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HomeMy WebLinkAboutCity Council Resolutions (R-05-2590)-09/06/2005 RESOLUTION R-05-2590 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS, APPROVING AN ECONOMIC DEVELOPMENT INCENTIVE AND SALE AGREEMENT BY AND BETWEEN THE CITY OF COLLEYVILLE, TEXAS, AND N3 DEVELOPMENT, 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, the City conducted negotiations with a proposed developer of the property owned by the City located at 5500 Colleyville Blvd. (the "Property"); and WHEREAS, the proposed development would enhance the tax base of the City thereby promoting economic development in accordance with the Policy; and WHEREAS, the City is authorized to sell property for the purposes of economic development under both State law and the Policy; and WHEREAS, the City and N3 Development, Ltd. have agreed upon an Economic Development and Sale Agreement for the sale, purchase, and development of the Property (the "Agreement"); and WHEREAS, the Agreement and the incentives provided for therein are authorized by, and in accordance with, the Policy, Chapter 380 of the Texas Local Government Code, and State law; and WHEREAS, the enhancement of the local economy is in the best interest of citizens of the City; and WHEREAS, this Resolution is being passed in full accordance with all requirements of State law, including but not limited to the Open Meeting Act; and Resolution R-05-2590 Page 2 of 2 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. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT all matters set forth herewith are found to be true and correct, are incorporated herein by reference is if copied in their entirety, and are adopted by the City. Sec. 2. THAT the City hereby authorizes the Mayor to execute the Agreement. Sec. 3. 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. Sec. 4. 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 ..5 AYES, 0 NA~ (0 ABSTENTIONS ON THIS THE t." WlOAY OF -r~ 2005. ri~~~ Cynthia Singleton City Secretary, TRMC CITY OF COLLEYVILLE tbc~WScLl/( David Kelly () Mayor COUNTY OF TARRANT ~ ~ ~ ~ ~ ECONOMIC DEVELOPMENT INCENTIVE AND SALE AGREEMENT BY AND BETWEEN N3 DEVELOPMENT COMPANY AND THE CITY OF COLLEYVILLE, TEXAS STATE OF TEXAS This Economic Development Incentive and Sale Agreement ("AGREEMENT") is made by and between the N3 ("N3"), and City of Colleyville, Texas the ("CITY") acting by and through their respective authorized officers. WITNESSETH: WHEREAS, the enhancement of the local economy is in the best interest of the citizens of the CITY; and WHEREAS, economic development incentives encourage businesses and companies to locate or expand operations in the CITY; and WHEREAS, the CITY is authorized by Chapter 380 TEX. LaC. GOV'T CODE to provide economic development incentives to support the expansion of local business activity, employment and development; and WHEREAS, N3 desires to purchase that certain tract of land located at the Southwest corner of Church Street and Colleyville Blvd., in Colleyville, Texas as more particularly described by metes and bounds and depicted in Exhibit "A" attached hereto and made a part hereof for all purposes, (collectively referred to as the "PROPERTY") from the CITY for the construction, expansion and operation of an approximately 6,300 square feet of retail and commercial space on the PROPERTY (the "FACILITY"); and WHEREAS, the CITY desires that N3 develop the PROPERTY for the development, construction, and operation of the FACILITY contingent upon the terms hereof; and WHEREAS, N3 will pay the CITY the purchase price as set forth herein which the City has determined to be fair market value; and 'WHEREAS, the construction cost of the FACILITY to be constructed on the PROPERTY will be no less than approximately One Million Dollars and No/100 ($1,000,000.00), excluding the price of the PROPERTY itself; and WHEREAS, the Agreement is authorized by, and in accordance with, the City's Policy Statement for Development Incentives and Chapter 380 of the Texas Local Government Code; and WHEREAS, CITY has found and determined that this AGREEMENT will further the economic development objectives of the CITY, and will benefit the CITY and the CITY's inhabitants. NOW, THEREFORE, in consideration of the foregoing, and on the terms and conditions hereinafter set forth and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I 1.01 That all of the findings and recitals above are found by the CITY and N3 to be true and correct and are hereby incorporated herein in their entirety. ARTICLE II 2.01 The CITY agrees pursuant to S 380.001, TEX. LaC. GOV'T CODE (which shall not affect or restrict CITY's and N3's express agreements contained herein) to sell and convey the PROPERTY to N3 subject to the terms and conditions and restrictions set forth herein, at the purchase price hereinafter defined. Purchase and Sale 2.02 By this AGREEMENT, the CITY sells and agrees to convey, and N3 purchases and agrees to pay for, the PROPERTY (and all strips and gores adjacent thereto and all other rights appurtenant thereto including but not limited to rights in and to streets, alleys and easements contained within the boundaries of or appurtenant to the PROPERTY, but not adjacent thereto), located in Tarrant County, Texas, as depicted in Exhibit "A", attached to and incorporated in this AGREEMENT by reference for all purposes (all of such real property, rights and appurtenances being referred to in this AGREEMENT, save and except any CITY easements or rights-of-way (provided however N3 is not waving its right to object to such matters as provided herein), as the "PROPERTY"), together with any improvements, fixtures, and personal property situated on and attached to the PROPERTY, for the consideration and upon and subject to the terms, provisions, and conditions set forth herein. /pyrchase Price and Earnest Money ~4j3 32. fj . J b 61 10) ncg. cg1\:J _\ ') 2.03 The Purchase Price for the PROPERTY shall be as follows: Seven Hundr Fifty Four Thousa Two Hundred Seven and 05/100 Dollars ($754,207.05), calculated on the sis of $10.33 per uare foot for the land itself (approximately 66,149.87 square feet at $ , . ~ and $5.17 per s uare foot for the Old Church Street Property (approximately 13,709.65 square feet at $, . ), provided N3 shall be responsible for certain closing costs as set forth herein. At closing, N3 shall dedicate to the City a public street/access easement for the Old Church Street Property, in a form acceptable to the City Attorney. After closing, the City will not assume any maintenance responsibility for the Old Church Street Property or any improvements located thereon. Within five (5) business days after the effective date (hereinafter defined), N3 shall deliver its check in the amount of Ten Thousand Dollars and NollOO ($10,000.00) (the 2 "EARNEST MONEY") to Republic Title of Texas, Inc., 2626 Howell Street, 10th Floor, Dallas, Texas 75204, attention Cathy Moeller, the ("TITLE COMPANY"). The TITLE COMP ANY shall cash the EARNEST MONEY check and deposit the proceeds thereof in an account and at a depository selected by N3, with interest, if any, to accrue to the benefit of N3, and such interest shall not be part of the EARNEST MONEY but shall be distributed to N3 from time to time upon N3's request to the TITLE COMPANY. Subject to the provisions herein regarding the "INDEPENDENT CONSIDERATION", as defined herein, the EARNEST MONEY, unless earlier returned to N3 or unless delivered to the CITY as herein provided, at N3's option, either shall be applied to the purchase price or returned to N3 at the closing. Payment of Purchase Price 2.04 The full amount of the Purchase Price, as adjusted as provided herein, shall be payable in cash at closing. Construction of Facility 2.05 N3 shall apply for the necessary permits to construct or cause to be constructed in accordance with such permits on the PROPERTY the FACILITY (and other ancillary facilities such as parking required by applicable law and this AGREEMENT and landscaping, more fully described in applicable CITY ordinances and as shown on all approved submittals by N3 from time to time in order to obtain a building permit and certificate of occupancy). The FACILITY shall comply with all applicable CITY ordinances and the design standards. CITY and N3 hereby agree for all purposes hereunder and for all purposes in connection with applicable CITY ordinances. The cost of the FACILITY shall be no less than approximately One Million Dollars and No/100 ($1,000,000.00) excluding the cost of the PROPERTY. Church Street Construction 2.06. N3 shall at closing place into escrow funds or equivalent letter of credit or 2.06. performance bond in the amount of $350,000 to fund the construction of the design and construction of Church Street improvements on the PROPERTY, more particularly described on Exhibit "B" attached hereto and made a part hereof for all purposes. The Church Street improvements shall be constructed by N3 in accordance with plans and specifications approved by the City, which approval must precede any construction activity on the improvements. N3 shall be permitted to draw against this deposit of $350,000 for purposes of completing the Church Street improvements on the PROPERTY. In the event the Church Street improvements are completed for less than $350,000, N3 shall have the right to the remainder of the deposited amount upon final acceptance of the Church Street improvements by the CITY. N3 shall be responsible for any cost overrun for the Church Street improvements on the PROPERTY. If for any reason, N3 fails to complete the Church Street improvements within one (1) year of the date of closing, the City shall have the right to utilize the deposited funds for such purpose; provided, however, the City shall have no obligation to proceed with or complete any other portion of the Church Street improvements which extend beyond the PROPERTY. 3 2.07. The amount required in this subsection has been determined as the amount necessary to construct the improvements to Church Street roughly proportional to the traffic impact from the FACILITY on said road, there being a nexus between this payment and such impact. N3'S Obligations to Purchase the PROPERTY 2.08 The obligations of N3 hereunder to consummate the transactions contemplated hereby are subject to the satisfaction of each of the conditions for N3 to close such transactions set forth in paragraphs 2.1 0, 2.11, 2.13, 2.14, 2.15, 2.16, 2.17, 2.18, 2.19 and any other conditions expressly set forth herein (any of which may be waived in whole or in part by N3 at or prior to the closing). 2.09 N3 shall have a period of ninety (90) days after the City Council of the CITY adopts a Resolution approving this AGREEMENT ("EFFECTIVE DATE") to inspect the PROPERTY ("INSPECTION PERIOD") and to conduct feasibility studies of the PROPERTY. N3's studies may include, without limitation: (i) core borings; (ii) environmental and architectural tests and investigations; (iii) physical inspections of all improvements, fixtures, equipment, subsurface soils, structural members, and personal property; (iv) cost evaluations, appraisals and other economic studies and (v) examination of plans, specifications, manuals, and other documents relating to the construction and condition of the PROPERTY. N3'S and N3's agents, employees, consultants and contractors shall have the right of reasonable entry onto the PROPERTY during normal business hours, and upon reasonable advance notice (but no more than twenty four (24) hours advance notice shall be required) to the CITY for purposes of the inspections, studies, tests and examinations deemed necessary by N3. All inspections, studies, tests and examinations performed hereunder shall be at N3's expense. N3 shall be granted an additional thirty (30) days or such longer period of time as is necessary to obtain "Site Plan Approval" from the CITY in the event N3 is unable to obtain "Site Plan Approval" from the CITY within such ninety (90) day period or additional thirty (30) day period, as applicable.. 2.10 If N3 determines, in N3's sole discretion, no matter how arbitrary, that the PROPERTY is not in satisfactory condition or is not suitable for N3's intended use or purposes, or if N3 does not desire, in its sole and unlimited discretion, to buy the PROPERTY, for any reason or for no reason then N3 may terminate this AGREEMENT by delivering a written notice to the CITY on or before the last day of the INSPECTION PERIOD, and the Earnest Money, less the sum of One Hundred Dollars and Noll 00 ($100.00), which sum of $100.00 (the "INDEPENDENT CONSIDERATION") shall be delivered to the CITY as the INDEPENDENT CONSIDERATION for the CITY's entering into this AGREEMENT, the sufficiency of which is hereby acknowledged, , shall be promptly returned by the Title Company to N3 and neither party shall have any further rights or obligations under this AGREEMENT (except for those which may expressly survive the termination of this AGREEMENT). 2.11. If N3 does not properly and timely terminate this AGREEMENT before the expiration of the INSPECTION PERIOD (or if N3 accepts the PROPERTY in writing), then N3 will be deemed to have waived all objections to the PROPERTY under this 4 AGREEMENT, except for any title objections which may be raised by N3 and/or may be outstanding pursuant to Section 6 of this AGREEMENT. In that event, N3 agrees to purchase the PROPERTY in its current condition without any further representations or warranties of the CITY, except any objections which the CITY may expressly agree in writing to cure, and this AGREEMENT shall continue in full force and effect and the parties shall proceed to Closing (subject to the other provisions hereof). However, this provision does not waive or otherwise omit or invalidate any conditions set forth herein any express representations or warranties the CITY has made in this AGREEMENT. Preliminary Title Report 2.12 Within fifteen (15) days after the EFFECTIVE DATE of this AGREEMENT, the CITY, at the CITY's sole cost and expense, shall have caused the Title Company to issue a preliminary title report (the "TITLE REPORT") accompanied by copies of all recorded documents relating to easements, rights-of-way, and all matters set forth on Schedule B of the TITLE REPORT affecting the PROPERTY. N3 shall give the CITY written notice on or before the expiration of fifteen (15) business days after N3 receives the later of the TITLE REPORT or SURVEY that the condition of title as set forth in the TITLE REPORT and SURVEY is or is not satisfactory (the "OBJECTION NOTICE"), and in the event N3 states that the condition is not satisfactory, the CITY may, at the CITY's sole option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of N3. In the event the CITY chooses not or is unable to do so within twenty (20) days after receipt of the OBJECTION NOTICE, N3 may terminate this AGREEMENT which shall thereupon be null and void for all purposes and the EARNEST MONEY, less the INDEPENDENT CONSIDERATION which shall be paid to the CITY, shall be promptly returned to N3; otherwise, this condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. Survey 2.13 Within forty five (45) days after the execution of this AGREEMENT, N3, at N3's sole cost and expense, shall cause to be delivered a survey of the PROPERTY. The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of- way on or adjacent to the PROPERTY, if any, and shall contain the surveyor's certification that there are no encroachments on the PROPERTY and shall set forth the total acres and the number of gross square feet comprising the PROPERTY, together with a metes and bounds description thereof. Said survey shall separately reflect the square footage of the land itself and the Old Church Street Property. Representations and Warranties of CITY 2.14 The CITY hereby represents and warrants to N3 as follows, which representations and warranties shall be deemed made by the CITY to N3 also as of the closing 5 date and shall survive closing: (1) There are no parties in possession of any portion of the PROPERTY as lessees, tenants at sufferance, or trespasser; (2) There is no pending or threatened condemnation or similar proceeding or assessment affecting the PROPERTY, or any part thereof, nor to the best knowledge and belief of the CITY is any such proceeding or assessment contemplated by a governmental authority; (3) The CITY has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the PROPERTY, or any part thereof; (4) The PROPERTY has full and free access to and from public highways, streets or roads and, to the best knowledge and belief of the CITY, there is no pending or threatened governmental proceeding that would impair or result in the termination of this access; the CITY has no knowledge of any special taxes or assessments affecting the PROPERTY; (5) the CITY has no knowledge of any title or public access defects in the PROPERTY; and (6) The CITY has no knowledge of any environmental matters affecting the PROPERTY. (For the purpose of Section 2.15 the term "knowledge" shall only mean the actual knowledge of the CITY and, further, that the CITY shall have no duty to investigate.) 2.15 IT IS UNDERSTOOD AND AGREED THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN THAT THE CITY IS NOT MAKING ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, NO WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN THE CITY'S WARRANTY OF TITLE SET FORTH IN THE SPECIAL WARRANTY DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, OPERATING HISTORY OR PROJECTS, VALUATION, GOVERNMENTAL APPROV ALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY. N3 AGREES THAT WITH RESPECT TO THE PROPERTY, N3 HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF THE CITY EXCEPT AS EXPRESSLY PROVIDED HEREIN. N3 WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND EXCEPT FOR ANY REPRESENTATION AND WARRANTY EXPRESSLY SET FORTH HEREIN RELY UPON SAME, AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY 6 NOT HAVE BEEN REVEALED BY N3'S INSPECTIONS AND INVESTIGATIONS. EXCEPT FOR ANY REPRESENTATION AND WARRANTY EXPRESSLY SET FORTH HEREIN N3 AGREES TO TAKE WHATEVER ACTION AND PERFORM WHATEVER INVESTIGATIONS AND STUDIES N3 DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OF, OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO, ANY HAZARDOUS AND/OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY. N3 ACKNOWLEDGES AND AGREES THAT UPON CLOSING THE CITY SHALL SELL AND CONVEY TO N3 AND N3 SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS", WITH ALL F AUL TS AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY THE CITY OR ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. WAIVER OF CONSUMER RIGHTS: N3, AFTER CONSUL T A TION WITH AN ATTORNEY OF ITS OWN SELECTION (WHICH COUNSEL WAS NOT DIRECTLY OR INDIRECTLY IDENTIFIED, SUGGESTED OR SELECTED BY THE CITY OR ANY AGENT OF THE CITY) HEREBY VOLUNTARILY WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT (SECTIONS 17.41, ET SEQ., TEXAS BUSINESS AND COMMERCE CODE), A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. N3 HEREBY ACKNOWLEDGES TO THE CITY THAT N3 AND THE CITY ARE NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION. THE TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL EXPRESSLY SURVIVE THE CLOSING AND NOT MERGE THEREIN. Closing 2.16 The closing shall be held at the office of Title Company on or before thirty (30) days after completion of INSPECTION PERIOD, or at such time, date, and place as the CITY and N3 may in writing agree upon (which date is herein referred to as the "CLOSING DATE"). At the closing, the CITY shall: (1) Deliver to N3 a duly executed and acknowledged Special Warranty Deed in a form approved by the City Attorney and N3 conveying good and indefeasible title in fee simple to all of the PROPERTY, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions except for the following or as otherwise provided in this AGREEMENT: (a) General real estate taxes for the year of closing and subsequent years not yet due and payable; (b) Any exceptions approved by N3 pursuant to Paragraphs 7, 8, and 9 hereof; and (c) Any exceptions approved by N3 in writing; and (2) Deliver to N3 possession of the PROPERTY; and 7 (3) Execute and deliver all other documents, instruments and agreements reasonably required by N3 and the TITLE COMPANY. 2.17 General real estate taxes for the then current year relating to the PROPERTY shall be prorated as of the CLOSING DATE and shall be adjusted in cash at the closing. If the closing shall occur before the tax rate is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the next preceding year applied to the latest assessed valuation. All special taxes or assessments to the CLOSING DATE shall be paid by the City. All costs and expenses of closing in consummating the sale and purchase of the PROPERTY shall be borne and paid by N3 (provided however N3 shall not be responsible for CITY's attorneys fees, appraisal fees and/or the fees of any other consultants retained by the City). Condemnation 2.18 If, prior to the Closing, condemnation proceedings are threatened or commenced with respect to any portion of the Land, N3 may terminate this AGREEMENT and Contract by delivering a written termination notice to CITY prior to the CLOSING DATE. Prior to N3's termination of this AGREEMENT and Contract, or if N3 does not terminate this AGREEMENT and Contract, both the CITY and the N3, by and through their respective attorneys, shall have the right to appear in such condemnation proceedings and defend their interests in the PROPERTY. Any award in condemnation made prior to the Closing shall become the property of the CITY, and the Purchase Price shall be reduced by the amount equal to the product of (a) the per acre purchase price determined by dividing the Purchase Price by the number of gross acres contained in the PROPERTY specified in Section 2.03 multiplied by (b) the number of gross acres of PROPERTY lost in such condemnation or conveyance in lieu of such condemnation (provided, however, CITY shall make no conveyance in lieu of condemnation without N3's prior written consent). If N3 does not terminate this AGREEMENT and Contract and elects to close prior to the condemnation award being made, N3 shall be entitled to all condemnation awards or consideration in lieu of condemnation, and the Purchase Price shall not be reduced thereby. In the event of termination of this AGREEMENT and Contract pursuant to this section, the EARNEST MONEY (and any interest thereon), less the INDEPENDENT CONTRACT CONSIDERATION, shall be immediately refunded to N3, and neither party shall have any further right or obligation under this AGREEMENT and Contract. ARTICLE III 3.01 If after closing, N3 fails to execute a construction contract for the FACILITY, obtain a building permit and commence construction on any part of the FACILITY on or before three hundred sixty (360) days (the "OPTION DATE") days after closing, then the CITY shall have the option for an additional one hundred eighty (180) days after the OPTION DATE to refund the Purchase Price paid by N3 and repurchase the PROPERTY, less closing costs and all out-of-pocket costs and expenses paid or incurred by the CITY pursuant to this AGREEMENT 8 and any subsequent contract or related activities and N3 shall tender fee title ownership of the PROPERTY to the CITY. Provided, however, that N3 shall have a one (1) time option to extend the OPTION DATE and the provisions of this section for an additional one hundred eighty (180) days (the "EXTENDED OPTION DATE") by notifying the CITY of such desire to extend the OPTION DATE and by paying to the CITY consideration in the amount of Ten Thousand Dollars and Noll 00 ($10,000.00) on or before the OPTION DATE. Notwithstanding the foregoing, if N3 exercises its right to extend the OPTION DATE then CITY's right to refund the Purchase Price and repurchase the PROPERTY as set forth above shall be effective for one hundred eighty (180) days after the EXTENDED OPTION DATE. ARTICLE IV MISCELLANEOUS No Conflicts of Interest 4.01 The CITY represents and warrants that the PROPERTY is not owned by any officer or employee of the CITY. Binding Agreement 4.02 The terms and conditions of the AGREEMENT are binding upon the successors and assigns of all parties hereto. Limitation on Liability 4.03 It is understood and agreed between the parties that N3, in the development of the PROPERTY and satisfying the conditions of this AGREEMENT, is acting independently, and the CITY assumes no responsibilities or liabilities to third parties in connection with the actions\ of N3. N3 agrees to indemnify and hold harmless the CITY from all such claims, suits, and causes of actions, liabilities and expenses, including reasonable attorney's fees, of any nature whatsoever arising out of their respective obligations (but not the obligations of the other party) under this AGREEMENT. 4.04 It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among the parties. The CITY, past, present and future officers, elected officials, employees and agents of the CITY do not assume any responsibilities or liabilities to any third party in connection with the development the PROPERTY or the design, construction or operation of the FACILITY or the PARKING FACILITY. In addition, N3 acknowledges and agrees that there shall be no recourse to any of the aforesaid parties (except the CITY), who shall incur no liability in respect of any claims based upon or relating to this AGREEMENT. Authorization 4.05 This AGREEMENT was authorized by Resolution of the City Council 9 authorizing the undersigned to execute this AGREEMENT on behalf of the CITY. 4.06 N3 represents that it has full capacity and authority to enter into this AGREEMENT and to grant all rights and assume all obligations that it has granted and assumed under this AGREEMENT. N3 further represents that the undersigned is authorized to execute this AGREEMENT on behalfofN3. Notice 4.07 All notices required by this AGREEMENT shall be addressed to the following, or other such party or address as either party designates in writing, by certified mail, postage prepaid, or by hand-delivery: If intended for N3, to: N3 Development, Ltd. 301 Commerce Street, Suite 3131 Fort Worth, Texas 76102 Attn: Angie Gibson (817)348-8748 (817)348-8468 (fax) agibson@n3capital.com With copies to: Jackson Walker L.L.P. 301 Commerce Street, Suite 2400 Fort Worth, Texas 76102 Attn: Nikki H. Fanous, Esq. (817)334-7233 (817)870-5133 (fax) nfanous@jw.com If intended for the CITY, to: City of Colleyville 100 Main Street Colleyville, Texas 76034 Attn: William Lindley, City Manager (817)503-1116 (817)503- (fax) lindleyw@ci.colleyville.tx.us With copies to: 10 Matthew C. G. Boyle Boyle & Lowry, L.L.P. 4201 Wingren, Suite 108 Irving, Texas 75062 (972)650-7100 (972)650-7105 (fax) mcgboyle@boyle-Iowry.com Entire Agreement 4.08 This AGREEMENT is the entire AGREEMENT between the parties with respect to the subject matter covered in this AGREEMENT. There is no other collateral oral or written AGREEMENT between the parties that in any manner relates to the subject matter of this AGREEMENT, except as provided in the Exhibits attached hereto. Governing Law 4.09 The validity of the AGREEMENT and any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Tarrant County, Texas. Amendment 4.10 This AGREEMENT may only be amended by the mutual written agreement of the parties. Legal Construction 4.11 In the event anyone or more of the provisions contained in the AGREEMENT shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had been contained in it. 4.12 The provisions of this AGREEMENT are hereby declared covenants running with the PROPERTY and are fully binding on all successors, heirs, and assigns of the CITY and N3 who acquire any right, title or interest in or to the PROPERTY or any part thereof. Any person who acquires any right, title, or interest in or to the PROPERTY, or any part thereof, thereby agrees and covenants to abide by and fully perform the provisions of this AGREEMENT with respect to the right, title or interest in such PROPERTY. Provided, however should N3 assign the provisions of this AGREEMENT pursuant to Section 4.13 or sell all of its right, title and interest in and to the PROPERTY along with as assumption agreement reasonably acceptable to the CITY, N3 shall have no further obligations under this AGREEMENT. Assignment 11 4.13 This AGREEMENT shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. N3 may assign this AGREEMENT only to an affiliate or subsidiary of N3. Should N3 desire to assign this AGREEMENT to any party other than an affiliate or subsidiary of N3, the express written consent of the CITY shall be required, along with an assignment and assumption agreement reasonably acceptable to the CITY which consent shall not be unreasonably withheld, delayed, or conditioned Recordation of Agreement 4.14 A certified copy of a memorandum of this AGREEMENT may be recorded in the Deed Records of Tarrant County, Texas, in a form mutually agreeable to the parties. Survival of Covenants 4.15 Any of the representations, warranties, covenants, and obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. Time of Essence 4.16 Time is of the essence in this AGREEMENT. Gender 4.17 Words of any gender used in this AGREEMENT shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. Compliance 4.18 In accordance with the requirements of Section 20 of the Texas Real Estate License Act, N3 is hereby advised that it should be furnished with or obtain a policy of title insurance or N3 should have the abstract covering the PROPERTY examined by an attorney of their own selection. Brokers 4.19 Each party represents to the other party that it has not employed or retained any broker of finder in connection with the purchase transaction contemplated hereby. Effective Date 4.20 The EFFECTIVE DATE of this AGREEMENT shall be as defined III 12 2..0'1 6l Paragraph~hereof. 4.21 Except as specifically provided for this AGREEMENT, N3 shall comply with all federal and state laws and regulations, and CITY ordinances. Provided however, in the event of a conflict between the express terms and provisions of this AGREEMENT and such CITY ordinances the express terms and provisions of this AGREEMENT shall control and be observed by N3. ARTICLE VI Breach by CITY 5.01 In the event the CITY shall fail to consummate the sale of the PROPERTY for any reason, except N3's default, N3 shall have any and all remedies available to it, including but not limited to the right to enforce the provisions hereof by specific performance. 5.02 Subsequent to the purchase of the PROPERTY, in the event N3 fails to meet any of the conditions of this AGREEMENT, then the CITY shall give N3 written notice of such failure and if N3 has not cured such failure within thirty (30) days after receipt of such written notice, this AGREEMENT shall be subject to the provisions of Sec. 5.03 below, and may be terminated by the CITY without further notice. Breach by N3 5.03 Except in the event of a default by the CITY, in the event N3 should fail to consummate the purchase of the PROPERTY, this AGREEMENT will automatically terminate. In the event N3 fails in the performance of any of the following: (i) completion of the FACILITIES in accordance with this AGREEMENT, or in accordance with applicable state or local laws, codes or regulations; (ii) have any delinquent ad valorem or state sales taxes owed to the CITY with respect to the PROPERTY (and provided N3 retains the right to timely and properly protest such taxes or assessments; (iii) upon the occurrence of an "event of bankruptcy or insolvency"; or (iv) breaches any of the terms and conditions of this AGREEMENT, then the CITY, after expiration of the notice and cure periods provided above, shall declare N3 in default of this AGREEMENT. For purposes hereof, an "event of bankruptcy or insolvency" shall means the dissolution or termination of N3's existence, insolvency, appointment of receiver for any part of N3's property and such appointment is not terminated within sixty (60) days after such appointment is initially made, then a general assignment for the benefit of creditors or the commencement of any proceedings under any bankruptcy or insolvency laws by or against N3 in such proceedings are not dismissed within sixty (60) days after the filing thereof. As liquidated damages in the event of such default, N3 shall, within thirty (30) days after demand, as CITY's sole and exclusive remedy pay to the CITY an amount equal to the total cost of the CITY which shall include actual engineers' costs, if any, of third party engineers, and reasonable attorney's fees. The parties acknowledge that actual damages in the event of default would be speculative and difficult to determine. Counterparts 13 5.04 This AGREEMENT may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. [EXECUTION PAGES FOLLOW] EXECUTED on this ? 7t day of fJo/~ ,2005, by tbe CITY. CITY COUNCIL APPROVED SEP 6 200S CITY OF COLLEYVILLE, TEXAS c:rr~ ATTEST: APPROVED AS TO FORM: ~~ CITY ATTORNEY EXECUTED on this :} day of OJ )bV' ,2005 by N3. N3 DEVELOPMENT, LTD., a Texas limited partnership By: N3 Capital, LLC, A Texas limited liability company, its general partner By: 14 STATE OF TEXAS ~ ~ COUNTY OF TARRANT ~ BEFORE ME, , on this day personally appeared William Lindley, City Manager of the City of Colleyville, Texas, known to me or proved to me <m th~ vatft~f Of thxo1!.gh (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the City of Colleyville, an Incorporated Municipality, and that he has executed the same as the act of such municipality for the purposes and consideration therein expressed, and in the capacity therein. n GIVEN UNDER MY HAND AND d/r 6.eA J , 2005. My Commission Expires: SEAL OF OFFICE, this ~ ~ day of c Not8ry Public. State of T_ My Commilalon ExI*et: AprIl 12. _7 STATE OF TEXAS ~ ~ COUNTY OF TARRANT ~ BEFORE ME, the undersigned authority, a Notary Public in and for said Coun~y& and State, ol} this day personally appeared I W\ f) -t'h . e ( ( m I( 1,\ ~ j c. t' ,+ ~3 GA<< " fa ,) LLC- ) 6-~ of N3 Development, Ltd., known to me r proved to e ~ tail ata gf Sf through -=rx D L- (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the pu oses and consideration therein expressed and in the apacity ther,in stated. Mr.~. B4l!-{ furthermore attested that he/she is signing this (j tnerih hisffter-eapacity , ~ and that such cap lty makes his signature valid to bind the company,_N3 Development, Ltd. O _ I G~VEN UNDER MY HAND AND SEAL OF OFFICE, this V1"1) be.r , 2005. -"1-th day of My Co GIBSON Notary Public, State of Texas My Commission Expires December 27. 2008 H:\MCGB\Colleyville\CO CH Redline 380 NL Real Estate Agreement.doc 15 · e.,' \= . !:l:;. e..; . .". .. .. OJ ... ... ..... :c .... .c >< w " "0 > - OJ G) - - "> ~ G) - (5 o o o It) It) I I I .. ", " -0 ~ z.. ~ ::J .- J::;t) l/) <J) c .c 0 ..... (,) .9 . ~ <J) .0 ~ .9 (,) t;~ CO :I .0 ~O: .. C -0 0 t;O 1:: 2 ~z 0 co ~ 0..2 ..... -0 >-0: <J) <J) !;!.... ~ -0 0: VI :;,<1> ..... -0 VI": CJ) C i~ ... .c co ~ C') ::J Z 9~ I .c >. t) .>- .. .0 CD~ [J ~ .. '- · .e..' \~ . ~. e..; . lil. ..... "- .c .- .c >< w " "'CS > - to (I) - - "> ~ (I) - - o o o o It) It) I I I ('t) ~ ", " ;>. .0 0) I/) m ..c e ~ ::::l 0 0.= "0.2 ~.9 0;>. 0.0) e ~ o.::::l '01/) m I/) 0)"0 .... c: m ::::l 2.8 m"O E c: 'x m o I/) 0..2 0.0) <(:iE IJ ti~ -<'" '" . '""0 gjz -<... o (;j~ >'"" ll'gj ~-< >-> ..,.., ~~ 9(1) ai~ ~ . ~ ~ .. .. I ... N3 N3 CAPIT AL. LLC 301 COMMERCE STREET SUITE 3131 FORT WO RTH. TEXAS 7610 2 o 817.348.8748 F 817.H8.8468 October 27, 2005 Via Email Mr. Scott Welmaker, CEcD City of Colleyville 100 Main Street Colleyville, Texas 76034 Re: The Economic Development Incentive and Sale Agreement (the "Agreement") by and between N3 Development, Ltd. ("N3") and the City of Colleyville, Texas (the "City") regarding the property located at the Southwest comer of Church Street and Colleyville Blvd., Colleyville, Tarrant County, Texas Dear Mr. Welmaker: In connection with the above referenced Agreement, the parties thereto desire to clarify the Effective Date of the Agreement, as well as the expiration date of the Inspection Period. N3 and the City herein agree that the Effective Date of the Agreement is October 7, 2005, and, accordingly, the Inspection Period shall expire on Thursday, January 5, 2006. ~ '"' Please have the appropriate City signatories sign in the space provided below to evidence their acceptance and acknowledgment of this letter and return to us. Thank you for your kind attention. Sincerely, ~iC/ ~~~ Angie Gibson Director of Operations cc: Ms. Nikki H. Fanous, Esq./Jackson Walker, L.L.P. (Via Email) Mr. Matthew C.G. Boyle/Boyle & Lowry, L.L.P. (Via Email) Mr. William Lindley, City Manager/City of Colleyville (Via Email) A~AS~ CITY ATTORNEY .