RESOLUTION NO. 2007- 150 R A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF I TEXAS, APPROVING A CHAPTER 380 SAN MARCOS, ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY AND CREEKSIDE SQUARE, LTO; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT; AND DECLARING AN EFFECTIVE DATE. RECITALS: I. The City Council has adopted an Economic Development Incentives Policy by Resolution 2006- 91 R. 2. Creekside Square, LTO is going to develop a 119. 165 acre tract of land, more or less, located along IH-35 South, as a retail development. This land is being purchased from the General Land Office; therefore the development will take land that is presently not on the tax roll and turn it into a productive development that will benefit the City. 3. The City and to enter into a chapter 380 economic development agreement pertaining to this project. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SAN MARCOS, TEXAS: I the " between the PART 1. The attached development incentive agreement ( Agreement") City and Creekside Square, LTO is found to satisfy the requirements of the Policy. PART 2. The terms and conditions of the Agreement are approved and adopted. PART 3. The City Manager, Dan O' Leary, is authorized to execute this Agreement. PART 4. This Resolution is in full force and effect immediately upon its passage. ADOPTED on the 21st day of August 2007 vig , Susan Narvaiz ~ Mayor Attest: 71\-- ~~ r, , r,;' /)', ct,:rC;' f ~,;; r - /' ~_'><..._',j't'/ L / '"/ J Shel Good in . - I Interim City Clerk CHAPTER 380 I ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN MARCOS, TEXAS AND CREEKSIDE SQUARE, LTD This Chapter 380 Economic Development Agreement ( this " Af!Yeement") is entered into between Creekside Square Ltd., 301 Congress Ave. Suite 200, Austin, Tx. 78701, its successors and assigns ( the " Owner "), and The City of San Marcos, Texas, a home rule city the "~ The Owner and the City may be referred to jointly herein as " the Parties" and individually as a " Party." RECITALS WHEREAS, the City Council of the City has adopted Resolution No. 2006- 91R attached as Exhibit " A" (" Resolution "), authorizing the City to make certain economic development grants to the Owner in recognition of the positive economic benefits which will accrue to the City through the Owner' s efforts to develop approximately 119. 165 acres of land, which is located in the City limits, as more particularly described on the attached Exhibit " I"; and WHEREAS, the City desires to offer incentives to the Owner over a period of time which will enable the Owner to develop the Property as an integrated, planned project I Pro;ect"); and WHEREAS, the City believes that the Project will contribute to the economic development of the City by generating employment and other economic and social benefits to the City. NOW, THEREFORE, in consideration of the mutual benefits described in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Owner agree as follows: 1. Authoritv The City' s execution of this Agreement is authorized by Chapter 380, Texas Local Government Code, and by the Resolution and constitutes a valid and binding obligation of the City, subject to the conditions precedent as stated herrein. The Owner' s execution and performance of this Agreement constitutes a valid and binding obligation of Owner. The City acknowledges that the Owner is acting in reliance upon the City' s performance of its obligations under this Agreement in making its decision to commit substantial resources and money to acquire and develop the Property and Owner acknowledges that City is acting in reliance upon Owner' s full and complete performance of its obligations under this Agreement in making its I decision to commit substantial resources to this Project. G'\ Chent\Durhman BassettSCM\ San Marcos\Ch, 380 Agreement\ 380 Agreement~ lldoc 2. Definitions I As used in this Agreement, the following words or phrases shall have the following meanmgs: 2. 1 " Act of Default or Default" means failure to timely, fully, and completely comply with one or more requirements, obligations, duties, terms, conditions or warranties, as stated in this Agreement. City may accept substantial compliance in lieu of full compliance by waiving such act of default. 2. 2 " Ad Valorem Tax Base Line Year" means the year 2007. st 2. 3 " Ad Valorem Tax Effective Date" means January I of the first calendar year following the date of Initial Completion. 2. 4 " Ad Valorem Tax Revenues" means the amount of property taxes collected by the City on the Property, including any improvements, a portion of which will be repaid to Owner in the form of Chapter 380 Payments, as defined below. 2.5 " Assessed Taxable Value" means ad valorem tax values set annually by the Hays County I Appraisal District for real property and improvements on the Property and does not include on- site business personal property. I 2. 6 " Certificate of Occupancy" shall mean that final document issued by the City of San Marcos, Texas, entitled " Certificate of Occupancy", indicating that all applicable codes, regulations, and ordinances enforced by the City of San Marcos have been unconditionally, fully and completely complied with in all respects. A Certificate of Occupancy shall not include a certificate issued in error, mistake or misrepresentation of facts, nor any temporary or conditional document authorizing temporary or conditional occupancy. 2. 7 " Chapter 380 Payment( s)" means the amount( s) paid by the City to the Owner under this Agreement. 2. 8 " City of San Marcos or City" means the governing municipal corporation, and the area that is within the city limits ofthe City of San Marcos. 2. 9 " Code" means the San Marcos Code of Ordinances in effect as of the Effective Date. 2. 10 " Designated Successors and Assigns" shall mean ( i) an entity to which Owner assigns ( in writing) its rights and obligations contained in this Agreement pursuant to Section 12.4.. Except as provided below, the Owner may not assign all or part of its rights and obligations under this Agreement to a third party without prior written approval of the City, which approval will not be unreasonably withheld or delayed. The City agrees, however, that the I 2 Owner may assign all or part of its rights and obligations under this Agreement to any entity affiliated with the Owner by reason of controlling, being controlled by, or being under common I control with the Owner. 2. 11 " Effective Date" means the date this Agreement has been signed by all Parties. 2. 12 " Force Majeure" means any event in which any Party shall be delayed, hindered in or prevented from the performance of any act required under this Agreement by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, unavailability of any utility service, restrictive governmental laws or regulations, riots, insurrections, the act, the failure to act, or default of another Party or a material worsening of current conditions caused by acts of terrorism or war ( whether or not declared), or severe weather occurring after the execution of this Agreement, which materially impair the Party' s ability to perform any act required under this Agreement. 2. 13 " Gross Leasable Space" means that space under roof and air conditioned and heated and ready for finish-out work for a selected occupant. 2. 14 " Hard Costs" means actual costs of construction and materials ( including land acquisition costs for the Roadway Improvements and any offsite easements needed for construction ofthe Public Improvements) incurred by Owner for the Public Improvements. 2. 15 " Increased Ad Valorem Tax Revenues" means for any given calendar year the difference between ( x) the Ad Valorem Tax Revenue minus ( y) the ad valorem taxes that would I have been collected by the City for that year based on the Assessed Taxable Value on January I, 2007. 2. 17 " Initial Completion" means the date by which each of the following has occurred: ( i) Substantial Completion of the Public Improvements, and ( ii) Completion of the Gross Leaseable Space to the Target, ther Project's anchor tenant which shall be accomplished upon the granting of either a Temporary or Permanent Certificate( s) of Occupancy for such space, whichever first occurs. Further, Initial Completion shall occur on or before the end of the thirty-sixth (36th) full month following the Effective Date. 2. 18 " Insolvent" means failure to timely pay debts in the ordinary course of business or can not pay all debts when and as they become due, or is insolvent within the meaning of the federal bankruptcy law. 2. 19 " Maximum Reimbursement Amount" means the actual Hard Costs and Soft Costs incurred by the Owner for construction of the Public Improvements; provided, however the sum of Hard Costs and Soft Costs shall not exceed a combinded total of $2, 000,000.00. The Parties hereby acknowledge and agree that the dollar amounts allocated to each line item and category shown on Exhibit " C" attached hereto are estimates only and Owner shall have the right to re- allocate the dollar amounts between the line items and categories, so long as the I Maximum Reimbursement Amount is not exceeded. 3 2. 20 " Owner" means Creekside Square, LTD. 2. 21 " Program" means the economic development program established by the City I under the Resolution, as authorized by Chapter 380, Texas Local Government Code, to promote local economic development and stimulate business and commercial activity within the City. 2. 22 " Project" means Owner' s planned development of approximately 119. 165 acres, more particularly described on Exhibit " 1" attached hereto. The Project is identified as the Stone Creek Crossing" Project.