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HomeMy WebLinkAboutContract 41267-A1 t CITY SWWARY 6AMC T NOOO Ll 71-P, AMENDMENT NO. I TO CITY SECRETARY CONTRACT N . 41267 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This :AMENDMENT No. I To ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Amendment") is entered into by and between the CITY OF, FORT WORTH, TEXAS (the "City"), a home rule municipality organized under the laws of the State of Texas, and COLUMBIA NORTH HILLS HOSPITAL SUBSIDIARY, L.P., a Texan limited partnership doing, business as Emergency Medical Center at Alliance "Company"). ). RECITALS The City and Company hereby agree that the following statements are tree and correct and constitute the basis upon which the City and Company have entered into this Agreement-, A. Company owns approximately 75 acres of land in the vicinity of the northeast intersection of Interstate Highway 35 West and North Tarrant Parkway (the "Development "rope "), as more specifically depicted and described in Exhibit 4 A 1�� attached hereto and hereby made a part of this Agreement for all purposes. Be, Company s interested in constructing on the Development property a 10,500 0 squ are foot freestanding emergency department and a hospital with at least thirty- four 3 beds with shell space for at lest an ,additional twenty-six ('26) beds (collectively, the "Development"). The area of the City in which the Development Property is located lacks, appropriate critical and medical ease facilities, which is a hindrance to the City's desired development for the area. The City's 20,13 Comprehensive Plan, adopted by the City Council pursuant to Ordinance No. 20644-03- 2013 (the "Comprehensive Plan") recommends, that large portions of the City in the vicinity of the Development he developed for single-family and mixed-usel residential purposes. The Comprehensive Plan also recommends that the City use lawfully available financial incentives to, arnong other things, promote development that conforms to the community's vision, as expressed in the Comprehensive plan and other widely ,accepted community lens. resat the City is willing to ro�vide a economic develo meat � p p cc incentive to Company in order for Company to proceed with the Development. C. As recommended by the Comprehensive Plan, and in accordance with Resolution No. 3716-03-2009, the City has established an economic development program pursuant to which the City will, on a ease h�y-case basis, offer economic LU incentives authorized by Chapter 3 80 o f the Texas Local Government Code that include Lj LU Page l Amendment No. I to Economic Development Program Agreement OFFICIAL RECORD LOFFIC�IA RD between City f Fort Worth and Emergency Medical Center at Alliance CITY SECRETARY F I Ti WOR 0] WORTH,, TX 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 employment and other public benefits to be made or invested in the City (the rogram"). Do The City and Company previously entered into that certain Economic Development Program Agreement dated as of December 20, 2010, a public document on file in the City Secretary's Office as City Secretary Contract No. 41267 (the "Agreement") that provided for the City to pay Company certain economic development program grants under the 380 Program in return for Company's, completion of the Development in two phases pursuant to and in accordance with the terms and conditions, of that Agreement. Due to economic, market and financing changes since the Agreement was originally executed, the City Council approved Mayor and Council Communication (M&C) C-259' 95 on December 11, 2012, which approved execution of an amendment to the Agreement that restructures the requirements comprising Phase 11 of the Development; provides for an extension of the time frame during which Program Grants will paid, conditioned upon the completion of Phase 11; changes the method by which be attainment of the Personal Property Commitment will be measured; and calls for the City Council to nominate the Development project as an enterprise zone project. Because these proposed changes will result in numerous changes to the wording of this Agreement, the parties wish to amend the Agreement by restating herein all terms and conditions of the Agreement, as amended pursuant to M&C C-25995. E. The City Council has determined that by entering into the Agreement,, as amended by this Amendment, 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, 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 amended Agreement are consistent with the City's economic development objectives as outlined in the Comprehensive Plan. This Agreement, as amended by the Amendment I is authorized by Chapter 380 of the Texas Local Government Code. Fo The City has determined that the feasibility of the Development is contingent on Company's receipt of the Program Grants, as provided in this Agreement, as amended by this Amendment. The City's, analysis is specifically based on financial information provided by Company. NOW, THEREFORE, 'in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Page 2 Amendment No. I to E conomic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance AGREEMENT 10 INCO RPao RATIONOF RECITALS; AMENDMENT., 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 Amendment and the Agreement., This Amendment is a complete restatement and amendment of the Agreement. Any conflict between the provisions, of the Agreement, as amended by this Amendment, and the provisions of City Secretary Contract No. 41267 shall be resolved 'in favor of the provisions set forth in this Amendment. Sections 2 through 23 of the Agreement are hereby amended to read as follows.-O DEFINITIONS. In addition to other terms defined in the body of this Agreement, the following terms, shall have the definitions ascribed to them as follows: 380 Pro am has the meaning ascribed to it in Recital C. Affiliate means all entities, incorporated or other ire, under common control with,, controlled by or controlling Company. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Base Grant Pereenta- means forty percent (40%), which percentage constitutes the base calculation o-,r eacn Program Grant payable by the City under this Agreement. As more specifically set forth in Section 6.1.1, 6.2.1 and 6.3, each Program Grant payable by the City to Con pay 'under this Agreement equals a percentage of the Program Source Funds. Thus, each Program Grant payable in a given year will equal at least forty percent (40%) of the Program Source Funds, available for such Program urant. Central means the area of the corporate limits of the City within Loop 820, 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 23 03, 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 82,0, as more specifically depicted in the map attached hereto as Exhibit '', attached hereto and hereby made a part of this Agreement for all purposes. Central Ciq EMgloywent CommiUment has the meaning ascribed to it in Section 4.,5. Page 3 Amendment No., I to Economic Development Prograrn Agreement b�etween City of Fort Worth and Emergency Medical Center at Alliance uentral CI*!y Employment Percent e has the meaning ascribed to it in Section 6.1.6. Central Ream dent 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. Construction uoists means the following, costs expended to construct a Phase of the Development: actual site development costs, construction costs, contractor fees, costs of supplies and materials, engineering fees, arch itectural and design fees, and any permit fees. Construction Costs specifically excludes any acquisition costs of the Development Property. Development has the meaning ascribed to it in Recital B. Development Pry er!y has the meaning ascribed to it in Recital A. Director means the director of' the City's Housing and Economic Development Department or his authorized designee. Effective Date has the meaning ascribed to it in Section 3. Fort Worth Certified M/WBE Company means a minority- or woman-owned business that (0 has received certification as either a minority business enterprise (MBE), a woman business enterprise (WBE) or a disadvantaged business enterprise (DBE) by the North Central Texas Regional Certification Agency (NCT CA); (n) has a principal business office located within the corporate limits of the City that perforrns a commercially useful function; and (iii) has provided from such office the services or sales that Company is seeking to have counted under this Agreement. Fort Worth E!Ilplo ment Commitment has the, meaning ascribed to it in Section 4.4. Fort Wolrth Employment Pereen has the meaning ascribed to it in Section 6.1.5. Fort Worth Resident means an 'Individual whose principal place of residence is at a location within the corporate limits of the City. Fort Worth Supply and Service Sigendin Commitment, has 'the meaning ascribed to it in Section 4.6. Fort Worth Supply and Service Spending Percent has the meaning ascribed to it in Section 6.1.7., Page 4 Amendment N . I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance Full-time Equivalent Job means ajob provided to one (1) or more individuals by Company for, collectively, at least forty (401) hours per week. M , SM]21y and Service Percent has the meaning ascribed to it in Section 6.1.8,. M/WBE S'p2plj and Service Spending Commitment, has the meaning ascribed to it in Section 4.7. New Taxable Tarr eible Personal P,ropery means any personal property that I is subject to ad valorem taxation by the City- (ii) is located on the Development Property,- 1 9 (111) is owned or leased by Company; and (iv), was, not located in the City prior to the Effective Date of this Agreement., Overall Emplolment Commitment has the meaning ascrit)ea to it in Section 4.3. Overall Emplo ment P,erce has the meaning ascribed to it in Section 6.1.4. Phase I means the first phase of the Development, which consists, of a building of at least 10,500 square feet that is used as a medical emergency department and that contains, at a minimum, the -following improvements,.- eleven (11) examination rooms, one (1) trauma room, one (1) radiographic fluoroscopic room, and a sixteen (I 6)-slice CT scanner with support spaces. 1 0 Phase I Completion Date i means the as of which a certificate of occupancy, whether final or temporary, has been issued by the City for all of the improvements comprising Phase 'l that are intended to be occupied. Phase! I Completion De,adfine means June 3 , 2,0112. Phase I Fort Worth Construction Commitment has the meaning ascribed to it in Section 4.1.2. Phase I Fort Worth Construction Percent has the meaning, ascribed to it in Section 6.1.2. Phase I NMBE Construction Commitment has the meaning ascribed to it in Section 4.1.3. Phase I M Construction Percent has the meaning ascribed to it in Section 6.1.3. Phase I Personal Pro er Commitment has the meaning ascribed to it in Section 4.2. Page 5 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance Phase I Personal Property Re, or has the meaning ascribed to it in Section 4.101.3. .base 11 means the second phase of the Development, which consists of a hospital with at least thirty (314) beds, I.Or patients with additional shell space sufficient to expand to a total of sixty (60) beds,. Phase 11 Coml2letion Date means the date as of which a certificate of occupancy, whether final or temporary, has been issued by the City for all of the improvements sin Phase 11 that are intended to be occupi,ed. Phase, It Completion Deatiline means December 31, 2016. Phase 11 Fort Worth Construction Commitment has the meaning, ascribed to it in Section 4.8.2. Phase 11 Fort Worth Construction Percent has the meaning ascribed to it in Section 6.2.2. Phase 11 M B.E Construction Commitment has the meaning ascribed to it in Section 4.8.3. Phase 11-M./WBE Construction Perce has the meaning ascribed to it in Section 6.2.3. 'Phase 11 Personal Proper!y Commitment has the meaning ascribed to it in Section 4.9. Phase 11 Personal fro!:q Roort has the meaning ascribed I t to it in Section 4.10-3. Program Grants means the annual economic development grants paid by the City to Company in accordance with this Agreement and as part of the 380, Program. Program Source Funds means the amount of ad valorem taxes on New Taxable Tangible Personal Property that are received by the City during the Twelve-Month Period ending on January 31 of the year in which a Program Grant is payable. The taxable appraised value of such New Taxable Tangible Personal Property for any given tax year will be established solely by the appraisal district that has j nrisdiction over the Development Property at the time. Records has the meaning ascribed to it in Section 4.11. Supply and Service Expenditures means all expenditures by Company expended directly -for the operation and maintenance of the Development, excluding amounts paid for electric, gas, water and any other utility set-vices. Page 6 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance Term has the meaning, ascribed to it in Section 3. Twelve-Month Period means the period between February I of a given year and 0 January 3 1. of the foillowing year. 30 r rE,RM. This Agreement shall be effective as of the date of execution by both parties (the "Effective Date") and, unless terminated earlier pursuant to and 'in accordance with this Agreement, shall expire on the date as of which the City has paid all Program Grants required hereunder the "Term"). 44, COMPANY OBLIGATIQNS AND COMMITMENTS. ...1 Real Pro perty Improvements for Phase 1. 4.1.1. In General. By the Phase I Completion Date, Company shall have expended at least Three Million T wo f4undred I'housand Dollars ($3,200,000.00) in Construction Costs for Phase I of the Development. 'I"he Phase I Completion Date must occur on or before the Phase I Completion Deadline. 4.1.2. Construction S ending Commitment for Fort Worth Companies. By the Phase I Completion Date, Company shall have expended at least thirty percent (30%) of all Construction Costs for Phase I of the Development, regardless of the total amount of such Construction Costs, with Fort Worth Companies (the "Phase I Fort Worth Construction Commitment"'). 4.1.3. C n ►tructlor ending Commitment for Fort Worth Certified M/WBE Companies. By the Phase I Completion Date, Company shall have expended at least twenty-five percent (25%)l of all Construction Costs for Phase I of the Development, regardless of the total amount of such Construction Costs, with Fort Worth Certified M/WBE Companies (the, "Phase I NI/WBE Construction Commitment"). Page 7 Amendment No. I to,Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance 4.2. Personal Propertj Improvements for Phase I. Company covenants and agree�s that New Taxable Tangible Personal Property having a cost of at least Two Million Dollars ($2,000,000.00) shall be in place on the Development Property by January 1, 2013 (the "Phase I Personal Property Commitment"'), as verified on the basis of the Phase I Personal Property Spending Report and confirmed in the Certificate of Completion for Phase I issued pursuant to Section 5. 4,3* Overall Emplo, me,nt Commitment. Beginning in calendar year 2012, and in each year thereafter during, the Tenn of this Agreement, Company shall provide and have filled at least twenty (20) Full-time Equivalent Jobs on all parts of the Development Property (the ,"Overall Employment Commitment"')., 4A, Fort Worth Employment Commitment. Beginning in calendar year 2012, and in each year thereafter during the Tenn of this Agreement, Company shall provide and have filled at least thirty percent (30%) of all Full-time Equivalent Jobs on all parts of the Development Property, regardless of the total amount of such Full-time Equivalent Jobs, with Fort Worth Residents (the "'Fort Worth Employment Commitment"). 4.5. Central Cl!j Employ ent Commitment. Beginning in calendar year 20112, and in each year thereafter during the Term of this Agreement, Company shall provide and have filled at least fifteen percent (15%) of all Full-time Equivalent Jobs on all parts of the Development Property, regardless of-the total amount of such Full-time Equivalent Jobs, with Central City Residents (the "Central City Employment Commitment"). A Full-time Equivalent Job held by a Central City Resident shall also count as a Full-time Equivalent Job held by a Fort Worth Resident for purposes of the Fort 'Worth Employment Commitment. 4.6. Sup Z-1 9 10" 10, , j2 and Service nipending uommitment for Fort Worth Companies. Beginning in calendar year 2012, and in each year thereafter during the Tenn of this Agreement, Company shall annually expend at least Fifty Thousand Dollars ($50,000.00) in Supply and Service Expenditures with Fort Worth Companies (the "'Fort Worth Supply and Service Spending Commitment"). Page 8 Amendment Nol. I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance 4.7. Sn l and Service Spending,,,Commitment for Fort Worth Certified. MIW13E Coml2anjes. Beginning in calendar year 2012, and in each year thereafter during the Terms of this Agreement, Company shall annually expend at least Twenty-five Thousand Dollars $25, 0.00 in Supply and Service Expenditures with Port Worth Certified M/WB E Companies (the M/WBE Supply and Service Spending Commitment"). 4.8. Real Proper Improvements for Phase If 4.8.1. In General. By the Phase TT Completion Tate, Company shall have expended at lest Forty Million Dollars $40�,000�,000.00 in Construction Costs for Phase TT of the Development. The Phase 11 Completion Date must occur on or before the Phase 11 Completion Deadline. 4.8.2. Construction Spending Commitment itment for Fort Worth o pia n es. Date, Company By t e Phase TT Completion sha.11 have expended at least thirty percent 30% of all Construction Costs for Phase 11 of the Development, regardless of the total amount of such Construction Costs, with Fort Worth Companies (the "Phase se 11 Fort, Werth Construction Commitment"). 4.8.3. Construction S ending o it ent for Fort Worth Certified M W E Companies, By the Phase 11 Completion Date, Company shall have expended at least twenty-five percent 25%) of all Construction Costs for Phase ll of the Development, regardless of the total amount of such Construction. Costs, with Fort Worth Certified E Companies (the "Phase ff NMBE Construction Commitment") 4.9. Personal Pro er fm rovements for Phase ff. Company covenants and agrees that New 'Taxable Tangible Personal Property having a. cost of at least Twenty Million Dolls ($20,0001,000.00) shall be in place on the Development t Propert ° by the later of January l of the first full calendar year following the Phase lT Completion Date or ninety 01 calendar days following the Phase 11 C'om letion Date, as verified on the basis of the Phase ff Personal Property Spending Report and confirmed in in the Certificate of Completion for Phase It issued pursuant to Section 5 (the "Phase ff Personal Page 9 Amendment No.. t to Economic Development Program Agreement ment between City of Fort Worth and Emergency Medical Center at Alliance Property Commitment"). New Taxable Tangible Personal Property that was in place on the Development Property by January 1, 2013 and that was included in the Phase I Personal Property Spending Report may be counted for purposes of ascertaining attainment of the Phase H Personal Property Commitment only to the extent that it was not counted for purposes or ascertaining attainment of the Phase I Personal Property Commitment. 4.10. Re rts and Filings. 4.10.1. Monthly oins,t'ructioln Speoding Reports. From the Effective Date until the Phase I Completion Date, and from the date that Company obtains a building permit from, the City to initiate construction of Phase 11 until the Phase 11 Completion Date,, Company will provide the Director with a monthly report in a form reasonably acceptable to the Director that specifically outlines the then- current aggregate Construction Costs expended by and on behalf of Company for the Phase in question, as well as the then-current aggregate Construction Costs, expended by and on behalf of Company for the Phase in question with Fort Worth Companies and Fort Worth Certified M/WBE Companies. Company agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee as, reasonably requested or necessary for assistance in meeting or exceeding the Phase I M/WBE Construction Commitment and the Phase 11 NVWBE Construction Commitment and to address any related concerns that the City may have., 4.1 0.2,. Final Construction Spending Rej2orts, III i Within sixty (610), calendar days, following the Phase I Completion Date and following -the Phase 11 Completion Date, in order for the City to assess whether Company satisfied the requirements of Sections 4.1.1, 4.1.2, and 4.1.3 (for Phase 1) and Sections 4.8.1, 4.8.2, and 4.8.3 for Phase 11), Company will provide the Director with a report in a -form reasonably acceptable to the Director that specifically outlines (i) the total Construction Costs expended by and on behalf of Company for the Phase in question, (ii), the total Construction Costs expended for the Phase in question with Fort Worth Companies, and (iii) the total Construction Costs expended for the Phase in question 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'. page 10 Amendment No. I to Economic Development Program Agreement between City offort Worth and Emergency Medical Center at Alliance, 4.101.3. Personal Proper _q Spenuing ReportsS By April 30, 2013, Company shall submit a report, in a form reasonably acceptable to the Director, that lists the New Taxable Tangible Personal Property that was installed on the Development Property between the Effective Date and January 1, 2013, together with reasonable supporting documentation concerning the 'Identification and cost (including, 'Invoices and receipts) of such New Taxable Tangible Personal Property (thee "Phase I Personal Property Report"). Within sixty 1(60) calendar days following the later of'January I of the first full calendar year following the Phase 11 Completion Date or one hundred fifty (15 0) calendar days following the Phase 11 Completion Date, Company shall submit a report, in a form reasonably acceptable to the Director,, that lists the New Taxable Tangible Personal Property that was installed on the Development Property between the Effective Date and the later of January I of the first full calendar year following the Phase 11 Completion Date or ninety (90) calendar days following the Phase 11 Completion Date, together with reasonable supporting, documentation concerning the identification and cost i ices and receipts of such New I it invoices I Taxable Tangible Personal Property (the "Phase 11 Personal Property Report"). 4.10.4. Annual Employment Report. On or before February I of the year following the Completion Date and of each year thereafter, in order for the City to assess the degree to which Company met the Overall Employment Commitmem, the Fort Worth Employment Commitment, and the Central City Employment Commitment in the previous calendar year, Company shall provide the Director with a report in a 1 n-n reasonably acceptable to the City that sets forth the total number of individuals, Fort Worth Residents, and Central City Residents who held Full-time, Equivalent Jobs on all parts of the Development Property, all as of December I or such other date requested by Company and reasonably acceptable to the City) of the previous year, together with reasonable supporting documentation. This report will be used by the City to determine if the Overall Employment Commitment, the Fort Worth Employment Commitment, and the Central City Employment Commitment were met In the previous calendar year. Company will not be required to comply with this Section 4.10.4 to the extent that Section 6.3 of this Agreement applies., 4.10.5., Quarterly,Supp,ly and Service Spending Report. Beginning with the first calendar quarter of the year following the year in which the Completion Date occurred, within thirty (30) calendar, Page I I Amendment No,. I to Economic Development Program Agreement between it of Fort Worth and Emergency Medical Center at Alliance days following the end of each calendar quarter, 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 as well as the then aggregate Supply and Service Expenditures made during such calendar year with Fort Worth Certified M/WBE Companies. The City will use each year's fourth quarter report to determine if the Fort Worth Supply and Service Spending Commitment, and the M/WBE Supply and Service Spending Commitment were met in that calendar year. Company will not be required to comply with this Section .1 .5 to the extent that Section 6.3 ®f this Agreement applies. 4.11. Audits. The City will have the right throughout the Tenn to audit the financial and business records of Company that relate to the Development and any other documents necessary to evaluate Company's compliance with this Agreement or with the commitments, set forth in this Agreement (collectively "Records"). Company shall make all Records available to the City on the Development Property or at another location in the City acceptable to both parties, following reasonab�le advance notice by the City and shall otherwise cooperate fully with the City during any audit. 5, CERTIFICATES OF COMPLETION FOR DEVELOPMENT. Within ninety (90) calendar days following the final construction spending report and the final personal property spending report for Phase I or Phase 11, as required by Section 4.1 0.2 and 4.10.3, respectively, and assessment by the City of the information contained therein if the City is able to verify that (i) as to Phase 1, Construction Costs of at least Three Million Two Hundred Thousand Dollars ($3,2001,0100.001) were expended -for Phase I by the Phase I Completion Date, that the Phase I Completion Date occurred on or before the Phase I Completion Deadline, and that New Taxable Tangible Personal Property having a cost of at least "rwo Million Dollars ($2,000,000.+ 0) was in place on the Development Property by January 1, 2013 (as determined on the basis of the Phase I Personal Property Report), and (11) as to Phase 11, Construction Costs of at least Forty Million Dollars ($1401,0 , 0.010) were expended for Phase 11 by the Phase II Completion Date, that the Phase It Completion Date occurred on or before the Phase 11 Completion Deadline, and that New Taxable Tan ible Personal Property having a cost of at least Twenty Million Dollars ($20,000,000.00), excluding any New Taxable Tangible Personal Property that was counted for purposes of the Phase I Personal Property Commitment, was in place on the Development Property by the Phase 11 Completion Deadline as determined on the basis of the Phase 11 Personal Property Replort), the Director will issue Company a certificate stating the amount of Construction Costs expended on the Phase in question, including amounts expended for such Phase specifically with Fort Worth Companies and with Fort Worth Certified M/WBE Companies, the specific Completion Date for the Phase in question, and a certificate verifying attainment of the Personal Page 12 Amendment No. I to Economic Development Program Agreement between City of Fort Worth Inc,Emergency Medical C.enter at Alliance Property Commitment for the Phase in question each a "Certificate of Completion"). The information verified and set forth in the Certificate of Completion 'Issued for Phase I will be used as the basis to determine compliance with the requirements of Section 4.1.1, the extent to which the Phase I Fort Worth Construction Commitment and the Phase I M/WBE Construction Commitment were met, and whether the Phase I Personal Property Commitment was met. The information verified and set forth in the Certificate of Completion issued for Phase tl will be used as the basis to determine, compli ance with the requirements, of Section 4.8.1, the extent to which the Phase 11 Fort Worth Construction Commitment and the Phase 11 M/WBE Construction Commitment were met, and whether the Phase 11 Personal Property Commitment was met. 6. PROGRAM GRANTS,. Company will be entitled to receive annual Program Grants from the City solely in accordance with all the provisions of this Section 6. As more specifically set forth herein, if Company completes Phase I by the Phase I Completion Deadline and meets the Phase I Personal Property Commitment, Company will be entitled to receive ten (10) annual Program Grants, payment of which will begin in 2013 and end in 2022. Program Grants payable from 2013 until the year in which the Phase 11, Completion Date occurs or 20,1 6, whichever year is earlier, will be calculated in accordance with Section 6.1. The number and method of calculating all remaining Program Grants depends on whether Company completes Phase 11 by the Phase 11 Completion Deadline and meets the Phase 11 Personal Property Commitment. If Company does, not complete Phase 11 by the Phase 11 Completion Deadline or does not meet the Phase 11 Personal Property Commitment, then beginning, in 2017 the amounts of the remaining six (6) annual Program Grants that Company is entitled to receive will be reduced in accordance with the calculation set forth in Section ►.3. On the other hand if Company does complete Phase 11 by the Phase 11 Completion Deadline and does, meet the Phase 11 Personal Property Commitment, then the time frame during, which Company is entitled to receive annual Program Grants will be extended to expire in the tenth (10th) year following the Phase 11 Completion Date, and Program Grants payable in the year following the Phase 11 Completion Date and each year thereafter will be calculated in accordance with Section 6.2. a '0 6.1. Prior to Compie tion of Phase 11. Provided that (i) by the Phase I Completion Date, Company expended at least Three Million Two Hundred Thousand Dollars ($3,2.00,0+ 0.00) in Construction Costs for Phase I of the DevelopmenV (1i) the Phase I Completion Date occurred on or before the Phase I Completion Deadline; and (iii) Company met the Phase I Personal Property Commitment, all as verified in the Certificate of Completion for Phase I issued pursuant to Section 5, and subject to all other terms and conditions of this Agreement, Company will be entitled to receive from the City annual Program Grants beginning in 2.013 and ending in the earlier of the year in which the Phase 11 Completion Date occurs or 2016 (which is the year in 1111 which the Phase, 11 Completion Deadline will occur). The amount of each such Page 13 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance Program Grant shall equal the sum of the Base Grant Percentage plus the Phase I Fort Worth Construction Percentage, the Phase I M/WBE Construction Percentage, the Overall Employment Percentage, the Fort Worth Employment Percentage, -the Central City Employment Percentage, the Fort Worth Supply and Service Percentage, and the M/WBE Supply and Service Percentage,, as defined in Sections 6-1.2, 6-13 6.1.4, 6.1-51 6.1.61 6.1-7, and 6.1.8, respectively, multiplied by the Program Source Funds available for that Program Grant. 6.1.1. Base Grant Percentage (40%),. Each annual Program Grant payable by the City to Company Pram 2013 until the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall include the Base Grant Percentage of forty percent (40%). 6.1.2. Phase I Fort Worth Construction Percentage (10%),,. Each annual Program Grant payable by the City to Company from 2013 through the year in which the Phase 11 Completion Date occurs or 2016, whichever 'is earlier,, shall include an amount that is based on Company's compliance with the Phase I Fort Worth Construction Commitment', as outlined in Section 4.1.2 (the "Phase I Fort Worth Construction Percentage"). If Company met the Phase I Fort Worth Construction Commitment, the Phase I Fort Worth Construction Percentage applicable to all Program Grants payable from 2013 through the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall equal ten percent ( . 'If Company 'failed to meet the Phase I Fort Worth Construction Commitment, the Phase I Fort Worth Construction Percentage applicable to all Program Grants payable from 2013 through the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall equal zero percent (0%). 6.1.3. Phase I M/WBE Construcfion Percentage (5%). Each annual Program Grant payable by the City to Company from 2013 through the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall include an amount that is based on Company's compliance with the Phase I M/W Construction Commitment, as outlined in Section 4.1.3 (the "Phase I M/WBE Cons,tructl'on Percentage"). If Company net the Phase I M/WBE Construction Commitment, the Phase I M/WBE Construction Percentage applicable to all Program Grants payable from 2013 through the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall equal five percent (5%). If Company failed to meet the Phase I M Construction Commitment, the Phase I M/WBE Construction Percentage applicable to all Program Grants payable from 2013 through Page 14 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance the year in, which the Phase 11 Completion Date occurs or 20 16, whichever is earlier, shall equal zero percent (0%:). 6.1.4. Overall Emplo men t Commitment Each annual Program Grant payable from 2013 through the year in which the Phase It Completion Date occurs or 2,016, whichever is earlier, shall include an amount that is based on Company's compliance with the Overall Employment Commitment, as outlined in Section 4.3 (the Overall Employment Pere e,n ta ge":). If Company meets the Overall Employment Commitment in a liven calendar year, the Overall Employment Percentage applicable the Program Grant payable in the f I wi 0 H in year shall equal five percent (5%). If Company falls to meet the Overall Employment Commitment in any given year, the Overall Employment Percentage applicable to the Program Grant payable in the following year shall equal zero percent (0%). 6.1.5. Fort Worth Employment Commitment Each annual Program Grant payable from 2013 through the year in which the Phase 11 Completion Date occurs, or 2 16, whichever is earlier, 0, shall include an amount that is based on Com pan y"s compliance with the Fort Worth Employment Commitment, as outlined In Section 4.4 (the "Fort Worth Employment Percentage"). If Company meets, the Fort Worth Employment Commitment in a given calendar year, the Fort Worth Employment Percentage! applicable to the Program Grant payable in the following year shall equal five percent (5%). If Company falls to meet the Fort Worth Employment Commitment 'in a given year, the Fort Worth Employment Percentage applicable to the Program Grant payable in the following year shall equal zero percent (0%). 6.1.6. Central City Employment Commitment Each annual Program Grant payable from 2013 through the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall include an amount that is, based on Company's compliance with .the Central City Employment Commitment, as outlined in Section 4.5 (the "Central City Employment Percent ag,e" . If Company meets the Central City Employment Commitment in a given calendar year, the Central City Employment Percentage applicable to the Program Grant payable in the following year shall equal five percent (5%). If Company fails to meet the Central City Employment Co fitment in a given year, the Central City Employment Percentage applicable to the Program Grant payable in the following year shall equal zero percent (0%). Page 15 Amendment No. I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance 6.1.7. Fort Worth Supply and ServiceSpending(5%, . Each annual Program Grant payable from 20131 through the year in which the Phase 11 Completion Date occurs or 2016, whichever is earlier, shall include an amount that is based on Company's compliance with the Fort Worth Supply and Service Spending, Commitment,, as outlined in Section 4.6 (the "Fort Worth Supply and Service Spending Percentage"). If Company meets the Fort Worth Supply and Service Spending Commitment in a given calendar enuar year, the Fort Worth Supply and Service Spending, Percentage applicable to the Program Grant payable in the following year shall equal five percent (5%). if Company fails to meet the Fort Worth Supply and Service Spending Commitment in a given calendar year, the Fort Worth Supply and Service Spending, Percentage applicable to the Program Grant payable in the following year shall equal zero percent (0%). 6.1.8. Fort Worth N11WBE Supply and Service Spending,(5%). Each annual Program Grant payable from 2013 through the year in which the Phase 11 Completion Date occur's or 2016, whichever is earlier, shall include an amount that is based on Company's compliance with the MJWBE Supply and Service Spending Commitment,, as outlined in Section 4.,7 (the I'M/WBE Supply and Service Percentage"). If Company meets the M/WBE Supply and Service Spending Commitment in a given calendar 'year, the M/WBE Supply and Service Spending Percentage applicable to the Program Grant payable in the following year shall equal five percent (5%). If Company falls to meet the M/WBE Supply and Service Spending Commitment in a given calendar year, the M/WBE Supply and Service Spending Percentage applicable to the Program Grant payable in the following year shall equal zero percent (0%). 6.2., Following Completion of Phase 11., Provided that (1) by the Phase 11 Completion Date, Company expended at least Forty Million Dollars ($40,000,000,00) in Construction Costs for Phase 11 of the Development'; (11), the Phase, 11 Completion Date occurred on or before the Phase 11 Completion Deadline; and (ill) Company met the Phase 11 Personal Property Commitment, all as verified in the Certificate of Completion for Phase 11 issued pursuant to Section 5, and subject to the other terms and conditions of this Agreement, Company will be entitled to receive annual Program Grants hereunder through the tenth (10th) year f6l1owing the year in which the Phase 11 Completion Date occurs. The amount of each Program Grant payable by the City to Company from the first year following the year in which the Phase 11 Completion Date occurs until the tenth (I Oth) year following the year in which the Page 16 Amendment No,, I to Economic Development Program Agreement between City "Fort Worth and Emergency Medical Center at Alliance Phase 11 Completion Date occurs shall equal the sum of the Base Grant Percentage plus the Phase 11 Fort Worth Construction Percentage, the Phase 11 M/WBE Construction Percentage,, the Overall Employment Percentage, the Fort Worth Employment Percentage, the Central City Employment Percentage, the Fort Worth Supply and Service Percentage, and the N41WBE Supply and Service Percentage, as defined in Sections 6.2.2, 6.2.3, 6.2.4, I 6,.2.5, 6.2.6, 6.2.7, and 6.2.8,, respectively, multiplied by the Program Source Funds available or that Program Grant. 6.2.1. Base Grant Percentage (401%),, Each annual Program Grant payable by the City to Company in the first year following the year in which the Phasle 11 Completion Date occurs until the tenth (10th) year following the year in which the Phase 11 Completion Date occurs shall include the Base Grant Percentage of forty percent (40%). 6.2.2. Phase 1C _Fort Worth Construction Percentage UO%). Each annual Program Grant payable by the City to, Company in the first year following the year in which the Phase 11 Completion Date occurs until the tenth C 1 nth) year following the year in which the Phase 11 Completion Date occurs shall include an amount that is based on Company's compliance with the Phase 11 Fort Worth Construction Commitment, as outlined in Section 4.8.2 (the ""Phase 11 Fort Worth Construction Percentage"). If Company met the Phase 11 Fort Worth Construction Commitment, the Phase 11 Fort Worth Construction Percentage applicable to all Program Grants payable in the first year following the year in which the Phase 11 Completion 'Date occurs until the tenth (10th) year following the year in which the Phase 11 Completion Date occur's shall equal ten percent (10%),. If Company failed to meet the Phase 11 Fort Worth Construction Commitment, the Phase 11 Fort Worth Construction Percentage applicable to all Program, Grants payable in the first year following the year in which the Phase 11 Completion Date occurs until the tenth (10th) year following the year in which the Phase 11 Completion Date shall equal zero percent (0%), regardless of whether Company met the Phase I Fort Worth Construction Commitment. 6.2.,3. Phase 11 M/WBE Construction Percentage (5%). Each annual Program Grant payable by the City to Company in the frst year following the year in which the Phase 11 Completion Date occurs until the tenth (10th) year following -the year in which the Phase 11 Completion Date occurs shall include an amount that is based on Company's compliance with the Phase 11 BE Construction Commitment, as outlined in Section 4.8.3 (the "Phase 11 M/WBE Page 17 Amendment No. I to Economic Development Program Agreement between,City of Fort Worth and Eniergency Medical,Center at Alliance Cons,truct on Percentage"). If Company met the Phase 11 M/WBE Construction Commitment, the Phase 11 M/WBE Construction Percentage applicable to all Program Grants payable in the first year following the year in which 'the Phase 11 Completion Date occurs until the tenth (10th) year following the year in which the Phase 11 Completion Date occurs shall equal five percent (5%). If Company failed to meet the Phase 11 M/WBE Construction, Commitment, the Phase 11 M/WBE Construction Percentage applicable to all Program Grants payable from and after the first year following the year in which the Phase 11 Completion Date occurs until the tenth (10th) year following the year in which the Phase 11 Completion Date occurs shall equal zero percent (0%,), regardless of' whether Company met the Phase I M/WBE Construction Commitment. 6.2.4. Overall Em to men t Co�mmietment 0 Each annual, Program Grant payable in the first year following the year in which the Phase 11 Completion Date occurs until the tenth (10th) year following the year In which the Phase 11 Completion Date occurs shall include the Overall Employment Percentage., If Company meets the Overall Employment Commitment in a given calendar year, the Overall Employment Percentage applicable -the Program Grant payable in the following year shall equal five percent (5%). If Company falls to meet the Overall Employment Commitment in any given year, the Overall Employment Percentage applicable to the Program Grant payable 'in the following year shall equal zero percent (0%). 6.2.5. Fort Worth Employment Commitment Each annual Program Grant payable in the first year following the Phase 11 Completion Date until the tenth (I Oth) year following the Phase 11 Completion Date shall include the Fort Worth Employment Percentage. If Company meets the Fort Worth Employment Commitment in a gi,ven calendar year, the Fort 'Worth Employment Percentage applicable to the Program Grant payable in the following year shall equal five percent (5%). If Company falls to meet the Fort Worth Employment Commitment in a gi ven year, the Fort Worth Employment Percentage applicable to the Program Grant payable In the following year shall equal zero percent (0%). 6.2.6. Central Ci Employ ent Commitment Each annual Program Grant payable in the first year following the Phase 11 Completion Date until the tenth (I Oth) year following the Phase 11 Completion Date shall include the Central City Employment Percentage. If Company meets the Central City Employment Commitment in a given calendar year, the Central City Employment Percentage applicable to the Page 18 Amendment No., I to Economic Development Program Agreement between City of Fort Worth and Emergency Medical Center at Alliance 1­`rogram, Grant payable in the following year shall equal five percent (5%). If Company fails, to meet the Central City Employment Commitment in a, given year,, the Central City Employment Percentage applicable to the Program Grant payable in the following, year shall equal zero percent (0%). 6.2.7. Fort Worth Sri V and Service Sp .�ndjng,1_5%). Each annual Program Grant payable in the first year following the Phase 11 Completion Date until the tenth (I Oth) year following the Phase 11 Completion Date shall include the Fort Worth Supply and Service, Spending Percentage. If Company meets the Fort Worth Supply and Service Spending Commitment in at given calendar year, the Fort Worth Supply and Service Spending Percentage applicable to the Program Grant payable in the following year shall equal five percent (5%). If Company 1"ails, to meet the Fort Worth Supply and Service Spending Commitment in a given calendar year, the Fort Worth Supply and Service Spending Percentage applicable to the Program Grant payable in -the following year shall equal zero percent (0%). 6.2.8. Fort Worth M/WBE SuppI3: and Service Spending (5%1,,, Each annual Program Grant payable in the first year following -the Phase 11 Completion Date until the tenth (10,1h) year following the Phase 11 Completion Date shall include the M/WBE Supply and Service Spending Percentage. If Company meets the M/WBE Supply and Service Spending Commitment in a given calendar year, the M/WBE Supply and Service Spending Percentage applicable to the Program Grant payable in the following year shall equal five percent (5%). If Company fails to meet the M/WBE Supply and Service Spending Commitment in a given cal, ndar year, the M/WBE Supply and Service Spending Percentage applicable to the Program Grant payable in the following year shall equal zero percent ( �. 6.3. Calculafion of Each P"r yam Grant if'Phase It Not Completed, Subject to the terms and conditions of this Agreement, and notwithstanding anything to the contrary herein, if Company completes Phase I in accordance with this Agreement and is eligible to receive Program Grants paid pursuant to Section 6.1 of this Agreement, but (1) Company fails by the Phase 11 Completion Date to have expended at least Forty Million Dollars ($40,000,000.00) in Construction Costs for Phase 11 of the Development; (ii) the Phase 11 Completion Date does not Occur on or before the Phase 11 Completion Deadline, or (iii) the Phase 11 Personal Property Commitment is not met, then beginning in 2017 the amount of each of the remaining six (6) annual Program Grants that Company is entitled to receive hereunder will be reduced to equal Page 19 Amendment No. I to Economic Development Program Agreement between City of Fort,Worth and Emergency Medical Center at Alliance only the Base Grant Percentage multiplied by the Program Source Funds available for that Program Grant. In this event, Company shall no longer be subject to the Overall Employment Commitment, the Fort Worth Employment Commitment, the Central City Employment Commitment, the Fort Worth Supply and Service Spending Commitment, or the M/WBE Supply and Service Spending Commitment. 6.4. 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 Company failed, to meet the Central City Employment Commitment by six (6) Full-time Equivalent Jobs, but exceeded the Fort Worth Employment Commitment by six (6), Full-time Equivalent Jobs, the Central City Employment Percentage applicable to the Program Grant payable in the following, year would still be zero percent (0%) on account of Company's failure to meet the Central ti City Employment Commitment. 6.5. Deadline for Payments and Source of Funds. The first Program Grant payable hereunder shall be paid by the City on or before June 1. 2,013. Each subsequent annual Program Grant payment will be made by the City to Company on or before June I of the year in which such payment is due. It is understood and agreed that all Program Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from ad valorem taxes on New Taxable Tangible Personal Property that are received by the City. Company understands and agrees that any. revenues of the City other than those dedicated for payment of a given annual Program Grant pursuant to and in accordance with this Agreement may be used by the City for any lawful purpose that the City deems necessary in the carrying out of its business as a home rule municipality and will not serve as the basis for calculating the amount of any future Program Grant or other, obligation to Company. 7. ADD11TIONAL 380 PROGRAM BENEFITS. 7.1. Waiver of Certain Fees. Company and its contractors will be required to apply for and receive all permits and other licenses and certificates required by -the City with respect to construction of the Required, Improvements. However, as further consideration for the public purposes that will be achieved from construction of' the Development and as part of the 380 Program hereunder, unless otherwise prohibited by applicable law, ordinance, rule or regulation,, the City agrees to waive the following fees related to the Development that would otherwise be Page 20 Amendment No. I to Economic Development Program Agreement between City of Fort Worth,and Emergency Medical Center at Alliance charged by the City at any time prior to the Phase 11 Completion Deadline-, (1) all building permit, p plan review inspection, and r�e�-inspection fees; (I'l) all zoning fees; (110 all temporary encroachment fees; (lv) all platting tees, and (v) all fire, sprinkler, and alarm permit fees. All other fees charged or assessed by the City in accordance with applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, transportation impact fees and water and sewer impact fees,, are not waived hereunder and shall be fully payable by Company and its contractors. 7.2. Enterprise Pr2lect Designation. The City will nominate the Development as an enterprise project subject and pursuant to and in accordance, with the Texas Enterprise Zone Act, Chapter 2303, Subchapter F of the Texas Government Code. Company understands and agrees that the City does not warrant and cannot guarantee such designation by the State of Texas. 8. DEFAULT.,TERMINATION AND FAILURE BY COMPANY TO MEET' VARIOUS DEADLINES AND COMMITMENTS. 8-19 Failure to Complete Phase I or Meet Personal Pr rtv Commi"tmcent' Notwithstanding anything to the contrary herein, the City shall have the right to terminate this Agreement by providing written notice to Company without further obligation to Company hereunder if (1) Company falls to expend at least Three 'Million Two Hundred Thousand Dollars ($3,200,000.010) in Construction Costs for Phase 1, as verified in the Certificate of Completion issued for Phase I pursuant to Section 5- (11) the Phase I Completion Date does not occur by the Phase I Completion Deadline, as verified in the Certificate of Completion issued for Phase I pursuant to Section 5-1 or (ill) the Phase I Personal Property Commitment, as outlined in Section 4.2, is not met. Ot 8.2. Failure to Pay CitV Taxes. An event of default shall occur under this Agreement if any City, taxes owed on the Development Property by Company or an Affiliate or arising on account of Company's or an, Affiliate's operations on the Development Property become delinquent and Company or the Affiliate does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. In this event, the City shall notify Company in writing and Company shall have thirty (3 0) 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 comp and shall have all other rights and remedies that may be available to it under the law or in equity. Page 21 Amendment No, I to Economic Development P'rogrwn Agreement between City of Fort Worth,and Emergency Medical "enter at Alliance 8-3. Violations of Citv Code, State or Federal Law, An event of default shall occur under this Agreement "if any written citation is issued to Company or an Affiliate due to the occurrence of a violation of a material provision of the City Code on the Development Froperty or on or within any improvements thereon (including, without Jimitation, 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 Company 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 Company or an Affiliate, or any a successor in interest thereto; or the City (on account of the Development 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 Development Property, 'improvements on the Development Property or any 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 Development Property; or to matters concerning the publichealth, safety or welfare). Upon the occurrence of such default, the City shall notify Company in writing and Company shall have 0) thirty (30) calendar days to cure such default or (11) 'if Company has diligently pursued cure of the default but such default is not reasonably curable within thirty (3o') 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 tern ninate this Agreement immediately by providing written notice to Company and shall have all other rights and remedies that may be available to under the law or in equity. 8.4. No Default for Failure to Meet Certain Construction Sws pending, Employment or Supply and Service Spending ommitments. If Company falls to meet the Phase I Fort Worth Construction Spending Commitment, the Phase I M/WBE Construction Spending Commitment, the Phase 11 Fort Worth Construction Spending Commitment, or the Phase 11 M/W Construction Spending Commitment, or in any 9 iven year fails to meet the Overall Employment Commitment, the Fort Worth Employment Commitment', the Central City Employment Commitment, the Fort Worth Supply and Service Spending Commitment, or the M/WBE Supply and Service Spending Commitment, such failure shall not constitute a default hereunder or provide the City with the rig this to, terminate ths Agreement, but, rather, shall only cause the Page 22 Amendment No. I to Economic Development Program Agreement between C i ty o f Fort"earth and Emergency M ed icai Center at Al Bane ian cc amount of the Program Grant that the City is required to pay in the following year to be reduced in accordance with this Agreement. 8.5. 'allure to Submit RE ports, If Company falls, to submit any report required by and in accordance with Section 4.,10, the City's obligation to pay any Program Grants at the time, if any, shall be suspended until Company has provided all required reports. provided, however, that if any report required hereunder is delinquent by more than one (1) Fear, Section 8.6 shall apply. 8.6. General Breach, Unless stated elsewhere in this Agreement, Company shall be in default under this Agreement if Company breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) calendar days following receipt of written notice from the City referencing this Agreement (or, if Company has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires, more than thirty (30) calendar days to cure.) then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), the City shall have the right to terminate this Agreement 'Immediately by providing written, notice to Company. 9. INDEPENDENT' C'ONTRACTOR. 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 Development Property and any improvements, thereon and shall be solely, responsible for the acts and omissions of its officers, agents,, servants, employees, contractors, subcontractors, licensees and invitees. Company acknowledges that the doctrine of respondeal sup�er,ior will not apply as between the City and Company, its officers, agents, :servants, employees, contractors, subcontractors, licensees, and invitees. Company finiher agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Company. 10. INDEMNIFICATION, COMPANY, AT NO COST TO THE CITY .. AGREES TO DEFEND, INDEMNIFY AND HOLD; THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS., LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT Page 23 Amendment No. I to Economic Development Program Agreement between City of Fort rth and Emergency Medical Center at Alliance r LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOS (INCLUDING ALLEGED EGGED A E OR LOSS TO COMPANY S BUSINESS AN ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING EA.TH, THA T AM Y SEA TE T , ANISE OUT OF OR BE OCCASIONED,E B Y i COMPANY'S BREACH OF ANY OF THE TERMS PR OJ S OF THIS A G..REEM N: R i ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, ASSOC1ATES, EMPLOYEES, CONT T RS (OTHER THAN THE CITI) OR SUBCONTRACTORS, RELATED TO THE DE EL P AND ANY OPERATIONS AND A C TI TIE N THE DEVELOPMENT ENT PROPERTY OR OTHER .SSE TO THE PERFORAM NCE OF THIS A GREEM ':T. 11. NOTICES, All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address either party designates in writing, by erti red mail, postage prepaid, or by hand delivery: C1 Company* City o fort Worth 41 � C-)Aa Attn: City Manager Attn-- " ±jLi � 000 .roc Orton CMICAAvto Fort Worth TX 7'61012 K)DAh 0-CAA*j('\A q . with copies with a copy to. the City Att+mey and Economic/Community Development Director at the same address ,2. ASSIGNMENT AND SUCCESSORS. Company may at any time . si y gn, transfer or otherwise convey any of its rights or obligations under this Agreement to are Affiliate without the approval of the City so long as Company, the Affiliate and the City first execute an, agreement under which the Affiliate agrees to assume and be bound by all covenants and obligations of Company under this Agreement. Otherwise, Company y may not assign, transfer or otherwise convey any of its rights or obligations a der this Agreement to any other person or entity without the prior consent s rrt the, City Cotmcil, which consent shall not be unreasonably withheld, conditioned on (1) the prig 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 Page Amendment No. i to Economic mic Development Program Agreement between City f Fort Worth and Emergency Medical Center at Alliance successor of a written agreement with the City under which the proposed assignee or successor agrees to assume and be bound by all covenants and obligations, of Company under this Agreement. Any attempted assignment without the City Councills prior consent shall constitute grounds for termination of this Agreement following ten (10) calendar days of receipt of written notice from the City to Company. Any lawful assignee or successor in interest of Company of all rights under this Agreement shall be deemed "Company" for all purposes tinder this Agreement. 13, COMPLIANCE W1r U"H LAWS, ORDINANCE,S�, RULES AND REGULATIONS. Thi's Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. 14, GOVERNMENTAL POWERS. it is understood that by execution ofthis Agreement, the City does not waive or surrender any of it governmental powers or immunities. 15. NO WAIVER., r, he failure of either party to ins,ist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 16. VENUE AND JURISDICTION, If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this, Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of 'Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 17. NO,THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Company, and any lawful assign or successor of Company, and are not intended to any other person or entity. to create any rights, contractual or otherwise., Page 25 Amendment No, I to Economic Development Program Agreement bet,we n City of Fort Worth and Emergency Medical,Center at Alliance . ........................... 181 FORCE A U 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 h cl are reasonably beyond the control of the party obligated or permitted ender 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 each 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 un .erstot d and agreed that Company's failure to obtain adequate financing cir to complete the a Phase Development by the Completion Deadline for that Phase se sh .11 not be deemed to be an event of force rr ajeure and that th.,is Section 18 shall not operate to extend the Phase f Completion Deadline or Phase ff Completion Deadline in such an event. 19, 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. 20. CAPTIONS.1 Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 210 SEVERABILITIY.,. If any prevision 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. 2 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 1 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 any-thing to the contrary herein, this Agreement shall not be Page 2 Amendment No. I to Economic Development Program Agreement between City off:Fort Worth and Emergency Medical Venter at Alliance 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. 239 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, but to be effective as of December 20, 2010 (the Effective Date of CSC No. 41267): CITY F' FORT' WORTH, COLUMBIA NORTH HILLS HOSPITAL SUBSIDIARY, L.P., a Texas limited partnership doing business, as Emergency Medical Center at Alliance: By-,Columbia North Texas Subsidiary GP, LLC, a Texas limited liability company its sole general partner: 41 By: By Fernando Costa Name,., V Assistant City Manager 7'1 We.' CEC) Date:— Date APPROVED AS TO F'ORM AND LEGALITY-. 1001 It By Peter Vaky Deputy City Attorney 4 M&C: C-25995 12-11-12 cy 0* 00000 4k P/ 0 coo 0, 40 OT % I? 1DQ*()0() 000 Ay CIO 0 0", 0 X oyo CitY SmetuT $onald �. "i Oon2gle%A Pa V , I OFFICIAL RECORD ge 27 Amendment No. I to Economic Development Program Agreement CI,TY SECRETARY between City of Fort Worth and Emergency Medical Center at Alliance no WRTH, TX I.E.X H I B I T S "All—Description and Map Depicting the Development Property, "B"—Map of'Central City Amendment No. I to Economic Development Program Agreement between City of Fort Worth and Brand Emergency Medical Center at Alliance . � . . Exhibit A 0"N' a tract of land s*tuatcd bi tho M11"am McOriwen Survey, Abst=t Number 999, Chy of Fod Worth,Tan=t County.Texas,and being,a 130131on orTracts 1,2 and 3 of tho-5o truc U of land conveyed to AIL Investmcnt, Inc.by dead recordedin Volume 14315, Pago 56 of Dead Records, Tarrant County, re parl"cularly describcd by,rnctes and bounds as ' Rows: COMMENCING at a Texas Dcuatiment of Transportation brass d1sk in concrete, round at the Southwest comer of Tract 8 of(ho5c tracts of)wW conveyed to AIL Investment, Inc. by deed r=ordcd in Volume 14315, Page 56 of Deed Rcc*rdv.,, Tarrmi Cownty,Texas 'in the East right-, 'MENCE With said East right-of-way of said tntersitate Highway 35 the following cour= and bmsg disk in concrCte, found; N 00 degrees 09 minul=00 scelonds 1:,v� 1,154.70 feet To a 518 inch i,ron rod found,; bT=disk in concrete,, found; THENCE N 90 degrees 00 mmiules 00 seconds E,45.74 feet,depmlina said 'Sast right,Of-way to a 5/8 inch iron rod with plastic cap stampcid"Carler&Surg"s", set a,t the point of bcgmining; INENCE N 90 dcgm=00 rninutes 00 stconds F., 6'09.7'2 (erA to a 5/8 Inch iron rod with Plastic cap itampcd"Caner&Burgess",sei at the bc9truiing of a curve to 10; THENCE with said curve to the left.,an arc distan", of 377.26 fmt, fteugh a centrak angle or25 degrces 25 minute,*s 48 scconds, having a radlus of 850,00 feet., the Tong chord of which buam N 77 desrees 17 rninutes 06 smonds E, 374.17 feel to a 518 Inch )'Ton rod with pLutlic;cap St=pcd THENCE'N 64 degrees,34 m inutes E") seconds E.6 10.10 rect to a 518 *mch iron rod with plagic cap stamp"Carter& 13urgless',set-, TH ENCF,S 00 degrees 1,4 minutes 401 secomis E. 855-53 fcct to a 519 irwh irun rod with plastic clapstanipad "Carter&Burgess"set-, THUNCE: S 99 degrees 56 minutes 28=onds [:-�384.72 reet it)a 1/2 inch iron told,fo=d,at thc Northeut conAer of aforenieutioned Tract 2. oind bc1nq tha Northwest comet of that truct of land conveyed to Ronald Boyd Elmore, recorded,in VDIume 7720, Page 1965 or said Dcled Records; - , � � ��' �,� Nw :►. wM: • "� N,Nf Nw«.w y� ,.Ih � ww e, a � .�. � I a a is ww w a 0 ►.M � 1 WF. � � m h NN w. 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'8��`.''���; `��w�� 1w����'�1�;' an ��:� .1 I'll i c e"�'"e o.!'m�"�. uubu Ell ibl NO dr a w uie u MMMMJ :� ` M&C Review Page I of 3 Official site of tlh!p Oty of Fort Worth,,Texas FO R T WNT11 LITY O NCIL AGENDA NoMMOMENNAUNNOW COUNCIL ACTION: Approved on 12/11/2012 MENNINSWEANOMM O.H-E D ATE: 12/11/2012 N **C-25995 LOG NAME: 1717HCAEDPAAMEND11 CODE: C TYPE,-, CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of Amendment No. 1 to City Secretary Contract No. 41267, Economic Development Program Agreement with Columbia North Hills Hospital Subsidiary, LP d/b/a Emergency Medical Center at Alliance,1 to Redefine the Manner in Which New Business Personal Property Investment is Measured, to Revise the Scope of Subsequent Expansion Requirements, and to Increase the Number of Economic Development Grants, Payable by the City, (COUNCIL DI' T RICT 2) RECOMMENDAT1.01IN-ft It is recommended that the City Council authorize the City Manager to execute Amendment No. 1 to City Secretary Contract No. 41267', an Economic Development Programs Agreement with Columbia North Hills Hospital Subsidiary, LP d/b/a Emergency Medical Center at Alliance, to redefine the manner in which, new business personial, property investment is measured, to revise the scope of subsequent expansion requirements, and to increase the number of economic development grants payable by the City. DISCUSSION: Pursuant to Mayor and Council Communication (M&C C-24561), approved by the City Council on October 26, 2010, the City entered into an Economic Development Program Agreement with Columbia North Hills Hospital Subsidiary, LP d/b/a Emergency Medical Center at Alliance (Company):, to facillitate the construction of a freestanding emergency department and the future development of a 60-bed hospital and medical office building in north Fort Worth (City Secretary Contract No. 41267). The project was envisioned to be completed in 2 phases. Under the Agreement, Company would receive 10 annual economic development program grants equal to a maximum, of 80 percent of the ad valorem taxes paid by Company on its business personal property at the facility. However, if Company failed to complete the second phase of the project, the maximum program grants payable thereafter wolu�ld be out in half to 40, percent of such ad valorem taxes. Phase I involved the construction: of at least 10,,500 square feet,of space for use as a medical emergency department containing, at a minimum,, the following improvements-. eleven examination rooms, one trauma room, one radiographic fluoroscopic room, and a sixteen slice CT scanner with support spaces included a total of$3.2 million in construction costs for the development of the emergency center. The Agreement required Company to expend at least$3.2 million in construction costs for Phase 1, and to complete Phase I by June 30, 2012. Company colmpleted the Phase I improvements as of November 9,12011. The Agreement also required, Company to install at least$2, million in new taxable, business personal property in the new facility as of January 1 of the first full,year following completion (2012). The value of such property was to be determined by Tarrant County Appraisal District. Company has provided the City with invoices s,h�owiing that Company spent in excess of$2 million in new taxable business personal property that was in place as of January 1, 2012. However, a majority http-//apps.cf,wnet.org/'councit _packet/mc_rev'i ew.asp9.1D=177 8 9&cou nc 1 Id ate=12/11/2 012 12/12/20,12 M&C Review Page 2 of 3 of the company's business personal property is medical equipment,, which places it on an accelerated depreciation schedule. As a result, the appraised value of that business personal property for the 201�2 tax year is $1,166,445. Because Company invested at least$2 million, in new taxable business personal property in the facility, staff recommends that the Agreement be amended to provide that any business personal property investment requirements wiIll be measured on the basis of actual expenditures for that property, as opposed to a subsequent appraised value of the property. The planned Phase 11 of the project consisted of the construction of a 60 bed hospital, and medical office building with a minimum investment of$40 million in real and personal property improvements by June 30, 2017. In order to ensure the delivery of the Phase III hospital as the project competes nationally for capital dollars within the Company's corporate umbrella, Company is requesting, an amendment of the Phase 11, portion of the Agreement as follows; 1. Reduce the initial hospital beds to 34 with shell space to, be built for a later expansion to approximately 60 beds: 2. Eliminate the medical office building component completely from the project, 3. Increase the minimum capital investment of$40 million in real and business personal property to$60 million in real,and business personal property; and 4. Accelerate the completion date of the Phase Ii improvements from June 310, 2017 to December 31) 2016. Staff concurs with this request. It is also recommended that the Agreement be amended to provide that Company can receive 10 annual grants for each phase of the project, as opposed to grants, paid over a single 1,0 year period. It is estimated that this amendment will, increase the City's grant payments by $815,000.00, from $6185,000.00 to $1,500,1000.00, but will cause the timing in which the project is delivered to be accelerated and make the project more competitive within the Company's corporate-wide system. Finally, Company has requested that the City Council nominate the hospitals project as an Enterprise Zone Project to make it eligible to receive state sales and use tax refunds. This action would require subsequent action by the City Council. All of Company's commitments in the Agreement for hiring and annual supply and service expenditures,will remain the same for each phase of the project. The project is located in COUNCIL DISTRICT 2. FISCAL INFORMATIONXERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Accoiint/Centers FROM Fuind/Account/Centers Submitted for Cily,Maria c ier F Offl. Fernando Costa (6122), s i OIrolgi neat inip g Dgp,artment Head:, Jay Chapa (5804) Additional Information Contact: Robert Sturns (8003) ATTACHMENTS http-.//app s.cfwnet.o�rg/c,olune'l 12/12/2012 1 _packet/mc—rev iew.asp 9.1D 17789&councildate=12/11/2012 ER-at-Alliancei Reference a