HomeMy WebLinkAboutCity Council Resolutions (R-13-3596)-02/19/2013 RESOLUTION R-13-3596
A RESOLUTION APPROVING CITY COUNCIL ACTION
III
REGARDING EXECUTIVE SESSION ITEMS AT THE REGULAR
CITY COUNCIL MEETING OF FEBRUARY 19, 2013
II
WHEREAS, following discussion in Executive Session, and in full
accordance with the requirements of the Open Meetings Act,
the City Council determines that the following action is in the
best interests of the health, safety, and welfare of the public;
and
WHEREAS, the City of Colleyville 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 conducted negotiations with a developer in pursuit
of a significant new commercial development project; and
WHEREAS, the proposed development will enhance the tax base of the
City, thereby promoting economic development in accordance
with the City's Economic Development Incentive Policy; 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 Meetings Act; and
WHEREAS, the Board of Directors of the Tax Increment Financing
Reinvestment Zone Number One, previously authorized the
grant amount and incentives approved herein.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF COLLEYVILLE, TEXAS:
Sec. 1. THAT all matters stated hereinabove are true and correct and
incorporated herein as if copied in their entirety.
Sec. 2. THAT the City Council hereby authorizes and approves an
Economic Development Grant Agreement in an amount not to
exceed $2.25 million, substantially in the form of the
Resolution R-13-3596
Page 2 of 2
agreement attached hereto as "Economic Development Grant
Agreement."
Sec. 3. THAT this resolution is effective from and after the date of its
passage.
AND IT IS SO RESOLVED.
APPROVED BY A VOTE OF (O AYES, NAYS, AND 0
ABSTENTIONS ON THIS THE 19TH DAY OF FEBRUARY 2013.
ATTEST: CITY OF COLLEYVILLE
b If ° I 4Sr •
II a--
Amy . elley David Kelly
City Secretary Mayor
ICI
ECONOMIC DEVELOPMENT GRANT AGREEMENT
THIS ECONOMIC DEVELOPMENT GRANT AGREEMENT (the "Agreement"), is
made and entered into as of the day of February, 2013, by and between the CITY OF
COLLEYVILLE, TEXAS, a home rule municipality located in Tarrant County, Texas (the
"City"), and AC Village Park Partners, LLC, a Delaware limited liability company in good
standing authorized to do business in the State of Texas ("Developer"). (The City and Developer
are sometimes hereinafter referred to individually as a"Party" and collectively as the"Parties")
RECITALS:
Developer is the owner of the shopping center currently known as Village Park Shopping Center
(approximately 190,665 square feet) located in Tax Increment Reinvestment Zone Number One,
City of Colleyville, Texas (the "Zone") and shown on the Site Plan attached hereto as Exhibit
"A" (referred to herein as the "Center"); and
As part of Developer's proposed redevelopment of the Center, Developer desires to execute a
40,000 square foot anchor lease with Whole Foods Market Rocky Mountain Southwest L.P.
("Whole Foods") for a Whole Foods Market within the Center and to redevelop the Center in
conjunction with Whole Foods generally in accordance with the Redevelopment.Budget attached
hereto as Exhibit`B" (collectively referred to herein as the "Project"); and
Developer has requested that the City authorize certain economic development grant payments,
as provided herein, as an inducement for Developer to undertake the Project; and
The City is authorized by Section 311.010 of the Texas Tax Code and Chapter 380 of the Texas
Local Government Code to provide programs for economic development incentives to support
the expansion of local business and commercial activity, employment and development including
the making of grants of public money; and
The Board of Directors of the Zone (the "Board") by action on November 20, 2012 and the City
Council by adoption of Ordinance 0-12-1858, approved an amended Project and Financing Plan
for the Zone establishing an Economic Development TIF Grant Program (the "TIF Grant
Program"); and
Consistent with the TIF Grant Program, and 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 to Developer the economic
development grant payments more particularly described in this Agreement; and
The Agreement is in accordance with the TIF Grant Program and is authorized by action of the
Board taken on November 20, 2012, and by action of the City Council of the City of Colleyville
taken on December 18, 2012 and February 19, 2013.
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 Parties agree as
follows:
Section I. The representations, covenants and recitations set forth in the foregoing recitals
are material to this Agreement and are hereby incorporated into and made a part of this
Agreement as though they were fully set forth in this Section I.
Section II. The Project.
The Project shall include an anchor Whole Foods Market, which shall be located in the Center.
Whole Foods shall operate a grocery store and/or supermarket under the trade name Whole
Foods Market (or such other trade name used by Whole Foods in a majority of its other stores in
the Dallas/Fort Worth market) or otherwise operate as permitted or required under the lease
agreement. The Whole Foods Market is expected to generate $40 million per year in gross
annual sales by 2016, of which at least $13 million is anticipated to be taxable. The Whole Foods
Market is expected to employ approximately 150 to 200 employees at the Project.
Section III. Grant Payments
A. In consideration for Developer's commitment to undertake the Project, the City will
provide to Developer the following grant payments from municipal increment contributed to the
Tax Increment Fund of the Zone, conditioned on the satisfaction of the prerequisites specified
below:
i. The City will provide a grant payment in the amount of $375,000 within thirty
(30) days of Developer's providing the City with a copy of a recorded
memorandum of lease evidencing that on or before March 31, 2013 Developer
has executed a lease agreement with Whole Foods to occupy approximately
40,000 square feet in the Center (the "Whole Foods Space") for a period of not
less than twenty (20) years.
ii. The City will provide a grant payment in the amount of $375,000 within thirty
(30) days of Developer's providing the City with a recorded deed evidencing that
on or before March 31, 2013 Developer has acquired title to the 56,562 square
foot former Albertson's box located at 4801 Colleyville Boulevard, Colleyville,
Texas.
iii. The City will provide a grant payment in the amount of $375,000 within thirty
(30) days of the date Developer has provided City with copies of documentation
that Developer has obtained necessary building permit(s) on or before that date 18
months from the date of the execution of this Agreement to commence
construction work on a Whole Foods Market "gray box" and on Center façade
renovation having a scope that is generally consistent with Exhibit B and
anticipated upon completion to collectively have a minimum value of$2.5 million
(the "Permits"). The deadline provided herein for the issuance of the permit(s)
shall be extended by any length of time that the City has failed to use
commercially reasonable efforts in good faith to assist Developer and Whole
Page 2 of 15
Foods, obtain the necessary building permit(s) to commence construction on the
Whole Foods Market"gray box" and the Center façade renovation.
iv. The City will provide a grant of$375,000 within thirty(30) days of the date that a
certificate of occupancy is issued to Whole Foods for retail operations at the
Whole Foods Space.
v. The City will provide a grant of $250,000 within thirty (30) days of the date
Whole Foods opens for business to the general public at the Whole Foods Space.
vi. Provided that Whole Foods has maintained retail operations at the Whole Foods
Space, the City will provide a grant of$250,000 within thirty(30) days of the one
year anniversary of the date Whole Foods opened for business to the general
public at the Whole Foods Space.
vii. Provided that Whole Foods has maintained retail operations at the Whole Foods
Space, the City will provide a grant of$250,000 within thirty(30) days of the two
year anniversary of the date Whole Foods opened for business to the general
public at the Whole Foods Space.
B. The City will have the right to terminate this Agreement, in whole or in part, if a) the
Whole Foods Market is not open for business within the Center on or before November 30, 2015
(the "Required Opening Date"), b) the Developer has failed to qualify for the grant payments
described at parts vi or vii outlined of Section III.A., or c) if Whole Foods has not maintained
retail operations at the Whole Foods Space for three years following the date Whole Foods
opened for business to the general public at the Whole Foods Space. In the event of such
termination, the following provisions shall apply:
i. If this Agreement is terminated due to Developer's failure to meet the Required Opening
Date, Developer shall repay the City the full amount of the grant payments that have been
made to Developer under this Agreement.
ii. If this Agreement is terminated due to Developer's failure to qualify for the grant
described at part vi. Of Section III.A., Developer shall repay the City the difference
between the amount of the grant payments that have been made to Developer under this
Agreement and five hundred sixty-two thousand five hundred dollars ($562,500).
iii. If this Agreement is terminated due to Developer's failure to qualify for the grant
described at part vii. Of Section III.A., Developer shall repay the City the difference
between the amount of the grant payments that have been made to Developer under this
Agreement and one million one hundred twenty-five thousand dollars ($1,125,000).
iv. If this Agreement is terminated because Whole Foods has not maintained retail
operations at the Whole Foods Space for three years following the date Whole Foods
opened for business to the general public at the Whole Foods Space, Developer shall
repay the City the difference between the amount of the grant payments that have been
Page 3 of 15
made to Developer under this Agreement and one million six hundred eighty seven
thousand five hundred dollars ($1,687,500).
Any repayments required by this section shall be made within thirty (30) days after the date
Developer receives written notice that the City has elected to terminate this Agreement and
exercise its right to repayment. Upon expiration of any repayment deadline, any and all
repayment obligations of Developer shall be assessed against the Center and shall constitute a
lien against the Center effective upon recording notice thereof in the Office of the County Clerk
of Tarrant County, Texas. Such lien shall be subordinate to any lender's lien in place at that
time.
Section IV. Covenants.
A. Following the date that the Whole Foods Market opens for business, Developer agrees
not to contest the taxable value of the Center to an amount below eleven million, five hundred
ninety-three thousand, eight hundred eighty-nine dollars ($11,593,889). However, the foregoing
shall not restrict any tenant in the Center from contesting taxes under rights granted to such
tenant by their lease.
B. Developer certifies that it will not knowingly employ an undocumented worker as that
term is defined by Section 2264.01(4) of the Texas Government Code. In accordance with
Section 2264.052 of the Texas Government Code, if Developer, or its branch, division, or
department is convicted of a violation under 8 U.S.D. Section1324a(f), Developer shall repay the
City the full amount of the grant payments made under this Agreement, plus one percent (1%)
per annum from the date of the conviction. Repayment shall be made within one hundred and
twenty (120) days after the date Developer receives a notice of violation from the City. As
provided by Government Code Section 2264.101(c), Developer shall not be liable for a violation
by a subsidiary, affiliate, or franchisee of Developer, or by a person with whom Developer
contracts.
C. To the extent commercially reasonable, all construction contracts entered into by
Developer for work under the Permits shall require that the respective contractor enter into a
separated contract on eligible project costs in accordance with Texas Tax Code Secs. 151.056,
151.311 and 321.208. Developer shall provide written proof of compliance with this provision on
at least a quarterly basis, including documentation of all sales tax generated to the benefit of the
City by this provision.
D. All construction on the Project will be materially in accordance with applicable codes,
regulations and ordinances of the City, and all applicable State and Federal laws, rules and
regulations.
E. City shall use commercially reasonable efforts in good faith to assist Developer and/or
Whole Foods in timely obtaining any licenses, permits, approvals that are necessary to complete
of the Project, in making and processing applications for any zoning changes that are necessary
to complete of the Project, and in obtaining the Permits, and satisfying the conditions in Section
III A and the other covenants under this Agreement.
Page 4 of 15
F. To assist the City in assessing economic development goals, Developer shall take
commercially reasonable efforts to obtain from Whole Foods, and provide to the City, an
executed Waiver of Sales Tax Confidentiality covering the first three years of its operation in a
form generally in accordance with Exhibit "C". To the full extent permitted by applicable laws,
City agrees to keep confidential the information it obtains pursuant to the Waiver of Sales Tax
Confidentiality. If City fails to keep such information confidential, Whole Foods may revoke the
Waiver of Sales Tax Confidentiality.
Section V. Miscellaneous
A. Successors and Assigns. This Agreement may not be assigned, transferred,
conveyed, or exchanged, in whole or in part, by either party without the written consent of the
other party provided, however, that Developer may, without prior consent: (i) assign this
Agreement to (A) an entity controlled by the members of Developer or (B) a third-party in
connection with a sale in whole or part of Developer's interest in the Center; and (ii) collaterally
assign this Agreement to any construction or permanent lender. In the event of an assignment
permitted hereunder, the assigning party shall provide written notice of the assignee, including
assignee's address and contact information. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted assigns.
Notwithstanding whether there has been an assignment of this Agreement, performance of any of
Developer's obligations set forth herein by an affiliate of Developer or an entity with whom
Developer contracts shall be deemed to be performance by Developer.
B. Authority. 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.
a. This Agreement is executed by the parties hereto without coercion or duress
and for substantial consideration, the sufficiency of which is forever
confessed.
b. This Agreement may be executed in a number of identical counterparts, each
of which shall be deemed an original for all purposes.
c. 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.
Page 5 of 15
d. 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.
e. Time is of the essence in this Agreement.
f. The parties agree this Agreement has been drafted jointly by the parties and
their legal representatives.
C. Indemnification. DEVELOPER, AT NO COST TO THE CITY, AGREES TO
DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS
AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS,
ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED
TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE
OR LOSS TO WHOLE FOODS BUSINESS AND ANY RESULTING LOST PROFITS)
AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE
OUT OF OR BE OCCASIONED BY (i) DEVELOPER'S BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT; OR (ii)ANY ACT OR OMISSION OR
INTENTIONAL MISCONDUCT OF DEVELOPER, ITS OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY, OR ITS
EMPLOYEES, OFFICERS, AGENTS, ASSOCIATES, CONTRACTORS OR
SUBCONTRACTS), OR SUBCONTRACTORS DUE OR RELATED TO OR ARISING
FROM THE REQUIRED IMPROVEMENTS AND ANY OPERATIONS AND ACTIVITIES
ON THE LAND OR OTHERWISE TO THE PERFORMANCE OF THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE
NEGLIGENCE OR FAULT OF CITY, ITS OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE/BREACH OF BOTH DEVELOPER AND CITY, RESPONSIBILITY AND
INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW
OF THE STATE OF TEXAS, WITHOUT WAIVING ANY DEFENSES OF THE PARTIES
UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR
THE BENEFIT OF THE PARTIES AND ARE NOT INTENDED TO CREATE OR GRANT
ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY.
D. Powers.
(i) The City hereby represents and warrants to Developer that the City has
full constitutional and lawful right, power and authority, under currently applicable law, to
execute and deliver and perform the terms and obligation of this Agreement, and all of the
foregoing have been or will be duly and validly authorized and approved by all necessary City
proceedings, findings and actions. Accordingly, this Agreement constitutes the legal, valid and
binding obligation of the City, is enforceable in accordance with its terms and provisions and
does not require the consent of any other governmental authority. To the extent allowed by law,
the City hereby waives and agrees not to assert sovereign immunity for purposes of the
enforcement of this agreement.
Page 6 of 15
(ii) Developer hereby represents and warrants to the City that Developer has
full lawful right, power and authority to execute and deliver and perform the terms and
obligations of this Agreement and all of the foregoing have been or will be duly and validly
authorized and approved by all necessary actions of Developer. This Agreement constitutes the
legal, valid and binding obligation of Developer, and is enforceable in accordance with its terms
and provisions.
E. Authorized Parties.
Whenever under the provisions of this Agreement and other related documents and
instruments or any supplemental agreements, any request, demand, approval, notice or consent of
the City or Developer is required, or the City or Developer is required to agree or to take some
action at the request of the other, such request, demand, approval, notice or consent, or
agreement shall be given for the City, unless otherwise provided herein, by the City Mayor or his
designee and for Developer by any officer of Developer so authorized (and, in any event, the
officers executing this Agreement are so authorized); and any Party shall be authorized to act on
any such request, demand, approval, notice or consent, or agreement.
F. Default.
(i) A Party shall be deemed in default under this Agreement (which shall be
deemed a breach hereunder) if such Party fails to materially perform, observe or comply with
any of its covenants, agreements or obligations hereunder or breaches or violates any of its
representations contained in this Agreement; but in no event shall the failure of Developer to
satisfy any condition precedent to receiving a grant payment hereunder be deemed to constitute a
default.
(ii) Before any failure of any Party to this Agreement to perform its
obligations under this Agreement shall be deemed to be a breach of this Agreement, the Party
claiming such failure shall notify, in writing per Section V. L. herein, the Party alleged to have
failed to perform of the alleged failure and shall demand performance. No breach of this
Agreement may be found to have occurred if performance has commenced to the reasonable
satisfaction of the complaining Party within thirty (30) days of the receipt of such notice,
provided, however, if such matter is such that it cannot be cured within thirty (30) days, no
breach may be found to have occurred if the Party has commenced the cure thereof within thirty
(30) days and diligently pursues the completion thereof provided that such cure shall in any
event occur within ninety (90) days after written notice of the breach. Upon a breach of this
Agreement, the non-defaulting Party, in any court of competent jurisdiction, by an action or
proceeding at law or in equity, may secure the specific performance of the covenants and
agreements herein contained, may be awarded damages for failure of performance, or both,
provided, however, that the City's sole remedy hereunder for Developer's failure to satisfy the
conditions precedent to receiving grant payments hereunder (which shall not constitute a default)
shall be to withhold the grant payments and seek the repayment of any repayment liability due to
the City as a consequence. Except as otherwise set forth herein, no action taken by a Party
pursuant to the provisions of this Section or pursuant to the provisions of any other Section of
this Agreement shall be deemed to constitute an election of remedies and all remedies set forth in
this Agreement shall be cumulative and non-exclusive of any other remedy either set forth herein
Page 7 of 15
or available to any Party at law or in equity. Each of the Parties shall have the affirmative
obligation to mitigate its damages in the event of a default by the other Party.
(iii) Notwithstanding anything in this Agreement which is or may appear to be
to the contrary, if the performance of any covenant or obligation to be performed hereunder by
any Party is delayed as a result of circumstances which are beyond the reasonable control of such
Party (which circumstances may include, without limitation, pending or threatened litigation, act
of God, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse
weather conditions (such as, by way of illustration and not limitation, severe rain storms or
below freezing temperatures, or tornadoes, labor action, strikes or similar acts) the time for such
performance shall be extended by the amount of time of such delay. The Party claiming delay of
performance as a result of any of the foregoing "force majeure" events shall deliver written
notice per Section V. L. herein of the commencement of any such delay resulting from such
force majeure event not later than ten (10) days after the claiming Party becomes aware of the
same, and if the claiming Party fails to so notify the other Party of the occurrence of a "force
majeure" event causing such delay, the claiming Party shall not be entitled to avail itself of the
provisions for the extension of performance contained in this Section.
G. All exhibits hereto are incorporated herein by reference as if copied in their entirety.
This Agreement, and any exhibits attached hereto, may be amended only by the mutual
agreement of the Parties evidenced by a written amendment, by the adoption of an ordinance or
resolution of the City approving such written amendment, as provided by law, and by the
execution of such written amendment by the Parties or their successors in interest.
H. Entire Agreement. This Agreement sets forth all agreements, understandings and
covenants between and among the Parties relative to the matters herein contained. This
Agreement supersedes all prior agreements, negotiations and understandings, written and oral,
and shall be deemed a full integration of the entire agreement of the Parties.
I. Severability. If any provision, covenant, agreement or portion of this Agreement, or its
application to any person, entity or property, is held invalid, such invalidity shall not affect the
application or validity of any other provisions, covenants, agreements or portions of this
Agreement and, to that end, all provisions, covenants, agreements or portions of this Agreement
are declared to be severable.
J. Term. This Agreement shall be effective on the date of delivery and execution provided
herein and, unless terminated earlier pursuant to the provisions of this Agreement, shall
terminate on the date three years from the date Whole Foods opened for business to the general
public at the Whole Foods Space.
K. Dispute Resolution and Texas Law. The parties hereby agree to make a good faith effort
to resolve disputes arising under this Agreement through informal discussions between the
parties. In the event that a dispute cannot be resolved through informal discussions, prior to
initiating an alternative remedy either party must submit a written complaint per Section V. L.
that sets forth with specificity the basis of the complaint and a proposed resolution to the dispute.
The party receiving the complaint shall respond in writing to such written complaint within thirty
Page 8 of 15
(30) calendar days, by accepting the proposed resolution, rejecting the proposed resolution or by
proposing an alternative resolution to the dispute. Within twenty (20) calendar days of receipt of
the party's written response, if such response is a rejection or a counter-proposal, the other party
must either accept the counter-proposal or request that the dispute be reconsidered and mediated
by an independent third party that is mutually agreed upon by the parties. If the dispute is
mediated, both parties shall participate in good faith and attempt to resolve the dispute to their
mutual satisfaction. Each party shall be responsible for its own costs incurred in connection with
such mediation, but shall also be responsible for one-half of all of the out-of-pocket costs of and
incurred by such independent third party in connection with such mediation. In the event that the
dispute is unable to be resolved through mediation, both parties shall have full legal remedies
provided for the in this Agreement and in the courts of the State of Texas.
Failure by either party to raise a dispute through this process shall not constitute waiver
or acceptance of an alleged violation of this Agreement. The provisions of this section are
strictly limited in scope to serving as a prerequisite to the enforcement of remedies under this
Agreement.
This Agreement shall be construed in accordance with the laws of the State of Texas, and
any actions concerning this Agreement shall be brought in either the Texas State District Courts
of Tarrant County, Texas or the United States District Court for the Northern District of Texas.
The prevailing party shall be entitled to the recovery of their attorney fees as a result of any
dispute regarding this Agreement.
L. Notice. Any notice to be given or served hereunder or under any document or instrument
executed pursuant hereto shall be in writing and shall be (i) delivered personally, with a receipt
requested therefore, or (ii) sent by telecopy facsimile; or (iii) sent by a nationally recognized
overnight courier service; or (iv) delivered by United States registered or certified mail, return
receipt requested, postage prepaid. All notices shall be addressed to the Parties at their
respective addresses set forth below, and shall be effective (a) upon receipt or refusal if delivered
personally or by telecopy facsimile; (b) one (1) business day after depositing with such an
overnight courier service or (c) two (2) business days after deposit in the United States mails, if
mailed. A Party may change its address for receipt of notices by service of a notice of such
change in accordance with this Section. All notices by telecopy facsimile shall be subsequently
confirmed by U.S. certified or registered mail, return receipt requested.
If to the City: City of Colleyville
100 Main Street
Colleyville, Texas
Attn: City Manager
Fax: 817-503-1129
with a copy to: Matthew C. G. Boyle
Boyle & Lowry, L.L.P.
4201 Wingren, Suite 108
Irving, Texas 75062-2763
Fax: (972) 650-7105
Page 9 of 15
If to Developer: AC Village Park Partners, LLC
Attn: Scott Woodruff
8235 Douglas Ave., Suite 655
Dallas, Texas 75225
Fax: (972) 888-8023
with a copy to: Michael McDoniel
207 San Jacinto, Suite 300
Austin, Texas 78701
Fax: (512)474-0306
and a copy to: William Dalhstrom
Jackson Walker
901 Main Street
Suite 6000
Dallas, TX 75202
Fax: (214) 953-5822
M. Interpretation. This Agreement has been jointly negotiated by the Parties and shall not be
construed against a Party because that Party may have primarily assumed responsibility for the
drafting of this Agreement.
N. Release in the Event of Sale. In the event that Developer seeks to sell the Center during
the Term hereof, Developer shall have the option of providing a letter of credit or placing funds
in escrow funds to cover the maximum amount of any remaining repayment obligation that could
be due pursuant to Section III. B. of this Agreement. Upon the provision of such letter of credit,
or the funding of such escrow account, City shall execute a release stipulating that its right to
record a lien against the Center pursuant to Section III.B. of this Agreement has terminated.
IN WITNESS WHEREOF, the City Council of the City of Colleyville, Texas, and AC
Village Park Partner LLC have authorized and caused this Agreement to be executed and
delivered on this the 14 day of �Ct'it 4iy , 2013.
1
THE CITY OF COLLEYVILLE, TEXAS,
a Texas home rule municipality
By AS{
David Kelly
Mayor
Page 10 of 15
ATTEST
City . retary
APPROVED AS TO FORM:
4\(\•.
City Attorney
AC VILLAGE PARK PARTNERS,LLC,
a Delaware limited liability company,
By: Centennial Colleyville Manager, LLC,
managing- ember
y.
ACKNOWLEDGMENT:
STATE OF TEXAS §
COUNTY OF DALLAS §
The foregoing instrument was acknowledged before me this 19th day of February, 2013,
by Steven Levin, president of Centennial Colleyville Manager, LLC, a Texas limited liability
company, as managing member of AC Village Park Partners, LLC, a Texas limited liability
company, on behalf of said limited liability company.
•
[S • 011
1/.ii.,3
E.STRICKLAND Not. y Public, S ate of Texas
z MY COMMISSION EXPIRES
My I :"' "� sion FtWaltif4X2014
/ (/Z$ /?2v4 Printed Name of Notary Public
Page 11 of 15
EXHIBIT A
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Page 12 of 15
EXHIBIT B
Village Park Colleyvilie
REDEVELOPMENT BUDGET
Interior Scope of Work
Demolition
Demo(56,562)sft of space back to sheli cord Mon @.55. 31,109
Remove existing mezzanine 9,500
40.609
Concrete
Demo 40,000 SFT 54G. .E5 34,000
34.000
Drywall
235/ft of new demisirg wall to deck @ 95 22,325
Fire Riser Room&Door 3,300
Fire tau:'king 1,350
26,975
Roofing
Flash in 21 heater vents vacant space 400
Fire Sprinkler
Raised heads&piping back to shel=.condition throughout(56562 @.65- 36,765
Sprinkler line extensions from existing riser 50,000
86,765
Plumbing
Verify Sewer line condition&acteity by video 650
F 81 New Water service for W/F&Spec space&House on sub meters 4,650
Extend existing 4'sewer line for Whole Foods&Vacant Space. 4,000
9,300
Mechanical
Install(21 gas fired heaters for vacant space 3,000
3,000
Total Interior 20.1,049
Exterior Scope of Work
Exterior Far,ade Per Architects Rendering(250 IFT @ 53000}-Whole Foods 750,000
Exterior Facade-n=ine 300,000
1,050.000
Concrete
Re-stripe parking lot 2,250
Add(12)Landscape Islands 29.376
(5)Loads Sandy Loam 2.400
New recessed loading dock&door for vacant side 45,670
79,696
Painting
Paint back of building(3)sides((11736 SFT @.80) 9,388
Landscaping
Instal('.new,andscaping in(12)islands @ 1000 ea 12,000
Irrigation
F&l irrigation to(12)Islands @ 600 ea 7,200
Monument Sign to Match Existing One Onsite 75,000
Directional signage 10;000
Roofing
Instal=new 60 milt TPO w/12 yr.NDL warranty(56,562 @ 4.00) 226,248
56,562 SFT R30 insulati on @ 1.50 84,843
311,091
Misc.Steel
Add roof hatch&ladder for vacant space roof access 4,000
fire Alarm
Provide new wiring&dialer for FA system 3.000
Page 13 of 15
Village Park Colleyville
REDEVELOPMENT BUDGET
Mechanical
Provide heater in new fire riser room 850
Electrical
Upgrade foot candies on existing(34)po es(681 new heads 59,000
F&I(4)new light pole fixtures 18,000
Rework existing service to accommodate(3)new spaces&house panel 18,600
Orr or Transformer change out to 277/480 3,550
Add new 400 amp 480 volt service for spec space kr 1.(@ Back of 13'dg.) 6,000
Add new 200 amp 480 volt service for spec space*2(@ Back of B dg.) 4.000
Provide new house pane service&wiring 8,500
Provide(3)2'telephone conduits to spaces 3,000
Instal wiring for spec space fr 2 heating units 1850
122.500
Plumbing
Separate gas to new multi use manifold 1,675
Instal:New Irrigation Meter&Piping 12,600
Instal-nee r gas service for temporary heating units @ vacant space 2,400
16,675
General Conditions
Supervision(4 Months; 22„000
Temporary Fencing 3,000
Truck Allowance 2,600
Equipment 12,500
Barricades 10,000
Weekly Cleaning 6,000
Architectural MEP&Structural Fees 60;000
MLR Fees&Inspections 2,000
Perm its 8,000
Builder's Risk 6,000
Insurance GL 3,264
Fina Cleaning 2,500
Dumpsters 2,400
Faciities 800
141,064
Total Exterior Work 1,842,464
Total Interior+Exterior
Miscellaneous(Coraractor Fee,Sales Tax,Soft Costs,Etc.)
Su btotal 2,043,513
Contractors Fee 4.00% 81,741
Subtotal 2,125,254
Sales Tax 8.25% 175,333
Contingency 3.91% 80,000
Subtotal 2,380,587
CREC Construction Management Fee 5.00% 119,029
Total Miscellaneous 456,103
Total Interior+Exterior 2,499,616
2012 Assessments 9,094,273
Real Estate Taxable Contestable Floor 11,593,889
Page 14 of 15
EXHIBIT C
WAIVER OF SALES TAX CONFIDENTIALITY
Date
I authorize the Comptroller of Public Accounts to release sales tax information
pertaining to the taxpayer indicated below to the City of Colleyville, Texas. I understand
that this waiver applies only to our retail store located in Colleyville, Texas.
Please print or type the following information as shown on your Texas Sales and Use
Tax permit:
Name of Taxpayer Listed on Texas Sales Tax Permit
Name Under Which Taxpayer is Doing Business (d/b/a/ or Outlet Name)
Taxpayer Mailing Address
Physical Location of Business Permitted for Sales Tax in Colleyville, Texas
Texas Taxpayer ID Number Tax Outlet Number
(As Shown on Texas Sales Tax Permit)
Authorized Signature
Print Name of Authorized Signature
Position of Authorized Signature
Phone # of Authorized Signature
8847651v.1
Page 15 of 15