HomeMy WebLinkAboutResolution No. 2011-079CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2011-079
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY,
TEXAS, APPROVING AN ECONOMIC DEVELOPMENT AGREEMENT
WITH LMG VENTURES, LLC AND TXFM, INC., PROVIDING A
SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Economic Development Agreement attached hereto is authorized by and
adopted pursuant to Chapter 380, Texas Local Government Code, as amended; and
WHEREAS, the City Council of the City of The Colony, Texas (the "Cit y Council")
hereby determines that this Resolution and the attached Economic Development Agreement, a
copy of which is attached hereto as Exhibit A, comply with all of the applicable requirements of
Chapter 380, Texas Local Government Code, as amended, the Texas Open Meetings Act,
Chapter 551, Texas Government Code, as amended, and the ordinances and home-rule Charter of
the City of The Colony, Texas; and
WHEREAS, this Agreement is consistent with Ordinance No. 2011-1935, adopted on
November 15, 2011, establishing an Economic Development Program for the City of The
Colony; and
WHEREAS, the City Council finds that this Agreement will promote local economic
development and stimulate business and commercial activity in the City; and
WHEREAS, the City Council hereby determines that it is in the best interest of the City
to adopt this Resolution approving the attached Economic Development Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, THAT:
SECTION 1. Each and every one of the recitals, findings, and determinations contained
in the preamble to this Resolution, as well as each and every one of the recitals, findings, and
determinations contained in the Economic Development Agreement attached hereto as Exhibit A,
are incorporated into the body of this Resolution as if fully set forth herein and are hereby found
and declared to be true and correct legislative findings and are adopted as part of this Resolution
for all purposes.
SECTION 2. The Economic Development Agreement is hereby approved by the City
Council.
SECTION 3. If any section, article paragraph, sentence, clause, phrase or word in this
Resolution, or the 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
November 10, 2011
1775.010124109.7
passed such remaining portions of this Resolution despite such invalidity, which remaining
portions shall remain in full 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 15th day of November, 2011.
A ST
A RAVED AS TO FORM:
Imo` _ tE
Jeff Moore, City Attorney
Christie Wilson, City Secretary
1775.010S24109.7
Economic Development Agreement
This Economic Development Agreement (this "Agreement") by and between LMC
Ventures, LLC, a Texas limited liability company, anti.. TXFM, Inc, a Texas corporation
(collectively, the "Developer"), and The City of The Colony, Texas (the "City") is made and
executed based on the following recitals, terms, and conditions to be effective November 15,
2011 (the "Effective Date"). The Developer and the City are each referred to as a "Party" and
collectively as the "Parties."
RECITALS
WHEREAS, words or phrases used in this Agreement that have their initial letters
capitalized shall have the meanings given to them in the introductory paragraph above, in these
RECITALS, and in Section 3 unless the context in which a word or phrase is used clearly
requires a different meaning.
WHEREAS, prior to the approval of this Agreement, the Developer completed the City's
economic development incentives application, and
WHEREAS, the Financial Incentives comply with the City's policy statement on
economic development incentives; and
WHEREAS, on November 15, 2011, prior to the adoption of the resolution approving
this Agreement, the City Council of The Colony, Texas (the "City Council") approved Ordinance
No. 2011-1935 adopting an economic development program for the City, and
WHEREAS, this Agreement is consistent with the terms and provisions of Ordinance
No. 2011-1935 adopting an economic development program for the City, and
WHEREAS, the Financial Incentives are not granted in exchange for goods or services
provided by the Developer or End Users; and
WHEREAS, the Financial Incentives are granted to induce the Developer and End Users
to build and operate their business in the City and to obtain from the Developer and End Users
their investment commitments to undertake business operations in the City; and
WHEREAS, the Financial Incentives are intended as contributions to capital to attract
businesses to locate to and operate within the Property; and
WHEREAS, to secure the Financial Incentives, the Developer will satisfy performance
standards described in this Agreement, and as a result, the incentives will serve a legitimate
public purpose and provide a clear public benefit in return; and
WHEREAS, the Developer bargained for the Financial Incentives as part of a multi-state
site selection process; and
Exhibit A Page 1
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WHEREAS, the City expects the Financial Incentives to result in a benefit to the
community in the form of increased jobs, sales tax revenues, and ad valorem tax revenues, and
WHEREAS, the City Council has made findings that the Financial Incentives are for the
public purposes of (1) developing and diversifying the economy of the state, (ii) eliminating
unemployment and underemployment in the state, and (iii) developing or expanding commerce
in the state and not to benefit private parties, and
WHEREAS, to secure the Financial Incentives, the Developer or End Users will satisfy
performance standards described in this Agreement, and as a result, the incentives will serve a
legitimate public purpose and provide a clear public benefit in return; and
WHEREAS, the provisions of this Agreement, including the performance standards and
associated penalties, ensure that a public purpose is satisfied and that the City receives a return
benefit; and
WHEREAS, the Parties contemplate a transfer of the Property from the City to the
Developer and End Users pursuant to Section 23.55(f)(4) of the Texas Tax Cade, as amended,
for the purposes of economic development that will generate for deposit in the general revenue
fund of the State of Texas during the two fiscal bienniums next following the transfer an amount
of taxes and other revenues that equals or exceeds 20 times the amount of additional taxes and
interest that would have been imposed under Section 23.55(a) of the Texas Tax Code, as
amended, had the "rollback tax" sanctions provided by that subsection applied to the transfer; and
WHEREAS, pursuant to Section 23.55(f)(4), the Parties anticipate that no "rollback
taxes" will be owed in connection with the Property; and
WHEREAS, pursuant to Chapter 380, Texas Local Government Code, as amended, and
Article 111, Section 52-a, Texas Constitution, and for the public purposes of promoting economic
development and diversity, increasing employment, reducing unemployment and
underemployment, expanding commerce and stimulating business and commercial activity in the
State of Texas, Denton County, and the City, the City desires to offer an economic development
grant to the Developer, all as more particularly described in this Agreement; and
WHEREAS, on November 15, 2011, the City Council adopted a resolution approving this
Agreement.
NOW THEREFORE, for and in consideration of the mutual agreements contained herein,
and other good and valuable consideration the receipt and sufficiency of which are
acknowledged, the Parties agree as follows.
SECTION 1. FINDINGS INCORPORATED. The foregoing RECITALS are found and
declared to be true and correct and are incorporated into the body of this Agreement and shall be
considered part of the mutual covenants, consideration, and promises that bind the Parties.
Exhibit A Page 2
1775.010124109.7
SECTION 2. TERM. This Agreement shall be effective as of the Effective Date and shall
terminate on the 75"' anniversary of the date the City collects its first sales tax dollar from taxable
sales occurring at the Facility.
SECTION 3. DEFINITIONS.
"380 Incentive Program" is defined in the Project and Finance Plan.
"Agreement" means this Economic Development Agreement, together with all exhibits and
schedules attached hereto, as amended.
"City" means the City of The Colony, Texas, a Texas home-rule municipality.
"City Council" means the city council of the City.
"CIP Projects" are defined in Section 6.2.
"City Sales Tax" means the amount generated from the City's municipal sales and use tax at the
current rate of one percent (1.0%) attributable to taxable sales within the Property.
"City Sales Tax Increment" is defined in the Project and Finance Plan.
"County" means Denton County, Texas.
"Debt Service Obligations" are defined in the Development Agreement.
"Default" is defined in Section 7.1.
"Developer" means LG Ventures, LLC, a Texas limited liability corporation and TXFM, Inc, a
Texas corporation, together with their respective affiliates, successors, and assigns.
"Development Agreement" means the Development and Tax Increment Payment Abreement
among the City, the Developer, the Board of Directors of Tax Increment Reinvestment Zone
Number One, City of The Colony, Texas, and The Colony Local Development Corporation dated
November 15, 2011.
"Effective Date" means the effective date of this Agreement, which shall be November 15, 2011.
"End User" means a business entity other than the Developer that obtains from the City any
Financial Incentives, which incentives are intended to be contributions to the capital of each
business entity to cause the business entity to locate and operate within the Property.
"Facilit " is defined in the Project and Finance Plan.
"Financial Incentives" mean an amount equal to the sum of the following (i) the share of the City
Sales Tax to which the Developer is entitled by Sections 5.1 and 5.5, (ii) the fees waived by
Section 5.6, and (iii) the rollback taxes rebated by Section 5.7.
Exhibit A Page 3
1775.010v24109.7
",Full-Time Equivalent Jobs" are defined in the Project and Finance Plan.
"Notice" is defined in Section 8.0.
"Party" or "Parties" means, individually and collectively, the City and the Developer. The terms
also include End Users.
"Private Debt" means any bonds, notes, loans, or other forms of indebtedness issued or obtained
by the Developer the proceeds of which are used to pay Qualified Costs and secured by a
collateral assignment of any Financial Incentives to which the Developer is entitled under this
Agreement.
"Project" is defined in Section 8.1.
"Project 2" is defined in Section 6.2.
"Project 3" is defined in Section 6.2.
"Project and Finance Plan" means the Final Project and Finance Plan for Tax Increment
Reinvestment Zone Number One, City of The Colony, Texas, adopted by the Board of Directors
of Reinvestment Zone Number One, City of The Colony, Texas, on November 15, 2011, and
approved by the City Council on November 15, 2011.
"Pro erty" means the property described by metes and bounds on Exhibit A.
"Qualified Costs" are defined in the Project and Finance Plan.
"Super Retail Store" means, in addition to the Facility, a retail store located within the Property
that is projected to generate at least $500 million in total taxable sales during the first full
calendar year after the store is completed and open for business to the public.
"Tax Increment Fund" is defined in the Project and Finance Plan.
"TIF Obligations" are defined in the Project and Finance Plan.
SECTION 4. ECONOMIC PERFORMANCE BY THE DEVELOPER
4.1 The Facility. The Developer shall cause the Facility to be designed, constructed,
and installed and opened for business to the public no later than December 31, 2015, subject to
force majeure delays and delays approved by the City. If the Facility is not completed and open
for business by such date, an amount equal to $50,000 for each month that the Facility is late in
opening shall: (i) FIRST, reduce the Financial Incentives; and (ii) SECOND, after such
reductions, the remainder of such amount, if any, shall be deducted from the 380 Incentive
Program or from any other legally available funds owed by the City to the Developer, excluding
funds required to pay TIF Obligations.
Exhibit A Page 4
1775.014y24109.7
4.2 Qualified Costs. The Developer shall cause to be expended in connection with
the design, construction, installation, and opening of the Facility a minimum of $100,000,000 in
Qualified Costs. If less than such amount of Qualified Costs is expended, the amount of the
deficiency shall. (i) FIRST, reduce the Financial Incentives; and (ii) SECOND, after such
reductions, the remainder of such amount, if any, shall be deducted from the 380 Incentive
Program or from any other legally available funds owed by the City to the Developer, excluding
funds required to pay TIF Obligations.
4.3 Full-Time Jobs. On January I of the first calendar year after the Facility is open
for business to the Public, the Facility shall provide a minimum of 850 Full-Time Equivalent
Jobs. If the Facility does not provide the required minimum number of Full-Time Equivalent
.lobs, an amount equal to $5,000 for each job that is not provided shall (1) FIRST, reduce the
Financial Incentives; and (ii) SECOND, after such reductions, the remainder of such amount, if
any, shall be deducted from the 380 Incentive Program or from any other legally available funds
owed by the City to the Developer, excluding funds required to pay TIF Obligations.
SECTION 5. FINANCIAL OBLIGATIONS OF THE CITY.
5.1 Until TIF Obligations or Private Debt have been issued, (50%) of the City Sales
Tax shall be retained by the City and fifty percent (50%) shall be paid to the Developer monthly
within thirty (30) days after the end of each calendar month, or within thirty (30) days after the
City's receipt thereof from the Comptroller, whichever is later.
5.2 At all times while TIF Obligations secured by the City Sales Tax Increment are
outstanding (and assuming no Private Debt is outstanding), the City shall cause to be paid and
deposited into the Tax Increment Fund the portion of the City Sales Tax that equals the City
Sales Tax Increment that is required to pay Debt Service Obligations on the TIF Obligations and
to pay any „shortfall amounts" by which any prior-year Debt Service Obligations for the TIF
Obligations exceeded the balance in the "l"ax Increment Fund. If for any given year the balance in
the Tax Increment Fund is sufficient to pay Debt Service Obligations for the year on outstanding
TIF Obligations and to pay any "shortfall amounts," then for the remainder of the year, fifty
percent (50%) of the City Sales Tax shall be retained by the City and fifty percent (50%) shall be
deposited into an account approved by the City to be used to reduce the principal amount of
outstanding TIF Obligations.
5.3 At all times while Private Debt is outstanding (and assuming no TIF Obligations
are outstanding), the City shall cause to be paid and deposited into the Tax Increment Fund the
portion of the City Sales Tax that equals the City Sales Tax Increment that is required to pay
Debt Service Obligations on the Private Debt and to pay any "shortfall amounts" by which any
prior-year Debt Service Obligations for the Private Debt exceeded the balance in the Tax
Increment Fund. If for any given year the payments made to the Developer under this Section 5.3
are sufficient to pay Debt Service Obligations for the year on outstanding Private Debt and to pay
any "shortfall amounts," then for the remainder of the year, fifty percent (50%) of the City Sales
Tax shall be retained by the City and fifty percent (50%) shall be deposited into an account
approved by the City to be used to reduce the principal amount of outstanding Private Debt.
Exhibit A Page 5
1775.0 1 0\24109.7
5.4 If TIF Obligations and Private Debt are outstanding at the same time, the City
shall cause to be paid and deposited into the Tax Increment Fund the portion of the City Sales
Tax that equals the City Sales Tax Increment that is required to pay Debt Service Obligations and
"shortfall amounts" on the TIF Obligations and Private Debt as provided in Sections 5.2 and 5.3,
and such payments shall continue until all of the TIF Obligations and Private Debt and "shortfall.
amounts" have been paid in full. Payments by the City pursuant to this Section 5.4 shall be made
for Debt Service Obligations of TIF Obligations and Private Debt in the order in which the
obligations and debt were issued. If for any given year the payments made under this Section 5.4
are sufficient to pay Debt Service Obligations for the year on all outstanding TIF Obligations and
Private Debt and to pay for any "shortfall amounts," then for the remainder of the year, fifty
percent (50%) of the City Sales Tax shall be retained by the City and fifty percent (50%) shall be
deposited into an account approved by the City to be used to reduce the principal amount of the
TIF Obligations and Private Debt in the order in which the obligations and debt were issued.
5.5 When all TIF Obligations and/or Private Debt described in Sections 5.2 and 5.3,
together with all "shortfall amounts," have been paid in full, fifty percent (50%) of the City Sales
Tax shall be retained by the City and fifty percent (50%) shall be paid to the Developer monthly
within thirty (30) days after the end of each calendar month, or within thirty (30) days after the
City's receipt thereof from the Comptroller, whichever is later.
5.6 The following fees are waived in connection with the use and development of the
Property: (1) all impact fees adopted by the City pursuant to Chapter 395, Texas Local
Government Code, as amended, including fees adopted after the Effective Date; (ii) water and
sewer tap fees, including fire line tap fees; and (iii) all other development related fees, including,
but not limited to, building permit fees, building plan review fees, building inspection fees,
infrastructure inspection fees, certificate of occupancy fees, zoning fees, sign application fees, all
permit fees, fire plan review and permit fees, health plan review and pen-nit fees, plat application
fees, plat filing fees, drainage fees, and all other related fees charged by the City in connection
with the use or development of all or a portion of the Property.
5.7 The Developer agrees to seek a determination from the State Comptroller
pursuant to Section 23.55(f)(4) of the Texas Tax Code, as amended. In the event the Developer
is required to pay rollback taxes pursuant to Section 23.55(a) of the Texas Tax Code, as
amended, or otherwise, the City will grant to the Developer or End User who was required to pay
them hands equal in amount to such rollback taxes.
SECTION 6. INFRASTRUCTURE.
6.1 Off-Site Improvements. The obligation of the Developer to construct or fund off-
site infrastructure improvements, including, but not limited to, off-site water, sewer, roadway,
and drainage improvements, shall be limited to the following improvements: (i) intersection
modifications at S.H. 121 and Plano Parkway and S.H. 121 and Spring Creek Parkway, which
may include lane additions, re-striping, and single improvements; (ii) deceleration lanes along the
eastbound frontage road of S.H. 121 at entrances into the Property', and (iii) left turn lanes and.
deceleration lanes along Plano Parkway adjacent o the Property. No other off=site infrastructure
Exhibit A Page 6
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improvements of any type shall be required of the Developer in connection with the development
or use of any portion of the Property.
6.2 S.I-I. 121 Access. The City agrees to cooperate with and assist the Developer with
obtaining access from S.H. 121 into the Property.
SECTION 7. DEFAULT; REMEDIES.
7.1 If any Party fails to perform any material covenant required by this Agreement,
any other Party may give Notice of such failure to the non-performing Party, which Notice shall
describe in reasonable detail the nature of the failed performance. If the non-performing Party
does not cure or remedy the failed perfonnance within a reasonable period of time after the
Notice is given (taping into consideration the nature of the failed performance; but in no event
more than thirty (30) days after the Notice is given), then the non-performing Party shall be in
"Default" under this Agreement.
7.2 In addition to the Defaults described in Section 7. 1, the Developer shall be in
Default if the Developer becomes delinquent in the payment of any ad valorem taxes or sales
taxes owed to the City and such delinquencies, including penalties and interest, are not paid in
full within sixty (60) days after written Notice is given. If the Developer is in Default under this
Section 7.2, the City may pursue any remedies available at law or in equity (excluding
termination of this Agreement) including, but not limited to, exercise of the right of off set
against any amounts to which the Developer may be entitled under this Agreement.
7.3 If the Developer is in Default with respect to the perfonnance standards described
in Sections 4.1 through 4.3, inclusive, the sole and exclusive remedy for such Defaults shall be
the reductions in the Financial Incentives as described in such sections.
7.4 Except as provided in Section 7.2 and Section 7.3, if the Developer is in Default,
the sole and exclusive remedy of the City is to enforce specific performance of this Agreement.
7.5 If the City is in Default, the sole and exclusive remedies of the Developer are:
(i) to enforce specific perfornance of this Agreement; and (ii) to exercise those rights recorded
against the Property to secure performance by the City under this Agreement, including, rights
under any (1) covenants, conditions and restrictions; (2) easements; (3) transfer documents that
include a determinable interest or reversion; or (4) a deed of trust to secure performance.
7.6 No Default by any Party shall entitle any other Party to terminate this Agreement.
SECTION 8. ADDITIONAL PROVISIONS.
8.1 Vested Rights. Pursuant to Chapter 245, Texas Local Government Code, plans
for development of the Property were filed with the City prior to the approval of this Agreement.
The filing of such plans for development gave fair notice of the mixed use project indicated on
such plans (the "Project"). Based on the filing of such plans, the Developer may develop the
Project in accordance with the following building codes which were in effect at the time plans for
Exhibit A Page 7
1775.010'\24109.7
development of the Project were filed with the City. the 2006 International Building Code, 2006
International Mechanical Code, 2006 International Plumbing Code, 2006 International
Residential Code, 2006 International Fuel Gas Code, 2006 International Fire Code, 2006
International Energy Conservation Code, and 2008 National Electrical Code, including all local
amendments to such codes adopted by the City Council prior to November 15, 2011. if the City
adopts a newer edition of any of these building codes, the developer may comply, but shall not be
required to comply, with all or a portion of the newer editions.
8.2 Binding Obligation; Entire Agreement; Amendments. This Agreement is binding
upon the Parties and their assignees as permitted by this Agreement and to the extent provided in
any assignment. This Agreement constitutes the entire understanding and agreement of the
Parties as to the matters set forth in this Agreement and supersedes all prior agreements and
understandings whether oral or in writing. Except as provided in this Section 8,2, no amendment
to this Agreement shall be effective unless the amendment is in writing and signed by the Party
or Parties sought to be bound by the amendment. This Agreement shall be automatically
amended to add as a Party each End User that executes an assignment in accordance with this
Agreement, provided, however, the End User will only be considered a Party for the limited
purposes set forth in the assignment.
8.3 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.
8.4 Assignment in `hole or in Part. The Developer has the right to assign this
Agreement in whole, including all obligations, rights, title, and interests of the Developer under
this Agreement, and to assign this Agreement in part, with respect to any obligations of the
Developer under this Agreement, to any affiliate (i.e., an entity that controls, is controlled by, or
is under common control with the Developer) without the consent of the City provided the
assignment is consistent with the Project and Finance Plan. The Developer has the right to
assign this Agreement in whole, including all obligations, rights, title, and interests of the
Developer under this Agreement, and to assign this Agreement in part with respect to any
obligations of the Developer under this Agreement, to any other person or entity with the written
consent of the City (which consent shall not be unreasonably withheld provided said assignment
is consistent with the Project and Finance Plan, and which consent shall be deemed to have been
given if the City does not respond to a request for consent within sixty (60) days after the request
is made). All assignments shall be in writing executed by the Developer and the assignee and
shall obligate the assignee to be bound by this Agreement to the extent this Agreement applies or
relates to the obligations, rights, title, or interests being assigned. A copy of each assignment
shall be provided to the City within thirty (30) days after execution. From and after such
assignments, the City agrees to look solely to the assignee for the performance of all obligations
assigned to the assignee and agree that the Developer shall be released from subsequently
performing the assigned obligations and from any liability that results from the assignee's failure
to perform the assigned obligations. An assignment to an End User shall include information
about the End User for purposes of the Notice provisions of this Agreement. The City may not
assign this Agreement, in whole or in part, or any of its respective rights, title, or interest under
Exhibit A Page 8
1775.010"24109.7
this Agreement. An End User may not assign, in whole or in part, any of its rights, title, or
interests in this Agreement without the prior written consent of the Developer.
8.5 Assignment of Certain Rights.
8.5.1 Notwithstanding the provisions of Section 8.4, the Developer has the right
to assign this Agreement, in part with respect to any rights of the Developer to receive
any Financial Incentive, to any person or entity without the consent of the City provided
the assignment is consistent with the Project and Finance Plan. All assignments shall be
in writing executed by the Developer and the assignee and shall obligate the assignee to
be bound by this Agreement to the extent this Agreement applies or relates to the rights
being assigned. A copy of each assignment shall be provided to the City within thirty
(30) days after execution. From and after such assignment, the City agrees to look solely
to the assignee for any performance related to the assigned rights and agree that the
Developer shall be released from such performance and from any liability that results
from the assignee's failure with regard to such performance. An assignment to an End
User shall include information about the End User for purposes of Notice under this
.Agreement. The partial assignments of rights authorized by this Section 8.5.1, when
considered together with other similar assignments of rights by the Developer under
separate incentive agreements between the Developer and The Colony Community
Development Corporation or The Colony Economic Development Corporation, shall not
involve more than a total of five different End Users, and thereafter all partial
assignments of rights shall require the written consent of the City (which consent shall
not be unreasonably withheld provided said assignment is consistent with the Project and
Finance Plan, and which consent shall be deemed to have been given if the City does not
respond to a request for consent within sixty (60) days after the request is made). A
simultaneous assignment to the same End User of rights under this Agreement and rights
under any other agreement that provides economic development incentives to the
Developer related to the development of the Property and that involves the City, The
Colony Community Development Corporation, or The Colony Economic Development
Corporation shall be considered a single assignment for purposes of applying the five-
assignment limit imposed by this 8.5.1.
8.5.2 The Developer and any End User that is a Party shall have the right to
collaterally assign, pledge, or encumber, in whole or in part, to any lender as security for
any loan to the Developer or End User in connection with development within the
Property, all right, title, and interest of the Developer or End User to Financial Incentives
under this Agreement. Such collateral assignments (i) shall not require the consent of the
City, (ii) shall require Notice to the City together with full contact information for such
lenders, (iii) shall not create any liability for any lender under this Agreement by reason
of such collateral assignment unless the lender agrees, in writing, to be bound by this
Agreement; and (iv) may give lenders the right, but not the obligation, to cure any failure
of the Developer or End User to perform under this Agreement. No collateral assignment
shall relieve the Developer or End User from any obligations or liabilities under this
Agreement.
Exhibit A Page 9
1775'.010\24109.7
8.6 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.
8.7 Force Majeure. If the performance by any Party of its obligations under this
Agreement is delayed due to unexpected circumstances beyond the reasonable control of such
Party, then such Party shall be excused from performance during the period that such
circumstances continue so long as such Party is diligently and continuously seeking to eliminate
the circumstances or otherwise resume performance in spite of such circumstances.
8.8 Severability. If a court finds any provision of this Agreement to be invalid or
unenforceable as to any person or circumstance, such finding shall not render the provision
invalid or unenforceable as to any other persons or circumstances. To the extend feasible, any
provision found to be invalid or unenforceable shall be deemed to be modified to be valid and
enforceable; however, if the provision cannot be so modified, it shall be stricken from this
Agreement, and all other provisions of this Agreement shall remain valid and enforceable and.
unaffected by the stricken provision.
8.9 Notices. Any notice or other communication required or permitted by this
Agreement (a "Notice'") is effective when in writing (1) and personally delivered by a
nationally recognized delivery service such as FedEx or UPS, or (ii) three (3) days after the
Notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt
requested, and addressed as follows or, in the case of a change of address, as provided in a
Notice notifying the other Party of such address change:
To the Developer:
LMG Ventures, LLC
c/o Mark Murray
Glast, Phillips & Murray
14801 Quorum Drive, Suite 500
Dallas, TX 75254
TXFM, Inc.
c/o Mark Murray
Glast, Phillips & Murray
14801 Quorum Drive, Suite 500
Dallas, TX 75254
With a copy to:
Glast, Phillips Murray
clo Thomas E. Rosen
14801 Quorum Drive, Suite 500
Dallas, TX 75254
Shupe Ventura Lindelow & Olson, PLLC
c/o Misty Ventura
Exhibit A Page 10
1775.0 M24 109.7
9406 Biscayne Blvd.
Dallas, TX 75218
To the City:
City of The Colony
c/o Troy Powell, City Manager
6800 Main Street
The Colony, Texas 75056
With a copy to:
Brown and Hofineister, LLP
Attn: Jeff Moore
740 East Campbell Road, Suite 800
Richardson, TX 75081
8.10 Undocumented Workers. The Developer certifies that it 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 of this Agreement, the Developer is
convicted of a violation under 8 U.S.C. § 1.324a(f), the Developer shall repay the amount of the
public subsidy provided under this Agreement as required by law. Pursuant to Section 2264.101,
Texas Government Code, a business is not liable for a violation of Chapter 2264 by a subsidiary,
affiliate, or franchisee of the business, or by a person with whom the business contracts.
8.11 Exhibits. The following exhibit is attached hereto and incorporated herein for all
purposes:
Exhibit A Metes and Bounds Description of the Property
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Exhibit A Page 1 I
1775.010,24109.7
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective; as of
the Effective Date.
CITY:
THE CITY OF THE COLONY, TEXAS
ATTE T:
fd ~
Christie Wilson, City Secretary
APPROVE AS TO FORM:
r'
Jeff Moor ity Attorney
Exhibit A Page 12
1775.010\24109.7
A Texas home-rule municipality
DEVELOPER:
LM G Ventures, LL,C,
a Texas limited lia. ility co p qy
" r
1
Jeff, l1n$"r' srd ritr`
TXFM, Inc.,
a Texas corporation°'
i j
By:
Jeff L i i ' Prc' s;dent
Exhibit A Page 13
t 775.01 O12)4109.7
Exhibit A
Metes and Bounds Description of the Property
METES AND BOUNDS DESCRIPTION
TRACT 3
BEING a 5.02 acre tract of land situated in the B.B.B. & C.R. Survey, Abstract No. 173, City of
The Colony, Denton County, Texas, and being part of a tract of land described as Tract Il as
conveyed by deed to Maharisbi Global Development Fund, as recorded in 'volume 4555, Page
281, Official Public Records, Denton County, Texas. Said 5.02 acre tract of land being more
particularly described by metes and bounds as follows:
BEGINNING at a found 5l8 inch iron rod with KHA cap for corner, being the intersection of the
south right-of-way line of State Highway 121 (a variable width R.O.W) and the southwest right-
of-way line of Plano Parkway (a 100 foot R.O.`tW.), and being the beginning of a non-tangent
curve to the left having a radius of 1050.00 feet, a central angle of 50°34' 13" and a long chord
which bears South 64°23'31'° East, 896.96 feet,
THENCE southeasterly, along said southwest right-of-way line of Plano Parkway and said non-
tangent curve to the left, an arc distance of 926.75 feet to a point for comer, being in the north
line of a tract of land conveyed by deed to CB/Tittle, Ltd., as recorded in Instrument No. 99-
R0007181, Official Public Records, Denton County, Texas;
THENCE South 89°58'40" West, leaving said southwest right-of-way line and following along
said north line of CB/Tittle tract, at a distance of 1009.25 feet passing the northeast comer of a
tract of land described as Tract F3, as conveyed by deed to Castle Hills Property Company, as
recorded in Instrument No. 2006-153339, Official Public Records, Denton County, Texas, and
continuing with the north line of said Castle Hills Property Company tract, for a total distance of
121.0.45 feet to a point for corner;
THENCE North 00°25' 18" West, with the northernmost east line of said Castle Hills Property
Company tract, at a distance of 97.47 feet passing the northernmost comer, and continuing with
said south right-of-way line of State Highway 121, for a total distance of 226.47 feet to a point
for corner;
THENCE continuing with said south right-of-way line of State Highway 121 as follows:
North 63°32'06" East, for a distance of 130.52 feet to a point for corner;
North 60°22'33" East, for a distance of 80.86 feet to a point for corner,
South 29°13'03" East, for a distance of 50.00 feet to a point for corner,
North 60°47'38" East, for a distance of 219.64 feet to the POINT OF BEGINNING and
CONTAINING 218,740 square feet or 5.02 acres of land, more or less.
Exhibit A Page 14
1775.0 104109.7
METES AND BOUNDS DESCRIPTION
TRACT 2
BEING a 377.68 acre tract of land situated in the Thomas A. West Survey, Abstract No. 1344,
the B.B.B. & C.R. Survey, Abstract No. 173, the B.B.B. & C.R. Survey, Abstract No. 174 and
the M.D.T. Hallmark. Survey, Abstract No. 570, City of The Colony, Denton County, Texas,
being part of a tract of land described as Tract I as conveyed by deed to Maharishi Global
Development Fund, as recorded in Volume 4555, Page 281, Official Public Records, Denton
County, Texas, being part of a called 122.8106 acre tract of land conveyed by Correction Deeds
to Crow-Billingsley UMF Plano, Ltd., as recorded in Instrument No. 2004-44212, 2004-44213,
2004-44214 and 2004-44218, Official Public Records, Denton County, Texas, and being a part of
McKarny Road (an unrecorded right-of-way) SAVE AND EXCEPT those certain tracts of land
conveyed in deeds recorded in Volume 5366, Page 977, Instrument No. 2006-49955, 2006-49957
and 2006-75193, Official Public Records, Denton County, Texas, Said remaining 377.68 acre
tract of land being more particularly described by metes and bounds as follows:
BEGINNING at a found TxDot brass cap in concrete for the northeast corner of said 377.68 acre
tract, being the intersection of the south right-of way litre of Sam Rayburn Tollway {State
Highway 121) (a variable width R.O.W.) and the west right-of-way line of Burlington Northern
Railroad (a 100 foot R.O.W. at this point);
THENCE continuing with said west right-of-way line of Burlington Northern Railroad as
follows:
THENCE South 06°59'58" East, for a distance of 832.17 feet to a point for corner, being
the beginning of a tangent curve to the right having a radius of 3703.75 feet, a central
angle of 13°04'33" and a long chord which bears South 00°27'42" East, 843.42 feet,
THENCE southeasterly, along said curve to the right, an are distance of 845.26 feet to a
point for corner;
THENCE South 06°04'35" West, for a distance of 2524.64 feet to a point for corner;
THENCE North 83°17'00" West, for a distance of 190.16 feet to a point for corner,
THENCE South 00°51'51 " East, for a distance of 970.10 feet to a point for comer,
THENCE South 89°03'50" West, for a distance of 31.58 feet to a point for comer,
THENCE South 01'14'37" East, for a distance of 448.38 feet to a point for corner, being
the northeast corner of a tract of land conveyed by deed to Frankford Road Investors No.
1, as recorded in Instrument No. 2006-49957, Official Public Records, Denton County,
Texas;
Exhibit A Page 15
1775.010\24109.7
THENCE North 87°06'22" West, leaving said west right-of-way line and following along the
north line of said Frankford Road Investors No. 1, for a distance of 1240.48 feet to a point for
corner, being in the northerly right-of-way line of Plano Parkway (a 100 foot R.O.W.), and being
the beginning of a non-tangent curve to the left having a radius of 1130.40 feet, a central angle of
103°16'58" and a long chord which bears North 38°43'34" West, 1772.16 feet;
THENCE continuing with said northerly right-of-way line of Plano Road as follows:
THENCE northwesterly, along said non-tangent curve to the left, an arc distance of
2036.97 feet to a point for corner,
THENCE South 89°38'05" West, for a distance of 647.23 feet to a point for corner, being
the beginning of a non-tangent curve to the right having a radius of 950.00 feet, a central.
angle of 40°05'36" and a long chord which bears North 70°19'29" West, 651.29 feet;
THENCE northwesterly, along said non-tangent curve to the right, an arc distance of
664.77 feet to a point for comer, being the beginning of a reverse curve to the left having
a radius of 1050.00 feet, a central angle of 4014'10" and a long chord which bears North
70°21'30" West, 722.31 feet;.
THENCE northwesterly, along said reverse curve to the left, an are distance of 73737
feet to a point for comer-;
THENCE South 89°31'25" West, for a distance of 623.83 feet to a point for comer, being
the beginning of a tangent curve to the right having a radius of 950.00 feet, a central angle
of 52°49'04" and a long chord which bears North 64°04'03" West, 845.07 feet;
THENCE northwesterly, along said curve to the right, an are distance of 875.75 feet to a point for
comer, being the most southerly point of a comer-clip with said south right-of-way line of Sarre
Rayburn Tollway (State Highway 121);
THENCE North 08°46'31 " East, along said comer-clip, for a distance of 26.03 feet to a point
for corner, being in said south right-of-way line of Sam Rayburn Tollway (State Highway
121):,
THENCE continuing with said south right-of-way line of Sarre Rayburn Tollway (State
Highway 121) as follows:
THENCE North 60°47'38" East, for a distance of 203.71 feet to a point for corner;
THENCE North 58°17'36" East, for a distance of 252.11 feet to a point for corner;
THENCE North 55°47'40" East, for a distance of 105.11 feet to a point for comer;
Exhibit A Page 16
1775.010x24109.7
THENCE North 58°17'42" East, for a distance of 248.62 feet to a point for corner;
THENCE North 60°47'38" East, for a distance of 263.85 feet to a point for comer;
THENCE North 76°30'51" East, for a distance of 92.27 feet to a point for corner;
THENCE North 65°56'12" East, for a distance of 100.40 feet to a point for corner;
THENCE North 64'1 Y39" East, for a distance of 100.18 feet to a point for corner;
THENCE North 60°16'36" East, for a distance of 39.88 feet to a point for corner;
THENCE South 74"12'01" East, for a distance of 70.70 feet to a point for comer;
THENCE North 60°47'38"' East, for a distance of 64.12 feet to a point for comer;
THENCE North 15°47'17" East, for a distance of 73.27 feet to a point for corner;
THENCE North 59°04'32" East, for a distance of 94.25 feet to a point for comer;
THENCE North 55°39'04" East, for a distance of 100.40 feet to a point for corner;
THENCE North 47°3754" East, for a distance of 114.18 feet to a point for corner;
THENCE North 60°47'38" East, for a distance of 3800.00 feet to a point for comer;
THENCE North 65°20'10" East, for a distance of 189.41 feet to a point for corner,
THENCE North 61 °56'23" East, for a distance of 100.02 feet to a point for corner;
THENCE North 63°39'23" East, for a distance of 100.12 feet to a point for comer;
THENCE North 64"4753" East, for a distance of 100.24 feet to a point for corner;
THENCE North 66030'16" East, for a distance of 201.00 feet to a point for corner;
THENCE North 65°56'12" East, for a distance of 100.40 feet to a point for comer;
THENCE North 66°30'16" East, for a distance of 100.50 feet to a point for comer;
THENCE North 63°05'04" East, for a distance of 100.08 feet to a point for comer;
THENCE North 64°13'39" East, for a distance of 100.18 feet to a point for corner;
THENCE North 83°0527" East, for a distance of 69.58 feet to a point for corner;
Exhibit A Page 17
1775.010'24109.7
THENCE North 60"39'18 " East, for a distance of 33.81 feet to the POINT OF
BEGINNING and CONTAINING 16,451,919 square feet or 377.68 acres of land, more
or less.
METES AND BOUNDS DESCRIPTION
TR ACT I
BEING a 51.11 acre tract of land situated in the R.P. Hardin Survey, Abstract No. 611 and the
B.B.B. C.R. Survey, Abstract No. 174, City of The Colony, Denton County, Texas, and being
all of a called 27.073 acre tract of land conveyed by deed to Sealy Spring Creep Partners, L.P., as
recorded in Instrument No. 2007-83136 and all of a called 23.990 acre tract of land conveyed by
deed to Whiteford Limited Partners, as recorded in Instrument No. 2004-132215 Official Public
Records, Denton County, Texas. Said 51.11 acre tract of land being more particularly described
by metes and bounds as follows:
BEGINNING at a found TxDot brass cap in concrete for the northeast corner of said Scaly
Spring Creek Partners tract, being the intersection of the south right-of-way line of Sam Rayburn
Tollway (State Highway 121) (a variable width R.O.W.) and the west right-of-way line of West
Spring Creep Parkway (a 160 foot R.O.W.);
THENCE South 29°24'43" East, along said west right-of-way line of West Spring Creek
Parkway, for a distance of 265.52 feet to a point for comer, being the beginning of a non-tangent
curve to the right having a radius of 970.00 feet, a central angle of 29°13'42" and a long chord
which bears South 14°53'13" East, 489.48 feet;
THENCE southeasterly, along said west right-of-way line and said non-tangent curve to the right,
an are distance of 494.83 feet to a point for corner;
THENCE South 00°22'42" East, continuing along said west right-of-way line, for a distance of
476.17 feet to a point for corner, being the northeast corner of said Whiteford Limited Partners
tract;
THENCE South 00°23'35" East, continuing along said west right-of-way line, for a distance of
864.92 feet to a point for comer, being the northeast comer of Lot 1, Block A, Dings Ridge
Addition, Phase Three, an addition to the City of Plano, as recorded in Cabinet X, Page 450, Plat
Records, Denton County, Texas;
THENCE South 89°40'20" West, leaving said west right-of-way line, and following along the
south line of said Whiteford Limited Partners tract and the north line of said Block A, Kings
Ridge Addition, Phase Three, being a common line, for a distance of 1199.93 feet to a point for
comer, being the northwest comer of Lot 23 of said Bloch A, Kings Ridge Addition, Phase
Three, being in the cast right-of-way line of Burlington Northern Railroad (a 100 foot R.O.W. at
Exhibit A Page 18
1775.011124109.7
this point), and being the beginning of a non-tangent curve to the left having a radius of 3487.75
feet, a central angle of 8°31'36" and a long chord which bears North 01 °45'21 " West, 518.57 feet;
THENCE northwesterly, leaving said common line, and following along said east right-of-way
line of Burlington Northern. Railroad and said non-tangent curve to the left, an are distance of
519.05 feet to a point for corner,
THENCE North 06°43'29" West, continuing along said east right-of-way line, for a distance of
345.89 feet to a point for corner, being the northwest corner of said Whiteford Limited partners
tract;
THENCE North 07'03'01 " West, continuing along said east right-of-way line, for a distance of
628.03 feet to a point for corner, being in said south right-of-way line of Sam Rayburn Tollway,
THENCE North 60°4558" East, leaving said east right-of-way line and following along said
south right-of-way line of Sam Rayburn Tollway, for a distance of 254.35 feet to a point for
comer,
THENCE North 63°19'112" East, continuing along said south night-of-way line, for a distance of
585.96 feet to a point for corner;
THENCE North 60°52'09" East, continuing along said south right-of-way line, for a distance of
369.37 feet to the POINT OF BEGINNING and CONTAINING 2,226,193 square feet or 51.11
acres of land, more or less.
Exhibit A page 19
1775,010\24109.7
City Manager's Fiscal Impact Statement
Chapter 380 Sales Tax Performance Agreement
November 15, 2011
The fiscal impact schedule for the Chapter 380 Sales Tax Performance Agreement is defined in the
Preliminary Zone Financing Plan, Exhibit "E" - Economic FeasibiCity Study of a Proposed Mixed-Use
Development Project in The Colony, Texas; Dated October 26, 2011. Any costs associated with this
measure for the first three years and thereafter will be offset by the future tax revenue generated by
the development.
Tr a Powell
City Manager
1775.010124181.2