HomeMy WebLinkAboutC2009-312 - 5/12/2009 - Approved~~
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FINANCING AGREEMENT
This A reement "A reement" is made and entered into as o f Ma ~ ~ , 2009 the
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"Effective Date"}, by and among the City of Corpus Christi, Texas, ahome-rule municipal
corporation the "Cit,~"} and Parkdale Shopping Center the "Develo er"}, comprised of R-SB
STAPLESISPID, LLC, a Texas limited liability company, JJQ-PARKDALE, LLC, a Texas
limited liability company, H~JQ PD, LLC, a Texas limited liability company, and w-SB
STAPLESISPID DE, LLC, a Texas limited liability company, as tenants in common.
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WHEREAS, the Developer desires to redevelop the retail center generally known as
Parkdale Plaza as more particularly described in the conceptual plan for the project attached
hereto as Exhibit A the "Project" being comprised of at least 50,000 square feet, with an
ultimate goal of approximately 58,000 square feet of retail center improvements, exclusive of the
tract being conveyed for a large discount center, as more particularly defined below}, in Corpus
Christi, Texas; and
WHEREAS, the City has established a program in accordance with Article III,
Section 52-a of the Texas Constitution and Chapter 380 of the Texas Local Government Code
~"Chapter 3 8Q"} under which the City has the authority to make loans or grants of public funds
for the purposes of promoting local economic development and stimulating business and
commercial activity within the City; and
WHEREAS, the City has concluded and hereby finds that this Agreement promotes
economic development in the City o f Corpus Christi and, as such, meets the requirements under
Chapter 380 and the City's established economic development program, and, further, is in the
best interests of the City and Developer; and
WHEREAS, the City recognizes the positive economic impact that the Pro ject will bring
to the Cit throw h the elimination of blight and substandard building conditions, development
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and diversif cation of the economy, reduction of unemployment and underemployment through
the production of new. jobs, the attraction of new businesses, and the additional ad valorem and
sales and use tax revenue generated by the Project for the City; and
WHEREAS, the Project redevelops existing infrastructure and will make a unique
contribution to the redevelopment efforts in the City, eliminate blight and substandard building
conditions, improve traff c circulation, and enhance the aesthetic value of the development; and
WHEREAS, the Developer will finance, design and construct the Project as contemplated
in this Agreement; and
WHEREAS, in consideration of the redevelopment of the retail center site into the
Project as described above and the generation of new Sales Tax Revenues and Property Tax
A P.tpr~~~~ ~~„ a ~ry -' '- ~ -°in} for the City, the City agrees to use such funds in order to provide
2009-312
M2009-127
05/12/09 ~~~~~p
Parkdale Shopping Cntr.
the Reimbursement Amount has defined herein} to the Developer directly in the amount
described in Article IV of this Agreement; and
WHEREAS, consistent with Article III, Section 52-a of the Texas Constitution, Chapter
380 and other law, City and the Developer agree to work together to cause the public purpases of
eliminatin blight, developing and diversifying the economy of the state, reducing
unemployment or underemployment in the state, and developing or expanding transportation or
commerce in the state; and
WHEREAS, to ensure that the benefits the City provides under this Agreement are
utilized in a manner consistent with Article III, Section 52-a of the Texas Constitution, Chapter
3 80 and other law, the Developer has agreed to comply with certain conditions for receiving
those benefits, including performance measures relating to job creation, Project operations, and
the Kirin of local and disadvantaged businesses for the construction of the Project; and
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WHEREAS, the City and the Developer desire to enter into this Agreement for their
mutual benefit;
NOVL~, THEREFORE:
AGREEMENT
For and in consideration of the foregoing recitals and of the mutual promises, obligations,
covenants and benef is herein contained, City and the Developer contract and agree as follows:
ARTICLE I
GENERAL TERMS
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Section 1.01 Inco oration of Recitals. The recitals to this Agreement are hereby
incorporated for all purposes.
Section 1.02 Definitions and Terms. The terms "A reement " "Chapter 3 8~a" "C~,"
"Devela er " "Effective Date," and "Project" shall have the above meanings, and the following
terms have tie following meanings:
"Base Pro ert Tax" shall mean approximately $1,926,583, based an the amount of ad
valorem taxes levied and collected by the City on the Property based on its use and valuation as
of January 1, 2008, sub ject to the City's confirmation.
"Base Sales Tax" shall mean $51,242, based on taxable sales from the Project during
2008, subject to the City's confirmation.
"Cit Commitment" is defined in Article IV.
"Commencement Date" is defined as on or before December 31, 2009.
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"Completion" shall mean the completion of a minimum of 50,400 square feet of
commercial s ace com risin the Project and the Im rovements generally as described in
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Exhibit B.
"Completion Deadline" shall mean no later than December 31, 2412.
"Com letion Threshold" shall mean achieving the Project's Completion in order to
obtain a maximum City Commitment of $1,604,400 for a portion of the Improvement Costs as
described in Exhibit C.
"Fiscal Year" shall mean the twelve consecutive month period designated by the City as
its fiscal year. As of the date of this Agreement, the City's fiscal year commences on August 1
and ends on the next succeeding July 31.
"Gross Floor Area" shall mean the sum, in square feet, of the gross horizontal areas of a
building measured from the exterior faces of the exterior walls or from the centerline of walls
separating two buildings, but not including:
~1}Attic space providing headroom of less than seven feet;
~2}Basement space not used for retailing;
~3}Uncovered steps or fire escapes;
~4} Accessory water towers or cooling towers;
~5}Accessory off street parking spaces; and
~6} Accessory o ff street to ading berths.
"Im rovements" shall mean and include the improvements associated with the Project as
described in the Exhibit B, the costs of which are described on Exhibit C to this Agreement.
"Letter of Acce tance" shall mean a certificate of the City certifying the completion of all
or a portion of the Improvements constructed by or under the supervision of the Developer in
accordance with the applicable plans and regulations.
"Maximum Cit Commitment" shall mean the largest commitment due by the City to the
Developer as determined in Article IV, which is $1,600,000 for a portion of the redevelopment
Improvement Costs as described in Exhibit C.
"Parkdale Plaza" shall mean the Project location South Staples and Gollihar Streets in
Corpus Christi, Texas.
"Parties" or "Part 'shall mean the City and the Developer, the parties to this
Agreement.
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"Pr_ o~ i ct" shall mean a minimum o f 5 0, 000 square feet o f co mmercial space and the
Improvements as described herein.
"Pro ert "shall mean the real property on which the Project will be built, as described in
Exhibit D attached hereto.
"Property Tax Revenues" shall mean 70% of the City ad valorem taxes generated from
the land and im rovements com risin the Project and collected by the City in each Fiscal Year,
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above the Base Property Tax, during the term of this Agreement.
"Reimbursement Amount" shall mean the maximum City Commitment of $1,600,000 to
defra a ortion of the Improvement Costs as described in Exhibit C to be paid through the
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Pro ert Tax Revenues and Sales Tax Revenues. The Reimbursement Amount shall not be
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a able out of any: (i} municipal ad valorem taxes generated by personal property included in
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the Project; iii} sales and use taxes received by the City for came control and prevention or
ursuant to Sections 4A or 4B of the Development Corporation Act; viii} hotel or motel taxes
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enerated from the Project; and Div} utilities revenues and other fees collected by the City from
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the Project.
"Reimbursement Account" shall mean the special fund created by the City as described
in section 4.01 ~A} of this Agreement.
"Relocations" sha11 mean:
A Each and every retailer that has relocated from an existing location within the
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Cit to the Project, if ~i} it operated a Retail store m the corporate limits of the City within three
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ears immediatel receding opening of its new Retail store m the Protect; and ~1~} ~t closes that
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store within three years immediately following opening of its new Retail store m the Protect. In
the event that the new store in the Project is larger than its closed store, the percentage of Gross
Floor Area as such term is defined herein} which represents the increase shall not be considered
art of the Relocation but shall be treated as new stare sales. In the event that the retailer's new
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store in the Project is smaller than its closed store, no adtustment shall be made.
B - In the event a retailer opens an additional store, but the original store closes
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within the three- ear eriod, the retailer will not be considered a Relocation ~f the City Council
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of the Cit determines in its reasonable discretion that either: ~i} the store closure was due to
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economic circumstances not related to the opening of the Protect; iii} the retailer opens a
com arable store at another location elsewhere in the City; or viii} the space vacated by the
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retailer is leased to a com arable retailer. The Developer will cooperate with the City so that no
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relocation retailer establishes a Retail outlet m the Protect unless the retailer cooperates upon the
re nest of its former landlord to release its former space. Notwithstanding the foregoing, a
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small business retailer may relocate to the Protect and not be considered as a R
"small business retailer" is defined as a single retailer having 10 or fewer employees and not
occu in amulti-tenant facility within the corporate limits of the City.
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C The calculation of Relocations shall commence upon the Project Completion at
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the Com letion Threshold. The City and the Developer agree to seek an agreement with the
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State Com troller concerning the categorization of Sales Tax Revenues for compliance with
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these rovisions. Alternatively, the Developer will require actual sales information from all
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stores which are Relocations, and the sales and use taxes from the actual sales shall be subtracted
from the total Sales Tax Revenues. The Developer agrees to exercise reasonable efforts to obtain
actual sales and use tax information from each store which is a Relocation, and to provide such
information to the City promptly upon the Developer's receipt thereof. In the event that the
arties are unable to obtain actual sales information for the Relocation stores, the amount of sales
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shall be determined on a proportionate bass utilizing the Gross Floor Area of the store
excludin an increase in size from the closed location} compared to the Gross Floor Area of
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Retail space in the entire Project as completed on the date of such calculation.
D} The Developer shall furnish to the City an annual report each year identifying any
new tenants at the Project and whether or not any tenants at the Project are Relocations as
described herein. For any tenants which are Relocations, the Developer shall set out the number
of s ware feet occu led by such tenant in the Project, the number of square feet occupied by such
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tenant at its rior facility, the sales tax identif cation number for the tenant, and whether any
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factors exist warrantor the City Council s determination that such tenant should be excluded
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from being considered as a Relocation under this provision.
"Retail" shall mean the use of a facility for the sale of goods to consumers, a facility for
the rovision of services to consumers, a facility for the sale and service of food or beverages to
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consumers, or a facility providing entertainment to consumers.
"Sales Tax Revenues" shall mean 70% of the City one-cent sales and use taxes generated
from the Project and remitted to the City by the Comptroller of the State of Texas, above the
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Base Sales Tax in each Fiscal Year during the term of this Agreement, and exclusive of any
sales and use taxes enerated firom Relocations. The Sales Tax Revenues generated by
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Relocations in the Project shall first be subtracted from the total City sales and use taxes so that
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the amount of Sales Tax Revenues to be applied toward the Reimbursement Amount will be
a lied onl to the net new amaunt of Sales Tax Revenues generated by the Project.
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"State Com troller" shall mean the Comptroller of Public Accounts for the State of
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Texas or such other a ency responsible for collecting sales and use taxes w~th~n the State of
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Texas and remitting them to the City.
Section 1,03 Sin ular and Plural. words used herein in the singular, where the context
so ermits also include the lural and vice versa. The definitions of words in the singular herein
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also a 1 to such words when used in the plural where the context so permits and vice versa.
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ARTICLE II
REPRESENTATIONS
Section 2.01 Re resentations of the Cit .The City hereby represents to the Developer
that as of the date hereof:
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The City is a duly created and existing municipal corporation and home rule municipality
of the State of Texas under the laws of the State of Texas and is duly qualified and authorized to
carry on the governmental functions and operations as contemplated by this Agreement.
The City has the power, authority and legal right under the laws of the State of Texas and
the Cit Charter to enter into and perform this Agreement and the execution, delivery and
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erformance hereof ~i} will not, to the best of its knowledge, violate any applicable judgment,
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order, law or regulation, and iii} do not constitute a default under, or result in the creation of, any
lien, charge, encumbrance or security interest upon any assets of the City under any agreement or
instrument to which the City is a party or by which the City or its assets may be bound or
affected.
This A regiment has been duly authorized, executed and delivered by the City and,
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constitutes a le al, valid and binding obligation of the City, enforceable in accordance with its
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terms exce t to the extent that ~i} the enforceability of such instruments may be limited by
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bankru tc ,reor anization, insolvency, moratorium or other similar laws of general application
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in effect from time to time relating to or affecting the enforcement of creditors' rights and
ii certain equitable remedies including specific performance may be unavailable.
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The execution, delivery and performance of this Agreement by the City do not require the
consent or approval of any person which has not been obtained.
Section 2.02 Re resentations of the Develo er. The Developer hereby represents to the
City that as of the date hereof:
The Develo er is comprised of entities that are duly authorized and existing and in good
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standin under the laws of the State of Texas and are qualified to do business in the State of
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Texas.
The Develo er has the power, authority and legal right to enter into and perform its
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obli ations set forth in this Agreement, and the execution, delivery and performance hereof, ~i}
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have been dui authorized, and will not, to the best of its knowledge, violate any judgment,
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order law or re ulation a licable to the Developer, and ~11} do not constitute a default under or
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result in the creation of, an lien, charge, encumbrance ar security interest upon any assets of the
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Develo er under an a regiment or instrument to which the Developer is a party or by which the
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Developer or its assets may be bound or affected.
The Develo er will have suff cient available funds to perform its obligations under this
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Agreement at the time it needs to have the funds.
This A regiment has been duly authorized, executed and delivered and constitutes a legal,
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valid and bindin obligation of the Developer, enforceable in accordance with its terms excep
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the extent that +rfi1r the enforceability of such instruments may be limited by bankruptcy,
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reor anization insolvenc ,moratorium or other similar laws of general application in effect
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from time to time relatin to or affecting the enforcement of creditars rights and ~ii} certain
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e uitable remedies including specific performance may be unavailable.
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ARTICLE III
DEVELOPER COMMITMENTS
Section 3.01 Project.
A The Developer agrees to commence the development of the Project by the
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Commencement Date and reach Completion of the development and construction the Project by
the Com letion Deadline. The Developer shall pay, or cause third parties to pay, all engineering,
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tannin ,accounting, architectural, legal fees and expenses, survey, testing, laboratory costs,
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license fees land clearin and grading costs, advertising and other bidding costs, amounts due
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under construction contracts, costs of labor and material, insurance premiums, interest, financing
fees and other costs and expenses incurred in connection with the construction of such
im rovements as set forth in Exhibit C attached hereto. The Developer shall provide reasonable
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evidence of ex enditures of private capital by the Developer or by third parties for the
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im, rovements to the Project in the amounts required for the Completion Threshold. The City
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shall not be res onsible for any of such costs out of its current revenues or other sources, except
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in accordance with a ment to the Developer for the costs of the Improvements in the
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Reimbursement Amount as provided in this Agreement.
B The Develo er agrees to assist the City, if so requested by the City, in the
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re aration of an documentation necessary for the preparation and approval of any of the
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documents or actions re uired by the City to perform any of the obligations under this
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A eement. The Develo er further shall prepare or cause to be prepared any preliminary
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architectural or en ineering plans and financial data and projections reasonably necessary to
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erform the obli ations of the City under this Agreement. The Developer agrees to proceed in
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ood faith towards the development of the Project. Upon Completion of the Project an g
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the term of this A reement, the Developer shall maintain the property, improvements and
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emises in a cammerciall reasonable manner, comparable to the maintenance of similar retail
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establishments; and shall timely pay all taxes assessed against the property.
Section 3.02 Job Creation. The Developer's receipt of the Reimbursement Amount is
sub'ect to the followin commitment the "Jobs Re uiQ cement"}: the Developer agrees to
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construct the Project and demonstrate no later than twelve X12} months-after Completion that at
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least the followin retained and new fobs will be created by Retail establishments located or to
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be located within the Project, which jobs will be made available principally to local residents
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idin within the Cit : 30 retained jobs and 120 newly-created fobs, for a total of 150 fobs.
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The demonstration of satisfaction of the total Jobs Requirement also shall be examined eac y
h reafter on the anniversar date of the initial report until the City Commitment has been paid in
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full or the termination of this A reement, if sooner. The Developer shall obtain certification
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its tenants or occu ants as to the number of fobs created or maintained in compliance with
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this rovision. As used herein, the term "jobs" shall mean full-time equivalent positions
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vidin are ular work schedule of at Least 35 hours per week. The Developer shall submit on
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or before the re uired anniversary dates documentation as reasonably necessa y
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satisfaction that the Developer has met the Jobs Requirement.
Section 3.03 D erational Re uirements.
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A The Developer's receipt of the Reimbursement Amount is subject to the following
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commitment the "operational Requirement"}: the Developer agrees to maintain the Project as a
ail develo ment for the duration of the eriod Burin which the Reimbursement Amount is
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aid; an default in such obligation shall result in the forfeiture of the right to receive
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reimbursement for any of the Reimbursement Amount.
B In the event Relocations exceed 20% of the total Gross Floor Area of Retail space
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in the Project such event shall be a default hereunder and the Developer shall forfeit the right to
receive the Reimbursement Amount.
C Additionally, Developer's failure to complete the Project by the Completion
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Deadline shall be a default hereunder and the Developer shall forfeit the right to receive
ream ursement.
Section 3.04 Utilization of Local Contractors and Su liers. The Developer's receipt of
the Reimbursement Amount is subject to the following commitment the "Local Re uirement"}:
in consideration of the Reimbursement Amount for the Improvements, the Developer agrees to
exercise reasonable efforts in utilizing local contractors and suppliers in the construction of the
Project with a oaI of at least 50% of the total dollar amount of all construction contracts and
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su 1 a reements bein aid to local contractors and suppliers. A contractor or supplier sha
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be considered as local if it has maintained an office or the owner has maintained his or her
rimar residence within the Corpus Christi MSA for at least two years. This goal shall apply to
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the total amount of all construction contracts and supply agreements made by the Developer in
connection with the construction of the Project. The Parties acknowledge that some construction
and su l a reements will be controlled by particular tenants of the Developer and not under
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the control of the Develo er. The Developer agrees to encourage such third parties to adopt a
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com arable oal of 50% of their construction costs, but the City acknowledges that Developer
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has no le al authorit in connection with such third-party contracting. The Developer agrees,
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Burin the construction of the Project and for four years after Completion, to maintain written
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records documentin the efforts of the Developer to comply with the Local Requirement.
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Section 3.05 Utilization of Dssadvanta ed Business Ente rises Small Business
Initiatives.
A The Develo er's receipt of the Reimbursement Amount is subject to the following
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commitment the "DBE Re uireinent"}: in consideration of the Reimbursement Amount for the
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Im rovements the Develo er a rees to exercise reasonable efforts in utilizing contractors and
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su tiers in the construction of the Project that are determined to be disadvantaged business
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ente rises includin minorit business enterprises, women-owned business enterprises and
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historicall -underutilized business enterprises. In order to qualify as a business enterprise under
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this rovision the firm must be certified by the City, the Regional Transportation Authority or
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another overnmental entit in the jurisdiction of the home office of the business as complying
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with state or federal standards for qualification as such an enterprise. The Developer agrees to a
aal of 30% of the total dollar amount of all construction contracts and supply agreements being
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aid to disadvanta ed business enterprises, with a priority made far disadvantaged business
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ente rises which are local. The following table shall establish the portion of a contract wit a
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disadvanta ed business enterprise which shall count towards the goal.
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Disadvantaged Business Enterprises in Corpus Christi MSA 100%
Disadvantaged Business Enterprises elsewhere in Texas 80%
Disadvantaged Business Enterprises outside Texas . b0%
~B} A contractor or supplier shall be considered located in the Carpus Christi MSA if it
has maintained an off ce or the owner has maintained his or her primary residence within the
Corpus Christi MSA for at least two years. This goal shall apply to the total amount of all
construction contracts and supply agreements made by the Developer in connection with the
construction of the Project. The parties acknowledge that some construction and supply
agreements will be controlled by particular tenants of the Developer and not under the control of
the Developer. The Developer agrees to encourage such third parties to adopt a comparable goal
of 30% of their construction costs, but the City acknowledges that Developer has no legal
authorit in connection with such third-party contracting.
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~C} The Developer agrees to enter into a Fair Share Agreement with the City pertaining
to the achievement of the DBE Requirement in the form attached as Exhibit E. The City and the
Developer shall jointly recruit and select a person or firm to provide independent verification and
monitoring of Developer's activities in connection with the above goals. Such person or firm
shall be responsible for reviewing the contract information for the contracts made by Developer,
verifying the eligibility of the firms identified as meeting the requirements stated above, and
providing quarterly reports to the City concerning the Developer's achievement of the goals in
connection with construction of the Project. The person or firm may rely upon the determination
made by the City or another governmental entity as to the qualif cation of a contractor or supplier
as a disadvantaged business enterprise. The costs of such verification and monitoring during the
construction period shall be subject to the approval of and paid by Developer. Such costs shall
not be sub ject to rehnbursement as administrative expense from the Reimbursement Amount.
~D} The Developer agrees to sponsor or otherwise assist in the presentation of a small
business initiative of the City each year during the term of this Agreement as provided by City
policies.
~E} The Developer agrees, during the construction of the Project and for four years
after Completion, to maintain written records documenting the efforts of the Developer to
comply with the DBE Requirement.
Section 3.ob Reimbursement Reduction.
~A} If the Developer does not satisfy the Jobs Requirement, the Local Requirement, or
the DBE Requirement, the City may reduce the Reimbursement Amount,
~B} If the Developer does not satisfy the Jobs Requirement in any fiscal year, the City
may reduce the annual Reimbursement Amount by 1% of the Sales Tax Revenues portion of the
City Commitment collected during the fiscal year for each required job that was not created or
maintained. Any amounts reduced under this provision also reduce the Reimbursement Amount
and City Commitment.
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~C} The percentage of any Reimbursement Amount reduction shall not exceed the
percentage by which the Developer does not satisfy the Local Requirement or the DBE
Requirement, with equal weight given to each requirement and to the degree of nan-compliance
with each requirement.
~D} The City agrees not to reduce the Reimbursement Amount, as long as the Developer
has exercised reasonable efforts to comply with the Local Requirement and the DBE
Re uirement. The Developer shall be deemed to have exercised reasonable efforts to comply
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with the Local Requirement and the DBE Requirement as long as the Developer keeps and
rovides to the City records required to be maintained under Sections 3.02, 3.04 and 3.05
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documenting its reasonable compliance attempts, even if the Developer does not actually meet
the compliance goals.
Section 3.07 Em to ment of Undocumented workers, The Developer does not and
agrees that it will not knowingly employ an undocumented worker.
Section 3.OS Monitorin b the Cit . Monitoring to determine the Developer's
com liance with the terms of this Agreement for compliance purposes will be done by the City
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no less than twice per year during the period of construction, and on an annual basis after
Com letion. During the monitoring process, the City will make maximum use of any State and
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Federal submissions for the determination of contract compliance. Monitoring may be
accom lished by City personnel or other persons designated by the City and shall include review
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of com liance with the Fair Share Agreement specified in Section 3.05 above, compliance with
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the Jobs Re uirement, the Qperational Requirement, the Local Requirement, the DBE
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Re uirement, and re uirements concerning Relocations. The Developer agrees to reasonably
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cooperate with the City in such monitoring process.
ARTICLE IV
PROJECT FINANCING AND FUNDING
Section 4.01 Project Financin .
A} The~City hereby covenants and agrees upon the Effective Date of this Agreement to
create a s ecial fund the "Reimbursement Account"} for the benefit of the Developer far the
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u ose of a in the Reimbursement Amount. The City shall fund the Reimbursement Account
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throu h the term of this Agreement from the following sources and in the following manner: i}
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with res ect to the portion of the Reimbursement Amount calculated based on the Property Tax
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Revenues, the City shall annually fund the Reimbursement Account from the Property
Revenues and ii with res ect to the portion of the Reimbursement Amount calculated based on
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the Sales Tax Revenues, the City shall annually fund the Reimbursement Account m an amount
ual to the Sales Tax Revenues from the Sales Tax Revenues. The Reimbursement Account
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shall alwa s remain unencumbered by the City and segregated from all other funds o t e y
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Such funds are held in trust by the City far the Developer to be used in accordance with the
terms hereof as ion as Developer is in compliance with this Agreement. The City agrees that it
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will, u on Com Ietion of the Project, with respect to the portion of the Reimbursement Amount
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derived from Sales Tax Revenues, make annual cash payments, and, with respect to the portion
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of the Reimbursement Amount calculated on the basis o f the Property Tax Revenues, make
annual cash payments by June 1 of each applicable year, from the Reimbursement Account to the
Developer if cash is available for such purpose under this Agreement until the Reimbursement
Amount is paid in full as provided herein.
~B} Except as provided below, the City agrees that it will make cash payments to the
Developer for the Reimbursement Amount, but such cash payments shall be limited in amount to
the City Commitment.
Section 4.OZ Cit Commitment.
~A} Pursuant to its authority under Chapter 380, the City hereby agrees to pay the
Reimbursement Amount to the Developer. It is intended by the parties that the Reimbursement
Amount will be paid by the City solely out of the Reimbursement Account and used to make
ayments to the Developer as provided in this Agreement the "Cit Commitment"}. The
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maximum amount of the City Commitment is set forth in Section 4.02~B}. Payment of the City
Commitment will commence upon Completion and will continue through and until the
Reimbursement Amount has been paid. The City agrees that it will pay the Reimbursement
Amount during the term of this Agreement abut solely from the Reimbursement Account}, if the
Project is Completed and generates the Reimbursement Amount. Such payments are not subject
to any reduction, whether offset or otherwise, except pursuant to Sections 3.03 and 3.od hereof.
~B} The Parties agree that the maximum City Commitment shall be as stated in the
definition of Completion Threshold for a portion of the costs constituting the Improvements
associated with the Project, and such obligation on behalf of the City will be limited solely to the
funds de osited into the Reimbursement Account pursuant to this Agreement. Upon such time
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as the Cit has contributed the maximum City Commitment in full, the City shall have no further
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obli ation under this Agreement. The Parties agree that so long as the Developer has achieved
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Com letion as defined above and has met the Jobs Requirement, the Local Requirement and the
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DBE Requirement, the Developer shall be entitled to payment of the City Commitment.
C} The City shall determine not less often that quarterly the amount of the Sales Tax
Revenues received by the City from the State Comptroller in cooperation with the Developer and
the State Comptroller. The City and Developer agree to cooperate in.any way necessary to
receive information from the State Comptroller necessary to determine the Sales Tax Revenue,
includin the film or submittal of any forms or letters necessary to determine the incidence of
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local sales and use taxes. The City hereby agrees to deposit the Sales Tax Revenues portion of
the Cit Commitment into the Reimbursement Account, and hereby pledges such fund to the
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a ment of the City Commitment as provided herein. The City Commitment shall be remitted to
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the Develo er annually on or before the first day of June. The City designates this Agreement as
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a Revenue Sharin A Bement, thereby entitling the City to request sales tax information from
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the Com troller, ursuant to section 321.3022, Texas Tax Cade, as amended. Unless determined
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otherwise b the Texas Attorney General in writing, any information received relating to the City
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Sales Tax Revenue shall be considered confidential proprietary financial information not subject
to immediate release to the public. The City shall seek a written opinion from the Texas
Attorne General, raising any applicable exception to release, prior to any release to athird-party
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under the Texas Public Information Act.
11
4D} The City shall determine the amount of the Property Tax Revenues received
annually by the City in cooperation with the Developer. The City hereby agrees to deposit from
available funds ~. the City's General Fund an amount equal to the Property Tax Revenues into
the Reimbursement Account in accordance with Section 4.01 ~A} of this Agreement, and hereby
led es such fund to the payment of the City Commitment as provided herein. The City
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Commitment shall be remitted to the Developer on or before June 1 of each year.
E The City shall maintain complete books and records showing deposits to and
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disbursements from the Reimbursement Account, which books and records shall be deemed
com fete if kept in accordance with generally accepted accounting principles as applied to Texas
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munici alities. Such books and records shall be available for examination by the duly authorized
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officers or a ents of the Developer during normal business hours upon request made not less
than five business days prior to the date of such examination. The City shall maintain such
books and records throughout the term of this Agreement and store the same far four years
thereafter.
F In addition to the City Commitment provided above, the City agrees to waive all
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lattin buildin and technical permit fees incurred by Developer or by parties acting on
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Develo er's behalf in connection with the replotting of the Property and the construction of the
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Project as described herein prior to the Completion Date.
ARTICLE V
ADDITIONAL DUTIES AND RESPONSIBILITIES
Section 5.01 Amendment of A reement. Upon the request of the Developer, the City
wi11 not unreasonabl decline to amend this Agreement to provide for any reasonable changes
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necessary to carry forth the intent of this Agreement.
ARTICLE VI
TERM GF THE AGREEMENT AND OTHER OBLIGATIONS
Section G.01 Term and Termination. This Agreement shall have a term the "Term"}
be innin on the Effective Date and continuing for a period until the earlier to occur of: ~a} the
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date as of which the twent -fifth X25 }annual payment has been received by Developer, fib} the
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date as of which the cumulative incentive received by Developer equals the maximum City
Commitment or c the Agreement is otherwise terminated as provided herein.
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ARTICLE VII
DEFAULT
Section 7.01 Default.
if the Cit does not erform its obligations hereunder in substantial compliance with this
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A reement and if such default remains uncured for a period of 60 days after notice thereof shall
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have been iven in addition to the other rights under the law or given the Developer under this
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A reement, the Developer may enforce specific performance of this Agreement, seek a writ of
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mandamus to perform obligations under this Agreement.
if the Developer does not perform its obligations hereunder in substantial compliance
with this Agreement, and, if such default remains uncured for a period of dD days after notice
thereof shall have been given, in addition to the other rights under the law or given to the City
under this Agreement, the City may terminate this Agreement and any of the obligations
associated herein and the City may seek actual damages incurred by the City for any such
default.
Notwithstanding anything in this Agreement which is or may appear to be to the contrary,
if the erformance of any covenant or obligation to be performed hereunder by either Party is
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Bela ed as a result of circumstances which are beyond the reasonable control of such Party
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which circumstances may include, without l~mitat~on, pending or threatened litigation, acts of
Gad, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse
weather conditions such as, by way of illustration and not limitation, severe rain storms or
below fireezin temperatures, hurricane or tornados labor action, strikes or similar acts} the time
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for such erformance shall be extended by the amount of time of such delay. The Party cla~m~ng
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dela of erformance as a result of any of the foregoing "force majeure" events shall deliver
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written notice of the commencement of any such delay resulting from such force majeure event
not Later than seven days after the claiming Party becomes aware of the same, and if the claiming
Part fails to so notify the other Party of the occurrence of a force majeure event causing such
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Bela the claimin Part shall not be entitled to avail itself of the prov~slons for the extension of
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performance contained in this Section.
Should Develo er fail to redevelop the Project by the Completion Deadline, this
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A reement shall terminate without obligation of City to provide reimbursement to Developer.
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ARTICLE VIII
GENERAL
Section 8.41 Severabilit . if any provision of this Agreement is held to be invalid or
unenforceable b an court of competent jurisdiction for any reason, such provision shall be
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full severable and the remainder of this Agreement shall remain m full force and effect. This
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A reement shall be construed and enforced as if such invalid or unenfarceable provision had
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never comprised a part of this Agreement.
Section 8.02 Indemnification. The Developer agrees to indemnify, defend and hold the
Cit and its res ective council members, board members, officers, employees and agents,
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harmless from an actions, suits, liens, claims, damages, expenses, losses and liabilities
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includin reasonable attorneys' fees and expenses} arising from or m connection with its
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roceedin s ursuant to this A reement, which indemnity shall survive any term~nat~on of this
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A reement rovided however, Developer shall not indemnify, defend or hold harmless ~f the
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fore ain was the result of the gross negligence or willful misconduct of the City, or its
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res ective council members, board members, officers, employees or agents.
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13
Section $.03 Notice. Any notice or other communication required or permitted to be
given pursuant to this Agreement shall be given to the other Party at the following address:
If to the Developer: Richard Runde
President
R-SB StapleslSPID, LLC
clo Capital Area Retail Development II, Inc.
606 VV.12 Street
Austin, Texas 78701
wl a copy to: John D. Bell
Wood, Boykin & Wolter, P.C.
615 N. Upper Broadway, Suite 1140
Corpus Christi, Texas 78477
If to the City; City of Corpus Christi
1201 Leopard Street ~784o1}
P. ~. Box 9277
Corpus Christi, Texas 78469
ATTN: City Manager
wl a copy to: City of Corpus Christi
1201 Leopard Street X78401}
P. D. Box 9277
Corpus Christi, Texas 78469
ATTN: City Attorney
Any such notice or communication shall be deemed given on the date so delivered or so
deposited in the mail, unless otherwise provided herein. Either Party may change the above
address by sending written notice of such change to the other Party in the manner provided
above, 'With the consent of the receiving Party, notice may be given by facsimile transmission ar
electronic mail.
Section $.0~ Amendments and waivers. Any provision of this Agreement may be
amended or waived if such amendment or waiver is in writing and is signed by the City and the
Developer.
Section 8.05 Successors and Assi ns. No party shall have the right to assign its rights
under this Agreement or any interest herein, without the prior written consent of the other Party,
which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the
fore oin ,the Developer may assign its rights and responsibilities hereunder to any entity which
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is related yr affiliated with or a subsidiary of the Developer and to which its rights to proceed
with develo meat of the Project are transferred. Such written consent shall not be unreasonably
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withheld and if such consent is nat received by the Party seeking consent within thirty X30} days
of their re uest for consent, the assignment will be deemed approved, Notwithstanding the
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fore oin ,the City hereby consents to Developer s assignment to a lending ~nst~tut~on of all of
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the Develo er's rights hereunder as security for repayment of one or more loans to finance the
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14
construction or ownership of the Project or construction of the Improvements. The Developer
shall give written notice of its assignment of its rights hereunder to the other Parties within five
business days of the occurrence of such assignment. The foregoing notwithstanding, any
assignment of the Developer's rights under this Agreement shall not release the Developer from
its obligations under Section 4.41 ~C} hereof.
Section 8.06 Exhibits• Titles of Articles Sections and Subsections. The exhibits
attached to this Agreement are incorporated herein and shall be considered a part of this
A reement for the purposes stated herein, except that in the event of any conflict between any of
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the provisions of such exhibits and the provisions of this Agreement, the prov~s~ons of this
A Bement shall prevail. All titles or headings are only for the convenience of the Parties and
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shall not be construed to have any effect or meaning as to the agreement between the Parties
hereto. Any reference herein to a Section or Subsection shall be considered a reference to such
Section or Subsection of this Agreement unless otherwise stated. Any reference herein to an
exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise
stated.
Section 8,07 Construction. This Agreement is a contract made under and shall be
construed in accordance with and governed by the laws of the United States of America and the
State of Texas, excluding conflicts of laws, as such laws are now in effect. Venue for any action
arising under this Agreement shall lie in the state district courts of Nueces County, Texas.
Section 8.08 The Developer agrees to comply with all applicable federal, state and local
laws, statutes, ordinances, rules and regulations related to the construction of the Project.
Section 8.09 Entire A reement. This written Agreement represents the final agreement
between the Parties and may not be contradicted by evidence of prior, contemporaneous, or
subse uent oral a reements of the Parties. There are no unwritten oral agreements between the
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Parties.
Section 8.14 A royal b the Parties. Whenever this Agreement requires or permits
a royal or consent to be hereafter given by either Party, the Parties agree that such approval or
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consent shall not be unreasonably withheld or delayed.
Section 8.11 Additional Actions. The Parties agree to take such actions, including the
execution and deliver of such documents, instruments, petitions and certifications as may be
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necessar or a ro riate, from time to time, to carry out the terms, provis~ans and intent of this
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A reement and to aid and assist each other in carrying out said terms, provisions and intent.
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Section 8.12 Liabilit . The liability of the tenants in common executing this
Agreement is joint and several.
[EXECUTION PAGES FOLLOW]
15
IN WITNES WHEREOF, the Parties hereto have caused this instrument to be duly
executed as of the ~~, ay of , 2009.
PARKDALE SHGPPING CENTER
By: R-SB STAPLESISPID, LLC
A Texas limited liability company
By.
Richard R. Runde, President
By: JJQ-PARKDALE, LLC
A Texas limited liability company
By:
Name:
Title:
By: H&JQ PD, LLC
A Texas limited liability company
By:
Name:
Title:
By: 'W-SB STAPLESISPID DE, LLC
A Texas limited liability company
By'
Name:
Title:
CITY ~F CORPUS CHRISTI, TE~.AS
A home-rule municipal corporation
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By: ~
` g Escobar, City Manager
ATTEST:
By: ~ .
Armando Chapa, City cretary
APPRG'~ED AS TD LEGAL FORM:
May 11 , 2009
Mary K.ay Fischer, City Attorney
By:
ity torney
.:, ~ ,~ ,~ ~ AUTHU~~«~
H ffEE ~ ~ ~
~I~~~Sr •w rrt^ ~rNM
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S~CR~TaRY
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C:IDOCUME~IIemilymlL~CALS~11Tetnpl~arkdale Agreement-OS~7,doc
Exhibit A
Project Conceptual Plan
Exhibit B
Improvements
Improvement of Carmel Parkway Extension
The Project includes the improvement of Carmel Parkway through new asphalt, curb and gutter,
and drama a improvements. Additional traffic improvements are included at the intersection
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with South Sta les Street. The improved roadway will provide better access to the public library
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and improve circulation in the area.
Landscaping and Lighting Improvements
Mature alms on the site will be preserved and relocated, and xeriscape landscaping
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im rovements will be utilized in order to reduce water consumption. Enhanced site lighting will
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increase the visual appeal of the center and provide increased security. Roadway improvements
will include upgrades for ADA American Disability Act} compliance.
Utilities Improvements
Various utilities im rovements required in connection with the replatting of the Parkdale Plaza
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site and u ade and modern~zatlon of the improvements are included.
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Elimination of Blighted Improvements
Project costs include the demolition of the blighted improvements comprising Parkdale Plaza and
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clearin the land for redevelopment purposes. Asbestos removal is included as part of the
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necessar costs, in order to assure compliance with all applicable regulatory requirements.
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Civic Engineering
Civil en uaeerin fees in connection with the roadway improvements, replotting, utilities
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im rovements and elimination of blighted improvements are included as part of the Project costs.
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Exhibit C
Improvement Costs
Item: Estimated Cost:
2. Re-pave and curb Carmel Parkway $ 250,000.00
3. Improvements to intersection of Staples & Carmel Parkway $ 50,000.00
4. Lighting and re-location of mature palms
to Library parking area & along Carmel Parkway $ 140,000.00
5. Utility Improvements $ 100,000.00
b. Asbestos Removal $ 300,000.00
7. Demolition $ 1,000,000.00
8. Civil Engineering, fees permits $ 1 OO,D00.00
Total: $ 1,9gq,gqq.q0
Exhibit D
Property Description
Lots Three (3), Five (5), Six (6), Seven(7), Eight (8), Nine (9) and
Ten (10), Block AR, PARKDALE SHOPPING CENTER, as shown
by the proposed plat attached as Exhibit D-1 attached.
EXHIBIT d-~
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Exhibit D
Fair Share Agreement
This FAIR SHARE AGREEMENT ~"Agreement"} is entered into by and between the
CITY GF CflRPUS CHRISTI, TE~.AS the "City"}, a home rule municipal corporation
organized under the laws of the State of Texas, and PARKDALE PLAZA, the "Developer"}
comprised of R-SB STAPLESISPID, LLC, a Texas limited liability company, JJQ-
PARKDALE, LLC, a Texas limited liability company, H&JQ PD, LLC, a Texas limited
liability company, and W-SB STAPLESISPID DE, LLC, a Texas limited liability company, as
tenants in common.
WHEREAS, the City and Developer entered into a Financing Agreement the
"Financing Agreement"}, dated as of May , 2009, for the redevelopment of the retail center
known as Parkdale Plaza in Corpus Christi, Texas the "Project"};
WHEREAS, as part of the Financing Agreement, the Developer has agreed in connection
with the redevelopment of the Pro ject to ~a} exercise reasonable efforts to utilize ~i} contractors
and suppliers that are determined to be disadvantaged business enterprises ~"DBE"}, including
minority business enterprises, women-owned business enterprises and historically-underutilized
business enterprises, as provided in Section 3,05 of the Financing Agreement the "DBE Goal"}
and iii} local contractors and suppliers ~"Local Firm"} as provided in Section 3.04 of the
Financing Agreement the "Local Goal"}; fib} comply with the reporting requirements under
Sections 3.04 and 3.05 of the Financing Agreement; and ~c} encourage third-party contractors,
consultants, or suppliers to adopt comparable DBE and Local Firm goals;
WHEREAS, the total amount of all construction contracts and supply agreements made
b the Developer in connection with the construction of the Project shall include, without
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limitation, redevelopment costs, hard construction costs, contractor fees, costs of supplies and
materials, new fixtures, furniture, equipment, and taxable personal property purchased for use at
the Project, en ineering fees, architectural fees, and other professional and development fees,
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excludin for u ores of the DBE Goal and the Local Goal any costs incurred for services,
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su lies ar ro erty not available through a DBE firm or Local Firm ~"Construction Costs"};
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WHEREAS, alY DBE firms must have been certified by the City, the Regional
Trans ortation Authority or another governmental entity in the jurisdiction of the home office of
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the business as complying with state or federal standards for qualif cation as a DBE;
WHEREAS, in order to provide independent verification of the Developer's efforts with
res ect to the DBE Goal and the Local Goal, the City and the Developer have agreed that the
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Develo er shall rovide to the City the review of an independent auditor ~ Project Auditor }
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with each annual report submitted m connection with this Agreement;
WHEREAS, all capitalized terms used herein which are not otherwise defined have the
same definitions as set forth in the Financing Agreement; and
NOW, THEREFORE, BE IT RESOLVED, that the Developer does hereby agree to
exercise reasonable efforts to meet the DBE Goal and the Local Goal; it is further:
RESOLVED, that the Developer agrees, during the period of construction of the Project
and for four years after Completion, to maintain written records documenting the efforts of the
Developer to meet the DBE Goal and the Local Goal. 0n an annual basis, commencing with the
year ending December 31, 2010, and terminating upon Completion, the Developer shall provide
to the City within ninety X90} days of the end of such reporting period, the Developer shall
provide the City written reports in the form attached hereto as Schedule A documenting the
involvement of DBE's and Local Firms.
RESGLVED, that the Project Auditor shall perform the services described on Schedule
B in connection with each such report.
RESOLVED, that notwithstanding any provisions herein to the contrary, the Developer,
as a show of its commitment to inclusion, commits to keep in place throughout the construction
period of the Project abut in no event does this commitment bind any successor owners, assigns,
or tenants} a program which will provide for Local Firm and DBE participation goals as
described in Sections 3.04 and 3.05, respectively, of the Financing Agreement. The Developer
agrees to exercise reasonable efforts to utilize DBE firms in the construction of the Project with a
goal of at least thi~y percent X30%} of the Construction Costs being paid to DBE firms, with a
priority made for DBE firms which are local as contemplated in Section 3.05 of the Financing
Agreement. The following table shall establish the portion of a contract with a DBE which shall
count towards the DBE Goal:
DBE Firms in Corpus Christi MSA 100%
DBE Firms elsewhere in Texas SO%
DBE Firms outside Texas 60%
The Developer agrees to exercise reasonable efforts to utilize Local Firms in the construction of
the Project with a goal of at least fifty percent X50%} of the Construction Costs being paid to
Local Firms. If a contractor is both a DBE and a Local Firm, one hundred percent X100%} of the
contract shall count towards each of the DBE Goal and the Local Goal. A contractor ar supplier
shall be considered located in the Corpus Christi MSA if it has maintained an office or the owner
has maintained his or her primary residence within the Corpus Christi MSA for at least two
years. This goal shall apply to the Construction Costs paid by the Developer in connection with
the construction of the Project.
RESOLVED, the parties acknowledge that some construction and supply agreements will
be controlled by particular tenants of the Developer and not under the control of the Developer.
The Developer agrees to encourage such third parties to adopt a comparable goal of paying thirty
ercent X30%} and fifty percent X50%} of their construction costs to DBE firms and Local Firms,
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respectively, but the City acknowledges that Developer has no legal authority m connection with
such third-party contracting.
RESOLVED, if the Developer fails to meet its reasonable efforts goal to expend at least
thirty percent X30°/°} and fifty percent X50%) of all Construction Costs with DBE firms and Local
Firms, respectively, Developer shall not be in default under this Agreement or the Financing
Agreement and no reduction in the Reimbursement Amount payable to Developer under the
Financing Agreement shall be assessed so as long as developer has exercised reasonable efforts
to comply with the DBE Goal and the Local Goal.
2
RESOLVED, the Developer shall be deemed to have exercised reasonable efforts to
com 1 with the DBE Goal and the Local Goal as long as the Developer provides the City with
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the reports required to be delivered hereunder, as reviewed by the Proaect Auditor, and ma~nta~ns
the records supporting the information in such reports as provided herein, even if the Developer
does not actually meet the compliance goals.
RESOLVED, that the undertaking and commitments set forth in these resolutions do not
constitute a art of, and shall not be deemed to modify, amend or abrogate, any provision of, the
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Financing Agreement or any related agreement between the City and the Developer.
IN WITNESS WHEREUF, the Parties hereto have caused this instrument to be duly
xecuted as of the a of , 2009.
e ~ y
PARKDALE SHOPPING CENTER
By: R-SB STAPLESISPID, LLC
A Texas limited liability company
By.
Richard R. Runde, President
CITY GF CCIRPUS CHRISTI, TEAS
A home-rule municipal corporation
r
By' ~
` el Escobar, City Manager
By: JJQ-PARKDALE, LLC
A Texas limited liability company
By:
Name:
Title:
By: H&JQ PD, LLC
A Texas limited liability company
By:
Name:
Title:
By: W-SB STAPLESISPID DE, LLC
A Texas limited liability company
By:
Name:
Title:
.~' ~-K~-
3
ATTEST:
i f ~ y:
i ~, ..
By:
Armando Chapa, City ecretary
APPRGVED AS T4 LEGAL FURM:
May ~~ , 2009
Mary Kay Fischer, City Attorney
By: ~-
City ttorney
w ~~
~ T~a~~~
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~v C'~UNC1t ., ,,.,~.
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r~Mlew~liMipAeMMp~~M~a~M~a Krrsrl~rlNN/r
SE~~~~'~RY 1~~ °
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IN 'TNESS ~RE~F, the Parties hereto have caused ~;is inst~ment to be duly
executed as of the ~~~ay of ~ 200.
FA~tI~ALE S~(~PP~t~ CENTER
gay: ~~SB APLESlS~'~D, LLC
A Texas ' ~ted liability co y
By.
By: JJ DALE, ~
A 'pexas limped liability company
,~
By.
Nam
T~ it
By; ~~T~ PD, LLC
A Texas limited liability company
By:
Na
Title:
By: ~-SB STA~LESISPID DE, LLC
A Te~cas iirnited liability company
CITY ~F Ct~RPUS CSTI, TEXAS
A home-rule municipal corporation
~y~
`Angel F,scuhar, City Manager
ATTEST:
By:
Armando Chaps, City Seczetary
AFPR~v~D AS TC LE~,~,L FARM:
May _ _ ~ 2009
nary Kay Fischer, City Atto~ey
Bv:
Assistant Cif Attorney
. ~ t~ ~
By. ~
e: ~~~ ~~5
~~e: ~~'S
~:~6ZZ8 QuioklQl~tcdal$ Ag~mer~~~QSQ7,do~
Schedule A
Form of Report
(To Be Added]
Schedule B
Duties of Project Auditor
1. The Project Auditor shall review the written reports provided to it by the
Developer.
~, To the extent the Project Auditor deems it necessary or appropriate, review the
records maintained by the Developer which contain information supporting the Developer's
reports.
3. Verify the eligibility of the firms identif ed as meeting the requirements for status
as a DBE or Local Firm. Notwithstanding any independent investigation by the Project Auditor,
the Project Auditor may rely upon the determination made by the City or another governmental
entity as to the qualification of a contractor or supplier as a DBE.
4. Provide its review with the annual reports to the City summarizing the
information provided in the Developer's reports and any other records relating thereto reviewed
by the Project Auditor.
5