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R2008-011 2008-01-21RESOLUTION NO. R2008-11 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 FOR CONSTRUCTION OF A PORTION OF FM 518 WEST OF SH 288. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Development Agreement by and between the City of Pearland and Shadow Creek Ranch Development Company, 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 a Development Agreement with Shadow Creek Ranch Development Company. PASSED, APPROVED and ADOPTED this the 21 day of ry, A.D., 2008. : �:. . i �+i s �-� ATTEST: �"�'��<_ . � NG�I�F'1'f�lG fJCRIV� Y S RETARY �� APPROVED AS TO FORM: ��"�_ r DARRIN M. COKER CITY ATTORNEY �� TOM REID MAYOR Exhibit "A" Resolution No. R2008-11 07-0099 DEVELOPMENT AGREEMENT (EXHIBIT A TO RESOLUTION R-2008-11) This Agreement is entered into this 21 day of January , 2008, by and between the CITY OF PEARLAND, TEXAS, (hereinafter "City"), and Shadow Creek Ranch Development Company, LLP, (hereinafter "Developer"). WHEREAS, City desires the construction of a 4 lane divided section of Broadway befinreen CR 48 and Kirby Drive (hereinafter "Improvements"); and WHEREAS, the Improvements are part of the Project Financing Plan adopted by the Tax Increment Reinvestment Zone No. 2 of the City of Pearland, Texas ("TIRZ") and the TIRZ has authorized the City to construct such Improvements, to be reimbursed in the future from the TIRZ increment; and WHEREAS, Developer plans . to construct the Improvements and to dedicate said Improvements to the City for operation and maintenance; and WHEREAS, City, pursuant to Resolution No. R2008-11, desires to cooperate with Developer to provide the Improvements to increase traffic mobility in the City; and WHEREAS, City and Developer desire an agreement to set forth their respective responsibilities with regard to providing the Improvements. WITNESSETH: NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows: Developer shall hire engineers to design the Improvements and manage the construction of the Improvements, including the hiring of a contractor, described in Exhibit "A" attached hereto. Developer agrees that the City will not be charged a fee for management services provided by Developer. In consideration for the design and construction of the Improvements, City agrees to add Developer as an "additional insured" on City's liability insurance policy. 2. Design of the Improvements shall be complete within ninety (90) days of the effective date of this Agreement. Upon the approval of the plans and specifications by the City, Developer's engineers will obtain competitive line item bids in accordance with Local Government Code Chapter 252 for the construction of the Improvements in accordance with the plans and specifications and the award of the contract for construction of the Improvements shall made. Developer and the City will review the bids and Developer will award a contract to the successful bidder within thirty (30) days following approval of the plans and specifications of the Improvements by the City. City reserves the right to reject any and all bids for the construction of the City Improvements within ten (10) days following submission to the City for review, following the expiration of which the bids selected by Developer shall be deemed approved by the City. 3. Following award of the bid by Developer, Developer shall cause construction of the Improvements to commence on or before a date mutually agreed upon at the time of the bid award, and shall the Improvements to be completed in accordance with the plans and specifications within a reasonable period of time. If Developer shall fail to cause construction to commence by the agreed upon date, and following thirty (30) days' written notice to Developer, the City shall have the right to terminate this Agreement. Developer's engineer shall monitor the progress and workmanship of the contractor. Developer shall cause the City to be named as an additional obligee under any performance bond obtained by Developer to secure the construction of the Improvements. 4. Developer shall finrice monthly, on dates agreed upon by the City and Developer, submit, to the City, invoices submitted to the Developer by the engineers and contractors selected to design and construct the Improvements. All invoices submitted to the City pursuant this Agreement shall be paid promptly. Developer shall, prior to submitting any invoice covered by this Agreement, review and approve the invoice for payment. 5. The Improvements shall be inspected, accepted, maintained and warranted by the parties, as applicable, in accordance with Sections 3.1.8.5 and 3.1.8.6 of the City's Unified Development Code [the "UDC"]. 6. The initial term of this Agreement shall be for a period of eighteen (18) months, commencing on the �� day of ,]anuary , 2008, and terminating on the zL day of ,�„� �, , 2008, provided, however, that this Agreement shall be automatically renewed in one (1) month increments until all of the obligations of the parties hereunder have been fully discharged or specifically waived in writing by the beneficiary thereof. 7. This Agreement may only be amended, modified, or supplemented by written agreement and signed by both parties. 9. No assignment by a party hereto of any rights under or interests in this agreement will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. 10. Nothing herein is intended to supersede or waive any City ordinance or regulation pertaining to such construction. 2 11. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is prohibitive or invalid under applicable law, such provision shall be ineffective to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 12. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas. 13. To accomplish execution of this Agreement, it may be executed in multiple counterparts. 14. The Parties agree that any suit arising out of or related to this Agreement shall be filed in Brazoria County Texas. 15. All notices which are required or may be given pursuant to this Agreement shall be in writing and shall be sufficient if delivered personally or by first class mail, postage prepaid, return receipt requested, or by a nationally recognized courier, to the parties and their attorneys at the addresses set out below or such other addresses as the parties or their attorneys may hereafter notify one another: If to City: City of Pearland Attn: Bill Eisen 3519 Liberty Drive Pearland, TX 77581 If to Developer: Notice delivered in accordance with the terms hereof shall be effective upon receipt. In witness whereof, the parties have hereunto set their hands and signatures on the date first above mentioned. Shadow Ranch De I p n C pany By: � Name: ��"�I � C�O� �ts: 1��1�� CITY OF PEARLAND, a Texas municipal corporation ATTEST: Y�6�a ng G`i4v Se rY . � %\ . BY� O1/21/08 Bill Eisen, City Manager 4 Exhibit Resolution No. R2008-11 REINVESTMENT ZONE NO. TWO, CITY OF PEARLAND, TEXAS (SHADOW CREEK RANCH) January 15, 2008 The Honorable Tom Reid City of Pearland 3519 Liberty Drive Pearland, Texas 77581 Re: Financing for TIRZ Improvements: Broadway Improvements from Kirby Drive to Kingsley Drive; TIRZ Project No. 08-01-001 Dear Mayor Reid: The City of Pearland, Texas (the "City") and Reinvestment Zone No. Two, City of Pearland, Texas (the "Zone") have determined to proceed with the following TIRZ Improvements, as contemplated by the Third Amendment to Project Plan and Reinvestment Zone Financing Plan: Broadway Improvements from Kirby Drive to Kingsley Drive; TIRZ Project No. 08-01-001 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 City has agreed to pre-finance the design and construction of the TIRZ Improvements to be reimbursed as a sub-developer of the Zone. Pursuant to an agreement between the City and Shadow Creek Ranch Development Company L.P. ("SCR"), a copy of which is attached, SCR will enter into the construction contract, with funding to be provided by the City. The Zone hereby gives its approval of the above described TIRZ Improvements. All procedures set forth in the document entitled "TIRZ Project Implementation and Reimbursement Process" must be followed. The Zone's Engineer has determined that the budget (using 2006 dollars) established in the Zone's Third Amendment to Project Plan and Reinvestment Zone Financing Plan for the above described TIRZ Improvements is $8,000,000 plus "developer interest" calculated at 6.5% for a maximum of five years from the date of completion. The Zone is not obligated to reimburse the City for any amount in excess of that budgeted amount plus "developer interest." »�9os This agreement was duly authorized at a meeting of the Board of Directors of the Zone held on the 15th day of January, 2008. ATTEST: Very truly yours, REINVESTMENT ZONE NO. 2, CITY OF PEARLAND, TEXAS (SHADOW CREEK RANCH) B �'l/ � � Y• � �c,�Chair n, Board of Directors B � Secretary, oard of Directors 171908 �� ND APPgpVg� this �� P � S SE� A day of _.��'� ND XAS CI oF PEA , T om geid � ��$ SCALE 1"=2000FEET DRAINAGE O � � DRV DETENTION AREA _........._., � O CHANNEL IMPROVEMENTS SCALE �. 1" = 2000 FE ET =NT SECTIONS (10" CONC.) _ 80' ROW WITH 2- 25' PAVEMENT SECTIONS _ 160' ROW - FUTURE WIDENING OF EXISTING MCHARD ROAD _ 100' ROW WITH 2- 25' PAVEMENT SECTIONS (7" CONC.) _ 100' ROW WITH 4- 12' LANES AND A 14' CONTINUOUS TURN LANE _ 100' fiOW WITH 2- 25' PAVEMENT SECTIONS (8" CONC.) SGALE�. t'=2000FEET WATER AND SANITARY SEWER �NITAPV SEWER 4TER LINE EXIS. INTERIM SEWAGE TREATMENTPLANT FUTURE LIFT STATION -,-,„_ Allireilv E,,,, lb G1B • L CENT��' GRID 46 c 11:® is ,i 0,, , _ I.-r-. i M:6._.h.• (4p 1� 1 /cS,F.b3:2:8-.1..:11.r',t:, \'\1ii 14t." SF-0B D 1iirt z1 o14i...p.,....;7 y17,. 7.-..,\7 i1l1 ,gym SF51 44; (ffjq4I! 6 SFJB(i' SFSO SF40 CH3 SF.]8 ` ) SASS SF5 6 (� SF<1 - r"� EG L SFdB L MFi SFd] pFr. SFJ4 f '� il ,C I SF23 GIr _.._. SFd DS � 0463 �'� SF-05®L 11� ® INI Ogg BENEFITTED AREAS REINVESTMENT ZONE NO.2, CITY OF PEARLAND,TEXAS .0131r SHADOW CREEK RANCH tilil�� BROADWAY IMPROVEMENTS FROM KIRBY DRIVE TO KINGSLEY DRIVE IF-5 PROJECT NO.08-01-001 1 LJA EngMwring&Surwying,Inc. LA li EXHIBIT NO I JOB NO. I SATE. � � DEVELOP�'iENT AGREEMENT THIS DEVELOP�NT AGREE�iENT (this "Agreement") is made and entered into as of .S CP�GM�Q ��,, 1999, by and bet��een the CITY O�' PEARLAND, T�XAS, a home rule municipality located in the counties o£ Brazoria, Harris, and Fort $end, Texas (the "City"), and SHADO�V CREEK RANCH DEVELOPI�IENT COi��iPANY, L.P., a Nevada limited parcnership (the "Developer"), or its assigns, represented herein by its undersigned duiy authorized �ccierat partner. CI�"ALS A. Capitalized terms used in these recitals aze defzned in Article I below. The City has the authority to adopt iax increment financing pursuant to the Act, for areas within its jurisdiction designated by the City as reinvestment zones, and to implement incentive programs to encourage economic clCVelopmcnt pursuant to TEX. CON5T., article III, secti�n 52-a, T�EX. I.00AL CirOV'T CODE, ch. 3$0, and other economic development statutes. t3. The Ciry has annexrcl tt►e Property. Pi.usuant to the request nf certain owners of property within the annexed land, and in accordance with the Act� the City has designated, the Property as the "Tax Increment Financing Reinvestment Zone Number Two, City of Pearland, TexaS." The land within the Reinvestment Zone is undevelup�d or undcrdeveloped, and thez the Reinvestment Zone is intended and needed to provide the financing and manaaement taols to faciliEate the development of the Praject; therefore, it is understood that absent such tools, the Project would not occur solely through private investment in the foreseeable future, a��d would not consist of a master-planned community as contemplated by the parties, thereby denying the benefits to the City and the Project as provided herein. C. The City authorized the preparation of a project plan and a reinvestment zone financing plan concerning the R-einvestment Zone. D. In aecordance with above authorizatian and the Act, the Boazd of Directors of the Reinvest�nent Zone was appointed and or�anized in accardanee with law and the ordinance creating the Zone, and such Board, in conjunction �vith its consultants and the Developer, has grepared a Project Plan and a Financing Plan , which Plans were submitted to the City. The City, in accordance with the Act and after making aIl fu�dings requircd by the Act, has adopted an ordinance approving the Plans. E. The Developer is the holder of the right tu acquire and develop the Property from the owner. The City and the Developer intend that other Iand may be annexed to the Reinvestment Zone with the agreement af the parties and in compliance with the Act. ::oaw��so�rsoW, t,vFxouo�2ioso . • F. The Developer, in eooperation tivith and at the direction of the City, drafred the PUD and the PUD has heen recommended by the planning and Zoning Commission for approva4 by the City; consistent therewith, the Developer currently intends to develop and imgrove all or a portion of the Froperty as a master-planned, mixed-use community in various phases, with single famiiy and �uultifamily residential dwelling units, commercia! develapment, industrial development, institutianal development, publicicommunity devetopmeats, and other uses permitted in conformance with the City-apgroved PUD. , G. To facilitate the development of the Property, and subject to and in accordance �vith the terms of this Agreement and the limitations hereinafter stated, the City has agreed either through its City Cottncil or by delegation to lt�� Board afDirectors of the Reinvestment Zone to (i) undertake to consiruct, or cause to be constructed, various public improvements consisting of the TiRZ Improvements and the City Improvements, and to incur Project Costs in connection with the TIRZ Improvements and pay for such Projeet Costs usin� tl�c procceds of TIRZ Bonds in accordance with this Agreement, and (ii} use the praceeds of the TIRZ Bonds to pay the costs of those eligible Project Costs that either or both of the l�eveloper and the City incurs in connection with the acquisition, redevelopment (including, withQUt limitation, site preparation, installation of utilities, constn�ction of publzc irripravements, whether on site or off site), financing and use of the Property. H. The parties expect to create a public improvement distnict to pruvide, for the benefit of the Property, certain additional "public improvements" as definetl in T�X. LoCAt, Gov'z Co�E, ch. 372, and the parties expect to cooperate in the creation and operation thereof. I. This Agreement has been submitted to the City for consideration and review, and the Ciry ha.s �akcn aIl actions required to be taken prior to the execution of this Agreement to make the same binding upan the City accarding to the terms hereof. J. The City aftet due and carefui consideration has conctuded that the development of the �'roperty in the Reinvestment Zone as provzded for herein �vill further the grawth of the City, facilitate the development of the entire Reinvestment Zone, imprave the en�ironment of the City, increase the assessed valuation of the rea] cstatc situaced wict►in the City, foster increased economic activity within the City, incxease employment opportunities within the City, upgrade public infrastructure within the Reinvestment Zone, and otherwise be in the best interests of the City by furthering the health, safety, morals and weifaze of its residents and taxpayers, and that entering into this Agreement is necessary and canvenient ta imptement the Plans and achieve their purposes. I�. The City desires to have the Developer undertake the Prvject to serve the needs of the City, to praduce increased tax revenues for the various taxing units authorized ta levy taxes on real property within the Reinvestrnent Zone, to siimulate and induce the develogment of the Reinvesiment Zone, and to ftnance the Project Casts, using property tax ir.icrement rcvcnucs ar�d the pxoceeds of the TIRZ Bonds, aIl in accordance with the terms and provisions and this Agreement. ::oo�u�ot cso�v � nvEttauoswzio�+n -2- � ! NOW, THEREF�RE, in consideration of the foregoing and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficient of which are hereby ackr�owledged, the parties hereby agree as folluws: ARTICLE I. DEFINITI_�S_IItiTCORPORATION OF RECITALS 1.1 Definition�. Capitalized terms used herein, including the recitals hereto, shall have ihe meanings set forth in this section, unless otherwise defined, ar unless the context clearly requires another definition. 1999 Dollars means aggregate payments that equate to a net present vaiue on the date of this Agreeci�,e�it, adjusted in aacordance �vith ihe Engineering News Rec�rd regional conSttuCt[on index applicable to the City, or in the event such publication na longer maintains such index, a similar index mutualty agreeable ta the parties. Act means the Tax Increment Financing Act, TEx. Tax CadE, ch. 311, as amended. Admintstrative Fee means the City's fee for providinb c�rtain scrviccs to ihe Reinvestment Zone in the amounts described in Section 5.3, below. ► Bond Proceeds means atI net proceeds, after deducting all issuance cos�s a►�d any amounts for capitalized interest and reserves, received by the City in connection with the issuance and sale �f TIRZ Bonds. Ciry means the City of Fearland, Texas, a home rule munieipality located in the counties of Brazoria, Harris, and Fort Bend, 'F'exa5. Ciry Facilities means the TIRZ Improvements to be constructed directly by the City as a Projcct Cost, bcing police and fire stations, a Cit�r Hall annex and a City library building up to the maximum funding described on Exhibit B. Ciry Improvernents xiieans various public impzovements ta be constn►cted and flnanced by ihe City using funds other than the Tax Increment or the proceeds of TIRZ Bonds supported thereby, as more fi�lly set forth in �ection 4.4(b) below. City Increment means the City's "ta�c inerement," as such term is defined in §31 i.012(a) of the Act, within the Reinvestment Zone. Developer means Shadow Creek Ranch Development Company, L.P., a Nevada limited partnership. ::ODMA�SOFTSOL1311tV�HOVO4�9210sb "3' � �� EDA Grant means the grant a�varded to the City from the U.S. Economic Development Agency on September 4, I998. Edircatfonat Facilities shatt have the same meaning as understood for such tercn under the Act. Financing Plan means the financing plan approved by the Board of Directors of the ReinvestmCj�t Zone, and npproved by the City CounciI by �rdinance No. 918 on August 23, 1999. Firnd means the Tax Increment Fund created by the City pursuant to the Act, this Agreement and the ordinances advpted by the City reiating to the Reinvestment Zone. gpd means gallons per day of capacity, average daily flo�v. Improvement Fund means the special sub-account of the Fund, ihe operation of which is described in Section 5.1{g)(ii), beiow. Improvements means the TIRZ Improvennents and the City Improvements, collectively. Letter of�cceptance means a certificate of the City certifying thC con�plction of u discrete portion of the Project or the TIRZ Improvements canstructed by of under the supervision of the Devetoper or a Subdeveloper in accardance with the applicable ptans and regulations. Master Improvements means first $20,000,000 of TIRZ Improvements constructed by the Developer. PID means a public improvement district created and operating pursuant to TEx LOCAL GOV'T CoaE, ch. 372 (Vemon Supp. 1999). Plan.s means the Project Plan and the Financing Plan, which may be combined in one document. Project means the real estate development planned for the Property, as more fully described in Paragraph F of the recitals hereto. • Project Plan means the project plan approved by the Board of Directors of #he Reinvestment Zone, and approved by the City Council by Ordinance No. 918, an August 23,1999. Proj¢ct Costs means and includes aIl costs defined as "projeet costs" in § 311.002(1} of the Act as now or hereafter provided, incuned in connection with the `! IRZ Improvec��cnts. ::oati+w�sorisow i z�veHO�o�sxioeu -4- • a Property means the approximately 3,467-acre tract legally described in Exhibit A attached hercto and made a part hereof . PUI? means the Flanned Unit Devetopment for the Property adopted pursuant to the City of Yearland Land Usc and Urban Deveiopment OrdinanCe. Reinvestment Zone means the Tax Increment Financing Reinvestment Zone Number Two, City v€Pearland Texas, created by thc City to include the Property. Subdevetoper means a develoger within the Reinvestment Zone �vho is developing a portion of the Reinvestment Zone other than the Devcloper. Subdeveloper Improvements means TIRZ Improvements constructed by a Subdevetopec. Tcr.c Increment means the amount of tax revenue collected as determined pursuant to § 3I1.0]2. of the Act and deposited in the Fund in accordance with ihis Agreement and the participation agreement �vith any participating taxing unit. TIR2 Bor,ds means a debt instrument or other instruments to finance TIRZ Improvements to be issued and sold b� the City in accardance with the Act (and in aceordance wnth 8 sehedute of issuance agreed to by the Parties} in the aggre�ate principal amount t�ecessary to produce net Bond Proceed� af up to $114,000,000 (in 1999 Dollars) and, if issued pursuant to the Act, having a term not to exceed the maximum term pei by §31 I.O15(1) of the Act. '1'IRZ lmprovements mcans the various imprnvements to be financed from the Ta.x Increment or TIRZ Bonds supported ihereby, as more fully set forth in Section 4.4, below, and �;shibit B. Party or parties tneans al! or any of the City, the Developer, and, 'with respect to Article V, any Subdevelopers, as applicable. 1.2 Recitals incoroorated. The represer�tations, eovenants and recitaiions set forth in the recitals to this Agreement aze materiat to this Agreement and are hereby found and agreed to be true and correct, and are incorporated into and made a part hereof as though they were fully set forth in this article. ' •!� • � � A�ti4ns of the n�r�ies• c�m.p]iance wi�, t e Flans. The parties agree to take �uch actians, including the execution and delivery of such documents, instruments, petitions and certificatians (and, in the City's case, tl�c adopLion of such ordinances and re5olutions), as may be necessary or :;OdS4w�SOft30LU1llVEHOU0�92105�0 �`� � . appropriate, from time to time, to ca.rry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. Further, the City a?rees (absent any uncured breach of the terms of this Agrecment by the Developer resulting in a default pursuant to Section 9.2 hereofl that it �vill noi revoke or amend ordinances that are or �r•iIl be adQpted by the Cicy relating to the Reinvestment Zone, the PID, the PUD, and this Agreement except as is consistertt and in compliance with the Plans. The Parties shall cooperatc fully v��ith each other in seekinb from any or all appropriate governmental bodies (whether federal, state, county or local) financial or other aid and assistance required or useful for the construction or improvement of property and facilities in and vn the Froperty or for the provision of servicCS to the Property, inctuding, �vithout limitation, grants and assistance for public transportation, roads and hish�vays, watcr and sanitary seu� facilities and sform «'ater disposal facilities. V �1.RTICLE III. �FF�CT�,UENESS OF AGRE��NT This Agreement shall liecome effective from and after its approvaI and execution by both parties. p�RTICLE �V. DEVELOPMENT AND USE OF THE PR4PERTY AND �ONST�.,IC:TION OF IMPROV�ME�1T5 4. l $�vestment Zone Boardydelegation of potivers. The City hereby acknowledges the authority of the Board of Directors of the Reinvestment Zone pursuant tv the Act to enter int� such agreements as the Reinvestment Zone $oard considers necessary or canvenient to implement this Agreement and ti�►e Plans and to achieve its purposes_ The City hereby detegates ta the Reinvestment Zone Boazd all powers relating to the implementation of the Plan, including without limitation the power to (i) select and retain consultants, including without limitation, attomeys, engineers, and adminiscrdtors, and contracting �vith the City to assist in the implemeniation of the PIans; and (ii) approve plans and specificatians, awazd contracts, and approve change orders and paymr��ts in accordance with this Agreement; provided that nothing in this section or this Agreement shall be construed to delegate tv thc Reinvestment Zone Board the power to levy taxes. 4.2 T_e Prqject. AII property within the Reinvestment Zone shall be developed in accordance with the PUU's standards a�►d conditions. The Developer shall canstruct the Project in conformance with ihe approved PUD. Due to the size and compiexity of the Project, the parties acknowledge that the Project wilt be constructed in phases. The City agrees that it will ensure that the terms af the PUD wili appty unifotmiy to all applicabie land within the Reinvestment Zone, including any land subsequently added by annexation to the Reinvestment Zone, and that any char,ges, additions or alterations to the PLTD will be done only as may be consistent and in ::ODAGtVSOFTSOLV t ttYEHOti09192105A "� � � compliance tivith the Plans, and following notice to the Developer so long as the Developer is the manager or developer of at least ten percent of the acreage �vithin the Reinvestment Zone. T`he Ciry and the Developer agree that no building permits shali be requested or issucd for a particuiar multi- family site included in the PUD until the TIRZ Improvements to serve such site are constructed. In order to determine which TIRZ Improvements are necessary to sen�e the multi-family sites included on the PUD, the City and the Developer shall refer to the map attached as E�ibit C, which map identifies the TIRZ improvements that must be constructed. 4.3 tilities an,�„ ees. The City shatl only tevy �r assess any speciai taxes, fees, exaction�, impositions, or assessments of any forrn against the Property, not heretofare levied and assessed, if they are appIicable to atl othcr properties in the City equatly and uniforntly atzd in the same tnartner, ar are consistent with the terms of the Plans; provided that, this section shall not affect such amounts (i) levied or assessed by or i.hrough a t'ID, or a municipal utility district, created in the Reinvestment Zone at the request of the Developer ar its assignee (ii) that are paid nn behalf of the property within the Reinvestmeni 2ane from funds received by the City frorn the Administrative Fee, or (iii) assessed by the Ciry as an impact fee to finance water and sewer capacity of genera] application throughout the City in an amount initially of $ I,997.00 per sii�glc family residential equivalent (as of the date of this Agreement), and subject to revision in accordartce with applicable la�v from time ta time. 4.4 Constructiqn of Improv�gments. (a) The Improvements pravided for in this Agreement consist af the TIRZ Improvements and the City Improvements. Exhibit B, as supplemented in Subsectian (b), Ucla�v, designates the TIRZ Improvements (bath Master Improvements and Subdevetoper Itnprovements) and the City Improvcments. The City's ohligation io construct or cause to be consiructed the Improvements in accordance with ttus seciion shall become effective and enforceable upon execution. 'I��e City and the Developer shall coopexate and caordinate their activities with respect to the commencemen# and construction of thc Innprovements and the Pmject so ihat the commeneement and constntetion of the Improvements shall occur at such times as are necessary to meet the construction time requirements of the Plans. The parties agree tn joint[y prepaze (and update, from time to time, as necessary) a construction schedule of the Improvemcnts in order to help implement the parties' obligations pursuant to this section. The City further agrees to supply ihe Developer with copies of all contracts to be entered into by the City with respect ta the Improvements, as wetl as atl change orders and requests therefar pursuant to such contracts prior to their approval by the City, atl for the Developer's review and comment. - (b) Without iimitation of the generality af the f�cegoing, as City Impravements, the City will: (i) construct and operate a 20-inch �vater line of suffi�ient capacity and delivered at sufficient pressure to serve all of the Property, extending from existing City of Hotaston water supply facilities into the Reinvestment Zone, aiong McHard ::ODMA�SOFTSRLV I t\V EHOU09\92106W � j � i � Road and Clear Creek to the East side of FM 52I, to be completed on or before August I, 2000; (ii) construci and operate a I 6-inch water line af sufficient capacity and delivered at s��fficient pressure to serve all of the Property, from existing City �vater supply facilities into the Reinvesiment Zone, exiending West across Highway 288, folio�ving County Raad 92 to the intersectzon of futtzre Kirby Drive, to be compieted on or before December l 1999 � (iii) construct and operate an-site water storage facilities and pressure punnps io provide sufficicnt capacity and delivered at sufficient pressure to serve all of the Property; {iv) construct and operate all saia'rtary scwer trunklines 12 inches in dlameter or greater within the Reinvestment Zone, up to a total cost af $4.3 million (including design and permits), with design and construction to commence upon approval of'the Plans by the City; providcd that, if any of such $4.3 million remains foilowing the construction of all such trunklines, the remainder will be used to construct additional sanitary sewer trunklines within the Reinvestment Zane, as such lines will Uc designated by the Developer provided such additional expens�s aze approved by the Texas Water Devetopment Board; (v) assume iease paymenis on the temporary setivage treatment piant construcied by or on behaif nf the Reinvestment Zone as a TIRZ Tmprovement once there are any residential connections connected thereto; provided that, the City's lease payment obligatian is limited to the extent of any revenues generated by connections to the plant; (vi) canstract and opezate the initial phase of a permaneni sewage treatment piant wiih a minimuitz capacity af approximately ?_ millian gpd the plant to become operational by the time the temporary plant described in Item (v) above reaches 90 percent capacity; (vii) construct and operate all additional phases to the permanent sewage treatment plant sufficient to serve the angoing and ultimate needs of the Reinvestment Zone, eacit phase thereaf to become operati�i�al when the then existing permanent piant reaches 90 percent capaeity; (viii) provide fire, police and ottier City services generally provided tluonghout the City in the same manner within the Reinvestment Zone as so provided, as development in the Reinvestment Zone warranEs; ::ooti�..uoFrsow, nv�xouos�z,obw -8- � i (ix} design, finance, construct a regional park to serve the Reinvestment Zone, as may be determined in the discretion of the City Council. (c) Fundin� sources. The City Improveme�►ts described in Snbsection (b), above, shatl bc funded as providecl in this subsection. items (i), (ii} and (iii) will be paid from water and sewer impact fee revenues, the proceeds of revenue bonds issued by the City secured by such impact fccs, and grant funds; item (iv) «�ill be paid from current funds avaiIable from the proceeds of a Statz revolvin� fu��d loart; Item (v) wilt be paid fr�m water and sewer system revenues generated frorn the Praperty; Items (vi) and (vii) will be paid from water and setiver impact fee (or other fonm of equivalent capital recovery, connection or contract charges that the City and Developer may agree) revenues, and the proceecls uf rcvcnuc bonds issued by the City secured by such impact fees; and Itetn (viii) and {ix) will be paid from lawfully available funds that may be currentty available in the budget year in which such services or improvements are designated to be carriec3 out. The City a�rees to use its best efforts to coitect such reve��ues, issuc such bonds, and apprapriate such funds as may be required to finance the City Improvements. {d) (i) To the extent that any of the TIRZ Impr�vcments to be constnicted under the rr►anagement of the Developer are to be located in City owned rights-of-way, the City shall: (1} grant to the i?evetoper and its designees aecess thereto to enabte the constructian of such TIRZ Improvements, or (2) acquire the right-of-tvay necessary under the grovi�ions af Stnte la�v, utilizin�, �vhen necessary, the City's potirer of eminent domain. ' (ii) AII plans and specifications for the TIRZ Impravements shatl bc submitted to the City for xeview and approvai priar to tne commencement of construetion. (iii} The City and the Developer agree and acknowledge that the Developer n�ay seek and receive payment and reimbursement in accordance with this Agreement for atl Project CostS the Developer i��curs, out of Bond Proceeds and Tau Increment and otl2er funds available under this Agreement. Notwithstanding anything to the contrary contained in this Agreement. The City's obligation to issue TIRZ Bonds shall not exceed $1 I4,000,000 (in 1999 Dollars}, plus the cost of issuance, developer interest, capitalizcd intcrest and necessary reserve funds in connection with such TIRZ Bonds. Ta the extent the Tax Increment generated from the Reznvestment Zone is insufficient to pay debt service on the TIRZ Bonds described in the preceding sentence, ihe TIRZ Bonds may be reduced or issued in phases. {iv) The City shall temunate the Reinvestrnent Zone, as provided in §311.017(aj of the Act, on the earliest possibie date after which all Project Costs with respect to the TIRZ Improvements, as well as aIl TIRZ Bonds and interesE therean, have been paid in full. (v} The City sha.11 establish administrative procedures to recovcr from conneetion fees it imposes on new connections to the City water and wastewater system, a prorated surcharge far eac�i connection in the service area that is served by the water and sewer TIRZ improvements ::oonu�toFrso�vtavEUOVannio�o -9- � � along County Road 48, Kirb}� Drive and McHard Road, which surcharge shal! include, at a mirvmwn, the cost of the iine ancl iniiial plani capacity includirrg the interest or financing cdsts. The City a?rees to deposit ait of such surcharges tv the credit of the Tax Inczement Fund. 4.5 j�evcloycr's riqhts in the event nf the itv'S_def2ult: cottiractor bonds. (a) In the event the City faiis ta complete the TIR2 Improvements or defaults under this Agreement, then the Developer, i�i addition to its ri�hts under Section 9.2 of this Agreement, may comgel the City to fund from TIRZ funds and complete the Impravements by mandamus, specific perfarmance or mandatory permanent injunction. (b) In the event the City fails to complete the City Impravements or defaults under this Agreement, then the Developer, in addition to its rights under Section 9.2 of this Agreement, may compel the City to fund and complete the Ciiy Improvemc�its by mandamus, specife performance or mandatory permanent injunction. {c} Without limitation, the City further covenants to require a��d enforce paymenc anci performance bonds of contractors constructing the Impravements. ' . �' - •�- �• �. • (a) Thc Dcveloper's and 5ubdevelaper's contr�butions, in addition to the other obligations described in this Agreement, include the follo�ving: (i) peci�ion for the creacion of che Reinvestment Zone and the PID (ii) impiemeni the Plans and the PUD, provided that the Developer shall not be required to provide additiv��al stormwater drainage capacity to benefit praper[y autside the TIRZ unless Brazoria County Drainage District No. 4 execules a binding a�reement ��ith the Ciry to contribute at least 50% of its tax increment to the Reinvestment Zone for the term of the Zone no later than Uecember 3I, 1999; {iii} use its best efforts to construct ihe water line cannection between the proposed waier plant at FM521 and the prvposed water line at CR92/Kirby Drive by December 31, 2400. The City agrees to use its hest efforts to obtain an extensian of the EDA grant deadline and, if successfui, the Developer �vilE use iis best effotts to comptete the line within the extended time period; {iv) adopt deed restrictions and other restrictive covenants, and promulgate the DeveEoper's guidelines regarding devetopment standards, consistent with tlic PUD and relevant City regulation; •.:ODM1fA'SOFfSOL�31I1VEHOlSO4�9210FiA r � v � � (v) require Subdevelopers to abide by the DeveIoper's development standards, and provide faz enforcement mechanisms for restrictive covenants; (vi) assemble the Property for ownership and development (es#imated cost $30,000,O�O.QO); (vii) oversee and construct neighborhood improvements and ameruties, such as �vater, sanitary sewer and drainage facilities and payment nf impact fees (estimated cost 376,215,UU0); (viii) cause the maintenance of lakes and channels, parks and recreation facilities, rights of v��ay, landscaping, monumentation, greenbelts and the hike/bike system to be funded tluough a PTD assessment or homeowner's association assessment; (ix} advertise and market the Project (estimated cost over ten yeazs $10,000 (x) pay groperty taxes (estimated cost aver 15 years $20,00O,OOQ.00); (xi) maintain the Property (estimated cost over 1 S years $3,500,000.00}; (xii) gay legal and other pr�fessional expenses (astimated cost over 1 S years $2,000,000.00); (�tiii) pay laztd planning, architeciural, engineering, surveying, and design expenses (estimated cost over 15 years 53,000,000.00}; (xiv) cause to be constructed TIRZ Improvements up to $109,OQ0,000, as outlined in the Plans, subject to reimbursement as provided in this Agreement. (b) The above items describe the efforts and contributians of the Developer, both prior to and during the term of this Agreement, to the Project. A.mounts described are estimates only, and certain items, such as (vii), (viii), and (xii) are intended to be partially or totalty reimbursed to either the Developer or a Subdeveloger pursuant to this Agreement or through the PID. 4.7 Aru�exation of additional prage�i y. The parties agree and recognize that from tizne to time the City may receive requests for the addition of property adjacent to the Reinvestment Zone to be annexed into the Reinvestment Zone. The City agrees that property wiil not be annexed inta the Reinvestment Zone except as is consistent with the Plans. ;:ODMA�SOFiSOLU t 11VEHOU09�92I06W ' 1 1 � � � ARTICLE V. PAYMENT AND REIMBURSEMENT OF �I�I TB E PRO,�ECT COSTS 5.1 TIR� BQnds: reimbursemcnts. {a) The parties acknowledge that the development of the Property in the Reinvestment Zone �s proti•idcd in thc P�uject Plan and this Agreement can only oceur with the use of Bond �'roceeds, whieh Bond Proceeds, together with Tax Increment and other funds available under this Agreement, shali be used to reimburse the Developer or Subdeveloper for eligible Project Costs. TIRZ Bunds shall be issued in one or more installments to pay the Project Costs of the TIRZ Tmprovements, inciuding both the Master Improvements, and the Subdeveloper Irraprovetnents. {b) The '1'IRZ Bonds and payment of other eligible Project Costs shalt be secured by the Tax Increment and interest eamed on investment of monies within the Fund. The City ptedges that it wiil deposit the entirety of such funds inta the Fund. The amounts deposited in the �and shall be disbursed in accordance with this Agreement, the TIRZ Bonds and any trust indenture entered into, or band autharization dacuments adopted, in connection with the TIRZ Bonds {which trust indenture or bond ordinance shall not conflict with the �rnvisi.ons of this Agr�ement). The City covenants nnd agrees to deposit alt 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 �ayments nf principal and interest on TIRZ Bonds as and when duc, (�33) to pay eligible expenses of the Reinvestment Zone, including creation costs and operati,n�g expenses, (C) to pay Project Costs, and (D) to reimburse the Developer or a Subdeveloper amounts equal to eligibte Project Costs, pius interest, incurred by thc Develuper ur a Subdeveloper in accordance with this Agreement. Notwithstanding the above, to pay for services rendered by the City in the Reinvestxnent Zone, inctuding imputed administrative costs, including reasonable charges for the time spent by employees of thc City in connection rvith the implementation of the Plans, the City may withdraw the Adzninistrative Fee described in Section 5.3, below from the Tax Increment on or about September i of each year, commencing in 2002. . (c) The City agrees to use its best efforts to issue the TIRZ Bonds to fund reimbursements as provided herein in aecordance with the Developer's timing needs to develop the Project. In addition, the City will provide the Developer with copies af any praposed bond ordi,nance or indenture in connection with the TIRZ Bonds, and to allow the 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 Tncrement or any other monies in the Fund to any othcr purpose or paymcnt of any abligation of the City except far the'I�RZ Bonds and obligations arising under this Agreement; {ii) it will not commingle the Tax Increment with any other funds of the City; (iii) it will not take any ::OOf.tA�SOkT504V 111YEHOUOl�f2198W - � �- � � ! action or omit to take any action that wili 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 a}1 actions and submit aIl docucnents in a timely manner to receive all Tax Incrernent; (v) it w711 institute and pursue to a final order or judgment any bond vaiidation action or suit upon reasonable request by the Developer; (vi) it �ill not refund the TIRZ Bonds in any manner inconsistent �vith the Plans; and (vii) it wiIl direct the inveslinent of thc Tax Increment in accordance with Texas la�v applicable to investment of funds by municipalities. (e) The parties and any assignees of the parties will take all actians necessary to Cnsure that the interest payable on the TIRZ Bonds is and remains exempt from taxation under the Internat Revenue Code of 1986, as amended, and regulations promulgated thereunder. (� Notwithstanding the provisions af this section relating to the issuance of TITtZ Bonds to finance TIRZ Improvements, including Developer and Subdeveloper reimbursements, such payments may be made directly from the accrued Tax Increment if the parties agree that such funds are available therefrom for such pwrpose. (g) onstruc�ion of TIR2 Improvements:.�ei�pburseme�.._.►t. (i) Ttic TIRZ Impravemcnts are described in Exhibit B, ancl shall not be changed except as may be consistent with the Plans and this Agreement. Except for City Facilities and Educational Facilities described in (h) below, the TIRZ Impravements will be advance by the Developec or a Subclev�loper, subjcct to reimbursement £rom Bond Proceeds or available Tax Increment, as provided in this subsection. The Developer or a Subdeve�aper shall submit to the Reinvestment Zone Boazd a description of the TIRZ Impraveznents to be construeted far review and appzoval with regarcl ta compliancc with the requirements of this Agreemeni and the Plans. (ii) The total amounts owing or to become otiving for funds advanced from time io time under tt�is subsection shall bear simple interest commencing at the time the funds are advanced to pay far the applicable TIRZ Improvements, or advances spent for the creation, organization and admirustration expenses of the TIRZ, continning until paid, for a maximum period of five years fram the completion of the applicabie TTRZ Improvements or of the creation or administration advance_ (iii) Rei�nburser��nts. (A) Tim��,g. The Reinvestment Zone shall reim6urse the Devetoper or a Subdeveloper as soon as practicable once (1) the applicabie TIRZ Improvements have been compleEed and the Lcttcr of Acccptancc received with respect thereto, and (2) the City has issued TIRZ Bonds (unless the reimbursement is to be made from ::ooti�a�soFrso�v i ��veHavoms� iosw - � 3- � � and reIated matters; (2) compliance with all competitive bidding and other laws reIating to the solicitation and award ofpubtic works contracts, as such are applicable io similar City public improvement contracts; and (3) a determinatio�i af the Reinaestment Zone's financial advisor that the {y} TJRZ Bonds required for such reimbursement are reasonably mazketable, and (z) issuance thereof will not have a materially detrimenial effect on the viabiiity of any autstanding '1 iRZ Bonds. (iv} Reiznbursement to the DeveIoper or a Subdeveloper for real property required for TIRZ Improvements shall be made in an amount equal to the lesser of either (1) the Developer or Subdeveloper's actual cost plus simple interest (calculated as applicable to the recipient) ��ntil �raid, or (2) the appraised value of the real property at the time of the reimbursement; provided that, the payment for land required for Educational Facilities shall be paid based on the fair market vaIue of residential progerty. (h) Citv Facilities. The City Facilities will be financed w7th the proceeds of TTRZ Bonds or Increment on a schedule consistent with the development of the Zone, and as sufficient Tax Incremenl i� cirated within thc Zonc, taking into consideration the requirements af a11 then-outstanding TTRZ Bonds and any then-outstanding reimbursement obligations; provided that the Ciry may finance City Facilities using other available funds, to be reimbursed from TIRZ Bond proceeds. (i} Edvca��pnal Facilit�.e�. Educationai Facitities to he constnicted as a part of €he Plar�s shaIl be determined by Alvin Independent 5choal llistrict ("ATSD"), using a portion of the AISb Tax Inerement, to be disbursed in accordance �vith the AISD participation agreement. Seventy-five percent of the AISD Tax Increment shall be disbursed to AISD to be used for the financing of Educationat Facilities in accordance tivith the Act an@ applicable law relating to such f'acilities. In the event Fart Bend Independent School District ("FBISD") agrees to participate in the Reinvestment Zone, this paragraph shall appIy with respect to the amouni of its Tax Increment to be disbursed to FBi5D in aecordance with its participation agreement, and the definition of Educational Facilities shal! be considered to include �BISD facilities as well as AISD facilities. TIRZ Bonds will not be issued to finance Educational �'acilities_ 5.2 ��,�x accQuntin�. 'The City shall maintain complete books and records showing dcposits tv and disbursements from the Fund and Improvement Fund of Tax Inerement and Bond Proceeds, which books and records shall be deemed complete if kept in accordance rvith generally accepted aecounting principles as applied to Texas municipalities and in accordance with the provisions of the Aet. Such books and records shall bc availabic for examination by the duly authorized officers or agents of ihe Developer and any Subdeveloper 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 1'our ycars thereafter, all subject to the requirements of the Act. ::oow�,uoFrso�uu+�eHOUOS�-:ioa�o -15- � . 5.3 Administrative Fee. The Administrative Fee shali be the follo��ing amounts in the applicable calendar years commencing January l, 1999: Years 1-3 (1999-2001) Years 4-8 (2002-2006) Years 9-30 (2047-2028) No Administrative Fee. 36 gercen[ of the City Increment. b4 percent nf the City Increment. provided that, the amount deposited and retained annually in the �und attributable to the City Increment for the appiicable year shalt i�� no event be less than (i) in years 4-$. 44¢ per $ lOQ.00 of the "captured appraised vatue" (as such tecm is defined in §311.012{b) of the Act) of the City Increment, and (ii) in years 9-30, 25'h¢ per $100.00 of such amount. ,:� _: _ _ ��il • ' • � �_ . . � � Promptly upon the eompletion of const� af any of the TIRZ Improvements, the City shall fi�mish a Letter of Acceptance so certifying. Each Letter of Acceptance shall be in a recordabie form, and shall be a conelusive determination of satisfaction and termination of Yhe cuvcnants in this Agreement with respect to the obligations of the Developer or a Subdeveloper to construct such TIRZ Improvements. Upan �vritten request for a request for a Letter of Acceptance, the City shall have 30 days after receipt thereof to provide a Letter of Acceptance or a w statement indicatu�; in detail ��hy the eertificate canziot be issued, azad what measures or aets will be necessary, in the reaSOnaUlc opinion of the City citing applicable laws and ardinances for the Developer or Subdevetoper to take or perform in order to obtain issuance of such Letter of Acceptance. The Developer or Subdeveloper tir�ill follow standard City requirements applicable to alt developers wi,thin the City with regard to tho acceptance of facilities by the City. AR,TI�,� VI_I ' : ; � � � �_� u''• u_ 7.1 Policg and fire ploteetiot�. The Developer ared the City reco�nize that providing a Project that is safe and secuxe is in the best interests of both the Developer and the City. To that end, the City corrunits to providing a iaw enfarcement and fire fighting presence in the Project. The City shall finance such services frocn the Administrative Fee and ather availabic City revenues. 7.2 Ixn, nrov�me , bS v ot ent'tties. (a} �,ig�„�,y. The parties recognize that other improvements aze expected to be carried out wZlhui t1i� arca of thc Reiavestment Zone by other entities than the paTties. SpeCifiCally the parties -OD�tA�SOf75011111\YEHOU09�92106�A � � � S � conternplate the creation of one or more PIDs to provide "public improvements" as such terrrz is defined in TEX. LOCAL GOV'T CoDE § 372.003, or ane or more municipal utility districts under TEX. WATER CObE ch_ Sa, pursuant to then-currcnt city requirements. Upon the submission of a legaIly sufficient petition therefor, the City will cooperate with the petitioners to create such di�tricts, and once a PID is created, to levy a PID assessment thereunder reasonably sufficient to carry out the ��rposes for which thc PID r►�ay be created. {b) The PtD. Without limitation of the generality of subsectian (a), it is currently anticipated that thc PID shall be created to levy assessments within the area of the Reinvestment Zone to finance the constructian of pubiic water, sewer and drainage faciiities and impact fees, including contingencies, and engineering and legal services. In addition the parties anticipate that ccrtaitt supp4emental services, including maintenance of pubIie improvements and common areas and general administrative expenses will be financed by a separate maintenance assessment similar to homeowner's association assessments. The cost of the PID improvcments is dniicipated at approxunately $76,215,000. Each assessment is expected to be made on the basis of the area of the tracts to be benefited by the applicable PID improvements. qRTICL� VIj,I � � � .L • ,. 8.1 ct'o . The Ciry covenants to the Developer and agrees that upon applicatian of the Developer, the City witl use its bcst efforts to the extent permitted by law io take such actions as may be required and necessary to process any ar►�endments, variatians, special use approvais and permit applications re[ating to the Zaning (Jrdinance and the City's other ordinances, codes and re��(ations, as may be ncccssary or proper in order to insure the development of the Property and the Project in accordance with the Plans, this Agreement and the PUD and to enable the City to execute this Agreement and to carry out fully and perform the terrns, covenants agreements, duties and obligacivns on its pact to be kept and perFormed as provided by the terms and provisions hereof. The City's willingness to use its powers of condemnation with respect to the consiruction of public projects consistent with this Agreement shall not be constn�ed as a dele�ation of such condc��u�ation powers to the Reinvestment Zone. 8.2 we . (a} The City herehy represents and warrants to Devetoper that t�►e City has full constitutional and lawful right, power and authority, under currently applicable la�v, to execute and deliver and gec�'orm the terms and obligations of ihis Agreement, and aIl of the foregoing have been ar will be duly and validly authorized and appraved by all necessary City proceedings, findings and actions. Accordingfy, this Agreement consiitutes the legal, valid and binding obligation of the City, is enfarceable in accordance with its terms and provisions and does not require the consent of any other govemmental authority. ::OPMA�SOFTSOLUII�VEHVlJ091921Q610 � 1 r r � � (b) The Developer hereby represents and warrants to the City that Developer has fuil lawful right, power and authority to execute and deliver and perform the terms and obligations of this Agreement and ail of the foregoing have been or will bc duly and validly authorized and approved by all necessary actions of Developer. Concurrently �vith Devetoper's execution of this Agreement, Deveioper has delivered to the City 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 Developer to do so. Accordingly, this Agreement constitutes the leaal, valid and binding obli?ation of Developer, and is enforceabte in accordance with its terms and provisions. 8.3 Authorized narties Whenever under the provisions of this Agreement and other related documents and instruments or any supplemental agreements, any request, demand, approval, notice or consent of the City or Developer is required, or the City or Devetoper is required to agree or to takc some action ut the request of the other, such request, demand, approval, notice or consent, or agreement shall be given for the City, unless otherwise provided herein, by the City Manager or his designee and for Developer by any offtcer of Develoger sa authorized (and, in any event, the officers executic�g ilus Agrccmcnt are so authorized) cind any party shall he auihorized to act �n any such request, demand, approval, notice or consent, or agreement. 8.4 Covenants regardin�ad valorem taxes. (a) No inventory valuation. 'Ihe Developer, as well as all Subdevelopers, shall value all real property within the Reinvestment Zone for taxation in accordance with T�x. Twx ConE, §23.01, and that they will not request such property to be valued for taxation on the basis of inventory as permitted by TEx. TAx CoD�, §23.12. (b) QQricultural v�luatigl�. This Agreement shall not be construed to prevent any owner from claiming agricuttural valuation on the Property. The Develaper agrees that for any tax year from 1999 until termination of the Reinvestment Zone that agricultural designation is claimed on the property within the Reinvestrnent Zone owned by either the Developer or Pearland Investments, L.P., the Developer agrees to make a supplemental payment t� the City equal t0 the amount of taxeS the Ciiy would have collecie� or� suLh �rape:fiy :f ihere tis:as n� agricultural designation, By way of examgle, this means that if the property was appraised on the City's tax rolls at $1,000 per acre, but the agricuihual dcsignation Iowered the taxable value to $100 per acre, the Developer would make a supplemental tax payment to the City based on a value of $900 per acre. This payment would be made at ihe same time taxes are.paid. Whenever the agricultural designation is removed on any of the property from tax yeaz 1999 until termiiiation of thc Reinvcstment Zone for any reason that triggers payment of "rollback" taxes, the Developer will be given a credit by the City against the amaunt of "rollback" taxes due. Thus is due to the fact that "rollback" taxes are collected to aliow the City to recover the amount of tax that would have been paid hut for thc agricultural designation. If the Developer has made the supplemental payments described herein, the City would have already ::ODb4llSOFT50�1t1 t�VEHOU09�92f OGO ' � g' � � received the "roliback" for each of those years. Statutory interest imposed at the time of the change in use witl not be charged for tax years in which this supglemental payment �vas made. (c) A�Qlic�tion of ad va�rem tax covenants to successors. This Section is binding upon alt future acvners of the Property purchasing from or otherwise succeeding the Developer, other than current ow�ners (except for the Developer) or cunent lienholders. The Developer ag��cs that it �viU � require subsequent purchasers of the property to aAree to abide by� the terms af this section. 8.5 Coaperation. The Developer a�rees that it w�ill cooperate with the City and the Reinvestment Zone and will provide alI necessary information to the Reinvestment Zone and its consultants to assist the Reinvestment Zone in complying with this Agreement. �RTIC�E IX ��IERAT. PRS}VI�iON,S 9.1 Time of�}t � essence. Time is of the essence of this Agreement. The parties wilI make every reasoi�ablc cffort to cxpcdite the subject matters hereof and acknot�ledge that the SuCCeSS�ul performance of this Agreement requires #heir continued cooperation. AIl dates and time periods provided for in this Agreement shall be delayed during any pending or threatened litigation that would affeCt the abiliry to issue the TIRZ Bouds, acquirc the Property or commence or concinne �vith construction of the Improvements or the Project, for a time p�riod equal to the duration of such litigation. 9.2 u t. (a) A party shall be deemed in default urtder this Agreement (�vl�ich shall bc deemed a breach hereunder) if such party fails to materially perform, observe or comply tivith arty of its covenants, agreements or obligations hereunder or breaches or violates any of its representations contained in this Agreement. (b) Before any failure of any party to perform its obligations under this A�r�ement shatl be decmed to b� . br�a�h flf th�s Agreezn�nt, the party claiming such failure shall notify, in writing, the party alleged to have failed to perform of the alleged failure and sl�all demand performance. No breach of tizis Agreement may be found to have occurred if perfonnance 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 9.2(C). Upon a breach of this Agreement, the non Party, in any court of competent jurisdiction, by an action or praceeding 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 othCrwise sct forth hcrein, no action taken by a Party puzsuant to the provisions of this Section pursuant to the pravisions of any other Section of this Agreement shall be deemed to constitute an eiection of remedies and aIl ::oon�t��soFrsow i nvexouo�r.+a6w -19- ! � � remedies set forth in this Agreement shall be cumulative and non-exclusive of any other remedy either set forth herein or available to any Party at law or in equity. Each of the Partics shail have �ie affirmative obligatiuii to mitigate its damagcs in the event of a default by the other Party. (c) Notwithstanding anything in this Agreement �vhich 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, tivithout Iimitation, pending or threatened litigation, acts of God, war, acts of civit disobedience, fire or other casualty, shortage of materials, adverse weather conditions (such as, by way of illustration and not limitation, severe rain storms or betow freezing temperatures, or tornados� labor action, strikes or similaz acts) the time for such performance shall be extended by the amount of time of such delay. The Party claiming detay �f performance as a result of any of the foregoing "force majeure" events shall deliver written notice of the commencement of any such de4ay resulting frorn such force majeure event not later than seven days after the claiming Party becomes aware of the same, and if the claimin� Party fails to so notify the other Pazty 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 Scction. (d) In addition to any other right or remedy avaiIable to Developer pursuant to this Agreement, in the event of a material breach by the City uncier �t�is Agrcemc��t which continues for 30 days after written notice Eo the City thereof and the City's failure to cure or diligently proceed to cure such breach to Developer's reasonable satisfaction, Developer shall have the right (but not the obligation), in its sole discretion, to exercise its rights under Section 4.5, with regard to mandamus, specific performance or mandatory permanent injunction to require the City to do so. 9.3 personat liabili�,v of viaF��jc q�iats. To the extent pemutted by State law, no public official or employee shall be personally responsible for any liability arising under or growing out of this Agreement. 9.4 Liabi�itv of the Develoner, its successors and assi�nees. Any ok�ligation ar liability of the Developer whatsaever that may arise at anytime under this Agreement or any obligation or liability which may be incurred by the Developer pursuant to any other instrument, transaction or undcrtal:fng contcmplatcd hcreby shall be satisficd, if at all, out of the nssets of the Developer only. No obligation or Iiability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, the property of any of partners, officers, empioyees, shazeholders or agents of the Developer, regazdless of whether such obligation or liability is in the naturc uf contract, tort or otherwise. ::ooau�soFrso�u i nvexouanv�t�osw -2�- � � 9.5 Notices. Any notice sent under this Agreement (except as othenvise expressiy required) shall be �vritten and mailed, or sent by rapid transmission confirmed by mailing �rritten confizrnation at substantially the same time as such rapid transm�ssion, or persanally delivered to an officer of the receiving party at the following addresses: If to the City: City Manager City of Pearland 3519 Liberty Drive PearIand, Texas 77�81 RE: RENVESTMENT ZONE NUMBER TWO with a copy to: City Attorney ' City of Peprlund 3519 Liberty Drive Peazland, Texas 7y581 RE: REINVESTMENT ZONE NUMBER TWO If to the Devetoper: Shadow Creek Ranch Develapment Co�mpany, L.P. 10777 �Vestheimer, Suite 1 I00 Houston, Texas 77042 Attention: Gary Cook with a copy to: Lynne B. Humphries Vinson & Elkins L.L.P. 2300 First City Totiver 100I Fannin Houston, TX 77002-6764 Fax Na.: (713) 615-5601 Each party may chan'e its address by written notice in accordance with this Section, Any communication addressed and mailed in accordance with this Section shall be deemed to be given when so mailed, any notice so sent by rapid transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by, an authorized officer of the City or the Devetoper, as the case may be. 9.6 zAr�endments and waivers. Any provision of this Agreement may be amended or waived if such amendment or �vaiver is in writing and is approved by the City Council and the Devetoper. Na course of dealing on the part of t� City or the Developer nor any failure or delay by ::ODSIA�SOFISOLUf 1�VEHOU09�91106'+0 '21' • � the City or the Developer with respect to exercising any right, power or grivilege pursuant to this Agreement shall operate as a waiver thereof, except as otherwise provided in this Section. 4.7 Inval,�itv, In the event that any of the provisions contained in this Agreement shall b� hcld uncnforceable in any respect, such unenforceability shall noi affect any other provisions of this Agreement and, to that end, all provisions, covenants, aa eements or porlio��s of this A�reemenr are declared to be severable. 9.8 Successars atad assiQns. Na party to this Agreement shali have the righ► �� assign its rights under this Agreement or any interest herein, tivithout the prior written consent of the other parties, except that the Drveloper may assign its ri�hts and responsibiiities hereunder to any entity to which substantialiy all of its assets and its rights to proceed with development of the prap�rty tivith�n the Zone aze transfened. In connection with an assignment by the Developer of its development rights arid obligations unaer this section, the Deveiaper may file a memorandunn of ttus Agreement in the afficial reai propert}� records of the appiicable couniy to evidence the zights and obtigations of such assignee and its successors hereunder. 9.9 Exhibits titles of arti�ctes, seGt'ons and subsections. The exhibits attached to this Agreement are incorporated herein, and shatl be considered a part of this Agreement for the purposes stated herein, except that in the event of any canflict benvee,� any af the provisions af such e�chibits and the provisions of this Agreement, the provisions of this Agreament shalt prevail. All titles or headings are only for the convenience of the parties and shall not be canstrued to have any effect or meaning as to the agreement between the parties hereto. Any ref��cnce herein to a section or subsection shall be considered a reference to such section or subsection of this Agreement unless otherwisc stated. My reference herein to an exhibit shall be cons'rdered a reference to the applicabte exhibit attached hereta uniess otherwise stated. 9. i 0 �,�plica�te law This Agreement is a contract made under and shall, be construed in accordance with and gavemed by the laws of the tJnitect States of America and 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 thc United States Distr►ct Court for ihe Southern District of Texas. 9.11 ��tire agre�nt. This written agreement represents the final agreement between the parties and may not be contradicted by evidcnce of prior, contemporaneous, or subsequent oral agreements of the parties. There aze no unwritten oral agreements between the garties. 9.12. �rm q�'�}.greement. The term of this Agrecment shalt comcnenee on the date fcrst above written and shall continue uniil the date which is the earlier of (a) the completion of the Pro,ject and the payment to Developer of al] costs Devetaper or any Suhdeveloper has incurred for eligible Project Casts, or (b) December 31, 2028. :�06�LA\SOfi`[SOi,U111VEHOU09�92106�0 `22' • � � 9.13 NQ �vaiv� o� f, Citv standard„�. Except as may be specifically provided in this Agreement, the City does not tivaive or grant any exemption to the Properiy or the Developer with respect to City regulations or or�lia2anccs, including �vithout limitation piatting, germittin� or similar provisions. 9.14 Ap roval by the D31'k1eS Whenever chis Agreemcnt requires or permits approval or consent to be hereafter given by any of the parties, the parties agree that such approval or consent shall not be unreasonably withheld or delayed. 9.15 CQUnteroarts. This Agreement may be executed in severai counterparts, each af which shatl be an original and aii of �vhich shalt constitute but one and the same ajreement. 9. I6 Inter.�retat,ign. This Agreement has been jointly negotiated by the parties and shalt not be construed againsr a party because that Party may have prinnarity assumed responsibility for the drafting af this Agreement. [Signatures begin on following page] ::oo,�c,�soFrso�v► i+v�000sns; � os.o -23- u • IN WITNESS WHEREOF, the Parties have duly executed this Agreernent pursuant to all requisite authorizations as of the date first above written. CITY: CITY OF PEARLAND, TE�S, a l�onic i�lc municipality By: �',� ��, Mayor COUNTERSIGNED: ��. iC. ��....... City Manager Date countersigned: �- 15 ' � � APPROVED AS TO FORM: V.'a��_� � City Attorney Date: � —� �'-�g DEVELOPER: SHADOW CREEK RANCH DEVELOPMENT COMPANY, L.P., a Nevada limited partnership, by SHADOW CREEK RANCH, INC. By. /��/� � Gary W. ok, President ::oo�uuoerso�v�nveHOUOS�sz�os "2`�' � i 't u A - Legal Description of Reinvestment Zone F3 - TIRZ Improvements/City Improvements C - Map shawing TIRZ Tmprovements that must be constructed for building permits to be issued for multi-family sites :�ODFIA�SQtT501�31 t1YEHOL'09�42I06W �� S� REINVESTMENT ZONE NO. TWO, CITY OF PEARLAND, TEXAS (SHADOW CREEK RANCH) • January 15,2008 The Honorable Tom Reid City of Pearland 3519 Liberty Drive Pearland,Texas 77581 Re: Financing for TIRZ Improvements: Broadway Improvements from Kirby Drive to Kingsley Drive;TIRZ Project No. 08-01-001 Dear Mayor Reid: The City of Pearland,Texas (the"City") and Reinvestment Zone No. Two, City of Pearland, Texas (the "Zone") have determined to proceed with the following TIRZ Improvements, as contemplated by the Third Amendment to Project Plan and Reinvestment Zone Financing Plan: Broadway Improvements from Kirby Drive to Kingsley Drive; TIRZ Project No. 08-01-001 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 City has agreed to pre-finance the design and construction of the TIRZ Improvements to be reimbursed as a sub-developer of the Zone. Pursuant to an agreement between the City and Shadow Creek Ranch Development Company L.P. ("SCR"), a copy of which is attached, SCR will enter into the construction contract, with funding to be provided by the City. The Zone hereby gives its approval of the above described TIRZ Improvements. All procedures set forth in the document entitled "TIRZ Project Implementation and Reimbursement Process" must be followed. The Zone's Engineer has determined that the budget (using 2006 dollars) established in the Zone's Third Amendment to Project Plan and Reinvestment Zone Financing Plan for the above described TIRZ Improvements is $8,000,000 plus "developer interest" calculated at 6.5% for a maximum of five years from the date of completion. The Zone is not obligated to reimburse the City for any amount in excess of that budgeted amount plus"developer interest." 171908 D This agreement was duly authorized at a meeting of the Board of Directors of the Zone held on the 15th day of January,2008. Very truly yours, REINVESTMENT ZONE NO.2, CITY OF PEARLAND,TEXAS (SHADOW CREEK RANCH) ATTEST: By: 4cit.-Chairman and of Directors By: 114) Sec tary, oard of Directors 171908 PASSED AND APPROVED this day of ,2008. CITY OF PEARLAND,TEXAS Tom Reid Mayor ATTEST: Young Lorfing City Secretary 171908 `� ctEM GE, .. H SCALE:1'.2000 FEET .4 . /�• iw, "-'II Nevain. weir., 444 ■ • 0. . • L� I ' "4'42 ftw. " / (4,1:14,„ atom 0 imi ____„,. ....._ t 4 „1„,_ __ ,i.,___ \ _ _I- ____77_____ , 1 a Twl irv-ik - • ,„ , d,, �sr- '_. ' o ric .. / Lt '----- - - i, A);(---41 -1-tim---1 . 1 illipl*ANN... .,J-15.1.:.L___2zorm MI air , . WU Wi 1 1111111—X1 iM` � DRAINAGE ik REINVESTMENT ZONE NO.2, Aillil CITY OFAREKRA TEXAS LEGEND SHADOWOW CREEK RANCH �\D� BROADWAYY IMPROVEMENTS TO FROM �.� PREVIOUSLY AUTHORIZED PROPOSED FUTURE KIRBY DRIVE TO KINGSLEY DRIVE - STORM SEWER ® CI DETENTION AREA PROJECT NO.08-01-001 Q DRY DETENTION AREA LJA Engineering i:3urvoylnp,Inc. `A MN...Oft a C=7 CI CHANNEL IMPROVEMENTS iem.brimmm r. rowan UMW NO. I JOS NO: I DATE: A • D AND — DH L� 1 _� .,►�n , ��' SCALE:1'r•.2000 FEET is no [3 illeirians,10.10__ , 0. 1111 MI...I ali (-11.04111 -", , _0% iiiippPir imp , ,, ,,,„ ,,,r-A- E . .,. iii>...„ r="4" ,, *y___,..f .,, „ . , -, ,, ,. I . . . rt. ,„ ,411 . n .. / lox.---_____„:,_ .x.,.„_ :,, .1:37 ., / • . C11.92 . r — —\...0 1 y, REINVESTMENT ZONE NO.2, _ 1 A LEGEND CITY OF PEARLAND,TEXAS l SHADOW CREEK RANCH • MONUMENT Ifd) PARK AREA BROADWAY IMPROVEMENTS FROM KIRBY DRIVE TO KINGSLEY DRIVE ® 80'ROW WITH 28'PAVEMENT =11 120'ROW WITH 2.25'PAVEMENT SECTIONS(10'CONC.) IIIIIIIIIIIII, 80'ROW WITH 2-25'PAVEMENT SECTIONS MN- 160'ROW-FUTURE WIDENING OF EXISTING MCHARD ROAD PROJECT NO.08-01-001 • 1 .. .. I=.: 100'ROW-WITH 2-25'PAVEMENT SECTIONS(7'CONC.)IIIIIIIIIIIII, 100'ROW WITH 4-12'LANES AND A 14'CONTINUOUS TURN LANE LJA EngIn..iIng 6&Surveying,Inc. �J.� i IIIIIIIIIIIII, 100'ROW WITH 2-25'PAVEMENT SECTIONS(8'CONC.) MOWNoploi p°9J° re mmum F EXHIBIT NO: I CONE: I DATE: 9 • I N � MNeSCALE:1'.2000 FEET /*aai .: �_re .:.,„ .4#4,„ 411 r:- ....,H,iwgi \ a. - ic pool * , . I •,, , .,_ .... . ti .: - W. /' \ k gisric. , , i AP 1.____ ' , . ,....,,,. . ,..c) liNy`,, 11 Fl W. . / !4E ' /IF '----- 1� L1 ,r .lam r !g • e IWATER AND SANITARY SEWER v 6110 REINVESTMENT ZONE NO.2, LEGEND CITY OF PEARLAND,TEXAS SHADOW CREEK RANCH PREVIOUSLY AUTHORIZED PROPOSED FUTURE BROADWAY IMPROVEMENTS FROM - EXIS.SANITARY SEWER - PROP.SANITARY SEWER - FUTURE SANITARY SEWER KIRBY DRIVE TO KINGSLEY DRIVE - EXIS.WATER UNE PROP.WATER UNE - FUTURE WATER UNE PROJECT NO:08-01-001 ENS.INT SEWAGE • ® TREATMENERT IM PLANT ®' FUTURE LIFT STATION :IJA EnglnMrtng i Surveying,Inc. ",' 1 :ma..muum NrNm F F' MISR NM I JBN UO: I OATS: 0 • , •„ , 1 SCALE +•�.�FE�T ENTER :N-r p --...,,,„, .---------__ Aror77, 1 //4/ Noma ,• LCENI. C 21B m c on ©I � NCA ME 5 ill hipp ca 4 Ili c IIIIIL i sF7 pi, Foy*: _, .ilk SF-8 C-10 /0 , -_:-----._,_,,ipi Cill ipk ,\ SF-2Dft � VV �® \J SFJBA s .. ��///I �Oa . are 1., An 660. 444grai ,_ tst„,. �j kihkaisilis I � 18i I e MEM in NF-� SF-5] SF-JD Alp," 4 , " ;MI ®� 111 BENEFITTED AREAS REINVESTMENT ZONE NO.2, CITY OF PEARLAND,TEXAS Zilil IL SHADOW CREEK RANCH BROADWAY IMPROVEMENTS FROM /r Iii KIRBY DRIVE TO KINGSLEY DRIVE PROJECT NO.08-01-001 1 II Il- --- a Sunnis .w.. 111 iik 2 MINT No- I MONU I DATE: