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HomeMy WebLinkAbout2010-142FILE REFERENCE FORM 1 2010-142 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials First Amendment - Ordinance No. 2010-210 09/14/10 JR Second Amendment - Ordinance No. 2014-143 05/13/14 JR Third Amendment - Ordinance No. 2015-331 11/10/15 JR Fourth Amendment - Ordinance No. 2017-113 04/04/17 JR s.\legal\our documents\1Jrdinances\10\380 amended agr-allegiance hillview doc ORDINANCE NO. 2010-142 AN ORDINANCE APPROVING A CHAPTER 380 ECONOMIC DEVELOPMENT GRANT AGREEMENT WITH ALLEGIANCE HILLVIEW, LP; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Allegiance Hillview, LP ("Allegiance") has made a request of the City of Denton ("City") to establish an economic development program under Chapter 380 of the Texas Local Government ("Chapter 380") to stimulate the development of commercial property within the City of Denton; and WHEREAS, on May 15, 2007, the City Council adopted Ordinance No. 2007-113 which included an Economic Development Grant Agreement (the "Original Agreement") establishing an economic development program under Chapter 380; and WHEREAS, on March 10, 2009, the City Council adopted Ordinance No. 2009-064 which amended the Original Agreement (the "Amendment"); and WHEREAS, Allegiance has requested that certain terms of the Original Agreement, as amended by the Amendment, be again amended; and WHEREAS, due to the nature of the requested amendments and to clarify the intent of the parties, Allegiance and the City desire to enter into a new agreement ("Agreement") with regard to the economic development grant described herein; and WHEREAS, it is in the public interest to authorize the approval of the Agreement, which is attached hereto and made a part of, NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this Ordinance are incorporated into the body of this Ordinance. SECTION 2. The Mayor, or the Mayor Pro Tern, is hereby authorized to execute the Agreement on behalf of the City of Denton and to exercise all rights and duties of the City of Denton under this Agreement, including without limitation the authorization to make the expenditures set forth in the Agreement. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the15th day of , 2010. -f. s.\legal\our documents\ordinances\10\380 amended agr-allegiance hillview.doc ATTEST: - JENNIFER WALTERS, CITY SECRETARY BY: At APPRO ED J TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: t a Page 2 THE STATE OF TEXAS § COUNTY OF DENTON 5 ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH ALLEGIANCE HILLVIEW, L.P. This Economic Development Program Grant Agreement (this "Agreement") is made and entered into by and between ALLEGIANCE HILLVIEW, L.P. ("Grantee"), a New York Limited Partnership, and the CITY OF DENTON, TEXAS (the "City"), a Texas municipal corporation, for the purposes and considerations stated below. Grantee and the City are individually referred to as a "Party" and collectively as the "Parties." Section 1. Authorization. This Agreement is made pursuant to the Economic Development Program provisions of TEXAS LOCAL GOVERNMENT CODE, Chapter 380 (the "Act") to promote local economic development and to stimulate business and commercial activity in the City. Section 2. Definitions. "Eligible Improvements" means any improvements included within the categories identified on Exhibit A. "Eligible Phase I Costs" means the actual amounts paid for Eligible Improvements in Phase I, including amounts paid for the Highway 380 Improvements. "Eligible Phase II Costs" means (i) the actual amounts paid for Eligible Improvements in Phase II plus (ii) the amount by which the amounts paid for Eligible Improvements in Phase I exceed $20 million. "Grantee" means Allegiance Hillview, L.P., and its successors and assigns as permitted by this Agreement. Page 1 1915\010\951 1.2 "Highway 380 Improvements" means the reconstruction of US Highway 380 consisting of two additional lanes (one on the north side and one on the south side of the highway) from the intersection of US 380 and Bonnie Brae to the intersection of US 380 and the nearest service road right-of-way for Interstate 35, including utility relocations required by the reconstruction. "Monthly Sales Tax Report" means the monthly report received from the Texas State Comptroller that shows the amount of Total Taxable Sales for a month period. "Phase I" means the portion of the Property located north of US 380, consisting of approximately 153 acres described in Exhibit B. "Phase II" means the portion of the Property located south of US 380, consisting of approximately 257 acres described in Exhibit B "Program Effective Date for Phase I" is defined in Section 3 of this Agreement. "Program Effective Date for Phase II" is defined in Section 3 of this Agreement. "Program Grant for Phase I" means 240 consecutive monthly payments made by the City to Grantee beginning on the Program Effective Date for Phase I and continuing for the term of the Program Grant for Phase I as described in Section 4.1 of this Agreement. Each monthly payment will be calculated as a percentage of the 1.5% sales tax collected by the City with respect to Total Taxable Sales in Phase I as reported in the Monthly Sales Tax Report, all as described in Section 5.1 of this Agreement. "Program Grant for Phase II" means 240 consecutive monthly payments made by the City to Grantee beginning on the Program Effective Date for Phase II and continuing for the term of the Program Grant for Phase II as described in Section 4.2 of this Agreement. Each monthly payment will be calculated as a percentage of the 1.5% sales tax collected by the City with respect to Total Taxable Sales in Phase II as reported in the Monthly Sales Tax Report, all as Page 2 1915\010\9511.2 described in Section 5.2 of this Agreement "Property" means the approximately 410 acres described on Exhibit B. "Required Infrastructure for Phase I" means the road and public utility infrastructure required to obtain final certificates of occupancy for the Retail Improvements or a phased portion of the Retail Improvements in Phase I, including but not limited to, Highway 380 Improvements and the road and utilities in Phase I that will be needed to serve the contemplated residential development at the north of Phase I. "Required Infrastructure for Phase II" means the road and public utility infrastructure required to obtain final certificates of occupancy for the Retail Improvements or a phased portion of the Retail Improvements in Phase II, including but not limited to the portion of Heritage Trail located within Phase 11. "Retail Improvements in Phase I" means a minimum of 400,000 gross square feet (as measured to the exterior building walls) of retail or commercial shopping center buildings located in Phase I. "Retail Improvements in Phase II" means a minimum of 600,000 gross square feet (as measured to the exterior building walls) of retail or commercial shopping center buildings located in Phase II, comprised of the Town Center (as described by the zoning applicable to the Property), and other retail development in Phase II. "Substantial Completion" means: (i) with respect to the Retail Improvements in Phase I, when final certificates of occupancy have been issued for the Retail Improvements in Phase I; (ii) with respect to the Required Infrastructure for Phase I, when the Required Infrastructure for Phase I has been constructed and inspected in accordance with City and TxDot standards, as applicable, and as required to obtain final certificates of occupancy for the Retail Improvements or a phased portion of the Retail Improvements in Phase I; (iii) with respect to the Retail Improvements in Phase II, when final certificates of occupancy have been issued for the Retail Page 3 1915\010\9511.2 Improvements in Phase 11; and (iv) with respect to the Required Infrastructure for Phase II, when the Required Infrastructure for Phase II has been constructed and inspected in accordance with City and TxDot standards, as applicable, and as required to obtain final certificates of occupancy for the Retail Improvements or a phased portion of the Retail Improvements in Phase II. "Total Taxable Sales" means the total amount of all sales from which sales and use tax are collected from businesses located in Phase I or Phase II, as applicable, excluding sales occurring at any Dillard's, J.C. Penney Co., Macy's, Sears Roebuck and Co., Barnes & Noble, DSW (Discount Shoe Warehouse), and Ross Dress for Less that locates within the Property and closes any store located within the retail shopping area commonly known as the "Golden Triangle Mall." "TxDot" means the Texas Department of Transportation. "US 380" means U.S. Highway 380. Section 3. Terms of Program Grants for Phase I and Phase II. 3.1. Program Grant for Phase I. This Agreement shall be effective as of the date executed by both parties. At any time following execution of this Agreement and following Substantial Completion of the Required Infrastructure for Phase I (but not later than January 1, 2013), Grantee may designate the first day of any month to be the Program Effective Date for Phase I by providing written notice to the City at least 60 days prior to the designated Program Effective Date for Phase I. The City will begin making Program Grant for Phase I monthly installment payments on the designated Program Effective Date for Phase I and shall continue to make such monthly installment payments for 240 consecutive months as provided by this Agreement. This Agreement will terminate with respect to the Program Grant for Phase I upon the earlier to occur of (i) the date Grantee has been paid for the full amount of the Eligible Phase I Costs and the Eligible Phase II Costs, or (ii) 240 months after the Program Effective Date for Phase I regardless of whether Grantee has been paid the full amount of the Eligible Phase I Costs and Eligible Phase II Costs. Page 4 1915\010\9511.2 3.2 Program Grant for Phase II. This Agreement shall be effective as of the date executed by both parties. At any time following execution of this Agreement and following Substantial Completion of the Required Infrastructure for Phase II (but not later than January 1, 2015), Grantee may designate the first day of any month to be the Program Effective Date for Phase II by providing written notice to the City at least 60 days prior to the designated Program Effective Date for Phase II. The City will begin making Program Grant for Phase II monthly installment payments on the designated Program Effective Date for Phase II and shall continue to make such monthly installment payments for 240 consecutive months as provided by this Agreement. This Agreement will terminate with respect to the Program Grant for Phase II upon the earlier to occur of (i) the date Grantee has been paid for the full amount of the Eligible Phase II Costs, or (ii) 240 months after the Program Effective Date for Phase 11 regardless of whether Grantee has been paid the full amount of the Eligible Phase II Costs Section 4. Installment Payments for Program Grants for Phase I and Phase II. 4.1. Program Grant for Phase I. For each month during the term of the Program Grant for Phase I, the City agrees, subject to the conditions contained in this Agreement, to make a Program Grant for Phase I installment payment to Grantee on or before thirty days following the City's receipt from the State Comptroller of the Monthly Sales Tax Report indicating Total Taxable Sales from the businesses located in Phase I. The Program Grant for Phase I installment payments shall be calculated as provided in Section 5.1 of this Agreement. Issuance of the first certificate of occupancy by the City to any tenant within Phase I shall be a condition precedent to the initiation of Program Grant for Phase I installment payments. Program Grant for Phase I installment payments may be withheld at any time if there are delinquent property taxes on any property owned by Grantee and located in the City, and such installment payments will not be resumed until such delinquency is cured. Notwithstanding anything contained herein to the contrary, if Substantial Completion of the Retail Improvements in Phase I has not occurred on or before January 1, 2013, the City, in its sole discretion, may cease the Program Grant for Phase I installment payments and terminate this Agreement as to the Program Grant for Phase I, and Grantee will refund to the City all Program Grant for Phase I installment payments previously Page 5 1915\0 1 0\9511.2 made. In addition, the City, in its sole discretion, may terminate this Agreement as to the Program Grant for Phase I if Substantial Completion of the Required Infrastructure for Phase I has not occurred on or before January 1, 2013. 4.2. Program Grant for Phase II. For each month during the term of the Program Grant for Phase II, the City agrees, subject to the conditions contained in this Agreement, to make a Program Grant for Phase II installment payment to Grantee on or before thirty days following the City's receipt from the State Comptroller of the Monthly Sales Tax Report indicating Total Taxable Sales from businesses located in Phase II. The Program Grant for Phase II installment payments shall be calculated as provided in Section 5.2 of this Agreement. Issuance of the first certificate of occupancy by the City to any tenant within Phase II shall be a condition precedent to the initiation of Program Grant for Phase II installment payments. Program Grant for Phase II installment payments may be withheld at any time if there are delinquent property taxes on any property owned by Grantee and located in the City, and such installment payments will not be resumed until such delinquency is cured. Notwithstanding anything contained herein to the contrary, if Substantial Completion of the Retail Improvements in Phase II has not occurred on or before January 1, 2015, the City, in its sole discretion, may cease the Program Grant for Phase II installment payments and terminate this Agreement as to the Program Grant for Phase II, and Grantee will refund to the City all Program Grant for Phase II installment payments previously made. In addition, the City, in its sole discretion, may terminate this Agreement as to the Program Grant for Phase II if Substantial Completion of the Required Infrastructure for Phase II has not occurred on or before January 1, 2015 Section 5. Calculation of Installment Payments for Phase I and Phase II. 5.1. Program Grant for Phase I. Program Grant for Phase I monthly installment payments during the term of the Program Grant for Phase l (as set forth in Section 3.1) shall be calculated as 50% of the 1.5% sales tax collected by the City with respect to the Total Taxable Sales from businesses in Phase I as established by the most recent State Comptroller's Monthly Sales Tax Report. The City's obligation to make such payments is contingent upon the City's receipt of the Monthly Sales Tax Report; provided, however, if the State Comptroller ceases to Page 6 1915\010\9511.2 issue Monthly Sales Tax Reports, the City and Grantee shall cooperate to arrive at a reasonably equivalent and mutually agreeable alternative method of computing the Program Grant for Phase I monthly installment payments. Payments of the Program Grant for Phase I monthly installment payments will be used FIRST, to repay Grantee for Eligible Phase I Costs up to a maximum of $20 million and THEN to repay Grantee for Eligible Phase 11 Costs up to a maximum of $42 million, providing that Phase Il installments have been initiated. Any adjustments resulting from overpayment or underpayment of sales tax by a retail business located within Phase I will be reflected in the monthly Program Grant for Phase I installment payment in which such overpayment or underpayment was reported by the State Comptroller. If for any reason the City is required to remit to the State Comptroller sales tax previously collected on reported sales within Phase I, the next scheduled Program Grant for Phase I installment payment will be adjusted by the amount of overpayment or underpayment. Should the adjustment result in a negative Program Grant for Phase I installment payment due, Grantee will remit the balance to the City within 30 days. 5.2. Program Grant for Phase 11. Program Grant for Phase 11 monthly installment payments during the term of the Program Grant for Phase II (as set forth in Section 3.2) shall be calculated as 50% of the 1.5% sales tax collected by the City with respect to the Total Taxable Sales from businesses in Phase II as established by the most recent State Comptroller's Monthly Sales Tax Report. The City's obligation to make such payments is contingent upon the City's receipt of the Monthly Sales Tax Report; provided, however, if the State Comptroller ceases to issue Monthly Sales Tax Reports, the City and Grantee shall cooperate to arrive at a reasonably equivalent and mutually agreeable alternative method of computing the Program Grant for Phase lI monthly installment payments. Payments of the Program Grant for Phase II monthly installment payments will be used to repay Grantee for Eligible Phase II Costs up to a maximum of $42 million. Any adjustments resulting from overpayment or underpayment of sales tax by a retail business located within Phase II will be reflected in the monthly Program Grant for Phase II installment payment in which such overpayment or underpayment was reported by the State Page 7 1915\0 1 0\9511.2 Comptroller. If for any reason the City is required to remit to the State Comptroller sales tax previously collected on reported sales within Phase II, the next scheduled Program Grant for Phase II installment payment will be adjusted by the amount of overpayment or underpayment. Should the adjustment result in a negative Program Grant for Phase II installment payment due, Grantee will remit the balance to the City within 30 days. Section 6. Other Grantee Obligations. In consideration of the Program Grant for Phase I and the Program Grant for Phase II, Grantee agrees as follows: 6.1 The Retail Improvements in Phase I and the Retail Improvements in Phase II shall be designed and constructed in accordance with the Rayzor Ranch Architectural Guidelines. 6.2 In the event of tenant turnover, Grantee shall diligently seek to obtain quality retail tenants that are new to the Denton retail market. However, existing Denton retail businesses shall not be prohibited from leasing retail space at the Property. 6.3 Grantee shall fund the Highway 380 Improvements and shall guarantee funding by providing the City with an irrevocable letter of credit pursuant to the Development Agreement for Rayzor Ranch (US 380). Failure to provide the letter of credit will be a default under this Agreement, and the City may withhold all Program Grant for Phase I and Program Grant for Phase II installment payments until an executed letter of credit is received by the City. Should Grantee receive reimbursement for the Highway 380 Improvements from TxDot, the amount of such reimbursement shall be deducted from the total amount of the Eligible Costs. 6.4 The Property will not be conveyed during the term of this Agreement to any entity whose ownership of the Property would cause the Property to become exempt from ad valorem taxes unless an agreement with the City to ensure a program of payments in lieu of ad valorem taxes has first been agreed upon; provided, however, this Section 6.4 shall not apply to the property designated for the future museum to be located on the Property, or property designated for parks or other public uses, including Cook Children's Hospital and the Denton Municipal Electric substation sites. Page 8 1915\010\9511.2 6.5 Grantee has dedicated within the Property all required right-of-way for the future expansion of Bonnie Brae as a secondary arterial. 6.6 In the event Grantee or any of its affiliates purchases any retail buildings in the retail shopping area commonly known as the "Golden Triangle Mall," Grantee or its affiliate shall offer in writing to sell such buildings to FMP Denton, LLC for: (i) the then fair market value of such buildings as established by a qualified, independent MAI appraiser, or (ii) the amount of any arms -length offer to purchase such buildings received by Grantee or its affiliate from any third -party retail user unrelated to Grantee or any of its affiliates, whichever is greater. Section 7. Audits and Monitoring. From time to time prior to and after the initiation of the Program Grant Installment Payments for Phase 1, Grantee will submit statement(s) of Eligible Costs for Phase I expenditures. City will review the statement(s) and within 30 days provide Grantee with a letter, signed by the City Manager or his designee, notifying Grantee that items on the statement(s) are approved or denied as "eligible costs" or requesting additional detail if needed to make the determination of eligibility. From time to time prior to and after the initiation of the Program Grant Installment Payments for Phase lI, Grantee will submit statement(s) of Eligible Costs for Phase II expenditures. City will review the statement(s) and within 30 days provide Grantee with a letter, signed by the City Manager or his designee, notifying Grantee that items on the statement(s) are approved or denied as "eligible costs" or requesting additional detail if needed to make the determination of eligibility. During the term of this Agreement, the City reserves the right to conduct audits of the sales and use tax records of businesses located within the Property if, in the sole opinion of the City, such action is determined to be necessary. Grantee agrees upon request to use reasonable efforts to assist the City in obtaining such records from tenant taxpayers. Failure to provide such assistance shall be grounds for default, and City may withhold any Program Grant installment payments until such assistance is provided. During the term of this Agreement, the City will Page 9 1915\010\951 1.2 keep, or cause to be kept, copies of the Monthly Tax Reports and proper and current books and accounts in which complete and accurate entries shall be made of the amount of sales taxes received by the City from the State of Texas attributed to retail sales within both Phase I and Phase II and such other calculations, allocations and payments required by this Agreement. During the term, the City shall prepare within 180 days after the close of each fiscal year of the City, a complete financial statement for such year in reasonable detail covering the above information, and shall furnish a copy of such statement to Grantee. Upon the request of Grantee, and at Grantee's expense, City shall have the annual Program Grant for Phase I and the Program Grant for Phase II financial statements prepared by an independent certified public accountant. Upon request of Grantee, City shall provide copies of City -records related to the Program Grant for Phase I and/or the Program Grant for Phase II to investors, lenders, or other parties designated by the Grantee. Section 8. Default. If a party fails to perform any of its obligations under this Agreement and such failure is not cured within 30 days after written notice, the failure of the non- performing party to cure within such 30 day period (or to commence to cure if the nature of the failure cannot reasonably be cured within 30 days) shall constitute a default under this Agreement and shall entitle the non -defaulting party to all remedies available at law or in equity (including injunctive relief, specific performance, and suspending or withholding Program Grant for Phase I or Program Grant for Phase II payments); PROVIDED, HOWEVER, NOTWITHSTANDING THE FOREGOING, (i) MONETARY DAMAGES SHALL BE LIMITED TO THE AMOUNT NECESSARY TO ENFORCE SPECIFIC PERFORMANCE OF THE FAILED OBLIGATION; (ii) THE CITY CANNOT TERMINATE THIS AGREEMENT AS TO PHASE I UNLESS (1) SUBSTANTIAL COMPLETION OF THE RETAIL IMPROVEMENTS IN PHASE I DOES NOT OCCUR ON OR BEFORE JANUARY 1, 2013 AS PROVIDED BY SECTION 4 HEREOF, (2) SUBSTANTIAL COMPLETION OF THE REQUIRED INFRASTRUCTURE FOR PHASE I DOES NOT OCCUR ON OR BEFORE JANUARY 1, 2013 AS PROVIDED BY SECTION 4 HEREOF, OR (3) GRANTEE IS IN DEFAULT OF ITS OBLIGATION TO PROVIDE THE LETTER OF CREDIT AS PROVIDED BY SECTION 6.3 HEREOF; (iii) THE CITY CANNOT TERMINATE THIS AGREEMENT AS TO PHASE II UNLESS (1) SUBSTANTIAL COMPLETION OF THE RETAIL IMPROVEMENTS IN PHASE II DOES NOT OCCUR ON OR BEFORE JANUARY 1, 2015 AS PROVIDED BY SECTION 4 HEREOF, (2) SUBSTANTIAL COMPLETION OF THE Page 10 1915\010\9511.2 REQUIRED INFRASTRUCTURE FOR PHASE II DOES NOT OCCUR ON OR BEFORE JANUARY 1, 2015 AS PROVIDED BY SECTION 4 HEREOF, OR (3) GRANTEE IS IN DEFAULT OF ITS OBLIGATION TO PROVIDE THE LETTER OF CREDIT AS PROVIDED BY SECTION 6.3 HEREOF; AND (iv) THE CITY MAY NOT TERMINATE, WITHHOLD OR SUSPEND PAYMENTS, OR TAKE ANY OTHER REMEDY WITH RESPECT TO PROGRAM GRANT FOR PHASE I PAYMENTS OR OTHERWISE RELATED TO PHASE I EXCEPT FOR DEFAULTS RELATED TO PHASE I AND THE CITY MAY NOT TERMINATE, WITHHOLD OR SUSPEND PAYMENTS, OR TAKE ANY OTHER REMEDY WITH RESPECT TO PROGRAM GRANT FOR PHASE II PAYMENTS OR OTHERWISE RELATED TO PHASE II EXCEPT FOR DEFAULTS RELATED TO PHASE II. Section 9. Mutual Assistance. The City and the Grantee shall do all things necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out the terms and provisions of this Agreement Section 10. Indemnity. It is understood and agreed that Grantee in performing its obligations hereunder is acting independently and the City assumes no responsibilities or liabilities in connection therewith to third parties and Grantee agrees to defend, indemnify and hold harmless the City from and against any and all claims, suits, and causes of action of any nature whatsoever arising out of Grantee's obligations hereunder. Grantee's indemnification obligations include the payment of reasonable attorney's fees and expenses incurred by the City in connection with such claims, suits, and causes of action. Section 11. Representations and Warranties by the City. The City represents and warrants that: 11.1 The City is a home rule Texas municipal corporation and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations hereunder; Page 11 1915\010\9511.2 1 1.2 The City knows of no litigation, proceedings, initiative, referendum, investigation or threat of any of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to Grantee; 11.3 The City knows of no law, order, rule or regulation applicable to the City or to the City's governing documents that would be contravened by, or conflict with the execution and delivery of this Agreement; 11.4 This Agreement constitutes a valid and binding obligation of the City, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. Subject to the indemnity provided by Section 10 of this Agreement, the City will defend the validity of this Agreement in the event of any litigation arising hereunder that names the City as a party or which challenges the authority of the City to enter into or perform its obligations hereunder. City recognizes that Grantee intends to commence construction and expend substantial monies in reliance upon the accuracy of the representation and warranty of the City as set forth in this Section 11. Section 12. Representations and Warranties by Grantee. Grantee represents and warrants that: 12.1 Grantee is a New York Limited Partnership duly organized and validly existing under the laws of the State of Texas and is, or will prior to the effective date of this Agreement, be qualified to do business in the State of Texas; has the legal capacity and the authority to enter into and perform its obligations under this Agreement; 12.2 The execution and delivery of this Agreement and the performance and observance of its terms, conditions and obligations have been duly and validly authorized by all necessary action on its part to make this Agreement; Page 12 1915\0 1 0\9511.2 12.3 Grantee knows of no litigation proceeding, initiative, referendum, or investigation or threat of any the same contesting the powers of the City, Grantee or any of its principals or officials with respect to this Agreement that has not been disclosed in writing to the City; and 12.4 Grantee has the necessary legal ability to perform its obligations under this Agreement and has the necessary financial ability, through borrowing or otherwise, to construct the Improvements. This Agreement constitutes a valid and binding obligation of Grantee, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. Section 13. Rights of Lenders and Interested Parties. The City is aware that financing for acquisition, development, and/or construction of the infrastructure and retail improvements required by this Agreement may be provided, in whole or in part, from time to time, by one or more third parties, including, without limitation, lenders, major tenants, equity partners and purchasers or developers of portions of the Property (individually, an "Interested Party" and collectively, "Interested Parties"). In the event Grantee fails to perform any of its obligations under this Agreement, all notices to which Grantee is entitled under Section 8 of this Agreement shall be provided to the Interested Parties at the same time they are provided to Grantee (provided the Interested Parties have previously been identified to the City and provided their notice addresses to the City). If any Interested Party is permitted under the terms of its agreement with Grantee, to cure the event of default and/or to assume Grantee's position with respect to this Agreement, the City agrees to recognize such rights of the Interested Party and to otherwise permit the Interested Party to cure the event of default and to assume all of the rights and obligations of Grantee under this Agreement. The City shall, at any time upon reasonable request by Grantee, provide to any Interested Party an estoppel certificate or other document evidencing that this Agreement is in full force and effect and that no event of default by Grantee exists hereunder (or, if appropriate, specifying the nature and duration of any existing event of default). Upon request by any Interested Party, the City will enter into a separate assumption or similar agreement with such Interested Party, consistent with the provisions of this Section 13. Page 13 1915\0 1 0\9511.2 Section 14. Compliance. This Agreement shall be conditioned upon and subject to compliance with all applicable federal, state and city laws, ordinances, rules and regulations, including, without limitation, all provisions of the Development Code of the City of Denton. Section 15. Limitation. This Agreement shall never be construed as constituting permission or authority for development or construction pursuant to Chapter 245 of the Texas Local Government Code. Section 16. Entire Agreement; Changes and Amendments. This Agreement constitutes the entire agreement of the Parties with regard to the subject matter hereof and supersedes and replaces in their entirety all prior agreements related to the subject matter hereof including, but not limited to, that certain "Economic Development Program Grant Agreement with Allegiance Hillview, LP" executed and effective on or about March 10, 2009, and passed and approved by City Ordinance No. 2009-064 dated March 10, 2009. Except as specifically provided otherwise in this Agreement, any alterations or deletions to the terms of this Agreement shall be by written amendment executed by both parties to this Agreement. Section 17. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the Parties, their respective successors and assigns. Grantee may assign all or part of its rights and/or obligations in or to or under this Agreement as related to Phase I and/or Phase II upon written notice to the City of such assignment. If an assignee agrees in writing to be bound by the terms and conditions of this Agreement and executes an amendment to this Agreement, the assignor shall be released as to the obligations assigned but not as to any obligations or liabilities of the assignor to the City that arose prior to the assignment. Section 18. Notice. Any notice and/or statement required or permitted to be delivered shall be deemed delivered five business days after being deposited in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses, or at such other addresses provided by the parties in writing. Any such notice and/or statement shall also be deemed delivered when delivered by a nationally recognized delivery Page 14 1915\010\9511.2 company (e.g., FedEx or UPS) with evidence of delivery signed by anyone at the delivery address. If to Grantee: Allegiance H it lv iew, L.P. 1345 Avenue of the Americas - 461h Floor New York, New York 10105 Attention: Constantine Dakolias, President with a copy to: Allegiance Hillview, L.P. 5221 North O'Connor Boulevard, Suite 700 Irving, Texas 75039 Attention: Andrew Osborne If to the City: City of Denton Attn: City Manager 215 E. McKinney Denton, Texas 76201 Phone: 940.349.8307 Fax: 940.349.8596 With a copy to: City of Denton Attn: City Attorney 215 E. McKinney Denton, Texas 76201 Phone: 940.349.8333 Fax: 940.382.7923 Section 19. Venue. The obligations of the Parties are performable in Denton County, Texas, and if legal action is necessary to enforce this Agreement, exclusive venue shall lie in Denton County, Texas. Section 20. Applicable Laws. This Agreement is made subject to the provisions of the Charter and ordinances of City, as amended, and all applicable state and federal laws. Page 15 191 5\010\951 1.2 Section 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. Section 22. Benefit of Agreement. This Agreement is executed solely for the benefit of the Parties and their successors and assigns, and nothing in this Agreement is intended to create any rights in favor of or for the benefit of any third party. Section 23. Legal Construction/Partial Invalidity of Agreement. In case any one 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 any other provision thereof and this Agreement shall be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. '1 4 EXECUTED and effective as of the day of 01me, 20107 by the City, signing by and through its Mayor, duly authorized to execute same by action of the City Council, and by Grantee, acting through its duly authorized officials. F D , TEXAS MARK A. URROUG , MAYOR • 9, r��e umsd T: , JE IFER WALTERS, CITY SECRETARY APPJdOVED ATO LEGAL FORM: lPlA'nc es ANITA BURGESS, CITY ATTORNEY Page 16 1915\010\9511.2 GRANTEE: ALLEGIANCE HILLVIEW, L.P., a New York limited partnership By: TH GP LLC, a Delaware limited liability company, d/b/a TH Denton GP LLC in the State of Texas, its general partner By: Name: Title: -h _ -eao ACKNOWLEDGMENTS STATE OF TEXAS § COUNTY OF DENTON 5 This instrument was acknowledged before me on the /6 day of 2010, by Mark A. Burroughs, Mayor of the City of Denton, Texas, on behalf of said city. JANE E. RICHARDSON Notary Public, State of Texas M, My Commission Expires June 27, 2013 STATE OF TEXAS S COUNTY OF 5 011j&A ' _,,Ztda2t) T46tary Public, in and for the State of Texas My Commission expires: Q e:,F7 /0 This instrument was acknowledged before me on the I ` day of ffuv,e. , 2010, by AjNd,trj, U,s 6e)f-uP , the of TH GP LLC, a Delaware limited liability company, d/b/a TH Denton GP LLC in the State of Texas, the General Partner of Allegiance Hillview, L.P., a New York limited partnership, on behalf of the limited liability company and limited partnership. Page 17 1915\010\951 1.2 1�. 0 W.m� Notary Public, in and for the State of Texas My Commission expires: 10-3 S - a.O 13 Y P(DEBORAH VICK Notary Public, State of Texas My Commission Expires October 31, 2013 Page 18 1915\010\9511.2 EXHIBIT A CATEGORIES OF ELIGIBLE IMPROVEMENTS Categories of Eligible Improvements Estimated Costs Hwy 380 Improvements $ 8,133,150 Site drainage 4,720,750 Regional drainage improvements 2,696,750 Internal commercial roads, including water, sewer, streetscapes, plazas and amenities 20,004,064 Scripture Road improvements 675,050 Bonnie Brae improvements 1,271,900 Public Parking garage 6,730,375 Major public infrastructure relocation 2,013,650 Miscellaneous fees/services 5,754,31 1 Interest during construction on non-residential development 10,000,000 TOTAL $6290009000 The actual cost of any individual Categories of Eligible Improvements may vary from the Estimated Costs shown on this Exhibit A. Grantee has the right to adjust individual line items of Estimated Costs of the individual Categories of Eligible Improvements so long as the Total of $62,000,000 is not exceeded. Page 19 1915\010\951 1.2 Exhibit B METES AND BOUNDS, PART ONE AND'PART TWO 41028 ACRES (rPTAL) FRANCIS BATSON SURVEY, ABSTRACT NO.43 B.B.B. & C.R.R. COMPANY SURVEY, ABSTRACT NO. 192 CITY OF DENTON, DENTON.COUNTY, TEXAS PART ONE BEING a tract°of land situated'in the Francis Batson Survoy, Abstract No. 43, in the City of Denton. -Denton County, Texas, "In!) all of a gllod-121.4759 acm tract (desdiptlon of SF.opil�rd Hal Trail. Tract 2). described in deed to Donlon Hillviow. LP.. recorded InDenton-Count► Clerleb Fite No: 2005-1274550 of the Real Property aocords of Denton County. Texas, all of a -called 0.2254 Gov tr3rJ:(Tract i), a Gaited 2.101T -acre tract (Tract 2) and a called•2.2200 ecru trad•{Tract 3) described In dead to Quantum rtl Denton Self Storage.. L.P., recorded In Volume 5021; Pago 01B47 of the Real Property Record of Denton County. Texas,_ part of a "led 18.269 acre tract. described'in dood to Denton Property Joint Venture, recorded ire Denton County. Cloth's File No. 00=RO101370 of tho Real Pmporty Records of Denton County, Texas. oil of a caitoci 2.999 acre Iract, described in dead to Do Hall Properties. Ltd., recorded In Denton County CtorWs File Na: 2005 40231 of the Real Property Records or Donton County. Taxes, being -part of a called 8.9217 acre tract of - land described in Deed to Mesquite Creak Developmflnt. Inc., raccrded in Vclume 456Z Page 0683 of the Real Property Records of Donlon County, Taxes, and all of Lot 1 of SANDY'ADD1TION, an addition tolhe City - of Denton. Donlon County, Texas, according to the plat thoroof recorded In Volume 13, Page 47 and Cabin J. Slide 348 at the Plat Records -of Denton County, Texas. and being Moro particulatty described by motes and bounds as -fellows: BEGINNING at a 1/2-inch Iran rod found for the north end of a comer cJip at the interseGtlon of the north right-af•way line of Wost University Drive (U.S. Highway No. 380, 8 100.20 foot wide pubEc right-of-way) and the west right-of-way line of Bonnio Bras Siraet (a variable width putilic right-of;way) far the most-04ia rty southeast comer of the boforementionad Lot- t of SANDY ADDITION; THENCE with tho comer clip, South 45'48'44' Wast.•n distance or 90.93 feet to a 314-inch iron rod found for coma r, THENCE with the north right -of -may line of West University Drive, the folldMng courses and dJctences to wit: --North 69.07'28' West, a disianco of 7.73.40 foot to a 5)8-Inch Iron rod. with KHA" cap set for comer. -North 80*5628" West, a distance of 1!61.77 root to oi-W-inch iron rod found for the Goulheast comer of the cal iad- 0.9217 acre tract; THENCE leaving the north right-of-way tine of West University Drive with The r_ast line or the 8.9217 ©cm tract. North 00`23'40' East. a distance of 276.40 toot to a point for comer. THENCE crossing the called 8.9217:ocre Iract, tho foilowing courses and distances to wit. ..North 89't0'62" Wast. a distance of 227.61 feel to a point for comer. -North 00059'35' East. a distance Of 80,89 rent to Q point 1cr oomar -North-89'00125' West, a dlclance of 29a.00-feat to a point lcreomQr In the east Tina of Lot 1..8lock A of PORTERIANDRUS ADDITION, on addition to the City of Dentorni Donlon County. Texas, ar.=rding to the Plat iheraof recorded in Cabinet O, Slide 45 of the Plat Records of Dentoti County, Texas; Papa i of 6 THENCE with the oast 11nt3 of Lot 1, Block A and the east line of Lot 2. Block A of PORTERlANDRUS ADDITION, an addition to the City oLDanton. Denton County. Texas. according to the plat thereof recorded in Cabinet V. Slide 656 of the Plat Records of Denton County. Texas, North 00OW47' West, a distance of 217,71 fern to a 518-inch Fron rod with 'KHA' cap sat for the nontme t comer of Lot 2, Block A; -THENCE with the north and wasi lines of Lot 2, Bloch A. -the folluMng courses and dunces to wit: —North 88'42'36' WBst, a di5loncer of 400.01 foe0o a t318-Inch Iron rod with 'KHA' ctp.5al for corner, —South 01'Z8 09'-West. a distance of 28.84 feet to a 5/0-tact► Iran rod with 'KHA' cap set for the narthaast comer of Lot 1R. 8fock 1 of ALVIN AND CHARLOTTE WHALEY ADDITION. an-addiWn to the City of Denton, Denton County, Texas. according to_tha'platthereof n orded in Cabinet I, Slide 148 of the P161 Records -of Denton County. Toms: THENCE leaving the west Ilno of Lot 2, Block A of PORTERIANDaUS-AD[}ITION wiiih the north kno of Lot 1R, Stock 1 or ALVIN AND CHARLOTTE WHALEY ADDITION. North 0003120' West, a distance 00'.399.39 feet to a 518•Inch iron nod with 'KHA' cop sot in the nodbesstarly dot- dlwtry llrto Interstate Highway No. 35 is vadbblo width public righl-of-way) forrlhe most northerly northwest comer of Lot 1 R, 01odc 1 of ALVIN AND CHARLOTTE %VKALEY ADDITION .THENCE leaving the north line of Lot 1R. Block t of. ALVIN AND CHARLOTTE YY1-tISLEY ADDITION with the nartheasiarly right-of4ay line interstate Highway�No. 35, North 16*OT54' Waal, a distance of 032.67 feat to a 5184neh iron rod with -KRA'-cap sot for the southwest carm of Lai 14 of GREENWAY CLUB -ESTATES, an addition to the-Clty of Donlon, Donlon County, Teitas. aocarding to the prat thereof named In Volume 4. Page 27 of the Plat Records of DentonCottrtty. Texas; THENCE leaving the northonstarly rlgfit-of-way Tina Intrm-tale Highway No. 35 with the south and east Tinos of GREENWAY CLUB ESTATES. lha following coursiDs and dlsLinces to vAt —North'73'1513' East, a d1slaricb-of 510.79 feet to a. 5184rtrh Iran rod % h'KHA' cap sot for the beginning of a verve to the right; --Easterly, with the curve in the right, Ihrough.0 contral ongla of 16047'40', havirtg a radius of 345.00 feat, and chard bearing -and distance, of Nonh:81639`03' East. 100.76 feat, an art distance of 101.13 feet to a 519-Inch iron rod with 'KHA" cap set for fhe and of Iha curve; o —North 80*58*43" East, a dietance of 364.46 fool to o! 1M-Inch iron rod with'J"" cap sat ide comer; —North 00'S7)04' West. a dislancn of 450.70 foot to a 518-inch iron rod with'KHA' cap set for me 0 southwest comer of Lai 1, Block 10 of WESTGATE HEIGHTS, an addti;on to its City of Denton, Oenton— County, Texas, according to the plat thereof recorded In Cab[net E, Slldo 78 of the Plat Records of ' Donlon County, Texas; THENCE laaving tho east line of GREENWAY CLVS ESTATES with tho south and easl lines of WESTGATE HEIGHTS, the following courses and distances to wit —North 89*3737" East, a distance of 40.23 feet to a &8-Inch irwt rod with 'KHA" cup set for camor, —South 87'3457' East, a distance of 1042.09 fain to a 518-inch Iron rod with 81�1 A rap set for corner, --North 00'3Z57' East, a disthnce of 318.04 feel Io a 5J0-inch Iran rod with'KHA' cep set (or the most is northerly northw©st,comer of.the bdforernanlionad 121,4759 nem tract o WHENCE leaving the east line of WESTGATE HEIGHTS With (he north line of the 121.4759 acre tract. South 09' 13'56' East, a distance of 2067:29 feel to a 5184rich itun rod with 'KHA' cap set in the west light -of -way e lino of Bonnie Brea Slraet: g w Page tof6 THENCE leaving tho north line or the 121.4759 acre tract with the west right-cf-way line of Bonnie Brae Stma. the following -courses and`distances lowit; --South 0017164 West..s distanca of 1455.38 foot toa 618-Inch Iron rod Wth'1(W cup set for comw, —South 00'2845" West. a distance of 566.70 foot to the POINT OF BEGINNING and containing 153.37 acres Orland. Bearing -system based upon Tams State Plane Coordinate Systorn. using morwmends R0510108 AND A061Ofl50. PART TWO BEING a tract of land situated in the B.B.B. & C.R.R. Company Survey, Attract No.192. in the City of Denton, Denton County. Texas; baing part of a called 265.6365 arm tract of land (dascriplion of Sticphard Hall Tract. Tract 1), described in dead to Denton Hiliview, L.P., recorded in Donlon County Ctorles File No. 2005.127450 of the Real Property Records of Denton County, Taxes, and all of Lot 3 of LOTS 1,2.0,3 PEARCYICHRiSTON ADDITION No. 1, an addition -to the City of Denton, Denton County; Texas, accordip.g.to the plot thereof nacondad in Cabinef 9, Slide 34 of the Plat Records of Denton Ccunl"j, Texas, and bding morn particulariy described by metes and bounds as follows: BEGINNING at a 518•inch Iron rod found in the south-righl-or-way line of West University Drive. (U.S. Highway No. 380. 8100.20 foot Wide public right-of-way) for tfte.nort.herty common conu+r of Lots 2 and 3 of tho beforerihenlibned LOTS 1,2.6.3 PEARCYICHRISTON ADD111ON; THENCE leaving the south right-cf-way. (lnt3 of Weal University Drive m6 th© common line of Lois 2 and 3, South 01'08'25' Wost, a distance of 600.00 fe©I to at10-Inch Iron nod found (ex tho southerly common comer of Lots 2 and 3; THENCE leaving the common line of Lots 2 and 3 with the south lines of Lot 2 and Lot 1-C. of LOTS 1-A, 1-B, 1-C PEARCYICHRISTON-ADDITION No. 1. an addition to the City of aenton. D©ntnn County. Texas. _ - according to the plat -thereof recorded in Cabinet L, Slide 108 of the Plat Records of Denton Cotmty, Texas. South 89'Oa'34' East. passing the southeast comer of LoI 1. C st a distance of 7.11.59 feet and mntinuirq for a total distance of 730.60-feet to a Sf8-Inch iron rod found In the west right-of-way fine of Bonnie Brae Sbreat (a variable width public right-ol-way) for the most easterly northeast comer of the beforem.antionod 265.6365 acre In3d; THENCE- with the west rignl-of-way line of Bonnto Brea-Streot, the (otlowirtg courses and distances to wit —South 0015054" West. a distance of 1438.01400t to a 618-inch iron red with 'KW cap set for comer; --South 00'48'51" West, a 6lstenCe of 1175.55 feet to a 515-Irch iron rod wilh'KlW cup set (or the beginning of a curve to the right;' Southwostody; with the curve to the right, through e Central engte of 45'01'5W. having a radius of 321.-07 foot. and chord bearing and distance of-South-23'19'47' Wort. 245.91 fool. art arc distw= of 252.35 feet to a 5164neb iron rod found for the beginning of a reverse curve -to the loft; -Southwesterly, with the the u,rvo to Iho left, through a central angle of 57'31'56', having a radius of 392:01 fool, and chord bearing and distance of South 17.04'48-1 Wasto-377.30 feet, an arc dlstanco of 393.63 fool to a 510-inch Iron rod-found`fortha and orthe curve; -South t i'41'100 East;: a distoncb.of 10.57 fool to a 5r8-Ind, Iron rod found fo.. the north and or a comor clip at the Intersection of the'north right-of-way lino of Scriplum Street (a variawo width public npht-oi-way) and the west right-of-way lire of Bonnie arao Street; THENCE with Ihe.comor dip, South W33'50' West, a distance of 11.49 feet to a VS -Inch Iran nod found for the south and of the comer dip,; Pago3of6 THENCE with -the north right-of-way line of Scripture Street. North W55=' Wesi, a distance of 1265.16 feet to a 5MInch Iron rod found in the south line of the 26tl33G5 acre trad: THENCE leaving the north right-of-way line of Scripture Skeet, tits foUowring courses and distances lovrit —North 01'02'00' East. a distance of 500.06-foal to a 51&lnrh Iron rod found for comer, —North-00050'00' Wost. a dfstenco of y61.56 feed to a 51 1i ch Ir>;n rod found for tamer; --South 01'02'00"West. a.drstance or 50om feet, to a 5t8-Inch iron rod found In the north rlghl-or-way lira of SCAPIVM Street; THENCE with the north right-of-way Ilne of Scripture Streol. the following courses and distances to wit: —North 8885600' West, a distance -of 318.44 foot to a 5184rKh iron nad.WLh "KHA' cep sat for comer, -North 08'426' West, a distances of 41.73 (eel toa 518-inch Iran rod found in the northeasterly right-of-way Ilne7lnterstale Highway No. 35 (a ver'ioble width public right-of-way) and the north right-of-way Eno of Scripture 5trool for the most southoriy soutirwag comer of the 258.6365 acm tract; THENCE with tho norlheosiody_right-ef:way line Interstate Highway No. 35, the (allowing courses and distances to w!k —North 15'60'30' Wesl. a distance. of 38.32 .feet lo-a 518-tnch inxti rod with'KHA" cap sot far corner. —North 16'24'00' Wesl. a distance -of 3494.36 foot to a 510-Inch Iran Md found for comer; —North 14'S0'0b" East. a distance of 171.01 feet to -a 3-Inch brass disk In eoricrele-fowid for comer, —North 46'04`12' East, a distance of 303 fly feet to a 518-Inch lion rod found for corner. —North - 60*327220 East. a distance of 114.22-fool to a 515-Inch I.•on rod found for comer. =North OD'5825' East; o d'islanca_of 13.09 foal to a eorimle monument found In ft south right-of-way Una of West Unlvsmity Drive;. _ THENCE leaving the northeasterly right-of-way tine Interstate Highway No. 35 veilh tho south right-of-way fine or Wast Univera.ily DdvoB the fotiowEng courseu and cislanoes tovel: n a —South 08*5620' East. a dlstence of 2440.00 foal to a 518-Inch Iron rood with "KW W set for corner- -South 09`01'07' East. a distance of 117.72 foal to the POINT OF BEGINNING and containing 256.01 g acres of land_ 10oarino system based upon Texas State Piano Coordinate System, ur-Ung monuments R0610108 AND R0510060. v This document was prepared under 22 TAC §663.21, does not reflect the results df an on the ground survey. � and is not to be used to convoy or establish Interests In reel property except Ihose ri" and intwusis I.-nplled or established by the creation or reconfiguration of the boundary of the Political subdivision far whlch il*was y propared. va �L • U IY _. V . u Page4of0 rt � PART ONF, 153.37ACRES FRANCIS PATSON SURVEY, ASSTRACTlVO.43 CITY OF DENTOIV, DENTnN COUNTY, TEXAS - sarnnaar cu pi 7 car 0 -16 .46 e€GiNMNG �;, � 4 Pry Alp 9 P - PAR? 1 C 153.37 ACRES , rsucs M as AD%O p�i�avr d QON.IIO wa s - IICL1. A. mm-11140 Cu"v 3.17N AM': Imam J7 -vML" . LLV 1�SA�iBry r�yOrtl�Ni AYI WI �fm[ N7 C w+cr�it l� ,r ARIP-aMs 4ILtI LMM wait �q {: r �cr r1 eu"nos.=a► a . . . . . . . MUM utr . .a �Anc i ad� Vol S $ ps �! Qw d 0J13I &O" Mar q `°` '°ram r "' =. u V y �. ~ dja7rw p 2�T.77 o g o fi� IJ L ww b 36� ace.: win a..iaar. ) r 3S `��•,Page � o � �a i AnulCm5.00 IL to �L. Qttt�a�� 5 of 6 COW 4i=kL t PART TWQ, 256:91 ACRES G.B.G. & C.RR COMPANY SURVEY , ABSTRACT N4, 102 CITY OF DFMTDN, DBMMM COUNTY, TEX43 • s+ua I r •$s 0=W7ar Cr&L 6�M r+•u f 1E C& (r j LETJJJ 'w Lwyo rr lus 1�1.711 r y14I wf.�� - Ivy 4:Y fraox''JST xu 0"3 POINT OF 00 (PAf7T TWV) •�'u dam' �Hr4waslf 6'!! 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