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17-010 RESOLUTION NO. 17-010 A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS, APPROVING THE TERMS AND CONDITIONS OF A PROGRAM TO PROMOTE ECONOMIC DEVELOPMENT AND STIMULATE BUSINESS AND COMMERCIAL ACTIVITY IN THE CITY; AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH TD AMERITRADE HOLDING CORPORATION, FOR SUCH PURPOSES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Chapter 380 of the Texas Local Government Code authorizes municipalities to establish and provide for the administration of programs that promote economic development and stimulate business and commercial activity in the City; and WHEREAS, the City Council has been presented with a proposed agreement by and between the City of Southlake and TD Ameritrade Holding Corporation ("TD Ameritrade"), a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference (hereinafter called the "Agreement"); and WHEREAS, upon full review and consideration of the Agreement and all matters attendant and related thereto, the City Council is of the opinion that the Agreement will assist in implementing a program whereby economic development will be promoted and business and commercial activity will be stimulated in the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS, THAT: SECTION 1. The City Council finds that the terms of the Agreement will promote economic development and stimulate business and commercial activity in the City and otherwise meet the criteria of Section 380.001 of the Texas Local Government Code as well as Chapter 312 of the Texas Tax Code. SECTION 2. The City Council hereby adopts an economic development program whereby the City of Southlake will make economic development program payments to TD Ameritrade, and take other specified actions, in accordance with the terms outlined in the Agreement. SECTION 3. The terms and conditions of the Agreement, having been reviewed by the City Council of the City of Southlake and found to be acceptable and in the best interest of the City and its citizens are hereby approved. SECTION 4. The Mayor is hereby authorized to execute the Agreement and all other documents in connection therewith on behalf of the City substantially according to the terms and conditions set forth in the Agreement. SECTION 5. This Resolution shall become effective from and after its passage. PASSED AND APPROVED this the 7th day of March, 2017. l ' . 1AUJ , Laur Hilll,Mayor ATTEST: � ' U1H�, joiLp i a Lori Payne, TRIS $ $ City Secretary �'1►y�,,� * t,��eel to tto THE STATE OF TEXAS ) ) COUNTY OF TARRANT ) 380 AND TAX ABATEMENT AGREEMENT BETWEEN THE CITY OF SOUTHLAKE, TEXAS, AND TD AMERITRADE HOLDING CORPORATION This 380 and Tax Abatement Agreement ("Agreement") is entered into by and between the City of Southlake, Texas, a Texas home rule municipality ("City"), and TD Ameritrade Holding Corporation ("the "Company" and together with its Affiliates, "Owner"). City and the Company are sometimes hereafter referred to individually as a "party" and collectively as the "parties." WITNESSETH: WHEREAS, Section 312.002(a) of the Texas Tax Code requires the City to pass a resolution indicating the City's desire to become eligible to participate in tax abatement agreements; and WHEREAS, on or about May 4, 1999, the City adopted Resolution No. 99-26 electing to become eligible to participate in tax abatement agreements, in accordance with Section 312.002(a) of the Texas Tax Code, and subsequently has timely reaffirmed its tax abatement agreement policies; and WHEREAS, at such times the City also adopted and/or reaffirmed tax abatement guidelines and criteria, in accordance with Section 312.002 of the Texas Tax Code (hereinafter referred to as the "City's Tax Abatement Guidelines and Criteria"); and WHEREAS, the City's Tax Abatement Guidelines and Criteria constitute appropriate guidelines and criteria governing tax abatement agreements to be entered into by the City, as contemplated by Chapter 312 of the Texas Tax Code, as amended; and WHEREAS, on or about May 3, 2016, the City Council of the City of Southlake, Texas, adopted Ordinance No. 1151 establishing a Tax Abatement Reinvestment Zone in the City of Southlake, Texas, as authorized by the Property Redevelopment and Tax Abatement Act, Chapter 312 of the Texas Tax Code; and WHEREAS, the Owner owns approximately 78 acres of real property located in the Reinvestment Zone and City and more particularly described on Exhibit A attached hereto ("Real Property"); and WHEREAS, this abatement of taxes will maintain and enhance the economic and employment base of the City, thereby benefiting the City, in accordance with the Tax Abatement Guidelines and Criteria and the Property Redevelopment and Tax TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 1 Abatement Act; and WHEREAS, the City Council of the City of Southlake, Texas, finds that the contemplated use of the Real Property, and the improvements to the Real Property as set forth in this Agreement, and the other terms hereof are consistent with encouraging development of said Reinvestment Zone in the City of Southlake, Texas, in accordance with the purposes for its creation, and are in compliance with the City's Tax Abatement Guidelines and Criteria, and Chapter 312 of the Texas Tax Code; and WHEREAS, the Owner acknowledges and agrees that the tax abatements granted by this Agreement are contingent upon its compliance with this Agreement in accordance with the terms and conditions set forth herein; and WHEREAS, the City desires to provide incentives to the Owner pursuant to Chapter 380 of the Texas Local Government Code ("Chapter 380") to locate Owner's regional corporate campus in the City; and WHEREAS, the City has the authority under Chapter 380 to make grants of public funds for the purpose of promoting local economic development and stimulating business and commercial activity in the City; and WHEREAS, the City has determined that a grant of funds to the Owner will serve the purpose of promoting local economic development and enhancing business and commercial activity in the City; and WHEREAS, the City finds that a grant of funds would satisfy a fundamental objective of the City's strategy, which is to attract and keep top businesses to drive a dynamic and sustainable economic environment; and WHEREAS, The City finds that a grant of funds will further the objectives of the City's adopted Comprehensive Plan, including: (a) actively recruiting corporate headquarters and regional offices, with an emphasis on the financial industry; (b) encouraging development in desired zones such as State Highway 114 West; (c) supporting appropriate public-private partnerships that will help retain and enhance the City's economic base; and (d) attracting desired business to ensure economic growth as well as continued employment and services for residents of the City; and WHEREAS, this Agreement was approved by the City Council of the City of Southlake, Texas, at a regularly scheduled meeting, consistent with Section 312.207(a) of the Texas Tax Code, as amended. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 2 SECTION 1. FINDINGS INCORPORATED All the above premises are hereby found to be true and correct and are hereby approved and incorporated into the body of this Agreement as if copied in their entirety. SECTION 2. PROGRAM APPROVED The City Council hereby establishes a 380 economic development program (the "Program") to locate a regional corporate campus in the City and finds and determines that this Agreement will effectuate the purpose of the Program. SECTION 3. TERM This Agreement shall be effective as of the Effective Date and end on the last day of the Tax Abatement Period, unless terminated earlier by the parties as provided below. SECTION 4. DEFINITIONS The following words shall have the following meanings when used in this Agreement: Affiliate. "Affiliate" means any Person directly controlling or controlled by the Company, or any Person controlling or controlled by the same Person who is controlling or is controlled by the Company. As used in this definition, the term "control" means the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise. Agreement. "Agreement" means this 380 and Tax Abatement Agreement, together with all exhibits and schedules attached to this Agreement. Area Report. "Area Report" means reports as provided in Section 321.3022 of the Texas Tax Code with respect to City Sales and Use Tax allocations to the City attributable to Owner's sales and purchases of Taxable Items (as this term is defined in the Texas Tax Code) at the Project. Base Year Value. "Base Year Value" means the value of the Real Property as of January 1, 2016 as appraised by the Tarrant Appraisal District. Business Personal Property. "Business Personal Property" means tangible personal property of Owner including but not limited to furniture, fixtures, vehicles and equipment located at the Real Property (or within the Project) which, at the time of execution of this Agreement, is not on the tax rolls of the City. TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 3 Capital Investment. "Capital Investment" means the actual cost incurred related to the construction of the Project, including labor and materials, engineering costs, surveying costs, fees of consultants, permit and inspection fees, and Business Personal Property located on the Real Property after the date of this Agreement that are subject to ad valorem taxes. Certificate of Occupancy. "Certificate of Occupancy" means a certificate issued by the City building official reflecting that construction of the Project has been completed in conformance with appropriate City codes such that the Owner is authorized to secure full utility service and is permitted to occupy the structures for commercial occupancy. Comptroller. "Comptroller" means the Comptroller of Public Accounts for the State of Texas, or such other agency responsible for collecting sales and use taxes within the State of Texas and remitting them to the City. Construction Costs. "Construction Costs" means the cost of design, construction document preparation, bidding, permits, fees, surveying, and construction of the Infrastructure Improvements. Construction Costs do not include the cost of land, interest on construction financing, or marketing costs. Duct Bank Work. "Duct Bank Work" means the electrical duct bank improvements to be constructed by Owner as shown on the attached Exhibit C. Effective Date. "Effective Date" means the date of the later to execute this Agreement by and between the City and Owner. FTE. "FTE" means any employee working at the Project on a thirty (30) hour or more per week schedule, or a combination of two (2) or more employees on part time schedules that equal forty (40) hours. For the avoidance of doubt, "FTE" includes all contract labor. FF&E. "FF&E" means movable furniture, fixtures, or other equipment that have no permanent connection to the structure of a building or Utilities, and which are purchased after the Effective Date and prior to Owner's occupancy of the Project. Infrastructure Improvements. "Infrastructure Improvements" means the Water Line, Sewer Upgrades, Duct Bank Work, and Kirkwood Improvements. Inspection and Acceptance. "Inspection and Acceptance" means the process by which the City reviews the completed construction of the Infrastructure Improvements to determine the validity and quality of the work performed, to be subsequently owned, operated and maintained by the City, and acknowledged by the City through an issuance of a final acceptance letter to Owner stating the Infrastructure Improvements have been completed according to City standards. TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 4 Kirkwood Improvements. "Kirkwood Improvements" means the deceleration/acceleration lanes and median cuts at Kirkwood/TW King to be constructed by Owner, on or along Kirkwood Boulevard, as shown on the attached Exhibit D. Machinery and Equipment. "Machinery and Equipment" means machinery and equipment, purchased after the Effective Date, and installed and used at the Project for the purpose of supporting the business operations of Owner. Owner. "Owner" means TD Ameritrade Holding Corporation together with its Affiliates. Person. "Person" means an individual or a corporation, partnership, trust, estate, unincorporated organization, association, or other legal entity. Program. "Program" has the meaning set forth in Section 2 of this Agreement. Program Grant Payments. "Program Grant Payments" have the meaning set forth in Section 6 of this Agreement. Project. "Project" means the buildings and structures as identified and depicted on the approved site plan as attached hereto as Exhibit B. Real Property. "Real Property" means the approximately 78 acre tract of land within the City as more particularly described in Exhibit A to this Agreement, which is attached hereto and incorporated herein for all purposes. Sales and Use Tax. "Sales and Use Tax" means the City's municipal sales and use tax, currently at the rate of one percent (1.0%) attributable to the general fund, pursuant to Chapter 321 of the Texas Tax Code, as amended; provided, however, should the electors of the City reallocate the Sales and use Tax or should the Texas Legislature amend the applicable tax code provision to increase or decrease the amount of allowed municipal sales and use tax, then in the event of a decrease, Sales and Use Tax shall mean the actual amount of sales and use tax received by the City, and in the event of an increase, the Sales and Use Tax shall mean one percent (1.0%). "Sales and Use Tax" specifically excludes sales taxes collected for the Southlake Park Development Corporation, the Crime Control and Prevention District, the Community Enhancement and Development Corporation, or any other economic development tax collected now or in the future. Sewer Upgrades. "Sewer Upgrades" means the sewer system upgrades to be constructed by Owner as shown on the attached Exhibit E. Substantial Completion Deadline. "Substantial Completion Deadline" means December 31, 2017. Tax Abatement Period. "Tax Abatement Period" means the period, in years, during TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 5 which the Real Property and Business Personal Property added to the Real Property are entitled to tax abatement pursuant to this Agreement. The Tax Abatement Period shall commence on January 1 of the year following the issuance of a Certificate of Occupancy for the Project and said period shall expire on the last day of the tenth (10th) calendar year thereafter. Taxable Operating Costs. "Taxable Operating Costs" mean costs incurred by Owner after Project is completed to maintain Machinery and Equipment and FF&E and for services and property to maintain the Project, including, but not limited to, security, supplies, materials, fuel and software. Taxable Value. "Taxable Value" means the appraised value as certified by the Tarrant Appraisal District as of January 1 of a given year. Tax Year. "Tax Year" means the term in Section 1.04 of the Texas Tax Code (i.e., the calendar year). Term. "Term" means the term of this Agreement as specified in Section 3 of this Agreement. Utilities. "Utilities" mean any service that is provided to the Project, including, but not limited to, electricity, water, gas or pipelines. Water Line. "Water Line" means the 12 inch water line to be constructed by Owner as shown on the attached Exhibit F. SECTION 5. OWNER OBLIGATIONS AND USE OF PROPERTY (a) Improvements to Real Property. This Agreement is conditioned upon the Owner receiving a Certificate of Occupancy for the Project and making the Capital Investment no later than the Substantial Completion Deadline. As consideration for the agreements of City contained herein, Owner agrees that, subject to Force Majeure, it will diligently and faithfully in a good and workmanlike manner pursue the commencement of construction and completion of the Project on the Real Property consistent with the requirements set forth herein. Owner agrees that construction of the Project shall be in accordance with all applicable federal, state, and local laws and regulations. The Real Property shall be used only in compliance with the City's Comprehensive Zoning Ordinance. (b) Capital Investment. On or before the Substantial Completion Deadline, Owner must make a Capital Investment in the Project in an amount of no less than $145,000,000. Within 60 days of Substantial Completion Deadline, Owner must provide sufficient evidence to the City for the Capital Investment in a manner acceptable to the City. (c) Taxable Value. Owner agrees that beginning on the commencement of the Tax TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 6 Abatement Period and continuing thereafter throughout the Term, the total Taxable Value of the Business Personal Property and Real Property (as improved by the Project, but excluding land value) will be at least $139,500,000. (d) Occupancy. Owner agrees to perform all obligations and fulfill all conditions required under City ordinances (including payment of application fees) in order to receive a Certificate of Occupancy for all buildings and structures within the Project on or before the Substantial Completion Deadline. Beginning on the Substantial Completion Deadline and continuing thereafter throughout the Term, Owner shall continuously occupy and conduct its business operations at the Project. (e) FTEs. (i) Required FTEs. Owner agrees to create a minimum of 1,750 FTEs by March 31, 2024 and retain them for the Term of this Agreement according to the following schedule: No later than Number of Total FTEs 12-31-2018 1400 03-31-2019 1500 03-31-2020 1550 03-31-2021 1600 03-31-2022 1650 03-31-2023 1700 03-31-2024 1750 (ii) Average Salary. The average salary for all FTEs working at the Project may not be less than $70,000 throughout the Term of this Agreement. (iii) Payment in lieu of FTEs. The parties acknowledge that the City's adopted Comprehensive Plan anticipates that City's public-private partnerships will help retain and enhance the City's economic base, and that Owner's obligation to create and maintain the FTE levels in Section 5(e)(i) are necessary in achieving such goals. Owner will annually certify (by providing exact total FTE numbers) that FTE levels have been met in the certification described in Section 10 of this Agreement. If the FTE levels are not met in any given year, Owner will pay City an amount of $500 for each FTE not created or maintained in accordance with Section 5(e)(i), with payment due no later than 30 days after City's receipt of the certification; provided, however, that in no event shall the sum of all payments made under this Section be greater than the amount of the Program Grant Payments and amount of property taxes abated under this Agreement. Provided Owner makes the payment in this Section when applicable, Owner's failure to comply with 5(e)(i) shall not be an event of default subject to termination and repayment pursuant to Section 8 of this Agreement. TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 7 (f) Infrastructure Improvements. (i) At its sole cost, Owner must construct the Infrastructure Improvements on the Real Property in compliance with the attached Exhibit(s) C, D, E and F, and any City-approved plans, specifications and permits. (ii) Owner shall cause all necessary permits and approvals required by the City and any applicable governmental authorities to be issued for the construction of the Infrastructure Improvements. Owner shall be responsible for the design, inspection and supervision of the construction of the Infrastructure Improvements. (iii) Prior to the commencement of construction of the Infrastructure Improvements, Owner shall submit plans and specifications for the Infrastructure Improvements, for approval by the City, which approval shall follow regular City processes for approval of such plans and specifications, including the execution of the City's commercial developer agreement. (iv) Owner shall comply with all local, state, and federal laws and regulations regarding the design and construction of the Infrastructure Improvements. (v) Construction of the Infrastructure Improvements shall be subject to periodic inspections by the City to confirm compliance with the City-approved plans and specifications. Owner shall be responsible for completing and/or correcting any work not constructed in accordance with the City-approved plans and specifications. Any material change in the design of the Infrastructure Improvements during the construction stage shall be approved by the City. (vi) Owner shall dedicate or convey the Infrastructure Improvements to the City as required by the City's subdivision regulations and Code of Ordinances, including, where so required, by Special Warranty Deed conveying good and indefeasible title in fee simple to the Infrastructure Improvements, free and clear of any and all liens, encumbrances, conditions, assessments, and restrictions other than as provided in this Agreement. At the time of such dedications or conveyances, Owner shall deliver to the City: (i) releases from the contractors, subcontractors and suppliers of materials who have provided labor and materials for the Infrastructure Improvements showing that they have been paid for such labor and materials; and (ii) an assignment of all warranties and payment and performance bonds applicable to the Infrastructure Improvements. (g) Reporting of Sales and Use Taxes. Owner will provide to the City, on a quarterly basis, a copy of Texas sales and use tax returns submitted to the Comptroller establishing the remittance of the Sales and Use Tax collected or paid as a result of the operation of the Project ("Sales Tax Reports"). Owner may redact the Sales Tax Reports to remove information not relevant to the determination of the Program Grant Payment. Owner will provide any release or releases to the City necessary to allow the State of Texas to provide Area Reports. Owner will provide to the City copies of any TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 8 final Comptroller audit adjustments or amended returns that affect the Sales and Use Tax received or the Program Grant Payments. Owner must provide other documentation in a form acceptable to City that establishes and proves amounts of Sales and Use Tax City has received attributable to Owner's purchases in Sections 6(a) and 6(b) of this Agreement. (h) Signal Reimbursement. TD Ameritrade Services Company, Inc., a wholly owned subsidiary of Company ("TD Ameritrade Services Company") will reimburse City an amount equal to 50% of the actual construction costs attributable to the City's installation of the signal located at the main north entrance of the Real Property, as shown on the attached Exhibit D, but such reimbursement shall not to exceed $152,500. Reimbursement to City will be due within thirty (30) days after TD Ameritrade Services Company's receipt of City's written request for payment, which shall include evidence of City's construction costs. SECTION 6. 380 PROGRAM GRANT The following grant payments related to the Program (the "Program Grant Payments") and waivers shall be granted, paid, and provided according to the following terms, provided the Company is in full compliance with the terms of this Agreement: (a) Sales Tax Rebates (i) Construction Materials. The City agrees that it shall pay to Owner an amount equal to one hundred percent (100%) of the Sales and Use Tax received by the City attributable to the purchase of construction materials by Owner or contractors retained by Owner in connection with the construction of the Project prior to the Substantial Completion Deadline; provided, however, that under no circumstances will the aggregate grant payments under this subsection exceed Seven Hundred Seventy-Five Thousand Dollars ($775,000). (ii) FF&E; Machinery & Equipment; Utilities; Operating Costs. (a) The City agrees to pay Owner an amount equal to fifty percent (50%) of the Sales and Use Tax received by the City attributable to Owner's purchase of FF&E and Machinery & Equipment to equip the Project prior to Owner's occupancy of the Project; provided, however, that under no circumstances will the aggregate grant payments under this subsection exceed One Hundred Ninety Thousand Dollars ($190,000). (b) During the first five (5) years of the Project's operation, the City further agrees to pay Owner an amount equal to fifty percent (50%) of the Sales and Use Tax received by the City attributable to (1) Owner's purchase of Machinery & Equipment; (2) the Utilities; and (3) the Taxable Operating Costs. Said five-year period will commence on the date the Certificate of Occupancy for the Project is issued. Under no circumstances will the aggregate grant payments under this subsection TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 9 exceed Fifty Thousand Dollars ($50,000). (iii) Timing of Payments. The City shall make Program Grant Payments in this Section 6(a) quarterly after receipt and review of the Sales Tax Reports and Area Reports for each month of the applicable calendar year. The City covenants and agrees to make a Program Grant Payment to Owner within forty- five (45) days following the receipt of all of the following: (1) the Sales Tax Reports specified in Section 5(f) of this Agreement for each month of the applicable calendar quarter; (2) the Area Reports or other information establishing the amounts of received Sales and Use Tax from the Comptroller's office for each month in the applicable calendar quarter; and (3) the City's receipt of the Sales and Use Tax from the Comptroller's office for each month of the applicable calendar quarter. The City will request the State Comptroller to provide Area Reports. (b) Infrastructure Program Grant Payments. Owner will be entitled to payment for the completed Infrastructure Improvements provided the following requirements have been met: (1) Inspection and Acceptance of all of the Infrastructure Improvements has been completed; (2) the Project has received a Certificate of Occupancy; (3) Owner has provided sufficient evidence to the City for the Capital Investment in a manner reasonably acceptable to the City; (4) Owner has paid City for the installation of the signal in accordance with Section 5(h); and (5) Owner has submitted a written request for payment, including documentation acceptable to City which sufficiently documents Owner's Construction Costs. No later than ninety (90) days after all three of the foregoing requirements have been met, City will pay Owner in the amounts as stated below: (i) Water Line; Sewer Upgrades; Duct Bank Work. City will pay Owner in an amount equal to 50% of actual Construction Costs of the Water Line. Sewer Upgrades, and Duct Bank Work; provided, however, total payments under this Section 6(b)(i) shall not exceed $663,750. (ii) Kirkwood Improvements. City will pay Owner in an amount equal to the lesser of: 50% of actual Construction Costs attributable to the deceleration/acceleration lanes and median cuts; or (2) $254,980. (d) SH 114 Improvements. City agrees to support and use all reasonable efforts to: (1) erect a signal at SH 114 and Kirkwood Boulevard as depicted on Exhibit G; and (2) cause the extension of the SH 114 frontage road along the south end of the Real Property, as depicted on Exhibit G, including a request to the Texas Department of Transportation ("TxDOT") for such modification and requests to potential partners such as TxDOT, other adjacent property owners, and regional partners for financial assistance. TD Ameritrade Services Company agrees to dedicate a portion of the Real Property for the purpose of the frontage road extension, and the parties acknowledge that they are working towards creating a final legal description for the dedication, which will be made by separate agreement subsequent tc the Effective Date of this TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 10 Agreement. The parties further acknowledge and agree that City's efforts towards the foregoing improvements are contingent upon the City obtaining sufficient funding, all necessary TxDOT and governmental approvals, and TD Ameritrade Services Company's future dedication of a portion of the Real Property sufficient for the purpose of frontage road extension, which will be contingent on City agreeing to provide TD Ameritrade Services Company with the right to review and comment on the design of the SH 114 improvements. (e) Kirkwood/Dove Rd. Traffic Control. City agrees to conduct a study of the intersection of Kirkwood Blvd. and Dove Road to determine what traffic control devices are necessary, if any. If a traffic control device is necessary, the City will be responsible for designing and constructing said device. (f) Plan Review. City agrees that the construction plans submitted by Owner regarding construction of the Project and Infrastructure Improvements will be afforded expedited plan review by City staff and City's third party consultants. SECTION 7. TAX ABATEMENT (a) The real property subject to this Agreement shall be the Real Property. The improvements to the Real Property shall consist of the Project, as depicted on Exhibit B to this Agreement. (b) Subject to the terms and conditions of this Agreement, ad valorem real and business personal property taxes otherwise owed to the City for the Real Property and the Business Personal Property shall be abated. Said abatement of the taxes on the Real Property shall be based upon the increased Taxable Value of the Real Property, as improved by the Project, over the Base Year Value, and in accordance with the terms of this Agreement and all applicable federal, state, and local laws and regulations. Abatement of the ad valorem business personal property taxes on the Business Personal Property shall be based on the Taxable Value of the Business Personal Property, and in accordance with the terms of this Agreement and all applicable federal, state, and local laws and regulations. (1) Term. The Tax Abatement Period shall be ten (10) years (with the first year of tax abatement being the first tax year following the date on which the City issues a Certificate of Occupancy for the Project (i.e., the Tax Abatement Period starts on January 1 of such following year). (2) Abatement Amount. The tax abatement rate for each such year during the Tax Abatement Period shall be 90% of the portion of the Taxable Value of Real Property that is subject to abatement, and 90% of the ad valorem taxes assessed on the Business Personal Property located on the Real Property, and such qualifications as are noted elsewhere in this Agreement. (c) Notwithstanding the foregoing, if as of January 1 of any given Tax Year, the TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 11 Taxable Value of the Business Personal Property and Real Property is below $139,500,000 as required by Section 5(c), the City will grant an abatement of the Taxable Value of the Business Personal Property and Real Property subject to abatement according to the following schedule: Taxable Value Abatement Amount $139,499,999-124,000,000 80% $123,999,999-108,500,000 70% $108,499,999-93,000,000 60% $92,999,999-77,500,000 50% The failure of the value of the Business Personal Property and Real Property to have a Taxable Value of at least $77,500,000 as of January 1 of any given Tax Year shall not be an event of default subject to termination and repayment of the abated taxes pursuant to Section 8 of this Agreement, but shall result in the forfeiture of the tax abatement for such Tax Year. (d) Notwithstanding the foregoing, Owner will not be entitled to any tax abatement under this Agreement until it has provided City with evidence that it has made the Capital Investment in accordance with this Agreement. (e) Notwithstanding any provision in this Agreement to the contrary, the Real Property and Business Personal Property shall not be entitled to tax abatement for more than ten consecutive (10) years. (f) Pursuant to section 312.204 of the Texas Tax Code, this Agreement is subject to the rights of holders of outstanding bonds of the City. SECTION 8. TERMINATION AND RECAPTURE PROVISION (a) Termination. This Agreement may be terminated upon any one or more of the following: (i) by mutual written agreement of the parties; (ii) upon written notice by either party, if the other party defaults or breaches any of the terms or conditions of this Agreement and such default or breach is not cured within thirty (30) days after written notice thereof; (iii) upon written notice by City, if any taxes owed to City by Owner shall have become delinquent; or (iv) upon written notice by City, if Owner suffers an event of bankruptcy or insolvency. TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 12 (b) Repayment. In the event the Agreement is terminated by City pursuant to Section 8(a)(ii)-(iv), Company shall be liable for and will pay to the City within sixty (60) days following the termination of this Agreement: (1) All Program Grant Payments previously paid to Company (not including the infrastructure payments made to Company as described in Section 6(b)); (2) the amount of all property taxes abated under this Agreement; and (3) interest on the abated amount at the rate provided for in the Texas Tax Code for delinquent taxes. SECTION 9. RIGHT OF ACCESS FOR INSPECTION The Company further agrees that the City, its agents and employees, shall have reasonable right to access the Real Property during normal business hours and upon not less than two (2) business days written notice to the Company to inspect the Project and other items subject to this Agreement in order to ensure that the construction of the Project is in accordance with this Agreement and all applicable federal, state, and local laws and regulations. After completion of the Project, the City shall have the continuing right of reasonable access to the Real Property during normal business hours and upon not less than five (5) business days written notice to the Company to inspect the Real Property to ensure that such are thereafter maintained and operated in accordance with this Agreement. SECTION 10. ANNUAL CERTIFICATION On or before May 1 of each year, the Owner shall each provide to City written certification that Owner is in compliance with each applicable term of this Agreement. Such certification shall be in a form reasonably satisfactory to the City, and shall include, at a minimum, information supporting the Owner's conclusions that it met (or expects to meet) each condition and requirement to abatement set forth in this Agreement. Any failure of the City to request or demand such certification shall not constitute a waiver of such certification or any future certification; provided, however, that if the City fails to request or demand such certification and Owner fails to provide such certification, the City shall give such party written notice of such failure and such party shall provide such certification within thirty (30) days of such party's receipt of such notice. SECTION 11. MISCELLANEOUS PROVISIONS (a) Amendments. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. (b) Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Tarrant County, Texas. Exclusive venue for any action arising under this Agreement shall lie in the state district courts of Tarrant TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 13 County, Texas. (c) Assignment. This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. The Company may assign all or part of its rights and obligations hereunder: (1) to any Affiliate effective upon written notice to the City, provided the Affiliate agrees in writing to comply with each and every obligation of the Company in this Agreement; or (2) to any Person other than an Affiliate with the prior written approval of the City, which approval shall be in City's sole discretion, and provided the assignee agrees in writing to comply with each and every obligation of the Company in this Agreement. (d) Binding Obligation. This Agreement shall become a binding obligation on the signatories upon execution by all signatories hereto. City warrants and represents that the individual executing this Agreement on behalf of City has full authority to execute this Agreement and bind City to the same. The Company warrants and represents that the individual executing this Agreement on its behalf has full authority to execute this Agreement and bind it to the same. (e) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. (f) Filing. In order to receive the tax abatement pursuant to this Agreement, Owner understands it must file with the appraisal district an application for property tax abatement exemption between January 1 and April 30 of each year during the term of this Agreement. (g) Notices. Any notice or other communication required or permitted by this Agreement (hereinafter referred to as the "Notice") is effective when in writing and (i) personally delivered either by facsimile (with electronic information and a mailed copy to follow) or by hand, or (ii) three (3) days after notice is deposited with the U.S. Postal Service, postage prepaid, certified with return receipt requested, and addressed as follows: if to Owner: TD Ameritrade Holding Corporation 200 South 108th Avenue Omaha, NE 68154 Attention: Finance-Tax if to City: City of Southlake 1400 Main Street, Ste. 460 Southlake, Texas 76092 Attention: City Manager (h) Severability. In the event any provision of this Agreement shall be determined by any court of competent jurisdiction to be invalid or unenforceable, the Agreement shall, TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 14 to the extent reasonably possible, remain in force as to the balance of its provisions as if such invalid provision were not a part hereof. (i) Sovereign Immunity. No party hereto waives any statutory or common law right to sovereign immunity by virtue of its execution hereof. (i) Undocumented Workers. Owner certifies that Owner does not and will not knowingly employ an undocumented worker in accordance with Chapter 2264 of the Texas Government Code, as amended. If during the Term of this Agreement, Owner is convicted of a violation under 8 U.S.C. § 1324a(f), Owner shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of six percent (6%), not later than the 120th day after the date the City notifies Owner of the violation. (k) Prevailing Party Attorney's Fees. In the event any person initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and attorney's fees (including its reasonable costs and attorney's fees on any appeal). (I) Rough Proportionality. As additional consideration for the payments received by Owner under this Agreement, Owner agrees that all dedications, construction costs and other payments made by Owner related to the Infrastructure Improvements are roughly proportional to the need for such Infrastructure Improvements created by the development of the Real Property and Owner hereby waives any claim therefore that it may have. Owner further acknowledges and agrees that all prerequisites to such a determination of rough proportionality have been met, and that any costs incurred relative to the dedication, construction costs and other payments for the Infrastructure Improvements are related both in nature and extent to the impact of the Project. Owner waives and releases all claims against the City related to any and all rough proportionality and individual determination requirements mandated by Section 212.904, Texas Local Government Code, or the Texas or U.S. constitutions, as well as other requirements of a nexus between development conditions and the projected impact of the Project. (m) City Ordinances Applicable. The signatories hereto shall be subject to all applicable ordinances of the City, whether now existing or in the future arising. (n) Force Maieure. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, fire or other casualty, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such obligation or requirement shall be extended for a period of time equal to the period such party was delayed. TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 15 (o) Runs with the Land. The provisions of this Agreement shall run with the land and be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and successors in title. (p) Erroneously Paid Sales Tax. In the event the Comptroller determines, for any reason, that any Sales and Use Taxes were erroneously paid to City from the sales provided for herein and City is required to rebate or repay any portion of such taxes, the amount of such rebate or repayment shall be deducted from the calculation of the Sales and Use Taxes received by City under this Agreement, and in the event the calculation of Sales and Use Taxes paid for a Program Grant Payment shall reflect an overpayment by City to Owner, Owner agrees to reimburse City the amount of such overpayment. Notification of any such required adjustment will be provided to Owner at the earliest practical date. This section will survive termination of this Agreement. (q) Sales Tax Disclosure. The City hereby designates this Agreement as a revenue sharing agreement, thereby entitling the City to request sales tax information from the Comptroller, pursuant to section 321.3022, Texas Tax Code, as amended. The City shall notify Owner after receiving any Public Information Act request that seeks disclosure of information provided by or concerning Owner, including any information relating to Owner's operations or receipts or payments of Sales and Use Tax, and the parties will reasonably cooperate to determine whether or to what extent the requested information may be released without objection and without seeking a written opinion of the Texas Attorney General. The City shall take the position that any information responsive to a Public Information Act request relating to Owner that the parties do not mutually agree to release without objection is information not subject to release to the public pursuant to Section 321.3022(f) of the Texas Tax Code, section 552.110 of the Texas Government Code, or other applicable law. The City shall seek a written opinion from the Texas Attorney General raising any applicable exception to release of such information prior to any release to a third-party under the Texas Public Information Act. If the City seeks a written opinion from the Texas Attorney General pursuant to Section 552.305 of the Texas Government Code, the City may require Owner to draft and submit to the Texas Attorney General the substantive comments or arguments in support of such opinion request. The City shall provide Owner timely notice and an opportunity to review and comment on any opinion request submitted by the City. (r) Offset. Owner agrees that, subject to the provision of notice by City and 60-day period following receipt of notice in which Owner may respond or act, City may offset the amount of tax abatement installment or Program Grant Payments due to Owner for any calendar year under this Agreement against any amount which is: (i) lawfully due to City from Owner pursuant to this Agreement, and (ii) subject to challenge by Owner in a court of competent jurisdiction. (s) Limitation of Liability. The parties agree that neither party will be liable to the other under this Agreement for consequential damages (including lost profits) or exemplary damages. TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 16 PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS, on this i? day of,Iy4(,J-� , 2017. CITY: CITY OF SOUTHLAKE, TEXAS Laura Hil , Mayor Date: 3O 1 ?-00` -00 ATTEST: 4145471 VSs, ig Lori Payne, City cretary +1 * �•t++rap toot COMPANY: TD AMERITRADE HOLDING CORPORATION By: ./k) Name: Steppe ► Title: �jlrlCc�T��c UP'f CRD Date: 03/25/2 0 11 TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 17 For purposes of Section 5(h) and 6(d) of this Agreement: TD AMERITRADE SERVICES COMPANY, INC. By: Name: Sr#,OL J . eoyk_ Title: Cco t 6l-ectji...d) L) Date: 03/2-5/2 0/ 7 TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 18 STATE OF TEXAS ) ) COUNTY OF TARRANT ) ttyk This instrument was acknowledged before me on the 3 V day of iii kr , 2017, by Laura Hill, Mayor of the City of Southlake, Texas, a Texas home rule municipality, on behalf of said City. J`N/�;1::: i �os►� os Lori Payne 3+�! �S Notary Public,State of Texas — p ";r , +�= Comm. Expires 10-27-2017 oA 1 0 VP% irD t... Notary ID 11019863 , or_ Notary Public, State of Texas STATE OF 7iy -5 ) ) COUNTY OF 111145 ) IA This instrument was acknowledged before me on the ZS day of /1/1 arcki , 2017, by S lawial4, the CA, -t vi of TD Ameritrade Holding Corporation. __/ ``�vP++•, AMBER SHINN & �€•�•" �'% Notary Public,State of Texas Notary Public, State of Texas '�^, 1�1,,re Comm. Expires 08-28-2020 % 0;,V Notary ID 128105582 STATE OF / tKu-S ) ) COUNTY OF 0/9-//4-3 ) Thi instrument was acknowledged before me on the 15 day of /YI0cA , 2017, byh. , the C2 *-- U!° of TD Ameritrade Services Company, Inc. ' .*Ii'i AMBER SHINN cia.„____:— Ph*VsNotary� � Public,State of Texas ��'_ " Comm. Expires 08-28-2020 Notary Public, State of Texas 'n°F, `� Notary ID 129105582 TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 19 Exhibit A The Real Property Legal Description: Lot 1 R1 R1, Block 1, Sabre Group Campus Addition, an addition to the City of Southlake, Tarrant County, Texas according to the plat recorded as Instrument No. D215221562, Plat Records, Tarrant County, Texas. 6 ■ F' / - "-. - �.. .-i LL>• „ _ g.. -. Itoli ''...' i '- L C...,..., ei ,E :'"”' A' p .,.. ,f, . ) ;►,fir , _ t- V 44r-A----_-, , -:;:,ttilit N , ry _ A , - 4aa1 N1ii . rr r , ,- A- .All yJiftraMe/ I — "��"� - %.::l - 1 ,; ti . , . .i -,�.� � tL ' r � .4004,- 'l . ice i _ °. ,;:''''"-J/3"/„. ` .:-;;----.4._. 4, ' Y'_..?; . j TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 20 Exhibit B 1 ,i. The Project— Site Plan [ i X1.3MV1HinOS 4; UJOH<‹<AalWDI lit' P CIA1E1GOOMNLIDI An SildINVO MAO 30V2111LN 2,13V GI , .1 id: V, I° : r-,_ II s- ' 1. NH, Lii ii Ut--!•1; -;1 /-\,. 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IIIIII' i..._.- ,,,,,.... ,,, ; 31i15!. - -----\------"- ,''.,; . -:'m'i,- \r,s4i 11 Piiili'l ,. f ,„ „11 g I i ..,- .; i x.le i; 1 ."- ' i",,-, :1"12 • _ li t., 3 93iiSlii illiz,}1 ', 1 , ...- . _ ,,,, t ii I il --- -- -- : a ; f.••••. ,:i..-- ••..._____...L:::,______-•-------- • .•.----___ .,.----•., iig-...,,,,:•111 „, ; -- 7I I / ----•---,..... .._ -----Nsigi 4.40,- 0 / l. 111111st. ilifi'l 11111/1/1 -- - '`.‹.- i'r:i if r°111 '','' '-- ,'-'• ' f, *.,41.---, t,`,_ v, !1,.i ,Y, ! ig?-. g ;r.!I , /1 VP , /1, -,,, -,),.405,,, ,t, -,z-,.. 4,,,,;;fi .0.• • , •:, - ,,,,, , :-.;,• *if.,rs 1( ,,,,i, „:„.., , IN! ,,.,f Iztns,st TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 25 Exhibit D Kirkwood Improvements ,�_ _ IONIA'M'1'3 i Sf1dWd�M�03Otl2iClAle '„11 3Wb'Ol IV '0A18000MNNIN'M c woHK<lCaiw� w30 0 �� 1181HX3 .. \LN : /Ei ,_ /1 I2 a g i <I Ci3 $aoa o waabli 3y �`,a,. ` ` xi! �] iuia e1a o � �('vm\` L4m2U' ,i0 :ill ^ 3a m� W.. ,,L4 iy am V I// A�� I t' © f o.; • E � 4in tv o4 $Wq E j, _.Q 4 �'E r y h b 10 1 xtgai - wabilAw. oLLa mN J z;; 1 wO PA wad a 1 uj ,�. Wg orc� oougty f �� oc.y s-s i tiffel I ..2c,(13 j ' o- o a f l u 1 tit,/v/ 'pj� N U6 N y ! I az�mt ifilitiD� 6-7 u• 41tair %-- I arc¢gFi T r �_+�"6//a ,, / -1-- '`_'Wga> _' _ �' /� \ aoaat� _— CS o 4 i - '�ci;g 1 f / 1 1 a2 T:', ..---- 3 Ln a n >ao=- 3y I Qmo I a - I ~� $nom 1' g.E..‹N oLL �Sz. cv I I YF ZO _ I / z�y 30 ,i] a ZW 1,''� O m I io �m i_ / / \ 1 p =0 FV.. Q a j N� 4 / 1 Nwo �W T 1 LLLLN �L z w f— F N 7",' . �� I1 I 3 / 1.--.1 / I 54. / / /'-'' s „........e.... III ) 0 Q4 / ,2_ I / I \ I (1 N op.aa I o I ' Qzg i 1 / I I \ spc' LI d ry, I I Pi I 1 I / I /-_.. aa� � ll I I I I / I cite \ ,, i i O / I Irk Iii 'a I u/ TD Ameritrade and City of Southlake 380 and Tax Abatement Agreement 26 Exhibit E Sewer Upgrades _......._-� lerpliii111111111M 5§5 , �,,,.ve.stontun3HvlH1nOS is o UaoH<«AJW!N ill sndwvo MAO aovaltaawv ai I"N"' i 1 ; e ` 1 ci ¢ ...■u Y :alk 7 �`� 4 , ,,,,,A I '',v. i,.: :.>--,_.-.._--,., ,. (.... g, -.. , . ..\-,L,I , -4'-'4 13 r'. i: ,.-- ---' -),, '.— . :,: ' __ - T - r }w is 'r i -�•�' �-\-:�r%`J✓ `i-. ! ti r, gg -,, ,..;','.[fr-; •". , ,-.1 . 1--- = *.- ) la. i r I; /J �' /, • -�-�f i , ) /% /--/ ar 4s� ,j 4J% , .-� Q` i , I 1, , • /: , 1111; hp � . (� /a - - ,, §.. a ... c\ •/ i .",1. 4.f _ t!5f / � `, r Y I y* � " =="3 3 `�' �" . �� te - ., a • .\ / II r''' 7'27/ 7, \-:,,..1.„P„-2'./. c-- ,6-,-„,-,,'4,- zi....=-- --ii,-----;‘- -/_---4 i• ‘,,/ ?,., --„,,,• //. -• /..ii ..-,i; .:, /7)1: % � /,iJ ik. , "/ 'if \.' \ � I ' //:' // /// , , ,/ . • S • j \c(/ i� ga I / �` '`�.' i/ ' %' %, ' / 7" % ii 111 `'` Ie m,#:..-- ,man fi=r G' r,f .,//:/ ..-4,4 a_ l /"'/ / / - ,i! ^.I' i %�ysi✓L' p Jy , / _3j //r", / / -- V I , t 1�'/%fir % / ./ _ a —ilk ,t, ,, ;it•s .3 ,! / / /J e� Y s IC'. ; / /- + se ,/ i r.�( 1.'1;-1,,,.--..;-:..-- ----7----:t----. 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P •-i*:e * • 1 li 4 1 - 1 I d:Ill 1 111 ..., ..3c3--ft ,1:-;;;;12 tlt i ,411.i),,k"' 't I 11 • ';.ii ' ' '\ . _ \ \ ' .' . 1 ' 1 *li - • . . 4 i 1',•:: +' ' I 1 '',;::'''''.144,14,' 1 111..s" i :, f,fi I , 1 • • -- I - E9 ,--- - - , 380 and Tax Abatement Agreement 30 TD Ameritrade and City of Southlake