R2006-210 01-22-07
RESOLUTION NO. R2006-210
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO A DEVELOPMENT AGREEMENT WITH PEARLAND TOWN
CENTER LIMITED PARTNERSHIP.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain agreement by and between the City of Pearland and
Pearland Town Center Limited Partnership, 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 agreement with Pearland Town Center Limited
Partnership.
PASSED, APPROVED and ADOPTED this the 22nd day of January, A.D., 2007.
~~ ~.e
TOM REID
MAYOR
ATTEST:
APPROVED AS TO FORM:
C1-:- It. (J/L-
DARRIN M. COKER
CITY ATTORNEY
Exhibit "A"
R2006-210
File No. 07-0007
DEVELOPMENT AGREEMENT
By and Among
THE CITY OF PEARLAND, TEXAS
and
PEARLAND TOWN CENTER LIMITED PARTNERSHIP
and
CBL & ASSOCIATES MANAGEMENT, INC.
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DEVELOPMENT AGREEMENT
This Agreement ("Agreement") is made and entered into as of JGLnI,.t.~~, 2007 (the
"Effective Date"), by and between the City of Pearland, Texas, a home rule muniCIpalIty located
in the counties of Brazoria, Fort Bend, and Harris, Texas (the "City") and the Pearland Town
Center Limited Partnership, a Texas Limited Partnership, and CBL & Associates Management,
Inc.. a Delaware Corporation (collectively, the "Developer").
RECIT ALS
WHEREAS, the Developer desires to develop an approximately 150 acre tract of land,
which it currently has purchased, located south of Broadway between County Road 566 and the
proposed extension of Kirby Road, as the Pearland Town Center primarily for retail development
comprised of 700,000 square feet of retail and commercial space (the "Proiect"); and
WHEREAS, the Developer has determined that the accelerated construction of certain
public infrastructure ("Public Infrastructure," as defined herein) will enhance the Project; and
WHEREAS, the City has established a program in accordance with Article 1II, Chapter
52-a of the Texas Constitution and Chapter 380 of the Texas Local Govemment Code ("Chapter
380") under which the City has the authority 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 City has concluded and hereby finds that this Development Agreement
promotes economic development in the City of Pearl and 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
and Developer; and
WHEREAS, the City recognizes the positive economic impact that the Project will bring
to the City through development and diversification of the economy. elimination of
unemployment and underemployment through the production of new jobs, the attraction of new
businesses, and the additional ad valorem and sales and use tax revenue generated by the Project
for the City; and
WHEREAS, the Developer will directly finance, design and construct the Project and the
Pubhc Infrastructure to serve the Project and then convey the Public Infrastructure to the City, as
provided in this AbTfeement; and
WHEREAS, in consideration of development of the Project which will bring additional
City Sales Tax Revenues (as defined herein) to the City. and additional jobs located at the
Project, the City agrees to reimburse the Developer solely for the costs associated with the Public
Infrastructure (the "Reimbursement Amount" as defined herein) as provided in this AbTfeement;
and
Houston 2488572v.20
WHEREAS, the City will use the City Sales Tax Revenues to provide the
Reimbursement Amount to the Developer as provided in this Agreement in the amount and in
the manner described in Article IV of this Agreement; and
WHEREAS, consistent with Article III, Section 52-a of the Texas Constitution, Chapter
380 and other law, the City and Developer agree to work together to advance the public purposes
of developing and diversifying the economy of the state, eliminating unemployment or
underemployment in the state, and developing or expanding transportation or commerce in the
state: and
WHEREAS, to ensure that the benefits the City provides under this Agreement are
utilized in a manner consistent with Article III, Section 52-a of the Texas Constitution, Chapter
380 and other law, the Developer has abTfeed to comply with certain conditions for receiving
those benefits, including performance measures relating to job creation and construction of retail
space for the Project; and
WHEREAS, the City and the Developer desire to enter into this Agreement for their
mutual benefit;
NOW, THEREFORE:
AGREEMENT
For and in consideration of the foregoing recitals and ofthe mutual promises, obligations,
covenants and benefits herein contained, the City and the Developer contract and abTfee as
follows:
ARTICLE I
GENERAL TERMS
Section 1.01 Incorporation of Recitals. The recitals to this Agreement are hereby
incorporated for all purposes.
Section 1.02 Definitions and Terms. The tern1S "Act," "Agreement," "Chapter 380,"
"Cit\~," "Developer," "Effective Date," "Project," and "Property" shall have the above meanings,
and the following terms have the following meanings:
"City," as defined in the preamble, is further defined as a municipal corporation and
home-rule city of the State of Texas situated in Harris, Fort Bend and Brazoria Counties, acting
by and through its governing body, the City Council.
"City Commitment" is defined in Article IV.
"City Sales Tax Revenues" shall mean the City sales and use taxes generated from within
the Project and remitted to the City by the Comptroller of the State of Texas.
I-Ioust<ln 2488572v.20
"Completion" shall mean the date that is one hundred days after the City receives notice
from the Developer, and the City subsequently verifies, that 750;;) of the square footage of
businesses within the Project (525,000 square feet out of the 700,00 square feet comprising the
Project) have been open for business for at least thirty (30) consecutive days.
"Interest" shall mean the interest on any unreimbursed Developer expenditures for Public
Infrastructure, which shall begin to accrue upon Completion at a tixed rate of 8% and calculated
on January 1 of each year, evidenced by an independent audit of such expenditures provided by
the Developer.
"Letter of Acceptance" shall mean a certificate of the City certifying the completion of all
or a portion of the Public Infrastructure constructed by or under the supervision of the Developer
in accordance with the applicable plans and regulations.
"Parties" or "Party" shall mean the City and the Developer, the parties to this Agreement.
"Public Infrastructure" shall mean the streets and roadways, drainage and detention
associated with public streets and roadways, landscaping and lighting within public rights-of-
way, all utilities and other public infrastructure associated with the extension of Kirby, as further
described in Exhibit A attached hereto. The Public Infrastructure does not include obtaining
easements and right-of-ways for drainage and roadways associated with the extension of Kirby
as this shall be the sole responsibility of the City.
"Reimbursement Amount" shall mean an amount equal to the actual costs incurred by the
Developer for the engineering, construction and construction management of the Public
Infrastructure, in each case including soft and hard costs relating thereto and Interest. These
costs shall be based upon but not limited to the amount and type of costs shown in the hard costs
budget attached hereto as Exhibit B, and the soft costs budget attached hereto as Exhibit C. The
City shall have the right to inspect the records of the Developer to verify that such costs have
actually been incurred by the Developer. If the actual costs increase by t,'Teater than ten percent
(10%) of the total amounts referenced in Exhibits Band C betc)re construction of the Public
Infrastructure commences, the Developer will seek City Council approval according to Section
3.04 herein.
"State Comptroller" shall mean the Comptroller of Public Accounts tc)r the State of
Texas, or such other agency responsible for collecting sales and use taxes within the State of
Texas and remitting them to the City.
"TIA" shall mean the Traffic Impact Analysis commissioned by the Developer for the
Project.
Section 1.03 Singular and Plural. Words used herein in the singular, where the context
so permits, also include the plural and vice versa. The definitions of \vords in the singular herein
also apply to such words when used in the plural where the context so permits and vice versa.
Houston 24~~572v.2()
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations of the City. The City hereby represents to the Developer
that as the date hereof:
(A) The City is a duly created and eXIstIng municipal corporation and home rule
municipality of the State of Texas under the laws of the State of Texas and is duly qualified and
authorized to carry on the governmental functions and operations as contemplated by this
Agreement.
(B) The City has the power, authority and legal right under the laws of the State of
Texas and the City Charter to enter into and perfonn this Agreement and the execution, delivery
and performance hereof (i) will not, to the best of its knowledge, violate any applicable
judgment, order, law or regulation, and (ii) do not constitute a default under, or result in the
creation of, any lien, charge, encumbrance or security interest upon any assets of the City under
any agreement or instrument to which the City is a party or by which the City or its assets may
be bound or affected.
(C) This Agreement has been duly authorized, executed and delivered by the City
and, constitutes a legal, valid and binding obligation of the City, enforceable in accordance with
its terms except to the extent that (i) the enforceability of such instruments may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws of general application
in effect from time to time relating to or affecting the enforcement of creditors' rights and (ii)
certaln equitable remedies including specific perfonnance may be unavailable.
(D) The City will coordinate with the Developer in obtaining all necessary permits
and approvals from the City and all other governmental otlicials and agencies.
(E) The execution, delivery and perfonnance of this Agreement by the City does not
require the consent or approval of any person which has not been obtained.
Section 2.02 Representations of the Developer. The Developer hereby represents to the
City that as of the date hereof:
(A) The Developer is duly authorized and existing and in good standing under the
laws of the State of Texas, and is qualified to do business in the State of Texas.
(B) The Developer has the power, authority and legal right to enter into and perform
its obligations set forth in this Agreement, and the execution, delivery and perflJrn1anCe hereof,
(i) have been duly authorized, and will not, to the best of its knowledge, violate any judgment,
order, law or regulation applicable to the Developer, and (ii) do not constitute a default under or
result in the creation of~ any lien, charge, encumbrance or security interest upon any assets of the
Developer under any agreement or instrument to which the Developer is a party or by which the
Developer or its assets may be bound or affected.
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(C) The Developer will have suHicient capital to perfonTI its obligations under this
Agreement at the time it needs to have sufficient capital.
(D) The Developer has obtained or will use its best eHcllis to obtain all necessary
permits and approvals from the City and all other govemmental officials and agencies having
jurisdiction, and will provide supervision of all phases of construction of the Public
Infrastructure.
(E) This Agreement has been duly authorized, executed and delivered and constitutes
a legal, valid and binding obligation of the Developer. enforceable in accordance with its terms
except to the extent that (i) the enforceability of such instruments may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general application in effect
from time to time relating to or affecting the enforcement of creditors' rights and (ii) certain
equitable remedies induding specific perfomlance may be unavailable.
ARTICLE III
THE PROJECT, PUBLIC INFRASTRUCTURE AND
REQUIREMENTS FOR BROADWAY
Section 3.0 I Project. The Developer agrees to develop and construct the Project and
shall commence construction of the Public Infrastructure and the Project within six (6) months of
the Effective Date of this Agreement. For purposes of this Agreement, construction shall be
deemed to have commenced when the Developer has commenced construction of either physical
improvements on the Property or Public Infrastructure, aiter securing all applicable permits and
approvals required for such improvements. Developer shall commit capital investment sufficient
to complete the construction and development of the Project.
Section 3.02 Job Creation and Construction of Retail Space. The Developer's receipt of
the Reimbursement Amount is subject to the following commitment: Four years after the
Completion of the Project ("Compliance Date"), 700 new full-time or full-time equivalent jobs
located at the Project will have been created by either the Developer or any tenants located on
the Property (the "Jobs Requirement") and the Developer will have constructed 700,000 square
feet ofretail space which is 75% occupied (the "Retail Size RequircmenC).
Upon the request of the City, the Developer shall submit documentation as reasonably
necessary to evidence satisfaction that the developer has met the Jobs Requirement and Retail
Size Requirement.
Section 3.03 Reimbursement Reduction. If the Developer does not satisfy the Jobs
Requirement or the Retail Size Requirement on the Compliance Date, the City may reduce the
Reimbursement Amount. The percentage of any Reimbursement Amount reduction shall not
exceed the percentage by which the Developer does not satisfy the Jobs Requirement or the
Retail Size Requirement, with equal weight given to each requirement. For example, if the
Developer meets the Retail Size Requirement but only creates 350 jobs by the Compliance Date,
the calculation of the maximum allowable reduction in the Reimbursement Amount would be as
follows:
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Step I: x/1 00 X 3501700 = 50%
Step 2: 50% X Reimbursement Amount/2 = maximum reduction in Reimbursement Amount;
or if the Developer only constructs 350,000 square feet of retail space and creates 350 jobs by the
Compliance Date, the calculation of the maximum allowable reduction in the Reimbursement
Amount would be as follows:
Step I: x/1 00 X 350,0001700,000 = 50%
Step 2: 50% X Reimbursement Amount/2 = maximum reduction in Reimbursement Amount
relating to Retail Space Requirement
Step 3: x/1 00 X 3501700 = 50%
Step 4: 50% X Reimbursement/2 = maximum reduction in Reimbursement Amount relating to
the Jobs Requirement
Step 5: Steps 4 + 2 = maximum total reduction in Reimbursement Amount
Any reduction of the Reimbursement Amount based on the fonnula in this section shall be
applied to the total Reimbursement Amount, but the City Commitment and the monthly
payments thereirom shall continue until the total reduced Reimbursement Amount is paid to the
Developer. If the City has paid the Developer the entire Reimbursement Amount before the
Reimbursement Amount is reduced, the Developer shall reimburse the City for the reduction in
the Reimbursement Amount within thirty (30) days of being notified of the amount due to the
City.
Section 3.04 Public Infrastructure.
(A) The Project will be developed by the Developer simultaneously with the Public
Infrastructure. The Public Infrastructure shall be designed and constructcd by the Developer.
The City will reimburse the Developer for the actual costs that the Developer incurs for the
Public Infrastructure based on the budgets provided in Exhibits Band C herein (the "Budgets")
and the City's financial obligations with respect to the Public Infrastructure shall be limited in
amount and scope as provided in Artiele IV hereof. If before construction of the Public
Infrastructure commences, the Developer determines that the actual costs of the Public
Infrastructure have increased by an amount greater than ten percent (10%) of the total amount
referenced in the Budgets, Developer will obtain City Council approval for the increase in costs
before commencing construction of the Public Infrastructure. If the City Council does not
approve the cost increase such that the Developer does not construct the Public Infrastructure,
the City shall reimburse Developer for all out-of-pocket expenses that the Developer has
incurred to date, as mutually agreed upon by the Parties, and the design documents will become
the sole property of the City.
(B) The Developer agrees to construct the Public Infrastructure simultaneously with
the Project and obtain all necessary pennits and approvals from the City and all other
Houston 2488572v.20
government officials and agencies having jurisdiction and provide supervision of all phases of
construction of the Public Infrastructure.
(C) During and following completion of a component of the Public Infrastructure, the
Developer will have an inspection of the Public Infrastructure done by the City in accordance
with standard City inspection procedures, and upon approval thereof as being in compliance with
applicable City standards thereto, the Public Infrastructure will be conveyed to the City.
Section 3.05 Acceptance of Public Infrastructure.
(A) Promptly upon the completion of construction of any component of the Public
Infrastructure, the City shall furnish a Letter of Acceptance so certifying its acceptance. Each
Letter of Acceptance shall be in a recordable form, and shall be a conclusive determination of
satisfaction with respect to such Public Infrastructure. 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 to take or perform to obtain issuance of such Letter of Acceptance. If the City has
not provided the Letter of Acceptance or such written statement within 30 days atter receipt of
the request, the Public Infrastructure will be deemed accepted. The Developer will follow
standard City procedures and requirements applicable to all developers within the City with
regard to the acceptance of facilities by the City.
(B) After the City issues its Letter of Acceptance and the Public Infrastructure is
conveyed to the City, the City covenants to maintain, or cause to be maintained, the Public
Infrastructure in good condition and working order. Atter such conveyance to the City, the
Developer shall never be obligated to maintain the Public Infrastructure.
Section 3.06 City to Obtain Easements for Right-of-ways and Drainage Relating to
Public Infrastructure. The City agrees to obtain any and all casements and right-of-ways related
to drainage and roadways necessary to construct the Public Infrastructure. The City
acknowledges that these will be the sole responsibility of the City and will at no time be the
responsibility of the Developer. If a delay in the construction of the Public Infrastructure or the
Proj(~ct occurs because the City is unable to obtain such necessary easements and right-of-ways,
or the City does not timely grant all pennits or approvals necessary, the number of days
associated with such delays shall increase the time period referenced in Sections 3.01 and 3.02
by the same number of days.
Section 3.07 Requirements for Broadway. The Parties acknowledge that the City has
entered into an agreement with an independent third party to expand Broadway to meet all
requirements of Developer's TIA, and therefore the Developer shall not be required to meet the
requirements of the TIA as it applies to Broadway.
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ARTICLE IV
PROJECT FINANCING AND FUNDING
Section 4.01 Proiect Financing. The City agrees that it will either (i) make monthly
cash payments to the Developer totaling the Reimbursement Amount for a maximum period of
three (3) years from the Completion Date with payment in full of the remaining amount owed to
the Developer to occur three (3) years after the Completion Date, including the Interest
associated therewith at any time cash is available for such purpose under this Agreement or (ii)
assign the City's rights to the City Commitment to a third party in order for that third party to
issue a loan, note or other obligation to make such payments to thc Developer for the
Reimbursement Amount. Regardless of the City's method of payment to the Developer for the
Reimbursement Amount, the City shall pay the Developer the entire Reimbursement Amount,
including the Interest associated therewith, within three (3) years of the Completion Date.
Section 4.02 City Commitment.
(A) Pursuant to its authority under Chapter 380, the City hereby agrees to reimburse
the Developer an amount equal to the Reimbursement Amount. The City will pay the Developer
the Reimbursement Amount from 50% of the City Sales Tax Revenues (the "City
Commitment"), for the time periods provided in Section 4.01. The maximum amount of the City
Commitment is set forth in Section 4.02(8). It is intended by the parties that the City
Commitment will be paid by the City to the Developer solely out of City Sales Tax Revenues.
The City Commitment will commence upon Completion and will continue through and until the
Reimbursement Amount has been paid. The City af,Jfees that it will pay to the Developer during
the term of this Agreement, as an unconditional obligation of the City (but solely from the City
Sales Tax Revenues), the City Commitment if the Project is Completed and generates City Sales
Tax Revenues. Such payments are not subject to any reduction, whether offset or otherwise,
except pursuant to Section 3.03 hereof
(B) The Parties af,Jfee that the maximum City Commitment shall be an amount equal
to the Reimbursement Amount, which includes Interest, and such obligation on behalf of the City
will be limited solely to the City Sales Tax Revenues and from no other source, provided that the
City shall have the right, but shall have no obligation to do so, to pay the City Commitment from
any other source of legally available funds of the City; however, if three (3) years from the
Completion Date have lapsed and the City has not paid the Developer the entire Reimbursement
Amount, including Interest, the City must pay the Developer the entire remaining
Reimbursement Amount from any available source so long as City Sales Tax Revenue is being
generated in an amount in excess of the Reimbursement Amount. Upon such time as the City
has contributed the maximum City Commitment to pay the Reimbursement Amount in full, the
City shall have no further obligation under this Agreement and the City Sales Tax Revenues
levied and collected within the Project shall belong solely to the City.
(C) The City shall determine the amount of the City Sales Tax Revenues received
each month by the City from the State Comptroller in cooperation with the Developer and the
State Comptroller. The City and Developer agree to cooperate in any way necessary to receive
information from the Comptroller necessary to determine the City Sales Tax Revenue, including
Houst<m 2488572v.20
the filing or submittal of any forms or letters necessary to detennine the incidence of local sales
and use taxes. The City hereby creates and establishes a special fund of the City to deposit the
City Commitment, and hereby pledges such fund to the payment of the City Commitment as
provided herein. The City Commitment shall be remitted to the Developer on or before the 15th
day of each calendar month. The City designates this Agreement as a Revenue Sharing
Agreement, thereby entitling the City to request sales tax information from the Comptroller,
pursuant to section 321.3022, Texas Tax Code, as amended. Unless detemlined otherwise by the
Texas Attorney General in writing, any information received relating to the City Sales Tax
Revenue shall be considered confidential proprietary financial information not subject to
immediate release to the public. The City shall seek a written opinion from the Texas Attorney
General, raising any applicable exception to release, prior to any release to a third-party under
the Texas Public Information Act.
(D) The City shall maintain complete books and records showing deposits to and
disbursements from the special fund of the City for City Sales Tax Revenues, which books and
records shall be deemed complete if kept in accordance with generally accepted accounting
principles as applied to Texas municipalities. Such books and records shall be available for
examination by the duly authorized officers or agents of the Developer or the Authority 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 store the same for four years thereafter.
ARTICLE V
ADDITIONAL DUTIES AND RESPONSIBILITIES OF THE CITY
Section 5.01 Public Infrastructure of other entities. The City will cooperate with the
Developer and encourage other public entities, particularly the Texas Department of
Transportation, Brazoria County, Texas and Brazoria County Drainage District No.4, to take
actions consistent with the development requirements of the Public Infrastructure including the
Developer's receipt of permits from all government and quasi-govemmental agencies for the
construction of roads required for the Project from Texas Depmiment of TranspOliation and the
County. Developer acknowledges that the City will not request or encourage other public
entitles to take actions inconsistent with their adopted rules, policies or procedures.
ARTICLE VI
TERM OF THE AGREEMENT AND OTHER OBLIGATIONS
Section 6.01 Term and Termination. This Agreement shall have a term (the "Term")
beginning on the Effective Date hereof and continuing until all obligations to the Developer
hereunder have been performed (limited in amount and scope to the maximum City Commitment
as set forth herein).
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ARTICLE VII
DEFAULT
Section 7.01 Default.
(A) If the City does not perform its obligations hereunder in substantial compliance
with this Agreement (other than the financial obligations, which shall be in strict compliance)
and, if such default remains uncured for a period of 60 days after notice thereof shall have been
given, in addition to the other rights given the Developer under this Agreement, the Developer
may enforce specific performance of this At,Tfeement or seek actual damages incurred by the
Developer for any such default.
(B) If the Developer does not perform its obligations hereunder in substantial
compliance with this At,Tfeement and, if such default remains uncured for a period of 60 days
after notice thereof shall have been given, in addition to the other rights given to the City under
this Agreement, if the Developer has constructed or is constructing the Project, the City may also
select specific performance for construction of the Public Infrastructure, or terminate this
Agreement and any of the obligations associated herein and the City may seek actual damages
incUlTed by the City for any such default, including all costs to construct the Public Infrastructure
if the Developer has constructed or is constructing the Project.
(C) Notwithstanding anything in this Agreement which is or may appear to be to the
contrary, if the performance of any covenant or obligation to be perfomled hereunder by either
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, hurricane or tomados) 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.
ARTICLE VIII
GENERAL
Section 8.01 Severability. If any provision of this Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction for any reason, such provision shall be
fully severable, and the remainder of this Agreement shall remain in full force and effect. This
Agreement shall be construed and enforced as if such invalid or unenforceable provision had
never comprised a part of this Agreement.
Houst.)n 2488572v.20
Section 8.02 Notice. Any notice or other communication required or permitted to be
given pursuant to this Agreement shall be given to the other Party at the following address:
CITY:
with copies to:
DEVELOPER:
with copies to:
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Attention: City Manager
City Attorney
City of Pearland
3519 Liberty Drive
Pearland, Texas. 77581
Pearland Town Center Limited Pminership
2030 Hamilton Place Blvd, Suite 500
Chattanooga, TN 37421
Attention: Jeff Brewer
Victoria Berghel, Sr. VP and General Counsel
CBL & Associates Management, Inc.
2030 Hamilton Place Blvd, Suite 500
Chattanooga, TN 37421
Attention: Jeff Brewer
Victoria BergheL Sr. VP and General Counsel
Barron Wallace
Vinson & Elkins L.L.P.
100 I Fannin, Suite 2300
Houston, Texas 77002
Any such notice or communication shall be deemed given on the date so delivered or so
deposited in the mail, unless otherwise provided herein. Either Party may change the above
address by sending written notice of such change to the other Party in the manner provided
above. With the consent of the receiving Party, notice may be given by facsimile transmission or
electronic mail.
Section 8.03 Amendments and Waivers. Any proVIsion of this AbTTeement may be
amended or waived if such amendment or waiver is in writing and is signed by the City and the
Developer.
Section 8.04 Successors and Assigns. Except as provided in Article IV, no party shall
have the right to assign its rights under this Agreement or any interest herein, without the prior
written consent of the other Party except the Developer may assign its rights and responsibilities
hereunder to any related, affiliated or subsidiary entity to which substantially all of its assets,
Houst.)n 2488572v.20
liabilities and its rights to proceed with development of the Project arc transferred. Such written
consent shall not be unreasonably withheld and if such consent is not received by the Party
seeking consent within ten (10) days of their request for consent, the assignment will be deemed
approved.
Section 8.05 Exhibits; Titles of Articles, Sections and Subsections. The exhibits
attached to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any contlict between any of
the provisions of such exhibits and the provisions of this Agreement, thc provisions of this
Agreement shall prevail. All titles or headings are only for the convcnience of the Parties and
shall not be construed to have any effect or meaning as to the agreement betwccn the Parties
hereto. Any reference herein to a Section or Subsection shall be considered a reference to such
Section or Subsection of this Agreement unless otherwise stated. Any reference herein to an
exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise
stated.
Section 8.06 Construction. This Agreement is a contract made under and shall be
construed in accordance with and governed by the laws of the United States of America and the
State of Texas, as such laws are now in effect. Venue for any action arising under this
Agreement shall lie in the state district courts of Brazoria County, Texas.
Section 8.07 Entire Agreement. This written Agreement represents the final a~Tfeement
between the Parties and may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the Parties. There are no unwritten oral agreements between the
Parties.
Section 8.08 Approval bv the Parties. Whenever this Agreement requires or permits
approval or consent to be hereafter given by either Party, the Parties a~Tfee that such approval or
consent shall not be unreasonably withheld or delayed.
Section 8.09 Additional Actions. The Parties agree to take such actions, including the
execution and delivery of such documents, instruments, petitions and certifications as may be
necessary or appropriate, from time to time, to carry out the tenns, provisions and intent of this
Agreement and to aid and assist each other in carrying out said terms, provisions and intent.
[EXECUTION PAGES FOLLOW]
Houst.)n 2488572v.20
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be duly
executed as of the 31~ay of -Ja.nu-CLr'--) ,2006.
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CITY OF PEARLAND, TEXAS
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By: ;. C )- j G
Mayor
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PEARLAND TOWN CENTER LIMITED
PARTNERSHIP
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By: Pearland Town Center GP, LLC, A,l! Vf)I/fd. "'""'t;
a Delaware Limited Liability Corporation I(~ ffI:t'
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Title: ~r'ln:(q" '.r;:'::.~ prr,r,'l~ '~t :";"('~ '~_>,: . ,~"I,\,,: f{~~
CBL & ASSOCIA TFS MANAGEMENT, INC. A 1.> I
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OFF-SITE MI1lGATION MEASURES EXHIBIT
PEARLAI'D TOWN CENTER
PEARLAND, TEXAS
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EXHIBIT B
HARD COSTS BUDGET
TO:
KEN WITTLER
FROM:
nEN MILNER
RE.
KIRBY DRIVE EXTENSION - PI<:ARLAND TOWN CENTER
PEARLAND, TX
2504-01-3-1
Attached is a copy of the Preliminary budget to extend a halfboulcvard section of Kirby Dt-ive frol11 the
south entry drive to CR 59_ This budget is based on the "Kirby Dt-ive Extcnsion" plans by Carter I3mgess
dated 6/9/06.
This budget includes the following:
a. An allowance of $ 200,000 is included for grading/earthwork. There is no existing or proposed
grading information available for this budget. This budget will 11(;(;d to be revised upon receipt
of this information.
b. An allowance of $ 50,000 for existing utility modifications.
c_ 24' wide 10" concrete paving on top of lime stabilized base.
d. Extruded concrete curb.
e. Sodding fc)r all disturbed areas.
r An allowan(;e of $ 200,000 is included for a traffic signal at tile south entry drive at Kirby.
g. Storm sewer per the Carter Burgess design dated 6/9/05. Storm sewer includes 600 If
of 5'x3' box culvcrt to thc outfall west of Kit. by [{oad.
h. Permit fees based on 1% of the road budget.
This budget excludes the following:
a. Engineering and design.
b. Rezoning Costs.
c. Easements and/or right-of way modifications or acquisitions.
d. Wetlands mitigation.
e. Sinkhole repairs.
f. Relocation of existing utilities unless noted above.
g. Compaction densities greater than 98% Standard Proctllr.
h. Mitigation of environmental and wildlifc hazards.
i. Keystone type or concrete retaining walls.
j. Street Lighting. According to the city of Pearland, Centerpoint \vill provide the street lighting
to them under an agreement between the two companies_
k. \Vater and Sanitary work.
1. Impact and meter fees.
Please note this budget is based on October 2006 costs. An innation (l(liustment of 3 %. for Off-Site
work has been included in this budget. This budget excludes any contillg(;lIci(;s for the volatility of the
petroleum and construction market. The inflation adjustment should be lIsed as a guide only, as the actual
rate of inflation may vary.
Please let mc know if] ean be of any further assistance,
ec:
Charles Lebovitz
Stephen Lebovitz
Michael Lebovitz
Gus Stephas
Houst,)n 24R8572v.20
B-1
OFF- SITE WORK
PROJECT:
PEARLAND TOWN CENTER - KIRBY DRIVE
DATE:
DECEMBER 06, 2006
PHASE:
ONE
ITEM
QUANTITY
TOPO - NO
GHADING PLAN - NO
SOIL REPORT - NO
UNIT
COST
GRAND
TOTAL
SUfi
TOTAL
EXTEND HALF BOULEVARD SECTION FOR KIRBY FROM THE SOUTH ENTRY DRIVE TO CR 59
Layout
Erosion Control
Clear/Grub
Strip Topsoil
Grading Work ALLOWANCE
Utility Moditlcation ALLOW ANCE
Fine Grade
Lime Stabilize
Concrete Pavement
Asphalt Pavement
Concrete Curb
Sod Disturbed Areas
Traffic Striping
Backfill Curbs
Place Topsoil
Haul-Off Top~.oil
Kirby and South EntIy Signal ALLOWANCE
24" RCP Storm Sewer
30" RCP Storm Se\.ver
36" RCP Storm Sewer
4' x 3' RCB St::>nn S(,wcr
5' x 3' RCB Storm Sewer
Sloped End I-kadwalls
Junction Boxes
Catch Basins
Concrete Headwall
Traffic Contro I/flarricad ing
Penn it Fees
Sub Bond
Genera] Conditions
] LS
8.6] AC
8.6] AC
]3,889 CY
1 AL
I AL
10,324 SY
90,600 SF
90,600 SF
258 SY
7,500 LF
31,250SY
1 LS
7.78 CY
12,917 CY
972 CY
1 AI.
987 LF
1,025 LF
5451X
547 LF
1,077 LF
2 SA
4 EA
18 EA
lEA
I LS
I LS
I LS
I LS
Sub Total
Inflation Adjustmcnt (3%)
Subtotal (cxcluding OIl/I')
5% OI-l/P
Total Allowance
Page 2 (J{ 2
Houston 2488572v.20
B-2
$17,217.63
$2,()J0.00
$4,537.00
$3.60
$200,000.00
$50,00000
S102
$0.4 ]
$503
$16.83
$408
$3.05
$15,000.00
$3.00
$3.75
$9.50
$200,000.00
$67.00
$80.00
$90.00
$2 i 100
$268.00
:B7,500.00
$10,75200
$2,185.00
$9,33800
$7,55000
$19,9636 ]
$29,C)'154J
$7],6J9.43
$1'/ ,218
$17,'176
$39,058
$50,000
$200,000
$50,000
$10,531
$37,146
$455,7]8
$1J,337
$]0,600
$95,3]]
$15,000
$833
$lI8,'138
$9,236
$200,000
$66,129
$82,000
$49,050
$115,'117
$n8,636
$1.5,000
$43,008
$39,330
$9,338
$7,550
$ I 9,964
$29,945
$71,619
S2, II 'U;89
$63,537
$2, i 81,426
$109,574
$2,291,000
EXHIBIT C
SOFT COSTS BUDGET
1. Engineering and Design-Carter Burgess 8.715% of construction costs
2. Project Management-CBL 5% of construction costs of the
Public Infrastructure
3. Signal Design and Synchronization-TEl $21,500.00
Houston 2488572v.20 B-3