Contract - M4 Greenlawn LLC and Type B Corporation - 2/14/2019 DEVELOPMENT AGREEMENT
This Development Agreement("Aeeemen[") is entered into to be effective as of the It4l.
day of �L , 2019 (the "Effective Date"), by and among the City of Round Rock,
Texas (the "City"), a home Wile city organized under the laws of the State of Texas, the Round
Rock Transportation and Economic Development Corporation, a "Type B corporation" created
under the authority of Chapter 501, Texas Local Government Code (the "TED Corp."), and M4
Greenlawn, LLC, a California limited liability company (the "Developer"). The City, the TED
Corp., and the Developer are collectively,the "Parties" to this Agreement.
RECITALS
WHEREAS,the Developer is a developer of commercial developments; and
WHEREAS, the Developer is the owner of 65.492 acres of land(the "Prop located
south of SH 45 and north of Greenlawn Blvd. as described in Exhibit A; and
WHEREAS,the Developer is considering the construction of a master-planned mixed-use
project(the "Proiect")on the Property; and
WHEREAS, it is currently envisioned that the Project will include approximately one
million (1,000,000) square feet of commercial office, hospitality, retail, service, residential, and
parking structure construction(collectively,the"Improvements'); and
WHEREAS, the Developer intends to spend or cause to be spent over Two Hundred
Million Dollars ($200,000,000.00) to acquire, design and develop the Project and any other
improvements thereon at full buildout(including all hard and soft costs); and
WHEREAS, the Project is anticipated to add millions of dollars in property tax base,
generate millions of dollars in new sales tax and property tax revenues in the City; and
WHEREAS,the City and TED Corp. desire development such as the Project to locate in
the City; and
WHEREAS, the City and/or TED Corp., as applicable, are willing to consider making
expenditures to reimburse the Developer up to Twelve Million Five Hundred Sixty Thousand
Dollars ($12,560,000.00) (the "Maximum Reimbursement Amount") for the cost of the Public
Improvements,as defined herein, necessary to promote or develop the Project in the City; and
WHEREAS, the City has adopted Resolution No. R-2019-. (the "Authorizine
Resolution"), authorizing the Mayor to enter into this Agreement on behalf of the City with the
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Developer in recognition of the positive economic benefits to the City through development of the
Project on the Property; and
WHEREAS, the TED Corp. has authorized its President to enter into this Agreement on
behalf of TED Corp. with the Developer in recognition of the positive economic benefits to the
City through development of the Project on the Property; and
WHEREAS, the TED Corp. has found that the Public Improvements are required or
suitable to promote or develop new business enterprises,pursuant to §501.103 of the Texas Local
Government Code; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged,the Parties hereby agree as follows:
ARTICLE I
PURPOSE AND INTERPRETATION
1.01 Objectives.
(a) The Developer has designated the city of Round Rock,Texas and the Property as a
potential location for the Project.The Developer or its affiliates currently owns and operates other
commercial projects in multiple locations in several states. The Developer sees an opportunity to
expand its existing presence in the City,and to play a significant role in the future development of
the City. The City believes that the development of the Project will attract additional businesses,
development,and investment in the City in particular and Williamson County in general.The City
recognizes that development of the Project will likely serve as an economic stimulus to the area,
resulting in significant job growth and increased tax revenue for the City, the Round Rock ISD,
and Williamson County.
(b) The Parties acknowledge that the present infrastructure of streets and utilities in the
vicinity of the Property is insufficient to support the Project. In order to encourage the Developer
to locate the Project on the Property, the Developer has requested that the City and/or the TED
Corp. reimburse the Developer for the cost of the Public Improvements, up to the Maximum
Reimbursement Amount, as described in Section 6.03.
1.02 Concept and Structure. Development of the Property will include the Public
Improvements and the Project, which may occur on one or more separately platted lots or other
legal parcels. The Developer will be responsible for the development and construction of the
Project and Public Improvements. The Public Improvements will be financed and constructed as
set forth in Sections 6.02 and 6.03. The Developer will operate and maintain the Project.
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1.03 Interpretation. In this Agreement,unless a clear contrary intention appears;
(a) the singular number includes the plural number and vice versa;
(b) reference to any Party includes such Party's successors and assigns but, if
applicable,only if such successors and assigns are permitted by this Agreement, and reference to
a Party in a particular capacity excludes such Party in any other capacity or individually;
(c) reference to any agreement, document or instrument means such agreement,
document or instrument as amended or modified and in effect from time to time in accordance
with the terms thereof,
(d) "hereunder", "hereof', "hereto", and words of similar import shall be deemed
references to this Agreement as a whole and not to any particular article,section or other provision
thereof,
(e) "including" (and with correlative meaning "include") means including without
limiting the generality of any description preceding such term; and
(t) reference to any constitutional, statutory or regulatory provision means such
provision as it exists on the Effective Date and any amendatory provision thereof or supplemental
provision thereto.
1.04 Legal Representation of the Parties.This Agreement was negotiated by the Parties hereto
with the benefit of legal representation and any rules of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any Party shall not apply.
ARTICLE II
DEFINITIONS
2.01 Definitions. All capitalized terms used in this Agreement shall have the meanings
ascribed to them in this Article II, or as otherwise provided herein.
"Agreement"means this Development Agreement by and among the City,the TED Corp.,
and the Developer.
"City"means the City of Round Rock,Texas.
"City Council"means the city council of the City.
"Developer" means M4 Greer lawn, LLC, a California limited liability company.
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"Greenlawn Blvd. Improvements" mean the improvements to Crreenlawn Blvd. as
described in Exhibit D.
"Improvements" mean the approximately 1,000,000 square feet of commercial office,
hospitality, retail, service,residential,and parking structure construction.
"Maximum Reimbursement Amount"means $12,560,000.
"Parties"means the City,the TED Corp., and the Developer.
"Party"means the City or the TED Corp. or the Developer.
"Project" means a master-planned mixed-use project as described in Article V. The
Project does not include the Public Improvements or the Greenlawn Blvd. Improvements.
"Property"means the real property described and shown on Exhibit A.
"Public Improvements" means the public improvements described in Exhibit B and
includes any improvement or facility together with its associated public site, right-of-way or
easement necessary to provide transportation, drainage,public utilities,or similar essential public
services and facilities,for which the City will ultimately assume the responsibility for maintenance
and operation or ownership, or both. This tern also includes the following: drainage facilities,
streets and other rights-of-way, potable water system, reuse water system, sanitary sewerage
system, survey monuments, illumination including street lights, traffic control signs and traffic
signalization, fire hydrants, sidewalks and curb ramps, street name signs, traffic control signs,
street pavement markings, and parkland and open space improvements.
"Required Investment Amount" means Two Hundred Million Dollars
($200,000,000.00).
"TED Corp." means the Round Rock Transportation and Economic Development
Corporation.
ARTICLE III
GRANT OF EASEMENTS
3.01 Public Improvement Easements. The Parties agree that the transportation and utility
facilities currently in existence are not adequate to provide acceptable service to the Property and
the Project.It is therefore understood that the Public Improvements will be necessary to adequately
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serve the Property and Project. It is also understood that it may become necessary or convenient
to install and/or construct the Public Improvements on, over, across, and/or under the Property in
a location and design reasonably acceptable to Developer. Upon completion of the Public
Improvements and payment of the Maximum Reimbursement Amount to Developer from the City,
Developer agrees to convey to the City, at no charge, (a) the land under the applicable roads and
sidewalks, the locations of which are further depicted in Exhibit B attached hereto, that are part
of the Public Improvements and(b)all necessary easements in the location of the applicable Public
Improvements (including the water, wastewater, and storm sewer utilities and the landscape and
irrigation in the medians), in each case to the extent reasonably required for the City's use and
maintenance of the Public Improvements and Developer shall dedicate such Public Improvements
to the City via the plat for the Property and the City shall accept same upon completion of the
applicable Public Improvements and inspection of same. In addition, in the event Developer
requires access to or the use of adjacent property owned by third parties for the construction,use,
or maintenance of the Public Improvements, the City will cooperate with and assist Developer in
either acquiring easements over such property owned by third parties and in pursuing
condemnation of such third-party property as reasonably necessary to permit the construction,use
and maintenance of the Public Improvements. Notwithstanding the foregoing, Developer shall
have the option to purchase the land under the applicable roads,the locations of which are further
depicted in Exhibit B attached hereto, for the lesser of(a) the appraised value of the applicable
land and (b) Twelve Million Five Hundred Sixty Thousand Dollars ($12,560,000.00) (the
"Purchase Option")by providing written notice to the City(the"Purchase Notice'). If Developer
exercises the Purchase Option, upon conveyance of the roadways to Developer, such roads will
become private roads. Along with the Purchase Notice, Developer shall provide a purchase and
sale agreement (the "PSA") to the City. Upon Developer's exercise of the Purchase Option, the
Parties agree that they will work together in good faith to execute the PSA and the City agrees to
convey the land under the applicable roads to Developer pursuant to the terms and conditions of
the PSA. The foregoing Purchase Option shall survive the expiration or termination of this
Agreement and such Purchase Option shall be set forth in the dedication deed to the City at such
time as Developer initially dedicates the roadways to the City. Notwithstanding the foregoing,
Developer shall receive a credit against the Purchase Option equal to the sum of the Hurdle
Reimbursement Amounts,to the extent that the Hurdle Reimbursement Amounts are paid to City
and/or TED Corp., as applicable,by Developer pursuant to Section 6.03 hereof.
ARTICLE IV
ZONING OF THE PROPERTY
4.01 Current Zoning. The Property is currently zoned general commercial(Cl-a).The current
zoning is inconsistent with the plans to develop the mixed-use Project on the Property. The Parties
agree that they will work together in good faith on a fast-track basis to re-zone the Property with
abase zoning of MU-0 along with a Planned Unit Development(the"Project PUD")for land uses
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that are consistent with the terms of this Agreement and the design intent of the Project,with uses
and restrictions at minimum described by the Dell/La Frontera Mixed-Use section of Round
Rock's General Plan 2020. Regardless of anything herein to the contrary, nothing herein shall be
construed as a contractual obligation on the part of the City to rezone the Property. Furthermore,
the City agrees to conduct concurrent reviews of all submitted proposals and applications
including, but not limited to the Project PUD, concept plan, sub division plan and infrastructure
improvement plan.
ARTICLE V
THE PROJECT
5.01 General Description. The Project will be planned, developed and constructed on the
Property by Developer in phases as determined by Developer and otherwise in accordance with
any permits and approvals from any applicable governmental authorities. The Project will be a
master-planned, mixed-use development which will contain a total of approximately one million
(1,000,000) square feet of Improvements at such time as the Project is fully constructed, to be
comprised of residential, retail, and office space. In addition, the Project may include
entertainment, recreation, and other uses of the Property permitted by the Project PUD as may be
amended from time to time.The Project will be developed in phases, as determined by Developer
based on market conditions and in Developer's sole and absolute discretion. Developer may sell
or lease portions of the Property to third parties for such third party to develop or manage such
portion of the Project, and such conveyance or lease shall not be considered an assignment of this
Agreement.
5.02 Amount of Investment.The Developer agrees to spend or cause to be spent a cumulative
total of at least Two Hundred Million Dollars ($200,000,000.00) (the "Required Investment
Amount")in a combination of the following: (i) the acquisition of the Property; (ii)the design and
permitting of the Project; (iii) and the construction of the Project and any and all other
improvements thereon at full buildout(including all hard and soft costs).The Required Investment
Amount does not include any costs of the Greenlawn Blvd. Improvements or the Maximum
Reimbursement Amount.
5.03 Jobs. Developer estimates that the Project, upon full build-out, will result in the creation
of primary and secondary jobs that will total approximately five thousand(5,000).
5.04 Construction Schedule. The Parties agree that it is their intention that, subject to
adjustments for Events of Force Majeure, (i) the Public Improvements will be substantially
completed no later than the third anniversary of the Effective Date of this Agreement, (ii)
Developer will obtain a temporary certificate of occupancy (or similar) for shell improvements
totaling at least 120,000 gross square feet no later than the third anniversary of the Effective Date
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of this Agreement, (iii)the Developer will obtain a temporary certificate of occupancy(or similar)
for shell improvements totaling at least 250,000 gross square feet no later than the tenth
anniversary of the Effective Date of this Agreement, and(iv)the construction of the entire Project
totaling at least 1,000,000 gross square feet will be completed (as evidenced by temporary
certificates of occupancy (or similar) for the shell improvements) no later than the twentieth
anniversary of the Effective Date of this Agreement. The Parties further agree that it is their
intention to use their best efforts to work together to finalize a reasonable development schedule
no later than September 30,2019 for the design and construction of the Public Improvements and
the Greenlawn Blvd. Improvements that are consistent with the aforesaid goals (the "Public
Improvement Construction Schedule").
ARTICLE VI
PUBLIC IMPROVEMENTS
6.01 General.It is understood that extension and improvements to the transportation and utility
facilities and the other Public Improvements will be necessary to adequately serve the Property
and Project.
6.02 Public Improvements. The Public Improvements required for the Project are described
in Exhibit B. The Developer shall be responsible for the design and construction of the Public
Improvements. Developer shall design and construct the Public Improvements in accordance with
the ordinances and regulations of the City and the City agrees to utilize its expedited review process
related to the design, permitting, and inspection process for the Public Improvements. The design
of the Public Improvements shall be subject to the approval of the City in accordance with its
standard procedures for the expedited review process, which approval shall not be unreasonably
delayed, conditioned or withheld.The construction of the Public Improvements shall be subject to
the inspection of the City, which inspection and approval shall not be unreasonably delayed,
conditioned or withheld. The City agrees to expedite all review and approval procedures. The
Parties agree to utilize their best efforts to complete the construction of the Public Improvements
in accordance with the Public Improvement Construction Schedule described in Section 5.04.
6.03 Cost of Public Improvements.Subject to the following,the Developer shall initially bear
the cost of designing and constructing the Public Improvements.Upon completion of any segment
of the Public Improvements categories listed on Exhibit B and final acceptance of such segment
of the Public Improvements category by the City, the City will notify the TED Corp. of the
completion and acceptance of same, and the City and/or TED Corp.,as applicable,shall reimburse
Developer within a commercially reasonable period of time for the value of such completed
segment of the Public Improvements category, as such category value is described on Exhibit B
attached hereto, but not to exceed the Maximum Reimbursement Amount. The City agrees to
expedite all inspection and acceptance procedures for the Public Improvements.
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Notwithstanding the foregoing, in the event the Developer does not substantially complete
pursuant to the terms contained herein:
a. the 120,000 gross square feet of Improvements on or before the second (2°a) anniversary
of the deadline set forth in Section 5.04(ii)above(subject to adjustment for Events of Force
Majeure or as otherwise reasonably agreed in writing by the Parties hereto) (such date
being the "First Hurdle Date"), then the Developer shall refund to the City and/or TED
Corp. as applicable, a proportionate share of the Maximum Reimbursement Amount
previously delivered to Developer (the "First Hurdle Reimbursement Amount"). The
calculation of the First Hurdle Reimbursement Amount is described in Exhibit E attached
hereto;
b. the 250,000 gross square feet of Improvements on or before the deadline set forth in
Section 5.04(iii)above(subject to adjustment for Events of Force Majeure or as otherwise
reasonably agreed in writing by the Parties hereto) (such date being the "Second Hurdle
Date"), then the Developer shall refund to the City and/or TED Corp. as applicable, a
proportionate share of the Maximum Reimbursement Amount previously delivered to
Developer(the"Second Hurdle Reimbursement Amount"). The calculation of the Second
Hurdle Reimbursement Amount is described in Exhibit E attached hereto; or
c. all of the Improvements on or before the deadline set forth in Section 5.04(iv) above
(subject to adjustment for Events of Force Majeure or as otherwise agreed in writing by
the Parties hereto) (such date being the "Third Hurdle Date"), then the Developer shall
refund to the City and/or TED Corp. as applicable, a proportionate share of the Maximum
Reimbursement Amount previously delivered to Developer (the "Third Hurdle
Reimbursement Amount"). The calculation of the Third Hurdle Reimbursement Amount
is described in Exhibit E attached hereto.
The First Hurdle Date,the Second Hurdle Date,and the Third Hurdle date are collectively referred
to as the "Hurdle Dates" and each may be individually referred to a "Hurdle Date". The First
Hurdle Reimbursement Amount, the Second Hurdle Reimbursement Amount, and the Third
Hurdle Reimbursement Amount are collectively referred to as the "Hurdle Reimbursement
Amounts"and each may be individually referred to as a"Hurdle Reimbursement Amount".
In the event Developer is required to refund any portion of the Maximum Reimbursement Amount
pursuant to Section 6.03(a),Section 6.03(6),or Section 6.03(c)due to failure to achieve substantial
completion of the required gross square footage for the applicable Hurdle Date, at such time as
Developer achieves 100%of the required gross square footage required for the applicable Hurdle
Date,Developer may submit to the City and/or TED Corp. as applicable, a Notice that such gross
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square footage has been constructed by Developer and request repayment of the amount previously
refunded by Developer to the City and/or TED Corp,as applicable(excluding any Interest Amount
paid to the City and/or TED Corp. with such refunded amount), plus the Interest Amount due to
Developer from the City and/or TED Corp calculated from the date Developer pays any of the
Reimbursement Amounts to the City and/or TED Corp.,as applicable,to the date City and/or TED
Corp., as applicable, refunds any amount to Developer as described in this Section. Any such
Notice requesting repayment of the amount previously refunded by Developer pursuant to this
paragraph following the Third Hurdle Date must be submitted on or before the 2"a anniversary of
the Third Hurdle Date.
Any amounts refunded by the Developer to the City and/or TED Corp. as applicable pursuant to
this Section 6.03, as well as any amounts recouped by the Developer from the City and/or TED
Corp., as applicable,pursuant to this Section 6.03 shall include an interest payment in an amount
equal to 2.5%per year of the amount being refunded or repaid, non-cumulative and compounded
annually(the"Interest Amounf�.
Any such amounts due by Developer to City and/or TED Corp. pursuant to this Section shall be
payable within ninety(90)days of Developer's receipt of written Notice from the City and/or TED
Corp., as applicable, which request must be made, if at all, within thirty(30) days following the
applicable Hurdle Date. Any such amounts due by the City and/or TED Corp., as applicable,
pursuant to this Section shall be payable within ninety(90)days of the City's and/or TED Corp's
receipt of written Notice from the Developer evidencing achievement of 100%of the gross square
footage requirements for the latest Hurdle Date to have occurred.
6.04 Greenlawn Blvd. Improvements. The City shall be responsible for the design and
construction of improvements to Greenlawn Boulevard(the"Greenlawn Blvd. hnurovements")as
further described in Exhibit D.City shall design and construct the Greenlawn Blvd.Improvements
within a commercially reasonable period of time. Upon completion of the construction documents
and specifications for the Greenlawn Blvd. Improvements (the "Greenlawn Blvd. Construction
Documents"), City shall submit the Greenlawn Blvd. Construction Documents to a general
contractor for bidding purposes. Within a commercially reasonable period of time after selecting
the a general contractor, City shall cause the general contractor to construct the Greenlawn Blvd.
Improvements in accordance with the Greenlawn Blvd. Construction Documents.The City agrees
to use its their best efforts to complete the construction of the Greenlawn Blvd. Improvements in
accordance with the Public Improvement Construction Schedule.
6.05 Greenlawn Blvd Improvements Costs. Notwithstanding Developer's obligations in
Section 6.04, the City and/or TED Corp., as applicable, shall be responsible for reimbursing the
Developer for the full total cost of the Greenlawn Blvd. Improvements (the "Greenlawn Blvd.
Reimbursement Amount') including, but not limited to, all hard and soft costs of construction,
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design fees, and contractors' fees. Upon completion of any segment of the Greenlawn Blvd.
Improvement categories, and final acceptance of such segment of the Greenlawn Blvd.
Improvements by the City, the City will notify the TED Corp. of the completion and acceptance
of same, and the City and/or TED Corp., as applicable, shall reimburse Developer within a
commercially reasonable period of time for the Greenlawn Blvd.Reimbursement Amount for such
segment of the Greenlawn Blvd. Improvements.
6.06 Sidewalk Use. As part of the Public Improvements, Developer agrees to construct public
sidewalks that are at least five feet (5) wide. If Developer elects to construct sidewalks that are
wider than five feet(5'),then the Developer shall have the right to use that portion of the sidewalk
in excess of five fee(5')wide for any and all uses not in violation of applicable laws.
VII
ADDITIONAL CONSIDERATION
7.01 Greenlawn Right-of-Way. Within sixty(60) days of receipt of written request from the
City(the"Conveyance Date"), Developer agrees to convey to the City,pursuant to the terms and
conditions contained in this section,additional right-of-way along Greenlawn Boulevard necessary
for the future widening and improvement of Greenlawn Boulevard (the "Greenlawn Right-of-
WaY').The Greenlawn Right-of-Way shall in no event exceed more than Twenty-Three Thousand
Five Hundred Twenty-Two (23,522) square feet in the aggregate or ten (10) feet in width in any
location from the Property's eastern border as identified on the ALTA survey prepared by
Chaparral Professional Land Surveying, Inc. dated May 24, 2007 attached hereto as Exhibit C.
Developer and City shall cooperate in good faith and enter into a First Amendment to this
Agreement to further define and finalize the location, width, and size(not to exceed the limits set
forth herein)of the Greenlawn Right-of-Way. City shall pay to developer the fair market value for
the Greenlawn Right-of-Way upon the Conveyance Date as determined by an appraisal dated
within ninety (90) days of the Conveyance Date by a MAI appraiser mutually agreed upon in
writing by Developer and City(the"Fair Market Value").
7.02 Greenlawn Boulevard—General. Such First Amendment to this Agreement referenced
in Section 7.01 above shall incorporate the foregoing terms. The Greenlawn Blvd. Improvements
shall not be part of the Public Improvements described herein and the Maximum Reimbursement
Amount shall not apply to such Greenlawn Blvd. Improvements. The design, construction, and
payment for the Greenlawn Blvd. Improvements shall be in accordance with Sections 6.04 and
6.05.
ARTICLE VIII
MISCELLANEOUS
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8.01 Mutual Assistance. The City, the TED Corp. and the Developer will do all things
reasonably necessary or appropriate to carry out the terms and provisions of this Agreement, and
to aid and assist each other in carrying out such terms and provisions in order to put each other in
the same economic condition contemplated by this Agreement regardless of any changes in public
policy,the law, or taxes or assessments attributable to the Property.
8.02 Default; Remedies.
(a) No Party shall be in default under this Agreement until Notice of the alleged failure
of such Party to perform has been given(which Notice shall set forth in reasonable detail the nature
of the alleged failure)and until such Party has been given a reasonable time to cure or to commence
efforts to cure the alleged failure, such reasonable time determined based on the nature of the
alleged failure,but in no event less than 30 days or more than 180 days after written Notice of the
alleged failure has been given. In addition, no Party shall be in default under this Agreement for
a non-monetary default if, within the applicable cure period, the Party to whom the Notice was
given or another Party begins performance and thereafter diligently and continuously pursues
performance until the alleged failure has been cured.
(b) If a Party is in default beyond any applicable notice and cure period, the aggrieved
Party may, at its option and without prejudice to any other right or remedy under this Agreement,
seek any relief available at law or in equity, including, but not limited to, an action under the
Uniform Declaratory Judgement Act, specific performance, mandamus, and injunctive relief.
Notwithstanding the foregoing,however,no default under this Agreement shall:
(i) entitle the aggrieved Party to terminate this Agreement; or
(ii) adversely affect or impair the current or future obligations of the City to
provide water or sewer service or any other service to the Property or Project; or
(iii) entitle the aggrieved Party to seek or recover consequential monetary
damages of any kind.
(c) In the event any legal action or proceeding is commenced between the Parties to
enforce provisions of this Agreement and recover damages for breach,the prevailing party in such
legal action shall be entitled to recover its actual reasonable attorney's fees and expenses incurred
by reason of such action, to the extent allowed by law.
8.03 Undocumented Workers. The Developer certifies that, during the term of this
Agreement, it does not and will not knowingly employ an undocumented worker for the
construction of the Public hnprovements in accordance with Chapter 2264 of the Texas
Government Code, as amended. If during the term of this Agreement,the Developer is convicted
of a violation under 8 U.S.C. § 1324a(f), the Developer shall repay the amount of the public
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subsidy provided under this Agreement as required bylaw. Pursuant to Section 2264.101, Texas
Government Code,a business is not liable for a violation of Chapter 2264 by a subsidiary,affiliate,
or franchisee of the business,or by a person with whom the business contracts.
8.04 Binding Effect. This Agreement shall be binding on and inure to the benefit of the Parties,
their respective successors and assigns.
8.05 Assignment. Except as otherwise provided in this section,the Developer may not assign
all or part of its rights and obligations under this Agreement to a third party without the express
written consent of the City, which consent shall not be unreasonably withheld, conditioned or
delayed.Notwithstanding the foregoing,the Developer may assign(without the City's consent)all
or part of its rights and obligations under this Agreement to an entity that is controlled by or under
common control with the Developer(a"Permitted Assi nee'). Developer shall provide a copy of
any such assignment to the City within fifteen(15) days after the effective date of the assignment.
The City may not assign this Agreement to an unrelated third party but may assignment to a City-
created economic development corporation or other City-created entity and shall provide a copy
of the assignment to the Developer within fifteen (15) days after the effective date of the
assignment to such permitted assignee.Nothing herein shall prevent Developer fiom conveying or
leasing all or any portion of the Property or Project to a third party(e.g., sale of office building,
ground lease of pad site;leasing of residential units or commercial space; sale of land to developer
of hotels or multifamily,etc.),and no such conveyance or lease shall be considered an Assignment
of this Agreement unless such third party expressly assumes the rights and obligations of
Developer hereunder in accordance with this Section 8.05.
8.06 Amendment. This Agreement may be amended only by the mutual written agreement of
the Parties. As the Parties continue work on the pre-development activities contemplated herein
and prepare the various agreements, plans, applications, and approvals referenced herein in
connection with the design and construction of the Public Improvements and the design,
development, and financing of the Project, the parties will cooperate in good faith, as necessary,
to finalize such documents,and,if necessary,to amend this Agreement to reflect the terns of such
agreements,plans,applications, and approvals.
8.07 Notice. Any notice and or statement required and permitted to be delivered shall be in
writing and be deemed delivered by actual delivery,by electronic mail,or by depositing the same
in the United States mail,certified with return receipt requested,postage prepaid, addressed to the
appropriate party at the following addresses (each,a"Notice"):
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If to City:
City of Round Rock
221 E. Main Street
Round Rock,TX 78664
Attn: City Manager
Phone: (512)218-5400
Email: citvmanaaernromdrocktexas.eov
With a required copy to:
Sheets&Crossfield
309 E. Main Street
Round Rock,TX 78664
Attn: Stephan L. Sheets
Phone: (512)255-8877
Email: steve(ascrrlaw.com
If to the Developer:
M4 Greenlawn, LLC
c/o Mark IV Capital
4450 MacArthur Blvd., Second Floor
Newport Beach, CA 92660
Attn: Regional Vice President
Phone:949-509-1444
Email:jbasie(a)markiv.com
With a required copy to:
M4 Greenlawn, LLC
c/o Mark IV Capital
4450 MacArthur Blvd., Second Floor
Newport Beach, CA 92660
Attn: Chief Executive Officer
Phone:949-509-1444
Email:UeateAmarkiv.com
Either Party may designate a different address at any time upon written Notice to the other Parties.
8.08 Interpretation. Each of the Parties has been represented by counsel of their choosing in
the negotiation and preparation of this Agreement. Regardless of which party prepared the initial
draft of this Agreement,this Agreement shall,in the event of any dispute,however its meaning or
application,be interpreted fairly and reasonably and neither more strongly for or against any Party.
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8.09 Applicable Law. This Agreement is made, and shall be construed and interpreted, under
the laws of the State of Texas and venue shall lie in Williamson County,Texas.
8.10 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event,it is the intention of the Parties that
the remainder of this Agreement shall not be affected. It is also the intention of the Parties of this
Agreement that in lieu of each clause and provision that is found to be illegal, invalid or
unenforceable, a provision be added to this Agreement which is legal,valid or enforceable and is
as similar in terms as possible to the provision found to be illegal,invalid or unenforceable.
8.11 Paragraph Headings. The paragraph headings contained in this Agreement are for
convenience only and will in no way enlarge or limit the scope or meaning of the various and
several paragraphs.
8.12 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges, or causes of action upon any third party.
8.13 Force Majeure. Except as otherwise provided herein, an equitable adjustment shall be
made for delay or failure in performing if such delay or failure is caused,prevented, or restricted
by conditions beyond that Party's reasonable control (each, an "Event of Force Majeure"). An
Event of Force Majeure for the purposes of this Agreement shall include, but not be limited to,
acts of God, fire; explosion, vandalism; storm or similar occurrences; orders or ads of military or
civil authority; changes in law, rules, or regulations outside the control of the affected Party,
national emergencies or insurrections; riots; ads of terrorism; or supplier failures, shortages or
breach or delay; unusual weather events; a recession; and unusual delays in obtaining City
approvals of plats,permits, or other development approvals required to construct and operate the
Project. For purpose of this Section 8.13, "recession" shall mean a recession consisting of two(2)
consecutive quarters of negative economic growth as measured by the gross domestic product for
the Austin-Round Rock TX metropolitan area according to the U.S. Department of Commerce,
Bureau of Economic Analysis. Except as otherwise expressly provided herein, there shall be an
equitable adjustment allowed for performance under this Agreement as the result of any Event of
Force Majeure (it being agreed that a day-for-day adjustment for each day of an Event of Force
Majeure shall be deemed equitable).
8.14 Exhibits. The following exhibits are attached and incorporated by reference for all
purposes:
Exhibit A: Property Description and Depiction
Exhibit B: Public Improvements
Exhibit C: ALTA Survey
Exhibit D: Greenlawn Blvd. Improvements
Exhibit E: Calculation of the Hurdle Reimbursement Amounts
8.15 No Joint Venture. It is acknowledged and agreed by the Parties that the terms hereof are
not intended to and shall not be deemed to create any partnership or joint venture among the
Parties. The City, its past, present and future officers, elected officials, employees and agents of
14
the City,do not assume any responsibilities or liabilities to any third party in connection with the
development of the Project or the design, construction or operation of any portion of the Project.
8.16 Term. This Agreement shall become enforceable upon its Effective Date and shall expire
upon the earlier of(i) the 90' day following the 20' anniversary of the Effective Date or (ii)
Developer's substantial completion of the Public Improvements and Greenlawn Blvd.
Improvements and the City's acceptance of same and the substantial completion of the Project in
accordance with Section 5.01 and Section 5.02 on or before the construction deadlines
contemplated by Section 5.04.
]REMAINDER OF PAGE INTENTIONALLY BLANK]
15
EXECUTED to be effective as of the Effective Date.
CITY OF ROUND ROCK,TEXAS,
a home rule city and municipal corporation
By:
Craig M gan,M r
APPR V as to form:
Stephan q
Sheets, City Attorney
16
ROUND ROCK TRANSPORTATION
AND ECONOMIC DEVELOPMENT
CORPORATION,
By: N m r
Craig Mor an, Presi rt
APP Das to form.
Stephan 4. Sheets, Corporation Attorney
17
M4 GREENLAWN,LLC
a Califomia limited liability company
Name: Paul Cate
Title: Chief Executive Officer
Date: Z
>s
EXHIBIT A
PROPERTY DESCRIPTION AND DEPICTION
[See attached]
19
EXHIBIT"A*
PROPERTY DESCRIPTION
ONm:s12I-0967
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Professional Land Surveying,Inc. Fec SIM
Surveying and Mapping 2e2807Mead
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OSA92 ACRES
TRAVIS AND WILLIAMSON COUNTIES,TEXAS
A DESCRIPTION OF 65.492 ACRES OF LAND(APPROX. 2,852,822 S.F.)IN THE
MEMUCAN HUNT SURVEY,ABSTRACT NO.2713,AND THE SOCRATES DARLING
SURVEY NO. 102, ABSTRACT NO. 232 IN BOTH TRAVIS AND WILLIAMSON
COUNTIES,TEXAS,BEING A PORTION OF A 120.656 ACRE TRACT DESCRIBED
IN A GENERAL WARRANTY DEED TO DELL COMPUTER HOLDINGS,L.P.,DATED
MAY 14, 1983, AND RECORDED IN BOTH VOLUME 2306, PAGE 863 OF THE
OFFICIAL RECORDS,WILLIAMSON COUNTY,AND VOLUME 11938.PAGE 1764 OF
THE REAL PROPERTY RECORDS OF TRAVIS COUNTY, TEXAS; SAID 65.492
ACRES BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOWS:
BEGINNING at a Ill'rebar Whh cap set M the south dghtcFway Ane of Texas Slate
Highway 45 (rightn6way width varies), and Ne east line of Lot 2, Block 1, Socrales
Addition,Phase 2,a subdidsicn of record In Volume 96,Page 181 of the Flat Records
of Travis County,and In Document No.9605575 of the Official Records of Williamson
County, Texas, for the southwest comer of a 5.990 acre tract described as T%DDT
Parcel 104 NO 1 In Document No. 2002099984 of Na Official Records of Williamson
County,Texas,from which a TxDOT Type II monument found beers South 76.08'14'
West,a distance of 763.49%at;
THENCE with the south dghta4wey line of State Highway 45 and the south line of
T2DOT Parcel 104 Pad 1 ant war and across Ne 120.658 sere"of,the following a4
(6)ooursoa:
1. North 78'08'14'East a distance of 105.32 feet to a ln'after with cap set;
2. With a curve to the left,having an am length of 133.61 feet,a radlus of 5785.00
feet, and a chord which beam Nord 75°30'66'East,a distanco of 133.61 test to
a 1@'rebar with cap set;
3. Norah 74.51'06'East,a distance of 260.07 feat to a TxDOT Type II monument
found;
4. With a curve to the left,having an am length of 372A9 feet a radus of 5788.00
feet,and a Chord which bees NOM 72'57'45'East,a distance of 372.43 fee M
e TxDOT Type II monumentIound;
5. With a curve to the right,having an arc length of 365.84 feet,a radius of 5710.00
20
Page 2
fast,and a chord which bean North 72'5650"East,a distance of 365.78 feet m
a TxDOT Type 11 monument found;
6. NOM 74'54'01'East,a distance of 90.38 feet 0 a 12'rebar with cap sat in the
motherly Ane of the 120,660 acre tram for an angle point In the south dghli
line of State Highway 45 and the southeast comer of TxOOT Parcel 109 Pad i;
THENCE South 15'17'03'East,with the northerly line of the 120.658 acre trust and the
south right-of-way line of State Highway 45,passing at a distance of 0.98 real a 1/2'
robot with aluminum TxDOT up found for the nortMesl corner of Lot 2, Bbek "A',
Amending Plat of Ramtron Subdivision. a subdivision of record in Document No.
199900349 of the Official Public Records,Tm*County,and in Cabinet R.Slide 384 of
the Plat Records,WAliamson County, Texas, also being an angle point In the south
d9htal-way line of State Highway 45,and=timing with the west line of Lot 2 for a
total distance of 288,66 feel to a 1'Iron pipe found for an angle paint in the mrthady
line of the 120.658 acre tract and the southeast comer of said Lot 2;
THENCE NOM 74'4447'East with the northerly line of the 120.658 acre tract and Bre
south line of Lots 2 and 3,Dim% A',of the lead!Amending Plat of Ramlmn Subdivision,
a distance of 486.30 feel to a 3/4'Iran pipe found far an angle point of the 120.656 acre
tract and the southeast corner of said Lot 3,Block-A-;
THENCE North 15'1 TOP West,with the northerly line of the 120.658 sere fad and the
east line of Lots 3 and 4.Black'A",of the sold Amending Plat of Ramtron Subdivision,
passing at a distance of 287.65 fact a 12'mbar with aluminum T%DDT cap found for
the northeast comer of said Lot 4, Block'k,and an angle point In the south dghiro4
way fine of Stale Highway 45,for a total distance of 288.32 feet to a 12'Other with rap
eel for an angle point In the south righ tof-way line of State Highway 45 and the
southwest comer of a 0.081 acre mot described as TxDOT Parcel 104 Pad 2 in said
D cumont No.2002089984;
THENCE North 74'4513'East with the south riphtrofwruy line of Stale Highway 45 and
the south Ane of TxOOT Parcel 104 Part 2,and aver and across the 120.856 ante sad,
a distance d 19.85 feet to a 72' reber with rap set In the south rghla6way line of
Date Highway 45 and the west line of a 3.7603 acm tract described In Volume 13028,
Page 1774 of One Real Properly Recoils of Travis County, and In Doximent No.
9742150 of the Official Records of WlNamson County,Texas,also being tho east line of
the 120668 am lred,for the sou8wast rams of TxOOT Pamal 104 Pant,fmm wtrkh
a Txi Type II monument found bean NOM 74'4533'East,a distance of 74.09 feet
THENCE with the west line of the 3.7603 we fad and the east line of the 120.658
acre trod,the follawi g two facts:
1. South 15'20'31'East,a distance of 307.12 feel to a 112'moor found;
21
Page 3
2. South 62'4125'East a Materials of 285.73 feet to a 314'Iron pipe found in the
northwest line of a 43 we tract described In Document No. 9850636 of the
Official Records of Williemaon County, Texas, for the northeast comer of the
120.666 Gore tract,also being the south comer of the 3.7603 acre tract;
THENCE South 27'01709'West with the Goat line of the 120.658 acre tract and thd
west pie of the 43 ase Wool,a distance of 392.92 feet b a 12' labor found In the
northeast dgmafwvoy lino of Greenlawn Boulevard (rlghlopway width varies), hom
which a 11V labor found bean North 59'2938'East,a chord distance of 28.62 feet;
THENCE with the northeast right-of-way tine of Gmenlawn Boulevard and over and
across the 120.668 acre tract the fallowing two(2)coumasr
1. Willi a carve to the left having an arc length M 485,73 feet,a radius of 897.53
feet,and a chard which bears South 43'19'26'West a distance of 479.83 bet to
e 12'reber with cap se%
2. South 27'48'19'W eat a distance of 1618.16 feel to a 12"robot found in the
northeast line of a 12,742 awe tract described In Volume 12806,Page 274 of the
Real Properly Records of TrWs Coumy.Taxes,lar the southeast comer of IM
remainder of the 120.858 acre tract,from which a 12'Iron pipe found In the east
dghlof-way line of Gra9nlawn Backward beam South 61.1 T54'East,a distance
of 132.03 feel;
THENCE with the south line of the 120.656 acro tract and the northeast line of the
12.742 am tract and the north line of a 36.611 acre treat described In Volume 12434,
Page 1810 of the Real Property Records of Travis County,Texas,the following twe(2)
coumes:
1. North 61'20'51'Weat,a distance of 201.47 feat b a 12'rebarfmrM;
2. South 86°59'38'Wit passing ale distance of 226.95 feat a 12'reber found,a
total distance of 505.07 feet to a 12'mbar found for the southeast mmer of Lot
3, Final Plat of Round Rock Gateway Section Three, a subdF4slon of record In
Document No.20040W91 of the Oficial Publlc Records of Tmvis County,Taxes;
THENCE North 03'00'02"West with the east line of said Lot 3 and the mmalnder of a
12.150 acre time described In Document No.2003169460 of the Defeat Public Records
of Travis County, Teras. and over and across the 120.658 more tract,a distance of
1442.16 feel to a 12'rebar found for the northeast comer of the 12.150 ase tract also
being the southeast comer of said Lot 2,Block 1,Socralas Addition.Phase 2;
THENCE Nath 15.14'5T West with the east line of said Lot 2, Block 1, Socrates
22
Page 4
Addition, Phase 2,and continuing comae the 120.558 acro must,a distance of 478.75
met to the POINT OF BEGINNING,containing 85.492 ease of land,mora or less.
Surveyed on the ground on April 30, 2007. Bearing Basis: Odd Azimuth for Texas
Centel Zane,1957183 HARN values from LCRA control network.Attachments:Survey
OmMng 558-001-BO1. Caps placed an set labors are plasdc, stamped *Chaparral
4995'
S S12- -7Steven 0
Regime d rot bnal Land Surveyor
State of a o.
F 01 ft
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111.E axba
AP2i'
x.,1
23
V / �' «rw."-" '
EXIMIT B
PUBLIC IMPROVEMENTS
THE DISTRICT-ONSITE INFRASTRUCTURE
Category
Sidewalks&Concrete(incl.curb,gutter,and driveways) $ 1,697,863
Roadways(incl. lime stabilization, base, asphalt,striping, and signs) $ 1,988,965
Pond Excavation $ 344,573
Street Lighting(Posts,Electrical Conduit,&Light Pole Bases) $ 1,035,375
Handicap Ramps $ 96,250
Water $ 684,200
Wastewater $ 390,500
Storm Sewer $ 853,600
Electric $ 10316,397
Gas $ 105,600
Landscape& Irrigation $ 535,445
Data&Communications $ 506,000
Cost Contingency $ 1,192,151
Insurance $ 85,993
General Conditions $ 650,106
Contractor's Fee $ 401,982
Design $ 675,000
Grand Total $ 12,560,000
25
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Parcel Plan � I
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26
EXHIBTT C
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Ili 1 ,I 71'1 till• +11111! yul.
liiiiiil,i II'lo , jlll
�� I'�ili ii 1111 iiiilfllllilii �I�iT + { li�l l�il 7#�yt
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,•`.` ill,.! !! !!.! 11I IIIIj,.i.li iF jl' i
1 111 II 11117{Illlj,FiF!11 li,lll pi it�N•�ll 1 ;f
1 lliii ii i Iiii111Ii71111 II"ryl ptljl l'lia�Fj 7,
• i iiiiiiniiiuiiiillllllllll �Il�lin ¢I f ildw;i, T
,g e
41
• `�� �, a!�ipppp 111 7 1
�\ illl n BI Illili lFj+'l,+!F,ltllil �ia
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28
EXHIBIT D
GREENLAWN BLVD.IMPROVEMENTS
o- u
Af
• V
�A
1
The crosshatched area in the diagram above depicts approximate location of the Greenlawn Blvd.
Improvements to be constructed by City pursuant to the terms and conditions of this Agreement. The
Greenlawn Blvd. Improvements shall include: widening Greenlawn Blvd. to approximately 150 feet;
construction of medians: installation of curbs, gutters, sidewalks, and street lights; landscaping; and any
other work required to construct the Greenlawn Blvd. Improvements in accordance with the City's
specifications for 150' wide rights-of-way.
29
EXHIBIT E
CALCULATION OF THE HURDLE REIMBURSEMENT AMOUNTS
First Hurdle Reimbursement Amount
The First Hurdle Reimbursement Amount shall be calculated as a proportionate share of twelve percent
(12%) of the Maximum Reimbursement Amount previously delivered to Developer, which proportionate
sbare shall be the percentage of the difference between the 120,000 gross square feet required to be
constructed on or before the First Hurdle Date and the actual gross square feet constructed by Developer
on or before the First Hurdle Date, plus the Interest Amount commencing on the date the Maximum
Reimbursement Amount was fully paid to the Developer by the City and/or TED Corp.,as applicable.
Second Hurdle Reimbursement Amount
The Second Hurdle Reimbursement Amount shall be calculated as a proportionate share of twenty-five
percent (25%) of the Maximum Reimbursement Amount previously delivered to Developer, which
proportionate share shall he the percentage of the difference between the 250,000 gross square feet required
to be constructed on or before the Second Hurdle Date and the actual gross square feet constructed by
Developer on or before the Second Hurdle Date, plus the Interest Amount commencing on the date the
Maximum Reimbursement Amount was fully paid to the Developer by the City and/or TED Corp., as
applicable.Notwithstanding the foregoing, the Second Hurdle Reimbursement Amount shall exclude any
portion of the First Hurdle Reimbursement Amount not recouped by Developer, if any, as set forth in
Section 6.03 of the Agreement.
Third Hurdle Reimbursement Amount
The Third Hurdle Reimbursement Amount shall be calculated as a proportionate share of the Maximum
Reimbursement Amount previously delivered to Developer, which proportionate share shall be the
percentage of the difference between the 1,000,000 gross square feet required to be constructed on or before
the Third Hurdle Date and the actual gross square feet constructed by Developer on or before the Third
Hurdle Date, plus the Interest Amount commencing on the date the Maximum Reimbursement Amount
was My paid to the Developer by the City and/or TED Corp.,as applicable.Notwithstanding the foregoing,
the Thud Hurdle Reimbursement Amount shall exclude any portion of the First Hurdle Reimbursement
Amount and/or Second Hurdle Reimbursement Amount not recouped by Developer,if any, as set forth in
Section 6.03 of the Agreement.
Example
By way of example only, if the Project contains 114,000 gross square feet as of the First Hurdle Date,
200,000 gross square feet as of the Second Hurdle Date, and 900,000 gross square feet as of the Third
Hurdle Date, and the City and/or TED Corp., as applicable, had delivered the entire Maximum
30
Reimbursement Amount to Developer on February l4,2020(prior to the First Hurdle Date),then Developer
would be responsible for refunding:
a. on the First Hurdle Date,the amount of$84,780,calculated as follows:
• (1 - 114,000 gross square feet/120,000 gross square feet)x$1,507,200=$75,360
• Interest Amount=$9,420
• First Hurdle Reimbursement Amount: $75,360+$9,420=$84,780
b. on the Second Hurdle Date, assuming that the amount refunded to the City after the First Hurdle
Date has not been recouped by Developer prior to the Second Hurdle Date,the amount of$700,220,
calculated as follows:
• (1 - 200,000 gross square feet/250,000 gross square feet) x $3,140,000 - $84,780 =
$543,220.
• Interest Amount=$157,000
• Second Hurdle Reimbursement Amount: $543,220+$157,000=$700,220
c. on the Third Hurdle Date,assuming that the amount refunded to the City after the First Hurdle Date
and Second Hurdle Date have not been recouped by Developer prior to the Third Hurdle Date,the
amount of$1,099,000,calculated as follows:
• (1 — 900,000 gross square feet/1,000,000 gross square feet) x $12,560,000 - $84,780 —
$700,220=$471,000.
• Interest Amount=$628,000
• Third Hurdle Reimbursement Amount: $471,000+$628,000=$1,099,000
31