer and the tenant, and that one of the lease documents for the HUD Units will contain any of the prohibited lease provisions set forth in Title 24, Section 92.253(b) of the Code of Federal Regulations. 626232-v2/8335-200000 Amended and Restated Agreement to CSC No. 36482, Economic Development Program Agreement between City of Fort Worth and Museum Place Holdings, LLC Exhibit "D" 2007 HOME PROGRAM RENT LIMITS AND 2007 INCOME LIMITS FOR THE FORT WORTI14RLINGTON, TX HUD METRO FMR AREA FY 2007 Income Limits Documentation System -- Summary for Fort Worth -Arlington, T... Page 1 of 2 FY 2007 Income Limits Documentation System FY 2007 Income Limits Summary Fort Worth -Arlington, TX HUD Metro FMR Area FY 2007 Income Limit Area Median FY 2007 income Limit Category 1 Person 2 Person 3 Person 4 Person 5 Person 6 Person Income Fort Worth- Arlington, TX HUD Metro FMR Area $60,600 !Very Lovv 50°o) Income $22,200 $25,350 $28,550 $31,700 $34,250 $36,750 Limits $19,000 $20,500 $22,050 Extremely Low a0%) Income Limits $13,300 $15,200 $17,100 $54,750 $58,800 Lvw 8®07°). Income $35,500 . $40,550 $45,650 $50,700 Limits The Fort Worth -Arlington, TX HUD Metro FMR Area contains. the #ollowing areas: Johnson County, TX ;Parker County, TX ;and Tarrant County, TX . Income Limit areas are based on FY 2007 Fair Market Rent (FMR) areas. For a detailed account of how this area is derived please see our associated FY 2007 Fair Market Rent documentation _system. Other I-iUI� [metro FIIJI� Areas in the same fiflsA Select another FY 2007 HMFA Income Limit area that is a part of the Dallas -Fort Worth- Ar(ington, TX MSA Dallas, TX HUD Metro FMR Area Imo. http://www.huduser. org/datasets/il/i12007/2007summary.odb?inputname=METRO 19100M... 1/11/2005 Qi M H N M H v' v. m v' tl' Inr m IN r W 0 W•W O OM r0 M l0 W W mm Nr MtnM1 mm Mmm rm orm H<r W ric HM THrn Mm mmrl rm �rm m H rl ci H H H' H rl H ri H H ai H ri W r- w H r N C m GD r N M rN %D m m H W O r W m HM mr N tnN N O m mH "Wm r m H C m W m m W m o M v O M O N M O N m m m m H W m H m m r-i H ri H H H ri +-I I 1 Gi mr-I O mH JI If) r U) M Mm MMm m If) v) mm rl H HMM M Vl m pQ m N v' Ml) N)n M N lO m m mmM HM M HM v'v' vlN H N N m NM ri H H rl H Z W a NOv` v'm mIII O v'O Ov'r rr to (f) O v' NOv' fC PO N 00 a1 N W W M rI W ID W M 0 m M N 0 .-1 N M l0 lD W M N l0 M tl� l0 m W m r M m r N m m L/1 m m O Q m O m O O m O m m m r M N m m N t0 C7 M a a' N M IO N M N r r II) m co OD m m N M IC) V) M m W m %D m CO N r r U) m O C() v W M v m m N I/) m 0 v m m v' N H Rw a• ri O v' V' a M O m m m m 0 [� N m m to W v' N N v' m M1 M1 r r m M1 r r r M Ln N 0 W m v' U) V) v' W N M1 a 0 N D: HO O Hm Pm m v' N Mm m M r v'M Il) v'M •W v' v'N N v'N Na'N I pj IA W D O 0 M N m m m IlUl M In M O O 1 v' h N a 0 v' v' ST C I() W m m m r in W m Vl r v' ow H I t I U NN v' NN r r h r r mM mm('') Ulm W U"i0 t(1 u/ I O m N r W m r r M v' N M M M M C N I!) M N r to N j H I U I H 1 W I W I W H `'8 r H 2 C H£ 9 H£ C H£ C H Z C H0 5H0 £H0 z 0 ZH OF H rE H 0E Ha H Ha H aaCz aaaz a az a ❑z a H O W F F a H O W H EI H O W ESA FI H O W F HP O W EI E+ H O W H H F Z ••i D: H H F Z •rl W H H H Z ••'I CG H H H Z •!I 1). H H H Z •H CL H H H Z •ri Z W i£ Z W 1) �' Z N £ L Z W F) z£ Z W N Fi x Z W i) n '£ W P4 ly H H H W ai N H W H w N H H H W D; N H H H W CG IU E H H W a. N F H H D; Wa)a a, WaN a 6Was 7. BW ala a. EWaa cG 6W as IV W a xx W Y. W F1 SL N W )4 Y4 WZ Oc4 P HH 0 W5. OD:HH W £ OK.EE+ W £ 0W £O W r>: Z((zZzj� e^OW r.CZZ SJOW r�ZZ Hz W r.CZZ £Ow)04z £O'I-I47 Zz xW H£CG7 xH� as CxH£aK �xx H£P a ORP'i. )GD13ppxC7 }{ ra x a x xx HW£ a x dP $W UmH1H�cao otmWP H 1olrtf "'UHoP do Hdo do £ gUH HdP o\o H H OCOuN O�OH O LOW OH O/�O00 dto �Lo W)n p v CU WNm to Wtnto 0AW Wm 0 ii UI w � r W N to a 0 0 0 w w N 0 s N D M m w x 0 L W W N o in5. x x W H 0 in O H X 0 EC H .a X rc L 2 •ri )4 H F W y L x rC H m ri u 0 X H a x s) V H t) C W H U N vi S U rt O W •F o � o w � w 0 m U Final FY 2007 Fair Market Rent Documentation System -- Summary for Fort Worth-Arh... Page 1 of 6 Final FY 2007 Fair Market Rent Documentation System Final FY 2007 FMR Summary for Fort Worth -Arlington, TX HUD Metro FMR Area Thls system provides complete documentation of the development of the Final FY 2007 Fair Market Rents (FMRs) for Fort Worth -Arlington, TX HUD Metro FMR Area. This page provides a summary of how the Final FY 2007 FMRs were developed and updated starting with the formation of the Final FY 2007 FMR Areas from the metro olitan Core -Based Statistical Areas (CBSAa) as established by the Office of Management and Budget, the 2000 Census benchmark, incorporating information from Revised Final FY 2005 FMRs, and updating to FY 2007 including information from local Random Digit Dialing (RDD) survey data. Click on links in the tables below to see more detail on how the data were developed. Final FY 2007 .FMR Area Geography and 2000 Census Base Rent Final FY Z007 FMR Areas Fallow FY 2006 Area Definitions with Moclificatians In establishing Final FY 2007 FMR areas, HUD continues to use the revised Office of Management and Budget (OMB) area definitions that were first issued in 2003 and updated in 2005, but differ from the final FY 2006 FMR areas in that additional modifications to the county -based statistical areas as defined by OMB have been made. The FY 2006 FMR area definitions were derived by examining the 2003 OMB metropolitan areas to see if and how they differed firom FY 2005 FMR areas. if a new metropolitan area differed from the old FMR area(s) covering the same geography, HUD checked the 2000 Census 40th Percentile Base Rents for each part of the new metropolitan area that was previously in a different old FMR area against the 2000 Census 40th Percentile Base Rent for the entire new area. On these pages, the parts of the new metropolitan areas that were previously in different old FMR areas are referred to as "Evaluated Metro FMR Areas." If any of the Evaluated Metro FMR Areas in a new metropolitan area had 2000 Census 40th Percentile Base Rents that differed from the 2000 Census 40th Percentile Base Rent of the entire area by at least 5 percent, HUD established them as separate "HUD Metro FMR Areas" (HMFA) within the new metropolitan area and assigned them their own 2000 Census Base Rent. Any Evaluated Metro FMR Area with a 2000 Census 40th Percentile Base Rent that did not differ from the entire metropolitan area 2000 Census 40th Percentile Base Rent by at least 5 percent received the 2000 Census Base Rent for the entire metropolitan area. If there was more than one such Evaluated Metro FMR Area in a metropolitan area, all Evaluated Metro FMR Areas assigned the metropolitan area 2000 Census Base Rent are treated as a single http://www.huduser. org/datasets/fmr/fmrs/2007summary.odb?inputname=METRO 19100... 1/11 /2008 Final FY 2007 Fair Market Rent Documentation System -" Summary for Fort Worth-Arli... Page 2 of 6 FMR area. Unless such "recombined" areas constitute the entire new metropolitan area however, they are also renamed as "HUD Metro FMR Areas" (HMFA) because such FMR areas are not the same geography as the official OMB metropolitan area definitions. For example, suppose a new metropolitan area consists of an old FMR area, half of another old FMR area, and a formerly nonmetropolitan county. HUD would evaluate the 2000 Census 40th Percentile Base Rents for each of the three parts (Evaluated Metro FMR Areas) that comprise the new area against the 2000 Census Base 40th Percentile Rent for the entire new area. If none of the three evaluated areas has a 2000 Census 40th Percentile Base Rent that differs from the entire new metropolitan area 2000 Census 40th Percentile Base Rent by at least 5 percent, then the new metropolitan area was undivided and served as a FY 2006 FMR area in its entirety. Suppose the Evaluated Metro FMR Area consisting of half of an old FMR area has a 2000 Census 40th Percentile Base Rent that differed from the entire metropolitan area's 2000 Census 40th Percentile Base Rent by more than 5 percent. Then HUD established two "HUD Metro FMR Areas": one consisting of the half of the old FMR area and assigned its own 2000 Census Base Rent, and the other consisting of the combination of the other old FMR area and the formerly nonmetropolitan county. _ Final FY 20Q7-Area Modifications Mos# of the FY 2006 merged FMR areas remaining after the 5 percen# rent #est was applied had similar income limits. For the FY 2007 FMRs, separate FMR areas are created for any parts of old metropolitan areas, or formerly nonmetropolitan counties, that would have more than a .5 percent increase or decrease in their 2000 Census base area median family income as a result of implementing the 2003 OMB definitions. Consider the example from above where an new metropolitan area consists of an old FMR area, half of another old FMR area, and a formerly nonmetropolitant county. HUD proposes to evaluate the 2000 Census base median family income for each of the three parts (Evaluated Metro FMR Areas) that comprise the new area against the 2000 Census Median Family Income for the entire new area. Similarly to the 40th Percentile rent comparison, if none of the three evaluated areas has a 2000 Census Base median family income that differs from the entire new metropolitan area 2000 Census Base median family income by at least 5 percent, then the new metropolitan area was undivided and served as a FY 2007 FMR area in its entirety. Suppose the Evaluated Metro FMR Area consisting of half of an old FMR area has a 2000 Census Base median family income that differed from the entire metropolitan area's 2000 Census Base median family income by more than 5 percent. Then HUD establishes two "HUD Metro FMR Areas": one consisting of the half of the old FMR area and assigned its own 2000 Census Base Rent, and the other consisting of the combination of the other old FMR area and the formerly nonmetropolitan county. Fort'dVorth-Arlington, TX HUD Metre FMR Area is made up of the following: http://www.huduser. org/datasets/fmr/firers/2007stunmary. odb?inputnarne=METRO 19100... 1 /I 1 /2003 Final FY 2007 Fair Market Rent Documentation System -- Summary for Fort Worth-Arli... Page 3 of 6 Johnson County, TX ; Parker County, TX ; and Tarrant County, IA. FY zoo t FMR Area Derivation The Fort Worth -Arlington, TX HUD Metro FMR Area is a HUD -defined metropolitan FMR area that is part of the Dallas -Fort Worth -Arlington, TX MSA. Fort Worth -Arlington, TX HUD Metro FMR Area is considered a separate HUD -defined metropolitan FMR area because Fort Worth -Arlington, TX HUD Metro FMR Area has a 2000 Census 40th Percentile Base Rent ( 632) that differs from the 2000 Census 40th Percentile Base Rent for Dallas -Fort Worth -Arlington, TX MSA ( 681) by at least 5.0 percent. 0.928 = 7.2 percent >= 5.0 percent. Additionally, HUD compared the 2000 Census Median Family Income for Fort Worth- Artington, TX HUD Metro FMR Area ($53,350) to the 2000 Census Median Family Income for Dallas -Fort Worth -Arlington, TX MSA ($55,263) to see if the difference is more than 5.0 percent. As can be seen from the calculation below, 1 - ($53,350 / $55,263} = 1 - 0.965 = 3.5 percent < 5.0 percent fihe difference is less than 5.0 percent. Fort Worth -Arlington, TX HUD Metro FMR Area does not qualify for separate area status on the basis of the Median Family Income comparison, but does qualify using the Census base rent comparison. Fort Worth -Arlington, TX HUD Metro FMR Area has a 2000 Census Base Rent of 679. This is a 50th Percentile 2000 Census Base Rent as established by HUD regulations. To see the FY 2007 40th Percentile Rents for Fort Worth -Arlington, TX HUD Metro FMR Area, click here. Computing the 2000-to-2005 Update factor and 2005 Intermediate Rent Fort Worth -Arlington, TX HUD Metro FMR Area is entirely within the old Fort Worth-- Arlingfon, TX PMSA, so the 2000-to-2005 Update Factor is simply the Revised Final FY 2005 FMR for Fort Worth --Arlington, TX PMSA ( 732) divided by the 2000 Census Base Rent for Fort Worth --Arlington, TX PMSA (1676), or $732 / $676 = 1.0828. The 2005 Intermediate Rent for 2-13edroom units is used in the computation of the bedroom ratios that are applied to the Final FY 2007 2-Bedroom FMR to yield the other bedroom 2005 2-Bedroom intermediate Rent for Fort Worth -Arlington, TX HUD Metro FMR Area _ $679 x 1.0828 = $735 http.//www.huduser.org/datasets/fmr/fmrs/2007summary.odb?inputname=METR019100.., 1/11/2008 Final FY 2007 Fair Market Rent Documentation System -- Summary for Fort Worth-Arli... Page 4 of 6 The 2005-to-2007 Update Factors The Fort Worth -Arlington, TX HUD Metro FMR Area has the following 20054o-2007 Update Factors: Final FY 2007 2-Bedroom FMR The Final FY 2007 2-Bedroom FMR is simply the product of the 2000 Census Base Rent, the 20004o 2005 Update Factor and the 20054o-2007 Update Factor for Fort Worth -Arlington, TX HUD Metro FMR Area as determined above: Fort Worth -Arlington, TX HUD Metro FMR Area Final FY 2007 FMR _ $679 x 1.0828 x 0.9860 x 1.0270 = $735 x 0.9860 x 1.0270 = $725 x 1.Q270 = $745 The Final FY 2007 FMRs for All Bedroom Sizes The following table shows the Final FY 2007 FMRs by unit bedrooms. The FMRs for units with different numbers of bedrooms are computed from the ratio of the 2005 Intermediate Rents for the different unit sizes to the 2005 2-Bedroom Intermediate Rent, These Rent Ratios are applied to the Final FY 2007 2-Bedroom FMR to determine the Final FY 2007 FMRs for the different size units. The 2005 Intermediate Rents for different size units are computed from 2000 Census Base Rents that are updated to 2005 using the 2000-to-2005 update factors for each unit size derived from the Revised Final FY 2005 FMR for the old FMR. area that contained Fort Worth- Ariington, TX HUD Metro FMR Area. Click on the links in the table to see how the bedroom rents were derived. Final FY 2007 FMRs By Unit Bedrooms Effieiency ®ne- Bedroom Two- Bedroom Three- Bedroom Four - Bedroom http://uR��.huduser. arg/datasets/finr/fmrs/2007surninaty.odb?inputnaine=MDTR419100... 1/11/2008 Final FY 2007 Fair Market Rent Documentation System -- Summary for Port Worth.-Arli.. Final FY 2007 FMR $565 11 $605 Ocher HUD Metro FMR Areas in the Same MSA Page 5010 $ I,1Ou Select another Final FY 2007 HUD Metro FMR Area that is a part of the Daltas-Fort Worth - Arlington, TX MSA Dallas, TX HUD Metro FMR Area ;T Relafed Final FY 2007 FMR Areas Select another Final FY 2007 FMR Area that includes parts of the old FMR area that contains Fort Worth -Arlington, TX HUD Metro FMR Area Hood County, TX ':�. Change Your Ge®graphic Selections Select a State first to select a specific county or New England town: or Select a Final FY 2007 Metropolitan FMR Area: Fort Worth -Arlington, TX HUD Metro FMR Area http://�vww.huduser. org/datasets/fznr/:Fmrs/2007summary.odb?inputname=METRO 19100... 1 /11/2008 e: city of Fort Worth, Texas Mayor and Council Communication COUNCIL. ACTION: App► oved on 6/28/2016 DATE: Tuesday, June 28, 2016 LOG NAME: 17MUSEUMPLACE380 REFERENCE NO.: **C-27799 SUBJECT: Authorize Execution of Amended and Restated Economic Development Program Agreement with Museum Place Holdings, LLC, to Confirm Annual Grant Payments Based on Completion of Phases I and II of the Museum Place Development, to Remove Phases Nos. III and IV from the Scope of the Development and to Increase the Scope of the Affordable Housing Commitment (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an Amended and Restated Economic Development Program Agreement with Museum Place Holdings, LLC, to confirm annual grant payments based on completion of Phases Nos. I and II of the Museum Place Development, to remove Phases Nos. III and IV from the scope of the development and to increase the scope of the Affordable Housing Commitment, DISCUSSION: The City and Museum Place Holdings, LLC (Developer) entered into an Economic Development Program Agreement (City Secretary Contract No. 36482, as previously amended) on January 14, 2008. Under the Agreement, in return for the Developer's commitment to construct a mixed -use development in the vicinity of the Cultural District, more commonly known as the Museum Place Development, the City agreed to pay the Developer certain economic development grants equal to 55 percent of the incremental value of the real, business personal property and sales taxes received from the development, as authorized by Chapter 380 of the Texas Local Government Code. The Agreement called for the Developer to construct Museum Place in four phases, which would include commercial, retail, residential, parking and a hotel. The Agreement has been amended four times, each time to extend various completion deadlines associated with the project due to a substandard economic climate. The first amendment also revised the Minority/Women-Owned Business Enterprises commitment and allowed for collateral assignments of the Agreement to a lender. The proposed amendment will remove Phases Nos. III and IV from the scope of the development project altogether, making Phases Nos. I and II the only phases incentivized under the Agreement. Accordingly, the overall Program Cap under the Agreement would be reduced from a maximum amount of $26,000,000.00 in aggregate incentive grants to a maximum amount of $10,00050000000 In addition, under the Agreement currently, the Developer is required to set aside 15 percent of all residential units comprising Phase H (which Staff has determined is equal to 33 apartments) as affordable housing units. Of these, four apartments must be set aside for lease exclusively to qualifying households whose adjusted incomes do not exceed HUD's 65 percent income levels for the Fort Worth -Arlington HUD Metro FMR Area, seven must be set aside for households earning no more than 60 percent income levels and the remainder of 22 must be set aside for households earning no more than 80 percent income levels. Under the amendment, all four of the units reserved for households earning no more than 65 percent income limits would be shifted and reserved exclusively for households earning no more than 60 percent income levels. Phase I and Phase II of the Museum Place Development have been completed. However, documentation to the City's Economic Development of all reporting necessary to confirm completion of Phase II by its required completion deadline of December 31, 2013 was not received until October of 2015 due to a mailing error that was not the fault of Developer, which resulted in underpayment to the Developer of the full amount of all grants that would otherwise have been paid in 2014 and 2015. As a result, payments of $111,079.00 and $236,793.00 will be made in order for the City to be current in its obligations for economic development grant payments due to the Developer for the 2014 and 2015 program years (a total of $347,861.00). This payment will be made in addition to the grant due in 2016, which Staff has confirmed will be $368,292.00. Therefore, the total grant payments to be made this fiscal year will equal $716,153.00. The Museum Place Project is located in COUNCIL DISTRICT 7. FISCAL INFORMATION /CERTIFICATION: The Director of Finance certifies that upon approval of this M&C funds are available in the General Fund in the Fiscal Year 2016 Budget. FUND IDENTIFIERS�FIDsI: Fund Department Account F_ RAM Fund Depa IDment Accowit Project Program Activity ID Project program Activity ID CERTIFICATIONS: Submitted for Citv Managgr's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS Form 1295-17Museum 1. Place.pdf �P«et�o� 2. Museum Place Reference Map 130326•pdf rPy���� Budget Reference # Amount Year (Chartfield 2) Budget Reference # Amount Year (Chartfield 2) Jay Chapa (5804) Robert Sturns (212-2663) Ossana Hermosillo (212-2665) CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT BETWEEN CITY OF FORT WORTH AND MUSEUM PLACE HOLDINGS, LLC (CITY SECRETARY CONTRACT NO.364829 AS AMENDED) This CONSENT TO ASSIGNMENT FOR SECURITY PURPOSES OF ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Consent") is entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas; and MUSEUM PLACE HOLDINGS, LLC ("Developer"), a Texas limited liability company; and BANK OF THE OZARKS ("Lender"), a financial institution organized under the laws of the State of Arkansas that is authorized to do business in the State of Texas. RECITALS The City, Developer 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 Developer previously entered into that certain Economic Development Program Agreement, dated as of January 14, 2008, and Amendment No. 1 thereto, dated as of May 8, 2008 (collectively, the "EDPA") pursuant to which the City agreed to pay Developer certain Program Grants in an amount up to and not to exceed $26,000,000.00 in return for Developer's construction of a mixed -use development located in cultural district of the City, as more specifically outlined in the EDPA (the "Development"). The EDPA is a public document on file in the City Secretary's Office as City Secretary Contract Nos. 36482 and 37066. B. Section 10 of the EDPA allows Developer to assign its rights and obligations under the EDPA to a financial institution or other lender for purposes of granting a security interest in the Development and/or Development Property without the approval of the City Council, provided that (i) the City is first provided with copies of all loan agreements, deeds of trust, and other documents between Developer and the Cn financial institution or other lender relating to such security interest and (ii) Developerat and the financial institution or other lender first execute a written agreement with the City governing the rights and obligations of the City, Developer, and the financial institution or other lender with respect to such security interest. G Co Developer wishes to obtain a loan from Lender in order to finance construction of the Development (the "Loan"). As security fox the Loan, certain agreements between Developer and Lender governing the Loan and dated May 12, 2008, including, but not limited to, that certain Loan Agreement and that certain Deed of Trust, Page 1 of 5 Consent to Assignment of Economic Development Program Agreement for Security Purposes with Museum Place Holdings, LLC and Bank of the Ozarks FTC WORTH, TX Assignment of Leases and Rents, Security Agreement and Fixture Filing (collectively, the "Loan Documents") require that Developer assign, transfer and convey to Lender all of Developer's rights, interest in and to the EDPA until such time as Developer 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, Developer and Lender hereby agree that the recitals set forth above are Prue 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 Developer and Lender solely to 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 Developer under the EDPA. 3. In the event that the City is required by the EDPA to provide any kind of written notice to Developer, including notice of breach or default by Developer, the City shall 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: Attu: Dan Thomas Bank of the Ozarks 5949 Sherry Lane, Suite 1075 Dallas, TX 75206 Phone: 214.750.7800 tivith a copy to: Attn: Doris Mantooth Bank of the Ozarks 6th and Commercial P.O. Box 196 Ozark, AR 72949 Page 2 of 5 Consent to Assignment of Economic Development Program Agreement for Security Purposes with Museum Place Holdings, LLC and Bank of the Ozarks or such other addresses) as Lender may advise City from time to time. Developer fails to cure any default under the EDPA, other than a default arising under Section 6.1.1 or 6.1.2 of the EDPA, the City agrees that Lender, its agents or designees shall 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 Developer imposed by the EDPA and that the City will accept Lender's performance the same as if Developer 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, shall 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. If a default arises under Section 6.1.1 or Section 6.1.2 of the EDPA, Lender shall have no additional time to cure such default,. except as may be agreed to by the City in its reasonable discretion. 5. If at any time Lender wishes to exercise any foreclosure rights under the Loan Documents, before taking any foreclosure action Lender shall first provide written notice to the City of such intent and a statement that Lender intends to assume the EDPA (an "Assumption Notice"). Lender shall copy Developer on the Assumption Notice and deliver such Assumption Notice to Developer by both first class and certified mail return receipt concurrent with its transmittal of the Assumption Notice to the City and represent in the Assumption Notice that it has done so. Notwithstanding anything to the contrary in the Loan Documents, or any statements in an Assumption Notice, except as specifically permitted pursuant to Section 10 of the EDPA, Lender shall have no right to assign, transfer or convey any of its rights or interests in the EDPA to any other party without the City Council's written consent, which shall not be unreasonably withheld or delayed, 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 obligations of Developer under the EDPA 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 all covenants and obligations of Developer under the EDPA 6. (a) Developer executed Amendment No. 1 to the EDPA on April 25, 2008 and the City executed such Amendment No. 1 on May 8, 2008. Otherwise, the EDPA has not been altered, amended or modified since the date of its original execution, and is presently in full force and effect. (b) As of the date of execution of this Consent, neither the City nor Developer is in default undez the terms, conditions, covenants and obligations of the EDPA. (c) Unless Developer has fully satisfied all duties and obligations set forth in the Loan Documents that are necessary to discharge Lender's security intezest in the EDPA, Developer will not request or consent to an amendment to the EDPA without the prior written consent of Lender, which consent shall not be unreasonably withheld or delayed. Page 3 of 5 Consent to Assignment of Economic Development Program Agreement for Security Purposes with Museum Piace Holdings, LLC and Bank of the Ozarks 7. In the event of any conflict between this Consent and the EDPA, this Consent shall control. In the event of any conflict between this Consent and any of the Loan Documents, this Consent shall control. In the event of any conflict between the EDPA and any of the Loan Documents, the EDPA shall control. 8. This Consent may not be amended or modified except by a written agreement executed by all of the parties hereto. Developer and Lender covenant and agree that they will not amend any of the Loan Documents, or assign any rights and/or obligations thereunder, without the prior written consent of the City. Notwithstanding anything to the contrary in the Loan Documents, an amendment to any of the Loan Documents shall not constitute an amendment to this Consent or the EDPA. 9. Once Developer 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, Lender shall provide written notice to the City that Lender has released such security interest, in which case this Consent shall automatically terminate. 10. This Consent shall be construed in accordance with the laws of the State of Texas. Venue for any action arising under the provisions of this Consent shall 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. 11. Capitalized terms used but not specifically defined in this Consent shall have the meanings ascribed to them in the EDPA. 12. This written instrument contains the entire understanding and agreement between the City, Developer 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. 13. Any subsequent Lender shall execute a consent. form similar in content to this Consent form and provide the City with a copy of an assignment of Developer's rights in the EDPA as a condition of its rights to an assignment of this EDPA. EXECUTED as of the last date indicated below: [SIGNATURES IMMEDIATELY FOLLOW ON NEXT PAGE] Page 4 of 5 Consent to Assignment of Economic Development Program Agreement for Security Purposes with Museum Place Holdings, LLC and Bank of the Ozarks CITY OF FORT WORTH: By: , Tom Higgins �C Assistant City Manager Date: MUSUEM PLACE HOLDINGS, By: a Richard Garvey Manager liability company: BANK OF THE OZARKS, an Arkansas financial instiiution: By: Dan Thomas President, Real Estate Specialties Group Date: Jy ( ( U 0 APPROVED AS TO FORM AND LEGALITY: By: o Peter Vaky Assistant City Attorney M&C: none required _ OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 5 of � Consent to Assignment of Economic Development Program Agreement for Security Purposes with Museum Place Holdings, LLC and Bank of the Ozarks COLLATERAL ASSIGNMENT: OF ECONOMIC DEVELOPMENT AGREEMENT • . - This COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT ("Assir;nment") is executed as of the loth day of July, 2008, by MUSEUM PLACE HOLDINGS, a Texas limited liability company(hekeinafter called "Assicror"), whose mailing address is 2918 Wingate Street, Fort Worth, Texas 76107 to BANK OF THE OZARKS (hereinafter called "Assignee"), whose mailing address is 5949 Sherry Lane, Suite 1075, Dallas, Texas 75206. WITNESSETH: WHEREAS, pursuant to a Loan Agreement of .even date herewith by MUSEUM PLACE GROUP 1, LTD., a Texas limited partnership, as borrower (the "Borrower"), and Assignee, as lender (hereinafter called the "Loan Agreement"), Borrower has issued and delivered to Assignee that certain Promissory Note of Borrower of even date herewith in the principal amount of FORTY-TWO MILLION FIVE HUNDRED TWENTY FIVE THOUSAND AND N0/100 DOLLARS ($42,525,000.00), bearing interest as specified therein (said -note together with any and all renewals, modifications and extensions thereof being hereinafter called the "Note"), evidencing that certain loan (hereinafter called the "Loan") to be made in several advances up to the maximum principal amount of $42,525,000.00; WHEREAS, Assignor is the owner of a direct or indirect interest in Borrower, and Assignor will directly benefit from Assignee's making the Loan to Borrower; and WHEREAS, in order to induce Assignee to make the Loan, Assignor is desirous of assigning to Assignee, as additional security for the Loan, all of Assignor's rights to payments, incentives, grants, tax credits, reimbursements and proceeds arising from the acquisition or the development of the Land (as defined in the Loan Agreement) or the Improvements (as defined in the Loan Agreement) under that certain Economic Development Program Agreement by and between Assignor and the City of Fort Worth, Texas, a home rule municipal corporation organized under the laws of the state of Texas, dated as of January 14, 2008, as amended (the "Economic Incentive Agreement (380)"). NOW, THEREFORE, as -an inducement- to Assignee .to. enter into the Loan Agreement • - and to make the Loan to Borrower as described therein, and to extend such additional credit to Borrower as Assignee may from time to time agree to extend, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows (capitalized terms used but not otherwise defined herein shall have those meanings ascribed to them in the Loan Agreement): 1. Assignment. Assignor hereby assigns, transfers and sets over unto Assignee, its successors and assigns, all of Assignor's rights, title and interest in and to all payments, incentives, grants, tax credits, reimbursements and proceeds arising from the acquisition or the development of the Land (as defined in the Loan Agreement and more particularly described on Exhibit A attached hereto and incorporated herein by reference) or the Improvements pursuant to the Economic Incentive Agreement (380) (collectively, the "380 Collateral"). COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT -Page 1 H:UT�Bank of the Ozarks ^- 3274\ClosedUaGee Museum Place — 7\I.oan Documents\Post-Closing Loan Documents\21a Economic Incentive Agreement (380) Assignment (Exhibit I to Loan Agreement).DOC 2. Security Interest. These presents are given to additionally secure Borrower's full and complete payment and performance of all Obligations under the Note, the Loan Agreement and any other instrument evidencing or securing the Loan (collectively, the "Loan Documents"). This Assignment shall also constitute a security agreement with respect to the 380 Collateral, and shall be, during the existence of the Loan Documents, a first and prior security interest under the,Uniform Commercial Code of Texas (the "UCC") as to the 380 Collateral. In this regard, Assignor has GRANTED, BARGAINED, CONVEYED, ASSIGNED, TRANSFERRED and SET OVER, and by these presents does GRANT, BARGAIN, CONVEY, ASSIGN, TRANSFER and SET OVER, unto Assignee, a first and prior security interest in and to the 380 Collateral, to secure the full and timely payment of the Indebtedness and the full and timely performance and discharge of the Obligations. Assignor hereby agrees to execute and deliver to Assignee, in form and substance satisfactory to Assignee, such financing statements and such further assurances as Assignee may, from time to time, reasonably consider necessary to create, perfect and preserve Assignee's security interest herein granted, and Assignee may cause such financing statements and assurances to be recorded and filed, at such times and places as may be required or permitted by law to so create, perfect and preserve such security interest. Assignor further hereby irrevocably appoints Assignee as Assignor's attorney -in -fact, such power of attorney being coupled with an interest, with full authority in the place and stead of Assignor and in the name of Assignor or otherwise, for the purpose of executing, recording and filing any financing statements or other instrument as may be required or permitted by law or reasonably deemed necessary by Assignor to so create, perfect and preserve the security interest granted hereunder and to file any claims or take any action or institute any proceedings which Assignor may deem reasonably necessary or appropriate for the collection and/or preservation of the 380 Collateral or otherwise to enforce the rights of Assignor with respect to the 380 Collateral. Assignor will defend at its expense Assignee's right, title and security interest in and to the 380 Collateral against the claims of any third party. that: 3. Representations and Covenants. Assignor hereby represents, warrants and agrees (a) Assignor has good and marketable title to the 380 Collateral free and clear of all liens, security interests, encumbrances ox adverse claims, except for the securiiy interest created by this Assignment. No dispute, right of setoff, counterclaim or defense exists with respect to all or any part of the 380 Collateral. Assignor has the right, power and capacity to make this Assignment and that no person, firm or corporation other than Assignor has or will have any assignment, lien, security interest or other claim to Assignor's rights under the Economic Incentive Agreement (380). (b) Assignor will, at Assignor's sole cost and expense, perform and discharge all of Assignor's obligations and undertakings under the Economic Incentive Agreement (3 80). (c) Assignor will not without the prior written consent of Assignee (i) pledge, transfer, mortgage ox otherwise encumber or assign any portion of the Economic Incentive Agreement (380) with respect to the 380 Collateral; or (ii) materially modify, extend or in any way alter the terms of any of the Economic Incentive Agreement (380). COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT -Page 2 II:Uili3ank of the Ozarks _ 3274\ClosedUMuseum Place MuseuPlace ~ 7U-oan Ds\P ocumentost-Closing Loan Documents\21a Economic Incentive Agreement (380) Assignment (Exhibit 1 to Loan Agreement).DOC (d) Any Event of Default hereunder shall constitute and be deemed to be an "Event of Default" under the Loan Documents so as to entitle Assignee to exercise any and all of the rights and remedies thereunder, including the right to declare all sums payable under the Note immediately due and payable without notice or demand. (e) There are no existing defaults under the Economic Incentive Agreement (f) Assignor will give Assignee at least 30 days' prior written notice of (i) any change in Assignor's name, identity or corporate structure and (ii) any reincorporation, reorganization or other action that results in a change of the jurisdiction of organization of Assignor. (g) Assignor shall receive in trust for the benefit of Assignee any and all 380 Collateral received by Assignor and shall promptly deposit such 380 Collateral into a segregated interest bearing deposit account maintained with Assignee. All interest earned on such deposit account shall become part of the 380 Collateral as additional security for the Loan, which shall be released in accordance with Section 12 below. (h) Assignor shall keep correct and accurate records regarding its receipt of any and all 380 Collateral and shall upon the request of Assignee provide Assignee at Assignor's reasonable cost and expense copies of Assignor's books and records pertaining to the 380 Collateral. 4. Assignee Disclaimer. These presents shall not be deemed or construed to obligate Assignee to take any action hereunder, to incur expenses or to perform or discharge any obligation, duty or liability hereunder or under the Economic Incentive Agreement (380). 5. Further Assurances. Until the Loan and all indebtedness evidenced by the Note shall have been paid in full, Assignor will from time to time execute and deliver unto Assignee upon demand any and all writings that Assignee may reasonably deem necessary or desirable to carry out the purpose and intent hereof, or to enable Assignee to enforce any right or rights hereunder. 6. Default. The term "Event of Default" as used herein shall mean the occurrence of any one or more of the following: (a) If a default or Event of Default shall occur under any of the Loan Documents which continues beyond any applicable grace or cure period; (b) If a default should occur pursuant to the Economic Incentive Agreement (380) beyond any applicable notice andcure period; (c) If at any time any representation or warranty made by Assignor herein shall be materially incorrect at any time; (d) The failure of Assignor to timely and properly observe, keep or perform any covenant or agreement required hereunder; COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT -Page 3 H:U'I�Bank of the Ozarks~ 3274\ClosedUaGee Museum Place~ 7U,oan Documents\Post-Closing Loan Documents\21a Economic Incentive Agreement (380) Assignment (Exhibit I to Loan Agreement).DOC (e) If Assignor (i) shall execute an assignment for the benefit of creditors or an admission in writing by Assignor of Assignor's inability to pay, or Assignor's failure to pay, debts generally as the debts become due; (ii) shall allow the appointment of a receiver, trustee or custodian of Assignor or of the 380 Collateral or any part thereof, which receiver, trustee or custodian is not discharged within sixty (60) days after the appointment; (iii) files as a debtor a petition, case, proceeding or other action pursuant to, or voluntarily seeks of the benefit or benefits of any Debtor Relief Law, or takes any action in furtherance thereof, (iv) allows the filing of a petition, case, proceeding or other action against Assignor as a debtor under any Debtor Relief Law or seeks appointment of a receiver, trustee, custodian or liquidator of Assignor or of the 380 Collateral, or any part thereof, or of any significant portion of Assignor's other property and (a) Assignor admits, acquiesces in or fails to contest diligently the material allegations thereof, or (b) the petition, case, proceeding or other action results in the entry of an order for relief or order granting the relief sought against Assignor, or (c) the petition, case, proceeding or other action is not permanently dismissed or discharged on or before the earlier of trial thereon or sixty (60) days next following the date of filing. (f) If Assignor shall dissolve, terminate, or liquidate. 7. Action by Assignee. Assignee agrees that it will not exercise its rights under this Assignment unless and until there is an Event of Default hereunder or under any of the Loan Documents or upon the occurrence of an event which, with the giving of notice or the passage of time or both, would constitute an Event of Default hereunder or under any of the Loan Documents, 8. Remedies. Assignor, upon the occurrence of anEvent of Default, shall be entitled to all remedies available under applicable law with respect to the assigmment and security interest herein granted, including, without limitation_ (a) Assignor may exercise in respect of the 380 Collateral all the rights and remedies of a secured party under the Code; (b) Assignor may reduce its claim to judgment or foreclose or otherwise enforce, in whole or in part, the security interest granted hereunder by any available judicial procedure; or (c) Assignor may retain the 380 Collateral in partial satisfaction of the Indebtedness then outstanding in accordance with Section 7.4 of the Lien Instrument. 9. DUTY: INDEMNITY. ASSIGNEE SHALL NOT BE OBLIGATED TO PERFORM OR DISCHARGE ANY OBLIGATION.OR DUTY TO BE PERFORMED OR DISCHARGED BY ASSIGNOR UNDER THE ECONOMIC INCENTIVE AGREEMENT (380); AND ASSIGNOR HEREBY AGREES TO INDEMNIFY ASSIGNEE FOR, AND TO SAVE ASSIGNEE HARMLESS FROM, ANY AND ALL LIABILITY ARISING FROM THE ECONOMIC INCENTIVE AGREEMENT (380) OR FROM THIS ASSIGNMENT UNLESS DUE TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ASSIGNEE. COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT -Page 4 H:UT1Bank of the Ozarks � 32741C1osedUaGee Museum Place _ 7�Loan DocumentsXPost-Closing Loan Documents\21a Ewnomic Incentive Agreement (380) Assignment (Exhibit I to Loan Agreement).DOC 10. No Waiver. The failure of Assignee to enforce any of the terms, covenants or conditions hereof shall not be construed or deemed to be a waiver of any rights or remedies hereunder. Assignee shall have the full right, power and authority to enforce this Assignment, or any of the terms, covenants or conditions hereof, at any time or times that Assignee shall deem fit. 11. Notices. All notices required or permitted to be given hereunder at the addresses of Assignor and Assignee as provided above shall be deemed to have been duly given if given in accordance with the notice provisions of the Loan Agreement. 12. Defeasance. The full performance by Borrower under the Loan Agreement and the payment by Borrower to Assignee of the Release Payment (Condo) and the Release Payment (380) as provided in Section 9.2 of the Loan Agreement shall render this Assignment of no further force or effect. 13. Bindin Effect. This Assignment applies to and binds the parties hereto and their respective heirs, legal representatives, successors and assigns. Any provisions in any other agreement creating rights in Assignee other than those created herein shall be deemed incorporated herein by reference and made a part hereof for all purposes. 14. ENTIRE AGREEMENT. THIS ASSIGNMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS INSTRUMENT MAY BE AMENDED ONLY BY AN INSTRUMENT N WRITING EXECUTED BY THE PARTIES HERETO. 15. WAIVER OF RIGHT TO TRIAL BY JURY. ASSIGNOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN AN ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM THAT RELATES TO OR ARISES OUT OF ANY OF THE LOAN DOCUMENTS OR THE ACTS OR FAILURE TO ACT OF OR BY ASSIGNEE IN THE ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF THIS ASSIGNMENT OR THE OTHER LOAN DOCUMENTS. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY ASSIGNOR. 16. NOTICE OF INDEMNIFICATION. ASSIGNOR HEREBY ACKNOWLEDGES AND AGREES THAT THIS ASSIGNMENT CONTAINS CERTAIN INDEMNIFICATION PROVISIONS, INCLUDING, BUT NOT LLVHTED TO SECTION 9 HEREOF WHICH MAY, IN CERTAIN INSTANCES, INCLUDE INDEMNIFICATION BY ASSIGNOR OR OTHERS AGAINST ASSIGNEE'S OWN NEGLIGENCE. Remainder of Page Intentionally Blank. Signature Page Follows. COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT -Page 5 H:\TIll3ank of the Ozarks � 3274\ClosedUaGee Museum Place _ 7\Loan Documents\Post-Closing Loan Documents\21a Economic Incentive Agreement (380) Assignment (Exhibit I to Loan Agreement).DOC IN WITNESS WHEREOF, Assignor has caused this instrument to be executed as of the date first above written. ASSIGNOR: MUSEUM PLACE HOLDINGS, LLC, a Texas ted company Manager Signature Page to Economic Incentive Agreement (380) Assignment COLLATERAL ASSIGNMENT OF ECONOMIC DEVELOPMENT AGREEMENT - SS-1 EXHIBIT A TRACT 1 (Tract A2 Land): Lots 19 and 20, Block 43 WM. J. BAILEY ADDITION to the City of Fort Worth; Tarrant County, Texas, according to plat recorded in Volume 310, Page 61, Deed Records of Tarrant County, Texas. TRACT 2 (Tract B 1 Land): Leasehold estate created as set out in that certain lease a�eement dated February 14, 2007 by and between Barney Holland Oil Company, as Landlord, and Museum Place Block B1, Ltd., as Tenant, as amended, as reflected in that certain Memorandum of Lease filed for record February 5, 2008 under Clerk's File No. D208041944, Deed Records of Tarrant County, Texas, as to the following described property: BEING all of Lot A and a portion of Lot B, Block 1, of The Van Zandt Hillside Addition to the City of Fort Worth, Tarrant County, Texas, as recorded in Volume 204, Page 4, Plat Records, Tarrant County, Texas, and being more particularly described by metes and bounds as follows: BEGINNING at a tack in a lead plug found at the southwest property corner of the tract herein described and the southeast property corner of that certain tract of land described by deed to PNYX Ltd., as recorded in Document Number D206345295, County Records, Tarrant County, Texas, and being in the northerly right-of-way line of Camp Bowie Boulevard (a variable width right -of --way); THENCE N 00002' 143711T, 112.(I5 feet along the east property line of said PNYX tract to a "Y" cut in concrete found, being in the south right -of --way line of West Seventh Street an 80' right -of --way at this point); THENCE East, 220.31 feet along the north line of said Block 1 to a 5/8 inch iron rod with plastic cap stamped "Carter &Burgess" set for the northeast corner of said Lot A, Block 1, and being in the northerly right-of-way line of the aforementioned Camp Bowie Boulevard; THENCE S 63002'06"W, 247.10 feet along the northerlyright-of--way line of said Camp Bowie Boulevard to the POINT OF BEGINNING and containing 12,342 square feet or 0.283 acres of land more or less. TRACT 3 (Tract D Land): Lot 1 R, Block 2, WM. J. BAILEY ADDITION to the City of Fort Worth, Tarrant County, Texas, according to plat recorded in Cabinet A, Slide 11939, Deed Records of Tarrant County, Texas. rug ;Jjnll a My AMENDMENT N0.4 TO ECONOMIC DEVELOPMENT PROGRAM AGREEMENT (CITY SECRETARY CONTRACT N0.36482) This AMENDMENT NO.4 TO ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Amendment") 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 MUSEUM PLACE HOLDINGS, LLC ("Developer"), a Texas limited liability company. BANK OF THE OZARKS ("Lender"), a financial institution organized under the laws of the State Amendment for thethat is authorized to do limited purposes set business in the State of Texas, consents o this forth herein. The following introductory provisions are true and correct and for the basis of this Amendment: A14, 2008 the City and Developer entered into that certain Economic . As of January Development Program Agreement on file in the City Secretary's Office as City Secretary Contract No. 36482, as amended by City Secretary Contract Nos. 37066, 36482-A2 and 36482-A3 (collectively, the "Agreement"). Under the Agreement, Developer agreed, ixe&used development (the "Development", as among other things, to construct a m on certain real property located in the g ity's more specifically defined in the Agreement) cultural district, which has been identified by the Comprehensive Plan as a regional mixed -use growth center where public incentives could effectively be used as a catalyst for beneficial long-term planned development in the City. In return, the City agreed to pay Developer certain Program Grants as authorized by Chapter 380 of the Texas Local Government Code and outlined in the Agreement. Be Developer is required to construct the Development in various Phases, each of which has a Completion Deadline established by the Agreement. Due to changes in market conditions since the Effective Date of the Agreement, Developer has requested that the Agreement be amended to extend the Completion Deadlines for Phases II and III and to revise the definition of "Phase I1I" to give Developer greater flexibility in meeting market demands for various components of the Development. Because of the public benefits that the City will receive from the Development, as outlined in the Recitals of the Agreement, the City is willing to amend the Agreement in order to address Developer's request. C. The City, Developer and Lender previously entered into that certain Consent to nomic Development Agreement between City of Assignment for Security Purposes of Eco LLC (City Secretary Contract No. 36482, as Fort Worth and Museum Place Holdings, amended), dated on or about July 14, 2008 (the "Consent"). Under the Consent, Lender has a security interest in the Agreement and th Progra AL RECORD urants pay le to Developer to Page 1 Amendment No. 4 to CSC No. 36482 Economic Development Program Agreement with Museum �;��'Y SECRETARY H��4nH+ TX E C E I V E D SAP 1 I Lull secure certain financing provided by Lender to Developer. Section 6(c) of the Consent states that until Lender discharges its security interest in the Agreement and the Program Grants, Lender must consent to any proposed amendment to the Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Developer hereby agree as follows: I. Section 2 of the Agreement (Definitions) is hereby amended to change the following definitions as follows: Phase II Completion Deadline means December 31, 2013. Phase III Completion Deadline means December 31, 2016. Phase III or Phase JULI Improvements means the third phase of the Development constructed by Developer, which, at a minimum, shall consist of an aggregate of 295,000 0 square feet of space consisting of (i) at least 200 Residential Apartment Units; ii a parking garage with at least six hundred seventy-five (675) parking spaces; and in office and/or ground level retail space of a configuration and size determined by Developer. Phase IV Completion Deadline means December 31, 2016. 2. Section 4.7 (Affordable Housing Set -Aside) is hereby amended to read as follows: Beginning on the Phase II Completion Date and for the remainder of the Term, the greater of at least (i) thirty (30) Residential Apartment Units located on the Phase II Parcel and the Phase III Parcel and which have received final certificates of occupancy or (ii) a number of Residential Apartment Units equal to fifteen percent (15%) of all Residential Apartment Units located on the Phase II Parcel and the Phase III Parcel and which have received final certificates of occupancy, regardless of the total number of such Residential Apartment Units, shall be reserved for lease exclusively as quality affordable housing units in accordance with the provisions of this Section 4.7 (the "Affordable Housing Units"). Four (4) of the Affordable Housing Units will be set aside exclusively for lease to qualifying households whose adjusted incomes do not exceed HUD's then -current sixty-five percent (65%) income limits for the Fort Worth -Arlington, TX HUD Metro FMR Area at rents that do not exceed HUD's then -current HOME Program Rent Limits (as adjusted by the then -current allowance for utilities established by the Fort Worth Housing Authority) and must satisfy the inspection conditions and criteria attached hereto as Exhibit "C", which is hereby made a part Page 2 Amendment No. 4 to CSC No. 36482 Economic Development Program Agreement with Museum Place Holdings, LLC of this Agreement for all purposes (the "HUD Units"); a number of Affordable Housing Units equal to at least one-third (1/3) of all Affordable Housing Units, less the four (4) HUD Units, will be set aside exclusively for lease to qualifying households whose adjusted incomes do not exceed HUD's then -current sixty percent (60%) income limits for the Fort Worth -Arlington, TX HUD Metro FMR Area at rents that do not exceed thirty percent (30%) of such adjusted incomes; and the remainder of the Affordable Housing Units will be set aside exclusively for lease to qualifying households whose adjusted incomes do not exceed HUD's then -current eighty percent (80%) income limits for the Fort Worth - Arlington, TX HUD Metro FMR Area at rents that do not exceed thirty percent (30%) of such adjusted incomes (all of the preceding, the "Affordable Housing Commitment"). For Developer's reference, HUD's 2007 HOME Program Rent Limits and HUD's 2007 60% income limits and 80% income limits for the Fort Worth, TX HUD Metro FMR Area are attached hereto as Exhibit "D" and are published annually by HUD (see www.hud.gov and www.huduser.or). In the event that HUD's regulations are amended or HUD's published data is revised to the extent that Developer's requirements hereunder cannot be ascertained, the City and Developer will meet and in good faith negotiate alternative requirements that can be ascertained under HUD's amended regulations and revised published data, with the understanding that such alternative requirements will be consistent with the requirements set forth in this Section 4.7 as closely as possible. Developer may meet the Affordable Housing Commitment by designating the required number of Affordable Housing Units on the Phase II Parcel only, on the Phase III Parcel only or on both the Phase II Parcel and the Phase III Parcel. Developer will cooperate with the City's Housing Department in publicizing the availability of the Affordable Housing Units. 3. All terms in this Amendment that are capitalized but not defined shall have the meanings assigned to them in the Agreement. 4, All terms and conditions of the Agreement that are not expressly amended pursuant to this Amendment shall remain in full force and effect. 5. Pursuant to the requirements set forth in Section 6(c) of the Consent, Lender hereby consents to this Amendment and raes its consent to all previous amendments to the Agreement made since execution of the Consent (Amendment No. 2, City Secretary Contract No. 36482-A2; Amendment No. 3, City Secretary Contract No. 36482-A3). Page 3 Amendment No. 4 to CSC No. 36482 Economic Development Program Agreement with Museum Place Holdings, LLC EXECUTED as of the last date indicated below: CITY OF FORT WORTH: By: Fernando Costa Assistant City Manager �o i3 Date: 9� SANK OF THE OZARKS, an Arkansas By: Title: Date: -A� institution: For City of Fort Worth: APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney M&C: C-26268 05-21-13 AMM by: Mazy �. MUSEUM PLACE HOLDINGS, LLr'• By: Manager Date: / 3 Page 4 Amendment No. 4 to CSC No. 36482 Economic Development Program Agreement with Museum Place Holdings, LLC M&C Review Page 1 of 2 Official site of the City of Fort Worth, Texas FQRI'WORTrr CITY COUNCIL AGENDA - COUNCIL ACTION: Approved on 5/21/2013 REFERENCE C-26268 LOG NAME: 17MUSEUMPLACEAMEND4 DATE: 5/21/2013 NO.: NOW PUBLIC NO CODE: C TYPE: CONSENT HEARING: SUBJECT: Authorize Execution of Amendment No. 4 to City Secretary Contract No. 36482, Economic Development Program Agreement with Museum Place Holdings, LLC, to Revise the Definition of Improvements and Affordable Housing Set -Aside in Phase III and Extend the Completion Deadlines for Phases II, III and IV of the Museum Place Development (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute Amendment No. 4 to City Secretary Contract No. 36482, Economic Development Program Agreement with Museum Place Holdings, LLC, to revise the definition of improvements and affordable housing set -aside in Phase III and extend the completion deadlines for Phase ll, III and IV of the Museum Place Development. DISCUSSION: The City and Museum Place Holdings, LLC (Developer) entered into an Economic Development Program Agreement (City Secretary Contract No. 36482) on January 14, 2008, Under the Agreement, the City agreed to pay the Developer certain economic development grants equal to 55 percent of the incremental value of the real, business personal property and sales tax, authorized by Chapter 380 of the Texas Local Government Code in return for Developer's commitment to construct a mixed -use development in the vicinity of the Cultural District, more commonly known as the Museum Place Project. The Agreement calls for Developer to construct Museum Place in four phases and include commercial, retail, residential, parking, and a hotel. The Agreement has been amended three times, each time to extend various completion deadlines associated with the project due to a substandard economic climate. The first Amendment also revised the Minority/Women-Owned Business Enterprises commitment and allowed for collateral assignments of the Agreement to a lender. Phase I has been completed and Phase II is currently under construction. However, due to changes in market conditions and the availability of financing, the Developer has requested an extension of the Phase II Completion Deadline from December 31, 2012 to December 31, 2013. The Developer has also requested an extension of the completion deadline for Phase III and Phase IV from December 311 2013 to December 31, 2016 to prevent further amendments to the Agreement while addressing the challenging financial markets the project has faced. The Developer has also requested to amend the definition of the improvements to be included in the Phase III development due to the continuing changes in market conditions. The revised language will not change the total square footage, hard construction costs or types of uses (office, retail, apartments units) required in Phase III, but will allow the Developer to have some flexibility in the amount of square footage dedicated to each specific use. In connection with this language change, the Developer has requested that the affordable housing commitment be revised from the greater of 60,000 square feet or 15 percent of the residential units to 15 percent of the residential apartment units, with a minimum of 30 units. This revision ties the number of affordable units to the total number of units in Phase III rather than to the square footage of the residential apartment units. This revision is also designed to provide the Developer some flexibility in the mix of units and also http://apps.cfwnet.org/council packet/mc_review.asp?tD=18278&councildate=5/21/2013 OS/22/2013 M&C Review Page 2 of 2 addresses changing market conditions in the average size of apartment units. All other terms and conditions of the Agreement, as previously amended, will remain the same. The Museum Place Project is located in COUNCIL DISTRICT 7. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS Museum Place Reference Map 130326.pdf FROM Fund/Account/Centers Fernando Costa (6122) Cynthia B. Garcia (8187) Robert Sturns (8003) http://apps.cfwnet.org/council packet/mc_review.asp?ID=18278&councildate=5/21/2013 OS/22/2013