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HomeMy WebLinkAboutResolution No. 2014-022CITY OF THE COLONY, TEXAS RESOLUTION NO. 2014- 022 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING A REIMBURSEMENT AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY, TEXAS, THE BOARD OF DIRECTORS OF THE TAX INCREMENT REINVESTMENT ZONE NUMBER TWO, CITY OF THE COLONY, TEXAS, AND TRIBUTE PARTNERS, L.P., A TEXAS LIMITED PARTNERSHIP, PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of The Colony, Texas (hereinafter referred to as the "City'), pursuant to Chapter 311 of the Texas Tax Code, as amended (hereinafter referred to as the "Act"), may designate a geographic area within the City as a tax increment reinvestment zone if the area satisfies the requirements of the Act; and WHEREAS, on December 3, 2013, pursuant to and as required by the Act, the governing body of the City (hereinafter referred to as the "City Council") approved and adopted by Ordinance No. 2013-2033, a Preliminary Reinvestment Zone Financing Plan for Tax Increment Reinvestment Zone Number Two, City of The Colony, Texas, for a proposed tax increment reinvestment zone containing approximately 992.220 acres of property located within the City of The Colony, Texas; and WHEREAS, notice of the public hearing on the creation of the proposed zone was published in the official newspaper of the City at least seven (7) days prior to the public hearing held on December 3, 2013; and WHEREAS, at the public hearing held on December 3, 2013, interested persons were allowed to speak for or against the creation of the zone, the boundaries of the zone, and the concept of tax increment financing, and owners of property in the proposed zone were given a reasonable opportunity to protest the inclusion of their property in the zone; and WHEREAS, after the public hearing on December 3, 2013, the City Council approved Ordinance No. 2013-2034, establishing Reinvestment Zone Number Two, City of The Colony, Texas; and WHEREAS, on April 15, 2014, the Board of Directors for Reinvestment Zone Number Two, City of The Colony, Texas, approved the Final Project and Reinvestment Zone Financing Plan; and WHEREAS, the Board and the City of The Colony, Texas, desire to enter into a Reimbursement Agreement, a copy of which is attached hereto as Exhibit A, and is incorporated herein for all purposes, with Tribute Partners, L.P., a Texas limited partnership addressing the payment and reimbursement of certain TIF Project Costs. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: SECTION 1. The findings set forth above are incorporated into the body of this Resolution as if fully set forth herein. SECTION 2. The City Council for the City of The Colony, Texas, hereby approves the Reimbursement Agreement a copy of which is attached hereto as Exhibit A and is incorporated herein for all purposes. SECTION 3. If any section, article paragraph, sentence, clause, phrase or word in this Resolution, or application thereto to any persons or circumstances, is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Resolution; and the City Council hereby declares it would have passed such remaining portions of this Resolution despite such invalidity, which remaining portions shall remain in fiill force and effect. SECTION 4. This Resolution shall become effective immediately upon passage. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THIS THE 15TH day of APRIL, 2014. JoVMcCourrv,6Mavor ATTE T: 0,4 A4, �s �-��< Christie Wilson, City Secretary... T �i • �. N : EAL APPROVED AS TO FORM: i rEX a eff Moore ity Attorney ExhihitA Reimbursement Agreement REIMBURSEMENT AGREEMENT FOR TAX INCREMENT REINVESTMENT ZONE NUMBER TWO, CITY OF THE COLONY, TEXAS This Reimbursement Agreement for Reinvestment Zone Number Two, City of The Colony, Texas (as amended, this "Agreement") is made among the CITY OF THE COLONY, TEXAS, a Texas home -rule municipality (the "City"); the Board of Directors (the "Board") of REINVESTMENT ZONE NUMBER TWO, CITY OF THE COLONY, TEXAS, a tax increment reinvestment zone (the "Zone") created by the City Ordinance No. 2013-2034 approved by the City Council on December 3, 2013, pursuant to Chapter 311 of the Texas Tax Code, as amended (the "Act"); and TRIBUTE PARTNERS, L.P., a Texas limited partnership (the "Developer") (each party to this Agreement is individually referred to as a "Party" and collectively as the "Parties"). 1. WHEREAS, on December 3, 2013, the City Council of the City (the "City Council") passed Ordinance No. 2013-2033 approving the Preliminary Project and Reinvestment Zone Financing Plan for Tax Increment Reinvestment Zone Number Two, City of The Colony, Texas (the "Preliminary Plan"); and 2. WHEREAS, on December 3, 2013, the City Council passed Ordinance No. 2013-2034 creating the Zone; and 3. WHEREAS, on April 15, 2014, the Board recommended and the City Council passed Ordinance No. 2014 - approving the Project and Reinvestment Zone Financing Plan for Tax Increment Reinvestment Zone Number Two, City of The Colony, Texas (the "Project Plan"); and 4. WHEREAS, the Project Plan supersedes in its entirety the Preliminary Plan; and 5. WHEREAS, the Developer may construct TIF Projects (hereinafter defined) on approximately 992.220 acres located within the corporate limits of the City, which property is described on Exhibit A and depicted by the boundary map on Exhibit A-1 (the "Property"); and 6. WHEREAS, Section 311.010(b) of the Act provides that the Board and the City may enter into agreements as the City Council and the Board consider necessary or convenient to implement the Project Plan and achieve it's purposes; and 7. WHEREAS, Section 311.010(h) of the Act authorizes the Board, subject to the approval of the City Council, to establish and provide for the administration of one or more programs for the public purposes of developing and diversifying the economy of the Zone, eliminating unemployment and underemployment in the Zone, and developing or expanding transportation, business, and commercial activity in the Zone, including programs to make grants and loans from the tax increment fund of the Zone in an aggregate amount not to exceed the amount of the tax increment produced by the municipality and paid into the tax increment fund for the Zone for activities that benefit the Zone and stimulate business and commercial activity in the Zone. For purposes of Section 311.010(h), on approval of the municipality or county, the board of directors of the Zone has all the powers of a municipality under Chapter 380, Texas Page 1 2155.011\37644.8 Local Government Code, as amended. The approval required by Section 311.010(h) may be granted in an ordinance, in the case of a zone designated by a municipality, or in an order, in the case of a zone designated by a county, approving a project plan or reinvestment zone financing plan or approving an amendment to a project plan or reinvestment zone financing plan; and 8. WHEREAS, the City Council and the Board have determined that it is in the best interest of the Zone and the City to contract with the Developer to provide for the efficient and effective implementation of the Project Plan; and 9. WHEREAS, the Developer may construct or cause to be constructed TIF Projects which will benefit the Zone, the Property, and the City; and 10. WHEREAS, the City and the Board are duly authorized, created, and existing in good standing under the laws of the State of Texas and are duly qualified and authorized to carry on the governmental functions and operations as contemplated by this Agreement; and 11. WHEREAS, on April 15, 2014, by Resolution No. 2014- , the City Council authorized the Board and the City to enter into this Agreement and to thereby dedicate revenues from the Tax Increment Fund (hereinafter defined) to satisfy the obligations of this Agreement. NOW THEREFORE, for and in consideration of the agreements contained herein, and other good and valuable consideration the receipt and sufficiency of which are acknowledged, the City, the Board, and Developer agree as follows: SECTION 1. FINDINGS INCORPORATED. The foregoing recitals are hereby incorporated into the body of this Agreement and shall be considered part of the mutual covenants, consideration, and promises that bind the Parties. SECTION 2. TERM. This Agreement shall be effective as of the Effective Date and shall terminate on the earlier of: (1) December 3, 2038, (the 25th anniversary of the date the Zone was created); or (2) the date on which all TIF Project Costs have been reimbursed to the City and the Developer in accordance with this Agreement. SECTION 3. DEFINITIONS. The following words and phrases shall have the following meanings when used in this Agreement. Unless otherwise specified, the term "Section" shall mean a section of this Agreement, and the term "Exhibit" shall mean an exhibit attached to and made a part of this Agreement. (a) Act is defined in the introductory paragraph. (b) Agreement is defined in the introductory paragraph. Page 2 2155.011\37644.8 (c) Board is defined in the introductory paragraph. For the purposes of this Agreement, the Board's address is 6800 Main Street, The Colony, Texas 75056. (d) Captured Appraised Value means the total taxable value of all real property taxable by the City and located in the Zone for any given year less the Tax Increment Base for the City. (e) City is defined in the introductory paragraph. For the purposes of this Agreement, the City's address is 6800 Main Street, The Colony, Texas, 75056. (f) City Tax Increment means the lesser of (1) seventy percent (70%) of the Tax Increment for the City, or (2) the amount of total property taxes levied by the City for the year on the real property in the Zone after payment of the Wynnwood Tax Rebates and Wynnwood/MSW Tax Rebates. (g) Developer is defined in the introductory paragraph. For the purposes of this Agreement, the Developer's address is Matthews Southwest, 1660 S. Stemmons Freeway, Suite 100, Lewisville, Texas 75067-6315. Attn. Kristian Teleki. Telephone: (972) 221-1199. (h) Effective Date means the latest date this Agreement is executed by the Parties. (i) Event of Default is defined in Section 8. 0) Feasibility Study means the Economic Feasibility Study, TIF Reinvestment Zone Number Two, City of The Colony, Texas, dated October 2013, prepared by Stein Planning, LLC. (k) Preliminary Plan is defined in WHEREAS clause No. 1. (1) Project Plan is defined in WHEREAS clause No. 3. (m) Property is defined in WHEREAS clause No. 5. (n) Schedule 4 means Schedule 4, "TIF Project Costs" attached to the Feasibility Study and attached as Exhibit B. (o) Tax Increment for the City means, for each year, the amount of property taxes levied by the City for that year on the Captured Appraised Value of real property taxable by the City and located in the Zone. (p) Tax Increment Base for the City means the total taxable value of all real property taxable by the City and located in the Zone as of January 1, 2011 (q) Tax Increment Fund means the tax increment fund required by the Act and by Ordinance No. 2013-2034, and any accounts held therein, for the Zone into which: (1) the City is required to deposit the City Tax Increment; (2) the City deposits the proceeds from the issuance Page 3 2155.011\37644.8 of bonds, if any, secured by the Tax Increment Fund; and (3) the City is otherwise required by the Act to deposit any funds (r) Term is defined in Section 2. (s) TIF Projects are defined in Section 4. (t) TIF Project Costs are defined in Section 5. (u) "Wynnwood Tax Rebates" means the ad valorem tax incentives (including, but not limited to, tax rebates and economic development "380grants") granted by the Wynnwood Developer Agreement. (v) "Wynnwood/MSW Tax Rebates" means the ad valorem tax incentives (including, but not limited to tax rebates and economic development "380 grants") granted by the Wynnwood/MSW Developer Agreement. (w) "Wynnwood Developer Agreement" means the Developer's Agreement Between City of The Colony and Wynnwood Peninsula Partners, L.P. effective March 20, 2008, between the City and Wynnwood Peninsula Partners, L.P., a Texas limited partnership, as amended. (x) "Wynnwood/MSW Development Agreement" means the Developer's Agreement Between City of The Colony and Wynnwood Peninsula, Ltd and MSW Wynnwood LLC effective April 19, 2004, among the City, Wynnwood Peninsula, Ltd., and MSW Wynnwood LLC, as amended. (y) Zone is defined in the introductory paragraph. SECTION 4. TIF PROJECTS. Development of the Property will include (i) the construction of the TIF Projects described in this Section 4, and (ii) twenty percent (20%) of the cost to staff, operate, and maintain the fire station and police substation described below. For purposes of this Section, "construction" shall include engineering, geotechnical work, earthwork, wet and dry utilities, and related soft costs. (a) Elevated Water Storage Tank. An elevated water storage tank to provide additional water capacity to the higher Wynnwood pressure plane in the City. The tank will be made of steel with a 1.0 million gallon storage capacity and will be located at the Wynnwood Pump Station on Lebanon Road. Construction will include interior and exterior coatings, foundation, associated piping, and modifications to the supervisory control and data acquisition (SCADA) system. (b) Fire Station and Police Substation. A fire station to provide fire and emergency medical services and reduce response times to fire, rescue, and medical emergencies in the Wynnwood/Tribute portion of the city. The fire station will be designed to provide 24-hour service, housing firefighter/paramedics and apparatus around the clock. The fire station will Page 4 2155.011\37644.8 include four drive-through bays for equipment and living and support quarters for 10 to 12 full- time personnel. The station will also include equipment. The police substation will be a subset of the fire station with two offices, a holding cell, and a lobby with a garage. It is anticipated that the station (for which the size and location of the building and the size of the site will be mutually agreed upon by the City and the Developer) will be in the future town center and that construction will begin in the year 2019. (c) Staffing Operation, and Maintenance. Although not part of TIF Project Costs, twenty percent (20%) of the cost to staff, operate, and maintain the fire station and police substation shall be eligible for reimbursement to the City from the Tax Increment Fund. Unless expressly agreed otherwise by the City and the Developer, the right of the City to be reimbursed from the Tax Increment Fund shall be subordinate to all rights of the Developer to be reimbursed from the Tax Increment Fund pursuant to the Project Plan and this Agreement. (d) Roadway and Infrastructure Improvements. Roadways, including street lighting, signalization, sidewalks, hike/bike trails, irrigation, landscaping, and related water and sewer infrastructure (and, in the case of roadways around the LEISD school site, including underground drainage conduit that will combine with a storm water storage basin connected to the existing storm water inlet in Stonefield), as follows: (1) Bridge Lane (as a 37 -ft collector) from Lebanon Road to the marina and park; (2) Prescott (as a 37 -ft collector) around the LEISD school site; (3) Oxford (as a 37 -ft collector) around the LEISD school site; (4) the extension of Stonefield (as a 37 -ft collector) around the LEISD school site; (5) the realignment and replacement of a portion of Boyd Road as determined by the City and the Developer based on a traffic study prepared by the Developer; (6) a boulevard for the Lakeside Entertainment District; and (7) a roadway connecting Bridge Lane to the marina and park. Construction of the roadway and infrastructure improvements began in year 2013. (e) Marina and Park Improvements. Marina and park improvements may include marina excavation, a fitness center, an all-purpose sports field, tennis courts, sand volleyball courts, playground, pavilion with restrooms, boat ramp, wave attenuators, courtesy dock, pier, beach, trailhead, parking, sidewalks, hike/bike trail, fencing, irrigation, landscaping, and lighting for the sports field, tennis courts, and parking areas. It is anticipated that construction of the marina and park improvements will begin in the year 2016. (f) Lakeside Entertainment District Improvements. An amphitheater within the Lakeside Entertainment District, including restrooms, parking, water and sewer infrastructure, sidewalks, fencing, irrigated landscaping, and lighting. It is anticipated that construction of the lakeside entertainment improvements will begin in the year 2018. SECTION 5. TIF PROJECT COSTS. (a) The total estimated "TIF Project Costs" are $45,991,883. The TIF Project Costs for the TIF Projects described in Section 4 are estimated, in out -year, escalated dollars (as shown on Schedule 4), to be $24,845,485. The subtotals for the categories of capital improvements shown on Schedule 4 may vary by year and in amount so long as the total for all the categories does not exceed $24,845,485. By way of example, the actual cost of the Roadway and Infrastructure Improvements may exceed the estimate shown on Schedule 4 (i.e., $8,511,929) so Page 5 2155.011\37644.8 long as the cumulative costs of the remaining categories of capital improvements shown on Schedule 4 are reduced by the amount of the excess so that the total costs for all categories of capital improvements shown on Schedule 4 does not exceed $24,845,485. If the actual cost to construct the Elevated Water Storage Tank exceeds $2,884,000 (whether constructed by the City or the Developer) or if the actual cost to construct the fire station and police substation exceeds $7,224,016 (whether constructed by the City or the Developer), then the total estimated TIF Project Costs and TIF Project Costs for the TIF Projects set forth in this Section 5(a) and on Schedule 4 shall be increased by the amounts by which the actual costs exceed the estimates. (b) In addition to the TIF Project Costs for the TIF Projects described in Section 5(a), TIF Project Costs include: (1) an additional estimated amount of $20,315,253 representing interest on TIF Project Costs paid or incurred to construct the TIF Projects at the rate for the Developer of 6.50% per annum simple interest and at a rate for the City comparable to the interest rate on the City's general obligation debt, all such interest shall begin to accrue when the costs are paid or incurred and shall continue until the Developer or the City has been fully reimbursed for the corresponding TIF Project Cost, or portion thereof, including interest; plus (2) an additional estimated amount in out -year, escalated dollars (as shown on Schedule 4) of $831,146 representing the costs paid or incurred by the City in the administration of the Zone. The amount of interest will be increased proportionally if the TIF Project Costs for the TIF Projects are increased as provided in Section 5(a). SECTION 6. METHOD OF FINANCING. (a) The Developer may construct from time to time as the Developer, in its sole judgment, determines to be necessary, the following TIF Projects: the "Roadway and Infrastructure Improvements" described in Section 4(c), the "Marina and Park Improvements" described in Section 4(d), and the "Lakeside Entertainment District Improvements" described in Section 4(e). if the Developer constructs such improvements, the Developer shall be reimbursed for the corresponding TIF Project Costs of such improvements from the Tax Increment Fund (distributed not less frequently than quarterly) in accordance with this Agreement, which reimbursement shall continue for the term of the Zone or until the Developer has been fully reimbursed, including interest. (b) Eleyated._Water Storage Tank. The City and the Developer shall jointly determine which of them will construct or fund the construction of the Elevated Water Storage Tank described in Section 4(a), including the schedule upon which the construction will occur to coincide with the Developer's schedule for the development of the Property. (1) If the Developer (using Developer funds) constructs (or funds the construction pursuant to contracts awarded by the City of) the Elevated Water Storage Tank, then the Developer shall be entitled to reimbursement for the actual TIF Project Costs (estimated to be $2,884,000): (1) from the Tax Increment Fund (distributed not less frequently than quarterly) in accordance with this Agreement, which reimbursement shall continue for the term of the Zone or until the Developer has been fully reimbursed, including interest; and (2) from other sources of security, if any, provided by the City and acceptable to the City and the Developer. The terms and conditions under which the Developer may advance funds to the City to pay contractor draws under City -awarded contracts shall be Page 6 2155.011\37644.8 determined by the City, the Developer, and any lender to the Developer, and all draws paid by the City shall be deemed to be City -approved "TIF Project Costs" that are eligible to be reimbursed to the Developer pursuant to the Project Plan and this Agreement. Unless expressly agreed otherwise by the City and the Developer, the right of the Developer to be reimbursed from the Tax Increment Fund shall be senior to all rights of the City to be reimbursed from the Tax Increment Fund pursuant to any provision of the Project Plan or this Agreement. (2) If the City (using City funds) constructs the Elevated Water Storage Tank, then the City shall be entitled to reimbursement for the actual TIF Project Costs (estimated to be $2,884,000) from the Tax Increment Fund (distributed not less frequently than quarterly), in accordance with this Agreement, which reimbursement shall continue for the term of the Zone or until the City has been fully reimbursed, including interest. Unless expressly agreed otherwise by the City and the Developer, the right of the City to be reimbursed from the Tax Increment Fund shall be on a parity with (and in proportion to) the rights of the Developer to reimbursement for TIF Project Costs, plus interest, for TIF Projects that, as a minimum, were under construction when the City completed construction of the Elevated Water Storage Tank. (c) Fire Station and Police Substation. The City and the Developer shall jointly determine which of them will construct the fire station and police substation described in Section 4(b), including the schedule upon which the construction will occur to coincide with the Developer's schedule for the development of the Property. (1) If the Developer (using Developer funds) constructs (or funds the construction pursuant to contracts awarded by the City of) the fire station and police substation, then the Developer shall be entitled to reimbursement for the actual TIF Project Costs (estimated to be $7,224,016): (i) from the Tax Increment Fund (distributed not less frequently than quarterly) in accordance with this Agreement, which reimbursement shall continue for the term of the Zone or until the Developer has been fully reimbursed, including interest; and (ii) from other sources of security, if any, provided by the City and acceptable to the City and the Developer. The terms and conditions under which the Developer may advance funds to the City to pay contractor draws under City -awarded contracts shall be determined by the City, the Developer, and any lender to the Developer, and all draws paid by the City shall be deemed to be City -approved "TIF Project Costs" that are eligible to be reimbursed to the Developer pursuant to the Project Plan and this Agreement. Unless expressly agreed otherwise by the City and the Developer, the right of the Developer to be reimbursed from the Tax Increment Fund shall be senior to all rights of the City to be reimbursed from the Tax Increment Fund pursuant to any provision of the Project Plan or this Agreement. (2) If the City (using City funds) constructs the fire station and police substation, then the City shall be entitled to reimbursement for the actual TIF Project Costs (estimated to be $7,224,016) from the Tax Increment Fund (distributed not less frequently than quarterly), in accordance with this Agreement, which reimbursement shall continue for the term of the Zone or until the City has been fully reimbursed, including interest. Unless expressly agreed otherwise by the City and the Developer, the City's right to Page 7 2155.01 1 \37644.8 reimbursement: (i) shall at all times be subordinate to the right of the Developer to be reimbursed for TIF Project Costs for the Elevated Water Storage Tank pursuant to Section 6(b)(1); (ii) for amounts up $7,224,016, shall be on a parity with (and in proportion to) the rights of the Developer to reimbursement for TIF Project Costs, plus interest, for TIF Projects that, as a minimum, were under construction when the City completed construction of the fire station and police substation; and (iii) for amounts that exceed $7,224,016, shall be subordinate to all rights of the Developer to be reimbursed from the Tax Increment Fund pursuant to any provision of the Project Plan or this Agreement. (d) Governing Regulations. Each of the City and the Developer covenant and agree to design and construct the TIF Projects in compliance with all applicable laws, ordinances, rules, and regulations of any governmental authority having jurisdiction over same, including, without limitation, all applicable design, operations, safety, and environmental laws, ordinances, rules and regulations of any federal, state, or local authority applicable to the TIF Projects, as such laws, ordinances, rules, and regulations exist or may be amended or enacted in the future. (e) Payments from the Tax Increment Fund, Reimbursements to the Developer and the City for TIF Project Costs shall be only from the Tax Increment Fund, subject to the conditions and limitations set out in this Agreement, and only to the extent such funds are on deposit or to be deposited in the Tax Increment Fund after; (1) payment of costs for the administration of the Zone (including a reasonable fiend balance recommended by the Board and approved by the City Council); (2) payment of amounts pledged or required for the payment of any outstanding bonds approved by the Developer the net proceeds of which are used to reimburse the City or the Developer; and (3) the TIF Projects have been completed in accordance with the governing regulations described in Section 6(d). Funds on deposit in the Tax Increment Fund shall only be used to reimburse the City and the Developer for TIF Project Costs as set forth in this Agreement or pledged to or required for the payment of outstanding bonds approved by the Developer (the net proceeds of which are used to reimburse the City or the Developer). SECTION 7 ASSIGNMENT. (a) The City shall not, without the prior consent of the Developer, pledge, assign, transfer, convey, mortgage, or encumber, in any way, the City Tax Increment or the Tax Increment Fund as security, directly or indirectly, for any bonds or other obligations whether issued by the City or any entity related to, controlled by, or acting on behalf of the City. (b) The Developer shall have the right: (1) to collaterally assign (without the consent of, but with written notice to, the City) to any person or entity (including, but not limited to lenders) any rights of the Developer to be reimbursed for TIF Project Costs from the Tax Page 8 2155.01 1\37644.8 Increment Fund, and the City agrees that such persons or lenders shall be entitled to notice of any events of default under this Agreement and the opportunity to cure any such events of default without becoming a party to this Agreement or otherwise becoming liable for the duties and obligations of the Developer under this Agreement; and (2) to assign (without the consent of, but with written notice to, the City) to any person or entity, in whole or in part, any duties or obligations of the Developer under this Agreement so long as the assignee agrees to be bound by and becomes a party to this Agreement. If an assignment by the Developer gives the assignee the right to be reimbursed directly by the City from the Tax Increment Fund, the City is authorized to reimburse the assignee directly as provided by the assignment or to reimburse the assignee through a third -party escrow agent selected by the City. If an assignment by the Developer does not authorize direct reimbursement to the assignee, then the City shall have no obligation to assure that reimbursement to the Developer from the Tax Increment Fund will result in reimbursement by the Developer to the assignee. The City will acknowledge receiving notice of any assignment and will execute estoppel certificates with respect to such assignments in form reasonably requested by the assignees. The City acknowledges that lenders to whom collateral assignments are made may require periodic reimbursement from the Tax Increment Fund during the construction period as portions of the TIF Projects are completed and that the City will use all reasonable efforts to enter into one or more construction management agreements with the Developer and its lenders to provide for such periodic reimbursements. The Developer and the assignees shall release and hold harmless the City from any claims against the City arising from reimbursements made by the City pursuant to this section or pursuant to any assignment or construction management agreement entered into pursuant to this section. SECTION 8. DEFAULT; REMEDIES. If a Party fails to perform any duty or obligation under this Agreement and such failure is not cured within 30 days after written notice (or a longer period of time if the failure is not reasonably capable of being cured within 30 days), then the non-performing Party shall be in "Default" if the written notice is delivered by a nationally recognized overnight service (e.g. FedEx or UPS) with evidence of delivery signed by any person at the delivery address. If the Board or the City is in default, the Developer may pursue any remedies at law or in equity. If the Developer is in Default, the Board or the City may pursue any remedies available at law or in equity (including the suspension of reimbursements of TIF Project Costs otherwise due the Developer until the Default is cured unless such reimbursements were collaterally assigned by the Developer to any lender prior to the Default, in which case the reimbursements shall not be suspended). No Default by any Party shall entitle any non -defaulting Party to terminate this Agreement. Any written notice of non-performance given to the Developer shall also be given to any assignee of the Developer, and such assignee shall be entitled to cure the Developer's Default without becoming a Party to this Agreement. SECTION 9. ADDITIONAL PROVISIONS. (a) Q),1t1;1cLs-,_Variat>ons. In the event the obligations of the Developer with respect to the fire station and police substation, whether arising from the Project Plan or this Agreement, are in conflict with or vary from the obligations of the developers under the Wynnwood Developer Agreement or the Wynnwood/MSW Developer Agreement, the obligations of the Page 9 2155 011\37644.8 Developer under the Project Plan and this Agreement shall control and shall constitute all the obligations of the Developer with respect to the TIF Projects. To the extent of any such conflict or variation, the Wynnwood Developer Agreement and the Wynnwood/MSW Developer Agreement shall be deemed amended to the extent necessary to conform them to the obligations of the Developer with respect to the TIF Projects arising from the Project Plan or this Agreement. Notwithstanding the foregoing, nothing in the Project Plan or this Agreement shall affect, in any way, the Wynnwood Tax Rebates or the Wynnwood/MSW Tax Rebates. (b) Reduction in Zone Boundaries. City and Board covenant and agree that the boundaries of the Zone may not be reduced without the consent of the Developer unless and until all TIF Project Costs, plus interest, have been reimbursed to the City and the Developer, as applicable. (c) Bonds. Nothing in this Agreement shall be construed to require the City to approve payments from any source of City Rinds other than the Tax Increment Fund or to require City to issue tax increment financing bonds, the issuance of such bonds being solely within the discretion of the City Council with the consent of the City and the Developer. (d) Permissible Expenditures. The City and The Board declare that the payment procedures outlined in this Agreement are necessary to implement the Project Plan and that the payments under this Agreement comply with Section 311.010(b) and Section 311.010(h) of the Act. (e) Amendments. This Agreement constitutes the entire understanding and agreement of the Parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (f) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the Parties created hereunder are performable in Denton County, Texas. Venue for any action arising under this Agreement shall lie in the State District Courts of Denton County, Texas. (g) Binding Obligation. This Agreement shall become a binding obligation on the Parties. Each Party represents and warrants that the individual executing this Agreement on behalf of the Party has full authority to execute this Agreement and bind the Party to the same. Each Party represents and warrants that it is duly authorized to enter into this Agreement and to perform its obligations contemplated hereunder. (h) Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement. (i) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. Page 10 2155.011\37644.8 J) 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. (k) Force Majeure. It is expressly understood and agreed by the Parties that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, fire or other casualty, court injunction, or other cause outside the control of the Party who is to perform, the Party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such obligation or requirement shall be extended for a period of time equal to the period such Party was delayed. (1) Severability. The provisions of this Agreement are severable. If any paragraph, section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a court of competent jurisdiction to be contrary to law or contrary to any rule or regulation have the force and effect of the law, the remaining portions of the Agreement shall be enforced as if the invalid provision had never been included. (m) 'fi��r�{___i of._the Essence. Time is of the essence in the performance of this Agreement. (n) Undocumented Workers. The Developer certifies that Developer does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term Developer is convicted of a violation under 8 U.S.C. § 1324a(f), Developer shall repay the amount of any public subsidy provided under this Agreement to Developer plus interest at the rate of seven and one-half percent (7.5%) not later than the 120t" day after the date the City or Board notifies Developer of the conviction. (o) List of Exhibits: Exhibit A: Legal Description of the Property Exhibit A-1: Boundary Map of the Property Exhibit B: Schedule 4 — TIF Project Costs Page 11 2155.011\37644.8 THIS AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE AS DEFINED HEREIN. ATTE 4 istie Wilson, City Secretary APPROVED AS TO FORM: Jeff Moorrityrney CITY: CITY OF THE COLONY, TEXAS, a Texas home -rule municipality By: _.._ e McCourly, Mayor T Date' .t1 REINVESTMENT ZONE NUMBER TM70, CITY OF THE COLONY, By: e McCo , C airperson Date' Page 12 2155.01 1\37644.8 DEVELOPER: 3DB. ivio vv wv yiiuwuuu Jklol6lings, Tutu., a Texas limited partnership, its general partner By: MSW Wynnwood Holdings GP, LLC, a Texas limited liability company its general partner By: Kristian T. Teleki, Senior Vice President Date: Page 13 2155,011\37644.8 Exhibit A Legal Description of the Property BEING a parcel of land located in Denton County, Texas, a part of the B.B.B. & C.R.R. Survey, Abstract No. 170, a part of the B.B.B. & C.R.R. Survey, Abstract No. 179, a part of the B.B.B. & C.R.R. Survey, Abstract No. 182, a part of the R. Carter Survey, Abstract No. 321, a part of the R. G. Dunlap Survey, Abstract No. 352, a part of the T. D. Luckett Survey, Abstract No. 752, a part of the S. Payton Survey, Abstract No. 1009, a part of the J. Robertson Survey, Abstract No. 1507, a part Boyd Road and Lebanon Road, all of Lot 1, Block 1, Wynnwood Pump Station Addition, an addition to the City of the Colony as recorded in Cabinet W, Page 400, and comprised of that tract of land described in deed to Little Elm Independent School District recorded in Volume 5077, Page 2135, that tract of land described in deed to The Tribute Owners Association, Inc. recorded in Document Number 2008-28999, and portions of those tracts of land described in deeds to Tribute Partners, L.P. recorded in Document Number 2010-69110, Document Number 2010-69111 and Document Number 2010-69114, Denton County Deed Records, and being further described as follows: BEGINNING at a five-eighths inch iron rod found in the west right-of-way line of Lebanon Road (a 120 foot wide right-of-way) at the southwest corner of that 4.430 acre tract of land described as Tract 19 in said Document Number 2010-69114, said point being in the north line of a tract of land conveyed to United States of America (U.S.A.) as recorded in Volume 371, Page 17 and in Volume 468, Page 130, Denton County Deed Records, said point also being the southwest corner of Lebanon Road according to the plat recorded in Cabinet W, Page 268 of the Plat records of Denton County, Texas; THENCE South 89 degrees 18 minutes 15 seconds West, 1950.76 feet to a to a five-eighths inch iron rod found for corner; THENCE North 00 degrees 04 minutes 31 seconds West, 1100.08 feet to a five-eighths inch iron rod found for corner; THENCE North 00 degrees 18 minutes 25 seconds West, 100.14 feet to a five-eighths inch iron rod found for corner; THENCE South 88 degrees 34 minutes 01 seconds West, 511.56 feet to a to a five-eighths inch iron rod found for corner; THENCE North 48 degrees 04 minutes 11 seconds West, 355.70 feet to a five-eighths inch iron rod found for corner; THENCE North ' 30 degrees 57 minutes 56 seconds East, 657.61 feet to a Corp Of Engineer monument found for corner in the take line of Garza -Little Elm Dam and Reservoir (Lake Lewisville); THENCE along the take line of Garza -Little Elm Dam and Reservoir (Lake Lewisville) as follows: North 24 degrees 36 minutes 59 seconds East, 556.05 feet to a point for corner; North 71 degrees 45 minutes 30 seconds East, 134.59 feet to a point for corner; Page 14 2155.01 1\37644.8 North 30 degrees 50 minutes 28 seconds West, 86.29 feet to a point for corner; North 27 degrees 57 minutes 07 seconds East, 466.04 feet to a point for corner; South 68 degrees 13 minutes 00 seconds East, 263.30 feet to a Corp of Engineer monument found for corner; North 64 degrees 05 minutes 52 seconds East, 376.74 feet to a Corp of Engineer monument found for corner; North 89 degrees 33 minutes 08 seconds East, 403.23 feet to a Corp of Engineer monument found for corner; North 00 degrees 15 minutes 14 seconds West, 379.56 feet to a Corp of Engineer monument found for corner; North 61 degrees 45 minutes 56 seconds West, 339.76 feet to a point for corner; North 05 degrees 13 minutes 46 seconds West, 425.54 feet to a point for corner; North 50 degrees 58 minutes 42 seconds East, 150.71 feet to a Corp of Engineer monument found for corner; North 05 degrees 32 minutes 05 seconds East, 662.31 feet to a Corp of Engineer monument found for corner; North 88 degrees 07 minutes 35 seconds East, 42.24 feet to a Corp of Engineer monument found at the southwest corner of Wynnwood Haven Estates, an addition to the County of Denton as recorded in Cabinet E, Page 209, Denton County Map Records; THENCE along the south line of said Wynnwood Haven Estates as follows: North 83 degrees 53 minutes 31 seconds East, 100.47 feet to a one-half inch iron rod found for corner; North 00 degrees 33 minutes 25 seconds West, 7.13 feet to a one-half inch iron rod found for corner; North 89 degrees 16 minutes 35 seconds East, 1215.83 feet to a railroad spike found for the southeast corner of said Wynnwood Haven Estates and said point being in the center of Boyd Road (a prescriptive use right-of-way); THENCE North 01 degrees 02 minutes 51 seconds West, 157.91 feet along the east line of said Wynnwood Haven Estates and along the center of Boyd Road to a one-half inch iron rod found for corner; THENCE North 01 degrees 38 minutes 55 seconds West, 158.18 feet along the east line of said Wynnwood Haven Estates to a Corp of Engineer monument found for corner in the take line of said Garza -Little Elm Dam and Reservoir (Lake Lewisville); THENCE along the take line of said Garza -Little Elm Dam and Reservoir (Lake Lewisville) as follows: North 78 degrees 19 minutes 06 seconds East, 65.66 feet to a one-half inch iron rod found for corner; North 49 degrees 05 minutes 28 seconds East, 322.05 feet to a Corp of Engineer monument found for corner; North 62 degrees 33 minutes 24 seconds East, 1112.30 feet to a one-half inch iron rod found for corner; Page 15 2155.01 1 \37644.8 North 36 degrees 39 minutes 40 seconds East, 762.29 feet to a one-half inch iron rod found for corner; North 36 degrees 45 minutes 05 seconds East, 71.39 feet to a Corp of Engineer monument found for corner; South 89 degrees 35 minutes 43 seconds West, 312.09 feet to a Corp of Engineer Monument found for corner; North 45 degrees 22 minutes 05 seconds East, 575.78 feet to a Corp of Engineer monument found for corner; South 66 degrees 13 minutes 05 seconds East, 550.42 feet to a Corp of Engineer monument found for corner; North 55 degrees 31 minutes 30 seconds East, 1063.30 feet to a four inch pipe post found for corner; South 53 degrees 20 minutes 23 seconds East, 99.10 feet to a four inch pipe post found for corner; North 58 degrees 49 minutes 33 seconds East, 39.21 feet to a four inch pipe post found for corner; North 09 degrees 43 minutes 33 seconds West, 105.85 feet to a four inch pipe post found for corner; North 55 degrees 34 minutes 45 seconds East, 532.40 feet to a four inch pipe post found for corner; South 68 degrees 39 minutes 45 seconds East, 111.43 feet to a four inch pipe post found for corner; North 06 degrees 45 minutes 37 seconds East, 122.83 feet to a four inch pipe post found for corner; North 55 degrees 32 minutes 07 seconds East, 542.48 feet to a Corp of Engineer monument found for corner; North 31 degrees 56 minutes 09 seconds West, 949.10 feet to a Corp of Engineer monument found for corner; South 78 degrees 20 minutes 38 seconds East, 400.38 feet to a Corp of Engineer monument found for corner; South 52 degrees 10 minutes 02 seconds East, 727.85 feet to a four inch pipe post found for corner; South 24 degrees 02 minutes 41 seconds West, 30.84 feet to a four inch pipe post found for corner; South 15 degrees 40 minutes 20 seconds East, 51.56 feet to a four inch pipe post found for corner; South 56 degrees 34 minutes 06 seconds East, 24.94 feet to a four inch pipe post found for corner; North 57 degrees 44 minutes 36 seconds East, 62.09 feet to a four inch pipe post found for corner; South 52 degrees 13 minutes 08 seconds East, 775.93 feet to a Corp of Engineer monument found for corner; North 14 degrees 14 minutes 56 seconds East, 649.52 feet to a Corp of Engineer monument found for corner; South 41 degrees 03 minutes 50 seconds East, 472.48 feet to a point for corner; Page 16 2155.011\37644.8 THENCE South 00 degrees 03 minutes 49 seconds East, 414.73 feet to a one inch iron rod found for corner; THENCE South 45 degrees 34 minutes 44 seconds East, 302.88 feet to a one-half inch iron rod found for corner; THENCE South 00 degrees 20 minutes 30 seconds East, 907.31 feet to a point for corner in the south right-of-way line of Lebanon Road; THENCE South 89 degrees 03 minutes 39 seconds West, 229.47 feet along the south right-of- way line of Lebanon Road to a fence post found at the northeast corner of that 3.4209 acre tract of land described as Tract 18 in said Document Number 2010-69114; THENCE South 06 degrees 31 minutes 15 seconds West, 497.49 feet to a Corp of Engineer monument found at the southeast corner of Lot 1, Block 1, Wynnwood Pump Station Addition, an addition to the City of The Colony as recorded in Cabinet W, Page 400, Denton County Map Records; THENCE South 74 degrees 32 minutes 42 seconds West, 309.51 feet to a five-eighths inch iron rod found at the southwest corner of said Lot 1; THENCE North 25 degrees 02 minutes 20 seconds West, 626.50 feet to a one-half inch iron rod found at the northwest corner of said Tract 18, said point being in the south right-of-way line of Lebanon Road (a variable width right-of-way); THENCE South 87 degrees 53 minutes 13 seconds West, 467.96 feet along the south right-of- way line of Lebanon Road to a one-half inch iron rod found for corner in the take line of said Garza -Little Elm Dam and Reservoir (Lake Lewisville); THENCE along the take line of said Garza -Little Elm Dam and Reservoir (Lake Lewisville) as follows: South 20 degrees 51 minutes 24 seconds East, 416.72 feet to a Corp of Engineer monument found for corner; South 00 degrees 55 minutes 33 seconds East, 403.72 feet to a Corp of Engineer monument found for corner; South 44 degrees 17 minutes 33 seconds West, 219.95 feet to a Corp of Engineer monument found for corner; South 23 degrees 13 minutes 58 seconds East, 504.77 feet to a Corp of Engineer monument found for corner; South 66 degrees 15 minutes 07 seconds East, 550.27 feet to a Corp of Engineer monument found for corner; South 14 degrees 52 minutes 10 seconds West, 516.70 feet to a Corp of Engineer monument found for corner; North 89 degrees 36 minutes 35 seconds East, 180.76 feet to a Corp of Engineer monument found for corner; South 34 degrees 14 minutes 35 seconds East, 719.98 feet to a Corp of Page 17 2155.011\37644.8 Engineer monument found for corner; South 00 degrees 16 minutes 25 seconds East, 250.36 feet to a Corp of Engineer monument found for corner; North 79 degrees 20 minutes 17 seconds West, 250.67 feet to a Corp of Engineer monument found for corner; North 28 degrees 43 minutes 02 seconds West, 277.42 feet to a Corp of Engineer monument found for corner; North 02 degrees 25 minutes 23 seconds East, 98.26 feet to a Corp of Engineer monument found for corner; North 18 degrees 43 minutes 27 seconds West, 117.41 feet to a Corp of Engineer monument found for corner; South 72 degrees 44 minutes 51 seconds West, 72.63 feet to a Corp of Engineer monument found for corner; North 28 degrees 43 minutes 02 seconds West, 148.34 feet to a Corp of Engineer monument found for corner; South 17 degrees 36 minutes 10 seconds West, 443.35 feet to a Corp of Engineer monument found for corner; South 26 degrees 30 minutes 09 seconds East, 499.68 feet to a Corp of Engineer monument found for corner; South 28 degrees 32 minutes 02 seconds West, 393.89 feet to a Corp of Engineer monument found for corner; South 46 degrees 00 minutes 17 seconds West, 1038.81 feet to a Corp of Engineer monument found for corner; South 12 degrees 48 minutes 30 seconds West, 196.63 feet to a Corp of Engineer monument found for corner; North 89 degrees 54 minutes 30 seconds West, 375.97 feet to a Corp of Engineer monument found for corner; North 45 degrees 15 minutes 56 seconds West, 148.52 feet to a Corp of Engineer monument found for corner; South 07 degrees 37 minutes 10 seconds West, 109.33 feet to a Corp of Engineer monument found for corner; South 41 degrees 02 minutes 33 seconds West, 342.56 feet to a Corp of Engineer monument found for corner; South 14 degrees 28 minutes 37 seconds West, 199.68 feet to a Corp of Engineer monument found for corner; North 84 degrees 47 minutes 05 seconds West, 199.79 feet to a Corp of Engineer monument found for corner; South 18 degrees 44 minutes 21 seconds West, 230.29 feet to a Corp of Engineer monument found for corner; North 32 degrees 32 minutes 59 seconds West, 559.14 feet to a Corp of Engineer monument found for corner; North 55 degrees 13 minutes 42 seconds West, 119.88 feet to a Corp of Engineer monument found for corner; South 02 degrees 52 minutes 07 seconds West, 50.81 feet to a Corp of Engineer monument found for corner; North 70 degrees 15 minutes 50 seconds West, 300.21 feet to a Corp of Page 18 2155.011\37644.8 Engineer monument found for corner; South 19 degrees 45 minutes 47 seconds East, 850.04 feet to a Corp of Engineer monument found for corner; South 00 degrees 27 minutes 05 seconds East, 188.40 feet to a Corp of Engineer monument found for corner; North 72 degrees 18 minutes 08 seconds West, 699.72 feet to a Corp of Engineer monument found for corner; South 21 degrees 48 minutes 15 seconds East, 775.43 feet to a Corp of Engineer monument found for corner; South 46 degrees 48 minutes 08 seconds West, 700.08 feet to a Corp of Engineer monument found for corner; South 87 degrees 32 minutes 08 seconds West, 330.13 feet to a Corp of Engineer monument found for corner; North 43 degrees 37 minutes 35 seconds West, 499.78 feet to a Corp of Engineer monument found for corner; North 76 degrees 52 minutes 41 seconds West, 399.88 feet to a Corp of Engineer monument found for corner; South 27 degrees 02 minutes 57 seconds East, 460.27 feet to a Corp of Engineer monument found for corner; South 82 degrees 15 minutes 45 seconds West, 450.32 feet to a Corp of Engineer monument found for corner; North 22 degrees 16 minutes 53 seconds East, 300.02 feet to a Corp of Engineer monument found for corner; North 47 degrees 21 minutes 30 seconds West, 375.19 feet to a Corp of Engineer monument found for corner; North 19 degrees 49 minutes 24 seconds West, 798.82 feet to a Corp of 'Engineer monument found for corner; South 04 degrees 31 minutes 38 seconds West, 1374.07 feet to a Corp of Engineer monument found for corner; THENCE South 89 degrees 09 minutes 14 seconds West, 560.40 feet to a one-half inch iron rod found for corner; THENCE North 00 degrees 29 minutes 35 seconds West, 136.53 feet to a one-half inch iron rod found for corner; THENCE South 89 degrees 18 minutes 15 seconds West, 202.50 feet to the POINT OF BEGINNING and containing 992.220 acres of land. Page 19 2155.01 1 \37644.8 s- 0 N cd PH c"I Exhibit B TIF Project Costs Schedule 4: TIF Project Costs and assumptions: $'reject cost ost metas aro by Matthe Southwest andlot the Cth7 of The Colony. Expenras and timing estimatois ere approximate. Both may vary, nF pmgram administrative exponse are b od on a TIF zone tarm of 25 years. (a) (b) (C) (d) (a) M (9) Experme In used by May Cost When Ew--c led, Estimated Cost of FY Ending M F—i Comm x� , in 2013 Dopes SwL 30. Annual Indatiou to 'W"Q, Prt t*W for CNOW hWVAnM* Roadway and Infnsbructum Improvernenb $250,000 2013 $250,000 $1,750,000 2014 $1,802,500 62,000,000 2015 $2,121,800 $2,000,000 2016 $2,185,454 $1,700,000 2017 $1,913,365 $200,000 2019 $236,610 Subtotal $7,WO,000 $6,511,929 Marina Patio Improvemants $1,500,000 2016 $1,639,091 $1,5500,000 2017' 51,668-263 _ Subtotal �SZXCIPX)1) _ .,. Lakaskte EntsrtaUr *M DWO Improvements $2,500,000 2016 $2.698,166 EW4atW Water Storage Tank $2,600,000 2014 $2,864,000 F're Station 1 Puttee Substation $$3060 000 2010 $T224,016 Sipmotal for capita; ptiV4ttt nt pt ra it al Vx,150,000 52.?.Z45_485 FinanckV for capital Improvements $20,315,253 TIF program adminbtrallon Organization $20.000 2013 $20,000 Maintenance $26,400 annually $6fW,W0 2014.2038 $811,146 SL,btotaa Estmated total project Costs Uncommitted TIF revenw, available Tor TIF projects or nveralon to City general fund Page 21 2038-2039 $39,084,582 2155.011\37644.8