Vista Ridge Retail-CS080805 (2)(12I9I2009) Ken Griffin -Fwd: United Development Co Eco Devo Agreement
From: Mindi Hurley
To: Griffin, Ken
Date: 8/5/200811:19 AM
Subject: Fwd: United Development Co Eco Devo Agreement
Attachments: Tammie Carswell.vcf; 2United Development Co Eco Devo Agreement24351.doc; Ta
mmie Carswell.vcf
Ken,
Here is the funding agreement between the City and MArket Street. I have not looked at this in months, but when I just
looked through it again, I noticed Pete did not put anything in there about the sales tax requirement from Market Street. I
need to look back through my notes...perhaps we decided to take out that requirement. I'm not sure. If I can't find
anything addressing that, I will have Pete put that back in.
Mindi Hurley
Economic Development Coordinator
City of Coppell
255 Parkway Blvd.
Coppell, TX 75019
(972) 304-3677
(972) 304-3673 (fax)
www.ci.coppel I.tx, us
»> "Tammie Carswell" <tarswell@njdhs.com> 2/13/2008 2:49 PM »>
Mindi:
Attached for your review and comment is the latest draft of the Economic
Development Agreement between the City and United Development Co.
Please feel free to call or a-mail if you have any questions.
Tammie
Tammie Carswell
Legal Assistant to Peter G. Smith
Nichols, Jackson, Dillard
Hager & Smith, LLP
1800 Lincoln Plaza
500 North Akard Street
Dallas, Texas 75201
214-665-3378 Direct
214-965-0010 Fax
**Information contained in this transmission is attorney privileged and
confidential. It is intended for the use of the individual or entity
named above. If the reader of this message is not the intended
recipient, you are hereby notified that any dissemination, distribution
or copy of this communication is strictly prohibited. If you have
received this communication in error, please immediately notify us by
telephone.
Page 1
Draft 02-13-08
STATE OF TEXAS §
§ Economic Development Incentive Agreement
COUNTY OF DALLAS §
This Economic Development Incentive Agreement (this "Agreement") is made by and
among the City of Coppell, Texas (the "City'), and United Development Company, Inc. (the
"Company'), acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the Company is the owner or is under contract to purchase real property at the
north east intersection of Denton Tap and State Highway 121 Coppell, Texas described in Exhibit "A",
(the "Land"), and intends to develop the Property for a retail grocery store and other uses; and
WHEREAS, the Company is required to erect a traffic signal at the intersection of Denton
Tap and Highland Drive, Lewisville, Texas which is necessary for the development of the Property
(hereinafter defined as the "Traffic Signal"); and
WHEREAS, the Company has advised the City that a contributing factor that would
induce the Company to develop the Property would be an agreement by the City to provide an
economic development grant to the Company to offset a portion of the costs of the Traffic Signal;
and
WHEREAS, the City has adopted programs for promoting economic development; and
WHEREAS, the City is authorized by TEx. Loc. Gov'T. CODE § 380.001 to provide
economic development grants to promote local economic development and to stimulate business
and commercial activity in the City; and
NOW THEREFORE, in consideration of the foregoing, and other valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Article I
Term
The term of this Agreement shall begin on the last date of execution hereof ("Effective
Date") and continue until the Expiration Date, unless sooner terminated as provided herein.
Article II
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed to
them:
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"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 the
Traffic Signal; (ii) all necessary permits for installation of the Traffic Signal pursuant to the
respective plans therefore having been issued by all applicable governmental authorities; and (iii)
installation of the Traffic Signal has commenced.
"Company' shall mean United Development Company, Inc. a Texas Corporation.
"Completion of Construction" shall mean that: (i) the Traffic Signal has been completed,
and (ii) the City and applicable governmental authorities have accepted the Traffic Signal.
"Effective Date" shall mean the last date of execution hereof.
"Event of Bankruptcy or Insolvency' shall mean the dissolution or termination of a party's
existence as a going business, insolvency, appointment of receiver for any significant 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.
"Expiration Date" shall mean the date on which all parties have fully satisfied their
respective obligation herein.
"Force Majeure" means any contingency or cause beyond the reasonable control of a party
including, without limitation, acts of God or the public enemy, war, terrorism, riot, civil
commotion, insurrection, criminal acts by unrelated third parties, government or de facto
governmental action (unless caused by acts or omissions of the party) adverse weather, fires,
explosions or floods, strikes, slowdowns or work stoppages.
"Grant" shall mean an economic development grant to offset a portion of the cost for the
design and installation of the Traffic Signal incurred and paid by Company not to exceed
"Land" shall mean the real property described in Exhibit "A".
"Payment Request" shall mean a written request from Company to the City for payment of a
Grant accompanied by copies of invoices, bills, receipts and such other information as may be
reasonably requested by City to document Company expenditures for the cost to design and install
the Traffic Signal.
"Traffic Signal" shall mean a traffic control signal to be installed at the intersection of
Denton Tap and Highland Drive in accordance with plans to be approved by the City and
applicable governmental authorities.
Article III
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Economic Development Grants
3.1 Grant. Subject to the Company's continued satisfaction of all the terms and
conditions of this Agreement, and the Company's obligation to repay the Grant pursuant to
Section 5.2 hereof, City agrees to provide the Company with Grant as set forth herein. The City
shall provide the Grant to the Company within sixty (60) business days after City's receipt of a
Payment Request following the Completion of Construction of the Traffic Signal.
3.2 Current Revenue. The Grant made hereunder shall be provided solely from lawfully
available funds that have been appropriated by the City. Under no circumstances shall the obligations
of the City hereunder be deemed to create any debt within the meaning of any constitutional or
statutory provision. Consequently, notwithstanding any other provision of this Agreement, the City
shall have no obligation or liability to pay the Grant unless the City appropriates funds to make such
payment during the budget year in which such Grant is payable. Further, the City shall not be obligated
to pay any commercial bank, lender or similar institution for any loan or credit agreement made by the
Company and /or Company. None of the obligations of the City under this Agreement shall be pledged
or otherwise encumbered in favor of any commercial lender and/or similar financial institution
3.3 Market Street. The Company agrees to enter into an agreement with United
Supermarkets for the lease and occupancy of a portion of the Land fora "Market Street" grocery
store for a period of at least ten (10) years (the "Lease") beginning on the commencement date of
the Lease which shall be no later than (the Lease Commencement Date"). A "Market
Street" grocery store shall beginning on the Lease Commencement Date and continuing for a
period of ten (10) years thereafter continuously lease a portion of the Land and operate a grocery
store thereon under the brand name of "Market Street" open to the public for the retail sale of
goods and merchandise serving the citizens of the City.
Article IV
Conditions to Grants
The obligation for the City to provide the Grant hereunder shall be conditioned upon the
Company's continued compliance with the terms and conditions of this Agreement, and each of
the conditions set forth below:
4.1 The Company shall, as a condition precedent to the payment of a Grant, provide
the City with the respective Payment Request for the Grant.
4.2 The Company shall not have an uncured breach or default of this Agreement.
4.3 The Company shall, subject to events of Force Majeure, cause Commencement of
Construction to occur on or before after the Effective Date, and subject to events of
Force Majeure to cause Completion of Construction to occur on or before thereafter.
4.4 The Company shall have entered into the Lease.
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Article V
Termination
5.1 Termination. This Agreement shall terminate upon the occurrence of any one or
more of the following:
(a) the execution by all parties of a written agreement terminating this
Agreement;
(b) the Expiration Date;
(c) by either party by written notice of termination to the other party, in the
event other 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; or
(d) by the City, upon written notice of termination if the Company suffers an Event
of Bankruptcy or Insolvency;
(e) by the City, upon written notice of termination if any Impositions owed to the
City or the State of Texas by the Company and/or Company shall become
delinquent (provided, however the Company retains the right to timely and
properly protest and contest any such Impositions) and such delinquent
Impositions are not paid within thirty (30) days after written notice thereof; or
(f) by the City, upon written notice of termination, if any subsequent Federal or
State legislation or any decision by a court of competent jurisdiction declares or
renders this Agreement invalid, illegal or unenforceable;
5.2 In the event the Agreement is terminated by the City pursuant to Section 51(c) for a
breach of Section 3.3 hereof, the Company shall immediately pay to the City an amount equal to the
sum of the Grant paid by the City to the Company immediately proceeding the date of such
termination, plus interest at the rate periodically announced by the Wall Street Journal as the prime
or base commercial lending rate, or if the Wall Street Journal shall ever cease to exist or cease to
announce a prime or base lending rate, then at the annual rate of interest from time to time
announced by Citibank, N.A. (or by any other New York money center bank selected by the City)
as its prime or base commercial lending rate, from the date of termination until paid.
Article VI
Miscellaneous
6.1 Binding Agreement; Assignment. The terms and conditions of this Agreement
are binding upon the successors and permitted assigns of the parties hereto. This Agreement may
not be assigned without the prior written consent of the City Manager.
6.2 Limitation on Liability. It is understood and agreed among the parties that the
Company and the City, in satisfying the conditions of this Agreement, have acted independently,
and assume no responsibilities or liabilities to third parties in connection with these actions.
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6.3 No Joint Venture. 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.
6.4 Authorization. Each party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
6.5 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received (i) three (3) days after deposit into the United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the party at the address set forth below or (ii)
on the day actually received if sent by courier or otherwise hand delivered.
If intended for City, to:
Attn: City Manager
City of Coppell, Texas
P.O. Box 478
Coppell, Texas 75019
With a copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
If intended for Company, to:
United Development Company, Inc.
7001 Preston Road, Suite 500
Dallas, Texas 75205
Attn: Jim Stabler
Telephone: 214-224-4600
Telecopy: 214-219-2080
Any party shall have the right to change its address for notice by sending notice of change of
address to each other party, in the manner described above.
6.6 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 among the parties that in any manner relates to the subject matter of this Agreement, except
as provided or referred to in this Agreement or as provided in any Exhibits attached hereto.
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6.7 Governing Law. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in the State District Court of
Dallas County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of
said court.
6.8 Amendment. This Agreement may only be amended by a written agreement
executed by all parties.
6.9 Legal Construction. 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 shall 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.
6.10 Recitals. The recitals to this Agreement are incorporated herein.
6.11 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.
6.12 Exhibits. The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
6.13 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.
6.14 Conditions Precedent. This Agreement and the provision of the Grant provided
herein for are expressly subject to and contingent upon Company closing its purchase of the Land
on or before 2008.
6.15 Employment of Undocumented Workers. During the term of this Agreement the
Company agrees not to knowingly employ any undocumented workers and if convicted of a
violation under 8 U.S.C. Section 1324a (f), the Company shall repay the amount of the Grants
and any other funds received by the Company from the City as of the date of such violation within
120 business days after the date the Company 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
Company is not liable for a violation of this section by a subsidiary, affiliate, or franchisee of the
Company or by a person with whom the Company contracts.
[Signatures Appear on the Following Pages]
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EXECUTED in duplicate originals this the day of, 2008.
City of Coppell, Texas
By:
Douglas N. Stover, Mayor
Attest:
By:
Libby Ball, City Secretary
Agreed as to Form:
By:
City Attorney
EXECUTED in duplicate originals this the day of,
United Development Company, Inc.
By:
Jim Stabler
President
2008.
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Exhibit "A"
Legal Description of Property
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