HomeMy WebLinkAboutCDCRes2018.11.13ANNA COMMUNITY DEVELOPMENT CORPORATION
RESOLUTION NO. -1%- 13 cae")
A RESOLUTION OF THE ANNA COMMUNITY DEVELOPMENT CORPORATION
APPROVING A PROJECT AND RELATED PHASE II INCENTIVE AGREEMENT FOR
NEW ECONOMIC DEVELOPMENT WITH Q SEMINOLE ANNA TOWN CENTER, L.P.
AND THE CITY OF ANNA AND AUTHORIZING THE DISBURSEMENT OF FUNDS
UNDER SAID AGREEMENT
WHEREAS, the Anna Community Development Corporation (the "CDC") desires to
disburse funds in support of an Community development project that will create and retain
new jobs, and that will result in new capital investment within the corporate limits of the
City of Anna, Texas ("City"); and
WHEREAS, the CDC has received a project proposal from Q Seminole Anna Town
Center, L.P. who has represented that it will create and retain a significant number of new
jobs and that will result in new capital investment, all within the corporate limits of the City;
and
WHEREAS, the CDC has determined that it would be beneficial to the CDC and to the
City for the CDC to disburse funds for certain costs of the Project provided that the
promised jobs -and -capital -investment are completed -according to the terms of the
Agreement, as more specifically set forth in the Agreement; and
WHEREAS, the CDC has found that the Project will promote new or expanded business
development and that the expenditures of Community development funds under the
Agreement are required or suitable for infrastructure and site improvements necessary to
promote or develop new or expanded business enterprises;
NOW, THEREFORE, BE IT RESOLVED BY THE ANNA COMMUNITY DEVELOPMENT
CORPORATION THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
Section 2. Approval of Project and Agreement
The CDC hereby approves the Phase II Incentive Agreement for New Community
Development with Q Seminole Anna Town Center, L.P., the Anna Community
Development Corporation, and the City of Anna ("Agreement") attached hereto as
EXHIBIT A, incorporated herein for all purposes, and authorizes the -CDC President to
execute same on its behalf, subject to approval as to form by legal counsel for the CDC
and final content by the CDC Chief Administrative Officer, said Agreement to be effective
upon approval by the City of Anna City Council and as set forth in said Agreement.
ANNA CDC RESOLUTION NO.9 g &,-"I k"I ,3 CcDc) PAGE 1 OF 2
Section 3. Approval of Funding
The CDC hereby authorizes the Chief Administrative Officer to disburse funds as a
reimbursement in accordance with the Agreement.
PASSED AND APPROVED by the Anna Community Development Corporation on this
sf, day of A/b y-e-
2018.
ATTEST:
Anthony Richatdson, CDC President
APPROVED:
Jame urski, CDC Secretary
ANNA CDC RESOLUTION NO.O`vle-W l3 C�jGJ PAGE 2 OF 2
CITY OF ANNA, TEXAS
RESOLUTION NO. 4DI - / - 50g
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA APPROVING AND
AUTHORIZING A PROJECT AND RELATED INCENTIVE AGREEMENT FOR A
PHASE 11 INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT WITH
Q SEMINOLE ANNA TOWN CENTER, L.P. AND THE ANNA COMMUNITY
DEVELOPMENT CORPORATION AND AUTHORIZING THE DISBURSEMENT OF
FUNDS UNDER SAID AGREEMENT
WHEREAS, the Anna Community Development Corporation (the "CDC") desires to
disburse funds in support of an economic development project (the "Project") that will
create and retain new jobs, and that will result in new capital investment within the
corporate limits of the City of Anna, Texas ("City"); and
WHEREAS, the CDC has received a project proposal from Q Seminole Anna Town
Center, L.P. who has represented that it will create and retain a significant number of
new jobs and that will result in new capital investment, all within the corporate limits of
the City; and
WHEREAS, the CDC has determined that it would be beneficial to the CDC and to the
City for the CDC to disburse funds for certain costs of the Project provided that the
promised jobs and capital investment are completed according to the terms of the
Agreement, as more specifically set forth in the Agreement; and
WHEREAS, the CDC has found that the Project will promote new or expanded business
development and that the expenditures of funds under the Agreement are required or
suitable for infrastructure and site improvements necessary to promote or develop new
or expanded business enterprises;
NOW THEREFORE, BE 1T RESOLVED BY THE CITY OF ANNA CITY COUNCIL:
Section 1, Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
Section 2. Authority for Project, Agreement, and Expenditure
The City of Anna City Council hereby authorizes and approves of the Project, and
further authorizes the CDC Board of Directors, subject to approval of the form and
content by the CDC's legal counsel, to enter into a Phase II Incentive Agreement for
New Economic Development with Q Seminole Anna Town Center, L.P. ("Agreement")
attached hereto as EXHIBIT A, incorporated herein for all purposes. The City Council
further authorizes the Mayor to execute said Agreement to bind the City for the limited
purposes expressly stated therein.
50S
CITY COUNCIL OF ANNA, TEXAS RESOLUTION NO. PAGE I OF 2
PASSED AND APPROVED by the City Council of the City of Anna this day of
-�,• . , 2018.
APPROVED: ATTEST:
Nate Pike, Wayo, Carrie L Smith, City Secretary
CITY COUNCIL OF ANNA, TEXAS RESOLUTION N0.5oR' PAGE 2 OF 2
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC
DEVELOPMENT
THIS PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC
DEVELOPMENT (this "Agreement") is entered into by and between the Anna
Community Development Corporation, a Texas Type B development corporation
("ACDC"), and Q Seminole Anna Town Center, L.P., a Texas limited partnership
("Developer").
WHEREAS, the Texas Legislature in Section 4B of Article 5190.6, Vernon's Texas
Revised Civil Statutes (Development Corporation Act of 1979), now codified as Subtitle
C 1, Title 12, Texas Local Government Code, empowered local communities with the
ability to adopt an optional local sales and use tax as a means of improving the
economic health and prosperity of their citizens; and
WHEREAS, residents of the City of Anna, Texas ("City") voted to authorize the
creation of the ACDC and the allocation of a sales and use tax for the promotion and
development of new and expanded business enterprises at the rate of three-quarters of
one percent; and
WHEREAS the ballot language of the measure approved by the voters was sufficient to
authorize the use of such funds for projects like the one contemplated by this
Agreement; and
WHEREAS, the ACDC exist for the purposes of encouraging and assisting entities with
economic development projects and the creation of jobs for the benefit of the local
economy and the citizens of Anna, Texas; and
WI3EREAS, the ACDC is governed by a boards of directors (the "ACDC Board"),
which is authorized to approve the ACDC's projects and expenditures; and
WEEREAS, Section 501.073, Texas Local Government Code, formerly Section 21 of
the Texas Development Corporation Act of 1979, Art. 5190.6. Vernon's Texas Revised
Civil Statutes, requires a municipality's governing body to approve all programs and
expenditures of a development corporation authorized by such municipality; and
WHEREAS, Developer owns the Phase II Development, a portion of which Developer
and the ACDC desire an emergency healthcare FED to be developed; and
WIHEREAS, UHS of Texoma, Inc., a Delaware corporation (together with any entity
controlled by UHS of Texoma, Inc., "UHS"), specializes in hospital systems including
but not limited to health care FEDs and emergency rooms and has entered or will enter
into a purchase and sale agreement with Developer for the development of an
approximately 13,000 square foot free standing emergency department building (the
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 1
"FED") to be located within the Phase II Development on a tract of land consisting of
approximately 14.89 acres more particularly described in Exhibit B attached to this
Agreement and as depicted on Exhibit C-1 as "Block A, Lot 8 ", the FED structure being
as generally shown in Exhibit C-2, attached to this Agreement (the "FED Property");
and
WHEREAS, a proposed site plan of the FED Property is attached hereto as Exhibit C-1,
which sets forth the layout of parking lots, traffic areas, fire lanes, buildings, and other
development aspects normally required to be including in site plans when required to be
submitted in a development application to the City of Anna, Texas; and
WHEREAS, the Phase II Infrastructure Improvements are necessary for the
development of the FED Property; and
VBEREAS, the City currently lacks the type of health care FED and emergency room
to treat patients and to draw consumers from within and outside of the local area and
serve as a magnet for other retail and service -related companies to locate in the City; and
WIJEREAS, it is projected that the location and operation of the FED in the City will
directly create a minimum of 25 jobs; and
WHEREAS, the ACDC recognizes the positive economic impact that the Project will
bring to the City through development and diversification of the economy, reduction of
unemployment and underemployment through the production of new jobs, the attraction
of new businesses, and the additional tax revenue; and
WHEREAS, the payments to Developer under this Agreement are exclusively
performance -based so that no payments will be made to Developer until and unless the
Phase II Infrastructure and FED are constructed and operated; and
M11EREAS, on November , 2018, the ACDC Board determined that it is in the
best interests of the citizens of Anna, Texas that economic development funds be
provided to Developer in exchange for the satisfaction of certain obligations undertaken
by Developer as described in this Agreement, including but not limited to causing the
FED to be developed and operated within the area planned for the Phase II
Development; and
WHEREAS, the ACDC Board has further determined that the obligations it is
undertaking in this Agreement including expenditures of economic development funds
are required or suitable for infrastructure necessary to promote or develop new or
expanded business enterprises, namely the expenditures for the infrastructure that
constitutes the Project, as hereinafter defined; and
WHEREAS, the City has a population of less than 20,000 and Section 501.103 of the
PHASE 11 INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 2
Texas Local Government Code authorizes the ACDC to expend economic development
funds derived from the ACDC's respective sales and use tax revenue for certain
infrastructure improvement projects and such projects will assist Developer with the
costs of the Phase I Development and Phase II Development; and
WIEREAS, on November 82 2016, a majority of the qualified voters in the City
approved a provision that allocated to the ACDC three-quarters of one percent from the
two percent local option sales and use tax; and
NOW, THEREFORE, in consideration of the covenants, promises, and
conditions stated in this Agreement, the ACDC and Developer agree as follows:
Section 1. Effective Date.
The Effective Date of this Agreement shall be the date that the last of the
following events have occurred: (1) the ACDC Board has duly resolved to undertake the
project that is the subject of this Agreement and to enter into this Agreement; (2) the
Parties to this Agreement have duly executed same; (3) the City of Anna, Texas City
Council ("City Council") has by duly adopted resolution authorized the Project and
associated expenditures by the ACDC; and (4) Developer closes on the sale of the FED
Property to UHS, which shall occur on or before June 30, 2020. This Agreement shall
be of no effect until and unless all four of said events have timely occurred.
Section 2. Term and Termination.
2.01 The term of this Agreement shall commence on the Effective Date. The
term of the payment period for the payments to be made to Developer under Section 5 of
this Agreement is two times each year (on January 1 and June 1 each year) for 20 years
beginning on January after the date that the City issues a Certificate of Occupancy for
the FED.
2.02 This Agreement and all obligations of the Parties hereto shall terminate
upon full performance of the Parties' respective obligations under this Agreement. The
City and Corporation may, at their sole discretion, terminate this Agreement upon any of
the following events:
(a) Developer fails, after notice and expiration of the Cure Period, to timely
construct, or cause to be constructed, the Phase II Infrastructure
Improvements, in accordance with Section 4 of this Agreement;
(b) UHS fails to timely commence construction, construct, or cause to be
constructed, the FED, in accordance with Section 4.01 of this Agreement;
(c) Developer fails to close on the sale of the FED Property to UHS on or before
PHASE U INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 3
the date for such closing as stated in Section 1 of this Agreement.
Section 3. Recitals Incorporated and Definitions.
3.01 The recitals in the preamble to this Agreement are hereby incorporated
for all purposes.
3.02 The following words or phrases shall have the following meanings:
"Certificate of Occupancy" means a document entitled "Certificate of
Occupancy" (or other similar title) issued by City upon substantial completion of the
FED in accordance with applicable City Regulations. A Certificate of Occupancy shall
not include a certificate issued in error, mistake or misrepresentation of facts, but shall
include any temporary certificate of occupancy or other document authorizing
temporary or conditional occupancy.
"City Code" means the Anna City Code of Ordinances.
"City Council" means the governing body of the City of Anna, Texas.
"City Manager" means the City Manager of the City of Anna, Texas.
"City Regulations" mean City Code provisions, ordinances, design standards,
uniform codes, and other policies duly adopted by the City.
"Commence Construction" means to commence the work of constructing any
part of the Phase II Infrastructure Improvements or the healthcare FED, as applicable: (i)
with all approvals thereof required by the City obtained as necessary; (ii) after a notice
to proceed has been issued to Developer's contractor(s); and (iii) onsite construction of
the site development components (such as drainage, extensive grading or utilities) is
underway and being pursued.
"Completion" as relates to construction of the Phase II Infrastructure
Improvements means: (i) substantial completion of said infrastructure and improvements
in accordance with the terms of this Agreement and the plans and specifications
approved by the City therefor; and (ii) written acceptance by the City of all said
infrastructure and improvements which shall not be unreasonably withheld.
"Cost of Phase II Infrastructure Improvements" means the dollar amount actually
paid for the engineering, design, and construction of the Phase II Infrastructure
Improvements at the time of full and final completion, dedication and acceptance the
Phase II Infrastructure Improvements. An estimate of the Cost of Phase II
Infrastructure Improvements is attached hereto as Exhibit D.
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 4
"Cure Period" means a 60-day period as set forth in Section 8.8 of this
Agreement.
"Parties" mean the ACDC and Developer.
"Phase I Development" has the meaning set forth in the Phase I Incentive
Agreement.
"Phase I Incentive Agreement" means that certain Incentive Agreement for New
Economic Development executed on or about April 16, 2015, as amended by that certain
First Amendment to Incentive Agreement for New Economic Development dated as of
December 7, 2017) by and among ACDC and Developer.
"Phase II Development" means the area of land that includes but is not limited to
the FED Property and upon which and/or for which the Phase II Infrastructure
Improvements shall be constructed, said area of the Property being legally described in
Exhibit A, attached to this Agreement.
"Phase II Infrastructure Improvements" mean those certain infrastructure
improvements to be constructed, or caused to be constructed, by Developer in
accordance with this Agreement and identified as follows:
(a) Water system improvements including:
(1) the water line labeled as "Line A" in Exhibit E. attached to this
Agreement; and
(2) the water line labeled as "Line B" in Exhibit E, attached to this
Agreement; and
(b) Sanitary sewer system improvements including:
(1) the 15" wastewater line labeled as "Line A" in Exhibit F, attached to
this Agreement; and
(2) the 8" Wastewater line labeled as "Line B" in Exhibit F. attached to
this Agreement; and
(c) Road improvements including:
(1) the full 60' width of the extension of Throckmorton Blvd through the
Phase II Development and associated storm sewer, pavement,
sidewalk, curb and gutter, street lights, and landscaping
improvements as shown in Exhibit G. attached to this Agreement;
and
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 5
(2) the full 80' width of Hackberry Ln through the Phase II Development
and associated storm sewer, pavement, curb and gutter, curbed
median, sidewalk, street lights per city adopted design standard as
amended, and landscaping and irrigation improvements per city
adopted design standard as amended as shown in Exhibit G, attached
to this Agreement; and
(d) Storm water system improvements including:
(1) The storm drain line labelled "Line A" and related in Exhibit H,
attached to this Agreement; and
(2) The storm drain line labelled "Line B" in Exhibit H. attached to this
Agreement
(3) The improvements comprising the storm drain headwall and erosion
control/ outfall protection labelled in Exhibit H, attached to this
Agreement
"Project" means the expenditure of economic development funds to be made by
the ACDC in accordance with this Agreement to contribute to the costs of construction
of the Phase II Infrastructure Improvements for the purpose of promoting or developing
new or expanded business enterprises.
"Project Funds" means an amount that is equivalent to 70% of the Sales and Use
Tax revenue that is actually received by the ACDC until the earlier of: (1) expiration of
the term of this Agreement; or (2) Developer has received an amount equal to the lesser
of $51222,857 or the Cost of Phase II Infrastructure Improvements, subject to reduction
as described in Section 4.14(a).
"Reallocation or Refund" means any change in the amount of any Sales and Use
Tax that: (i) occurs as a result of a reallocation or refund by the State Comptroller; (ii)
actually results in a decrease or increase in the ACDC's Sales and Use Tax; and (iii)
such decrease or increase occurs during the term of this Agreement.
"Reporting Contract" means the type of contract described in Section 4.06 of this
Agreement.
"Retailer" means any person, company, business or other entity or establishment
that locates and maintains a retail sales operation at any location within the Phase I
Development or the Phase II Development during the term of this Agreement, but
specifically excluding UHS .
PHASE 11 INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 6
"Revenue Sharing Agreement" means an agreement covered under Texas Tax
Code § 321.3022(b), which allows a municipality to request that the State Comptroller
provide information related to the amount of Sales and Use Tax paid during the
preceding or current calendar year.
"Sales and Use Tax" means the three-quarters of one percent sales and use tax
revenue allocated to the ACDC and that is attributable to sales and use by Retailers in
the Phase I Development and Phase II Development, except that revenue attributable to
sales and use by Retailers in the Phase I Development shall not be considered Sales and
Use Tax under this Agreement unless and until the ACDC has satisfied its obligations in
Section 5.01 of the Phase I Incentive Agreement.
"State Comptroller" means the Office of the Texas Comptroller of Public
Accounts, or any successor agency thereof.
Section 4. Developer obligations. The obligations set forth in this Section 4 are
conditions for the Payment of Project Funds pursuant to Section 5.
4.01. Construction, Location and operation of the FED. The FED shall be
located within the Phase II Development consistent with the site plan attached hereto as
Exhibit C-1. Construction work on buildings and site improvements, and all other
actions necessary or required by the City Regulations for issuance of a Certificate of
Occupancy for the FED, must be complete within twenty four (24) months after the
Effective Date, conditioned on timely completion of the Phase II Infrastructure
Improvements in accordance with Section 4.03. The Deadline to Commence
Construction of the FED is eighteen (18) months after the Effective Date of this
Agreement, conditioned on timely completion of the Phase H Infrastructure
Improvements in accordance with Section 4.03 subject to extension upon written
approval by the City Manager or the City Manager's designee.
4.02. This section is left blank intentionally.
4.03. Construction Completion. Completion of construction of the Phase II
Infrastructure Improvements must occur within twelve (12) months after the Effective
Date.
4.04. This section is left blank intentionally
4.05 Phase II Infrastructure Improvements Invoices. Once the Developer fully
completes the Phase II Infrastructure Improvements, Developer shall provide the City
Manager with documentation reasonably acceptable to the City Manager evidencing the
dollar amount actually paid for the engineering, design, and. construction of the Phase iI
Infrastructure Improvements.
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 7
4.06. Reporting Contract and Provision of Information Related to Retailers.
(a) With respect to every Retailer, Developer shall before the Retailer is
permitted to locate in either Phase I Development or Phase II
Development use commercially reasonable, efforts to enter into a
Reporting Contract with such Retailer and obtain a fully executed waiver
of Sales Tax Confidentiality. Each Reporting Contract shall include a
provision that terminates the Reporting Contract upon termination of this
Agreement. Within 10 business days of entering into a Reporting
Contract, Developer shall provide the ACDC with a fully -executed, true
and correct copy of such contract. Upon written request of the ACDC,
Developer shall provide a written assignment of the Reporting Contract
to the ACDC, assigning all of Developer's rights and benefits under the
Reporting Contract to the ACDC.
(b) For each Reporting Contract entered into Developer shall make
commercially reasonable efforts to require each Retailer to provide the
following in the event that the State Comptroller does not provide Sales
and Use Tax information to the City as described by Section 5.05:
(1) within 15 days of the close of each calendar month for which Project
Funds will be due to be paid to Developer (such month being
referenced in this Section 4.06 as the "Applicable Month"), provide
to the ACDC a written schedule (the "Schedule") detailing for the
Applicable Month the Retailer's revenue that is subject to Phase H
Sales and Use Tax, certifying that the Schedule and the additional
documents described in subsection (b)(2), below, are based on actual
taxable sales and not estimates.
(2) In addition to and accompanying the Schedule, submit to the ACDC
true and correct copies of the following additional documents for
each Applicable Month: a copy of the Retailer's Texas sales and use
tax return, including self -assessed use tax amounts, as well as any
amended sales and use tax return(s) and any other documents
showing adjustments to the sales and use tax return(s).
(3) within 15 days of a Retailer's receipt of any refund of any Sales
and/or Use Tax, notify the ACDC of such refund, submit to the
ACDC written documentation of such refund including the amount
and the date it was refunded.
(4) Within 15 days of the close of any audit of the Retailer's Texas sales
tax return(s) conducted by the State Comptroller if such audit alters
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 8
the amounts set forth on any Schedule submitted to the ACDC,
submit to the ACDC written documentation of such audit, including
all written materials provided by the State Comptroller that relate to
such audit.
(5) Within 15 days of obtaining a Certificate of Occupancy, execute and
deliver to the ACDC a fully completed Waiver of Sales Tax
Confidentiality, the form of which is shown in Exhibit I, attached to
this Agreement.
(6) Allow the rights and benefits of Developer under the contract that is
the subject of this Section 4.06 to be assigned to the Corporation(s)
upon the Corporation(s) providing Developer with a written request
for assignment.
(c) Regardless of Developer's obligations set forth above under subsections
(a) and (b), Developer shall provide ACDC with the following
information regarding each Retailer: Name, Address and Tax ID Number.
This information shall be provided to ACDC within 30 days of a Retailer
commencing operations within the Phase I Development or the Phase II
Development.
4.07. Performance Bond, Payment Bond and Other Security. Developer shall
execute or cause to be executed one or more valid performance bonds in favor of the
City and one or more valid payment bonds for the construction, work and materials
necessary to complete the Phase II Infrastructure Improvements. Said bonds may be dual
obligee bonds and shall be in accordance with Texas Government Code, Chapter 2253
and applicable City Regulations, except that the bonds shall be in an amount that is
110% of the contract price for each construction contract for any part of the Phase II
Infrastructure Improvements and shall contain a provision that increases the amount of
the bond to the extent that the contract price increases by change order. Developer shall
further execute or cause to be executed a valid Maintenance Bond in accordance with
applicable City Regulations that guarantee the costs of any repairs which may become
necessary to any part of the construction work performed in connection with the Phase II
Infrastructure Improvements, arising from defective workmanship or materials used
therein, for a full period of two years from the date of final acceptance of the Phase II
Infrastructure Improvements constructed under any such contract(s).
4.08. Phase II Public Infrastructure, Generally. Developer shall provide or
cause to be provided all Phase II Public Infrastructure, and any required or necessary
public improvement not identified in this Agreement that are required by City
Regulations in connection with development of the Phase II Development, such as
streets, utilities, drainage, sidewalks, trails, street lighting, street signage, and all other
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 9
required improvements, at no cost to the City or to the ACDC except to the extent
expressly provided in this Agreement, in accordance with City Regulations, and as
approved by the City's engineer or his or her agent. Developer shall cause the timely
installation of such improvements in accordance with the City Regulations unless
otherwise approved herein. Developer shall provide engineering studies, plan/profile
sheets, and other construction documents at the time of platting as required by City
Regulations. Such plans must be approved by the City's engineer or his or her agent
prior to approval of a final plat of any portion of the Phase II Development.
Construction of such improvements shall not be initiated until a preconstruction
conference has been held regarding the proposed construction and City has issued a
written notice to proceed.
4.49 Approval of Plats/Plans. Approval by the City, the City's Engineer or
other City employee or representative, of any plans, designs or specifications submitted
by Developer pursuant to this Agreement or pursuant to City Regulations shall not
constitute or be deemed to be a release of the responsibility and liability of Developer,
its engineer, employees, officers or agents for the accuracy and competency of their
design and specifications. Further, any such approvals shall not be deemed to be an
assumption of such responsibility and liability by the City for any defect in the design
and specifications prepared by Designer's engineer, his officers, agents, servants or
employees.
4.10. Insurance.
(a) Developer shall or shall cause the construction contractor(s) that will
perform the construction work related to the Phase II Infrastructure Improvements to
acquire and maintain, during the period of time when any of the Phase II Infrastructure
Improvements are under construction (and until the full and final completion of the
Phase II Infrastructure Improvements and acceptance thereof by the City: (a) workers
compensation insurance in the amount required by law; and (b) commercial general
liability insurance including personal injury liability, premises operations liability, and
contractual liability, covering, but not limited to, the liability assumed under any
indemnification provisions of this Agreement, with limits of liability for bodily injury,
death and property damage of not less than $1,000,000.00. Such insurance shall also
cover any and all claims which might arise out of the Phase II Infrastructure
Improvements construction contracts, whether by Developer, a contractor,
subcontractor, materialman, or otherwise.
(b) Coverage must be on a "per occurrence" basis. All such insurance shall:
(i) be issued by a carrier which is rated "A-1" or better by A.M. Best's Key Rating
Guide and licensed to do business in the State of Texas; and (ii) name the City as an
additional insured and contain a waiver of subrogation endorsement in favor of the City.
Upon the execution of Phase II Public Infrastructure construction contracts, Developer
shall provide to the City certificates of insurance evidencing such insurance coverage
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 10
together with the declaration of such policies, along with the endorsement naming the
City as an additional insured. Each such policy shall provide that, at least 3 0 days prior
to the cancellation, non -renewal or modification of same, the City shall receive written
notice of such cancellation, non -renewal or modification.
4.11. Developer PUs All Costs. In order to be eligible to receive any Project
Funds under this Agreement, Developer shall pay, or cause third parties to pay its
engineering, planning, accounting, architectural, legal fees and expenses, survey, testing,
laboratory costs, license fees, development fees, land clearing and grading costs,
advertising and other bidding costs, amounts due under construction contracts, costs of
labor and material, inspection fees, impact fees, insurance premiums, bond premiums (if
applicable), interest, carry cost, financing fees and all other fees, costs and expenses
incurred in connection with the construction of the Phase II Infrastructure
Improvements.
4.12 City Regulations, Waiver of Rights, Impact Fees. Developer
acknowledges that Phase II Development must comply with all applicable City
Regulations. Except to the extent this Agreement provides for stricter or more restrictive
requirements than those in applicable City Regulations, the applicable City Regulations
shall control. Developer acknowledges that the Project Funds to be paid to Developer in
accordance with this Agreement are in lieu of any and all rights to any type of payment,
credit, or reimbursement by the City for any of the Phase II Infrastructure
Improvements, including but not limited to impact fees, and by entering into this
Agreement, Developer expressly waives any and all of said rights to such payment,
credit or reimbursement by the City notwithstanding City Regulations or any applicable
law.
4.13 This section is left blank intentionally.
4.14 Additional Performance Requirements. Incident to the operations of the
FED and/or other businesses that may locate in the Phase II Development, Developer:
(a) must have caused, within 90 days of issuance of the Certificate of
Occupancy by the City for the FED, a minimum investment of
$101000, 000.00 and at least 25 new jobs to be created within the City at
the FED; provided, however, that in the event the Phase II Infrastructure
and the FED have been completed in accordance with the terms of this
Agreement but less than 25 new jobs have been created within the City at
the FED (the "FED Employment Deficit") and after receiving notice of
the FED Employment Deficit, Developer fails to provide evidence that
the FED Employment Deficit has been cured, then the total amount to be
paid by ACDC to Developer under this Agreement will be reduced by an
amount equal to $40,000.00 per job included in the FED Employment
Deficit. For the avoidance of doubt and for example purposes only, if
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 11
only 23 new jobs are created in accordance with the terms of this Section
4.14(a), then the FED Employment Deficit is 2 and the total amount to be
paid by ACDC to Developer will be reduced by $80,000 (2 jobs failed to
be created multiplied by $40,000), which amount will then be subtracted
from the amount to be paid by ACDC to Developer under this
Agreement; and
(b) if, at any time after the fifth full year after the date of this Agreement,
during the duration of this Agreement, less than 40 jobs have been
created within the Phase II Development (the "Phase II Employment
Deficit") and after the receiving notice of the Phase II Employment
Deficit, Developer fails to provide evidence that the Phase H
Employment Deficit has been cured, then the Developer must repay to
the ACDC an amount equal to $25,000.00 per job included in the Phase
II Employment Deficit (i.e., a maximum reimbursement of $1,000,000-00
(40jobs * $25,000 = $170001000.00)).
Section 5. Payment of Project Funds.
5.01 Payments to Developer. To assist with the Cost of Phase H Infrastructure
Improvements, and in consideration for the other obligations undertaken by Developer
in this Agreement, the ACDC will make biannual (2 times a year) payments to
Developer during the term of this Agreement that when combined shall be up to a
combined maximum not -to -exceed the lesser of $5,222,857 or the Cost of Phase II
Infrastructure Improvements, subject to Section 5.05 of this Agreement, and subject to
reduction as described in Section 4. Said payments will be funded solely from
Project Funds. At the time that an annual payment is due, the , full amount of Project
Funds on deposit in said accounts shall be paid to Developer. The first payment shall be
due on or before the expiration of 30 days after the anniversary of the ACDC's first
actual receipt of Sales and Use Tax. Thereafter, payments of Project Funds are due and
payable annually on or before the expiration of the same month during which said first
payment was made.
5.02. Reallocation or Refund. If at any time the State Comptroller takes any
action that results in a Reallocation or Refund of Sales and Use Tax, the Parties agree to
reconcile the corresponding previous payments of Project Funds in the following
manner:
(a) If the result is an increase of Sales and Use Tax revenue to the ACDC,
then 70% of such increase will be deemed to be Project Funds that are
due and payable to Developer within 30 days of the ACDC's actual
receipt of the revenue representing the increase.
(b) If the result is a decrease of Sales and Use Tax revenue to the ACDC or if
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 12
the ACDC must refund any Sales and Use Tax, then 70% of such
decrease or refund will be deemed to be an amount owed to the ACDC
by Developer and such amount is due and payable within 3 0 days after
the ACDC have provided written notice to Developer that the ACDC
have incurred the decrease or made the refund; provided, however, the
ACDC, at its sole option, may instead of requesting payment from the
Developer subtract the amount of the decrease or refund from one or
more future installments of Project Funds that would otherwise be due to
be paid to Developer, and if the ACDC so opts, it shall provide written
notice to Developer of its intent to do so.
5.03. Disputed Amounts. If the ACDC determines that there are disputed
amounts with regard to any Project Funds, then the ACDC shall notify Developer in
writing of the disputed amount. The ACDC will not be required to pay or accrue interest
on such disputed amount while the dispute is being resolved unless such dispute is
unreasonable or made in bad faith, in which case interest at the rate of six per cent per
annum shall be due and payable as though the amount were undisputed, from the time
that the payment would have been due had it not been disputed.
5.04. Payee Information. With respect to any and every payment due to be paid
at any time by the ACDC to Developer under this Agreement, the name of Payee for
such payment shall be "Q Seminole Anna Town Center, L.P." and the payment shall be
sent or delivered to the following address:
Q Seminole Anna Town Center, L.P.
c/o Chief Partners, LP
8111 Westchester Drive, Suite 800
Dallas, Texas 75225
Developer may change the name and address of the Payee upon written notice to the
ACDC provided at least 15 days in advance of the date that a payment is due. Said
Written notice must be duly executed by Developer and acknowledged before a Notary
Public.
5.05. Revenue Sharing. Developer and the ACDC agree that this Agreement is
a Revenue Sharing Agreement and that this Agreement should be so interpreted as
concerns Texas Tax Code § 321.3022(b) as amended. The City shall request from the
State Comptroller the annual information related to the amount of Sales and Use Tax
actually collected and shall use commercially reasonable efforts to determine the amount
of Sales and Use Tax actually collected from information that is provided by the State
Comptroller. If the State Comptroller shall fail to provide the information pursuant to
Texas Tax Code § 321.3022(b) as amended, the City shall use commercially reasonable
efforts to determine the amount of Sales and Use Tax actually collected from
information (1) provided by the State Comptroller pursuant to any Waivers of Sales Tax
PHASE 11 INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 13
Confidentiality provided by Retailers, (2) provided under any Reporting Contract;
and/or (3) otherwise readily available to the City. Thereafter, without disclosing the
amount of Sales and Use Tax collected from the Retailers, the City shall provide the
ACDC with the calculated amount of the annual payment due to Developer.
Notwithstanding any provision of this Agreement, the ACDC shall have no obligations
to make any payment to Developer as to any time period if the City is not able to
determine as to that time period the amount of Sales and Use Tax actually collected by
one of the methods described above.
Section 6. Buy Local Provision.
6.01. Developer agrees to use its commercially reasonable efforts to give
preference and priority to local manufacturers, suppliers, contractors, and labor, except
where not reasonably possible to do so without added expense, substantial
inconvenience, or sacrifice in operating efficiency in the normal course of business.
6.02. For the purposes of this section, the term "local" as used to describe
manufacturers, suppliers, contractors, and labor includes firms, businesses, and persons
who reside in or maintain an office within a 50 mile radius of Collin County.
Section 7. Warranties. Developer warrants and represents to ACDC the following:
7.01. Developer is a limited partnership duly organized, validly existing, and in
good standing under the laws of the State of Texas. Developer has all corporate power
and authority to carry on its business as presently conducted in the State of Texas.
7.02. Developer has the authority to enter into and perform, and will perform,
the terms of this Agreement to the best of its ability.
7.03. Developer has timely filed and will timely file all local, State, and
Federal tax reports and returns required by law to be filed and all taxes, assessments,
fees, and other governmental charges related to the Phase II Development, including
applicable ad valorem taxes, have been timely paid, and will be timely paid, during the
term of this Agreement.
7.04. Developer has received a copy of the Texas Development Corporation
Act, Subtitle C 1, Title 12, Texas Local Government Code, and acknowledges that the
Project Funds must be utilized solely for purposes authorized under applicable law and
by the terms of this Agreement. In this respect, Developer agrees that the sole purpose of
the Project Funds is to reimburse certain costs of construction of the Infrastructure
Improvements needed for Phase II Development as permitted under Section 50 1. 103 of
the Texas Local Government Code.
7.05. The general partner and any individual executing this Agreement on
PHASE 101 INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 14
behalf of Developer are duly authorized to execute this Agreement on behalf of
Developer.
7.06. In accordance with Chapter 2264 of the Texas Government Code,
Developer certifies that neither it, nor a branch, division, or department of Developer,
will ever knowingly employ an undocumented worker and that if, after receiving any
public subsidies under this Agreement, Developer, or a branch, division, or department
of Developer, is convicted of a violation under 8 U.S.C. §1324a(f), as amended or
recodifYed, Developer shall repay the total amount of all public subsidies and/or
incentives theretofore received under this Agreement with interest at two percent (2%)
per annum not later than the 120th day after the date the ACDC notifies Developer in
writing of the violation.
7.07. No litigation or governmental proceeding is pending or, to the knowledge
of Developer and its general partner and officers, is threatened against or affecting
Developer, or the Phase II Development, that may result in any material adverse change
in Developer's business, properties or operation.
7.08. Developer shall not be in breach of any other contract by entering into
and performing this Agreement. Developer shall amend or enter into any other contract
that may be necessary for Developer to fully and timely perform its obligations under
this Agreement.
Section S. Miscellaneous.
8.01. Compliance with Laws. Developer shall observe and obey all applicable
laws, ordinances, regulations, and rules of the Federal, State, county, and city
governments related to the Project.
8.02. Non -Discrimination. Developer covenants and agrees that Developer will
not discriminate nor permit discrimination against any person or group of persons, with
regard to employment and the provision of services for the Project on the grounds of
race, religion, national origin, marital status, sex, age, disability, or in any manner
prohibited by the laves of the United States or the State of Texas.
8.03. Time Periods. Time is of the essence in the performance of this
Agreement.
8.04. Force Maj eure. If the ACDC or Developer are prevented, wholly or in
part, from fulfilling their respective obligations under this Agreement, or if UHS is
prevented, wholly or in part, from timely completing construction of the FED, by reason
of any act of God, unavoidable accident, acts of enemies, fires, floods, governmental
restraint or regulation, war, riot, civil commotion, insurrection, inclement weather,
floods, shortages of labor or materials, strikes, other events of force maj eure, or by
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 15
reason of circumstances beyond its control, then the obligations of the City, the ACDC
or Developer are temporarily suspended during continuation of the force maj eure. If
either party's obligation is affected by any of the causes of force majeure, the party
affected shall promptly notify the other party in writing, giving full particulars of the
force maj eure as soon as possible after the occurrence of the cause or causes relied upon.
8.05. Assignment. Except as provided below, Developer may not assign all or
part of its rights and obligations under this Agreement to a third party without prior
written approval of City Council and the ACDC, which approval will not be
unreasonably withheld or delayed. The ACDC agrees, however, that Developer may
assign all or part of its rights and obligations under this Agreement to any entity
affiliated with Developer by reason of controlling, being controlled by, or being under
common control with Developer or to a third party lender advancing funds for the
construction or operation of Phase II Infrastructure Improvements. The ACDC expressly
consents to any assignment described in the preceding sentence, and agrees that no
further consent of City Council or the ACDC to such an assignment will be required.
Developer agrees to provide the ACDC with written notice of any such assignment. The
foregoing notwithstanding, any assignment of Developer's rights under this Agreement
shall not release Developer from its obligations hereunder.
8.06. INDEMNITY. DEVELOPER COVENANTS TO FULLY INDEMNIFY,
DEFEND, SAVE, AND HOLD HARMLESS THE ACDC, THE CITY, AND THEIR
RESPECTIVE OFFICERS, EMPLOYEES, REPRESENTATIVES, AND AGENTS
FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY
DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING WITHOUT
LMTATION DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER KIND
OR CHARACTER,, WHETHER REAL OR ASSERTED (INCLUDING, WITHOUT
LIMITATION, REASONABLE FEES AND ASSOCIATED EXPENSES OF
ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS) ARISING
OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE
NEGLIGENT OR OTHERWISE WRONGFUL ACTS OR OMISSIONS OF
DEVELOPER, ITS AGENTS, SERVANTS, CONTRACTORS., SUBCONTRACTORS,
MATERIAL MEN OR EMPLOYEES THAT RELATE IN ANY MANNER TO
DEVELOPER'S PERFORMANCE OF THIS AGREEMENT OR TO THE DESIGN,
CONSTRUCTION OR INSTALLATION OF THE PHASE II INFRASTRUCTURE
EM PROVEMENT S AND ANY OTHER IMPROVEMENTS OR CONSTRUCTION
RELATED TO PHASE II DEVELOPMENT, INCLUDING WITHOUT LMTATION
INJURY OR DAMAGE TO PUBLIC PROPERTY. THE INDEMNITY PROVIDED
FOR ABOVE SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE
SOLE NEGLIGENCE OR FAULT OF ACDC, ITS OFFICERS, AGENTS,
EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT
AND CONCURRING NEGLIGENCE OR FAULT OF ACDC AND DEVELOPER,
RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN
ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 16
10
WAIVING ANY GOVERNMENTAL EVEViUNITY AVAILABLE TO ACDC UNDER
TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES
UNDER TEXAS LAW. DEVELOPER'S OBLIGATIONS UNDER THIS SECTION
8.06 SHALL SURVIVE THE TERM OF THIS AGREEMENT.
8.07. Events of Default by Developer. The following events constitute a default
of this Agreement by Developer:
(a) The ACDC or City reasonably and in good faith determines that any
representation or warranty on behalf of Developer contained in this
Agreement or in any financial statement, certificate, report, or opinion
submitted to the ACDC or the City in connection with this Agreement
was incorrect or misleading in any material respect when made.
(b) Any attachment or other levy against the Phase II Development or any
portion thereof with respect to a claim, excluding mechanic's and
materialman's liens, remains unpaid, undischarged, or not dismissed for
a period of 120 days.
(c) Developer makes an assignment for the benefit of creditors.
(d) Developer files a voluntary petition in bankruptcy or is adjudicated
insolvent or bankrupt.
(e) If taxes owed to the City by Developer become delinquent, and
Developer fails to timely and properly follow the legal procedures for
protest or contest.
(f) Developer fails to timely, fully and completely comply with any one or
more of the material requirements, obligations, duties, terms, conditions
or warranties of this Agreement.
8.08. Notice of Default. Should the ACDC or City determine that Developer is
in default according to the terms of this Agreement, the ACDC or City shall notify
Developer in writing of the event of default, and a copy of said notice shall be
simultaneously delivered to UHS, and provide 60 days from the date of the notice
("Cure Period") for Developer to cure the event of default; provided, however, in the
event if such event of default is not able to be cured within such 60-day period,
Developer shall be permitted additional time to effectuate such cure, provided, that in no
event shall the Cure Period exceed 120 days from the date of notice from the City.
Should the ACDC fail to timely, fully and completely comply with any one or more of
its obligations under this Agreement, such failure shall be an act of default by the ACDC
and the ACDC shall have sixty (60) days to cure and remove the Default after receipt of
written notice to do so from Developer.
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 17
8.09. Estopvel. The ACDC shall, within 30 days of written request from
Developer, provide to any interested parties an estoppel certificate or other document
evidencing that this Agreement is in full force and effect, that no event of default by
Developer exists hereunder (or, if appropriate, specifying the nature and duration of any
existing event of default), the status of completion of any public infrastructure
improvements for which economic incentives are being provided by the ACDC, and the
payment of funds and/or any other obligations set forth in this Agreement.
8.10. Results of Uncured Default by Developer. After exhausting good faith
attempts to address any default during the Cure Period, and taking into account any
extenuating circumstances that might have occurred through no fault of Developer, as
determined by the ACDC Board, the Developer shall immediately repay all funds paid
by the ACDC to them under this Agreement and shall pay the ACDC reasonable
attorney fees and costs of court to collect amounts due to ACDC if not immediately
repaid upon demand from the ACDC. Upon full payment by Developer of all sums due,
the ACDC and Developer shall have no further obligations to one another under this
Agreement. Neither the City, the ACDC, nor Developer may be held liable for any
consequential damages.
8.11. No Waiver. No waiver of any covenant or condition, or the breach of any
covenant or condition of this Agreement, constitutes a waiver of any subsequent breach
of the covenant or condition of this Agreement. No waiver of any covenant or condition,
or the breach of any covenant or condition of this Agreement, justifies or authorizes the
nonobservance on any other occasion of the covenant or condition or any other covenant
or condition of this Agreement. Any waiver or indulgence of Developer's default may
not be considered an estoppel against the ACDC. It is expressly understood that if at any
time Developer is in default in any of its conditions or covenants of this Agreement, the
failure on the part of the ACDC to promptly avail itself of the rights and remedies that
the ACDC may have, will not be considered a waiver on the part of the ACDC, but the
ACDC may at any time avail itself of the rights or remedies or elect to terminate this
Agreement on account of the default.
8.12. Limitation of Remedies. Developer specifically agrees that the ACDC
shall only be liable to Developer for the actual amount of the Project Funds as finally
adjusted under the terms of this Agreement -to be conveyed to Developer, and shall not
be liable to Developer for any actual or consequential damages, direct or indirect,
interest, attorney fees or related expenses, or cost of court for any act of default by the
ACDC under the terms of this Agreement. Payment by the ACDC is strictly limited to
those Project Funds so allocated, budgeted, and actually received solely during the term
of this Agreement. Payments to be made shall also require a written request from
Developer to be accompanied by all necessary supporting documentation in accordance
with this Agreement.
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 18
8.13. Notices. Any notice and/or statement required and permitted to be
delivered under this Agreement shall be deemed delivered by depositing the same in the
United States mail, certified with return receipt requested, proper postage prepaid,
addressed to the appropriate party at the following addresses, or at such other addresses
provided by the Parties in writing.
DEVELOPER:
Q Seminole Anna Town Center, L.P.
c/o Chief Partners, LP
8111 Westchester Drive, Suite 800
Dallas, Texas 75225
With a copy to:
Munsch Hardt Kopf & Harr, P. C,
500 N. Akard Street, Suite 3800
Dallas, Texas 75201
Attn: David Coligado
With a copy of Notice of Default to:
UHS of Texoma, Inc.
c/o UHS of Delaware, Inc.
367 Gulph Road
King of Prussia, PA 19406
Attn: Cheryl Ramagano
ACDC:
Anna .Vevelopment Corporation
Attn: Chief Administrative Officer
111 N. Powell Pkwy, P.O. Box 776,
Anna, Texas 75409-0776
A copy of all notices and correspondence sent to the ACDC must be sent to the
City and the City Attorney at the following respective addresses:
City of Anna
Attn.: City Manager
111 N. Powell Pkwy, P.O. Box 776,
Anna, Texas 75409-0776
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 19
Clark McCoy
Wolfe, Tidwell & McCoy, LLP
2591 Dallas Parkway, Suite 3 00
Frisco, Texas 75034
Notice is effective upon deposit in the United States mail in the manner provided above.
8.14. Incorporation of Other Documents. The Exhibits referenced in this
Agreement and attached hereto are incorporated herein as if set forth in full for all
purposes. Said Exhibits include the following:
Exhibit A, Legal Description of the Phase II Development
Exhibit B, Legal Description of the FED Property
Exhibit C-1, FED Site Plan
Exhibit C-2, FED Architectural Renderings
Exhibit D, Cost of Phase II Infrastructure Improvements
Exhibit E. Water System Improvements
Exhibit F, Sanitary Sewer System Improvements
Exhibit G, Road Improvements
Exhibit H, Storm Water Improvements
Exhibit I, Waiver of Sales Tax Confidentiality
8.15. Amendments or Modifications. No amendments or modifications to this
Agreement may be made, nor any provision waived, unless in writing signed by a
person duly authorized to sign Agreements on behalf of each party.
8.16. Relationship of Parties. In performing this Agreement, both the ACDC
and Developer will act in an individual capacity, and not as agents, representatives,
employees, employers, partners, joint -venturers,, or associates of one another. The
employees or agents of either party may not be, nor be construed to be, the employees or
agents of the other party for any purpose. At no time shall the ACDC or the City have
any control over or charge of Developer's design, construction or installation of any of
the infrastructure or public improvements that are the subject of this Agreement, nor the
means, methods, techniques, sequences or procedures utilized for said design,
construction or installation. This Agreement does not create a joint enterprise between
the ACDC and Developer.
8.17 Captions. The captions in this Agreement are for convenience only and
are not a part of this Agreement. The captions do not in any way limit or amplify the
terms and provisions of this Agreement.
8.18 Severability. If for any reason, any section, paragraph, subdivision,
clause, provision, phrase or word of this Agreement or the application of this Agreement
to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 20
under present or future law or by a final judgment of a court of competent jurisdiction,
then the remainder of this Agreement, or the application of the term or provision to
persons or circumstances other than those as to which it is held illegal, invalid, or
unenforceable, will not be affected by the law or judgment, for it is the definite intent of
the Parties to this Agreement that every section, paragraph, subdivision, clause,
provision, phrase, or word of this Agreement be given full force and effect for its
purpose. To the extent that any clause or provision is held illegal, invalid, or
unenforceable under present or future lave effective during the term of this Agreement,
then the remainder of this Agreement is not affected by the law, and in lieu of any
illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in
terms to the illegal, invalid, or unenforceable clause or provision as may be possible and
be legal, valid, and enforceable, will be added to this Agreement automatically.
8.19. Venue. Venue for any legal action related to this Agreement is in Collin
County, Texas.
8.20. Interpretation. The Parties have been represented by counsel of their
choosing in the negotiation and preparation of this Agreement. This Agreement was
drafted equally by the Parties hereto. The language of all parts of this Agreement shall
be construed as a whole according to its fair meaning, and any presumption or principle
that the language herein is to be construed against any Party shall not apply.
8.21. Sole Agreement. This Agreement constitutes the sole agreement between
the ACDC and Developer as relates to Phase II Development, with the exception of the
Phase I Agreement as amended by this Agreement. Any other prior agreements,
promises, negotiations, or representations related to Phase II Development, verbal or
otherwise, not expressly stated in this Agreement, are of no force and effect.
8.22. Third Party Beneficiaries. Except and solely to the extent that this
Agreement benefits the City, this Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
8.23. Binding Agreement. This Agreement shall be binding on and inure to the
benefit of the Parties to it and their respective heirs, executors, administrators, legal
representatives, successors, and permitted assigns.
8.24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and the binding agreement of
each Party to the terms herein, but all of which together will constitute one and the same
instrument.
8.25 Recording. The Parties agree that neither this Agreement, nor any
memorandum or short form of this Agreement, shall be recorded.
PHASE H INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 21
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
PHASE II INCENTWE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 22
EXECUTED BY THE PARTIES:
Q SEMINOLE ANNA TOWN CENTER, L.P., a Texas limited partnership
By: ANNA TC GP, LLC, its general partner
By.
_1 &A4 �- Uti�i
Wi liam H. Vanderstraaten, its Manager
State of Texas
County of Collin
Before me, on this day personally appeared William H. Vanderstraaten, known to me to
be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he executed the same in his capacity as Manager of Anna TC GP, LLC,
general partner for Q Seminole Anna Town Center, L.P., for the purposes and
consideration therein expressed.
� l - _-_�
Given under my hand and seal of office this , 5 day of Y J Z 2018
''pY P�j•• LA URA S RICKMAN
.:O.�P.....,•g�
2; NOTARY PUBLIC
" P State of Texas
• ..� of �:� Comm. Exp.
Notary - State of Texas
ANNA COMMUNITY DEVELO M T CORPORATION, a Texas Type B
development corporation
By:
Natt,..._ n:4_.
�� its Pre dent
An•th,Pn ,gjcfia rds—m
State of Texas
County of Collin
Before me, on this day personally appeared aj�1/a--��'nown to me to be
the person whose name is subscribed to the foregoing i strument and acknowledged to
me that he executed the same in his capacity as President of Anna Community
Development Corporation for the purposes and consideration therein expressed.
Given under my hand and seal of office this S7H,-\, day of 2018.
LAURETTA KAY BLACKEiER *Not,
�
My Notary ID # 129369379 tate of Texas
:�.f•+�. Expi �...ok:;,,•' resAprfi 1, 2021
PHASE II INCENTIVE AGREEMENT FOR NEW ECONOMIC DEVELOPMENT Page 23
Exhibit A
Legal Description of the Phase II Development
BEING a tract of land situated in the Thomas Ratton Survey, Abstract No. 782, and the W.S.
Ratton Survey, Abstract No. 752, City of Anna, Collin County, Texas, and being a portion of a
called 107.52-acre tract of land conveyed to Q Seminole Anna Town Center, L.P., as evidenced
in Special Warranty Deed with Vendor's Lien recorded in Instrument No. 20080128000100640,
Official Public Records of Collin County, Texas and all of a called 1.809-acre tract of land
conveyed to the City of Anna, Texas, as evidenced in a Deed of Dedication of Land for Public
Use, recorded in Instrument No. 20150623000757290, Official Public Records of Collin County,
Texas, and being more particularly described as follows:
BEGINNING at a 5/8-inch iron rod with plastic cap stamped with "KHA" found for the northwest
corner of Lot 1, Block A of Wal-Mart Anna Addition, an addition to the City of Anna according to
the plat thereof recorded in Volume. 2017, Page 549 of the Plat Records of Collin County,
Texas, same being on the easterly right of way line of U. S. Highway 75 as described in an
Agreed Final Judgement to the State of Texas, Case No. 002-00750-2015, recorded in
Instrument No. 20170406000440860, Real Property Records of Collin County, Texas;
THENCE along the easterly right-of-way line of said U.S. Highway No. 75 as described in said
Judgement, the following courses:
North 07036'56" East, a distance of 544.30 feet to a 5/8-inch iron rod found for corner;
North 09013'08" East, a distance of 600.56 feet to an aluminum TXDOT right-of-way
monument found for corner;
North 05048'36" East, a distance of 500.10 feet to an aluminum TXDOT right-of-way
monument found for corner;
North 07036'48" East, a distance of 1,262.58 feet to an aluminum TXDOT right-of-way
monument found for the northeast corner of said 4.068-acre tract, same being on the
northerly line of said 107.52-acre tract, same being on the southerly line of a called
38.15-acre tract of land conveyed to MJLA Adams, Ltd., as evidenced in Special
Warranty Deed recorded in Instrument No. 20110505000462590 of the Official Public
Records of Collin County, Texas, same being the southeast most corner of a tract of
land described as Parcel 14, conveyed to the State of Texas, as evidenced in Deed
recorded in Instrument No. 20150213000160620 of the Official Public Records of Collin
County, Texas;
THENCE North 89018'53" East, departing the easterly right-of-way line of said U.S. Highway
No. 75, along the northerly line of said 107.52-acre tract, and along the southerly line of said
Parcel 14 and said 38.15-acre tract, a distance of 922.82 feet to a 3/8-inch iron rod found for the
northerly northeast corner of said 107.52-acre tract, same being the southerly southeast corner
of said 38.15 acre tract, on the westerly line of a called 51.195-acre tract of land conveyed to
Two-J Partners, LLLP, as evidenced in Quitclaim Deed recorded in Instrument No.
20080509000562500 of the Official Public Records of Collin County, Texas;
THENCE South 00028'48" West, along the easterly line of said 107.52-acre tract and along the
westerly line of said 51.195-acre tract, a distance of 1549.17 feet to a wooden corner post found
for an ell corner on the easterly line of said 107.52-acre tract, same being the southwest corner
of said 51.195-acre tract;
THENCE South 89020'45" East, along the northerly easterly line of said 107.52-acre tract, and
along the southerly line of said 51.195-acre tract, a distance of 165.07 feet to a 3/8-inch iron rod
found for the easterly northeast corner of said 107.52-acre tract, same being the northwest
corner of Lot 3, Block G of Creekside Phase 3, an addition to the City of Anna according to the
Plat thereof recorded in Cabinet P, Page 623 of the Plat Records of Collin County, Texas;
THENCE South 00013'51" West, departing the southerly line of said 51.195-acre tract, along the
easterly line of said 107.52-acre tract, and along the westerly line of said Lot 3, Block G, the
westerly line of Lot 2, Block G of Creekside Phase 2 an addition to the City of Anna, according
to the Plat thereof recorded in Cabinet P, Page 60 of the Plat Records of Collin County, Texas,
a distance of 1248.17 feet to a 5/8-inch iron rod with plastic cap stamped "KHA" set for a corner;
THENCE North 89046'13" West, departing the easterly line of said 107.52-acre tract, the
westerly line of said Lot 2, Block G, crossing said 107.52-acre tract, passing at a distance of
215.17 feet, a 5/8-inch iron rod with plastic cap stamped "KHA" found for the northeast corner of
Throckmorton Boulevard, a 60' wide right of way as created in aforesaid oval -Mart Anna
Addition, continuing along the northerly terminus of said Throckmorton Boulevard and the
northerly line of aforesaid Lot 1, Block A of Wal-Mart Anna Addition, a total distance of 773.34
feet to a 5/8 inch iron rod with plastic cap stamped with "KHA" found for corner;
THENCE South 00013'47" West, continuing along the northerly line of said Lot 1, Block A, a
distance of 86.00 feet to a 5/8-inch iron rod with plastic cap stamped with "KHA" set for corner;
THENCE North 89046'13" West, continuing along the northerly line of said Lot 1, Block A, a
distance of 452.85 feet to a 5/8-inch iron rod with plastic cap stamped with "KHA" set for corner;
THENCE South 0001347" West, continuing along the northerly line of said Lot 1, Block A, a
distance of 13.00 feet to a 5/8-inch iron rod with plastic cap stamped with "KHA" set for corner;
THENCE North 89046'13" West, continuing along the northerly line of said Lot 1, Block A, a
distance of 229.49 feet to the POINT OF BEGINNING and containing 76.290 acres (3,323,171
square feet) of land, more or less.
Fxhihit R
Legal Description of the FED Property
BEING a tract of land situated in the William S. Rattan Survey, Abstract No. 752, City of Anna,
Collin County, Texas, and being a portion of a called 107.52-acre tract of land, conveyed to
Seminole Anna Town Center, L.P., as evidenced in a Special Warranty Deed, recorded in
Instrument No. 20080128000100640 of the Official Public Records of Collin County, Texas, and
being more particularly described by metes and bounds as follows:
BEGINNING at an aluminum TXDOT right of way monument found on the northerly line of said
107.52-acre tract for the northeast corner of a called 4.068-acre tract of land, conveyed to the
State of Texas, as evidenced in an Agreed Final Judgement, recorded in Instrument No.
20170406000440860 of the Official Public records of Collin County, Texas and the southeast
corner of a called 1.790-acre tract of land, conveyed to the State of Texas, as evidenced in a
deed, recorded in Instrument No. 20150213000160620 of the Official Public Records of Collin
County, Texas, same being on the easterly right of way line of U. S. Highway 75, a variable
width right of way;
THENCE North 89018'53" East, departing the easterly right of way line of said U. S. Highway 75
and along the northerly line of said 107.52-acre tract, a distance of 862.81 feet to a 5/8-inch iron
rod with a red plastic cap, stamped "KHA" set for a corner, from which, a 3/8-inch iron rod found
for the northeast corner of said 107.52-acre tract bears North 89018'53" East, 60.01 feet;
THENCE South 00028'48" West, departing the northerly line of said 107.52-acre tract and
crossing said 107.52-acre tract, a distance of 648.50 feet to a 5/8-inch iron rod with a red plastic
cap, stamped "KHA" set for a corner;
THENCE South 45033'55" West, continuing across said 107.52-acre tract, a distance of 35.18
feet to a 5/8-inch iron rod with a red plastic cap, stamped "KHA" set for a corner on the northerly
line of an Electric and Access Easement to the City of Anna, Texas, recorded in instrument No.
20150623000757300 of the Official Public Records of Collin County, Texas, from which, a 5/8-
inch iron rod with a red plastic cap, stamped "KHA" found for the northeast corner of said
Electric and Access Easement bears South 89020'59" East, 29.07 feet;
THENCE in a westerly direction, continuing across said 107.52-acre tract and along the
northerly lines of said Electric and Access Easement, the following:
North 89020'59" West, a distance of 355.20 feet to a 5/8-inch iron rod with a red plastic
cap, stamped "KHA" found for the point of curvature of a tangent curve to the left;
Along the arc of said curve to the left, through a central angle of 37012'43", having a
radius of 405.00 feet, a chord bearing of South 72002'39" West, a chord distance of
258.44 feet and an arc length of 263.04 feet to a 5/8-inch iron rod with a red plastic cap,
stamped "KHA" found for the point of reverse curvature of a curve to the right;
Along the arc of said curve to the right, through a central angle of 44010'38", having a
radius of 325.00 feet, a chord bearing of South 75031'37" West, a chord distance of
244.43 feet and an arc length of 250.59 feet to a 5/8-inch iron rod with a red plastic cap,
stamped "KHA" found for the point of tangency of said curve;
North 82023'04" West, a distance of 100.47 feet to a 5/8-inch iron rod with a red plastic
cap, stamped "KHA" set for a corner on the easterly right of way line of aforesaid U. S.
Highway 75;
THENCE North 07036'48" East, along the easterly right of way line of said U. S. Highway 75, a
distance of 793.19 feet to the POINT OF BEGINNING and containing 14.895 acres (648,821
square feet) of land, more or less.
Exhibit C-1.
t,Eo, site Plan
[See -Attached]
mo
n
i
} 9 1;
co
❑a
�Q
FED AT
ANNA
APPROXIMATELY
13,000 SF
i�
ii
7 1"1
r — HACKBERRY ROAD
(A PROPOSED 80' RIGHT -OP -WAY)
5
o /
CITY OF ANNA
ELEVATED WATER
TOWER SITE
I f �
I
I NORTH
150 75 0 150
GRAPHIC SCALE IN FEET
EXHIBIT "C" Kimley>>)Horn
ENGINEERING FIRM REGISTRATION R F-928
Exhibit C-2
FED Architectural Renderings
[See. Attached]
VIEW 1 TOWARD ENTRY
VIEW 2
EXHIBIT "C-2"
Exhibit D
Cost of Phase II Infrastructure Improvements
Phase II Infastructure Costs
Staking
$
7,500
Earthwork
$
357,062
Utilities
$
2,131,785
Paving
$
1,398,482
Pavement Markings & Signage
$
21,738
Electrical
$
95,450
Decorative Median Nosings on Hackberry
$
25,000
General Conditions ($25,000 over 8 Months)
$
200,000
Insurance
$
19,852
Overhead & Profit
$
238,179
Total GC Costs
$
4,495,048
Testing
$
53,842
Engineering Design Contract
$
186,184
Engineering - Hourly Work
$
25,000
Geotechnicall Report
$
7,000
Legal
$
50,000
Construction Management
$
50,000
Contingency
5.00% $ 243,354
Subtotal $ 5,110,427
Bonding (2.00% on 110%)
2.00% $ 112,429
Total Project Costs $ 5,222 8i57
Exhibit E
Water System Improvements
[See Attached]
0
0
b
U
J i 1
It } t
,
UBJECT
12" WATER fS
ROPERTY
jl
LINE A
WATER LINE
BY DEVELOPER
..........
EXISTING }
12" WATER 16" WATER
LINE C-__-_--,..- 12" WATER
WATER LINE —7 LINE B
BY DEVELOPER --="
HACKBERRY -
,
ROAD
,.(A PROPOSED SO -RIGHT-OF-WAY) CITY OF ANNA
-
Ij; ELEVATED WATER
WATER LINE TOWER SITE
BY DEVELOPER
II'I' 'if �O � i it �'il�rf �i�ltl IL I{I�t�� .��• 1� - !
p E
EX. 12'
II�IIr Z m l
� y
l,l
�l =
-ER LINE I TT: 11
� ILL:1 aC1
))II' 1 j `I i n TI+III i[^1 11 11 T- 0 O
,
fiPll Iat -
O T d
APT
t; IJ!
WATER LINE
BY DEVELOPER
12" WATER
�_ I
1=
�- NORTH
350 175 0 350
EXHIBIT "Ell GRAPHIC SCALE IN FEET
WATER Kimiey>))Horn
ENGINEERING FIRM REGISTRATION * F-928
Exhibit F
Sg=*a., Sewer .,a Se System Imorovements.
,
[See Attached]
12
a�
�xoo
1 I
` i I
� p 1
I!
f 1
SUBJECT
I
,
II
-
PROPERTY
+.I . I..
'1 ",ll
_-HACKBERRY-
ROAD
--
- _ RIGHT-OF=✓VAY)
8" SANITARY
SEWER LINE B
I ,
,
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<
co
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i LL
z
r
GY
fiTIiRTTn '�U'i!`It L.fiTl�
p ' I.
..7,.lIY".I
��I lII��I ! :111WI EI IIIIi'T_'�'if��I�IIII III)
o
SDI) ( II'1 Ill Iif�Ill�.l
�_ Q
ItttIJ II tr. i'"TI II�T�I
9J 'i
!IX " I i $ !I )Tf1I G,.II l i IITT7"i{�
lrt:LL,, I,,L1 LiwlI I1W11,
It 1
8" SANITARY
SEWER LINE
il
Il
.
f tl 1 5 1,
i
! SSMH AND STUB�-
,I f ' A! jJ Ix'i OUT (TYP.)
1
I� ,'I' I;'I1 _.� �'�'�! 'jl 1, n ' EXISTING 8"
SANITARY SEWER
��I
! � f f
•,
j P KI d 1 Il pl
� I- ti. li Jj IIIII
LEGEND
1 SANITARY SEWER
F SANITARY SEWER
BY DEVELOPER
EXISTING 15"
SANITARY SEWER
15" SANITARY SEWER
BY DEVELOPER
EXHIBIT "F"
SANITARY
SEWER
/u
15" SANITARY
SEWER LINE A
I\� tEXISTING 15"
SANITARY SEWER
IN.R_,
400 200 0 400
GRAPHIC SCALE IN FEET
Exhibit; G
Road. Imp
rovements
[See Attached]
:�N15
t ; y
i;
rr i
t,
SUBJECT
i i ri 1
PROPERTY
SEE INSET
THIS SHEET l+
' +1,039 FT
r , t
it
(e
r fit ri (i n f
;;
HACKBERRY ROAD
;;"
(A PROPOSED
80' RIGHT-OF-WAY)
if f
I �tl II ii � l
HACKBERRY ROAD
h
r BY DEVELOPER. J ,
"r {i
1 t
I�
p 1
V I
u I
`!f 1. I I+
i i� I 0 N
co
in
It li 1 1 1 LL _ Z O -�-I
O S
0
8_0' I 25' B-B 14'
HACKBERRYROAD
80' RIGH--OF-WAY
14' MEDIAN
5' SIDEWALKS
N.T.S.
1 I 20' B-B 20' B-B _ 10' 1
j
Q 0
yJJ (
U �.
rri 'i
I if
V p
,it
t rl if If
i if
I
G
y"i� i
'
[_ MEDIAN LANDSCAPE
if'
- AND IRRIGATION PER
CITY STANDARDS
+
I
THROCKMORTON BLVD.
I
BY DEVELOPER
;f i i;
_
7 "
'it
ff l if
1, et 1,
r ,,
i if "
' ;F 1
, if
IY
ii if r
it f rf
if
ti ftl i
t f
if
-�-
,it
EXISTING
THROCKMORTON BLVD. I
LEGEND
IlmommEXISTING
EXHIBIT "G"
BY DEVELOPER ROADWAY
THROCKMORTON BOULEVARD
69 RIGH--OF-WAY
5' SIDEWALKS
N.T.S.
INSET
1^=200'
1
1
W 'Z a F
o O W '
C'
(-7W~
W '
HACKBERRY ROAD
BY DEVELOPER
I
1
1 1
NORTH
350 175 0 35111
GRAPHIC SCALE IN FEET
Exhibit H
Storm Water Improvements
[See Attached]
LEGEND
aZ
6] UKI\A UKAIN
ByDEVELOPER
_L4
(D
l'.' Ii [1,,
.7—TIT11 I I
I'T
>
66" RCP
Ill I is rjl,� Ji'Will, DA -
j
0
".-h i ;JT LU
Ug 77
I 111w� 0 of
STORM DRAIN
LINE B
"TI; 11
-;h
STORM DRAINtj--"_'
BY JDEVELOPER T- F8'x 66�---
-R 1
�171-11 T� TI TIT_,
ff''I'W
-1 L fllflld:1�4—IP`
EXISTING
STORM DRAIN
EXISTING STORM DRAIN
STORM DRAIN BY
DEVELOPER
EXHIBIT 111-111
STORM
RCB
rj
1-8'x8'
RCB
1 O'X8'CONC.
HEADWALL
EROSION
CONTROL/
OUTFALL
PROTECTION
BY DEVELOPER
350 175 0 350
GRAPHIC SCALE IN FEET
Exhibit I
Waiver of Sales Tax Confidentiality and Authorization for Release
(name of company), a (type of
company), holding Texas sales tax permit number .hereby waives the right of
sales tax information confidentiality as provided by Section 321.3022(f) of the Texas Tax Code and
authorizes the Office of the Texas Comptroller of Public Accounts to provide any and all information, to
the City Manager of the City of Anna, Texas related to sales and use taxes paid to the City and/or the
City's development ACDC on behalf of (name of company) for sales
attributable to its location(s) in the City of Anna, Texas.
(name of company) has furnished this Waiver of Sales Tax
Confidentiality and Authorization for Release in connection with sales tax incentive agreements entered
into by the City of Anna's development ACDC that requires the submission of this information. This
waiver shall be in effect until termination of said sales tax incentive agreements.
EXECUTED on this day of , 20
By:
4829-1701-6166, v. 1
(name of company)
(printed name and title)