HomeMy WebLinkAboutCity Council Resolutions (R-05-2541)-05/03/2005
RESOLUTION R-05-2541
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF COLLEYVILLE, TEXAS, APPROVING THREE
RETAIL DEVELOPMENT AGREEMENTS BY AND
BETWEEN THE CITY OF COLLEYVILLE, TEXAS, AND
MELVIN & MARTINDALE II, LTD.; PROVIDING A
SEVERABILITY CLAUSE AND DECLARING AN
EFFECTIVE DATE
WHEREAS, the City is authorized by Chapter 380 of the Texas Local Government
Code to provide economic development incentives to support the
expansion of local business activity, employment and development; and
WHEREAS, the City has approved a policy on local economic development and
business incentives pursuant to Chapter 380 of the Texas Local
Government Code (the "Policy"); and
WHEREAS, Melvin & Martindale II, Ltd., a Texas Limited Partnership authorized to do
business in the State of Texas ("M&M"), has applied for the Incentives in
accordance with the Policy (the "Policy") as shown on the attached
Exhibit "A", which exhibit is incorporated herein by reference (the
"Application"); and
WHEREAS, the City desires to enter into Retail Development Agreements (the
"Agreements") with M&M to provide for incentives to promote economic
development in accordance with the Application, which Agreement is
shown on the attached Exhibits "B", "C", and "0", which exhibits are
incorporated herein by reference; and
WHEREAS, the Economic Development Manager has reviewed the Application and
Agreements and has determined that both are in conformance with the
Policy with the exception of item 2. o. in Exhibits "B", "C" and "0"; and
WHEREAS, the Agreement and the incentives provided for therein are authorized by,
and in accordance with, the Policy and Chapter 380 of the Texas Local
Government Code; and
WHEREAS, the enhancement of the local economy is in the best interest of citizens
of the City; and
WHEREAS, the economic development incentives provided in the Agreement
encourage businesses and companies to locate or expand operations in
the City and will enhance the local economy of the City, and as such, are
in the best interests of the public.
Resolution R-05-2541
Page 2 of 2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS:
Sec. 1.
Sec. 2.
Sec. 3.
Sec. 4.
THAT all matters set forth hereinabove are found to be true and correct,
are incorporated herein by reference, and are adopted by the City.
THAT the City hereby approves the Agreements.
THAT it is hereby declared to be the intention of the City, that sections,
paragraphs, clauses, and phrases of this Resolution are severable, and
if any phrase, clause, sentence or section of this Resolution shall be
declared unconstitutional or illegal by the valid judgment or decree of
any court of competent jurisdiction, such unconstitionality or illegality
shall not affect any of the remaining phrases, clauses, sentences,
paragraphs or sections of this Resolution since the same would have
been enacted by the City without the incorporation in this Resolution of
any such unconstitutional or illegal phrase, clause, sentence, paragraph
or section.
THAT this Resolution shall be in full force and effect from and after the
date of its passage.
APPROVED ON THIS THE ...grc...o( DAY Yh ~ 2005, BY A
VOTE OF .5 AYES, 0 NAYS AND D ABSTENTIONS.
ATTEST:
0/1
Cynthia Singleton
City Secretary
EXHIBIT "A"
,,-,--,-~..~-,---~...-.~_..~..'-'~~-----_" --
EXHIBIT "A-
CITY OF COLLEYVILLE
POLICY STATEMENT FOR DEVELOPMENT INCENTIVES
GENERAL PURPOSE AND OBJECTIVES
The City of Colleyville Economic Development Department is charged with
expanding the City's taxable base. In keeping with this overall mission, the City
has implemented a three point strategy in order to accomplish this important
revenue generating task:
· To identify and assist retail developers to commit, invest and build new
high quality sales tax generating projects in Colleyville;
· To assist landowners in the sale and development of potential retail, office
and hotel sites to their highest and best use; and
· To recruit new, and retain existing, Colleyville retailers, restaurants and
other sales tax generating businesses compatible with Colleyville's
available land, land use plan and demographics.
To achieve this goal, the City wishes to enhance its economic development
efforts by developing an incentive policy to promote retention and expansion of
existing industry and to attract new retail businesses.
Within the context of these goals, the City of Colleyville will give consideration to
providing reasonable incentives as a stimulus for new development and
redevelopment on a case-by..case basis. Nothing herein implies or suggests that
the City of Colleyville is under any obligation to provide any incentive to any
applicant.
ENABLING LEGISLATION TO PROVIDE INCENTIVES
According to the Property Redevelopment and Tax Abatement Act S 312.204 of
the Texas Tax Code, the governing body of a municipality eligible to enter into
tax abatement agreements under Section 312.002 may agree in writing with the
owner of taxable real property that is located in a reinvestment zone, but that is
not in an improvement project financed by tax increment bonds, to exempt from
taxation a portion of the value of the real property or of tangible personal property
located on the real property, or both, for a period not to exceed 10 years, subject
to the rights of holders of outstanding bonds of the municipality, on the condition
that the owner of the property make specific improvements or repairs to the
property.
Under i 380.002 (b) of the Texas Local Government Code, a home-rule
municipality may, under a contract with a development corporation created by the
municipality under the Development Corporation Act of 1979 (Article 5190.6,
Vernon's Texas Civil Statutes), grant public money to the corporation. The
development corporation shan use the grant money for the development and
diversification of the economy of the state, elimination of unemployment or
underemployment in the state, and development and expansion of commerce in
the state. The funds granted by the municipality under this section shall be
derived from any source lawfully available to the municipality under its charter or
other law, other than from the proceeds of bonds or other obligations of the
municipality payable from ad valorem taxes.
Under S 378.004 of the Texas Local Government Code a municipality may create
a neighborhood empowerment zone covering a part of the municipality if the
municipality determines the creation of the zone would promote an increase in
economic development in the zone. In addition to other powers that a
municipality may exercise, a municipality may:
(1) Waive or adopt fees related to the construction of buildings in the zone,
including fees related to the inspection of buildings and impact fees;
(2) Enter into agreements, for a period of not more than 10 years, for the
purpose of benefiting the zone, for refunds of municipal sales tax on sal~s made
in the zone;
(3) Enter into agreements abating municipal property taxes on property in the
zone subject to the duration limits of Section 312.204, Tax Code; and
(4) Set baseline performance standards, such as the Energy Star Program as
developed by the Department of Energy, to encourage the use of alternative
building materials that address concerns relating to the environment or to the
building costs, maintenance, or energy consumption.
NON TAX INCENTIVES
The City of Colleyville may elect to reduce development fees or other fees or to
participate in infrastructure costs of a development. The permitting and inspection
process of all approved developments and expansions will be expedited for all
businesses.
REVIEW CRITERIA
Any consideration for incentives shall be reviewed by the Colleyville City Council.
The review process is considered on the 'Value Added- elements of the project.
A sales tax rebate applies only to new construction activities, whether a new
facility or expansion of an existing building.
VALUE OF NEW CONSTRUCTION INCENTIVES
The subjective criteria for applicants' project outlined under Review Criteria will
be used by the City Council in determining whether or not it is in the best interest
of the City to recommend that a sales tax rebate be offered to a particular
applicant planning to construct a new facility. Specific considerations will include
the degree to which the individual project furthers the goals and objectives of
community, as well as the relative impact of the project.
After it has been determined that a sales tax rebate be offered, the approximate
value of that incentive can be calculated from the following table. However, this
table should only be used as a guide for incentives, since each project is
evaluated individually.
Value of Project Term of Rebate
$50,000,000
$35,000,000
$20,000,000
$10,000,000
$ 5,000,000
10 years
9 years
7 years
5 years
3 years
% of Rebate
50%
50%
50%
50%
30%
EXPANSION OR REDEVELOPMENT OF EXISTING FACILITIES
A sales tax rebate will only be considered for the increase in valuation above the
existing valuation of that property. This reduction wiiI be a maximum of ten years.
The amount and terms to be determined by factors such as: costs to the City,
project's increased valuation to the tax base, new jobs and business expansion
to the City as a result of the proposed project. Minimum standards proposed for
an expansion project are:
· Expansion or modernization increases the valuation of existing facility by a
minimum of 30%,
· 5- Year lease, and not occupied by the owner.
· Compliance with all applicable zoning requirements.
REINVESTMENT ON STATE HIGHWAY 28
For expansion or modernization of existing sites or facilities on Highway 26
CoIleyville Blvd., a sales tax rebate will be considered only for the increase in
collection resulting from the reinvestment, and for a maximum of 5 years. Special
consideration may be given to those sites or facilities impacted by the
reconstruction of State Highway 26 Colleyville Blvd. The amount and terms of the
reduction will be determined on a "case by case" basis, considering factors such
as age of the facility or site, the value of the reinvestment as a percentage of the
previous year's assessed value, and the potential impact of the reinvestment
project on the surrounding neighborhood.
RESTAURANT I RETAIL I OFFICE INCENTIVES
Colleyville specifically targets sit-down restaurants, certain retailers and office
campus projects. As an incentive for new investment, a refund of a portion of the
added sales and liquor tax may be considered. Incentives are designed to
stimulate the development of restaurants and offices in accordance with the
following prescribed design and size:
· Minimum of 5,000 square feet of floor space;
· No drive-thru windows or service;
· Maximum incentive length of five years;
· Maximum sales tax rebate of 30 percent;
· Must meet all zoning and other City requirements.
RECAPTURE
In the event a business receiving incentives from the City of Colleyville fails to
perform under the agreement executed between the City and the business, the
incentive obligation on the part of the City will be void. Any incentive paid to the
business up to the point of failure shall be returned to the City of Colleyville in full.
APPLICATION STEPS
The applicant should present a formal request for incentives to include the
following:
· Cover letter and executive summary describing the project and the
request;
· Plat showing the precise location of the property, all roadways within 500
feet of the site and all existing zoning and uses within 500 feet of the site;
. A complete legal description of the property;
· A financial analysis detailing best..case, worst case and probable case
scenarios.
MELVIN" MARTINDALE fit LTD.
Tel: (970) 387-1000
13642 Omega, Dallas, Texas 75244
Fax: (972) 385-8747
April 29, 2005
City of Colleyville
Economic Development Manager
100 Main Street
Colleyville, Texas 76034
Re: Application for Economic Development Incentives
Dear Mr. Welmalcer:
This letter constitutes an application for financial incentives from the City of Colleyville.
In support of this application, we are furnishing the following infonnation and supporting
documentation:
1. The property owner: Melvin & Martindale, Ltd., a Texas limited partnership
("M&M")
2. The owner's mailing address: 13642 Omega, Dallas, Texas 75244
3. The owner's telephone number: (972) 387-1000
4. The owner's representative: Charles M. Hodges
5. Representative's email address:chodges@hodgesusa.com
6. Representative's mailing address: 13642 Omega, Dallas, Texas 75244
7. Property Address: 5701 Colleyville Blvd Colleyville, Texas 76034
8. Property Legal Description: Approximately 11.8 acres, Town Center Colleyville
(See metes and bounds description attached hereto)
9. Located in Grapevine-Colleyville ISD
10. Description of Project: approximately 70,000 square feet of retail, entertainment,
restaurant and/or office space that is heated, ventilated
and air conditioned as set forth on the Site Plan attached
hereto
11. Date projected for Project occupation/initiation of operations: December 1, 2006
I
12. Response to criteria in Section 2 of the City ofColleyville Economic
Development Incentive Policy:
Employment Impact
. Employ up to 10 full time and 5 part time positions
Fiscal Impact
. Total real and personal property value to be added to the tax rolls.
o The existing properties in Phase I are valued by TAD at an average of
$74 per square foot for real property and $53 per square foot for
personal property. Phase II is expected to add 95,500 square feet.
· Real property value 95,500 square feet@ $74 = $7,067,000
· BPP 95,500@ $53 = $5,061,500
. Anticipated direct sales tax generated at one percent (1 %) of taxable sales;
o Over the ten year term of the agreement, the sales tax estimated to be
generated by Phase II will be $1,746,140
. Other revenues generated for the city: franchise payments, occupancy taxes,
utility revenues, etc;
o Based on 95,500 square feet of new construction at a cost of $75 per
square foot, approximately $143,750 in impact, permit, tap, parkland
and plan review fees would be generated.
. City infrastructure construction required;
o No City participation in infrastructure construction is requested for
Phase II
. Projected total annual operating budget of the facility.
o The annual operating budget of the projected facilities should not impact
the decision to provide incentives to these two anchor tenants.
Community Inwact
. The expected effect the project have on the local housing market;
o The project is not expected to have any direct impact on the Colleyville
housing market.
. The expected environmental impact, ifany, created by the project;
o The project is not expected to generate any negative environmental
impact.
. The compatibility of the project with the City's comprehensive plan.
o The project is compatible with the City's comprehensive plan.
Competitive Impact
. The effect the project would have on existing businesses in Colleyville;
o The project is expected to generate significant additional retail traffic to
Colleyville resulting in a positive impact on existing Colleyville
businesses.
. A list of the types of products or services to be sold by the applicant which are
currently sold by existing Colleyville merchants;
2
o While a limited selection of books are available at grocery and drug
stores in Colleyville, the competitive impact on these businesses of a full
service bookstore is expected to be negligible.
o There is currently no direct competitor to a motion picture theater in
Colleyville.
. A list of specific businesses seen as direct competitors to the applicant.
o There are no direct competitors to these to anchor tenants in Colleyville.
We propose that the requested incentives be established pursuant to three
agreements in the forms attached hereto, viz., M&M Retail Development
Agreement, Tenant B Retail Development Agreement and Tenant C Retail
Development Agreement.
We appreciate your consideration of this application. Please advise if further
information is needed.
MELVIN & MARTINDALE II, LTD.
3
RTi5RIVE
~
"
"
/
/
,^
~
EXHIBIT "B"
RETAIL DEVELOPMENT AGREEMENT ~;}cO~
I )
This Agreement (the "Agreement") is entered into as of the ~ y and
between The City of Colleyville, Texas, a municipal corpora~ity"), and
Melvin & Martindale II, Ltd., a Texas Limited Partnership ("Tenant Bj.
RECITALS:
WHEREAS Melvin & Martindale II, Ltd., a Texas Limited Partnership ("M&M)
owns approximately 11.8 acres of property as more particularly described in
Exhibit "A" (the "Colleyville Town Center Parcel") on which M&M plans to
construct or cause to be constructed at least 70,000 square feet of retail,
entertainment, restaurant and/or office space that is heated, ventilated and air
conditioned as set forth on the Site Plan described in Exhibit "A- (or such other
square footage that is the tax generating equivalent thereof based upon the
"Fiscallmps..91' section of M&M Application for Economic Development Incentives
dated ApriLl1, 2005) (herein COllectively referred to as the "Retail Spacej; and
WHEREAS, M&M has requested that the City authorize and pay certain cash
incentives and grants as provided herein (collectively referred to as the
"Incentives") with respect to a portion of the Retail Space which is to be
constructed for one of the tenants (hereinafter called "Tenant Bn), as hereinafter
more particularly described; and
WHEREAS, for the public purpose of promoting economic development and
diversity, increasing employment, reducing unemployment and
underemployment, expanding commerce and stimulating business and
commercial activity in the State of Texas, Tarrant County and the City, the City
desires to offer the Incentives and grants to Tenant B as more particularly
described in this Agreement; and
WHEREAS, M&M has applied for the Incentives in accordance with the City's
Policy Statement for Development Incentives (the "Policy"); and
WHEREAS, the Agreement and Incentives are authorized by, and in accordance
with, the Policy and Chapter 380 of the Texas Local Government Code.
NOW, THEREFORE, for and in consideration of the promises, covenants and
agreements set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the City and M&M agree as follows:
Project Subject to this Agreement. M&M plans to construct or cause to be
constructed, as a part of the overall Retail Space, an approximately 23,000
square foot facility for Tenant 8 (or such other square footage that is the tax-
1
generating equivalent thereof) that is heated, ventilated and air conditioned,
substantially as set forth on the Site Plan described in Exhibit "A" (the "Tenant B
Spacej, which may be modified from time to time as approved by the City, such
approval not to be unreasonably withheld, and on the land that is described in
Exhibit "A", which is attached hereto and incorporated herein for all purposes.
1. Grant to Tenant B. Subject to the terms and conditions of this
Agreement, the City desires to grant to Tenant B the one percent (1 %)
sales tax paid to the City's General Fund for two years. To qualify for the
Grant, Tenant B must:
a. Obtain a certificate of occupancy for the Tenant B Space and be
open to the public and begin taxable sales by December 1,
2006 (subject to delays in completion of construction of the
Tenant B Space due to material shortages, weather, acts of
God, labor disputes or other causes beyond the reasonable
control of Tenant B or M&M); and
b. Operate the Tenant B Space, or cause the Tenant B Space to
be operated, for a period of no less than two continuous years
(subject to interruption due to damage or casualty, as
hereinafter provided).
c. The City shall have the right to terminate this Agreement if
Tenant B fails to occupy the Tenant B Space by the deadline
specified in Paragraph 1 (a), by giving written notice thereof to
M&M and Tenant B at any time prior to such occupancy. If this
Agreement is not terminated pursuant to the foregoing
sentence, this Agreement may not be terminated after
occupancy of the Tenant B Space for failure of Tenant B to
meet any of the qualifications for the Tax Grant unless Tenant B
fails to cause the failure to be cured within sixty days following
receipt of written notice from the City of such failure, and
provided that if the failure is due to damage or casualty to the
Tenant 8 Space, Tenant B shall have up to eighteen (18)
months following the damage or casualty to cause the Tenant B
Space to be restored and reopened before the City shall have
the right to terminate this Agreement, provided Tenant B causes
restoration to be commenced within a reasonable time and
completed with all due diligence. Notwithstanding anything in
this Agreement to the contrary, the sole remedy of the City with
respect to any failure of Tenant B to meet any conditions of the
Grant shaH be termination of this Agreement in accordance with
and subject to the foregoing.
2
d. Term of the Sales Tax Incentive Grant. Subject to the terms and
conditions of this Agreement, the sales tax incentive Grant is
available for a period of two (2) years beginning on the date the
Retail space receives a certificate of occupancy, opens for
business and begins taxable sales, provided that unless
terminated in accordance with its express terms, this Agreement
shall not end before the sales tax incentive Grant is fully paid
with respect to twenty-four months during which sales
operations are conducted in the Tenant B Space (the "Term").
e. Payment of Grant. The City will pay the sales tax incentive Grant
to Tenant B on an annual basis beginning one year from the
date of the first reported sale and continuing thereafter until the
Term ends. If the qualifications for the Sales Tax Incentive are
not met for part of any year, the payment shaH be based on the
actual sales during the portion of the year during which the
qualifications were met.
f. Calculation of Sales Tax Incentive Grant. The parties agree that
the dollar amount of retail sales eligible for the Sales Tax
Incentive payable to Tenant B will be derived from sales and
sales tax information furnished by Tenant B and verified by the
Comptroller's Office of the State of Texas or any successor
agency charged with collecting such information and preparing
such reports.
g. Tenant B will provide to the City annually all documents
necessary for the City to calculate the sales tax incentive Grant
(the "Annual Reports'. The Annual Reports must be filed with
the City no later than thirty (30) days following the date in which
the Annual Reports are filed with the Comptroller's Office of the
State of Texas.
h. Default. In the event Tenant B or the City fails to comply with
any covenants or obligations of this Agreement (exclusive of
satisfying the express conditions for the Grant, which is
governed by Paragraph 1(c) above), the non-failing party may
pursue any remedy available at raw or in equity; provided that
neither party shall be in default unless and until such party fails
to cure any failure within sixty days (30 days for money
payments) following its receipt of written notice thereof from the
other party. The prevailing party to any dispute arising out of
the enforcement of this Agreement shall be entitled to recover
from the losing party reasonable attorney's fees, expenses and
costs.
3
2. Miscellaneous.
a. All construction will be in accordance with applicable codes,
regulations and ordinances of the City.
b. This Agreement may not be assigned by any party without the
written consent of the other parties, such approval not to be
unreasonably withheld; provided that M&M shall have the right,
without any consent being required, to assign this Agreement to
Tenant B, and upon such assignment, M&M shall be released
from all obligations thereafter accruing under this Agreement
and Tenant B shall be substituted for M&M in the same manner
as if this Agreement had been originally executed between the
City and Tenant B. In the event of assignment, the assigning
party shall provide written notice of the assignee, including
assignee's address and contact infonnation.
c. This Agreement contains the entire agreement of the parties
with respect to the matters contained herein and may not be
modified or tenninated except upon the provisions hereof or by
the mutual written agreement of the parties hereto.
d. This Agreement shall be construed in accordance with the laws
of the State of Texas and shall be perfonnable in Tarrant
County, Texas.
e. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
f. The individuals executing this Agreement on behalf of the
respective parties below represent to each other and to others
that aU appropriate and necessary action has been taken to
authorize the individual who is executing this Agreement to do
so for and on behalf of the party for which his or her signature
appears, that there are no other parties or entities required to
execute this Agreement in order for the same to be an
authorized and binding agreement on the party for whom the
individual is signing this Agreement and that each individual
affixing his or her signature hereto is authorized to do so, and
such authorization is valid and effective on the date hereof.
g. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the
sufficiency of which is forever confessed.
4
h. Any notice provided for under the terms of this Agreement by
either party to the other shall be in writing and may be effected
by registered or certified mail, return receipt requested. Notice
to the City shall be sufficient if made or addressed to City
Manager, 100 Main Street Colleyville, Texas 76034, with a copy
to the City Attorney, Matthew C. G. Boyle, Boyle & Lowry,
L.L.P., 4201 Wingren, Suite 108, Irving, Texas 75062. Notice to
Tenant B shall be sufficient if made or addressed t013642
Omega, Dallas, Texas 75244, Attn: Charles M. Hodges. Each
party may change the address to which notice may be sent to
that party by giving notice of such change to the other parties in
accordance with the provisions of this Agreement.
i. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all
purposes.
j. In case anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
thereof, and this agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
k. Each signatory represents this Agreement has been read by the
party for which this Agreement is executed and that such party
has had an opportunity to confer with its counsel.
I. Time is of the essence in this Agreement.
m. The parties agree this Agreement has been drafted jointly by the
parties and their legal representatives.
n. Each party agrees to deliver estoppel certificates regarding the
status of this Agreement from time to time upon written request
of the other party.
o. Notwithstanding the Policy provisions, there will be no recapture
right on the part of the City with respect to any incentive
payments made prior to any default or failure of Tenant B
hereunder, whether or not this Agreement is terminated.
5
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
this Agreement to be effective on the latest date as reflected by the signatures
below.
CITY OF COLLEYVILLE
MELVIN & MARTINDALE II, lTD.,
a Texas limited partnership
By:~
Name: Da...t/i cL % e-~
Title: At. ~ nit....
By: R. M. Farrell, Inc., its general
partner
Approved:
~~
City Attorney
CITY COUNCIL APPROVED
MAY 3 2005
CORPORATE ACKNOWLEDGMENT:
The State of Texu
County of r/JJ.lU.J.ao
ign~~~nallyap~d . ~/~
. ~ ... of J!;JiJ , F A-~Gfh . ~
proved to me through the presentation ofa valid Texas Driver's License to bC the person
whose name is subscribed to the foregoing instrument and acknowledged to me that
he/she executed the same for the purposes and consideration therein expressed. Mr./Ms. f:=A'2JU~ if,
furth more attested....that he/she is signing this .8≶M~n hislher capacity as Pttbr05tV1
of · ~ . , and that such capacity makes his signature valid to
bind the company, , .
Seal:
...-
au GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ~ ~ ~day of
~ .2005.
M C " E . @ JOMNDOtWQ
Y omnusslon Xptres: _ eorr......, ....
JUy 30, 2009
6
&l\ 8J!(\J~
L
EXHIBIT .C-
-
RETAIL DEVELOPMENT AGREEMENT, ~ .}VlJ)
This Agreement (the "Agreement") is entered into as of the Jl:JtfiJ~ by and
between The City of Colleyville, Texas, a municipal corporation (the "City") and
Melvin & Martindale II, Ltd., a Texas Limited Partnership rM&Mj.
RECITALS:
WHEREAS M&M owns approximately 11.8 acres of property as more particularly
described in Exhibit "A" (the "Colleyville Town Center Parcel") on which M&M
plans to construct or cause to be constructed at least 70,000 square feet of retail,
entertainment, restaurant and/or office space that is heated, ventilated and air
conditioned as set forth on the Site Plan described in Exhibit "A" (or such other
square footage that is the tax generating equivalent thereof based upon the
IIFiscallmpad- section of M&M Application for Economic Development Incentives
dated Aprilcli, 2005) (herein collectively referred to as the "Retail Spacej; and
WHEREAS, M&M has requested that the City authorize and pay certain cash
incentives and grants as provided herein (collectively referred to as the
"Incentives") with respect to a portion of the Retail Space which is to be
constructed for one of the Retail Space tenants (hereinafter called "Tenant C"),
as hereinafter more particularly described; and
WHEREAS, for the public purpose of promoting economic development and
diversity, increasing employment, reducing unemployment and
underemployment, expanding commerce and stimulating business and
commercial activity in the State of Texas, Tarrant County and the City, the City
desires to offer the incentives and grants to M&M as more particularly described
in this Agreement; and
WHEREAS, M&M has applied for the Incentives in accordance with the City's
Policy Statement for Development Incentives (the "Policy"); and
WHEREAS, the Agreement and Incentives are authorized by, and in accordance
with, the Policy and Chapter 380 of the Texas Local Government Code.
NOW, THEREFORE, for and in consideration of the promises, covenants and
agreements set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the City and M&M agree as follows:
Project Subject to this Agreement M&M plans to construd, or cause to be
constructed, as a part of the overall Retail Space, an approximately 25,000
square foot facility for Tenant C (or such other square footage that is the tax-
generating equivalent thereof) that is heated, ventilated and air conditioned,
I
substantially as set forth on the Site Plan described in Exhibit "A" (the "Tenant C
Spacej, which may be modified from time to time as approved by the City, such
approval not to be unreasonably withheld or delayed, and on the land that is
described in Exhibit "A", attached hereto and incorporated herein for all
purposes.
1. Grant to Tenant C. For the aforesaid public purposes, the City desires to
grant to Tenant C $62,500 per year for ten years, for a total grant amount
of $625,000 (the "Granr). To qualify for the Grant, Tenant C must meet
the conditions set forth in the following subparagraphs (a) - (d):
a. Obtain a certificate of occupancy for the Tenant C Space and
be open to the public and begin taxable sales on or about
December 1, 2006 (subject to delays in completion of
construction of the Tenant C Space due to material shortages,
weather, acts of God, labor disputes or other causes beyond the
reasonable control of Tenant C or M&M); and
b. Operate the Tenant C Space for a period of no less than the full
term of this Agreement (subject to interruption due to damage or
casualty, as hereinafter provided); and
c. Cause the Tenant C Space to include a full-service beverage
and restaurant facility serving a limited menu of entrees and
desserts; and
d. Hold at least two festivals annually, including a live music
venue, subject to City promotional funding.
e. The City will have the right to terminate this Agreement if the
Tenant C Space is not completed in accordance with the
requirements of Paragraphs 1(a)-(c) by the deadline specified in
Paragraph 1(a), by giving written notice thereof to Tenant C at
any time prior to such completion. If this Agreement is not
terminated pursuant to the foregoing sentence, this Agreement
may not be terminated after completion of the Tenant C Space
for failure of Tenant C to meet any of the qualifications for the
Grant unless Tenant C fails to cause the failure to be cured
within sixty days following receipt of written notice from the City
of such failure; provided that if the failure is due to cessation of
operations by the operator of the retail space, the City may only
terminate this Agreement if the Tenant C Space is not reopened
within twelve (12) months, by giving written notice thereof to
Tenant C at any time prior to reopening: and further provided
that if the failure is due to damage or casualty to the retail
space, Tenant C shall have up to eighteen (18) months
2
following the damage or casualty to cause the Tenant C Space
to be restored and reopened before the City shall have the right
to terminate this Agreement, provided Tenant C causes
restoration to be commenced within a reasonable time and
completed with all due diligence. Notwithstanding anything in
this Agreement to the contrary, the sole remedy of the City with
respect to any failure of Tenant C to meet any conditions of the
Grant shall be termination of this Agreement in accordance with
and subject to the foregoing.
f. Term of Grant. Subject to the terms and conditions of this
Agreement, the Grant is available for a period of ten (10) years
beginning on the date the Tenant C Space opens for business,
provided that unless earlier terminated in accordance with its
express terms, this Agreement shall not end before the
$625,000.00 Grant is fully paid (the ''Term'').
g. Payment of Grant. The City will pay the Grant on an annual
basis beginning one year from the date of the first reported
taxable sale and continuing each year thereafter until the Term
ends or this Agreement is earlier terminated in accordance with
its express terms.
h. Amount of the Grant. The parties agree that the annual dollar
amount of the Grant payable to Tenant C will be $62,500.00. If
the qualifications for the Grant, as set forth in Paragraph 1 (b)-
(d), are not met for part of any year, the payment shall be
prorated based on the portion of the year during which the
qualifications were met.
i. Tenant C will provide annually all documents necessary for the
City to validate the Grant.
j. Default. In the event either party fails to comply with any
covenants or obligations of this Agreement (exclusive of
satisfying the express conditions for the Grant. which is
govemed by Paragraph 1(e) above), the other party may
pursue any remedy available at law or in equity; provided that
neither party shall be in default unless and until such party fails
to cure any failure within sixty days (30 days for money
payments) following its receipt of written notice thereof from the
other party (a "Default Notice"). The prevailing party to any
dispute arising out of the enforcement of this Agreement shall
be entitled to recover from the losing party reasonable attorney's
fees, expenses and costs.
3
2. Miscellaneous.
a. All construction will be in accordance with applicable codes,
regulations and ordinances of the City.
b. This Agreement may not be assigned by either party without the
written consent of the other party, not to be unreasonably
withheld; provided that M&M shall have the right, without any
consent being required, to assign this Agreement to Tenant C,
and upon such assignment, M&M shall be released from all
obligations thereafter accruing under this Agreement and
Tenant C shall be substituted for M&M in the same manner as if
this Agreement had been originally executed between the City
and Tenant C. In the event of assignment, the assigning party
shall provide written notice of the assignee, including assignee's
address and contact information.
c. This Agreement contains the entire agreement of the parties
with respect to the matters contained herein and may not be
modified or terminated except upon the provisions hereof or by
the mutual written agreement of the parties hereto.
d. This Agreement shall be construed in accordance with the laws
of the State of Texas and shall be performable in Tarrant
County, Texas.
e. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and (subject
to Paragraph 2(b)) assigns.
f. The individuals executing this Agreement on behalf of the
respective parties below represent to each other and to others
that all appropriate and necessary action has been taken to
authorize the individual who is executing this Agreement to do
so for and on behalf of the party for which his or her signature
appears, that there are no other parties or entities required to
execute this Agreement in order for the same to be an
authorized and binding agreement on the party for whom the
individual is signing this Agreement and that each individual
affIXing his or her signature hereto is authorized to do so, and
such authorization is valid and effective on the date hereof.
g. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the
sufficiency of which is forever confessed.
4
h. Any notice provided for under the terms of this Agreement by
either party to the other shall be in writing and may be effected
by registered or certified mail, return receipt requested. Notice
to the City shaH be sufficient if made or addressed to City
Manager, 100 Main Street Colleyville, Texas 76034, with a copy
to the City Attorney, Matthew C. G. Boyle, Boyle & Lowry,
l.L.P., 4201 Wingren, Suite 108, Irving, Texas 75062. Notice to
M&M shall be sufficient if made or addressed to 13642 Omega,
Dallas, Texas 75244, Attn: Charles M. Hodges. Each party
may change the address to which notice may be sent to that
party by giving notice of such change to the other parties in
accordance with the provisions of this Agreement.
i. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all
purposes.
j. In case anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
thereof, and this agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
k. Each signatory represents this Agreement has been read by the
party for which this Agreement is executed and that such party
has had an opportunity to confer with its counsel.
I. Time is of the essence in this Agreement.
m. The parties agree this Agreement has been drafted jointly by the
parties and their legal representatives.
n. Each party agrees to deliver estoppel certificates regarding the
status of this Agreement from time to time upon written request
ofthe other party.
o. Notwithstanding the Policy provisions, there will be no recapture
right on the part of the City with respect to any incentive
payments made prior to any default or failure of Tenant C
hereunder, whether or not this Agreement is terminated.
5
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
this Agreement to be effective on the latest date as reflected by the signatures
below.
CITY OF COLLEYVILLE
MELVIN & MARTINDALE II, LTD.,
a Texas limited partnership
BY:~~
Name:~(uhd' 5(el6-
Title:
By: R. M. Farrell. Inc., its general
partner
Approved:
~ ~~
City Attorney
MAY 3 2005
CORPORATE ACKNOWLEDGMENT:
The State 01 Tes..
County of
Notary Public in and for the State of Texas
6
EXHIBIT "0"
RETAIL DEVELOPMENT AGREEMENT ~~
This Agreement (the "Agreemenf') is entered into as of the J..5/;Ju o-ty and
between The City of Colleyville, Texas, a municipal corporation (the "City") and
Melvin & Martindale II, Ltd., a Texas Limited Partnership ("M&M").
RECITALS:
WHEREAS M&M owns approximately 11.8 acres of property as more particularly
described in Exhibit "A" (the "Colleyville Town Center Parcel") on which M&M
plans to construct or cause to be constructed at least 70,000 square feet of retail,
entertainment, restaurant and/or office space that is heated, ventilated and air
conditioned as set forth on the Site Plan described in Exhibit "A- (or such other
square footage that is the tax generating equivalent thereof based upon the
"Fiscallmpacr section of M&M Application for Economic Development Incentives
dated April~, 2005), which 70,000 square feet includes the "Tenant B Space"
and the "Tenant C Space- as described in those other two certain Retail
Development Agreements of even date herewith between the City and M&M, and
which 70,000 square feet is herein collectively referred to as the "Retail Space");
and
WHEREAS, M&M has requested that the City authorize and pay certain cash
incentives and grants as provided herein (collectively referred to as the
"Incentives") with respect to the construction of the Retail Space; and
WHEREAS, for the public purpose of promoting economic development and
diversity, increasing employment, reducing unemployment and
underemployment, expanding commerce and stimulating business and
commercial activity in the State of Texas, Tarrant County and the City, the City
desires to offer the incentives and grants to M&M as more particularly described
in this Agreement; and
WHEREAS, M&M has applied for the Incentives in accordance with the City's
Policy Statement for Development Incentives (the "Policy"); and
WHEREAS, the Agreement and Incentives are authorized by, and in accordance
with, the Policy and Chapter 380 of the Texas Local Government Code.
NOW, THEREFORE, for and in consideration of the promises, covenants and
agreements set forth herein, the receipt and sufficiency of which are hereby
acknowledged, the City and M&M agree as follows:
Project Subject to this Agreement. M&M plans to construct the Retail Space,
or cause the Retail Space to be constructed, substantially as set forth on the Site
1
Plan described in Exhibit "A", which may be modified from time to time as
approved by the City, such approval not to be unreasonably withheld or delayed,
and on the land that is described in Exhibit "A-, which Exhibits are attached
hereto and incorporated herein for all purposes (the "Project").
1. Grant to 11&11. For the aforesaid public purposes, the City desires to
grant to M&M $50,000 per year for ten years, for a total grant amount of
$500,000 (the "Grantj. To qualify for the Grant, M&M must meet the
conditions set forth in the following subparagraphs (a) - (e):
a. Obtain a certificate of occupancy for at least 70,000 square feet
of Retail Space and have at least 50,000 square feet of the
Retail Space (or the tax-generating equivalent) open to the
public with taxable sales commenced on or about December 1,
2006 (subject to delays in completion of construction of the
Retail Space due to material shortages, weather, acts of God,
labor disputes or other causes beyond the reasonable control of
M&M).
b. The City will have the right to terminate this Agreement if M&M
fails to cause the Retail Space to be completed and occupied in
accordance with and to the extent of the requirements of
Paragraph 1 (a), by giving written notice thereof to M&M at any
time prior to such completion and occupancy. If this Agreement
is not terminated pursuant to the foregoing sentence, this
Agreement may not be terminated after the initial completion of
the Retail Space and satisfaction of the Paragraph 1 (a)
occupancy requirement, regardless of subsequent occupancy
levels of the Retail Space. However, if due to casualty damage,
there is at any time less than 70,000 square feet of Retail
Space(or the tax-generating equivalent thereof) occupied and/or
available (subject to tenant finish) for occupancy, the City shall
have the right to terminate this Agreement unless M&M causes
restoration of the Retail Space at least to the extent necessary
to have 70,000 square feet of Retail Space so available within
eighteen months from the date of the casualty. Notwithstanding
anything in this Agreement to the contrary, the sole remedy of
the City with respect to any failure of M&M to meet any
conditions of the Grant shall be termination of this Agreement in
accordance with and subject to the foregoing.
c. Term of the Grant. Subject to the terms and conditions of this
Agreement, the Grant is available for a period of ten (10) years
beginning on the date the condition in Paragraph 1 (a) is
satisfied, provided that unless earlier terminated in accordance
2
with its express terms, this Agreement shall not end before the
entire $500,000.00 Grant is fully paid (the "Term").
d. Payment of Grant. The City will pay the Grant to M&M on an
annual basis beginning one year from the date of satisfadion of
the Paragraph 1 (a) conditions and continuing each year
thereafter until the Term ends or this Agreement is earlier
terminated in accordance with its express terms.
e. Amount of the Grant. The parties agree that the annual dollar
amount of the Grant payable to M&M will be fifty thousand
dollars ($50,000). If due to casualty damage the daily average
amount of Retail Space occupied and/or available (subject to
tenant finish) for occupancy during any year is less than 70,000
square feet (or its tax-generating equivalent), the annual Grant
amount shall be prorated based upon the actual number of
square feet of Retail Space occupied and/or available for
occupancy during such year, as compared to 70,000 square
feet (or its tax-generating equivalent).
f. M&M will provide annually all documents necessary for the City
to validate the Grant.
g. Default. In the event either party fails to comply with any
covenants or obligations of this Agreement (exclusive of
satisfying the express conditions for the Grant, which is
govemed by Paragraph 1(b) above), the other party may
pursue any remedy available at law or in equity; provided that
neither party shall be in default unless and until such party fails
to cure any failure within sixty days (30 days for money
payments) following its receipt of written notice thereof from the
other party (a" Default Notice"). The prevailing party to any
dispute arising out of the enforcement of this Agreement shall
be entitled to recover from the losing party reasonable attorney's
fees, expenses and costs.
2. Miscellaneous.
a. All construdion will be in accordance with applicable codes,
regulations and ordinances of the City.
b. This Agreement may not be assigned by either party without the
written consent of the other party. In the event of assignment,
the assigning party shall provide written notice of the assignee,
including assignee's address and contact information.
3
c. This Agreement contains the entire agreement of the parties
with respect to the matters contained herein and may not be
modified or terminated except upon the provisions hereof or by
the mutual written agreement of the parties hereto.
d. This Agreement shall be construed in accordance with the laws
of the State of Texas and shall be performable in Tarrant
County, Texas.
e. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
f. The individuals executing this Agreement on behalf of the
respective parties below represent to each other and to others
that all appropriate and necessary action has been taken to
authorize the individual who is executing this Agreement to do
so for and on behalf of the party for which his or her signature
appears, that there are no other parties or entities required to
execute this Agreement in order for the same to be an
authorized and binding agreement on the party for whom the
individual is signing this Agreement and that each individual
affixing his or her signature hereto is authorized to do so, and
such authorization is valid and effective on the date hereof.
g. This Agreement is executed by the parties hereto without
coercion or duress and for substantial consideration, the
sufficiency of which is forever confessed.
h. Any notice provided for under the terms of this Agreement by
either party to the other shall be in writing and may be effected
by registered or certified mail, return receipt requested. Notice
to the City shall be sufficient if made or addressed to City
Manager, 100 Main Street COlleyville, Texas 76034, with a copy
to the City Attorney, Matthew C. G. Boyle, Boyle & Lowry,
L.L.P., 4201 Wingren, Suite 108, Irving, Texas 75062. Notice to
M&M shall be sufficient if made or addressed to 13642 Omega,
Dallas, Texas 75244, Attn: Charles M. Hodges. Each party may
change the address to which notice may be sent to that party by
giving notice of such change to the other parties in accordance
with the provisions of this Agreement.
i. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all
purposes.
4
j. In case anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
thereof, and this agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
k. Each signatory represents this Agreement has been read by the
party for which this Agreement is executed and that such party
has had an opportunity to confer with its counsel.
I. Time is of the essence in this Agreement.
m. The parties agree this Agreement has been drafted jointly by the
parties and their legal representatives.
n. Each party agrees to deliver estoppel certificates regarding the
status of this Agreement from time to time upon written request
of the other party.
o. Notwithstanding the Policy provisions, there will be no recapture
right on the part of the City with respect to any incentive
payments made prior to any default or failure of M&M
hereunder, whether or not this Agreement is terminated.
5
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
this Agreement to be effective on the latest date as reflected by the signatures
below.
CITY OF COLLEYVILLE
MELVIN & MARTINDALE II, LTD.,
a Texas limited partnership
:~~~t;
T~:t~
Approved:
By: R. M. Farrell, Inc., its general
partner
CITY COUNCIL APPROVED
~ ~~
City Attorney
MAY 3 Z005
CORPORATE ACKNOWLEDGMENT:
The State of Texas
Countyof iO~
Before me, the un rsignp~ this day perso
. ,:rf)P'JIfJ of
proved to me through the presentation of a valid Texas Driver's License to 00 the person
whose name is subscribed to the foregoing instrument and acknowledged to me that
he/she executed the same for the purposes and consideration therein expressed. MrAAs. ~~ ~ G'~
~ attested that helshe is signing thi.IIM~lD hislher capacity as ftrhr OGN/
\". \" ( o~"' ::.I.f:O~tiiLt ~apacity makes his signature valid to
.' ~ (\ BVh bmd the company, .. I' .
~~~~:
GIVEN UNDER MY HAND AND SEAL OF OF~I<:'E,_th!~day of /l~~ N/~
, 2005. 4 ~""'_......
I @) JO NtH DONUIlE .
My Commission Expires: 4 - COIMlIIIIOI, -- .
4 NIt 30. 2009
-- --- ~ --
Notary Public in and for the State of Texas
6