2684 ORDINANCE NO.2024- 26Sy
AN ORDINANCE TO AUTHORIZE THE EXECUTION AND DELIVERY
OF A COMMUNITY DEVELOPMENT INCENTIVE AGREEMENT; TO
DECLARE AN EMERGENCY; AND FOR OTHER PURPOSES.
WHEREAS, the City of West Memphis, Arkansas (the "City") and the West Memphis
Advertising and Promotion Commission (the "Commission") desire to enter into a Community
Development Incentive Agreement (the "Agreement") with Buc-ee's West Memphis,-LLC, a
Delaware limited liability company (the "Company");.and
• WHEREAS, pursuant to the Agreement, the City and Commission will incentivize (as
specified in the Agreement)the Company's development and construction of a tourism attraction
and facility and related or ancillary facilities supporting or beneficial to the operation of such
facility (the"Project").
NOW,THEREFORE,BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WEST MEMPHIS,ARKANSAS:
Section 1. There be, and there is hereby, authorized and directed the execution and
„delivery.,,
F,of the Agreement, and the Mayor and City Clerk are hereby authorized to execute,
' acknowledge;and deliver the Agreement for and on behalf of the City. The Agreement is hereby
approved in substantially the form submitted to this meeting, and the Mayor is hereby authorized
to confer with the Company and the Commission in order to finalize the Agreement with such
changes, as shall be approved by such persons executing the Agreement, their execution to
constitute conclusive evidence of such approval.
RECEIVED
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Section 2. There exists a pressing need to increase jobs,tourism,and economic activity
within the City and the opportunity has arisen to achieve both of the goals through a single project,
provided that approval of certain incentives are timely achieved. Thus, this ordinance being
necessary for the immediate protection of the health, safety and welfare of the citizens of West
Memphis, Arkansas, an emergency is hereby declared to exist, and this ordinance shall be in full
force and effect from and after its passage.
PASSED and APPROVED this 29th day of October, 2024.
• ATTEST: APPROVED:
City Clerk Mayor
[SEAL]
Page 2
COMMUNITY DEVELOPMENT INCENTIVE AGREEMENT
THIS COMMUNITY DEVELOPMENT INCENTIVE AGREEMENT (the
"Agreement") is made and effective as of ,2024(the"Effective Date")by and
_between the City of West Memphis,Arkansas(the"City"),the West Memphis Advertising and
Promotion Commission (the "Commission") and Buc-ee's West Memphis, LLC, a Delaware
limited liability company (the "Company"). The City and the Company may be referenced
herein individually as a"Party"and together as"Parties".
WITNESSETH:
WHEREAS, the Company is contemplating the development and construction of a
tourism attraction and facility with additional supporting or ancillary facilities as may be
convenient or necessary, as determined by the Company ("Project"), on a portion of
approximately 34 acres of land located within the boundaries of the City of West Memphis,
Arkansas, as further described on Exhibit A(the"Project Property"); and
WHEREAS, the Company estimates that its total initial investment in equipment and
real estate improvements on the Project Property could be an estimated amount of Sixty Million
Dollars($60,000,000); and .
WHEREAS,the Company has requested the approval of tax abatement by the City and
other assistance from the City and the Commission with respect to a portion of the Project;and
WHEREAS, the.City desires to foster diversity in economic development and the
creation of additional tax revenue in the area where the Project will be developed, which is
currently being used primarily for agricultural purposes; and
WHEREAS, the Commission desires to increase tourism, recreation, and revenues
available for the advertising and promotion of the City, as defined by law; and
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WHEREAS, in consideration for the prior, current and on-going incentives provided
and to be provided by the City and to evidence the Company's investment in the City beyond
the boundaries the Project Property, the City and the Company agree that the Company will
cooperate with the City and contribute to the cost of developing and building specific
community infrastructure projects pursuant to the terms of this Agreement; and
WHEREAS,the Company wishes to further its policy of good corporate citizenship to
enhance the local community and future well-being and quality of life of the citizens of the
City; and
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WHEREAS, the City has determined that the completion of and operation of the
Project under the terms set forth in this Agreement is in the best interest of the citizens of the
City and that all or a portion of the Project is a"tourism attraction and facility"because it is a
recreational and/or entertain facility pursuant to Municipalities and Counties Industrial
Development Revenue Bond Law, codified as Ark. Code Ann. §§14-164-201, et seq. and
because all or a portion of the Project is an "economic development project" because it is a
facility for the retail sale of goods pursuant to the Local Job Creation, Job Expansion, and
Economic Development Act of 2017, codified as Ark. Code Ann. §§14-176-101, et seq.; and
RECEIVED
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WHEREAS, the Company has advised the City that the granting of tax abatement for
a portion of the Project with the payment of an annual sum equal to 35% of the amount which
otherwise would be'payable as ad valorem taxes to the applicable taxing authorities for a period
of thirty (30) years is of critical importance to the construction, installation and financial
viability of the Project,in light of the prevailing market and economic conditions within which
the Company seeks to develop the Project; and
WHEREAS,the City and the Commission have received an economic impact and cost-
benefit analysis evidencing that the proposed costs of the incentive proposal are outweighed
and supported by the anticipated local and regional economic benefit to be received as a result
of the development of the Project; and
WHEREAS, the Company has advised the City and the Commission that the Project
involves the acquisition, constructing, and equipping of a complex project, requiring highly
specialized work and specialized types of machinery and equipment as well as a specific site
layout with unique specifications, and upgrades, enhancements and additions to public
infrastructure and utilities are critically necessary to permit the Company to develop and
operate the Project.
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,the Parties do hereby agree as follows:
1. Recitals Part of Agreement. The representations and recitation set forth in the
foregoing recitals are material to this Agreement and are hereby incorporated into and made ,
part of this Agreement as though they were fully set forth in this Section.
2. Mutual Assistance. The Parties agree, subject to further proceedings required
by law, to take such actions, including but not limited to the execution and delivery of such
documents, instruments, petitions and certifications (and, in the case of the City and
Commission, holding certain public meetings and using its best efforts to the fullest extent
permitted by law to adopt certain ordinances and resolutions), as may be necessary or
appropriate, from time to time,to carry out the terms, provisions and intent of this Agreement
and to aid and assist each other in carrying out said terms,provisions and intent. The City and
Commission acknowledges that ownership and operation of all or portions of the Project may
be delegated to one or more entities that are related to the Company by ownership or other
means of control ("Affiliates"), as the Company may determine in its sole discretion. The
Parties acknowledge and agree that the City's and Commission's various commitments herein
extend to Affiliates of the Company;however,the Company retains the primary responsibility
for any monetary obligations set forth herein except as permitted by Section 17 hereof.
3. Completion of Project. Subject to (i) the approval of a payment in lieu of tax
agreement and related bond documents required by Arkansas law and its Constitution and (ii)
the issuance of necessary permits and zoning approvals (collectively, the "Prerequisite
Events"), and the commencement of installation of the Critical Infrastructure (as defined
herein),the Company shall use commercially reasonable efforts to commence construction and
equipping of the Project within ninety (90) days of the Company's receipt of the Prerequisite
Events, subject to any Force Majeure (as defined herein). As used herein, the term "Force
Majeure" means, any failure or delay in performance of Company's obligations under this
Agreement arising out of circumstances beyond its control, including, without limitation: acts
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of God; earthquakes; fires; floods; civil or military disturbances; accidents; acts of war or
terrorism; nuclear or natural catastrophes; sabotage; strikes; work stoppages; epidemics,
pandemics, quarantines or stay-at-home orders; riots; power failures; interruptions, loss,
malfunctions or failures of utilities, communications or computer (hardware or software)
services; accidents; labor disputes; or governmental actions.
4. Commitments from the Company. The location of the Project is a critical factor
to the development. The Company acknowledges and confirms that the Project Property is
acceptable to the Company and that the Company will purchase the Project Property from the
Commission after it is acquired. The Company acknowledges that the Commission will
acquire the Project Property for a purchase price of approximately $3,500,000 (the "Project
Property Purchase Price"). In connection with the development of the Project, the Company
agrees to cooperate with the City and contribute to the cost of developing and building the
Project and the Critical Infrastructure identified below.
(a) The Project involves the acquisition, constructing, and equipping of a complex
project, requiring highly specialized work and specialized types of machinery and equipment
as well as a specific site layout with unique specifications and is critically dependent on specific
utility and public infrastructure upgrades, enhancements and expansions to ensure the
successful completion of construction and on-going operation of the Project. The following
public utility and infrastructure are"Critical Infrastructure"that are required for the Project:
(i) Extension and widening of Interstate Center Drive in a manner
consistent with the scope and specifications set forth in Exhibit B.
(ii) Installation of traffic control signals at the intersection of east-bound and
west-bound traffic on the service roads connecting to Interstate Center Drive in a
manner consistent with the scope and specifications set forth in Exhibit C.
(iii) Installation of certain water and sanitary sewer utility infrastructure in a
manner consistent with the scope and specifications set forth in Exhibit D including,
but not limited to, a public sanitary lift station.
Each of the referenced and attached Exhibits may be supplemented and amended on an
on-going basis upon the mutual agreement of the City and the Company. Amendment and
supplementing of the Exhibits is not subject to Section 18 below.
(b) To ensure that the Critical Infrastructure is designed and installed in a manner
that will support the development of the Project and consistent with a timeline that will not
delay the development and construction of the Project, the Critical Infrastructure shall be
designed and constructed by the Company. Exclusive of the Project Property Purchase Price,
the City and Company agree that the current budget for construction and installation of the
Critical Infrastructure is approximately [$3,730,000] ("Critical Infrastructure Cost"). In order
to avoid delay in the development and construction of the Critical Infrastructure,the Company
agrees to pay the Critical Infrastructure Cost. Provided,however,the Company shall pay only
those portions of the Critical Infrastructure Cost related directly to portions of the Project pre-
approved by the Company. The Company and the City recognize that time is of the essence,
and each agree and confirm that,to the extent allowed by law,they will expedite all necessary
application submittals and approvals related to the Critical Infrastructure.
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(c) After completion and acceptance of the Critical Infrastructure, on-going
maintenance of the Critical Infrastructure shall be the sole responsibility of the City,Crittenden
County, or the State of Arkansas, as applicable.
(d) The Company's payment of the Critical Infrastructure Cost shall not constitute
a payment in lieu of any tax, charge, or fee of the City or any other taxing unit and shall be in
addition to and separate and distinct from any payments made by the Company pursuant to a
payment in lieu of tax agreement and related bond documents or any other tax, charge, or fee
payable by the Company.
(e) The Parties agree that a publicly accessible dog park shall be located within or
adjacent to the Project Property. The size, location, and design of the dog park shall be
approved by the Parties prior to construction. The Company shall have the right, but not the
obligation,to enter the dog park during open or closed hours to perform routine maintenance.
The Parties agree to reasonably communicate regarding any future changes or improvements
to the dog park before such changes or improvements are implemented.
(f) For a period of five years following the Project's opening date, the Company
will report the average number persons employed at the Project on a full-time or part-time basis
in conjunction with the Company's submission of A&P Tax payments.
5. Payments in Lieu of Taxes and Critical Infrastructure. In addition to receipt of
the Critical Infrastructure Reimbursement (as defined hereinafter), the Company is entering
into this Agreement in reliance on the City's approval of a payments in lieu of taxes agreement
relating to a portion of the investment by the Company in the Project. The Company has
requested that the City grant tax abatement with terms providing for the payment of an annual
sum equal to 35%of the amount which otherwise would be payable as ad valorem taxes to the
applicable taxing authorities for a period of thirty(30)years.
6. Commission Incentive.
(a) The Commission shall acquire the Project Property and promptly sell the Project
Property, less and except the dog park and the location of Critical Infrastructure, if any,to the
Company for nominal consideration. The "Commission Incentive" is defined to mean the
amount paid by the Commission for the Project Property proportionately reduced by the
percentage of land retained for the dog park or the location of Critical Infrastructure, if any.
For example, if 2%of the Project Property is retained by the Commission for the dog park and
the location of Critical Infrastructure, the Commission Incentive shall be 98% of the amount
paid by the Commission for the Project Property.
(b) The Commission provides the Commission Incentive to increase tourism,
recreation, and revenues available for the advertising and promotion of the City, as allowed by
law. After the first full year of operation, the Commission shall have the right to recoup the
Commission Incentive from the Company in the amount, if any, that the gross receipts tax
authorized under Ark. Code § 26-75-601 et seq., (the "A&P Tax") collected from the Project
Property and remitted to the Commission during a one-year period fails to exceed ten percent
(10%) of the Commission Incentive (the "Recoupment Amount"). For example, if the
Commission Incentive is$3,000,000 and the A&P Tax collected from the Project Property and
remitted to the Commission in a one-year period are $250,000, the Commission would be
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entitled to a Recoupment Amount of$50,000 from the Company. The Commission's right of
recoupment is subject to the following additional considerations:
(i) The intent of this Section is for the Commission to have assurances that
it will recover the Commission Incentive over a period of ten years through the
collection of A&P Tax from activity on the Project Property.
(ii) Any A&P Tax remitted to the Commission from activity on the Project
Property shall be included in calculations related to recoupment without regard to the
entity remitting payment of the A&P Tax including payments made by entities other
than the Company or an Affiliate.
(iii) The Commission shall promptly return any Excess Recoupment to the
Company on or about the end of each year of the Project's operation. The term"Excess
Recoupment"shall mean the sum of previously.unreturned Recoupment Amounts that,
when added to the A&P Tax collected from activity on the Project Property exceeds the
Commission Incentive multiplied by ten percent(10%) times the number of years that
the Project has operated. For example, assuming that(A)the Commission Incentive is
$3,000,000, (B)the Commission previously recouped$50,000 from the Company, and
(C) after five years A&P Tax collected from activity on the Project.Property is
$1,600,000, then the $50,000 previously recouped by the Commission would be
returned to the Company because the amount of A&P Tax collected plus the amount
recouped($1,650,000)exceeds the Commission Incentive multiplied by the number of
years of operation times ten percent($1,500,000).
(iv) The requirements of this Section 6 and the subsections thereto are
premised on the A&P Tax rates on the date that this Agreement is executed. A decrease
in the A&P Tax rate shall proportionately decrease the Commission Incentive that may
be recouped under this Agreement.
(v) At such time that the A&P Tax collected from activity on the Project
Property equals or exceeds the Commission Incentive, the provisions of Section 6(b)
described in this Agreement shall be terminated, including without limitation the
Commission's right to recoup the Commission Incentive and any portion thereof.
(c) The Commission will share with the City such reports as are submitted by the
Company that demonstrate compliance with or are otherwise required by the Agreement.
7. City Incentive.
(a) The City will waive the fees normally charged by it in connection with
construction, environmental, building or other permits or licenses necessary for the
construction, installation, use and/or operation of the Project.
(b) To the extent allowed by law,the City shall provide reasonable assistance to the
Company in obtaining such approvals, permits, licenses, or other governmental approvals, or
other actions as are required or necessary for the Company to commence construction and
completion of the Project and the use and operation of the Project, and the City shall refrain
from taking any action or inaction that impedes, hinders or delays construction or the
completion of the Project or the use and operation of the Project or alters negatively the
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economics of the Project for the Company from those anticipated by the Company in
connection with the Company seeking a tax abatement agreement.
For purposes of clarification, it is anticipated that such reasonable assistance will
include, but not be limited to:
(i) refraining from rescinding or modifying the approval of or the receipt of tax
abatement incentives the Company expects to receive;
(ii) working cooperatively with the Company to develop amendments of the City's
Zoning Code necessary for construction and operation of the Project, so that
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when modified the City's Zoning Code will be mutually beneficial to both the
City and the Company and will not impose undue burdens on either the City or
the Company,and it is currently anticipated that such modifications will include
variance approval relating to the height and surface area of poles and signage;
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(iii) refraining from modifying zoning regulations applicable to the Project other
• than as requested by the Company, otherwise agreed to by the Company, or
consistent with the terms of this Agreement and the obligations of the parties
set forth in this Agreement;
(iv) facilitating waivers or temporary zoning approval to support construction of the
Project, including, but not limited to, allowing portable housing in the Project
Property during construction to facilitate construction site security and the
recruitment and retention of the specialized construction personnel necessary
for construction of the Project;
(v) designation of a single point of contact for the City that will coordinate and
facilitate the City issuing and delivering in due course, without unreasonable
delay and in conformity with the City's normal operating procedures, any
construction, environmental, building or.other permit or license necessary for
the construction, installation, use and/or operation of the Project, the Critical
Infrastructure, and in further acknowledging that time is of the essence,the City
agrees to follow an expedited approval process when requested by the Company
and to work cooperatively with the Company to ensure that that all submissions
and requests are complete upon their initial submittal;
(vi) refraining from advocating against any construction, environmental or other
approval, permit, license or other governmental approval necessary for the
construction, installation, completion, use and/or operation of the Project that
does not obviously and materially harm the City or its inhabitants,with it being
understood and agreed to by the Parties that the(1)construction, environmental
or other approval,permit, license or other governmental approval necessary for
the construction,installation,completion,use and/or operation of the Project are
not expected to result in such material harm and are consistent with applicable
zoning ordinances,rules and regulations and(2)for approvals,permits,licenses
or other governmental approvals where the State of Arkansas and the City may
have overlapping jurisdiction, the receipt of such approval from the State of
Arkansas shall demonstrate that there is not material harm to the City or its
inhabitants; .
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(vii) . refraining from charging or attempting to charge utility rates,tap fees, franchise
fees, or other charges for services provided to the Project or Project Property at
the request of the Company, including, but not limited to, fiber, water, sewer,
wastewater, garbage, solid waste, electricity, and/or recycling services,that are
greater than the charges,rates,or fees charged to other similar commercial users
receiving substantially similar services from the City;
(viii) providing necessary electric infrastructure and capacity to deliver and
delivering required electric power during the construction of the Project at the
same rates as other similar commercial users or as otherwise negotiated by the
Company and the City;
(ix) cooperating with the Company in obtaining any necessary and/or requested
approval, permit, license, or easement while the agreements relating to tax
abatement are effective;
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(x) allowing the Company, in its discretion, to provide assistance in preparing
applications for necessary and/or requested permits relating to the Project or
Critical Infrastructure to optimize processing time frames, including, but not
limited to, facilitating studies or testing procedures that may be required;
(xi) to'the degree it is required, facilitate and support the negotiation of road use
agreements for construction vehicles serving the Project as may be necessary
with governing authorities having jurisdiction;
(xii) cooperating with the Company in obtaining the abandonment, relocation or
implementation of easements, licenses, access agreements, or other agreements
relating to,in or serving the Project as determined to be necessary or convenient
to the Company for the operation of the Project; or
(xiii) consider in good faith all requests for tax abatement incentives made by third
party vendors of the Company whether such vendors are co-located in the
Project Property or otherwise within the City's corporate limits.
(c) The City will reimburse the Company for a portion of the Critical Infrastructure
Cost in an amount equal to $1,500,000 ("Critical Infrastructure Reimbursement") in two (2)
equal installments with the first installment due within thirty(30) calendar days of the opening
of the Project to the public. The second installment shall be due no later than the first
anniversary of the due date of the first installment payment. In connection with its payment of
the Critical Infrastructure Reimbursement,the City covenants and agrees that it shall facilitate
the preparation and approval of such additional documents, if any, as are necessary to legally
obligate the City to make such payments and that such payments shall only be made from funds
that are legally available for such purpose.
(i) The City's purpose in providing the Critical Infrastructure
Reimbursement is to create new jobs,expand the City's tax base,attract new businesses
to the City, and attract visitors to the City.
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(ii) On or about the fifth anniversary of the Project's opening date, the City
may formally demand the Company to return the Critical Infrastructure Reimbursement
to the City, in whole or part, if the Company has failed to employee an average of one
hundred (100) full-time employees per year at the Project, absent force.majeure. The
Company shall thereafter be obligated to return the Critical Infrastructure
. Reimbursement less an amount equal to the Critical Infrastructure Reimbursement
multiplied by a fraction, the numerator of which is the average number of full-time
employees per year of the Company at the Project and the denominator of which is one
hundred (100). For example, if the Company is determined to have an average of 90
employees after five years and the City adopts a resolution demanding a return of the
Critical Infrastructure Reimbursement, the Company would be obligated to return
$150,000 (calculated as follows: $1,500,000 — (1,500,00 x 90/100) = $150,000), For
purposes of this Section 7(c)(ii), two part-time employees shall be deemed the
equivalent of one full-time employee.
(d) With respect to municipal services referenced in subparagraph 7(b)(vii) above,
the utilization of services made available to the City's residents on a voluntary basis is not
modified by this Agreement, and the Company retains the discretion to utilize such services
and is not compelled to utilize such services.
8. Disputes.
(a) Prior to the purchase of the Project Property by the Commission and the transfer
to the Company, in the event there is a dispute or disagreement between the City and the
Company relating to the terms and conditions of this Agreement, and it is not resolved within
thirty (30) days of delivery of written notice by one party to the other, Company has the right
to terminate this Agreement and thereafter will have no further obligations under this
Agreement.
(b) After the purchase of the Project Property by the City and the transfer to the
Company, in the event there is a dispute or disagreement between the City and the Company
related to the terms and conditions of the Agreement,the Parties shall use reasonable efforts to
settle disputes through negotiation between authorized members of each Party's senior
management. Either Party may, by written notice to the other Party, request a meeting to
initiate negotiations to be held within five(5)Business Days of the other Party's receipt of such
request, at a mutually agreed time and place. If the matter is not resolved within fifteen,(15)
Business Days of their first meeting,either Party may,by written notice to the other Party,refer
the matter to non-binding meditation.
(c) If either Party elects to refer a dispute to non-binding mediation,the Parties will
cooperate in selecting a qualified neutral mediator and in scheduling the time and place of the
mediation within the municipal boundary of the City as soon as reasonably possible,but in no
event later than thirty (30) days after the request for mediation is made. Unless otherwise
agreed, the mediation will be scheduled for a date not later than thirty (30) days after the
selection of the mediator. The Parties agree to participate in the non-binding mediation in good
faith and to share the costs of the mediation, including the mediator's fee, equally, but such
shared costs shall not include each Party's own attorneys' fees and costs,which shall be borne
solely by such Party. Such non-binding mediation shall be limited in duration to two(2) days.
In the event the dispute or disagreement between the City and the Company is not resolved
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within thirty-five (35) days of the completion of the non-binding mediation, the Parties may
avail themselves of such remedies as may be available at law or equity.
(d) Both City and Company agree that all communication within the scope of the
mediation are intended to remain confidential in compliance with Ark. Code Ann. § 16-7-206,
unless both Parties agree to waive confidentiality in writing.
9. Time of Essence. Time is of the essence with respect to performance of this
Agreement. The Parties shall make every reasonable effort to perform expeditiously (subject
to limitations as described herein),and the Parties acknowledge that the successful performance
of this Agreement requires their continued cooperation.
10. Confidentiality. Company considers information provided to the City and
Commission related to the Project to be proprietary and confidential and to contain trade secrets
and/or confidential business information, and the disclosure of such information would cause
the Company and its Affiliates irreparable harm and competitive disadvantage. The Parties
mutually agree that information provided by the Company to the City and Commission in
connection with the Project is of the nature described in Ark. Code Ann. §§ 25-19-105(b)(9)
and will not be disclosed by the City except to the extent required by the Arkansas Freedom of
Information Act and strictly in accordance with Section 11 below.
11. Procedure for Responding to Freedom of Information Act Requests. If, under
the provisions of the Arkansas Freedom of Information Act (Ark. Code Ann. §§ 25-19-101 et
seq.),the City is requested to disclose any item or data relating to information furnished to the
City by the Company with respect to the Project, the City must (a) promptly notify Company
in writing of such request, (b) permit the Company, in its sole discretion, to challenge or limit
the disclosure requirement or seek an appropriate protective order or other appropriate judicial
remedy to prevent or limit the disclosure, and(c)cooperate with Company to narrow the scope
of such disclosure.
12. No Joint Venture or Partnership. Nothing contained in this Agreement shall be
construed as creating a joint venture or partnership relationship between the City and the
Company or any Affiliate thereof with respect to, but not limited to, the Project or the
Community Development Project. This Agreement shall not be considered to create any type
of joint venture, partnership, or any other legal relationship between the Parties where either,
Party shall share or be responsible for the debts or liabilities of the other Party.In addition,this
Agreement shall not be construed as making either Party an agent of the other Party beyond
the extent expressly provided in and limited by this Agreement, or as giving the right of one
Party to legally bind the other in any manner so as to permit the incurrence of debts and •
liabilities on behalf of the other Party.
13. Arkansas Law. This Agreement shall be construed in accordance with the laws
of the State of Arkansas.
14. Notices. All notices and requests required pursuant to this Agreement shall be
deemed sufficiently made if delivered, in writing, as follows:
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If to Company:
Buc-ee's West Memphis,LLC
327 FM 2004
Lake Jackson,Texas 77566
Attention: Managing Member
If to the City:
City of West Memphis, Arkansas
P.O.Box 1728
West Memphis, AR 72301
Attention: Mayor
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15. Due Diligence; Permitted Delays. Whenever performance is required of any
Party hereunder, such Party shall use all due diligence and take all necessary measures in good
faith to perform; provided, however, that any failure or delay in the performance of its
obligations under this Agreement arising out of or caused by, directly or indirectly, from a
Force Majeure event shall not be a violation of this Agreement.
16. No Waiver of Assessment or Administrative Processes. Nothing in this
Agreement shall prohibit Company(or owner(s)of any portion of the Project, as their interests
may appear) from reviewing, appealing, or otherwise challenging, at any time, (i)the assessed
value of the Project in the same manner as any taxpayer may seek review of the assessed value
of his, her or its real and personal property that are subject to ad valorem taxation or (ii) the
implementation of new,the elimination of existing,or the modification of existing ordinances,
rules, regulations, codes or ordinances in the same manner that any individual or corporate
citizen of the City may pursue.
17. Assignment; Subletting; and Mortgages.
(a) The rights and obligations contained in this Agreement may be assigned by the
Company, without the prior approval of the City, for the purposes of financing the
development, construction and/or operation of the Project (any of the foregoing actions, a
"Collateral Assignment").Through such Collateral Assignment, Company may enter into any
partnership or contractual arrangement, including but not limited to, a partial or conditional
assignment of equitable interest in the Company or its parent to any person or entity, including
but not limited to tax equity investors,or by security,charge or otherwise encumber its interest
under this Agreement. City shall agree to execute and deliver any reasonably requested
consents, estoppels, certificates, and agreements related to a Collateral Assignment, pursuant
to which, among other matters, the City will acknowledge its consent to the Collateral
Assignment, and will agree to provide certain notices or information to the assignee related to
performance or non-performance of the Company's obligations under this Agreement, and to
perform its obligations under this Agreement in favor of any assignee pursuant to the Collateral
Assignment (subject to performance by the assignee and other reasonable conditions).
Promptly after making such encumbrance, Company shall notify the City in writing of the
name, address, and telephone and facsimile numbers of each party in favor of which
Company's interest under this Agreement has been encumbered(each such party,a"Financing
Party" and together, the "Financing Parties"). Such notices shall include the names of the
account managers or other representatives of the Financing Parties to whom all written and
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telephonic communications may be addressed. After giving the City such_initial notice,
Company shall promptly give the City notice of any change in the information provided in the
initial notice or any revised notice. The Company shall,in the event of any such Collateral
Assignment,remain bound to the terms of this Agreement.
(b) The Company may encumber, hypothecate, mortgage, pledge or alienate
Company's fee and/or leasehold estate and lights related to the Project as security for payment
of any indebtedness of Company or its Affiliates to one or more institutional lenders or other
secured creditors of Company or its Affiliates. The Company shall,in the event of any such
subletting, assignment, encumbrance, hypothecation, mortgage, pledge or alienation,
remain bound to the terms of this Agreement.
(c) The Company may (i) consolidate with or merge into another domestic or
,foreign corporation, limited liability company or other entity (that is a corporation, limited
liability company or other entity organized and existing under the laws of one of the states of
the United States of America), or permit one or more other corporations, limited liability-
companies or other entities to consolidate with or merge into it,or(ii)sell or otherwise transfer
to another domestic or foreign corporation, limited liability company or other entity all or
substantially all of its assets as an entirety and thereafter dissolve on the condition(A)that such
• surviving, resulting or transferee corporation, limited liability company or other entity shall
expressly assume in writing all of the obligations of the Company contained in this Agreement,
(B)that the net tangible assets of the other corporation or other entity after the consolidation,
merger or sale be at least equal to the net tangible assets of the Company immediately prior to
such consolidation, merger or sale, and (C) that such surviving, resulting or transferee
corporation, limited liability company or other entity qualifies to do business in the State. As
used herein,"net tangible assets"means all assets of the corporation,limited liability company, -
or other entity(except there shall not be included goodwill) less all liabilities. •
(d) In the event of such consolidation, conversion, merger or sale, as permitted by
this Section, and the assumption by the surviving, resulting or transferee corporation or other
entity of the obligations hereof, the Company shall be relieved of all further obligations
hereunder. Prior to any such consolidation,conversion,merger or sale,the Company shall give
• written notice thereof to City not less than thirty (30) days prior to such occurrence unless a
shorter period of time as is acceptable to City. .
(e) Company,'as Lessee under applicable tax abatement documents,'may sell or
assign its interest in the Project and. be relieved of its obligations under this Agreement in
situations other than those described in this Section, but only with the written consent of the.
City.
(f) The City acknowledges that the Company has the right and ability to sublet
and/or assign all or a portion of the Project to both Affiliates and unrelated third parties at its
sole and absolute discretion. Except as provided in Sections 17(a)-(e) above, in the event that
Company alienates all or a portion of the Project Property toany entity other than an Affiliate
of the Company, the Commission, or the City for an exchange of value,the Commission shall
be entitled to a share of such value equal to the lesser of: (a)the Commission Incentive, (b)the
value received by Company for the Project Property sold multiplied by fraction the numerator
of which is the size of the area sold and the denominator of which is the total size of the Project •
Property. The Recoupment Amount described in Section 6 shall be reduced by the amount, if
any,that the Commission receives pursuant to this Section 17(f).
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18. Consent Required for Modification. With the exception of the amendment or
supplementing of Exhibits pursuant to Section 4 above, it is agreed that the Parties shall not
alter,modify,or amend any of the terms of this Agreement except by mutual written agreement.
19. Severability. If any provision of this Agreement or the application thereof to
any person or circumstance shall,to any extent, be determined to be invalid or unenforceable,
the remainder of this Agreement and the application of its provisions to persons or
circumstances other than those as to which it has been determined to be invalid or
unenforceable, shall not be affected thereby, and each provision of this Agreement shall be
valid and shall be enforced to the fullest extent permitted by law.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and
the same instrument.
21. Authorization. The execution, delivery and performance of this Agreement by
the City and the Company and the consummation by the City and the Company of the matters
contemplated hereby has been duly authorized by all necessary action on the part of the City
and the Company.
22. Joint Preparation. This Agreement shall be deemed to have been prepared
jointly by the Parties, and any uncertainty or ambiguity existing herein shall not be interpreted
against any Party by reason of its drafting of this Agreement but shall be interpreted according
to the application of the general rules of interpretation for arm's length agreements.
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EXHIBIT C
[Installation of traffic control signals at the intersection of east-bound and west-bound traffic
on the service roads connecting to Interstate Center Drive]
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EXHIBIT D
[Installation of certain water and sanitary sewer utility infrastructure, including, but not
limited to, a public sanitary lift station.]
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