Loading...
HomeMy WebLinkAboutGrant Agreement Co 'wi4 ( ktievk tc,k. 14J oy eitAA 5 GRANT AGREEMENT BETWEEN THE CITY OF COLLEGE STATION AND RADAKOR,L.L.C. This Agreement is entered into by and between the CITY OF COLLEGE STATION, TEXAS, a home-rule municipal corporation organized under the laws of Texas (hereinafter referred to as "CITY") and Radakor, L.L.C., a Texas Limited Liability Company (hereinafter referred to as"DEVELOPER"). WHEREAS, CITY is authorized and empowered under applicable Texas law to aid in the development of commercial enterprises and redevelopment projects within the geographic boundaries of the CITY by offering economic and other incentives to prospective new, developing, and expanding businesses; and WHEREAS, CITY actively seeks economic development prospects in College Station through its establishment of an Economic Development Office in College Station and participation in and establishment of other nonprofit economic development corporations; and WHEREAS, CITY has targeted the Northgate District as a redevelopment district;and WHEREAS, CITY has determined that certain conditions including aging infrastructure, dilapidated structures, and the difficulty in assembling property exist in the Northgate District that increase development costs and create barriers to redevelopment;and WHEREAS, DEVELOPER is redeveloping properties located within the Northgate District of College Station for use as multi-family, office, commercial, and/or mixed-use developments; and WHEREAS, DEVELOPER has expressed its intent and desire to locate at multiple sites in the Northgate District; and WHEREAS, CITY provides cash incentives for use in attracting redevelopment projects within the CITY that are qualified economic development prospects; and WHEREAS, CITY considers DEVELOPER to be a qualified economic development prospect that will redevelop property, add capital investment, generate sales tax, and meet the goals of the Northgate Redevelopment Implementation Plan. NOW, THEREFORE, for and in consideration of the premises and mutual covenants and promises hereinafter set forth,the Parties represent and agree as follows: • 1. Definitions For the purposes of this Agreement, when not inconsistent with the context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall"and "will"are mandatory and the word "may" is permissive. Words not defined in this Agreement shall be given their common and ordinary meaning. 1.1. Certificate of Acceptance: A certificate issued by the City Engineer stating that the construction conforms to the plans and specifications and the standards contained in or referred to in CHAPTER 9 OF THE CITY OF COLLEGE STATION CODE OF ORDINANCES. 1.2 Certificate of Occupancy: As defined in SECTION 110 OF THE INTERNATIONAL BUILDING CODE,2003 EDITION AS ADOPTED AND AMENDED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION. 1.3 Economic Incentives: Consist of the following: 1.3.1 Cash Incentives: A cash grant to DEVELOPER, not to exceed a total of $900,000.00, to subsidize and incent redevelopment in the Northgate District as more fully described in Sections 2.1 and 3. 1.3.2 Reimbursement: An amount, not to exceed a total of $65,000.00, to reimburse DEVELOPER for the actual cost to relocate a wastewater line located between Tauber Street and Stasney Street as more specifically described in Exhibit "A" attached hereto and incorporated herein by reference for all purposes. Such reimbursement shall be made pursuant to the requirements within this Agreement. 1.4 Effective Date: The date on which this Agreement is signed by the last party whose signing makes the Agreement fully executed. 1.5 Project: Redevelopment in the Northgate District by DEVELOPER of Redevelopment Property including the Improvements described in Sections 1.7, 3, and elsewhere herein, consisting of multi-family, retail, office, commercial, and/or mixed-use developments. The Project is comprised of various individual Redevelopment Projects as defined below. 1.6 Redevelopment Property: Various tracts of real property owned and to be developed by DEVELOPER as part of the Project, such tracts located in the Northgate District, Page 2 C:IDOCUME—II7CHILD—IILOCALS-I1TempIFINAL RADAKOR RDA 10102006.doe Zoning Districts NG-1-2-3, in the City of College Station, Texas, as more fully described in the Project Plan attached hereto as Exhibit "B", and incorporated herein by reference for all purposes. The Project Plan may be modified to add additional tracts of redevelopment Property with the approval of the CITY. Such modified Project Plans will be incorporated herein for all purposes. Redevelopment of each tract of Redevelopment Property is referred to herein individually as a"Redevelopment Project". 1.7 Improvements: All enhancements to Redevelopment Property including, but not limited to, Facilities, infrastructure improvements, inventory, supplies, furniture, fixtures and equipment, and assets to be located on Redevelopment Property as part of the Project. 1.8 Facilities: Those structures constructed on Redevelopment Property for which a building permit is required. In order to be defined as a Facility, and be eligible for Cash Incentives as provided in Sections 1.3.1, 2.1, and 3, the Facility must have a minimum Building Permit Value of$500,000.00. The capital investment for the Facilities are described in Section 3.1 hereinbelow. 1.9 Building Permit Value: Value of Facilities as indicated on the City's Building Permit Application and determined reasonable by the City's Building Official. 1.10 Non-Residential Construction: Facilities constructed as a part of the Project which are office, retail, or commercial in their design and use. For those Facilities that are mixed-use developments, only that portion devoted to office,retail or commercial design and use will be Non-Residential Construction. 1.11 Northgate District: That area of the City of College Station, Texas, that is bound by Wellborn Road,University Drive,South College Avenue, and Bryan City Limits. 2. CITY's Incentive Package, Obligations and Representations 2.1. Cash Incentives 2.1.1 CITY agrees to fund an economic development grant to provide Cash Incentives to DEVELOPER as authorized by CHAPTER 380 OF THE TEXAS LOCAL GOVERNMENT CODE (VERNON 2005). The grant will consist of the Cash Incentives specified in Sections 1.3 and 3. 2.1.2 The Cash Incentives will be paid to DEVELOPER as provided in Section 3.2 herein. The total Cash Incentives for the Project shall, under no circumstances, exceed a total of$900,000.00. 2.1.3 The payment of Cash Incentives will be granted to DEVELOPER for each Facility on condition that and only after the requirements established in this Section and Sections 3 and 5 hereinbelow as well as any other requirements specified in this Page 3 C:IDOCUME-117CHILD-IILOCALS-I%TempIF1NAL RADAKOR EDA 10102006.doc Agreement or in any applicable City of College Station Code of Ordinances(collectively, the"Requirements")have been fulfilled by DEVELOPER. 2.1.4 CITY agrees to pay to DEVELOPER the Cash Incentives set forth in this Section and Sections 1.3 and 3 within thirty (30) calendar days of satisfaction of the Requirements as provided herein. 2.2 Reimbursement 2.2.1 CITY agrees to reimburse DEVELOPER an amount, not to exceed $65,000.00, for the actual cost to relocate a wastewater line located between Tauber Street and Stasney Street as more specifically described in Exhibit "A" on condition that and only after the requirements established in this Section and Sections 3 and 5 hereinbelow as well as any other requirements specified in this Agreement or in any applicable City of College Station Code of Ordinances (collectively, the "Relocation Requirements")have been fulfilled by DEVELOPER. 2.2.2 CITY agrees to reimburse DEVELOPER the reimbursement set forth in this Section and Section 1.3 and as provided below. The total estimated cost of the wastewater line relocation is,$65,000.00 3. DEVELOPER'S Obligations and Representations 3.1 Capital Investment 3.1.1 In order to qualify for the Cash Incentives specified in Section 1.3, DEVELOPER agrees to: (a) redevelop and obtain Certificates of Occupancy for all Facilities on or before December 31,2013. (b) construct several Facilities consisting of multi-family,retail, office, commercial, and/or mixed use space. DEVELOPER agrees to construct a minimum of 25,000 square feet of Non-Residential Construction space. (c) The Facilities shall be constructed in accordance with all applicable laws, ordinances, regulations, and rules, including, but not limited to, the Northgate Ordinance attached hereto as Exhibit "C"and incorporated herein by reference for all purposes. The City shall approve all Facilities proposed under this agreement based on the Project Plan attached as Exhibit"B". 3.2 Redevelopment Page 4 C:IDOCUME-117CffILD-IILOCALS-I1TemptFINAL RADAKOR EDA 10101006.dac 3.2.1 In order to qualify for the Cash Incentives specified in Section 1.3, DEVELOPER must satisfy the Requirements including the following: (a) DEVELOPER anticipates that the first Redevelopment Project will consist of a multi-family residential Facility with a Building Permit Value anticipated not to exceed $9 million. CITY will reimburse DEVELOPER at a rate of three percent (3%) of up to a total of$9 million Building Permit Value for this Facility. Such total reimbursement shall not exceed$270,000.00. (b) DEVELOPER will construct a minimum of 25,000 square feet of Non-Residential Construction with a minimum of $15 million Building Permit Value as part of the Project. Cash Incentives for the 25,000 square feet of Non-Residential Construction will be reimbursed as follows: First $2.4 million Building Permit Value — 3.5% of Building Permit Value Next $3.0 million Building Permit Value — 3.75% of Building Permit Value Next $4.5 million Building Permit Value -- 4.0% of Building Permit Value Next $5.1 million Building Permit Value — 4.5% of Building Permit Value (c) Notwithstanding subsection (a) above, the CITY will reimburse DEVELOPER three percent(3%) of the Building Permit Value for any residential construction in excess of the first $9 million residential Building Permit Value. The CITY will reimburse DEVELOPER four and one-half percent (4.5%) of the Building Permit Value for any Non-residential Construction in excess of that required in subsection (b) above. The CITY's total Cash Incentives under this section will not exceed a total of$900,000.00 as committed in Section 1.3 herein. (d) DEVELOPER's receipt of a Certificate of Occupancy for a Facility in a Redevelopment Project; (e) DEVELOPER's receipt of a Certificate of Acceptance issued by the City Engineer for any infrastructure constructed and dedicated to the City by DEVELOPER in a Redevelopment Project; (f) After receipt of Certificate of Occupancy and Certificate of Acceptance, that DEVELOPER opens the Redevelopment Project Page 5 C:IDOCUME-11TCHILD-11 LOCALS-11TemplEINAL RADAKOR EDA 10102006.doc for business to the general public within thirty (30) calendar days; and (g) DEVELOPER provides to the CITY, for each Facility, a notarized affidavit stating that all bills for labor, materials, and incidentals incurred have been paid in full, that any claims from manufacturers, materialmen, and subcontractors have been released, and that there are no claims pending of which the DEVELOPER has been notified. 3.2.2. DEVELOPER shall submit a written application for payment of Cash Incentives within thirty(30) calendar days after both issuance of Certificate of Occupancy and Certificate of Acceptance for a Redevelopment Project. CITY will pay Cash Incentives for that Redevelopment Project in one payment within thirty(30)calendar days after receipt of a complete written application for payment from DEVELOPER. 3.3 Wastewater Line Relocation("Relocation Project") 3.3.1 In order to qualify for the Reimbursement specified in Section 1.3, DEVELOPER must satisfy the Relocation Requirements including the following: (a) DEVELOPER will submit to CITY its engineer's plans and cost estimate of the improvements on or before December 31, 2006,for CITY's comments and approval; (b) Final completion of the improvements in accordance with the approved plans; (c) Issuance of Certificate of Acceptance to verify that all inspections/tests and subsequent repairs are complete; (d) Dedication to the City of public utility easements, both off-site and on-site, satisfactory to the CITY either by plat or by separate instrument prepared by CITY; (e) A current title report dated within thirty (30) days of easement dedication or Certificate of Acceptance,whichever occurs later; (f) Lien releases or subordinations from all lenders as required by CITY; and (g) Completion of the Project. 3.3.2 DEVELOPER shall submit a written application for reimbursement within thirty (30) calendar days after completion of the Project. CITY will reimburse actual costs in one payment within thirty (30) calendar days after receipt of a complete written application for reimbursement from DEVELOPER. 3.4 No later than December 31, 2006, DEVELOPER shall dedicate to the CITY as right-of-way that parcel of land lying and being situated in College Station, Brazos County, Texas, said tract being a portion of Lot 4,Block 22,W.C. Boyett estate partition, according to the plat recorded in Volume 100, Page 440 of the Deed Records of Brazos County, Texas, as more Page 6 C.'IDOCUME-I CHJLD-11 LOCALS-11TempIFINAL RADAKOR RDA 10102006.doc particularly described in Exhibit"D",attached hereto and incorporated herein by reference for all purposes. The dedication shall be by separate instrument prepared by the CITY. 4. Term The term of this Agreement is from the Effective Date through December 31,2013. 5. Reporting Requirements 5.1. Reports 5.1.1 DEVELOPER shall submit to the CITY any and all information or reports requested to verify that the DEVELOPER has met all obligations as specified in Sections 2 and 3. The submission of these reports and information shall be the responsibility of DEVELOPER and shall be signed by DEVELOPER's general partner. 5.1.2 DEVELOPER shall submit the information and/or reports required herein on or before the day that is ten (10) days after the earlier of: (i) the date the DEVELOPER opens a Facility for business; or (ii) the date on which the information and/or reports are requested in writing by the CITY. If DEVELOPER fails, within thirty (30) days after CITY makes the written request,to submit the information and/or reports, then DEVELOPER shall be ineligible to receive the Economic Incentives specified in Section 1.3 and CITY's obligation to grant the Economic Incentives shall terminate without any liability. 5.1.3 All submittals in this Section shall be to the Director of Economic Development. 6. Compliance with Applicable Laws DEVELOPER will remain in compliance with all applicable laws, rules and regulations including without limitation, all applicable environmental laws, rules and regulations during the term of this Agreement. 7. Default 7.1 DEVELOPER Default 7.1.1 If DEVELOPER defaults in any material term or condition of this Agreement, then CITY shall not be obligated to approve or disburse the Economic Incentives specified under this Agreement unless such default is cured by the defaulting party promptly but not more than thirty (30) days after the occurrence of said default, Page 7 C:IDOCUME--117CHlLD-MOCALS-11TempIFINAL RADAKOREDA/0101006.doc unless such cure will reasonably take more than thirty (30) days, in which case the CITY shall approve additional time to cure the default upon submission of a plan and schedule to promptly cure the default within a reasonable time, and provided the party commences the cure within a sixty (60) day period. City Manager is authorized to extend the cure period as stated in this Section. In no event shall this Section 7 be construed to extend the time of this Agreement beyond the term specified in this Agreement and the parties acknowledge and agree that a default shall not extend the time for performance or cure beyond the end of the term specified in Section 4. 7.1.2 A material breach by DEVELOPER consists of, but is not limited to, any of the following individual or cumulative events: failure of DEVELOPER to complete the Project; failure of DEVELOPER to meet the requirements outlined in Section 3; failure of DEVELOPER to comply with all laws, codes and ordinances relating to the construction of the infrastructure and improvements that constitute the subject matter of this Agreement; failure of DEVELOPER to meet the requirements for the receipt of a Certificate of Occupancy for all Improvements on or before December 31, 2013; failure to have lease space available for lease in all Facilities on or before December 31, 2013; failure to obtain a Certificate of Acceptance for any infrastructure improvements; submittal of any information that DEVELOPER knows or should know is incorrect at the time of its submittal to the CITY; any material misrepresentation of fact concerning the subject matter of this Agreement. 7.1.3 CITY shall give to DEVELOPER written notice of any default of DEVELOPER. If DEVELOPER has not received grant funds, DEVELOPER shall have the right,but not the obligation,to cure the default as provided herein. 7.1.4 Except as expressly set forth in this Agreement, in the event DEVELOPER fails to cure any default under this Agreement within the notice and cure periods set forth in Section 7.1.1 hereof, then CITY's sole and exclusive remedy shall be to withhold payment of any remaining Economic Incentives. In no event shall DEVELOPER be liable to CITY for any consequential damages as a result of any breach or default under this Agreement. 7.2 CITY Default In the event that CITY materially breaches its obligation to disburse the Economic Incentives to DEVELOPER under this Agreement, and Developer is not in default, DEVELOPER, at its option, may terminate this Agreement, and DEVELOPER may thereafter pursue its remedies available at law. In no event shall CITY be liable to DEVELOPER for any consequential damages as a result of any breach or default under this Agreement. If DEVELOPER is in default, DEVELOPER may only terminate this Agreement without further liability. Page 8 C:IDOCUME-II CXILD-I1LOCALS-11TempIFINAL RADAKOR EDA 10102006.doc 8. Indemnity DEVELOPER agrees to and shall indemnify and hold harmless and defend CITY, its officers, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all reasonable expenses of litigation, court costs, and reasonable attorney's fees, for injury to or death of any person, for damage to any property, or its failure to abide by all applicable environmental laws, rules and regulations arising out of or in connection with DEVELOPER's operation and construction of Improvements contemplated by this Agreement. 9. Release • DEVELOPER releases, relinquishes and discharges the CITY, its officers, agents, and employees from all claims, demands,and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of, any person (whether they be either of the parties hereto, their employees or other third parties) and any loss of or damage to property(whether property of either of the parties hereto,their employees,or of third parties) or their respective failure to abide by all applicable environmental laws, rules and regulations that is caused by or alleged to be caused by, arising out of, or in connection with DEVELOPER's operation of or construction of Improvements contemplated by this Agreement. By entering into this Agreement, the City does not consent to suit, waive its governmental immunity or the limitations as to damages contained in the Texas Tort Claims Act. 10. Assignment 10.1 This Agreement may not be assigned by DEVELOPER without the express consent of the College Station City Council. Assignment for the purposes of this Agreement means any change in ownership in whole or in part. This Agreement shall be binding on DEVELOPER's heirs, assignees, and successors-in-interest. Any assignee must have a net worth equal to or greater than the DEVELOPER for the purpose of developing the Project in accordance with this Page 9 C:IDOCUME II7CHILD-11LOCALS—I1TempIF!NAL RADAKOR EDA 10102006.doc Agreement as of the date of execution of this Agreement. An authorized assignment within the term of this Agreement shall not relieve the DEVELOPER of performance under this Agreement. 10.2 DEVELOPER shall have the right, upon written notice to, but without consent of the CITY, to assign its rights and obligations hereunder to a new Texas limited liability corporation to be formed by DEVELOPER provided that the assignee has a net worth equal to or greater than the DEVELOPER for the purpose of developing the Project in accordance with this Agreement and provides documentation verifying same to CITY. An authorized assignment within the term of this Agreement shall not relieve the DEVELOPER of performance under this Agreement. 10.3 Any assignee must unconditionally agree in writing to assume all rights and obligations under this Agreement. No consent given by CITY to any transfer or assignment of DEVELOPER's rights or obligations hereunder shall be construed as consent to any other transfer or assignment. 11. Invalidity If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the parties. 12. Written Notice All notices required by this Agreement(i) shall be in writing, (ii) shall be addressed to the parties as set forth below unless notified in writing of a change in address, and (iii) shall be deemed to have been delivered either when personally delivered or, if sent by mail, in which event it shall be sent by registered.or certified mail, return receipt requested, three (3) business days after mailing. The addresses of the parties are as follows: To DEVELOPER: RADAKOR,L.L.C. 1710 Droxford Houston, TX 77008 Attn: Randall Klein,Manager Copy to: Dale O'Reilly Manager 10777 Westheimer, Suite 1125 Houston,TX 77042 To CITY: City of College Station Page 10 E:1Eco Dev RadakorlF/NAL RADAKOR EDA 10101006.doc P.O. Box 9960 College Station,Texas 77842 Attn: City Manager Copy to: City Attorney 1101 Texas Avenue College Station,TX 77842 13. Entire Agreement It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings, written or oral, between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer, agent or employee of the CITY,either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 14. Amendment No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of CITY and DEVELOPER. 15. Texas Law This Agreement has been made under and shall be governed by the laws of the State of Texas. 16. Place of Performance Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. Venue shall lie in a court of competent jurisdiction in Brazos County,Texas. 17. Authority to Contract Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective entity. 18. Waiver Page 11 C:IDOCUME 117CNILD-11LOCALS-11TempIF1NAL RADAKOR EDA 10102006.doc Failure of any party, at any time,to enforce a provision of this Agreement, shall in no way constitute a waiver of that provision, nor in any way affect the validity of this Agreement, any part hereof, or the right of the party thereafter to enforce each and every provision hereof. No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. 19. Representation DEVELOPER represents and warrants that no member of the College Station City Council has an interest in the Property, and that the Property is not owned or leased by any member of the College Station City Council. DEVELOPER further represents and warrants that no member of the College Station City Council is under contract either directly or indirectly with DEVELOPER or its agents, contractors or subcontractors. This representation and warranty shall be in effect for the full term of this Agreement. 20. Construction The parties acknowledge that each party and its counsel have reviewed and revised this Contract and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract or any amendments or exhibits hereto. RADAKOR,,d C CITY OF COLLEGE STATION,TEXAS / By: J r Ron ilvia, Mayor Date: /a. - 023-ad A EST: Connie Hooks, City Secretary Date: /Q 3 —v G APPROVED: Page 12 C:IDOCUME I I TCHILD-11LOCALS—I I Templ FINAL RADAKOR EDA 10/01006.doc _96_,c.kay,.....„X.--&---, Glenn$rp , i anager Date: /U j� Jeff I-r•i • of Financial Officer Dat: Iti , -od i'..- ( J 7 44 &J City Attorney Date: • THE STATE OF TEXAS § § ACKNOWLEDGMENT COUNTY OF § Before me, the undersiimed authority, on this day personally appeared lVtndL(I D. Weill Q as 1'Ylit.f'btn q Par+ner of RADAKOR, L.L.C., a Texas Limited Liability Corporation, thlt known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. MM Given under my hand and seal of office on this the )0#1 of V_ 8J , 2006. "•'!Y,�g CEUA HERNANDEZ Notary Public State of Texas Notary Public in-and-1;the 1.h, �.o My Commission Expires °•n„;„, March 30,2008 State of Texas Page 13 C.IDOCUME-117CHILD--IILOCALS-IITempIFINAL RADAKOR EDA 10102006.doc THE STATE OF TEXAS § § ACKNOWLEDGMENT COUNTY OF BRAZOS § Before me, the undersigned authority, on this day personally appeared Ron Silvia, as Mayor of the CITY OF COLLEGE STATION, a Texas home rule municipal corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. �' Given under my hand and seal of office on this then- A f C )/FSC , 2006. MERU[ ) 11DA& NE?I 4404 /4, No1ery PubNc,�IN My es otary Public in an• or the JUNE 19,2009 State of Texas Page 14 C:IDOCUME—IITCNILD—IILOCALS—llTempWINAL RADAKOR EDA 10/01006.doc GRANT AGREEMENT BETWEEN THE CITY OF COLLEGE STATION AND RADAKOR, L.L.C. This Agreement is entered into by and between the CITY OF COLLEGE STATION, TEXAS, a home-rule municipal corporation organized under the laws of Texas (hereinafter referred to as "CITY") and Radakor, L.L.C., a Texas Limited Liability Company (hereinafter referred to as"DEVELOPER"). WHEREAS, CITY is authorized and empowered under applicable Texas law to aid in the development of commercial enterprises and redevelopment projects within the geographic boundaries of the CITY by offering economic and other incentives to prospective new, developing, and expanding businesses; and WHEREAS, CITY actively seeks economic development prospects in College Station through its establishment of an Economic Development Office in College Station and participation in and establishment of other nonprofit economic development corporations; and WHEREAS, CITY has targeted Northgate as a redevelopment district; and WHEREAS, CITY has determined that certain conditions including aging infrastructure, dilapidated structures, and the difficulty in assembling property exist in Northgate that increase development costs and create barriers to redevelopment; and WHEREAS, DEVELOPER is redeveloping properties located within the Northgate District of College Station for use as multi-family, office, commercial, and/or mixed-use developments; and WHEREAS, DEVELOPER has expressed its intent and desire to locate at multiple sites in Northgate; and WHEREAS, CITY provides cash incentives for use in attracting redevelopment projects within the CITY that are qualified economic development prospects; and WHEREAS, CITY considers DEVELOPER to be a qualified economic development prospect that will redevelop property, add capital investment, generate sales tax, and meet the goals of the Northgate Redevelopment Implementation Plan. NOW, THEREFORE, for and in consideration of the premises and mutual covenants and promises hereinafter set forth, the Parties represent and agree as follows: C:IDOCUME-11AGIBBS--I.CST1LOCALS—J\TemplRadakor EDA draft 09-01-06 Canada .._.. _ .•... .. ... .. __ . ! ! :-e:._-.. . ::: Draft#1 12/07/05 1. Definitions For the purposes of this Agreement, when not inconsistent with the context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word"may" is permissive. Words not defined in this Agreement shall be given their common and ordinary meaning. 1.1. Certificate of Acceptance: A certificate issued by the City Engineer stating that the construction conforms to the plans and specifications and the standards contained in or referred to in CHAPTER 9 OF THE CITY OF COLLEGE STATION CODE OF ORDINANCES. 1.2 Certificate of Occupancy: As defined in SECTION 110 OF THE INTERNATIONAL BUILDING CODE,2003 EDITION AS ADOPTED AND AMENDED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION. 1.3 Economic Incentives: Consist of the following: 1.3.1 Cash Incentives: A cash grant to DEVELOPER, not to exceed a total of $900,000.00, to subsidize and incent redevelopment in the Northgate District as more fully described in Sections 2.1 and 3-. 1.3.2 Reimbursement: An amount, not to exceed a total of $40115,000.00, to reimburse DEVELOPER for the actual cost to relocate a wastewater line located between Tauber Street and Stasney Street as more specifically described in Exhibit "A" attached hereto and incorporated herein by reference for all purposes. Such reimbursement shall be made pursuant to the requirements within this Agreement. 1.4 Effective Date: The date on which this Agreement is signed by the last party whose signing makes the Agreement fully executed. 1.5 Project: Redevelopment in the Northgate District by DEVELOPER of Redevelopment Property including the Improvements described in Sections 1.8, 34, and elsewhere herein, consisting of multi-family, retail, office, commercial, and/or mixed-use developments. The Project is comprised of various individual Redevelopment Projects as defined below. DEVELOPER is currently anticipating a total investment in the Project of between $360 million . Page 2 C:IDOCUME-11AGIBBS 1.CSTILOCALS-11TemplRadakor EDA draft 09-01-06 Carla.do ... .. ! . .. . • . . • 1.7 Redevelopment Property: Various tracts of real property owned and to be developed by DEVELOPER as part of the Project, such tracts located in the Northgate District, Zoning Districts NG-1-2-3, in the City of College Station, Texas, as more fully described in the diagram attached hereto as Exhibit "B", and incorporated herein by reference for all purposes. Redevelopment of each tract of Redevelopment Property is referred to herein individually as a "Redevelopment Project". 1.8 Improvements: All enhancements to Redevelopment Property including, but not limited to, Facilities, infrastructure improvements, inventory, supplies, furniture, fixtures and equipment, and assets to be located on Redevelopment Property as part of the Project. 1.9 Facilities: Those structures constructed on Redevelopment Property for which a building permit is required. In order to be defined as a Facility, and be eligible for Cash Incentives as provided in Sections 1.3.1, 2.1, and 3-1I, the Facility must have a minimum building permit value of$500,000.00. The capital investment for the Facilities are described in Section 3.1 hereinbelow. 2. CITY's Incentive Package, Obligations and Representations 2.1. Cash Incentives 2.1.1 CITY agrees to fund an economic development grant to provide Economic Incentives to DEVELOPER as authorized by CHAPTER 380 OF THE TEXAS LOCAL GOVERNMENT CODE (VERNON 2005). The grant will consist of the Cash Incentives specified in Sections 1.3 and 2.1.2 The Cash Incentives will be paid to DEVELOPER as provided in Section 3.2 hereinat a rate of three percent (3%) of the value established on the building permits submitted to the CITY for each Facility.- The total Cash Incentives for the Project shall, under no circumstances, exceed a total of$900,000.00 or three percent(3%) of Thirty Million Dollar($30,000,000.00)building permit valuation. 2.1.3 The payment of Cash Incentives will be granted to DEVELOPER for each Facility on condition that and only after the requirements established in this Section and Sections 3 and 5 hereinbelow as well as any other requirements specified in this Agreement or in any applicable City of College Station Code of Ordinances (collectively, the"Requirements")have been fulfilled by DEVELOPER. 2.1.4 CITY agrees to pay to DEVELOPER the Cash Incentives set forth in this Section and Sections 1.3 and 3.2 within thirty (30) calendar days of satisfaction of the Requirements. 2.2 Reimbursement Page 3 C:IDOCUME-4lAGIBBS--I.CSTILOCALS-11TemplRadakor EDA draft 09-01-06 Carla.do __ . . . .. • . . • no/ 2.2.1 CITY agrees to reimburse DEVELOPER an amount, not to exceed $403,000.00, for the actual cost to relocate a wastewater line located between Tauber / S Street and Stasney Street as more specifically described in Exhibit "A" on condition that and only after the requirements established in this Section and Sections 3 and 5 hereinbelow as well as any other requirements specified in this Agreement or in any applicable City of College Station Code of Ordinances (collectively, the "Relocation etr Requirements")have been fulfilled by DEVELOPER. 2.2.2 CITY agrees to reimburse DEVELOPER the reimbursement set forth in this Section and Section 1.3 as provided below. The total estimated cost of the wastewater line relocation is $ . $40115,000.00. 3. DEVELOPER'S Obligations and Representations 3.1 Capital Investment 3.1.1 In order to qualify for the Cash Incentives specified in Section 1.3, DEVELOPER agrees to: (a) redevelop and obtain Certificates of Occupancy for all Redevelopment Property on or before December 31, 2011. (b) invest a minimum capital investment in the Project of $340 million. (c) construct several Facilities on Redevelopment Property consisting of multi-family, retail, office, commercial, and/or mixed use space. DEVELOPER agrees to -construct a minimum of 25,000 square feet of retail space. (d) The Facilities shall be constructed in accordance with all applicable laws, ordinances, regulations, and rules, including, but not limited to, the Northgate Ordinance attached hereto as Exhibit "C" and incorporated herein by reference for all purposes. The City shall approve all Ffacilities proposed under this agreement based on the Project Plan attached as Exhibit B. 3.1.1In order to qualify for the Cash Incentives specified in Section 1.3, DEVELOPER agrees to: (a) redevelop and obtain Certificates of Occupancy for all Redevelopment Property on or before December 31, 2011. Page 4 C:IDOCUME-11AGIBBS 1.CSTILOCALS 11TemplRadakor EDA draft 09-01-06 Carla.do .•... .. .•... .. _. . . .. . e. 5/22/01 (c) construct several Facilities on Redevelopment Property consisting of multi family, office, commercial, and/or mixed use space. - . • • --•-•-- . -- (i) square feet retail space on or before (ii) square fcct other commercial spacc on or before (iii) square feet office space on or before (v)other??? (d) The Facilities shall be constructed in accordance with all . , _ . . - , : .. "C" and incorporated herein by reference for all purposes. based on the Project Plan attached as Exhibit B. 3.2 Redevelopment 3.2.1 In order to qualify for the Cash Incentives specified in Section 1.3, DEVELOPER must satisfy the Requirements including the following: (a) The Cash Incentive paid on the first $15 million constructed, as determined by the building permit valuations, shall be reimbursed at a rate of three percent (3%) of the value established on the building permits submitted to the CITY for each Facility. in accordance with section 1.3. The remaining Cashprojcct Iincentives shall be paid -only for those Facilities based on the projects containing retail, commercial or office components. A minimum of 25,000 square feet of retail and/-or commercial space shall be constructed as part of the Project. The Cash Iincentive payment-paid after the first$15 million will be calculated as follows: Actual retail space constructed (divided by) Retail Space Committed (multipl the resulting percentage multiplied by) the total tetalremaining building permit valuation for the Pproject total Page 5 C:IDOCUME-11AGIBBS-1.CS7ILOCALS-11TemplRadakor EDA draft 09-01-06 Canada .. .. __ . .. _. 9: . (equals) Cash incentive base (multiplied by) .03 (equals) Amount of payment. Example of formula: [Actual retail space] / [Retail space committed] = [% payment] x [Total remaining project value] = Cash 'Incentive base x .03 = Incentive payment 10,000 SF / 25,000 = 40% x 1530,000,000 = 612,000,000 x .03 = 18360,000 (b) DEVELOPER's receipt of a Certificate of Occupancy for a Facility in a Redevelopment Project; (c) DEVELOPER's receipt of a Certificate of Acceptance issued by the City Engineer for any infrastructure constructed and dedicated to the City by DEVELOPER in the Redevelopment Project; (d) After receipt of Certificate of Occupancy and Certificate of Acceptance, that DEVELOPER opens the Redevelopment Project for business to the general public within thirty (30) calendar days; and (e) DEVELOPER provides to the CITY, for each Facility, a notarized affidavit stating that all bills for labor, materials, and incidentals incurred have been paid in full, that any claims from manufacturers, materialmen, and subcontractors have been released, and that there are no claims pending of which the DEVELOPER has been notified. - - e ' - ' - . . • -- ' -. .• •- . .• . - (a) DEVELOPER's receipt of a Certificate of Occupancy for a Facility (b) DEVELOPER's receipt of a Certificate of Acceptance issued by (c) Aftcr receipt of Certificate of Occupancy and Certificate of Acceptance, that DEVELOPER opens the Redevelopment Project for business to the general public within thirty ( 30) calendar days; and (d) DEVELOPER provides to the CITY, for each Facility, a notarized . _ . . . . . .. , • . - . , . . - • . released, and that there arc no claims pending of which the Page 6 CADOCUME-11AGIBBS-•1.CSTILOCALS-11TemplRadakor EDA droll 09-01-06 Carla.do /OZ '' • 3.3 Wastewater Line Relocation ("Relocation Project") 3.2.1 In order to qualify for the Reimbursement specified in Section 1.3, DEVELOPER must satisfy the Relocation Requirements including the following: (a) The Relocation Project must be competitively bid under SECTION 252.002 et seq. of the TEXAS LOCAL GOVERNMENT CODE as amended. The CITY shall be responsible for advertising and obtaining bids for the relocation and construction of the wastewater line. DEVELOPER shall pay for all costs associated with advertising, printing, and distributing plans and specifications for the Relocation Project; (b) The reimbursement shall be contingent on CITY obtaining and approving a qualified contractor at the sole discretion of the CITY; (c) DEVELOPER will submit to CITY its engineer's plans and cost estimate of the improvements on or before , 200_, for CITY's comments and approval; (d) Final completion of the improvements in accordance with the approved plans; (e) Issuance of Certificate of Acceptance; (f) Dedication of a public utility easement either by plat or by general warranty deed on an easement form approved by CITY; (g) A current title report as of the dated within thirty (30) days of easement dedication or Certificate of Acceptance, whichever occurs later . • - :. - ' - • = • • •• • • Agreement; (h) Lien releases or subordinations from all lenders as required by CITY; and (i) Completion of the Project. 3.2.2 DEVELOPER shall submit a written application for payment within thirty (30) calendar days after eempletion—issuance of Certificate of Occupancy or Certificate of Acceptance for the various completed €acilitiesImprovements covered by this Aagreement.of the Project. CITY will reimbursement actual costs in one payment within thirty (30) calendar days after receipt of a complete written application for payment from DEVELOPER. 4. Term The term of this Agreement is from the Effective Date through December 31, 2012. 5. Reporting Requirements Page 7 C:IDOCUME-144GIBBS-1.CS7ILOCALS-•11TemplRadakor EDA draft 09-01-06 Carla.do - - • - . 5.1. Reports 5.1.1 DEVELOPER shall submit to the CITY any and all information or reports requested to verify that the DEVELOPER has met all obligations as specified in Sections 2 and 3. The submission of these reports and information shall be the responsibility of DEVELOPER and shall be signed by DEVELOPER's general partner. 5.1.2 DEVELOPER shall submit the information and/or reports required herein on or before the day that is ten (10) days after the earlier of: (i) the date the DEVELOPER opens a Facility for business; or (ii) the date on which the information and/or reports are requested in writing by the CITY. If DEVELOPER fails, within thirty (30) days after CITY makes the written request, to submit the information and/or reports, then DEVELOPER shall be ineligible to receive the Economic Incentives specified in Section 1.3 and CITY's obligation to grant the Economic Incentives shall terminate without any liability. 5.1.3 All submittals in this Section shall be to the Director of Economic Development. 6. Compliance with Applicable Laws DEVELOPER will remain in compliance with all applicable laws, rules and regulations including without limitation, all applicable environmental laws, rules and regulations during the term of this Agreement. 7. Default 7.1 DEVELOPER Default 7.1.1 If DEVELOPER defaults in any material term or condition of this Agreement, then CITY shall not be obligated to approve or disburse the Economic Incentives specified under this Agreement unless such default is cured by the defaulting party promptly but not more than thirty (30) days after the occurrence of said default, unless such cure will reasonably take more than thirty (30) days, in which case the CITY shall approve additional time to cure the default upon submission of a plan and schedule to promptly cure the default within a reasonable time, and provided the party commences the cure within a sixty (60) day period. City Manager is authorized to extend the cure period as stated in this Section. In no event shall this Section 7 be construed to extend the time of this Agreement beyond the term specified in this Agreement and the parties acknowledge and agree that a default shall not extend the time for performance or cure beyond the end of the term specified in Section 4. 7.1.2 A material breach by DEVELOPER consists of, but is not limited to, any of the following individual or cumulative events: failure of DEVELOPER to construct Page 8 C:IDOCUME--IIAGIBBS--I.CSTILOCALS--11TemplRadakor EDA draft 09-01-06 Carla.do • - .. ,.5/22/02 the Improvements; failure of DEVELOPER to meet the requirements outlined in Section 3; failure of DEVELOPER to comply with all laws, codes and ordinances relating to the construction of the infrastructure and improvements that constitute the subject matter of this Agreement; failure of DEVELOPER to meet the requirements for the receipt of a Certificate of Occupancy for all Improvements on or before December 31, 2011 failure to have lease space available for lease in all Facilities on or before December 31, 2011; failure to obtain a Certificate of Acceptance for any infrastructure improvements; submittal of any information that DEVELOPER knows or should know is incorrect at the time of its submittal to the CITY; any material misrepresentation of fact concerning the subject matter of this Agreement. 7.1.3 CITY shall give to DEVELOPER written notice of any default of DEVELOPER. If DEVELOPER has not received grant funds, DEVELOPER shall have the right,but not the obligation,to cure the default as provided herein. 7.1.4 Except as expressly set forth in Section 8 of this Agreement, in the event DEVELOPER fails to cure any default under this Agreement within the notice and cure periods set forth in Section 7.1.1 hereof, then CITY's sole and exclusive remedy shall be to withhold payment of the Economic Incentives. In no event shall DEVELOPER be liable to CITY for any consequential damages as a result of any breach or default under this Agreement. 7.2 CITY Default In the event that CITY materially breaches its obligation to disburse the Economic Incentives to DEVELOPER under this Agreement, and Developer is not in default, DEVELOPER, at its option, may terminate this Agreement, and DEVELOPER may thereafter pursue its remedies available at law. In no event shall CITY be liable to DEVELOPER for any consequential damages as a result of any breach or default under this Agreement. If DEVELOPER is in default, DEVELOPER may only terminate this Agreement without further liability. 8. Indemnity DEVELOPER agrees to and shall indemnify and hold harmless and defend CITY, its officers, agents, and employees from and against any and all claims,losses, damages, causes of action, suits, and liability of every kind, including all reasonable expenses of litigation, court costs, and reasonable attorney's fees,for injury to or death of any person,for damage to any property, or its failure to abide by all applicable environmental laws, rules and regulations arising out of or in connection with DEVELOPER's operation and construction of Improvements contemplated by this Agreement. 9. Release Page 9 CADOCUME--114GlBBS-1.CSTILOCALS--11TemplRadakor EDA draft 09-01-06 Carla.do . :• •• ••• - - • DEVELOPER releases, relinquishes and discharges the CITY, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of, any person (whether they be either of the parties hereto, their employees or other third parties) and any loss of or damage to property (whether property of either of the parties hereto,their employees, or of third parties) or their respective failure to abide by all applicable environmental laws, rules and regulations that is caused by or alleged to be caused by, arising out of, or in connection with DEVELOPER's operation of or construction of Improvements contemplated by this Agreement. By entering into this Agreement, the City does not consent to suit, waive its governmental immunity or the limitations as to damages contained in the Texas Tort Claims Act. 10. Assignment 10.1 This Agreement may not be assigned by DEVELOPER without the express consent of the College Station City Council. Assignment for the purposes of this Agreement means any change in ownership in whole or in part. This Agreement shall be binding on DEVELOPER's heirs, assignees, and successors-in-interest. Any assignee must have a net worth equal to or greater than the DEVELOPER for the purpose of developing the Project in accordance with this Agreement as of the date of execution of this Agreement. An authorized assignment within the term of this Agreement shall not relieve the DEVELOPER of performance under this Agreement. 10.2 DEVELOPER shall have the right, upon written notice to, but without consent of the CITY, to assign its rights and obligations hereunder to a new Texas limited liability corporation to be formed by DEVELOPER provided that the assignee has a net worth equal to or greater than the DEVELOPER for the purpose of developing the Project in accordance with this Agreement and provides documentation verifying same to CITY. An authorized assignment within the term of this Agreement shall not relieve the DEVELOPER of performance under this Agreement. 10.3 Any assignee must unconditionally agree in writing to assume all rights and obligations under this Agreement. No consent given by CITY to any transfer or assignment of DEVELOPER's rights or obligations hereunder shall be construed as consent to any other transfer or assignment. 11. Invalidity If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use Page 10 C:IDOCUME—DAGIBBS—I.CSTIOCALS—IlTemplRadakor EDA draft 09-01-06 Carla.do . _ . .. .. ... .. ! ... 5/22/02 their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the parties. 12. Written Notice All notices required by this Agreement (i) shall be in writing, (ii) shall be addressed to the parties as set forth below unless notified in writing of a change in address, and (iii) shall be deemed to have been delivered either when personally delivered or, if sent by mail, in which event it shall be sent by registered or certified mail, return receipt requested, three (3) business days after mailing. The addresses of the parties are as follows: To DEVELOPER: RADAKOR, L.L.C. 1710 Droxford Houston, TX 77008 Attn: Sheila Klein, Manager Copy to: Mary Ann O'Reilly Manager 10777 Westheimer, Suite 1125 Houston, TX 77042 To CITY: City of College Station P.O. Box 9960 College Station, Texas 77842 Attn: City Manager Copy to: City Attorney 1101 Texas Avenue College Station, TX 77842 13. Entire Agreement It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings, written or oral, between the parties relating to the subject matter. No oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer, agent or employee of the CITY, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 14. Amendment No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of CITY and DEVELOPER. Page 11 C:IDOCUME—IIAGIBBS—LCRILOCALS—llTemplEadakor EDA draft 09-01-06 Carla.do .. ••• •• .',: • . .. . . • ::: .•::: .. . . !i I !; : :.:: :.':::.: :5/22/02 15. Texas Law This Agreement has been made under and shall be governed by the laws of the State of Texas. 16. Place of Performance Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. Venue shall lie in a court of competent jurisdiction in Brazos County, Texas. 17. Authority to Contract Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective entity. 18. Waiver Failure of any party, at any time,to enforce a provision of this Agreement, shall in no way constitute a waiver of that provision, nor in any way affect the validity of this Agreement, any part hereof, or the right of the party thereafter to enforce each and every provision hereof No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. 19. Representation DEVELOPER represents and warrants that no member of the College Station City Council has an interest in the Property, and that the Property is not owned or leased by any member of the College Station City Council. DEVELOPER further represents and warrants that no member of the College Station City Council is under contract either directly or indirectly with DEVELOPER or its agents, contractors or subcontractors. This representation and warranty shall be in effect for the full term of this Agreement. 21. Construction The parties acknowledge that each party and its counsel have reviewed and revised this Contract and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Contract or any amendments or exhibits hereto. Page 12 C:IDOCUME-•11AGIBBS-•1.CSTILOCALS-•11TemplRadakor EDA draft 09-01-06 Carla.do . . - • . •• ••••• - " • RADAKOR, LLC CITY OF COLLEGE STATION, TEXAS By: By: Ron Silvia, Mayor Date: ATTEST: Connie Hooks, City Secretary Date: APPROVED: Glenn Brown, City Manager Date: Jeff Kersten, Chief Financial Officer Date: City Attorney Date: THE STATE OF TEXAS § § ACKNOWLEDGMENT COUNTY OF § Before me, the undersigned authority, on this day personally appeared as of RADAKOR, L.L.C., a Texas Limited Liability Page 13 C:IDOCUME-IIAGIBBS•-I.CSTILOCALS-11TemplRadakor EDA draft 09-01-06 Carla.d, _ ••::.-• -- • • • Corporation, and known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office on this the of , 2006. Notary Public in and for the State of Texas THE STATE OF TEXAS § § ACKNOWLEDGMENT COUNTY OF BRAZOS § Before me, the undersigned authority, on this day personally appeared Ron Silvia, as Mayor of the CITY OF COLLEGE STATION, a Texas home rule municipal corporation, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office on this the of , 2006. Notary Public in and for the State of Texas Page 14 CADOCUME-IIAGIBBS-I.CSTILOCALS-•11TemplRadakorEDA draft 09-01-06 Carla.do . ... .. .... .. __ ! !; •_ .