Item 4O
M E M O R A N D U M
(August 18, 2015)
To: Shana Yelverton, City Manager
From: Shannon Hamons, CEcD, Director of Economic Development
and Tourism
Subject: Item 4O: Resolution 15-042;
a resolution of the City of
Southlake, Texas approving a development agreement with
Granite Properties, Inc. and GPI-MT, LP; authorizing the Mayor to
execute the agreement and providing an effective date.
Action
Requested:
Approve Resolution 15-042 as noted above
Background
Information:
The purpose of this item is to approve a Development
Agreement with Granite Properties, Inc. and GPI-MT, LP to
facilitate the construction of a six-story, Class-A office
building of at least 160,000 square feet and a parking garage
of no less than 480 spaces. The project site is between SH
114 and the Hilton Hotel, just east of the Department of
Public Safety Headquarters.
The project’s estimated value is $39 million and is expected
to support approximately 485 employees with an estimated
annual payroll of nearly $32 million. The estimated average
annual salary is $65,411.
Changes were made in 2003 to the Downtown District
zoning language to permit 90-foot structures in anticipation
of the construction of Class-A offices near Town Square,
such as that proposed by Granite.
At its June 16, 2015 meeting, City Council approved a
development plan and plat for the project. Council also
approved a Special Use Permit for the garage at that
meeting. Staff informed Council in executive session at this
meeting that Granite had applied for a development
incentive for the project.
City Participation Request
The applicant is seeking City participation of $3.45 million to
assist with the construction of the garage and public
roadway/ infrastructure costs. The City’s participation would
be in the form of a reimbursement of costs as follows: $2.91
million would be applied to the $5.5 million garage and
$540,000 would be applied toward the $1.45 million in
needed roadway/infrastructure work. The developer has
stated that the requested City participation is necessary to
move forward with the project.
Staff Recommendation
It is staff’s recommendation to fund this incentive request
with funds from the Tax Increment Finance (TIF) Fund that
are not needed to repay debt obligations. These funds are
generated from the City’s Tax Increment Reinvestment Zone
#1 (Zone) which was created by the Southlake City Council
in September 1997. The Zone has a 408-acre boundary that
encompasses Southlake Town Square, as well as select
Carroll ISD properties. Participating taxing entities include
the City of Southlake, Tarrant County, Tarrant County
Hospital District, Tarrant County Junior College District and
the Carroll Independent School District.
The TIRZ #1 Project and Financing Plan was approved in
August 1999 and outlines the strategies used to encourage
development in the 408-acre zone. The plan also includes
value projections for the zone as a benchmark to track
performance. Finally, the plan delineates the zone projects
and their related costs.
The public improvements in the zone fall into five general
categories: public buildings and facilities, public parks,
general infrastructure, operations and maintenance, and
other incremental costs. In addition, the plan indicates that
TIRZ funds will pay a portion of project costs and operations
for the CISD education facilities included in the plan.
Public buildings and facilities shown in the plan include:
Town Hall (city/county facility, including furniture, fixtures
and equipment costs)
Parking facilities
Educational facilities (including CISD projects and a library)
Public parks
General infrastructure (streets, water, sanitary sewer, and
storm water) (limited to 40% of costs)
Technology costs
Professional services costs
As the incentive request aligns with two of the identified
project plan elements (parking facilities and general
infrastructure), staff recommends using available residual
TIF funds so that they can be invested into the Zone. These
funds are currently available in the TIF Fund balance and if
not invested in the Zone prior to the sunset of the Zone in
2018, they will be distributed to the Zone’s participating
taxing entities.
Agreement Performance Requirements
The developer must advance the cost of the public
infrastructure and the completed improvements must be
inspected and accepted by the City before any
reimbursement of the costs. The developer must also
complete the garage and have it accepted by the City and
execute bona-fide leases with non-related parties for at least
40% of the office building in order to receive the entire $2.91
million reimbursement for the garage. If these performance
requirements are not met prior to the Zone’s sunset in 2018,
the agreement is null and void.
As part of agreement, the developer would extend an
easement to the City for perpetual use of the garage’s first
floor at all times, and the upper floors after 6:00 p.m. on
weekdays and 24 hours on weekends and holidays. The
developer will be required to perform all future maintenance
on the garage.
Not only would the garage provide the needed parking for
office workers, shoppers and diners, it would also provide
greatly increased convenience to Municipal/Teen Court
visitors and other patrons of DPS Headquarters. Currently,
there is a shortage of parking during periods when each
court is in session.
The developer will also extend necessary right-of-way
Easements at no cost to the City in the future when and if
improvements will be needed at the intersection of State
Street and SH 114.
Financial
Considerations:
As previously stated, the Zone’s Project and Financing Plan
(Plan) identifies parking facilities and general infrastructure
as eligible projects for Zone fund investments. These funds
are currently available in the TIF Fund balance and are
restricted to use on projects identified within the Plan and
located within the Zone. If not invested in the Zone prior to
the sunset of the Zone in 2018, they will be distributed to the
Zone’s participating taxing entities. By making an investment
of these restricted funds in the Zone using dollars generated
by commercial development within the Zone, this proposal
will allow return of investment to the City in year 1.
Additionally, the City’s Finance Department has utilized an
economic benefit analysis program to calculate the project’s
net economic impact to the City. The analysis calculates the
project’s ad valorem taxes, other revenues such as fees and
franchise taxes as well as the impact of the office building’s
estimated 485 employees. This calculation shows that the
development will generate a $3.7 million benefit to the City in
its first ten years of operations. The key point here is that,
rather than redistributing residual TIF funds at the Zone’s
sunset and reimbursing the developer with generated
revenues over the first ten years (thereby delaying revenues
to the City), we would invest restricted TIF funds that were
designated for this type of use. Therefore, the City will
realize a return immediately following the development’s
completion.
Strategic Link:
This project supports the strategic corporate objective of C4:
Attract and keep top-tier businesses to drive a dynamic &
sustainable economic environment. Additionally, the
Southlake 2030 Economic Development and Tourism Master
Plan includes as Goal 4.1: Encourage development in
desired zones, such as along State Highway 114.
Citizen Input/
Board Review:
N/A
Legal Review:
Agreement and resolution review completed by TOASE
Alternatives:
1. Approve the Resolution as submitted
2. Approve the Resolution with amendments
3. Take no action on the Resolution
Supporting
Documents:
Resolution 15-042
Corresponding Development Agreement with Granite
Properties, Inc. and GPI-MT, LP and related exhibits
Garage Parking Easement
Staff
Recommendation:
Approve Resolution 15-042 as submitted
Staff
Contact:
Shannon Hamons, Director of Economic Development and
Tourism regarding the project and Chief Financial Officer
Sharen Jackson regarding the TIF mechanism
RESOLUTIONNO.No.15042
ARESOLUTIONOFTHECITYOFSOUTHLAKE,TEXAS,APPROVINGA
DEVELOPMENTAGREEMENTWITHGRANITEPROPERTIES,INC.ANDGPI
MT,LP;AUTHORIZINGTHEMAYORTOEXECUTETHEAGREEMENT;AND
PROVIDINGANEFFECTIVEDATE.
WHEREAS,theCityadoptedOrdinanceNo.682designatingacertaincontiguous
geographicalareaasReinvestmentZoneNumberOne,CityofSouthlake,Texas(the
ͻƚƓĻͼΜinaccordancewiththeTaxIncrementFinancingAct,TexasTaxCode,Chapter
311(theͻ!ĭƷͼΜtopromotedevelopmentwithintheZonethroughtheuseoftax
incrementfinancing;and
WHEREAS,inAugust1999,theboardofDirectorsoftheZoneapprovedgarages
andpublicinfrastructureasqualifiedprojectcostsoftheZone;and
WHEREAS,theCityCouncilhasbeenpresentedwithaproposedDevelopment
AgreementΑbyandbetweentheCityofSouthlake,theBoardofDirectorsoftheZone,
GraniteProperties,Inc.,andGPIMT,LP,acopyofwhichisattachedheretoasExhibit
ͻ!ͼandincorporatedhereinbyreference(hereinaftercalledtheͻ!ŭƩĻĻƒĻƓƷͼΜͳand
WHEREAS,thereimbursementoffundstobepaidfromthetaxincrementfund
oftheZoneforthecostsoftheimprovementsinaccordancewiththeDevelopment
Agreementisareimbursementofprojectcostsconsistentwiththefinancingplanfor
theZone;and
WHEREAS,thereimbursementoffundsforthecostsoftheimprovementstobe
paidfromthetaxincrementfundoftheZoneareprojectcostsconsistentwiththeAct.
COUNCILOFTHECITYOFSOUTHLAKE,
NOW,THEREFORE,BEITRESOLVEDBYTHECITY
TEXAS,THAT:
SECTION1.
TheDevelopmentAgreement,attachedheretoasExhibitA,havingbeen
reviewedbytheCityCounciloftheCityofSouthlakeandfoundtobeacceptableandin
thebestinterestoftheCityanditscitizens,isherebyapproved.
SECTION2.
TheMayorisherebyauthorizedtoexecutetheAgreementandallother
documentsinconnectiontherewithonbehalfoftheCitysubstantiallyaccordingtothe
termsandconditionssetforthintheAgreement.
SECTION3.
ThisResolutionshallbecomeeffectivefromandafteritspassage.
th
dayofAugust,2015
PASSEDANDAPPROVED this18
________________________
LauraHill,Mayor
ATTEST:
____________________________
LoriePayne,TRMC
CitySecretary
DEVELOPMENT AGREEMENT
WITH GRANITE PROPERTIES, INC. AND GPI-MT, LP
FOR IMPROVEMENTS TO PROPERTY
WITHIN REINVESTMENT ZONE NUMBER ONE, CITY OF SOUTHLAKE
THE OBLIGATIONS CREATED HEREIN ARE NOT GENERAL
OBLIGATIONS OF THE CITY OF SOUTHLAKE AND ARE CONTINGENCIES
DEPENDENT UPON DEVELOPER MEETING ALL REQUIREMENTS OF THIS
AGREEMENT AND THE AVAILABILITY OF TAX INCREMENT AS
PROVIDED HEREIN.
THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into by and
AMONG the City of Southlake, a Texas municipal corporation of Tarrant County and
Denton County, Texas (hereinafter called “City”), the Board of Directors of the
Reinvestment Zone Number One, City of Southlake, Texas (hereinafter called “Board”),
Granite Properties, Inc., a Delaware Corporation (“Developer”), and GPI-MT, LP, a
Texas limited partnership (“Project Owner”; together with Developer, the “Developer
Parties”).
WITNESSETH:
WHEREAS
, the City adopted Ordinance No. 682 designating a certain
contiguous geographical area as Reinvestment Zone Number One, City of Southlake,
Texas (the “Zone”) in accordance with the Tax Increment Financing Act, Texas Tax
Code, Chapter 311 (the “Act”) to promote development within the Zone through the use
of tax increment financing; and
WHEREAS
, the Act authorizes the expenditure of funds derived within a tax
increment financing reinvestment zone for the payment of expenditures made or
estimated to be made and monetary obligations incurred or estimated to be incurred by
the municipality establishing a reinvestment zone that are listed in the project plan of the
reinvestment zone, which expenditures and monetary obligations constitute project costs
as defined by the Act; and
WHEREAS
, the contemplated project to be developed and constructed within the
Zone as set forth herein is consistent with encouraging development of the Zone in
accordance with the purposes for its creation and applicable laws; and
WHEREAS,
Developer is the general partner of Project Owner and has the
power and authority to cause the Project Owner to enter into and perform under this
Agreement;
WHEREAS
, the Project Owner owns or is under contract to purchase real
Exhibit “A”
property located within the Zone, and being further described in attached
hereto (the “Land”), on which the Developer Parties will construct (i) a 6-story office
building, comprised of no less than 160,000 gross square feet (the “Office Building”);
and (ii) a 5-level parking garage with no less than 480 parking spaces (the “Parking
Garage”); and (iii) other site improvements, including, but not limited to, fire lanes,
sidewalks, landscaping and irrigation on-site and in adjacent street rights-of-way
(collectively, the “Development”), all as shown on the preliminary site plan attached
Exhibit “B”
hereto as .
WHEREAS
, the Developer Parties have agreed to advance funding for the costs
of certain public improvements necessary for the project consistent with the project plan
for the Zone; and
WHEREAS
, the reimbursement of funds advanced and to be paid from the tax
increment fund of the Zone for the costs of the public improvements is a reimbursement
of project costs consistent with the financing plan for the Zone; and
WHEREAS
, the reimbursement of funds advanced for the costs of the public
improvements to be paid from the tax increment fund of the Zone are project costs
consistent with the Act;
NOW THEREFORE
, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I
DEFINITIONS
Wherever used in this Agreement, the following terms shall have the meanings ascribed
to them:
“Act” shall mean the Tax Increment Financing Act, Chapter 311, Texas Tax
Code, as amended.
“Bankruptcy or Insolvency” shall mean the dissolution or termination of a party’s
existence as a going business, insolvency, appointment of receiver for any part of such
party’s property and such appointment is not terminated within ninety (90) days after
such appointment is initially made, any general assignment for the benefit of creditors, or
the commencement of any proceeding under any bankruptcy or insolvency laws by or
against such party and such proceeding is not dismissed within ninety (90) days after the
filing thereof.
“Board” shall have the meaning set forth in the introductory paragraph.
“Captured Appraised Value” means the total appraised value of all real property
taxable by the City and a Taxing Unit and located in the Zone for the calendar year less
the Tax Increment Base.
“City” shall have the meaning set forth in the introductory paragraph.
“TIF Commencement Date”shall mean the later of the date of: (i) Completion of
Construction of the Development and Public Improvements; and (ii) January 1 of the
calendar year in which the total Investment made by the Developer Parties for the
Development equals at least $39,000,000.
“Commencement of Construction” shall mean that (i) the plans have been
prepared and all approvals thereof required by applicable governmental authorities have
been obtained for construction of the Development, or the Public Improvements, as the
case may be, on the Land; (ii) all necessary permits for the construction of the
Development or Public Improvements, as the case may be, on the Land pursuant to the
respective plans, therefore having been issued by all applicable governmental authorities;
and (iii) grading of the Land for the construction of the Development or the Public
Improvements, and/or construction of the vertical elements of the Development or Public
Improvements, as the case may be, has commenced.
“Completion of Construction” shall mean that: the City has issued a final letter of
acceptance for the respective Public Improvements and the final inspection for the core
and shell of the Office Building and the Parking Garage has been performed and
approved by the City. Completion of Construction does not include or require completion
of tenant build-out space within the Office Building or issuance of certificates of
occupancy for any single tenant of the Office Building.
“Developer” shall have the meaning set forth in the introductory paragraph.
“Developer Parties” shall have the meaning set forth in the introductory
paragraph.
“Development” shall have the meaning set forth in the recitals.
“Development Reimbursement” shall mean a maximum amount equal to the
lesser of $2,910,000 or 54% of the total garage costs paid to Developer in accordance
with Section 4.1.
“Effective Date” shall mean the last date of execution hereof.
“Expiration Date” shall mean the earlier of: (i) the date of termination of the
Zone; and (ii) the date on which Maximum Reimbursement Amount has been paid in full
to the Developer.
“Force Majeure” shall mean any contingency or cause beyond the reasonable
control of a party, as applicable, including, without limitations, acts of God or the public
enemy, war, riot, civil commotion, insurrection, adverse weather, government or de facto
governmental action or inaction (unless caused by negligence or omissions of such
party), fires, explosions, floods, strikes, slowdowns or work stoppages, shortage of
materials and labor.
“Impositions” shall mean all taxes, assessments, use and occupancy taxes,
charges, excises, license and permit fees, and other charges by public or governmental
authority, general and special, ordinary and extraordinary, foreseen and unforeseen,
which are or may be assessed, charged, levied, or imposed by any public or governmental
authority on the Project Owner with respect to the Land or improvements or any property
or any business owned by Project Owner within the City.
“Investment”, “Invest”, or “Invested” means the sum of all acquisition costs,
construction costs (hard and soft, but excluding costs of construction equipment), paid,
payable or actually incurred by or on behalf of the Developer Parties, with respect to the
Development and the improvements thereon.
“Land” shall have the meaning set forth in the recitals.
“Lease Hurdle” shall have the meaning set for in Section 4.1(a)(ii).
“Maximum Reimbursement Amount” shall mean the sum of the Development
Reimbursement and Public Improvements Reimbursement paid to Developer, which in
aggregate equals $3,450,000.
“Office Building” shall have the meaning set forth in the recitals.
“Parking Garage” shall have the meaning set forth in the recitals.
“Parking Garage Easement” shall have the meaning set forth in Section 3.4.
“Participation Agreement” shall mean an Agreement between the City and a
Taxing Unit for the Taxing Unit to contribute Tax Increment to the TIF Fund.
“Payment Request” shall mean a written request from the Developer to the City
for a Reimbursement Payment accompanied by: (i) copies of invoices, bills, receipts and
such other information as may be reasonably requested by City to document Project
Costs; and (ii) satisfactory written proof that all amounts owing to contractors and
subcontractors for the Public Improvements have been paid in full evidenced by the
customary affidavits executed by Project Owner and/or its contractors. Once the
Developer has submitted copies of invoices, bills, and receipts for eligible Project Costs
equal to the Maximum Reimbursement Amount the Developer is not required to include
such materials in any subsequent Payment Request.
“Plans and Specifications” shall mean the list of plans and specifications
Exhibit “C”
approved by the City attached hereto as .
“Project Costs” shall mean the following costs attributable to the construction of
the Office Building, Parking Garage and the Public Improvements: the acquisition of the
Land and construction, including, without limitation, all hard construction; the costs of
construction materials, building systems installation, and repairs; contractor fees;
architectural, engineering, design, and planning costs; development fees; insurance;
financing costs; electric and gas utilities; re-grading of the Block 16 of Southlake Town
Square; demolition of existing improvements that require relocation; and other project
costs authorized under the Act.
“Project Owner” shall have the meaning set forth in the introductory paragraph.
“Public Improvements” shall mean the improvements necessary for the
development of the Development, including the realignment of Reserve Street and
improvements to State and Division Streets, as shown on the attached Exhibit B, and all
required water, sewer, drainage and related public improvements, sidewalks, lighting,
streetscape, all as approved by the City.
“Public Improvements Reimbursement” shall mean a maximum amount equal to
the lesser of $540,000 or 40% of the public improvement costs paid to Developer in
accordance with Section 4.1.
“Reimbursement Payment” shall mean the payment to the Developer of the
Development Reimbursement or Public Improvements Reimbursement as set forth
herein.
“Related Agreement” shall mean any agreement (other than this Agreement) by
and between the City and any Developer Party, or any of its affiliated or related entities.
“Tax Increment” means the total amount of property taxes assessed by the City
and a Taxing Unit for a calendar year on the Captured Appraised Value of real property
taxable by the City and a Taxing Unit and located in the Zone. The amount of Tax
Increment contributed by the City or any other Taxing Unit shall be limited to any
maximum amount or other terms set forth in the respective Participation Agreement of
such Taxing Unit or the ordinance creating the Zone, in the case of the City.
“Tax Increment Base” means the total appraised value of all real property taxable
by the City and a Taxing Unit and located in the Zone for the calendar year 1997, which
is the year in which the Zone was designated by the City.
“TIF Fund” shall mean the funds deposited by the City and any Taxing Unit in the
Tax Increment fund for the Zone.
“Taxing Unit” shall mean Tarrant County, Texas and Carroll Independent School
District.
“Zone” shall have the meaning set forth in the recitals.
ARTICLE II
TERM
The term of this Agreement shall begin on the Effective Date and shall continue
until the Expiration Date, unless sooner terminated as provided herein.
ARTICLE III
DEVELOPMENT OF PROJECT
3.1 Design and Construction of Public Improvements and Development.
(a) Developer shall cause Project Owner to construct the Public
Improvements and Development in accordance with the Plans and Specifications and any
licenses, permits, or approvals issued by the City for the Development and Public
Improvements.
(b) Developer shall cause Project Owner to obtain all necessary permits and
approvals required by the City and any applicable governmental authorities for the
construction of the Development and the Public Improvements. The Developer Parties
shall be responsible for the design, inspection and supervision of the construction of the
Development and the Public Improvements.
(c) Prior to Commencement of Construction of the Development and the
Public Improvements, Developer shall cause Project Owner to submit final Plans and
Specifications for the Development and the Public Improvements, as the case may be, for
approval by the City, which approval shall follow the City processes for approval of such
Plans and Specifications as outlined in the Code of Ordinances for the City.
(d) The Developer Parties shall comply with all applicable local, state, and
federal laws and regulations regarding the design and construction of the Development
and the Public Improvements, including, but not limited to, any requirement relating to
payment, performance and maintenance bonds for the Public Improvements. Upon
Completion of Construction of the Public Improvements and the Development, the
Developer shall provide the City with a final cost summary of all costs incurred and paid
associated with the construction of the Development and the Public Improvements, and
provide proof that all amounts owing to contractors and subcontractors for the Public
Improvements have been paid in full evidenced by the customary affidavits executed by
the Project Owner and/or its contractors.
3.2 Inspection of Public Improvements. Construction of the Public
Improvements shall be subject to periodic inspections by the City to confirm compliance
with the City-approved plans and specifications. The Developer Parties shall be
responsible for completing and/or correcting any work not constructed in accordance
with the City-approved plans and specifications. Any material change in the design of the
Public Improvements during the construction stage shall be approved by the City. The
Developer Parties shall be responsible for the payment of all inspection fees associated
with the Public Improvements as required by the Code of Ordinances for the City.
3.3 Dedication or Conveyance of Public Improvements. The Project Owner
shall dedicate or convey the Public Improvements to the City as required by the Code of
Ordinances of the City, including, where so required, by special warranty deed conveying
good and indefeasible title in fee simple to the Public Improvements, free and clear of
any and all liens, encumbrances, conditions, assessments, and restrictions other than as
provided in this Agreement and those encumbrances existing of record as of the date
hereof; provided, however, that no encumbrances can interfere with the City’s ability to
use the Public Improvements. At the time of such dedications or conveyances, the
Project Owner shall deliver to the City: (i) releases from the contractors, subcontractors
and suppliers of materials who have provided labor and materials for the Public
Improvements showing that they have been paid for such labor and materials; and (ii) an
assignment of all warranties and payment and performance bonds applicable to the Public
Improvements.
3.4 Parking Garage Easement. Within thirty (30) days of the Completion of
Construction of the Parking Garage, Developer shall cause Project Owner to grant to the
Exhibit “D”
City a parking easement in the form attached hereto as (the “Parking Garage
Easement”) to permit the public parking in the Parking Garage in accordance with the
terms and conditions contained in the Parking Garage Easement.
3.5 Dedication of Right-of-way. The Developer Parties acknowledge that at
some undefined time after the Effective Date, City will be making roadway
improvements along SH 114 at State Street for the purpose of adding and widening turn
lanes onto SH 114, and such improvements will greatly benefit the Development. The
Developer Parties agree to work with City during the planning process as the City
determines the amount of the Land that will be needed to make the improvements. Within
thirty (30) days after receipt of City’s request, the Developer shall cause Project Owner to
dedicate to City, on a form acceptable to City, a portion of the Land necessary for the
City to construct the improvements. The Developer Parties’ dedication obligations in this
Section 3.5 will survive the termination of this Agreement.
ARTICLE IV
COST REIMBURSEMENT
4.1 Reimbursement Payments.
(a) Subject to the continued satisfaction of all the terms and conditions of this
Agreement by the Developer Parties, the City agrees, as consideration for the design and
construction of the Public Improvements and Development, to make the Reimbursement
Payments to Developer as follows, subject to satisfaction of the conditions contain in this
Agreement:
(i) Any time after the 60th day after the TIF Commencement Date,
Developer shall be entitled to receive an amount equal to the sum of (1) fifty
percent (50%) of the Development Reimbursement, and (2) one hundred percent
(100%) of the Public Improvements Reimbursement, such sum which shall be no
greater than $1,995,000.
(ii) Any time after the first anniversary of the payment of the
Reimbursement Payment made under Section 4.1(a)(i) above, Developer shall be
entitled to receive an amount equal to sum of the remaining fifty percent (50%) of
the Development Reimbursement, such sum which shall be no greater than
$1,455,000; provided, however, that in the event the Project Owner has not
executed bona-fide leases with non-related parties for at least 40% of theOffice
Building on such date (the “Lease Hurdle”), then the amount of the second
Reimbursement Payment shall be reduced by twenty five percent (25%) (i.e., by
$363,750) and Developer shall be entitled to receive payment of the remaining
Development Reimbursement upon the Project Owner achieving the Lease
Hurdle.
(iii) The amount of each Reimbursement Payment shall be the lesser of:
(i) the amounts set forth in paragraphs (i) and (ii) above that have not been paid to
the Developer; and (ii) the amount of available TIF Funds, below.
(iv) City shall make Reimbursement Payments to Developer within
thirty (30) days after receipt of a Payment Request. Developer may submit as
many Payment Requests as are necessary to receive the Maximum
Reimbursement Amount in accordance with the conditions set forth in this
Agreement.
(b) The parties agree that Reimbursement Payments shall be made solely from
funds from the TIF Fund, and only to the extent that funds are available in the TIF Fund.
Notwithstanding any other provision to the contrary, in no event shall the monies on
deposit in the TIF Fund be used to reimburse the Developer for the Project Costs under
this Agreement in excess of the Maximum Reimbursement Amount. The Developer
acknowledges and agrees that the City is only obligated to reimburse the Developer to the
extent that there are available funds from the TIF Fund, not to exceed the Maximum
Reimbursement Amount, during the term of this Agreement. The obligation of the City to
pay the Developer the Project Costs is limited to the extent that there are funds in the TIF
Fund available during the term of this Agreement in an amount not to exceed the
Maximum Reimbursement Amount.
(c) The Developer agrees to look solely to the TIF Fund, not the City general
or other funds, for payment of the Project Costs. Nothing in this Agreement shall be
construed to obligate the City to provide Reimbursement Payments from any other source
of funds or to otherwise require the City to pay the Developer for Project Costs in the
event there are insufficient funds in the TIF Fund to pay the Maximum Reimbursement
Amount, or in the event the Zone terminates prior to payment in full of the Maximum
Reimbursement Amount (provided the City shall not adopt an ordinance providing for
termination of the Zone on a date earlier than provided in the ordinance that established
the Zone, unless this Agreement has been terminated). Upon expiration of the term of this
Agreement and/or the expiration of the Zone, any Project Costs under this Agreement
that remain un-reimbursed due to lack or availability of TIF Funds, or due to the failure
of the Developer Parties to satisfy any precondition of reimbursement under this
Agreement, shall no longer be considered Project Costs of the Zone, and any obligation
of the City to reimburse the Developer for Project Costs shall automatically expire and
terminate on such date.
4.2 TIF Fund Priorities. The funds deposited in the TIF Fund shall be applied
in the following order of priority: (i) amounts pledged or required for payment of
outstanding bonds or debt issued for Zone projects, if any (and provided that bond
proceeds are used or reserved to pay City and Board obligations pursuant to this
Agreement); (ii) allocation of the maintenance of a minimum balance of $50,000.00 in
the TIF Fund; and (iii) Reimbursement Payments to the Developer as set forth in Section
4.1.
4.3 Reimbursement Limitations. The City shall not be required to make any
Reimbursement Payments to the Developer until: (i) such time as there is at least
$50,000.00 on deposit in the TIF Fund; (ii) after Completion of Construction of the
Development and the Public Improvements; (iii) the Developer Parties shall have
Invested at least $39,000,000 for the acquisition, development, and construction of the
Development, less any tenant improvement allowances, commissions, and/or contingency
funds to be spent in connection with the build-out of tenant leased space; and (iv) the
Project Owner has executed the Parking Garage Easement, and such form has been
recorded in the Real Property Records of Tarrant County, Texas.
4.4 Current Revenue. The Reimbursement Payments to be provided herein
shall be paid solely from lawful available funds in the TIF Fund. Under no circumstances
shall City’s obligations hereunder be deemed to create any debt within the meaning of
any constitutional or statutory provision.
ARTICLE V
CONDITIONS TO REIMBURSEMENT PAYMENTS
The obligation of the City and the Board to provide any Reimbursement Payments
to the Developer shall be conditioned upon the continuing compliance and satisfaction of
the terms and conditions of this Agreement by the Developer Parties and each of the
following conditions:
5.1 Payment Request. Developer shall, as a condition precedent to each
Reimbursement Payment, provide the City with a Payment Request for the applicable
reimbursement period and such documentation as may reasonably be required by the
City. Once the Developer has submitted copies of invoices, bills, and receipts for eligible
Project Costs equal to the Maximum Reimbursement Amount the Developer is not
required to include such materials in any subsequent Payment Request. All requests for
Reimbursement Payments must be made no later than September 1, 2018.
5.2 Good Standing. The Developer Parties shall not have an uncured breach or
default of this Agreement or any Related Agreement.
ARTICLE VI
TERMINATION
6.1 Unless terminated earlier as provided herein, this Agreement shall
terminate on the Expiration Date. However, this Agreement may be terminated prior to
the Expiration Date upon any one of the following:
(a) by written agreement of all parties;
(b) by any party in the event another party breaches any of the terms or
conditions of this Agreement and such breach is not cured within thirty (30) days
after written notice thereof;
(c) by the City, if any Developer Party suffers an event of Bankruptcy or
Insolvency;
(d) by the City, if any Impositions owed to the City or any Taxing Unit by the
Project Owner shall become delinquent and such delinquency is not cured within
thirty (30) days after written notice thereof (provided, however the Project Owner
retains the right to timely and properly protest and contest any such Impositions);
(e) by the City, if any subsequent Federal or State legislation or any final
decision of a court of competent jurisdiction declares or renders this Agreement
invalid, illegal or unenforceable; and
6.2 In the event the Agreement is terminated by the City pursuant to Section
6.1(b), (c), (d) or (e), the City shall be relieved of any further obligation to make
Reimbursement Payments to the Developer. In the event the Agreement is terminated
pursuant to Section 6.1(b) by the City, the City may also seek specific performance
against the Developer Parties, and/or actual damages incurred as a result of such uncured
default.
6.3 Right of Offset. The City may, at its option, offset any amounts due and
payable under this Agreement against any debt (including taxes) lawfully due to the City
from the Developer Parties (provided however the Developer Parties retain the right to
timely and properly protest and contest amounts that are due and payable to the City),
regardless of whether the amount due arises pursuant to the terms of this Agreement or
otherwise and regardless of whether or not the debt due the City has been reduced to
judgment by a court.
ARTICLE VII
MISCELLANEOUS
7.1 Binding Agreement. The terms and conditions of this Agreement are
binding upon the successors and assigns of all parties hereto. This Agreement may not be
assigned without the prior written consent of the other parties.
7.2 Limitation on Liability. It is acknowledged and agreed by the parties that
the terms hereof are not intended to and shall not be deemed to create a partnership or
joint venture among the parties. It is understood and agreed between the parties that
Developer Parties, in satisfying the conditions of this Agreement, has acted
independently, and City assumes no responsibilities or liabilities to third parties in
connection with these actions.
7.3 Authorization. Each party represents that it has full capacity and authority
to grant all rights and assume all obligations that is granted and assumed under this
Agreement. Developer Parties represents and warrants to the City that each is a duly
formed, validly existing corporation in good standing and is authorized to transact
business in the State of Texas.
7.4 Notice. Any notice required or permitted to be delivered hereunder shall
be deemed received three (3) days thereafter sent by United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the party at the address set forth
below or on the day actually received when sent by courier or otherwise hand delivered.
If intended for City or Board, to
Attn:
City Secretary
City of Southlake
1400 Main St.
Suite 300
Southlake, Texas 76092
With a copy to:
Taylor, Olson, Adkins, Sralla & Elam, L.L.P.
6000 Western Place, Suite 200
Fort Worth, Texas 76107
If intended for Developer Parties, to
Granite Properties, Inc.
5601 Granite Parkway, Suite 800
Plano, Texas 75204
Attn: David Cunningham
With a copy to:
Munsch Hardt Kopf & Harr, P.C.
500 N. Akard Street, Suite 3800
Dallas, Texas 75201
Attn: Glenn Callison
7.5 Entire Agreement. This Agreement is the entire agreement between the
parties with respect to the subject matter covered in this Agreement. There is no other
collateral oral or written Agreement between the parties that in any manner relates to the
subject matter of this Agreement, except as provided in the Related Agreements and any
Exhibits attached hereto.
7.6 Governing Law. This Agreement shall be governed by the laws of the
State of Texas; and exclusive venue for any action concerning this Agreement shall be in
a State District Court of Tarrant County, Texas. The parties agree to submit to the
personal and subject matter jurisdiction of said Court.
7.7 Amendment. This Agreement may only be amended by the mutual written
agreement of the parties.
7.8 Severability. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect other provisions,
and it is the intention of the parties to this Agreement that in lieu of each provision that is
found to be illegal, invalid, or unenforceable, a provision be added to this Agreement
which is legal, valid and enforceable and is as similar in terms as possible to the
provision found to be illegal, invalid or unenforceable.
7.9 Recitals. The recitals to this Agreement are incorporated herein.
7.10 Counterparts. This Agreement may be executed in counterparts. Each of
the counterparts shall be deemed an original instrument, but all of the counterparts shall
constitute one and the same instrument.
7.11 Exhibits. Any exhibits to this Agreement are incorporated herein by
reference for all purposes wherever reference is made to the same.
7.12 Survival of Covenants. Any of the representations, warranties, covenants,
and obligations of the parties, as well as any rights and benefits of the parties, pertaining
to a period of time following the termination of this Agreement shall survive termination.
THE CITY AND BOARD SHALL NOT
7.13 Release and Indemnification.
BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND OR
CHARACTER TO ANY PERSON OR PROPERTY ARISING FROM THE ACTS
OR OMISSIONS OF THE DEVELOPER PARTIES PURSUANT TO THIS
AGREEMENT. THE DEVELOPER PARTIES HEREBY WAIVE ALL CLAIMS
AGAINST THE CITY, THE BOARD, THEIR OFFICERS, AGENTS AND
EMPLOYEES (COLLECTIVELY REFERRED TO IN THIS SECTION AS
“CITY”) FOR DAMAGE TO ANY PROPERTY OR INJURY TO, OR DEATH
OF, ANY PERSON ARISING AT ANY TIME AND FROM ANY CAUSE OTHER
THAN THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
CITY. THE DEVELOPER PARTIES DO HEREBY INDEMNIFY AND SAVE
HARMLESS THE CITY AND BOARD FROM AND AGAINST ANY AND ALL
LIABILITIES, DAMAGES, CLAIMS, SUITS, COSTS (INCLUDING COURT
COSTS, ATTORNEYS’ FEES AND COSTS OF INVESTIGATION) AND
ACTIONS OF ANY KIND BY REASON OF INJURY TO OR DEATH OF ANY
PERSON OR DAMAGE TO OR LOSS OF PROPERTY ARISING FROM THE
DEVELOPER PARTIES’ BREACH OF ANY OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, OR BY REASON OF ANY ACT OR
OMISSION ON THE PART OF THE DEVELOPER PARTIES, THEIR
RESPECTIVE OFFICERS, DIRECTORS, SERVANTS, AGENTS, EMPLOYEES,
REPRESENTATIVES, SUBCONTRACTORS, LICENSEES, SUCCESSORS OR
PERMITTED ASSIGNS IN THE PERFORMANCE OF THIS AGREEMENT
(EXCEPT WHEN SUCH LIABILITY, CLAIMS, SUITS, COSTS, INJURIES,
DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED TO THE SOLE
NEGLIGENCE OF THE CITY). IN THE EVENT OF JOINT OR CONCURRENT
NEGLIGENCE OF BOTH THE CITY AND THE DEVELOPER PARTIES, THE
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT,
HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO
THE CITY AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES
UNDER TEXAS LAW. IF ANY ACTION OR PROCEEDING SHALL BE
BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH
LIABILITY OR CLAIM, DEVELOPER PARTIES SHALL BE REQUIRED, ON
NOTICE FROM THE CITY, TO DEFEND SUCH ACTION OR PROCEEDINGS
AT THE DEVELOPER PARTIES’ EXPENSE, BY OR THROUGH ATTORNEYS
REASONABLY SATISFACTORY TO THE CITY. THE PROVISIONS OF THIS
SECTION ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO
AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
DEVELOPER PARTIES’ OBLIGATIONS IN THIS SECTION WILL SURVIVE
THE TERMINATION OF THIS AGREEMENT.
7.14 Covenants and Representations. Developer Parties represent, warrant and
covenant that: (i) it has the authority to enter into this Agreement and has the authority to
execute and deliver this Agreement; and (ii) it has the authority to perform and comply
with all of the terms, covenants and conditions to be performed and complied with by the
Developer Parties hereunder.
7.15 Employment of Undocumented Workers. During the term of this
Agreement, the Developer Parties agree not to knowingly employ any undocumented
workers, and if convicted of a violation under 8 U.S.C. Section 1324a (f), the Developer
Parties shall repay the Reimbursement Payments provided herein and any other funds
received by the Developer Parties from the City as of the date of such violation within
120 business days after the date the Developer Parties is notified by the City of such
violation, plus interest at the rate of 6% compounded annually from the date of violation
until paid. The Developer Parties is not liable for a violation of this Section by a
subsidiary, affiliate, or franchisees of the Developer Parties or by a person with whom the
Developer Parties contracts.
7.16 Rough Proportionality. As additional consideration for the
reimbursements received by the Developer under this Agreement, the Developer Parties
agrees that all dedications, construction costs and other payments made by the Developer
Parties related to the Public Improvements are roughly proportional to the need for such
Public Improvements created by the development of the Land and the Developer Parties
hereby waives any claim therefore that it may have. The Developer Parties further
acknowledges and agrees that all prerequisites to such a determination of rough
proportionality have been met, and that any costs incurred relative to the dedication,
construction costs and other payments for the Public Improvements are related both in
nature and extent to the impact of the Development. The Developer Parties waive and
release all claims against the City related to any and all rough proportionality and
individual determination requirements mandated by Section 212.904, Texas Local
Government Code, or the Texas or U.S. constitutions, as well as other requirements of a
nexus between development conditions and the projected impact of the Development.
CITY OF SOUTHLAKE, TEXAS
Laura Hill, Mayor
Date: _______________________________
ATTEST:
Lori Payne, City Secretary
\[THIS AREA INTENTIONALLY LEFT BLANK\]
BOARD OF DIRECTORS OF THE REINVESTMENT ZONE NUMBER ONE,
CITY OF SOUTHLAKE, TEXAS
____________________________________
Chairman
Date: ________________________________
DEVELOPER PARTIES:
GRANITE PROPERTIES, INC., GPI-MT, LP,
a Delaware Corporation a Texas limited partnership
By: Granite Properties, Inc.,
By: a Delaware corporation,
Name: its general partner
Its:
Date: By:
Name:
Its:
Date:
EXHIBIT D
PARKING EASEMENT AGREEMENT
Agreement
This Parking Easement Agreement (this “”) is entered into effective as of
GrantorCity of Southlake, Texas
August, 18, 2015, by Granite Properties, Inc. (“”), and the ,
Grantee
a Texas municipal corporation (“”).
BACKGROUND
A. Grantor is the owner of the real property and improvements more particularly
Grantor Tract
described on Exhibit A attached hereto and made a part hereof (“”), which
shall include a to-be-constructed parking garage containing approximately 480 parking
spaces, as more particularly shown on the drawing attached hereto as on Exhibit B
Parking Garage
(collectively, the “”).
B. Grantor and Grantee entered into that Development Agreement dated as of
Development Agreement
August 18, 2015 (the “”), pursuant to which Grantee has
Incentives
committed to provide certain public incentives (the “”) to offset a portion of the
cost of the Parking Garage upon the terms and conditions set forth therein.
C. In connection of Grantee’s entering into the Development Agreement and
payment of the Incentives to Grantor, Grantor agrees to grant the public limited access to the
Parking Garage.
D. Grantor desires to grant to Grantee an easement right affecting the Grantor
Tract for the purpose of granting limited, non-exclusive use of the Parking Garage upon the
terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing recitals, as well as the
sum of $10.00 and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and confessed, the parties hereby agree as follows:
AGREEMENT
Grant of Easement
1..
(a) Upon completion of construction of the Parking Garage by Grantor and
subject to the terms of Section 1(b) below, Grantor hereby grants unto Grantee, and
its successors and assigns, for the benefit of the general public (collectively the
Grantee Parties
“”) a perpetual, non-exclusive right and easement to enter upon and
use the Grantor Tract for the sole purpose of automobile parking during the specified
time periods, and in the designated portions of the Parking Garage, set forth below
Easement
(such parking easement rights, the “”):
Day of Week Applicable Hours Easement Area
Monday – Friday Entire 24 hour period, Ground level of
maximum two hours Parking Garage
per visit
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
Monday – Friday 6:00PM - 6:00AM Entire Parking Garage
Saturdays,Entire 24 hour period Entire Parking Garage
Sundays and
Federal Holidays
(b) Restrictions on Grantee Parties’ use of the Easement:
(i) the Grantee Parties shall use and occupy the Easement only for
the use, and during the times, specified in Section 1(a) above and
for no other purpose;
(ii) the use of the Easement by the Grantee Parties shall be on a first-
come, first-serve basis along with Grantor’s employees, tenants,
agents, guests and/or invitees;
(iii) Grantee Parties use is subject to compliance with such reasonable
rules and regulations as Grantor from time to time may prescribe;
(iv) no Grantee Party may (i) solicit business or distribute leaflets or
other material in the Easement area, (ii) store any hazardous
substance or (iii) create a nuisance thereon;
(v) Grantor may utilize ticketing, parking meters or other similar
access control means of enforcing the permitted parking time
periods set forth in Section 1(a) above;
(vi) Grantor reserves the right to remove any vehicles or other personal
property in violation of this Agreement from the Easement at the
sole cost of the owner thereof; and
(vii) Grantor may temporarily close any part of the Easement for repairs
or alterations to the Grantor Tract (including, the Parking Garage)
or to prevent the public from obtaining prescriptive rights in the
Grantor Tract (including, the Parking Garage); provided, however,
Grantor must give Grantee at least twenty four-hour prior notice of
any anticipated repairs which would cause closure of the garage.
(c) Neither Grantor nor its successors or assigns will (i) erect or maintain
any Garage over the Easement that will materially impair the use of the Parking
Garage, except as may be permitted under the terms and conditions of any
agreements entered into by the parties hereto or except as may be required by any
applicable laws, or (ii) except as expressly provided herein, take any action which
would adversely affect the non-exclusive use and enjoyment by the Grantee Parties
of the Easement or Parking Garage.
(d) Nothing in this paragraph shall prohibit Grantor and its successors and
assigns from otherwise using the Parking Garage or Grantor Tract in any manner not
inconsistent with the rights granted herein.
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
(e) Grantor, at its sole expense, shall construct and install the Parking
Garage upon the Grantor Tract. The Parking Garage shall be constructed by Grantor
in a good and workmanlike manner in compliance with all applicable laws and the
Development Agreement. Grantor bears the cost and responsibility for the repair and
maintenance of the Grantor Tract and the Parking Garage. The Grantor Tract and
Parking Garage shall be maintained by Grantor in a good, neat and clean condition
and in compliance with all applicable laws.
(f) Notwithstanding anything in this Agreement to the contrary, Grantee
Parties’ use of the Easement will at all times be at no cost and free of charge.
Compliance with Laws and Rules
2..
(a) Grantee shall at all times comply with all applicable ordinances, rules,
regulations, codes, statutes and requirements of all federal, state, county and
municipal governmental bodies or their subdivisions respecting the Easement and the
Parking Garage.
(b) Grantor shall at all times comply with all applicable ordinances, rules,
regulations, codes, statutes and requirements of all federal, state, county and
municipal governmental bodies or their subdivisions respecting the Grantor Track.
Notice.
3. All notices, approvals, requests, consents, and other communications
given, required or permitted in accordance with the terms of this Agreement must be in
writing and must be hand-delivered or sent by Federal Express or other nationally recognized
overnight service or United States certified or registered mail. The parties will consider
notices given or delivered when received, except that if either party intentionally acts to
refuse delivery of a notice sent by any nationally recognized overnight courier service or
United States certified or registered mail, then the effective date shall be the date of delivery
to the nationally recognized overnight courier service or the U.S. mail on a business day
during normal business hours. The parties will address notices as follows:
If to Grantor: c/o Granite Properties, Inc.
5601 Granite Parkway
Suite 800
Plano, Texas 75093
Attn: Director, Development/Construction
If to Grantee: City Clerk
City of Southlake
1400 Main St.
Suite 270
Southlake, Texas 76092
Any party shall have the right to change its address for purposes of notice by written notice
served as provided herein for giving notices
Property Condition
4.. GRANTEE PARTIES ARE ACCEPTING THE
EASEMENT AND ALL PORTIONS OF THE PROPERTY AND IMPROVEMENTS WHICH
ARE RELATED TO THE SAME IN THEIR “AS IS” “WHERE IS” CONDITION AND WITHOUT
ANY REPRESENTATIONS OR WARRANTIES OR COVENANTS OF GRANTOR WITH
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
RESPECT THERETO AND, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, (I) THE GRANTEE PARTIES AGREE THAT THEY ACCEPT ALL PORTIONS
OF THE PROPERTY WHICH ARE SUBJECT TO THIS AGREEMENT IN THEIR PRESENT
STATE AND CONDITION AND “AS-IS WITH ALL FAULTS”; AND (II) GRANTOR SHALL
NOT BE RESPONSIBLE FOR ANY WORK ON THE PROPERTY OR THE
IMPROVEMENTS LOCATED THEREON NECESSARY TO SECURE OR PROVIDE
SECURITY FROM THEFT, VANDALISM, DESTRUCTION, ASSAULT, BATTERY, BODILY
HARM AND/OR ANY OTHER DAMAGES WHICH MAY BE INCURRED BY ANY AND ALL
ENTITIES, PERSONS, PERSONAL PROPERTY, REAL PROPERTY OR ANY OTHER
PERSONS OR ITEMS OF ANY KIND OR NATURE WHICH MAY BE LOCATED ON OR
WHICH MAY BE USING ANY PORTION OF THE PROPERTY AS A RESULT OF THE
EASEMENT GRANTED HEREUNDER OR THE EXECUTION OF THIS AGREEMENT, IT
BEING UNDERSTOOD THAT ALL VEHICLES ARE PARKED AT GRANTEE PARTIES’
SOLE RISK.
Rights Reserved to Grantor
5.. Grantor reserves the following rights, each of
which Grantor may exercise or refrain from exercising without notice to or the consent of
Grantee and without being deemed to have evicted Grantee: (1) Grantor may change the
name or street address of the Parking Garage; (2) Grantor may install and maintain signs in
or on the exterior of the Parking Garage; (3) Grantor may change the arrangement of
entrances, doors, corridors, elevators, or stairs in the Parking Garage common areas in any
way that does not impede access to or the use of the Easement; (4) Grantor may make other
additions, subtractions, or changes to common areas and to other areas in the Parking
Garage, so long as those additions, subtractions, or changes do not impede access to or the
use of the Easement; (5) Grantor may install, operate, and maintain systems that monitor, by
closed circuit television or otherwise, all persons entering or leaving the Parking Garage;
(6) Grantor may install and maintain ducts, conduits, wires, pipes, and structural elements
anywhere in the Parking Garage (including in and above the Easement) to serve other parts
of the Parking Garage or other grantees, so long as those installations do not impede access
to or the use of the Easement; and (7) Grantor may grant easement space anywhere in the
Parking Garage other than on the ground level to any number of other grantees. Without
limiting the foregoing, Grantee understands that the Parking Garage was designed to
Project
accommodate future construction of one or more adjacent parking areas (a "
Expansion
"), and if Grantor determines that a Project Expansion has become economically
feasible, Grantor may undertake the Project Expansion at some point during the Term.
Grantor will provide Grantee with at least 90 days' prior written notice before commencing
any Project Expansion. In that event, Grantor may from time to time temporarily close (or
impose restrictions upon the use of) all or parts of the Parking Garage to reinforce structural
elements of the existing Parking Garage or to make other changes or uses of the Parking
Garage that are reasonably required to accommodate the Project Expansion.
Rights of Third Parties
6.. The agreements of Grantor in this Easement and
other operative documents are intended solely for the benefit of Grantee and Grantee
Parties. All conditions to the obligations of Grantor under this Easement or other operative
documents are imposed solely for the benefit of Grantor, and no other Person may require
satisfaction of those conditions or assume that Grantor will enforce any or all of those
conditions.
No Personal Liability
7.. The liability of Grantor to Grantee for any default by
Grantor under this Easement is limited to the interest of Grantor in the Parking Garage, as
such interest may exist from time to time, and Grantee agrees to look solely to Grantor's
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
interest in the Parking Garage for recovery of any judgment from Grantor, it being intended
that Grantor will not be personally liable for any judgment or deficiency. Nothing in this
section or this Agreement shall limit Grantee’s ability to seek specific performance if Grantor
is in default of this Agreement.
No Liability for Exemplary, Special, or Remote Damages
8.. Grantor will not
be liable to Grantee for exemplary damages, for damages that are characterized in law as
"special" or "remote" (in contrast to damages that are characterized as "general" and
"direct"), for damages to Grantee's reputation, or for any resulting loss of future revenues of
Grantee.
Run With the Land.
9. This Agreement shall run with the land (the Grantor
Tract), and shall be binding on, and inure to the benefit of, the owner of the Grantor Tract,
and its respective successors and assigns, and on all parties having or acquiring any right,
title, interest, or estate in the Grantor Tract, or any portions thereof, and any such owner shall
be released from any additional obligations under this Agreement upon, and to the extent,
such owner has conveyed all of its right, title, interest and estate in the Grantor Tract.
Miscellaneous.
10.
(a) By execution of this Agreement, each party represents that (i) it has full
right, power and authority to enter into this Agreement, and carry out its commitments
made hereunder, and all requisite action to authorize such party to enter into this
Agreement and convey or cause the conveyance of the property to the other party
has been taken; (ii) the individuals executing this Agreement have been duly
authorized to bind such party to the terms and conditions hereof and thereof; and (iii)
the execution, delivery and performance by such party of this Agreement shall not
constitute or cause a default or breach of any agreement or undertaking of such party
or concerning the real property owned by such party (including but not limited to any
lease of the Grantor Tract).
(b) This Agreement shall be construed under the laws of the State of
Texas,and all obligations of the Parties are performable in Tarrant County, Texas.
Exclusive venue for any action to enforce or construe this Agreement shall be in
Tarrant County, Texas.
(c) In the event of a lawsuit in connection with this Agreement, the
prevailing party shall be entitled to recover from the non-prevailing party all costs of
court and reasonable attorneys’ fees incurred by the prevailing party in connection
with such lawsuit.
(d) If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent and for any
reason cannot be reformed, the remainder thereof and the application of such
provision to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
(e) This Agreement contains the complete agreement of the parties and
cannot be varied except by written agreement of the parties. The parties agree that
there are no oral agreements, representations, or warranties that are not expressly
set forth in this Agreement.
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
(f) Whenever context requires, the singular will include the plural, and
neuter will include the masculine or feminine gender, and vice versa. Article and
section and paragraph headings in this Agreement are for reference only and are not
intended to restrict or define the text of any such article, section, and paragraph. This
Agreement will not be construed more or less favorably between the parties by
reason of authorship or origin of language.
\[Signature pages follow.\]
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
day and year first above written.
GRANTOR:
By: Granite Properties, Inc.,
a Delaware corporation,
its sole member and manager
By:
David R. Cunningham, Director,
Development and Construction
THE STATE OF TEXAS §
§
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, on this day personally appeared ___________
____________, the ____________________________ of Granite Properties, Inc., a Delaware
corporation, sole member and manager of Grantor, known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me that he
executed the same as duly authorized officer of such corporation, for the purposes and
consideration therein expressed, and in the capacity therein stated as the act and deed of said
limited liability company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ___ day of ____________,
201__.
Notary Public in and for the State of Texas
\[ SEAL OF NOTARY PUBLIC \]
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
Grantee:
CITY OF SOUTHLAKE, TEXAS
By: ______________________________
Laura Hill, Mayor
THE STATE OF TEXAS §
§
COUNTY OF COLLIN §
BEFORE ME, the undersigned authority, on this day personally appeared
_________________________________, the ____________________________ of
___________________, known to me to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same as duly
authorized officer of such corporation, for the purposes and consideration therein expressed,
and in the capacity therein stated as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ___ day of ____________,
2015.
Notary Public in and for the State of Texas
\[ SEAL OF NOTARY PUBLIC \]
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
CONSENT OF GRANTOR TRACT MORTGAGEE
The undersigned is the holder of a first mortgage lien on the Grantor Tract as evidenced
by that \[NAME OF MORTGAGE\] dated __________ and recorded in ____________ of the Real
Property Records of _______, County, _____________, and hereby consents to and
subordinates its interest in the Grantor Tract to the rights granted to Grantee and Grantee
Parties under this Parking Easement Agreement.
\[NAME OF MORTGAGEE\],
a ____________
By:
Name:
Title:
THE STATE OF ____________ §
§
COUNTY OF ____________ §
BEFORE ME, the undersigned authority, on this day personally appeared ___________
____________, the ____________________________ of \[Name of Mortgagee\], a
__________________, known to me to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same as duly
authorized officer of such corporation, for the purposes and consideration therein expressed,
and in the capacity therein stated as the act and deed of said limited liability company.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ___ day of ____________,
20__.
Notary Public in and for the State of
\[ SEAL OF NOTARY PUBLIC \]
PARKING EASEMENT AGREEMENT
for Granite Garage Phase I
EXHIBIT A
GRANTOR TRACT
\[see attached drawing depicting the Parking Garage\]
A-1
EXHIBIT B
\[see attached rendering depicting the Parking Garage\]
B-1