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EXHIBIT 10.11
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Section ECONOMIC DEVELOPMENT
Section PROGRAM AGREEMENT AND
COUNTY OF WlLLIAMSON Section PURCHASE OF REAL PROPERTY
Section FOR DEVELOPMENT OF THE POWER
Section COMPUTING CORP. PROJECT
CITY OF GEORGETOWN Section AND RELATED SITE DEVELOPMENT
THIS IS AN AGREEMENT BY AND BETWEEN the CITY OF GEORGETOWN, TEXAS, a
Texas Home Rule Municipal Corporation (the "City"), GEORGETOWN 4B, INC., a
Texas Development Corporation ("Georgetown 4B"), and POWER COMPUTING
CORPORATION, a Delaware Corporation authorized to do business in Texas
("Power"), to further economic growth in the City by development of the Power
Center Project.
WHEREAS, Power desires to relocate its corporate facilities to the
City and create the Power Center Project, which will include computer
manufacturing and warehouse facilities, a retail telemarketing center,
administrative offices and related support facilities (the "Project"); and
WHEREAS, the City, jointly with ▇▇▇▇▇▇▇▇▇▇ County, Georgetown
Independent School District, Georgetown Chamber of Commerce, Georgetown
Industrial Foundation, Georgetown Industrial Development Corporation and
Southwestern University, has adopted Resolution No. 890223A for cooperation and
participation in efforts for economic development for the greater Georgetown
area; and
WHEREAS, the City Council determined in Resolution No. 961015-I
(attached as Exhibit "A") that this Agreement constitutes an Economic
Development Program within the meaning of Local Government Code Section
380.001, (the "Program") and that the development of the Project by Power as
supported by the Program will stimulate economic growth in the Georgetown area
and in the State of Texas, and further that the Project is in the best interest
of the City; and
WHEREAS, the City Council hereby determines that the development of
the Project will promote local economic development and stimulate business and
commercial activity in the City by creating an estimated 1,500 permanent new
jobs and significantly increasing the tax base of the Georgetown area over a
period of approximately fifteen (15) years required for the build-out of the
Project; and
WHEREAS, Power desires to participate in the Program by entering into
this Agreement; and
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WHEREAS, the City has incorporated Georgetown 4B under the authority
of Section 4B of Article 5190.6 of the Texas Revised Civil Statutes in order to
facilitate the implementation of the Program and this Agreement;
WHEREAS, the City has purchased the property described in Exhibit "B"
(the "Property"), and intends to transfer the portion of the Property described
in Exhibit "C" (the "Power Campus") to ▇▇▇▇▇▇▇▇▇▇ ▇▇;
WHEREAS, if certain conditions contained herein are met, Power intends
to ground lease the Power Campus from Georgetown 4B for development of the
Project; and
WHEREAS, Power desires that the Power Campus be developed for use by
Power, and, in order to proceed with the Project, Power desires to receive
adequate assurance from the City of future land use approvals, commitments for
reliable utility services for the development of the Project, and receipt of
certain tax and other economic benefit incentives; and
WHEREAS, the parties have agreed that any development of the Property
will be in accordance with this Agreement and the Development Regulations of
the City, which are specifically defined to include the City's Century Plan,
Subdivision Regulations, Zoning Ordinance, Sign Ordinance, Building and
Construction Codes, and Construction Standards and Specifications for Roads,
Streets, Structures and Utilities ("Development Regulations") and that such
development is in their mutual best interests; and
WHEREAS, the City and Power have determined that the development of
the Property will best be accomplished through this Agreement; and
WHEREAS, the City and Power agree that the Development Regulations of
the City and this Development Agreement substantially advance a legitimate
interest of the City;
NOW, THEREFORE, for and in consideration of the promises and the
mutual agreements set forth herein, the City and Power hereby agree as follows:
I. DEFINITIONS.
CITY means City of Georgetown.
CITY ACREAGE means that portion of the Property which will be
developed by the
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City and which consists of approximately 42 acres more particularly described
on Exhibit "D" and depicted on Exhibit "E".
CITY PROPERTY TAX REVENUES means the amount of property tax collected
by the City from Power Affiliates with respect to real and personal property,
excluding inventory, owned or leased by Power Affiliates.
CITY SALES TAX COLLECTIONS means the City's share of all sales and use
taxes collected by Power Affiliates resulting from the imposition of a 1%
municipal sales tax, such as that presently in effect pursuant to Texas Tax
Code Sections 321.101(a) and 321.103 by the City. Amounts must be actually
received by the City to constitute City Sales Tax Collections.
COUNTY means ▇▇▇▇▇▇▇▇▇▇ County.
CDD means ▇▇▇▇▇▇▇▇▇▇ County Development District No. 1, as more
specifically described in Article V.
INITIAL POWER FACILITIES means a warehouse, a manufacturing facility
and an administrative office building which includes Power's retail
telemarketing function.
POWER means Power Computing Corporation.
POWER AFFILIATES means Power and all companies under common control
with, controlled by, or controlling Power Computing Corporation. For purposes
of this definition, "CONTROL" means 50% or more of the ownership determined by
either value or vote.
POWER CAMPUS means that portion of the property which will be utilized
by Power Affiliates, and which consists of approximately 154 acres more
particularly described in Exhibit "C" and depicted on Exhibit "E".
PROJECT means the development of the Property to promote new and
expanded business enterprise within Georgetown, and specifically includes
developing the Power Campus for use by Power for computer manufacturing,
warehousing, retail telemarketing, administrative offices, and related support
facilities.
PROGRAM means the Economic Development Program established by the City
pursuant to Local Government Code Section 380.001 and under Resolution No.
96101 5-I.
PROGRAM GRANT means the amount paid by the City pursuant to the Program
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each month, and includes the Basic Program Grant defined in Article VI
Paragraph D, the Contingent Program Grant defined in Article VI Paragraph H,
the Additional Program Grant defined in Article VI Paragraph I, and the
Supplemental Program Grant defined in Article VI Paragraph J.
PROPERTY means the tract of approximately 196 acres described in
Exhibit "A" and depicted on Exhibit "E".
SCHOOL DISTRICT means Georgetown Independent School District.
TOTAL CITY TAX REVENUES means the sum of City Property Tax Revenues
and City Sales Tax Collections.
II. BASIS OF AGREEMENT
A. CENTURY PLAN COMPLIANCE. The facts and recitations contained
in the preamble of this Agreement are hereby found and declared to be true and
correct, and are incorporated by reference herein and expressly made a part
hereof, as if copied verbatim. The City Council hereby finds that this
Agreement implements the following policies of the Century Plan - Policy Plan
Element, which state:
Economic Development Policy 1: "The City will encourage diversified
growth and promote business opportunities to create jobs, broaden the
tax base and minimize the impact of economic fluctuations."
Growth and Physical Development Policy 1: "The City will ensure that
future land use patterns provide economic, cultural, and social
activities to all residents, businesses and organizations."
Growth and Physical Development Policy 4: "The City will encourage new
development and infill redevelopment in the community."
The City Council further finds that the execution of this Agreement is not
inconsistent or in conflict with any other Century Plan Policies, as required
by Section 2.03 of the Administrative Chapter of the Policy Plan.
B. PROJECT. Power, the City, and ▇▇▇▇▇▇▇▇▇▇ ▇▇ are jointly
undertaking the Program pursuant to this Agreement to facilitate the Project.
Power agrees to undertake the Project so that the Power Campus will be
developed to include facilities for manufacturing and warehousing personal
computers, retail telemarketing, administration, and support. Development will
be consistent with the "Rivery Concept Plan," as such may be modified to meet
the reasonable business needs of Power.
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C. AUTHORIZATION. This Agreement is authorized by Section
380.001 of the Texas Local Government Code and by Resolution No. 961015-I of
the City of Georgetown, Texas as an Economic Development Program of the City.
III. REAL ESTATE
A. THE PROPERTY. As part of the Program, the City has purchased
the Property.
B. CITY ACREAGE. Approximately 7 acres of the City Acreage will
be utilized by the City for the development of what was previously designated
as "Rivery Boulevard", and which will now be known as "Power Computing
Boulevard". The remaining City Acreage may be developed and/or sold by the
City for retail and commercial purposes. Proceeds from the sale will be
utilized to recover all costs incurred by the City in undertaking the Program,
and any excess proceeds may be used by the City to fund the Improvements
identified in Section VIII of this Agreement, or for such other purposes as the
City determines to be consistent with the Program.
C. POWER CAMPUS.
1. Power Commitment. Power agrees to utilize the Power
Campus, for the development of the Project as described in this
Agreement. Power understands that the City would not have purchased
the Property but for Power's agreement to develop the Project on the
Power Campus. Power agrees that its sales tax generating activity
will be conducted so as to source local sales tax revenues in
Georgetown by December 31, 1997.
2. Acquisition by ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ 4B will
purchase the Power Campus from the City by taking subject to all
existing debt.
3. Lease. Power will lease the Power Campus from
Georgetown 4B. The lease agreement (the "Lease") will contain the
following general terms:
(a) Term: 12 years.
(b) Rent: Sufficient to pay all of Georgetown 4B's
expenses in the following priority: (i) reasonable
expenditures for maintenance and operation of
▇▇▇▇▇▇▇▇▇▇ ▇▇; (ii) Equivalency Payments as defined
in Article III; (iii) taxes owed; and (iv) debt
service on the Power Campus, as such may be expanded
by Power.
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(c) Incentive Rent Reduction: Incentive payments
received by Georgetown 4B from the City and the CDD,
as specified in Article V and VI, will offset, dollar
for dollar, rental obligations of Power to ▇▇▇▇▇▇▇▇▇▇
▇▇.
(▇) Option: Power can purchase the Power Campus at any
time for the outstanding debt plus $100.00, with
closing costs to be borne by Power.
(e) Supplemental Rent Defaults: On or about October 1 of
each year, 4B shall determine if sufficient funds are
on hand to remit (1) to the City, County, and School
District the Equivalency Payments defined in Article
IV; and (2) any taxes assessed against ▇▇▇▇▇▇▇▇▇▇ ▇▇.
If there are not sufficient funds on hand to pay
these items, Georgetown 4B shall invoice Power for
Supplemental Rent in an amount sufficient to pay
these items. If Power fails to pay Supplemental Rent
by the later of November 1 or 30 days following
Power's receipt of a Supplemental Rent invoice, then
Power will have committed a Supplemental Rent
Default. Following notice of a Supplemental Rent
Default and a 10 day cure period, Georgetown 4B may,
as its remedy, (a) convey the Power Campus to Power
terminating the Lease and returning the Power Campus
to the tax roll, and (b) collect delinquent
Supplemental Rents and collection costs.
(f) Assignment: Georgetown 4B and Power will not assign
their respective interests in the Lease without the
consent of the other. Power's consent to an
assignment by Georgetown 4B will not be required if
Power fails to cure a default under the Lease.
4. Expansion. At the request of Power during the term
of the Lease, Georgetown 4B will make improvements to the Power Campus
using non-recourse financing supplied by Power. Any such improvements
will be leased to Power as part of the Lease, and the debt service for
the financing will be used in determining Power's rent. Power may
choose to use a third party developer to accomplish expansion of the
Power Campus, provided that Power remains the occupant of the Power
Campus. At Power's request, Georgetown 4B will release a portion of
the Power Campus from the Lease and simultaneously lease such property
to a developer under terms and conditions equivalent to the Lease to
accommodate Power's utilization of the developer. In order to
accommodate financing of improvements on the Power Campus, Georgetown
4B agrees that the term of the lease of some or all of the Power
Campus may be extended at Power's request, provided that for 2009 and
all years thereafter the Power Campus is subject to ad valorem tax, or
alternatively that the extended lease calls for Supplemental Rent
based on Equivalency Payments of 50% to the City and 100% to the
County and the School District for 2009 and all years thereafter.
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5. Refinancing. At the request of Power during the term
of the Lease, Georgetown 4B will refinance outstanding indebtedness
secured by the Power Campus and any improvements on the Power Campus
under such terms and conditions as arranged by Power. Any change in
debt service requirements and any costs of financing will be reflected
in Power's rent as specified in Section 3(b) above. All financing and
refinancing shall be nonrecourse as to ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ 4B
will not incur any liens or encumbrances on the Power Campus unless
approved in advance by Power.
D. PARK LAND. Approximately 62.46 acres, more or less, of
floodplain acreage have been dedicated for the benefit of the City, to be
utilized by the City as a match for grant funds for a future extension of the
City's Hike and Bike Trail along the San ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in Georgetown and
related park land development ("Park Acreage"). The City agrees to apply for a
matching grant from the Texas Parks and Wildlife Department, and upon receipt
of such grant, to develop the Park Acreage to connect to the Property, so that
the Park Acreage can be accessed from the Property.
IV. EQUIVALENCY AND SUPPLEMENTAL RENT PAYMENTS
A. EQUIVALENCY PAYMENTS. During calendar years 2000 through
2008, Equivalency Payments will be made by Georgetown 4B according to the
schedule set forth in Section IV.D. to the City, County and School District to
mitigate the reduction in tax revenues which results from Georgetown 4B's
ownership of the Power Campus.
B. CORRESPONDING POWER OBLIGATION. Power is obligated to pay
Supplemental Rent on the Power Campus in an amount equal to the Equivalency
Payments which become due from Georgetown 4B to the City, County and School
District. Georgetown 4B will use the Supplemental Rent to make the Equivalency
Payments.
C. TIMING OF PAYMENTS. The City, County and School District will
supply calculations of the Equivalency Payments due each year from ▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇ 4B will invoice Power for Supplemental Rent on or about October
1 of each year. Power's Supplemental Rent Payment will be due on the later of
November 1 or 30 days after receipt of the invoice. Georgetown 4B will make
Equivalency Payments within 10 days of receipt of Supplemental Rent from Power.
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D. AMOUNT. The Equivalency Payment due a jurisdiction under
Paragraph A above equals the product of (a) the value of any portion of the
Power Campus and any personal property located on the Power Campus which are
owned by Georgetown 4B and exempt from ad valorem taxation as of January 1 of
that year, times (b) the jurisdiction's ad valorem tax rate for that year,
times (c) the percentage from the following schedule for that entity for that
year.
Entity 2000-2005 2006 2007 2008
------ --------- ---- ---- ----
City 0% 25% 50% 50%
County 0% 25% 50% 75%
School 50% 50% 50% 75%
E. VALUATION AND ACCOUNTS. All valuations of property necessary
to determine the amount of Equivalency Payments will be made by the ▇▇▇▇▇▇▇▇▇▇
Central Appraisal District or by an appraiser selected by the City, at the
City's option.
V. COUNTY DEVELOPMENT DISTRICT
A. FORMATION. The parties agree to work with the County to
establish the ▇▇▇▇▇▇▇▇▇▇ County Development District No. 1 ("CDD"), which will
include the Power Campus.
B. SALES TAX. The CDD will put before the voters residing in the
district a resolution to adopt a 1/2 cent sales tax applicable to sales
occurring in the district.
C. USE OF TAX PROCEEDS. The CDD will use a portion of the sales
tax proceeds in furtherance of the Program. The amount expended by the CDD in
furtherance of the Program will be equal to one-half of the CDD sales tax
collected by Power at the Power Campus. During the term of the Lease, the CDD
will make payments of this amount directly to Georgetown 4B, and such payments
will correspondingly offset Power's rental under the Lease for the month
following the month of receipt. Any amount received by Georgetown 4B in excess
of Power's current rental obligation will be paid to Power. After the Lease is
terminated the CDD will make such payments to Power. Payments received by
Power will be used by Power in the maintenance, operation, and further
development of the Project.
D. OBLIGATION. The CDD will incur an obligation commensurate
with the term of this Agreement so that its right to receive one-half cent tax
revenues from sales within the CDD retains priority over the rights of other
taxing jurisdictions.
E. EXPOSITION CENTER. It is anticipated that the CDD will also
expend sales tax revenues on a project to develop an exposition center for
▇▇▇▇▇▇▇▇▇▇ County. The parties agree to seek approval from the CDD and/or
▇▇▇▇▇▇▇▇▇▇ County for Power to use the exposition center for three weeks
annually at no charge.
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VI. ECONOMIC DEVELOPMENT PROGRAM GRANT
A. TERM OF PROGRAM GRANT. Program Grants from the City to Power
shall begin for October 2006 and continue through December 2056, unless
initiated earlier as provided in Paragraphs H, I, or J, or unless terminated
earlier as provided in this Agreement.
B. SUBMISSION OF DATA. Within thirty (30) days of the end of
each month, Power shall submit to the City a schedule detailing its calculation
of the Program Grant for the past month. As backup for the schedule, Power
shall submit a copy of all sales tax reports, including amended reports, filed
by Power for that month showing City Sales Tax Collections, and such other data
as the parties determine appropriate to support the calculation of the Program
Grant.
C. PROGRAM GRANT. Within thirty (30) days of receipt of City
Sales Tax Collections from the State of Texas for the month detailed in Power's
report, the City shall pay the Program Grant. During the term of the Lease,
the Program Grant shall be paid to Georgetown 4B up to the amount of rent due
for the month following the month in which payment is made, and shall
constitute a credit against any rent owed by Power under the Lease for the
month following the month of receipt. Any excess amount, and any payments made
after the expiration of the Lease, shall be made to Power or as directed in
writing by Power.
D. COMPUTATION OF BASIC PROGRAM GRANT. The Basic Program Grant
for a month is equal to the sum of (a) City Sales Tax Collections multiplied by
the following percentage:
October 2006 - September 2007 15 %
October 2007 - September 2008 20 %
October 2008 - September 2009 25 %
October 2009 - September 2010 30 %
October 2010 - and thereafter 39 %
plus, for taxes assessed in calendar years 2009 and thereafter, (b) the amount
of City Property Tax Revenues collected during the prior month, multiplied by
50%.
E. CONDITION TO PROGRAM GRANT. Power agrees to use its best
efforts to maximize local sales and use tax revenues to the City. Power's
continuing right to receive Program Grant Payments beginning in 2019 and each
year thereafter is conditioned upon the difference between
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(1) Total City Tax Revenues for the immediately preceding three years, and (2)
the total Program Grant for the immediately preceding three years, exceeding
$1.5 million. If Power fails to meet this condition for any year, all future
Program Grants are canceled, and this Agreement shall terminate. Power may,
however, choose to meet this condition by making a cash payment to the City on
or before January 30 of the year for which the condition has not been met in an
amount, which, when added to the Total City Tax Revenues amount specified
above, will cause the difference referenced above to equal $1.5 million.
F. ACCESS TO INFORMATION. Power agrees to provide the City
access to information related to the computation of the Program Grant during
regular business hours upon reasonable notice.
G. INTENT. It is the intent of the parties that the Program
Grant represent a sharing of tax benefits which inure to the City as a result
of Power's location in the City. The percentages set forth in Paragraph D,
above, have been selected based on the present tax situation in the City. The
percentages are to be applied to monies actually collected by the City, and are
net of any fees or charges imposed by the State for handling such monies. If
during the term of this Agreement state law applicable to municipal taxation
changes and as a result the Program Grant amount differs materially from the
amount which would have been calculated if state law remained the same as in
effect on the date of this Agreement, then the parties shall endeavor to adjust
the Program Grant computation so as to achieve the same proportionate economic
benefits to both parties as would have resulted if the law had not changed.
H. CONTINGENT PROGRAM GRANT. It is the expectation of the
parties that while owned by Georgetown 4B the Power Campus, as improved, will
be exempt from ad valorem tax. If the Power Campus is subject to ad valorem
tax while owned by Georgetown 4B, resulting in Power paying either ad valorem
tax on the Power Campus, or Supplemental Rent related to payment of ad valorem
taxes by Georgetown 4B, then the City will pay a Contingent Program Grant to
Power each month during the term of this Agreement. The amount in any month
will be the sum of (a) the amount, which when added to the Basic Program Grant
specified in Paragraph D above, equals 40% of the City Sales Tax Collections
for the month of calculation, plus (b) the amount of City Property Tax Revenues
collected during the prior month, multiplied by 100% for collections in 1997
through 2005, 75% for collections in 2006, and 50% thereafter. It is
specifically provided, however, that the aggregate amount of Contingent Program
Grant payments made under this provision will not exceed the amount of the
additional ad valorem tax and Supplemental Rent paid by Power resulting from
the ownership of the Power Campus by Georgetown 4B failing to provide ad
valorem tax exemption for the Power Campus.
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I. ADDITIONAL PROGRAM GRANT. If the CDD sales tax described in
Article V Paragraph B is not approved by the voters in the CDD prior to the
time that Power begins making sales from the Power Campus, then until such time
as the voters do approve the CDD sales tax, the City will make an Additional
Program Grant each month equal to 25% of City Sales Tax Collections. The City
may choose to satisfy this obligation by creating any type of special district
or adopting any type of additional tax authorized by law, and providing that
the Program Grant be made by such special district or from such additional tax
revenues.
J. SUPPLEMENTAL PROGRAM GRANT. If authorized by the Texas
Legislature, the City and Power may jointly seek to apply a site-specific sales
tax to sales made at the Power Campus. If such sales taxes are collected by
the City, and provided that Additional Program Grants pursuant to Paragraph I
above are not being made, then the City shall pay to Power a Supplemental
Program Grant equal to 95% of the site specific sales tax revenues collected by
the City. If Additional Program Grants under Paragraph I above are being made,
then the Supplemental Program Grant under this Paragraph J shall equal 95% of
the site specific sales taxes collected which are attributable to a site
specific sales tax rate in excess of .5%; site specific sales taxes collected
which are attributable to the first .5% of any site specific sales tax rate
shall not be included in the calculation of the Supplemental Program Grant.
VII. OTHER PROGRAM COMPONENTS
A. ELECTRIC UTILITY RATE. The City owns and operates a municipal
electrical distribution system and obtains wholesale power from the Lower
Colorado River Authority ("LCRA"). In providing electric utility service to
the Power Campus, the City agrees to charge Power the direct wholesale cost of
power as charged to the City by LCRA plus a customer service charge equal to
$2,000.00 per month. Power agrees to work with the City in order to maximize
Power's electric load factor, thereby reducing the cost of providing electric
service to Power and the cost of wholesale power being used by Power.
B. FOREIGN TRADE ZONE DESIGNATION. The City agrees to support an
application by Foreign Trade Zone of Central Texas, Inc., to obtain Foreign
Trade Zone status for the Power Campus.
C. WORKFORCE TRAINING PROGRAMS. The City agrees to work with
local agencies in order to develop and train additional workers within the
Georgetown area. Specifically, the City will work in conjunction with Austin
Community College, Texas State Technical College, and other technical colleges
within the State of Texas, to ensure that Power receives workforce development
funds through Smart Jobs, Skills Development Fund, and other workforce programs
of the State of Texas.
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D. TEXAS CAPITAL FUND. The City will apply for Texas Capital
Fund ("TCF") grants to finance a portion of the infrastructure improvements
required for development of the Property. The City will file its first
application for TCF funding as soon as practicable. Power agrees to supply the
City with all business and development information required for this TCF
application and any future TCF applications.
E. DESIGN AND CONSTRUCTION OF POWER FACILITIES. Georgetown 4B
agrees to contract with a developer, architects, engineers, land planners,
general contractors, project managers, and/or other design and construction
professionals ("Development Professionals") to provide for the design and
construction of the Power Facilities. Georgetown 4B agrees to employ only
those Development Professionals which are acceptable to Power. Power agrees to
assist the Development Professionals by providing needed information related to
the Project in order to assure timely development. Georgetown 4B agrees to
require the Development Professionals to work with the City staff to ensure
that all Project plans are in compliance with the Development Regulations. The
City will work with the Development Professionals hired by Georgetown 4B to
assist in rapid processing of the Water Pollution Abatement Plan through the
Texas Natural Resources and Conservation Commission.
F. DEVELOPMENT APPROVALS AND FEES. Power recognizes that the
City has Development Regulations currently in effect which will govern the
development of the Project. Power agrees to comply with the terms of the
Development Regulations in effect on the date of Power's application for
approval for that particular development permit. The City and Power understand
and agree that Power desires to amend or supplement this Development Agreement
in the future to further define the actual development proposed by Power for
the Project and to submit for approval a Concept Plan and proposed development
standards to be utilized during the term of development of the Project.
Power shall obtain all approvals as required by the City's Development
Regulations and this Agreement prior to its development of any of the Power
Campus. The City and Power will work together to recommend appropriate zoning
classifications for the Project. If rezoning is recommended for any portion of
the Power Campus, such as the potential C-2B zoning for the corporate offices
to be higher than three stories, Power agrees that these applications will be
processed in the same manner as all other development applications, in
compliance with this Paragraph and the terms of this Agreement.
Power agrees and acknowledges that each application filed under the
Development Regulations must be processed through the public review process
required in the Development Regulations before any action may be taken
concerning the application. The City agrees to support all applications for
development approvals or permits by Power, so long as such
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applications comply with the Development Regulations and the development of
Power Center as contemplated by this Agreement. The City agrees to waive all
planning review fees and impact fees related to the development on the Power
Campus, except for direct costs charged to the City by other organizations.
G. BUILDING PERMITS AND FEES. Power agrees to secure or cause to
be secured City building permits for all construction to be done on the Power
Campus and construction shall be in compliance with the City's Development
Regulations. The City agrees to waive all building permit fees for development
of the Project. The City agrees to contract with the Southern Building Codes
Conference, Inc. ("SBCCI") for review of Power's building plans for the
Project. Power agrees to pay the SBCCI fees incurred by the City for the review
of Power's building plans. The City will devote the necessary personnel to the
Project to ensure that the development applications for the Project are
processed in the least amount of time possible.
H. INSPECTIONS DURING CONSTRUCTION. In order to expedite the
construction of the Project in the time period desired by Power, the City's
Building Inspection Department will not inspect the construction. Power agrees
to contract with, or cause its Project developer to contract with, additional
architects and engineers, with the approval of the City, to inspect the
construction and to certify that all aspects of the Project are constructed in
accordance with all applicable building, construction, plumbing and other
development requirements.
VIII. SITE DEVELOPMENT
A. CENTURY PLAN. Power shall seek approval of Century Plan
amendments reasonably required to ensure that planned development of the
Project is consistent with the Century Plan. The City agrees to support each
application by Power for an amendment to the Century Plan so long as such
application is consistent with the development of the Project contemplated by
this Agreement.
B. DEVELOPMENT IMPROVEMENTS. Power agrees and acknowledges that
its proposed development of the Project will require substantial utility,
transportation and certain other improvements to be made in order for the
infrastructure to be available for the development of the Project on the
Property as contemplated by this Agreement.
1. City-Installed Improvements. The following
improvements will be constructed by the City in order for the Project
to be developed ("City Improvements"). The City and Power understand
and agree that the City plans to utilize funding from the Texas
Capital Fund ("TCF"), to the extent that funding is available, for the
construction of these improvements.
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(a) Off-site Improvements.
(1) water transmission loop from site to
Central Drive water storage tank for fire
flow purposes; and
(2) electric feeds from two separate electric
substations, if needed.
(b) Subdivision Improvements.
(1) water distribution lines;
(2) wastewater collection lines;
(3) stormwater collection lines;
(4) underground electrical distribution lines;
(5) relocation of electric transmission line
to the San Gabriel River floodplain or
along the centerline or Power Computing
Boulevard if relocation to the floodplain
is infeasible;
(6) appropriate street lighting;
(7) sidewalks;
(8) bridge connecting Power Computing
Boulevard to Country Club Drive;
(9) entrance feature, utilizing the
architectural style of Power's facilities;
(10) landscaping along Power Computing
Boulevard;
(11) landscaping at the entrance feature and
along the exterior front property, if
permitted by the Texas Department of
Transportation; and
(12) streets, specifically Hillview, Vista,
and Power Computing Boulevard.
Power Computing Economic Development Agreement
Page 14 of 25
15
2. Power-Installed Improvements. Power shall be fully
responsible for all costs related to the construction of any
improvements required for the development of the Project which are not
specified as City-Installed Improvements. Power is also specifically
required to construct drainage facilities for the removal of
stormwater related to the development of the Project ("Stormwater
Improvements"). Power may construct the Stormwater Improvements by
paying for the incremental cost of oversizing the City's stormwater
collection system which connects to the Power Campus.
3. Payment of Construction Costs. The City agrees to
construct the City-Installed Improvements for the benefit of the
Property, subject to the terms of this Agreement. This commitment is
based upon Power's proposed development of the Project. The City
agrees to pay for the cost of construction of the City-Installed
Improvements, subject to the following limitations:
(a) Power agrees to phase development of the Project
in order for the City to maximize the utilization of
TCF funding for the construction of the City
Improvements within the Project subject to reasonable
business considerations concerning Power's facility
expansion needs;
(b) utilization of the existing Rivery engineering
and construction plans prepared by the Urban Design
Group provided that Power shall pay the increased
engineering cost related to changes in such plans;
and
(c) reimbursement by Power for the installation of
City-Installed Improvements, if required by the terms
of this Paragraph. On February 1, 2012, Power shall
reimburse the City for the cost of the construction
of City-Installed Improvements to the extent that
$8,000,000.00 exceeds the sum of the following items
("Improvement Cost Credits"): (i) any and all
revenues received by the City during the period
beginning on the date of this Agreement and
continuing through January 1, 2012 ("Improvement Cost
Recoupment Period") from sales and use taxes, ad
valorem taxes or other taxes directly attributable to
Power's activity on the Power Campus net of any
Program Grant Payments made to Power pursuant to
Article VI hereof, plus (ii) any and all grants,
subsidies, or other funds received by the City during
the Improvement Cost Recoupment Period from federal,
state or other local governmental sources used in the
construction of the City-Installed Improvements, plus
(iii) the revenues received by the City
Power Computing Economic Development Agreement
Page 15 of 25
16
during the Improvements Cost Recoupment Period from
the development and sale of the City Acreage, net of
cost of acquisition and any expenditures related to
ownership and development of the Property; provided
that if the average square foot sales price of the
City Acreage is less than $4.00 then the gross
revenues received by the City from the sales of the
City Acreage shall be calculated as if all City
Acreage was sold at a price of $4.00 per square foot.
In the event that the sum of the Improvement Cost
Credits equals or exceeds $8,000,000.00, Power shall
have no obligation to reimburse the City for the
City-Installed Improvements.
(d) Improvements Construction Schedule. Power and
the City recognize that the timetable for
Improvements necessary for services to the Project is
based on the proposed construction schedule for
development of the Project. The City will construct
Improvements and provide utility services based on
actual development of the Project. Power recognizes
that in order for the City to be responsive to the
planning and site development reviews that will be
needed for the development of the Project, the City
and Power must meet at least semi-annually to review
the growth projections affecting additional
construction needs within the Project. At each
meeting, Power shall submit to the City a building
phasing plan, in order to permit the City to timely
seek any additional funding needed for construction
of City Improvements from TCF.
C. MAINTENANCE OF CERTAIN IMPROVEMENTS. The City and Georgetown
4B agree to require the purchasers of the City Acreage to pay the costs for the
maintenance of landscaping along Power Computing Boulevard, at the entrance to
the Property adjacent to the I-35 frontage road, and such landscaping as the
Texas Department of Transportation allows to be installed within the state
right of way adjacent to the Property.
D. UTILITY SERVICE. In accordance with Power's commitment to
locate the Project within the City, the City agrees to provide such utilities
to the Project as the City is legally authorized to provide, subject to the
terms of this Agreement.
1. Water. The City agrees to provide domestic water
service required to deliver potable water to the Project at a point
located at the Power Campus near where the Initial Power Facilities
are to be constructed on or before June 1, 1997. In addition, the
City agrees to provide fire flow to the Project at the minimum levels
established by the
Power Computing Economic Development Agreement
Page 16 of 25
17
State Board of Insurance. Water service shall be provided in
accordance with the same policies and ordinances in effect for all
City water customers within the City limits, and the potable water
shall comply with all federal, state and local requirement for potable
water. Water service rates shall be the same as those rates
applicable to other similarly classified City water customers within
the City limits. The City shall maintain the ability to amend such
policies, ordinances and rates as the City may deem necessary, so long
as such amendments are applicable citywide.
2. Wastewater. The City agrees to provide domestic
wastewater service to the Project at a point located at the Power
Campus near where the Initial Power Facilities are to be constructed
on or before July 1, 1997. Wastewater service shall be provided in
accordance with the same policies and ordinances in effect for all
City wastewater customers within the City limits. Wastewater service
rates shall be the same as those rates applicable to other similarly
classified City wastewater customers within the City limits. The City
shall maintain the ability to amend such policies, ordinances and
rates as the City may deem necessary, so long as such amendments are
applicable citywide.
3. Electric. The City shall provide electric utility
services to the Project. The City shall waive all applicable connect
fees for connection to the electric distribution system. Electric
service from the City shall be provided in accordance with the same
policies and ordinances in effect for all City electric customers
within the City limits. Electric service rates for Power shall be the
same as those rates applicable to other similarly classified City
electric customers within the City limits. The City shall maintain
the ability to amend such policies, ordinances and rates as the City
may deem necessary, so long as such amendments are applied city-wide.
4. Solid Waste. The City agrees to provide solid waste
disposal services to the Project. Solid waste disposal service shall
be provided in accordance with the same policies and ordinances in
effect for all City sanitation customers within the City limits. Solid
waste disposal service rates shall be the same as those rates
applicable to other similarly classified City sanitation customers
within the City limits. The City shall maintain the ability to amend
such policies, ordinances and rates as the City may deem necessary, so
long as such amendments are applied city-wide.
5. Drainage. Power acknowledges that the City has
created a drainage utility in accordance with the requirements of
State law. Drainage utility fees will be applicable
Power Computing Economic Development Agreement
Page 17 of 25
18
to residents within the Project in the same manner and according to
the same terms as apply to other similarly classified customers of the
City. The City shall maintain the ability to amend such policies,
ordinances and rates as the City may deem necessary, so long as such
amendments are applied city-wide.
IX. MISCELLANEOUS PROVISIONS
A. TERM OF AGREEMENT. This Agreement shall remain in full force
and effect until December 31, 2056; unless sooner terminated as otherwise
provided in this Agreement. If Power has not provided notice to the City that
it has secured adequate financing on or before March 31, 1997, then the City
may terminate this Agreement.
B. CONDITION SUBSEQUENT. Power may terminate this Agreement at
any time on or before March 31, 1997 by delivering notice to the City that
Power has been unable to obtain acceptable financing for the Initial Power
Facilities. If the Agreement is terminated pursuant to this provision, none of
the parties shall have any further obligation to the others.
C. DEFAULT. If any party should default (the "Defaulting Party")
with respect to any of its obligations hereunder and should fail, within thirty
(30) days after delivery of written notice of such default from another party
(the "Complaining Party") to cure such default, the Complaining Party, may
elect to terminate this Agreement or specifically enforce this Agreement. A
default under the Lease is a default under this Agreement. None of the parties
shall under any circumstances have liability for any consequential damages
which may be caused by default under this Agreement. Notwithstanding anything
to the contrary contained herein, any Program Grant which is not timely paid by
the City shall incur interest at the highest rate per annum allowed by
applicable law from the date such Program Payment is due until paid.
D. MUTUAL ASSISTANCE. The City, the Georgetown 4B and Power
shall do all things 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. Power hereby consents to and agrees to cooperate in
any request by the City to obtain copies of Sales/Use tax returns from the
State which contains information pertinent to the calculation of a Program
Grant.
Power Computing Economic Development Agreement
Page 18 of 25
19
E. REPRESENTATIONS AND WARRANTIES. The City and Georgetown 4B
each represents and warrants to Power that this Agreement is within the scope
of its respective authority and the provisions of its charter and that it is
duly authorized and empowered to enter into this Agreement. Power represents
and warrants to the City and to Georgetown 4B that it has requisite authority
to enter into this Agreement.
F. SECTION OR OTHER HEADINGS. Section or other headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
G. ATTORNEYS FEES. In the event any legal action or proceeding
is commenced to enforce or interpret provisions of this Agreement, the
prevailing party in any such legal action shall be entitled to recover its
reasonable attorneys' fees and expenses incurred by reason of such action.
H. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the transaction contemplated
herein.
I. AMENDMENT. This Agreement may only be amended, altered, or
revoked by written instrument signed by Power, the Georgetown 4B and the City.
Use of term "Agreement" herein includes all amendments or supplements to this
Agreement.
J. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on
and inure to the benefit of the parties, their respective successors and
assigns. Power may assign all or part of its rights and obligations hereunder
only upon prior written approval of the City. Notwithstanding the foregoing
provisions of this Section, in the event Power desires to transfer or assign
its rights or obligations hereunder to a Power Affiliate, it shall have the
right to do so without the consent or approval by the City, so long as Power
shall remain responsible and obligated to the City for the performance of its
obligations under this Agreement.
K. NOTICE. Any notice and/or statement required and permitted to
be delivered shall be deemed delivered by depositing same in the United States
mail, certified with return receipt requested, postage prepaid, addressed to
the appropriate party at the following addresses, or at such other addresses
provided by the parties in writing;
Power Computing Economic Development Agreement
Page 19 of 25
20
POWER:
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Chairman and Chief Executive Officer
▇▇▇▇ ▇. ▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇
Corporate Counsel
▇▇▇▇ ▇. ▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
CITY:
City Manager
City of Georgetown
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to:
City Attorney
City of Georgetown
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
GEORGETOWN 4B
Executive Director
Georgetown 4B, Inc.
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to:
City Attorney
City of Georgetown
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Power Computing Economic Development Agreement
Page 20 of 25
21
L. INTERPRETATION. Regardless of the actual drafter of this
Agreement, this Agreement shall, in the event of any dispute over its meaning
or application, be interpreted fairly and reasonably, and neither more strongly
for or against any party.
M. 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 ▇▇▇▇▇▇▇▇▇▇ County, Texas.
N. SEVERABILITY. In the event any provision of this Agreement is
illegal, invalid, or unenforceable under present or future laws, then, and in
that event, it is the intention of the parties hereto that the remainder of
this Agreement shall not be affected thereby, and it is also the intention of
the parties of this Agreement that in lieu of each clause or provision that is
found to be illegal, invalid, or unenforceable a provision be added to this
Agreement which is legal, valid and enforceable and is as similar in terms as
possible to the provision found to be illegal, invalid or unenforceable.
O. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be considered an original, but all of which
shall constitute one instrument.
P. GEORGETOWN 4B STATUS. In the event that Georgetown 4B is
unable to undertake this project before January 15, 1997, then the City agrees
to amend this Agreement in such a manner as to provide economic benefits to the
parties that are substantially the same as those set forth herein, but without
the involvement of ▇▇▇▇▇▇▇▇▇▇ ▇▇. It is anticipated that such amended
Agreement will include the economic benefits described in Section VI.H. hereof.
Power may, but shall not be obligated to, enter into such amended Agreement. If
Power and the City do not enter into such amended Agreement, neither party
shall have any further obligation hereunder.
EXECUTED this _____ day of __________________ 1996.
CITY OF GEORGETOWN, TEXAS Attest:
By: /s/ /s/
---------------------------- --------------------------------------
▇▇▇ ▇▇▇▇, Mayor ▇▇▇▇▇▇ ▇. ▇▇▇, City Secretary
Approved as to form:
/s/
--------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Banks
City Attorney
Power Computing Economic Development Agreement
Page 21 of 25
22
GEORGETOWN 4B, INC. Attest:
By: /s/
----------------------------
Name: /s/
--------------------------- -------------------------------------
Title: President Corporate Secretary
POWER COMPUTING CORPORATION Attest:
By: /s/ /s/
---------------------------- -------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Corporate Secretary
Chairman and
Chief Executive Officer
Power Computing Economic Development Agreement
Page 22 of 25
23
STATE OF TEXAS )
) ss. CORPORATE ACKNOWLEDGMENT
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇ ▇▇▇▇, Mayor of the City of Georgetown, a Texas Home Rule Municipal
Corporation, on behalf of said municipality, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same for the purposes and consideration therein expressed, as the
act and deed of said municipality, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 10th day of December, 1996.
/s/
---------------------------------------
Notary Public, State of Texas
[Seal: ▇▇▇▇▇▇ ▇▇▇]
Power Computing Economic Development Agreement
Page 23 of 25
24
STATE OF TEXAS )
) ss. CORPORATE ACKNOWLEDGMENT
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇ ▇▇▇▇▇▇▇, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of said Georgetown 4B, Inc., a Texas Development Corporation, and
that he executed the same as the act of such corporation for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 17th day of December, 1996.
/s/
---------------------------------------
[Seal, ▇▇▇▇▇▇ ▇▇▇▇▇▇] Notary Public, State of Texas
Power Computing Economic Development Agreement
Page 24 of 25
25
STATE OF TEXAS )
) ss. CORPORATE ACKNOWLEDGMENT
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ )
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of said Power Computing Corporation, a Delaware corporation
authorized to do business in Texas, and that he executed the same as the act of
such corporation for the purposes and consideration therein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 24th day of December, 1996.
/s/
---------------------------------------
Notary Public, State of Texas
Power Computing Economic Development Agreement
Page 25 of 25
26
EXHIBIT A
RESOLUTION NO. 961015 - I
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GEORGETOWN,
TEXAS, ENCOURAGING THE DEVELOPMENT OF POWER CENTER IN
GEORGETOWN, TEXAS, AND DETERMINING THAT A DEVELOPMENT
AGREEMENT WITH POWER COMPUTING CONSTITUTES AN ECONOMIC
DEVELOPMENT PROGRAM FOR THE CITY; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, Power Computing ("Power") has indicated its interest in
developing its manufacturing center, sales, center and administrative
headquarters in Georgetown, Texas, ("Power Center Project"); and
WHEREAS, the City Council recognizes the significance of the proposed
Power Center Project for the Georgetown Community; and
WHEREAS, the City Council has actively investigated the effects the
proposed Power Center Project will have for Georgetown through the study
performed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Associates ("Economic Impact Analysis"); and
WHEREAS, the City Council determines that the development of the Power
Center Project would prove to be a community asset for the City of Georgetown;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, THAT:
SECTION 1. The facts and recitations contained in the preamble of
this resolution are hereby found and declared to be true and correct, and are
incorporated by reference herein and expressly made a part hereof, as if copied
verbatim.
SECTION 2. The City Council hereby finds that this Resolution
implements the following policies of the Century Plan -- Policy Plan:
Economic Development Policy I, which states: "The City will encourage
diversified growth and promote business opportunities to create jobs,
broaden the tax base, and minimize the impact of economic
fluctuations;" and
Growth and Physical Development Policy I, which states: "The City will
ensure that future land use patterns provide economic. cultural, and
social activities to all residents, businesses and organizations;" and
Power Center Resolution No. 961015-I
Page 1 of 2 Pages
27
EXHIBIT A
Growth and Physical Development Policy 4, which states: "The City will
encourage new development and infill redevelopment in the community."
The City Council further finds that the adoption of this resolution is not
inconsistent or in conflict with any other Century Plan Policies, as required
by Section 2.03 of the Administrative Chapter of the Policy Plan.
SECTION 3. The City Council hereby determines that the development of
the Power Center Project will stimulate economic development within the
Georgetown area and in the State of Texas. The City Council further determines
that the development of the Power Center Project is in the best interest of the
City.
SECTION 4. The City Council hereby determines that the development of
an Agreement for the Power Center Project constitutes an Economic Development
Program within the meaning of Texas Local Government Code Sec. 380.001. The
City Council hereby directs the City staff to draft a development agreement in
compliance with established City Council policies and state law, and to bring
this agreement to the City Council for review and possible approval on November
12, 1996.
SECTION 5. The City Council wants to welcome Power Computing to our
community and express our pleasure at being chosen as the site for the
manufacturing and corporate headquarters for Power Computing. Power Computing
is strongly encouraged to proceed with the development of the Power Center
Project in Georgetown, and the City Council pledges its support in cooperating
with Power Computing and its representatives to satisfy the needs of both Power
Computing and the Georgetown Community to the mutual benefit of both parties.
SECTION 6. This resolution shall be effective immediately upon
adoption.
RESOLVED this 15th day of October, 1996.
THE CITY OF GEORGETOWN, TEXAS Attest:
/s/ /s/
-------------------------------- --------------------------------------
By: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇, City Secretary
Mayor, Pro-Tem
Approved as to form:
/s/
---------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, City Attorney
Power Center Resolution No. 961015-I
Page 2 of 2 Pages
28
EXHIBIT C 154.166 ACRES
PARCEL 1
FIELD NOTES FOR A 154.166 ACRE TRACT OF LAND SITUATED IN THE ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ SURVEY, ABSTRACT NO. 497, AND THE ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; BEING A PART OF THAT
CERTAIN CALLED 259.4406 ACRE TRACT OF LAND DESCRIBED IN A DEED TO THE
RIVERY JOINT VENTURE, RECORDED IN VOLUME 2471, PAGE 379, OFFICIAL
RECORDS OF ▇▇▇▇▇▇▇▇▇▇ COUNTY, TEXAS; SAID 154.166 ACRE TRACT OF LAND
BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING at an iron rod found in northwest right of way line of ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇. ▇▇ for the most southerly corner of said called 259.4406 acre tract
and the herein described tract, and the southeast corner of RIVER HILLS SECTION
FOUR, according to the map or plat thereof recorded in Cabinet H Slides
231-232, Plat Records of ▇▇▇▇▇▇▇▇▇▇ County, Texas;
THENCE with the southerly line of said called 259.4406 acre tract, the east and
north lines of said RIVER HILLS SECTION FOUR, and the north line of RIVER HILLS
SECTION ONE, according to the map or plat thereof recorded in Cabinet D, Slides
304-306, Plat Records of ▇▇▇▇▇▇▇▇▇▇ County, Texas, the following Five (5)
courses and distances:
1. N 17 degrees 58'35" W, a distance of 398.11 feet to an iron
rod found;
2. S 79 degrees 52'59" W, a distance of 443.29 feet to a 60d nail
found;
3. S 76 degrees 35'10" W, a distance of 357.57 feet to an iron
rod found;
4. S 71 degrees 20'21" W, a distance of 444.06 feet to an iron
rod found;
5. S 69 degrees 00'19" W, a distance of 945.77 feet to an iron
rod found in the east line of that tract of land conveyed to
▇▇▇. ▇▇▇▇ ▇▇▇▇ by deed recorded in Volume 467, Page 433, Deed
Records of ▇▇▇▇▇▇▇▇▇▇ County, Texas, for the northwest corner
of said RIVER HILLS SECTION ONE, and the southwest corner of
said called 259.4406 acre tract an the herein described tract;
THENCE, along the east line of the ▇▇▇▇ tract and with the west line of said
called 259.4406 acre tract, N 12 degrees 20'37" W, passing an iron rod found at
a distance of 1078.53 feet and continuing for a total distance of 1127.53 feet
to an iron rod found on the bluff bank of the west fork of the San Gabriel
River for an ell corner in the west line of said called 259.4406 acre tract;
CAI-138-0020 Page 1 of 4
29
THENCE, along the bluff bank of the west fork of the San Gabriel River and the
west line of said called 259.4406 acre tract, the following fifteen (15)
courses and distances:
1. N 30 degrees 23'43" E, a distance of 133.45 feet to a 60d nail
found;
2. N 42 degrees 40'01" E, a distance of 88.49 feet to a 60 d nail
found in a cedar tree;
3. N 15 degrees 04'02" E, a distance of 120.20 feet to a 60 d
nail found in a cedar tree;
4. N 05 degrees 53'56" E, a distance of 114.71 feet to a 60 d
nail found in a cedar tree;
5. N 14 degrees 50'32" E, a distance of 220.01 feet to a 60 d
nail found in a cedar tree;
6. N 06 degrees 48'40" E, a distance of 212.67 feet to a 60 d
nail found in a cedar tree;
7. N 04 degrees 07'21" E, a distance of 212.02 feet to a 60 d
nail found in a oak tree;
8. N 10 degrees 01'41" E, a distance of 289.03 feet to a 60 d
nail found in a cedar tree;
9. N 32 degrees 20'23" E, a distance of 208.19 feet to an iron
rod found;
10. N 29 degrees 53'10" E, a distance of 163.40 feet to a 60 d
nail found in a cedar tree;
11. N 14 degrees 41'53" E, a distance of 203.99 feet to a 60 d
nail found in a oak tree;
12. N 43 degrees 55'10" E, a distance of 162.54 feet to a 60 d
nail found in a cedar tree;
13. N 63 degrees 43'49" E, a distance of 36.75 feet to an iron rod
found;
14. N 72 degrees 49'33" E, a distance of 46.76 feet to an iron rod
found;
15. N 37 degrees 45'32" E, a distance of 110.65 feet to an iron
rod found for the northeast corner of the herein described
tract;
THENCE, over and across said called 259.4406 acre tract with the north and east
lines of the herein described tract the following fourteen (14) courses and
distances:
1. N 77 degrees 46'01" E, a distance of 635.91 feet to a 1/2
inch iron rod set;
2. N 74 degrees 09'00" E, a distance of 348.06 feet to a 1/2
inch iron rod set;
3. N 80 degrees 05'40" E, a distance of 970.84 feet to a 1/2
inch iron rod set in a curve;
CAI-138-0020 Page 2 of 4
30
4. with said curve, to the left having a central angle of 05
degrees 26'18" , a radius of 1414.11 feet, an arc length of
134.22 feet and a chord bearing and distance of S 13 degrees
14'54" W, 134.17 feet to a 1/2 inch iron rod set at the point
of tangency;
5. S 10 degrees 31'45" W, a distance of 105.00 feet to a 1/2
inch iron rod set at the point of curvature of a curve to the
right;
6. with said curve to the right having a central angle of 18
degrees 35'05", a radius of 970.00 feet, an arc length of
314.63 feet and a chord bearing and distance of S 19 degrees
49'18" W, 313.26 feet to a 1/2 inch iron rod set at the point
of tangency;
7. S 29 degrees 06'50" W, a distance of 258.86 feet to a 1/2
inch iron rod set at the point of curvature of a curve to the
left;
8. with said curve to the left having a central angle of 37
degrees 18'45", a radius of 498.69 feet, an arc length of
324.76 feet and a chord bearing and distance of S 10 degrees
27'28" W, 319.05 feet to a 1/2 inch iron rod set at the point
of tangency;
9. S 08 degrees 11'55" E, a distance of 300.17 feet to a 1/2
inch iron rod set at the point of curvature of a curve to the
right;
10. with said curve to the right having a central angle of 20
degrees 00'00", a radius of 625.98 feet, an arc length of
218.51 feet and a chord bearing and distance of S 01 degrees
48'05" W, 217.40 feet to a 1/2 inch iron rod set at the point
of tangency;
11. S 11 degrees 48'05" W, a distance of 128.87 feet to a 1/2
inch iron rod set for the point of curvature of a curve to the
left;
12. with said curve to the left having a central angle of 60
degrees 02'33", a radius of 984.55 feet, an arc length of
1031.75 feet and a chord bearing and distance of S 18 degrees
13'12" E, 985.18 feet to a 1/2 inch iron rod set for the point
of tangency;
13. S 48 degrees 14'28" E, a distance of 181.95 feet to a 1/2
inch iron rod set for the point of curvature of curve to the
right;
14. with said curve to the right having a central angle of 88
degrees 59'40", a radius of 25.00 feet, an arc length of 38.83
feet and a chord bearing and distance of S 03 degrees 44'38"
E, 35.04 feet to a 1/2 inch iron rod set in a curve in the
northwest right of way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ and
in the south line of said called 259.4406 acre tract for the
southeast corner of the herein describe tract, from which an
iron rod found at the point of tangency of said curve, bears a
chord bearing and distance of N 42 degrees 17'46" E, 324.67
feet.
15. THENCE, with a curve to the left in the northwest right of way
line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ and the south line of said
called 259.4406 acre tract, having a central
CAI-138-0020 Page 3 of 4
31
angle of 06 degrees 10'27", a radius of 6029.58 feet, an arc
length of 649.75 feet and a chord bearing and distance of S 37
degrees 39'59" W, 649.43 feet to the POINT OF BEGINNING, POINT
OF BEGINNING, containing 154.166 acres of land within these
metes and bounds, subject to easements, conditions, or
restrictions of record, if any.
Bearing Reference: The southeast line of said called 259.4406 acre tract
described in Volume 2471, Page 379, Official Records of ▇▇▇▇▇▇▇▇▇▇ County,
Texas (S 43 degrees 50'20" W)
/s/
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, RPLS, LSLS [Seal, ▇▇▇▇ ▇▇▇▇▇▇▇]
Registered Professional
Land Surveyor No. 1481
Date: 12-3-96
------------------------
CAI-138-0020 Page 4 of 4
32
EXHIBIT D 42.637 Acres
PARCEL 2
FIELD NOTES FOR A 42.637 ACRE TRACT OF LAND SITUATED IN THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SURVEY, ABSTRACT NO. 497, AND THE ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; BEING A PART OF THAT CERTAIN CALLED 259.4406 ACRE
TRACT OF LAND DESCRIBED IN A DEED TO THE RIVERY JOINT VENTURE, RECORDED IN
VOLUME 2471, PAGE 379, OFFICIAL RECORDS OF ▇▇▇▇▇▇▇▇▇▇ COUNTY, TEXAS; SAID
42.637 ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS
AS FOLLOWS:
BEGINNING at a 1/2 iron rod set in a curve in the northwest right of way line
of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ and the south line of said called 259.4406 acre
tract for the beginning of a curve and the southwest corner of the herein
described tract, from which an iron rod found for the most southerly corner of
said carted 259.4406 acre tract, bears a chord bearing and distance of S 37
degrees 39'59" W, 649.43 feet;
THENCE, over and across said called 259.4406 acre tract with the west line of
the herein described tract the following eleven (11) courses and distances:
1. with said curve to the left having a central angle of 88
degrees 59'40", a radius of 25.00 feet, an arc length of 38.83
feet and a chord bearing and distance of N 03 degrees 44'38"
W, 35.04 feet to a 1/2 inch iron rod set for the point of
tangency;
2. N 48 degrees 14'28" W, a distance of 181.95 feet to a 1/2
inch iron rod set for the point of curvature of a curve to the
right;
3. with said curve to the right having a central angle of 60
degrees 02'33", a radius of 984.55 feet, an arc length of
1031.75 feet and a chord bearing and distance of N 18 degrees
13'12" W, -985.18 feet to a 1/2 inch iron rod set for the
point of tangency;
4. N 11 degrees 48'05" E, a distance of 128.87 feet to a 1/2
inch iron rod set for the point of curvature of a curve to the
left;
5. with said curve to the left having a central angle of 20
degrees 00'00", a radius of 625.98 feet, an arc length of
218.51 feet and a chord bearing and distance of N 01 degrees
48'05" E, 217.40 feet to a 1/2 inch iron rod set at the point
of tangency;
6. N 08 degrees 11'55" W, a distance of 300.17 feet to a 1/2
inch iron rod set at the point of curvature of a curve to the
right;
CAI-138-0220 Page 1 of 4
33
7. with said curve to the right having a central angle of 37
degrees 18'45", a radius of 498.69 feet, an arc length of
324.76 feet and a chord bearing and distance of N 10 degrees
27'28" E, 319.05 feet to a 1/2 inch iron rod set at the point
of tangency;
8. N 29 degrees 06'50" E, a distance of 258.86 feet to a 1/2
inch iron rod set at the point of curvature of a curve to the
left;
9. with said curve to the left having a central angle of 18
degrees 35'05", a radius of 970.00 feet, an arc length of
314.63 feet and a chord bearing and distance of N 19 degrees
49'18" E, 313.67 feet to a 1/2 inch iron rod set at the point
of tangency;
10. N 10 degrees 31'45" E, a distance of 105.00 feet to a 1/2
inch iron rod set at the point of curvature of a curve to the
right;
11. with said curve, to the left having a central angle of 41
degrees 58'47", a radius of 1414.11 feet, an arc length of
1036.10 feet and a chord bearing and distance of N 31 degrees
31'09" W, 1013.08 feet to a 1/2 inch iron rod set at the end
of said curve in the north line of said called 259.4406 acre
tract and in the southerly right of Country Club Road for the
most northerly corner of this tract, from which an iron rod
found for an ell corner of said called 259.4406 acre tract
bears, S 83 degrees 12'04" W, a distance of 147.49 feet;
THENCE, with the northerly line of said called 259.4406 acre tract and the
southerly right of Country Club Road, N 83 degrees 12'04" E, a distance of
34.68 feet to an iron rod found for an ell corner of said called 259.4406 acre
tract and the herein described tract,
THENCE, with the easterly line of said called 259.4406 acre tract the following
thirty-two (32) courses and distances:
1. S 08 degrees 34'56" E, a distance of 59.28 feet to an iron rod
found;
2. S 23 degrees 56'34" W, a distance of 43.77 feet to an iron rod
found at the beginning of a nontangent curve to the left;
3. with said curve to the left, having a radius of 1324.11 feet,
a central angle of 37 degrees 03'32", an arc length of 856.44
feet, and a chord bearing and distance of, S 32 degrees 21'59"
W, 841.59 feet to an iron rod at the end of said non-tangent
curve;
4. N 86 degrees 11'41" E, a distance of 237.46 feet to a 1/2
inch iron rod set on curve;
5. S 61 degrees 24'10" E, a distance of 251.97 feet to a 1/2
inch iron rod set;
6. S 26 degrees 43'00" E, a distance of 320.00 feet to a 1/2
inch iron rod set;
7. S 11 degrees 18'50" W, a distance of 167.55 feet to a 1/2
inch iron rod set;
8. S 38 degrees 45'39" W, a distance of 180.00 feet to a 1/2
inch iron rod set;
9. N 86 degrees 53'00" W, a distance of 194.94 feet to a 1/2
inch iron rod set;
CAI-138-0220 Page 2 of 4
34
10. S 02 degrees 37'37" W, a distance of 30.00 feet to a 1/2 inch
iron rod set;
11. S 58 degrees 18'30" E, a distance of 178.02 feet to a 1/2
inch iron rod set;
12. S 01 degrees 51'12" E, a distance of 55.70 feet to a 1/2 inch
iron rod set;
13. S 08 degrees 30'13" W, a distance of 375.27 feet to a 1/2
inch iron rod set;
14. S 70 degrees 17'30" W, a distance of 244.40 feet to a 1/2
inch iron rod set;
15. S 09 degrees 58'01" W, a distance of 15.00 feet to a 1/2 inch
iron rod set;
16. N 80 degrees 01'59" W, a distance of 138.77 feet to a 1/2
inch iron rod set;
17. S 09 degrees 58'01" W, a distance of 15.00 feet to a 1/2 inch
iron rod set;
18. S 68 degrees 52'19" E, a distance of 104.12 feet to a 1/2
inch iron rod set;
19. S 67 degrees 39'03" E, a distance of 200.34 feet to a 1/2
inch iron rod set;
20. S 09 degrees 29'43" E, a distance of 143.90 feet to a 1/2
inch iron rod set;
21. S 18 degrees 35'42" W, a distance of 274.84 feet to a 1/2
inch iron rod set;
22. S 61 degrees 46'27" W, a distance of 44.60 feet to a 1/2 inch
iron rod set;
23. S 03 degrees 47'46" W, a distance of 15.00 feet to a 1/2 inch
iron rod set;
24. N 86 degrees 12'14" W, a distance of 68.67 feet to a 1/2 inch
iron rod set;
25. S 03 degrees 47'46" W, a distance of 15.00 feet to a 1/2 inch
iron rod set;
26. S 61 degrees 03'56" E, a distance of 31.26 feet to a 1/2 inch
iron rod set;
27. S 33 degrees 45'27" E, a distance of 178.78 feet to a 1/2
inch iron rod set;
28. S 39 degrees 39 44" W, a distance of 80.00 feet to a 1/2 inch
iron rod set;
29. S 84 degrees 39'44" W, a distance of 130.00 feet to a 1/2
inch iron rod set;
30. S 07 degrees 44'01" E, a distance of 30.03 feet to a 1/2 inch
iron rod set;
31. N 84 degrees 39'44" E, a distance of 160.59 feet to a 1/2
inch iron rod set;
32. N 50 degrees 03'08" E, a distance of 190.00 feet to a 1/2
inch iron rod set;
33. S 40 degrees 25'07" E, a distance of 75.00 feet to a 1/2 inch
iron rod set;
CAI-138-0220 Page 3 of 4
35
34. S 36 degrees 33'42" E, a distance of 190.05 feet to a 1/2
inch iron rod set in the northwest right of way line of
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ and the south line of said called
259.4406 acre tract for the southeast corner of the herein
described tract;
THENCE, with the northwest right of way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇ and
the south line of said called 259.4406 acre tract the following two (2) courses
and distances:
1. S 43 degrees 50'20" W, a distance of 364.35 feet to a 1/2
inch iron rod found at the point of curvature of a curve to
the left;
2. with said curve to the left having a central angle of 03
degrees 05'08", a radius of 6029.58 feet, an arc length of
324.71 feet and a chord bearing and distance of S 42 degrees
17'46" W, 324.67 feet to the POINT OF BEGINNING, containing
42.637 acres of land within these metes and bounds, subject to
easements, conditions, or restrictions of record, if any.
Bearing Reference: The southeast line of said called 259.4406 acre tract
described in Volume 2471, Page 379, Official Records Of ▇▇▇▇▇▇▇▇▇▇ County,
Texas. (S 43 degrees 50'20" W)
/s/
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, RPLS, LSLS [Seal, ▇▇▇▇ ▇▇▇▇▇▇▇]
Registered Professional
Land Surveyor No. 1481
Date: 12-3-96
------------------------
CAI-138-0220 Page 4 of 4