R2006-192 11-13-06
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 SHADOW CREAK RETAIL, L.P., AND
A DEVELOPER REIMBURSEMENT AGREEMENT BETWEEN THE
CITY OF PEARLAND, REINVESTMENT ZONE NUMBER TWO, CITY OF
PEARLAND, TEXAS AND SHADOW CREEK RETAIL, 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 Shadow Creek Retail, 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
Shadow Creek Retail, L.P., a copy of which is attached as Exhibit "8" 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 ~:~ber, 2006.
Tom Reid
Mayor
,
APPROVED AS TO FORM:
O~. If.~
Darrin M. Coker
City Attorney
192 Tirz Reimb&Dev Agmt.192
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. CON"ST., 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 comer 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. CaNST., 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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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 finds that this Development Agreement clearly
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, the EDC and Sub-Developer; and
WHEREAS, the City created Tax Increment Reinvestment Zone Number Two (the "Zone") by
City Ordinance No. 891, dated December 21, 1998; and
WHEREAS, 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
WHEREAS, 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 1 st 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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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 Pearl and, 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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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.
Development Corporation" or "EDC" shall mean
Development Corporation, whose principal business
Drive, Pearl and, Texas 77581, or its successors.
The words "Economic
the Pearland Economic
address is 3519 Liberty
1. 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 11O-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.
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p. 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.
q. 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 "TIRZ 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(l) 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 Proiect 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 Mll..LION NINE HUNDRED FIFTY -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
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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, and shall be 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 TIRZ 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
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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 I
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.
g. 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.
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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.
1. 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.
J. 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 TIRZ 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.
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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
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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 legal, 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.
AUSTIN: 018492.00013: 353513v5
Page 12 of 18
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
AUSTIN: 018492.00013: 353513v5
Page 13 of 18
force as to the balance of its provisions as if such invalid provision were not a part
hereof.
g. 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.
1. 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]
AUSTIN: 018492.00013: 353513v5
Page 14 of 18
SHADOW CREEK RETAIL, LP,
a Delaware limited partnership
By: Shadow Creek Retail GP, LLC,
a Delaware limited liability company,
its General Partner
By: ~'01) k ~di~
Name: t+A~'-D F~f\SATI k'
Title: \Jrc c f~E<;t DE:(Vt
AUSTIN: 018492.00013: 353513v5
ATTEST:
APPROVED AS TO FORM:
04--:' ca-
Darrin Coker
City Attorney
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AUSTIN: 018492.00013: 353513v5
CITY OF PEARLAND
By: U%. F
BILL EISEN
City Manager
Date: RbYUQ.n; 2'2...,2LJor-
PEARLAND ECONOMIC
DEVELOPMENT CORPORATION
By: ~"~':\~~I:)&J,_
Fred Welch
Executive Director
~
Date: FebYLUc..rfj 22,2-00r-
EXHIBIT "A"
OUT OF ZONE IMPROVEMENTS ESTIMATE OF
COST
Broadway $1 951,391
WideninQ and siQnalization outside Zone
Total $1,951.391
TIRZ IMPROVEMENTS ESTIMATE OF
COSTS
Infrastructure
Major Road Infrastructure
Broadway Widening $2,831,789
Business Center Drive paving $852,722
Memorial Hermann Drive paving $383,107
Landscaping
Business Center Drive $157,500
Memorial Hermann Drive $67,500
Detentionl Drainage
Land (500,000 sf @ $5.70 per sf) $2,850,000
Beautification/Deepening/Pond creation $200,000
Site drainage facilities $1,842,000
Overhead Utilities Placed Underground $1,200,000
Pipeline Relocation $700,000
Engineering $490,000
Engineering (15%)
Subtotal $11.547.618
Plan Amendment Costs ( statutorily $175,000
permissible professional fees such as legal,
enQineerinQ. architectural etc.)
Subtotal $175.000
TOTAL $11.749.618
TOTAL OUT OF ZONE IMPROVEMENTS $1.951.391
TOTAL TIRZ IMPROVEMENTS $11,749.618
GRAND TOTAL OF IMPROVEMENTS $13,701,009
AUSTIN: 018492.00013: 353513v5
EXHIBIT "B"
AUSTIN: 018492.00013: 3535I3v5
Exhibit "B"
Resolution 2006-192 11/13/06
DEVELOPER REIMBURSEMENT AGREEMENT
This DEVELOPER REIMBURSEMENT AGREEMENT (this "Agreement"), is
made and entered into as of the -tJ-"d.ay of November, 2006, by and between the CITY
OF PEARLAND, TEXAS (the "City"), a municipal corporation and a home-rule city
located in the Counties of Harris, Brazoria, and Fort Bend, Texas (the "City");
REINVESTMENT ZONE NUMBER TWO, CITY OF PEARLAND, TEXAS (the
"Reinvestment Zone"), a reinvestment zone created by the City pursuant to Chapter
311, Texas Tax Code, acting by and through its Board of Directors (the "Zone Board");
and SHADOW CREEK RET AIL, LP ("Sub-Developer"), a Delaware limited
partnership.
RECITALS
A. The City and Sub-Developer have entered into or will enter into a
Development Agreement ("Development Agreement"), which provides generally for
the development of a mixed use commercial development located at the northwest
corner of State Highway 288 and Broadway (also known as FM 518).
B. The City has created the Reinvestment Zone and has appointed members
of the Zone Board which has adopted the Project Plan and the Financing Plan, including
any amendments thereto, which Plans and amendments have been approved by the
..." City.
C. The Reinvestment Zone desires to implement the Plans and to provide for
the construction of certain TIRZ Improvements as described in the Plans.
D. The Reinvestment Zone has requested and Sub-Developer has agreed, to
construct and finance certain TIRZ Improvements described in Amendment Nos. 2 and
3 to the Plans which were approved by the Zone Board on October 23, 2006, if requested
by the City, subject to reimbursement by the City and the Reinvestment Zone from the
Tax Increment Fund, as provided in this Agreement, the Development Agreement, and
the Plans.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties do hereby agree as follows:
AGREEMENT
1. Incorporation of Recitals. The representations, covenants and recitations
set forth 111 the foregoing recitals are material to this Agreement and are hereby
119503.doc
incorporated into and made a part of this Agreement as through they were fully set
forth in this Section.
2. Cooperation. The Parties agree to take such actions, including the
execution and delivery of such documents, instruments, petitions and certifications
(and, in the case of the Reinvestment Zone, the adoption of such orders and
resolutions), as may be necessary or appropriate, from time to time, to carry out the
terms, provisions and intent of this Agreement and to aid and assist each other in
carrying out said terms, provisions and intent.
3. Payment and Reimbursement.
(a) Sub-Developer shall let conh'acts for the design and construction of
those TIRZ Improvements described in Plan Amendments Nos. 2 and 3, if requested by
the City, in the manner provided by subsections (1) and (2) of this section (the "TIRZ
Improvements").
(1) To initiate the construction of a TIRZ Improvement, Sub-
Developer shall provide a written request therefore to the Zone Board (i) describing the
requested TIRZ Improvements, (ii) specifying the estimated schedule for the design and
construction, (iii) estimating the likely costs thereof, as certified by the Reinvestment
Zone's engineer, and comparing such estimate to the TIRZ budget established for such
TIRZ Improvements in the Plans and (iv) specifying the area within the Zone which is
benefited by such TIRZ Improvements over which the available Tax Increment is to be
applied for purposes of determining when reimbursement is to be made. If the
Reinvestment Zone's engineer determines that the requested TlRZ Improvements
qualify for reimbursement, Sub-Developer may proceed to design and construct the
requested TIRZ Improvements in accordance with the procedures set forth herein.
(2) For purposes of record-keeping and establishing a priority of
reimbursement, the Reinvestment Zone and Sub-Developer shall execute a letter
agreement for each phase of construction, substantially in the form attached as Exhibit
A. The purpose of the letter agreement is to confirm that Sub-Developer will design
and construct a phase of the TIRZ Improvements, will pre-finance all associated costs of
such phase, and will be reimbursed by the City and the Reinvestment Zone from bond
proceeds or uncommitted Tax Increment, all in accordance with the terms and
conditions of this Agreement, the Plans and the Development Agreement.
(b) If Sub-Developer follows the procedures set forth herein and after
the Reinvestment Zone engineer and auditor have certified in letters in substantially the
form attached as Exhibits Band C that the TIRZ Improvements have been completed
and are in order for reimbursement, the Reinvestment Zone shall reimburse Sub-
Developer for all amounts advanced to the Reinvestment Zone pursuant to this
1 1 9503.doc
Agreement, plus appropriate interest on such amounts as calculated under the
provisions of the Development Agreement up to the amount certified by the
Reinvestment Zone engineer and auditor to be within the TIRZ budget (as may be
adjusted for inflation) established for such TIRZ Improvements in the Plans.
(c) The Reinvestment Zone shall be obligated to reimburse Sub-
Developer solely, and in order of priority, from (i) bond proceeds or (ii) uncommitted
Tax Increment if such funds are available and are not reasonably expected to be
required by the Reinvestment Zone for debt service on bonds issued for reimbursement
purposes or for administrative expenses. In accordance with the Plans, priority for the
reimbursement of advances is as follows: (i) creation and administration, (ii) Master
Developer TIRZ Improvements, and (iii) Sub-Developer TIRZ Improvements. The
Reinvestment Zone agrees to request at the earliest feasible date that the City issue
bonds and the City agrees to use its best efforts to issue bonds to fund reimbursements
at such time as the City's financial advisor certifies that the unencumbered Tax
Increment (exclusive of Tax Increment contributed by Alvin ISO or another
participating school district) generated within the area benefited by the TIRZ
Improvements is sufficient to support the applicable bonds and satisfies the coverage
test and any additional requirements set forth in the Development Agreement and the
Plans. The Reinvestment Zone's obligation to reimburse is conditioned on: (i) the
approval of the issuance of the bonds by the City, the Attorney General of Texas and
any other governmental authority having jurisdiction thereover; and (ii) the successful
marketing, sale and closing of the bonds.
4. Powers.
(a) The Reinvestment Zone hereby represents and warrants to Sub-
Developer that the Reinvestment Zone 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 Agreement, and all of the foregoing have been or will be
duly and validly authorized and approved by all necessary proceedings, findings and
actions. Accordingly, this Agreement constitutes the legal, valid and binding obligation
of the Reinvestment Zone, is enforceable in accordance with its terms and provisions
and does not require the consent of any other governmental authority.
(b) Sub-Developer hereby represents and warrants to the
Reinvestment Zone 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 Sub-Developer. Concurrently with Sub-Developer's execution of
this Agreement, Sub-Developer has delivered to the Reinvestment Zone copies of the
resolutions or other corporate actions authorizing the execution of this Agreement and
evidencing the authority of the persons signing this Agreement on behalf of Sub-
119503.doc
Developer to do so. Accordingly, this Agreement constitutes the legal, valid and
binding obligation of Sub-Developer and is enforceable in accordance with its terms
and provisions.
5. Time of Essence. Time is of the essence to this Agreement. The Parties
will make every reasonable effort to expedite the subject matters hereof and
acknowledge that the successful performance of this Agreement requires their
continued cooperation. All dates and time periods provided for in this Agreement shall
be delayed during any pending or threatened litigation that would affect the ability to
issue the bonds, acquire the Property or commence or continue with construction of
TIRZ Improvements or the Project, for a time period equal to the duration of such
litigation.
6. Default.
(a) A Party shall be deemed in default under this Agreement (which
shall be deemed a breach hereunder) if such Party fails to materially perform, observe
or comply with any of its covenants, agreements or obligations hereunder or breaches
or violates any of its representations under this Agreement.
(b) Before any failure of any Party to this agreement to perform its
obligations under this Agreement shall be deemed to be a breach of this 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
Agreement may be found to have occurred if performance has commenced to the
reasonable satisfaction of the complaining Party within thirty (30) days of the receipt of
such notice, subject, however, to the terms and provisions of Section 7(c). Each of the
Parties shall have the affirmative obligation to mitigate its damages in the event of a
default by the other Party.
(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
performed hereunder by any Party is delayed as a result of circumstances which are
beyond the reasonable control of such Party (which circumstances 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, 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 even not later than seven (7) 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
I 19503 doc
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.
7. Amendment. This Agreement, and any exhibits attached hereto, may be
amended only by the mutual agreement of the Parties evidenced by a written
amendment and by the execution of such written amendment by the Parties or their
successors in interest.
8. Entire Agreement. This Agreement (including all Exhibits attached to this
Agreement) sets forth all agreements, understandings and covenants between and
among the Parties relative to those matters herein contained; provided, however, that
the terms of this Agreement and those contained in the Development Agreement, shall
be construed in pari materia so as to give effect to the intent of the Parties. This
Agreement supersedes all prior agreements, negotiations and understandings, written
and oral (except for the Development Agreement) and, together with the Development
Agreement, shall be deemed a full integration of the entire agreement of the Parties. To
the extent of an irreconcilable variance between the terms of this Agreement and the
Development Agreement, the Development Agreement shall control.
9. Severability. If any provision, covenant, agreement or portion of this
Agreement, or its application to any person, entity or property, is held invalid, such
invalidity shall not affect the application of any other provisions, covenants, agreements
or portions of this Agreement and, to that end, all provisions, covenants, agreements or
portions of this Agreement are declared to be severable.
10. Texas Law. This Agreement shall be construed in accordance with the
laws of the State of Texas, and any actions concerning this Agreement shall be brought
in either the Texas State District Courts of Brazoria County, Texas or the United States
District Court for the Southern District of Texas.
11. Notice. Any notice under this Agreement (except as otherwise expressly
required) shall be sent according to the terms of the Development Agreement.
12. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
agreement.
13. Consent or Approval. Except as otherwise provided in this Agreement,
whenever consent or approval of either Party is required, such consent or approval
shall not be unreasonably withheld.
14. Term of Agreement. The term of this Agreement shall commence on the
date first above written and shall continue until the date ("Termination Date") on which
119503.doc
Sub-Developer has been fully reimbursed for all amounts advanced to the
Reinvestment Zone and interest on such amounts in accordance with Section 3 of this
Agreement.
15. Interpretation. This Agreement has been jointly negotiated by the Parties
and shall not be construed against a Party because that Party may have primarily
assumed responsibility for the drafting of this Agreement.
16. Exhibits and Schedules. All exhibits and schedules attached hereto are
declared to be a part of this Agreement and are incorporated herein by this reference.
[EXECUTION PAGES FOLLOW.]
1 I 9503.doc
IN WITNESS WHEREOF, the Parties have duly executed this Agreement
pursuant to all requisite authorizations as of the date first above written.
CITY:
CITY OF PEARLAND, TEXAS
By: ~
~ame:~Bill Eisen
Title: Ci ty Manager
A ITEST:
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TItle: r.i ty Spcrptilry
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119S03.doc
ATTEST:
By:
Name:
Title:
t 19503.doc
REINVESTMENT ZONE:
REINVESTMENT ZONE NUMBER
TWO, CITY OF PEARLAND, TEXAS
~fr(1~
('e' '/
:::> ,C~. tl~
SUB-DEVELOPER:
SHADOW CREEK RETAIL, LP,
a Delaware limited partnership
By: Shadow Creek Retail GP, LLC,
a Delaware limited liability company,
its General Partner
By: ~~~~
Name: ~&-t> K. ffi.R/;'/tTI.('
Title: VIC~ PR. ESt D{;r\Ji
1 J 9503.doc
EXHIBIT A
REINVESTMENT ZONE NO. TWO, CITY OF PEARLAND, TEXAS
(SHADOW CREEK RETAIL)
(Date]
Shadow Creek Retail, L.P.
Re: Financing for TIRZ Improvements:
; TIRZ Project No. _
Dear
The City of Pearland, Texas (the "City"), Reinvestment Zone No. Two, City of
Pearl and, Texas (the "Zone"), and Shadow Creek Retail, L.P. (the "Sub-Developer")
entered into a Reimbursement Agreement (the "Reimbursement Agreement") dated
I 20---/ to provide for the financing and construction of TIRZ
Improvements to serve land within the Zone. The Zone and the Sub-Developer have
determined to proceed with the design and construction of the following TIRZ
Improvements in accordance with the Reimbursement Agreement:
[description of TIRZ Improvements and location by section and/ or plat name]
Attached to this letter is a map showing the area which is benefited by the TIRZ
Improvements over which the available Tax Increment will be applied for purposes of
determining when reimbursement is made. The Sub-Developer has agreed to pre-
finance the design and construction of the TIRZ Improvements to be reimbursed in
accordance with the Reimbursement Agreement.
The Zone hereby gives its approval to proceed with the construction of the above
described TIRZ Improvements. All procedures set forth in the document entitled "TIRZ
Project Implementation and Reimbursement Process" must be followed and letters from
the Zone's Engineer certifying the completion of the TIRZ Improvements and from the
Zone's Auditor must be issued before the Zone will reimburse the Sub-Developer.
The Zone's Engineer has determined that the budget (adjusted for inflation)
established in the Zone's Project Plan and Reinvestment Zone Financing Plan for the
above described TIRZ Improvements is $ plus "developer interest" calculated
per the Reimbursement Agreement. The Zone is not obligated to reimburse the Sub-
Developer for any amount in excess of that budgeted amount plus" developer interest"
119503.doc
calculated by the Reimbursement Agreement. In accordance with the Zone's Project
Plan and Reinvestment Zone Financing Plan and the Development Agreement between
the City and the Sub-Developer dated , "developer interest' on these
TIRZ Improvements will be simple interest calculated at 6.5 percent per annum for five
years.
This agreement was duly authorized at a meeting of the Board of Directors of the
Zone held on the _ day of
Very truly yours,
REINVESTMENT ZONE NO. TWO, CITY OF
PEARLAND, TEXAS (SHADOW CREEK
RANCH)
By:
Chairman, Board of Directors
A ITEST:
By:
Secretary, Board of Directors
(SEAL)
I I 9503.doc
J 19503.doc
AGREED TO AND ACCEPTED THIS
DAY OF
SHADOW CREEK RETAIL, LP,
a Delaware limited partnership
By: Shadow Creek Retail GP, LLC,
a Delaware limited liability company,
its General Partner
By:
Name:
Title:
EXHIBIT B
(Engineer's Letter)
REINVESTMENT ZONE NO. TWO, CITY OF PEARLAND, TEXAS
(SHADOW CREEK RETAIL)
[date]
Reinvestment Zone No. Two,
City of Pearland, Texas
Attn: Chairman, Board of Directors
cj 0 City of Pearland, Texas
3519 Pearland Drive
Pearland, Texas 77581
Re: Completion of TIRZ Improvements described in Letter Financing
Agreement dated ; TIRZ Project No.
Dear Mr. Chairman and Members of the Board:
As the Engineer for the Reinvestment Zone No. Two, City of Pearl and, Texas (the
"Zone"), I have reviewed the completed documentation submitted by Shadow Creek
Retail, L.P. ("Sub-Developer") relating to the construction of the TIRZ Improvements
described by that Letter Financing Agreement dated , 20_ (the "Letter
Financing Agreement"). By the Letter Financing Agreement, the Sub-Developer agreed
to pre-finance the design and construction of the TIRZ Improvements to be reimbursed
in accordance with the Reimbursement Agreement between the City of Pearl and, the
Zone and Sub-Developer dated 2006 (the "Reimbursement
Agreement").
The Letter Financing Agreement states that the budget (adjusted for inflation)
established in the Zone's Project Plan and Reinvestment Zone Financing Plan for the
TIRZ Improvements is $ plus "developer interest" calculated per the
Reimbursement Agreement. In accordance with the Zone's Project Plan and
Reinvestment Zone Financing Plan and the Development Agreement between the City
of Pearland, Texas, and Sub-Developer dated , developer interest on
these TIRZ Improvements is to be calculated at 6.5 percent per annum for five years.
The Sub-Developer has provided, and 1 have reviewed, the necessary
documentation to prove compliance with all the procedures set forth in the document
entitled "TIRZ Project Implementation and Reimbursement Process." Based upon my
review, I conclude that the construction of the TIRZ Improvements was conducted in
compliance with the Reimbursement Agreement and the procedures set forth in the
I 19503.doc
document entitled "TIRZ Project Implementation and Reimbursement Process,'! is
complete, and is in order for reimbursement. I therefore recommend that the Zone
reimburse the Sub-Developer the amount of $ for the funds advanced to the
Zone for construction of the TIRZ Improvements! plus Ii developer interest" calculated
per the Reimbursement Agreement, as applicable. A detailed breakdown of the costs of
the construction of the TIRZ Improvements is attached to this letter.
Very truly yours!
Engineer for the Zone
119503.doc
EXHIBIT C
(Auditor's Letter)
REINVESTMENT ZONE NO. TWO, CITY OF PEARLAND, TEXAS
(SHADOW CREEK RETAIL)
[Date]
Reinveshnent Zone No. Two, City of Pearl and, Texas
A ttn: Chairman, Board of Directors
c/o City of Pearland, Texas
3519 Pearland Drive
Pearl and, Texas 77581
Re: Completion of TIRZ Improvements described in the Letter Financing
Agreement dated , _
Dear Mr. Chairman and Members of the Board:
As the Auditor for Reinvestment Zone No. Two, City of Pearland, Texas (the
"Zone"), I have reviewed the completed documentation submitted by Shadow Creek
Retail, L.P. (the "Sub-Developer") relating to the construction of the TIRZ
Improvements described by that Letter Financing Agreement dated
(the "Letter Financing Agreement"). By the Letter Financing
Agreement, the Sub-Developer agreed to pre-finance the design and construction of the
TIRZ Improvements to be reimbursed in accordance with the Reimbursement
Agreement between the City of Pearland (the "City"), the Zone and the Sub-Developer
dated (the "Reimbursement Agreement").
Based upon my review of the payments made and of the certification of the
Zone's Engineer, I conclude that the construction of the TIRZ Improvements was
conducted and have been completed in compliance with the Reimbursement
Agreement and the document entitled "TIRZ Implementation and Reimbursement
Process" and are in order for reimbursement.
I have confirmed with Brazoria County Municipal Utility District No. _
("MUD _") that these TIRZ Improvements are not being financed, and the Sub-
Developer is not being reimbursed for this project, by MUD _' I therefore
recommend that the Zone reimburse the Sub-Developer the amount of $
for the funds advanced to the Zone for the design and construction of the TIRZ
Improvements, which amount is within the TIRZ budget (adjusted for inflation)
established in the Zone's Project Plan and Reinvestment Zone Financing Plan for the
TIRZ Improvements.
I I 9503.doc
In accordance with the Zone's Project Plan and Reinvestment Zone Financing
Plan and the Development Agreement between the City and the Sub-Developer dated
, 11 developer interest" on this advance shall be calculated at 6.5
percent per annum for five years. Based upon this rate of interest and assuming no
partial reimbursements, interest due as of the date of the letter is $ , with an
additional per diem rate of interest equal to $ until reimbursed. The last day
that interest will accrue on this advance, if still unreimbursed, is
Very truly yours,
Auditor for the Zone
119503.doc