HomeMy WebLinkAboutContract 31256 1
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CITY SECRETARY
CONTRACT NO. SLc��
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
("Agreement") is made and entered into by and between the CITY OF FORT
WORTH ("City"), a home rule municipal corporation organized under the laws of the
State of Texas, and KIMCO MONTGOMERY PLAZA, L.P. ("Kimco"), a Texas
limited partnership acting by and through KD Ft. Worth 1100, Inc., a Texas corporation
and Kimco's sole general partner.
RECITALS
The City and Kimco hereby agree that the following statements are true and
correct and constitute the basis upon which the City and Kimco have entered into this
Agreement:
A. Kimco owns approximately 33.5122 acres of land on the north side of
West 7th Street in the City that includes the historic Montgomery Wards warehouse (the
"Development Property"). The Development Property is specifically described in and
depicted on Exhibit "A", attached hereto and hereby made a part of this Agreement for
all purposes. Kimco intends to cause construction, in phases, of a mixed-use
development on the Development Property (the overall cost of which is anticipated to be
approximately $137 million), including a redevelopment of the eight-story Montgomery
Wards warehouse (the "Warehouse"), which was damaged in a tornado on March 28,
2000 and is now vacant.
B. The Development Property is located in the corridor between the
Downtown and Cultural District areas of the City. The 2004 Comprehensive Plan,
adopted by the City Council on February 24, 2004 pursuant to M&C G-14276 (the
"Comprehensive Plan"), identifies both of these areas as mixed-use growth centers.
The Comprehensive Plan defines a mixed-use growth center as a relatively small
urbanized area that contains a concentration of jobs, housing units, schools, parks and
other public facilities, public transportation hubs and pedestrian activities. As outlined in
the Comprehensive Plan, mixed-use growth centers are beneficial to the health, economy
and vitality of the City as a whole because they enable the efficient operation of
infrastructure, mass transit, recreational facilities and other City services. A network of
mixed-use growth centers can accommodate City-wide growth with fewer environmental
impacts, less land consumption and traffic generation and less pollution than a dispersed
development pattern. As a result, the City Council has adopted a policy, as reflected in
the Comprehensive Plan, that higher density residential and commercial development and
redevelopment should be encouraged in and in the vicinity of mixed-use growth centers
and especially in the corridors linking the three major City districts: Downtown, the
Stockyards and the Cultural District.
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
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C. The Comprehensive Plan recommends that the City encourage the
reclamation of underutilized, abandoned and vacant properties that are found
predominantly in the urbanized areas of the City, especially those that have
environmental contamination and those that contain unique improvements that make
adaptive reuse financially challenging. The Development Property, including the
Warehouse, requires costly environmental remediation. In addition, the Warehouse will
require extensive renovation in order to make it compliant with current building and
safety code standards as well as the demands of potential residential, retail and
commercial tenants. Developer has represented that it cannot complete the mixed-use
development that the City prefers for the Development Property without financial
assistance from the City.
D. In accordance with Resolution No. 2704, adopted by the City Council on
January 30, 2001, the City has established an Economic Development Program pursuant
to which the City will, on a case-by-case basis, offer economic incentive packages
authorized by Chapter 380 of the Texas Local Government Code that include monetary
loans and grants of public money, as well as the provision of personnel and services of
the City, to businesses and entities that the City Council determines will promote state or
local economic development and stimulate business and commercial activity in the City
in return for verifiable commitments from such businesses or entities to cause specific
infrastructure, employment and other public benefits to be made or invested in the City
(the 11380 Program").
E. The City Council has determined that by entering into this Agreement, the
City's policy of encouraging appropriate development in corridors linking the major
mixed-use growth centers of the City will be met. In addition, the City Council has
determined that the 380 Program is an appropriate means to achieve the construction of
the Required Improvements (as defined in Section 4.1) it has determined are 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.
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 hereby finds, and the City and Kimco hereby agree, that the
recitals set forth above are true and correct and form the basis upon which the City has
entered into this Agreement.
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Economic Development Program Agreement I
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
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:
Completion Date means the date as of which a certificate of occupancy, whether
temporary or final, has been issued for all of the Required Improvements other than floors
2-8 of the Warehouse, and (i) all portions of the Required Improvements, as defined in
Section 4.1 of this Agreement, that are designed for commercial and/or retail use are or are
available to be lawfully open for business to the general public and (ii) those Required
Improvements set forth in Section 4.1 applicable to floors 2-8 of the Warehouse have been
completed.
Completion Deadline means August 1, 2007, as may be extended by Force
Maj eure.
Construction Costs means Hard Construction Costs plus other related costs
incurred directly in connection with the Required Improvements, as defined in Section
4.1 of this Agreement, including, without limitation, engineering fees, architectural fees
and other professional, development and permitting fees.
Development Personal Property Tax Revenues means the amount of ad
valorem tax paid by all Development Property Users to the City in a given year based on
the entire taxable assessed value of Tangible Personal Property located on the
Development Property. With respect to Tangible Personal Property leased by a
Development Property User, Development Personal Property Tax Revenues will include
that portion of annual property tax paid by the Development Property User, prorated on a
daily basis, which is attributable to the period during which the Development Property
User was the lessee of such property. The taxable assessed value of such Tangible
Personal Property in any given year will be established solely by the appraisal district that
has jurisdiction over the Development Property at the time.
Development Property means the real property defined in Recital A and
identified in Exhibit "A" of this Agreement, regardless of whether it is owned by Kimco
or another person or entity.
Development Property User means any Person that has the legal right to use all
or any portion of the Development Property for commercial, retail and/or residential
purposes, including, without limitation, Kimco, third party retail and commercial
businesses and residential tenants.
Development Real Property Tax Revenues means the amount of real property
tax paid by all Development Property Users to the City in a given tax year based on the
entire taxable assessed value of the Development Property. The taxable assessed value of
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
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the Development Property in any given year will be established solely by the appraisal
district that has jurisdiction over the Development Property at the time.
Development Sales Tax Revenues means the one percent (1%) available
municipal sales tax, such as that presently in effect pursuant to Texas Tax Code §§
321.101(a) and 321.103, resulting from sales tax received by the City and collected by all
Development Property Users on sales transacted on the Development Property for
merchandise physically located on the Development Property from and after the
Completion Date. Development Sales Tax Revenues specifically exclude all revenues
from (i) the Crime Control District Sales Tax imposed by the City pursuant to Texas Tax
Code §323.105 and Local Government Code §363.005 and (ii) the Transit Authority
Sales Tax paid to the City by the Fort Worth Transportation Authority under City
Secretary Contract No. 19689, as previously or subsequently amended or restated, from
the sales tax imposed by the Fort Worth Transportation Authority pursuant to Texas Tax
Code Chapter 322. If the City ever charges less than a one percent (1%) available sales
tax, then Development Sales Tax Revenues shall be computed to reflect that lesser
percentage. If the City ever charges less than a one percent (1%) available sales tax and
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, then Development Sales Tax Revenues shall be computed to reflect that
increased percentage up to a maximum aggregate of one percent (1%).
Excess Development Tax Revenues means the positive difference, if any,
between the sum of Development Personal Property Tax Revenues, Development Real
Property Tax Revenues and Development Sales Tax Revenues received by the City in a
given Program Year and the amount of the Program Grant that the City is obligated to
pay to Kimco in the same Program Year.
Force Maieure means (i) an event beyond Kimco's reasonable control, including,
without limitation, acts of God, fires, strikes, national disasters, wars, riots, material or
labor restrictions, delays caused by unforeseen structural issues, weather delays,
unreasonable delays by the City in issuing any permits or certificates of occupancy or
conducting any inspections of or with respect to the Required Improvements, or delays
caused by unforeseen construction or site issues, but shall not include construction delays
caused due to purely financial matters involving Kimco or any affiliate thereof, such as,
without limitation, delays in the obtaining of adequate financing, and (ii) an event beyond
the City's reasonable control, including, without limitation, acts of God, fires, strikes,
national disasters,wars, riots, material or labor restrictions, or acts of third parties.
Fort Worth Certified M/WBE Company means a minority or woman-owned
business that has received certification as either a minority business enterprise (MBE) or
a woman business enterprise (WBE) by either the North Texas Regional Certification
Agency (NTRCA) or the Texas Department of Transportation (TxDOT), Highway
Division, and has a principal office located within the corporate limits of the City.
i
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plana, L.P.
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Fort Worth Company means a business that has a principal office located within
the corporate limits of the City.
Fort Worth Resident means an individual whose principal place of residence is
located within the corporate limits of the City.
Hard Construction Costs means the following site development and building
costs expended directly in connection with the Required Improvements, as defined in
Section 4.1 of this Agreement: actual construction costs, signage costs, and the costs of
supplies and materials.
Job means a job provided to an individual by a Development Property User.
Maximum Annual Program Grant Amount means the maximum Program
Grant that the City will pay Kimco for a given Program Year, as set forth in Exhibit "B",
attached hereto and hereby made a part of this Agreement for all purposes.
Program means the economic development program authorized by Chapter 380
of the Texas Local Government Code, established in general by City Council Resolution
No. 2704, and outlined specifically in this Agreement.
Program Grants means the annual economic development grants paid by the
City to Kimco in accordance with this Agreement and as part of the 380 Program.
Program Year means a calendar year in which the City is obligated to pay
Kimco a Program Grant, beginning with the calendar year following the year in which
the Completion Date occurs (Program Year 1).
Project means the construction by or on behalf of Kimco of the Required
Improvements, as defined in Section 4.1, as well as any other improvements on the
Development Property, all site development on or related to the Development Property
and the acquisition and installation of all personal property and fixtures located on the
Development Property or within such Required Improvements or other improvements.
Tangible Personal Property means any personal property that is located on the
Development Property and is owned or leased by any Development Property User,
including, without limitation, inventory, fixtures, store signage, checkout stands,
computers, cash registers and security and communications systems.
Tax Abatement Agreement means that agreement between the City and Kimco
under which the City will abate certain real and personal property taxes payable by
Kimco to the City for one (1) tax year. The Tax Abatement Agreement is a public
document on file in the City Secretary's Office as City Secretary Contract No. 30753 and
is incorporated herein by reference for all purposes.
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
3. TERM.
This Agreement shall be effective as of the date of execution by both parties (the
"Effective Date") and shall expire upon the earlier of the date as of which (i) the City
has paid aggregate Program Grants and granted tax abatements under the Tax Abatement
Agreement totaling $22,962,724 gross, less any reductions made under this Agreement
due to (a) the Base Benefit Percentage being less than one hundred percent (100%)
pursuant to Section 5.2.4 and (b) reduction of any Program Grant payment pursuant to
Section 5.5 (the "Program Cap"), plus interest payable thereon, if any, as provided by
and in accordance with Section 5.6 hereof or(ii) June 1 of the calendar year following the
twenty-second (22d) anniversary of the Completion Date, unless terminated earlier as
provided by and in accordance with this Agreement(the "Term").
4. KIMCO OBLIGATIONS AND GOALS.
4.1. Real Property Improvements.
Kimco shall cause improvements on the Development Property with a
minimum aggregate Construction Cost of $42.5 million to be completed by the
Completion Deadline, which improvements shall include the following
(collectively, the"Required Improvements"):
• Redevelopment of the Warehouse generally in accordance with the
elevation and site plan attached hereto as Exhibit "C", which is
hereby made a part of this Agreement for all purposes, with (i) the
conversion of the ground floor into approximately 100,000 square feet
of retail, restaurant and commercial uses; (ii) the construction on floor
2 of ramp access to a parking garage structure on the Development
Property; and (iii) the "dry-in" of floors 2-8 (i.e. new roof, new
windows and necessary environmental remediation) so that all space
on those floors (other than that dedicated for common use or utility
services) may be used for a combination of commercial/retail and
residential purposes; and
• Construction of approximately 165,000 square feet of new space on
the Development Property for commercial and/or retail uses.
4.2. Construction Spending Commitments.
4.2.1. Fort Worth Companies.
By the Completion Date, Kimco shall have spent or caused to be
spent with contractors that are Fort Worth Companies at least twenty-five
percent (25%) of Hard Construction Costs for the Required Improvements,
regardless of the total amount of Hard Construction Costs so expended.
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
4.2.2. Fort Worth Certified M/WBE Companies.
By the Completion Date, Kimco shall have spent or caused to be
spent with contractors that are Fort Worth Certified M/WBE Companies at
least fifteen percent (15%) of Hard Construction Costs for the Required
Improvements, regardless of the total amount of Hard Construction Costs
so expended. Dollars spent with Fort Worth Certified M/WBE Companies
shall also count as dollars spent with Fort Worth Companies for purposes
of the commitment set forth in Section 4.2.1. This commitment has been
approved by the City's Minority and Women Business Enterprise
Advisory Committee.
4.3. Supply and Service Spending Commitments with Fort Worth
Certified M/WBE Companies.
Beginning with the calendar year in which the Completion Date occurs,
and in each subsequent year of the Term of this Agreement, Kimco will spend or
cause to be spent at least $30,000 with Fort Worth Certified M/WBE Companies
for supplies and services provided directly in connection with the operation of the
Required Improvements; provided, however, that if the Completion Date occurs
on a date other than January 1, then only for the calendar year in which the
Completion Date occurs, this commitment shall be reduced to an amount equal to
the product of $30,000 multiplied by a fraction, the numerator of which is the
number of days remaining in the year after the Completion Date and the
denominator of which is 365 (the "Supply and Service Spending
Commitment"). This Supply and Service Spending Commitment has been
approved by the City's Minority and Women Business Enterprise Advisory
Committee.
4.4. Employment Goal.
From and after the Completion Date, Kimco will use commercially
reasonable efforts to cause at least 265 Jobs to be provided on the Development
Property to Fort Worth Residents.
4.5. Reports and Filings.
4.5.1. Plan for Use of Fort Worth Certified M/WBE Companies.
On or before November 10, 2004, Kimco will file a plan with the
City as to how the goals for the use of Fort Worth Certified M/WBE
Companies outlined in this Agreement will be attained. Kimco has met
with and, commencing November 10, 2004, will meet with the City's
M/WBE Office and Minority and Women Business Enterprise Advisory
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between City of Fort Worth and Kimco Montgomery Plaza,L.P. j
Committee on a quarterly basis for assistance in implementing such plan
and to address any concerns that the City may have with such plan.
4.5.2. Monthly Spending Reports.
From November 10, 2004 until the Completion Date, in order to
enable the City to assist Kimco in meeting its goal for construction
spending with Fort Worth Certified M/WBE Companies, Kimco will
provide the City with a monthly report in a form reasonably acceptable to
the City that specifically outlines the then-current aggregate Hard
Construction Costs expended by and on behalf of Kimco with Fort Worth
Certified M/WBE Companies for construction of the Required
Improvements. Kimco agrees to meet with the City's M/WBE Office and
Minority and Women Business Enterprise Advisory Committee as
reasonably necessary for assistance in implementing such plan and to
address any concerns that the City may have with such plan.
4.5.3. Construction Spending Report.
Within ninety (90) calendar days following the Completion Date,
Kimco will provide the City with a report in a form reasonably acceptable
to the City that specifically outlines the Construction Costs expended by
or on behalf of Kimco for construction of the Required Improvements,
together with supporting invoices and other documents necessary to
demonstrate that such amounts were actually paid by or on behalf of
Kimco, including, without limitation, final lien waivers signed by Kimco's
general contractor (provided that Kimco may bond over any contested
liens). This report shall also include Hard Construction Costs expended
by or on behalf of Kimco for construction of the Required Improvements
with contractors that are Fort Worth Companies and with contractors that
are Fort Worth Certified M/WBE Companies, together with supporting
invoices and other documents necessary to demonstrate that such amounts
were actually paid by Kimco to such contractors.
4.5.4. Quarterly Supply and Service Spending Report.
Beginning on the Completion Date and for the remainder of the
Term, within thirty (30) calendar days following the end of each calendar
quarter Kimco will provide the City with a report in a form reasonably
acceptable to the City that specifically outlines the aggregate number of
dollars expended in the same calendar year with Fort Worth Certified
M/WBE Companies for supplies and services provided directly in
connection with the operation of the Required Improvements. Kimco
agrees to meet with the City's M/WBE Office and Minority and Women
Business Enterprise Advisory Committee as reasonably necessary for
assistance in attaining the Supply and Service Spending Commitment (as
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
set forth in Section 4.3) in a given calendar year or to address any
concerns arising from the report. The City will use each year's fourth
quarter report to assess the degree to which Kimco met the Supply and
Service Spending Commitment during the previous calendar year.
4.5.5. Employment Reports.
To the extent that Kimco has access to relevant employment data,
on or before April 1 of the first full calendar year following the
Completion Date and on or before April 1 of each subsequent calendar
year, Kimco will provide the City with a report in a form reasonably
acceptable to the City that that sets forth the total number Jobs on the
Development Property that were held as of December 1 (or another date
requested by Kimco and reasonably acceptable to the City) of the previous
calendar year by Fort Worth Residents, together with reasonable
documentation regarding the residency of each such employee. If less
than 265 Jobs on the Development Property can be documented, Kimco
will provide a written explanation of the efforts it undertook to attain the
goal set forth in Section 4.4 of this Agreement.
4.6. Audits.
The City will have the right to audit, at no cost to Kimco, the financial and
business records of Kimco that relate to the Project, the construction and
operation of the Required Improvements and any other documents necessary to
evaluate Kimco's compliance with this Agreement or with the goals and
commitments set forth in this Agreement (collectively "Records") up to one (1)
time for each Program Year, with the understanding that after the first audit, the
City will not audit Records that are more than three (3) years old. Kimco shall
make all Records available to the City on the Development Property or at another
location in the City acceptable to both parties following at least thirty (30)
calendar days' advance notice by the City and shall otherwise cooperate fully with
the City during any audit.
4.7. Completion of Voluntary Cleanup Program.
Kimco will use commercially reasonable efforts to obtain on or before
January 1, 2007 a Conditional Certificate of Completion from the Texas
Commission on Environmental Quality ("TCEQ") relating to the environmental
remediation of the Development Property. Kimco will use its best efforts to
obtain on or before January 1, 2020 a Final Certificate of Completion from TCEQ
relating to the environmental remediation of the Development Property. In each
case, Kimco will use reasonably diligent efforts to procure and maintain such
Certificates.
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
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4.8. Railroad Quiet Zone.
Because the Development Property is located in an area that calls for
future residential development, Kimco, at Kimco's sole cost and expense, shall
cause ingress/egress from West 7th Street in proximity to the Fort Worth and
Western Railroad to be reconfigured in a manner that would enable the junction to
be designated as a "quiet zone" (as that term is defined and used in Title 49, Part
222 of the Code of Federal Regulations) and that is otherwise acceptable to the
City (as evidenced in writing and signed by an authorized representative of the
City).
4.9. Use of Required Improvements.
Following the Completion Date, Kimco will diligently market the
Required Improvements for sale or lease by commercial and/or retail entities.
When and if market conditions permit, as determined by Kimco in Kimco's sole
discretion, Kimco will diligently complete the renovation of floors 3-8 so that all
space on those floors (other than that dedicated for common use or utility
services) may be used for a combination of commercial/retail and residential
purposes.
5. CITY OBLIGATIONS.
5.1. General Overview of Program.
Subject to the terms and conditions of this Agreement, beginning in
Program Year 1 and in each subsequent year of the Term of this Agreement, the
City will pay to Kimco Program Grants as provided by this Section 5. The
amount of each Program Grant will be based on an available universe of funds for
a given year, as more specifically provided in Section 5.3. The base amount of
each Program Grant payable by the City to Kimco will be calculated by
multiplying the amount of funds available for the Program in a given Program
Year by the aggregate percentage to which Kimco met its various commitments
and obligations pursuant to Sections 5.2.1, 5.2.2 and 5.2.3 of this Agreement to
construct and complete the Required Improvements and to expend minimum
Construction Costs for the Required Improvements with Fort Worth Companies
and with Fort Worth Certified M/WBE Companies. The resulting base Program
Grant will be subject to reduction each year to the extent that Kimco fails to meet
its supply and service spending commitment pursuant to Section 5.5 of this
Agreement. In addition, the amount of each Program Grant is subject to a cap, as
specified in Exhibit `B" (defined in Section 2 as the Maximum Annual Program
Grant Amount), and the aggregate amount of all annual Program Grants is capped
as well by the Program Cap, as defined in Section 3, excluding any interest
payable thereon in accordance with Section 5.6.3. The Program Grants payable
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Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plana, L.P.
by the City pursuant to this Agreement are direct inducements to Kimco to
develop, redevelop and construct the Required Improvements on the Development
Property consistent with the City's economic development objectives.
5.2. Base Benefit Percentage in Program Grants.
As stated in Section 5.1, the base amount of each Program Grant payable
by the City to Kimco will be calculated by multiplying the amount of funds
available for the Program in a given Program Year, as more specifically provided
in Section 5.3, by the aggregate percentage to which Kimco (i) complied with its
requirements to complete the Required Improvements, as provided by and in
accordance with Section 4.1; and (ii) met the construction spending commitments
with Fort Worth Companies and Fort Worth Certified M/WBE Companies, as
provided by and in accordance with Sections 4.2.1 and 4.2.2 (collectively, the
"Base Benefit Percentage"), calculated as follows:
5.2.1. Completion of Required Improvements (65% of Base Benefit
Percentage).
If the Completion Date occurs by the Completion Deadline, as
provided by and in accordance with Section 4.1 of this Agreement, Kimco
will earn sixty-five percent (65%) toward the Base Benefit Percentage. As
provided in Section 6.1, an Event of Default shall occur if the Completion
Date does not occur by the Completion Deadline.
5.2.2. Construction Spending with Fort Worth Companies (Up to
25% of Base Benefit Percentage).
If Kimco spent at least twenty-five percent (25%) of Hard
Construction Costs for the Required Improvements, regardless of the total
amount of Hard Construction Costs so expended, with contractors that are
Fort Worth Companies (the "Fort Worth Construction Commitment"),
as provided by and in accordance with Section 4.2.1 of this Agreement,
Kimco will earn twenty-five percent (25%) toward the Base Benefit
Percentage.
If the Fort Worth Construction Commitment is not met, Kimco
will earn a lesser percentage toward the Base Benefit Percentage that is
based on the degree to which the Fort Worth Construction Commitment
was met, which lesser percentage shall equal the product of 25%
multiplied by a fraction, the numerator of which shall equal the number of
dollars in Hard Construction Costs expended by or on behalf of Kicmo for
the Required Improvements with contractors that are Fort Worth
Companies and the denominator of which shall equal the Fort Worth
Construction Commitment. For example, if the Fort Worth Construction
Commitment was $10,000,000 and only $5,000,000 in Hard Construction
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Economic Development Program Agreement j
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
Costs for the Required Improvements were spent with contractors that are
Fort Worth Companies, then the percentage toward the Base Benefit
Percentage that Kimco would earn pursuant to this Section 5.2.2 would
equal 25% x 1/2, or 12.5%.
5.2.3. Construction Spending with Fort Worth Certified M/WBE
Companies (Up to 10% of Base Benefit Percentage).
If Kimco spent at least fifteen percent (15%) of Hard Construction
Costs for the Required Improvements, regardless of the total amount of
Hard Construction Costs so expended, with contractors that are Fort
Worth Certified M/WBE Companies (the "M/WBE Construction
Commitment"), as provided by and in accordance with Section 4.2.2 of
this Agreement, Kimco will earn ten percent (10%) toward the Base
Benefit Percentage.
If the M/WBE Construction Commitment is not met, Kimco will
earn a lesser percentage toward the Base Benefit Percentage that is based
on the degree to which the M/WBE Construction Commitment was met,
which lesser percentage shall equal the product of 10% multiplied by a
fraction, the numerator of which shall equal the number of dollars in Hard
Construction Costs expended by or on behalf of Kimco for the Required
Improvements with contractors that are Fort Worth Certified M/WBE
Companies and the denominator of which shall equal the M/WBE
Construction Commitment. For example, if the M/WBE Construction
Commitment was $4,000,000 and only $3,00,000 in Hard Construction
Costs for the Required Improvements were spent with contractors that are
Fort Worth Certified M/WBE Companies, then the percentage toward the
Base Benefit Percentage that Kimco would earn pursuant to this Section
5.2.3 would equal 10%x 3/4, or 7.5%.
5.2.4. Final Calculation of Base Benefit Percentage.
The Base Benefit Percentage shall equal the sum of the
percentages earned in accordance with Sections 5.2.1, 5.2.2 and 5.2.3. In
other words, if Kimco met all of its commitments with regard to (i)
Kimco's compliance with its requirements to construct and complete the
Required Improvements, as provided by and in accordance with Section
4.1; (ii) the Fort Worth Construction Commitment, as provided by Section
5.2.2; and (iii) the M/WBE Construction Commitment, as provided by
Section 5.2.3, then the Base Benefit Percentage throughout the Term of
this Agreement will be one hundred percent (100%). However, by way of
illustration only, if Kimco met its commitments with regard to
construction spending with Fort Worth Companies and Fort Worth
Certified M/WBE Companies only to the extent provided in the examples
provided in Sections 5.2.2 and 5.2.3, respectively, then the Base Benefit
Pagel?
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P. -
Percentage throughout the Term of this Agreement would only be eighty-
five percent (85%) (65% + 12.5% + 7.5%).
5.2.5. No Offsets.
A deficiency in attainment of one of the commitments set forth in
Sections 4.2.1 and 4.2.2 may not be offset by exceeding the other
commitment. In other words, if in a given year Kimco exceeded its
commitment with respect to Hard Construction Cost spending with Fort
Worth Companies, as set forth in Section 4.2.1, by $5,000, but failed to
meet its commitment with respect to Hard Construction Cost spending
with Fort Worth Certified M/WBE Companies, as set forth in Section
4.2.2, by $5,000, the Base Benefit Percentage would still be reduced in
accordance with the methodology outlined in this Section 5.2.
5.3. Universe of Funds Available for Each Year of the Program.
As stated in Section 5.1, the base amount of each Program Grant payable
by the City to Kimco will be calculated by multiplying the amount of funds
available for the Program in a given year, as more specifically provided in this
Section 5.3, by the Base Benefit Percentage. The amount of funds available for
the Program each year shall be as follows:
5.3.1. Program Years 1-2.
The amount of funds available for the Program in Program Years
1-2 shall be an amount equal to the lesser of-
0 The sum of (i) one hundred percent (100%) of the
Development Sales Tax Revenues received by the City as
of April 1 of the respective Program Year for the calendar
year prior to the respective Program Year, plus (ii) one
hundred percent (100%) of the Development Personal
Property Tax Revenues paid by Development Property
Users other than Kimco or a successor beneficiary under
the Tax Abatement Agreement and received by the City in
the one year period prior to April 1 of the respective
Program Year,
or
• the Maximum Annual Program Grant Amount authorized
for payment in Program Years 1-2, respectively, as
provided by Exhibit `B"hereto.
Page 13 -
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
5.3.2. Program Years 3-22.
The amount of funds available for the Program in Program Years
3-22 shall be an amount equal to the lesser of:
• the sum of (i) one hundred percent (100%) the Development
Personal Property Tax Revenues received by the City in the
one year period prior to April 1 of the respective Program
Year, plus (ii) one hundred percent (100%) of the Development
Real Property Tax Revenues received by the City in the one
year period prior to April 1 of the respective Program Year,
plus (iii) one hundred percent (100%) of the Development
Sales Tax Revenues received by the City in the one year period
prior to April 1 of the respective Program Year,
or
• the Maximum Annual Program Grant Amount authorized for
payment in Program Years 3-22, respectively, as provided by
Exhibit`B"hereto.
5.4. Calculation of Each Annual Base Program Grant.
Once again, as stated in Section 5.1, the base amount of each Program
Grant payable by the City to Kimco will be calculated by multiplying the amount
of funds available for the Program in a given Program Year, as provided by
Section 5.3, by the Base Benefit Percentage (the product being the "Base Annual
Program Grant Amount" for each respective Program Year). Therefore, by
way of example only, suppose that the Base Benefit Percentage is eighty percent
(80%) and that as of March 31 of Program Year 3 the City receives aggregate
Development Personal Property Tax Revenues, Development Real Property Tax
Revenues and Development Sales Tax Revenues of $1,500,000. The Base
Annual Program Grant Amount in Program Year 3, then, would be the lesser of
(i) 80% of $1,500,000 ($1,200,000) or (ii) 80% of the $932,112 Maximum
Annual Program Grant Amount authorized for Program Year 3, as provided by
Exhibit `B" hereto ($745,689.60). Therefore, under this example, the Base
Annual Program Grant Amount for Program Year 3 would be $745,689.60.
5.5. Calculation of Program Grant Amount.
In the event that Kimco met the Supply and Service Spending
Commitment, as outlined in Section 4.3, in a given calendar year, the amount of
the Program Grant payable in the following Program Year shall equal the Base
Annual Program Grant Amount available for that Program Year. However, if
Kimco failed to meet the Supply and Service Spending Commitment in a given
Page 14
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
year other than the calendar year prior to Program Year 1, then the Program Grant
payable in the following Program Year shall be reduced by the product of the
number of dollars by which that Supply and Service Spending Commitment was
not met multiplied by two (2). In other words, if only $10,000 in Supply and
Service Expenses were spent with Fort Worth Certified M/WBE Companies
during the previous calendar year, the Program Grant payable in the following
Program Year would be reduced by $40,000 (the $20,000 shortfall x 2). The City
and Kimco acknowledge that a failure to meet the Supply and Service Spending
Commitment in the calendar year prior to Program Year 1 shall not cause the
Program Grant payable in Program Year 1 to be reduced because such failure
shall cause the tax abatement granted to Kimco pursuant to the Tax Abatement
Agreement to be reduced by the same amount.
5.6. Program Grant Shortfalls.
5.6.1. Defined.
In the event that the amount of any Program Grant paid in a given
Program Year is less than the Maximum Annual Program Grant Amount
authorized for payment in the same Program Year, as set forth on Exhibit
"B" hereto (excluding any reductions under this Agreement, whether
factored into the Base Benefit Percentage pursuant to Section 5.2.4 or by
reduction of the Program Grant pursuant to Section 5.5), then the
difference between the amount of the Program Grant paid in any given
Program Year and the Maximum Annual Program Grant Amount
authorized for payment in the same Program Year (the "Aggregate
Program Grant Shortfall") shall be carried forward as a continuing
obligation of the City for payment in a future Program Year.
5.6.2. Calculation Assumes 100% Achievement of all Commitments.
The calculation of any Aggregate Program Grant Shortfall must
take into account any reductions in the Program Grants payable hereunder
on account of Kimco's failure to meet its various Construction Cost
spending and supply and service spending commitments. In other words,
in order to determine whether there is an Aggregate Program Grant
Shortfall in a given Program Year, the calculation must assume that
Kimco's Base Benefit Percentage is 100% and that the amount of the
Program Grant payable in that Program Year was not reduced pursuant to
Section 5.4 on account of Kimco's failure to meet either or both of its
supply and service spending commitments.
In other words, going back to the example used in Section 5.4
where Kimco's Base Benefit Percentage is 80% and accordingly the
amount of the Program Grant payable in Program Year 3 would equal
$745,689.60, not the Maximum Annual Program Grant Amount of
Page 1
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
$932,112, a Program Grant Shortfall would not accrue in Program Year 3
because the "shortfall" was caused solely on account of Kimco's Base
Benefit Percentage being less than 100%.
5.6.3. Interest on Aggregate Program Grant Shortfall.
Beginning on the day following payment of a Program Grant
pursuant to this Agreement, the balance of any Aggregate Program Grant
Shortfall, whether arising in the same or a previous Program Year, shall
bear simple interest calculated at a fixed rate equal to six percent (6%),
compounded annually.
5.6.4. Source of Funds for Paying Aggregate Program Grant
Shortfall and Interest Thereon.
Notwithstanding anything to the contrary herein, the City shall pay
Kimco the Aggregate Program Grant Shortfall plus any interest thereon
only to the extent that the City receives Excess Development Tax
Revenues in a future Program Year or Years. In other words, if there is an
Aggregate Program Grant Shortfall of$10,000 in a given Program Year
and the City receives Excess Development Tax Revenues of $25,000 in
the following Program Year, then in that latter Program Year the City
would pay Kimco (i) the amount of the Program Grant payable in that
Program Year in accordance with Section 5.5, plus (ii) the $10,000
principal of the Aggregate Program Grant Shortfall, plus (iii) $600 in
interest.
5.6.5. Effect of Caps and Expiration.
The Maximum Annual Program Grant Amount shall cap only the
amount of the Program Grant that is payable for that Program Year and
shall not serve as a limitation on the amount of payment of any Aggregate
Program Grant Shortfall or interest thereon that may be paid in addition to
the Program Grant in that same Program Year. Payments on the principal
of any Aggregate Program Grant Shortfall shall be subject to the Program
Cap, as provided in Section 3 hereof, but payments of any interest thereon
shall be in addition, and not subject, to that Program Cap.
Notwithstanding anything to the contrary herein, if any balance of
Aggregate Program Grant Shortfall or interest thereon remains as of June
1 of the calendar year following the twenty-second (22d) anniversary of
the Completion Date, this Agreement shall expire in accordance with
Section 3 hereof and the City's obligation to pay Kimco any such balance
shall automatically be extinguished.
Page 16
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
5.7. Installation of Infrastructure.
The City agrees to reimburse Kimco for up to $843,000 in Construction
Costs for the construction and completion of the public infrastructure
improvements identified in Exhibit "D" (the "Infrastructure Improvements"),
attached hereto and hereby made a part of this Agreement for all purposes, in
accordance with that certain community facilities agreement between the City and
Kimco that was approved by the City Council on December 21, 2004 pursuant to
M&C C-20462 (the "CFA"). The timing and manner of any such reimbursement
shall be governed by the CFA. Once any Infrastructure Improvement constructed
pursuant to a CFA is complete in accordance with the CFA, Kimco will dedicate
such Infrastructure Improvement for acceptance by the City in accordance with
applicable City ordinances and policies and as may further be provided by the
CFA. Notwithstanding anything to the contrary herein, the City will not
reimburse Kimco for (i) any Construction Costs or other expenses incurred for or
in connection with the Infrastructure Improvements if such work is not covered by
the CFA and (ii) any Construction Costs for the construction and completion of
the Infrastructure Improvements in excess of$843,000 in the aggregate.
5.8. Retention by the City of Excess Development Tax Revenues.
Kimco understands and agrees that any Excess Development Tax
Revenues received by the City in any given Program Year will 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. In the event that the City retains Excess
Development Tax Revenues in a Program Year and an Aggregate Program Grant
Shortfall accrues in a subsequent Program Year, the City shall have no obligation
to use the Excess Development Tax Revenues previously received as a basis to
pay or make payments toward such Aggregate Program Grant Shortfall or any
interest thereon. Rather, the City's obligation to pay or make payments toward
such Aggregate Program Grant Shortfall or any interest thereon shall, as stated in
Section 5.6.4, arise only to the extent that the City receives Excess Development
Tax Revenues in the same or a subsequent Program Year or Years.
5.9. Deadline for Payments and Source of Funds.
Each annual Program Grant payment and any payment of or toward an
Aggregate Program Grant Shortfall, plus any interest thereon, will be made by the
City to Kimco on or before June 1 of the Program Year in which such payments
are due. It is understood and agreed that all Program Grants paid and any
Aggregate Program Grant Shortfall, plus any interest thereon, paid pursuant to
this Agreement shall come from currently available general revenues of the City
and not directly from Development Personal Property Tax Revenues,
Page 17 I
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P. _ - - --
Development Real Property Tax Revenues and/or Development Sales Tax
Revenues received by the City.
6. DEFAULT, TERMINATION, SUSPENSION OF OBLIGATIONS AND
FAILURE BY KIMCO TO MEET VARIOUS GOALS AND
COMMITMENTS.
6.1. Failure to Complete Required Improvements.
The City may terminate this Agreement upon written notice to Kimco if
the Completion Date does not occur by the Completion Deadline.
6.2. Termination of Tax Abatement Agreement.
This Agreement shall automatically terminate upon any lawful termination
of the Tax Abatement Agreement pursuant to Section 4 of the Tax Abatement
Agreement.
6.3. Failure to Pay City Taxes.
An event of default shall occur under this Agreement if any ad valorem
taxes on the Development Property owned by Kimco or arising on account of
Kimco's operations on the Development Property and owed to the City become
delinquent and Kimco does not either pay such taxes or properly follow the legal
procedures for protest and/or contest of any such taxes. Upon the occurrence of
such default, the City shall notify Kimco in writing and Kimco shall have (i)
thirty (30) calendar days to cure such default or (ii) if Kimco has diligently
pursued cure of the default but such default is not reasonably curable within thirty
(30) calendar days, then such amount of time that the City reasonably agrees is
necessary to cure such default. If the default has not been fully cured by such
time, the City, as its sole and exclusive remedy, shall have the right to terminate
this Agreement immediately by providing written notice to Kimco and shall have
all other rights and remedies that may be available to it under the law with respect
to the collection of any such delinquent taxes.
6.4. Violations of City Code, State or Federal Law.
An event of default shall occur under this Agreement if any written
citation is issued due to the occurrence of a material violation of a provision of the
City Code on the Development Property or on or within any improvements
thereon (including, without limitation, any material 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 of other land or waters which is attributable to operations on the
Development Property; or to matters concerning the public health, safety or
Page 18
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
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 the
City; Kimco; a successor in interest; or any third party with access to the
Development Property pursuant to the express or implied permission of Kimco or
a successor in interest 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 material violations related to the environmental condition of the Development
Property; the environmental condition of other land or waters which is attributable
to operations on the Development Property; or to matters concerning the public
health, safety or welfare). Upon the occurrence of an event of default under this
Section 6.4, the City shall notify Kimco in writing and Kimco shall have (i) thirty
(30) calendar days to cure such default or(ii) if Kimco has diligently pursued cure
of the default but such default is not reasonably curable within thirty(30) calendar
days, then such amount of time that the City reasonably agrees is necessary to
cure such default. If the default has not been fully cured by such time, the City, as
its sole and exclusive remedy under this Agreement, shall have the right to
terminate this Agreement immediately by providing written notice to Kimco and
shall have all other rights and remedies that may be available to the City under the
law with respect to such violation of the City Code, state or federal law, rule or
regulation, as the case may be.
6.5. Failure to Meet Construction Cost Spending, Supply and Service
Spending Commitments and/or Employment Goal.
The failure to meet any Construction Cost spending commitments, as
specifically set forth in Sections 4.2.1 and 4.2.2, or to meet the Supply and
Service Spending Commitment in any given year, as specifically set forth in
Section 4.3, shall not constitute a default hereunder or provide the City with the
right to terminate this Agreement, but, rather, shall only serve to reduce the
amount of the Program Grants that the City is required to pay pursuant to this
Agreement, whether by factoring such failure into the Base Benefit Percentage, as
provided by Section 5.2.4, or by reducing the amount of the Program Grant
payment that would otherwise have been payable in a given Program Year, as
provided by Section 5.5. The employment goal, as specifically set forth in
Section 4.4, simply requires Kimco to make a good faith effort to cause Jobs on
the Development Property to be provided to Fort Worth Residents. Therefore,
any failure to meet such employment goal in any given year shall not constitute a
default hereunder or provide the City with the right to terminate this Agreement
or serve to reduce the amount of the Program Grants that the City is required to
pay pursuant to this Agreement.
Page 19
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza,L.P. 5 5 ILI
6.6. Failure to Submit Reports or Filings,.
If Kimco fails to submit all or any reports or filings required by Sections
4.5.1, 4.5.2, 4.5.3, 4.5.4 or 4.5.5, the City's obligation to pay any Program Grant
for the Program Year in which such report or reports are due shall be suspended
until Kimco has provided such report or reports.
6.7. Termination by Kimco.
If Kimco fails to obtain adequate incentives from other taxing units with
jurisdiction over the Development Property in order to make the development
contemplated herein financially feasible, Kimco will have the right to terminate
this Agreement by providing written notice of its intent at least thirty (30) days in
advance. If the City Council has not adopted a resolution in support of an
application by Kimco for a municipal setting designation of the Development
Property by TCEQ or successor agency in accordance with Chapter 361,
Subchapter W of the Texas Health and Safety Code within sixty (60) calendar
days following the date such application was submitted by Kimco (a copy of
which shall also be provided to the City), Kimco will have the right to terminate
this Agreement by providing written notice of its intent at least sixty (60) days in
advance; provided, however, that if the City adopts such a resolution within sixty
such (60) days and the application or a subsequent application by Kimco is on file
with TCEQ, then this Agreement shall remain in full force and effect.
7. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Kimco shall operate as an independent
contractor in each and every respect hereunder and not as an agent, representative or
employee of the City. Kimco 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. Kimco acknowledges that
the doctrine of respondeat superior will not apply as between the City and Kimco, its
officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees.
Kimco further agrees that nothing in this Agreement will be construed as the creation of a
partnership or joint enterprise between the City and Kimco.
8. INDEMNIFICATION.
KIMCO 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
Page 20
Economic Development Program Agreement ... .
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO KIMCO'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) KIMCO'S BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF KIMCO, ITS OFFICERS,
AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE
CITY) OR SUBCONTRACTORS, RELATED TO THE PROJECT OR THE
PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS
OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN
THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH KIMCO
AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
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: Kimco:
City of Fort Worth Kimco Montgomery Plaza, L.P.
Attn: City Manager c/o Kimco Realty Corp.
1000 Throckmorton Attn: Barbara Briamonte
Fort Worth, TX 76102 3333 New Hyde Park Road, Suite 110
New Hyde Park,NY 11042
with copies to: with copies to:
the City Attorney and Kimco Montgomery Plaza, L.P.
Economic/Community Development c/o Weber& Company
Director at the same address Attn: John P. Weber
16000 Dallas Parkway#300
Dallas, TX 75248
Kimco Montgomery Plaza, L.P.
c/o Kimco Development, Inc.
Attn: Norm Brody
1111 Burlington Ave., Suite 113
Lisle, IL 60532
Page 21
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
Wayne R. Miller, P.C.
Attn: Wayne R. Miller
16000 Dallas Parkway#300
Dallas, TX 75248
Dee S. Finley, Jr.
Harris, Finley& Bogle, P.C.
777 Main St., Suite 3600
Fort Worth, TX 76102
10. ASSIGNMENT AND SUCCESSORS.
Prior to the Completion Date, Kimco may not assign, transfer or otherwise convey
any of its rights or obligations under this Agreement to any party without the prior
written consent of the City, which consent shall not be unreasonably withheld or delayed,
conditioned on (i) the prior approval of the assignee or successor and a finding by the
City Council that the proposed assignee or successor is financially capable of completing
the Required Improvements and (ii) prior execution by the proposed assignee or
successor of a written agreement with the City under which the proposed assignee or
successor agrees to assume all covenants and obligations of Kimco under this Agreement.
After the Completion Date, Kimco shall have the right to assign, transfer or otherwise
convey, in whole or in part, any of its rights or obligations under this Agreement,
including the right to receive Program Grants, to any party without the consent of the
City, with the understanding that Kimco shall provide written notice to the City within
thirty(30) calendar days thereafter of the name of such party and the name and telephone
number of a contact person affiliated with such party if the party is not an individual.
Any lawful assignee or successor in interest of Kimco of all rights under this Agreement
shall be deemed "Kimco' for all purposes under this Agreement. Notwithstanding
anything to the contrary herein, Kimco shall have the right at any time to collaterally
assign the Required Improvements to a lending institution for purposes of financing the
construction of the Required Improvements without the consent of the City; provided,
however, that prior to the Completion Date such lending institution shall have no right
assign any of the rights and obligations of Kimco under this Agreement to a third party
without the prior written consent of the City, which consent shall not be unreasonably
withheld or delayed, conditioned on (i) the prior approval of the assignee or successor
and a finding by the City Council that the proposed assignee or successor is financially
capable of completing the Required Improvements and (ii) prior execution by the
proposed assignee or successor of a written agreement with the City under which the
proposed assignee or successor agrees to assume all covenants and obligations of Kimco
under this Agreement.
Page 22
Economic Development Program Agreement -
between City of Fort Worth and Kimco Montgomery Plaza, L.P. '
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.
13. NO WAIVER.
The failure of either party to insist upon the performance of any term or provision
of this Agreement or to exercise any right granted hereunder shall not constitute a waiver
of that party's right to insist upon appropriate performance or to assert any such right on
any future occasion.
14. VENUE AND JURISDICTION.
If any action, whether real or asserted, at law or in equity, arises on the basis of
any provision of this Agreement, venue for such action shall lie in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of
Texas— Fort Worth Division. This Agreement shall be construed in accordance with the
laws of the State of Texas.
15. NO THIRD PARTY RIGHTS.
The provisions and conditions of this Agreement are solely for the benefit of the
City and Kimco, and any lawful assign or successor of Kimco, and are not intended to
create any rights, contractual or otherwise, in any other person or entity.
16. FORCE MAJEURE.
In addition to those instances where Force Majeure is addressed elsewhere in this
Agreement, it is expressly understood and agreed by Kimco and the City that if the
performance by either party of any obligation hereunder is delayed by reason of Force
Majeure, the time period applicable to performance of such obligation shall be extended
for a period of time equal to the period of the specific event of Force Majeure.
Page 23
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
17. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of
this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither
more strongly for or against any party, regardless of the actual drafter of this Agreement.
18. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and
shall not be deemed a part of this Agreement.
19. MUTUAL ASSISTANCE.
In the event that the City cannot pay Program Grants as provided by this
Agreement on account of a change in applicable law, or in the event that it appears for the
then-foreseeable future that the Program Grants paid hereunder will be materially less
than the Maximum Annual Program Grant Amounts provided for the same Program
Years, as set forth in Exhibit `B" hereof, due solely to a reduction or reductions, by
operation of law or otherwise, in the City's real property tax rates, Tangible Personal
Property tax rates and/or sales tax rates, then the City and Kimco agree to negotiate in
good faith a remedy that preserves the intent of the parties hereunder, and financial
benefit to Kimco, as much as reasonably possible.
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 Kimco, and any lawful assign and successor of Kimco, 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.
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.
Page 24
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
EXECUTED as of the last date indicated below:
[CITY SIGNATURE FOLLOWS IMMEDIATELY ON NEXT PAGE]
Page 25
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
CITY OF FORT WORTH:
By:
Dale Fisseler ATTESTED BY
Aeting Assistant City Manager
Y
Date: 1� �r
APPROVED AS TO FORM AND LEGALITY:
By:
Peter Vaky
Assistant City Attorney
M&C: C-20143 7-6-04, as amended by C-20457 12-21-04
[KIMCO SIGNATURES FOLLOW IMMEDIATELY ON NEXT PAGE]
Page 26
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P. _' i.5��-.�•.
KIMCO MONTGOMERY PLAZA,L.P.,
a Texas limited partnership:
By: KD Ft. Worth 1100, Inc., ATTEST:
its sole general partner:
By: By:
Name: Daniel C. Slattery
Title: Executive Vice President
Date:
By: J.P. Weber L;1 �
f` ATTEST:
its M ager
c�
By:
ohn Weber"
President
Date: t 0 . 1 R . 04
Page 27
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza,L.P. j�'
EXHIBITS
"A"—Legal Description and Map Depicting the Development Property
"B"— Chart of Maximum Annual Program Grant Amounts
"C"—Elevation and Site Plan Depicting Required Improvements
"D"—Public Infrastructure Improvements
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza,L.P.
Exhibit "A"
LEGAL DESCRIPTION AND MAP DEPICTING
THE DEVELOPMENT PROPERTY
BEING all that certain lot, tract or parcel of land situated in the City of fort Worth,
Tarrant County, Texas, and being a part of Lot 1 in Block 1 of Montgomery Ward &
Company Addition, an addition to the City of fort Worth, Texas, according to the plat
thereof recorded in Volume 388-138 at Page 5 of the Plat Records of Tarrant County,
Texas, and being more particularly described by metes and bounds as follows;
COMMENCING at an "x" found in concrete in the East right of way line of Carroll
Street (64 foot right of way) for the Northwest corner of said Lot 1 in Block 1 of
Montgomery Ward & Company Addition;
THENCE South 89° 55' 00" East (Bearing Basis is the plat of Montgomery Ward &
Company Addition recorded in Volume 388-138 at Page 5 of the Plat Records of Tarrant
County, Texas) along the North line of said Lot 1 in Block 1 of Montgomery Ward &
Company Addition, and being common to South line of the Weisenberger Addition, an
addition to the City of Fort Worth, Texas, according to the plat thereof recorded in
Volume 388-A at Page 120 of the plat Records of Tarrant County, Texas, for a distance
of 576.61 feet to a survey marker nail set for the POINT OF BEGINNING for this tract;
THENCE South 89° 55' 00" East and continuing along the common line of said Lot 1 in
Block 1 of the Montgomery Ward & Company Addition for a distance of 842.39 feet to a
1/2" iron rod found for the Northeast corner of said Lot 1 in Block 1 of the Montgomery
Ward & Company Addition, said point also being in the West right of way line of the St.
Louis—San Francisco—Texas Railroad (125 foot right of way);
THENCE South 22° 07' 45" West along the common line of said Lot 1 in Block 1 of the
Montgomery Ward & Company Addition and the St. Louis — San Francisco — Texas
Railroad for a distance of 2134.15 feet to a p.k. nail found for the Southeast corner of said
Lot 1 in Block 1 of the Montgomery Ward& Company Addition, said point also being in
the North right of way line of West Seventh Street( 100 foot right of way);
THENCE North 89° 59' 58" West along the common line of Lot 1 in Block 1 of the
Montgomery Ward & Company Addition and West Seventh Street for a distance of
615.07 feet to a 1/2" iron rod found for the Southwest corner of Lot 1 in Block 1 of the
Montgomery Ward & Company Addition, said point also being in the East right of way
line of Carroll Street (64 foot right of way);
THENCE North along the common line of said Lot 1 in Block 1 of the Montgomery
Ward & Company Addition and the East right of way line of Carroll Street for a distance
of 1186.62 feet to an "X" set in concrete for corner;
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
THENCE East and departing the common line of said Lot 1 in Block 1 of the
Montgomery Ward & Company Addition and the East right of way line of Carroll Street
for a distance of 196.75 feet to a survey marker nail set for corner;
THENCE South for a distance of 285.00 feet to a survey marker nail set for corner;
THENCE East for a distance of 372.18 feet to a point for corner;
THENCE North for a distance of 637.24 feet to a point for corner;
THENCE West for a distance of 16.71 feet to a point for corner;
THENCE North for a distance of 317.00 feet to a survey marker nail set for corner;
THENCE East for a distance of 24.39 feet to a survey marker nail set for corner;
THENCE North for a distance of 122.31 feet to the POINT OF BEGINNING and
CONTAINING 33.5122 ACRES OF LAND, more or less.
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza,L.P.
Exhibit "B"
CHART OF MAXIMUM ANNUAL PROGRAM GRANT AMOUNTS
Maximum Program Grant
Program Year Amount Payable in that
Program Year
1 $262,449
2 $524,900
3 $932,112
4 $954,296
5 $977,008
6 $1,000,261
7 $1,024,067
8 $1,048,440
9 $1,073,393
10 $1,098,939
11 $1,125,094
12 $1,151,871
13 $1,179,286
14 $1,207,353
15 $1,236,088
16 $1,265,507
17 $1,295,626
18 $1,326,462
19 $1,358,032
20 $1,390,353
21 $1,423,443
22 $107,744
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza, L.P.
Exhibit "C"
ELEVATION AND SITE PLAN DEPICTING REQUIRED IMPROVEMENTS*
* The Required Improvements do not include improvements depicted on the site plan that
are related to the SuperTarget retail development.
Economic Development Program Agreement
between City of Fort Worth and Kimco Montgomery Plaza,L.P.
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Exhibit"D"
PUBLIC INFRASTRUCTURE IMPROVEMENTS
1. Water mains on site
2. 12" offsite water pipe, fittings, valves
and installation in Carroll Street
3. Sanitary sewer mains on site
4. Street and storm drain facilities on
and within West 7th and Carroll Streets
5. Construction inspection costs related to
above improvements
Economic Development Program Agreement
Em between City of Fort Worth and Kimco Montgomery Plaza, L.P.
M&C Request Review Page 1 of 2
WWWgCFWN*tS0 FOR'1 rH
Print M&C
COUNCIL ACTION: Approved on 12/21/2004
DATE: 12/21/2004 REFERENCE NO.: C-20457 LOG NAME: 17MWAMEND EDA
CODE: C TYPE: NON-CONSENT PUBLIC NO
HEARING:
SUBJECT: Amend M&C C-20143 Authorizing Execution of the Economic Development Program Agreement
with Kimco Montgomery Plaza, L.P. for the Montgomery Plaza Project
RECOMMENDATION:
It is recommended that the City Council approve an amendment to M&C C-20143 authorizing the execution
of an Economic Development Program Agreement with Kimco Montgomery Plaza, L.P. for the Montgomery
Plaza Project in order to extend the term of the Agreement and to increase the maximum economic incentive
authorized by the Agreement.
DISCUSSION:
On July 6, 2004 the City Council approved M&C C-20141 and M&C C-20143, which authorized the City
Manager to execute a Tax Abatement Agreement and an Economic Development Program Agreement
(EDPA) respectively with Kimco Montgomery Plaza, L.P. (the Developer) for the redevelopment of the former
Montgomery Ward warehouse, located at 2600 West 7th Street (the Property). Under the approved Tax
Abatement Agreement, the City will abate up to 100% of the increased real and personal property taxes
attributable to the Property. This abatement will be for one year only, and will compliment the EDPA.
Under the EDPA, the amount of the first year's program grant will supplement the tax abatement in an
amount equal to 100% of the City's 1% sales tax revenues attributable to the Property. The amount of the
program grants after that first year will equal up to 100% of real and personal property tax revenues and up to
100% of the City's 1% sales tax revenues attributable to the Property.
Since the time that M&C C-20143 was adopted, it has become apparent that most of the personal property
on the Property will not be owned by the developer but by the tenants. However, legally the City will only be
able to abate taxes on personal property owned by the Developer. Therefore, in order to provide an incentive
amount in year one of the program equal to 100% of the Property's personal property tax value, the City must
amend the EDPA to provide for an economic development program grant for the first year in an amount up to
100% of personal property tax revenues and up to 100% of the City's 1% sales tax revenues attributable to
the Property. Including the value of personal property from the site in the first year program grant increases
the number of annual payments to 22 annual economic development program grants and the total amount of
all program grants to an amount not to exceed $22,962,724. The value of the tax abatement will be reduced
by the same amount as the increase under the EDPA and the overall benefit to the Developer will remain
unchanged.
This project is located in COUNCIL DISTRICT 9.
FISCAL INFORMATION/CERTIFICATION:
httn-//.znuw rfwnPt nra/rrninril nnrket/mr. review_asn9refmum=C-20457 1/14/2005
M&C Request Review Page 2 of 2
The Finance Director certifies that this action will require no direct expenditure from the currently held City
funds.
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Dale Fisseler (Acting) (6266)
Originating Department Head: Tom Higgins (6192)
Additional Information Contact: Christine Maguire (8187)
ATTACHMENTS
httn_//www.cfwnet.ora/council packet/mc review.asp?refnum=C-20457 1/14/2005