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Item 8AM E M O R A N D U M August 11, 2010 To: Shana Yelverton, City Manager From: Greg Last, Director of Economic Development Subject: Resolution 10-014, approve the terms and conditions of a program to promote economic development and stimulate business and commercial activity in the City; authorize the Mayor to execute an agreement with Hines Southlake Land Limited Partnership, a Texas Limited Partnership, for such purposes; and provide an effective date. Action Requested: Consideration of Resolution No. 09-014 as noted above. Background Information: Hines acquired approximately 285 acres along the north side of S.H. 114 between White Chapel and Carroll Avenue. They began their entitlement applications and processing in mid-2008. Hine’s representatives expressed a desire for the City to participate in the cost of some public infrastructure and various aspects of enhancing the development. After approval of the concept plan we began the process of identifying components of the development that might warrant City participation. The agreement focuses on the following items: White Chapel Blvd Kirkwood Blvd Public Parks Retail Parking Garages Public Art We have incorporated extensive discussions into the Chapter 380 Agreement attached to the Resolution. Financial Considerations: The Chapter 380 Agreement has the following primary aspects: Performance based: In order for Hines to receive any incentive grants, the improvements must be constructed and generating revenues for the City, a portion of which we then return to Hines. Includes the use of General Fund revenues generated by the development as follows: Ad Valorem taxes from real and personal property from the o commercial properties only, i.e. none from the residential properties. There is a cap such that incentives granted shall never exceed 50% of the revenues received. Sales taxes from the 1% that goes to General fund. There is a cap o such that incentives granted shall never exceed 50% of the revenues received. The .5% that goes to SPDC and the .5% that goes to CCPD are untouched as a revenue source and all revenues received go to the designated Special Revenue Fund. All incentives are capped not to exceed 10 years in duration. Hines is to construct White Chapel Blvd. in a full 4-lane section from S.H. 114 to the northern line of their property. Hines is obligated for 50% of the east two lanes and the City is obligated for the other 50% of the east two lanes as well as 100% of the west two lanes and north- bound left turn lanes. Hines covers 100% of all turn lanes dedicated to their project. Roadway Impact Fees generated by the development are utilized as a grant towards a portion of the cost of constructing Kirkwood Blvd. (estimated at 28%). Hines is dedicating over 50 acres of public parks to the City while retaining the obligation to maintain these parks in perpetuity. The City would grant an incentive equal to the lesser of 50% of the cost of the constructed improvements or caps as identified in the agreement. The City would provide an incentive grant not to exceed 40% of the retail parking garages constructed on the property. Utilizes a portion of the Hotel Occupancy Taxes (HOT) generated by a hotel within the development to grant Hines a portion of the costs of public art installed in the development. This grant utilizes only 15% of the HOT revenues generated annually and is capped not to exceed 50% of the costs of the public art installed. A financial consultant was retained to analyze the agreement and provided the following financial summary. The Commercial Market Value of the development upon o completion is approximately $210 M Annual taxable sales: $187 M o Annual lodging sales: $7.2 M o Cost of services not covered by fees: $0.8 M o LAST MINUTE CHANGE: An issue has arisen at the last minute that needs to be clarified with Council’s direction. The issue is that the acreages presented by Hines representing the dedicated areas for each park actually INCLUDED AREA WITHIN THE ADJACENT STREET RIGHT-OF-WAY. This inclusion is appropriate when calculating “Open Space” which was a part of the zoning regulations, but it is not accurate to represent the “Dedication” of parkland areas. Apparently the consultant for Hines provided the wrong areas leading to the discrepancy. We discovered the discrepancy after the Park Board meeting by comparing the Phase 1A plat showing the areas of the Northwest Enclave Park and the Villa North Park against the exhibits used in Executive Session which represented the numbers in the 380 agreement. Bottom line, the park dedication areas collectively were over-represented by 3.67 acres. We have made Hines aware of the issue and they are proposing two alternatives to resolution. It should be noted that the actual physical development plan and location and size of the parks as presented will not change from what has been discussed earlier, it’s just that the park dedication area representations were incorrect. OPTION 1: Accept 46.48 acres (50.15 - 3.67 = 46.48) as the total o park dedication for all parks.Each park would be reduced in acreage representing the dedicated area “net” of any adjacent ROW. During the discussions regarding the calculations it was noted that the zoning requires the HOA to maintain the “Parkways” along Kirkwood Blvd, but not the medians. (Parkways are the grass area from the back-of-curb to the ROW line for a roadway). We talked with Hines and asked them if, as a trade- off for clarifying the acreage error and accepting the lesser acreage, would they be willing to accept mowing and maintenance of the medians on Kirkwood and they said that they would. A motion for approval with Option 1 would direct staff to revise the Agreement to include acceptance of the 46.48 acres including associated reductions in area dedications for each park AND include a new obligation for Hines to maintain all medians on Kirkwood. OPTION 2: Require Hines to find an additional 3.67 acres to o dedicate as “Public Parks” to bring the “dedicated” park areas up to the 50.15 acre total previously presented. I plan to have exhibits showing the potential locations of additional Public Parks at the Executive Session. Most of these additional areas would likely be areas along and adjacent to Kirkwood Blvd. A motion for approval with Option 2 would direct staff to revise the Agreement to include the dedication of additional Public Parks as directed by Council. Any (unlikely) cost participations would also need to be in the motion. Strategic Link: This item supports strategy C-4 to “attract and keep top-tier businesses to drive a dynamic and sustainable economic environment. Citizen Input/ Board Review: The Park Board recommended the acceptance of the dedication of parks within Carillon on August 9, 2010. Legal Review: The City Attorney’s office has been significantly involved in the preparation of this Resolution. Alternatives: 1. Approve the resolution as presented. 2. Approve the resolution with revisions as desired by Council. 3. Take no action on the resolution and pursue another direction. Supporting Documents: Resolution No. 09-014. Staff Recommendation: Approve Resolution No. 09-014 as noted above. RESOLUTION NO. 10-014 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 HINES SOUTHLAKE LAND LIMITED PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP, 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 Hines Southlake Land Limited Partnership, a Texas limited partnership (“Hines”), 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. SECTION 2. The City Council hereby adopts an economic development program whereby the City of Southlake will make economic development program payments to Hines, 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. Resolution 10-014 - Carillon Development - Chapter 380 Agreement Draft: 2010-08-11 - Page 1 of 3 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 ______ day of ____________, 2010. ________________________ John Terrell, Mayor ATTEST: ____________________________ City Secretary Resolution 10-014 - Carillon Development - Chapter 380 Agreement Draft: 2010-08-11 - Page 2 of 3 EXHIBIT A Chapter 380 Agreement Resolution 10-014 - Carillon Development - Chapter 380 Agreement Draft: 2010-08-11 - Page 3 of 3 ECONOMIC DEVELOPMENT PROGRAM AGREEMENT (Chapter 380 Agreement) This Economic Development Program Agreement (the “Agreement”) is made and entered into by and between the City of Southlake, Texas (the “City”), and Hines Southlake Land Limited Partnership (“Hines”) a Texas limited partnership, organized under the laws of Texas. W I T N E S S E T H: WHEREAS, on _______, 2010, the City adopted Resolution No. 10-014 (the “Resolution”) establishing an Economic Development Program pursuant to Section 380.001 of the Texas Local Government Code (“Section 380.001”) and authorizing this Agreement as part of the Economic Development Program established by City Council Resolution (the “Program”); and WHEREAS, Hines desires to participate in the Program by entering into this Agreement; and WHEREAS, the City Council of the City of Southlake (the “City Council”) finds and determines that this Agreement will effectuate the purposes set forth in the Program, and that Hines’ performance of its obligations herein will promote local economic development and stimulate business and commercial activity in the City; and NOW, THEREFORE, in consideration of the mutual benefits and premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Authorization The City has concluded that this Agreement is authorized by Section 380.001, and is authorized by Resolution of the City Council. 2. Definitions The following definitions shall apply to the terms used in this Agreement: Carillon -380 Agreement - Draft: 2010-08-09 - Page 1 of 32 Building Construction Costs: The cost of design, construction document preparation, bidding, permits, fees, surveying, and construction of buildings and structured parking facilities, site improvements, landscaping, site grading and such other reasonable industry-standard costs. Does not include the cost of land or interest on construction financing. Building Permit: A permit issued by the City authorizing one to construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure or portion thereof regulated by the City’s building, plumbing, electrical, fire, energy, mechanical, and related codes. : The 285 acre mixed-use development proposed by Hines Carillon Development along the north side of S.H. 114 between White Chapel Blvd to the west and N. Carroll Avenue to the east and as represented by the Concept Plan referenced herein. City: The City of Southlake, Texas. Certificate of Occupancy: A temporary or permanent certificate of occupancy as defined in the City’s building codes. Commencement of Construction: Approval of the appropriate building permits and the commencement of actual on-site physical excavation or site grading required for installation of Eligible Improvements, excluding permits for clearing and grubbing. Commercial Phase I: Shall include the construction of Eligible Improvements meeting the requirements of Section 4.A herein. Concept Plan: The concept plan for the Property, attached hereto as Exhibit B, approved or as may be amended by the City pursuant to the City’s zoning regulations. Developer Agreement: That certain Developer Agreement (or Agreements) relating to the construction of public infrastructure in form and substance to be mutually agreed upon by Hines and the City. Effective Date: The date that all parties have executed this Agreement. Eligible Improvements: All or a portion of the taxable non-residential buildings generally shown on the Concept Plan (e.g. retail, restaurants, office, hotel) and parking and accessory improvements related to these improvements. Carillon -380 Agreement - Draft: 2010-08-09 - Page 2 of 32 Force Majeure: Any acts of God or the public enemy, war, riot, civil commotion, insurrection, governmental or de facto governmental action, (except actions taken by the City pursuant to or permitted by the terms of this Agreement, and except actions taken as a result of acts or omissions of Hines), fire, explosion or flood, and strikes or other act beyond the reasonable control of Hines, or the City, but not including the lack of funds. Hines Affiliate: Hines Southlake Land Limited Partnership, or any Person directly controlling or controlled by, Hines, or any Person controlling or controlled by the same Person who is controlling or is controlled by Hines. As used in this definition, the term “control” means ownership or 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. Land Value: The appraised value of land as determined by the Tarrant Appraisal District. Oversizing Costs: All construction costs associated with increasing the size of a water line from eight inches (8”) to twelve inches (12”) in diameter. Park Improvements: Shall mean turf establishment, irrigation systems, landscaping, fountains, playground equipment, bike racks, lighting, benches, trash receptacles, dog waste stations, pavilions or shade structures, on-site or near-site wayfinding and/or park signage, walking and bike trails, hardscape features and other reasonable and customary costs as determined by the City. This shall not include design fees or retention / detention pond excavation and grading. Park Maintenance: The maintenance of parks and recreational equipment in a status safe for public use, the regular mowing of grass and trimming of vegetation, the maintenance of irrigation systems to ensure adequate coverage and eliminate water waste due to malfunction or breakages, the maintenance of pooled water and associated features to eliminate stagnation and/or proliferation of nuisance bugs or animals, and the maintenance of lighting, signage and public art features in an attractive state. Person: An individual or a corporation, partnership, trust, estate, unincorporated organization, association, or other entity. Personal Property: As defined by the Texas Tax Code. Program: Has the meaning set forth in the recitals to this Agreement. Carillon -380 Agreement - Draft: 2010-08-09 - Page 3 of 32 Program Costs: The costs of specified improvements to be built by Hines which will make Hines eligible for annual Program Payments from the City pursuant to Section 5 of this Agreement. Program Payments: The grant payments to be made by the City to Hines pursuant to Section 5 of this Agreement. Property: The approximate 285 acres located north of S.H. 114 and east of White Chapel Blvd., being real property located in Tarrant County, Texas, as more particularly described on Exhibit A herein. : Shall mean the supporting podium and sculpture identified as Public Public Art Art in the parks identified in Section 4.I.i herein and the artwork and focal point fountain in the Village Green Park (excludes recirculating water fountains or water pools) approved by the City’s Arts Council for placement in parks within the Property that are dedicated to the City. Real Property: As defined by the Texas Tax Code. Retail Parking Garages: A minimum of two (2) multi-level parking structures to be located within the Property generally at the northeast corner of S.H. 114 and N. White Chapel Blvd. in proximity to the retail uses and as shown on the Concept Plan herein. Roadway Construction Costs: Design and preparation of construction documents, bidding, surveying, excavation and grading, drainage improvements, paving, curbs, gutters, striping, turf, signage, lighting and other reasonable and customary costs as determined by the City. Does not include the cost of land or interest on construction financing. Roadway Impact Fees: Has the meaning set forth in the City of Southlake Impact Fee Ordinance. Section 380.001: Has the meaning set forth in the recitals to this Agreement. Substantial Completion: The date a Certificate of Occupancy is issued for occupancy of an Eligible Improvement. Taxable Value: Appraised value after the application of any lawful exemptions as determined by the Tarrant Appraisal District. Carillon -380 Agreement - Draft: 2010-08-09 - Page 4 of 32 3. Term This Agreement shall be effective as of the Effective Date of execution by all parties and shall terminate upon completion of the Program Payments as provided in Section 5K, unless earlier terminated pursuant to Section 7. 4. Hines Covenants In consideration and as a prerequisite of the City’s incentives under this Agreement, Hines agrees to the following: : Hines agrees to construct a A. Minimum Construction Requirements minimum of two hundred fifty thousand (250,000) square feet of Eligible Improvements in Commercial Phase I to include a mix of retail, restaurant and office uses. A hotel use would qualify in meeting the square footage requirement but is not required in the Commercial Phase I mix of uses. Adequate parking (surface or garage) would be required to support the Minimum Construction Requirements but is not to be included in meeting the minimum square footage requirements. i. City Council Amendment: The Southlake City Council may amend these Minimum Construction Requirements concurrent with the approval of a site plan for the Commercial Phase I Eligible Improvements. A motion to approve should directly state the Council’s intention to amend this section if so intended. ii. Construction Commencement: Hines shall Commence Construction of the Eligible Improvements by December 31, 2011. iii. Substantial Completion: The Minimum Construction Requirements must reach Substantial Completion by December 31, 2013. Hines shall have additional time as determined by the City to complete the Minimum Construction Requirements (1) if in the sole opinion of the City, Hines has made substantial progress towards the completion of the Minimum Construction Requirements, or (2) in the event of Force Majeure. a. Workmanlike Pursuit: Hines agrees and covenants that it will diligently and faithfully in a good and workmanlike manner pursue (or cause to be pursued) the completion of Carillon -380 Agreement - Draft: 2010-08-09 - Page 5 of 32 the Eligible Improvements as a good and valuable consideration of this Agreement. B. Compliance with Laws and Regulations: Hines further covenants and agrees that all construction of the Carillon Development will be in accordance with all applicable state and local laws and regulations or valid waiver thereof. C. Developer’s Agreement: Hines agrees to execute the City’s Developer’s Agreement(s). D. Inspection: Hines further agrees that the City and its agents and employees, upon reasonable prior written notice to Hines, shall have reasonable right of access to the Property to inspect the Eligible Improvements in order to insure that the construction of the Eligible Improvements are in accordance with this Agreement and all applicable state and local laws and regulations or valid waiver thereof; and subject to Hines's reasonable security requirements, they shall have the continuing right to inspect Property to insure that the Eligible Improvements are thereafter maintained, operated and occupied in accordance with this Agreement. E. Retail Parking Garages: Hines agrees to construct a minimum of two (2) Retail Parking Garages adequate to support the retail facilities within the Property at the northeast corner of S.H. 114 and White Chapel. These garages may or may not be included in Commercial Phase I. i. Ownership and Maintenance: Hines or their successors shall continue to own and maintain the Retail Parking Garages. The City shall at no time own or maintain any Retail Parking Garages. F. White Chapel Blvd.: Hines agrees to construct White Chapel Blvd. as a full-width four-lane divided roadway from the edge of pavement return from S.H. 114, continuing northerly along the west line of the Property, and providing an appropriate transition to the existing two-lane cross- section north of the Property. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Hines shall dedicate right-of- way to the City adequate for full-width lane construction, and any right-of-way required for turn lanes to serve the Property at no cost Carillon -380 Agreement - Draft: 2010-08-09 - Page 6 of 32 to the City. This dedication shall include ROW sufficient for the construction noted above while holding the existing western ROW along the Chiver’s property, less six feet (6’) of the Chiver’s property to be acquired by dedication upon future development of the Chiver’s property. ii. Construction Documents: Hines shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Bidding: See Section 4.J. : White Chapel shall be constructed concurrent with the iv. Timing other public infrastructure associated with the development of the Eligible Improvements. G. Kirkwood Blvd.: Hines agrees to construct Kirkwood Blvd. as a full-width four-lane divided roadway from White Chapel Blvd. southeasterly to the north end of a bridge or multiple-culvert crossing of Dove Creek at the southern end of the Property in accordance with the Phasing Plan submitted by Hines during the zoning approvals and as agreed to by both parties in Developer’s Agreements. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Hines shall dedicate right-of- way to the City adequate for full-width lane construction, and any right-of-way required for turn lanes to serve the Property at no cost to the City. ii. Bidding: See Section 4.J. H. Kirkwood Water Line: Hines shall be responsible for all costs related to designing and constructing a minimum twelve inch (12”) water line along Kirkwood Blvd. in accordance with approved phasing plans and as agreed upon in Developer’s Agreements. i. Bidding: See Section 4.J. Bidding documents shall accommodate the easy identification of Oversizing Costs. Carillon -380 Agreement - Draft: 2010-08-09 - Page 7 of 32 I. Park and Open Space Development: Hines shall develop, in phases, all parks and open spaces substantially in conformance with the approved Concept Plan unless otherwise approved by City Council during subsequent plan approvals. All parks to be dedicated to the public shall be named in accordance with the Park Naming Policy adopted by the City. All parks dedicated to the public must have final design approval from the City Council prior to construction. i. Dedication and Park Improvements: Unless agreed to by the City in writing or through approval of subsequent development plans, Hines shall dedicate to the City for public use, pursuant to a deed reasonably acceptable to Hines and the City, the following parks shown on the Concept Plan, install Public Art and construct and maintain Park Improvements noted for each park: a. Village Green Park: Approximately 2.36 acres and $690,842 in Park Improvements and $898,000 in Public Art ($148,000 in sculpture and $750,000 in the focal point fountain). b. Neighborhood Park: Approximately 4.37 acres and $451,510 in Park Improvements and $54,000 in Public Art. c. Tree Preserve Park: Approximately 3.38 acres and $186,922 in Park Improvements. (no Public Art) d. Lake Park: Approximately 24.30 acres and $1,572,002 in Park Improvements and $74,000 in Public Art. e. Corporate Park: Approximately 7.96 acres and $807,488 in Park Improvements and $74,000 in Public Art. f. Northwest Enclave Park: Approximately 5.54 acres and $130,016 in Park Improvements and $54,000 in Public Art. g. Villa Park South: Approximately 1.7 acres and $218,514 in Park Improvements. (no Public Art) h. Villa Park North: Approximately .54 acres and $99,143 in Park Improvements. (no Public Art) Carillon -380 Agreement - Draft: 2010-08-09 - Page 8 of 32 ii. Bidding: See Section 4.J. iii. Park Maintenance: Hines shall be responsible for the on-going Park Maintenance of all parks and related improvements in perpetuity and execute any documents necessary to ensure that the City shall be under no obligation to maintain any parks within the property. Should Hines desire to transfer this obligation to a Homeowners Association established for the development, this shall be done via contractual agreements satisfactory to the City. Hines further agrees to maintain all parks dedicated to the City to a standard acceptable to the City. : J. Bidding, Award of Construction Contracts and Approval of Change Orders Hines shall prepare full bidding and construction documents for the improvements described in Sections 4.F (White Chapel Blvd.), 4.G (Kirkwood Blvd.), 4.H (Kirkwood Water Line) and 4.I (Park and Open Space Development) in accordance with regulations and procedures adopted by the City. Hines shall comply with the competitive bidding procedures of Chapter 252 of the Local Government Code with regard to construction of such improvements in the same manner as if the City of Southlake were awarding a contract or contracts for construction of the improvements. The consent of the Southlake City Council must be obtained before Hines awards a construction contract or contracts for such improvements or before Hines approves any change order which increases or decreases the amount of such a construction contract by more than $25,000. The provisions of this Section 4.J shall apply to the contracts for Public Art except that the contracts for Public Art do not have to be competitively bid. K. Ad Valorem Taxes: Hines agrees to remain current on payment of ad valorem property taxes for the term of this Agreement; provided, however, Hines retains the right to timely and properly protest and contest any such ad valorem taxes and so long as Hines is timely and properly protesting or contesting the same, it shall not constitute an event of default under this agreement. If Hines becomes delinquent in the payment of ad valorem taxes on Property owned by Hines, it shall be an event of default under this Agreement. If Hines sells the Property, or any part thereof, to a third party which is not owned or controlled by Hines, and the third party becomes delinquent in payment of ad valorem taxes, it shall not be a default under this Agreement. Carillon -380 Agreement - Draft: 2010-08-09 - Page 9 of 32 L. Roll-Back Taxes: Hines agrees to remain current on payment of roll-back taxes payable as land parcels within the Property are developed. M. Design: The Carillon Development shall substantially conform to the Concept Plan unless amended by the City and Hines during subsequent development plan approvals. N. Documentation: Hines shall submit to the City, as a condition of payment of any incentive, reasonably detailed evidence of compliance with Section 4 herein. This shall include detailed invoicing from contractors and payments made sufficient to identify the costs directly related to this Section. O. Compliance: Hines shall comply with any and all remaining terms and provisions herein. 5. City’s Economic Development Program Incentives Subject to Hines’s performance of its obligations as required by this Agreement, and subject to the provisions of this section, to promote local economic development pursuant to the Program, the City shall grant Hines the following economic development incentives which shall be included in or paid at the same time as the Program Payments under Section 5.K: A. Ad Valorem Taxes: The City shall utilize a portion of the ad valorem real and personal property taxes related to Eligible Improvements collected within the Property by the City to contribute to the Program Payment as described in Section 5.K herein. i. Land Excluded: This incentive does not include the Ad Valorem taxes derived from the land value of the Property as determined by the Tarrant Appraisal District, whether held in an AG exempt status or not, as of the Effective Date. (i.e. the tax revenues pooled for Program Payments shall be reduced by this amount prior to payment by the City to Hines.) ii. Protested Amounts Excluded: This incentive shall not include any amounts under protest. After resolution of the protest, the appropriate incentive amounts shall be determined and included in the Program Payments. Carillon -380 Agreement - Draft: 2010-08-09 - Page 10 of 32 iii. Cap: The annual incentive shall be capped not to exceed fifty percent (50%) of the ad valorem real property taxes from the Property and fifty percent (50%) of the ad valorem personal property taxes as received by the City from businesses located on the Property. B. Sales and Use Taxes: The City shall utilize a portion of the 1% general fund sales and use taxes (i.e., does not include Southlake Park Development Corporation, Crime Control and Prevention District or any other economic development sales and use taxes) collected within the Property by the City from tenants occupying the Eligible Improvements on the Property to contribute to the Program Payments as described in Section 5.K herein. These taxes must be easily segregated and attributable to the location on the Property. i. Cap: This incentive shall be capped not to exceed fifty percent (50%) of the sales and use taxes collected annually. C. Retail Parking Garages: The City agrees that Hines shall be eligible for the following economic development incentive after Hines constructs a minimum of two (2) Retail Parking Garages as noted in Section 4.E herein. i. Cap One: The amount of this incentive shall be capped not to exceed forty percent (40%) of the actual Building Construction Cost of the Retail Parking Garages. ii. Cap Two: This incentive shall not exceed $5,480,000. iii. Program Costs: The lesser of Cap One or Cap Two noted for this incentive shall be included in the Program Costs summarized in Section 5.J herein. D. Public Art: The City shall provide to Hines an economic development incentive of fifteen percent (15%) of the Hotel Occupancy Taxes received annually from a hotel operating on the Property to pay for Public Art installed by Hines. i. Art Installation: The annual incentive amount shall be accumulated by the City and shall only be paid to Hines subsequent to Public Art Carillon -380 Agreement - Draft: 2010-08-09 - Page 11 of 32 being approved by the City and installed by Hines in the parks dedicated to the City. ii. Cap One: This incentive shall not exceed the cost of the Public Art. iii. Cap Two: This incentive shall not exceed $577,000. (This is 50% of $1,154,000 which includes the focal point fountain in the Village Green Park and the art sculpture and the podium for the art in each park as identified in Section 4.I.i herein.) iv. Program Costs: The lesser of Cap One or Cap Two noted in this incentive shall be included in the Program Costs summarized in Section 5.J herein. E. White Chapel Blvd.: Upon completion of full design and construction documents and receipt of bids for the White Chapel Blvd. roadway improvements, the City and Hines shall determine the amount of the economic development incentive due to Hines in accordance with the following: i. Turning Lanes: All turning lanes providing access to the Property shall be excluded from this incentive and the cost of those improvements shall be borne entirely by Hines. ii. Incentive for Western Lanes of White Chapel Blvd: The City shall grant Hines an economic development incentive equal to one hundred percent (100%) of the actual Roadway Construction costs, to include costs of landscaping the median, for the two westernmost lanes of the White Chapel Blvd. roadway improvements and the intersection with S.H. 114, including south- bound turn lane configurations at the intersection, and north-bound left turn lanes at the Retail Drive and Kirkwood Blvd median breaks. a. Full-Payment Program: The incentive noted in this Section 5.E.ii shall be referred to as the Full-Payment Program. This incentive shall not be capped and shall be based on actual Roadway Construction costs determined upon completion and acceptance of the improvements by the City. An estimated amount of $475,187 shall be included in the Program Costs summarized in Section 5.J herein but shall be subject to adjustment upon completion of the Carillon -380 Agreement - Draft: 2010-08-09 - Page 12 of 32 improvements and acceptance of the improvements by the City. iii. Incentive for Eastern Lanes of White Chapel Blvd: The City agrees to grant Hines an economic development incentive equal to fifty percent (50%) of the Roadway Construction Costs incurred in connection with the two easternmost lanes of the White Chapel Blvd. roadway improvements adjacent to the Property. a. Cap One: The incentive under this Section 5.E.iii shall not exceed the actual Roadway Construction Costs for such improvements. b. Cap Two: The incentive under this Section 5.E.iii shall not exceed $320,692 unless agreed upon in writing by the City. c. Program Costs: The lesser of Cap One or Cap Two noted in this incentive shall be included in the Program Costs summarized in Section 5.J herein. iv. Administration and Inspection Fees: The City agrees to waive the administration and inspection fees related to construction of White Chapel Blvd., including the turn lanes specifically excluded from City participation in Section 5.E.i. F. Kirkwood Water Line: The City agrees to reimburse Hines for all Oversizing Costs related to the 12” water line constructed along Kirkwood Blvd. i. Payment: Payment of this incentive shall be in accordance with provisions of the approved Developer’s Agreement. G. Kirkwood Blvd.: The City shall grant Hines the following economic development incentives for constructing the Kirkwood Blvd. roadway improvements as noted in Section 4.G. i. Incentive for Roadway Impact Fees Paid by Hines: The City shall include in the annual Program Payment a grant incentive payment equal to the amount of any Roadway Impact Fees paid by Hines for the construction of Eligible Improvements on the Property. Carillon -380 Agreement - Draft: 2010-08-09 - Page 13 of 32 ii. Incentive for Roadway Impact Fees Paid by Others: The City shall collect any Roadway Impact Fees paid by parties other than Hines for the construction of Eligible Improvements, residential homes and amenity facilities on the Property and at the same time as the annual Program Payment to Hines shall include a grant incentive payment equal to the amount of any such Roadway Impact Fee payments collected by the City. iii. Cap One: This incentive shall not exceed the lesser of the actual Roadway Construction Costs for the Kirkwood Blvd. roadway improvements or actual Roadway Impact Fees collected by the City from development within the Property. iv. Cap Two: Grant incentive payments under this Section 5.G shall only apply to Roadway Impact Fees paid and received by the City on or before December 31, 2023. v. Payment: Payment of this incentive shall be concurrent with but not part of the Program Payments identified herein. H. Park Improvements: The City agrees to grant to Hines the following economic development incentives for constructing the following Park Improvements within parks dedicated to the City as noted in Section 4.I herein. All final park designs shall be subject to City Council approval. i. Village Green Park: Not to exceed the lesser of 50% of the actual cost of Park Improvements or $345,421. ii. Neighborhood Park: Not to exceed the lesser of 50% of the actual cost of Park Improvements or $225,755. iii. Tree Preserve Park: Not to exceed the lesser of 50% of the actual cost of Park Improvements or $93,461. iv. Lake Park: Not to exceed the lesser of 50% of the actual cost of Park Improvements or $786,001. v. Corporate Park: Not to exceed the lesser of 50% of the actual cost of Park Improvements or $403,744. Carillon -380 Agreement - Draft: 2010-08-09 - Page 14 of 32 vi. Northwest Enclave: Not to exceed the lesser of 50% of the actual cost of Park Improvements or $65,008. vii. Program Costs: The cumulative combination of the lesser of the amounts identified for each park and not to exceed $1,919,390 shall be included in the Program Costs summarized in Section 5.J herein. I. Park Dedication Requirements: The City will accept performance of the requirements of Section 4.I of this Agreement in lieu of the City’s normal park dedication requirements. The City also agrees to refund to Children’s Medical the park dedication fees, due to timing considerations, paid by them prior to approval of this Agreement. Hines consents to this refund and agrees that the refund does not diminish or amend any of Hines’ obligations under Section 4.I of this Agreement. J. Program Costs: Program Costs for which Hines shall receive economic development incentives from the City via annual Program Payments shall include the following: i. Retail Parking Garages: As noted in Section 5.C.iii herein. ii. Public Art: As noted in Section 5.D.iv herein. iii. White Chapel Blvd: As noted in Sections 5.E.ii.a and 5.E.iii.c herein. iv. Park Improvements: As noted in Section 5.H.vii herein. K. Program Payments: The City shall utilize revenues generated by the Carillon Development as identified in Sections 5.A and 5.B herein for annual Program Payments in accordance with and subject to the following. i. First Payment: The first Program Payment shall be paid in January the year after the first Certificate of Occupancy is issued. a. Example Only: March 2011: C.O. issued April – Dec 2011: Businesses operate January 31, 2012: 2011 taxes due to Tarrant County Carillon -380 Agreement - Draft: 2010-08-09 - Page 15 of 32 Feb 2012: AV taxes received by City Feb 2012: Sales taxes received by City April 2012: Program Payment made ii. Proportional Payments: Program Payments shall be made annually in proportion to the percentage of Minimum Construction Requirements meeting Substantial Completion. (e.g. if in the year that the First Payment is due, Hines has met 80% of the Minimum Construction Requirements, the Program Payment for that year shall be 80% of a full payment). iii. Eligibility: The Program Payments shall be paid within 90 days after the taxes have been paid and received by the City during each year in which the performance requirements are met for a period of ten (10) years from the first January after the first Certificate of Occupancy as noted in Section 5.K.i above. iv. Resolution of Appeals: Upon resolution of any appeals and subsequent payment of taxes to the City, the City shall reimburse Hines the appropriate amount due in accordance with the provisions herein. v. Condition Precedent: Notwithstanding any other provisions hereof, City shall not be obligated to make any Program Payments or other payment or grant pursuant to this Agreement unless and until Hines is in compliance with the provisions of this Agreement in all material respects. vi. Cap One: The cumulative total of all Program Payments shall not exceed the lesser of actual costs or capped costs of each Program Cost noted in Section 5.J herein. vii. Cap Two: Annual Program Payments by the City shall not exceed actual costs incurred by Hines. City shall accumulate annual revenues and grant an economic development incentive annually as costs are incurred. viii. Cap Three: Regardless of the timing of phased construction and the resulting revenue stream to the City, all incentives outlined in this Agreement shall cease on December 31, 2023, and the final Program Payment shall be made soon thereafter. Carillon -380 Agreement - Draft: 2010-08-09 - Page 16 of 32 ix. Example Program Payment Schedule: Attached as Exhibit C-1 is an example of a program payment schedule for the Program Payments. Assumptions driving the schedule are included in Exhibit C-2. These exhibits are provided to aid in understanding of the Agreement only and are in no way obligations for timing or amounts of payments. x. Full-Payment Program Reconciliation: In the event that Program Payments do not pay for the costs identified in Section 5.J herein, as identified in the following sections, the City shall pay Hines an amount equal to the remaining balance of the Full-Payment Program identified in Section 5.E.ii.a from annually appropriated revenues or other available funds deemed appropriate by the City. a. Allocations of Program Payments: For the purposes of allocating a portion of the Program Payments towards the Full-Payment Program and all other Program Costs, an accounting of each allocation shall be done annually based on the percentage that the Full-Payment Program Costs are of the total Program Costs. 1). Total Program Costs = $8,772,269 (100%) 2). Full-Payment Program Costs = $475,187 (5.42%) 3). Other Program Costs = $8,297,082 (94.58%) The City Finance Department, when reconciling for annual Program Payments, shall pay incentives to Hines in accordance with Section 5.K but shall keep track of the totals contributed for the Full-Payment Program and the Other Program Costs based on the percentages shown above. The intent of this section is that at the end of all Program Payments, if the proportional payments associated with the Full-Payment Program as accumulated do not meet the obligation, the amount short can be easily identified and paid. Carillon -380 Agreement - Draft: 2010-08-09 - Page 17 of 32 6. Conflict of Interest The Property is not owned or leased to any member of the Southlake City Council or any member of the Southlake Planning and Zoning Commission. In addition, Hines agrees to complete a Conflict of Interest Questionnaire as required by Chapter 176 of the Texas Local Government Code. 7. Default and Termination If either party should fail to comply with the terms of this Agreement, or if a bankruptcy or other insolvency proceeding shall be filed by or against either party and such proceeding is not vacated within 30 days, it shall be deemed a default and the party shall have 30 days after delivery of written notice of such default from the other party to cure such default. If the noncompliance is not cured within that period, the non- defaulting party may terminate this Agreement by written notice and shall have no further obligation to the other party; provided that the City shall grant Hines an extension to cure the default if Hines demonstrates, to the reasonable satisfaction of the City Council that: the default cannot be cured by the payment of monies and (2) cannot be reasonably cured within 30 days and (3) that Hines is diligently pursuing cure. Notwithstanding the foregoing, in the event either party fails to pay the other party any monetary amounts owing under this Agreement when due, and such failure continues for a period of 30 days after delivery of written notice of such default, then such outstanding amounts shall accrue interest from the date owing until paid at the rate in effect on September 1 of the fiscal year in which the payment becomes overdue. That rate in effect on September 1 is equal to the sum of: (1) one percent; and (2) the prime rate as published in the Wall Street Journal on the first day of July of the preceding fiscal year that does not fall on a Saturday or Sunday. 8. Force Majeure Either party may be excused from performance under this Agreement when its performance is prevented as the result of Force Majeure as defined in Section 2. If a party suffers an event of Force Majeure, it shall provide written notice of the event to the other party promptly after its occurrence. Subject to this provision, such nonperformance shall not be deemed an event of default. Following the occurrence of any event of Force Majeure, Hines shall have such additional time to complete the applicable portion of the Eligible Improvements as may be reasonably required if Hines is diligently and faithfully pursuing the completion of the same. Carillon -380 Agreement - Draft: 2010-08-09 - Page 18 of 32 9. Audit If necessary to determine whether the Minimum Construction Requirements in Section 4.A are met and if requested by the City, an independent firm mutually agreeable to the City and Hines (the “Auditor”) shall audit the construction associated with the Eligible Improvements, and shall determine whether Hines has met the Minimum Construction Requirements. The conclusion of the Auditor shall be final, binding and conclusive on the City and Hines and the City’s payments shall be adjusted in accordance therewith. The City shall be responsible for the cost of the audit. 10. Indemnification HINES EXPRESSLY AGREES TO FULLY AND COMPLETELY DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY, AND ITS OFFICERS, AND EMPLOYEES, AGAINST ANY AND ALL CLAIMS, LAWSUITS, LIABILITIES, JUDGMENTS, COSTS, AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM, DAMAGES OR LIABILITY FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY ANY NEGLIGENT, GROSSLY NEGLIGENT, WRONGFUL, OR STRICTLY LIABLE ACT OR OMISSION OF HINES OR ITS AGENTS, EMPLOYEES, OR CONTRACTORS, ARISING OUT IN THE PERFORMANCE OF THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT THE NEGLIGENCE, GROSS NEGLIGENCE, WRONGFUL ACT, OR FAULT OF THE CITY OR ITS OFFICERS, AGENTS, OR EMPLOYEES, CONTRIBUTES IN ANY WAY TO THE DAMAGE, INJURY, OR OTHER HARM. Subject to the provisions of Section 11.N hereof, nothing in this paragraph may be construed as waiving any immunity available to the City under state law. This provision is solely for the benefit of Hines and the City and is not intended to create or grant any rights, contractual or otherwise, in or to any other Person. 11. Miscellaneous Matters A. Section or Other Headings: Section or other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. B. Attorneys Fees: The prevailing party in the adjudication of any proceeding relating to this Agreement shall be authorized to recover its reasonable and necessary attorney’s fees pursuant to Section 271.159 of the Texas Local Government Code. Carillon -380 Agreement - Draft: 2010-08-09 - Page 19 of 32 C. Entire Agreement: This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein. D. Amendment: This Agreement may only be amended, altered, or revoked by written instrument signed by the Hines and the City. E. Successors and Assigns: This Agreement shall be binding on and inure to the benefit of the parties, their respective successors and assigns. Hines may assign all or part of its rights and obligations hereunder (a) to any Hines Affiliate effective upon written notice to the City, provided the Hines Affiliate agrees in writing to comply with each and every obligation of Hines in this Agreement including constructing the Eligible Improvements to a design standard consistent with the Concept Plan, or (b) to any Person other than a Hines Affiliate with the prior written approval of the City, which approval shall not be unreasonably withheld or delayed, so long as in the City’s sole discretion the Eligible Improvements will be constructed to a design standard consistent with the Concept Plan and the assignee is financially able to perform this Agreement and experienced in high quality land development. After Substantial Completion of the Eligible Improvements, Hines’ obligation under this Agreement may be assigned to unrelated third parties upon written notice to the City and the assignees written agreement to comply with each and every obligation of Hines contained herein as the same relate to the applicable portion of the Property conveyed to such third party. Nothing in this Section shall release Hines from Hines’ obligations under Section 4.I.iii hereof unless the City gives its express written consent. F. Notice: Any notice and/or statement required and permitted to be delivered shall be deemed delivered by hand delivery, depositing same in the United States mail, certified with return receipt requested, postage prepaid, addressed to the appropriate party at the following addresses, or at such other addresses provided by the parties in writing: Hines: Hines Southlake Land Limited Partnership c/o Hines Interests Limited Partnership 717 Texas Avenue, Suite 1550 Houston, Texas 77002 Attention: Mark A. Cover Carillon -380 Agreement - Draft: 2010-08-09 - Page 20 of 32 With a copy to: Hines Southlake Land Limited Partnership 2200 Ross Avenue, Suite 4200W Dallas, Texas 75201 Attention: Rob Witte City: City of Southlake 1400 Main Street, Suite 460 Southlake, Texas 76092 Attention: Mayor With a copy to: Taylor, Olson, Adkins, Sralla & Elam, L.L.P. 6000 Western Place, Suite 200 I-30 at Bryant-Irvin Road Fort Worth, Texas 76107 Attention: Wade Adkins G. Interpretation: Regardless of the actual drafter of this Agreement, this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party. H. Applicable Law and Venue: This Agreement is made, and shall be construed and interpreted under the laws of the State of Texas and is fully performable in Tarrant County, Texas, and venue of any dispute relating to this Agreement shall lie in Tarrant County, Texas. I. Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. J. Limitation on Liability: Hines agrees that City shall not be liable to Hines or any other party for any special or consequential damages, direct or indirect, punitive damages, interest, or cost of court or expenses related to litigation other than reasonable and necessary attorney’s fees, as provided in Section 11.B. hereof for any act of default by City under this Agreement. K. Representations: Hines represents and warrants to the City that it has the requisite authority to enter into this Agreement. Carillon -380 Agreement - Draft: 2010-08-09 - Page 21 of 32 L. No Joint Venture: The parties agree that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. The City, its elected officials, directors, employees and agents do not assume any responsibility to any third party in connection with Hines’s construction or operation of the Project. M. Conflicting Agreements: Where conflicts might arise between this Agreement and the Developer’s Agreement or other agreements between the City and Hines, this Agreement shall prevail. Hines agrees to comply with the City’s normal development regulations while developing the Property, except where those regulations conflict with the provisions of this Agreement. N. Waiver of Immunity: The City enters this Agreement subject to the provisions of Chapter 271, Subchapter I of the Texas Local Government Code and hereby waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of this Agreement, subject to the terms and conditions of Chapter 271, Subchapter I. The City does not waive a defense or a limitation on damages available to a party to a contract, other than a bar against suit based on sovereign immunity. O. Revenue Sharing Agreement: The City designates this Agreement as a revenue sharing agreement, thereby entitling the City to request Sales and Use Tax information from the State Comptroller, pursuant to Section 321.3022 of the Texas Tax Code, as amended. P. Source of Funds: All payments required to be made by the City hereunder shall be made by the City from current revenues available to the City. 12. Remedies Cumulative The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by either party shall not preclude or waive its rights to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. Carillon -380 Agreement - Draft: 2010-08-09 - Page 22 of 32 13. Waiver No waiver by a party in any event of default, or breach of any covenant, condition or stipulation herein contained shall be treated as waiver of any subsequent default or breach of the same or any other covenant, condition or stipulation hereof. 14. Right to Offset City may, at its option, offset any amounts due and payable to Hines under this Agreement against any debt (including taxes) lawfully due to City from Hines and which are delinquent under applicable law or by agreement, 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, provided that if Hines is in good faith challenging the validity of any debt, in accordance with applicable laws, the City may not offset unless and until such challenge is finally resolved. 15. Rough Proportionality Hines agrees that all property dedicated to the City and all public facilities constructed pursuant to this Agreement are reasonably necessary to serve the Project and are roughly proportional to the need generated by the subdivision for such land and facilities. Hines acknowledges its right to seek a variance to the dedication and/or construction requirements and that it has voluntarily chosen not to pursue such remedies and waives any claim for a taking of property, or any other constitutional or statutory claim, that it may have under either the Texas or United States Constitutions or statutes. ---- Remainder of this page is blank ---- Carillon -380 Agreement - Draft: 2010-08-09 - Page 23 of 32 Executed this _____ day of __________, 2010. THE CITY OF SOUTHLAKE By: ____________________ John Terrell, Mayor HINES SOUTHLAKE LAND LIMITED PARTNERSHIP, a Texas limited partnership By: Hines Southlake Land GP LLC, a Delaware limited partnership, its General Partner By: Hines Interests Limited Partnership, a Delaware limited partnership, its sole Member By: Hines Holding, Inc., a Texas corporation, its General Partner By: Name: Mark Cover Title: Executive Vice President ATTEST ____________________________ CITY SECRETARY APPROVED AS TO FORM: ____________________________ CITY ATTORNEY Carillon -380 Agreement - Draft: 2010-08-09 - Page 24 of 32 EXHIBIT A-1 Description of Property Carillon -380 Agreement - Draft: 2010-08-09 - Page 25 of 32 EXHIBIT A-2 Boundary of Property Carillon -380 Agreement - Draft: 2010-08-09 - Page 26 of 32 EXHIBIT A-3 Boundary of Property Carillon -380 Agreement - Draft: 2010-08-09 - Page 27 of 32 EXHIBIT A-4 Boundary of Property Carillon -380 Agreement - Draft: 2010-08-09 - Page 28 of 32 EXHIBIT A-5 Boundary of Property Carillon -380 Agreement - Draft: 2010-08-09 - Page 29 of 32 EXHIBIT B Concept Plan Carillon -380 Agreement - Draft: 2010-08-09 - Page 30 of 32 EXHIBIT C-1 Example Program Payment Schedule Carillon -380 Agreement - Draft: 2010-08-09 - Page 31 of 32 EXHIBIT C-2 Example Program Payment Schedule - Assumptions 1. Carillon General Fund revenue estimate dated 2010-07-02 A. Does not include SPDC or CCPD sales and use tax revenues B. Revenues should be reduced by the AG exempt value of the land on the date of execution prior to any incentive grants (5.A.i) 2. Program Payment Schedule dated 2010-08-09 A. Phase I full revenues are reached in year 4 B. Phase II full revenues are reached in year 6 C. Ultimate development revenues are reached in year 8 D. Incentive cap is $5,480,000 (retail garages) + $577,000 (public art) + $475,187 (White Chapel west lanes) + $320,692 (White Chapel east lanes) + $1,919,390 (parks) = $8,772,269. 3. Hotel Occupancy Tax A. 160 rooms x $190 ADR x 365 x 65% occupancy x 7% = $504,868 x 15% = $75,730 annual cap B. Full HOT revenues are reached in year 4 C. Circulating fountains in ponds do not qualify for HOT monies but focal point fountain in Village Green does and is included as Public Art. 4. White Chapel Blvd: Does not include turn lanes dedicated to development. A. Two Western Lanes: Includes 100% of total cost of $475,187 (includes costs at intersection with SH 114 and N-bound left turns at Retail Drive and Kirkwood median breaks). This number used in cap total for generation of program payment example but is not capped in agreement. B. Two Eastern Lanes: Total cost of $641,384 / 2 = participation cost and cap of $320,692. 5. Kirkwood Blvd: Not included. Roadway Impact Fees paid by Hines or third parties will be granted to Hines for a period of time. 6. Retail Parking Garages: Total cost of $13,700,000, participation and cap at 40% of cost = $5,480,000. 7. Parks: Includes six (6) parks with total cost of $3,838,780 / 2 = participation cost and cap of $1,919,390. A. Village Green Park: $690,842 total ($750,000 fountain in Public Art) B. Neighborhood Park: $451,510 total C. Tree Preserve: $186,922 total D. Lake Park: $1,572,002 total E. Corporate Park: $807,488 total F. Northwest Enclave: $130,016 total 8. Public Art: Includes five (5) parks with public art for total cost of $1,154,000 / 2 = participation cost and cap of $577,000. A. Village Green: $898,000 total ($148,00 sculpture + $750,000 fountain) B. Neighborhood Park: $54,000 total C. Lake Park: $74,000 total D. Corporate Park: $74,000 total E. Northwest Enclave: $54,000 total 9. Water Line Oversizing: Not included. Reimbursed per Developer’s Agreement. Carillon -380 Agreement - Draft: 2010-08-09 - Page 32 of 32