R-2015-056 2015-04-13RESOLUTION NO. R2015-56
A Resolution of the City Council of the City of Pearland, Texas,
authorizing an Economic Development Agreement between the City and
Costco Wholesale Corporation ("Costco") and a Performance
Agreement between the Pearland Economic Development Corporation
and Costco.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Agreements by and between the City of Pearland and
Costco, copies of which are attached hereto as Exhibits "A" & "B" and made a part hereof
for all purposes, are hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an Economic Development Agreement with Costco.
PASSED; APPROVED and ADOPTED this the 13'" day of April, A.D., 2015.
ATTEST:
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
0)P02
TOM REID
MAYOR
rL'
01111111,
RESOLUTION NO. R2015-56
Exhibit "A"
ECONOMIC DEVELOPMENT AGREEMENT
This Economic Development Agreement (this "Agreement") is made and entered into by
and between the CITY OF PEARLAND, TEXAS, a Texas home -rule municipal corporation
("City"), and COSTCO WHOLESALE CORPORATION, a Washington corporation
("Company"), effective as of the date this Agreement has been executed by both City and
Company (the "Effective Date").
RECITALS
WHEREAS, Company owns or is under contract to acquire a certain parcel of
unimproved land located in Pearland, Texas, containing approximately 16.80 acres located north
of the northwest corner of Highway 288 and Southfork Drive/County Road 59 and adjacent to
the western boundary line of Business Center Drive in Pearland, Texas, as more particularly
described in EXHIBIT A attached hereto (the "Property"), on which Company intends to
construct the Project described in Article II, Section A below (the "Project"), which Project is or
will be more fully described in the permit(s) for the Project approved by City (whether one
or more, the "City -Approved Permit"); and
WHEREAS, City has established a program in accordance with Article III, Chapter 52-a
of the Texas Constitution and Chapter 380 of the Texas Local Government Code ("Chapter
380") pursuant to which City has authority to enter into this Agreement, and has authority to use
public funds for the public purposes of promoting local economic development and stimulating
business and commercial activity within City and surrounding region; and
WHEREAS, Chapter 380 specifically authorizes City to conduct an economic
development program; and
WHEREAS, consistent with Article III, Section 52-a of the Texas Constitution, Chapter
380, and other laws, City agrees to enter into this Agreement with Company to advance the
public purposes of developing and diversifying the economy of the State of Texas ("State"),
eliminating unemployment or underemployment in the State, and developing or expanding
transportation or commerce in the State; and
WHEREAS, City recognizes the positive economic impact that the Project will bring to
City through the timely development and diversification of the economy, elimination of
unemployment and underemployment through the creation and retention of new jobs and the
retention and growth of the sales tax revenues generated by the Project for City; and
WHEREAS, in consideration of the design, timely construction, and development of the
Project, which will bring additional sales tax revenues to City and additional jobs resulting from
the construction and operation of the Project, City desires to enter into this Agreement pursuant
to Chapter 380 and other applicable laws as an economic incentive for Company to develop,
finance, construct, and operate the Project; and
WHEREAS, City has determined and hereby finds that this Agreement promotes
economic development in City and, as such, meets the requirements of Chapter 380 and City's
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established economic development program, and, further, is in the best interests of City and
Company; and
WHEREAS, to ensure that the benefits City provides under this Agreement are utilized
in a manner consistent with Chapter 380 and other laws, Company has agreed that its receipt of
such benefits shall be conditioned upon its satisfaction of certain conditions enumerated herein,
including performance conditions relating to the construction of the Project and job creation; and
WHEREAS, to induce Company to develop and finance the construction of the Project
for the public purposes of developing and diversifying the economy of the State and to create
jobs in accordance with the performance measures set forth herein, which will generate sales tax
revenues for City, City agrees to grant to Company the Grant (as defined below), but not to
exceed the Maximum Grant Amount (as defined below); and
WHEREAS, City recognizes that the Project will provide a public benefit to City and
surrounding region through the creation and retention of new jobs and the retention and growth
of the sales tax revenues generated by the Project for the City and by improving public and
quasi -public infrastructure components; and
NOW, THEREFORE, for and in consideration of the promises and mutual agreements
set forth herein, City and Company agree as follows:
ARTICLE I
GENERAL TERMS; DEFINITIONS
A. Incorporation of Recitals. The Recitals to this Agreement are hereby
incorporated for all purposes.
B. Definitions and Terms. The terms "Agreement," "Chapter 380," "City," "City -
Approved Permit," "Company," "Effective Date," "Project," "Property," and "State" have the
meanings given to such terms in the Recitals, and the following terms have the following
meanings:
"Annual Payment" has the meaning ascribed to it in Article VI, Section B.
"Annual Payment Request" has the meaning ascribed to it in Article VI, Section B.
"Casualty" shall mean the Project is wholly or partially destroyed by fire, earthquake, flood or
similar casualty that renders the Project unfit for the intended purpose, as determined by Company in its
reasonably exercised judgment.
"Certificate of Occupancy" means a permanent certificate of occupancy (or a
temporary certificate of occupancy under which Company is permitted and does open for
business) for the Project issued by the City.
"Citv Parties" has the meaning ascribed to it in Article VI, Section E.
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"City Representative" means the City Manager of City, or his/her designee in a writing,
a copy of which is provided to Company.
"Completion Date" means the date on which a Certificate of Occupancy has been
issued for the Project by the applicable governmental authority with jurisdiction.
"Cost Certification" has the meaning ascribed to it in Article VI, Section A of this
Agreement.
"Event of Default" has the meaning ascribed to it in Article VII, Section C.
"Force Majeure" has the meaning ascribed to it in Article VII, Section G.
"Full-time Jobs" has the meaning ascribed to it in Article IV, Section A.
"Grant" means a grant payable from Tax Revenues in Annual Payments in accordance
with this Agreement, not to exceed the Maximum Grant Amount.
"Jobs Creation Certification" has the meaning ascribed to it in Article IV, Section A.
"Maximum Grant Amount" means Seven Hundred Fifty Thousand Dollars ($750,000).
"Outside Completion Date" means June 30, 2017, as such date may be extended by
Force Majeure.
"Part-time Jobs" has the meaning ascribed to it in Article IV, Section A.
"Party" or "Parties" means City and Company, the parties to this Agreement.
"Project Costs" means the hard and soft costs of acquisition, design, development and
construction of the Project, including without limitation (i) the costs of acquiring the Property;
(ii) the costs to prepare the Property for any of the improvements constructed on or within the
Property and constructing any required site work infrastructure such as streets and roads, water
and electric utilities, gas utilities, drainage and related improvements and/or telecommunications
and Internet improvements; (iii) the costs of obtaining all necessary governmental permits and
approvals; (iv) the costs of design, engineering, materials, labor, construction, and other services
arising in connection with the design and construction of the Project; (v) all payments arising
under any contracts entered into for the design or construction of the Project; (vi) legal costs and
consultant fees; (vii) reimbursements to any developer/contractor for the actual costs described
above that are advanced to or on behalf of Company; (viii) costs of furniture, fixtures, equipment
and inventory; and (ix) miscellaneous expenses.
"Tax Revenues" means an amount equal to fifty percent (50%) of the local sales tax
revenues collected and retained by City from taxable sales generated by the Project, at a local
sales tax rate of one percent (1 %) during each year of the Term of the Agreement.
"Term" means the duration of this Agreement, commencing on the Effective Date and
continuing until the earlier of: (i) the payment to Company of the Maximum Grant Amount; or
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(ii) ten (10) years from the Completion Date; provided, however that this Agreement shall
terminate on the Outside Completion Date if Company fails to construct the Project and obtain a
Certificate of Occupancy from City by the Outside Completion Date.
C. Singular and Plural. Words used herein in the singular, where the context so
permits, also include the plural and vice versa. The definitions of words in the singular herein
also apply to such words when used in the plural where the context so permits and vice versa.
ARTICLE II
THE PROJECT
A. The Project. The Project is a wholesale and retail general merchandise facility of
approximately 150,000 square feet and related parking and other improvements to be constructed
on the Property, including without limitation an attached tire center and a free standing fueling
station.
B. Standards and Approvals. Construction of the Project must be in substantial
accordance with the City -Approved Permit, subject to reasonable changes and modifications in
the course of construction, which, to the extent required, shall be subject to the review and
approval of City and/or other governmental entities with jurisdiction, as applicable, with no
uncured violations of the City -Approved Permit of which City has provided notice of to
Company. Company agrees to comply or cause its developer/contractor to comply with all
applicable legal requirements relating to construction of the Project from all governmental
entities with jurisdiction.
ARTICLE III
REPRESENTATIONS
A. Representations of City. City hereby represents to Company that as of the date
hereof:
City is a duly created and existing municipal corporation and home rule municipality of
the State of Texas under the laws of the State of Texas and is duly qualified and authorized to
carry on the governmental functions and operations as contemplated by this Agreement.
City has the power, authority, and legal right under the laws of the State of Texas and
City Charter to enter into and perform this Agreement and the execution, delivery, and
performance hereof (i) will not, to the best of its knowledge, violate any applicable judgment,
order, law, or regulation, and (ii) do not constitute a default under, or result in the creation of,
any lien, charge, encumbrance, or security interest upon any assets of City under any agreement
or instrument to which City is a party or by which City or its assets may be bound or affected.
This Agreement has been duly authorized, executed, and delivered by City and
constitutes a legal, valid, and binding obligation of City, enforceable in accordance with its
terms, except to the extent that (i) the enforceability of such instruments may be limited by
bankruptcy, reorganization, insolvency, moratorium, or other similar laws of general application
in effect from time to time relating to or affecting the enforcement of creditors' rights, and (ii)
certain equitable remedies including specific performance may be unavailable.
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The execution, delivery, and performance of this Agreement by City do not require the
consent or approval of any person that has not been obtained.
B. Representations of Company. Company hereby represents to City that as of the
date hereof:
Company is duly authorized and existing under the laws of the State of Washington and
in good standing under the laws of the State of Texas, and is qualified to do business in the State
of Texas.
Company has the power, authority, and legal right to enter into and perform its
obligations set forth in this Agreement, and the execution, delivery, and performance hereof (i)
have been duly authorized, and will not, to the best of its knowledge, violate any judgment,
order, law or regulation applicable to Company, and (ii) do not constitute a default under or
result in the creation of, any lien, charge, encumbrance, or security interest upon any assets of
Company under any agreement or instrument to which Company is a party or by which
Company or its assets may be bound or affected.
This Agreement has been duly authorized, executed, and delivered and constitutes a
legal, valid, and binding obligation of Company, enforceable in accordance with its terms, except
to the extent that the enforceability of such instruments may be limited by bankruptcy,
reorganization, insolvency, moratorium, or other similar laws of general application in effect
from time to time relating to or affecting the enforcement of creditors' rights.
ARTICLE IV
COMPANY COMMITMENTS
In consideration of City's agreeing to pay to Company the Grant in accordance with the
terms of this Agreement, Company agrees to fulfill the following conditions in order to receive
the Grant:
A. Jobs Creation.
Company agrees that jobs will be created by the development of the Project. The Parties
acknowledge that Company may not directly provide all the jobs created by the Project. As used
herein, (i) the term "Full-time Jobs" means all positions in management, retail, and service
which provide a regular work schedule of at least thirty-five (35) hours per week; provided that
two (2) positions providing part-time work schedules for at least thirty-five (35) hours per week
is equivalent to one Full-time Job; and the term "Part-time Jobs" means all positions in
management, retail, and service which provide a work schedule of less than thirty-five (35) hours
per week; provided that one Full-time Job is equivalent to two (2) Part-time Jobs. In order to
assure City that the Project will produce sufficient job creation, Company agrees that it is a
condition to payment of each Annual Payment that Company submit to City annually, in
accordance with this Article VI, Section A, a certification (a "Jobs Creation Certification")
substantially in the form attached hereto as EXHIBIT B, unless City approves any variance
thereto requested by Company, certifying that Company has created and retained Full-time Jobs
and Part-time Jobs in accordance with the following schedule:
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Number of Jobs*
Jobs Creation and Retention Schedule
78 Full -Time Jobs
75 Part -Time Jobs
To be created and retained by the Completion Date
78 Full -Time Jobs
75 Part -Time Jobs
To be retained by each one year anniversary of the Completion Date
during the Term
*The requirement for one Full-time Job may be satisfied by two (2) Part-time Jobs which provide a regular
work schedule of at least thirty-five (35) hours per week and one Full-time Job will satisfy the requirement
for two (2) Part-time Jobs.
Along with each Jobs Creation Certification, Company shall provide City with reports from the
Warehouse Manager at the Project or, at Company's election, Company's Human Resources
Department (or other, similar department) describing the data Company used to determine the
number of Full-time Jobs and Part-time Jobs created and/or retained by the Project for such year.
B. Construction of Project. Company intends and has plans to construct the Project
as expeditiously as possible, and expects that the Project will be open to customers and
generating sales tax revenues by June of 2016, which Company estimates will require an
investment in excess of Thirty Million Dollars ($30,000,000), including without limitation, costs
of acquiring the land, site preparation, building costs, Improvement Costs, costs of furniture,
fixtures, equipment and inventory and miscellaneous expenses.
C. Maintenance of Records. Company shall be responsible for maintaining records
of all costs incurred and payments made for the Project and records evidencing compliance with
all Company commitments required by this Agreement during the Term and for three (3) years
thereafter. At City's request, Company shall provide City with copies of or the right to review
such records to confirm the amount of any Project Costs.
D. Acquisition a Condition Precedent. Notwithstanding anything in this
Agreement to the contrary, Company shall have no obligations under this Agreement, nor any
right to any payments of the Grant, unless and until Company acquires title to the Property.
E. Cessation of Business. Notwithstanding anything contained herein, City
understands and agrees that Company shall have no obligation to occupy or operate the Project,
provided, however, if at any time from and after the expiration of the calendar year in which the
Completion Date occurs, Company ceases to occupy and continuously operate the Project open
to the public (subject to Company's membership policies) for a continuous period of more than
nine (9) months within any calendar year during the Term, except in connection with, and to the
extent of (i) a Casualty or (ii) Force Majeure, then Company's right to receive an Annual
Payment for such calendar year during which operations have ceased for more than nine (9)
months (but only such calendar year) shall be suspended.
ARTICLE V
ANNUAL REPORTING
A. Annual Reporting. Company will provide to City, on an annual basis and as part
of the Annual Payment Request, the amount of Annual Payments received to date.
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B. Waiver. Company shall submit to the State Comptroller's office the waiver in
the form of EXHIBIT E attached hereto (or other form required by the State Comptroller's
office) to provide City the annual revenue reports reflecting the sales taxes collected from the
Project.
ARTICLE VI
PAYMENT OF GRANT
A. Certification of Proiect Costs. After the Project is completed, Company will
provide to City Representative a certification in the form attached hereto as EXHIBIT C,
certifying that Company has incurred Project Costs of at least Thirty Million Dollars
($30,000,000) (the "Cost Certification").
B. Payment of the Annual Payments. The Grant shall be paid by City in annual
payments (each an "Annual Payment") in an amount equal to the Tax Revenues received by
City for the preceding calendar year, as follows:
(1) Commencing after the Completion Date and continuing each calendar year
throughout the Term of this Agreement and so long as no Event of Default by Company then
exists, Company may submit to City for approval a request for the Annual Payment based upon
the Tax Revenues received for the previous year ("Annual Payment Request"). The Annual
Payment Request shall be in the form attached hereto as EXHIBIT D and shall be accompanied
by a Jobs Creation Certification for the prior twelve (12) month period. Upon approval of the
Annual Payment Request, City shall pay the Annual Payment to Company by the later to occur
of (i) sixty (60) days after City's receipt of the Annual Payment Request, or (ii) sixty (60) days
after City receives Company's annual sales tax report from the State Comptroller's office for the
preceding calendar year.
(2) City is unconditionally obligated to make each Annual Payment solely
from the Tax Revenues through the Term of this Agreement, except in an Event of Default by
Company, and City may not suspend or discontinue any Annual Payment except in an Event of
Default by Company. Except as otherwise expressly set forth in this Agreement, payment of the
Annual Payment is not subject to any reduction, whether offset or otherwise. City shall never be
obligated to make any payment to Company from any funds other than the Tax Revenues
generated by the Project.
C. Confidentiality. City acknowledges that the information regarding sales taxes
generated by the Project is commercial or financial information which is proprietary and
confidential, the disclosure of which could cause competitive harm to Company and/or its
tenants, subtenants and/or licensees, as applicable. To the maximum extent permitted by law,
City and elected officials, officers and employees, and its agents or contractors retained to
perform economic development services for City (the "City Parties") (i) shall maintain the
confidentiality of all sales tax information filed by Company and/or its tenants, subtenants and/or
licensees, as applicable, with the State of Texas and all other information regarding the sales tax
revenue generated by the Project; (ii) shall treat as confidential any other proprietary or financial
information of Company and/or its tenants, subtenants and/or licensees and shall not release any
of the foregoing information to the public, unless required by law or court order. If and to the
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extent City is required to notify Company of requests or court orders to release such information,
City shall do so in accordance with the provisions of Article VIII, Section B below.
ARTICLE VII
DEFAULT AND REMEDY
A. Payment Default. City agrees that its failure to pay any Annual Payment when
due is an Event of Default ("Payment Default") and that Company shall be entitled to any and
all of the remedies available in this Article or otherwise at law or equity.
B. Jobs Creation Default. If Company does not satisfy the Jobs Creation
Certification for any year during the Term of this Agreement (commencing on the Completion
Date) for any reason other than Force Majeure or a Casualty and if such failure continues for
thirty (30) days after written notice to Company ("Jobs Creation Default"), then, City may, as
its sole and exclusive remedy, beginning on the date which is thirty (30) days after such written
notice, reduce the amount of the balance of the Maximum Grant Amount to be paid to Company
thereafter by an amount equal to the percentage by which Company has failed to retain the
minimum number of Full-time Jobs and Part-time Jobs over the entire Term. A reduction in the
Maximum Grant Amount as a result of Company's failure to satisfy the Jobs Creation
Certification in a year is irrevocable and may not be recouped by Company at any time,
regardless of whether Company satisfies the Jobs Creation Certification in a subsequent year.
C. General Events of Default. A Party will be deemed in default under this
Agreement, which will be deemed a breach and default hereunder, if such Party fails to
materially perform, observe, or comply with any of the commitments, covenants, agreements, or
obligations under this Agreement or if any of its representations stated in this Agreement or any
certifications made pursuant to this Agreement are false (an "Event of Default").
D. Notice of Default. If a Party fails to perform any of its obligations hereunder in
substantial compliance with this Agreement (other than City's financial obligations, which shall
be in strict compliance) or if any of a Party's representations contained in this Agreement or
certifications made pursuant to this Agreement are false in any material respect the same shall
not constitute a default or breach under this Agreement unless and until the Party claiming such
failure (the "Complaining Party") shall give written notice demanding performance (a "Default
Notice") to the Party alleged to have failed to perform (the "Defaulting Party"). If the
Defaulting Party fails to commence performance to the reasonable satisfaction of the
Complaining Party within thirty (30) days of the receipt by the Defaulting Party of such Default
Notice and cure such failure within sixty (60) days after receipt of such Default Notice (or such
longer period as may be necessary in the event of a failure not reasonably susceptible of cure
within sixty (60) days so long as the Defaulting Party is diligently pursuing such cure and further
provided that there shall be no extension of such sixty (60) day period for a Payment Default), it
shall constitute an "Event of Default" under this Agreement.
E. Conditions. Except as provided otherwise in this Agreement, Company's failure
to satisfy the conditions for an Annual Payment as provided in Article IV, Article V, and Article
VI shall not constitute an Event of Default, but City will have no obligation to make any Annual
Payment as long as any required conditions remain unsatisfied.
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F. Remedies. Company shall have all rights and remedies to which it is entitled
under this Agreement or otherwise at law or equity for an Event of Default by City. City, as its
sole and exclusive remedy, except as expressly provided otherwise herein, for an Event of
Default by Company, may terminate this Agreement by written notice to Company. City's
termination of this Agreement for an Event of Default by Company will terminate City's
obligation to make any payment under this Agreement.
G. Force Majeure. 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 (except for a Payment Default) 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
tornadoes] labor action, strikes or similar acts) the time for such performance shall be extended
by the amount of time of such delay ("Force Majeure").
ARTICLE VIII
GENERAL PROVISIONS
A. Time of the Essence. Time is of the essence in the performance of 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, including, without limitation, subject to Company's compliance with all applicable
laws, expeditiously processing permits and approvals to facilitate Company's timely procurement
of all entitlements required for the Project.
B. Notices. Any notice or other communication ("Notice") given under this
Agreement must be in writing, and may be given: (i) by depositing the Notice in the United
States Mail, postage paid, certified, and addressed to the party to be notified with return receipt
requested; (ii) by personal delivery of the Notice to the party; (iii) by depositing the notice with
Federal Express or another nationally recognized courier service for next day delivery; or (iii) by
confirmed facsimile, provided that a copy of the Notice is also given in one of the manners
specified in (i), (ii) or (iii). Notice will be effective upon receipt or refusal of delivery by the
party to be notified. For the purposes of Notice, the addresses of the Parties will, until changed
as provided below, be as follows:
If to Company:
Costco Wholesale Corporation
999 Lake Drive
Issaquah, Washington 98027
Attn: Property Management
Fax: (425) 313-8105
With a copy to:
Thompson & Knight LLP
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One Arts Plaza
1722 Routh Street, Suite 1500
Dallas, TX 75201
Attn: Ray T. Khirallah
Fax: (214) 969-1751
If to City:
City of Pearland, Texas
3519 Liberty Dr.
Pearland, TX 77581
With a copy to:
Darrin Coker, City Attorney
City of Pearland, Texas
3519 Liberty Dr.
Pearland, TX 77581
A Party may designate a different address at any time by giving Notice to the other
Parties.
C. Amendments and Waivers. Any provision of this Agreement may be amended
or waived if such amendment or waiver is in writing and is approved by Company and City. No
course of dealing on the part of Company or City nor any failure or delay by Company or City
with respect to exercising any right, power or privilege pursuant to this Agreement shall operate
as a waiver thereof, except as otherwise provided in this Section C.
D. Invalidity. In the event that any of the provisions contained in this Agreement
shall be held unenforceable in any respect, such unenforceability shall not affect any other
provisions of this Agreement and, to that end, all provisions, covenants, agreements or portions
of this Agreement are declared to be severable.
E. Successors and Assigns. No Party shall have the right to assign its rights under
this Agreement or any interest herein without the prior written consent of the other Parties,
except that Company may assign its rights and responsibilities hereunder to (i) a lending
institution of all of Company's rights hereunder as security for repayment of one or more loans
to finance the construction or ownership of any component of the Property, (ii) any related,
affiliated or subsidiary entity (including without limitation a successor by merger or purchaser of
substantially all of its assets), to which its rights to proceed with development and/or operation of
the Project are transferred or (iii) any person or entity to which Company assigns, subleases, or
otherwise conveys its interest in the Property, provided that any assignee under (ii) or (iii) agrees
in writing to assume Company's obligations under this Agreement. City shall not unreasonably
withhold its written consent. The City Representative, or his or her designee, may consent to a
qualifying assignment under this Section E on behalf of City.
F. Exhibits, Headings, Titles of Articles, Sections and Subsections. The exhibits
attached to this Agreement are incorporated herein and are deemed a part of this Agreement for
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the purposes stated herein, except that in the event of any conflict between any of the provisions
of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall
prevail. All titles or headings are only for the convenience of the Parties and shall not be
construed to have any effect or meaning as to the agreement between the Parties hereto. Any
reference herein to a section or subsection will be considered a reference to such section or
subsection of this Agreement unless otherwise stated. Any reference herein to an exhibit will be
considered a reference to the applicable exhibit attached hereto unless otherwise stated.
G. Applicable Law. This Agreement is a contract made under and shall be
construed in accordance with and governed by the laws of the United States of America and the
State of Texas, and any actions concerning this Agreement shall be brought in either the State
Courts of Brazoria County, Texas, or the United States District Court for the Southern District of
Texas.
H. Entire Agreement. This Agreement represents the final agreement between the
Parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the Parties. There are no unwritten oral agreements between the Parties.
I. Approval by the Parties. Whenever this Agreement requires or permits approval
or consent to be given by either of the Parties, the Parties agree that such approval or consent
will not be unreasonably withheld or delayed.
J. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which constitute but one and the same agreement.
K. Interpretation. This Agreement has been jointly negotiated by the Parties and
shall not be construed against a Party because that Party may have assumed primary
responsibility for the drafting of this Agreement.
L. Conflicts with Ordinances. The Parties agree that, in the event of a conflict
between the provisions of this Agreement and any City ordinance or regulation by any other
agency over which City has control, whether heretofore or hereafter adopted, the provisions of
this Agreement shall govern matters addressed by this Agreement.
[EXECUTION PAGE FOLLOWS]
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IN TESTIMONY OF WHICH this instrument has been executed in multiple
counterparts, each of equal dignity and effect, on behalf of Company and City, effective as of the
Effective Date defined herein.
CITY:
CITY OF PEARLAND, TEXAS
a Texas home -rule municipal corporation
f er
Date:
COMPANY:
COSTCO WHOLESALE
a Washin
By:
Name:
SVP/Asst. Secretary
Title:
AB41121 t
010
PORATION,
Richard J. Olin
APPROVED AS TO FORM:
City Attorney
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EXHIBIT A
DESCRIPTION OF PROPERTY
BEING a tract of land situated in the H.T. & B.R.R. COMPANY SURVEY, ABSTRACT NO.
300, SECTION 81, City of PEARLAND, BRAZORIA County, Texas and being a portion of a
tract (Part One) of land as described in deed to Parkside 59-288, Ltd., recorded in Document No.
2011012491, Deed Records, Brazoria County, Texas, and being more particularly described as
follows:
COMMENCING at the Northeast end of a corner clip at the intersection of the Westerly right-of-
way of Business Center Drive, a variable width right-of-way, with the Northerly right-of-way of
County Road 59, a variable width right-of-way, said point being the beginning of a curve to the
right having a radius of 746.20 feet, a central angle of 16 deg 58 min 22 sec, a chord bearing of
North 09 deg 03 min 23 sec East and a chord length of 220.24 feet;
THENCE along the Westerly right-of-way of said Business Center Drive and along said curve to
the right, an arc distance of 221.056 feet to an "X" cut in concrete set for the Northeast corner of
Lot 2 (Tract C-4) of Business Center Planned Development, an addition to the City of Pearland,
Brazoria County, Texas, according to the Plat thereof recorded in County Clerk's Instrument No.
2013033688, Official Public Records, Brazoria County, Texas, said point being the POINT OF
BEGINNING;
THENCE South 86 deg 40 min 08 sec West, departing the westerly right-of-way of said
Business Center Drive, a distance of 289.01 feet to a 1/2 inch iron rod with red plastic cap
stamped "W.A.I." set for corner;
THENCE North 03 deg 19 min 52 sec West, a distance of 15.00 feet to an "X" cut in concrete set
for corner;
THENCE South 86 deg 40 min 08 sec West, a distance of 284.42 feet to a 5/8 inch iron rod with
plastic cap stamped "IDS" found for corner;
THENCE North 03 deg 18 min 28 sec West, a distance of 1,105.81 feet to a 1/2 -inch iron rod
with a red plastic cap stamped "W.A.I." set for corner;
THENCE North 86 deg 41 min 32 sec East, a distance of 581.62 feet to a 1/2 -inch iron rod with
a red plastic cap stamped "W.A.I." set for corner;
THENCE North 03 deg 16 min 22 sec West, a distance of 212.33 feet to a 1/2 -inch iron rod with
a red plastic cap stamped "W.A.I." set for corner;
THENCE North 86 deg 42 min 33 sec East, a distance of 69.23 feet to a 5/8 inch iron rod with
plastic cap stamped "IDS" found for corner on the Westerly right-of-way of said Business Center
Drive;
THENCE along the Westerly right-of-way of Business Center Drive, the following:
Exhibit A
501724 000075 14103543.2
South 03 deg 16 min 22 sec East, a distance of 1,025.77 feet to an "X" cut in concrete
found for corner, said point being the beginning of a curve to the right having a radius of
750.00 feet, a central angle of 12 deg 57 min 07 sec, a chord bearing of South 03 deg 12
min 12 sec West and a chord length of 169.18 feet;
Along said curve to the right, an arc distance of 169.54 feet to a 5/8 -inch iron rod with
plastic cap stamped "IDS" found for corner, said point being the beginning of a non -tangent
curve to the right having a radius of 686.20 feet, a central angle of 05 deg 32 min 24 sec, a
chord bearing of South 18 deg 57 min 41 sec West and a chord length of 66.32 feet;
Along said non -tangent curve to the right, an arc distance of 66.35 feet to a 5/8 -inch iron
rod with plastic cap stamped "IDS" found for corner;
South 21 deg 45 min 11 sec West, a distance of 13.71 feet to a 5/8 -inch iron rod with
plastic cap stamped "IDS" found for corner, said point being the beginning of a curve to the
left having a radius of 746.20 feet, a central angle of 05 deg 24 min 59 sec, a chord bearing
of South 19 deg 01 min 24 sec West and a chord length of 70.51 feet;
THENCE continuing along the westerly right-of-way of said Business Center Drive and said
curve to the left, an arc distance of 70.54 feet to the POINT OF BEGINNING.
CONTAINING within these metes and bounds 16.798 acres or 731,717 square feet of land, more
or less.
14
501724 000075 14103543.2
RESOLUTION NO. R2015-56
Exhibit "B"
EXHIBIT B
FORM OF JOBS CREATION CERTIFICATION
City of Pearland
3519 Liberty Dr.
Pearland, TX 77581
Attention: Darrin Coker
Re: ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
PEARLAND, TEXAS AND COSTCO WHOLESALE CORPORATION; JOBS
CREATION CERTIFICATION
This Jobs Creation Certification is being delivered by Costco Wholesale
Corporation (the "Company") in connection with that certain Economic Development
Agreement between the City of Pearland, Texas ("City") and Company effective
, 2015 (the "Agreement"). All terms used herein have the meanings ascribed to
them in the Agreement unless otherwise defined herein.
USE THE FOLLOWING FOR THE INITIAL JOBS CREATION CERTIFICATION:
[1. The undersigned authorized officer of Company hereby certifies to City that as of
the Completion Date, Company has created and retained Full-time Jobs [, which
calculation of such Full-time Jobs includes Part-time Jobs as provided in the following
sentence]. As provided in the Agreement, the term "Full-time Jobs" as means all full-time
positions in management, retail, and service which provide a regular work schedule of at
least thirty-five (35) hours per week; provided that two (2) positions providing part-time
work schedules for at least thirty-five (35) hours per week is equivalent to one Full-time
Job.
2. The undersigned authorized officer of Company hereby certifies to City that as of
the Completion Date, Company has created and retained Part-time Jobs[, which
calculation of such Part-time Jobs includes Full-time Jobs as provided in the following
sentence]. As provided in the Agreement, the term "Part-time Jobs" as means all positions
in management, retail, and service which provide a schedule of less than thirty-five (35)
hours per week; provided that one Full-time Job is equivalent to two (2) Part-time Jobs.]
3. No Part-time Job included in the calculation of Full-time Jobs in Paragraph 1
above, if any, was included in the calculation of Part-time Jobs in Paragraph 2 above, and
No Full-time Job included in the calculation of Part-time Jobs in Paragraph 2 above, if any,
was included in the calculation of Full-time Jobs in Paragraph 1 above.
USE THE FOLLOWING FOR SUBSEQUENT JOBS CREATION CERTIFICATION:
[1. The undersigned authorized officer of Company hereby certifies to City that during
the twelve (12) months prior to the date of this Jobs Creation Certification, Company has
retained Full-time Jobs[, which calculation of such Full-time Jobs includes Part-
time Jobs as provided in the following sentence]. As provided in the Agreement, the term
"Full-time Jobs" as means all full-time positions in management, retail, and service which
Exhibit B
501724 000075 14103543.2
provide a regular work schedule of at least thirty-five (35) hours per week; provided that
two (2) positions providing part-time work schedules for at least thirty-five (35) hours per
week is equivalent to one Full-time Job.
2. The undersigned authorized officer of Company hereby certifies to City that during
the twelve (12) months prior to the date of this Jobs Creation Certification, Company has
created and retained Part-time Jobs[, which calculation of such Part-time Jobs
includes Full-time Jobs as provided in the following sentence]. As provided in the
Agreement, the term "Part-time Jobs" as means all positions in management, retail, and
service which provide a schedule of less than thirty-five (35) hours per week; provided that
one Full-time Job is equivalent to two (2) Part-time Jobs.
3. No Part-time Job included in the calculation of Full-time Jobs in Paragraph 1
above, if any, was included in the calculation of Part-time Jobs in Paragraph 2 above, and
No Full-time Job included in the calculation of Part-time Jobs in Paragraph 2 above, if any,
was included in the calculation of Full-time Jobs in Paragraph 1 above.
The undersigned hereby certifies that I am a duly authorized representative of Company
and am duly authorized to execute this Jobs Creation Certification.
ATTEST: COSTCO WHOLESALE CORPORATION
BY:
NAME — SIGNATURE
NAME — PRINTED
TITLE DATE
Exhibit B
501724 000075 14103543.2
EXHIBIT C
FORM OF COST CERTIFICATION
City of Pearland
3519 Liberty Dr.
Pearland, TX 77581
Attention: Darrin Coker
Re: ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
PEARLAND, TEXAS AND COSTCO WHOLESALE CORPORATION; COST
CERTIFICATION
This Cost Certification is being delivered by Costco Wholesale Corporation
("Company") in connection with that certain Economic Development Agreement between
the City of Pearland, Texas (the "City") and Company effective as of , 2015 (the
"Agreement"). All terms used herein have the meanings ascribed to them in the
Agreement unless otherwise defined herein.
1. The undersigned authorized officer of Company hereby certifies to City that
the Completion Date occurred on , 20 . Attached hereto as Exhibit A is
a true and complete copy of the Certificate of Occupancy for the Project.
2. The undersigned authorized officer of Company hereby certifies to City that
Company has incurred Project Costs of at least $30,000,000.
The undersigned hereby certifies that I am a duly authorized representative of
Company and am duly authorized to execute this Cost Certification.
ATTEST: COSTCO WHOLESALE CORPORATION
BY:
NAME — SIGNATURE
NAME — PRINTED
TITLE DATE
Exhibit C
501724 000075 14103543.2
STATE OF
COUNTY OF
Sworn to and subscribed to before me on the day of ,
20 , by
NOTARY NAME
NOTARY PUBLIC STATE OF
APPROVED BY THE CITY OF PEARLAND:
By: Date:
City Representative
Exhibit A to Form of Cost Certification
Certificate of Occupancy for the Project
[to be attached]
Exhibit C
501724 000075 14103543.2
EXHIBIT D
FORM OF ANNUAL PAYMENT REQUEST
City of Pearland
3519 Liberty Dr.
Pearland, TX 77581
Attention: Darrin Coker
Re: ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
PEARLAND, TEXAS AND COSTCO WHOLESALE CORPORATION; ANNUAL
PAYMENT REQUEST
This Annual Payment Request is being delivered by Costco Wholesale Corporation
(the "Company") in connection with that certain Economic Development Agreement
between the City of Pearland, Texas ("City") and Company effective , 2015 (the
"Agreement"). All terms used herein have the meanings ascribed to them in the
Agreement unless otherwise defined herein.
1. The undersigned authorized officer of Company hereby requests City to
make an Annual Payment of the Grant, and Company has submitted to City all invoices
and supporting documentation required and requested for City's approval of Company's
request.
2. The undersigned authorized officer of Company hereby certifies to City that
of the total Maximum Grant Amount of $750,000, (i) [Company has received the following
prior Annual Payments: [ADD AS APPLICABLE] Annual Payment received
20 in the amount of $ ; Annual Payment received , 20_ in
the amount of $ ; and (ii)] as of the date of this Annual Payment Request,
the unpaid balance of the Maximum Grant Amount is $
Exhibit D
501724 000075 14103543.2
The undersigned hereby certifies that I am a duly authorized representative of Company
and am duly authorized to execute this Annual Payment Request.
ATTEST: COSTCO WHOLESALE CORPORATION
BY:
NAME — SIGNATURE
NAME — PRINTED
TITLE DATE
With a copy to:
City Attorney
City of Pearland, Texas
3519 Liberty Dr.
Pearland, TX 77581
APPROVED BY THE CITY OF PEARLAND:
By: Date:
City Representative
Exhibit D
501724 000075 14103543.2
EXHIBIT E
FORM OF WAIVER OF SALES TAX CONFIDENTIALITY
Texas Comptroller
Waiver of Sales Tax Confidentiality
Date: 20
The undersigned authorizes the Texas Comptroller of Public Accounts to release sales tax
information to the City of Pearland, Texas pertaining to the taxpayer indicated below. I
understand that this waiver applies only to our wholesale/retail facility located at
, Texas.
Please print or type the following information as shown on your Texas Sales Tax permit:
Name of Taxpayer Listed on Texas Sales Tax Permit
Name Under Which Taxpayer is Doing Business (d/b/a or Outlet Name)
Taxpayer Mailing Address
Physical Location of Business Permitted for Sales Tax
Texas Taxpayer ID Number Tax Outlet Number
(As Shown on Texas Sales Tax Permit)
Authorized Signature*
Print Name of Authorized Signature
Position of Authorized Signature
Phone # of Authorized Signature
*The authorized signature must be that of an owner, officer, director, partner, or agent
authorized to sign a Texas Sales Tax Return. If you have any questions concerning this waiver
of confidentiality, please contact the Texas Comptroller of Public Accounts at 1 (800) 531-5441.
Exhibit E
501724 000075 14103543.2