City Council

December 19, 2024 STATE OF ALABAMA, LIMESTONE COUNTY, CITY OF ATHENS. The City Council of the City of Athens, Alabama met in a Special Called session at the Athens Municipal Building, 200 Hobbs Street West, Athens, Alabama, on December 19th 2024 at 9:00 a.m. The meeting was called to order by Councilman James Lucas, President of the City Council. Upon roll call, the following were found to be present: Councilmembers Chris Seibert, Harold Wales, James Lucas and Dana Henry. Councilman Harper was absent. Annette Barnes-Threet, City Clerk, was present and recorded the minutes of the meeting. The Chairperson stated that a quorum was present and that the meeting was open for transaction of business. Councilman Wales introduced the following resolution: RESOLUTION NUMBER 2024 – 2042 A RESOLUTION APPROVING AN ECONOMIC DEVELOPMENT PROJECT RELATING TO BRE ATHENS, LLC _______________________________________________ WHEREAS, BRE ATHENS, LLC (the “Company”), intends to develop and operate a Publix grocery supermarket located at the southeast corner of Highway 72 and Mooresville Road, Athens, Alabama (the “Project”); WHEREAS, the City Council (the “Council”) of the City of Athens (the “City”) has determined that it is in the City’s best interest to provide economic development incentives to the Company in order to facilitate the development, construction and establishment of the Project, and that such expenditure will serve a valid and sufficient public purpose, notwithstanding any incidental benefit accruing to the Company or any other private entities; WHEREAS, the Project is expected to: result in the creation of approximately 115 new jobs and generate annual sales of approximately Twenty-Two Million Dollars ($22,000,000.00); WHEREAS, the Athens 2040 Comprehensive Plan notes that the City experiences significant grocery store sales leakage, and calls for additional grocery stores to address the problem; WHEREAS, such leakage is believed to be exacerbated in the area of the Project; WHEREAS, the comprehensive plan also identifies the area of the Project as a Tier 2 non-residential investment area, and calls for new suburban corridor development in this area; WHEREAS, the Project poses a unique opportunity to address these priorities and to create a new commercial hub within the City, significantly contributing to the overall economic development of the City; WHEREAS, the Council wishes to extend economic development incentives to the Project; WHEREAS, the activities to be authorized by this resolution; the public benefits sought to be achieved thereby; and each individual, firm, corporation, and other business entity to whom or for whose benefit the City proposes to lend its credit or grant public funds or thing of value, have been described in reasonable detail and/or identified in a notice published in the Athens News Courier (which this City Council finds and determines is the newspaper having the largest circulation in the county or municipality), at least seven days prior to this meeting at least seven days prior to this meeting; WHEREAS, such public notice is attached to this Resolution as Attachment A and incorporated hereto as if set forth fully herein; WHEREAS, pursuant to a project agreement, the City and the Company wish to memorialize the general terms of their agreement with respect to the development of the Project; and  WHEREAS, pursuant to the Project Agreement, the City would (a) annually pay the Company in arrears one hundred percent (100%) of the proceeds from the City’s sales tax (levied pursuant to Chapter 18, Articles 2 and 9 of the City Code) actually received by the City from the Project, net of certain costs, for a period of ten (10) years, or until $5,600,000 is paid by the City to the Company, whichever is first, and (b) pay the Company $1,000,000 upon the construction of certain internal roadways in the Project that would be dedicated to the City, all as described in more particularity in the Project Agreement, among other things. THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA on December 19th, 2024, at 9:00 a.m., as follows: 1. The Mayor of the City is hereby authorized and directed, in the name of and for account of the City, to enter into a contract between the City and the Company, in substantially the same form as is attached hereto (and entitled the “Project Agreement”) as Attachment B, with such non-substantive changes or additions thereto or deletions therefrom as the Mayor shall approve, which approval shall be conclusively evidenced by his execution of such instrument. The City Clerk of the City is hereby authorized and directed to attest the same. 2. It is hereby determined that the expenditures of public funds for the purposes specified in this resolution (and in Attachment B) will serve valid and sufficient public purposes, including: (i) promoting, improving and expanding economic and commercial development/activity, (ii) increasing the number and diversity of employment opportunities for citizens of the City, and (iii) enhancing the overall quality of life for the citizens of the City, notwithstanding any incidental benefit accruing to any private entity or entities. 3. The Mayor is authorized to take actions and execute such other and further documents as may be necessary to effect and carry out the transactions contemplated by this Resolution and/or the agreement referenced herein, including but not limited to authorizing the issuance of warrants; the expenditure and use of municipal funds as set forth in those agreements; and approving and executing further agreement(s) that are consistent with and involved in carrying out the transactions contemplated by this Resolution. 4. This Resolution shall become effective upon the Council’s adoption of an accompanying Ordinance directing and authorizing the Mayor to pay sales tax proceeds in the manner specified in the Project Agreement. ADOPTED this the 19th day of December, 2024. /s/ James E. Lucas PRESIDENT, CITY COUNCIL, CITY OF ATHENS, ALABAMA ATTACHMENT A NOTICE OF PROPOSED ACTION AT PUBLIC MEETING Notice is hereby given that during a special meeting, which will be open to the public and will be held on Thursday, December 19, 2024, at 9:00 o’clock, A.M., Central Time, at the City Council Chambers in Athens City Hall, at 200 Hobbs Street W, Athens, Alabama 35611, the City Council for the City of Athens, Alabama (the “City”) will consider adopting a resolution in connection with an economic development project, described in reasonable detail herein. The economic development project relates to BRE ATHENS, LLC (the “Company”), which intends to develop and operate a Publix grocery supermarket located at the southeast corner of Highway 72 and Mooresville Road, Athens, Alabama (the “Project”).  The City believes that the proposed economic development project will create new jobs in the City, will generate additional tax revenues for the City, will increase commerce in the City, and will generally promote the economic development of the City. It is anticipated that the Project will result in the creation of approximately 115 new jobs and generate annual sales of approximately Twenty-Two Million Dollars ($22,000,000.00). The Athens 2040 Comprehensive Plan notes that the City experiences significant grocery store sales leakage, and calls for additional grocery stores to address the problem. Such leakage is believed to be exacerbated in this area of the community. The plan also identifies the area of the Project as a Tier 2 non- residential investment area, and calls for new suburban corridor development in this area. As such, the Project poses a unique opportunity to address these priorities and to create a new commercial hub within the City, significantly contributing to the overall economic development of the City. The City Council will consider the adoption of a resolution authorizing the City to enter into a Project Agreement with the Company. Through the Project Agreement, the City would annually pay the Company in arrears one hundred percent (100%) of the proceeds from the City’s sales tax (levied pursuant to Chapter 18, Articles 2 and 9 of the City Code) actually received by the City from the Project, net of certain costs, for a period of ten (10) years, or until $5,600,000 is paid by the City to the Company, whichever comes first. The City’s payment obligations would be conditioned upon the Company’s opening and continued operation of the Project by certain dates, as described in more particularity in the Project Agreement. In addition to the foregoing, the Company will construct internal streets (to city standards) within the Project’s area that will be dedicated to the City and become a part of the City’s street network. Those streets are expected to facilitate further economic growth of this new commercial hub of the city. Upon the construction of these internal streets, upon the grocery store opening for business, and confirmation that the Company has expended in excess of $1,000,000 on constructing those internal streets, the Project Agreement would provide for the City’s payment of $1,000,000 to the Company. All of the foregoing is described in more detail in the Project Agreement. The obligations of the City through the Project Agreement would be evidenced by the issuance of a warrant. The assistance described herein will encourage economic development and will constitute an economic development project for the City. The City’s granting of public funds or things of value as described herein will benefit the Company, as well as its member, Blackwater Real Estate, LLC (which is owned by John Abernathy and Amy McMullen). THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA Publication: December 11, 2024 ATTACHMENT B PROJECT AGREEMENT BRE ATHENS, LLC This Project Agreement – BRE Athens, LLC (this “Agreement”) is entered into as of the ___ day of ________________, 2024, by and among the CITY OF ATHENS, ALABAMA, an Alabama municipal corporation (the “City”) and BRE ATHENS, LLC, a limited liability company under the laws of the State of Alabama, or its assigns (the “Company”). RECITALS: The Company expects and intends to develop a Publix grocery supermarket located at the southeast corner of Highway 72 and Mooresville Road, Athens, Alabama, and more particularly, on the real property currently designated by the Limestone County Revenue Commissioner as Parcel # 0904200000040001, a portion of Parcel # 0904200000040002, Parcel # 0904200000040003 and a portion of Parcel #0904200000040000. The Company reasonably estimated that this project will result in the creation of approximately 115 new jobs and generate annual sales of approximately Twenty-Two Million Dollars ($22,000,000.00). Moreover, the Company also expects to construct/complete a new public roadway on the southeast corner of Mooresville Road and Highway 72 East, which will create outparcels for new commercial properties and spur economic growth in the area. The new public roadway will adhere to the City’s current standards and specifications for construction of public roads, and upon its construction, it will become a part of the City’s network of public streets.  The City has agreed, based upon the expectations set forth above and other public benefits to the City, to assist the Company as provided herein. Pursuant to the applicable laws of the State of Alabama referenced herein and for the purposes referenced herein, the City and the Company have entered into this Agreement. The City has approved the transaction contemplated hereby after notice to the public in accordance with the requirements of Amendment 772 to the Constitution of Alabama, codified as § 94.01 of the Constitution of Alabama. NOW, THEREFORE, in consideration of the premises, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: I. DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings: “Annual Period” shall mean a period of twelve consecutive calendar months, commencing on the same day of the year as the Commencement Date for Sales Tax. “City Sales Tax” for any Annual Period shall mean the privilege license tax levied by the City during such Annual Period pursuant to Chapter 18, Articles 2 and 9 of the City Code of the City (commonly called sales and use taxes), or any substitute therefor, which consists of (i) a privilege or license (commonly called sales) tax on persons engaged in the business of selling at retail any tangible personal property within the City (subject to exemption of certain property as provided by law) or in the business of conducting places of amusement or entertainment within the City, generally measured by the gross sales or receipts of such businesses and (ii) an excise (commonly called a use) tax on the storage, use or other consumption of tangible personal property (subject to exemptions of certain property as provided by law) within the City, generally measured by the sales price of such property. “City Sales Tax Proceeds” for any Annual Period shall mean and include all proceeds and receipts of the City Sales Tax. “Commencement Date for Sales Tax” shall mean the date that is the first day of the month following the date that the Project opens for regular business to the general public, with a municipal business license of the City for the Project within the Project Area. “Force Majeure” shall mean events that do not allow the Company to fulfill any of its obligations hereunder that are caused by acts of God or by any other similar causes beyond the reasonable control of the Company. The Company must notify the Mayor of the City in writing of any Force Majeure event within seven (7) days of the date of the event, providing a description of the Force Majeure event. “Opening Plus Date” shall mean the date after the Commencement Date for Sales Tax where the Project has remained open for business to the general public for a continuous and consecutive period of thirty (30) calendar days (excluding state and national holidays). “Documentation” shall mean: (i) a schedule showing the date that the Project opened for regular business with the general public; (ii) a statement describing the dates that the Project has remained open and has been doing business with the general public at the Project Area since and from the time of its opening through the date of the Documentation; (iii) a certificate of the president or vice president of the Company as to the accuracy of such schedule and statement; and (iv) if requested by the City, such additional documentation as shall reasonably be required to demonstrate compliance with the requirements of this Agreement. “Enabling Law” shall mean, collectively, (1) § 94.01 of the Constitution of Alabama, and (2) § 11-47-2 of the Code of Alabama (1975). “Grocery Tenant” shall mean a Publix supermarket, which is that certain American supermarket chain with over 1,300 locations located throughout Alabama, Florida, Georgia, North Carolina, South Carolina, and other states, doing business as “Publix” and owned by Publix Super Markets, Inc. (“Publix”) or any entity in which Publix owns a legal or beneficial interest, or any entity which owns a legal or beneficial interest in Publix or any affiliate entity formed by Publix or an affiliate thereof to lease or occupy space at the Project for operation of a grocery store or grocery supermarket. “Grocery Tenant Space” shall mean that space within the Project Area to be occupied by the Grocery Tenant with an indoor retail sales area of at least 45,000 square feet, located in the Project Area. “Initial Payment” shall mean One Million Dollars ($1,000,000). “Internal Streets” shall mean those certain planned improved and paved roadways (including but not limited to accompanying turn lanes, curbs, gutters, and roadway margins) to be constructed and located in the Project Area that are depicted on Exhibit D, identified therein as “Proposed City Roads,” and which will connect Highway 72 to Mooresville Road, creating an area for outparcels at the corner of such existing roads with a total area of approximately 3.5 acres. “Payment Date” shall be the same day of the year during each year of the Sales Tax Term, beginning with the date that is fourteen (14) months after the Commencement Date for Sales Tax, and being the same day of the year of each succeeding year. “Project” shall mean the development, establishment, and operation of the Grocery Tenant with the Grocery Tenant Space within the Project Area. “Project Area” shall mean the real property located at the southeast corner of Highway 72 and Mooresville Road, Athens, Alabama, and more particularly, on the real property currently designated by the Limestone County Revenue Commissioner as Parcel # 0904200000040001, a portion of Parcel # 0904200000040002, Parcel # 0904200000040003 and a portion of Parcel #0904200000040000, as shown on the attached Exhibit A. “Project City Sales Tax Payments” shall mean one hundred percent (100%) of the City Sales Tax Proceeds actually received by the City from the Project Area during the Annual Period for which such amount is determined, net of all customary costs incurred by the City to collect the City Sales Tax Proceeds from the Project Area, subject to the provisions of Section III.G below. “Qualifying Businesses” means any retailers listed on Exhibit B attached hereto that (i) have not previously operated within the municipal limits of the City or (ii) that are operating within the municipal limits of the City and that are opening an additional store at the Project; provided, however, that a retailer who relocates to the Project from another location within the municipal limits of the City shall not be deemed a Qualifying Business. “Series 2024 Warrant” shall have the meaning set forth in Section III.D of this Agreement. “Subsequent Project Owner” shall mean a person or entity to whom the Company sells at least 50% of its interest in the Project. “Sales Tax Term” shall mean the period of time beginning on the Commencement Date for Sales Tax and ending on the Sales Tax Termination Date. “Sales Tax Termination Date” shall mean (1) the earlier of: (a) the day immediately following the first Payment Date that is ten (10) years and two months after the Commencement Date for Sales Tax, whether or not the aggregate Project City Sales Tax Payments at that time have equaled the Total City Sales Tax Commitment; or (b) the Payment Date on which the City shall have paid as Project City Sales Tax Payments an aggregate amount equal to the Total City Sales Tax Commitment; or (2) if earlier than the dates specified in clause (1) above, the date after the Commencement Date for Sales Tax on which the Grocery Tenant shall cease to operate in the Project Area and be open to the public at  least five (5) days a week (excluding state and national holidays, or temporary and voluntary closures of ten (10) days or less), except that if such cessation of operations shall be the result of (a) alteration, repair, or restoration of the Grocery Tenant Space; or (b) fire, tornado, storm or other hazard or casualty or event of Force Majeure, then such cessation of operations shall not trigger the Sales Tax Termination Date for purposes of this clause (2) if the same shall have resumed normal operations, one (1) year after the date of cessation of operations. “Total City Sales Tax Commitment” shall mean Five Million Six Hundred Thousand and 00/100 Dollars ($5,600,000.00). II. INITIAL PAYMENT. A. Initial Payment. Upon the occurrence of all of the following, the City shall pay to the Company the Initial Payment: (a) the Company’s construction and completion (in a manner that fully satisfies all City rules, regulations, and standards regarding construction of public roads, to the City’s reasonable satisfaction) of the Internal Streets; (b) the Company’s dedication of the Internal Streets to the City for public purposes, and the acceptance of the same by the City; (c) the Company’s verification to the City (through the presentation of actual receipts and such other documentation that is acceptable to the City in its reasonable discretion) that the Company has expended in excess of One Million Dollars ($1,000,000) for the acquisition, development, construction and completion of the Internal Streets (through actual land costs and construction costs and material costs, including without limitation, soft costs such as design, testing, permit fees and financing); and (d) receipt of the Documentation and confirmation by the Mayor of the City that the Opening Plus Date has occurred. The Company must send the Documentation to the City within ninety (90) days of the Opening Plus Date. B. Nature of Obligation of City with respect to the Initial Payment. The obligation of the City for the payment of the Initial Payment: (1) is a limited obligation payable solely from the City Sales Tax Proceeds; and (2) shall never constitute a general obligation, or a charge against the general credit or taxing powers, of the City within the meaning of any constitutional provision or statutory limitation whatsoever. C. Initial Payment Manner and Method. The Initial Payment, if required to be paid by Section II(A) of this Agreement, shall be paid by check or draft by the City to the Company not later than thirty (30) days after the occurrence of all of the conditions for payment that are set forth in Section II(A). D. Termination of City’s Obligation to Pay Initial Payment. The obligation of the City to make any Initial Payment to the Company pursuant to Section II(A) shall terminate unless the Opening Plus Date shall have occurred on or before February 1, 2028 (subject to extensions for Force Majeure events, but in no event to be later than February 1, 2029). E. Internal Streets. For purposes of satisfying the condition precedent in Article II.A.a, the posting of any security, letter of credit, or performance bond (posted by or on behalf of the Company in connection with any part of the construction of the Internal Streets) in lieu of full completion (other than any type of maintenance bond required at completion of construction and ensuring maintenance of the Internal Streets after their full completion) shall not be viewed as constituting the completion of the Internal Streets. Moreover, the Company will construct and complete the Internal Streets in the same form and manner as shown on Exhibit D, unless the Mayor of the City, in his reasonable discretion, permits any modifications or revisions of the same. F. No City Obligation upon Certain Events. The City shall have no obligation to make any payment pursuant to Section II(A) unless and until Company has satisfied the requirements set forth herein for receipt of payment, and unless and until any Event of Default (as defined below) by the Company has been cured pursuant to the provisions of Article IV below. III. SALES TAX PAYMENTS.  A. Deadline for Commencement Date for Sales Tax. The Company hereby agrees that the Commencement Date for Sales Tax will occur on or before February 1, 2028 (subject to extensions for Force Majeure events, but in no event to be later than February 1, 2029), and if not, that the City shall have no obligation to pay the Company any Project City Sales Tax Payments. B. Nature, Amount and Duration of Obligation of City. 1. The City hereby agrees to pay to the Company in arrears on each Payment Date during the Sales Tax Term the Project City Sales Tax Payments determined by the City in accordance with this Agreement to be due and payable on such Payment Date. The obligation of the City for the payment of the Project City Sales Tax Payments: a. is a limited obligation payable solely from the City Sales Tax Proceeds; b. shall never constitute a general obligation, or a charge against the general credit or taxing powers, of the City within the meaning of any constitutional provision or statutory limitation whatsoever; c. shall commence on the first Payment Date after the Commencement Date for Sales Tax; and d. shall not include any payment attributable to Project City Sales Tax Proceeds received by the City after the last day of the last Annual Period in the Sales Tax Term. 2. The maximum amount of the Project City Sales Tax Payments that the City shall pay under this Agreement and the Series 2024 Warrant shall be limited to and shall not exceed the Total City Sales Tax Commitment. 3. Notwithstanding anything herein to the contrary, the City shall have no obligation to pay any Project City Sales Tax Payments under this Agreement and the Series 2024 Warrant: (a) prior to the date on which the Project opens for business in the Project Area, or (b) from and after the Sales Tax Termination Date. C. Determination and Payment of Project City Sales Tax Payments. 1. On each Payment Date, the City shall: (a) determine in accordance with this Agreement the Project City Sales Tax Payments (if any) to be made for the then immediately preceding Annual Period; and (b) pay to the Company, as owner of the Series 2024 Warrant, such amount of Project City Sales Tax Payments as determined by the City in accordance with this Agreement. 2. The City will permit any attorneys, accountants or other agents or representatives designated by the Company to: (a) have access to and visit and inspect any of the accounting systems, books of account, and financial records and properties of the City which pertain to the determination of Project City Sales Tax Payments; (b) examine and make abstracts from any such accounting systems, books and records; and (c) discuss the affairs, finances and accounts of the City pertaining to the City Sales Tax Proceeds and the determination of Project City Sales Tax Payments, with its officers, employees or agents, all at reasonable business times and upon reasonable notice; provided, however, that nothing herein shall require the disclosure of any information made confidential by law or contract. D. The Series 2024 Warrant 1. The obligation of the City to pay the Initial Payment and the Project City Sales Tax Payments hereunder shall be evidenced by a single limited obligation revenue warrant payable solely from, and secured by a pledge of, so much of the City Sales Tax Proceeds as shall be necessary to pay the Initial Payment and the Project  City Sales Tax Payments, in form and of content as the form of warrant attached to this Agreement as Exhibit C (the “Series 2024 Warrant”). 2. The Series 2024 Warrant shall not bear interest, shall be issued in the principal amount equal to the total of the Initial Payment and the Total City Sales Tax Commitment, shall be dated the date of delivery, and shall mature on the Sales Tax Termination Date. 3. The Series 2024 Warrant shall be duly executed, sealed, and attested by the City, and shall be registered by the City as a conditional claim against so much of the City Sales Tax Proceeds as shall be necessary to pay the Initial Payment and the Project City Sales Tax Payments with respect to such warrant and the warrant fund established therefor as therein provided. 4. The Series 2024 Warrant shall be registered and may be transferred as provided therein. E. Special Agreements of the City. 1. All proceedings of the governing body of the City heretofore had and taken, and all resolutions and orders adopted pursuant thereto with respect to the levy and collection of the City Sales Tax, are hereby ratified and confirmed in all respects from and after the effective date thereof. 2. The City covenants and agrees: a. The City shall, as long as this Agreement and the Series 2024 Warrant shall be outstanding, continue to levy and to provide for the assessment and collection of the City Sales Tax at rates not less than those in effect on the date of this Agreement; provided, that nothing herein shall prevent the City from granting any “sales tax holiday” or similar measure generally applicable to sales of certain categories of items throughout the City. b. Except to the extent provided hereunder or required by state law, the City shall not apply any of the City Sales Tax Proceeds which are allocable to or included as part of Project City Sales Tax Payments for the payment of any governmental expenses of operating the City other than customary costs of collection of such taxes, as herein provided. F. Duration of Agreement. Unless otherwise provided for herein, the obligations of the City and the Company hereunder shall arise on the date hereof and shall continue until the end of the Sales Tax Term. G. Project Retailer Limitation. Notwithstanding any other provision herein to the contrary, the City shall only be obligated to remit Project City Sales Tax Payments from City Sales Tax Proceeds collected from the Grocery Tenant and from the Qualifying Businesses located within the Project Area, unless otherwise approved by the City. In the event the Company proposes to lease or sell space within the Project Area to a business not identified as an Qualifying Business, the Company shall have the right to propose that such business be added as a Qualifying Businesses for the City’s approval, such approval to be determined by the Mayor of the City and the City Council President, in their sole discretion, upon consideration of the value of the brand of the different commercial retail establishment to the City, the anticipated revenue stream to the City from the operations of the different commercial retail establishment, and such other considerations as they may determine appropriate. IV. EVENTS OF DEFAULT AND REMEDIES. A. Event of Default. Any one or more of the following shall constitute an event of default by the City or the Company (an “Event of Default”) under this Agreement (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): 1. default in the performance, or breach, of any covenant or warranty of the City in this Agreement, and the continuance of such default or breach for a period of 30 days after there has been given, by registered or  certified mail, to the City by the Company a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “notice of default” hereunder, provided that if such default is of a kind which cannot reasonably be cured within such thirty-day period, the City shall have a reasonable period of time within which to cure such default, provided that it begins to cure the default promptly after its receipt of such written notice and proceeds in good faith, and with due diligence, to cure such default; or 2. default in the performance, or breach, of any covenant of the Company in this Agreement, and (except for the Company’s default of its obligations under Section II or Section III.A) the continuance of such default or breach for a period of 30 days after there has been given, by registered or certified mail, to the Company by the City a written notice specifying such default or breach and stating that such notice is a “notice of default” hereunder, provided that (except for the Company’s default of its obligation under Section II or Section III.A) if such default is of a kind which cannot reasonably be cured within such thirty-day period, the Company shall have a reasonable period of time within which to cure such default, provided that it begins to cure the default promptly after its receipt of such written notice and proceeds in good faith, and with due diligence, to cure such default. B. Remedies. Each party hereto may proceed to protect its rights and interests with respect to an Event of Default by the use of appropriate remedies as permitted by this Agreement and/or by state law, including but not limited to terminating this Agreement, and/or by suit in equity, action at law or other appropriate proceedings, whether for the specific performance of any covenant or agreement of any other party herein contained or in aid of the exercise of any power or remedy available at law or in equity. Notwithstanding the foregoing, the parties agree that the City’s only remedy for an Event of Default under Section III.A shall be as is set forth in Section III.A. Further, in no event shall either party be liable hereunder or to the other for any actual, punitive, speculative or consequential damages or damages for loss of opportunity or lost profit, in the event of a default hereunder, and the parties expressly waive their rights to seek such damages. V. REPRESENTATIONS AND WARRANTIES A. City’s Representations and Warranties. The City hereby represents and warrants as follows: 1. The City has taken all necessary action required by the Enabling Law or any other applicable law (in reliance upon the information provided by the Company, to the extent that such action required information to be provided by the Company) to authorize this Agreement and the obligations hereunder, and by proper corporate action the City has duly authorized the execution, delivery and performance of this Agreement. 2. The Series 2024 Warrant shall be issued and delivered to the Company, upon condition that this Agreement is enforceable against the City in accordance with the terms hereof. 3. The issuance of the Series 2024 Warrant for the purposes set forth in this Agreement will result in direct financial benefits to the City. B. Company’s Representations, Warranties and Covenants. The Company hereby represents and warrants as follows: 1. The Company is a duly organized and existing Alabama limited liability company, is qualified to do business in the State of Alabama and is in good standing under the laws of the State of Alabama. 2. The Company has all necessary corporate power and authority to enter into and perform its obligations hereunder and by proper action the Company has duly authorized the execution, delivery and performance of this Agreement. 3. All actions and proceedings required to be taken by or on behalf of the Company to execute and deliver this Agreement, and to perform the covenants, obligations and agreements of the Company hereunder, have been duly taken.  4. The execution and performance of this Agreement by the Company does not constitute and will not result in the breach or violation of any contract, lease, mortgage, bond, indenture, franchise, permit or agreement of any nature to which the Company is a party. 5. The Company is either the owner in fee simple of the Project Area, is a party to a contract to purchase such an interest in the Project Area or is or reasonably expects to be a party to a lease agreement providing for the lease and operation of the Grocery Tenant in the Grocery Tenant Space within the Project Area, and in either case, has all necessary power and authority to carry out the Project as contemplated herein. 6. The Company reasonably estimates that the Project Area will result in the creation of approximately 100 new jobs and generate annual taxable sales of approximately Twenty-Two Million Dollars ($22,000,000). The Company further represents that such estimate is based on information third parties have provided to Company and the Company’s representation is a reasonable estimation and not a guarantee. 7. The representations, warranties and covenants made by the Company herein shall survive the performance of any obligations to which such representations, warranties and covenants relate. 8. This Agreement, when executed and delivered, will constitute the valid and binding obligations of the Company, enforceable in accordance with the terms and conditions set forth herein. 9. The Company’s execution and delivery of this Agreement and the Company’s compliance with the provisions thereof will not conflict with or constitute a breach of, or a default under, any of the provisions of any applicable law, rule, regulation or order of any court, administrative agency, bureau, board, commission, office, authority, department or other governmental entity. 10. The Company is not a party to or bound by any agreement or obligation or subject to any restriction or to any applicable law, rule, regulation or order of any court, administrative agency, bureau, board, commission, office, authority, department or other governmental entity, which might result in a material impairment of the rights or abilities of Company to perform its obligations hereunder. 11. There are no judgments, orders, suits, actions, garnishments, attachments or proceedings of any nature by or before any court, commission, board or other governmental body pending, or to the knowledge of Company threatened, which involve or affect, or could involve or affect: (a) the Project Area, or any part thereof; (b) the validity or enforceability of this Agreement; or (c) any risk of any judgment or liability being imposed upon Company which could materially adversely affect Company’s ability to observe or perform fully its agreements and obligations hereunder. 12. For purposes of the Enabling Law, the Company is the only such person/entity for whose benefit the City has entered into this Agreement. 13. As of the Effective Date, the Member of the Company is Blackwater Real Estate, LLC, and the members such entity are John Abernathy and Amy McMullen. VI. MISCELLANEOUS A. Company Cooperation with City Grants. The Company agrees and is required to perform any reasonable requirements of the City so as to enable the City to participate in any Community Development Block Grant (“CDBG”) and Appalachian Regional Commission (“ARC”) grant programs/opportunities related to the Project, including but not limited to the Company’s agreement to be fully responsible for any and all employment tracking requirements relating to tenants and occupants for the Project or Project Area required in connection with such grants. The Company agrees that if its failure to satisfy this obligation results in the City’s obligation to re-pay any CDBG and/or ARC grant funds, then the City may deduct or set-off the amount of such funds it is obligated to re-pay from the Project City Sales Tax Payments. This obligation shall survive the termination of this Agreement. B. “Jimmy Gill Clause”; Expense Reimbursement Obligations. The Company agrees to pay any of the City’s reasonable out-of-pocket expenses incident to the negotiation, drafting and approval of this Agreement, including but not limited to the fees and disbursements of legal counsel for the City related to the same, up to and not exceeding $25,000.00. The Company agrees that if the Company has not paid the same prior to the City’s payment of the Initial Payment or any of the Project City Sales Tax Payments, the City may pay the same by a deduction of set-off from the Project City Sales Tax Payments or the Initial Payment. C. Violations Impacting City’s Payment Obligations. Notwithstanding anything herein to the contrary, the City shall have the right to withhold any payment(s) due to be paid to the Company under this Agreement and/or the Series 2024 Warrant during any period where the Company, as owner of the Project (as opposed to tenant or occupant of the Project), is and/or remains in material violation of any federal, state, or local law, ordinance, or regulation, relating to the Project and/or the Project Area, including but not limited to any rule or legal obligation relating to zoning, taxation, building code, municipal licensing, and/or utilities. Upon the cure of such material violation, the City shall release any payment(s) that were previously held (without interest). D. Set-Off of City’s Payment Obligations. Notwithstanding anything herein to the contrary, the City may, in its sole and absolute discretion, set-off and withhold any amount otherwise due to the Company under this Agreement and/or the Series 2024 Warrant with respect to any payment or other monetary obligation that the Mayor of the City, in his or her reasonable discretion, determines is owed by the Company (or any entity in which the Company owns a legal or beneficial interest, or any entity which owns a legal or beneficial interest in the Company or any affiliate entity formed by the Company or an affiliate thereof in connection with the Project Area) to the City. E. Press Releases. The Company agrees to cooperate fully with the City in connection with the preparation and release of all of the Company’s press releases and publications concerning the Project. F. Severability Clause. The provisions of this Agreement or the Series 2024 Warrant shall be severable. In the event any provision this Agreement or the Series 2024 Warrant shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any of the remaining provisions hereof or thereof. G. Prior Agreements Cancelled. This Agreement shall completely and fully supersede all other prior agreements, both written and oral, among the parties hereto relating to the matters contained herein. None of the parties hereto shall hereafter have any rights under any of such prior agreements but shall look to this Agreement for definition and determination of all of their respective rights, liabilities and responsibilities relating to the matters contained herein. H. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute but one and the same agreement. I. No Third Party Beneficiaries. This Agreement shall inure to the benefit solely of the parties hereto and their permitted successors and assigns, and no other person or entity is an intended beneficiary hereof or shall have any right to enforce the provisions hereof. J. Notice. 1. All notices, demands, consents, certificates or other communications hereunder shall be in writing, shall be sufficiently given and shall be deemed given when delivered personally to the party or to an officer of the party to whom the same is directed, or mailed by registered or certified mail, postage prepaid, or sent by overnight courier, addressed as follows: a. if to the City: b. if to the Company: City Hall BRE Athens, LLC City of Athens c/o Blackwater Real Estate, LLC 200 West Hobbs Street 700 Montgomery Highway, Suite 186 Athens, Alabama 35611 Birmingham, AL 35216 Attention: Mayor Attention: Legal Department Attention: City Clerk With a copy to:  E. Shane Black, Esq. Hand Arendall Harrison Sale, LLC 102 South Jefferson Street Athens, AL 35611 2. Any such notice or other document shall be deemed to be received as of the date delivered, if delivered personally, or as of three (3) days after the date deposited in the mail, if mailed, or the next business day, if sent by overnight courier. K. Delegation and Assignment of this Agreement. 1. The City shall have no authority or power to, and shall not, delegate to any person the duty or obligation to observe or perform any agreement or obligation of the City hereunder. Nothing in this section, however, shall prevent the City from engaging appropriate consultants, experts, agents or outside representatives to perform the City’s obligations under this Agreement on behalf of the City. 2. The City shall not have any authority or power to, and shall not, assign to any person any right of the City hereunder or any interest of the City herein. 3. The Company may transfer or assign to any person all of its rights, title and interest in this Agreement, including the Series 2024 Warrant, only to a Subsequent Project Owner that expressly assumes the obligations of the Company hereunder, or to a lender or collateral agent as security for a loan with respect to the Project, in either case upon not less than thirty (30) days prior written notice to the City; provided Company shall not be obligated to transfer this Agreement to any Subsequent Project Owner in the event it does convey the Project or the Project to a Subsequent Project Owner. No other assignment or transfer by the Company of its rights, title or interest in this Agreement is permitted without the prior written consent of the Mayor of the City, which consent shall not be unreasonably withheld. In no event shall the City be required to make payments to or have any obligation to respond to or give notices to any party other than the Company or, after any assignment as permitted hereby, to a single assignee. L. Amendments. This Agreement may be amended or supplemented only by an instrument in writing duly authorized, executed and delivered by each party hereto. M. No Joint Venture. Nothing in this Agreement shall create any joint venture, partnership or other relationship between the parties. The City shall not by virtue of this Agreement be deemed to have any ownership interest in the Project Area or the Project and shall have no liability arising out of the operation of the Project by the Company, its successors or assigns. N. Governing Law. This Agreement shall be governed exclusively by the laws of the State of Alabama, without regard to its conflicts of laws provisions. O. Venue/Service of Process. The City and the Company consent and submit to the jurisdiction of the state courts of Limestone County, Alabama, and/or the United States District Court for the Northern District of Alabama, Northern Division, and expressly agree that the counties in which such courts are situated will be the exclusive venues for any suit, action or proceeding arising out of or relating to this Agreement. The City and the Company further agree that personal jurisdiction over them may be effected by service of process by registered or certified mail addressed as provided in this Agreement, and that when so made shall be as if served upon them personally within the State of Alabama. P. Time of the Essence. Time is of the essence of each provision of this Agreement. Q. Waiver. No waiver of any breach, violation or default of this Agreement shall be construed as a waiver of any subsequent breach, violation or default hereof.  R. Drafting. The parties hereto acknowledge that each of them has had the opportunity to contribute to the drafting of this Agreement, and, as a consequence, that the Agreement should not be construed for or against any party to it. S. Attorney Fees/Mediation. If either party institutes an action or proceeding against the other relating to the provisions of this Agreement or any default hereunder, the unsuccessful party to such action or proceeding will reimburse the successful party therein for the reasonable expenses of attorneys' fees and disbursements and litigation expenses incurred by the successful party. The parties agree to attempt mediation with a neutral third party at a neutral location to resolve any dispute hereunder. T. Excluded Liabilities. The City shall neither assume nor pay for nor be liable for any of the Company’s agreements, liabilities, debts, responsibilities or obligations with respect to the Project or otherwise, whether direct, fixed or contingent, and whether existing or arising at any time prior or subsequent to the date of this Agreement, except and only to the extent otherwise provided herein. /signature lines/ /exhibits/ The motion was seconded by Councilman Seibert and was unanimously carried. Councilman Seibert introduced the following ordinance: ORDINANCE NUMBER 2024 - 2356 AN ORDINANCE CONCERNING AN ECONOMIC DEVELOPMENT PROJECT RELATING TO BRE ATHENS, LLC _______________________________________________ WHEREAS, the City Council has adopted a Resolution directing the Mayor to execute a Project Agreement by and between the City of Athens (the “City”); and BRE ATHENS, LLC (the “Company”), relating to the development of a Publix grocery supermarket located at the southeast corner of Highway 72 and Mooresville Road, Athens, Alabama (the “Project”); and WHEREAS, the City Council wishes to enact an Ordinance allowing for the Mayor’s payment of certain municipal sales tax proceeds to the Company. THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA on December 19th, 2024, at 9:00 a.m., as follows: 1. The Mayor of the City is hereby authorized and directed, in conjunction with and pursuant to the Project Agreement between the City and the Company, to annually pay the Company in arrears one hundred percent (100%) of the proceeds from the City’s sales tax (levied pursuant to Chapter 18, Articles 2 and 9 of the City Code) actually received by the City from the Project, net of certain costs, for a limited period of time and under certain restrictions, in the manner that is fully described in the Project Agreement.  2. This Ordinance shall work as an exception to (and not as a repeal of) the application of any other ordinance (or part thereof) that is inconsistent with this Ordinance and the operation of the referenced Project Agreement; and in such case, shall be an exception only for the duration of the Project Agreement. ADOPTED this the 19th day of December, 2024. /s/ James E. Lucas PRESIDENT, CITY COUNCIL, CITY OF ATHENS, ALABAMA Councilmember Henry moved that unanimous consent be given for immediate consideration of and action on said ordinance, which motion was seconded by Councilmember Wales, and upon the said motion being put to vote the following vote was recorded: YEAS: Councilmembers Seibert, Wales, Lucas, and Henry; NAYS: None. The President thereupon declared that the motion for unanimous consent for immediate consideration of and action on the said ordinance had been unanimously carried. Councilmember Henry seconded the motion to adopt the ordinance. Upon the said motion being put to vote, the following vote was recorded: YEAS: Councilmembers Seibert, Wales, Lucas, and Henry; NAYS: None. The President thereupon announced that the motion for the adoption of the said ordinance had been unanimously carried. PUBLIC HEARING TO DISCUSS THE FY 2024 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM Holly Hollman, Grants Administrator and Communication Specialist, addressed the City Council and gave a brief summary of a proposed resolution that will come before the Council at a later date regarding an economic development project relating to BRE Athens, LLC. The public hearing was closed. * * * There being no further business to come before the meeting, Council President Lucas asked for a motion to adjourn. Councilwoman Henry made the motion to adjourn and Councilman Wales seconded the motion. The meeting was duly and properly adjourned. /s/ James E. Lucas PRESIDENT, CITY COUNCIL ATTEST: /s/ Annette Barnes CITY CLERK