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HomeMy WebLinkAboutContract 42726crry SECRETARY coNrRacr No. ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ( "Agreement ") is entered into by and between the CITY OF FORT(WORTH, TEXAS (the "City "), a home rule municipality organized under the laws of the Staff of Texas, and OLIVER'S FINE FOODS, INC. ( "Company "), a Texas corporation. The Port Worth Local Development Corporation, a Texas non - profit corporation, is a party to this Agreement for the limited purpose of providing authorized consent to the transaction specified in Section 5.4 of this Agreement. RECITALS The City and Company hereby agree that the following statements are true and correct and constitute the basis upon which the City and Company have entered into this Agreement: A. As recommended by the 2011 Comprehensive Plan, adopted by the City Council on March 1, 2011 pursuant to Ordinance No. 19569- 03- 201,1,1and in accordance with Resolution No. 3716 -03 -2009, adopted by the City Council on March 1009, the City has established an economic development program pursuant to which the City will, on a case -by -case basis, offer economic incentive packages authorized by Chapter 380 of the Texas Local Government Code that include monetary loans and grants of public money, as well as the provision of personnel and services of the City, to businesses and entities that the City Council determines will promote state or local economic development and stimulate business and commercial activity in the City in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the City (the "380 Program "). B. The 2003 Downtown Fort Worth Strategic Action Plan, sponsored by the City, Downtown Fort Worth, Inc. and the Fort Worth Housing Authority, acknowledges that increased downtown residential activity will increase the City's sales and ad valorem tax base and benefit overall economic development in the City. The Plan encourages the promotion of public incentives to encourage downtown housing development. The Plan specifically identifies the establishment of a downtown grocery store as a retail component that is necessary to attract the type of residential density recommended by the Plan. C. Company wishes to lease space on the ground floor of the building at 410 Houston St. in the City's downtown, as more specifically described in Exhibit "A" (the "Leased Premises "), for the operation of a neighborhood grocery store that specializes in prepared appetizers and meals, gourmet cheese, fresh meats and fish, deli meats, sandwiches, salads, desserts and premium wines and beer. In order to offset the estimated $1.5 million cost to finish - out the Leased Premises for such purpose, Company has requested partial public assistance. On March 8, 2011, the Board of Trustees of the Fort Worth Local Development Corporation (the "LDC "), a non -profit Texas corporation organized to assist the City in its economic development efforts, including, but not Lmitedtu, the making of loans and other financial Page I f OFFICIAL R-.i Economic Development Program Agreement between ; City of Fort Worth and Oliver's Fine Foods, Inc. CITY Si:: C ExAiiy FT WORTH, 1 fr r assistance relating to job creation and economic development activity in the City, agreed to loan Company up to $450,000.00 to help pay for the finish -out of the Leased Premises for use as a grocery store. In order to assist Company in repaying the loan, the City is willing to pay Company certain economic development grants to Company under the City's 380 Program solely in accordance with the terms and conditions of this Agreement. D. The City Council has determined that by entering into this Agreement, the potential economic benefits that will accrue to the City under the terms and conditions of this Agreement are consistent with the City's economic development objectives. In addition, the City Council has determined that the 380 Program is an appropriate means to achieve the development of a grocery store in the City's downtown, which the City Council has determined is necessary and desirable, and that the potential economic benefits that will accrue to the City pursuant the terms and conditions of this Agreement are consistent with the City's economic development objectives as outlined in the Comprehensive Plan. This Agreement is authorized by Chapter 380 of the Texas Local Government Code. E. The City has determined that the feasibility of this project is contingent on Company's receipt of Program Grants, as provided in this Agreement. The City's analysis is specifically based on financial information provided by Company and Guarantor (as hereinafter defined). NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The City Council has found, and the City and Company hereby agree, that the recitals set forth above are true and correct and form the basis upon which the parties have entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital A. Central City means the area of the corporate limits of the City within Loop 820 (i) consisting of all Community Development Block Grant (CDBG)- eligible census block groups; (ii) all enterprise zones, designated as such pursuant to the Texas Enterprise Zone Act, Chapter Page 2 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. 2303, Subchapter F of the Texas Government Code; (iii) all census block groups that are contiguous by seventy -five percent (75 %) or more of their perimeters to CDBG - eligible block groups or enterprise zones, as well as any CDBG - eligible block in the corporate limits of the City outside Loop 820, as more specifically depicted in the map attached hereto as Exhibit "B ", attached hereto and hereby made a part of this Agreement for all purposes. Central City Resident means an individual whose principal place of residence is at a location within the Central City. Certificate of Completion has the meaning ascribed to it in Section 5.1. Completion Date means the date as of which the Site Improvements were completed, as represented in the final report outlining the total Site Improvement Costs expended by and on behalf of Company submitted in accordance with Section 4.9.1.2 and confirmed in the Certificate Completion issued by the Director in accordance with Section 5.1. Completion Deadline means December 31, 2011. Comptroller Reports has the meaning ascribed to it in Section 4.9.4. Director means the director of the City's Housing and Economic Development Department or his designee. Effective Date has the meaning ascribed to it in Section 3. First Full Operating Year means the first full calendar year following the year in which the Completion Date occurs. Fort Worth Certified M/WBE Company means a minority or woman-owned business that (i) has received certification as either a minority business enterprise (MBE), a woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the North Texas Regional Certification Agency (NTRCA); (ii) has a principal business office located within the corporate limits of the City that performs a commercially useful function; and (iii) from such principal business office has performed a function or provided a service for which Company is seeking credit under this Agreement. Fort Worth Company means a business that (i) has a principal office located within the corporate limits of the City that performs a commercially useful function and (ii) from such principal business office has performed a function or provided a service for which Company is seeking credit. Fort Worth Employment Goal has the meaning ascribed to it in Section 4.5. Fort Worth Improvement Goal has the meaning ascribed to it in Section 4.2. Fort Worth Resident means an individual whose principal place of residence is at a location within the corporate limits of the City. Page 3 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. Fort Worth Supply and Service Spending Goal has the meaning ascribed to it in Section 4.7. Full -time Job means a job provided to one (1) individual on the Leased Premises for at least forty (40) hours per week. Grocery Store means a supermarket, food store, grocery store, convenience store or delicatessen that is open at least twelve (12) hours each day, at least six (6) days per week, and is primarily engaged in the retail sale of fresh meats and fish, gourmet cheese, deli meats and sandwiches, prepared meals, salads, desserts and premium wines and beer. Guarantor means Sundance West Partners, L.P., the owner or affiliate of the owner of the Leased Premises, which is guarantor of the Loan, as set forth in that certain Guaranty dated on or about November 4, 2011, or any lawful assignee or successor in interest under such Guaranty. LDC has the meaning ascribed to it in Recital C. Leased Premises has the meaning ascribed to it in Recital C. Loan means that certain loan by the LDC to Company in the amount of up to Four Hundred Fifty Thousand Dollars ($450,000.00) to be used by Company to help pay for the finish -out of the Leased Premises for use as a Grocery Store, as governed by the Loan Documents. Loan Documents means the following documents: (i) that certain Security Agreement dated on or about November 30, 2011 executed by Company for the benefit of the LDC; (ii) that certain Promissory Note in the amount of Four Hundred Fifty Thousand Dollars ($450,000.00) dated on or about November 30, 2011; and (iii) any other documents related to or necessary to secure the Loan. M/WBE Improvement Goal has the meaning ascribed to it in Section 4.3. MIWBE Supply and Service Spending Goal has the meaning ascribed to it in Section Overall Employment Goal has the meaning ascribed to it in Section 4.4. Program Cap means the total amount of Loan funds advanced to Company pursuant to and in accordance with the Loan Documents. Program Grants means the annual economic development grants paid in accordance with this Agreement as part of the 380 Program, not to exceed Four Hundred Fifty Thousand Dollars ($450.000.00). Records has the meaning ascribed to it in Section 4.11. Page 4 Lconomic Do clopment Program Agreement hetwecn C'it,, of fort worth and Olk cr's Finc Foods. Inc. Sales means all sales of merchandise (including gift and merchandise certificates), services and other receipts whatsoever of all business conducted in, on or from the Leased Premises, whether cash or credit, including mail, telephone, telefax, telegraph, internet or catalogue orders received or filled at or from the Leased Premises, deposits not refunded to purchasers, orders taken (although such orders may be filled elsewhere), sales to employees, sales through vending machines or other devices. Sales do 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 Leased Premises, or (iii) the amount of returns to shippers and manufacturers. Second Full Operating Year means the second full calendar year following the year in which the Completion Date occurs. Site Improvement Costs means the following costs expended or caused to be expended by Company for the Site Improvements: actual site development and construction costs; contractor fees, the costs equipment, supplies and materials associated with such site development and construction costs; and the costs of newly - purchased equipment, appliances, fixtures, furniture and furnishings installed in the Leased Premises. Site Improvements means those improvements constructed on the Leased Premises and any newly - purchased equipment, appliances, fixtures, furniture and furnishings installed in the Leased Premises in order to finish -out the Leased Premises for use as a Grocery Store, as more specifically set forth in Exhibit "C ", attached hereto and hereby made a part of this Agreement for all purposes. Site Sales Tax Revenues means a one percent (1%) available sales tax, such as that presently in effect pursuant to Texas Tax Code §§ 321.101(a) and 321.103, resulting from sales taxes received by the City and collected by Company on Sales transacted on the Leased Premises. Site 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 Site 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 Site Sales Tax Revenues shall automatically be adjusted to equal that lesser percentage. If the City's sales tax rate is ever decreased as provided in the preceding sentence and the City then subsequently adds a sales tax that increases such lower percentage and whose use is not controlled or regulated, in whole or in part, by another governmental entity or authority or otherwise dedicated to a specific use by the City, then Site Sales Tax Revenues shall be computed to reflect that increased percentage up to a maximum aggregate of one percent (1 %). Page 5 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. Supply and Service Expenditures means all expenditures by Company, whether pursuant to a written contract or on an ad hoc basis, expended directly for the operation and maintenance of the Leased Premises, but excluding amounts paid for electric, gas, water and any other utility services. Term has the meaning ascribed to it in Section 3. Verified Site Sales Tax Pavments has the meaning ascribed to it in Section 4.9.4. 3. TERM. This Agreement shall commence on 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 Loan has been repaid to the LDC pursuant to and in accordance with the Loan Documents or (ii) the date as of which the twentieth (20th) Program Grant has been paid pursuant to and in accordance with this Agreement (the "Term "). 4. OBLIGATIONS COMMITMENTS AND GOALS OF COMPANY. 4.1. Improvements to the Leased Premises. By the Completion Date, Company shall have expended or caused to be expended at least One Million Five Hundred Thousand Dollars ($1,500,000.00) in Site Improvement Costs. The Completion Date shall occur on or before the Completion Deadline. 4.2. Improvement Spending Goal for Fort Worth Companies. Company agrees, as a good -faith goal, to expend or cause to be expended at least One Million Dollars ($1,000,000.00) in Site Improvement Costs with Fort Worth Companies (the "Fort Worth Improvement Goal'). 4.3. Improvement Spending Goal for Fort Worth Certified M/WBE Companies. Company agrees, as a good -faith goal, to expend or cause to be expended at least Five Hundred Thousand Dollars ($500,000.00) in Site Improvement Costs with Fort Worth Certified M /WBE Companies (the "M/WBE Improvement Goal'). Dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of measuring attainment of the goal Fort Worth Improvement Goal. Page 6 Fconomic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. 4.4. Overall Employment Goal. Company agrees, as a good -faith goal, to provide and fill at least twenty (20) Full - time Jobs on the Leased Premises (the "Overall Employment Goal ") at all times beginning on January 1 of the First Full Operating Year. 4.5. Fort Worth Employment Goal. Company agrees, as a good -faith goal, to provide and fill at all times beginning on January 1 of the First Full Operating Year the greater of at least (i) eighteen (18) Full - time Jobs on the Leased Premises or (ii) ninety percent (90 %) of all Full -time Jobs on the Leased Premises, regardless of the total number of such Full -time Jobs, with Fort Worth Residents (the "Fort Worth Employment Goal'). 4.6. Central City Employment Goal. Company agrees, as a good -faith goal, to provide and fill at all times beginning on January 1 of the First Full Operating Year the greater of at least (i) ten (10) Full -time Jobs on the Leased Premises or (ii) fifty percent (50 %) of all Full -time Jobs on the Leased Premises, regardless of the total number of such Full -time Jobs, with Central City Residents (the "Central City Employment Goal'). A Full -time Job held by a Central City Resident shall also count as a Full -time Job held by a Fort Worth Resident for purposes measuring attainment of the Fort Worth Employment Goal. 4.7. Supply and Service Spending Goals for Fort Worth Companies. Company agrees, as a good -faith goal, to expend with Fort Worth Companies in the First Full Operating Year and in each year thereafter at least the greater of (i) Sixty - four Thousand Dollars ($64,000.00) in Supply and Service Expenditures or (ii) eighty percent (80 %) of all Supply and Service Expenditures, regardless of the total amount of Supply and Service Expenditures made in such year (the "Fort Worth Supply and Service Spending Goal'). 4.8. Supply and Service Spending Goal for Fort Worth Certified M/WBE Companies. Company agrees, as a good -faith goal, to expend with Fort Worth Certified M/WBE Companies in the First Full Operating Year and in each year thereafter the greater of (i) Four Thousand Dollars ($4,000.00) in Supply and Service Expenditures or (ii) five percent (5 %) of all Supply and Service Expenditures, regardless of the total amount of Supply and Service Expenditures made in such year (the "M/WBE Supply and Service Spending Goal'). Dollars spent with Fort Worth Certified M /WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of measuring attainment of the Fort Worth Supply and Service Spending Goal. Page 7 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. 4.9. Reports and Filings. 4.9.1. Improvement Spending Reports. 4.9.1.1. Monthly Reports. From the Effective Date until the Completion Date, on or before the tenth (10th) day of each month Company will provide the Director with a report in a form reasonably acceptable to the City that specifically outlines the then - current aggregate Site Improvement Costs expended, as well as the then - aggregate Site Improvement Costs expended with Fort Worth Companies and with Fort Worth Certified M /WBE Companies. 4.9.1.2. Final Report. Within thirty (30) calendar days following the Completion Date, in order for the City to assess whether Company satisfied the requirements of Section 4.1 and the extent to which Company met the Fort Worth Improvement Goal and the M/WBE Improvement Goal, Company will provide the Director with a report in a form reasonably acceptable to the City that specifically outlines (i) the total Site Improvement Costs expended; (ii) the total Site Improvement Costs expended with Fort Worth Companies; and (iii) the total Site Improvement Costs expended with Fort Worth Certified M/WBE Companies, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid, including, without limitation, final lien waivers signed by Company's general contractor. 4.9.2. Annual Employment Report. On or before February 1 of the Second Full Operating Year and of each year thereafter, in order for the City to assess the degree to which Company met the Overall Employment Goal, the Fort Worth Employment Goal and the Central City Employment Goal in the previous calendar year, Company shall provide the Director with a report in a form reasonably acceptable to the City that sets for the total number of individuals who held Full -time Jobs on the Leased Premises, the total number of Fort Worth Residents who held Full -time Jobs on the Leased Premises, and the total number of Central City Residents who held Full -time Jobs on the Leased Premises, all as of December 1 (or such other date requested by Company and reasonably acceptable to the City) of the previous year, together with reasonable supporting documentation. Page 8 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. 4.9.3. Annual Supply and Service Spending Report. On or before February 1 of the Second Full Operating Year and of each year thereafter, in order for the City to asses the degree to which Company met the Fort Worth Supply and Service Spending Goal and the M/WBE Supply and Service Spending Goal, Company 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 Service Expenditures made with Fort Worth Companies and Fort Worth Certified M /WBE Companies during such calendar year. 4.9.4. Sales Tax Reports. On or before February 1 of each year, Company shall provide the City with a report that sets forth the aggregate amount of sales tax paid to the State Comptroller by Company during the previous year, together with corresponding sales tax reports filed with the State Comptroller ( "Comptroller Reports ") (collectively, the "Verified Site Sales Tax Payments "). Company shall keep and maintain copies of all Comptroller Reports for at least seven (7) years following the end of the year to which such Comptroller Reports relate and shall make such Comptroller Reports available to the City for inspection pursuant to and in accordance with Section 4.11 of this Agreement. The City's calculation of Site Sales Tax Revenues in a given year will be based solely on Verified Site Sales Tax Payments. 4.10. Inspection of Leased Premises. Throughout the Term of this Agreement, following reasonable advance notice to Company, the City shall have, and Company shall provide or cause to be provided, access to the Leased Premises during the City's normal business hours in order for the City to inspect and evaluate the Site Improvements to ensure compliance with the terms and conditions of this Agreement. Company will cooperate fully with the City during any such inspection and/or evaluation. 4.11. Audits. The City will have the right throughout the Term of this Agreement to audit the financial and business records of Company that are necessary to evaluate compliance with the terms and conditions of this Agreement (the "Records "). Company shall make all Records available to the City at Company's offices in the City or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Page 9 Fconomic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. 5. CITY OBLIGATIONS. 5.1. Issuance of Certificate of ComDletion for Site Improvements. Within sixty (60) calendar days following receipt by the City of the final report outlining the total Site Improvement Costs expended by and on behalf of Company, as required by Section 4.9.1.2, and assessment by the City pursuant to Section 4.11 of the information contained therein, if the City is able to verify that Company expended at least One Million Five Hundred Thousand Dollars ($1,500,000.00) in Site Improvement Costs by the Completion Date and that the Completion Date occurred on or before the Completion Deadline, the Director will issue Company a written certificate verifying those two facts (the "Certificate of Completion "). 5.2. Program Grants. Subject to the terms and conditions of this Agreement, provided that Company expended at least One Million Five Hundred Thousand Dollars ($1,500,000.00) in Site Improvement Costs by the Completion Date and that the Completion Date occurred on or before the Completion Deadline, as verified in the Certificate of Completion issued pursuant to Section 5.1, Company will be entitled to receive up to twenty (20) annual Program Grants, subject to the applicable Program Cap. The amount of each Program Grant paid in a given Program Year shall equal one hundred percent (100 %) of the Site Sales Tax Revenues received by the City in the previous calendar year. 5.3. Program Cap. Once the City has paid Company aggregate Program Grants equal to the applicable Program Cap, this Agreement will terminate. If in any year the amount of a Program Grant would cause the aggregate Program Grants paid by the City to exceed the Program Cap, the amount of the Program Grant payable in that year will equal the difference between the Program Cap and the aggregate of all Program Grants paid by the City as of the previous year. 5.4. Deadline for Payment; Transfers in Lieu of Payment. Program Grants shall be paid annually, on or before June 1 of each year. The first Program Grant payable hereunder shall be paid by the City on or before June I of (i) the Second Full Operating Year or (ii) the First Full Operating Year if requested in writing by Company and Guarantor, and the City, taking into consideration its current fiscal year budget and following fiscal year budget planning, provides Company with written consent to such request. Notwithstanding anything to the contrary herein, Company understands, agrees, and hereby grants its unconditional consent to the City that, in lieu of making a Program Grant payment to Company as specified herein, the City, in its sole discretion, shall have the right in any year of the Term, to pay such Program Grant directly to the LDC on Company's behalf. The LDC hereby agrees that the full amount of any such payment shall be applied to the balance of any unpaid Loan Page 10 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. Principal in accordance with the Loan Documents and will be considered a payment by Company pursuant to the Loan Documents. In this event, the City shall provide a written notice to Company stating the amount of the Program Grant payment and verifying that such payment was made to the LDC in accordance with this Section 5.4. 5.5. Source of Program Grant Funds. 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 Site Sales Tax Revenues. Company understands and agrees that any revenues of the City other than those dedicated for payment of a given annual Program Grant pursuant to this Agreement may be used by the City for any lawful purpose that the City deems necessary in the carrying out of its business as a home rule municipality and will not serve as the basis for calculating the amount of any future Program Grant or other obligation to Company. 6. DEFAULT TERMINATION AND FAILURE BY COMPANY TO MEET VARIOUS DEADLINES AND COMMITMENTS. 6.1. Failure to Site Improvements. If (i) Company fails to expend or cause to be expended at least One Million Five Hundred Thousand Dollars ($1,500,000.00) in Site Improvement Costs by the Completion Date, or (ii) the Completion Date does not occur by the Completion Deadline, the City shall have the right to terminate this Agreement immediately by providing written notice to Company and Guarantor without further obligation to Company hereunder. 6.2. Failure to Operate Grocery Store. If at any time during the Term of this Agreement the Leased Premises is not used as a Grocery Store for thirty (30) consecutive days, the City's obligation to pay any Program Grants hereunder shall be suspended until the Leased Premises has been used as a Grocery Store for thirty (30) consecutive days. Notwithstanding anything to the contrary herein, if the Leased Premises is not used as a Grocery Store for twelve (12) consecutive months, the City will have the right to terminate this Agreement immediately by providing written notice to Company and Guarantor without further obligation to Company hereunder. 6.3. Termination of Loan Documents. This Agreement shall terminate contemporaneously upon the lawful termination of any of the Loan Documents. Page I 1 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. 6.4. Knowing Employment of Undocumented Workers. Company acknowledges that effective September 1, 2007, the City is required to comply with Chapter 2264 of the Texas Government Code, enacted by House Bill 1196 (80th Texas Legislature), which relates to restrictions on the use of certain public subsidies. Company hereby certifies that Company, and any branches, divisions, or departments of Company, does not and will not knowingly employ an undocumented worker, as that term is defined by Section 2264.001(4) of the Texas Government Code. In the event that Company, or any branch, division, or department of Company, is convicted of a violation under 8 U.S.C. Section 1324a09 (relating to federal criminal penalties and injunctions for a pattern or practice of employing unauthorized aliens): • if such conviction occurs during the Term of this Agreement, this Agreement shall terminate contemporaneously upon such conviction (subject to any appellate rights that may lawfully be available to and exercised by Company) and Company shall repay, within one hundred twenty (120) calendar days following receipt of written demand from the City, the aggregate amount of all Program Grants received by Company hereunder, if any, plus Simple Interest at a rate of four percent (4 %) per annum based on the amount of each Program Grant paid in each previous Program Year as of the date on which each such Program Grant was paid; or • if such conviction occurs after expiration or termination of this Agreement, subject to any appellate rights that may lawfully be available to and exercised by Company, Company shall repay, within one hundred twenty (120) calendar days following receipt of written demand from the City, , the aggregate amount of all Program Grants received by Company hereunder, if any, plus Simple Interest at a rate of four percent (4 %) per annum based on the amount of each Program Grant paid in each previous Program Year as of the date on which each such Program Grant was paid. For the purposes of this Section 6.4, "Simple Interest" is defined as a rate of interest applied only to an original value, in this case the aggregate amount of a Program Grant. This rate of interest can be applied each year, but will only apply to the aggregate amount of a particular Program Grant and is not applied to interest calculated. For example, if the aggregate amount of a Program Grant is $10,000 and it is required to be paid back with four percent (4 %) interest five years later, the total amount would be $10,000 + [5 x ($10,000 x 0.04)], which is $12,000. This Section 6.2 does not apply to convictions of any affiliate of Company, any franchisees of Company, or any person or entity with whom Company contracts. Notwithstanding anything to the contrary herein, this Section 6.4 shall survive the expiration or termination of this Agreement. 6.5. Failure to Meet Various Goals. If Company fails to meet the Fort Worth Improvement Goal, the M /WBE Improvement Goal, the Overall Employment Goal, the Fort Worth Employment Goal, the Page 12 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. Central City Employment Goal, the Fort Worth Supply and Service Spending Goal, and/or the M /WBE Supply and Service Spending Goal in any given year, such event shall not constitute a default hereunder or provide the City with the right to terminate this Agreement or otherwise affect the obligation to pay Program Grants in accordance with this Agreement; provided, however, that if Company fails to meet any goal specified herein, Company shall, upon request, promptly provide the City with a written explanation of the steps that Company took in good faith to meet such goal, the reasons why Company believes it did not meet the goal, and a plan as to how Company believes it can meet the goal in the following years of the Term. 6.6. Failure to Submit Reports. Without limiting the application of Section 6.7, if Company fails to submit any report required by and in accordance with Section 4.9, the City's obligation to pay any Program Grants hereunder shall be suspended until Company has provided all required reports. 6.7. General Breach. Unless stated elsewhere in this Agreement, Company shall be in default under this Agreement if Company breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement (or, if Company has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), the City shall have the right to terminate this Agreement immediately by providing written notice to Company. 6.8. No Effect on Loan Documents. Notwithstanding anything to the contrary herein, termination of this Agreement shall have no effect on the validity or binding authority of any Loan Documents. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Company shall have the exclusive right to control all details and day -to -day operations relative to the Leased Premises and any improvements thereon and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Company acknowledges that the doctrine of respondeat superior will not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Company. Page 13 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. 8. INDEMNIFICATION. COMPANY, AT NO COST TO THE CITY, AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S BUSINESS AND ANY RESULTING LOST PROFITS) AND /OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) COMPANY'S BREACH OFANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE LEASED PREMISES AND ANY OPERATIONS AND ACTIVITIES THEREON OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT. 9. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: City: City of Fort Worth Attn: City Manager 1000 Throckmorton Fort Worth, TX 76102 with copies to: the City Attorney and Housing/Economic Development Dept. Director at the same address 10. ASSIGNMENT AND SUCCESSORS. Company: Oliver's Fine Foods, Inc. Attn: Todd Oliver Bush 1307 Bramble Lane Mansfield, TX 76063 with a copy to: Sundance West Partners, L.P. Attn: Johnny Campbell 201 Main Street, Suite 7 Fort Worth TX 76102 Company may assign, transfer or otherwise convey all of its obligations under this Agreement to any other person or entity provided that such person or entity first executes a written agreement with the City pursuant to which such person or entity agrees to operate a Grocery Store on the Leased Premises, as evidenced by provision to the City of a copy of a valid Page 14 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. lease for the Leased Premises, and to assume and be bound by all covenants and obligations of Company under this Agreement. Otherwise, Company may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the City Council and execution by such person or entity of a written agreement with the City that meets the requirements of the preceding sentence. Any lawful assignee or successor in interest of Company of all rights under this Agreement shall be deemed "Company" for all purposes under this Agreement. 11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 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. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 15. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action 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. Page 15 Fconomic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. 16. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of (i) the City, (ii) Company and any lawful assign or successor of Company, and (iii) the LDC, solely as set forth in Section 5.4, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 17. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, or other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to 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 Company's failure to obtain adequate financing to complete the Site Improvements by the Completion Deadline shall not be deemed to be an event of force majeure and that this Section 17 shall not operate to extend the Completion Deadline in such an event. 18. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. 19. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Company, and any lawful assign and successor of Company, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. Page 16 Economic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. 21. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. EXECUTED as of the last date indicated below: CITY OF FORT WORTH: By: Fernando Costa Assistant City Manager Date: /Z/ZI r/// APPROVED AS TO FORM AND LEGALITY: By: Peter Vaky Deputy City Attorney M &C: C -24780 3 -8 -11 OLIVER'S FINE FOODS, INC., a Texas comoratic>6l e TOW Oliver Bush President Date: l� Afte3Wd by: P. Gonzales, Asst. IQGtDQ ®����� [A o �l o� o°'"�G ° °o d ° °0000° . S The F LOCAL EVELOPMENT CORPORATION, a Texas non -profit corpo ation, ins i Agreement s a party for the sole limited purpose of consenting to the transaction de c ' e in Section 5c . hereof. I By: Name: AQHny carfL, ✓'ce_ President Date: Page 17 Fconomic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods. Inc. 0 C: EXHIBITS "A" — Property Description of Leased Premises "B" — Map of Central City "C" — Description of Site Improvements Fconomic Development Program Agreement between City of Fort Worth and Oliver's Fine Foods, Inc. Exhibit A Real Property Description Approximately 6,600 square feet of space on the street level of the Sanger Building on Block 50, Original City Addition to the City of Fort Worth, Tarrant County, Texas, located in the Sundance Square mixed use project at 410 Houston Street, Fort Worth, Texas 76102. 626 70 6 Exhibit 605, 76092 76Z44 76248 E 7 6051 76131, 76 4 76182 T- 7603 26 76148 4 WIN 30 all awl 76017 7601 7 6134 76001 7601, 1. �Legend FORTWORTH Updated 08/09/2011 Zip Codes Cent* City Bourdary Housing and Economic Development CDE* ENbW Ares City UM" CDBG Eligible Areas & Central City M &C Review Page 1 of 2 Official site of the City of Fort Worth, Texas CITY COUNCIL AGENDA FoRTWORTH — COUNCIL ACTION: Approved on 3/8/2011 DATE: 3/8/2011 REFERENCE C -24780 LOG NAME: 170LIVERSCHAPTER380 NO.. CODE: C TYPE: NOW PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Execution of an Economic Development Program Agreement with Oliver's Fine Foods, Inc. for the Conversion of Vacant Space at 415 Throckmorton Street into a Neighborhood Grocery Store (COUNCIL DISTRICT 9) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute an Economic Development Program Agreement with Oliver's Fine Foods, Inc. for the conversion of vacant space at 415 Throckmorton Street into a neighborhood grocery store. DISCUSSION: Background Oliver's Fine Foods, Inc. (the Company) is a family -owned and operated neighborhood market that specializes in prepared appetizers and meals, gourmet cheese, fresh meats and fish, deli meats, sandwiches, salads, desserts, as well as premium wines and beer. The Company currently has one location in Mansfield, Texas. The proposed development will help fill a vacancy in the downtown retail mix and will serve as an amenity for residential development while converting a space that has been vacant since 2009. Proposed Project The Company intends to invest $1.5 million to convert 6,600 square feet of vacant space at 415 Throckmorton Street (the Leased Space) into a neighborhood grocery store with a full - service deli and restaurant designed to cater to the needs of those living and visiting the downtown Fort Worth area. The Company intends to hire a minimum of twenty full -time employees. Incentive Proposal Because of a gap between the costs to finish out the Leased Space for use as a grocery store and the achievable market rents at the site, the Fort Worth Local Development Corporation (LDC) has agreed to loan the Company up to $450,000.00 to help Company complete the necessary renovations. Provided that the Company meets the commitments listed below, the Company will be eligible to receive annual Economic Development Program Grants for up to twenty years equal to a maximum of 100 percent of the available $0.01 City sales tax generated from the store. These Grants will serve as a funding source to help the Company repay the LDC loan. The Economic Development Program Agreement will expire after 20 years or on the date as of which the LDC loan has been repaid in full. Sundance West Partners, LP will serve as a guarantor of the loan if Company cannot pay the minimum annual installments under the loan or the loan has not been paid back in full after 20 years. In addition, if the Company vacates the Leased Space during the loan term, Sundance West Partners, LP will have 12 months from the date of vacation to have a replacement grocer fully operating in the site. If a new grocer is not found during the 12 -month period, the entire unpaid balance of the loan will become due and fully payable to the LDC http: // apps. cfwnet. org /council _packet /mc_review.asp ?ID =14881 &councildate= 3/8/201 1 6/15/2011 M &C Review Page 2 of 2 Company Commitments: The Company pledges to: Invest at least $1.5 million to convert 6,600 square feet of vacant space at 415 Throckmorton Street to a neighborhood grocery store by December 31, 2011 At least $1 million with Fort Worth companies At least $500,000.00 with M /WBE companies Invest at least $80,000.00 in annual discretionary service and supply expenditures At least 80 percent or $64,000.00 (whichever is greater) with Fort Worth contractors At least 5 percent or $4,000.00 (whichever is greater) with M /WBE contractors Employ a minimum of 20 full -time employees by December 31, 2011 At least 90 percent or 18 (whichever is greater) with Fort Worth residents At least 50 percent or 10 (whichever is greater) with Fort Worth Central City residents The proposed project is located in COUNCIL DISTRICT 9. 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 FROM Fund /Account/Centers Susan Alanis (8180) Jay Chapa (5804) Robert Sturns (8003) http: / /apps.cfwnet.org/ council _packet /mc_review.asp ?ID =14881 &councildate= 3/8/201 1 6/15/2011 FORT WORTH LOCAL DEVELOPMENT CORPORATION RESOLUTION OF THE BOARD OF TRUSTEES Authorizing a Loan to Oliver's Fine Foods, Inc. for the Purpose of Funding Tenant Improvements at 415 Throckmorton St. Necessary for Conversion of that Property into a Grocery Store WHEREAS, the Fort Worth Local Development Corporation (the "Corporation ") was incorporated on June 24, 1987 as a Texas non - profit corporation organized for the benefit of the City of Fort Worth (the "City "), specifically to (i) provide assistance to the City in encouraging, fostering and promoting the renovation, construction, rehabilitation and establishment of economic development facilities within the City, and (ii) administer programs to provide financial assistance to qualified entities or persons, including the establishment of one or more revolving loan funds to such entities or persons related to job creation and economic development activity in the City; and WHEREAS, Oliver's Fine Foods, Inc. ( "Oliver's "), a family -owned and operated neighborhood- oriented market that specializes in prepared appetizers and meals, gourmet cheese, fresh meats and fish, deli meats, sandwiches, salads, and desserts, as well as premium wines and beers, wishes to lease and renovate the space in the City's downtown at 415 Throckmorton St. (the "Leased Premises ") for use as a grocery store; and WHEREAS, because of an estimated $450,000.00 gap between the costs to finish -out the Leased Premises for use as a grocery store and the achievable market rents at the site, Oliver's has requested financial assistance from the City in order to undertake this project; and WHEREAS, the City's Comprehensive Plan embraces the Downtown Fort Worth Strategic Action Plan, sponsored by the City, Downtown Fort Worth, Inc. and the Fort Worth Housing Authority, which encourages the promotion of public incentives to encourage downtown housing development; and WHEREAS, the City staff has represented to the Corporation's Board of Trustees (the "Board ") that it will recommend that the City make certain annual Economic Development Program Grants, as authorized by Chapter 380 of the Texas Local Government Code and City Council Resolution No. 3716 -03 -2009 (the "380 Grant Payments "), over the course of up to twenty (20) years; and WHEREAS, in order to provide Oliver's with an immediate funding source to pay for the tenant improvements necessary for the Leased Premises to be used as a grocery store, the City staff has requested that the Board consider loaning Oliver's a sum, payable from the Corporation's currently available revenues, not to exceed the lesser of (1) the costs of such tenant improvements or (ii) $4.50.000.00 of such tenant improvements: and Page I of 3 Resolution rc: Last Berr, Renaissance I IF Loan WHEREAS, the Board finds that development of a grocery store in the City's downtown is essential to attract additional downtown housing developments and residents; and WHEREAS, consistent with the Corporation's economic development objectives, the Corporation is willing to make such a loan to Oliver's on certain terms and conditions set forth herein and that may otherwise be acceptable to the President and legal counsel for the Corporation; NOW, THEREFORE, BE IT RESOLVED that the Corporation hereby authorizes a loan to Oliver's that includes the following terms and conditions: • The amount of the loan shall not exceed the lesser of (i) the costs to construct and install tenant improvements necessary for the Leased Premises to be used as a grocery store or (ii) $450,000.00 of such costs. • The term of the loan shall not exceed twenty (20) years. • The loan shall be interest -free. • Oliver's will be required to repay the loan in annual installments in the greater amount of (i) one hundred percent (100 %) of the 380 Grant Payment received in the same year or (ii) the following minimum amount: • Years 1 -2: $15,000.00 • Years 3 -5: $20,000.00 • Years 6 -20: $24,000.00 • The Corporation shall have a security interest in the 380 Grant Payments made to Oliver's and to any equipment (non - fixtures) installed in the Leased Premises whose costs are included as tenant improvements covered by the loan. • Sundance West Partners, LP, which owns the Leased Premises, will serve as guarantor of the loan, as follows: o To pay any shortfall on the minimum annual installment due in a given year of the loan term; and o To repay the loan in full on an accelerated schedule in the event Oliver's vacates the Leased Premises and the Leased Premises are not used and operated as a comparable grocery store within twelve (12) months following such vacation. FURTHER RESOLVED, that the President or Vice President is hereby authorized to execute and file a loan agreement between the Corporation and Oliver's, Inc. and any other related and necessary documents, on terms and conditions acceptable to and approved by the President and legal counsel for the Corporation; and FURTHER RESOLVED, that the Secretary or any Assistant Secretary of the Corporation is hereby authorized and directed to certify the adoption of this Resolution. Resolution re: Last Bern Renaissance 111 Loan Adopted this 1 st day of March, 2011. WE Carter Burdette Secretary Page 3 of 3 Resolution re: East BcrrN Renaissance I IF Loan