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HomeMy WebLinkAbout02-25-21.3.3 - Resolution - 02/25/2021 RESOLUTION NO. 02-25-21-3.3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, RATIFYING AND APPROVING AN ECONOMIC DEVELOPMENT INCENTIVE BY THE CITY OF BRYAN TO A DEVELOPMENT IN THE BIO-CORRIDOR PROJECT IN ACCORDANCE WITH THE INTERLOCAL COOPERATION AND JOINT DEVELOPMENT AGREEMENT BETWEEN THE CITIES OF BRYAN AND COLLEGE STATION; AND PROVIDING AN EFFECTIVE DATE RECITALS WHEREAS, on November 24, 2020, a Chapter 380 Economic Development Agreement for Lake Walk 380 Agreement the City of Bryan, Texas, a home- rule municipal corporation Bryan Commerce and Development, Inc., a Texas local government corporation created by the City of Bryan pursuant to Chapter 431 of the Texas Transportation Code BCDDevelopersition TAP; and WHEREAS, the 380 Agreement, a copy of which included the recitations and affirmations similar to the following recitations concerning the nature of the economic development taking place at the Lake Walk Innovation Center; and WHEREAS, the Texas Constitution prohibits any city, or other political subdivision, from lending its credit or granting public money to any individual, association or corporation whatsoever without a valid public purpose for doing so, but the definition of public purpose specifically includes economic development and diversification, elimination of unemployment and underemployment, stimulation and growth of agriculture, and the expansion of state transportation and commerce; and WHEREAS, Chapter 380 the provisions of Article III Section 52-a of the Texas Constitution; accordingly Chapter 380 permits the governing body of a municipality to establish and provide for the administration of one or more programs, to promote state or local economic development and to stimulate business and commercial activity within the city limits of the applicable municipality; and WHEREAS, Developer has acquired that certain parcel of land located at 3891 S. Traditions Dr., in the Bio-corridor Planned Development of Bryan, Texas, containing approximately 8 acres and its associated Innovation Center, as more particularly described in the 380 Agreement; and WHEREAS, on December 15, 2011, College Station and Bryan entered into that certain Interlocal BioCorridor ILA and obligations of College Station and Bryan with respect to certain infrastructure projects and a joint economic development program known as the Joint Research Valley BioCorridor Development Project (the BioCorridor Project WHEREAS, the implementation of the 380 Agreement advances the purposes set forth in the BioCorridor ILA, evidenced in part by the following summary of the business plan for the Innovation Center: The Lake Walk Innovation Center is an existing 47,935 s.f. office/fitness campus comprised of two buildings on a four-acre site plus an additional four acres of undeveloped land that was formerly the corporate headquarters of Nutrabolt. This existing corporate campus is the most architecturally striking building in Brazos County and is located within Lake Walk, a master planned community with corporate presence from FUJIFILM Diosynth Biotechnologies, iBio and ViaSat. A successful Public Private Partnership between the Bryan * Commerce and Development, Inc. and Traditions Acquisition Partnership has acquired the building in order to establish an easily accessible, visible and strategically located storefront for innovation, entrepreneurship, invention, technology commercialization and new venture creation. Primary users will be startups and early-stage companies in residence alongside a few technical-oriented local businesses in support of the early-stage companies. Corporations without permanent presence in the Brazos Valley will join as corporate members and provide access to capital and mentoring capabilities while they in turn mine the Innovation Center, Texas A&M and the region for talent and research. The goal is to create a world-class technical job creation factory that produces talent, opportunities, resources, and funding for companies looking to launch and g WHEREAS, Developer is a Target Company as defined in the Biocorridor ILA; and WHEREAS, Article V. of the BioCorridor ILA requires that any economic development incentive to a development within the BioCorridor Project be approved in writing by the other city; and WHEREAS, the 380 Agreement does not include any provision that would reduce the amount of ad valorem taxes assessed or collected in the BioCorridor Project; and WHEREAS, Bryan has requested that College Station adopt a resolution ratifying and approving the 380 Agreement; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: Part 1. Purpose Consistent with the BioCorridor ILA. a. That the Innovation Center Project is being developed to promote the collaboration of professionals from diverse disciplines who will be located in the Innovation Center Project to support the continued development of an international destination for education, research, development, commercialization and production of innovative technologies to improve global health. b. That the purposes of and plans for the Innovation Center Project are consistent with the BioCorridor Project. Part 2. Not Contrary to BioCorridor ILA and No Adverse Impact on Ad Valorem Taxes. a. That the 380 Agreement as approved by the city of Bryan is not contrary to the terms of the BioCorridor ILA. b. That the 380 Agreement does not include any provision that would reduce the amount of ad valorem taxes assessed or collected in the BioCorridor Project. Part 3. That the City Council of the City of College Station does hereby ratify and approve the 380 Agreement. Part 4. of the Biocorridor ILA. Part 5. That this Resolution shall become effective immediately after passage and approval. th ADOPTED this 25 day of February, 2021. APPROVED: APPROVED AS TO FORM: _____________________________ _________________________ Karl Mooney, Mayor Carla Robinson, City Attorney ATTEST: ____________________________ City Secretary EXHIBIT A STATE OF TEXAS§ COUNTY OF BRAZOS§ CHAPTER 380 ECONOMIC DEVELOPMENT AGREEMENT LAKE WALK INNOVATION CENTER This Agreement is entered intoon this ___ day of November, 2020(Effective Date)by and between Bryan Commerce and Development, Inc., a Texas local government corporation created pursuant to Chapter 431 of the Texas Transportation Code(“BCD”), Bryan/Traditions, LP, a Texas limited partnership (“Developer”), the City of Bryan, Texas (“City”) a home rule municipality and Traditions Acquisition Partnership L.P., a Texas limited partnership (“TAP”). RECITALS A.WHEREAS, the Texas Constitution prohibits any city, or other political subdivision, from lending its credit or granting public money to any individual, association or corporation whatsoever without a valid public purpose for doing so, but the definition of public purpose specifically includes economic development and diversification, elimination of unemployment and underemployment, stimulation and growth of agriculture, and the expansion of state transportation and commerce; and B.WHEREAS, Chapter 380 of the Texas Local Government Code (“Chapter 380”) was passed to implement the provisions of Article III Section 52-aof the Texas Constitution; accordingly Chapter 380 permits the governing body of a municipality to establish and provide for the administration of one or more programs, to promote state or local economic development and to stimulate business and commercial activity within the city limits of the City(“Permitted Area”); and C.WHEREAS, Developer is in the process of acquiring that certain parcel of land located at 3891 S. Traditions Dr., in the Bio-corridor Planned Development of Bryan, Texas, containing approximately 8 acres and its associated 47,000 plus square feet of building improvements, formerly known as the “Nutrabolt Building”, as more particularly described in Exhibit “A”, which is attached hereto and incorporated herein for all purposes (“Property”); and D.WHEREAS, the Property’s unique location and architecture provide the potential of attracting and encouraging economic development, support of new and growing businesses, innovation, stimulation of business and commercial activity in the City, andnew venture creation through the development of an incubator/innovation center located on the Property (“Center” or “Project”); and E.WHEREAS, in order to make theCenterviable, Developer is requesting BCD andCity participationin this Project in order to encourage the economic development and job growth that it is expected to create; and F.WHEREAS, the Cityand BCDfind that the costs associated with this Agreement are outweighed by the community benefits to be gained, and that it is in the best interests of the Cityto spur economic development inthe Cityby supporting this Project. 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 1 Now, therefore, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BCD, Developer, TAP,and the City agree as follows: Developer Obligations 1.Acquisition. a.The Property is subject to a commercial contract whereby the current owner, DCMP Real Estate I, LLC has agreed to sell the Property to William Cole, Inc. for the sales price of $9,200,000.00 (“Contract”). b.Immediately upon the execution of this Agreement by all parties the Developer will acquire the Contract from William Cole, Inc. and proceed to purchase the Property in accordance with the terms of the Contract, a copy of which is attached hereto as Exhibit“B”. c.Developer will obtain purchase money financing from First Financial Bank, N.A. (the “Bank”), with the Bank having an office located in the City. d.All costs incidental to this sale, including but not limited to survey costs, title insurance, lien releases, and taxes shall be apportioned as closing costs, and BCD shall not be invoiced separately. 2.Lease of Property. a.Developer will engage a commercial real estate broker to locate tenants for the Project that will advance the image of the City,andshallnegotiate associated leases in accordance with the requirements of this section.Developershall have the authority to enter into Tenant leases of the Project, subject to the terms of this Agreement. Developer shall have the right to set lease terms with each tenant in accordance with a rental rate schedule mutually agreed upon in writing by Developer, City and BCD. Any variation to the approved rental rate schedule shall require written approval of the City and BCD. Tenant leases must include indemnification and insurance requirements satisfactory to the City and BCD. City and BCD shall be named as additional insuredsand indemniteesin all lease agreements. Tenant leases shall be in a form approved by the City and BCD. Variations or modifications to the approved standard tenant lease agreement form shall require approval of the City and BCD. Tenant leases shall prohibit subleasing or assignment of the leaseagreement by the tenant, unless approved in writing in advance by City and BCD. The term of any tenant lease agreements may not exceed five (5) years, unless a longer term is approved by the City Manager as delegated below. b.Developer will occupy the defined areas of the second floorof the Project, as shown in Exhibit “C”,in order to support and encourage economic development,innovation activities,and business and commercial activity in the City. c.Any lease agreement entered into with a TAP Affiliate or Personor legal entity that is or was a TAP memberor is or was a TAP Affiliate or TAP Affiliate memberor principal as of the date of execution of this Agreementor at any time during the term of this 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 2 Agreement,shall require prior written approval by the City and BCD. Developer shall provide City and BCD with a copy of all tenant lease agreements. d.For the purposes of this Agreement, City and BCD herebydelegate approval authority as to the matters contained in Section 2 to the Bryan City Manager. 3.Maintenance and Operations. a.TAP will be responsible for managing the Project, building and the incubator/ innovation activities and uses, and in consideration of those services, TAP will occupy a portion of the Project, notto exceed 6,000 squarefeet,pursuant to the terms and conditions of a lease agreement between the Developer and TAP (“TAP Lease Agreement”), which must be approved in writing by the City and BCD,prior to executionby Developer and TAP.The TAP Lease Agreement will include a requirement that TAP is responsible for the performance of its obligations and the Developer's obligations as set forth in Paragraphs 3 and 4 of this Agreement.Upon the execution of the TAP Lease Agreement, the TAP Lease Agreement shall be incorporated herein as Exhibit “D”as an express amendment to this Agreement. The TAP Lease Agreement may not be assigned or subleased by TAP, without the prior written approval of BCD and City. b. The management services to be provided by TAP shall be expressly set forth in the TAP Lease Agreement and will include arranging for and overseeing collection of rent and other facility use fees on behalf of the Developer, the payment of utilities, and operating expenses, payment of taxes, maintenance and repair of the Project, janitorial services, pest control, and other general building operations functions, parking lot maintenance and repair, grounds maintenance and landscaping, accounting and administrative expenses of the Center, including direct expenses necessary for TAP to carry out its management duties of the Center, and marketing servicesas further defined in the TAP Lease Agreement, which all shall be an expense of the Developer. c.During the term of this Agreement, an annual operating budget for the management and operation of the Centershall be approved annually by Developerand BCD. During the term of the TAP Lease Agreement, TAPshall submit a proposed operating budget("Proposed Operating Budget")to the Developer and to the Bryan City Manager, initially withinsixty (60) days after the Effective Date of the Agreement, and thereafter on or before May 1 of each year. The operating yearshall be for the period commencing on October1 and ending on September 30 of each year during the term of this Agreement("Operating Year"),provided that the first Operating Year shall be a shortened year commencing on the Effective Date and ending on next following September 30, and the last Operating Year shall be a shortened year, ending upon the expiration of this Agreement. The Proposed Operating Budget shall include a monthly detailed line item containing good faith estimates ofall operating expensesincluding, without limitation, the principal and interest payments on the Bank Loan. The Proposed Operating Budget will be agreed upon by Developerand BCD within sixty (60) days of the Proposed Operating Budget being delivered by TAP to Developer andBCD(if approved, herein called the "Operating Budget"). If BCDandDeveloperfail to approvethe Operating 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 3 Budgetwithin the sixty (60) day period,TAPshall continue to managethe Centerin accordance with standards set forth in this Agreement at a level of expenditures comparable to those of the proceeding year’s annual operating budget. d.TAPwill establish and maintain an operating account in Developer’s name at a bank of Developer’s’s choosing (the “Operating Account”) for the purposes of accepting daily deposit of gross revenues from the operation of the Project. e.TAPshall comply with the approved Operating Budget. On an annual basis, expenditures in aggregate in excess ofthe approved Operating Budget shall not be eligible for reimbursement nor shall they be funded by a Grant from BCD, unless a budget amendment is approved in advance by the City Manager, or the expenditure is an Emergency Expenditure as defined herein. TAPshall immediately notify the Developer and the City Manager in the event TAPhas reason to believe the Operating Expenses will exceed the approved Operating Budget.TAPwill provide the Developer and the City Manager justification or explanation for the budget variance. TAP, upon the City Manager'swritten approval of a budget amendment, is entitled to make additional expenditureswhichshall be eligible for reimbursement or may be funded by a Grant from BCD.Emergency expenditureshall mean an expenditurenecessary to correct or repair a condition, that in the reasonable judgment of TAP,if not corrected or repaired immediately, would create at the Center an imminent danger to person or property, and there is not time to obtain the written permission of theDeveloper and the City Manager.TAPagrees to promptly notify the Developer and the City Manager in writing within 24 hours of any event causing an Emergency Expenditure. 4.Books, Records, and Financial Reports. a.TAPshall keep separate, full and accurate books of account and such other records as are necessary to reflect the operation of the Center . All accounting records shall be maintained in accordance with generally accepted accounting principles. All such books, records, and reports shall be maintained separately from other business activities operated by TAP.TAPagrees to maintain reasonable and necessary accounting, operating, and administrative controls relating to the financial aspects of the Center and such controls shall provide checks and balances designed to protect Bryan Traditions, LP, TAP, BCD and City. TAP and Developershall maintain all financial and accounting books and records for a period of at least five (5) years after the expiration or earlier termination of this Agreement, and City and BCD shall have the right to inspect and audit such books and records during such period. b.Upon seven (7) days prior written notice to TAP, which notice shall set forth the reasonable date and time that BCD or City desireto inspect the books and records, BCD, City or theirauthorized agents, auditors, or representative shall have the right during normal business hours to review, inspect, audit, and copy the books, records, invoices, deposit receipts, canceled checks, and other accounting and financial information maintained by TAPin connection with the operation of the Center. All such books and records shall be made available toBCD and Cityat TAP’s office in the Center, unless Cityand TAPagree upon another location. City and BCD, at theirown 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 4 expense, shall have the right to retain an independent accounting firm to audit the books and records of the Centerfrom time to time. c.During the term of this Agreement, within thirty (30)days of the end of each month, TAPshall prepare a Monthly Report of all gross revenues collected by TAP. The monthly report shall also include all categorized operating expenses associated with the Center. The Monthly Report shall compare budget, actuals, and the previous year amounts. d.Each year on the anniversary of the Effective Date of this Agreement the Developer will certify to the City,BCD, and the Bankthat it is in compliance with each provision of thisAgreement. 5.Operating Costs and Note Payments. a.Beginning with the first full month following the sixtieth (60th) month after the Effective Date of this Agreementand continuing each month thereafter during the Term of the th Agreement, TAP will pay on the thirtieth (30) day of each calendar month thereafter, an amount equal to 30% of the operating expense deficits andprincipal and interest payment deficitsfor the precedingmonthinto the Operating Accountto cover the deficit. For the purposes of this Agreement, the term “deficit”shall mean the negative differential between the combined total of the monthly budgeted operating costs and monthly principal and interest payment obligationsand the gross revenues received anddeposited in the Operating Account in any given month during the term of the Agreement. “Gross revenues”shall mean the sum of all rent, building use fees, expense reimbursements and other revenue paid to the Developerfor the use and occupancy of the Property. 6.Grant Reimbursements. The Developer will pay to BCD a "Preferred Return on Grant" consisting of 5% on an annualized prorata basis of the amount of any unreimbursed Grant Paymentsmade to Developer by BCDpursuant to provisions for Distributions below. The Preferred Return on Grant will be added to the balance of unreimbursed Grant Payments, and distributed as provided for in the Distributions provisions below. BCD’s Obligations. 7.Grant Payments.The term “Grant Payment(s)” or “Grant(s)” shall mean an amount of money to be paid by BCD to Developer, from time to time, pursuant to the terms of this Agreementandas an economic development program allowable under Chapter 380. 8.Grant Reserve Fund.BCD will deposit the sum of $300,000 into an operating account owned and controlled by the Developer as a “Grant Reserve Fund” out of which future Grants described below will be funded. On a quarterly basis BCD will replenish the Grant Reserve Fund so that the balance of the Grant Reserve Fund at the beginning of the applicable quarter will be equal to or greater than the estimated costs to be funded by Grants during the following quarter. 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 5 9.Acquisition of Property. a.Immediately following the approval and execution of this Agreement, BCD will make a Grant Payment by delivering to South Land Title Company (GF No. BC2009384) a wire in the amount of $100,000.00 to replace the earnest money that was deposited by William Cole, Inc. at South Land Title Company pursuant to the terms of the Contract, and at the same time, William Cole, Inc. will deliver to South Land Title Company an assignment of the Contract to the Developer, and the earnest money currently on deposit with South Land Title Company will be released to William Cole, Inc. b.BCD will provide a Grant for the down payment on the purchase of the along with all closing costs associated with the closing as reflected on the closing settlement statement approved in advance by BCD. 10.Grant for Distributable Cash Flow from Operations. a.Within thirty (30) days following each calendar month hereafter,to the extent that DistributableCash Flow fromOperationsis negative,BCD will provide a Grant to the Developer in an amount necessary to cover the deficits. b.The Bank (being an express third party beneficiary hereof) may enforce the obligations of BCD under this section. For the avoidance of doubt, BCD’s obligations under this Agreement (including but not limited to this Section 10) are each fully recourse obligations of BCD and not limited to income derived from the Property or the Project except as expressly provided in sections entitled “Distributable Cash Flow from Operations” and “Distributable Cash Flow from Capital Events”. 11.Distributable Cash Flow from Operations. The term “Distributable Cash Flow from Operations” shall mean the sum of all rent, building use fees, expense reimbursements and other revenue paid to the Developer for the use and occupancy of the Property less principal and interest payments on the purchase money loan, operating expenses for utilities, taxes, insurance, maintenance, capital improvements, other operating costs, and reasonable reserves established by the Developer for future operations. 12.Distributions of Distributable Cash Flow from Operations.On a quarterly basis, within thirty (30) days following the end of each calendar quarter hereafter,the Developer shall disburse any Distributable Cash Flow from Operations as follows: a.First, 100% of distributions to BCD until all of BCD's aggregate unreimbursed Grant is reduced to $0.00. b.Then 100% of distributions to TAP until all of TAP’s aggregate contributions to fund its 30% share of deficit funding as outlined in Paragraph 5ahave been returned to TAP, and all of its paid budget variances as outlined in Paragraph 3.ehave been returned to TAP. c.Then 70% to BCD and 30% to TAP, pursuant to the terms and conditions of the Partnership Amendment as herein defined. 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 6 d.No Distributable Cash Flow from Operations shall be distributed at any time an amount remains unpaid for payments then due on the Bank loan, whether as regularly scheduled payments or if payments thereon are accelerated. 13.Partnership Amendment.Contemporaneous with the approval and execution of this Agreement, TAP and BCD shall enter into an amendment (“Partnership Amendment”) to the Amended and Restated Agreement of Limited Partnership of Bryan/Traditions, L.P. dated February 25, 2009 (“Partnership Agreement”) by which the provisions of this Agreement concerning Distributions of Distributable Cash Flow from Operations shall be incorporated into the Partnership Agreement, and shall remain in effect so long as there remains any unpaid or unreturned Grant Payments. The Partnership Amendment shall provide that all distributions from Distributable Cash Flow from Operations shall be distributed as herein described. 14.Distributable Cash Flow from Capital Events. The term “Distributable Cash Flow from Capital Events” shall mean net cash flow from the sale ofall or any portion of the Property less deducting any partial release or full release payment required by the Bankloan; and after deducting any expenses, fees, commissions or closing costs related to the capital event, and deducting any reasonable reserves established by the Developer for future operations.Notwithstanding any provision of this Agreement or the Partnership Agreement to the contrary, no portion of the Property or Project may be sold by Developer without the prior written approval of the City and BCD; subject, however, to the right of the Bank to seek foreclosure or a deed in lieu of foreclosure pursuant to the terms of its deed of trust. 15.Distributions of Distributable Cash from Capital Events. Within thirty (30) days following the receipt of any Distributable Cash Flow from Capital Events, the Developer shall disburse any Distributable Cash Flow from Capital Events as follows: a.First, 100% of distributions to BCD until all of BCD's aggregate unreimbursed Grant has been is reduced to $0.00. b.Then 100% of distributions to TAP until all of TAP’s aggregate contributions to fund its 30% share of deficit funding as outlined in Paragraph 5.ahave been returned to TAP, and all of its paid budget variances as outlined in Paragraph 3.ehave been returned to TAP. c.Then 70% to BCD and 30% to TAP, pursuant to the terms and conditions of the Partnership Amendment as herein defined. d.No Distributable Cash Flow from Capital Events shall be distributed at any time an amount remains unpaid for payments then due on the Bank loan, whether as regularly scheduled or if payments thereon are accelerated. 16.Partnership Amendment. Contemporaneous with the approval and execution of this Agreement, TAP and BCD shall enter into the Partnership Amendment as above described, by which the provisions of this Agreement concerning Distributions of Revenue from Capital Events shall be incorporated into the Partnership Agreement, and shall remain in effect so long as there remains any unpaid or unreturned Grant Payments. The 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 7 Partnership Amendment shall provide that all distributions from Revenue from Capital Events shall be distributed as herein described. City’s Obligations 17.Assurance of Performance.Subject to Section 18 hereof, the City shall fund BCD in an amount necessary for BCD to meet its obligations under this Agreement. 18.Funding. This Agreement is subject to annual appropriation for same by the City Council. All funds to be paid by the City are payable from lawfully available funds. Term, Breach, & Termination 19.This Agreement shall have a term of twelve (12) years following the closing on the acquisition of the Property and the simultaneous funding of the Bank loan. 20.If the Developer or TAP fails to comply with any provision of this agreement, BCD may notify Developer of the breach in writing, at which point Developer shall have thirty (30) days to cure same. If the breach cannot be reasonably cured within thirty (30)days, the parties may agree in writing to a longer period of time to cure. Failure to timely cure such a breach shall be an event of default, and BCD and City may terminate this Agreement. other than its obligations directly to, or for the benefit of, the Bank. 21.If Developer or TAP is in default on this Agreement, and has failed to cure such default in accordance with the preceding paragraph, in addition to other remedies available in equity or at law, BCD may take possession, ownership and control of the Property(and therefore the Project),but only after complying with the following procedures: a.BCD and the Bank shall enter into an assumption agreement whereby BCD assumes the obligations of the Developer to the Bank pursuant to the purchase moneyloan/Bank loan; b.Upon receipt of evidence that the Developer will be released from the obligations of the purchase money loan the Developer will execute and deliver to BCD a special warranty deed and other necessary documentation to transfer the Property to BCD. c.The Developer’s right to occupy any portion of the Property will terminate upon delivery of the special warranty deed. d.BCD will honor all then existing third-party leases that are not in default and are compliant with the terms of this Agreement, with the exception that any lease agreement with TAP or a TAP Affiliate (including,members of TAP, entities owned by or controlled by TAP, and any members or principals of TAP Affiliates as of the date of execution or that come into existence duringthe term of this Agreement) shall automatically terminate upon thetermination of this Agreement. Miscellaneous 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 8 22.Notices.Any notices sent under this Agreement shall be deemed served when delivered via certified mail, return receipt requested to the addresses designated herein or as may be designated in writing by the parties: If to BCD:Bryan Commerce and Development, Inc. P.O. Box 1000 Bryan, Texas 77805 If to Developer:Bryan/Traditions, LP Attn: Spencer Clements 4250 South Traditions Drive Bryan, TX 77807 If to TAP:Traditions Acquisition Partnership, L.P. Attn: Peter Currie 4250 SouthTraditions Drive Bryan, TX 77807 If to City:City Manager City of Bryan P.O. Box 1000 Bryan, Texas 77805 If to the Bank:First Financial Bank, N.A. c/o Austin Bryan 1716 Briarcrest Drive, Suite 400 Bryan, Texas 77802 23.Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective while this Agreement is in effect, such provision shall be automatically deleted from this Agreement and the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby, and in lieu of such deleted provision, there shall be added as part of this Agreement a provision that is legal, valid and enforceable and that is as similar as possible in terms and substance as possible to the deleted provision. 24.Texas law to apply. This Agreement shall be construed under and in accordance with the laws of the State of Texas and the obligations of the parties created hereunder are performable by the parties in the City of Bryan, Texas. Venue for any litigation arising under this Agreement shall be in a court of appropriate jurisdiction in Brazos County, Texas. 25.Sole Agreement. This(and, as to the Developer, the documents evidencing the Bank Loan) Agreement constitutes the sole and only Agreement of the Parties hereto respecting the subject matter covered by this Agreement, and supersedes any prior understandings or written or oral agreements between the parties. 26.Amendments.No amendment, modification or alteration of the terms hereof shall be binding unless the same shall be in writing and dated subsequent to the date hereof and duly executed by the parties hereto. 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 9 27.Rights and Remedies Cumulative.The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by either party shall not preclude or waive its right to use any and all other legal remedies. Said rights and remedies are provided in addition to any other rights the parties mayhave by law, statute, ordinance or otherwise. 28.No Waiver.City’s failure to take action to enforce this Agreement in the event of Developer default or breach of any covenant, condition, or stipulation herein on one occasion shall not be treated as a waiver and shall not prevent City from taking action to enforce this Agreement on subsequent occasions. 29.Incorporation of Recitals. The determinations recited and declared in the preambles to this Agreement are hereby incorporated herein as part of this Agreement. 30.Incorporation of Exhibits.All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. 31.Headings.The paragraph headings contained in this Agreement are for convenience only and do not enlarge or limit the scope or meaning of the paragraphs. 32.Duplicate Originals. The parties may execute this Agreement in duplicate originals, each of equal dignity. If the parties sign this Agreement on different dates, the later date shall be the effective date of this Agreement for all purposes. 33.Gender and Number.Words of any gender used in this Contract 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. 34.Assignment.This Agreement shall be binding on and inure to the benefit of the parties to it and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. This Agreement may not be assigned by Developer without the prior written consent of the City and BCD. 35.No Joint Venture. Nothing contained in this Agreement is intended by the parties to create a partnership or joint venture between the parties with respect to this project, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not create a joint enterprise, nor doesit appoint either party as an agent of the other for any purpose whatsoever. Except as otherwise specifically provided herein, neither party shall in any way assume any of the liability of the other party for acts or obligations of the other party. 36.380 Agreement.This Agreement is an agreement under the authority of Chapter 380of the Texas Local Government Code, and is not a contract for services. 37.Bank as Express Third Party Beneficiary. The Bank is hereby made an express third party beneficiary of this Agreement. The Bank shall have the right, acting in its own capacity and not on behalf of the parties hereto, to enforce the obligations of each of BCD, the Developer, the City and TAP. Any recovery made by the Bank shall be used in payment of the Bank loan. 38.Definition of Affiliate and Person. “Affiliate” of any Person means any other Person directly or indirectly controlled by or under direct or indirect common control with such Person. As used in this definition, the term "control,""controlling" or "controlledby" shall mean the possession, 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 10 directly or indirectly, of the power either to (i) vote fifty-one percent (51%) or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such Person or (ii) direct or cause the direction of the actions, management or policies of such Person, whether through the ownership of voting securities or interests, by contract or otherwise, excluding in each case, any lender of such Person or any Affiliate of such lender.” “Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental entity or any other formof entity. Executed and effective on this the ____ day of _______________, 2020. CITY OF BRYAN APPROVED AS TO FORM: _____________________________ _________________________ Andrew Nelson, Mayor Janis K. Hampton, City Attorney 11/24/2020 Date: ________________________ ATTEST: ____________________________ Mary Lynne Stratta, City Secretary 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 11 GRANTOR: BRYAN COMMERCE ANDDEVELOPMENT, INCORPORATED, aTexas localgovernment corporation By: Andrew Nelson, President ATTEST: MARY LYNNE STRATTA, City Secretary APPROVED AS TO FORM: JANIS HAMPTON, City Attorney 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 12 BRYAN/TRADITIONS, LP, a Texas limited partnership By:Traditions Acquisition Partnership GP, LLC, a Texas limited liability company, its General Partner By: W. Spencer Clements, Jr., Vice President 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 13 Traditions Acquisition Partnership GP, LLC,a Texas limited liability company By:_________________________________ Name:Peter H. Currie Title:President 33549: Lake Walk Innovation 380 Agreement 11-23-20 v2.docxPage 14 Exhibit "A" Legal Description of Real Property Being all that certain lot, tract or parcel of land lying and being situated in Brazos County, Texas and being Lot One (1), Block One (1), THE TRADITIONS SUBDIVISION, PHASE 22, an addition in the City of Bryan, Texas, according to plat recorded in Volume 11143, page 276, Official Records of Brazos County, Texas. Survey Attached on Next Page EXHIBIT A Fitness Equipment {00702520}33549:Fourth Amendment 103020 {00702520}33549:Fourth Amendment 103020 {00702520}33549:Fourth Amendment 103020