R2008-042 2008-03-10RESOLUTION NO. R2008-42
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS, CONSENTING TO ASSIGNMENT AND
AMENDMENT OF CERTAIN AGREEMENTS.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
Section 1. That certain Consent to Assignment attached hereto as Exhibit "A"
and made a part hereof for all purposes, is hereby approved.
Section 2. That certain amendment to the Maintenance and Ownership
Agreement attached hereto as Exhibit "B" and made a part hereof for all purposes, is
hereby approved.
PASSED, APPROVED, AND ADOPTED this 10t" day of March, A.D., 2008.
TOM REID
MAYOR
APPROVED AS TO FORM:
a.._; n_ ate.
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution 2008-42
08-0089
CONSENT TO ASSIGNMENT
The City of Pearland, Texas ("City") and the Pearland Economic Development
Corporation ("EDC") hereby consent to the assignment by Shadow Creek Retail, L.P.
("Assignor") to AmREIT Realty Investment Corporation ("Assignee") of Assignor's receivables,
rights, titles and interests in or under, and to the assumption by Assignee of Assignor's
obligations under, the following agreements: (a) the Development Agreement dated 2/22/07
between City, Assignor and the EDC; (b) the City of Pearland Standard Amendment to
Development Agreement dated 6/18/07 between Assignor, City and EDC; and (c) any related
agreements.
CITY OF PEARLAND, TEXAS
By:
4
BILL EISEN
City Manager
Date: March 10`, 2008
PEARLAND ECONOMIC
DEVELOPMENT CORPORATION
By:
F' WE CH
Executive Director
Date: March 13, 2008
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AMENDMENT TO THE MAINTENANCE AND OWNERSHIP AGREEMENT
BETWEEN SHADOW CREEK RANCH TOWN CENTER PROPERTY OWNERS
ASSOCIATION, AND BRAZORIA COUNTY
MUNICIPAL UTILITY DISTRICT NO. 35
This Amendment to the Maintenance and Ownership Agreement (the "Amendment") is
made and entered into as of the day of , 2008, by and between
SHADOW CREEK RANCH TOWN CENTER PROPERTY OWNERS ASSOCIATION (the
"Association"), a Texas non-profit corporation and BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 35 (the "MUD"), a body politic and subdivision of the State of Texas
(collectively, the "Parties").
RECITALS
The Association and the MUD along with the City of Pearland, Texas (the "City") and
Shadow Creek Retail, L.P. (the "Developer") entered into a Maintenance and Use Agreement for
TIRZ Improvements and Detention Facilities on November 13, 2006 (the "2006 Agreement").
The 2006 Agreement determined that it was in the best interest of the Developer to grant the
Association the ownership and maintenance of the construction of improvements approved in a
Project Plan and Financing Plan Amendment No. 2 and the construction of improvements to
provide drainage, including detention. The Association and MUD also believe it is in the best
interest of the Parties involved for the MUD to have ownership of the 13.2582 acre detention
pond, as more particularly described in Exhibit A ("Detention Pond") and for the Association to
maintain the Detention Pond.
AGREEMENT
For and in consideration of the mutual promises, covenants and the benefits and
Deleted: , SHADOW CREEK
RETAIL, L.P.,
obligations hereinafter set forth, Shadow Creek Town Center Property Owners Association, and - _ - { Deleted: ,
Brazoria County Municipal Utility District No. 35 hereby agree and contract as follows:
Section 1: Ownership of Detention Pond. Due to reimbursement guidelines from the
Texas Commission on Environmental Quality ("TCEQ"), the Parties agree that the MUD should
own the Detention Pond.
Section 2: Maintenance of Detention Pond. The Association, upon execution of this
Agreement, shall assume the obligation and expense . to operate, maintain and repair the
Detention Pond on behalf of the MUD.
Section 3: Right of Entry. The MUD, in consideration for the Association
maintaining the Detention Pond, grants the Association a non-exclusive right of easement and
access to, on and from the Detention Pond, for the purposes of operating, maintaining and
repairing the Detention Pond.
Section 4: Insurance. The Association shall secure comprehensive general liability
insurance coverage relating to its maintenance of the Detention Pond in the minimum amount of
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$1,000,000, with additional umbrella coverage in the minimum amount of $1,000,000. The
Association shall keep such coverage current and shall provide a certificate of insurance
evidencing same to the MUD. The MUD shall be added as an additional insured.
Section,5: FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND THE BENEFITS AND OBLIGATIONS SET FORTH HEREIN, THE
ASSOCIATION, FOR ITSELF, ITS OFFICERS, DIRECTORS, SHAREHOLDERS,
PARTNERS, ADMINISTRATORS, LEGAL REPRESENTATIVES, SUCCESSORS AND
ASSIGNS, HAS AGREED TO AND DOES HEREBY FULLY AND COMPLETELY
INDEMNIFY AND HOLD THE MUD HARMLESS FROM EVERY CLAIM, ACTUAL
LOSS, DAMAGE, INJURY, COST, EXPENSE, JUDGMENT OR LIABILITY SUSTAINED
OR INCURRED BY OR BROUGHT AGAINST THE MUD, OF EVERY KIND OR
CHARACTER WHATSOEVER, IN CONTRACT, TORT OR OTHERWISE, DIRECT OR
INDIRECT, INCLUDING INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES,
FOR BODILY INJURY, DEATH, PROPERTY DAMAGE OR ECONOMIC LOSS IN
CONNECTION WITH THE PLANNING, CONSTRUCTION/INSTALLATION,
OPERATION, USE, OWNERSHIP AND/OR EXISTENCE OF THE DETENTION POND.
THIS INDEMNITY AND HOLD HARMLESS AGREEMENT RUNNING IN FAVOR OF
THE MUD IS SPECIFICALLY INTENDED TO COVER ALL COSTS OF ANY FUTURE
CLAIM OR LITIGATION, INCLUDING ATTORNEYS' FEES AND OTHER DEFENSE
COSTS. FURTHERMORE, THIS INDEMNITY AND HOLD HARMLESS AGREEMENT
RUNNING IN FAVOR OF THE MUD IS SPECIFICALLY INTENDED TO OPERATE AND
BE APPLICABLE EVEN IF IT IS ALLEGED, CHARGED, OR PROVEN THAT ALL OR
SOME OF THE FACTS, INCIDENTS, OR EVENTS COMPLAINED OF OR ALL OR SOME
OF THE DAMAGES SOUGHT WERE SOLELY AND COMPLETELY CAUSED BY THE
FAULT OR THE SOLE OR CONCURRENT NEGLIGENCE OF THE MUD, OF EVERY
KIND OR CHARACTER WHATSOEVER, WHETHER AN AFFIRMATIVE ACT OR AN
OMISSION, INCLUDING WITHOUT LIMITATION ALL TYPES OF NEGLIGENT
CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS. FINALLY, IT
IS AGREED THAT NO STATUTE OF LIMITATIONS PERIOD OR PERIOD OF LACHES
SHALL BEGIN TO RUN AGAINST THIS HOLD HARMLESS/INDEMNITY AGREEMENT
UNTIL EACH CLAIM, DEMAND, OR CAUSE OF ACTION FOR WHICH HOLD
HARMLESS OR INDEMNITY PROTECTION IS SOUGHT HAS BEEN ASSERTED
AGAINST THE PARTY OR PARTIES SEEKING TO INVOKE THE PROTECTION OF THIS
HOLD HARMLESS/INDEMNITY AGREEMENT AND UNTIL SUCH PARTY HAS
RECEIVED WRITTEN NOTIFICATION OF SUCH CLAIM, DEMAND, OR CAUSE OF
ACTION.
THESE CONTRACTUAL PROVISIONS RELIEVE ONE PARTY FOR RESPONSIBILITY IT
WOULD OTHERWISE HAVE UNDER THE LAW FOR DAMAGES OR OTHER LIABILITY
ARISING OUT OF THIS AGREEMENT.
THE PARTIES HAVE NEGOTIATED IN GOOD FAITH TO ELIMINATE UNKNOWN AND
ARBITRARY ASPECTS OF THEIR RELATIONSHIP AND TO ALLOCATE THE RISKS OF
LOSS IN A MANNER THAT IS COMMENSURATE WITH THE EXPECTED BENEFITS.
THE PARTIES HAVE ATTEMPTED TO STATE THEIR AGREEMENT CLEARLY AND
EXPRESSLY WITHIN THE FOUR CORNERS OF THIS INSTRUMENT. THE PARTIES
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- -f Deleted: 4
AGREE THAT ALL PROVISIONS OF THIS CONTRACT ARE INTENDED TO APPLY
EVEN IF THEY HAVE THE RESULT OF RELIEVING ONE PARTY FOR
RESPONSIBILITY IT WOULD OTHERWISE HAVE UNDER THE LAW FOR ITS
CONDUCT, INCLUDING ITS SOLE OR CONCURRENT NEGLIGENCE, OR FOR ANY
DAMAGES OR LIABILMES THAT WOULD OTHERWISE BE IMPOSED BY THE LAW
IN CONNECTION WITH THIS AGREEMENT. EACH PARTY AGREES AND
COVENANTS THAT IT WILL NOT CONTEST THE ENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT UNDER THE "EXPRESS NEGLIGENCE" RULE AND
EACH PARTY AGREES AND COVENANTS THAT IF A PROVISION OF THIS
AGREEMENT IS NEVERTHELESS DEEMED BY A COURT TO BE SUBJECT TO THE
"EXPRESS NEGLIGENCE" RULE AND THAT IF THE PROVISION IS AMBIGUOUS,
SUCH PROVISION WILL NOT BE DECLARED UNENFORCEABLE. INSTEAD, SUCH
AMBIGUOUS PROVISION SHALL BE ENFORCED IN ACCORDANCE WITH THE
COMMERCIAL AND ECONOMIC TERMS OF THE PARTIES' OVERALL AGREEMENT
AND, TO THAT END, ORAL TESTIMONY AND OTHER WRITINGS SHALL BE
CONSIDERED BY THE COURT OR JURY TO DETERMINE THE INTENT OF THE
PARTIES WITH RESPECT TO SUCH PROVISION.
Section 6: Association Default. In the event the Association does not, in the
reasonable opinion and discretion of the MUD, satisfactorily maintain the Detention Pond in
accordance with its obligations set forth in this Amendment, or adequately insure the Detention
Pond, the MUD shall have the right to terminate this Amendment upon 60 days written notice;
provided, however, the Association shall have this 60 day time period to cure the default to the
reasonable satisfaction of the MUD.
Section_7: Consideration. The MUD and the Association agree that this Amendment
is being entered into as a benefit to both Parties for maintenance and use of the Detention Pond
and for ten dollars ($10.00) and other good and valuable consideration paid to the Association
from the MUD in exchange for the services to be provided by the Association hereunder.
Section,,4: Benefits to Parties. While the_provisions of this Amendment are, in part,
intended to establish as between the parties hereto, an acceptable manner of providing proper
maintenance of the Detention Pond that will serve the residents of the land within the boundaries
of the MUD, this Amendment shall be for the sole and exclusive benefit of the Association, and
the MUD, and shall not be construed to confer any benefit or right upon any other party.
Section: Assignability. This Amendment is not assignable by any party hereto
except with the written consent of all parties, which consent shall not be unreasonably withheld
or unduly delayed.
Section,10: Merger Clause. There have been and are no agreements, covenants,
representations or warranties between the parties other than those expressly stated or provided
for herein.
- - { Deleted: s
- -{ Deleted: 6
- - - -{ Deleted: 7
Section,' 1: _ Term. This Amendment shall be for an initial term of 99 years from the _
date first written above; provided, however, if the Association fails to comply with the
responsibilities and obligations in this Amendment, the MUD shall have the right to terminate
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-{ Deleted: _a:
_ - -{ Deleted: 2
Deleted: El
the Amendment as provided in Section 6, hereof. The Amendment shall renew at the end of the
initial term for one year periods unless terminated by mutual written consent of the parties.
Section ,12: Amendment. This Amendment shall not be amended, revised or changed
without the written consent of all parties, which consent shall not be unreasonably withheld or
unduly delayed.
SectionJ3: Enactment Clause; Law. Each party hereby agrees that it will take all
actions and execute all documents necessary to carry out the purposes and intent of this
Amendment. This Amendment shall be governed by the laws of the State of Texas.
Section 14: Construction of Structures. The Association shall have the right to
construct recreational structures or facilities in, on or around the Detention Pond; provided
however, prior to any such construction, the Association shall obtain the written consent of the
City and the MUD.
Section 15: MUD Cessation. Notwithstanding anything which is or may appear to be
to the contrary herein, in the event that the MUD ceases to exist for any reason and the City takes
title to the Detention Pond, the Association will continue to maintain the Detention Pond on
behalf of the City in accord with the terms of this Amendment.
[EXECUTION PAGES FOLLOW.]
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Deleted: 11
Deleted: 12
IN WITNESS WHEREOF, the parties have executed this Agreement in multiple copies, each of
which shall be deemed an original as of the date and year first written above.
SHADOW. CREEK TOWN CENTER
PROPERTY OWNERS ASSOCIATION
a Texas non-profit corporation
By:
Name: _
Title:
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Al 1'EST:
BRAZORIA COUNTY MUNICIPAL
UTILITY DISTRICT NO. 35
By:
Name:
Title:
By:
Name:
Title:
(SEAL)
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RESOLUTION NO. R2006-192
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO EXECUTE A DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF PEARLAND AND :. BRI K REATAIU, L.P., AND
A DEVELOPER REIMBURSEMENT AGREEMENT BETWEEN THE
CITY OF PEARLAND, REINVESTMENT ZONE NUMBER TWO, CITY OF
PEARLAND, TEXAS AND SHADOW EtREEK RETATti, L.P.
BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS:
Section 1. That certain Development Agreement between the City of
Pearland, Texas and Wain i reel? Fetil, L.P., a copy of which is attached as Exhibit
"A" and made a part hereof for all purposes, is hereby approved.
Section 2. That certain Developer Reimbursement Agreement between the City
of Pearland, Texas; Reinvestment Zone Number Two, City of Pearland, Texas; and
5vir6W : t•eel R'ettai.l, L.P., a copy of which is attached as Exhibit `B" and made a part
hereof for all purposes, is hereby authorized and approved.
Section 3. That the City Manager or his designee is hereby authorized to
execute and the City Secretary to attest the originals of the attached agreements for
and on behalf of the City of Pearland.
PASSED, APPROVED and ADOPTED this the 13th day of November, 2006.
ATTEST:
ung g
ity S etary
APPROVED AS TO FORM:
04-1,:— /Ye
Darrin M. Coker
City Attorney
192 Tirz Reiinh&DevAgint.192
Tom Reid
Mayor
Exhibit "A"
Resolution 2006-192 11/13/2006
DEVELOPMENT AGREEMENT
BETWEEN
CITY OF PEARLAND,
PEARLAND ECONOMIC DEVELOPMENT CORPORATION
AND
SHADOW CREEK RETAIL, LP
WHEREAS, SHADOW CREEK RETAIL, LP a Delaware limited partnership (hereinafter
"Sub -Developer"), is entering into this chapter 380 economic development
program and agreement (hereinafter "Development Agreement") with the CITY
OF PEARLAND, TEXAS (hereinafter "City") and the PEARLAND
ECONOMIC DEVELOPMENT CORPORATION (hereinafter "EDC") pursuant
to a program initiated by the City pursuant to TEX. CONST., article III, section
52-a, Chapter 380 of the Texas Local Government Code, and other economic
development statutes; and
WHEREAS, Sub -Developer proposes to develop a mixed use commercial development
(hereinafter the "Project") located at the northwest corner of state highway 288
and Broadway (also known as FM 518); and
WHEREAS, development of the Project will result in an increase in ad valorem tax revenue for
the City; and
WHEREAS, the retail sales generated by future tenants of the Project will result in an increase
in sales tax revenue to the City; and
WHEREAS, the City and the EDC have agreed to a performance -based economic development
grant to Sub -Developer equal to a portion of the sales tax revenue generated by
the retail sales of Sub -Developer's tenants of the Project upon receipt of such
sales tax from the State Comptroller's office; and
WHEREAS, the City has the authority under TEX. CONST., article III, section 52-a and
Chapter 380 of the Texas Local Government Code to make loans or grants of
public funds for the purposes of promoting local economic development and
stimulating business and commercial activity within the City; and
WHEREAS, the EDC has the authority to make grants or loans for economic development
purposes such as the grant contemplated herein; and
WHEREAS, the City and the EDC have determined that a grant to Sub -Developer of receipted
sales tax generated from the Project (hereinafter "Performance Based Grant") will
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Page 1 of 18
serve the public purpose of promoting local economic development and
enhancing business and commercial activity in the City; and
WHEREAS, the City has concluded and hereby funds that this Development Agreement clearly
promotes economic development in the City of Pearland and, as such, meets the
requisites under Chapter 380 of the Texas Local Government Code and further, is
in the best interests of the City, the EDC and Sub -Developer; and
WHEREAS,
WHEREAS,
WHEREAS,
the City created Tax Increment Reinvestment Zone Number Two (the "Zone") by
City Ordinance No. 891, dated December 21, 1998; and
the Project Plan and Reinvestment Zone Financing Plan (the "Plan") for the Zone
was approved by the Board of Directors of the Zone and adopted by Council on
August 23, 1999; and
the Zone as originally designated contained 3,467 acres of .vacant, undeveloped
land generally bounded by Clear Creek on the north, State Highway 288 on the
east, County Road 92 (the extension of Broadway west of S.H. 288) on the south,
and FM 521 on the west; and
WHEREAS, the Zone was subsequently expanded with the approval of the annexation of an
additional approximately 457 acres and the lst Amendment to the Project Plan and
Reinvestment Zone Financing Plan; and
WHEREAS, the Zone Board has approved and recommended to the City a 2nd Amendment to
the Project Plan and Reinvestment Zone Financing Plan to facilitate the
development and reimbursement of public improvements designed to support and
facilitate the Project; and
WHEREAS, The City, after due and careful consideration, has concluded that the development
of the Property in the Zone as provided for herein will further the growth of the
City, facilitate the development of the entire Zone, improve the environment of
the City, increase the assessed valuation of the real estate situated within the City,
foster increased economic activity within the City, increase employment
opportunities within the City, upgrade public infrastructure within the Zone, and
otherwise be in the best interests of the City by furthering the health, safety,
morals and welfare of its residents and taxpayers, and that entering into this
Agreement is necessary and convenient to implement the Plan and achieve their.
purposes; and
WHEREAS, The City desires to have the Developer undertake the Project to serve the needs of
the City, to produce increased tax revenues for the various taxing units authorized
to levy taxes on real property within the Zone, to stimulate and induce the
development of the Zone, and to finance the TIRZ Project Costs, using property
tax increment revenues and the proceeds of the TIRZ Bonds, all in accordance
with the terms and provisions and this Agreement; and
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Page 2 of 18
WHEREAS, this Development Agreement has been submitted to the City and the EDC for
consideration and review, and the City and the EDC have taken all actions
required to be taken prior to the execution of this Development Agreement to
make the same binding upon the City and the EDC according to the terms hereof.
NOW, THEREFORE, for and in consideration of the agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
City, the EDC and Sub -Developer agree as follows:
SECTION 1. TERM.
This Development Agreement shall commence upon execution and shall expire upon the
earlier to occur of: (a) full payment of the Performance Based Grant, completion of the Project
and the payment to Sub -Developer of all costs incurred for eligible TIRZ Project Costs; or (b)
December 31, 2028.
SECTION 2. DEFINITIONS.
The following words shall have the following meanings when used in this Development
Agreement.
a. 2006 Dollars. The words "2006 Dollars" means aggregate payments that equate
to a net present value on the date of this Agreement, adjusted in accordance with
the Engineering News Record regional construction index applicable to the City,
or in the event such publication no longer maintains such index, a similar index
mutually agreeable to the parties.
b. Administrative Fee. The words "Administrative Fee" mean the City's fee for
providing certain services to the Reinvestment Zone in the amounts described in
the Plan.
c. Bond Proceeds. The words "Bond Proceeds" means all net proceeds, after
deducting all issuance costs and any amounts for capitalized interest and reserves,
received by the City in connection with the issuance and sale of TIRZ Bonds.
d. City Increment. The words "City Increment" means the City's "tax increment," as
such term is defined in §311.012(a) of the TIRZ Act, within the Reinvestment
Zone
e. City. The word "City" means the City of Pearland, Texas. For purposes of this
Development Agreement, City's address is 3519 Liberty Drive, Pearland, Texas
77581.
f. Comptroller. The word "Comptroller" means the Office of the Texas Comptroller
of Public Accounts or any successor agency.
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Page 3 of 18
g•
Development Agreement. The words "Development Agreement" means this
chapter 380 economic development program and agreement, together with all
exhibits and schedules attached to this Development Agreement from time to
time, if any.
h. Economic Development. Corporation or EDC. The words "Economic
Development Corporation" or "EDC" shall mean the Pearland Economic
Development Corporation, whose principal business address is 3519 Liberty
Drive, Pearland, Texas 77581, or its successors.
i. Financing Plan. The words "Financing Plan" means the financing plan approved
by the Board of Directors of the Reinvestment Zone, and approved by the City
Council by Ordinance No. 918. on August 23, 1999, as amended.
J.
Fund. The word "Fund" means the Tax Increment Fund created by the City
pursuant to the TIRZ Act, this Agreement and the ordinances adopted by the City
relating to the Reinvestment Zone.
k. Grant or Performance Based Grant. The words "Grant" or "Performance Based
Grant" mean a payment to Sub -Developer under the terms of this Development
Agreement computed with reference to Sales and Use Taxes generated from sales
by Sub -Developer's tenants of the Project.
1. Letter of Acceptance. The words "Letter of Acceptance" mean a certificate of the
City certifying the completion of a discrete portion of the Project or the TIRZ
Improvements constructed by or under the supervision of the Developer or a Sub -
Developer in accordance with the applicable plans and regulations.
m. Out of Zone Improvements. The words "Out of Zone Improvements" mean
improvements, described in Exhibit "A" which is attached hereto and
incorporated herein for all purposes, undertaken to widen (to a total of six (6)
lanes) and provide new and improved signalization for the portion of Broadway
extending from SH 288 to Kirby Drive which are south of the boundary of the
Zone.
n. Property. The word "Property" means the approximately 110-acre tract legally
described in Exhibit "B" attached hereof and made a part hereof for all purposes.
o. Sales and Use Taxes. The words "Sales and Use Taxes" mean the state and local
sales and use taxes charged on the taxable sales made by Sub -Developer's tenants
of the Project on or after November 13, 2006, as reported to City by the
Comptroller.
Page 4 of 18
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P•
q.
Sub -Developer. The word "Sub -Developer" means Shadow Creek Retail, LP, a
Texas corporation, whose principal business address is 1900 West Loop South,
Suite 1300, Houston, Texas 77027 or its successors.
Tax Increment. The words "Tax Increment" mean the amount of tax revenue
collected as determined pursuant to § 311.012 of the TIRZ Act and deposited in
the Fund in accordance with this Agreement and the participation agreement with
any participating taxing unit.
r. Threshold Criteria. The words "Threshold Criteria" mean Sub -Developer's
completion and tenant occupancy of at least 318,000 square feet of the Project for
a period of 3 consecutive months.
s. TIRZ Act. The words "TIRZ ACT" mean the Tax Increment Financing Act,
TEX. TAX CODE, ch. 311, as amended.
t. TIRZ Bonds. The words "11RZ Bonds" mean a debt instrument or other
instruments to finance TIRZ Improvements to be issued and sold by the City in
accordance with the Act (and in accordance with a schedule of issuance agreed to
by the Parties) in the aggregate principal amount necessary to produce net Bond
Proceeds of up to ELEVEN MILLION SEVEN HUNDRED FORTY-NINE
THOUSAND SIX HUNDRED EIGHTEEN AND 0/100 DOLLARS (in 2006
Dollars) and, if issued pursuant to the TIRZ Act, having a term not to exceed the
maximum term permitted by §311.015(1) of the TIRZ Act.
u. TIRZ Improvements. The words "TIRZ Improvements" mean the various
improvements to be financed from the Tax Increment or TIRZ Bonds supported
thereby, as described in Exhibit A attached hereto and incorporated herein for all
purposes.
v. TIRZ Project Costs. The words "TIRZ Project Costs" mean and include all costs
defined as "project costs" in § 311.002( 1) of the TIRZ Act as now or hereafter
provided or incurred in connection with the TIRZ Improvements.
SECTION 3. RIGHTS AND OBLIGATIONS OF CITY AND EDC PERTAINING TO
PERFORMANCE BASED GRANT.
During the term of this Development Agreement, City and EDC shall have the following
rights and comply with the following terms and conditions as pertaining to the Performance
Based Grant:
a. For each month of this Development Agreement, once Sub -Developer has
reached the Threshold Criteria, the City and the EDC shall pay an amount equal
to thirty-three percent (33%) of all Sales and Use Taxes received by the City and
the EDC from the Project until the Performance Based Grant is paid in full. In
other words, all Sales and Use Tax revenue from the Project generated from 0.5%
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of the total 1.5% Sales and Use Tax rate attributable to the City and the EDC shall
be utilized to pay the Performance Based Grant until said grant is paid in full.
The amount of the Performance Based Grant shall be based on the actual costs
expended by Sub -Developer for the Out of Zone Improvements. The actual
expenditures for the Out of Zone Improvements shall be verified in a format to be
agreed upon by the parties (which format shall include the requirement that paid
invoices be submitted to the City for approval and payment and the requirement
that such invoices will be deemed approved by the City if not approved within 30
days of submission) but in no event shall the Performance Based Grant exceed the
amount of ONE MILLION NINE HUNDRED 111- 1 Y-ONE THOUSAND
THREE HUNDRED NINETY-ONE AND 0/100 DOLLARS ($1,951,391.00)
plus simple interest thereon calculated at eight percent (8%) per annum for the
first two (2) years following completion of the widening of Broadway and simple
interest calculated at five percent (5%) per annum for the subsequent two (2)
years.
b. Once Sub -Developer has received the total amount agreed upon as described in
Section 3.a, then all amounts of the City's and the EDC's Sales and Use Tax
revenue, generated by and attributed solely to sales from the Project and received
from the Comptroller by City, shall be retained by the City and the EDC
respectively.
c. The City and the EDC agree to process any and all Grant payments owing to Sub -
Developer within thirty (30) days after receipt of Sales and Use Tax funds from
the State Comptroller's office attributable to sales generated from the Project.
The City agrees to obtain the data necessary to verify the amount of such Sales
and Use tax revenue paid from the Project pursuant to the City's right to obtain
such information from the State Comptroller's office as provided in Section
321.3022 of the Texas Tax Code. In the event that Sub -Developer disagrees with
the amount of Sales and Use tax revenue reported by the City, then Sub -
Developer shall have the right to submit evidence of the amount it believes to be
correct to the City and the EDC. The City and the EDC agree to examine such
evidence in good faith and make any adjustments in grant payments deemed
necessary to ensure the accuracy of the Grant payments contemplated herein.
d. To the extent permissible by law, any press release or media communication
concerning this Development Agreement issued in the name of the City, the EDC
or Sub -Developer shall be subject to mutual written pre -approval by Sub -
Developer, the City Manager and the Executive Director of the EDC.
e. The City, EDC and Sub -Developer acknowledge that the Sub -Developer is
endeavoring to assist the City in obtaining financing to widen a portion of Broadway
in an area including approximately 7 acres extending between Kirby Drive and
Kingsley Drive (hereinafter the "Broadway Gap"). In the event that a coalition of
interested parties is assembled and the City, in its sole discretion, determines it is
feasible to widen the portion of Broadway in the Broadway Gap area, then City and
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the EDC shall pay an amount equal to fifty percent (50%) of all Sales and Use Taxes
received by the City and the EDC from the Project until the Performance Based Grant
is paid in full. In other words, all Sales and Use Tax revenue from the Project
generated from 0.75% of the total 1.5% Sales and Use Tax rate attributable to the
City and the EDC shall be utilized to pay the Performance Based Grant until said
grant is paid in full. The fifty percent (50%) amount referenced in this section
pertaining to the portion of Sales and Use Taxes received by the City and the EDC to
be utilized for the Performance Based Grant shall supersede the thirty-three percent
(33%) amount referenced above in section 3 a, if the City, in its sole discretion
determines that the financing of the Broadway Gap is feasible.
SECTION 4. RIGHTS AND OBLIGATIONS OF SUB -DEVELOPER PERTAINING TO
PERFORMANCE BASED GRANT.
As pertaining to the Performance Based Grant, while this Development Agreement is in
effect, Sub -Developer shall have the following described rights and shall comply with the
following terms and conditions, as such are described or may apply to either or both:
a. In order to be eligible for any payments of the Performance Based Grant
described herein, Sub -Developer must first meet the Threshold Criteria.
b. Sub -Developer has or shall undertake to construct the Out of Zone Improvements
in conjunction with development of the Project. The amount of the Performance
Based Grant shall be based on the actual costs expended by Sub -Developer for
planning, designing and constructing such Out of Zone Improvements plus
interest calculated as described in section 3a. above.
c. Sub -Developer shall provide documentation to the City in a format to be approved
by the City Manager evidencing the actual expenditures incurred by Sub -
Developer in professional planning, designing and constructing the Out of Zone
Improvements.
SECTION 5. DEVELOPMENT AND CONSTRUCTION OF TIRZ IMPROVEMENTS
a. Developer shall cause the TIRZ Improvements to be constructed in a good and
workman -like manner as outlined in the Plan, subject to reimbursement as
provided in this Development Agreement.
b. The City shall only levy or assess any special taxes, fees, exactions, impositions,
or assessments of any form against the Property, not heretofore levied and
assessed, if they are applicable to all other properties in the City equally and
uniformly and in the same manner.
c. The City hereby acknowledges the authority of the Board of Directors of the
Reinvestment Zone pursuant to the Act to enter into such agreements as the
Page 7 of 18
AUSTIN: 018492.00013: 353513 v5
Reinvestment Zone Board considers necessary or convenient to implement this
Development Agreement and the Plans and to achieve its purposes.
d. Promptly upon the completion of construction of any of the TIRZ Improvements,
according to City requirements, the City shall furnish a Letter of Acceptance so
certifying. Each Letter of Acceptance shall be in a recordable form, andshallbe a
conclusive determination of satisfaction and termination of the covenants in this
Agreement with respect to the obligations of the Sub -Developer to construct such
TIRZ Improvements. Upon written request for a Letter of Acceptance, the City
shall have 30 days after receipt thereof to provide a Letter of Acceptance or a
written statement indicating in detail why the certificate cannot be issued, and
what measures or acts will be necessary, in the reasonable opinion of the City
citing applicable laws and ordinances for the Sub -Developer to take or perform in
order to obtain issuance of such Letter of Acceptance. The Sub -Developer will
follow standard City requirements applicable to all developers within the City
with regard to the acceptance of facilities by the City.
e. Developer shall pay property taxes owing on the Property.
SECTION 6. PAYMENT AND REIMBURSEMENT OF ELIGIBLE TIRZ PROJECT
COSTS; TIRZ BONDS; REIMBURSEMENTS
a. The parties acknowledge that the development of the Property in the Zone as
provided in the Plan and this Agreement can only occur with the use of Bond
Proceeds, which Bond Proceeds, together with Tax Increment and other funds
available under this Agreement, shall be used to reimburse the Sub Developer for
eligible TIRZ Project Costs. TIRZ Bonds shall be issued in one or more
installments to pay the TIRZ Project Costs of the TIRZ Improvements.
b. The TIRZ Bonds and payment of other eligible T1RZ Project Costs shall be
secured by the Tax Increment and interest earned on investment of monies within
the Fund. The City pledges that it will deposit the entirety of such funds into the
Fund. The amounts deposited in the Fund shall be disbursed in accordance with
this Development Agreement, the TIRZ Bonds and any trust indenture. entered
into, or bond authorization documents adopted, in connection with the TIRZ
Bonds (which trust indenture or bond ordinance shall not conflict with the
provisions of this Development Agreement). The City covenants and agrees to
deposit all Tax Increment into the Fund promptly upon the City's receipt of any
Tax Increment and to disburse funds from the Fund in accordance with this
Agreement solely (A) to make payments of principal and interest on TIRZ Bonds
as and when due, (B) to pay eligible expenses of the Zone, including creation
costs and operating expenses, (C) to pay TIRZ Project Costs, and (D) to
reimburse the Sub -Developer in amounts equal to eligible TIRZ Project Costs,
plus interest, incurred by the Sub -Developer in accordance with this Development
Agreement. Notwithstanding the above, to pay for services rendered by the City
in the Zone, including imputed administrative costs, including reasonable charges
AUSTIN: 018492.00013: 353513 v5
Page 8 of 18
g•
for the time spent by employees of the City in connection with the
implementation of the Plan, the City may withdraw the Administrative Fee,
described below and in the Plan, from the Tax Increment on or about September 1
of each year, commencing in 2007 as pertaining to this Development Agreement.
c. The City agrees to use its best efforts to issue the TIRZ Bonds to fund
reimbursements as provided herein in accordance with the Sub -Developer's
timing needs to develop the Project. In addition, the City will provide the Sub -
Developer with copies of any proposed bond ordinance or indenture in connection
with the TIRZ Bonds, and to allow the Sub -Developer to offer reasonable
comments thereto.
d. To the fullest extent permitted by law, the City agrees that (i) it will not pledge or
apply the Tax Increment or any other monies in the Fund to any other purpose or
payment of any obligation of the City except for the TIRZ Bonds and obligations
arising under this Development Agreement; (ii) it will not commingle the Tax
Increment with any other funds of the City; (iii) it will not take any action or omit
to take any action that will affect the continued existence of the Fund or the
availability of the Tax Increment to pay the TIRZ Bonds and the other obligations
under this Agreement; (iv) it will take all actions and submit all documents in a
timely manner to receive all Tax Increment; (v) it will institute and pursue to a
final order or judgment any bond validation action or suit upon reasonable request
by the Developer; (vi) it will not refund the TIRZ Bonds in any manner
inconsistent with the Plan; and (vii) it will direct the investment of the Tax
Increment in accordance with Texas law applicable to investment of funds by
municipalities.
e. The parties hereto and any assignees of the parties will take all actions necessary
to ensure that the interest payable on the TIRZ Bonds is and remains exempt from
taxation under the Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.
f. Notwithstanding the provisions of this section relating to the issuance of TIRZ
Bonds to finance TIRZ Improvements, including Sub -Developer reimbursements,
such payments may be made directly from the accrued Tax Increment if the.
parties agree that such funds are available therefrom for such purpose.
Additionally, such reimbursements shall be made -in accord with the procedures of
the Redevelopment Authority created by the City to assist the Zone and the City
in carrying out their respective duties.
The TIRZ Improvements are described in Exhibit A, and shall not be changed
except as may be consistent with the Plan and this Development Agreement. The
TIRZ Improvements will be advance -funded by the Sub -Developer, subject to
reimbursement from Bond Proceeds or available Tax Increment, as provided in
this section.
AUSTIN: 018492.00013: 353513v5
Page 9 of 18
h. The total amounts owing or to become owing for funds advanced from time to
time under this section shall bear simple interest commencing at the time the
funds are advanced to pay for the applicable TIRZ Improvements, or advances
spent for amending the Plan or for creation, organization or administration
expenses of the Zone, continuing until paid, for a maximum period of five years
from the completion of the applicable TIRZ Improvements or of the plan
amendment, creation or administration expenditure.
j•
Timing of reimbursements: The Zone shall reimburse the Sub -Developer as soon
as practicable once (1) the applicable TIRZ Improvements have been completed
and the Letter of Acceptance is received with respect thereto, and (2) the City has
issued TIRZ Bonds (unless the reimbursement is to be made from available Tax
Increment as described above) for such purpose as described below, but only from
available Bond Proceeds thereof.
Sub -Developer reimbursements: the Sub -Developer shall have the benefit of the
Tax Increment attributable to the Sub -Developer's development' and the Tax
Increment attributable to all other development within the Zone, subject to the
financing of the Master Improvements (as said term is defined in the Plan).
Consistent therewith, the City agrees to sell T]RZ Bonds to reimburse the Sub -
Developer for the full amount of eligible Sub -Developer's TIRZ Improvements,
plus simple interest calculated at six and one half percent (6.5%) per annum for a
maximum period of five -years from completion of the TIRZ Improvements, at
such time as the Tax Increment generated throughout the entire Zone is sufficient
to support the applicable TIRZ Bonds bearing interest at the then -current rate of
interest for comparable issues, with a debt coverage of not less than 1.25 of
proposed and outstanding TIRZ Bonds, after taking into account the portion of the
Tax Increment required to pay for the Administrative Fee, Master Improvements,
and costs of administering the Reinvestment Zone. Notwithstanding anything to
the contrary herein, the Sub Developer's reimbursements shall be subject to
reimbursement of those expenditures the Master Developer (as said term is
defined in the Plan) is eligible to receive pursuant to the original Plan and the
First amendment to the Plan. Additionally, notwithstanding anything to the
contrary herein, the Sub -Developer shall be reimbursed from the Tax Increment
produced throughout the entire Zone prior to any reimbursements made from the
Zone for any other expenditures incurred pursuant to any other agreement(s)
entered into subsequent to the effective date of this Development Agreement.
k. Notwithstanding the above, the obligation to issue TIRZ Bonds pursuant to the
terms of this Development Agreement, is conditioned upon (1) the Sub -Developer
entering into an agreement with the Zone board specifying the TIRZ
Improvements to be constructed, and (2) a determination of the Zone's financial
advisor that the (y) TIRZ Bonds required for such reimbursement are reasonably
marketable, and (z) issuance thereof will not have a materially detrimental effect
on the viability of any outstanding TIRZ Bonds.
Page 10 of 18
AUSTIN: 018492.00013: 353513v5
1. Reimbursement to the Sub -Developer for real property required for TIRZ
Improvements shall be made in an amount equal to the lesser of either (1) the
Sub -Developer's actual cost plus simple interest (calculated as applicable to the
recipient) until paid, or (2) the appraised value of the real property at the time of
the reimbursement.
m. City accounting: the City shall maintain complete books and records showing
deposits to and disbursements from the Fund and Improvement Fund of Tax
Increment and Bond Proceeds, which books and records shall be deemed
complete if kept in accordance with generally accepted accounting principles as
applied to Texas municipalities and in accordance with the provisions of the TIRZ
Act. Such books and records shall be available for examination by the duly
authorized officers or agents of the Sub -Developer during normal business hours
upon request made not less than five business days prior to the date of such
examination. The City shall maintain such books and records throughout the term
of this Agreement and for four years thereafter, all subject to the requirements of
the TIRZ Act.
SECTION 7. EVENTS OF DEFAULT.
Each of the following shall constitute an• event of default under this Development
Agreement:
a. City's or EDC's failure to process any and all Grant payments to Sub -Developer
in accordance with the terms of this Development Agreement. City's failure to
comply with or cause the Zone to comply with the terms of this Development
Agreement as respecting any aspect of City's duties to provide financing or assist
Sub -Developer in obtaining financing or reimbursement for the TIRZ
Improvements..
b. Sub -Developer's violation or failure to perform under the covenants contained in
Sections 4.a. and 4.c. hereinabove.
c. Before any failure of any party to perform its obligations under this Development
Agreement shall be deemed to be a breach of this Development Agreement, the
party claiming such failure shall notify, in writing, the party alleged to have failed
to perform of the alleged failure and shall demand performance. No breach of
this Development Agreement may be found to have occurred if performance has
commenced to the reasonable satisfaction of the complaining party within 30 days
of the receipt of such notice, subject, however, to the terms and provisions of
Section 7 d. Upon a breach of this Agreement, the non -defaulting Party, in any
court of competent jurisdiction, by an action or proceeding at law or in equity,
may secure the specific performance of the covenants and agreements herein
contained, may be awarded damages for failure of performance, or both. Except
as otherwise set forth herein, no action taken by a party pursuant to the provisions
of this Section or pursuant to the provisions of any other Section of this
Page 11 of 18
AUSTIN: 018492.00013: 353513v5
Agreement shall be deemed to constitute an election of remedies and all remedies
set forth in this Development Agreement shall be cumulative and nonexclusive of
any other remedy either set forth herein or available to any party at law or in
equity. Each of the parties shall have the affirmative obligation to mitigate its
damages in the event of a default by the other Party.
d. Notwithstanding anything in this Development Agreement which is or may
appear to be to the contrary, if the performance of any covenant or obligation to
be performed hereunder by any party is delayed as a result of circumstances
which are beyond the reasonable control of such party (which circumstances may
include, without limitation, pending or threatened litigation, acts of God, war, acts
of civil disobedience, fire or other casualty, shortage of materials, adverse weather
conditions [such as, by way of illustration and not limitation, severe rain storms or
below freezing temperatures, hurricanes or tornados] labor action, strikes or
similar acts) the time for such performance shall be extended by the amount of
time of such delay. The party claiming delay of performance as a result of any of
the foregoing "force majeure" events shall deliver written notice of the
commencement of any such delay resulting from such force majeure event not
later than seven days after the claiming party becomes aware of the same, and if
the claiming party fails to so notify the other party of the occurrence of a "force
majeure" event causing such delay, the claiming party shall not be entitled to avail
itself of the provisions for the extension of performance contained in this Section.
SECTION 8. AUTHORITY; COVENANTS
a. Actions: the City covenants to the Sub -Developer and agrees that upon
application of the Sub -Developer, the City will use its best efforts to the extent
permitted by law to take such actions as may be required and necessary to process
any amendments, variations, special use approvals and permit applications
relating to the Zoning Ordinance and the City's other ordinances, codes and
regulations, as may be necessary or proper in order to ensure the development of
the Property and the Project in accordance with the Plan and this Development
Agreement and to enable the City to execute this Development Agreement and to
carry out fully and perform the terms, covenants, agreements, duties and
obligations on its part to be kept and performed as provided by the terms and
provisions hereof.
b. The City hereby represents and Warrants to Sub -Developer that the City has full
constitutional and lawful right, power and authority, under currently applicable
law, to execute and deliver and perform the terms and obligations of this
Development Agreement, and all of the foregoing have been or will be duly and
validly authorized and approved by all necessary City proceedings, findings and
actions. Accordingly, this Agreement constitutes the Iegal, valid and binding
obligation of the City, is enforceable in accordance with its terms and provisions
and does not require the consent of any other governmental authority.
Page 12 of 18
AUSTIN: 018492.00013: 353513v5
c. The Sub -Developer hereby represents and warrants to the City that Sub -
Developer has full lawful right, power and authority to execute and deliver and
perform the terms and obligations of this Agreement and all of the foregoing have
been or will be duly and validly authorized and approved by all necessary actions
of Developer.
SECTION 9. MISCELLANEOUS PROVISIONS.
The following miscellaneous provisions are a part of this Development Agreement:
a. Amendments. This Development Agreement constitutes the entire understanding
and agreement of the parties as to the matters set forth in this Development
Agreement. No alteration of or amendment to this Development Agreement shall
be effective unless given in writing and signed by all of the parties hereto. •
b. Applicable Law and Venue. This Development Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, and all
obligations of the parties created hereunder are performable in Harris County,
Texas. Venue for any action arising under this Development Agreement shall lie
in the state district courts of Harris County, Texas.
c. Binding Obligation. This Development Agreement shall become a binding
obligation on the signatories upon execution by all signatories hereto. City
warrants and represents that the individual executing this Development
Agreement on behalf of City has full authority to execute this Development
Agreement and bind City to the same. EDC warrants and represents that the
individual executing this Development Agreement on behalf of .EDC has full
authority to execute this Development Agreement and bind EDC to the same.
Sub -Developer warrants and represents that the individuals executing this
Development Agreement on their behalf have full authority to execute this
Development Agreement and bind them to the same.
d. No Waiver of Sovereign Immunity. No party hereto waives any statutory or
common law right to sovereign immunity by virtue of its execution hereof.
e. Execution of Development Agreement. The City's Counsel has authorized the
City's Manager to execute this Development Agreement on behalf of City and the
EDC's governing body has authorized its Executive Director to execute this
Development Agreement on behalf of the EDC.
f. Severability. In the event any provision of this Development Agreement shall be
determined by any court of competent jurisdiction to be invalid or unenforceable,
the Development Agreement shall, to the extent reasonably possible, remain in
Page 13 of 18
AUSTIN: 018492.00013: 353S 13v5
g•
force as to the balance of its provisions as if such invalid provision were not a part
hereof.
Notices. All notices required to be given under this Development Agreement
shall be given in writing and shall be effective when actually delivered or when
deposited in the United States mail, first class, postage prepaid, addressed to the
party to whom the notice is to be given at the addresses shown above. Any party
may change its address for notices under this Development Agreement by giving
formal written notice to the other parties, specifying that the purpose of the notice
is to change the party's address. For notice purposes, each party agrees to keep
the other informed at all times of its current address.
h. Revenue Sharing Agreement. The City designates this Development Agreement
as a revenue sharing agreement, thereby entitling the City to request sales tax
information from the Comptroller, pursuant to section 321.3022 of the Texas Tax
Code, as amended.
i. Effective Date. The effective date (the "Effective Date") of this Development
Agreement shall be the date upon November 13th, 2006.
J.
Counterparts. This Development Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same document.
k. Personal liability of Public Officials. To the extent permitted by State law, no
public official or employee shall be personally responsible for any liability arising
under or growing out of this Agreement.
1. Liability of Sub -Developer its successors and assignees. Any obligation or
liability of the Sub -Developer whatsoever that may arise at anytime under this
Development Agreement or any obligation or liability which may be incurred by
the Sub -Developer pursuant to any other instrument, transaction or undertaking
contemplated hereby shall be satisfied, if at all, out of the assets of the Sub -
Developer only. No obligation or liability shall be personally binding upon, nor
shall resort for the enforcement thereof be had to, the property of any of the
partners, officers, employees, shareholders or agents of the Sub -Developer,
regardless of whether such obligation or liability is in the nature of contract, tort
or otherwise.
[Remainder of Page Intentionally Left Blank]
Page 14 of 18
AUSTIN: 018492.00013: 353513v5
SHADOW CREEK RETAIL, LP,
a Delaware limited partnership
By: Shadow Creek Retail GP, LLC,
a Delaware limited liability company,
its General Partner
By: ( .Axeel) k rhew..ecti,,
Name: L-1-A(wc c f->p,Altvrt
Title: vice f R E9 DEty' i
AUSTIN: 018492.00013: 353513v5
ATTEST:
APPROVED AS TO FORM:
Darrin Coker
City Attorney
woo°
CITY OF PEARLAND
By:
BILL EISEN
City Manager
Date: F bru.a w/ .2 '2, 7_60-7--
PEARLAND ECONOMIC
DEVELOPMENT CORPORATION
By: /'
Fred Welch
Executive Director
Date: 1 ebn.tu.rti 221 20 o
AUSTIN: 018492.00013; 353513v5
EXHIBIT "A"
OUT OF ZONE IMPROVEMENTS
ESTIMATE
OF
Broadway
Widening and signalization outside Zone
$1,951,391
Total
$1,951,391
TIRZ IMPROVEMENTS
ESTIMATE
OF
Infrastructure
Major Road Infrastructure
Broadway Widening
Business Center Drive paving
Memorial Hermann Drive paving
Landscaping
Business Center Drive
Memorial Hermann Drive
Detention/Drainage
Land (500,000 sf @ $5.70 per sf)
Beautification/Deepening/Pond creation
Site drainage facilities
Overhead Utilities Placed Underground
Pipeline Relocation
Engineering
Engineering (15%) .
•
$2,831,789
$852,722
$383,107
$157,500
$67,500
$2,850,000
$200,000
$1,842,000
$1,200,000
$700,000
$490,000
Subtotal
$11,547,618
Plan Amendment Costs (statutorily
permissible professional fees such as legal,
engineering, architectural etc.)
$175,000
Subtotal
$175,000
TOTAL
$11,749,618
TOTAL OUT OF ZONE IMPROVEMENTS
$1,951,391
TOTAL TIRZ IMPROVEMENTS
s11,749,618
GRAND TOTAL OF IMPROVEMENTS
$13,701,009
AUSTIN: 0 1 8492.00013: 353513v5
EXHIBIT "B"
AUSTIN: 018492.00013; 353513v5
RESOLUTION NO. R2007-83
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, APPROVING AN AMENDED DEVELOPMENT AGREEMENT WITH
SHADOW CREEK RETAIL, LP AND THE PEARLAND ECONOMIC
DEVELOPMENT CORPORATION.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That amended Development Agreement by and between the City of
Pearland, Shadow Creek Retail, LP and the Pearland Economic Development Corporation,
a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes,
is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an amended Development Agreement with shadow Creek
Retail, LP and the Pearland Economic Development Corporation.
PASSED, APPROVED and ADOPTED this the 14th day of May, A.D., 2007.
TOM REID
MAYOR
ATTEST:
G
UNG , TC
TY S: ETARY
APPROVED AS TO FORM:
(adA,..: le .
DARRIN M. COKER
CITY ATTORNEY
! •
Exhibit "A"
Resolution No. R2007-83
07-0037
CITY OF PEARLAND
STANDARD AMENDMENT TO
DEVELOPMENT AGREEMENT
This Amendment (hereinafter "Amendment") is made between the City of
Pearland, Texas (hereinafter "City"), and Shadow Creek Retail, LP (hereinafter
"Sub -Developer") and the Pearland Economic Development Corporation
(hereinafter "EDC") to amend that contract (the "Contract") between the City,
Sub -Developer and the Pearland EDC executed on February 22, 2007.
1. Amended Terms. The City and the Developer hereby agree that Section
3(a) of the Contract is amended to increase the Performance Based 'Grant from
One Million Nine Hundred Fifty -One Thousand Three Hundred Ninety -One and
0/100 Dollars ($1,951,391.00) by Fifty Thousand dollars ($50,000.00) to equal a
total Performance Based Grant of Two Million One Thousand Three Hundred
Ninety -One and 0/100 Dollars (2,001,391.00).
2. Contract to Remain in Force. Other than the provisions of the
Contract expressly amended herein, the Contract shall remain in full force and its
enforceability shall be unaffected by this Amendment.
EXECUTED and EFFECTIVE as of the / day of JA--44---U
2007.
CITY OF PEARLAND, TEXAS
By:
BILL. EISEN
City Manager
Date: %/(16-7
APPROVED AS TO FORM:
Darrin Coker
City Attorney
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PEARLAND ECONOMIC
DEVELOPMENT CORPORATIION
By:
Fred Welch
Executive Director
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SHADOW CREEK RETAIL, LP,
a Delaware limited partnership
By: Shadow Creek Retail Group, LLC
a Delaware limited liability company
its General Partner
Name: Thomas E, (Chip) Clarice
Title:
President
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Whether it's construction,general contracting,brokerage,site locations or development,AmflEIT
can be your partner in producing premium retail real estate.For over 21 years,we have established Irreplaceable Corner
key relationships in the industry,which open doors to individuals,JV partners.or corporations Portfolio Asset Advisory Third Party
looking to begin or expand their real estate investments.
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mIETT displayed a proles-
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s ,,"'"? sional approach and a refreshing
ogr emerese, "can-doe attitude throughout the
:• 1 N r ,•_ ; - entire project. Considering Eckerd's
�_ ,� . $Ili ° , aggressive development program
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on at once by various developers
r\ t'' -• r f .. that I must oversee,AmREIT
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certainly makes my job easier
la.• " �c,1 +tj Fred Terrell
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1 j 9 �i r `' { y President.Eckerd Corporation
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.�sI"'y�s "far„-r ',
« e had serrral ohjcctir•es when use went to themarket such as:fully understand construction issues, close
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by year end. and assume the e.risting financing. OnceAmREIT was selected as the Purchaser, your entire
team attacked each part of the transaction with a focused eye on the primary goal and with a sense of urgency.
As issues came up, not one person let them interfere with getting the deal closed as originally planned.�-9
Jade Crews
Senior Vice President.Trammell Crow Company 5 ` a pz''«x
AmREIT's Full-service Real Estate Expertise
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DEVELOPMENT JOINT VENTURE SALE/LEASEBACK ACQUISITIONS
AmREIT provides in-house exper- AmREIT's full-service real estate AmREIT helps corporate clients AmREIT's acquisition team
rise in the development and rode- capabilities make us an ideal achieve and exceed financial focuses on purchasing high-
velopment of quality commercial partner fur those seeking high- and operational objectives by quality retail properties for both
retail properties both as principal quality commercial real estate providing sal/leaseback upportu- our publicly traded REIT and our
and through joint venture or joint venture opportunities.We nitics that help unlock the value in actively managed retail partner-
third-party transactions. combine the experience,relation- their real estate-Sale leasebacks ships.This allows greater flexi-
ships.capital and passion of two increase a company's cash on hand bitity in our investment criteria
or more partners to create pre- that can then be used to grow the
it mium retail real estate properties, primary business,expand opera-
€- a. dons or pay down debt.
. krvv?il;1r
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CC
consider AmRE!T to hard sonic
of the most professional staff in the
industry; they are tough but fa a
t,
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they will push the limits ol'a deal ,..�•_''"x.'
but hareair
the ability to recognize - � �, �,
the line and they are always r.-•. ,'-
respectful of people and circum- l `-'
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stances. I would highly recommend " ' ra it� d
that anyone, in any capacity. that ( }r ~ , ICI gi
has the opportunity to work with = •-' _M —lilt�
the AmREIT train do sa.�� '""
Don Stringham
associ.a:e Lector,Marcus&Mitlichap
DISPOSITIONS BROKERAGE CONSTRUCTION LEASING PROPERTY
MANAGEMENT — MANAGEMENT
Throughout the}ear.AntREIT's AntREIT houses a team of bro- AND GENERAL AntRElTs in-house leasing pre-
dispositions team will identify kerage professionals that have CONTRACTING fe_ssionals understand the impor- AmREITs property management
and offer for sale directly to the key relationships with local, lance of quality service and field- team is committed to deliver the
investment community premier regional and national retailers. AmREIT ofTrr.extensive expertise bility and are always seeking ways highest quality property manage-
retail properties from our exist- Their depth of knowledge is un- in construction management and to add value to our customers.We ment to our tenants_We work
ing REIT portfolio or our actively matched providing a competitive general contrarting.ranging from stay involved throughout the life of hard to add value to our centers
managed fund portfolios. advantage in sourcing optimal tenant improvements tier small the lease and are ready to assist and strive to insure the long-term
sites. We make it a point to know retail establishments to new con- tenants and landlords with renew- attractiveness of the property.
your business and deliver real strurtiun and redevelopment of As.expansions.subleases and
estate solutions that lower orcu- large lifestyle and power renters. other leasing-related services
pancy costs,provide a better
return on invested capital.
increase speed to market and
enhance sales.
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have always found the people with whom 1 have worked with at AmRFIT to be knowledgeable
and professional. More importantly, the ethics and attitude of the people at Aml?FIT have always
been based on honesty and fairness. We are involved in a business that is speculative in nature
and often relies on the intent of the parties involved in developing a property, regardless of the
`,-h ,. contracts that are negotiated I have found everyone in your organization to be dependable, and
I can trust that you will fulfill the obligations that you undertake."
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Jeffrey R.Wakeman
r.,I Managing Member.CENTDEV Properties
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. " IS made its'f,ntry into the!Muslim rnarketplace and engaged itinREIT's Retail Brokerage
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dfrision and Construction Management (Ih:ision for site selection and der coordino-
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aid/ ,lutHL-IT has demonstrated that they can pet/arm at the highest lords ire these capacities.
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) PLS would recommend.ltukEIT to any retailer with the highest regards.,"
Ken Crane.P,il r,t 0()r..to,.PIS pt.3,/
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