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HomeMy WebLinkAboutResolution No. 05-92 ORIGINAL RESOLUTION NO. ()S'.. C(~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF AN AMENDED AND RESTATED ECONOMIC DEVELOPMENT AGREEMENT BY AND BETWEEN THE COLONY ECONOMIC DEVELOPMENT CORPORATION AND JACKSON-SHAW/CASCADES LIMITED PARTNERSHIP; AUTHORIZING ITS EXECUTION BY THE MAYOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of The Colony, Texas has been presented a proposed Amended and Restated Economic Development Incentive Agreement by and between The Colony Economic Development Corporation and Jackson-Shaw/Cascades Limited Partnership; and WHEREAS, upon full review and consideration of the Agreement, and all matters related thereto, the City Council is of the opinion and finds that the terms and conditions thereof should be approved, and that the Mayor should be authorized to execute the Agreement on behalf ofthe City of The Colony, Texas. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS; SECTION 1. That the Agreement attached hereto having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved, and the Mayor is hereby authorized to execute the Agreement on behalf of the City of The Colony, Texas. SECTION 2. That this resolution shall become effective immediately from and after its passage, and it is accordingly so resolved. DULY RESOLVED AND ADOPTED by the City Council of the City of The Colony, Texas, on this the n day of ~2005. 1 78585 ATTEL ~ .~W~ STIE WILSON, CITY SECRETARY ROBERTE. RAGE ITY ATTORNEY (PGS/si 10/14/05) 2 78585 ORIGINAL STATE OF TEXAS ~ ~ ~ ~ AMENDED AND RESTATED ECONOMIC DEVELOPMENT INCENTIVE ACREEMENT COUNTY OF DENTON This Amended and Restated Economic Development Incentive Agreement ("Agreement") is made by and among The Colony Economic Development Corporation ("TCEDC"), the City of the Colony ("City") and Jackson-Shaw/Cascades Limited Partnership ("Company"), acting by and through their respective authorized officers. WITNESSETH: WHEREAS, The Colony Economic Development Corporation ("TCEDC"), the City of The Colony ("City") and Jackson-Shaw/Cascades Limited Partnership ("Company") entered into that certain Economic Development Incentive Agreement, executed as of June 15, 2005 (the "Original Agreement"), relating to the development of certain property within the City; and WHEREAS, TCEDC, City and Company desire to amend and restate the Original Agreement to provide for the payment of the costs of construction and/or acquisition of certain public improvements within said property from the proceeds of certificates of obligation or other obligations of the City or TCEDC; and WHEREAS, the Company owns or is under contract to purchase the real property consisting of approximately 92 net acres of land located at the northeast comer of State Highway 121 and Morning Star Drive in The City of The Colony, Texas and being further described in Exhibit "A" (the "Property"); and WHEREAS, the Company intends to develop and construct a mixed use development on the Property which may include, among others, the following uses: town homes, patio homes, retail, office, flex space and a hotel (collectively hereinafter defined as the "Project') and the necessary public infrastructure for the Project (hereinafter defined as the "Infrastructure"); and WHEREAS, the Company has advised TCEDC that a contributing factor that would induce the Company to develop the Project would be an agreement by TCEDC to provide an economic development grant to defray a portion of the costs ofInfrastructure for the Project; and WHEREAS, TCEDC has adopted programs for promoting economic development; and WHEREAS, the Development Corporation Act, article 5190.6 TEX. REV. CIV. STAT. authorizes TCEDC to provide economic development grants suitable for expenditures to promote or develop new or expanded business enterprises; and WHEREAS, TCEDC has determined that making an economic development grant to Company in accordance with this Agreement will further the objectives of TCEDC and will benefit TCEDC and the inhabitants of the City; and JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE ACREEMENT _ Page 1 76501 WHEREAS, a portion of the infrastructure to be included in the Project will be constructed and/or acquired by the Company and conveyed to the City, upon payment therefore by the City or TEDC as the case may be. NOW THEREFORE, in consideration of the foregoing, and on the terms and conditions hereinafter set forth, and for other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree that the Agreement shall be amended in its entirety to read as follows: Article I Definitions Wherever used in this Agreement, the following terms shall have the meanings ascribed to them: "Capital Investment" shall mean the total capitalized cost to the Company of the Project. "City" shall mean the City of The Colony, Texas. "Commencement Date" shall mean the later of the date of Company's closing of the purchase of the Property or the date of approval by the City of re-zoning of a portion of the Property for the Residential Development. "Commencement of Construction" shall mean that (i) the plans have been prepared and all approvals thereof required by applicable governmental authorities have been obtained for construction of the respective Infrastructure; (ii) all necessary permits for the construction of the respective Infrastructure pursuant to the respective plans therefore having been issued by all applicable governmental authorities; and (iii) grading of the Property or the construction of the vertical elements of the Infrastructure, as the case may be, has commenced. "Commercial Development" shall collectively mean that portion of the Project to be developed for commercial development, which shall contain a minimum of 38 acres but not more than 50 acres and is depicted on Exhibit "B" attached hereto. "Company" shall mean Jackson-Shaw/Cascades Limited Partnership and its successor and permitted assigns. "Completion of Construction" shall mean that (i) the construction of the Infrastructure has been substantially completed; and (ii) the City has accepted the same. "Debt" shall mean certificates of obligation or other debt instrument having a 20- year maturity having an interest rate of not more than 6%, issued by the City or TCEDC to pay costs of the construction and/or acquisition of the Public Improvements; provided however in the event the City is required to issue debt or other financing with an interest rate greater than six percent (6%) or with a maturity less than 20 years, the repayment JAcKsON-SHA W COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 2 76501 obligations of Company set forth in this Agreement shall nonetheless be calculated at six percent (6%) with no less than a 20 year amortization period. "Debt Coverage Test' shall mean Tax Revenue generated by the Project for any given calendar year equals an amount sufficient to provide a debt service ratio at least 1: 1.25 (the actual Tax Revenue generated by the Project divided by the Debt Service payments related to the Project equals at least 125%). "Debt Service" shall mean the City and/or the TCEDC interest and principal payments for the issuance of the Debt for the funding of the Grants and other payments provided herein. "Dry Utilities Improvements" shall mean the design and installation of electric and natural gas utility lines along the interior streets to be constructed pursuant to this Agreement. "Effective Date" shall mean the last date of execution hereof. "Employment Positions" shall mean non-temporary full-time primary jobs eligible for employee benefits that have been created, maintained and filled at the Project. In the event of voluntary or involuntary termination of an employee, which termination causes the number of Employment Positions to fall below the number required pursuant to this Agreement, the Company shall not be in default provided the required number of Employment Positions is re-established within sixty (60) days of the employee termination. To receive credit for an Employment Position, the employee must be retained for a period not less than forty-five (45) consecutive days, provided, however, the failure of a replacement employee to remain employed for such forty-five (45) day period shall not result in a failure of the Company to re-establish the required number of Employment Positions as provided above and as set forth in Section 4.1 (c) of this Agreement. "Event of Bankruptcy or Insolvency" shall mean the dissolution or termination of a party's existence as a going business, insolvency, appointment of receiver for any part of such party's property and such appointment is not terminated within ninety (90) days after such appointment is initially made, any general assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against such party and such proceeding is not dismissed within ninety (90) days after the filing thereof. "Excess Revenue" shall mean the amount by which the actual Tax Revenue for a given year exceeds the Minimum Required tax Revenue for such year. "Expiration Date" shall mean the earlier to occur of (i) the date the Company satisfies the Debt Coverage Test set forth in Section 4.4 or (ii) the later of the date the Debt is fully paid and February 1,2026. JACKSON-SUA W COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 3 76501 "Force Majuere" shall mean any contingency or cause beyond the reasonable control of a party including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, government or de facto governmental action (unless caused by acts of omissions of the party), fires, explosions or floods, strikes, inclement weather, slowdowns, work stoppages. "Grant(s)" shall mean the economic development grants in the maximum amounts set forth herein for Infrastructure costs incurred by the Company for the Project to be paid as set forth herein. "Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges, excises, license and permit fees, and other charges by public or governmental authority, general and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed, charged, levied, or imposed by any public or governmental authority on the Company with respect to any property or any business owned or controlled by Company within the City. "Infrastructure" means infrastructure necessary to promote or develop the Project limited to streets and roads, rail spurs, water and electric utilities, gas utilities, drainage and related improvements, and telecommunications and internet improvements including but not limited to: (1) the design, engineering and construction of streets, roads, bridges, rail road spur improvements on or off site of the Project (and related type of improvements) necessary for the Project or for access or improved access to the Property; (2) the design, engineering, construction and installation of water, electric and gas utilities on or off site of the Project necessary for the Project, and any portion of the underlying facilities necessary to extend, enlarge, support or provide such utility systems to the Project; (3) the design, engineering, construction and installation of drainage and related improvements on or off site of the Project (e.g. storm sewers, detention ponds, retention ponds, drainage pipes, culverts, over sizing of facilities) necessary for the Project; and (4) the design, engineering, construction and installation of telecommunication and internet improvements, on or off the site of the Project, which may include telephone, radio, wireless or other communication systems, fiber optics or other types of networks, cabling, computers and high technology equipment, or software necessary to provide, enlarge, expand or improve the telecommunications and internet improvements for the Project. "Internal Loop Right-of-Way" shall mean the necessary right-of-way for the construction of the internal street in accordance with the plans approved by the City. "Morning Star Improvements" shall mean the design and construction of a left turn lane and an additional median cut in accordance with plans to be approved by the City. "Memorial Drive Right-of-Way" shall mean the necessary right-of-way for the Memorial Drive Expansion. JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 4 76501 "Memorial Drive Expansion" shall mean the design and construction of Memorial Drive from Morning Star to Navaho as a four lane public street in accordance with plans approved by the City. "Minimum Required Tax Revenue" shall mean annual Tax Revenue in an amount that is at least equal to the lesser of (i) the amount shown on the annual Tax Revenue Schedule attached as Exhibit "C" or (ii) the City's Debt Service allocable to the Project Debt for such year. "Northern Interior Road" shall mean the design and construction of two lane public street interior to the Property as described in plans to be approved by the City. "Office Creek Drainage Basin Impact Fee" shall mean the impact fees, if any, to be assessed against the 20.9 acres of Tract E as depicted in Exhibit "D". "Payment Request" shall mean a written request from the Company to the TCEDC for payment of the respective Grant or a written request from the Company to the City for payment of the purchase price for a Public Improvement accompanied by when applicable: (i) written acceptance of the respective Infrastructure by the City and (ii) in the case of a Grant, written evidence reasonably satisfactory to the TCEDC that the Company has incurred and paid Infrastructure costs in the amount of the Payment Request (which may not exceed the maximum amount specified herein for the respective portion ofthe Project); and (iii) in the case of a Public Improvement, written evidence reasonably satisfactory to the City that the Company has incurred and paid construction and/or acquisitions costs in the amount of the Payment Request (which may not exceed the maximum amount specified herein for the respective Public Improvement);. "Primary lobs" shall have the same meaning as assigned by Article 5190.6 Vernon's Texas Civil Statutes and shall mean non-temporary full-time employment positions at the Project eligible for employee benefits. "Project" shall mean a mixed use development on the Property which shall consist of the Residential Development and the Commercial Development. "Property" shall mean the real property described in Exhibit "A". "Public Improvements" shall mean the Morning Star Improvements, Internal Loop Right-of-Way, Memorial Drive Right-of-Way, Northern Interior Road, Southern Interior Road and Western Interior Road. "Residential Development" shall mean that portion of the Project for residential development, which contains a minimum of 42 acres and not more than 50 acres and is depicted on Exhibit "B" attached hereto. "Shortfall" shall mean the amount by which ninety percent (90%) of the Minimum Required Tax Revenue for a given calendar year exceeded the actual Tax JACKSON-SHA W COM P ANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 5 76501 Revenue for such year plus any Excess Revenue carried over from a previous year(s) for the calendar year in question. "Southern Interior Road" shall mean the two lane public street interior to the southern portion of the Property as described in plans to be approved by the City. "Storm Water Mitigation Parcel Improvements" shall mean the design and construction of certain drainage improvements described in plans approved by the City as a result of the design and construction requirements of State Highway 121 and the Texas Department of Transportation. "Taxable Value" shall mean the appraised value as certified by the Appraisal District of January 1 of a given year. "Tax Revenue" shall mean ad valorem taxes assessed real property {land and improvements) within the Project which are payable to the City; "Tax Revenue Schedule" shall mean the annual Tax Revenue Schedule attached as Exhibit "C". "TCEDC" shall mean The Colony Economic Development Corporation. "Utility Relocation" shall mean the relocation of the existing overhead power lines on the Property as further described in plans to be approved by the City. "Western Interior Road" shall mean the design and construction of two lane public street interior to the western portion of the Property as described in plans to be approved by the City. Article II Term The term of this Agreement shall begin on the last date of execution hereof (the "Effective Date") and continue until the Expiration Date, unless sooner terminated as provided herein. Article III Economic Development Grants; Project Construction 3.1 Grant Payments and Payment of Costs of Public Improvements. Subject to the terms and conditions of this Agreement, TCEDC agrees to provide the Company with the Grants set forth herein to offset a portion of the Company's cost of the necessary Infrastructure for the Project and the City agree to purchase the Public Improvements as provided herein. For the consideration and subject to the terms stated herein the Company agrees upon Completion of Construction of the Public Improvements to sell, transfer and convey, and the City agrees to purchase the Public Improvements as set forth herein. JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT - Page 6 76501 3.2 Limitations. The Grants made hereunder shall be paid solely from lawful available funds that have been appropriated by the TCEDC. Under no circumstances shall the City's and/or the TCEDC's obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. Consequently, notwithstanding any other provision of this Agreement, the TCEDC shall have no obligation or liability to pay any portion of the Grants unless the TCEDC appropriate funds to make such payment during the budget year in which the Grant(s) is payable, and the City shall not be required to purchase the Public Improvements unless it issues the Debt and/or appropriates funds to purchase the Public Improvements. Further, neither the City and/or the TCEDC shall be obligated to pay any commercial bank, lender or similar institution for any loan or credit agreement made by Company. None of City's and/or the TCEDC's obligations under this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender and/or similar financial institution. 3.3 Wastewater Facilities. The Company shall without cost to the City design, construct and install the necessary wastewater facilities and lines for the Commercial Development to drain to the south and to connect the existing City wastewater facilities at State Highway 121 in accordance with the plans approved by the City. The Company shall without cost to the City design, construct and install the necessary wastewater facilities and lines for the Residential Development to drain to the north and to connect the existing City wastewater facilities at northern boundary of the Property in accordance with the plans approved by the City. The City agrees that in the event that the wastewater facilities for the Residential Development need to be expanded further to the north, to pay the costs to design and construct such expansion. If a lift station is required, subject to the review and approval of the City Engineer, the City and/or TCEDC will pay for the lift station provided the Company conveys and/or dedicates any necessary land to City without costs to the City. 3.4 Northern Interior Road. Subject to events of Force Majuere, Company agrees to cause the Commencement of Construction of the Northern Interior Road to occur before 150 days after the Commencement Date, and subject to events of Force Majuere to cause Completion of Construction of thereof to occur within 210 days thereafter. Upon Completion of Construction the City agrees to purchase the Northern Interior Road, in an amount equal to the lesser of: (i) the actual costs of construction and/or acquisition; and (ii) the sum of $614,000, to be paid within forty-five days after receipt of a Payment Request following the Completion of Construction of the Northern Interior Road, and delivery to the City by the Company of the following: (1) a bill of sale conveying title to the respective Public Improvement to the City; (2) dedication and conveyance of the respective Public Improvement to the City by plat or separate instrument to the reasonable satisfaction of the City (3)possession of the respective Public Improvement free of parties in possession and free and clear of all liens and encumbrances; and (3) satisfactory evidence of the Warranties for the respective Public Improvement. 3.5 Western Interior Road. Subject to events of Force Majuere, Company agrees to cause the Commencement of Construction of the Western Interior Road to occur before 150 days of the Commencement Date; and subject to events of Force Majuere to cause Completion of Construction of thereof to occur within 210 days thereafter. Upon Completion of Construction the City agrees to purchase the Western Interior Road, in an amount equal to the lesser of: (i) the JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT - Page 7 76501 actual costs of construction and/or acquisition; and (ii) the sum of $375,000, to be paid within forty-five days after receipt of a Payment Request following the Completion of Construction of the Western Interior Road, and delivery to the City by the Company of the following: (1) a bill of sale conveying title to the respective Public Improvement to the City; (2) dedication and conveyance of the respective Public Improvement to the City by plat or separate instrument to the reasonable satisfaction of the City (3)possession of the respective Public Improvement free of parties in possession and free and clear of all liens and encumbrances; and (3) satisfactory evidence of the Warranties for the respective Public Improvement. 3.6 Southern Interior Road. Subject to events of Force Majuere, Company agrees to cause the Commencement of Construction of the Southern Interior Road to occur before 150 days after the Commencement Date; and subject to events of Force Majuere to cause Completion of Construction of thereof to occur within 210 days thereafter. Upon Completion of Construction the City agrees to purchase the Southern Interior Road, in an amount equal to the lesser of: (i) the actual costs of construction and/or acquisition; and (ii) the sum of $465,000, to be paid within forty-five days after receipt of a Payment Request following the Completion of Construction of the Southern Interior Road, and delivery to the City by the Company of the following: (1) a bill of sale conveying title to the respective Public Improvement to the City; (2) dedication and conveyance of the respective Public Improvement to the City by plat or separate instrument to the reasonable satisfaction of the City (3 )possession of the respective Public Improvement free of parties in possession and free and clear of all liens and encumbrances; and (3) satisfactory evidence of the Warranties for the respective Public Improvement. 3.7 Mornin!! Star Improvements. Subject to events of Force Majuere, Company agrees to cause the Commencement of Construction of the Morning Star Improvements to occur before 175 days after the Commencement Date; and subject to events of Force Majuere to cause Completion of Construction of thereof to occur within 210 days thereafter. Upon Completion of Construction the City agrees to purchase the Morning Star Improvements, in an amount equal to: (i) the lesser of the actual costs of construction and/or acquisition; and (ii) the sum of $201,000, to be paid within forty-five days after receipt of a Payment Request following the Completion of Construction of the Morning Star Improvements, and delivery to the City by the Company of the following: (1) a bill of sale conveying title to the respective Public Improvement to the City; (2) dedication and conveyance of the respective Public Improvement to the City by plat or separate instrument to the reasonable satisfaction of the City (3)possession of the respective Public Improvement free of parties in possession and free and clear of all liens and encumbrances; and (3) satisfactory evidence of the Warranties for the respective Public Improvement. 3.8 Utility Relocation. The TCEDC agrees to provide the Company with an economic Grant in the amount of the actual costs incurred by the Company for the Utility Relocation not to exceed $150,000.00, in the aggregate to be paid in phases within forty-five (45) days after receipt of a Payment Request following the Completion of Construction of the respective phase of construction of the Utility Relocation. 3.9 Storm Water Mitigation Parcel Improvements. Subject to events of Force Majuere, Company agrees to cause the Commencement of Construction of the Storm Water Mitigation Parcel Improvements to occur as needed, as each phase of the Company's JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT - Page 8 76501 development progresses. The TCEDC agrees to provide the Company with an economic Grant in an amount of the actual costs incurred by Company for the Storm Water Mitigation Parcel Improvements not to exceed $400,000.00 in the aggregate, to be paid in phases within forty-five (45) days after receipt of a Payment Request following the Completion of Construction of the respective phase of construction of the Storm Sewer Water Mitigation Parcel Improvements. 3.10 Office Creek Drainage Basin Impact Fee. The TCEDC agrees to provide the Company with an economic Grant for payment of drainage impact fees to be assessed and paid by Company for the 20.9 acres of Tract E as depicted in Exhibit "D" in an amount of the actual impact fees assessed and collected not to exceed $113,000.00, to be paid within forty-five (45) days after receipt of a Payment Request following the Company's payment of the impact fees. 3.11 Internal Loop Right-of-Way.. Subject to events of Force Majuere, Company agrees to acquire the Internal Loop Right-of-Way on or before 150 days after the Commencement Date. The City agrees to purchase such right-of-way, in an amount equal to the lesser of: (i) the actual costs of acquisition; and (ii) the sum of $765,000, to be paid within sixty days after receipt of a Payment Request following final approval of a plat dedicating such right- of-way to the City and conveyance thereof to the City free and clear of all liens and encumbrances. 3.12 Memorial Drive Right-of-Way. Subject to events of Force Majuere, Company agrees to convey and/or dedicate by plat or separate instrument reasonably satisfactory to the City on or before 150 days after the Commencement Date. The City agrees to purchase such right-of-way, in an amount equal to the lesser of: (i) the actual costs of acquisition; and (ii) the sum of $455,000, to be paid within sixty days after receipt of a Payment Request following final plat approval dedicating such right-of-way to the City and conveyance of such right-of-way to the City free and clear of all liens and encumbrances. 3.13 Dry Utilities Improvements. The TCEDC agrees to provide the Company with an economic Grant in an amount of the actual costs incurred by the Company for the Dry Utilities Improvements not to exceed $140,000.00, to be paid within forty-five (45) days after receipt of a Payment Request following the Completion of Construction of the same 3.14 Memorial Drive Expansion. Subject to events of Force Majuere, the Company's agrees to design and construct Memorial Drive. The Company shall pay all costs of design and construction of Memorial Drive Article IV Company's Obligations Relating to Economic Development Grant 4.1 Conditions to Payment of Grant. The TCEDC's obligations to pay the Grants to the Company and the City's obligation to purchase the Public Improvements shall be conditioned upon the Company's compliance with, and satisfaction of the Company not being in default under this Agreement and the conditions set forth below. (a) Company shall, as a condition precedent to the payment of any Grant by the TCEDC and/or City purchase of a public Improvement provide the TCEDC and City, JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 9 76501 as the case may be, with the applicable Payment Request. (b) Company shall not at the time of delivery of a Payment Request hereunder have an uncured breach or default of this Agreement. (c) At least zero (0) Employment Positions shall be created and filled at the Project within twelve (12) calendar months after the Effective Date. The Company shall, within thirty (30) days after the 1 st anniversary date of the Effective Date, supply TCEDC with copies of employment records and such other information as may be reasonably requested by TCEDC to document compliance with the required Employment Positions. (d) Company shall, as a condition precedent to the payment of any Grant and the City purchase of the Public Improvements herein, make an application for a planned development district to rezone a minimum of 42 acres but not more than 50 acres of the Property for the Residential Development. In connection with such rezoning application, Company shall ensure (through the zoning ordinance granting such planned development, deed restrictions or otherwise) that the minimum dwelling unit square footage for town house units is 1,200 square feet and the minimum dwelling unit square footage for patio home units is 2,000 square feet ( e) As a condition precedent to the payment of any Grant and the City purchase ofthe Public Improvements herein the City shall have rezoned a minimum of 42 acres but not more than 50 acres of the Property for a planned development district for the Residential Development. 4.2 The Company agrees to grant the Home Depot located in the City an opportunity to bid on the sale of construction materials for the Project and shall encourage its successors, permitted assigns and their respective contractors to do the same. 4.3 Ad Valorem Tax Report. During the term of this Agreement, within thirty (30) days after February 1 of each calendar year that this Agreement is in effect, the Company shall provide the City and the TCEDC with: (a) copies of tax receipts showing that the ad valorem taxes for the land, the improvements comprising the Project and which the Company still owns is current and has been paid for the previous ending tax year. 4.4 Tax Revenue. During the Term of this Agreement, the Project must generate annual Tax Revenue at least equal to the lesser of (i) the amount shown on the Tax Revenue Schedule or (ii) the City's or TCEDC's Debt Service allocable for such year (the "Minimum Required Tax Revenue"). If during any calendar year the actual Tax Revenue exceeds the Minimum Required Tax Revenue, then the amount by which the actual Tax Revenue exceeds the Minimum Required Tax Revenue (the "Excess Revenue") may be carried forward and added to the actual Tax Revenue in subsequent calendar years in order to satisfy the Minimum Required Tax Revenue requirement for such subsequent years. If during any calendar year the actual Tax Revenue (plus any Excess Revenue carried over from previous years) is less than ninety percent (90%) of the Minimum Required Tax Revenue, then the Company shall pay to the City and the TCEDC on or before March 31 of the succeeding calendar year the amount by which ninety percent (90%) of the Minimum Required Tax Revenue exceeded the actual Tax Revenue (plus JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT - Page 10 76501 any Excess Revenue carried over from previous years) for the calendar year in question (the "Shortfall"). Notwithstanding anything to the contrary set forth herein, the Company's obligation to guarantee and pay any Shortfall as provided in this Section 4.4 shall terminate and have no further force or effect for the remainder of the Term at such time as the actual Tax Revenue (not including any Excess Revenue carried forward from any previous calendar year(s)) generated by the Project for any given calendar year equals an amount sufficient to provide a debt coverage ratio of at least 1: 1.25 (that is to say, the actual Tax Revenue generated by the Project divided by the Debt Service payments related to the Project equals at least 125%) (the "Debt Coverage Test"). The provisions of this Section 4.4 shall, survive termination of this Agreement. 4.5 Capital Investments. The Company shall cause total Capital Investment in the Project to be at least $85 Million Dollars as of December 31, 2011. 4.6 Sale of Property. In the event Company sells or transfers the Property, or any portion thereof, the Company's obligation set forth in Section 4.4 above, shall survive such sale and transfer and shall continue to be in full force and effect. The obligation of Company set forth in this Section 4.6 are personal unto the Company. Article V Termination 5.1 following: Termination Events. This Agreement shall terminate upon anyone of the (a) by written agreement of the parties; (b) Expiration Date; (c) by either party in the event the other party breaches in any material respect any of the terms or conditions of this Agreement and such breach is not cured within sixty (60) days after written notice thereof; (d) by TCEDC and/or the City, if Company suffers an Event of Bankruptcy or Insolvency; or (e) by TCEDC and/or the City, if any Impositions owed to the City and/or the TCEDC by Company or any other entity controlled by Jackson-Shaw Company (but not any successor-in-ownership to the Property) shall become delinquent (provided, however the Company (and such party) retains the right to timely and properly protest and contest any such Impositions) and such delinquency is not cured within thirty (30) days after written notice thereof. 5.2 Effect of Termination. In the event this Agreement is terminated pursuant to Section 5.1(a) or (Q), then upon such termination, the parties shall have no further rights or obligations to one another hereunder. In the event this Agreement is terminated by TCEDC or the City pursuant to Section 5.1(c), @, or ~, the Company shall immediately pay to the City and TCEDC the amount of the outstanding Debt including principal and interest due thereon, including the amount necessary to fund a full escrow for the defeasance and redemption of the Debt. Such payment is to be paid in twelve (12) equal monthly installments on or before the first JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT - Page 11 76501 day of each calendar month beginning the first day the calendar month sixty (60) days following termination until paid. The payment obligation of Company set forth in this Section 5.2 shall survive termination. Article VI Miscellaneous 6.1 Bindin2 Agreement. The terms and conditions of this Agreement are binding upon the successors and assigns of all parties hereto. This Agreement may not be assigned without the consent ofTCEDC and the City. 6.2 Limitation on Liability. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. It is understood and agreed between the parties that Company, in satisfying the conditions of this Agreement, has acted independently and TCEDC and the City assume no responsibilities or liabilities to third parties in connection with these actions. Company agrees to indemnify and hold harmless TCEDC and the City from all such claims, suits, and causes of actions, liabilities and expenses, including reasonable attorney's fees, of any nature whatsoever arising out of the Company's performance of the conditions under this Agreement. In addition, City and TCEDC understand that the Company intends to sell portions of the Property to third parties as part of its master plan for the Project. The Company shall comply with all of the terms and conditions of this Agreement relating to the Project, except as otherwise provided herein, the Company shall have no liability for the failure of any other owner of any portion of the Project to comply with this Agreement after such sale. For example, if an owner of a unit in the Residential Development fails to pay Impositions assessed against its unit, the Company shall not be deemed to be in breach of this Agreement. 6.3 Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations that is granted and assumed under this Agreement. 6.4 Notice. Any notice required or permitted to be delivered hereunder shall be deemed received three (3) days thereafter sent by United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below or on the day actually received as set by courier or otherwise hand delivered. If intended for TCEDC, to: With a copy to: Attn: Tom Terrall Director of Economic Development The Colony Economic Development Corp. 6800 Main Street The Colony, Texas 75056 Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza 500 North Akard Dallas, Texas 75201 JACKSON-SUA W COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 12 76501 If intended to City: Attn: Mayor John Dillard City of The Colony 6800 Main Street The Colony, Texas 75056 If intended for Company: With a copy to: Attn: Demian Salmon Vice President/Marketing Jackson-Shaw Company 4890 Alpha Road, Suite 100 Dallas, Texas 75244 T. Andrew Dow, Esq. Winstead Sechrest & Minick P.C. 5400 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 6.5 Entire Agreement. This Agreement is the entire Agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written Agreement between the parties that in any manner relates to the subject matter of this Agreement. 6.6 Governing Law. The Agreement shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Denton County, Texas. The parties agree to submit to the jurisdiction of said court. 6.7 Le2;al Construction. In the event anyone or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or unenforceable, a provision be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 6.8 Recitals. The recitals to this Agreement are incorporated herein. 6.9 Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 6.10 Exhibits. All exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. 6.11 Conditions Precedent. This Agreement and each of the parties obligations hereunder are subject to and conditioned on each of the following: (i) the City and/or the TCEDC issuing approximately $4 Million Dollars of debt for the funding of purchase of the Public Improvements (which the City agrees to use best efforts to accomplish); (ii) the Company providing copies of Company's executed partnership agreement, and any amendments thereto, any assumed name certificates, the name, address and phone number of all partners; evidence JACKSON-SHAW COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT - Page 13 76501 that Company is authorized to transact business in Texas; and evidence that Company is a valid, duly organized and active partnership; (iii) the Company closing its purchase of the Property on or before August 31, 2005; (iv) the Company making application for a planned development district to re-zone a minimum of 42 acres but not more 50 acres of the Property for the Residential Development on or before June 9, 2005; and (v) the City having adopted a planned development ordinance re-zoning a minimum of 42 acres but not more 50 acres of the Property for the Residential Development on or before August 1,2005. Executed on this ~ day of oe.+obe r , 2005. THE COLONY ECONOMIC DEVELOPMENT CORPORATION Executed on this 11 By: ~~(/V~, r . , Name: Robert E. Noms Title: President day of tfJr /D6e/ ,2005. THE CITY OF THE COLONY By: Name: Title: Executed on this -.ltt~ day of ~ber ,2005. JACKSON-SHAW/CASCADES LIMITED PARTNERSHIP JACKSON-SMA W COMPANY ECONOMIC DEVELOPMENT INCENTIVE AGREEMENT _ Page 14 76501 Exhibit "A" Legal Description of P,"operty 100.645 ACRE TRACT City of The Colony B.B.B. & C.R.R. Survey, Abstract No. 174 and William Bridges Survey, Abstract No. 112 City of The Colony, Denton County, Texas DESCRIPTION, of a 100.645 acre tract ofland situated in the R. P. Hardin Survey, Abstract No. 611 and in the B.B.B. & c.R.R. Survey, Abstract No. 174, and in the William Bridges Survey, Abstract No. 112, City of The Colony, Denton County, Texas, and being all of a called 100.645 acre tract of land described in a deed to MORNING STAR BLVD. (DALLAS) AlP III, L.L.P. as recorded in Volume 4969, Page 1287, Real Property Records of Denton County, Texas, and being more particularly described as follows: BEGINNING, at a l/2-inch iron rod with "Pacheco Koch" cap set at the southeast corner of said 100.645 acre tract and at the intersection of the northwest right-of-way line of State Highway 121 and the southwest right-of-way line of Burlington Northern Railroad; THENCE, South 61 degrees 19 minutes 26 seconds West with the southeast line of said 100.645 acre tract and along the said northwest right-of-way line, a distance of 382.74 feet to a lI2-inch iron rod with "Pacheco Koch" cap set for corner; THENCE, South 57 degrees 31 minutes 26 seconds West with the said southeast line and along said northwest right-of-way line, a distance of 503.03 feet to an aluminum disk found for corner; THENCE, South 61 degrees 20 minutes 10 seconds West with the said southeast line and along said northwest right-of-way line, a distance of 1084.21 feet to a l/2-inch iron rod with "Pacheco Koch" cap set for corner at a corner clip of the east comer of Morning Star Boulevard as recorded in Cabinet Q, Page 4, of the Plat Records of Denton County, Texas, and said northwest right-of- way line of State Highway 121; THENCE, North 73 degrees 40 minutes 12 seconds West with said corner clip, a distance of 63.65 feet to a l/2-inch iron rod found at the west comer of said comer clip and in the northeast line of said Morning Star Boulevard; THENCE, the following 4 courses and distances with the northeast line of said Morning Star Boulevard: North 28 degrees 40 minutes 12 seconds West, a distance of 45.69 feet to a l/2-inch iron rod with "Pacheco Koch" cap set for corner at the start of a tangent curve to the right; Along said curve in an westerly direction having a central angle of 20 degrees 30 minutes 25 seconds, a radius of 1335.00 feet, an arc length of 477.82 feet, a chord bearing and distance of North 18 degrees 25 minutes 00 seconds West, 475.27 feet to a l/2-inch iron rod found for corner at the start of a tangent curve to the left; Along said curve in a westerly direction having a central angle of 14 degrees 14 minutes 59 seconds, a radius of 1455.00 feet, an arc length of 361.86 feet, a chord bearing and distance of North 15 degrees 17 minutes 16 seconds West, 360.93 feet to a 1/2-inch iron rod found for corner at the start of a tangent curve to the right; Along said curve in a westerly direction having a central angle of 8 degrees 54 minutes 01 seconds, a radius of 5670.00 feet, an arc length of 880.78 feet, a chord bearing and distance of North 17 degrees 57 minutes 44 seconds West, 879.89 feet to a l/2-inch iron rod found at the JS south corner of a right-of-way corner clip at the intersection of the northeast line of Morning Star Boulevard with the southeast right-of-way line of Memorial Drive as recorded in Cabinet R, Page 4, of the Plat Records of Denton County, Texas; THENCE, North 28 degrees 25 minutes 52 seconds East with the said right-of-way corner clip, a distance of 76.29 feet to a II2-inch iron rod found for corner; THENCE, North 70 degrees 07 minutes 22 seconds East with the said right-of-way corner clip, a distance of 14.31 feet to a 1/2-inch iron rod found for corner; THENCE, North 19 degrees 52 minutes 38 seconds West with the said right-of-way corner clip, a distance of 60.00 feet to a crows foot cut found in concrete for corner in the centerline of said Memorial Drive; THENCE, the following 5 courses and distances with the centerline of said Memorial Drive; North 70 degrees 07 minutes 22 seconds East, a distance of 3.71 feet to a X cut set in concrete for corner at the start of a tangent curve to the left; Along said curve in a northerly direction having a central angle of 25 degrees 19 minutes 12 seconds, a radius of 1390.00 feet, an arc length of 614.27 feet, a chord bearing and distance of North 57 degrees 27 minutes 45 seconds East, 609.28 feet to a 1/2-inch iron rod for corner; North 44 degrees 48 minutes 09 seconds East, a distance of 527.64 feet to a 1/2-inch iron rod found for corner at the start of a tangent curve to the right; Along said curve in a easterly direction having a central angle of 38 degrees 44 minutes 36 seconds, a radius of 1390.00 feet, an arc length of 939.92 feet, a chord bearing and distance of North 64 degrees 10 minutes 27 seconds East, 922.11 feet to a 1/2-inch iron rod with "Pacheco Koch" cap set for corner; North 83 degrees 32 minutes 45 seconds East, a distance of 339.03 feet to a II2-inch iron rod at the northeast corner of said 100.645 acre tract and in the said southwest right-of-way line of Burlington Northern Railroad; THENCE, the following 5 courses and distances with east line of said 100.645 acre tract and with the said southwest right-of-way line: South 06 degrees 27 minutes 15 seconds East, a distance of 1250.11 feet to a 1/2-inch iron rod with "Pacheco Koch" cap set for corner; South 83 degrees 30 minutes 04 seconds West, a distance of 49.58 feet to a 1/2-inch iron rod found for corner; South 06 degrees 26 minutes 46 seconds East, a distance of 706.11 feet to a 1/2-inch iron rod with "Pacheco Koch" cap set for corner; South 89 degrees 48 minutes 33 seconds East, a distance of 50.56 feet to a I/2-inch iron rod found for corner; South 06 degrees 33 minutes 25 seconds East, a distance of 42.46 feet to the POINT OF BEGINNING, CONTAINING, 4,384,098 square feet or 100.645 acres ofland, more or less. JS "'.~~ ~ .. Co . o < e w .. () ~ ...J ~ --:-1: S; >- (f) U'E ...J 0::: ...J Z <_ ~ ~ m ~ ~ r:!.~ o 0::: 25 5 it 0 ~~ z w..z..:r:..wooz :._ ~ ~~-!Z~..JfUJM 0 w :!:UXu:s:uCluwe.!!;: ...J O<~<O<~<a:~.g.2' w ()~LL~I-"(I)~Cl<()a: ~ <~cri~O~ciNui~~N ~ .-:j ~_ FNiJ c{ ...J ?- m J: >< W C) Z Z o N f .~ ::l; . , ~'4,.~, .. ~ I 81 ~ PI J~ <>( . ~I; <> L ~ 01 >- Z 0 --' z 0 <( ..... U a.. w W en :;) (tl J: 0 ~ J- z >= J- <( z ..... 0 -' <( ..... 0 <( u W en :;) ~ I- W a.. C w 0 C) z 0 0 (f) C) -' t: ~ . wZ <w~ :;0 . oc~ ,'-',. ~ < ... 0 0::> ~ ~ - 000:; ;;:jc !! <O~ I-WIl. >l:l :I:.,;-'I-:;w>-~~ ~< ~!!;~2?~~~1-0 ....I:~2?~<!:::~~:~~ :!;-,,,IZui!!-ow~...J I-WIl.1-01-:I:WI-OI-.c: zo w-::>><> w<1" l!!cr~=~OWi=~Z(tl~ O~<i!=iil~2?~;!~~::ll Q.aQSa:-'I~m i=~ e?~~w~~~~~~cfl) z.,:;Oi=;;;O....l....lClZ~ ~ow~< .1-=u..~O....l w~~ir~~ffi~~:I:~~ !1:gwwczl-::>1-0w< w:5 ~ l'< !:n~ ~ t: Cl ~ ~ ~ O:;lIl<wozww~<<,,- !::....I:;I-Il.Cli=liO.,::110 ~~fil~~~.,;o:5~!z~ XCI-::llIl.><u,,-wwz w~~:5~";~l:!:~~~:5 ~~2uj2~<>~~:;)Q. ~-I->Q..<WO--.,()UJ LL.ZwwOcna::=';oo!:: .....:o<ooa::=>Q.s<~CI) .';]'k.jjH.,c' ~~ 2l::g ~8 81 ~ -S EXHIBIT" C" Estimated Real Property Taxes Levied by the City On The Cascades at The Colony Property taxes are displayed by year levied. Collection will lag appraisal by one year. Year Base 2005 1 2006 2 2007 3 2008 4 2009 5 2010 6 20ll 7 20]2 8 2013 9 2014 10 20]5 1 ] 20] 6 ]2 2017 13 2018 14 2019 15 2020 16 2021 17 2022 ]8 2023 19 2024 20 2025 21 2026 22 2027 23 2028 24 2029 25 2030 26 2031 27 2032 28 2033 29 2034 30 2035 Total for 30 Years: Real Property Tax $6,995 $6,995 $134,166 $334,553 $541,191 $607,550 $676,817 $687,331 $698,002 $708,834 $719,829 $730,988 $742,314 $753,811 $765,480 $777,324 $789,346 $801,548 $813,933 $826,503 $839,263 $852,213 $865,358 $878,701 $892,243 $905,988 $919,940 $934,10] $948,474 $963,063 $977,871 $22,093,730 ~ // \ r; .......~ \:-~ />;< 0) I f 1'''-, ~\\l :::':~'~ ,,' I :: (";) 1'17 ',,- \\~ /,. / \\ ~ . ~ I \ \, /,."/ \ \ '- ~ It;! \\ :r/ 1'\ ~o I < I' ~ \ '~\ n , ~ ,;1' !l \ \\ ~ i II \ \. ~ , ,-%:' Q ~ >I " .' < , /'_ Q '\ \\"J ~ I? \'\'\ I ..A)' r "- .~\' S ~ \\\' '- \ '. ),~ F \\ / },...~ '" ' ,\ i\M~' ~1"'~~~~~ ; ~;- ~~ ~~,\ ~ ::-~I ~ /~/ ~ !') / ~\ \\\ ~I /' ~ I ~.\, l;;L ( ,,!@\- 1 @ f~l l@ \ \~..i "'1'~~ J@~-~ \ ~ ~ \ ~: \\ r - - \ ,.)1: '!.\ r :0 I \ \ "'-'. t : \ -..-' I ~ I \ ~ '\ ! C-:, . \ \ ~~ : 5 ~/)e II: I i :8 , . ~ ." I I _ _ ~ \ I ~ ,.,.,. , '. :1 I ~@ (/ ,.,,. '\, \ 1 : . \ : I ~ : L__' ~ L________ ;8 \ \ ..... ..... \ \ \ \ \ \ \,..- Exhibit "D" Office Creek Drainage Basin Impact Fee Area -IlL ::::= ~~ r- \\\ '\\ \ \~- " \~.. ~ ~\ "'t" r. ... .J...:) If/~?":::..":::..'::..':::...-::.__ /IJ.~.. I It; _... ...,. j!; "l '1- f,c t- 4 " r:^..... e " ~ " ! ,.-..........'- "_....,,.,.... ~~N-<)(..<C...Vt. O..O%c....::o:<.._ J: n ... ,.., 0 n lID ,.. ; ~ .... . oJ '-............._ ~~t~;:.:~ot=: ; :: E ~ k ;: ;; ~. .. ... ... ~... .. := ~ . ... ... .. : : ; : g~~ Tract "E" ... .. "" '" . .. ;; ...-...~...:::; aD;'" .. .. ... .. . fi q r .. ' t I I ... ~!:t\tJ:t;:~~;= NObbOo.....a :.. ... .. ~~~.:;:...~~: ... .. ... - ... "" .. - .. . ~. E E ~ : ~ ~i ::" !'.......l\.l:"'l/'~l~! l;rPA~~!Z':~_i ~o..:.=.:~~..._ "l 0 - ...... ... ~... ....:: It' ~~I:~: ~ j<~lll !( ~ ~ r : F ~ Y ~ i ~ ~ 3 ~ ~ .eE~e:~~:~! ...... .................... ...... c ~J ~~-:~~~o: .... .. ~:::- D C ~ n " -. . .. 'ii=l~ "' I ~ I;; )t Sc.c: ,. ... 1000' ~ ~,,~ SUS/ftl"c _ ~ ~ Den :: C"","CIod ., IfIlw ~_ "UCU'" I,!" ,....;.:.[1"0 M}IO_OIl TRACT LAYOUT FOR DRAINAGE INFRASTRUCTURE CITY OF THE COLONY OENTON COUNTY, TEXAS (J=~ Kimiey- and As! ::: ..::'_c-::,;......... ...~. ._