4B-R-05-36 - 2/22/2005 RESOLUTION NO. R-05-36
WHEREAS, the Round Rock Transportation System Development
Corporation ("Corporation") wishes to enter into an Economic
Development Agreement with the City of Round Rock, Simon Property
Group, L.P. , and CPG Round Rock, L.P. regarding Simon' s development of
a retail outlet mall in the City of Round Rock, Now Therefore
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE ROUND ROCK
TRANSPORTATION SYSTEM DEVELOPMENT CORPORATION,
That the President is hereby authorized and directed to execute on
behalf of the Corporation an Economic Development Agreement with the
City of Round Rock, Simon Property Group, L.P. , and CPG Round Rock,
L.P. , a copy of same being attached hereto as Exhibit "A" and
incorporated herein for all purposes.
The Board of Directors hereby finds and declares that written
notice of the date, hour, place and subject of the meeting at which
this Resolution was adopted was posted and that such meeting was open
to the public as required by law at all times during which this
Resolution and the subject matter hereof were discussed, considered and
formally acted upon, all as required by the Open Meetings Act, Chapter
551, Texas Government Code, as amended.
RESOLVED this 24th day of May, 2005 .
ROUND 'ICK ' A SP+RTA ON s 'STE
DEVELG E <'•►
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1-440eRound Rock, Texas
ATTEST:
, Secretary
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ECONOMIC DEVELOPMENT AGREEMENT
This Economic Development Agreement ("Agreement") is entered into this day of
, 2005, by and between the City of Round Rock, Texas, a Texas home
rule municipal corporation ("City"), the Round Rock Transportation System Development
Corporation, a corporation created pursuant to the Development Corporation Act — Art.
5190.6(4)(B), ("4B Corp") and Simon Property Group (Texas), L.P., and CPG Round Rock,
L.P., their successors and assigns ("Simon").
WHEREAS, the City has adopted Resolution No. , attached as Exhibit "A" ("City
Resolution"), establishing an economic development program and authorizing the Mayor to enter
into this Agreement with Simon in recognition of the positive economic benefits to the City
through Simon's development of approximately 87.193 acres of land, as more particularly
described on the attached Exhibit "B" ("Property") as a premium destination retail outlet mall
and ancillary uses("Project"); and
WHEREAS, the 4B Corporation has adopted Resolution No. , attached as Exhibit"C"
("4B Resolution") authorizing the Board President to enter into this Agreement with Simon in
recognition of the aforesaid benefits; and
WHEREAS, the purpose of this Agreement is to promote economic development as
contemplated by Chapter 380 of the Texas Local Government Code and the Development
Corporation Act -ART. 5190.6 TEX. REV. Civ. STAT. ANN. (Vernon's 1987 and Vernon's Supp.
2003) whereby Simon will construct, develop and operate the Project, or cause the Project to be
operated, in conformance with the City's development approvals for the Project, and the City and
4B Corp will participate in the funding of certain roadway, utility, and other related
improvements in accordance with the terms of this Agreement; and
WHEREAS, development of the Project requires the cooperation and participation of the City,
4B Corp and Simon in the design and construction of various roadway and public utility
improvements; and
WHEREAS, the City and 4B Corp have agreed to assume responsibility for the design and
construction, at the City's cost, of the IH-35 ramps and related improvements as described on the
attached Exhibit"D"("Public Road Improvements"); and
WHEREAS, Simon has agreed to construct certain roadway improvements described in Section
5.2 of this Agreement("Simon Road.Improvements")and;
WHEREAS, the City and 4B Corp have agreed to provide performance based economic
development grants to Simon to defray a portion of the project costs.
NOW, THEREFORE, in consideration of the mutual benefits and promises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
City, 4B Corp and Simon agree as follows:
EXHIBIT
86810
uAti I'
1. Authority. The City's and 4B Corp's execution of this Agreement are authorized by
both Chapter 380 and Chapter 395 of the Texas Local Government Code, the Development
Corporation Act — ART. 5190.6 TEX. REV. CIV. STAT. ANN. (Vernon's 1987 and Vernon's
Supp. 2003) the City Resolution and the 4B Resolution, constitute a valid and binding
obligation of the City in the event Simon proceeds with the development of the Property. The
City and 4B Corp acknowledge that Simon is acting in reliance upon their performance of its
obligations under this Agreement in making its decision to commit substantial resources and
money to develop the Property.
2. Definitions.
2.1 "Adjusted Gross Leasable Sales Area" shall mean the gross leasable area of the
Project less any storage areas, bathroom facilities, courtyards, hallways or other
areas not utilized for the sale of goods and services, the proposed cinema and
outlot uses or pad sites providing only services.
2.2 "Commencement of Construction" shall mean the commencement of work on
piers, foundations or other improvements necessary for the construction of vertical
improvements.
2.3 "Economic Incentive Payment(s)" ("EIPs") means the amount paid by the City
to Simon under the Program.
2.4 "Effective Date" is the date this Agreement is executed to be effective by the
City, 4B Corp and Simon.
2.5 "Net Present Value Basis" shall be calculated as set forth in Section 6.2.2.(f).
• 2.6 "One Cent Sales Tax Revenues" means that portion of Sales Tax Revenues
(defined below) resulting from the imposition of a one percent municipal sales tax
on sales arising from the Project, such as that presently in effect pursuant to Texas
Tax Code §321.101(a) and §321.103. If the City ever elects to charge less than a
one. percent (1%) sales tax but is allowed by law to collect a sales tax of one
percent (1%) or more, then instead of being based on actual collections, One Cent
Sales Tax Revenues attributable to sales tax collected shall be deemed to be
computed as if the City did elect to charge a one percent sales tax.
2.7 "Program" means the economic development program established by the City
pursuant to Chapter 380 of the Texas Local Government Code and under the City
Resolution to promote local economic development and stimulate business and
commercial activity within the City.
2.8 "Project" is Simon's planned development of the Property which shall consist of
a premium outlet center and related facilities, all of which are commonly referred
to as "Round Rock Premium Outlets"The Project shall include approximately five
hundred fifty thousand (550,000) square feet of Adjusted Gross Leasable Sales
Area in a phased development of some or all of the following uses: retail, banking,
restaurants, entertainment, theater, offices, hotel and/or recreation space_ The
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Project will include walkways in the retail-pedestrian areas, public space with
outside pedestrian amenities, such as benches, landscape features, fountains and/or
water features and dining areas. If constructed in phases, the first phase ("First
Phase") shall contain at least four hundred twenty thousand (420,000) square feet
of Adjusted Gross Leasable Sales Area.
2.9 "Project Area" is the area within the Property that will be developed for the
Project and is otherwise described in Exhibit B—"Property Description".
2.10 "Sales Tax Effective Date" is first day of the month following the date upon
which Simon certifies in writing that it and/or its tenants has received one or more
certificates of occupancy for and has begun retail operation of at least fifty
thousand (50,000) square feet of Adjusted Gross Leasable Sales Area for the
Project or the First Phase, if constructed in phases.
2.11 "Sales Tax Revenues" means the amount of sales tax collected by the City arising
from the Project. The term "Sales Tax Revenues" shall include any taxes
authorized by the State in the future that are intended to replace sales or use tax
revenues currently available to the City.
3. Notice to Proceed and Expenditure of Funds Prior to Delivery of Written Notice to
Proceed by Simon.
3.1 Activities Prior to Delivery of Written Notice to Proceed by Simon.
3.1.1 It may be desirable for the City, 4B Corp and/or Simon to commence certain
engineering, design and/or preliminary site work activities before Simon
delivers the Written Notice to Proceed described in Section 3.2 below in order
•to maximize the ability of the Project to open to the public on the anticipated
schedule. No party shall have any obligation to repay or reimburse any other
party for such activities unless they have entered into an Advance Funding
Agreement. Simon, in its sole discretion,may elect to engage in such advance
funding.
3.1.2 Any advance funding commitments made by Simon under paragraph 3.1.1
shall be recognized as inducement costs to be reimbursed or repaid as
Economic Incentive Payments in accordance with the provisions of this
Agreement.
3.2 Post-Delivery of Written Notice by Simon. The rights and obligations of Simon
and of the City and 4B Corp set forth in this Agreement shall be of no force or
effect unless and until Simon shall deliver written notice to'the City and 4B Corp
.that it:
3.2.1 Has acquired fee title to the Property; and
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3.2.2 Is prepared in a diligent manner to commence and pursue construction of the
Project to completion as evidenced by the issuance by the City of a Certificate
of Occupancy to Simon.
4. Term. This Agreement shall become enforceable upon its Effective Date. This
Agreement shall terminate upon the earlier to occur of: (i) eight (8) years after the Sales Tax
Effective Date; (ii) Simon's receipt of reimbursement of its aggregated actual costs of
construction of Teravista Blvd, "C", Oakmont Drive "A", Oakmont Drive "B2" and one-half
of its actual cost of Oakmont Drive"Bl"pursuant to Section 6.1.3; or(iii) Simon's receipt of
the total EIPs equal to the Maximum Payment Amount (defined in paragraph 6.2.3). In
recognition of the fact that EIPs, by necessity, are calculated and paid after taxes have been
assessed and paid to the City, and therefore always run in arrears, the term of this Agreement•
shall be deemed to include any payments for Sales Tax Revenues collected by Simon's
tenants during the Term of this Agreement but not received by the City until after the
termination date . An equitable adjustment shall be made to the Term if the completed
Project is closed for a significant period of time due to a`force majeure event" as defined in
paragraph 7.15 below.
5. Rights and Obligations of Simon.
In consideration of the City's and 4B Corp's compliance with this Agreement, Simon agrees as
follows: •
5.1 Simon Road Improvements. Simon will:
(a) Donate rights-of-way associated with Oakmont Drive Extension — Segment A
from south property line of the Simon tract to Teravista Parkway—Segment C;
(b) Donate or cause to*be donated all or a part of the right-of-way for the Oakmont
Drive Extension— Segments B1 and B2 from Chandler Road to south property
line of Simon tract, through a series of land transactions among Simon, Barshop
& Oles, Scott & White, and Newland Properties, donate any such parts of the
rights-of-way associated with Oakmont Drive Extension—Segments B1 and B2
from Chandler Road to south property line of Simon tract;
(c) Donate rights-of-way associated with Teravista Parkway— Segment C from the
intersection with Oakmont Drive Extension— Segment A to the IH-35 frontage
road;
(d) Be responsible for construction of the following roads, either directly or on
behalf of the City. Simon shall use its best efforts to ensure completion of the
roads no later than September 1, 2006.;
(e) Fund the cost of construction of the road improvements:
(i) Oakmont Drive Extension — Segment A, currently estimated to be
$1,419,834;
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(ii) Oakmont Drive Extension — Segment B1 currently estimated to be
$334,411; and Segment B2 currently estimated to be $627,730, (note:
only one-half of the Segment B2 cost is to be included in the total cost of
construction as set forth in Sec. 6.1.3 below); and
(iii) Teravista Parkway Segment C from the intersection with the
North/South Road (Oakmont Drive Extension— Segment A) to the IH-
35 frontage road, currently estimated to be$1,198,494;
(f) Comply with the statutory bidding requirements of Chapter 252 of the Local
Government Code with respect to the Public Road Improvements listed above
but not otherwise.
5.2 Compliance with Development Regulations and Other Ordinances. Simon shall
comply with the City's development approval processes and shall develop the
Project on the Property consistent with City ordinances, City-approved PUD
zoning ordinance for the Property, City-approved development regulations, and
other City development requirements.
5.3 Simon Accounting. Simon shall maintain complete books and records showing all
expenses of any nature that City is to or will reimburse or pay under this
Agreement which books and records shall be deemed complete if kept in
accordance with generally acceptable accounting principles as applied to Texas
partnerships. Such books and records shall be available for examination by the
duly authorized officers or agents of the City during normal business hours upon
request made not less than ten (10) business days prior to the date of such
examination. Simon shall maintain such books and records throughout the term of
this Agreement and for four(4) years thereafter.
5.4 Waiver of Sales Tax Confidentiality. Simon agrees to obtain a Waiver of Sales
Tax Confidentiality from tenants of the Project in a form approved by the Texas
Comptroller's Office ("Waiver Form"), a copy of which is attached hereto as
Exhibit "E". The Waiver Form will be utilized by the City to obtain reports filed
by Simon's tenants to determine the amount of sales tax revenues generated from
the Project for the previous calendar quarter. Such reports shall be based upon
reports filed by the Project's tenants with the Texas Comptroller's office.
5.5 Reimbursement of Unearned Incentive Payments. In the event that Simon receives
full reimbursement of its actual costs from the 4B Corp pursuant to Section 6.2.1,
below:
5.5.1 Simon will use commercially reasonable efforts to operate the retail facility
for a period equal to the term set forth in Section 6.2.2 (f),below; and
5.5.2 At the end of the Term, the amount of the City Payment EIP's pursuant to
Section 6.2.2. that would have otherwise been earned by Simon and paid by
the City may be calculated, at the City's option. If this calculation results in
an amount less than the amount of the EIP actually paid to Simon by the 4B
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Corp pursuant to Section 6.2.1, then at the City's election, Simon will refund
to the 4B Corp the difference.
6. Rights and Obligations of the City and 4B Corp.
• In consideration of Simon's compliance with this Agreement,.the City and 4B Corp agree as
follows:
6.1 Public Road Improvements.
6.1.1 The City, either on its own or acting through 4B Corp, shall fund the
construction of the Public Frontage Road Improvements, currently estimated
to cost approximately $8,440,579 before financing costs. The. City has
previously entered into an Advanced Funding Agreement with the Texas
Department of Transportation(TxDOT) regarding the design and construction
of the Chandler Road Interchange and 1H35 Improvements currently
estimated to cost $6,150,220. The City shall use its best efforts to ensure
completion of these improvements no later than September 1, 2006.
6.1.2 Simon is seeking to acquire the right-of-way for the Oakmont Drive Extension
— Segments B1 and B2 from Chandler Road to south property line of Simon
tract, through a series of land transactions among Simon, Barshop & Oles,
Scott & White, and Newland Properties. If Simon determines it is unable to
acquire all or part of said right-of-way, it may so notify the City at anytime
and request the City to acquire the right-of-way pursuant to its powers of
eminent domain. Simon agrees to pay all of the actual cost of such acquisition,
including, but not limited to, appraisal fees, expert testimony, and reasonable
attorney fees.. Upon receipt of such notice, the City will utilize reasonable
efforts to acquire the right-of-way for the proposed Oakmont Drive Extension
—(Segments B1 and B2) from Chandler Road to the south property line of the
Property as soon as is reasonably possible .
6.1.3 Subject to the conditions set forth herein, the City or the 4B Corp shall
reimburse Simon all of the actual costs of constructing the following roadway
improvements, including but not limited to engineering, pavement, drainage,
erosion and sedimentation control, mobilization, overhead, and lighting within
the public right of way, currently estimated to aggregate to $3,266,604, of the
following improvements:
(a) Oakmont Drive Extension— Segments A, and B1, currently estimated to
be$1,754,245:
(b) Oakmont Drive Extension — Segment B2, currently estimated to be
$313,865; and
(c) Teravista Parkway — Segment C from the intersection with the
North/South Road (Oakmont Drive Extension— Segment A) to the IH-
35 frontage road—currently estimated to be$1,198,494
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6.2 Economic Incentive Payments.
6.2.1 4B Payments. The 4B Corp shall have the option of making the
reimbursement for the Public Road Improvements as set forth on Exhibit D, in
whole or in part, to Simon upon the issuance by the City of a Certificate of
Occupancy for the First Phase of the Project. The 4B Corp shall notify Simon
in writing in the event it decides to exercise the aforesaid option.
6.2.2 City Payments. In the event that the 4B Corp elects not, either in whole or in
part, to make the reimbursement payment due Simon under Section 6.2.1,
above, the City shall pursuant to Chapter 380 of the Texas Local Government
Code, but subject to the conditions set out here, make quarterly EIPs to Simon
of any such unpaid reimbursements. The EIPs are to be calculated as follows:
(a) Calculations will be based upon sales subject to the City's one-cent (10)
general sales tax;
(b) Calculations shall be based on such annual sales in excess of Two
Hundred Seventy-five Dollars ($275) per square foot of Adjusted Gross
Leasable Sales Area;
(c) Upon the opening of each phase of the Project, Simon will provide a
certification of the amount of Adjusted Gross Leasable Sales Area;
(d) The EIPs will be an amount equal to one hundred percent(100%) of the
Sales Tax Revenues from sales (as defined in subsections a and b,
above);
(e) The Maximum Amount of the EIPs will be a Net Present Value-of the
aggregated actual costs estimated to be $3,266,604 (not otherwise
reimbursed by the 4B Corp, as described in Section 6.1.3 (d), above, of
the improvements described in Section 6.1.3 above.
(0 The Maximum Term shall be the earlier of the date when the aggregate
amount of the EIPs made to Simon on a Net Present Value Basis
(discounted at six percent (6%) from the Sales Tax Effective Date) is
equal to the maximum amount of the EIPs of$3,266,604, or eight (8)
years from the first day of the month following the Sales Tax Effective
Date.
•
6.2.3 Changes in Law. If, during the term of this Agreement, state law applicable to
municipal taxation changes the form of sales taxes, and as a result, the EIPs•
differ from the amount which would have been paid to Simon under the laws
in effect as of the Effective Date of this Agreement, then the City, in its sole
discretion, may adjust the EIPs using whatever discretionary taxes and
revenues that are legally available to City which can be allocated to the EIPs.
However, this section is not intended to require the City to use funds from
other sources which are not within the City's discretion to allocate to the
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Project, so as to achieve the same economic benefits to both parties as would
have resulted had the law not changed.
6.2.4 Payments Subject to Future Appropriations. Although certain payments under
this Agreement are calculated based on a formula applied to sales tax
revenues, this Agreement shall not be construed as a commitment, issue or
obligation of any specific taxes or tax revenues for payment to Simon. All
payments by the City under this Agreement are subject to the City's
appropriation of funds for such payments in the budget year for which they
are made. The payments to be made to Simon, if paid, shall be made solely
from annual appropriations from the general funds of the City or from such
other funds of the City as may be legally set aside for the implementation of
Article III, Section 52a of the Texas Constitution or Chapter 380 of the Local
Government Code or any other economic development or financing program
authorized by statute or home rule powers of the City under applicable Texas
law, subject to any applicable limitations or procedural requirements. In the
event that the City does not appropriate funds in any fiscal year for payments
due under this Agreement, such failure shall not be considered a default under
Section 7.3, and the City shall not be liable to Simon for such payments, but
Simon shall have the right but not the obligation to rescind this Agreement.
To the extent there is a conflict between this paragraph and any other
language or covenant in this Agreement, this paragraph shall control.
6.2.5 City Accounting. The City shall maintain complete books and records
showing sales taxes remitted to the City by the State and disbursements of
income incentive grant payments, which books and records shall be deemed
complete if kept in accordance with generally acceptable accounting
principles as applied to Texas municipalities. In addition, the City shall - •
prepare an annual report documenting accrued interest, any carry-forward of
accrued interest, unamortized balances, and amortized balances. Such books
and records shall be available for examination by the duly authorized officers
or agents of Simon during normal business hours upon request made not less
than ten (10) business days prior to the date of such examination. The City
shall maintain such books and records throughout the term of this Agreement
and for four(4) years thereafter.
6.2.6 Utility Services for the Property. The City shall provide, water and
wastewater to Simon for the Project, subject to the same fees and charges
assessed to similarly situated properties.
6.2.7 Permitting. The City shall cooperate with Simon to expeditiously process all
City permit applications and City inspections.
7. Miscellaneous.
7.1 Mutual Assistance. The City, 4B Corp and Simon will do all things reasonably
necessary or appropriate to carry out the terms and provisions of this Agreement,
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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.
7.2 Representations and Warranties. The City and 4B Corp represent and warrant to
Simon that the Program and this Agreement are within its authority, and that it is
duly authorized and empowered to establish the Program and enter into this
Agreement, unless otherwise ordered by a court of competent jurisdiction. Simon
represents and warrants to the City and 4B Corp that it has the requisite authority
to enter into this Agreement.
7.3 Default. If either the City, 4B Corp or Simon should default in the performance of
any obligations of this Agreement, the other party shall provide such defaulting
party written notice of the default, and a minimum period of thirty (30) days to
cure such default, prior to instituting an action for breach or pursuing any other
remedy for default. If the City or 4B Corp remain in default after notice and
opportunity to cure, Simon shall have the right to pursue any remedy at law or in
equity for the City's or 4B Corp's breach. If Simon remains in default after notice
and opportunity to cure, the City's or 4B Corp's remedy shall be limited to a
termination of the EIPs, which accrue after the date of such default. Any EIPs
from City or 4B Corp to Simon which is not timely paid by City or 4B Corp shall
incur interest at the highest rate per annum allowed by the applicable. law of the
State of Texas from the date such EIPs are due until paid.
7.4 Attorney's Fees. In the event any legal action or proceeding is commenced
between the City, 4B Corp and Simon to enforce provisions of this Agreement and
recover damages for breach, the prevailing party in such legal action shall be
entitled to recover its reasonable attorney's fees and expenses incurred by reason
of such action, to the extent allowed by law.
7.5 Entire Agreement. This Agreement contains the entire agreement between the
parties. This Agreement may only be amended, altered or revoked by written
instrument signed by the City, 4B Corp and Simon.
7.6 Binding Effect. This Agreement shall be binding on and inure to the benefit of the
parties,their respective successors and assigns.
7.7 Assignment. Simon may assign all or part of its rights and obligations to a third
party upon thirty days written notice to the City and 4B Corp.
7.8 Amendment. This Agreement may be amended by the mutual written agreement
of the parties.
7.9 Termination. In the event Simon elects not to proceed with the Project as
contemplated by this Agreement, Simon shall notify the City and 4B Corp in
writing, and this Agreement and the obligations on the part of both parties shall be
deemed terminated and of no further force or effect. In addition, this Agreement
9
shall terminate when Simon has been paid the Maximum Payment Amount in full,
or eight(8) years after the first day of the month following the Sales Tax Effective
Date, whichever first occurs.
7.10 Notice. Any notice and or statement required and permitted to be delivered shall
be deemed delivered by actual delivery, facsimile with receipt of confirmation, 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:
Simon: Simon Property Group
Attn: Kathy Shields.
115 West Washington Street
Indianapolis, IN 46204
Ph: (317) 263-7076
Fx: (317) 685-7299
with a copy to: Mr. David B. Armbrust
Armbrust&Brown, L.L.P.
100 Congress Ave., Suite 1300
Austin, Texas 78701
Ph: (512)435-2301
Fx: (512) 435-2360
with a copy to: Simon Property Group
Attn: Bill Hammer
115 West Washington Street
Indianapolis, IN 46204
Ph: (317) 263-7006
Fx: (317)263-7648
with a copy to: Chelsea Property Group
Attn: Mark J. Silvestri
105 Eisenhower Parkway
Roseland, NJ 07068
Ph: (973)228-6111
Fx: (973) 364-2503
with a copy to: Chelsea Property Group
Attn: General Counsel
105 Eisenhower Parkway
Roseland, NJ 07068
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City: Jim Nuse, City Manager
City of Round Rock
221 East Main St.
Round Rock, TX 78664
Ph: (512) 218-5401
Fx: (512) 218-7097
4 B Corp: Jim Nuse, City Manager
City of Round Rock
221 East Main St.
Round Rock, TX 78664
Ph: (512) 218-5401
Fx: (512) 218-7097
with a copy to: Stephan L. Sheets, City Attorney
309 East Main St.
Round Rock, TX 78664
Ph: (512)255-8877
Fx: (512) 255-8986
Either party may designate a different address at any time upon written notice to
the other party.
7.11 Interpretation. Each of the parties have 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.
7.12 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.
7.13 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.
7.14 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.
7.15 No Third Party Beneficiaries. This Agreement is not intended to confer any rights,
privileges or causes of action upon any third party.
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7.16 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 (a
`force majeure event"). Aforce majeure event 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 acts of military or civil authority; litigation;
changes in law, rules, or regulations outside the control of the affected Party;
national emergencies or insurrections; riots; acts of terrorism; or supplier failures,
shortages or breach or delay. 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.
7.17 Exhibits. The following Exhibits "A" - "E" are attached and incorporated by
reference for all purposes:
Exhibit"A": City Resolution No.
Exhibit"B": Property Description
Exhibit"C": 4B Resolution No.
Exhibit"D": Public Road Improvements
Exhibit"E": Waiver of Sales Tax Confidentiality Form
7.18 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, 4B Corp, its past, present and future
officers, elected officials, employees and agents of the City and 4B Corp, 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.
7.19 Extension of Dates for Commencement of Construction. In the event Simon
determines that an extension of a Project commencement date is necessary due to
market or financing conditions, Simon may extend either or both of the Project
commencement dates set forth in paragraph 3.2 for up to one (1) year. All other
dates shall be extended accordingly.
EXECUTED to be effective as of the day of , 2005 (the "Effective
Date").
SIMON PROPERTY GROUP (TEXAS),
L.P. a
By:
Printed Name:
Title:
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CPG ROUND ROCK, L.P.
a
By:
Printed Name:
Title:
CITY OF ROUND ROCK, TEXAS,
- a home rule city and municipal corporation
By:
Nyle Maxwell, Mayor
ROUND ROCK TRANSPORTATION
SYSTEM DEVELOPMENT
CORPORATION,
a Texas Development Corporation
By:
Nyle Maxwell, President •
APPROVED as to form:
Stephan L. Sheets, City Attorney
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EXHIBIT"A"
CITY RESOLUTION NO.
I
EXHIBIT"B"
PROPERTY DESCRIPTION
1
87. 193 ACRE TRACT FN NO. 05-020 (CAG)
ROUND ROCK PREMIUM OUTLETS FEBRUARY 22, 2005
BPI JOB NO. 1262-02
DESCRIPTION
OF 87 . 193 ACRES OF LAND OUT OF THE EPHRAIM EVANS SURVEY, ABSTRACT
NO. 212 , SITUATED 'IN WILLIAMSON COUNTY, TEXAS, BEING A PORTION OF
THAT CERTAIN 132 .28 ACRE TRACT OF LAND CONVEYED TO ANC-ROUND ROCK
ASSETS II, LP BY DEED OF RECORD IN DOCUMENT NO. 2001001644 OF THE
OFFICIAL PUBLIC RECORDS OF WILLIAMSON COUNTY, TEXAS, AND A PORTION
OF THAT CERTAIN 107 .44 ACRE TRACT CONVEYED TO NNP-TERAVISTA LP BY
DEED OF RECORD IN DOCUMENT NO. 2001001639 OF SAID OFFICIAL PUBLIC
RECORDS; SAID 87 . 193 ACRES BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING, at a 1/2 inch iron rod found in the easterly right-of-
way line of Interstate Highway No. 35 (R.O.W. Varies) , being the
northwesterly corner of that certain 74 . 590 acre tract of land
conveyed to Scott & White Memorial Hospital and Scott, Sherwood
and Brindley Foundation by deed of record in Document No. 9733254
of said Official Records of Williamson County, Texas, same being
the southwesterly corner of said 132 . 28 acre tract and hereof;
THENCE, NO2°04 '48"W, along the easterly right-of-way line of
Interstate Highway No. 35, being a portion of the westerly line of
said 132 . 28 acre tract for the westerly line hereof, passing at a
distance of 2307 . 08 feet, a concrete monument found at Highway
Station 1120+00, and continuing for a total distance of 2423 .43
feet to a 1/2 inch iron rod with cap set for the northwesterly
corner hereof;
THENCE, leaving the easterly right-of-way line of Interstate
Highway No. 35, over and across said 132 .28 acre, for the
northerly line hereof, the following eight (8) courses and
distances :
1) N48°42'48"E, along the northerly right-of-way line of Future
Teravista Parkway (100' R.O.W. ) a distance of 34 .29 feet to a
1/2 inch iron rod with cap set for the point of curvature of a
non-tangent curve to left;
2) Along said non-tangent curve to the left having a radius of
640. 00 feet, a central angle of 26°55'11" , an arc length of
300. 69 feet and a chord which bears N70°08 ' 01"E, a distance of
297. 94 feet to a 1/2 inch iron rod with cap set for the point
of curvature of a reverse curve to the right;
E H113i7 `' B"
FN 05-020 (CAG)
FEBRUARY 22 , 2005
PAGE 2 OF 3
3) Along said reverse curve to the right having a radius of 920 . 00
feet, a central angle of 56°51' 30" , an arc length of 912 . 98
feet and a chord which bears N85°06' 11"E, a distance of 875 . 97
feet to a 1/2 inch iron rod with cap set for the point of
curvature of a reverse curve to the left;
4) Along said reverse curve to the left having a radius of 950 . 00
feet, a central angle of 26°17' 15" , an arc length of 435 . 86
feet and a chord which bears S79°36'42"E, a distance of 432 . 05
feet to a 1/2 inch iron rod with cap set for the end of said
curve;
5) N42°46'27"E, a distance of 36 .14 feet to a 1/2 inch iron rod
with cap set in the westerly right-of-way line of future
Oakmont Drive (100' R.O.W. ) for an angle point;
6) N82°43 ' 03"E, over and across future Oakmont Drive, a distance
of 100 . 78 feet to a 1/2 inch iron rod with cap set in the
easterly right-of-way line of future Oakmont Drive for an angle
. point ;
7) S50°45'31"E, a distance of 31. 92 feet to a 1/2 inch iron rod
with cap set for an angle point;
8) N78°33 '21"E, a distance of 10 .32 feet to a 1/2 inch iron rod
with cap set in the common line of said 132 .28 acre tract and
said 107.44 acre tract for the northeasterly corner hereof;
THENCE, along the common line of said 132 .28 acre tract and said
107 . 44 acre tract, being a portion of the easterly line hereof,
the following two (2) courses and distances:
1) S06°14'24"W, a distance of 59 .27 feet to a 1/2 inch iron rod
with cap set for an angle point;
2) S19°01'28"E, a distance of 35 . 64 feet to a 1/2 inch iron rod
with cap set for an angle point;
THENCE, leaving said common line, over and across said 132 .28 acre
tract and said 107 .44 acre tract, for the easterly line hereof,
the following six (6) courses and distances:
1) S38°18 ' 53"W, a distance of 50 .49 feet to a 1/2 inch iron rod
with cap set for the point of curvature of a non-tangent curve
to the left;
• FN 05-020 (CAG)
• FEBRUARY 22, 2005
PAGE 3 OF 3
2) Along said non-tangent curve to . the left having a radius of
1250 . 00 feet, a central angle of 01°54' 00" , an arc length of
41 .45 feet and a chord which bears S07°43 ' 03"E, a distance of
41 .45 feet to a 1/2 inch iron rod with cap set for the point of
tangency;
3) S08°40' 03"E, a distance of 185 .24 feet to a 1/2 inch iron rod
with cap set for the point of curvature of a curve to the
right;
4) Along said curve to the right having a radius of 2300 . 00 feet,
a central angle of 24°22' 51" , an arc length of 978 . 71 feet and
a chord which bears S03°31' 22"W, a distance of 971.34 feet to a
1/2 inch iron rod with cap set for the point of -tangency;
5) S15°42'48"W, a distance of 138 .11 feet to a 1/2 inch iron rod
with cap set for the point of curvature of a curve to the left;
6) Along said curve to the left having a radius of 2200 . 00 feet, a
central angle of 12°56'48" , an arc length of 497. 11 feet and a
chord which bears S09°14' 24"W, a distance of 496 . 05 feet to a
1/2 inch iron rod with cap set for the end of said curve, being
in the southerly line of said 132 . 28 acre tract, being the
northerly line of said 74 .590 acre tract for the southeasterly
corner -hereof;
THENCE, S69°15'57"W, along the northerly line of said 74. 590 acre
tract, being in part the westerly line of said 107 .44 acre tract,
and in part a portion of the southerly line of said 132.. 28 acre
tract for the southerly line hereof, passing at a distance of
61. 11 feet a 1/2 inch iron rod found, being the southeasterly
corner of said 132 .28 acre tract, same being an angle point in' the
westerly line of said 107.44 acre tract, and continuing for a
total distance of 1609 .98 feet to the POINT OF BEGINNING,
containing an area of 87. 193 acres (3 , 798, 135 sq. ft. ) of land,
more or less, within these metes and bounds.
BEARING BASIS: REFERENCED TO THE TEXAS STATE PLANE COORDINATE
SYSTEM, CENTRAL ZONE BASED ON PUBLISHED NAD 83/93 HARK VALUES FOR
THE CITY OF GEORGETOWN MONUMENTATION NETWORK.
OF
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BURY & PARTNERS, INC. JOHN T.80„., Kl
ENGINEERS AND SURVEYORS JO I T. BILNOSKI DATE l'"1,•«•'•.«......,
3345 BEE CAVES ROAD, SUITE 200 R. ' .L.S #4998 ).9,.po 4996 aeo
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AUSTIN, TEXAS 78746 STATE OF TEXAS
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EXHIBIT"C"
4B RESOLUTION NO.
1
•
•• i
EXHIBIT "D" - �a1
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71.13 AC. ••-• '
- CHARLES
ISAAS TERRY ` W7LL/ANSO 10�N� /•t T GINE /-••GTY um'.L/NE .
f �� 74.590 ACRES F•
VOL. 633, PG. 235 \ '� i' SCOTT WHITE MEMORIAL
\l' .-' Q HOSPITAL AND SCOTT, SHERWOOD CO
t` AND BRINDLEY FOUNDATION
I DOC. N0. 9733254
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107.64 Ac. pL�4, 7Vu4JJ
CHARLES TERRY EX/ST, t'
ISAACKS ` TEM/VS: NNP-TERRAVISTA LP a
VOL. 340, ,i PAR/(WiIY DOC, NO, 2001001639 z\. •
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Doc. NO. 2002044237 _.
SEGMENT INTERSTATE HIGHWAY NO, 35 :' l 1
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I
EXHIBIT"E"
WAIVER OF SALES TAX CONFIDENTIALITY
Date
I authorize the Comptroller of Public Accounts to release sales tax Information pertaining to the
taxpayer indicated below to , a , its
successors, assigns or nominees, and the City of Round Rock. Texas, and the Round Rock
Transportation System Development Corporation. I understand that this waiver applies only to
our retail store located in the Premium Outlets located in the City of Round Rock,
Williamson County,Texas.
Please print or type the following information as shown on your Texas Sales and Use Tax permit:
Name of Taxpayer Listed on Texas Sales Tax Permit:
Name Under Which Taxpayer is Doing Business(d/b/a or Store Name):
Taxpayer Mailing Address:
Physical Location of Business Permitted for Sales Tax in Round Rock,Texas:
•
Texas Taxpayer ID Number Tax Outlet Number
(As shown of Texas Sales Tax Permit)
Authorized Signature':
Printed Name:
Title:
Phone:
The authorized signature must be of an owner, officer, director, partner or agent authorized to sign a Texas Sales Tax
Return. If you have questions concerning this Waiver of Confidentiality,please contact Sandra C.Joseph,Texas Comptroller of
Public Accounts at(800)531-5441,Ext.5-0411.
198756-18 05/19/2005
DATE: May 20, 2005
SUBJECT: Transportation System Development Corporation - May 24, 2005
ITEM: 6.B. Consider a resolution authorizing the President to execute an Economic
Development Agreement with the City of Round Rock, Simon Property
Group L.P. and CPG Round Rock, L.P.
To facilitate development of the Simon / Chelsea Premium Outlet Mall (the Project) on a
tract of land east of IH 35 and north of Chandler Road, the City and the Round Rock
Transportation System Development Corporation (4B Corporation) proposes to fund
construction of certain road improvements. These road improvements include IH 35
frontage road improvements and new road construction internal to the project tract.
The Project is a Destination Retailer, meaning it attracts commerce from outside of the City.
It will generate substantial sales and property taxes, create jobs and diversify our sales tax
base.
This agreement details responsibilities of the parties and the funding of the internal roads.
At the City's option, the internal road improvements will be funded from the 1% general
sales tax generated by the Project over a period not to exceed 8 years or from the 4B
Corporation. The Project must meet certain performance standards to receive funding for
the roads.