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HomeMy WebLinkAboutCity Council Resolutions (R-05-2561-A)-06/21/2005 ~ ;, RESOLUTION R-05-2561-A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS, APPROVING A RETAIL DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF COLLEYVILLE, TEXAS, AND TENANT "I"; 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, the City has received an application 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 a Retail Development Agreement (the "Agreement") with Tenant "I" to provide incentives to promote economic development in accordance with the Application which Agreement is shown on the attached Exhibit "8", which exhibit is incorporated herein by reference; and WHEREAS, the Director of Economic Development has reviewed the Application and Agreement and has determined that both are in full conformance with the Policy; 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 interest of the public. Resolution R-05-2561-A 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 herewith are found to be true and correct, are incorporated herein by reference, and are adopted by the City. THAT the City hereby approves the Agreement. 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 unconstitutionality 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. AND IT IS SO RESOLVED. APPROVED BY A VOTE OF ABSTENTIONS ON THIS THE c::2-/ S AYES, DAY OF o NAYS AND 0 1~ 2005. t;1~~~ Cynthia Singleton City Secretary, TRMC CITY OF COLLEYVILLE /6t1JW~~ David Kelly () Mayor EXHIBIT" A" MELVIN & MARTINDALE II, LTD. ( Tel: (970) 387-1000 13642 Omega, Dallas, Texas 75244 Fax: (972) 385-8747 c c: ~ z...~ c.;-poUl)\{l$ S~ czs-o L:O... \:TX- -r,c <:_T ~ ~ 2 ('-\ :S<C Q. n \ I,;, June 16, 2005 1-1/ City of Colleyville Economic Development Manager 100 Main Street Colleyville, Texas 76034 Re: Application for Economic Development Incentives for Tenant "I" Dear Mr. Welmaker: This letter constitutes an application for financial incentives from the City of Colleyville. In support of this application, we are furnishing the following information and supporting documentation: 1. The property owner: Melvin & Martindale II, Ltd., a Texas limited partnership ("M&M") 2. The owner's mailing address: 13642 Omega, Dallas, Texas 75244 - - cc - 'rz_5S -o-cu..,\o:> s-\--q~/"""DC1..\ ~.(s ~c"") 3. The owner's telephone number: (972) 387-1000 fr 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 7524~ -z...L..-S- L..C. 'bz.:-ss -oOu.C) 10\5 <:;,-\--. 95D ~l\~S;l'lL .1'> 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: Tenant "c" is negotiating with a franchise to include in their proposed building, Tenant "I". Tenant "I" requests City participation in promoting the franchise for five years: $25,000 per year for years 1,2 and 3; $15,000 for year 4; and $10,000 in year five. I 11. Date projected for Project occupation/initiation of operations: May 1, 2006 ( 12. Response to criteria in Section 2 of the City of Colleyville Economic Development Incentive Policy: Employment Impact . The franchise would 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 franchise will add an additional $1.5 million in BPP to Phase III over and above . Anticipated direct sales tax generated at one percent (1%) of taxable sales; o The franchise is expected to generate an additional 150,000 visits per year to Colleyville Town Center at an average ticket price of $10.50, generating additional taxable sales of $1.575 million, exclusive of concessions, and generating an additional $15,750 sales tax revenue to the General Fund. . Other revenues generated for the city: franchise payments, occupancy taxes, utility revenues, etc; o As the franchise would be located in a building planned by Tenant "C", the franchise is not expected to generate substantial additional revenues. . City infrastructure construction required; o No City participation in infrastructure construction is requested for Tenant I . Projected total annual operating budget of the facility. o The annual operating budget of the projected facilities should not impact the decision to provide the previous incentives toTenant B and Tenant C. Community Impact . 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, if any, 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 There are no direct competitors to the services of this franchise in Colleyville. . A list of specific businesses seen as direct competitors to the applicant. o There are no direct competitors to this franchise in Colleyville. We propose that the requested incentives be established pursuant to the agreement in the form attached hereto, viz., Tenant "I" Retail Development Agreement. We appreciate your consideration of this application. Please advise if further information is needed. MELVIN & MARTINDALE II, LTD. By: R. M. Farrell, Inc., general partner 3 EXHIBIT "B" RETAIL DEVELOPMENT AGREEMENT FOR TENANT "I" This Agreement (the "Agreement") is entered into as of the ~f)J 1 t(> by and between The City of Colleyville, Texas, a municipal corporation (the "City") and ("Tenant I"). RECITALS: WHEREAS TENANT I plans to operate certain entertainment space as part of the Tenant C space which is the subject of a separate Retail Development Agreement (the "Tenant "I" Space"), and cause the Tenant I Space to be constructed, substantially as set forth on the Site Plan described in Exhibit "A"; and WHEREAS, TENANT I 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 marketing of Tenant "I"; 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 I as more particularly described in this Agreement; and WHEREAS, TENANT I 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 TENANT' agree as follows: Project Subject to this Agreement. TENANT I plans to operate certain entertainment space as part of the Tenant C space which is the subject of a separate Retail Development Agreement (the "Tenant "'" Space"), or cause the Tenant I Space to be constructed, substantially as set forth on the Site 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"). I ( 1. Grant to Tenant III". For the aforesaid public purposes, the City desires to grant to Tenant "I" $25,000 per year for Years 1 (one), 2 (two) and 3 (three); $15,000 in Year 4 (four) and $10,000 in Year 5 (five) for a total grant amount of $100,000 (the "Grant") such Grant to be exclusively for the promotion of the Tenant I space as hereinafter defined. To qualify for the Grant, Tenant "I" must meet the conditions set forth in the following subparagraphs (a) - (e): a. Obtain a certificate of occupancy for the Tenant "l" Space and be open to the public and begin taxable sales no later than December 1, 2006, (subject to delays in completion of construction of the Tenant "l" Space due to material shortages, weather, acts of God, labor disputes or other causes beyond the reasonable control of Tenant "l"); and b. Operate the Tenant "I" 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. Tenant I agrees to conduct two fundraising events annually to benefit Colleyville charities; and d. The City will have the right to terminate this Agreement if the Tenant "I" Space is not completed and opened by the deadline specified in Paragraph 1 (a), by giving written notice thereof to Tenant "I" at any time prior to such completion and opening. If this Agreement is not terminated pursuant to the foregoing sentence, this Agreement may not be terminated after completion and opening of the Tenant "I" Space for failure of Tenant "l" to meet any of the qualifications for the Grant unless Tenant "I" 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 byTenant "I", the City may only terminate this Agreement if the Tenant "I" Space is not reopened within twelve (12) months, by giving written notice thereof to Tenant "I" at any time prior to reopening; and further provided that if the failure is due to damage or casualty to the Tenant "I" Space, Tenant "I" shall have up to eighteen (18) months following the damage or casualty to cause the Tenant "I" Space to be restored and reopened before the City shall have the right to terminate this Agreement, provided Tenant "I" 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 "I" to meet any conditions of the Grant shall be 2 termination of this Agreement in accordance with and subject to the foregoing. e. Term of Grant. Subject to the terms and conditions of this Agreement, the Grant is available for a period of five (5) years beginning on the date the Tenant "I" space opens for business, provided that unless earlier terminated in accordance with its express terms, this Agreement shall not end before the $100,000.00 Grant is fully paid (the "Term"). f. Payment of Grant. The City will pay the Grant on an annual and reimbursement basis only, 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. As a prerequisite to the annual payment of the Grant, Tenant I shall provide written certification to the City that: 1 ) Tenant I has expended the full Grant payment amount exclusively for promotional expenses related solely to the Tenant "I" Space and Tenant I operations; and 2) Tenant I has operated the Tenant "I" space in full compliance with Tenant I's franchise or license in all material respects for the Tenant "I" Space or operations. Upon request of the City, Tenant I shall make available to the City for inspection Tenant I's records supporting such certifications. g. Amount of the Grant. The parties agree that the annual dollar amount of the Grant payable to Tenant "I" will be $25,000 per year for Years 1 (one), 2 (two) and 3 (three); $15,000 in Year 4 (four) and $10,000 in Year 5 (five) for a total grant amount of $100,000 (the "Grant"). If the qualifications for the Grant, as set forth in Paragraph 1 (b) and (c) , 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. h. Tenant "I" will ensure that the grant is used exclusively to promote the Tenant I Space and Tenant I operations, including but not limited to direct mail promotions to school district employees encouraging them to include class field trips to Tenant "I" in planning their class schedules. i. 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 governed by Paragraph 1 (d) above), the other party may pursue any remedy available at law or in equity; provided that neither 3 ( 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 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. 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 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 I 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 I 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 "I" hereunder, whether or not this Agreement is terminated. 5 IN WITNESS WHEREOF I 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 By: .iDcuJ(~ TiUe: It a:JM ) By: BY:~ Ap-proved: ~\h.~ City Attorney CORPORATE ACKNOWLEDGMENT: .~ rJadrttu County of !J~ /AIL." 11. A v~ /I I ..() . cJ;1ore me, the undersigHd, o~ this day perso~pe~d ,;1 cittt t,aJiJ;ri %. ~tljj../ . m~_iduth of ' , fM;U) ) , proved to me through the presentation of a valid Texas Driver's License to be 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. furthermore attested that he/she is signing this -k in hislher capacity as of j. 1-< ~" and )j~ capacity makes hi. signature valid to bind the company, ,'-fYl t :d-a.,M/ L . r-- . The State of Texas Seal: liJd dayof '{l G~UNDER MY HAND AND SEAL OF OFFICE, this !AJj ~ ,) , 2005. JO ANN DONAHUE Mv Commission ExpIr.. .JtiV 30. 2009 My Commission Expires: Texas 1<: ntrMJl oLJ8 A IIIJI JtWt.tttL ~ ~ ~\~} -'-'K* ~~Dt rL\fh,JaMJi(,h 6 EXHIBIT "C" RETAIL DEVELOPMENT AGREEMENT , ~~J This Agreement (the "Agreement') is entered into as of theo~~~ by and between The City of Colleyville, Texas, a municipal corporation (the "City's and McMn 8~ Martindale 11, Ltd., a Texas Limited Partnership ("M&M'~. RECITALS: WHEREAS M8M owns approximately 11.8 acres of property as more particularly described in Exhibit "A" (the "Colleyville Town Center Parcel's on which M&M plans to construct or cause to be constructed at least 70,000 square feet of retail, entertainment, restaurant andlor 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 "Fiscal Impact" section of MGM Application for Economic Development Incentives dated Aprilo2' , 2005) (herein collectively referred to as the "Retail Space'; and WHEREAS, M8M 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 Stafie of Texas, Tarrant County and the City, the City desires to offer the incentives and grants to M8M as more particularly described in this Agreement; and WHEREAS, M8M 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 MGM agree as follows: Project Subject to this Agreement M8M plans to construct, 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, substantially as set forth on the Site Plan described in Exhibit "A" (the "Tenant C Space', 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 X62,500 per year for ten years, for a total grant amount of X625,000 (the "Grant"). To qualify for the Grant, Tenant C must meet the condfions set forth in the following subparagraphs (a) - (d): a. Obtain a cert~cate 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 MGM); 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 afull-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 qualfications 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 naopening; 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 atl 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 3625,000.00 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 362,500.00. ff the qualfications 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 qualfications 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 governed 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 M8M shall have the right, without any consent being required, to assign this Agreement to Tenant C, and upon such assignment, M8M shall be released from all obligations thereafter accruing under this Agreement and Tenant C shall be substituted for M8M 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 reseed 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. 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 wrfing 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 ~ngren, Suite 108, Irving, Texas 75062. Notice to M8M 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 any one 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 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 By: Name: Title: od Approved: ~~~ ~~ City Attorney CORPORATE ACKNOWLEDGMENT: The State of Texas County of Before me, the MELVIN 8~ MARTINDALE II, LTD., a Texas limited partnership By: R. M. Farrell, Inc., its general partner ~ By: M. Faro~lA President CITY COUNCIL MAY 3 2005 this day ~I~F,I;.T M • Fi41L,~',(~L~ , f ~}~I (Lil/'r of ik.~ M . F=l-~L~ /~Lt/ proved to me through the presentation of a valid Texas Driver's License to be 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. ~A (VC,~Ui furthermore attested that he/she is signing this ui his/her capacity as ~~~yl b FtI~T of ~ ~- ~ and that ucl~ capacity makes his signature valid to bind the company, ~ ~ - (~ Seal: GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ~ ~~ day of 2005. ,io ~ ooMwtu~ My Commission Expires: M- Caar~n Mgrs ~1- ~0. 700- Notary Public in and for the State of Texas 6 EXHIBIT "D" RETAIL DEVELOPMENT AGREEMENT ~ ~`~Q~ C~G~~~ This reement the " reemen is entered into as of the %~ ~ "b and Ag ( p-9 ~ °~~~`~ Y between The City of Colleyville, Texas, a municipal corporation (the "City") and McMn 8 Martindale ll, Ltd., a Texas limited Partnership ("M8~M'~. RECITALS: WHEREAS MB~M owns approximately 11.8 acres of property as more particularly described in Exhibit "A" (the "Colleyville Town Center Parcel") on which M8M plans to constructor 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 "Fiscal Impact' section of Md~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 Devebpment Agreements of even date herewith between the City and MBM, and which 70,000 square feet is herein collectively referred to as the "Retail Space'; and WHEREAS, M8M has requested that the City authorize and pay certain cash incentives and grants as provided herein (collectively refen-ed 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 unempbyment and underemployment, expanding commerce and stimulating business and commen~ai activity in the Statie 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, M8M 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 consideratjon of the pnxnisea, covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknowledged, the City and M8M agree as follows: Project Subject to this Agreement. M8M plans to construct the Retail Space, or cause the Retail Space to be constructed, substantially as set forth on the Site 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 MbM. For the aforesaid public purposes, the City desires to grant to MB~M ;50,000 per year for ten years, for a total grant amount of $500,000 (the "Grant"). To qualify for the Grant, M8M 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 ~ God, labor disputes or other causes beyond the reasonable control of M8M). b. The City will have the right to terminate this Agreement if MGM fails to cause the Retail Space to be completed and occupied in acxondanoe 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, regard~ss 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 M8M 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 datie of the casualty. Notwithstanding anything in this Agreement to the contrary, the sole remedy of the City with respect to any failure of MbM to meet any conditions of the Grant shall be temtination 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 shalt not end before the entire 6500,000.00 Grant is fuNy paid (the'Term"). d. Payment of Grant. The City will pay the Grant to M8M on an annual basis beginning one year from the date of satisfaction of the Paragraph 1(a) conditions and continuing each year thereafter untll the Term ends or this Agreement is earlier terminated in accondance with its express terms. e. Amount of the Grant. The parties agree that the annual dollar amount of the Grant payable to M8~M will be fifty thousand dollars (650,000). If due to casuaky 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 shah 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. M8M wiN provide annually aN documents necessary for the City to validate the Grant. g. Defauk. 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 governed 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 defauk unless and until such party fails to cure any failure within sixty days (30 days for money payments) following its receipt of written notice then3of from the other party (a" Defauk 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 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. In the event of assignment, the assigning party shag 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 acxiordance 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 bekriv 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 entfies 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 wrifing 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 8 Lowry, L.L.P., 4201 Wingren, Suite 108, Irving, Texas 75062. Notice to MGM 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 acconiance wkh the provisions of this Agreement. 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 any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respell, 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 certficates 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 M8M hereunder, whether or not this Agreement is terminated. 5 IN WITNESS WHEREOF, the parties have executed this Agn3ement and caused this Agn3ement to be effective on the latest date as reflected by the signatures below. CITY OF COLLEYVILLE By: Name: Title: /~ MELVIN 8 MARTINDALE II, LTD., a Texas limited partnership By: R. M. Farrell, Inc., its general partner President Approved: ^~y\~ ~ ~ City Attorney CORPORATE ACKNOWLEDGMENT: The State of Tezss County of ,~G~~.t.A.O CITY COUNCIL APPROVED MAY 3 2005 Before me, the un ign on this day perso ly a .-~~ ~~ proved to me through the presentation of a valid Texas Driver's License to be 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~~M s. ~~ ~ ~~ ro attested that he/she is signing thisA rn hisJher capacity as 7'K~~ ~" 1 ` ' ~ and tha s h capacity makes his signature valid to ~~ ~ bind the company, ,~~f ~' Seal: CrIVEN UNDER MY HAND AND SEAL OF 2005. My Commission Expires: ~O ANN D~ONAlN~ M1- CamrMWOn biplrN ~U ~0. ~ of Notary Public in and for the State of Texas 6