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14-003
RESOLUTION NO. 14 -003 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 EXCEL SOUTHLAKE I LP, A DELAWARE 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 Excel Southlake I LP, a Delaware limited partnership ( "Excel "), 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 Excel, 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. Resolution 14-003 - Park Village Development - Chapter 380 Agreement Page 1 of 3 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 4 day of March, 2014. /d John Terrell, May ATTEST: �. • •`��pv?H � 4 y te ee ' + ) �` Y. Alicia Richardson, TRMC t e r ,r e � City Secretary • ,„ eeseeooe Resolution 14-003 - Park Village Development - Chapter 380 Agreement Page 2of3 EXHIBIT A Chapter 380 Agreement Resolution 14-003 - Park Village Development - Chapter 380 Agreement 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 Excel Southlake I LP, ( "Excel ") a Delaware limited partnership, organized under the laws of Texas. City and Excel are sometimes hereinafter referred to collectively as the "parties" or individually as a "party ". WITNESSETH: WHEREAS, on March 4, 2014, the City adopted Resolution No. 14 -003 (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, Excel 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 Excel's 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: Amenities: All of those features listed on the attached Exhibit "C ". 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. It does not include earth disturbance permits, tree removal permits or other non - building permits. Carroll Median and Drive -Lane Improvements: Construction of improvements to the median and the addition of drive - lane(s) or drive -lane width(s) for South Carroll Avenue adjacent to the Property, as shown on the Site Plan. City: The City of Southlake, Texas. City Attorney: The attorney for the City. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 1 of 22 Certificate of Occupancy: A temporary or permanent certificate of occupancy as defined in the City's building codes. Commencement of Construction: The earlier of the approval and issuance of the appropriate building permits or the commencement of actual on -site physical excavation or site grading required for installation of Eligible Improvements, excluding permits for clearing and grubbing. Commercial Developer Agreement (CDA): That certain Commercial Developer Agreement (or multiple Agreements) relating to the construction of public infrastructure in form and substance to be mutually agreed upon by Excel and the City. Construction Costs: The cost of design, construction document preparation, bidding, permits, fees, surveying, and construction of buildings, 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. Corner Amenity Feature Fountain: The large fountain within the Property at the southwest corner of F.M. 1709 and Carroll Avenue, having an approximate surface area of 3,000 square feet. Development: The 22.48 acre retail development called Park Village at the southwest corner of F.M. 1709 and Carroll Avenue, and represented by the Site Plan referenced herein. Effective Date: The date that all parties have executed this Agreement. Eligible Improvements: All or a portion of the buildings shown on the Site Plan, parking, or accessory improvements related to these improvements. Force Maieure: 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 Excel), fire, explosion or flood, and strikes or other act beyond the reasonable control of Excel, or the City, but not including the lack of funds. Land Value: The appraised value of land as determined by the Tarrant Appraisal District. 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. Program Payments: The annual grant payments to be made by the City to Excel pursuant to Section 5 of this Agreement. Property: The approximate 22.48 acres located at the southwest corner of F.M. 1709 and Carroll Avenue, being real property located in Tarrant County, Texas, as more particularly described on Exhibit A herein. Real Property: As defined by the Texas Tax Code. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 2 of 22 Roadway Construction Costs: 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 sidewalks 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. Site Plan: The site plan for the Development, attached hereto as Exhibit B, approved or as may be amended by the City pursuant to the City's zoning regulations. Substantial Completion: When an Eligible Improvement meets the requirements for a shell final approval, as defined by the City's Building Official. Taxable Value: Appraised value after the application of any lawful exemptions as determined by the Tarrant Appraisal District. Total Tax Revenue: The sum of the Ad Valorem real property and business personal property taxes and the City's one percent (1 %) sales tax collected by the City in one Calendar Year. This specifically excludes sales taxes collected for the Southlake Park Development Corporation or the Crime Control and Prevention District, or any other Economic Development Tax collected now or in the future. Tower Blvd. and Decel Lane: A two -lane public roadway with turn lanes as appropriate along the west side of the Property and the associated east -bound deceleration lane on F.M. 1709. Tower Blvd. Signal: Acquisition of all required permitting for effectively all non -TxDOT construction; construction of all control mechanisms, wiring, conduit, support arms and signal heads, illuminated street name signs, battery backups; establishment of appropriate signal timing; installation of required signage and pavement markings; construction of any required median modifications; and the cost of the warrant study for Tower Blvd. Signal and only the cost of the warrant study for a possible future signal at Zena Rucker Road and S. Carroll Ave. Excel Affiliate: Excel Southlake I LP, or any Person directly controlling or controlled by, Excel, or any Person controlling or controlled by the same Person who is controlling or is controlled by Excel. 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. Zena Rucker Road and Decel Lane: A two -lane public roadway with turn lanes as appropriate along the south side of the Property and associated south -bound deceleration turn lane on South Carroll Avenue. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 3 of 22 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 5, unless earlier terminated pursuant to Section 7. 4. EXCEL COVENANTS In consideration and as a prerequisite of the City's incentives under this Agreement, Excel agrees to the following: A. Construction Commencement: Excel commenced Construction on or before December 31, 2013. B. Construction Requirements: Excel agrees to construct a total of one hundred eighty thousand (180,000) square feet of Eligible Improvements ( "Construction Requirements "). i. City Council Amendment: The Southlake City Council may amend the Construction Requirements concurrently with the approval of a Site Plan for the Eligible Improvements. ii. Substantial Completion: As a prerequisite to Program Payments noted herein, Excel agrees that a minimum of one hundred fifty thousand (150,000) square feet of Eligible Improvements must reach Substantial Completion by November 1, 2014 (the "Minimum Construction Requirements "). Excel shall have additional time as determined by the City to complete the Minimum Construction Requirements (1) if in the sole opinion of the City, Excel has made substantial progress towards the completion of the Minimum Construction Requirements, or (2) in the event of Force Majeure. iii. Workmanlike Pursuit: Excel agrees and covenants that it will diligently and faithfully in a good and workmanlike manner pursue (or cause to be pursued) the completion of the Eligible Improvements as good and valuable consideration of this Agreement. C. Compliance with Laws and Regulations: Excel further covenants and agrees that all construction of the Development will be in compliance with all applicable local, state and federal laws and regulations or valid waiver thereof. D. Commercial Developer's Agreement: Excel agrees to execute the City's Commercial Developer's Agreement(s). E. Inspection: Excel further agrees that the City and its agents and employees, upon reasonable prior written notice to Excel, 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 Excel's Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 4 of 22 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. F. Corner Amenity Feature Fountain: Excel agrees to construct the Corner Amenity Feature Fountain in accordance with the design approved with the Zoning as a pre- requisite to Program Payments noted herein. i. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. ii. Timing: The Corner Amenity Feature Fountain shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. iii. Maintenance: The Corner Amenity Feature Fountain shall be maintained in a status safe for public use, adequate to eliminate stagnation and /or proliferation of nuisance bugs or animals. G. Carroll Median and Drive -Lane Improvements: Excel agrees to construct Carroll Median and Drive -Lane Improvements as a pre- requisite to Program Payments noted herein. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Excel 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. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Mg: Carroll Median and Drive -Lane Improvements shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. H. Zena Rucker Road and Decel Lane: Excel agrees to construct Zena Rucker Road and Decel Lane as a pre- requisite to Program Payments noted herein. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Excel 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. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Timing: Zena Rucker Road shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 5 of 22 I. Tower Blvd. and Decel Lane: Excel agrees to construct Tower Blvd. and Decel Lane as a pre- requisite to Program Payments noted herein. i. ROW Dedication: As a part of normal platting requirements, unless otherwise agreed to by both parties, Excel shall dedicate or cause to be dedicated 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. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. iii. Timin : Tower Blvd. shall be constructed prior to or concurrently with the other public infrastructure associated with the development of the Minimum Construction Requirements. J. Tower Blvd. Signal: Excel agrees to construct Tower Blvd. Signal improvements as a prerequisite to Program Payments noted herein. i. Construction Documents: Excel shall prepare full construction documents in accordance with regulations and procedures adopted by the City. ii. Timing: Subject to TxDOT approval, Tower Blvd. Signal shall be constructed prior to or concurrently with the other public infrastructure associated with the development of the Minimum Construction Requirements. K. Other on -site Amenities: Excel agrees to construct the Amenities in accordance with the zoning and Site Plan approved by the City as a prerequisite to Program Payments noted herein. i. Timin : The Amenities shall be constructed prior to or concurrently with the development of the Minimum Construction Requirements. ii. Letter of Credit: Excel agrees to provide the City a letter of credit no later than fifteen (15) business days from the Effective Date of this Agreement, in a form acceptable to the City Attorney, in the amount of $4,750,000 as assurance that these Amenities will be constructed at the time stated above. The parties agree that the letter of credit may be periodically amended, at Excel's sole cost and expense and on a form acceptable to the City Attorney, to a lesser amount to reflect the actual construction costs incurred for those Amenities already completed and those Amenities still outstanding. Prior to any amendment, Excel will provide the City with sufficient documentation of costs incurred. The actual cost spent on each individual amenity item may vary slightly from the cost shown on Exhibit C as long as the total cost of the Amenities is met or exceeded. The amount of any amended letter of credit will be at least 125% of the costs of those remaining Amenities, as listed on Exhibit C. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 6 of 22 iii. Right of Access: Excel further agrees that it will provide City a written right of access to the Property, in a form acceptable to the City Attorney, in the event City must draw on the letter of credit and complete construction of the Amenities. L. Ad Valorem Taxes: Excel agrees to remain current on payment of ad valorem property taxes for the term of this Agreement; provided, however, Excel retains the right to timely and properly protest and contest any such ad valorem taxes and so long as Excel is timely and properly protesting or contesting the same, it shall not constitute an event of default under this agreement. If Excel becomes delinquent in the payment of ad valorem taxes on Property owned by Excel, it shall be an event of default under this Agreement. M. Roll -Back Taxes: Excel agrees to remain current on payment of roll -back taxes payable as land parcels within the Property are developed. N. Design: The Development shall substantially conform to the Site Plan unless amended by the City and Excel during subsequent Site Plan approvals. 0. Documentation: Excel 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. P. Compliance: Excel shall comply with any and all remaining terms and provisions herein. 5. CITY'S ECONOMIC DEVELOPMENT PROGRAM INCENTIVES Subject to Excel'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 Excel the following economic development incentives: A. Park Dedication Fee Reimbursement: The City agrees that Excel, in consideration for construction of amenities and pedestrian areas within the development, shall be granted a reimbursement of the City's park dedication fee. This incentive shall be paid to Excel within 30 days after the Effective Date and shall not be included in the Program Payments. B. Roadway Impact Fee Reimbursement: The City agrees that Excel, in consideration for construction of Zena Rucker Road and Decel Lane, shall be granted a reimbursement of the Roadway Impact Fees in an amount equal to 100% of the Roadway Impact Fees paid by Excel. This incentive shall be paid to Excel within 30 days after the Effective Date and shall not be included in the Program Payments. C. Public Works Fees: The City agrees that Excel, in recognition that Excel is constructing Zena Rucker Road and making improvements to South Carroll Avenue as public Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 7 of 22 roadways, shall be granted a reimbursement of a portion of the Public Works Department's Plan Review and Inspection Fees as follows: Cap One: This incentive shall not exceed thirty -seven thousand dollars ($37,000). ii. Program Payment: This incentive shall be granted as a reimbursement and shall not be included in the Program Payments summarized in Section 5.1. herein. D. Corner Amenity Feature Fountain: The City agrees that Excel, in consideration for construction of an Amenity Feature and Fountain at the southwest corner of F.M. 1709 and Carroll Avenue, shall be granted an incentive towards the cost of the Fountain as follows: Cap One: The amount of this incentive shall be capped not to exceed fifty percent (50 %) of the actual Construction Cost of the Fountain. ii. Cap Two: This incentive shall not exceed five - hundred sixteen thousand dollars ($516,000). Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. E. Carroll Median and Drive -lane Improvements: The City agrees that Excel, in consideration of constructing Carroll Median and Drive -lane Improvements, shall be granted an incentive towards the cost of the Improvements as follows: Cap One: The amount of this incentive shall be capped not to exceed One Hundred percent (100 %) of the actual Roadway Construction Costs of the Carroll Median and Drive -lane Improvements. ii. Cap Two: This incentive shall not exceed Two Hundred Thirty Seven Thousand, Five Hundred and Thirty Eight dollars ($237,538). Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. F. Zena Rucker Road and Decel Lane Construction: The City agrees that Excel, in consideration of constructing Zena Rucker Road and Decel Lane, shall be granted an incentive towards the cost of this construction as follows: Cap One: The amount of this incentive shall be capped not to exceed sixty percent (60 %) of the actual Roadway Construction Costs of Zena Rucker Road and Decel Lane after deducting the Roadway Impact Fee Credit as summarized in Section 5.B herein. ii. Cap Two: This incentive shall not exceed Forty -Four Thousand, and Ninety Seven dollars ($44,097). Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 8 of 22 Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. G. Tower Blvd. and Decel Lane Construction: The City agrees that Excel, in consideration of constructing Tower Blvd. and Decel Lane, shall be granted an incentive towards the cost of the Improvements as follows: Cap One: The amount of this incentive shall be capped not to exceed fifty percent (50 %) of the actual Construction Costs of Tower Blvd. and Decel Lane. ii. Cap Two: This incentive shall not exceed Two Hundred Sixty -Two Thousand, One Hundred and Forty -Four dollars ($262,144). Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. H. Tower Blvd. Signal: The City agrees that Excel, in consideration of constructing Tower Blvd. Signal on F.M. 1709, shall be granted an incentive towards the cost of the Improvements as follows: Cap One: This incentive shall not exceed Fifty percent (50 %) of the actual Construction Costs of Tower Blvd. Signal. ii. Cap Two: This incentive shall not exceed One Hundred Eighteen Thousand, Three Hundred and Thirty -Nine dollars ($118,339). Program Payment: The lesser of Cap One or Cap Two noted for this incentive shall be eligible for Program Payments as summarized in Section 5.1. herein. Program Payment Summary: Program Payments shall include the following: Corner Amenity Feature Fountain: As noted in Section 5.D herein. ii. Carroll Median and Drive -Lane Improvements: As noted in Section 5.E herein. Zena Rucker Road and Decel Lane: As noted in Sections 5.F herein. iv. Tower Blvd. and Decel Lane: As noted in Section 5.G herein. v. Tower Blvd. Signal: As noted in Section S.H. herein J. Program Payments: The City shall utilize revenues generated within the Development as identified below for annual Program Payments in accordance with and subject to the following: Ad Valorem Taxes: The City shall utilize a portion of the ad valorem real and business personal property taxes generated within the Development and collected by the City to contribute to the Program Payment as described in Section 5.J herein. a. Land Excluded: This incentive does not include the Ad Valorem taxes derived from the 2014 land value of the Property as determined by the Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 9 of 22 Tarrant Appraisal District, whether held in an AG exempt status or not. (i.e. the tax revenues pooled for Program Payments shall be reduced by this amount prior to payment by the City to Excel.) For the purposes of this Agreement, this amount shall be Twenty Two Thousand Five Hundred Dollars ($22,500). b. Protested Amounts Excluded: Program Payments 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. c. 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. ii. 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.J herein. These taxes must be easily segregated and attributable to the location on the Property. a. Cap: This incentive shall be capped not to exceed fifty percent (50 %) of the sales and use taxes collected annually. iii. Payment Schedule: The Program Payments shall be paid once per year within 90 days after all ad valorem and sales taxes have been paid and received by the City. Program Payments shall begin in calendar year 2016. a. Timing Example Only: • November 2014: C.O. issued • Nov — Dec 2014: Businesses operate • January 31, 2015: 2014 taxes due to Tarrant County • No program payments made in 2015 • January 31, 2016: 2015 taxes due to Tarrant County • Feb 2016: AV taxes received by City • Feb 2016: All 2015 sales taxes received by City • April 2016: First Program Payment made Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 10 of 22 iv. Proportional Payments: a. Generally: Program Payments shall be made in proportion to the percentage of Construction Requirements that have met Substantial Completion. (50% of Total Tax Revenue x percentage of Construction Requirements that have met Substantial Completion). b. Maximum Payment: Under no circumstances will the total amount of Program Payments paid under this Agreement exceed the total amount of Program Payments due multiplied by the percentage of Construction Requirements completed. c. Examples: Attached hereto as Exhibit D are scenarios in which this section could affect the Program Payments. The information included within Exhibit D is for example purposes only. v. Term: The term of this Agreement shall end upon the payment of five (5) Program Payments unless all obligations of the City are reached earlier. vi. Resolution of Appeals: Upon resolution of any appeals and subsequent payment of taxes to the City, the City shall reimburse Excel the appropriate amount due in accordance with the provisions herein. vii. 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 Excel is in compliance with the provisions of this Agreement in all material respects. 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, Excel 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 may grant Excel an extension to cure the default if Excel 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 Excel is diligently pursuing cure. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 11 of 22 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, Excel shall have such additional time to complete the applicable portion of the Eligible Improvements as may be reasonably required if Excel is diligently and faithfully pursuing the completion of the same. 9. AUDIT If necessary to determine whether the Construction Requirements in Section 4.B are met and if requested by the City, an independent firm mutually agreeable to the City and Excel (the "Auditor ") shall audit the construction associated with the Eligible Improvements, and shall determine whether Excel has met its requirements in accordance with this Agreement. The conclusion of the Auditor shall be final, binding and conclusive on the City and Excel and the City's payments shall be adjusted in accordance therewith. The City shall be responsible for the cost of the audit. 10. INDEMNIFICATION EXCEL 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 EXCEL OR ITS AGENTS, EMPLOYEES, OR CONTRACTORS, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT. 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 Excel and the City and is not intended to create or grant any rights, contractual or otherwise, in or to any other Person. Excel's obligations under this section will survive the Term of this Agreement. 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. C. Entire Agreement: This Agreement contains the entire agreement between the parties with respect to the transactions contemplated herein. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 12 of 22 D. Amendment: This Agreement may only be amended, altered, or revoked by written instrument signed by the Excel 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. Excel may assign all or part of its rights and obligations hereunder (a) to any Excel Affiliate effective upon written notice to the City, provided the Excel Affiliate agrees in writing to comply with each and every obligation of Excel in this Agreement including constructing the Eligible Improvements to a design standard consistent with the Site Plan, or (b) to any Person other than a Excel 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 Site Plan and the assignee is financially able to perform this Agreement and experienced in high quality land development. After Substantial Completion of the Minimum Construction Requirements and all other infrastructure obligations, Excel's 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 Excel contained herein as the same relate to the applicable portion of the Property conveyed to such third party. Nothing in this Section shall release Excel from its obligations under this Agreement 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: Excel: Excel Southlake I, L.P. 17140 Bernardo Center Drive, Suite 310 San Diego, California 92128 Attention: Nathan Hilbig With a copy to: The Woodmont Company 2100 W. 7th Street Fort Worth, Texas 76107 Attention: Stephen Coslik City: City of Southlake 1400 Main Street, Suite 460 Southlake, Texas 76092 Attention: Mayor Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 13 of 22 With a copy to: Taylor, Olson, Adkins, Sralla & Elam, L.L.P. 6000 Western Place, Suite 200 1 -30 at Bryant -Irvin Road Fort Worth, Texas 76107 Attention: Drew Larkin 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: Excel agrees that City shall not be liable to Excel 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: Excel represents and warrants to the City that it has the requisite authority to enter into this Agreement. 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 Excel'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 Excel, this Agreement shall prevail. Excel 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. 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. O. 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. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 14 of 22 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. 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 Excel under this Agreement against any debt (including taxes) lawfully due to City from Excel 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 Excel 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. SEVERABILITY In the event that any provision of this Agreement is illegal, invalid, or unenforceable under present or future laws, then, and in that event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the parties to this Agreement that in lieu of each clause or provision that is found to be illegal, invalid, or unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable. 16. ROUGH PROPORTIONALITY Excel 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 Development for such land and facilities. Excel 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. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 15 of 22 17. UNDOCUMENTED WORKERS Excel certifies that it 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, Excel is convicted of a violation under 8 U.S.C. § 1324a(f), Excel shall repay the amount of the public subsidy provided under this Agreement plus interest, at the rate of the prime rate plus two percent (2 %) per annum, not later than the 120th day after the date the City notifies Excel of the violation. IN WITNESS WHEREOF, the City and EXCEL SOUTHLAKE I LP, have executed this Agreement as of the I' + day of k , 2014. THE CITY OF SOUTHLAKE 41, By: John Terrell, Mayor EXCEL SOUTHLAKE I L.P., a Delaware limited partnership By: Excel Southlake LLC, a Delaware limited liability company its sole general partner By: Nathan Hilbig, Vice Pre 'dent � ptpuuHap,� ATTEST • c $ (AQJ Alicia Richardson, TR$/1C CITY SECRETARY % %e„ M1,F �_ a a• APPROVED AS TO FORM: CeZi CITY ATTORNEY Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 16 of 22 EXHIBIT A -1 Description of Property Being approximately 10.6995 acres out of a tract of land situated in the OBEDIAH W. KNIGHT SURVEY, ABSTRACT NUMBER 899, City of Southlake, Tarrant County, Texas and being more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. BEING all that certain lot, tract or parcel of land situated in the O. W. Knight Survey, Abstract No. 899 in the City of Southlake, Tarrant County, Texas, and being a part of the 19.299 acre tract of land conveyed to RCP Southlake Boulevard # 2, Ltd. by Deed and recorded in Instrument No. D203471724 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows; COMMENCING at an "x" set in concrete for the Northeast corner of a 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, Co- Trustees of the Anita H. Prade Testamentary Trust B, as recorded Volume 10315, Page 1256 of the Deed Records of Tarrant County, Texas, said point also being the Southeast corner of an 0.151 acre tract of land described Lis Pendens Notice for widening of Southlake Boulevard (FM 1709) (variable width right of way) as recorded in Volume 10316 at Page 1258 of the Deed Records of Tarrant County, Texas, and further evidence in Judgment in Absence of Objection recorded in Volume 10479 at Page 595 of the Deed Records of Tarrant County, Texas, said point of commencing also being the intersection of the South right of way line of said Southlake Boulevard (FM 1709) with the West right of way line of South Carroll Avenue (variable width right of way) (69.18 foot wide at this point); THENCE North 89 degrees 29 minutes 29 seconds West and continuing along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for a distance of 261.69 feet to a 5/8" iron rod set for corner, said point also being in a curve to the left having a central angle of 00 degrees 53 minutes 49 seconds with a radius of 11394.16 and a chord bearing South 89 degrees 57 minutes 29 seconds West at a distance of 178.38 feet; THENCE Westerly along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for an arc distance of 178.38 feet to a 5/8" iron rod set for corner to the POINT OF BEGINNING for this description, said point being in the in the West line of said Prade 49.724 acre tract, same being the Northeast corner of the aforesaid 19.299 acre tract of land conveyed to RCP Southlake Boulevard #2, Ltd., as recorded under Document No. D203471724 of the Deed Records of Tarrant County, Texas, and the Southeast corner of a called 0.226 acre tract of land conveyed to the State of Texas for right of way as recorded in Volume 9769 at Page 2091 of the Deed Records of Tarrant County, Texas. THENCE South 00 degrees 51 minutes 33 seconds East (BASIS OF BEARINGS PER TEXAS NORTH CENTRAL ZONE 4202 -NAD 83) (South 00 degrees 16 minutes 50 seconds East per deed) along the common line of said Prade 49.724 acre tract and the RCP Southlake Boulevard #2, Ltd., 19.299 acre tract for a distance of 908.67 feet to a 5/8" iron rod set for corner; THENCE North 89 degrees 41 minutes 51 seconds West and departing the common lineof said Prade 49.724 acre tract and the RCP Southlake Boulevard #2, Ltd., 19.299 acre tract, across said RCP Southlake Boulevard #2, Ltd., 19.299 acre tract, for a distance of 361.32 feet to a 5/8" iron rod set for corner; THENCE South 88 degrees 12 minutes 55 seconds West for a distance of 127.69 feet to a 5/8" iron rod set for corner in the West line of said RCP Southlake Boulevard # 2, Ltd., called 19.299 acre tract, same being the East line of a tract of land conveyed to Vision Southwest Silverlake, LLC, by deed recorded in Instrument No. D207135294 of the Real Property Records of Tarrant County, Texas; THENCE North 00 degrees 44 minutes 54 seconds West (North 00 degrees 12 minutes 53 seconds West per deed) and following said RCP Southlake Boulevard # 2, Ltd., called 19.299 acre tract, same being the East line of a tract of land conveyed to Vision Southwest Silverlake, LLC, by deed recorded in Instrument No. D207135294 of the Real Property Records of Tarrant County, Texas for a distance of 391.23 feet to a 5/8" iron rod set for corner; Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 17 of 22 EXHIBIT A -2 Description of Property — cont. THENCE North 11 degrees 34 minutes 17 seconds West (North 10 degrees 58 minutes 56 seconds West per deed) and following along the West line of said RCP Southlake Boulevard #2, Ltd. called 19.299 acre tract, and being common with the East line of a Quit Claim Deed recorded in Instrument No. D211300126 of the Real Property Records of Tarrant County, Texas, for a distance of 519.52 feet to a "x" found in concrete for the Northwest corner of said RCP Southlake Boulevard #2, Ltd. called 19.299 acre tract in the South right of way line of the aforesaid Southlake Boulevard (FM 1709); THENCE North 88 degrees 54 minutes 51 seconds East (North 89 degrees 30 minutes 53 seconds East per deed) and following along the South right of way line of aforesaid Southlake Boulevard (FM 1709) as established by said right of way deed to the State of Texas recorded in Volume 9769 at Page 2091 of the Deed Records of Tarrant County, Texas, for a distance of 446.64 feet (446.77 feet per deed) to a 1/2" iron rod found for corner, said point being the beginning of a curve to the right having a central angle of 00 degrees 41 minutes 40 seconds with a radius of 11,394.16 feet and a chord bearing North 89 degrees 09 minutes 45 seconds East at a distance of 138.09 feet; THENCE Northeasterly and continuing along the South right of way line of said Southlake Boulevard (FM 1709) and said curve to the right for an arc distance of 138.09 feet (138.05 feet per deed) to the POINT OF BEGINNING and CONTAINING 10.6995 ACRES OF LAND, more or less. BEING all that certain lot, tract or parcel of land situated in the O. W. Knight Survey, Abstract No. 899 in the City of Southlake, Tarrant County, Texas, and being a part of 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, Co- Trustees of the Anita H. Prade Testamentary Trust B, as recorded under Instrument No. D211012231 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows; BEGINNING at an "x" set in concrete for the Northeast corner of said 49.724 acre tract, said point also Ding the Southeast corner of an 0.151 acre tract of land described Lis Pendens Notice for widening of Southlake Boulevard (FM 1709) (variable width right of way) as recorded in Volume 10316 at Page 1258 of the Deed Records of Tarrant county, Texas, said point of beginning also being the intersection of the South right of way line of said Southlake Boulevard with the West right of way line of South Carroll Avenue (variable with right of way) (69.18 foot wide at this point); THENCE South 01 02' 58" East (Basis of Bearing per Texas North Central Zone 4202 State Plane Coordinates) and following along the West line of said South Carroll Avenue and being common to the East line of said Prade 49.724 acre tract for a distance of 848.86 feet to a 5/8" iron rod set for corner; THENCE North 89 41' 51" West and departing the West line of said Carroll Avenue for a distance of 442.88 feet to a 5/8" iron rod set for corner in the West line of said Prade 49.724 acre tract, same being the East line of a 19.299 acre tract of land conveyed to RCP Southlake Boulevard #2, Ltd, as recorded under Document No. D203471724 of the Deed Records of Tarrant County, Texas; THENCE North 00 51' 33" West along the common line of said Prade 49.724 acre tract and the RCP Southlake Boulevard #2, Ltd., 19.299 acre tract for a distance of 878.67 feet to a 5/8" iron rod set for the Northwest corner of said Prade 49.724 acre tract in the aforesaid South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice recorded in Volume 10316 at page 1258 of the Deed Records of Tarrant County, Texas, said point also being in a curve to the right having a central angle of 00 49" with a radius of 11394.16 and a chord bearing North 89 ° 57' 29" East at a distance of 178.38 feet; THENCE Easterly along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for an arc distance of 178.38 feet to a 5/8" iron rod set for corner; THENCE South 89 29' 29" East and continuing along said South right of way line of Southlake Boulevard (FM 1709) as reflected in said Lis Pendens Notice for a distance of 261.69 feet to the POINT OF BEGINNING AND CONTAINING 8.6060 ACRES OF LAND, more or less. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 18 of 22 EXHIBIT A -3 Description of Property — cont. OFFSITE DETENTION PARCEL: BEING all that certain lot, tract or parcel of land situated in the O. W. Knight Survey, Abstract No. 899 in the City of Southlake, Tarrant County, Texas, and being a part of the 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, co- trustees of the Anita H. Prade Testamentary Trust B, as recorded under Instrument No. D211012231 of the Deed Records of Tarrant County, Texas, and being more particularly described by metes and bounds as follows: COMMENCING at an "x" set in concrete for the Northeast corner of said 49.724 acre tract of land conveyed to Anne Shannon and Ogden K. Shannon III, co- trustees of the Anita H. Prade Testamentary Trust B, as recorded Volume 10315, Page 1256 of the Deed Records of Tarrant County, Texas, said point also being the Southeast corner of an 0.151 acre tract of land described Lis Pendens notice for widening of Southlake Boulevard (FM 1709) (variable width right of way) as recorded in Volume 10316 Page 1258 of the Deed Records of Tarrant County, Texas, and further evidence in Judgment in Absence of Objection recorded in Volume 10479 at Page 595 of the Deed Records of Tarrant County, Texas, said point of commencing also being the intersection of the South right of way line of said Southlake Boulevard (FM 1709) with the West right of way line of South Carroll Avenue (variable width right of way) (69.18 foot wide at this point); THENCE South 01 02' 58" East (basis of bearing per Texas North Central Zone 4202 State Plan coordinates) and following along the West line of said South Carroll Avenue and being common to the East line of said Prade 49.724 acre tract for a distance of 847.51 feet to a point for corner; THENCE South 00 53' 15" East and continuing along the West line of said Carroll Avenue for a distance of 60.01 feet to a 5/8" iron rod set for the point of beginning for this description. THENCE South 00 13" East and continuing along the West line of said Carroll Avenue for a distance of 237.78 feet to a point for corner, said point being the Northeast corner of a 38.000 acre tract of land conveyed to Terra/Winding Creek LLC, by Deed recorded under Instrument Number D212056812 of the Deed Records of Tarrant County, Texas; THENCE South 88 59' 25" West and departing the West line of said Carroll Avenue and following along the North line of said Terra/Winding Creek, LLC, 38.000 acre tract for a distance of 479.19 feet to a %" iron rod round for the Northwest corner of said 38.000 acre tract corner, and being in the East line of the 8.597 acre tract of land conveyed to TerraWnding Creek, LLC, by Deed recorded under County Clerks File Number D212056832 of the Deed Records of Tarrant County, Texas; THENCE North 12 31' 32" East and following along said East line of said 8.597 acre tract for a distance of 154.65 feet to a %" iron rod found for corner; THENCE North 00 46' 32" West and following along the East line of said 8.597 acre tract for a distance of 96.58 feet to an aluminum disc found for the Northeast corner of said 8.597 acre tract; THENCE South 89 49' 31" East a distance of 443.21 feet to the POINT OF BEGINNING and CONTAINING 2.5283 ACRES OF LAND, more or less. Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 19 of 22 EXHIBIT B Site Plan -- — — — — — — — — — —. ProTsT i E. SOUTHLAKE BLVD. ,xi,;ng Signal a a.n _. � � Ire - I ----- ----- i II = , „0, I , „ " U 6a I BLDG I _ zi BLDG J BLDG K Ia I I I BLDG A 1 ' 4 i 99 i � ssr f iii I all ..I ' •t . 1, _0 .,1. � 11. 1 1 - n� 1 1 ° raz g ag 7a g © :mar!. , / i t \ ) - .i fj' .-s o�� BLDG i �� ....:.T- • , I . _ 1 } BLDG B g 4 BLDG N %✓ j 1 1 ttt jjjSSS 9 9 ; 9 �, r , /� /�%ii , ' BLDG M I i J 'A -tvr 1 I } ,' ® . ', ✓ �i , ,::.r, s - � I I\ BLDG C f 7 r : - 7.2 , 1 6 13 i„ ir / ' 31 T I i I 1111 1 9 ,.3 ,II ; E z _ . . ; r /r ' I I r y • y [ –II 1 21 I i 1 1 1 11 1 { BLDG ' 1. 4 } �' F' , I I 1 1 1 1 • I I o' u' 0 BLDG E s } l A 1 a �3 99 ?_ a91 Q �� • BLDG E2 e n. "o' .,, I 'I I BLDG F - BLDG F2 =° „� 1 1 I liihm.....- , ` _} 3 9 99 `., e - . it_ t. - ® l @ a tiN' a. PROPOSED ZENA RUCKER RD. — — — — . V V 1 ° \ ,- °•r.'r "r1Rr+ 1l �� a \1 \ f -• o l t1 1; IIII 111 PORK VILLRGE - A - Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 20 of 22 Exhibit C The Amenities Park Village 10/11/2013 SOuthlake, Texas COMMON AREA ARCHITECTURAL ENHANCEMENTS a �� .. Y§ r 'S$ z a_.w ,.a �.i7WITIP.i:lWt 1 SIGNATURE FOUNTAIN (1) 3,000 SF fountain at corner of FM 1709 & Carroll Ave $ 1,100,000 2 INTERIOR FOUNTAIN (1) 600 SF fountain located east of Building "N" $ 200,000 3 LINEAR FOUNDTAIN(S) (2), totalling 84 SF, located in the "Village" area $ 60,000 4 FIRE PIT (1), located in the "Village" area $ 20,000 5 ARCHITECTURAL TOWER FEATURE (1), located in the "Rim" area $ 150,000 Architectural /decorative seating located throughout 6 SEATING development $ 100,000 7 PLANTERS - CAST IN PLACE (8), raised planters in "Village" area $ 40,000 8 PLANTERS - POTS (25), raised pot planters located in Rim and Village areas $ 100,000 (50), located at corner of FM 1709 & Carroll and 9 DECORATIVE BOLLARDS throughout the "Village" area $ 50,000 (95,000 sf), inclusive of upcharge for colored concrete in 10 CONCRETE - COLOR UPCHARGE "Village" area. $ 427,500 11 PAVERS / STAMPED CONCRETE (30,000 sf), located throughout the "Village" area $ 210,000 12 RETAINING WALLS - CARROLL AVE Architectural planters and retaining walls $ 248,005 13 SCREEN WALLS - ZENA RUCKER RD Architectural screenwalls on Zena Rucker Rd $ 125,000 14 DECORATIVE LIGHTING (30), decorative light poles and fixtures. $ 180,000 15 DENTENTION POND AMENITIES Landscaping, lighting, seating and pond aeriator $ 132,000 16 LANDSCAPING /IRRIGATION Throughout project $ 650,000 TOTAL COST $ 3,792,505 Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 21 of 22 Exhibit D Proportional Payment Scenarios THE FOLLOWING ARE FOR EXAMPLE PURPOSES ONLY. The following examples are for purposes of clarification only. For the purposes of these examples, we will assume the City's total Program Payments would be $500,000, receiving $200,000 in Total Tax Revenue per year (TTR), unless otherwise noted, and due to the 50% cap (as described in Sections 5.1.i.c. and 5.J.ii.a.), paying $100,000 per year over five years. o Scenario 1 (Proportional Payment): Excel only constructs 80% of the Construction Requirements. The City receives $200,000 in TTR from the project. Since there is a cap of 50% of the TTR, where normally the Program Payment for that year would be $100,000, for this year it would only be $80,000 because of the proportional payment provision. o Scenario 2 (Catch up): Year one is as represented in Scenario 1. In year two, Excel completes 100% of the Construction Requirements. The City receives $300,000 in TTR from the project. Since there is a cap of 50% of the TTR, the Program Payment for that year would be $150,000, in essence "catching up" the amount short the prior year. o Scenario 3 (Early Payment): The City receives TTR of $400,000 each of the first three years resulting in a Program Payment of $200,000 in years 1 and 2, and $100,000 in year three, thus fulfilling the total required Program Payments of $500,000. o Scenario 4 (Reduced Total Payment): Excel only completes 80% of the Construction requirements for the first four years, then 100% for the fifth year. The City only receives TTR of $200,000 each year. Where normally the Program Payment would be $100,000, the Proportional Payment provision reduces the Payment to $80,000 for the first four years and $100,000 for the fifth year, resulting in a Program Payments totaling only $420,000 for the five year term. o Scenario 5 (Total Proportional Payment): In a scenario where Excel never completes the Construction Requirements, the total Program Payments shall be in proportion to the amount completed. i.e. if they only complete 80% of the required minimum construction for the term of the Agreement, the City's total Program Payments would be $400,000 (80% of $500,000). o Scenario 6 (Maximum Proportional Payment): Assume the City receives $300,000 in TTR from the project in the first 3 years and 80% of the Construction Requirements have been met. With the 50% cap of the TTR, Program Payments for the first 3 years would be $120,000 each year, for a total of $360,000. Assume in year four, the Construction Requirements are still at 80 %. For year four, Excel is only entitled to $40,000 because any amount higher would exceed 80% of the total Program Payments (80% x $500,000 = $400,000). Excel: Park Village - 380 Agreement (Approved March 4, 2014) Page 22 of 22