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HomeMy WebLinkAboutResolution - 2003-R0287 - Memorandum Of Understanding Between North Overton TIF And Mccanton Woods, Ltd. - 07_24_2003Resolution No. 2003RO287 July 24. 2003 Item No. 30 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Senior Council Member of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock approval of a Memorandum of Understanding between the North Overton Tax Increment Financing Reinvestment Zone (TIF) Board of Directors and McCanton Woods, Ltd. regarding public improvements within the TIF District. Said Memorandum of Understanding is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 24tb day of July , 2003. T.J. PA RSON, SENIOR COUNCIL MEMBER ATTEST: Q'tk4" Rebecca Garza, City Secretary APP D AS ONTENT: Craig Fafme , Managing Director of Planning and Transportation APPROVED AS TO FORM: Linda L. Chamales, Supervising Attorney Office Practice Section City Att / Linda and ccdocs: Res -NO T1F MOU Resolution No. 2003-RO287 July 24, 2003 Item No. 30 MEMORANDUM OF UNDERSTANDING BETWEEN THE BOARD OF DIRECTORS OF THE NORTH OVERTON TAX INCREMENT FINANCING REINVESTMENT ZONE AND McCANTON WOODS, LTD. STATE OF TEXAS § COUNTY OF LUBBOCK § This agreement is between the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone (hereinafter called `Board") and McCanton Woods, Ltd. (hereinafter called "Lead Developer"). WHEREAS, the City, upon receipt of a petition requesting creation of a tax increment financing district from the owners of more than 50 per cent of the appraised value of the area, adopted Ordinance No. 2002-029, March 14, 2002, establishing the North Overton Tax Increment Financing Reinvestment Zone in accordance with the provisions of the Tax Increment Financing Act, V.T.C.A. Tax Code, Chapter 311 (the "Act"); and WHEREAS, in accordance with the Act, the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone has prepared a Project Plan (the "Project Plan") and a Financing Plan (the "Financing Plan") with Amendments, and the City, in accordance with the Act and after making all findings required by the Act, has adopted the Plans and has or will adopt, an ordinance approving amendments to the plans; and WHEREAS, the Act authorizes the expenditure of funds derived within a reinvestment zone, whether from bond proceeds or other funds, for the payment of expenditures made and monetary obligations incurred by a municipality consistent with the project plan of the reinvestment zone, which expenditures and monetary obligations constitute project costs, as defined in the Act ("Project Costs"); and WHEREAS, Lead Developer has acquired a large percentage of the real property situated within the North Overton Tax Increment Financing Reinvestment Zone (the "TIF District") and intends to transfer said property to various Developers to develop the property as Overton Park (the "Project") in accordance with the map which is attached and marked "Exhibit A"; and WHEREAS, The Board, after due and careful consideration, has concluded that the redevelopment of the Project as a portion of the TIF District as provided herein and in the Project Plan will further the growth of the City, facilitate the redevelopment of the entire TIF District, improve the environment of the City, increase the assessed valuation of the real estate situated within the City, foster increased economic activity within the City, increase employment opportunities within the City, upgrade public infrastructure within the TIF District, and otherwise be in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers, and that entering into this Agreement is necessary and convenient to implement the Plans and achieve their purposes; and WHEREAS, the Board is desirous of having Lead Developer undertake the Project in order to serve the needs of the City and in order to produce increased tax revenues for the various taxing units authorized to levy taxes on real property within the TIF District and the City and, in order to stimulate and induce the redevelopment of the TIF District, the Board had developed a Plan to participate by dedicating and pledging the use of revenue in the Tax Increment Fund to finance certain Project Costs, all in accordance with the terms and provisions of the Act, with the guidelines set up by the City to be followed in City/Developer participation agreements, and with the terms of this particular Agreement; and WHEREAS, the City has adopted Redevelopment Policies and TIF policies for guidance in Development Agreements, and WHEREAS, the Lead Developer and the Board desire to clarify the intentions of each party with regard to the overall financial and construction responsibilities of the Lead Developer, the individual Developers (herein called "Secondary Developers"), and the City in the construction of Public Improvements such as street reconstruction, street lighting, landscaping, street furniture, sidewalks, water/waste water replacement and relocation and other utility relocations; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein, the Parties agree as follows: ARTICLE I. RECITALS AND EXHIBITS PART OF AGREEMENT 1.1 The representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Article I. Exhibits A, B, C, D, and E, attached hereto are incorporated into this Agreement as if fully set forth herein. ARTICLE II. DEVELOPMENT PLAN — NORTH OVERTON 2.1 Lead Developer has acquired a large percentage of the real property situated within the North Overton Tax Increment Financing Reinvestment Zone (the "TIF District") and intends to transfer said property to various Developers to develop Memorandum of Understanding — Board / Lead Developer 2 the property as Overton Park (the "Project") in accordance with the map which is attached and marked "Exhibit A" and in accordance with the Project and Finance Plans as amended and adopted by the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone which are also attached and marked "Exhibit B." In accordance with the Redevelopment and TIF policies set up by the City Council, which are attached and marked Exhibit C, this agreement attempts to clarify the intentions of the parties with respect to the overall financial and construction responsibilities of the parties and the Secondary Developers within Bond Issue One, Phase One, Projects 3-12, on tracts , as depicted on the map in Exhibit A. ARTICLE III. DEFINITIONS 3.1 "Parkway" is herein defined as any part of the public right-of-way lying between the curb or grade line of any public street and the abutting private property line. 3.2 "Hardscape" is herein defined as the hard surface portion of the landscaping in the parkway such as stone, concrete, brick or other approved surface under the Design Guidelines as set forth in Exhibit D. 3.3 "Softscape" is herein defined as plant materials, ground preparation, pedestrian lighting, street furniture, and trash receptacles. A R TTCT .F TV RESPONSIBILITIES OF LEAD DEVELOPER 4.1 Agrees to follow the Design Guidelines including the Landscape Plan for the Development and to insure that Secondary Developers are required by contract to follow the Guidelines. 4.2 Be responsible for the relocation of utilities (except LP&L, water and wastewater) or require Secondary Developers by contract to relocate utilities underground. 4.3 Provide $310,000 of the funding for the widening of Eighth Street. Subject to the availability of funds, this may be refunded to Lead Developer at a later stage of the development. Phase II revenue will not be available for reimbursement until all of the Phase I obligations in the revised Plan approved May, 2003 have been paid by the TIF. 4.4 Require Secondary Developers by contract to negotiate and sign an agreement with the City regarding TIF funds or provide the required improvements and amenities at their own expense. Memorandum of Understanding — Board / Lead Developer 3 4.5 Provide or require Secondary Developers to provide ■ Hardscape in the parkway ■ irrigation in the parkway (from curb to property line) ■ cost of water for irrigation of parkway ■ paved alleys ■ 100% landscaping between property line and building. 4.6 Retain the brick in Main Street as required by ordinance and assure by contract that Secondary developers retain Main Street's brick 4.7 Follow and require Secondary Developers by contract to follow City's plan for driveways and access points to University Avenue. ARTICLE V. RESPONSIBILITIES OF SECONDARY DEVELOPER 5.1 Follow the Design Guidelines including the Landscape Plan for the Development. 5.2 Negotiate and sign agreement with City regarding TIF money in substantially the same form as the Model Agreement attached as Exhibit E. 5.3 Retain the brick in Main Street 5.4 If not provided by Lead Developer, Secondary Developer shall • Pave alleys • Provide hardscape in the parkway as required by Landscape Plan. • Irrigate in the parkway • Pay the cost of water for irrigating in the parkway 5.5 Be responsible for landscaping between the property line and the building. ARTICLE VI FUNDING RESPONSIBILITIES OF NORTH OVERTON TIF Subject to availability of tax increment funds allocated by the Project Plan in the Phase One, Bond Issue One, Project 3-12, and subject to having a signed developer's agreement for the project, the TIF will provide the following: 1. Pay for preparation of Design Guidelines including a Landscape Plan for the Development copies of which are attached and marked as Exhibit D. 2. Pay for and construct necessary street improvements, curb and gutter and pedestrian lighting for the Development. 3. Fund softscape required in the parkway if agreements have been reached with Secondary Developers. Memorandum of Understanding — Board / Lead Developer 4 ARTICLE VII FORCE MAJEURE 7.1 It is expressly understood and agreed by the parties to this Agreement that if the substantial completion of the construction of any improvements contemplated hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, or interferences, delays caused by the franchise utilities or their contractors, fire or other casualty, court injunction, necessary condemnation proceedings, acts of the other party, its affiliates/related entities and/or their contractors, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated shall be excused from performing during such period of delay, so that the time period applicable to the design or construction requirement shall be extended for a period of time equal to the period the party was delayed. ARTICLE VIII, TERM 8.1 The term of this agreement shall begin on the date of execution and end upon the earlier of (a) the complete performance of all obligations and conditions precedent by parties to this Agreement; or (b) the expiration of the term of the North Overton Tax Increment Financing Reinvestment Zone; provided however, that the obligations of City to apply increment which has accrued during the term of the North Overton Tax Increment Financing Reinvestment Zone but which is not collected until subsequent to the expiration of the term toward unreimbursed Project Costs pursuant to this Agreement shall survive. ARTICLE IX. INDEMNITY 9.1 Developer agrees to defend, indemnify and hold City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought that may arise out of or be occasioned by Developer's breach of any of the terms or provisions of this Agreement, or by any negligent act or omission of Developer, its officers, agents, associates, employees Memorandum of Understanding — Board / Lead Developer 5 negligent act or omission of Developer, its officers, agents, associates, employees or subcontractors, in the performance of this Agreement; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Developer and City, responsibility, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise to any other person or entity. ARTICLE X. AMENDMENTS 10.1 This Agreement may be modified in writing and signed by all parties and is subject to the availability of funding in Phase One, Bond Issue One, Projects 3-12 of the Project Plan. Nothing in this Agreement shall be construed to require City to approve reimbursement or make expenditures from any source other than the Tax Increment Fund. ARTICLE XI. DEFAULT 11.1 A default shall exist if any party fails to perform or observe any material covenant contained in this Agreement, or if the representation provided for in Article IX is not true or correct. A party shall immediately notify the defaulting party in writing upon becoming aware of any change in the existence of any condition or event that would constitute a default by the defaulting party, or with the giving of notice or passage of time, or both would constitute a default by defaulting party under this Agreement. Such notice shall specify the nature and the period of existence thereof and what action if any, the notifying party requires with respect to curing the default. 11.2 If a default shall occur and continue, after thirty (30) days written notice to cure default, Board may, at its option terminate this Agreement or pursue any and all remedies it may be entitled to in accordance with Texas law, without the necessity of further notice to or demand upon Lead Developer. ARTICLE XII. FEDERAL FUNDING Memorandum of Understanding — Board / Lead Developer City are involved in this project at this time. City further agrees that it does not have any intention or plans to participate in the future in any federally assisted project activities in the North Overton Tax Increment Finance Reinvestment Zone. 12.2 Lead Developer represents and warrants to City that Developer has no federal funds involved in this project at this time. Developer further agrees that it will not in the future participate in any federally assisted project activities in the North Overton Tax Increment Finance Zone. ARTICLE XIII. NOTICES 13.1 Any notice required by this Agreement shall be deemed to be properly served if deposited in the U.S. mails by certified letter, return receipt requested, addressed to the recipient at the recipient's address shown below, subject to the right of either part to designate a different address by notice given in the manner just described. 13.2 If intended for City notice shall be sent to: Board of Directors, North Overton Tax Increment Financing Reinvestment Zone C/o Director of Planning City of Lubbock P.O. Box 2000 1625 131h Street Lubbock, Texas 79457 13.3 If intended for Lead Developer, notice shall be sent to: Mr. Delbert McDougal McCanton Woods, Ltd. 7008 Salem Avenue Lubbock, Texas 79424 ARTICLE XIV. VENUE AND GOVERNING LAW 14.1 This Agreement is performable in Lubbock County, Texas, and venue for any action arising out of this Agreement shall be exclusively in Lubbock County. 14.2 This Agreement shall be governed and construed in accordance with the laws of the State of Texas. Memorandum of Understanding — Board / Lead Developer 7 ARTICLE XV. ATTORNEY FEES 15.1 Developer and City expressly agree that in the event of- any litigation arising between the parties to this Agreement that each party shall be solely responsible for payment of its attorneys and that in no event shall either party be responsible for the other part's attorney fees regardless of the outcome of the litigation. ARTICLE XVI. LEGAL CONSTRUCTION 16.1 In the event that 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 the invalid, illegal or unenforceable provision had never been contained in this Agreement. ARTICLE XVII. COUNTERPARTS 17.1 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. ARTICLE XVIII. ENTIRE AGREEMENT 18.1 This Agreement embodies the complete agreement of the parties hereto as it relates to the Public Improvements in Bond Issue One, Phase One of the Project, superseding all oral or written previous and contemporary agreements between the parties and relating to matters in this Agreement, and except as otherwise provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this Agreement. Memorandum of understanding — Board / Lead Developer 8 EXECUTED in duplicate and effective as of the 24th day of July , 2003. NORTI O T TIF,,,3A McCANTON WOODS, LTD. JACK DRISCOLL, CHAIRMAN Mc D EQUIPMEN LEASING,L.C., General Partner By: Delbert G. McDougal, Sole Manager APPROVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK this 24th day of July ,2003. SENIOR. ' O TCIL MEMBER ATTEST: Rebecca Garza, City Secretary APPRO AS TO Craig F r, Managing Director of Planning find Transportation APPROVED AS TO FORM: Linda Chamales, Supervising Attorney Memorandum of Understanding — Board I Lead Developer 9 m A P■ipsiW r-1■Ve Proipct F RronosQd Prow -EXHIBIT Resolution No. 2003-RO287 b North Overton Area Tax Increment Financing Reinvestment Zone L UBB0CK, TEXAS MAY 2003 Financing Plan FINANCING PLAN The Financing Plan provides information on the projected impact that the North Overton Area Tax Increment Finance Reinvestment Zone (Zone) could have on the property described in Exhibit A. It will also describe how that impact could be utilized to enhance the area and region through leveraging the resources of each entity that participate in the project. Below is a summary of the Financing Plan items required by law: 1. The proposed public improvements in the Zone are as follows: • Capital costs, including the actual costs of the acquisition and construction of public works, public improvements, new buildings, structures, and fixtures; the actual costs of the acquisition, demolition, alteration, remodeling, repair, or reconstruction of existing buildings, structures, and fixtures; and the actual costs of the acquisition of land and equipment and the clearing and grading of land; • Financing costs, including all interest paid to holders of evidences of indebtedness or other obligations issued to pay for project costs and any premium paid over the principal amount of the obligations because of the redemption of the obligations before maturity; • Any real property assembly costs; • Professional service costs, including those incurred for architectural, planning, engineering, and legal advice and services; • Any relocation costs; • Organizational costs, including costs of conducting environmental impact studies or other studies, the cost of publicizing the creation of the Zone, and the cost of implementing the project plan for the Zone; • Interest before and during construction and for one year after completion of construction, whether or not capitalized; • The amount of any contributions made by the municipality from general revenue for the implementation of the project plan; • Imputed administrative costs, including reasonable charges for the time spent by employees of the municipality in connection with the implementation of a project plan; • The cost of operating the Zone and project facilities; and Page 1 North Overton Area Financing Plan City of Lubbock, Texas Financing Plan 8. The estimated appraised valued of the improvements in the Zone during each year of existence. Table 1 YEAR 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 TOTAL • The estimated appraised value of the improvements in the Zone per year is listed in the following table. ANNUAL CAPTURED VALUE ESTIMATED DEMOLITIONS S $ (3,703) (4,003) (5,883) (1,588) (1,599) 16 776 ESTIMATED NEWDEVELOPMENT S $ 8,807 13,349 41,470 75,957 44,578 25,474 14,159 11,721 235,51 S ESTIMATED ADJUSTED CAPTURED VALUE S $ 5,104 9,346 35,587 74,369 42,979 25,474 14,159 11,721 218, 739 Page 3 North Overton Area Financing Plan City of t ubbock, Texas Financing Plan • Payments made at the discretion of the governing body of the municipality that the municipality finds necessary or convenient to the creation of the Zone or to the implementation of the project plans for the Zone, 2. Estimated Project Cost of Zone, including administrative expenses. • Project cost estimates currently total $2.56M for Projects 1 & 2 and $15.2M for Projects 3-9, for a total of project cost of $17.8 Million. Administrative expense estimates currently total $340,000. Specific cost estimates are included in Table 1 of the Feasibility Analysis. 3. Economic Feasibilty Study. • An economic feasibility study has been completed and is included as a part of this Financing Plan. 4. The estimated amount of bonded indebtedness to be incurred. • The debt capacity produced from the estimated tax increment through the 2011 period should yield approximately $18.1M at issuance and an estimated additional $1.7M from coverage. This should yield a total of approximately $19.8M in funding capacity over this time period. 5. The time when related costs or monetary obligation$ are to be incurred. • Monetary obligations will be incurred with each bond issue; however, it is expected that development agreements will be in place, which would provide sufficient tax increment to pay debt coverage for each bond issuance. 6. A description of the methods of financing all estimated project costs and the expected sources of revenue to finance or pay project costs including the percentage of tax increment to be derived from the property taxes of each taxing unit on real property in the Zone. • Project costs will be financed using bond issues with payment provided by tax increment funds received. The revenue sources will be the real property taxes captured by the Zone, which will account for 100% of revenues used to fund project costs and bonds issued. For the Financial Plan, it is assumed that all taxing jurisdictions will participate at 100% of their incremental taxable value. 7. The current total appraised value of taxable real property in the Zone, • The appraised value of the taxable real property in the Zone that the Lubbock Central Appraisal District certified in July 2002 was $26.9 Million. This amount is the base value for the district in calculating future increments. Page 2 North Overton Area Financing Plan City of Lubbock, Texas Financing Plan • The estimated annual incremental funds available from development and redevelopment in the Zone are listed in the following table. Table 2 1 ANNUAL INCREMENTAL FUNDS AVAILABLE ESTIMATED ESTIMATED ESTIMATED YEAR ADJUSTED CAPTURED CUMULATIVE CAPTURED ANNUAL TAX VALUE, $g VALUE, $% INCREMENT, $% 2002 5,104 5,104 - 2003 9,346 14,450 - 2004 35,587 50,037 44 2005 74,369 124,406 125 2006 42,979 167,385 434 2007 25,474 192,859 1,080 2008 14,159 207,018 1,453 2009 11,721 218,739 1,674 2010 - 218,739 1,797 2011 - 218,739 1,899 2012 - 218,739 1,899 2013 - 218,739 1,899 2014 - 218,739 1,899 2015 - 218,739 1,899 2016 - 218,739 1,899 2017 - 218,739 1,899 2018 - 218,739 1,899 2019 - 218,739 1,899 2020 - 218,739 1,899 2021 - 218,739 1,899 2022 - 218,739 1,899 2023 - 218,739 1,899 2024 - 218,739 1,899 2025 - 218,739 1,899 2026 - 218,739 1,899 2027 - 218,739 1,899 2028 - 218,739 1,899 2029 - 218,739 1,899 2030 - 218,739 1,899 2031 - 218,739 1,899 2032 - 218,739 1,899 TOTAL 48,385 Based on I00•r6 pardr*at4m and tax rates of Cry--$ 0.S9000; County-$0,191 A0; Hogdtal--$0.09998; WaZw inVi t--$0.00830. Based on full amowat of hwremetnt 000'.6 collecApn raw) Page 4 North Overton Area Financing Platt City of Lubbock, Texas EXHIBIT Resolution No. 2003-RO287 North Overton Area Tax Increment Finance Reinvestment Zone L UBBOC'�, TEX 4S Prepared for City of Lubbock MAY 2003 First Amended Project Plan PROJECT PLAN The North Overton Area was established in 1907 and over the next 20 years developed as a middle-class neighborhood, with home ownership predominating. Following World War II, the growth of Texas Tech stimulated a need for student housing. This need was provided by many non -conforming apartments, converted garages, and subdivided houses, reducing home ownership considerably. Continued growth of Tech encouraged development of apartment buildings, further destroying the stability of the area. By the 1980's, the City of Lubbock recognized the need to "explore methods of stabilizing property values while allowing the area to develop to its fullest potential" and appointed the Overton North Study Committee. This Committee formulated strategies to address the area's problems and potential. Among the strategies was the possibility of utilizing Tax Increment Financing. The City also retained RTKL in 1989 to prepare a Redevelopment Plan for Downtown Lubbock, which included the North Overton area. RTKL's plan identified many of the same issues as the Study Committee and more particularly indicated, "the City must develop creative public/private joint development opportunities and provide public improvements as incentives for development". Through a series of economic and real estate factors, nothing materialized from the two studies during the 1990's, and the situation in North Overton continued to stagnate. However, at this time, a local developer has come forward with a plan to redevelop about 90% of the North Overton area and has petitioned the City to establish a Tax Increment Financing (TIF) District to provide the necessary public funds to enter into a public - private partnership. City staff, working with the developer, has prepared a list of public infrastructure projects, which will stimulate and enhance the redevelopment of North Overton. It is expected that the North Overton Area Tax Increment Financing Reinvestment Zone planned expenditure of approximately $27 million for public infrastructure improvements will result in future development/redevelopment in the Zone which will increase the taxable value by approximately $218.7 Million over the Zone's 30-year life. As set forth in Section 311.011 of the Tax Increment Financing Act of the Tax Code, the Project Plan for the North Overton Area Tax Increment Finance Reinvestment Zone, Lubbock, Texas must and does include the following elements. 1. A map showing existing uses and conditions of real property in the Zone and a map showing proposed improvements to and proposed uses of the property. Following is a map showing uses of real property in the North Overton Area TIF Reinvestment Zone and a map indicating potential locations of proposed public improvements in the zone. Page 1 North Overton Area Proj ed Plan City of Lubbock First Amended Project Plan 2. Proposed changes of zoning ordinances, the master plan of the municipality, building codes, and other municipal ordinances. No changes anticipated at this time except to zoning ordinances. Zoning ordinances will be modified to provide architectural guidelines and special zoning considerations to provide for redevelopment of the North Overton area as a pedestrian -oriented, neo-traditional development. I A list of estimated non -project costs. Non -project costs within the Zone area are those development costs not paid for by the Zone. These costs will include, but are not limited to, $2355 Million of new development. 4. A statement of a method of relocating persons to be displaced as a result of implementing the plan. In the process of developing and redeveloping the Zone, it is not contemplated there will be any involuntary relocations. However, it may be necessary to relocate individuals and businesses through voluntary buyout. In the event that this is required, the City or private developer will follow the procedures that would be used in the development or construction of other public or private improvements outside the Zone. Page 2 North Overton Area Project Plan City of Lubbock First Amended Project Plan NORTH OVERTON PROJECT PLAN, f5-O8-03 TIF Expense, Phase 1 Project U2 Cost Project 3-Remaining Total Cost Projects Cost Street Reconstruction/Resurfacing $ 991,757 $ 4,760,970 $5,752,727 A/E Services Reconstruction, curb & gutter Roundabouts Round -About Amenities $ 40,000 $ 120,000 $ 160,000 A/E services Landscaping, conadey irrigation Pedestrian lighting & street furniture. Eighth Street Boulevard $ 70,218 $ 306,282 $ 376,500 (University to Ave. X� Replace curb & gutter 8'h Street Boulevard Amenities $ 175,000 $ 830,000 $1,025,000 A/E services Landscaping & street furniture irrigation, concrete, street lighting Landscaping in the Parkway $ 375,859 $1,122,000 $ 1,497,859 A/E services Landscaping, concrete, irrigation, Pedestrian lighting & street furniture WaterlWaste Water $ 446,000 $ 2,599,000 $ 3,045,000 Replacement vs. Relocation Electric Utility— Underground $ 461,784 $ 3,041,130 $ 3,502,914 Removal &relocation Pioneer Park Improvements - 0 - $ 500,000 $ 500,000 Marsha Sharp Frwy. Frontage - 0 - $ 1,000,000 $ 1,000,000 University Ave.Blvd. - 0 - $ 900,000 $ 900,000 Total Bond Issues (1— 5) $ 2,560,618 $15,199,382 $17,760,000 " Administration $ 340,000 TOTAL PHASE 1 TIF COST $IM00,000 PHASE 2 — YEARS 7 — 30 Public Infrastructure — TIF Reimbursements eligible under the statute $ 9,418,000 TOTAL TIF COST $27,178,000 a LCAD collection fee is deducted before payment Page 3 North Overton Area Project Plan City of Lubbock EXHIBIT CResolution No. 2003-RO287 Subject: Redevelopment Policy Talking Points 1. General Policies 1.1 Redevelopment (as compared to new development) is the reuse of land that is already platted, with public improvements already constructed, accepted and maintained by the City. This may include vacant, platted property. 1.2 Redevelopment projects vary as to their benefit to a city, and the city reserves the right to either participate or not participate in a redevelopment project, depending on their amount of public benefit. These policies shall not be construed to require the City to participate in a redevelopment project, and the City is not obligated to spend money that is not available. 1.3 Redevelopment projects, by their nature, are more successful if there is a private sector lead developer(s). The City may work with a developer(s) and negotiate appropriate City participation to support redevelopment deemed beneficial to the City. The City will not assume the role of lead developer. 2. Land Aggregation Policies 2.1 The purchase and aggregation of parcels is the responsibility of the developers. The City does not intend to use its power of eminent domain to purchase property for private use, unless the City Council agrees that special circumstances exist. 2.2 The City may use the power of eminent domain to obtain property for public use in a redevelopment project, including street and utility rights of ways and easements. If the easement or right-of-way is to benefit a redevelopment project, it is the policy of the city that the redevelopment project should pay the cost of condemnation, either by the developer or by some funding mechanism that assigns the cost back to the area being redeveloped. It is not the intention of the City to force relocation of an existing business or residence. 2.3 The City may determine that the abandonment of existing City right-of-way, easements or public property will be a public benefit to a redevelopment project. 2.3.1 The conversion of the public property to private use will be in accordance with City ordinances and state statutes. 2.3.2 Conversion will require reimbursement of fair market value of such property to the City by the Developer. 2.3.3 Right-of-way dedication required by a redevelopment may be used to offset, on'a square foot basis, the cost of abandonment of public right-of-way, easements or property. 2.3.4 Cost of demolition of abandoned public right-of- ways or easements shall be borne by the developer as part of the cost of development. 3. Public Infrastructure 3.1 Streets — Redevelopment normally involves the reuse of land where streets are already paved and maintained by the City. 3.1.1 City ordinances do not require redevelopment projects to repave or rebuild existing streets. 3.1.2 Some redevelopment projects may contain public streets that are in serious need of reconstruction due to age and wear. The City may choose, if money is available and there is sufficient benefit to the public, to reconstruct such public streets as part of a redevelopment project. 3.1.3 In most cases, widening or rerouting of a street caused by the private redevelopment of land will be funded by the developer rather than the taxpayer, in accordance with City ordinances and policies. 3.1.4 The City may partially participate in rerouting public streets, or in the oversizing or extra - width needed by existing development adjacent to or outside the redevelopment project, or for the cost of reconstruction that it normally would have paid, if money is available. 3.1.5 The City may choose to pay for the additional widening or rerouting of a street in those redevelopment situations where the benefit outweighs the cost. 3.2 Water, wastewater and storm drainage — Redevelopment involves the reuse of land where water and wastewater lines and drainage facilities have already been installed and are maintained by the City. 3.2.1 City ordinances normally do not require redevelopment projects to replace existing water and wastewater lines, or stormwater facilities where existing platted lots are already served by such improvements. 3.2.2 Some redevelopment projects may have utilities that are in serious need of reconstruction due to age and wear. The City may choose, if money is available and there is sufficient benefit to the public, to rebuild those facilities as part of a redevelopment project. 3.2.3 The need for rerouting or increasing the size and capacity of utility lines or facilities that are caused by the private redevelopment of land will be funded by the developer rather than the taxpayer. 3.2.4 The City may partially participate in: 3.2.4.1 Oversizing or the extra capacity needed to serve existing development outside the redevelopment area, 3.2.4.2 The cost of reconstruction that it normally would have paid, if money were available. 3.2.5 The City may choose to pay to reroute or expand a utility in those situation s where the benefit outweighs the cost. 4. Amenities 4.1 Redevelopment may include the installation or replacement of improvements that improve the architectural, aesthetic or character of a reuse project. These can insure the success and long term viability of the project and may include: 4.1.1 Antique or architectural street lighting or pedestrian lighting. 4.1.2 Landscaping, irrigation systems, and related improvements. 4.1.3 Street trees, grates and related irrigation systems. 4.1.4 Extra -width sidewalks, or sidewalks with architectural or material enhancements. 4.1.5 Trails, bike paths or other pedestrianways. 4.1.6 Intersection or median improvements, including reconstruction, widening and aesthetic enhancements. 4.1.7 Street furniture including seating, trash receptacles, bike racks. 4.1.8 Transit facilities including bus pull outs, turn arounds and shelters. 4.1.9 All such improvements must be installed on public right-of-way or easements. 4.2 City ordinances and policies do not require the developer to install such amenities on existing right-of- way or easements. 4.3 The developer or builder may be required to pay for the same level of those amenities that they are normally required to pay for by the City ordinance or policy, such as: 4.3.1 Sidewalks 4.3.2 Paved alleys 4.3.3 Underground electric 4.3.4 The City may choose to pay for the developer's portion of such amenities in those redevelopment situations where the benefit outweighs the cost. EXHIBIT Resolution No. 2003-RO287 Subject: Tax Increment Financing (TIF) District Policy Talking Points 1. General Policies 1.1 Tax Increment Financing Districts are a useful funding mechanism to finance new public improvements in a designated area, in order to stimulate new private investment. It is also an important redevelopment (as compared to development) and reinvestment tool. 1.2 Tax Increment Financing Districts vary as to their benefit to a city, and the City reserves the right to either create or not create a TIF District depending on their public benefit. Nothing in the following policies requires the City to participate in a TIF District, and the City is not obligated to spend money that is not available. 2. TIF Creation Policies — The City will consider creating a TIF District in those areas that: 2.1 Qualify in accordance with state law in one of the following categories: 2.1.1 Unproductive, underdeveloped, or blighted areas. 2.1.2 Areas that are predominately open and underdeveloped 2.2 In addition, the following limitations will apply: 2.2.1 Areas with more than 10% residential usage, must be initiated by petition signed by the owners of more than 50% of the appraised values in the proposed district. 2.2.2 Areas must represent less than 15% of the total appraised value of the City. 2.3 The City will not consider creating TIF Districts in neighborhoods, commercial districts or areas where there is limited public purpose and it is for the sole benefit of the property owners to the detriment of the General Fund and the other taxpayers in the City. 2.4 The City will also not consider creating TIF Districts in neighborhoods, commercial districts or areas where there is not a significant proposed increase in property values due to private development or redevelopment. The normal increase of property values in an area due to inflation is considered to be existing taxes of the City as a whole. 3. TIF Eligible Activities — The statutes allow a TIF District to undertake a number of activities, provided they are performed in accordance with state law. The following policies are only to clarify the activities and expenses that the City will authorize in a Lubbock TIF District. The following are eligible activities and expenses for TIF funding in the City of Lubbock. 3.1 Capital Costs 3.2 Financing Costs 3.3 Construction Interest 3.4 Real Property Assembly Costs 3.4.1 While state statue allows the acquisition of private property for private use in a TIF project, in accordance with the redevelopment policies of the City. 3.5 Relocation expenses (see above) 3.6 Professional services 3.7 Administration and organization costs 3.8 Direct operating costs for zone and project facilities. 3.9 Care should be taken in the selection of projects for the TIF project plan to make sure that improvements add to the viability of a project and enhance property values. Other funding mechanisms should be used for ordinary and routine expenditures that don't increase property values. 4. TIF Financing Policies -- The statues allow a TIF District to use a number of financing techniques, provided they are performed in accordance with state law. The following policies are only to clarify the TIF financing methods that the City will authorize in a Lubbock TIF District. 4.1 Gap Financing — The two year delay in the receipt of additional tax revenues generated by TIF District, combined with the need to immediately make improvements to generate the additional revenues, creates a need for interim financing. The following may be used to temporarily finance the improvements. 4.1.1 Loans from developers. 4.1.2 Loans from one or a group of financial institutions. 4.1.3 Loans from other City funds. 4.1.4 Loans from other taxing jurisdictions. 4.1.5 The interest for such loans is a TIF eligible expense and may be paid by TIF revenues. Such interest may be capitalized in the final TIF debt issuance. 4.2 TIF District Financing — The financing of debt for improvements by a TIF district is preferable. However, if the cost of TIF debt issuance or interest expense is excessive and diminishes the impact of the TIF District, other more effective financing should be used. 4.3 City Financing — The City may finance TIF improvements if it is the most cost effective method. Such debt should be backed by TIF revenues and/or structured to reduce the City's liability as much as possible. However, if the cost of debt issuance or interest expense is excessive and diminishes the impact of the TIF District, other City funding mechanisms may be used. 4.4 Timing of Debt — Regardless of the source of funds, the TIF Financing Plan should attempt to correlate private improvements with the corresponding increment in property taxes. The timing of the receipt of those funds and the debt issuance to fund public improvements. The goal is to reduce the potential liability to the City and to insure that debt issued to fund improvements is backed by actual tax increments. Resolution No. 2003—RO287 EXHIBIT D DESIGN GUIDELINES (When available) Memorandum of Understanding — Board / Lead Developer 13 EXHIBIT Resolution No. 2003-R0287 SECONDARY DEVELOPER PARTICIPATION AGREEMENT BETWEEN THE CITY OF LUBBOCK AND STATE OF TEXAS § COUNTY OF LUBBOCK § This agreement is between the City of Lubbock, a Texas municipal corporation (hereinafter called "City") and (hereinafter called "Developer") WHEREAS, the City recognizes the importance of its continued role in local economic development; and WHEREAS, the City, upon receipt of a petition requesting creation of a tax increment financing district from the owners of more than 50 per cent of the appraised value of the area, adopted Ordinance No. 2002-029, March 14, 2002, establishing the North Overton Tax Increment Financing Reinvestment Zone in accordance with the provisions of the Tax Increment Financing Act, V.T.C.A. Tax Code, Chapter 311 (the "Act"); and WHEREAS, in accordance with the Act, the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone has prepared a Project Plan (the "Project Plan") and a Financing Plan (the "Financing Plan"), and the City, in accordance with the Act and after making all findings required by the Act, has adopted or will adopt, an ordinance approving the plans; and WHEREAS, the Act authorizes the expenditure of funds derived within a reinvestment zone, whether from bond proceeds or other funds, for the payment of expenditures made and monetary obligations incurred by a municipality consistent with the project plan of the reinvestment zone, which expenditures and monetary obligations constitute project costs, as defined in the Act ("Project Costs"); and WHEREAS, Developer has acquired certain real property situated within the North Overton Tax Increment Financing Reinvestment Zone (the "TIF District") and intends to develop the property as (the "Project") in accordance with the map which is attached and marked "Exhibit A"; and WHEREAS, Developer has certain real property within the Project located between and Streets and between and Avenue, which Developer intends to develop as a mixed use multi -family retail structure substantially in accordance with the design which is attached and marked "Exhibit B"; and WHEREAS, The City, after due and careful consideration, has concluded that the redevelopment of the Project as a portion of the TIF District as provided herein and in the Secondary Developer Agreement- City / Project Plan will further the growth of the City, facilitate the redevelopment of the entire TIF District, improve the environment of the City, increase the assessed valuation of the real estate situated within the City, foster increased economic activity within the City, increase employment opportunities within the City, upgrade public infrastructure within the TIF District, and otherwise be in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers, and that entering into this Agreement is necessary and convenient to implement the Plans and achieve their purposes; and WHEREAS, the City is desirous of having Developer undertake the Project in order to serve the needs of the City and in order to produce increased tax revenues for the various taxing units authorized to levy taxes on real property within the TIF District and the City and, in order to stimulate and induce the redevelopment of the TIF District, the City has agreed to participate by dedicating and pledging the use of revenue in the Tax Increment Fund to finance certain Project Costs, all in accordance with the terms and provisions of the Act, with the guidelines set up by the City to be followed in City/Developer participation agreements, and with the terms of this particular Agreement; and WHEREAS, the Developer desires to have the City participate and the City agrees to participate in the construction of Public Improvements such as street reconstruction, street lighting, landscaping, street furniture, sidewalks, and water/waste water replacement and relocation; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein, the Parties agree as follows: ARTICLE I. RECITALS AND EXHIBITS PART OF AGREEMENT 1.1 The representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Article I. Exhibits A, B, C, D, E, F, and G, attached hereto are incorporated into this Agreement as if fully set forth herein. ARTICLE II. DEVELOPMENT PLAN — NORTH OVERTON 2.1 Developer has acquired certain real property situated within the North Overton Tax Increment Financing Reinvestment Zone and intends to develop the property known as the Centre at Overton (the "Project") in accordance with the map and design which are attached and marked "Exhibits A and B," and in accordance with the Project and Finance Plans Secondary Developer Agreement — City / 2 adopted by the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone which are also attached and marked "Exhibit C" ARTICLE III. DEFINITIONS 3.1 "Parkway" is herein defined as any part of the public right-of-way lying between the curb or grade line of any public street and the abutting private property line. 3.2 "Hardscape" is herein defined as the hard surface portion of the landscaping in the parkway such as stone, concrete, brick or other approved surface under the Design Guidelines as set forth in Exhibit F. 3.3 "Softscape" is herein defined as plant materials, ground preparation, pedestrian lighting, street furniture, and trash receptacles. ARTICLE IV. CITY PARTICIPATION 4.1 In accordance with Bond Issue One, Phase I, Project _ of the Project Plan recommended by the Board of Directors of the North Overton District Tax Increment Finance Reinvestment Zone and approved by the City Council of the City of Lubbock, and in accordance with the City of Lubbock Redevelopment Policies and Tax Increment Finance Policies, the City agrees to dedicate and pledge the use of revenue in the Tax Increment Fund to directly participate in the cost of the Public Improvements as shown in the attached "Exhibit D," entitled ," Direct City Participation and TIF Funding, Phase One, Bond Issue One, Project 4.2 This Agreement shall authorize funding only for Bond Issue One, Phase One, Project of the Project. Participation shall be based on actual construction costs incurred by the City or verified by the City upon application and certification by Developer. In the event that the actual costs of the individual Direct City Participation items are less than the amounts shown in Exhibit D, then the City will utilize the "savings" (in its sole discretion) to increase any other individual Direct City Participation element, if needed to provide sufficient funding for the Direct City Participation in other project element or elements. City also reserves the right to reallocate the "savings" for projects in a subsequent phase of the Project. Direct City Participation in Phase One, Bond Issue One, Project Secondary Developer Agreement — City / 3 , shall be limited to the total amount approved by the City Council for Phase One, Bond Issue One, Project of the Project Plan, which is 4.3 The City shall review the Developer's cost estimates in order to deter undue loading of costs, collusion or fraud prior to approval of payment of the Direct City Participation. The City may, at its discretion, pay any increases in the actual cost of a public improvement over its estimated cost, provided funds are available. However, unless the North Overton TIF project and financial plans and this document are amended to so provide, in no case shall the City ever be liable for any amount above and beyond a total of $ , the agreed payment of the City's share of the public improvements contained herein. Nothing in this Agreement shall be construed to require City to approve reimbursements from any source of City funds other than the Tax Increment Fund. 4.4 Increases in the scope of the project beyond that contemplated by the plans and budget within this document shall be paid by the party requesting the increase in scope. 4.5 The City anticipates issuing debt to reimburse the Developer and costs advanced by City for project costs authorized pursuant to this Article. The reimbursement will be paid from the proceeds of debt issued by the City when TIF revenues from taxable improvements will provide 1.25 times coverage calculation of the maximum annual debt service payments on the debt. 4.6 City agrees to make available to the Developer for inspection all of its books and records related to the Public Improvements constructed for the Project and to allow Developer access to the Public Improvement site during the construction for the purpose of periodic inspection of the construction work. City agrees, when applicable, to follow the Design Guidelines, including the Landscape Plan attached hereto as Exhibit F. 4.7 City shall provide the Developer copies of contracts denoting costs for engineering services directly related to the final engineering for development of Public Improvement construction plans and specifications. 4.8 For those Public Improvements in the Project constructed by City in which there is Direct Developer Participation greater than 30% City agrees to submit the Public Improvements to competitive sealed bids and agrees to award the contract to construct the Public Improvements to the lowest responsible bidder. 4.9 City agrees to construct those projects listed in Exhibit D for which the participation is 100% and to reimburse Developer as agreed above for the Secondary Developer Agreement — City / 4 remaining projects to the extent funds are available in Phase One, Bond Issue One, Project of the Project Plan. 4.9 The City and Developer shall cooperate and coordinate their activities with respect to the commencement and construction of the Public Improvements and the Project so that the commencement and construction of the Public Improvements shall occur at such times as are necessary to meet the construction time requirements of Developer for the Project. The parties agree to jointly prepare (and update from time to time as necessary) a construction schedule of the Public Improvements in order to help implement the parties' obligations. Such schedule, when completed, (and as updated) shall become Exhibit G to this Agreement. ARTICLE V. DEVELOPER OBLIGATIONS 5.1 In accordance with the plans in Exhibit B, as approved or amended by the Planning and Zoning Commission, and in accordance with Bond Issue One, Phase One, Project of the Project Plan recommended by the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone and approved by the City Council of the City of Lubbock, the Developer agrees to construct and complete the Centre at Overton in the Project to be located between and Streets and between and Avenue before 5.2 In accordance with the map and design in Exhibits A and B and in accordance with Bond Issue One, Phase One, Project of the Project Plan recommended by the Board of Directors of the North Overton Tax Increment Financing Reinvestment Zone and approved by the City Council of the City of Lubbock, the Developer agrees to construct and/or participate in the actual cost of construction of the Public Improvements and in the percentages as shown in the attached "Exhibit E." Prior to construction the plans and the contract shall be reviewed and approved by the City. Developer shall be responsible for construction of the hardscape and the irrigation in the Parkway in accordance with the Design Guidelines, including the Landscape Plan, attached as Exhibit F. 5.3 Developer agrees to make available to the City for inspection all of its books and records related to the public improvements constructed for the project and to allow the City access to the Project during construction for the purpose of periodic inspection of the construction work. 5.4 Developer shall provide City copies of contracts denoting costs for engineering services directly related to the final engineering for development of construction plans and specifications. Only engineering Secondary Developer Agreement — City / 5 services directly related to final engineering shall be eligible for project cost reimbursement. 5.5 For those Public Improvements in the Project constructed by Developer in which there is Direct City Participation greater than thirty per cent, Developer agrees to submit the Public Improvements to competitive sealed bids and agrees to award the contract to construct the Public Improvements to the lowest responsible bidder in accordance with state law and city ordinances regarding public bids. On those items where there is Direct City Participation, City reserves the right to do the construction of the public improvement with contribution from Developer if it is more economical for the City to build than for Developer to do the construction. 5.6 Developer acknowledges that City will be issuing debt backed by revenue in the Tax Increment Fund to fund the public improvements referenced in the Agreement, and Developer therefore agrees that the project located between and Streets and between and Avenue shall not be sold or transferred to any entity that does not pay property taxes for this property for a period of twenty years from the date of this Agreement. If, during the 20-year period, the property is sold to an entity that does not pay property taxes, Developer agrees to pay into the Tax Increment Fund a sum equal to the amount of increment that would have been generated by that property over the remainder of the twenty year period at the effective tax rate on the date of the sale. ARTICLE VI. FORCE MAJEURE 6.1 It is expressly understood and agreed by the parties to this Agreement that if the substantial completion of the construction of any improvements contemplated hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, or interferences, delays caused by the franchise utilities or their contractors, fire or other casualty, court injunction, necessary condemnation proceedings, acts of the other party, its affiliates/related entities and/or their contractors, or any circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated shall be excused from performing during such period of delay, so that the time period applicable to the design or construction requirement shall be extended for a period of time equal to the period the party was delayed. ARTICLE VII. Secondary Developer Agreement — City / 6 UNJI UVI 7.1 The term of this agreement shall begin on the date of execution and end upon the earlier of (a) the complete performance of all obligations and conditions precedent by parties to this Agreement; or (b) the expiration of the term of the North Overton Tax Increment Financing Reinvestment Zone; provided however, that the obligations of City to apply increment which has accrued during the term of the North Overton Tax Increment Financing Reinvestment Zone but which is not collected until subsequent to the expiration of the term toward unreimbursed Project Costs pursuant to this Agreement shall survive. ARTICLE VIII. INSURANCE 8.1 Developer agrees to obtain or cause its Contractors and/or subcontractors to obtain comprehensive liability insurance satisfactory to the City (including workers' compensation or a self-insurance plan in lieu thereof) which names the City and the Board of Directors for the North Overton Tax Increment Finance District as additional insureds, due to any damage, injury, or death attributed to the Developer or its Contractors or subcontractors while completing the Public Improvements in which there is Direct City Participation. ARTICLE IX. RIGHT OF OFFSET 9.1 City may at its option, offset any amounts due and payable to Developer under this Agreement against any debt (including taxes) lawfully due to City from Developer, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to city has been reduced to judgment by a court. ARTICLE X. INDEMNITY 10.1 Developer agrees to defend, indemnify and hold City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought that may arise out of or be occasioned by Developer's breach of any of the terms or provisions of this Agreement, or by any negligent act or omission of Developer, its officers, agents, associates, employees or subcontractors, in Secondary Developer Agreement — City / 7 the performance of this Agreement; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Developer and City, responsibility, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise to any other person or entity. ARTICLE XI. AUTHORITY TO BIND 11.1 The City represents and warrants to Developer that the City has full constitutional and lawful right, power, and authority, under currently applicable law to execute and deliver and perform the terms and obligations of this Agreement, and all necessary City proceedings, findings and actions. Accordingly, this Agreement constitutes the legal valid and binding obligation of the City, is enforceable in accordance with its terms and provisions and does not require the consent of any other governmental authority. 11.2 Developer hereby represents and warrants to the City that Developer has full lawful right, power and authority to execute and deliver and perform the terms and obligations of this Agreement and all of the foregoing have been or will be duly and validly authorized an approved by all necessary actions of Developer. Concurrently with Developer's execution of this Agreement, Developer has delivered to the City copies of the resolutions or other corporate actions authorizing the execution of this Agreement and evidencing the authority of the persons signing this Agreement on behalf of Developer to do so. Accordingly, this Agreement constitutes the legal, valid and binding obligation of Developer, and is enforceable in accordance with its terms and provisions. ARTICLE XII. DEFAULT 12.1 A default shall exist if any party fails to perform or observe any material covenant contained in this Agreement, or if the representation provided for in Section IX is not true or correct. A party shall immediately notify the defaulting party in writing upon becoming aware of any change in the Secondary Developer Agreement — City / 8 existence of any condition or event that would constitute a default by the defaulting party, or with the giving of notice or passage of time, or both would constitute a default by defaulting party under this Agreement. Such notice shall specify the nature and the period of existence thereof and what action if any, the notifying party requires with respect to curing the default. 12.2 If a default shall occur and continue, after thirty (30) days written notice to cure default, City may, at its option terminate this Agreement or pursue any and all remedies it may be entitled to in accordance with Texas law, without the necessity of further notice to or demand upon Developer. ARTICLE XIII. FEDERAL FUNDING 13.1 The City represents and warrants to Developer that no federal funds or federally assisted project activities as administered by or under the control of the City are involved in this project at this time. City further agrees that it does not have any intention or plans to participate in the future in any federally assisted project activities in the North Overton Tax Increment Finance Reinvestment Zone. 13.2 Developer represents and warrants to City that Developer has no federal funds involved in this project at this time. Developer further agrees that it will not in the future participate in any federally assisted project activities in the North Overton Tax Increment Finance Zone. ARTICLE XIV. NOTICES 14.1 Any notice required by this Agreement shall be deemed to be properly served if deposited in the U.S. mails by certified letter, return receipt requested, addressed to the recipient at the recipient's address shown below, subject to the right of either part to designate a different address by notice given in the manner just described. 14.2 If intended for City notice shall be sent to: Director of Planning City of Lubbock P.O. Box 2000 1625 13th Street Lubbock, Texas 79457 Secondary Developer Agreement — City / 9 14.3 If intended for Developer, notice shall be sent to: ARTICLE XV. VENUE AND GOVERNING LAW 15.1 This Agreement is performable in Lubbock County, Texas, and venue for any action arising out of this Agreement shall be exclusively in Lubbock County. 15.2 This Agreement shall be governed and construed in accordance with the laws of the State of Texas. ARTICLE XVI. ATTORNEY FEES 16.1 Developer and City expressly agree that in the event of any litigation arising between the parties to this Agreement that each party shall be solely responsible for payment of its attorneys and that in no event shall either party be responsible for the other part's attorney fees regardless of the outcome of the litigation. ARTICLE XVII. LEGAL CONSTRUCTION 17.1 In the event that 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 the invalid, illegal or unenforceable provision had never been contained in this Agreement. ARTICLE XVIII. COUNTERPARTS 18.1 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. Secondary Developer Agreement — City / 10 200. ARTICLE XIX, SUCCESSORS AND ASSIGNS 19.1 The terms and conditions of this Agreement are binding upon the successors and assigns of all parties hereto. Provided, however, this Agreement shall not be assigned by Developer without prior City Council approval, which approval shall not be unreasonably withheld. ARTICLE XX. ENTIRE AGREEMENT 20.1 This Agreement embodies the complete agreement of the parties hereto as it relates to the Public Improvements in Bond Issue One, Phase One of the Project, superseding all oral or written previous and contemporary agreements between the parties and relating to matters in this Agreement, and except as otherwise provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this Agreement. EXECUTED in duplicate and effective as of the day of , CITY OF LUBBOCK SENIOR COUNCIL MEMBER M. ATTEST: APPROVED AS TO FORM: Rebecca Garza, City Secretary Attorney for Secondary Developer Agreement — City / 1 I APPROVED AS TO CONTENT: Craig Farmer, Managing Director of Planning and Transportation APPROVED AS TO FORM: Linda Chamales, Supervising Attorney Office Practice Section Secondary Developer Agreement — City / 12 Resolution No. 2003—R 0287 EXHIBIT A MAP Secondary Developer Agreement - City / 13 Resolution No. 2003—RO287 EXHIBIT B PLANS Secondary Developer Agreement — City / 14 Resolution No. 2003—R0287 EXHIBIT C NORTH OVERTON TAX INCREMENT FINANCING REINVESTMENT ZONE FIRST AMENDED PROJECT PLAN AND FINANCE PLAN Secondary Developer Agreement - City 1 15 Resolution No. 2003-RO287 EXHIBIT D 44 77 DIRECT CITY PARTICIPATION AND TIF FUNDING PHASE ONE, PROJECT , BOND ISSUE ONE Project % Participation Cost Estimate Street Reconstruction/Resurfacing 100% $ (Tract #) A/E Services Reconstruction of Round -about Round -About Amenities (if applicable) 100% $ A/E services Landscaping, concrete, irrigation Pedestrian lighting & street furniture. Eighth Street Boulevard (if applicable) % $ ( to Replace curb & gutter 8th Street Median Amenities 100% $ Landscaping & street furniture irrigation, concrete, street lighting Landscaping in the Parkway 100% $ A/E services Softscape Water/Waste Water 100% $ Replacement vs. Relocation Electric Utility (LP&L)— Underground 100% $ Removal & relocation* Contingency $ Total $ * This does not include the alleys between 4th and 5th Streets, Q and R Avenues, or Main and Broadway Streets. Secondary Developer Agreement — City/ Resolution No. 2003-R0287 EXHIBIT E CC 9f DEVELOPER PARTICIPATION PHASE ONE, PROJECT , BOND ISSUE ONE Project % Participation Cost Estimate Street Reconstruction/Resurfacing 0% - 0 - (Tract #2A, 2B, 2C) A/E Services Reconstruction of 61h, Ave X, and University (c & g only) Round -about Round -About Amenities 0% - 0 - A/E services Landscaping, concrete, irrigation Pedestrian lighting & street furniture. Eighth Street Boulevard % $ (University to Ave. X) Replace S curb & gutter 8th Street Median Amenities 0% - 0 - Landscaping & street furniture irrigation, concrete, street lighting Landscaping in the Parkway 100% $ Hardscape (concrete, pavers, etc) Irrigation Water/Waste Water 0% - 0 - Replacement vs. Relocation Electric Utility — Underground 0% -0- removal & relocation Contingency - 0 - Total $ Secondary Developer Agreement — City/ Resolution No. 2003-RO287 EXHIBIT F DESIGN GUIDELINES (when available) Secondary Developer Agreement — City / 18 Resolution No. 2003—RO287 EXHIBIT G CONSTRUCTION SCHEDULE (To be prepared jointly) Secondary Developer Agreement — City / 19